exv10w13








Exhibit 10.13




Execution Copy





SECOND AMENDED AND RESTATED




FINANCING AGREEMENT



Dated as of                      ___, 2010



by and among



IMPERIAL PFC FINANCING II, LLC,

as Borrower,



CEDAR LANE CAPITAL LLC (f/k/a, LoIC LLC),

as Lender,



and



EBC ASSET MANAGEMENT, INC.

as Administrative Agent and Collateral Agent



 

 

 

 

 

 

 


Exhibit F to this Agreement has been omitted in its entirety

pursuant to a request for confidential treatment.  An unredacted

copy hereof has been filed separately with the United States Securities

and Exchange Commission pursuant to a request for confidential treatment.















 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I DEFINITIONS; CERTAIN TERMS
	 	 	1	 
	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	Section 1.02 Terms Generally
	 	 	26	 
	Section 1.03 Accounting and Other Terms
	 	 	26	 
	Section 1.04 Time References
	 	 	27	 
	 
	 	 	 	 
	ARTICLE II THE LOANS
	 	 	27	 
	 
	 	 	 	 
	Section 2.01 Commitments
	 	 	27	 
	Section 2.02 Making the Loans
	 	 	27	 
	Section 2.03 Repayment of Loans; Evidence of Debt
	 	 	28	 
	Section 2.04 Interest
	 	 	29	 
	Section 2.05 Reduction of Commitment; Prepayment of Loans
	 	 	30	 
	Section 2.06 Applicable Prepayment Premium
	 	 	32	 
	Section 2.07 Securitization
	 	 	32	 
	Section 2.08 Taxes
	 	 	33	 
	Section 2.09 Increase in Term Loan Commitment; Extension of Term Loan Commitment
Termination Date
	 	 	35	 
	Section 2.10 Indemnity Escrow
	 	 	36	 
	 
	 	 	 	 
	ARTICLE III INTENTIONALLY OMITTED
	 	 	36	 
	 
	 	 	 	 
	ARTICLE IV FEES, PAYMENTS AND OTHER COMPENSATION
	 	 	37	 
	 
	 	 	 	 
	Section 4.01 Audit and Collateral Monitoring Fees
	 	 	37	 
	Section 4.02 Payments; Computations and Statements
	 	 	37	 
	Section 4.03 Sharing of Payments, Etc
	 	 	38	 
	Section 4.04 Apportionment of Payments
	 	 	38	 
	Section 4.05 Increased Costs and Reduced Return
	 	 	40	 
	 
	 	 	 	 
	ARTICLE V CONDITIONS TO LOANS
	 	 	41	 
	 
	 	 	 	 
	Section 5.01 Conditions Precedent to Effectiveness
	 	 	41	 
	Section 5.02 Conditions Precedent to All Loans
	 	 	44	 
	 
	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	47	 
	 
	 	 	 	 
	Section 6.01 Representations and Warranties
	 	 	47	 
	 
	 	 	 	 
	ARTICLE VII COVENANTS OF THE BORROWER
	 	 	53	 
	 
	 	 	 	 
	Section 7.01 Affirmative Covenants
	 	 	53	 
	Section 7.02 Negative Covenants
	 	 	63	 






i









 






	 	 	 	 	 
	 	 	Page
	ARTICLE VIII MANAGEMENT, COLLECTION AND STATUS OF COLLATERAL
	 	 	69	 
	 
	 	 	 	 
	Section 8.01 Collections; Management of Collateral
	 	 	69	 
	Section 8.02 Collateral Custodian
	 	 	72	 
	 
	 	 	 	 
	ARTICLE IX EVENTS OF DEFAULT
	 	 	72	 
	Section 9.01 Events of Default
	 	 	72	 
	 
	 	 	 	 
	ARTICLE X AGENTS
	 	 	77	 
	Section 10.01 Appointment
	 	 	77	 
	Section 10.02 Nature of Duties
	 	 	78	 
	Section 10.03 Rights, Exculpation, Etc
	 	 	78	 
	Section 10.04 Reliance
	 	 	79	 
	Section 10.05 Indemnification
	 	 	79	 
	Section 10.06 Agents Individually
	 	 	79	 
	Section 10.07 Successor Agent
	 	 	80	 
	Section 10.08 Collateral Matters
	 	 	80	 
	Section 10.09 Agency for Perfection
	 	 	81	 
	Section 10.10 No Reliance on any Agent’s Customer Identification Program
	 	 	82	 
	 
	 	 	 	 
	ARTICLE XI SERVICER TERMINATION EVENTS
	 	 	82	 
	 
	 	 	 	 
	Section 11.01 Servicer Termination Event
	 	 	82	 
	 
	 	 	 	 
	ARTICLE XII MISCELLANEOUS
	 	 	82	 
	 
	 	 	 	 
	Section 12.01 Notices, Etc
	 	 	82	 
	Section 12.02 Amendments, Etc
	 	 	84	 
	Section 12.03 No Waiver; Remedies, Etc
	 	 	85	 
	Section 12.04 Expenses; Taxes; Attorneys’ Fees
	 	 	86	 
	Section 12.05 Right of Set-off
	 	 	86	 
	Section 12.06 Severability
	 	 	87	 
	Section 12.07 Assignments and Participations
	 	 	87	 
	Section 12.08 Counterparts
	 	 	90	 
	Section 12.09 GOVERNING LAW
	 	 	90	 
	Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE
	 	 	90	 
	Section 12.11 WAIVER OF JURY TRIAL, ETC
	 	 	91	 
	Section 12.12 Consent by the Agents and Lender
	 	 	91	 
	Section 12.13 No Party Deemed Drafter
	 	 	91	 
	Section 12.14 Reinstatement; Certain Payments
	 	 	91	 
	Section 12.15 Indemnification
	 	 	92	 
	Section 12.16 Records
	 	 	92	 
	Section 12.17 Binding Effect
	 	 	92	 
	Section 12.18 Interest
	 	 	93	 
	Section 12.19 Confidentiality
	 	 	94	 






ii









 






	 	 	 	 	 
	 	 	Page
	Section 12.20 Public Disclosure
	 	 	94	 
	Section 12.21 Integration
	 	 	95	 
	Section 12.22 USA PATRIOT Act
	 	 	95	 






iii









 






SCHEDULE AND EXHIBITS




	 	 	 

	Schedule 1.01(A)

	 	Lenders and Lenders’ Commitments
	Schedule 1.01(B)

	 	Applicable Non-Licensed States
	Schedule 1.01(C)

	 	Applicable Licensed States
	Schedule 1.01(D)

	 	Loan Schedule
	Schedule 1.01(E)

	 	Non-Corporate Trustee Insurance Premium Loans
	Schedule 5.02(e)

	 	Delivery of Documents
	Schedule 6.01(e)

	 	Capitalization
	Schedule 6.01(q)

	 	Insurance
	Schedule 6.01(t)

	 	Bank Accounts
	Schedule 6.01(u)

	 	Intellectual Property
	Schedule 6.01(v)

	 	Material Contracts
	Schedule 6.01(aa)

	 	Name; Jurisdiction of Organization; Organizational ID
Number; Chief Place of Business; Chief Executive Office;
FEIN
	Schedule 6.01(bb)

	 	Collateral Locations
	Schedule 8.01

	 	Cash Management Bank and Collection Account






	 	 	 

	Exhibit A

	 	Form of Security Agreement
	Exhibit B

	 	Form of Notice of Borrowing
	Exhibit C

	 	Form of Assignment and Acceptance
	Exhibit D

	 	Form of Individual Guaranty
	Exhibit E

	 	Form of Guarantor Security Agreement
	Exhibit F

	 	Loan Document Package
	Exhibit G

	 	Form of Borrowing Base Certificate
	Exhibit H

	 	Form of Opinions of Foley & Lardner, LLP and Locke, Lord Bissell
& Liddell
	Exhibit I

	 	Form of Insurance Premium Loan Sale and Assignment Agreement
	Exhibit J

	 	Form of Master Participation Agreement
	Exhibit K

	 	Local Counsel Opinion Questions
	Exhibit L

	 	Form of Imperial Limited Guaranty






iv









 





SECOND AMENDED AND RESTATED FINANCING AGREEMENT




          Second Amended and Restated Financing Agreement, dated as of                      ___, 2010 (this
“Agreement”) by and among Imperial PFC Financing II, LLC, a Georgia limited liability company (the
“Borrower”), Cedar Lane Capital LLC, a Delaware limited liability company (the “Lender”)
and EBC Asset Management, Inc., a New York corporation, as collateral agent for the Lender (in such
capacity, the “Collateral Agent”), and as administrative agent for the Lender (in such
capacity, the “Administrative Agent” and together with the Collateral Agent, each an
“Agent” and collectively, the “Agents”).




RECITALS




          This Agreement amends and restates that certain Financing Agreement, dated as of September 14,
2009, by and among the Borrower, the Lender, the Collateral Agent and the Administrative Agent, as
previously amended and restated on December 2, 2009.




          The Borrower has asked the Lender to extend credit to the Borrower consisting of a multi-draw
term loan in the aggregate principal amount not to exceed Fifteen Million Dollars ($15,000,000).
The proceeds of the term loan shall be used to purchase 100% participations (the “Participations”)
in Eligible Insurance Premium Loans (as defined herein) pursuant to the Master Participation
Agreement (as defined herein), purchase Eligible Insurance Premium Loans pursuant to each Insurance
Premium Loan Sale and Assignment Agreement (as defined herein), and to pay fees and expenses
related to this Agreement. The Lender is willing to extend such credit to the Borrower subject to
the terms and conditions hereinafter set forth.




          In consideration of the premises and the covenants and agreements contained herein, the
parties hereto agree as follows:




ARTICLE I




DEFINITIONS; CERTAIN TERMS



          Section 1.01 Definitions. As used in this Agreement, the following terms shall have
the respective meanings indicated below, such meanings to be applicable equally to both the
singular and plural forms of such terms:




          “Action” has the meaning specified therefor in Section 12.12.




          “Additional Amount” has the meaning specified therefor in Section 2.08(a).




          “Administrative Agent” has the meaning specified therefor in the preamble hereto.




          “Administrative Agent’s Account” means an account at a bank designated by the
Administrative Agent from time to time as the account into which the Borrower shall make all
payments to the Administrative Agent for the benefit of the Agents and the Lender under this
Agreement and the other Loan Documents.

















 








          “Affiliate” means, with respect to any Person, any other Person that directly or
indirectly through one or more intermediaries, controls, is controlled by, or is under common
control with, such Person. For purposes of this definition, “control” of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the Equity Interests having ordinary
voting power for the election of members of the Board of Directors of such Person or (b) direct or
cause the direction of the management and policies of such Person whether by contract or otherwise.
Notwithstanding anything herein to the contrary, in no event shall any Agent or any Lender be
considered an “Affiliate” of any Credit Party.




          “Agent” has the meaning specified therefor in the preamble hereto.




          “Aggregate Interest Amount” means the maximum amount of interest payable with respect
to a Covered Loan in accordance with the Collateral Value Policy.




          “Agreement” means this Amended and Restated Financing Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any of the foregoing,
and shall refer to the Agreement as the same may be in effect at the time such reference becomes
operative.




          “Anti-Terrorism Laws” means any laws relating to terrorism or money laundering,
including Executive Order No. 13224, the USA PATRIOT Act, the laws comprising or implementing the
Bank Secrecy Act, and the laws administered by the United States Treasury Department’s Office of
Foreign Asset Control (as any of the foregoing laws may from time to time be amended, renewed,
extended, or replaced).




          “Applicable Interest Rate” with respect to any Sub-Tranche hereunder, shall mean 14%,
in the case of a 14% Sub-Tranche, 15% in the case of a 15% Sub-Tranche or 16% in the case of a 16%
Sub-Tranche.




          “Applicable Prepayment Premium” means, as of any date of determination, an amount
equal to 4.00% times the principal amount of any prepayment of the Term Loan on such date.




          “Applicable Licensed State” means each State within the United States wherein the
Originator is duly licensed and authorized by all applicable law to originate life insurance
premium finance loans and otherwise conduct the business and activities related thereto and as
contemplated by the Loan Documents and the Transaction Documents, as evidenced by a Local Counsel
Opinion delivered to the Collateral Agent. Each Applicable Licensed State on the Effective Date is
listed on Schedule 1.01(C) attached hereto.




          “Applicable Non-Licensed State” means each State within the United States wherein the
Originator is not required to be duly licensed and authorized by all applicable law to originate
life insurance premium finance loans and otherwise conduct the business and activities related
thereto and as contemplated by the Loan Documents and the Transaction Documents, as evidenced by a
Local Counsel Opinion delivered to the Collateral Agent. Each Applicable Non-Licensed State on the
Effective Date is listed on Schedule 1.01(B) attached hereto.







2









 








          “Assignment and Acceptance” means an assignment and acceptance entered into by an
assigning Lender and an assignee, and accepted by the Collateral Agent, in accordance with Section
12.07 hereof and substantially in the form of Exhibit C hereto or such other form acceptable to the
Collateral Agent.




          “Authorized Officer” means, with respect to any Person, the chief executive officer,
chief financial officer, or president of such Person.




          “Back-Up Servicer” means an institutional servicer or financial institution acceptable
to the Agents and which initially will be Portfolio Financial Servicing Company, a Delaware
corporation.




          “Back-Up Servicing Agreement” means the Back-Up Servicing Agreement, by and among the
Back-Up Servicer and the Borrower, in form and substance satisfactory to the Agents, as the same
may be amended, amended and restated, supplemented or otherwise modified from time to time in
accordance with this Agreement.




          “Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. § 101, et seq.),
as amended, and any successor statute.




          “Blocked Person” has the meaning assigned to such term in Section 6.01(dd)(ii).




          “Board” means the Board of Governors of the Federal Reserve System of the United
States.




          “Board of Directors” means, (i) with respect to any corporation, the board of
directors of the corporation or any committee thereof duly authorized to act on behalf of such
board, (iii) with respect to a partnership, the board of directors of the general partner of the
partnership, (iii) with respect to a limited liability company, the managing member or members or
any controlling committee or board of directors of such company or the sole member or the managing
member thereof, and (iv) with respect to any other Person, the board or committee of such Person
serving a similar function.




          “Borrower” has the meaning specified therefor in the preamble hereto.




          “Borrowing Base” means, with respect to each Tranche and at any time of determination,
an amount equal to one hundred percent (100%) of the present value (utilizing the Weighted Average
Interest Rate for the Tranche as the discount rate) of the aggregate of: (i) the aggregate
outstanding principal balance of the Eligible Insurance Premium Loans owned actually, beneficially
or through a participation by the Borrower, financed by, and pledged as Collateral for, such
Tranche, plus (ii) without duplication, the sum of all financed Origination Fees with respect to
such Eligible Insurance Premium Loans, plus (iii) the aggregate of the Collateral Value Policy and
the Contingent Collateral Value Policy premium reimbursement amounts payable, directly or
indirectly, by the Premium Finance Borrowers to the Borrower in respect of such Eligible Insurance
Premium Loans, plus (iv) the amount of interest that is reasonably expected to be due on the
scheduled maturity dates of such Eligible Insurance Premium Loans; provided that, the Borrowing
Base shall not at any time exceed 100% of the sum of the present value (utilizing the Weighted
Average Interest Rate for the Tranche as the






3









 







discount rate) of the sum of (i) the aggregate of the Covered Loan Amount of the Eligible
Insurance Premium Loans owned (actually, beneficially or through a participation) by the Borrower
and pledged as Collateral for the related Tranche hereunder and under the Loan Documents and in
which the Collateral Agent has for the benefit of the Agents and the Lenders a perfected first
priority Lien, plus (ii) the Aggregate Interest Amount of each such Eligible Insurance Premium Loan
at the maturity date of each such Eligible Insurance Premium Loan (with the present values
determined on a Tranche by Tranche basis and then added together to determine this limitation).




          “Borrowing Base Certificate” means a certificate signed by an Authorized Officer of
the Borrower and setting forth the calculation of the Borrowing Base in compliance with Section
7.01(a)(vi), substantially in the form of Exhibit G.




          “Borrowing Base Deficit” means, with respect to a Tranche and at any time of
determination, the extent to which (a) the aggregate outstanding principal balance of such Tranche
at such time (excluding the PIK Interest Amount), exceeds (b) an amount equal to the sum of the
Borrowing Base, plus amounts then on deposit in the Collection Account relating to the Eligible
Insurance Premium Loans financed by such Tranche and available for application to the payment of
principal in respect of such Tranche at such time, plus amounts then on deposit in the Reserve
Account and available for application of the payment of principal in respect of such Tranche at
such time.




          “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required to close.




          “Capital Expenditures” means, with respect to any Person for any period, the sum of
(i) the aggregate of all expenditures by such Person and its Subsidiaries during such period that
in accordance with GAAP are or should be included in “property, plant and equipment” or in a
similar fixed asset account on its balance sheet, whether such expenditures are paid in cash or
financed and including all Capitalized Lease Obligations paid or payable during such period, and
(ii) to the extent not covered by clause (i) above, the aggregate of all expenditures by such
Person and its Subsidiaries during such period to acquire by purchase or otherwise the business or
fixed assets of, or the Equity Interests of, any other Person.




          “Capitalized Lease” means, with respect to any Person, any lease of real or personal
property by such Person as lessee which is (i) required under GAAP to be capitalized on the balance
sheet of such Person or (ii) a transaction of a type commonly known as a “synthetic lease” (i.e. a
lease transaction that is treated as an operating lease for accounting purposes but with respect to
which payments of rent are intended to be treated as payments of principal and interest on a loan
for Federal income tax purposes).




          “Capitalized Lease Obligations” means, with respect to any Person, obligations of such
Person and its Subsidiaries under Capitalized Leases, and, for purposes hereof, the amount of any
such obligation shall be the capitalized amount thereof determined in accordance with GAAP.







4









 








          “Cash Management Agreement” means a deposit account control agreement, in form and
substance reasonably satisfactory to the Agents, among the Borrower, the Collateral Agent and the
Cash Management Bank.




          “Cash Management Bank” has the meaning specified therefor in Section 8.01(a).




          “Change in Law” has the meaning specified therefor in Section 4.05(a).




          “Change of Control” means each occurrence of any of the following:




          (a) Imperial or Affiliates of Imperial cease beneficially and of record to own, directly or
indirectly, 100% of the aggregate outstanding voting power of the Equity Interests of the
Originator and Borrower free and clear of any Lien;




          (b) any sale, exchange, lease or transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Borrower or the Originator;




          (c) during any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Borrower or the Originator (together with any new
directors whose election by such Board of Directors or whose nomination for election by the
equityholders of the Borrower or the Originator was approved by a vote of at least a majority of
the directors of the Borrower or the Originator then still in office who were either directors at
the beginning of such period, or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of Directors of the Borrower
or the Originator;




          (d) (i) any of the Borrower or the Originator consolidates or amalgamates with or merges into
another entity, or (ii) any entity consolidates or amalgamates with or merges into any of the
Borrower or the Originator in a transaction pursuant to which the outstanding voting Equity
Interests of such Person is reclassified or changed into or exchanged for cash, securities or other
property, other than any such transaction described in this clause (ii) in which either (A) in the
case of any such transaction involving the Originator, no person or group (within the meaning of
Section 13(d)(3) of the Exchange Act) other than the Person holding a majority of the aggregate
outstanding voting Equity Interests of the Originator prior to such transaction has, directly or
indirectly, acquired beneficial ownership of more than a majority of the aggregate outstanding
voting Equity Interests of such Person or (B) in the case of any such transaction involving the
Borrower, Imperial has, or Affiliates of Imperial have, beneficial ownership of 100% of the
aggregate voting power of all Equity Interests of the resulting, surviving or transferee entity; or




          (e) either Jonathan Neuman or Antony Mitchell shall cease to be involved in the day to day
operations and management of the business of the Originator and/or the Borrower, and a successor
reasonably acceptable to the Collateral Agent and the Lenders is not appointed on terms reasonably
acceptable to the Collateral Agent and the Lenders within 30 days of such cessation of involvement.







5









 








          “Collateral” means all of the property and assets and all interests therein and
proceeds thereof now owned or hereafter acquired by any Person upon which a Lien is granted or
purported to be granted by such Person as security for all or any part of the Obligations.




          “Collateral Agent” has the meaning specified therefor in the preamble hereto.




          “Collateral Agent Advances” has the meaning specified therefor in Section 10.08(a).




          “Collateral Agency Agreement” means the Collateral Agency Agreement, dated as of the
date hereof, among the Originator, the Borrower, the Insurance Collateral Agent and the Collateral
Agent, as such agreement may be amended, supplemented or otherwise modified from time to time in
accordance with this Agreement.




          “Collateral Value Insurer” means (i) Lexington Insurance Company or (ii) any other
insurance company organized and licensed in the United States or any State, in each case whose
claims paying ability is rated at least “A-” or the equivalent rating by any Rating Agency and that
is acceptable to the Agents and the Required Lenders.




          “Collateral Value Policy” means that certain Lender Protection Insurance Policy No.
7113491, dated September 14, 2009, issued by the Collateral Value Insurer with respect to the
Insurance Premium Loans, in form and substance satisfactory to the Agents, as the same may be
amended or supplemented, from time to time in accordance with the terms thereof and this Agreement,
and all Coverage Certificates and other documents executed in connection therewith and related
thereto.




          “Collection Account” means that certain bank account, referred to as the “Imperial PFC
Financing II, LLC Collection Account” and pledged pursuant to the Security Agreement, maintained at
the Cash Management Bank, for the purpose of receiving Collections and which is subject to a Cash
Management Agreement, or with respect to which a security interest has otherwise been created and
perfected in a manner acceptable to the Collateral Agent.




          “Collections” means, with respect to any Insurance Premium Loan, all funds (a) that
are received by the Servicer, the Originator, the Borrower and the Insurance Collateral Agent or
any other Person on their behalf, from or on behalf of the related Premium Finance Borrower in
payment or repayment of any amounts owed to the Borrower (including, without limitation, principal,
finance charges, interest, prepayment fees, termination fees, prepayments by any Premium Finance
Borrower and all other amounts and charges) in respect of such Insurance Premium Loan or the
related Life Insurance Policy, (b) applied to such amounts owed by such Premium Finance Borrower
(including, without limitation, as a result of the sale or other disposition of, or receipt of
death benefits in connection with, the related Life Insurance Policy securing such Insurance
Premium Loan or other collateral or property of the Premium Finance Borrower or any other party
directly or indirectly liable for payment of such Insurance Premium Loan and available to be
applied thereon), (c) that are received by Servicer, the Originator, the Borrower, the Insurance
Collateral Agent, any of their Affiliates or any other Person on their behalf, from or on behalf of
the related Premium Finance Borrower in payment of amounts refunded by the Insurance Provider in
respect of premiums, (d) received by the Borrower from






6









 







the Collateral Value Insurer under the Collateral Value Policy or from the Contingent
Collateral Value Insurer under the Contingent Collateral Value Policy, and (e) any and all other
collections or proceeds received on or in respect of the sale, disposition, repayment, prepayment,
or otherwise in connection with any such Insurance Premium Loan and/or the related Life Insurance
Policy (including, without limitation, all principal or interest payments, sale or purchase price
payments, and all broker, agent and other fees received by or payable to the Servicer, the
Originator, the Borrower, the Insurance Collateral Agent or any of their Affiliates, in connection
with such sale, disposition or otherwise, together with all amounts, if any, payable in respect
thereof and maintained in or distributed from any escrow or similar account).




          “Commitment” means, each Lender’s Term Loan Commitment.




          “Contingent Collateral Value Insurer” means (i) National Fire & Marine Insurance
Company (“National Fire”) or (ii) any other insurance company organized and licensed in the United
States or any state whose claims paying ability is rated at least “AA-” by any Rating Agency and
that is acceptable to the Agents and the Required Lenders.




          “Contingent Collateral Value Policy” means that certain Contingent Lender Protection
Insurance Policy No. 92SRD102526, dated September 14, 2009, issued by the Contingent Collateral
Value Insurer with respect to the Insurance Premium Loans, in form and substance satisfactory to
the Agents, as the same may be amended or supplemented, from time to time in accordance with the
terms thereof and this Agreement and all documents executed in connection therewith and related
thereto.




          “Contingent Obligation” means, with respect to any Person, any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other
obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, including, without limitation, (i) the direct or indirect guaranty,
endorsement (other than for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the obligation of a primary
obligor, (ii) the obligation to make take-or-pay or similar payments, if required, regardless of
nonperformance by any other party or parties to an agreement, (iii) any obligation of such Person,
whether or not contingent, (A) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (B) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (C) to
purchase property, assets, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make payment of such
primary obligation or (D) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof; provided, however, that the term
“Contingent Obligation” shall not include any product warranties extended in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation with respect to which such Contingent
Obligation is made (or, if less, the maximum amount of such primary obligation for which such
Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation)
or, if not stated or determinable, the maximum reasonably anticipated






7









 







liability with respect thereto (assuming such Person is required to perform thereunder), as
determined by such Person in good faith.




          “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.




          “Coverage Certificate” means, with respect to any Covered Loan, the certificate issued
by the Collateral Value Insurer with respect thereto certifying coverage for such Covered Loan
under the terms of the Collateral Value Policy.




          “Covered Loan” means each Insurance Premium Loan owned by the Borrower (actually or
beneficially through a participation) which is specified by the Collateral Value Insurer as being
covered under the Collateral Value Policy as evidenced by a Coverage Certificate.




          “Covered Loan Amount” means with respect to each Covered Loan, the amount set forth as
such on the related Coverage Certificate; provided that the Covered Loan Amount for any Covered
Loan shall not include any portion of the proceeds of the related Insurance Premium Loan used to
pay the insurance premium on the related Life Insurance Policy for any period after the sixtieth
(60th) day after the related Insurance Premium Loan Maturity Date.




          “Covered Policy” means, for each Covered Loan, each life insurance policy that is
identified in the applicable Coverage Certificate by its policy number, which life insurance policy
shall be issued by a life insurance carrier to the applicable Premium Finance Borrower as owner
thereof.




          “Covered Portion of an Insurance Premium Loan” means the Covered Loan Amount of a
Covered Loan.




          “Credit Event” has the meaning assigned thereto in the Contingent Collateral Value
Policy.




          “Credit Party” means the Borrower, any Individual Guarantor and the Equity Guarantor.




          “Default” means an event which, with the giving of notice or the lapse of time or
both, would constitute an Event of Default.




          “Disposition” means any transaction, or series of related transactions, pursuant to
which any Person or any of its Subsidiaries sells, assigns, transfers or otherwise disposes of any
property or assets (whether now owned or hereafter acquired) to any other Person, in each case,
whether or not the consideration therefor consists of cash, securities or other assets owned by the
acquiring Person.




          “Document Custodian” means Portfolio Financial Servicing Company, a Delaware
corporation, in its capacity as document custodian under the Back-Up Servicing Agreement, together
with its successors and permitted assigns in such capacity.







8









 








          “Dollar,” “Dollars” and the symbol “$” each means lawful money of the
United States of America.




          “Effective Date” means the date on which all of the conditions precedent set forth in
Section 5.01 are satisfied or waived or the initial Loans are made.




          “Eligible Insurance Premium Loan” means an Insurance Premium Loan:




          (a) that (i) accrues interest at a per annum rate of not less than 11%, (ii)
that has an Origination Fee of (x) not less than 0% and (y) not greater than 10% (in either case,
multiplied by the maximum principal balance of the Insurance Premium Loan), (iii) permits the
pass-through, directly or indirectly, of the premiums payable to the Collateral Value Insurer and
the Contingent Collateral Value Insurer in respect of such Insurance Premium Loan (for avoidance of
doubt, an indirect pass-through which includes adding the premiums to the amount of the Origination
Fee is permissible) and (iv) if repaid or prepaid prior to the applicable maturity thereof and not
as a result of the death of the Underlying Life, requires, to the extent permitted by applicable
law, the payment of a yield maintenance fee designed to capture the yield spread between the
interest rate payable under the Insurance Premium Loan (absent repayment or prepayment) and the
interest rate receivable on U.S. government obligations having maturities closely matching the
original maturity date of the related Insurance Premium Loan; provided, that such yield
maintenance fee does not result in the Premium Finance Borrower paying more than it would have paid
in full satisfaction of such Insurance Premium Loan at the original maturity date of such Insurance
Premium Loan;




          (b) for which the Underlying Life is a United States resident or has a United States social
security number and is not an Affiliate or employee of the Originator, the Borrower or any of their
Affiliates;




          (c) the assignment of which (or any interest therein) to the Borrower or the Lenders does not
contravene or conflict with any law, rule or regulation or any contractual or other restriction,
limitation or encumbrance, and the sale or assignment of which to the Borrower or the Lenders does
not require the consent of the Premium Finance Borrower thereof;




          (d) that is denominated and payable only in Dollars;




          (e) that is in full force and effect and constitutes the legal, valid and binding obligation
of the Premium Finance Borrower of such Insurance Premium Loan enforceable against such Premium
Finance Borrower in accordance with its terms and is not subject to any dispute, offset,
counterclaim or defense whatsoever;




          (f) that does not, and the origination thereof did not, contravene any laws, rules or
regulations applicable thereto (including, without limitation, laws, rules and regulations relating
to insurable interests, usury, truth in lending, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices and privacy) and with respect to which, no party
thereto is in violation of any such law, rule or regulation if such violation would impair the
collectibility of such Insurance Premium Loan or any related security (including the applicable
Life Insurance Policy);







9









 








          (g) as to which the Insurance Collateral Agent’s and/or the Collateral Agent’s (in each case,
for the benefit of the Agents and the Lenders) first priority security interest in such Insurance
Premium Loan and all the Originator’s and the Borrower’s rights in the related security, has been
perfected under the applicable UCC and other applicable laws;




          (h) as to which the Insurance Collateral Agent shall be in possession of the original of such
Insurance Premium Loan and all other items in the Loan Documentation Package with respect thereto;




          (i) the present value of the principal balance of which plus anticipated finance charges
through maturity, including origination fees discounted back at 15% from the scheduled maturity
date to the Effective Date, totals at least $25,000, but is not in excess of $1,000,000;




          (j) that has a term to maturity of no greater than 48 calendar months from the date of
origination thereof; provided, however, that no Insurance Premium Loan or portion
thereof financed or to be financed hereunder shall have a maturity date later than sixty (60) days
prior to the Final Maturity Date specified in clause (i) of the definition of Final Maturity Date
with respect to the related Tranche; provided that no Insurance Premium Loan or portion
thereof shall be an Eligible Insurance Premium Loan for purposes hereof unless it is a Covered Loan
or a Covered Portion of an Insurance Premium Loan, as the case may be, at all times until its
maturity date;




          (k) as to which the issuing insurance company of the related Life Insurance Policy is
organized in the United States or any State and licensed by the United States or any State and
whose claims paying ability is rated at least A+ by Standard & Poor’s, at least A3 by Moody’s, at
least A by AM Best or at least A+ by Fitch; provided, that such issuing insurance company’s
claims paying ability must satisfy the applicable ratings set forth in this clause (k) of at least
two of the rating agencies set forth herein;




          (l) for which the original documents in the Loan Document Package are held by or for the
benefit of the Document Custodian under or pursuant to the Back-Up Servicing Agreement, as
evidenced by a receipt or other documentary confirmation from the Document Custodian;




          (m) as to which all documents within the related Loan Document Package are, by their terms,
governed by the laws of one or more Applicable Licensed States or Applicable Non-Licensed States
and the related Premium Finance Borrower is, in each case, duly organized and existing under the
laws of one or more Applicable Licensed States or Applicable Non-Licensed States;




          (n) which is evidenced by a Note and Security Agreement, collateral assignment and other
documents in the related Loan Document Package substantially in the form of Exhibit F, or in such
other form consented to in writing by the Agents;




          (o) for which the grantor, settlor, or beneficiary of the related Premium Finance Borrower, or
the life covered by the insurance, or the spouse or beneficiary of such life, must be (i) an
Internal Revenue Code Section 501(c)(3) corporation or similar business trust or partnership with
assets in excess of $5 million and that is organized in an Applicable Licensed






10









 







State or Applicable Non-Licensed State, (ii) a natural person or spouses whose net worth
exceeds $1,000,000, or (iii) (a) a natural person whose net income exceeded $200,000 in the last
two years or (b) spouses with joint income exceeding $300,000 in the last two years, in either
case, with a reasonable expectation of reaching that level in the current year;




          (p) as to which the aggregate face amounts of Life Insurance Policies securing such loan shall
be denominated and payable in Dollars and not be less than $500,000 and shall not exceed $50
million;




          (q) for which the Insurance Collateral Agent shall have received either (1) a collateral
assignment of the related Life Insurance Policy (which assignment shall be made as contemplated by
the Loan Document Package and shall be free and clear of all adverse claims) or (2) a pledge of the
beneficial interests in the Premium Finance Borrower, and the related Premium Finance Borrower
and/or Insurance Provider shall have been instructed, and shall have agreed, to make payments with
respect thereto to the Collection Account;




          (r) as to which the applicable insured, on the date of the issuance of the Life Insurance
Policy with respect to such Insurance Premium Loan, has a minimum net worth of at least $1,000,000
and must be at least 65 years old on the maturity date of the related Insurance Premium Loan;




          (s) the related Life Insurance Policy with respect to such Insurance Premium Loan is any form
or blend of coverage provided that a term policy has a term conversion privilege;




          (t) as to which pursuant to the express terms of the related contract for life insurance there
is at least a 30-day grace period from the date any premiums are due and the date such Life
Insurance Policy (and right to the related death benefit) expires, during which such Life Insurance
Policy will remain in full force and effect;




          (u) that is, and at all times continues to be, a Covered Loan or the Covered Portion of an
Insurance Premium Loan under the Collateral Value Policy (or, following a Credit Event, under the
Contingent Collateral Value Policy), the Coverage Certificate with respect thereto has been
delivered to the Collateral Agent and the applicable Free Look Period (as defined in the Collateral
Value Policy) has expired;




          (v) as to which the owner of the related Life Insurance Policy with respect to such Insurance
Premium Loan, the related Premium Finance Borrower and each beneficiary of the trust created by the
Trust Agreement had an insurable interest in the life of the applicable insured (A) at the time
such Life Insurance Policy was issued and delivered by the issuing insurance company and became
effective and (B) on the date such Insurance Premium Loan was made;




          (w) for which that the Borrower, the Originator or any of their Affiliates have not previously
(i) provided an insurance premium loan or similar product to the Premium Finance Borrower or (ii)
financed a Life Insurance Policy on the same Underlying Life, except pursuant to a series of
related transactions on the same Underlying Life, but excluding any Insurance Premium Loan that
refinances another Insurance Premium Loan; provided, that an






11









 







Insurance Premium Loan that refinances another Insurance Premium Loan to the Premium Finance
Borrower shall be permitted under this clause (w) so long as (A) such Insurance Premium Loan being
refinanced was never a Covered Loan and (B) the Insurance Premium Loan Maturity Date of such new
Insurance Premium Loan is not later than the minimum maturity date required by the Collateral Value
Insurer for such Insurance Premium Loan to qualify as a Covered Loan;




          (x) that has been made to the Insurance Premium Borrower prior to the date of the applicable
Tranche of Term Loan to be made under this Agreement, the proceeds of which will be used to
purchase by participation or assignment such Insurance Premium Loan;




          (y) for which the related Premium Finance Borrower must be a trust that has either (i) an
institutional trustee or financial institution acceptable to the Agents or (ii) solely in the case
of a Non-Corporate Trustee Insurance Premium Loan, a Non-Corporate Trustee, in each case, as
trustee or co-trustee under the related Trust Agreement and such Trust Agreement has not been
amended, supplemented or otherwise modified after the making of the related Insurance Premium Loan
without the consent of the Agents;




          (z) financed hereunder the payment obligations with respect to which, for any reason, have
been not disputed or are otherwise enforceable and for which coverage in an amount no less than the
sum of the Covered Loan Amount and the Aggregate Interest Amount is provided by the Collateral
Value Insurer and the Contingent Collateral Value Insurer;




          (aa) for which the premium with respect to the related Life Insurance Policy shall have (i)
been paid to the applicable Insurance Provider and or (ii) placed into escrow under the Trust
Agreement pursuant to escrow arrangements satisfactory to the Agents, in each case, in an amount
sufficient to result in such Life Insurance Policy remaining continuously in effect through the
sixtieth (60th) day after the Insurance Premium Loan Maturity Date; provided, however,
that this condition shall be deemed to be satisfied if the aggregate amount of premium paid to the
applicable Insurance Provider with respect to the related Life Insurance Policy prior to the lapse
of such Life Insurance Policy equals the “Total Life Insurance Premium” set forth in the applicable
Coverage Certificate;




          (bb) that satisfies all terms and conditions set forth in the Master Participation Agreement
and/or an Insurance Premium Loan Sale and Assignment Agreement; and




          (cc) for which the Agents shall have received a duly executed certificate from the related
Premium Finance Borrower certifying that such Premium Finance Borrower has (i) no knowledge of the
commission of a Prohibited Act (as defined in the Collateral Value Policy) in connection with such
Insurance Premium Loan and (ii) not participated in any Prohibited Act in connection with such
Insurance Premium Loan.




          “Eligibility Certification” means the written certification of the Originator and the
Borrower stating that a specific Insurance Premium Loan satisfies the elements of the definition of
“Eligible Insurance Premium Loan” set forth herein.




          “Employee Plan” means an employee benefit plan (other than a Multiemployer Plan)
covered by Title IV of ERISA and maintained (or that was maintained at any time during






12









 







the six (6) calendar years preceding the date of any borrowing hereunder) for employees of the
Borrower.




          “Equity Guarantor” means Imperial Premium Finance, LLC, a Florida limited liability
company, which owns 100% of the Equity Interests of the Borrower.




          “Equity Interest” means (a) with respect to any Person that is a corporation, any and
all shares, interests, participations or other equivalents (however designated and whether or not
voting) of corporate stock, and (b) with respect to any Person that is not a corporation, any and
all partnership, membership or other equity interests of such Person.




          “Equity Issuance” means either (a) the sale or issuance by the Borrower of any shares
of its Equity Interests or (b) the receipt by the Borrower of any cash capital contributions.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute of similar import, and regulations thereunder, in each case, as in effect from
time to time. References to sections of ERISA shall be construed also to refer to any successor
sections.




          “Escrow Agent” means the Escrow Agent under the Indemnity Escrow Agreement, which
shall be mutually selected and agreed to between the Borrower and the Agents, each acting in good
faith. For greater clarity, the law firm of Graubard Miller shall be deemed a mutually acceptable
Escrow Agent.




          “Escrow Agreement” means an Escrow Agreement, by and among a financial institution
reasonably acceptable to the Administrative Agent, a Premium Finance Borrower and the Originator,
in form and substance satisfactory to the Administrative Agent, as the same may be amended, amended
and restated, supplemented or otherwise modified from time to time in accordance with this
Agreement.




          “Event of Default” means any of the events set forth in Section 9.01.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended.




          “Executive Order No. 13224” means the Executive Order No. 13224 on Terrorist
Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed,
extended, amended or replaced.




          “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal to, for each day during such period, the weighted average of the 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
such day on such transactions received by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.







13









 








          “14% Sub-Tranche” means any Sub-Tranche for which the Lender or the Administrative
Agent has delivered a written notice to the Borrower on or prior to the date of funding of a
proposed Sub-Tranche designating the Tranche as a 14% Sub-Tranche.




          “15% Sub-Tranche” means any Sub-Tranche for which the Lender or the Administrative
Agent has delivered a written notice to the Borrower on or prior to the date of funding of a
proposed Sub-Tranche designating the Sub-Tranche as a 15% Sub-Tranche.




          “16% Sub-Tranche” means any Sub-Tranche for which the Lender or the Administrative
Agent has delivered a written notice to the Borrower on or prior to the date of funding of a
proposed Sub-Tranche designating the Sub-Tranche as a 16% Sub-Tranche.




          “Final Maturity Date” means with respect to any Tranche and the Term Loan, as
applicable, the earliest of (i) twenty-eight (28) months from the date of borrowing of such Tranche
by the Borrower hereunder, (ii) the date on which all Loans hereunder 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.




          “Financial Statements” means (i) the audited consolidated balance sheet of Imperial
and its Subsidiaries for the Fiscal Year ended December 31, 2008, and the related consolidated
statement of operations, shareholders’ equity and cash flows for the Fiscal Year then ended, and
(ii) the unaudited consolidated balance sheet of Imperial and its Subsidiaries for the three (3)
months ended March 31, 2009, and the related consolidated statement of operations, shareholder’s
equity and cash flows for the same periods.




          “Fiscal Year” means the fiscal year of the Borrower ending on December 31st of each
year.




          “GAAP” means generally accepted accounting principles in effect from time to time in
the United States, applied on a consistent basis.




          “Governing Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with
respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization, and the operating agreement; (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture agreement, declaration or other applicable agreement or documentation evidencing or
otherwise relating to its formation or organization; and (d) with respect to any of the entities
described above, any other agreement, instrument, filing or notice with respect thereto filed in
connection with its formation or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization.




          “Governmental Authority” means any nation or government, any Federal, state, city,
town, municipality, county, local or other political subdivision thereof or thereto and any
department, commission, board, bureau, instrumentality, agency or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.







14









 








          “Guarantor Security Agreement” means a pledge and security agreement made by the
Equity Guarantor in favor of the Collateral Agent for the benefit of the Agents and the Lenders,
substantially in the form of Exhibit E.




          “Hedging Agreement” means any interest rate, foreign currency, commodity or equity
swap, collar, cap, floor or forward rate agreement, or other agreement or arrangement designed to
protect against fluctuations in interest rates or currency, commodity or equity values (including,
without limitation, any option with respect to any of the foregoing and any combination of the
foregoing agreements or arrangements), and any confirmation executed in connection with any such
agreement or arrangement.




          “Highest Lawful Rate” means, with respect to any Agent or any Lender, the maximum
non-usurious interest rate, if any, that at any time or from time to time may be contracted for,
taken, reserved, charged or received on the Obligations under laws applicable to such Agent or such
Lender which are currently in effect or, to the extent allowed by law, under such applicable laws
which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than
applicable laws now allow.




          “Holdout Lender” has the meaning specified therefor in Section 12.02(b).




          “Imperial” means Imperial Holdings, LLC, a Florida limited liability company.




          “Imperial Limited Guaranty” means the Guaranty, dated as of the date hereof, made by
Imperial in favor of the Lenders substantially in the form of Exhibit L hereof.




          “Indebtedness” means, with respect to any Person, without duplication, (i) all
indebtedness of such Person for borrowed money; (ii) all obligations of such Person for the
deferred purchase price of property or services (other than trade payables or other accounts
payable incurred in the ordinary course of such Person’s business and not outstanding for more than
90 days after the date such payable was created); (iii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments or upon which interest payments are
customarily made; (iv) all reimbursement, payment or other obligations and liabilities of such
Person created or arising under any conditional sales or other title retention agreement with
respect to property used and/or acquired by such Person, even though the rights and remedies of the
lessor, seller and/or lender thereunder may be limited to repossession or sale of such property;
(v) all Capitalized Lease Obligations of such Person; (vi) all obligations and liabilities,
contingent or otherwise, of such Person, in respect of letters of credit, acceptances and similar
facilities; (vii) all obligations and liabilities, calculated on a basis satisfactory to the
Collateral Agent and in accordance with accepted practice, of such Person under Hedging Agreements;
(viii) all monetary obligations under any receivables factoring, receivable sales or similar
transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease,
off-balance sheet financing or similar financing; (ix) all Contingent Obligations; and (x) all
obligations referred to in clauses (i) through (ix) of this definition of another Person secured by
(or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) a Lien upon property owned by such Person, even though such Person has not assumed or
become liable for the payment of such Indebtedness. The






15









 







Indebtedness of any Person shall include the Indebtedness of any partnership of or joint
venture in which such Person is a general partner or a joint venturer.




          “Indemnified Matters” has the meaning specified therefor in Section 12.15.




          “Indemnitees” has the meaning specified therefor in Section 12.15(a).




          “Indemnity Escrow” has the meaning specified therefor in Section 2.10.




          “Indemnity Escrow Agreement” means the Indemnity Escrow Agreement, by and among the
Escrow Agent, the Agents and the Borrower, in form and substance satisfactory to the Agent, as the
same may be amended, amended and restated, supplemented or otherwise modified from time to time in
accordance with this Agreement.




          “Indenture” means that certain Indenture between the Lender as Issuer and the
Indenture Trustee, as it may be modified, amended or supplemented from time to time.




          “Indenture Trustee” means Wilmington Trust Company and its successors and assigns.




          “Independent Manager” has the meaning specified therefor in Section 7.02(xi).




          “Initial Servicer” means Imperial Premium Finance, LLC, a Florida limited liability
company.




          “Initial Servicing Agreement” means the Servicing Agreement, dated as of the date
hereof, by and among the Initial Servicer and the Borrower, in form and substance satisfactory to
the Agents, as the same may be amended, amended and restated, supplemented or otherwise modified
from time to time in accordance with this Agreement.




          “Individual Guarantor” means each of Jonathan Neuman and Antony Mitchell.




          “Individual Guaranty” means each guaranty, substantially in the form of Exhibit D,
made by an Individual Guarantor in favor of the Collateral Agent for the benefit of the Agents and
the Lenders.




          “Insolvency Proceeding” means any proceeding commenced by or against any Person under
any provision of the Bankruptcy Code or under any other bankruptcy or insolvency law, assignments
for the benefit of creditors, formal or informal moratoria, compositions, or extensions generally
with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.




          “Insurance Collateral Agent” means Portfolio Financial Servicing Company, a Delaware
corporation, in its capacity as collateral agent under the Collateral Agency Agreement, together
with its successors and permitted assigns in such capacity.




          “Insurance Premium Loan” means each loan made by the Originator in connection with the
transactions contemplated by the Transaction Documents, evidenced by a






16









 







Note and Security Agreement and the other documents in the Loan Document Package (or other
documentation in form and substance satisfactory to the Agent) and secured by one or more Life
Insurance Policies or all of the beneficial interests in an entity which owns the Life Insurance
Policies.




          “Insurance Premium Loan Maturity Date” means, with respect to an Insurance Premium
Loan, the date specified in the related Note and Security Agreement as the date on which all
outstanding interest and principal thereon is due and payable from the Premium Finance Borrower to
the Originator and/or the Borrower (or its assigns).




          “Insurance Premium Loan Sale and Assignment Agreement” means each sale and assignment
agreement, dated as of the date of a drawing of a Term Loan, by and among the Originator and the
Borrower, in form and substance satisfactory to the Agents, pursuant to which the Borrower
purchases Eligible Insurance Premium Loans originated by the Originator in the Applicable
Non-Licensed States, substantially in the form of Exhibit I.




          “Insurance Provider” means, with respect to a Life Insurance Policy, the insurance
company providing such policy.




          “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended (or any
successor statute thereto) and the regulations thereunder.




          “Lease” means any lease of real property to which the Borrower is a party as lessor or
lessee.




          “Lender” means Cedar Lane Capital LLC and its permitted assigns pursuant to Section
12.07 hereof (each a “Lender” and collectively, the “Lenders”).




          “Lien” means any mortgage, deed of trust, pledge, lien (statutory or otherwise),
security interest, charge or other encumbrance or security or preferential arrangement of any
nature, including, without limitation, any conditional sale or title retention arrangement, any
Capitalized Lease and any assignment, deposit arrangement or financing lease intended as, or having
the effect of, security.




          “Life Insurance Policy” means with respect to any Insurance Premium Loan, the life
insurance policy or policies financed by the related Premium Finance Borrower under the related
Note and Security Agreement.




          “Loan” means the aggregate Term Loans made to the Borrower pursuant to ARTICLE II
hereof.




          “Loan Account” means an account maintained hereunder by the Administrative Agent on
its books of account at the Payment Office, and with respect to the Borrower, in which the Borrower
will be charged with all Term Loans made to, and all other Obligations incurred by, the Borrower.




          “Loan Document” means this Agreement, any Individual Guaranty, any Imperial Limited
Guaranty, any Guarantor Security Agreement, any Security Agreement, any UCC Filing






17









 







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, instrument, and other document executed and delivered
pursuant hereto or thereto or otherwise evidencing or securing any Loan or any other Obligation.




          “Loan Documentation Package” means with respect to each Insurance Premium Loan, each
document, in form and substance substantially similar to the forms attached hereto as Exhibit F, or
otherwise acceptable to the Agents.




          “Loan Schedule” means the schedule, maintained by the Servicer and attached hereto as
Schedule 1.01(D) (as such schedule will be updated from time to time as new Insurance Premium Loans
are financed by the Borrower in accordance with the Loan Documents), of Insurance Premium Loans as
to which participations and/or assignments are purchased by the Borrower from time to time and
pledged to the Collateral Agent for the benefit of the Agents and the Lenders; provided
that the entry of each Insurance Premium Loan on Schedule 1.01(D) shall, among other things,
identify all Insurance Premium Loans by the name of the Premium Finance Borrower thereof, and as to
each Insurance Premium Loan, set forth the amount financed, the related loan number, the applicable
interest rate and the applicable Insurance Premium Maturity Date.




          “Local Counsel Opinion” means a legal opinion or memorandum from outside local counsel
to the Originator or any Affiliate of the Originator qualified to practice in each jurisdiction in
which the Originator intends to make Eligible Insurance Premium Loans addressed to the Originator
or such Affiliate, which explicitly states that Lenders, the Agents and Early Bird Capital, Inc.
may rely thereon, and dated, with respect to a Local Counsel Opinion related to the first Eligible
Insurance Premium Loan to be issued in a particular jurisdiction, no earlier than sixty days prior
to the date on which the Originator first makes an Eligible Insurance Premium Loan, and which shall
be updated not less than once each year, addressing each of the questions set forth on Exhibit K
hereto pursuant to the laws, rules and regulations of such jurisdiction as in effect as of the date
of such Local Counsel Opinion.




          “Master Participation Agreement” means the Master Participation Agreement, dated as of
the date hereof, by and among the Originator and the Borrower, pursuant to which the Borrower
purchases participations in the Eligible Insurance Premium Loans originated in the Applicable
Licensed States as the same may be amended, amended and restated, supplemented or otherwise
modified from time to time in accordance with this Agreement, substantially in the form of Exhibit
J.




          “Material Adverse Effect” means a material adverse effect on any of (i) the
operations, business, assets, properties, condition (financial or otherwise) or prospects of the
any Subject Imperial Affiliate, (ii) the ability of any Subject Imperial Affiliate to perform any
of its obligations under any Loan Document or any Transaction Document to which it is a party,
(iii) the legality, validity or enforceability of this Agreement, any other Loan Document or any
Transaction Document (excluding any Transaction Documents evidencing Insurance Premium Loans not
exceeding more than 2% of the aggregate Maturity Principal Balance of all Eligible Insurance
Premium Loans of the Borrower), (iv) the rights and remedies of any Agent or any






18









 







Lender under any Loan Document or any Transaction Document of which any of the Subject
Imperial Affiliates or any of their Affiliates is a party (excluding any Transaction Documents
evidencing Insurance Premium Loans not exceeding more than 2% of the aggregate Maturity Principal
Balance of all Eligible Insurance Premium Loans of the Borrower), (v) the validity, perfection or
priority of (A) a Lien in favor of the Collateral Agent for the benefit of the Agents and the
Lenders on any of the Collateral or (B) the Borrower’s ownership interest in the Insurance Premium
Loans or Participations or (vi) the validity, enforceability or collectability of the
Participations or Insurance Premium Loans and related Collateral (including the applicable Life
Insurance Policies) (excluding any Transaction Documents evidencing Insurance Premium Loans not
exceeding more than 2% of the aggregate Maturity Principal Balance of all Eligible Insurance
Premium Loans of the Borrower).




          “Material Contract” means, with respect to any Person, (a) the Transaction Documents
and (b) all other contracts or agreements material to the business, operations, condition
(financial or otherwise), performance, prospects or properties of such Person.




          “Maturity Principal Balance” means with respect to any Insurance Premium Loan, at any
time of determination, the projected final principal balance of such Insurance Premium Loan on the
related maturity date therefore, plus all accrued interest and fees thereon.




          “Maximum Tranche Amount” means, at any time of determination and with respect to each
Tranche of a Term 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 the present value of the sum of: (i) the aggregate
outstanding principal balance of each Eligible Insurance Premium Loan to be financed hereunder by
such requested Tranche, plus (ii) the Origination Fees with respect to each such Eligible 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 each such Eligible Insurance Premium Loan, plus (iv) the amount of
interest that is reasonably expected to be due on the scheduled maturity date of such Eligible
Insurance Premium Loan to be financed hereunder by such requested Tranche; provided
however, that the Maximum Tranche Amount with respect to such Eligible Insurance Premium
Loans shall at no time exceed one hundred percent (100%) of the present value of the sum of (i) the
Covered Loan Amount with respect to such Eligible Insurance Premium Loans to be financed by such
Tranche, and (ii) the Aggregate Interest Amounts of such Eligible Insurance Premium Loans at the
maturity date of such Eligible Insurance Premium Loans. For purposes of determining present value,
the Weighted Average Interest Rate for a Tranche shall be used as the discount rate.




          “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.




          “Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA to which the Borrower has contributed to, or has been obligated to contribute, at any time
during the preceding six (6) years.




          “New Lending Office” has the meaning specified therefor in Section 2.08(d).







19









 








          “Non-Corporate Trustee” means a law firm acceptable to the Agents that is licensed to
practice in an Applicable Non-Licensed State or an Applicable Licensed State that serves as the
trustee or co-trustee under a Trust Agreement; provided that at no time shall any Non-Corporate
Trustee act as trustee or co-trustee with respect to Eligible Insurance Premium Loans representing
in excess of $5,000,000 of Covered Loan Amount.




          “Non-Corporate Trustee Insurance Premium Loan” means an Eligible Insurance Premium
Loan (i) for which the related Premium Finance Borrower is a trust that has a Non-Corporate Trustee
as trustee or co-trustee under the related Trust Agreement, and (ii) is set forth on Schedule
1.01(E) (as such schedule may be revised from time to time in accordance with the provisions of
this Agreement).




          “Non-U.S. Lender” has the meaning specified therefor in Section 2.08(d).




          “Notice of Borrowing” has the meaning specified therefor in Section 2.02(a).




          “Note and Security Agreement” means, with respect to each Insurance Premium Loan, a
note and security agreement or similar agreement (however defined) between the Originator and the
Premium Finance Borrower evidencing the indebtedness of the Premium Finance Borrower to the
Originator.




          “Obligations” means all present and future indebtedness, obligations, and liabilities
of the Borrower to the Agents and the Lenders arising under or in connection with this Agreement or
any other Loan Document, whether or not the right of payment in respect of such claim is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured, unsecured, and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 9.01. Without limiting the generality of the
foregoing, the Obligations of the Borrower under the Loan Documents include (a) the obligation
(irrespective of whether a claim therefor is allowed in an Insolvency Proceeding) to pay principal,
interest (including the PIK Interest Amount), charges, expenses, fees, the Applicable Prepayment
Premium, attorneys’ fees and disbursements, indemnities and other amounts payable by such Person
under the Loan Documents, and (b) the obligation of such Person to reimburse any amount in respect
of any of the foregoing that any Agent or any Lender (in its sole discretion) may elect to pay or
advance on behalf of such Person.




          “Operating Account” means that certain deposit account established by the Borrower at
the Cash Management Bank and subject to a Cash Management Agreement.




          “Origination Fees” means those amounts payable by a Premium Finance Borrower to the
Originator in respect of origination, upfront or similar fees.




          “Originator” means Imperial Premium Finance, LLC, a Florida limited liability company,
as an originator and seller under the Master Participation Agreement and/or the Insurance Premium
Loan Sale and Assignment Agreements.




          “Other Taxes” has the meaning specified therefor in Section 2.08(b). “Participant
Register” has the meaning specified therefor in Section 12.07(g).







20









 








          “Participations” has the meaning set forth in the Recitals hereto.




          “Payment Office” means the Administrative Agent’s office located at 275 Madison
Avenue, 27th Floor, New York, New York 10016, or at such other office or offices of the
Administrative Agent as may be designated in writing from time to time by the Administrative Agent
to the Collateral Agent and the Borrower.




          “Permitted Indebtedness” means:




          (a) any Indebtedness owing to any Agent or any Lender under this Agreement and the other Loan
Documents; and




          (b) Subordinated Indebtedness, provided that such Subordinated Indebtedness has a maturity
date after the latest of the maturity dates of the Term Loans.




          “Permitted Liens” means:




          (a) Liens securing the Obligations; and




          (b) Liens for taxes, assessments and governmental charges the payment of which is not required
under Section 7.01(c).




          “Person” means an individual, corporation, limited liability company, partnership,
association, joint-stock company, trust, unincorporated organization, joint venture or other
enterprise or entity or Governmental Authority.




          “PIK Interest Amount” means, as of any date of determination, the amount of all
interest accrued with respect to the Loan that has been paid in kind by being added to the balance
thereof in accordance with Section 2.04(a).




          “Plan” means any Employee Plan or Multiemployer Plan.




          “Premium Finance Borrower” means an insurance trust, with either (i) an institutional
trustee or financial institution acceptable to the Agents or (ii) a Non-Corporate Trustee, as a
trustee or co-trustee, obligated to make payments with respect to an Insurance Premium Loan.




          “Pro Rata Share” means:




          (a) in the event there is more than one Lender hereunder, with respect to a Lender’s
obligation to make a Term Loan and receive payments of interest, fees, and principal with respect
thereto, the percentage obtained by dividing (i) the sum of such Lender’s Term Loan Commitment and
the unpaid principal amount of such Lender’s portion of the Loan, by (ii) the sum of the Total Term
Loan Commitment and the aggregate unpaid principal amount of the Loan, provided that if the Total
Term Loan Commitment has been reduced to zero, the numerator shall be the aggregate unpaid
principal amount of such Lender’s portion of the Loan and the denominator shall be the aggregate
unpaid principal amount of the Loan, and







21









 








          (b) in the event there is more than one Lender hereunder, with respect to all other matters
(including, without limitation, the indemnification obligations arising under Section 10.05), the
percentage obtained by dividing (i) the sum of such Lender’s Term Loan Commitment and the unpaid
principal amount of such Lender’s portion of the Loan, by (ii) the sum of the Total Term Loan
Commitment and the aggregate unpaid principal amount of the Loan, provided that if the Total Term
Loan Commitment has been reduced to zero, the numerator shall be the aggregate unpaid principal
amount of such Lender’s portion of the Loan and the denominator shall be the aggregate unpaid
principal amount of the Loan.




          “Rating Agency” and “Rating Agencies” have the meanings specified therefor in
Section 2.07.




          “Register” has the meaning specified therefor in Section 12.07(d).




          “Registered Loans” has the meaning specified therefor in Section 12.07(d).




          “Regulation T”, “Regulation U” and “Regulation X” mean, respectively,
Regulations T, U and X of the Board or any successor, as the same may be amended or supplemented
from time to time.




          “Related Fund” means, with respect to any Person, an Affiliate of such Person, or a
fund or account managed by such Person or an Affiliate of such Person.




          “Replacement Funds” has the meaning specified therefor in Section 2.05(d).




          “Replacement Lender” has the meaning specified therefor in Section 12.02(b).




          “Required Lenders” means, in the event there is at such time more than one Lender
hereunder, Lenders whose Pro Rata Shares (calculated in accordance with clause (b) of the
definition thereof) aggregate at least 50.1%.




          “Requirements of Law” means, with respect to any Person, collectively, the common law
and all federal, state, provincial, local, foreign, multinational or international laws, statutes,
codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments,
writs, injunctions, decrees (including administrative or judicial precedents or authorities) and
the interpretation or administration thereof by, and other determinations, directives, requirements
or requests of, any Governmental Authority, in each case that are applicable to or binding upon
such Person or any of its property or to which such Person or any of its property is subject.




          “Reserve Account” means that certain deposit account established by the Borrower at
the Cash Management Bank and subject to a Cash Management Agreement.




          “Reserve Payment” has the meaning specified therefor in Section 2.05(d).




          “Salvage Collections” means, with respect to any Insurance Premium Loan, and solely to
the extent that the Collateral Value Insurer or the Contingent Collateral Value Insurer has paid a
claim to the Borrower with respect to such Insurance Premium Loan pursuant to the






22









 







Collateral Value Policy or the Contingent Collateral Value Policy, all Collections received
from any Person with respect to such Insurance Premium Loan (or the related collateral) after the
Collateral Value Insurer’s or the Contingent Collateral Value Insurer’s payment in an amount equal
to the lesser of (a) such Collections with respect to such Insurance Premium Loan and (b) the
amount paid by the Collateral Value Insurer or the Contingent Collateral Value Insurer to the
Borrower in respect thereof under the Collateral Value Policy or the Contingent Collateral Value
Policy, plus the Collateral Value Insurer’s or the Contingent Collateral Value Insurer’s ratable
share (based on the amount of such expenses) of enforcement and subrogation-related expenses (to
the extent such amounts may be recovered under the applicable law) incurred by the Collateral Value
Insurer or the Contingent Collateral Value Insurer and interest on such payments and expenses at
the Loan Rate (as defined in the Collateral Value Policy) determined in accordance with the terms
for calculating such rate specified in the Collateral Value Policy from and including the date of
the Collateral Value Insurer’s or the Contingent Collateral Value Insurer’s payment to but
excluding the date on which such amounts are paid to the Collateral Value Insurer or the Contingent
Collateral Value Insurer.




          “SEC” means the Securities and Exchange Commission or any other similar or successor
agency of the Federal government administering the Securities Act.




          “Securities Act” means the Securities Act of 1933, as amended, or any similar Federal
statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect
from time to time.




          “Securitization” has the meaning specified therefor in Section 2.07.




          “Security Agreement” means a Pledge and Security Agreement made by the Borrower in
favor of the Collateral Agent for the benefit of the Agents and the Lenders, substantially in the
form of Exhibit A, securing the Obligations and delivered to the Collateral Agent.




          “Servicer” means (i) prior to the termination of the Initial Servicing Agreement, the
Initial Servicer and (ii) anytime thereafter, the Back-Up Servicer or any other servicer approved
in writing by the Agents.




          “Servicer Termination Event” means the occurrence of any of the following events: (i)
any report which the Servicer delivers under the terms of any Transaction Document shall be
incorrect in any material respect, (ii) the Servicer assigns to any other Person any of its duties
or obligations other than as otherwise permitted by the Servicing Agreement, (iii) the occurrence
of an Event of Default, or (iv) the occurrence of any event which, in the reasonable business
judgment of the Agents, could reasonably be expected to be adverse to the interests of the
Originator, the Borrower, the Agents and/or the Lender.




          “Servicing Agreement” means (i) prior to the termination of the Initial Servicing
Agreement, the Initial Servicing Agreement and (ii) anytime thereafter, the Back-Up Servicing
Agreement or any other servicing agreement in form and substance satisfactory to the Agents.




          “Solvent” means, with respect to any Person on a particular date, that on such date
(i) the fair value of the property of such Person is not less than the total amount of the
liabilities






23









 







of such Person, (ii) the present fair salable value of the assets of such Person is not less
than the amount that will be required to pay the probable liability of such Person on its existing
debts as they become absolute and matured, (iii) such Person is able to realize upon its assets and
pay its debts and other liabilities, contingent obligations and other commitments as they mature in
the normal course of business, (iv) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities
mature, and (v) such Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person’s property would constitute unreasonably small
capital.




          “Standard & Poor’s” means Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.




          “Subject Imperial Affiliates” means the Borrower, Imperial, the Originator Imperial
Life and Annuity Services, LLC and Imperial Finance & Trading, LLC.




          “Subordinated Indebtedness” means Indebtedness of the Borrower the terms of which are
satisfactory to the Collateral Agent and the Required Lenders and which has been expressly
subordinated in right of payment to all Indebtedness of the Borrower under the Loan Documents (i)
by the execution and delivery of a subordination agreement, in form and substance satisfactory to
the Collateral Agent and the Required Lenders, or (ii) otherwise on terms and conditions
(including, without limitation, subordination provisions, payment terms, interest rates, covenants,
remedies, defaults and other material terms) satisfactory to the Collateral Agent and the Required
Lenders.




          “Subsidiary” means, with respect to any Person at any date, any corporation, limited
or general partnership, limited liability company, trust, estate, association, joint venture or
other business entity (i) the accounts of which would be consolidated with those of such Person in
such Person’s consolidated financial statements if such financial statements were prepared in
accordance with GAAP or (ii) of which more than 50% of (A) the outstanding Equity Interests having
(in the absence of contingencies) ordinary voting power to elect a majority of the Board of
Directors of such Person, (B) in the case of a partnership or limited liability company, the
interest in the capital or profits of such partnership or limited liability company or (C) in the
case of a trust, estate, association, joint venture or other entity, the beneficial interest in
such trust, estate, association or other entity business is, at the time of determination, owned or
controlled directly or indirectly through one or more intermediaries, by such Person.




          “Sub-Tranche” means, without duplication, the portion of any Tranche designated with a
specific Applicable Interest Rate.




          “Tax Distributions” has the meaning specified therefor in Section 7.02(h).




          “Taxes” has the meaning specified therefor in Section 2.08(a).




          “Term Loan” means a loan made by the Lender to the Borrower pursuant to Section 2.01.







24









 








          “Term Loan Commitment” means, subject to the provisions of Section 5.02(i) hereof, the
commitment of a Lender to make a Term Loan to the Borrower in the amount set forth in Schedule
1.01(A) hereto, as the same may be increased or reduced from time to time or terminated in
accordance with the terms of this Agreement.




          “Term Loan Commitment Termination Date” means the earliest to occur of (i) the date
the Total Term Loan Commitment is permanently reduced to zero pursuant to Section 2.01(b), (ii) the
date of the termination of the Total Term Loan Commitment pursuant to Section 9.01, (iii) the date
which is one year from the Effective Date 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.




          “Total Life Insurance Premium” means, for any Covered Policy, the amount set forth as
such on the applicable Coverage Certificate.




          “Total Term Loan Commitment” means, subject to the provisions of Section 5.02(i)
hereof, the sum of the amounts of the Lenders’ (if there is more than one Lender at such time
hereunder) Term Loan Commitments, but which shall in no event exceed Fifteen Million Dollars
($15,000,000).




          “Tranche” means, without duplication, all or any portion of any Term Loan the proceeds
of which are used to purchase or finance one or more specific Insurance Premium Loans (actually or
beneficially through a participation) in respect of this Agreement.




          “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 acquired or to
be acquired by the Borrower (actually or beneficially through a participation) with proceeds from
the Loan (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.




          “Transferee” has the meaning specified therefor in Section 2.08(a).




          “Trust Agreement” means an irrevocable life insurance trust agreement entered into by
the Underlying Life and the Premium Finance Borrower, in form and substance satisfactory to the
Agents, pursuant to which either (i) an institutional trustee or financial institution acceptable
to the Agents or (ii) a Non-Corporate Trustee acts as the trustee or a co-trustee thereunder.




          “UCC Filing Authorization Letter” means a letter duly executed by each Credit Party
authorizing the Collateral Agent to file appropriate financing statements on Form UCC-1 without the
signature of such Credit Party in such office or offices as may be necessary or, in the opinion of
the Collateral Agent, desirable to perfect the security interests purported to be created by each
Security Agreement and each Guarantor Security Agreement.





25











 





          “Uncovered Portion of an Insurance Premium Loan” means that portion of a Covered
Loan in excess of the Covered Loan Amount.




          “Underlying Life” with respect to any Life Insurance Policy means the Person or
Persons whose life or lives are insured by such Life Insurance Policy.




          “Uniform Commercial Code” has the meaning specified therefor in Section 1.03.




          “USA PATRIOT Act” has the meaning specified therefor in Section 12.21.




          “Weighted Average Interest Rate” means the weighted average interest rate for a
Tranche based on the size of, and the Applicable Interest Rates for, the Sub-Tranches comprising
the Tranche.




          Section 1.02 Terms Generally. The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without limitation”. The word “will”
shall be construed to have the same meaning and effect as the word “shall”. Unless the context
requires otherwise, (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any right or interest in or to assets
and properties of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible. References in this Agreement to “determination” by any Agent include good faith
estimates by such Agent (in the case of quantitative determinations) and good faith beliefs by such
Agent (in the case of qualitative determinations).




          Section 1.03 Accounting and Other Terms. Unless otherwise expressly provided herein, each
accounting term used herein shall have the meaning given it under GAAP applied on a basis
consistent with those used in preparing the Financial Statements. All terms used in this Agreement
which are defined in Article 8 or Article 9 of the Uniform Commercial Code as in effect from time
to time in the State of New York (the “Uniform Commercial Code”) and which are not
otherwise defined herein shall have the same meanings herein as set forth therein, provided that
terms used herein which are defined in the Uniform Commercial Code as in effect in the State of New
York on the date hereof shall continue to have the same meaning notwithstanding any replacement or
amendment of such statute except as any Agent may otherwise determine.








26









 








          Section 1.04 Time References. Unless otherwise indicated herein, all references to time of day
refer to Eastern Standard Time or Eastern daylight saving time, as in effect in New York City on
such day. For purposes of 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”; provided, however, that with respect to a computation of
fees or interest payable to any Agent or any Lender, such period shall in any event consist of at
least one full day.




ARTICLE II




THE LOANS




          Section 2.01 Commitments. (a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, the Lender agrees to make one or more Term Loans
to the Borrower (i) on the Effective Date and (ii) prior to the Term Loan Commitment Termination
Date, proceeds of which shall be used by the Borrower in accordance with the provisions of Section
6.01(r) hereof, in an aggregate principal amount not to exceed the amount of the Lender’s Total
Term Loan Commitment.




               (b) Notwithstanding the foregoing, (i) the aggregate principal amount of any Tranche made on
any borrowing date shall not be less than Two Hundred and Fifty Thousand Dollars ($250,000), and
shall not exceed the lesser of the undrawn Total Term Loan Commitment at such time and the Maximum
Tranche Amount with respect to any applicable Insurance Premium Loans being acquired by the
Borrower with the proceeds of such Tranche, and (ii) the aggregate principal amount of all Tranches
made at any time pursuant to this Agreement shall not exceed the lesser of (x) the Total Term Loan
Commitment then in effect and (y) an amount which will not result in any Borrowing Base Deficit
existing at such time, provided, that, for purposes of this Section 2.01(b), the
related PIK Interest Amount shall not be included in the principal amount of such Tranche. Any
amounts paid directly or indirectly by the Agents and the Lender to the Collateral Value Insurer or
the Contingent Collateral Value Insurer for coverage under the Collateral Value Policy or the
Contingent Collateral Value Policy shall be deemed to be, and shall for all purposes of this
Agreement be treated as, Term Loans made to the Borrower hereunder. Any principal amount of the
Loan which is repaid or prepaid may not be reborrowed. The Total Term Loan Commitment shall be
permanently reduced immediately and without further action on the date of funding of each Term Loan
in an amount equal to such funded Term Loan. In the event there is more than one Lender hereunder,
each Lender’s Term Loan Commitment shall be permanently reduced immediately and without further
action on the date of funding of each Term Loan in an amount equal to such Lender’s Pro Rata Share
of such funded Term Loan. Each Lender’s Term Loan Commitment shall terminate immediately and
without further action on the Term Loan Commitment Termination Date after giving effect to the
funding of such Lender’s Term Loan Commitment, if any, on such date.



          Section 2.02 Making the Loans. (a) The Borrower shall give the Administrative Agent prior
telephonic notice (immediately confirmed in writing, in substantially the form of Exhibit B hereto
(a “Notice of Borrowing”)), not later than 12:00 noon (New York City time) on the date
which is three (3) Business Days prior to the date of the proposed Loan (or such shorter period as
the Administrative Agent is willing to accommodate from time to time, but in no event






27









 







later than 12:00 noon (New York City time) on the borrowing date of the proposed Loan). Such
Notice of Borrowing shall (i) be irrevocable, (ii) specify (A) the principal amount of the proposed
Loan, (B) the use of the proceeds of such proposed Loan, and (C) the proposed borrowing date, which
must be a Business Day and (iii) be delivered to the Administrative Agent together with the
documents required by Section 5.02(e). The Administrative Agent and the Lender may act without
liability upon the basis of written, telecopied or telephonic notice believed by the Administrative
Agent in good faith to be from the Borrower (or from any Authorized Officer thereof designated in
writing purportedly from the Borrower to the Administrative Agent). The Borrower hereby waives the
right to dispute the Administrative Agent’s record of the terms of any such telephonic Notice of
Borrowing. The Administrative Agent and the Lender shall be entitled to rely conclusively on any
Authorized Officer’s authority to request a Loan on behalf of the Borrower until the Administrative
Agent receives written notice to the contrary. The Administrative Agent and the Lender shall have
no duty to verify the authenticity of the signature appearing on any written Notice of Borrowing.




               (b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the
Borrower shall be bound to make a borrowing in accordance therewith.



               (c) Except as otherwise provided in this subsection 2.02(c), to the extent there is more than
one Lender hereunder, all Loans under this Agreement shall be made by the Lenders simultaneously
and proportionately to their Pro Rata Shares of the Total Term Loan Commitment, it being understood
that no Lender shall be responsible for any default by any other Lender in that other Lender’s
obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased
or decreased as a result of the default by any other Lender in that other Lender’s obligation to
make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to
be made by it by the terms of this Agreement regardless of the failure by any other Lender.



               (d) All Loans shall be made in same day available funds and sent by wire transfer to the
Operating Account.



          Section
2.03 Repayment of Loans; Evidence of Debt. (a) The outstanding principal of the Loan
(including the PIK Interest Amount payable with respect to each Tranche) shall be due and payable
on the Final Maturity Date.



               (b) Each Lender (in the event there is more than one Lender hereunder) shall maintain in
accordance with its usual practice an account or accounts evidencing the Indebtedness of the
Borrower to such Lender resulting from the Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time hereunder.



               (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of the Loan made hereunder, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to the Lender hereunder (including PIK Interest Amounts),
(iii) the aggregate amount of each Tranche and the amount of, and the Applicable Interest Rate for,
each Sub-Tranche making up the Tranche and (iv) the amount of



28









 




any sum received by the Administrative Agent hereunder for the account of the Lender (and, in
the event there is more than one Lender hereunder, each Lender’s share thereof).




               (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of the Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loan in accordance with the terms of this Agreement.



               (e) Any Lender may request that the Loan made by it be evidenced by a promissory note. In such
event, the Borrower shall execute and deliver to such Lender a promissory note payable to the order
of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) in a
form furnished by the Collateral Agent and reasonably acceptable to the Borrower. Thereafter, the
Loan evidenced by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 12.07) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).



               (f) Prior to or contemporaneously with the funding of each Tranche, the Lender or the
Administrative Agent shall send written notice to the Borrower designating the amounts, Applicable
Interest Rate and designation of each Sub-Tranche making up the Tranche. The Lender and the
Administrative Agent agree that they shall base such designation solely upon its cost of funds,
with the intent and understanding that the interest rate for each Sub-Tranche shall match the
Lender’s cost of funds rate. In the event that the Lender’s cost of funds for the monies funded or
to be funded in the relevant advance is at more than one of the Applicable Interest Rates, the
parties hereto agree to split the Tranche into two or more Sub-Tranches, as appropriate, so that
each Sub-Tranche bears a 14%, 15% or 16% rate of interest and the Tranche bears a rate of interest
equal to the Weighted Average Interest Rate based on the amounts and the Applicable Interest Rates
for the Sub-Tranches. Unless the Lender or the Administrative Agent shall send written notice to
the Borrower on or before the date of funding a Tranche that it is designating the types of
Sub-Tranches comprising the Tranche, such Tranche shall be deemed to have been funded entirely with
a 14% Sub-Tranche. The parties agree to cooperate in setting these rates and administering Notices
of Borrowings to take into account these varying rates and the mechanics required to administer
them, including permitting amendments to Notices of Borrowings to accommodate the designation of
rates different than anticipated.



          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 the date of such Tranche until such principal amount
becomes due, at a rate per annum equal to the Weighted Average Interest Rate for the Tranche based
on the Applicable Interest Rates for the Sub-Tranches; 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
shall be capitalized on each annual anniversary date of the Tranche 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.






29









 








               (b) 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 18%.



               (c) Interest Payment. Notwithstanding paragraph (a) of this Section 2.04, interest on
each Term 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 4.02 with
the amount of any interest payment due hereunder.




               (d) General. All interest payable hereunder 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 and shall compound annually.



               (e) It is intended by the parties hereto that all interest paid pursuant to this Agreement
shall constitute “portfolio interest” within the meaning of Sections 871(h) and 881(c) of the
Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations
promulgated thereunder.



          Section 2.05 Reduction of Commitment; Prepayment of Loans.




               (a) Reduction of Commitments. The Total Term Loan Commitment shall terminate at 5:00
p.m. (New York City time) on the Term Loan Commitment Termination Date. In addition, the Total Term
Loan Commitment (and the Term Loan Commitment of each Lender if there is more than one Lender
hereunder) shall be reduced in accordance with Section 2.01(b).



               (b) Reserved.



               (c) Mandatory Prepayment. (i) On each date on which Collections are received by the
Originator, the Borrower, the Servicer or the Insurance Collateral Agent or any other Person on
their behalf in respect of any Insurance Premium Loan (or related Life Insurance Policy) acquired
by the Borrower (actually or beneficially through a participation) with proceeds from a Tranche or
the Collateral Value Policy or the Contingent Collateral Value Policy, Borrower shall repay the
principal amount and the interest then due and payable thereon of the



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related Tranche of the Term Loan, to the extent of Collections available therefor in
accordance with Section 2.05(d) hereof.




                    (ii) If on any day a Borrowing Base Deficit exists, on such date Borrower shall make a
prepayment of the principal amount of the related Tranche in an amount equal to such Borrowing Base
Deficit.



               (d) Application of Payments. On each day that Collections (other than Salvage
Collections, but including all payments made by the Collateral Value Insurer or the Contingent
Collateral Value Insurer to the Borrower under the Collateral Value Policy or the Contingent
Collateral Value Policy) are received by the Servicer, the Originator, the Borrower, or the
Insurance Collateral Agent or any other Person on their behalf in respect of any Insurance Premium
Loan (or related Life Insurance Policy) financed hereunder or the Collateral Value Policy or the
Contingent Collateral Value Policy, the Borrower shall (or shall cause such other Person to) on the
Business Day of such receipt, transfer such amounts to the Collection Account for distribution in
accordance with this Section 2.05(d). On each such date, as long as no Default or Event of Default
has occurred and is continuing, the Borrower shall distribute (from such amounts so deposited in
the Collection Account with respect thereto) such Collections with respect to the Covered Portion
of an Insurance Premium Loan (other than Salvage Collections) in the following order of priority:



                    (i) first, to pay interest then due and payable in respect of the related Tranche
until paid in full,



                    (ii) second, to pay principal of the related Tranche until paid in full,



                    (iii) third, to replace in the Reserve Account any funds used for Reserve Payments on
the related Tranche (“Replacement Funds”), to the extent the funds used for such Reserve Payments
were originally deposited less than eighteen (18) months earlier than the date such Collections are
being distributed (it being understood that the date(s) of deposit of such Replacement Funds shall
be deemed to be the original date(s) of deposit of the funds used for such Reserve Payments), and



                    (iv) fourth, any remaining Collections with respect to the Covered Portion of an
Insurance Premium Loan on such date shall be paid to the Borrower, for its own account.



          On each such date, after giving effect to the application of Collections with respect to the
Covered Portion of an Insurance Premium Loan set forth above, as long as no Default or Event of
Default has occurred and is continuing, the Borrower shall transfer (from such amounts so deposited
in the Collection Account with respect thereto) such Collections with respect to the Uncovered
Portion of an Insurance Premium Loan (other than Salvage Collections) into the Reserve Account.
Amounts placed in a Reserve Account shall be used (on a first in, first out basis), first,
to pay any amounts due on the related Tranche on or after the due date thereof to the extent such
Tranche is not otherwise satisfied from Collections with respect to the Covered Portion of
Insurance Premium Loans financed by such Tranche and, second, to pay, pro rata, any





31









 







amounts due on other Tranches on or after the due date thereof to the extent such Tranches are
not otherwise satisfied from Collections with respect to the Covered Portion of Insurance Premium
Loans financed by such Tranches (in either case, a “Reserve Payment”). Any amounts remaining in
the Reserve Account more than eighteen (18) months after they are deposited therein or if earlier,
the repayment of all amounts due and owing by the Borrower hereunder, shall be released by to the
Borrower, for its own account.




          At any time a Default or Event of Default has occurred and is continuing, all Collections
shall be distributed and applied pursuant to Section 4.04(b).




               (e) Salvage Collections. Notwithstanding the provisions of Section 2.05(d), Section
4.04(b) or any other provision of this Agreement, on each date which Collections are received with
respect to any Insurance Premium Loan for which there are Salvage Collections, the Borrower, the
Lenders or the Agents shall, to the extent received by them, distribute such Salvage Collections on
such date to the Collateral Value Insurer or the Contingent Collateral Value Insurer, as
applicable, that paid the claim to the Borrower.



               (f) Interest and Fees. Any prepayment made pursuant to this Section 2.05 shall be
accompanied by accrued interest on the principal amount being prepaid to the date of prepayment,
the Applicable Prepayment Premium, if any, payable in connection with such prepayment and if such
prepayment would reduce the amount of the outstanding Loan to zero, such prepayment shall be
accompanied by the payment of all fees accrued to such date pursuant to Section 2.06.



               (g) Cumulative Prepayments. Except as otherwise expressly provided in this Section
2.05, payments with respect to any subsection of this Section 2.05 are in addition to payments made
or required to be made under any other subsection of this Section 2.05.



          Section 2.06 Applicable Prepayment Premium. In the event of the termination of this Agreement and
repayment of the Obligations at any time prior to the second anniversary of the Effective Date, for
any reason, including (i) termination upon the election of the Lender to terminate after the
occurrence and during the continuation of an Event of Default, (ii) foreclosure and sale of
Collateral, (iii) sale of the Collateral in any Insolvency Proceeding, or (iv) restructure,
reorganization, or compromise of the Obligations by the confirmation of a plan of reorganization or
any other plan of compromise, restructure, or arrangement in any Insolvency Proceeding, then, in
view of the impracticability and extreme difficulty of ascertaining the actual amount of damages to
the Agents and the Lender or profits lost by the Agents and the Lender as a result of such early
termination, and by mutual agreement of the parties as to a reasonable estimation and calculation
of the lost profits or damages of the Agents and the Lenders, the Borrower shall pay to the
Administrative Agent, for the account of the Lender (or in the event there is more than one Lender,
in accordance with such Lender’s Pro Rata Share), the Applicable Prepayment Premium, measured as of
the date of such termination.




          Section 2.07 Securitization. The Borrower hereby acknowledges that the Lender and its Affiliates
may sell or securitize the Loan (a “Securitization”) through the pledge of the Loan as
collateral security for loans to the Lenders or their Affiliates or through the sale of the Loan or
the issuance of direct or indirect interests in the Loan or through obligations of the





32









 







Lender secured by the Loan or portions thereof, which loans to the Lenders or their Affiliates
or direct or indirect interests or obligations of the Lender may be rated by Moody’s Investors
Service, Inc., Standard & Poor’s Investors Rating Services or Fitch Rating’s (each, a “Rating
Agency” and collectively, the “Rating Agencies”). The Borrower shall cooperate with the
Lender and its Affiliates to effect the Securitization including, without limitation, by (a)
amending this Agreement and the other Loan Documents, and executing such additional documents, as
reasonably requested by the Lender in connection with the Securitization, provided
that (i) any such amendment or additional documentation does not impose material additional
costs on the Borrower and (ii) any such amendment or additional documentation does not materially
adversely affect the rights, or materially increase the obligations, of the Borrower under the Loan
Documents or change or affect in a manner adverse to the Borrower the financial terms of the Loan
and (b) providing such information as may be reasonably requested by the Lender in connection with
the rating of the Loan or the Securitization.




          Section 2.08
Taxes. (a) Any and all payments by the Borrower hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding taxes imposed on the net income of any Agent, any Lender (or any transferee or
assignee thereof, including a participation holder (any such entity, a “Transferee”)) by
the jurisdiction in which such Person is organized or has its principal lending office (all such
nonexcluded taxes, levies, imposts, deductions, charges withholdings and liabilities, collectively
or individually, “Taxes”). If the Borrower shall be required to deduct any Taxes from or in
respect of any sum payable hereunder to any Agent, any Lender (or any Transferee), (i) the sum
payable shall be increased by the amount (an “Additional Amount”) necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section 2.08) such Agent, such Lender (or such Transferee) shall receive an amount equal to
the sum it would have received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.




               (b) In addition, the Borrower agrees to pay to the relevant Governmental Authority in
accordance with applicable law any present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this Agreement or any other
Loan Document (“Other Taxes”). The Borrower shall deliver to each Agent and each Lender
official receipts in respect of any Taxes or Other Taxes payable hereunder promptly after payment
of such Taxes or Other Taxes.



               (c) The Borrower hereby indemnifies and agrees to hold each Agent and each Lender harmless
from and against Taxes and Other Taxes (including, without limitation, Taxes and Other Taxes
imposed on any amounts payable under this Section 2.08) paid by such Person, whether or not such
Taxes or Other Taxes were correctly or legally asserted. Such indemnification shall be paid within
10 days from the date on which any such Person makes written demand therefore specifying in
reasonable detail the nature and amount of such Taxes or Other Taxes.



33









 





               (d) Each Lender (or Transferee) that is organized under the laws of a jurisdiction outside the
United States (a “Non-U.S. Lender”) agrees that it shall, no later than the Effective Date
(or, in the case of a Lender which becomes a party hereto pursuant to Section 12.07 hereof after
the Effective Date, promptly after the date upon which such Lender becomes a party hereto) deliver
to the Agents one properly completed and duly executed copy of either U.S. Internal Revenue Service
Form W-8BEN, W-8ECI or W-8IMY or any subsequent versions thereof or successors thereto, in each
case claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax and
payments of interest hereunder. In addition, in the case of a Non-U.S. Lender claiming exemption
from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Internal Revenue Code, such
Non-U.S. Lender hereby represents to the Agents and the Borrower that such Non-U.S. Lender is not a
bank for purposes of Section 881(c) of the Internal Revenue Code, is not a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of the Borrower and is
not a controlled foreign corporation related to the Borrower (within the meaning of Section
864(d)(4) of the Internal Revenue Code), and such Non-U.S. Lender agrees that it shall promptly
notify the Agents in the event any such representation is no longer accurate. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to this Agreement (or,
in the case of a Transferee that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on or before the date, if any, such
Non-U.S. Lender changes its applicable lending office by designating a different lending office (a
“New Lending Office”). In addition, such Non-U.S. Lender shall deliver such forms within 20
days after receipt of a written request therefor from any Agent, the assigning Lender or the Lender
granting a participation, as applicable. Notwithstanding any other provision of this Section 2.08,
a Non-U.S. Lender shall not be required to deliver any form pursuant to this Section 2.08(d) that
such Non-U.S. Lender is not legally able to deliver.



               (e) The Borrower shall not be required to indemnify any Non-U.S. Lender, or pay any Additional
Amounts to any Non-U.S. Lender, in respect of United States Federal withholding tax pursuant to
this Section 2.08 to the extent that (i) the obligation to withhold amounts with respect to United
States Federal withholding tax existed on the date such Non-U.S. Lender became a party to this
Agreement (or, in the case of a Transferee that is a participation holder, on the date such
participation holder became a Transferee hereunder) or, with respect to payments to a New Lending
Office, the date such Non-U.S. Lender designated such New Lending Office with respect to a Loan;
provided, however, that this clause (i) shall not apply to the extent the indemnity
payment or Additional Amounts any Transferee, or Lender (or Transferee) through a New Lending
Office, would be entitled to receive (without regard to this clause (i)) do not exceed the
indemnity payment or Additional Amounts that the Person making the assignment, participation or
transfer to such Transferee, or Lender (or Transferee) making the designation of such New Lending
Office, would have been entitled to receive in the absence of such assignment, participation,
transfer or designation, or (ii) the obligation to pay such Additional Amounts would not have
arisen but for a failure by such Non-U.S. Lender to comply with the provisions of clause (d) above.



               (f) Any Agent or any Lender (or Transferee) claiming any indemnity payment or additional
payment amounts payable pursuant to this Section 2.08 shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate or document reasonably requested in
writing by the Borrower or to change the jurisdiction of its



34









 




applicable lending office if the making of such a filing or change would avoid the need for or
reduce the amount of any such indemnity payment or additional amount that may thereafter accrue,
would not require such Agent or such Lender (or Transferee) to disclose any information such Agent
or such Lender (or Transferee) deems confidential and would not, in the sole determination of such
Agent or such Lender (or Transferee), be otherwise disadvantageous to such Agent or such Lender (or
Transferee).




               (g) The obligations of the Borrower under this Section 2.08 shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable hereunder.



          Section 2.09 Increase in Term Loan Commitment; Extension of Term Loan Commitment
Termination Date




               (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, from time to time, request an increase in the Term Loan Commitment by
an amount not exceeding Two Hundred Thirty Five Million Dollars ($235,000,000) in the aggregate
(the “Commitment Increase”) and, if necessary, a suggested extension of the Term Loan
Commitment Termination Date; provided that any such request for a Commitment Increase shall be in a
minimum amount of One Million Dollars ($1,000,000). 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 thirty (30) Business Days after the date of receipt of such notice, either accept the request
or reject the request, provided that, the Lenders shall have no obligation to accept any request.



               (b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent
within such time period whether or not it agrees to increase its Term Loan Commitment and, if so,
whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested
Commitment Increase. Any Lender not responding within such time period shall be deemed to have
declined to increase its Term Loan Commitment.



               (c) Effective Date and Allocations. If the Term Loan Commitment is increased in
accordance with this Section 2.09, the Administrative Agent shall determine the effective date (the
“Increase Effective Date”), the period of time by which the Term Loan Commitment
Termination Date is extended and the final allocation of such Commitment Increase. The
Administrative Agent shall promptly notify the Borrower and the Lenders of the first allocation of
such Commitment Increase, the period of time by which the Term Loan Commitment Termination Date is
extended and the Increase Effective Date and, on the Increase Effective Date, (i) the Term Loan
Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate
amount of such Commitment Increase, (ii) clause (iii) of the definition of Term Loan Commitment
Termination Date shall be extended by the period of time as notified by the Administrative Agent
and (iii) Schedule 1.01(A) shall be deemed modified, without further action, to reflect the revised
Term Loan Commitment of the Lenders.



               (d) Conditions to Effectiveness of Commitment Increase. As a condition precedent to
such Commitment Increase: (i) the Borrower shall have delivered to the



35









 




Administrative Agent a certificate of each Credit Party dated as of the Increase Effective
Date (in sufficient copies for each Lender) signed by an Authorized Officer of such Credit Party
(A) certifying and attaching the resolutions adopted by such Credit Party approving or consenting
to such Commitment Increase, and (B) in the case of the Borrower, certifying that, before and after
giving effect so such Commitment Increase, the representations and warranties contained in Article
VI and the other Loan Documents are true and correct in all material respects on and as of the
Increase Effective Date, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct in all material respects as of
such earlier date, in which case they are true and correct in all material respects as of such
earlier date, and except that for purposes of this Section 2.09, the representations and warranties
contained in subsections (g)(i) and (g)(ii) of Section 6.01 shall be deemed to refer to the most
recent statements furnished pursuant to subsections (a)(i) and (a)(ii), respectively, of Section
7.01; (ii) the Borrower shall have paid such fees and other compensation to the Agents and Lenders
as they require; (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
dated such date; (iv) the Borrower shall have delivered such other instruments, documents and
agreements as the Administrative Agent may reasonably have requested including, without limitation,
an amendment to this Agreement and the other Loan Documents, if required by the Administrative
Agent; and (v) no Default or Event of Default shall have occurred and be continuing.




          Section 2.10
Indemnity Escrow. Within thirty (30) days of the Effective Date or if earlier, the
date that the Indemnity Escrow Agreement is executed and effective, the Borrower shall deposit into
the escrow account held under the Indemnity Escrow Agreement (the “Indemnity Escrow”) an amount
equal to two percent (2%) of all Term Loans under this Agreement. The amounts held under the
Indemnity Escrow Agreement shall at all times be under the exclusive dominion and control of the
Escrow Agent and neither the Borrower nor the Agents shall have any access thereto or right to make
any withdrawal therefrom, except that the Agents shall be permitted to have funds distributed to
them out of the Indemnity Escrow to the extent that any Indemnitee is entitled to any
indemnification under Section 12.15 hereof from the Borrower which is not timely paid, in which
case the Agents shall cause such distributions to be paid to such Indemnitees. In connection with
any Term Loans made prior to the execution and effectiveness of the Indemnity Escrow Agreement, the
Agent may withhold two percent (2%) of any Term Loans until the Indemnity Escrow Agreement is
executed and effective, at which time the Agents shall deposit such withheld funds with the Escrow
Agent to be held under such agreement (with such deposit credited against the Borrower’s
obligations under the first sentence of this Section 2.10). When all outstanding Obligations under
this Agreement have been fully satisfied, any remaining funds held under the Indemnity Escrow
Agreement shall be distributed to the Borrower, for its own account.




ARTICLE III




INTENTIONALLY OMITTED






36









 








ARTICLE IV




FEES, PAYMENTS AND OTHER COMPENSATION




          Section 4.01 Audit and Collateral Monitoring Fees. The Borrower acknowledges that pursuant to
Section 7.01, representatives of the Agents may visit the Borrower and/or conduct audits,
inspections, valuations and/or field examinations of the Borrower at any time and from time to time
in a manner so as to not unduly disrupt the business of the Borrower. The Borrower agrees to pay
(i) $1,500 per day per examiner plus the examiner’s out-of-pocket costs and reasonable expenses
incurred in connection with all such visits, audits, inspections, appraisals, valuations and field
examinations and (ii) the cost of all visits, audits, inspections, appraisals, valuations and field
examinations conducted by a third party on behalf of the Agents.




          Section 4.02 Payments; Computations and Statements. (a) The Borrower will make each payment under
this Agreement not later than 12:00 noon (New York City time) on the day when due, in lawful money
of the United States of America and in immediately available funds, to the Collection Account. All
payments received by the Administrative Agent after 12:00 noon (New York City time) on any Business
Day will be credited to the Loan Account on the next succeeding Business Day. All payments shall be
made by the Borrower without set-off, counterclaim, deduction or other defense to the Agents and
the Lenders. Except as provided in Section 2.02, after receipt, the Administrative Agent will
promptly thereafter cause to be distributed like funds relating to the payment of principal to the
Lender (or if there is more than one Lender hereunder, ratably to the Lenders in accordance with
their Pro Rata Shares) and like funds relating to the payment of any other amount payable to any
Lender to such Lender, in each case to be applied in accordance with the terms of this Agreement,
provided that the Administrative Agent will cause to be distributed all interest and fees received
from or for the account of the Borrower not less than once each month and in any event promptly
after receipt thereof. The Lender and the Borrower hereby authorize the Administrative Agent to,
and the Administrative Agent may, from time to time, charge the Loan Account of the Borrower with
any amount due and payable by the Borrower under any Loan Document. Each of the Lender and the
Borrower agrees that the Administrative Agent shall have the right to make such charges whether or
not any Default or Event of Default shall have occurred and be continuing or whether any of the
conditions precedent in Section 5.02 have been satisfied. Any amount charged to the Loan Account of
the Borrower shall be deemed an Obligation hereunder, which shall bear interest at the rate
applicable to Term Loans. The Lender and the Borrower confirm that any charges which the
Administrative Agent may so make to the Loan Account of the Borrower as herein provided will be
made as an accommodation to the Borrower and solely at the Administrative Agent’s discretion,
provided that the Administrative Agent shall from time to time upon the request of the Collateral
Agent, charge the Loan Account of the Borrower with any amount due and payable under any Loan
Document. Whenever any payment to be made under any such Loan Document shall be stated to be due on
a day other than a Business Day, such payment shall be made on the next succeeding Business Day and
such extension of time shall in such case be included in the computation of interest or fees, as
the case may be. All computations of fees shall be made by the Administrative Agent on the basis of
a year of 360 days for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such fees are payable. Each determination by the
Administrative Agent of





37









 







an interest rate or fees hereunder shall be conclusive and binding for all purposes in the
absence of manifest error.




               (b) The Administrative Agent shall provide the Borrower, promptly after the end of each
calendar month, a summary statement (in the form from time to time used by the Administrative
Agent) of the opening and closing daily balances in the Loan Account of the Borrower during such
month, the amounts and dates of all Term Loans made to the Borrower during such month, the amounts
and dates of all payments on account of the Term Loans to the Borrower during such month and the
Term Loans to which such payments were applied, the amount of interest accrued on the Term Loans to
the Borrower during such month, and the amount and nature of any charges to the Loan Account made
during such month on account of fees, commissions, expenses and other Obligations. All entries on
any such statement shall be presumed to be correct and, thirty (30) days after the same is sent,
shall be final and conclusive absent manifest error.



          Section 4.03 Sharing of Payments, Etc. In the event there is more than one Lender hereunder, except
as provided in Section 2.02 hereof, if any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) on account of any
Obligation in excess of its ratable share of payments on account of similar obligations obtained by
all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in
such similar obligations held by them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender
the purchase price to the extent of such recovery together with an amount equal to such Lender’s
ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to
(ii) the total amount so recovered from the purchasing Lender of any interest or other amount paid
by the purchasing Lender in respect of the total amount so recovered). The Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this Section 4.03 may, to the
fullest extent permitted by law, exercise all of its rights (including the Lender’s right of
set-off) with respect to such participation as fully as if such Lender were the direct creditor of
the Borrower in the amount of such participation.




          Section 4.04 Apportionment of Payments. Subject to Section 2.02 hereof:




               (a) all payments of principal and interest in respect of outstanding Term Loans, all payments
of fees (other than the audit and collateral monitoring fee provided for in Section 4.01) and all
other payments in respect of any other Obligations, shall be paid to the Lender (or in the event
there is more than one Lender hereunder, shall be allocated by the Administrative Agent among such
of the Lenders as are entitled thereto, in proportion to their respective Pro Rata Shares or
otherwise as provided herein or, in respect of payments not made on account of Term Loans, as
designated by the Person making payment when the payment is made).



               (b) After the occurrence and during the continuance of a Default or an Event of Default, the
Administrative Agent may, and upon the direction of the Lender (or in the



38









 




event there is more than one Lender hereunder, upon the direction of the Required Lenders)
shall, apply all proceeds of the Collateral (including all Collections other than Salvage
Collections), subject to the provisions of this Agreement, (i) first, to pay the Servicer
(other than the Initial Servicer) an amount equal to the accrued and unpaid Servicing Fees then due
and payable in accordance with the Transaction Documents until paid in full (to the extent not
covered by the Indemnity Escrow or otherwise); (ii) second, to pay the Obligations in
respect of any fees, expense reimbursements, indemnities and other amounts then due and payable to
the Agents until paid in full; (iii) third, to pay the Insurance Collateral Agent an amount
equal to any fees, expense reimbursements, indemnities and other amounts then due and payable to
the Insurance Collateral Agent in accordance with the Transaction Documents until paid in full (to
the extent not covered by the Indemnity Escrow or otherwise); (iv) fourth, to pay the
Obligations in respect of any fees (including the Applicable Prepayment Premium), expense
reimbursements, indemnities and other amounts then due and payable to the Lender (or Lenders if
there is more than one Lender hereunder) until paid in full; (v) fifth, to pay interest
then due and payable in respect of the Collateral Agent Advances until paid in full (to the extent
not covered by the Indemnity Escrow or otherwise); (vi) sixth, to pay principal of the
Collateral Agent Advances until paid in full (to the extent not covered by the Indemnity Escrow or
otherwise), (vii) seventh, to pay interest then due and payable in respect of the related
Tranche until paid in full, (viii) eighth, to pay principal of the related Tranche until
paid in full, (ix) ninth, to pay interest then due and payable in respect of all other
Tranches until paid in full, (x) tenth, to pay principal of all other Tranches until paid
in full, (xi) eleventh, to pay the Servicer if the Servicer is the Initial Servicer an
amount equal to the accrued and unpaid Servicing Fees then due and payable in accordance with the
Transaction Documents until paid in full (to the extent not covered by the Indemnity Escrow or
otherwise), (xii) twelfth, the payment of all other Obligations then due and payable (to
the extent not covered by the Indemnity Escrow or otherwise), and (xiii) thirteenth, any
remaining proceeds from the Collateral on such date shall be paid to the Borrower, for its own
account.




               (c) In each instance, so long as no Event of Default has occurred and is continuing, Section
4.04(b) shall not be deemed to apply to any payment by the Borrower specified by the Borrower to
the Administrative Agent to be for the payment of the Obligations then due and payable under any
provision of this Agreement or the prepayment of all or part of the principal of a Tranche in
accordance with the terms and conditions of Section 2.05.



               (d) For purposes of Section 4.04(b), “paid in full” means payment in cash of all amounts owing
under the Loan Documents and the Transaction Documents according to the terms thereof, including
loan fees, servicing fees, professional fees, interest (and specifically including interest accrued
after the commencement of any Insolvency Proceeding), default interest, interest on interest, and
expense reimbursements, whether or not same would be or is allowed or disallowed in whole or in
part in any Insolvency Proceeding.



               (e) In the event of a direct conflict between the priority provisions of this Section 4.04 and
other provisions contained in any other Loan Document, it is the intention of the parties hereto
that both such priority provisions in such documents shall be read together and construed, to the
fullest extent possible, to be in concert with each other. In the event of any actual,
irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this
Section 4.04 shall control and govern.



39









 





          Section 4.05 Increased Costs and Reduced Return. (a) If any Lender or any Agent shall have
determined that the adoption or implementation of, or any change in, any law, rule, treaty or
regulation, or any policy, guideline or directive of, or any change in, the interpretation or
administration thereof by, any court, central bank or other administrative or Governmental
Authority, or compliance by any Lender or any Agent or any Person controlling any such Agent or any
such Lender with any directive of, or guideline from, any central bank or other Governmental
Authority or the introduction of, or change in, any accounting principles applicable to any Lender
or any Agent or any Person controlling any such Agent or any such Lender (in each case, whether or
not having the force of law) (each a “Change in Law”), shall (i) subject such Agent or any
Lender, or any Person controlling such Agent or any Lender to any tax, duty or other charge with
respect to this Agreement or any Loan made by such Agent or any Lender, or change the basis of
taxation of payments to such Agent or any Lender or any Person controlling such Agent or any Lender
of any amounts payable hereunder (except for taxes on the overall net income of such Agent or any
Lender or any Person controlling such Agent or any Lender), (ii) impose, modify or deem applicable
any reserve, special deposit or similar requirement against any Loan or against assets of or held
by, or deposits with or for the account of, or credit extended by, such Agent or any Lender or any
Person controlling such Agent or such Lender or (iii) impose on such Agent or such Lender or any
Person controlling such Agent or any Lender any other condition regarding this Agreement or any
Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to
increase the cost to such Agent or the Lender of making any Loan or agreeing to make any Loan or to
reduce any amount received or receivable by such Agent or any Lender hereunder, then, upon demand
by such Agent or the Lender, the Borrower shall pay to such Agent or such Lender such additional
amounts as will compensate such Agent or such Lender for such increased costs or reductions in
amount.




               (b) If any Agent or any Lender shall have determined that any Change in Law either (i) affects
or would affect the amount of capital required or expected to be maintained by such Agent or the
Lender or any Person controlling such Agent or such Lender, and such Agent or such Lender
determines that the amount of such capital is increased as a direct or indirect consequence of any
Term Loans made or maintained, such Agent’s or the Lender’s or such other controlling Person’s
other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on
such Agent’s or such Lender’s such other controlling Person’s capital to a level below that which
such Agent or such Lender or such controlling Person could have achieved but for such circumstances
as a consequence of any Loans made or maintained or any agreement to make Term Loans or such
Agent’s or such Lender’s or such other controlling Person’s other obligations hereunder (in each
case, taking into consideration, such Agent’s or the Lender’s or such other controlling Person’s
policies with respect to capital adequacy), then, upon demand by such Agent or the Lender, the
Borrower shall pay to such Agent or such Lender from time to time such additional amounts as will
compensate such Agent or such Lender for such cost of maintaining such increased capital or such
reduction in the rate of return on such Agent’s or such Lender’s or such other controlling Person’s
capital.



               (c) All amounts payable under this Section 4.05 shall bear interest from the date that is ten
(10) days after the date of demand by any Agent or any Lender until payment in full to such Agent
or such Lender at an annual interest rate of 15%. A certificate of such Agent or the Lender
claiming compensation under this Section 4.05, specifying the event herein above described and the
nature of such event shall be submitted by such Agent or such



40









 




Lender to the Borrower, setting forth the additional amount due and an explanation of the
calculation thereof, and such Agent’s or such Lender’s reasons for invoking the provisions of this
Section 4.05, and shall be final and conclusive absent manifest error.




ARTICLE V




CONDITIONS TO LOANS




          Section 5.01 Conditions Precedent to Effectiveness. This Agreement shall become effective as of the
Business Day (the “Effective Date”) when each of the following conditions precedent shall
have been satisfied in a manner satisfactory to the Agents:




               (a) Payment of Fees, Etc. The Borrower shall have paid on or before the date of this
Agreement all fees, costs, expenses and taxes then payable pursuant to Section 12.04.



               (b) Representations and Warranties; No Event of Default. The following statements
shall be true and correct: (i) the representations and warranties contained in ARTICLE VI and in
each other Loan Document, certificate or other writing delivered to any Agent or any Lender
pursuant hereto or thereto on or prior to the Effective Date are true and correct on and as of the
Effective Date as though made on and as of such date, except to the extent that any such
representation or warranty expressly relates solely to an earlier date (in which case such
representation or warranty shall be true and correct on and as of such earlier date) and (ii) no
Default or Event of Default shall have occurred and be continuing on the Effective Date or would
result from this Agreement or the other Loan Documents becoming effective in accordance with its or
their respective terms.



               (c) Legality. The making of the initial Loans or the issuance of any Letters of Credit
shall not contravene any law, rule or regulation applicable to any Agent or any Lender.



               (d) Delivery of Documents. The Collateral Agent shall have received on or before the
Effective Date (or such other date expressly specified below) the following, each in form and
substance satisfactory to the Collateral Agent and, unless indicated otherwise, dated the Effective
Date:



                    (i) a Security Agreement, duly executed by the Borrower;



                    (ii) the Guarantor Security Agreement, duly executed by the Equity Guarantor, together with
the original LLC membership certificates (if any) representing all of the membership interests of
the Borrower owned by the Equity Guarantor, accompanied by undated transfer powers executed in
blank and other proper instruments of transfer;



                    (iii) each Individual Guaranty, duly executed by the applicable Individual Guarantor;



                    (iv) a UCC Filing Authorization Letter, duly executed by the Borrower and the Equity
Guarantor, together with (A) appropriate financing statements on Form



41









 




UCC-1 duly filed in such office or offices as may be necessary or, in the opinion of the
Collateral Agent, desirable to perfect the security interests purported to be created by created by
the Security Agreement and the Guarantor Security Agreement and (B) evidence satisfactory to the
Collateral Agent of the filing of such UCC-1 financing statements;




                    (v) certified copies of request for copies of information on Form UCC-11, listing all
effective financing statements which name as debtor any Credit Party and the Originator and which
are filed in the offices referred to in paragraph (iv) above, together with copies of such
financing statements, none of which, except as otherwise agreed in writing by the Collateral Agent,
shall cover any of the Collateral and the results of searches for any tax Lien and judgment Lien
filed against such Person or its property, which results, except as otherwise agreed to in writing
by the Collateral Agent, shall not show any such Liens;



                    (vi) the Master Participation Agreement, duly executed by the Originator and the Borrower;



                    (vii) the Imperial Limited Guaranty, duly executed by Imperial;



                    (viii) Each of the Collateral Value Policy and the Contingent Collateral Value Policy, duly
executed by the Collateral Value Insurer and the Contingent Collateral Value Insurer, as
applicable, and each in full force and effect;



                    (ix) a copy of the resolutions of the Equity Guarantor, the Borrower and the Originator,
certified as of the Effective Date by an Authorized Officer thereof, authorizing (A) the borrowings
hereunder and the transactions contemplated by the Loan Documents and the Transaction Documents to
which such Person is or will be a party, and (B) the execution, delivery and performance by such
Person of each Loan Document and Transaction Document to which such Person is or will be a party
and the execution and delivery of the other documents to be delivered by such Person in connection
herewith and therewith;



                    (x) a certificate of an Authorized Officer of the Equity Guarantor, the Borrower and the
Originator, certifying the names and true signatures of the representatives of the Equity
Guarantor, the Borrower and the Originator authorized to sign each Loan Document and Transaction
Document to which such Person is or will be a party and the other documents to be executed and
delivered by such Person in connection herewith and therewith, together with evidence of the
incumbency of such authorized officers;



                    (xi) a certificate of the appropriate official(s) of the jurisdiction of organization and each
jurisdiction of foreign qualification of the Equity Guarantor, the Borrower and the Originator
certifying as of a recent date not more than 30 days prior to the Effective Date as to the
subsistence in good standing of the Equity Guarantor, the Borrower and the Originator in such
jurisdictions;



                    (xii) a true and complete copy of the charter, certificate of formation, certificate of
limited partnership or other publicly filed organizational document of the Equity Guarantor, the
Borrower and the Originator certified as of a recent date not more than 30 days prior to the
Effective Date by an appropriate official of the jurisdiction of organization of the Equity
Guarantor, the Borrower and the Originator which shall set forth the same complete



42









 




name of such Person as is set forth herein and the organizational number of such Person, if an
organizational number is issued in such jurisdiction;




                    (xiii) a copy of the Governing Documents of the Equity Guarantor, the Borrower and the
Originator, together with all amendments thereto, certified as of the Effective Date by an
Authorized Officer of the Equity Guarantor, the Borrower and the Originator;



                    (xiv) an opinion of Foley & Lardner, LLP substantially in the form of Exhibit H hereto and an
opinion of Locke, Lord Bissell & Liddell, each counsel to the Credit Parties and the Originator, in
form and substance satisfactory to the Agents, and as to such other matters as the Collateral Agent
may reasonably request, including, without limitation, non-consolidation, true sale and true
participation opinions;



                    (xv) Local Counsel Opinions in form and substance satisfactory to the Lender and Agents;



                    (xvi) a certificate of an Authorized Officer of the Equity Guarantor, the Borrower and the
Originator, certifying as to the matters set forth in subsection (b) of this Section 5.01;



                    (xvii) a copy of the Financial Statements;



                    (xviii) a certificate of the chief financial officer of the Borrower and the Originator,
certifying as to the solvency of the Borrower and the Originator, which certificate shall be
satisfactory in form and substance to the Collateral Agent;



                    (xix) evidence of the insurance coverage required by Section 7.01 and the terms of each
Security Agreement and such other insurance coverage with respect to the business and operations of
the Borrower as the Collateral Agent may reasonably request, in each case, where requested by the
Collateral Agent, with such endorsements as to the named insureds or loss payees thereunder as the
Collateral Agent may request and providing that such policy may be terminated or canceled (by the
insurer or the insured thereunder) only upon 30 days’ prior written notice to the Collateral Agent
and each such named insured or loss payee, together with evidence of the payment of all premiums
due in respect thereof for such period as the Collateral Agent may request;



                    (xx) a certificate of an Authorized Officer of the Equity Guarantor, the Borrower and the
Originator, certifying the names and true signatures of the persons that are authorized to provide
Notices of Borrowing and all other notices under this Agreement, the other Loan Documents and the
Transaction Documents;



                    (xxi) the Collateral Agency Agreement, duly executed by the Originator, the Borrower, the
Insurance Collateral Agent and the Collateral Agent;



                    (xxii) the Initial Servicing Agreement, duly executed by the Borrower and the Initial
Servicer;



43









 





                    (xxiii) copies of the Transaction Documents and the other Material Contracts as in effect on
the Effective Date, certified as true and correct copies thereof by an Authorized Officer of the
Borrower, together with a certificate of an Authorized Officer of the Borrower stating that such
agreements remain in full force and effect and that the Borrower has not breached or defaulted in
any of its obligations under such agreements;



                    (xxiv) such depository account, blocked account, lockbox account and similar agreements and
other documents, each in form and substance satisfactory to the Agents, as the Agents may request
with respect to the Borrower’s cash management system; and



                    (xxv) such other agreements, instruments, approvals, opinions and other documents, each
satisfactory to the Collateral Agent in form and substance, as the Collateral Agent may reasonably
request.



               (e) Material Adverse Effect. The Collateral Agent shall have determined, in its sole
judgment, that no event or development shall have occurred since December 31, 2007 which could
reasonably be expected to have a Material Adverse Effect.



               (f) Approvals. All consents, authorizations and approvals of, and filings and
registrations with, and all other actions in respect of, any Governmental Authority or other Person
required in connection with the making of the Loan, the execution and performance of the
Transaction Documents or the conduct of the Borrower’s business shall have been obtained and shall
be in full force and effect.



               (g) Proceedings; Receipt of Documents. All proceedings in connection with the making
of the initial Loan and the other transactions contemplated by this Agreement, the other Loan
Documents and the Transaction Documents, and all documents incidental hereto and thereto, shall be
satisfactory to the Collateral Agent and its counsel, and the Collateral Agent and such counsel
shall have received all such information and such counterpart originals or certified or other
copies of such documents as the Collateral Agent or such counsel may reasonably request.



               (h) Intentionally Omitted.



               (i) Due Diligence. The Agents shall have completed their business, legal and
collateral due diligence with respect to Imperial, the Originator and the Borrower, including,
without limitation, (A) a review of Imperial’s and its Subsidiaries’ books and records, (B) a
review of Imperial’s and its Subsidiaries’ licenses to engage in making insurance premium finance
loans, and (C) review of all legislative issues effecting and regulating the premium finance
industry, in each case, the results thereof shall be acceptable to the Agents, in their sole and
absolute discretion.



          Section 5.02 Conditions Precedent to All Loans. The obligation of any Agent or any Lender to make
any Term Loan on or after the Effective Date is subject to the fulfillment, in a manner
satisfactory to the Administrative Agent, of each of the following conditions precedent:






44









 








               (a) Payment of Fees, Etc. The Borrower shall have paid all fees, costs, expenses and
taxes then payable by the Borrower pursuant to this Agreement and the other Loan Documents,
including, without limitation, Section 12.04 hereof.



               (b) Representations and Warranties; No Event of Default. The following statements
shall be true and correct in all material respects (except such materiality qualifier shall not be
applicable with respect to matters involving (i) the Collateral, (ii) the ability of the Agents and
the Lenders to realize upon the Collateral, or (iii) the ability of the Agents and the Lenders to
receive Collections from the Collateral), and the submission by the Borrower to the Administrative
Agent of a Notice of Borrowing with respect to each such Term Loan, and the Borrower’s acceptance
of the proceeds of such Loan, shall each be deemed to be a representation and warranty by the
Borrower on the date of such Loan that: (i) the representations and warranties contained in ARTICLE
VI and in each other Loan Document, certificate or other writing delivered to any Agent or any
Lender pursuant hereto or thereto on or prior to the date of such Loan are true and correct in all
material respects on and as of such date as though made on and as of such date (except such
materiality qualifier shall not be applicable with respect to matters involving (i) the Collateral,
(ii) the ability of the Agents and the Lenders to realize upon the Collateral, or (iii) the ability
of the Agents and the Lenders to receive Collections from the Collateral), except to the extent
that any such representation or warranty expressly relates solely to an earlier date (in which case
such representation or warranty shall be true and correct on and as of such earlier date), (ii) at
the time of and after giving effect to the making of such Term Loan and the application of the
proceeds thereof, no Default or Event of Default has occurred and is continuing or would result
from the making of the Term Loan to be made, on such date and (iii) the conditions set forth in
this Section 5.02 have been satisfied as of the date of such request.



               (c) Legality. The making of such Term Loan shall not contravene any law, rule or
regulation applicable to any Agent or any Lender.



               (d) Notices. The Administrative Agent shall have received a Notice of Borrowing
pursuant to Section 2.02 hereof.



               (e) Delivery of Documents. The Administrative Agent shall have received the following
items, as more fully set forth on Schedule 5.02(e) attached hereto, three (3) Business Days prior
to any borrowing date: (i) (A) a true and correct copy of an updated Loan Schedule identifying the
Eligible Insurance Premium Loans to be financed with the proceeds of such Loan, (B) the related
Life Insurance Policy and evidence of receipt by the insurance carrier of the related premium, (C)
the Eligibility Certification for the Insurance Premium Loans to be purchased, (D) the executed
Trust Agreement for each Insurance Premium Loan to be financed with the proceeds of such Term Loan,
which shall evidence that either (i) an institutional trustee or financial institution acceptable
to the Agents or (ii) a Non-Corporate Trustee is the trustee or co-trustee under such Trust
Agreement and that the premium with respect to the related Life Insurance Policy shall have either
been paid to the applicable Insurance Provider, or (y) placed into escrow under the Trust Agreement
pursuant to escrow arrangements satisfactory to the Administrative Agent, in each case, in an
amount sufficient to result in such Life Insurance Policy remaining continuously in effect through
the sixtieth (60th) day after the Insurance Premium Loan Maturity Date; provided,
however, that this condition




45












 




shall be deemed to be satisfied if the aggregate amount of premium paid to the applicable
Insurance Provider with respect to the related Life Insurance Policy prior to the lapse of such
Life Insurance Policy equals the “Total Life Insurance Premium” set forth in the applicable
Coverage Certificate, (E) a true and correct copy of the Borrower’s completed internal compliance
checklist for each Eligible Insurance Premium Loan to be financed with the proceeds of such Term
Loan, (F) all other documents comprising the Loan Documentation Package for such Insurance Premium
Loan, and (G) a revised Non-Corporate Insurance Premium Loan Schedule, if necessary, (ii) the
related Coverage Certificate from the Collateral Value Insurer for the Eligible Insurance Premium
Loan or Participation being financed with the proceeds of a Term Loan, (iii) if an Insurance
Premium Loan is financed in an Applicable Non-Licensed State, a fully executed Insurance Premium
Loan Sale and Assignment Agreement, (iv) if an Insurance Premium Loan or portion thereof is
financed in an Applicable Licensed State, a fully executed participation certificate entered into
pursuant to the Master Participation Agreement, and (v) the Agents shall have received such other
agreements, instruments, approvals, opinions and other documents, each in form and substance
satisfactory to the Agents, as any Agent may reasonably request.




               (f) Proceedings; Receipt of Documents. All proceedings in connection with the making
of such Loan and the other transactions contemplated by this Agreement and the other Loan
Documents, and all documents incidental hereto and thereto, shall be satisfactory to the Agents and
their counsel, and the Agents and such counsel shall have received all such information and such
counterpart originals or certified or other copies of such documents, in form and substance
satisfactory to the Agents, as the Agents or such counsel may reasonably request.



               (g) Performance by the Collateral Value Insurer and Contingent Collateral Value
Insurer. The Collateral Value Insurer, or following the occurrence of a Credit Event, the
Contingent Collateral Value Insurer, shall not have failed to pay any claim properly submitted
under the Collateral Value Policy or the Contingent Collateral Value Policy, as applicable, within
the applicable time period, or pursuant to the procedures for paying claims, in either case, as set
forth therein (regardless of whether or not there are any defenses to any such payment). The claims
paying ability of the Contingent Collateral Value Insurer shall be rated as of the Effective Date
no lower than “AAA” by Standard & Poor’s Investors Rating Services and “AAA” by Fitch Ratings and
at no time thereafter shall fail to be rated at least “AA-” (or an equivalent rating) by at least
one Rating Agency.



               (h) Prohibited Acts. An Agent or a Lender shall not have actual knowledge that either
(a) any Prohibited Act (as defined in the Collateral Value Policy) has been committed by any Person
or (b) any Covered Loan has failed at any time to comply in any material respect with any
applicable laws, statutes, rules or regulations unless such Covered Loan has been repurchased by
the Originator.



               (i) Sufficient Capital. Lender shall have received capital contributions from its
members (which contributions may be made at such members’ sole discretion) and/or proceeds from the
sale of its notes issued pursuant to the Indenture or pursuant to other debt offerings (which offerings and placement of notes or other debt shall be at Lender’s sole
discretion) in an amount sufficient to fund the requested Tranche.



46









 





ARTICLE VI




REPRESENTATIONS AND WARRANTIES



          Section 6.01 Representations and Warranties. The Borrower hereby represents and warrants to the
Agents and the Lenders as follows:




               (a) Organization, Good Standing, Etc. Each of the Subject Imperial Affiliates (i) is a
limited liability company duly organized, validly existing and in good standing under the laws of
the state or jurisdiction of its organization, (ii) has all requisite power and authority to
conduct its business as now conducted and as presently contemplated and to make the borrowings
hereunder, and to execute and deliver each Loan Document to which it is a party, and to consummate
the transactions contemplated thereby, and (iii) is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the properties owned or leased by it or in
which the transaction of its business makes such qualification necessary.



               (b) Authorization, Etc. The execution, delivery and performance by the Subject
Imperial Affiliates of each Loan Document and each Transaction Document to which it is or will be a
party, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene
any of its Governing Documents or any applicable Requirement of Law or any Contractual Obligation
binding on or otherwise affecting it or any of its properties, (iii) do not and will not result in
or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect
to any of its properties, and (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.



               (c) Governmental Approvals. No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority is required in connection with the due
execution, delivery and performance by the Subject Imperial Affiliates of any Loan Document or
Transaction Document to which it is or will be a party.



               (d) Enforceability of Loan Documents. This Agreement is, and each other Loan Document
and Transaction Document to which a Subject Imperial Affiliate is or will be a party, when
delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable
against such Person in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting
creditors’ rights generally.



               (e) Capitalization; Subsidiaries. On the Effective Date, after giving effect to the
transactions contemplated hereby to occur on the Effective Date, the authorized Equity Interests of
the Borrower and the issued and outstanding Equity Interests of the Borrower are as set forth on
Schedule 6.01(e). All of the issued and outstanding Equity Interests of the Borrower have been
validly issued and are fully paid and nonassessable, and the holders thereof are not entitled to any preemptive, first refusal or other similar rights.. Except as
described on Schedule 6.01(e), as of the Effective Date, there are no outstanding debt or equity
securities of the Borrower and no outstanding obligations of the Borrower convertible into or exchangeable



47









 




for, or warrants, options or other rights for the purchase or acquisition from the
Borrower, or other obligations of the Borrower to issue, directly or indirectly, Equity Interests
of the Borrower. The Borrower has no Subsidiaries.




               (f) Litigation; Commercial Tort Claims. There is no pending or, to the best knowledge
of any Subject Imperial Affiliate, threatened action, suit or proceeding affecting any Subject
Imperial Affiliate or any of its properties before any court or other Governmental Authority or any
arbitrator that (A) if adversely determined, could reasonably be expected to have a Material
Adverse Effect or (B) relates to this Agreement or any other Loan Document or any transaction
contemplated hereby or thereby and (ii) as of the Effective Date, the Borrower does not hold any
commercial tort claims in respect of which a claim has been filed in a court of law or a written
notice by an attorney has been given to a potential defendant.



               (g) Financial Condition. The Financial Statements, copies of which have been delivered
to each Agent and each Lender, fairly present the consolidated financial condition of Imperial and
its Subsidiaries as at the respective dates thereof and the consolidated results of operations of
Imperial and its Subsidiaries for the fiscal periods ended on such respective dates, all in
accordance with GAAP, and since December 31, 2007 no event or development has occurred that has had
or could reasonably be expected to have a Material Adverse Effect.



               (h) Compliance with Law, Etc. No Subject Imperial Affiliate is in violation of (i) any
of its Governing Documents, (ii) any domestic or foreign Requirement of Law, including, without
limitation, any statute, legislation or treaty, any guideline, directive, rule, standard,
requirement, policy, order, judgment, injunction, award or decree of any Governmental Authority, in
each case, applicable to it or any of its property or assets (including any insurance premium
financing laws), or (iii) any material term of any Contractual Obligation (including, without
limitation, any Material Contract) binding on or otherwise affecting it or any of its properties,
and no Default or Event of Default has occurred and is continuing.



               (i) ERISA. The Borrower does not contribute to, sponsors, maintains or has an
obligation to contribute to or maintain any Multiemployer Plan or any defined benefit plan and has
not at any time prior to the date hereof established, sponsored or maintained, been a party to and
has not at any time prior to the date hereof contributed or been obligated to contribute to or
maintain any Multiemployer Plan or any defined benefit plan.



               (j) Taxes, Etc. All Federal, state and local tax returns and other reports required by
applicable Requirements of Law to be filed by the Borrower have been filed, or extensions have been
obtained, and all taxes, assessments and other governmental charges imposed upon the Borrower or
any property of the Borrower and which have become due and payable on or prior to the date hereof
have been paid.



               (k) Regulations T, U and X. The Borrower is not or will not be engaged in the business
of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation T, U or X), and no proceeds of any Loan will be used
to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing
or carrying any margin stock.



48









 





               (l) Nature of Business. The Borrower is not engaged in any business other than the
purchase or other acquisition of Eligible Insurance Premium Loans from the Originator.



               (m) Adverse Agreements, Etc. None of the Subject Imperial Affiliates are a party to
any Contractual Obligation or subject to any restriction or limitation in any Governing Document or
any judgment, order, regulation, ruling or other requirement of a court or other Governmental
Authority, which (either individually or in the aggregate) has, or in the future could reasonably
be expected (either individually or in the aggregate) to have, a Material Adverse Effect.



               (n) Permits, Etc. Each of the Subject Imperial Affiliates has, and is in compliance
with, all permits, licenses, authorizations, approvals, entitlements and accreditations required
for such Person lawfully to own, lease, manage or operate, or to acquire, each business currently
owned, leased, managed or operated, or to be acquired, by such Person (including, without
limitation, all insurance premium financing permits and licenses required in the Applicable
Licensed States). No condition exists or event has occurred which, in itself or with the giving of
notice or lapse of time or both, would result in the suspension, revocation, impairment, forfeiture
or non-renewal of any such permit, license, authorization, approval, entitlement or accreditation,
and there is no claim that any thereof is not in full force and effect.



               (o) Properties. The Borrower has good and marketable title to, or valid participation
interests, in all of its property and assets, free and clear of all Liens, except Permitted Liens.



               (p) Full Disclosure. Each Subject Imperial Affiliate has disclosed to the Agents all
agreements, instruments and corporate or other restrictions to which it is subject, and all other
matters known to it, that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. None of the other reports, financial statements, certificates or
other information furnished by or on behalf of any Subject Imperial Affiliate to the Agents in
connection with the negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material misstatement of fact or omits
to state any material fact necessary to make the statements therein, in the light of the
circumstances under which it was made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time prepared. There is no
contingent liability or fact that could reasonably be expected to have a Material Adverse Effect
which has not been set forth in a footnote included in the Financial Statements or a Schedule
hereto.



               (q) Insurance. The Borrower keeps its property adequately insured and maintains (i)
insurance to such extent and against such risks, including fire, as is customary with companies in
the same or similar businesses, (ii) workmen’s compensation insurance in the amount required by applicable law, (iii) public liability insurance, which shall include
product liability insurance, in the amount customary with companies in the same or similar business
against claims for personal injury or death on properties owned, occupied or controlled by it, and
(iv) such other insurance as may be required by law or as may be reasonably required by the



49









 




Collateral Agent (including, without limitation, against larceny, embezzlement or other criminal
misappropriation). Schedule 6.01(q) sets forth a list of all insurance maintained by the Borrower
on the Effective Date.




               (r) Use of Proceeds. Except as provided for in Section 2.10, the proceeds of the Loans
shall be used to purchase or otherwise acquire Eligible Insurance Premium Loans and Participations
from the Originator in accordance with and as contemplated by this Agreement, the Master
Participation Agreement, the Insurance Premium Loan Sale and Assignment Agreements and the other
Loan Documents and Transaction Documents.



               (s) Solvency. After giving effect to the transactions contemplated by this Agreement
and before and after giving effect to each Loan, the Borrower is Solvent.



               (t) Location of Bank Accounts. Schedule 6.01(t) sets forth a complete and accurate
list as of the Effective Date of all deposit, checking and other bank accounts, all securities and
other accounts maintained with any broker dealer and all other similar accounts maintained by the
Borrower, together with a description thereof (i.e., the bank or broker dealer at which such
deposit or other account is maintained and the account number and the purpose thereof).



               (u) Intellectual Property. Set forth on Schedule 6.01(u) is a complete and accurate
list as of the Effective Date of all material licenses, permits, patents, patent applications,
trademarks, trademark applications, service marks, tradenames, copyrights, copyright applications,
franchises, authorizations, non-governmental licenses and permits and other intellectual property
rights of the Borrower.



               (v) Material Contracts. Set forth on Schedule 6.01(v) is a complete and accurate list
as of the Effective Date of all Material Contracts of the Borrower, showing the parties and subject
matter thereof and amendments and modifications thereto. Each such Material Contract (i) is in full
force and effect and is binding upon and enforceable against the Borrower that is a party thereto
and, to the best knowledge of the Borrower, all other parties thereto in accordance with its terms,
(ii) has not been otherwise amended or modified, and (iii) is not in default due to the action of
the Borrower or, to the best knowledge of the Borrower, any other party thereto.



               (w) Investment Company Act. The Borrower is not (i) an “investment company” or an
“affiliated person” or “promoter” of, or “principal underwriter” of or for, an “investment
company”, as such terms are defined in the Investment Company Act of 1940, as amended, or (ii)
subject to regulation under any Requirement of Law that limits in any respect its ability to incur
Indebtedness or which may otherwise render all or a portion of the Obligations unenforceable.



               (x) Bulk Sales Act. No transaction contemplated by this Agreement or any of the other
Loan Documents or Transaction Documents requires compliance with, or will be subject to avoidance
under, any bulk sales act or similar law.



               (y) No Bankruptcy Filing. None of the Subject Imperial Affiliates is contemplating
either an Insolvency Proceeding or the liquidation of all or a major portion of such



50









 




Person’s assets or property, and none of the Subject Imperial Affiliates has any knowledge of any Person
contemplating an Insolvency Proceeding against it.




               (z) Separate Existence.



                    (i) All customary formalities regarding the corporate existence of the Borrower has been at
all times since its formation and will continue to be observed.



                    (ii) The Borrower has at all times since its formation accurately maintained, and will
continue to accurately maintain, its financial statements, accounting records and other
organizational documents separate from those of any Affiliate of the Borrower and any other Person.
The Borrower has not at any time since its formation commingled, and will not commingle, its assets
with those of any of its Affiliates or any other Person. The Borrower has at all times since its
formation accurately maintained, and will continue to accurately maintain its own bank accounts and
separate books of account.



                    (iii) The Borrower has at all times since its formation paid, and will continue to pay, its
own liabilities from its own separate assets.



                    (iv) The Borrower has at all times since its formation identified itself, and will continue to
identify itself, in all dealings with the public, under its own name and as a separate and distinct
Person. The Borrower has not at any time since its formation identified itself, or will identify
itself, as being a division or a part of any other Person.



               (aa) Name; Jurisdiction of Organization; Organizational ID Number; Chief Place of
Business; Chief Executive Office; FEIN. Schedule 6.01(aa) sets forth a complete and accurate
list as of the date hereof of (i) the exact legal name of the Borrower, (ii) the jurisdiction of
organization of the Borrower, (iii) the organizational identification number of the Borrower (or
indicates that the Borrower has no organizational identification number), (iv) each place of
business of the Borrower, (v) the chief executive office of the Borrower and (vi) the federal
employer identification number of the Borrower.



               (bb) Locations of Collateral. There is no location at which the Borrower has any
Collateral other than those locations listed on Schedule 6.01(bb).



               (cc) Security Interests. Each Security Agreement and Guarantor Security Agreement
creates in favor of the Collateral Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral secured thereby. Upon the filing of the UCC-1
financing statements described in Section 5.01(d)(iv), such security interests in and Liens on the
Collateral granted thereby shall be perfected, first priority security interests, and no further
recordings or filings are or will be required in connection with the creation, perfection or
enforcement of such security interests and Liens, other than the filing of continuation
statements in accordance with applicable law.



               (dd) Anti-Terrorism Laws.



                    (i) General. Neither the Borrower nor or any Affiliate of the Borrower, is in
violation of any Anti-Terrorism Law or engages in or conspires to engage in any



51









 




transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law.




                    (ii) Executive Order No. 13224. Neither the Borrower, nor or any Affiliate of the
Borrower, or their respective agents acting or benefiting in any capacity in connection with the
Loans or other transactions hereunder, is any of the following (each, a “Blocked Person”):



                         (A) a Person that is listed in the annex to, or is otherwise subject to the provisions of, the
Executive Order No. 13224;



                         (B) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed
in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224;



                         (C) a Person or entity with which any Lender is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law;



                         (D) a Person or entity that commits, threatens or conspires to commit or supports “terrorism”
as defined in the Executive Order No. 13224;



                         (E) a Person or entity that is named as a “specially designated national” on the most current
list published by the U.S. Treasury Department Office of Foreign Asset Control at its official
website or any replacement website or other replacement official publication of such list, or



                         (F) a Person or entity who is affiliated or associated with a person or entity listed above.



                    (iii) Neither the Borrower or to the knowledge of the Borrower, any of its agents acting in
any capacity in connection with the Loans or other transactions hereunder (i) conducts any business
or engages in making or receiving any contribution of funds, goods or services to or for the
benefit of any Blocked Person, or (ii) deals in, or otherwise engages in any transaction relating
to, any property or interests in property blocked pursuant to the Executive Order No. 13224.



               (ee) Loan Origination. All Insurance Premium Loans acquired by the Borrower (actually
or beneficially through a participation) with proceeds from the Loan are originated in accordance
with facts and assumptions identified in the Local Counsel Opinions, the requirements of this
Agreement, the Collateral Value Policy, the Loan Documents, the Transactions Documents, all
Requirements of Law (including those identified in the Local Counsel Opinions), and the investment procedures and criteria of the Originator and the
Borrower consistent with past practices.



               (ff) Schedules. All of the information which is required to be scheduled to this
Agreement is set forth on the Schedules attached hereto, is correct and accurate and does not omit
to state any information material thereto.



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               (gg) Representations and Warranties in Documents; No Default. All representations and
warranties set forth in this Agreement and the other Loan Documents are true and correct in all
material respects at the time as of which such representations were made and on the Effective Date
(except such materiality qualifier shall not be applicable with respect to matters involving (i)
the Collateral, (ii) the ability of the Agents and the Lenders to realize upon the Collateral, or
(iii) the ability of the Agents and the Lenders to receive Collections from the Collateral). No
Event of Default has occurred and is continuing and no condition exists which constitutes a Default
or an Event of Default.



ARTICLE VII




COVENANTS OF THE BORROWER



     Section 7.01 Affirmative Covenants. So long as any principal of or interest on any Loan or any
other Obligation (whether or not due) shall remain unpaid or the Lender shall have any Commitment
hereunder, the Borrower will, unless the Lender (or in the event there is more than one Lender
hereunder, the Required Lenders) shall otherwise consent in writing:



               (a) Reporting Requirements. Furnish to each Agent and each Lender:



                    (i) as soon as available and in any event within 45 days after the end of each fiscal quarter
of Imperial and its Subsidiaries and the Borrower commencing with the first fiscal quarter of
Imperial and its Subsidiaries and the Borrower ending after the Effective Date, (A) consolidated
and consolidating balance sheets, consolidated and consolidating statements of operations and
retained earnings and consolidated and consolidating statements of cash flows of Imperial and its
Subsidiaries as at the end of such quarter and (B) balance sheets, statements of operations and
retained earnings and cash flows of the Borrower as at the end of such quarter, for the period
commencing at the end of the immediately preceding Fiscal Year and ending with the end of such
quarter, setting forth in each case in comparative form the figures for the corresponding date or
period set forth in the financial statements for the immediately preceding Fiscal Year, all in
reasonable detail and certified by an Authorized Officer of Imperial and the Borrower, as
applicable, as fairly presenting, in all material respects, the financial position of Imperial and
its Subsidiaries and the Borrower, as applicable, as of the end of such quarter and the results of
operations and cash flows of Imperial and its Subsidiaries for such quarter, in accordance with
GAAP applied in a manner consistent with that of the most recent audited financial statements of
Imperial and, its Subsidiaries and the Borrower, as applicable, furnished to the Agents and the
Lender, subject to the absence of footnotes and normal year-end adjustments;



                    (ii) (x) as soon as available, and in any event within (1) 150 days after the end of the 2009
Fiscal Year of the Borrower and (2) 150 days after the end of each other Fiscal Year of the
Borrower, balance sheets, statements of operations and retained earnings and cash flows of the
Borrower at the end of such Fiscal Year, setting forth in each case in comparative form the figures
for the corresponding date or period set forth in the financial statements for the immediately
preceding Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and
accompanied by a report and an unqualified opinion, prepared in accordance with generally accepted
auditing standards, of independent certified public



53









 




accountants of recognized standing selected by the Borrower and satisfactory to the Agents (which opinion shall be without (A) a “going concern”
or like qualification or exception, (B) any qualification or exception as to the scope of such
audit, or (C) any qualification which relates to the treatment or classification of any item and
which, as a condition to the removal of such qualification, would require an adjustment to such
item), together with a written statement of such accountants (1) to the effect that, in making the
examination necessary for their certification of such financial statements, they have not obtained
any knowledge of the existence of an Event of Default or a Default and (2) if such accountants
shall have obtained any knowledge of the existence of an Event of Default or such Default,
describing the nature thereof, and (y) as soon as available, and in any event within 240 days after
the end of each Fiscal Year of Imperial and its Subsidiaries, consolidated and consolidating
balance sheets, consolidated and consolidating statements of operations and retained earnings and
consolidated and consolidating statements of cash flows of Imperial and its Subsidiaries as at the
end of such Fiscal Year, setting forth in each case in comparative form the figures for the
corresponding date or period set forth in the financial statements for the immediately preceding
Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and accompanied by a
report and an unqualified opinion, prepared in accordance with generally accepted auditing
standards, of independent certified public accountants of recognized standing selected by Imperial
and satisfactory to the Agents (which opinion shall be without (A) a “going concern” or like
qualification or exception, (B) any qualification or exception as to the scope of such audit, or
(C) any qualification which relates to the treatment or classification of any item and which, as a
condition to the removal of such qualification, would require an adjustment to such item), together
with a written statement of such accountants (1) to the effect that, in making the examination
necessary for their certification of such financial statements, they have not obtained any
knowledge of the existence of an Event of Default or a Default and (2) if such accountants shall
have obtained any knowledge of the existence of an Event of Default or such Default, describing the
nature thereof;




                    (iii) as soon as available, and in any event within 30 days after the end of each fiscal month
of Imperial and its Subsidiaries and the Borrower commencing with the first fiscal month of
Imperial and its Subsidiaries and the Borrower ending after the Effective Date, (A) internally
prepared consolidated and consolidating balance sheets, consolidated and consolidating statements
of operations and retained earnings and consolidated and consolidating statements of cash flows of
Imperial and its Subsidiaries as at the end of such fiscal month and (B) internally prepared
consolidated and consolidating balance sheets, consolidated and consolidating statements of
operations and retained earnings and consolidated and consolidating statements of cash flows of the
Borrower as at the end of such fiscal month, and for the period commencing at the end of the
immediately preceding Fiscal Year and ending with the end of such fiscal month, all in reasonable
detail and certified by an Authorized Officer of Imperial and the Borrower, as applicable, as
fairly presenting, in all material respects, the financial position of Imperial and its Subsidiaries and the Borrower as at the end of such fiscal month and the
results of operations, retained earnings and cash flows of the Imperial and its Subsidiaries and
the Borrower for such fiscal month, in accordance with GAAP applied in a manner consistent with
that of the most recent audited financial statements furnished to the Agents and the Lender,
subject to the absence of footnotes and normal year-end adjustments;



                    (iv) simultaneously with the delivery of the financial statements of Imperial and its
Subsidiaries and the Borrower required by clauses (i), (ii) and (iii) of this



54









 




Section 7.01(a), a certificate of an Authorized Officer of Imperial and the Borrower, as applicable, stating that such
Authorized Officer has reviewed the provisions of this Agreement and the other Loan Documents and
has made or caused to be made under his or her supervision a review of the condition and operations
of Imperial and its Subsidiaries and the Borrower during the period covered by such financial
statements with a view to determining whether Imperial and its Subsidiaries and the Borrower were
in compliance with all of the provisions of this Agreement and such Loan Documents at the times
such compliance is required hereby and thereby, and that such review has not disclosed, and such
Authorized Officer has no knowledge of, the existence during such period of an Event of Default or
Default or, if an Event of Default or Default existed, describing the nature and period of
existence thereof and the action which Imperial and its Subsidiaries and the Borrower propose to
take or have taken with respect thereto;




                    (v) as soon as available and in any event within 10 days after the end of each fiscal month of
the Borrower commencing with the first fiscal month of the Borrower ending after the Effective
Date, a report in form and detail satisfactory to the Agents and certified by an Authorized Officer
of the Borrower as being accurate and complete (A) listing all Insurance Premium Loans owned by the
Borrower and identifying whether such Insurance Premium Loan is owned pursuant to the Master
Participation Agreement or an Insurance Premium Loan Sale and Assignment Agreement and (B)
attaching the most recently updated Loan Schedule, which shall include, without limitation, the
Insurance Premium Maturity Date and each insurance premium payment date, in each case, for the
applicable Insurance Premium Loan;



                    (vi) as soon as available and in any event within 3 Business Days after the end of each week
commencing with the first week ending after the Effective Date, a Borrowing Base Certificate,
current as of the close of business on the Friday of the immediately preceding week, supported by
schedules showing the derivation thereof and containing such detail and other information as any
Agent may request from time to time, provided that (A) the Borrowing Base set forth in the
Borrowing Base Certificate shall be effective from and including the date such Borrowing Base
Certificate is duly received by the Agents but not including the date on which a subsequent
Borrowing Base Certificate is received by the Agents, unless any Agent disputes the eligibility of
any property included in the calculation of the Borrowing Base or the valuation thereof by notice
of such dispute to the Borrower and (B) in the event of any dispute about the eligibility of any
property included in the calculation of the Borrowing Base or the valuation thereof, such Agent’s
good faith judgment shall control;



                    (vii) Intentionally Omitted;



                    (viii) promptly after submission to any Governmental Authority, all documents and information
furnished to such Governmental Authority in connection with any investigation of any Subject
Imperial Affiliate other than routine inquiries by such Governmental Authority;



                    (ix) as soon as possible, and in any event within 3 days after the occurrence of an Event of
Default or Default or the occurrence of any event or development that



55









 




could reasonably be expected to have a Material Adverse Effect, the written statement of an Authorized Officer of the Borrower
setting forth the details of such Event of Default or Default or other event or development having
a Material Adverse Effect and the action which the Borrower proposes to take with respect thereto;




                    (x) (A) promptly after the commencement thereof but in any event not later than 5 days after
service of process with respect thereto on, or the obtaining of knowledge thereof by, any Subject
Imperial Affiliate, notice of each action, suit or proceeding before any court or other
Governmental Authority or other regulatory body or any arbitrator which, if adversely determined,
could reasonably be expected have a Material Adverse Effect and (B) as soon as possible and in any
event within three Business Days of a Subject Imperial Affiliate Borrower’s, notice of (x) material
litigation, investigation or proceeding related to the Imperial or any Affiliate of Imperial, and
in connection with its insurance premium or life settlement business, the Insurance Premium Loans
acquired by the Borrower (actually or beneficially through a participation) with proceeds from the
Loan or any of the Loan Documents or the Transaction Documents and in each case, not previously
disclosed to the Lender, and (y) any material adverse development in previously disclosed
litigation, investigation or proceeding relating to the Imperial or any of its Affiliates and in
connection with its insurance premium or life settlement business, the Insurance Premium Loans
acquired by the Borrower (actually or beneficially through a participation) with proceeds from the
Loan or any of the Loan Documents or the Transaction Documents;



                    (xi) as soon as possible and in any event within 5 days after execution, receipt or delivery
thereof, copies of any material notices that the Borrower executes or receives in connection with
any Material Contract;



                    (xii) as soon as possible and in any event within 5 days after the delivery thereof to the
Borrower’s Board of Managers or Member Manager, as the case may be, copies of the monthly reports
so delivered;



                    (xiii) promptly upon receipt thereof, copies of all financial reports (including, without
limitation, management letters), if any, submitted to any Subject Imperial Affiliate by its
auditors in connection with any annual or interim audit of the books thereof;



                    (xiv) promptly upon receipt thereof, copies of all notices, reports and other information
received from the Originator pursuant to the Master Participation Agreement or from the escrow
agent under each Escrow Agreement;



                    (xv) promptly upon receipt thereof, copies of all notices, reports and other information from
the trustee under each Trust Agreement, of any such other event or circumstance to which such
Person has actual knowledge or notice that could reasonably be expected to materially and adversely
affect the validity, collectability or enforceability of any Life Insurance Policy, including,
without limitation, any notices from an Insurance Provider with respect to terminations,
exclusions, default notices and cancellations of such Life Insurance Policy;



56









 





                    (xvi) promptly upon receipt thereof, copies of all notices, reports and other information from
the Collateral Value Insurer and from the Contingent Collateral Value Insurer, of any such other
event or circumstance to which such Person has actual knowledge or notice that could reasonably be
expected to adversely affect the validity, collectability or enforceability of the Collateral Value
Policy or the Contingent Collateral Value Policy, as applicable, including, without limitation, any
notices from the Collateral Value Insurer or the Contingent Collateral Value Insurer, as
applicable, with respect to terminations, exclusions, default notices and cancellations of such
Collateral Value Policy or such Contingent Collateral Value Policy, as applicable, or the
commission of any Prohibited Act (as defined in the Collateral Value Policy);



                    (xvii) promptly upon receipt thereof, copies of all notices, reports and other information
from the Servicer of any such other event or circumstance to which such Person has actual knowledge
or notice that could reasonably be expected to materially and adversely affect the financing,
collectability or enforceability of any Insurance Premium Loan acquired by the Borrower (actually
or beneficially through a participation) with proceeds from the Loan, including without limitation,
by any fraudulent activity or Prohibited Acts (as defined in the Collateral Value Policy) on the
part of any insurance agent or broker related to the origination of the related Insurance Premium
Loan;



                    (xviii) promptly after becoming aware thereof, notice of any other event or circumstance
relating to the Borrower, the Originator or any their Affiliates, and in connection with its
insurance premium or life settlement business, the Insurance Premium Loans acquired by the Borrower
(actually or beneficially through a participation) with proceeds from the Loan, any of the
Transaction Documents, the Collateral Value Policy or the Contingent Collateral Value Policy that
could reasonably be expected to have a Material Adverse Effect (including any change in law with
respect to the origination, financing, acquisition of insurance premium loans and/or life insurance
policies in any Applicable Licensed State or Applicable Non-Licensed State otherwise);



                    (xix) on the Effective Date, Local Counsel Opinions with respect to each applicable
jurisdiction and updated Local Counsel Opinions at least annually thereafter;



                    (xx) as soon as available and in any event within 3 Business Days after the end of each week
commencing with the first week ending after the Effective Date, a report setting forth the details
of each Eligible Insurance Premium Loan acquired by the Borrower (actually or beneficially through
a participation) with proceeds from the Loan for which the related Premium Finance Borrower is a
trust that does not have an institutional trustee or financial institution acceptable to the Agents
as trustee or co-trustee under the related Trust Agreement, including, without limitation, the issuance date, maturity date and outstanding
principal amount of each such Eligible Insurance Premium Loan;



                    (xxi) promptly upon receipt thereof, a copy of (i) each amendment to a Trust Agreement to
replace the Non-Corporate Trustee with an institutional trustee or financial institution acceptable
to the Agents and (ii) the final order of a court of competent jurisdiction approving such
amendment;



57









 





                    (xxii) promptly upon receipt thereof, and in any event within five (5) days of the anniversary
thereof, a copy of each updated Local Counsel Opinion prepared by outside local counsel to the
Originator or any Affiliate of the Originator qualified to practice in each jurisdiction in which
the Originator intends to make Eligible Insurance Premium Loans;



                    (xxiii) promptly upon request, such other information concerning the condition or operations,
financial or otherwise, of the Borrower as any Agent may from time to time may reasonably request.



                    (xxiv) Promptly upon receipt thereof, copies of all notices, reports and other information
received by the Originator from the escrow agent under each Escrow Agreement.



               (b) Intentionally Omitted.



               (c) Compliance with Laws, Etc. Comply with, and cause the Subject Imperial Affiliates
to comply with, all Requirements of Law (including, without limitation, all those which relate to
the origination, financing, acquisition and/or transfer of Insurance Premium Loans), judgments and
awards (including any settlement of any claim that, if breached, could give rise to any of the
foregoing), such compliance to include, without limitation, (i) paying before the same become
delinquent all taxes, assessments and governmental charges or levies imposed upon it or upon its
income or profits or upon any of its properties, and (ii) paying all lawful claims which if unpaid
might become a Lien or charge upon any of its properties, except to the extent contested in good
faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from
the non-payment thereof and with respect to which adequate reserves have been set aside for the
payment thereof in accordance with GAAP.



               (d) Preservation of Existence, Etc. Maintain and preserve its existence, rights and
privileges, and become or remain duly qualified and in good standing in each jurisdiction in which
the character of the properties owned or leased by it or in which the transaction of its business
makes such qualification necessary.



               (e) Keeping of Records and Books of Account. Keep adequate records and books of
account, with complete entries made to permit the preparation of financial statements in accordance
with GAAP. Cause the Servicer to maintain and implement administrative and operating procedures
(including, without limitation, an ability to re-create records evidencing the Insurance Premium
Loans owned by the Borrower (actually or beneficially through a participation) 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 Insurance Premium Loans
owned by the Borrower (actually or beneficially through a participation) and related security (including the applicable Life
Insurance Policies).



               (f) Inspection Rights. Permit the agents and representatives of any Agent at any time
and from time to time during normal business hours, at the expense of the Borrower, to examine and
make copies of and abstracts from its records and books of account (including, without limitation,
to review and obtain copies of or make abstracts of the items



58









 




comprising the Loan Documentation Packages, and discuss matters relating to the Insurance Premium Loans owned by the Borrower
(actually or beneficially through a participation) and Life Insurance Policies and the performance
by such Person of its duties hereunder and under the Transaction Documents to which it is a party),
to visit and inspect its properties, to verify materials, leases, notes, accounts receivable,
deposit accounts and its other assets, to conduct audits or examinations and to discuss its
affairs, finances and accounts with any of its directors, officers, managerial employees,
independent accountants or any of its other representatives. In furtherance of the foregoing, the
Borrower hereby authorizes its independent accountants to discuss the affairs, finances and
accounts of such Person (independently or together with representatives of such Person) with the
agents and representatives of any Agent in accordance with this Section 7.01(f).




               (g) Maintenance of Properties, Etc. Maintain and preserve all of its properties which
are necessary or useful in the proper conduct of its business in good working order and condition,
ordinary wear and tear excepted, and comply at all times with the provisions of all leases to which
it is a party as lessee or under which it occupies property, so as to prevent any loss or
forfeiture thereof or thereunder.



               (h) Maintenance of Insurance. Maintain insurance with responsible and reputable
insurance companies or associations (including, without limitation, comprehensive general
liability, hazard, rent and business interruption insurance) with respect to its properties
(including all real properties leased or owned by it) and business, in such amounts and covering
such risks as is required by any Governmental Authority having jurisdiction with respect thereto or
as is carried generally in accordance with sound business practice by companies in similar
businesses similarly situated and in any event in amount, adequacy and scope reasonably
satisfactory to the Collateral Agent. All policies covering the Collateral are to be made payable
to the Collateral Agent for the benefit of the Agents and the Lenders, as its interests may appear,
in case of loss, under a standard non-contributory “lender” or “secured party” clause and are to
contain such other provisions as the Collateral Agent may require to fully protect the Lenders’
interest in the Collateral and to any payments to be made under such policies. All certificates of
insurance are to be delivered to the Collateral Agent and the policies are to be premium prepaid,
with the loss payable and additional insured endorsement in favor of the Collateral Agent and such
other Persons as the Collateral Agent may designate from time to time, and shall provide for not
less than 30 days’ prior written notice to the Collateral Agent of the exercise of any right of
cancellation. If the Borrower fails to maintain such insurance, the Collateral Agent may arrange
for such insurance, but at the Borrower’s expense and without any responsibility on the Collateral
Agent’s part for obtaining the insurance, the solvency of the insurance companies, the adequacy of
the coverage, or the collection of claims. Upon the occurrence and during the continuance of an
Event of Default, the Collateral Agent shall have the sole right, in the name of the Lender, the
Borrower, to file claims under any insurance policies, to receive, receipt and give acquittance for any
payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be
necessary to effect the collection, compromise or settlement of any claims under any such insurance
policies.



               (i) Obtaining of Permits, Etc. Cause the Subject Imperial Affiliates to and to itself
obtain, maintain and preserve and take all necessary action to timely renew, all



59









 




permits, licenses, authorizations, approvals, entitlements and accreditations which are necessary or useful in the
proper conduct of its respective business.




               (j) Trust Agreement. Cause the Originator to require that the Premium Finance Borrower
shall have either (i) paid to the applicable Insurance Provider or (ii) placed into escrow under
the Trust Agreement pursuant to escrow arrangements satisfactory to the Agents, insurance premium
payments in an amount sufficient to result in the applicable Life Insurance Policy remaining
continuously in effect through the sixtieth (60th) day after the Insurance Premium Loan
Maturity Date; provided, however, that this covenant shall be deemed to be satisfied if the
aggregate amount of premium paid to the applicable Insurance Provider with respect to the related
Life Insurance Policy prior to the lapse of such Life Insurance Policy equals the “Total Life
Insurance Premium” set forth in the applicable Coverage Certificate.



               (k) Further Assurances. Take such action and execute, acknowledge and deliver to take
such action and execute, acknowledge and deliver, at its sole cost and expense, such agreements,
instruments or other documents as any Agent may require from time to time in order (i) to carry out
more effectively the purposes of this Agreement and the other Loan Documents and Transaction
Documents, (ii) to subject to valid and perfected first priority Liens any of the Collateral or any
other property of the Borrower, (iii) to establish and maintain the validity and effectiveness of
any of the Loan Documents and Transaction Documents and the validity, perfection and priority of
the Liens intended to be created thereby, and (iv) to better assure, convey, grant, assign,
transfer and confirm unto each Agent and each Lender the rights now or hereafter intended to be
granted to it under this Agreement or any other Loan Document or Transaction Document. In
furtherance of the foregoing, to the maximum extent permitted by applicable law, the Borrower (i)
authorizes each Agent to execute any such agreements, instruments or other documents in the
Borrower’s name and to file such agreements, instruments or other documents in any appropriate
filing office, (ii) authorizes each Agent to file any financing statement required hereunder or
under any other Loan Document or Transaction Document, and any continuation statement or amendment
with respect thereto, in any appropriate filing office without the signature of the Borrower, and
(iii) ratifies the filing of any financing statement, and any continuation statement or amendment
with respect thereto, filed without the signature of the Borrower prior to the date hereof.



               (l) Change in Collateral; Collateral Records. (i) Give the Collateral Agent not less
than 30 days’ prior written notice of any change in the location of any Collateral, other than to
locations set forth on Schedule 6.01(bb) and with respect to which the Collateral Agent has filed
financing statements and otherwise fully perfected its Liens thereon, (ii) advise the Collateral
Agent promptly, in sufficient detail, of any material adverse change relating to the type, quantity
or quality of the Collateral or the Lien granted thereon and (iii) execute and deliver to the
Collateral Agent for the benefit of the Agents and the Lenders from time to time, solely for
the Collateral Agent’s convenience in maintaining a record of Collateral, such written
statements and schedules as the Collateral Agent may reasonably require, designating, identifying
or describing the Collateral.



               (m) Subordination. Cause all Indebtedness and other obligations now or hereafter owed
by it to any of its Affiliates, to be subordinated in right of payment and



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security to the Indebtedness and other Obligations owing to the Agents and the Lenders in accordance with a
subordination agreement in form and substance satisfactory to the Agents.




               (n) Fiscal Year. Cause the Fiscal Year of the Borrower to end on December 31st of each
calendar year unless the Agents consent to a change in such Fiscal Year (and appropriate related
changes to this Agreement).



               (o) Collections.



                    (i) On the Business Day of such receipt, remit (or cause to be remitted) to the Collection
Account all Collections with respect to Insurance Premium Loans owned by the Borrower, the
Collateral Value Policy and the Contingent Collateral Value Policy, if any, received directly by
the Borrower, the Originator or the Servicer; and



                    (ii) cause the Servicer to include in the Loan Documentation Package an instruction that all
Premium Finance Borrowers and Insurance Providers will cause all payments and Collections in
respect of the Insurance Premium Loans to be deposited directly to the Collection Account.



               (p) Servicer. Cause all Servicing Fees owing to the Servicer under the Servicing
Agreement to be timely paid when due and payable under the Servicing Agreement. Maintain the
Servicing Agreement in full force and effect.



               (q) Insurance Collateral Agent. Cause all fees owing to the Insurance Collateral Agent
under the Collateral Agency Agreement to be timely paid when due and payable under the Collateral
Agency Agreement. Maintain the Collateral Agency Agreement in full force and effect.



               (r) Use of Proceeds/Purchase of Loans. Except as provided for in Section 2.10, use the
proceeds of the Term Loans made hereunder solely to purchase or otherwise acquire Insurance Premium
Loans from the Originator in accordance with and as contemplated by the terms of the Master
Participation Agreement, the Insurance Premium Loan Sale and Assignment Agreements and the other
Loan Documents and Transaction Documents and, subject to Section 5.02 provided,
however, that the Borrower may not and shall not use the proceeds of any Term Loan herein
to acquire any Insurance Premium Loan unless such Insurance Premium Loan is an Eligible Insurance
Premium Loan and is a Covered Loan as evidenced by a Coverage Certificate in an amount equal to the
full amount of the Term Loan requested with respect thereto.



               (s) Separateness. The Borrower shall (i) have the Servicer act as agent of the
Borrower solely through the Servicing Agreement or express agencies created by arm’s-length
agreement, as the case may be; provided that the Servicer fully discloses to any third party
the agency relationship with the Borrower; provided further that it receives fair compensation
or compensation consistent with regulatory requirements, as appropriate, from the Borrower for the
services provided;



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                    (ii) allocate all overhead on the basis of actual use to the extent practicable and, to the
extent such allocation is not practicable, on a basis reasonably related to actual use;



                    (iii) ensure that all of its actions are duly authorized by its authorized personnel, as
appropriate and in accordance with its Governing Documents;



                    (iv) maintain the Borrower’s books and records separately from those of any other Person, use
separate stationery bearing the name “Imperial PFC Financing II, LLC” in all correspondence and use
separate invoices and checks, as applicable;



                    (v) prepare financial statements for itself, and for itself on a consolidated basis, in each
case separate from the financial statements of any other Person;



                    (vi) at all times, act solely in its own name and through its duly authorized officers or
agents, in order to maintain an arm’s-length relationship with all other Persons and shall not
enter into any contract, agreement or arrangement with any other Person except (A) as contemplated
by or provided for under the terms of any of the Loan Documents, or (B) on terms and conditions at
least as favorable to the Borrower as would be obtainable by the Borrower at the relevant time in a
comparable arm’s-length transaction or series of transactions with a Person other than an Affiliate
thereof, as determined by the Borrower;



                    (vii) conduct its business solely in its own name so as to not mislead third parties as to the
identity of the entity with which such third parties are conducting business, and shall use all
reasonable efforts to avoid the appearance that it is conducting business on behalf of any other
Person or that the assets of the Borrower are directly available to pay the creditors of any other
Person;



                    (viii) maintain its assets in such a manner that it is not costly or difficult to segregate,
identify or ascertain such assets;



                    (ix) correct any misunderstanding known to it regarding its separate identity from any other
Person;



                    (x) as of the Effective Date and the date of delivery of any Notice of Borrowing, have
adequate capital in light of its then contemplated business operations and for the normal
obligations reasonably foreseeable in a business of its then size and character; and



                    (xi) observe strictly all organizational and procedural formalities required by this
Agreement, its Governing Documents, and any Requirement of Law, as the case may be.



               (t) Collateral Value Policy and Contingent Collateral Value Policy Payments. Cause all
payments made by the Collateral Value Insurer under the Collateral Value Policy or by the
Contingent Collateral Value Insurer under the Contingent Collateral Value Policy to be directly
deposited in the Collection Account and be applied pursuant to Section 2.05(d) or Section 4.04(b),
as applicable.



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               (u) Collateral Value Policy and Contingent Collateral Value Policy. Take all actions
necessary or required by the Agents to maintain the Collateral Value Policy and the Contingent
Collateral Value Policy in full force and effect and receive timely payment from the Collateral
Value Insurer pursuant to the Collateral Value Policy or by the Contingent Collateral Value Insurer
under the Contingent Collateral Value Policy, including, without limitation, (i) filing each Proof
of Loss (as defined in the Collateral Value Policy) at the times and in the proper form required by
the Collateral Value Policy or the Contingent Collateral Value Policy, as applicable, (ii)
maintaining the related Life Insurance Policy with respect to the applicable Insurance Premium Loan
in full force and effect at all times required by the Collateral Value Policy or the Contingent
Collateral Value Policy, as applicable, (iii) notifying and instructing the Remarketing Agent (as
defined in the Collateral Value Policy) to sell or otherwise dispose of the related Life Insurance
Policy with respect to the applicable Insurance Premium Loan at the times required by the
Collateral Value Policy or the Contingent Collateral Value Policy, as applicable; and (iv)
delivering to the Collateral Value Insurer all notices required pursuant to the Collateral Value
Policy or the Contingent Collateral Value Policy, as applicable, each at the times required
thereunder, including without limitation, pursuant to Section VI of the Collateral Value Policy and
Section VIII of the Contingent Collateral Value Policy.



               (v) Projections. Commencing on the first business day of the first week following the
effectiveness of this Agreement and the first business day of each week thereafter, Borrower will
provide the Administrative Agent with a rolling thirty (30) day projection of Borrower’s purchases
of Participations and/or Eligible Insurance Premium Loans as contemplated by this Agreement, in
form and substance reasonably acceptable to Administrative Agent.



               (w) Back-Up Servicing Agreement. The Borrower shall have entered into the Back-Up
Servicing Agreement with the Back-Up Servicer.



               (x) Indemnity Escrow Agreement. Not later than thirty (30) days after the Effective
Date, the Borrower shall have entered into the Indemnity Escrow Agreement with the Escrow Agent and
Agents.



          Section 7.02 Negative Covenants. So long as any principal of or interest on any Loan or any other
Obligation (whether or not due) shall remain unpaid or the Lender shall have any Commitment
hereunder, the Borrower shall not, unless the Lender (of if there is more than one Lender
hereunder, the Required Lenders) shall otherwise consent in writing:




               (a) Liens, Etc. Create, incur, assume or suffer to exist any Lien upon or with respect
to any of its properties, whether now owned or hereafter acquired; file or suffer to exist under
the Uniform Commercial Code or any Requirement of Law of any jurisdiction, a financing statement
(or the equivalent thereof) that names it as debtor; sign or suffer to exist any security agreement authorizing any secured party thereunder to file such financing statement
(or the equivalent thereof); sell any of its property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets (including sales of
accounts receivable) with recourse to it or assign or otherwise transfer any account or other right
to receive income; other than, as to all of the above, Permitted Liens.



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               (b) Indebtedness. Create, incur, assume, guarantee or suffer to exist, or otherwise
become or remain liable with respect to any Indebtedness other than Permitted Indebtedness.



               (c) Fundamental Changes; Dispositions. Wind-up, liquidate or dissolve, or merge,
consolidate or amalgamate with any Person, or convey, sell, lease or sublease, transfer or
otherwise dispose of, whether in one transaction or a series of related transactions, all or any
part of its business, property or assets, whether now owned or hereafter acquired (or agree to do
any of the foregoing), or purchase or otherwise acquire, whether in one transaction or a series of
related transactions, all or substantially all of the assets of any Person (or any division
thereof) (or agree to do any of the foregoing); provided, however, that the
Borrower may re-market and dispose of any Life Insurance Policy pursuant to the Transaction
Documents so long as (i) such disposition occurs within 60 days after the date of foreclosure of
such Life Insurance Policy and (ii) the proceeds from such disposition are paid to the
Administrative Agent for the benefit of the Agents and the Lenders pursuant to Section 2.05(c).



               (d) Change in Nature of Business. Make any change in the nature of its business as
described in Section 6.01(1).



               (e) Loans, Advances, Investments, Etc. Make or commit or agree to make any loan,
advance guarantee of obligations, other extension of credit or capital contributions to, or hold or
invest in or commit or agree to hold or invest in, or purchase or otherwise acquire or commit or
agree to purchase or otherwise acquire any shares of the Equity Interests, bonds, notes, debentures
or other securities of, or make or commit or agree to make any other investment in, any other
Person (other than the acquisition of any Insurance Premium Loans pursuant to the Transaction
Documents), or purchase or own any futures contract or otherwise become liable for the purchase or
sale of currency or other commodities at a future date in the nature of a futures contract.



               (f) Lease Obligations. Create, incur or suffer to exist any obligations as lessee (i)
for the payment of rent for any real or personal property in connection with any sale and leaseback
transaction, or (ii) for the payment of rent for any real or personal property under leases or
agreements to lease.



               (g) Capital Expenditures. Make or commit or agree to make any Capital Expenditure (by
purchase or Capitalized Lease).



               (h) Restricted Payments. (i) Declare or pay any dividend or other distribution, direct
or indirect, on account of any Equity Interests of the Borrower, now or hereafter outstanding, (ii)
make any repurchase, redemption, retirement, defeasance, sinking fund or similar payment, purchase
or other acquisition for value, direct or indirect, of any Equity Interests of the Borrower or any direct or indirect parent of the Borrower, now or hereafter
outstanding, (iii) make any payment to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights for the purchase or acquisition of any Equity Interests of the
Borrower, now or hereafter outstanding, (iv) return any Equity Interests to any shareholders or
other equity holders of the Borrower, or make any other distribution of property, assets, Equity
Interests, warrants, rights, options, obligations or securities thereto as such or (v) pay any



64









 




management fees or any other fees or expenses (including the reimbursement thereof by the Borrower)
pursuant to any management, consulting or other services agreement to any of the shareholders or
other equityholders of the Borrower or other Affiliates or Affiliates of the Borrower;
provided, however, (A) the Borrower may make tax distributions (“Tax
Distributions”) with respect to each Fiscal Year, in an aggregate amount equal to the amount of
income tax liability the Borrower would have had for such Fiscal Year if the Borrower were an
individual subject to Federal or state (in which its chief executive office or principal place of
business is located) income tax at the highest applicable marginal tax rates in effect in each
jurisdiction for such year and taking into account the deductibility of the state income taxes for
Federal purposes and the characterization of the income of the Borrower as ordinary income or
capital gains, as appropriate, provided that the Tax Distribution with respect to a Fiscal
Year of the Borrower is paid by the Borrower within 20 days of (x) the estimated tax payment date,
in the amount of the estimated tax due on such date calculated in accordance with this proviso, (y)
the date the tax return with respect to such taxes is due, or (z) the date the tax return with
respect to such tax issue is due taking into account valid extensions, in the amount of such taxes
less all prior Tax Distributions applicable to such Fiscal Year, provided, further, that at the
election of the Collateral Agent, which the Collateral Agent may and, upon the direction of the
Required Lenders, shall make by notice to the Borrower, no such payment shall be made if an Event
of Default shall have occurred and be continuing or would result from the making of any such
payment and (B) after giving effect to the application of Collections with respect to the Covered
Portion of Insurance Premium Loans in accordance with Section 2.05(d), so long as no Default or
Event of Default has occurred and is continuing or would result from the making of any such
payment, the Borrower may declare and pay dividends or distributions on account of any Equity
Interests of the Borrower with any Collections with respect to the Uncovered Portion of an
Insurance Premium Loan (other than Salvage Collections).




               (i) Federal Reserve Regulations. Permit any Loan or the proceeds of any Loan under
this Agreement to be used for any purpose that would cause such Loan to be a margin loan under the
provisions of Regulation T, U or X of the Board.



               (j) Transactions with Affiliates. Enter into, renew, extend or be a party to any
transaction or series of related transactions (including, without limitation, the purchase, sale,
lease, transfer or exchange of property or assets of any kind or the rendering of services of any
kind) with any Affiliate, except (i) in the ordinary course of business in a manner and to an
extent consistent with past practice and necessary or desirable for the prudent operation of its
business, for fair consideration and on terms no less favorable to it than would be obtainable in a
comparable arm’s length transaction with a Person that is not an Affiliate thereof, (ii) the
transactions contemplated by the Insurance Premium Loan Sale and Assignment Agreements and (iii)
the transactions contemplated by the Master Participation Agreement.



               (k) Limitation on Issuance of Equity Interests. Issue or sell or enter into any
agreement or arrangement for the issuance and sale of any shares of its Equity Interests, any
securities convertible into or exchangeable for its Equity Interests or any warrants.



               (l) Modifications of Indebtedness, Organizational Documents and Certain Other Agreements;
Etc. (i) Amend, modify or otherwise change (or permit the amendment, modification or other
change in any manner of) any of the provisions of any of its



65









 




Indebtedness or of any instrument or agreement (including, without limitation, any purchase agreement, indenture, loan agreement or
security agreement) relating to any such Indebtedness if such amendment, modification or change
would shorten the final maturity or average life to maturity of, or require any payment to be made
earlier than the date originally scheduled on, such Indebtedness, would increase the interest rate
applicable to such Indebtedness, would change the subordination provision, if any, of such
Indebtedness, or would otherwise be adverse to the Lender or the issuer of such Indebtedness in any
respect,




                    (i) except for the Obligations, make any voluntary or optional payment (including, without
limitation, any payment of interest in cash that, at the option of the issuer, may be paid in cash
or in kind), prepayment, redemption, defeasance, sinking fund payment or other acquisition for
value of any of its Indebtedness (including, without limitation, by way of depositing money or
securities with the trustee therefor before the date required for the purpose of paying any portion
of such Indebtedness when due), or refund, refinance, replace or exchange any other Indebtedness
for any such Indebtedness (except to the extent such Indebtedness is otherwise expressly permitted
by the definition of “Permitted Indebtedness”), make any payment, prepayment, redemption,
defeasance, sinking fund payment or repurchase of any Subordinated Indebtedness in violation of the
subordination provisions thereof or any subordination agreement with respect thereto, or make any
payment, prepayment, redemption, defeasance, sinking fund payment or repurchase of any Indebtedness
as a result of any asset sale, change of control, issuance and sale of debt or equity securities or
similar event, or give any. notice with respect to any of the foregoing.



                    (ii) amend, modify or otherwise change its name, jurisdiction of organization, organizational
identification number or FEIN;



                    (iii) amend, modify or otherwise change any of its Governing Documents, including, without
limitation, by the filing or modification of any certificate of designation, or any agreement or
arrangement entered into by it, with respect to any of its Equity Interests (including any
operating agreement), or enter into any new agreement with respect to any of its Equity Interests;
or



                    (iv) amend, modify or otherwise change any Transaction Document.



               (m) Investment Company Act of 1940. Engage in any business, enter into any
transaction, use any securities or take any other action, that would cause it to become subject to
the registration requirements of the Investment Company Act of 1940,
as amended, by virtue of being an “investment company” or a company “controlled” by an “investment company”
not entitled to an exemption within the meaning of such Act.



               (n) Certain Agreements. Agree to any material amendment or other material change to or
material waiver of any of its rights under any Material Contract.



               (o) Anti-Terrorism Laws. Neither shall the Borrower or any of its Affiliates or agents
shall:



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                    (i) conduct any business or engage in any transaction or dealing with any Blocked Person,
including the making or receiving any contribution of funds, goods or services to or for the
benefit of any Blocked Person,



                    (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order No. 13224 or



                    (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in the
Executive Order No. 13224, the USA PATRIOT Act or any other Anti-Terrorism Law.


The Borrower shall deliver to the Lender any certification or other evidence requested from time to
time by the Lender in its sole discretion, confirming the Borrower’s compliance with this Section
7.02(o).




               (p) Amendments or Consents to Loan Document Package. (i) Amend, supplement, amend and
restate, or otherwise modify, (ii) agree to any waiver of any provision contained in or (iii) to
the extent provided for or required therein, consent to or otherwise authorize or acknowledge, any
action or otherwise in respect of, in any such case described in clauses (i) through (iii), above,
any Loan Document Package with respect to any Insurance Premium Loan acquired by the Borrower
(actually or beneficially through a participation) with proceeds from the Loan, nor allow any other
Subject Imperial Affiliate to do so, except with the prior written consent of the Agents and the
Lender (or if there is more than one Lender party hereto, the Required Lenders).



               (q) Intentionally Omitted.



               (r) Separateness. The Borrower shall not:



                    (i) have any employees other than a single employee in Georgia; provided,
that, the Borrower may enter into the Servicing Agreement with the Servicer to the effect
that the employees of such entity shall act on behalf of the Borrower; provided that such employees
shall at all times hold themselves out to third parties as representatives of the Borrower while
performing duties under such service agreement (including, without limitation, by means of
providing such persons with business or identification cards identifying such employees as agents
of the Borrower);



                    (ii) act as an agent for any other Person;



                    (iii) commingle its funds or other assets with those of any other Person and shall not
maintain bank accounts or other depository accounts to which any other Person is an account party,
into which any other Person makes deposits or from which any other Person has the power to make
withdrawals;



                    (iv) permit any other Person to pay any of the Borrower’s operating expenses unless such
operating expenses are paid by such Person pursuant to an



67









 




agreement between the Borrower and such other Person providing for the allocation of such expenses and such expenses are reimbursed by the
Borrower out of the Borrower’s own funds;




                    (v) consent to be liable for, or hold itself out to be responsible for any money borrowed by,
or any Indebtedness incurred by, any other Person;



                    (vi) assume, guarantee, become obligated for, pay, or hold itself out to be responsible for,
the debts or obligations of any other Person;



                    (vii) acquire obligations or securities of its Affiliates other than its acquisition of
participations in loans, as contemplated by this Agreement;



                    (viii) hold out its credit to any Person as available to satisfy the obligation of any other
Person;



                    (ix) pledge its assets for the benefit of any other entity or make any loans or advances to
any Person or entity except as provided in this Agreement and the other Loan Documents;



                    (x) buy or hold evidence of Indebtedness issued by any of its Affiliates;



                    (xi) permit less than one member of the Borrower’s Board of Directors or Board of Managers
(the “Independent Manager”) to be an individual who has not been, (a) a direct or indirect
legal or beneficial owner in the Borrower or any of its Affiliates, (b) a creditor, supplier,
employee, officer, director, family member, manager or contractor of the Borrower or its
Affiliates, (b) a creditor, supplier, employee, officer, director, family member, manager or
contractor of the Borrower or its Affiliates (other than as an independent manager for such
entity), or (c) a Person who control (whether directly, indirectly, or otherwise) the Borrower or
its Affiliates (other than as an independent manager for such entity);



                    (xii) permit the Independent Manager at any time to serve as a trustee in bankruptcy for the
Borrower, the Service, the Originator or any Affiliate thereof;



                    (xiii) identify itself as a division of any other Person; or



                    (xiv) enter into agreements with its Affiliates or agreements with third parties that in the
aggregate would be material, if such agreements do not contain the provision that such Affiliates
or third parties, in their respective capacities as counterparties under such agreements, will not
seek to initiate bankruptcy or insolvency proceedings in respect of the Borrower. The Borrower
shall include the provision described in the preceding sentence (or a substantially similar provision) in all agreements with third parties, to the extent
practicable without interfering with the conduct of the business affairs of the Borrower, and take
into consideration the willingness of third parties to enter into agreements containing such
provision.



               (s) Deposits to the Collection Account. Deposit or otherwise credit, or cause or
permit to be so deposited or credited by any Person, to the Collection Account cash or cash
proceeds other than Collections or proceeds of the Collateral.



68









 





               (t) Change in Business Policy. Make, or permit the Originator to make, any change in
the character of its business or credit and collection policy which would impair in any material
respect the collectibility of any Insurance Premium Loan acquired by the Borrower (actually or
beneficially through a participation) with proceeds from the Loan or related security (including
any applicable Life Insurance Policy).



               (u) Change in Payment Instructions to the Collateral Value Insurer, the Contingent
Collateral Value Insurer and the Premium Finance Borrowers. Make any change in its instructions
to the Collateral Value Insurer, the Contingent Collateral Value Insurer and/or the Premium Finance
Borrowers regarding Collections or payments to be made to the Collection Account, or allow any
Subject Imperial Affiliate to do so, unless (i) the Agents and the Servicer shall have received
notice of such change and (ii) the Agents previously shall have consented in writing to such
change.



               (v) Amendments or Consents to Collateral Value Policy and Contingent Collateral Value
Policy. (i) Amend, supplement, amend and restate, or otherwise modify, (ii) agree to any waiver
of any provision contained in or (iii) to the extent provided for or required therein, consent to
or otherwise authorize or acknowledge, any action or otherwise in respect of, in any such case
described in clauses (i) through (iii), above, the Collateral Value Policy or the Contingent
Collateral Value Policy, or allow any other Subject Imperial Affiliate to do so, except with the
prior written consent of the Agents and the Lender (or if there is more than one Lender hereunder,
the Required Lenders).



ARTICLE VIII




MANAGEMENT, COLLECTION AND STATUS OF COLLATERAL



          Section 8.01 Collections; Management of Collateral. (a) The Borrower shall (i) establish and
maintain cash management services of a type and on terms reasonably satisfactory to the Agents at
the bank set forth on Schedule 8.01, the “Cash Management Bank”, and shall take such
reasonable steps to enforce, collect and receive all amounts owing on the Insurance Premium Loans
of the Borrower, and (ii) deposit or cause to be deposited promptly, and in any event no later than
the next Business Day after the date of receipt thereof, all proceeds in respect of any Collateral
and all Collections (of a nature susceptible to a deposit in a bank account) and other amounts
received by the Borrower (including payments made by any Premium Finance Borrower directly to the
Borrower) into the Collection Account.




               (b) On or prior to the Effective Date, the Borrower shall, with respect to each of the
Operating Account, the Reserve Account and the Collection Account, deliver to the Collateral Agent
a Cash Management Agreement.



               (c) All amounts received in the Collection Account shall at the Administrative Agent’s
direction be wired each Business Day into the Administrative Agent’s Account to be applied pursuant
to Section 2.05(d) or Section 4.04(b), as applicable.



               (d) So long as no Default or Event of Default has occurred and is continuing, the Borrowers
may amend Schedule 8.01 to add or replace the Cash Management



69









 




Bank, the Collection Account, the Reserve Account or the Operating Account; provided, however, that (i) such
prospective Cash Management Bank shall be reasonably satisfactory to the Collateral Agent and the
Collateral Agent shall have consented in writing in advance to the opening of such Collection
Account, Reserve Account and the Operating Account with the prospective Cash Management Bank, and
(ii) prior to the time of the opening of such Collection Account, such Reserve Account and such
Operating Account, the Borrower and such prospective Cash Management Bank shall have executed and
delivered to the Collateral Agent a Cash Management Agreement with respect to each of the
Collection Account, the Reserve Account and the Operating Account. The Borrower shall close its
Collection Account, its Reserve Account and its Operating Account (and establish replacement cash
management accounts in accordance with the foregoing sentence) promptly and in any event within 30
days of notice from the Collateral Agent that the creditworthiness of any Cash Management Bank is
no longer acceptable in the Collateral Agent’s reasonable judgment, or that the operating
performance, funds transfer, or availability procedures or performance of such Cash Management Bank
with respect to the Collection Account, the Reserve Account or the Operating Account or the
Collateral Agent’s liability under any Cash Management Agreement with such Cash Management Bank is
no longer acceptable in the Collateral Agent’s reasonable judgment.




               (e) The Collection Account and the Reserve Account shall each be a cash collateral account,
with all cash, checks and similar items of payment in such accounts securing payment of the
Obligations, and in which the Borrower is hereby deemed to have granted a Lien to Collateral Agent
for the benefit of the Agents and the Lenders. All checks, drafts, notes, money orders,
acceptances, cash and other evidences of Indebtedness received directly by the Borrower from any of
the Premium Finance Borrowers or any other Person, as proceeds from the Insurance Premium Loans
acquired by the Borrower (actually or beneficially through a participation) with proceeds from the
Loan or as proceeds of any other Collateral shall be held by the Borrower in trust for the Agents
and the Lenders and if of a nature susceptible to a deposit in a bank account, upon receipt be
deposited by the Borrower in original form and no later than the next Business Day after receipt
thereof into the Collection Account; provided, however, all Collections received
directly by the Borrower shall be held by the Borrower in trust for the Agents and the Lenders and
upon receipt be deposited by the Borrower in original form and no later than the next Business Day
after receipt thereof into the Administrative Agent’s Account. The Borrower shall not commingle
such collections with the proceeds of any assets not included in the Collateral. No checks, drafts
or other instrument received by the Administrative Agent shall constitute final payment to the
Administrative Agent unless and until such instruments have actually been collected.



               (f) After the occurrence and during the continuance of an Event of Default, the Collateral
Agent may send a notice of assignment and/or notice of the Lenders’ security interest to any and
all Insurance Premium Borrowers, the Collateral Value Insurer, the Contingent Collateral Value
Insurer or third parties holding or otherwise concerned with any of the Collateral, and thereafter
the Collateral Agent or its designee shall have the sole right to collect the Insurance Premium
Loans acquired by the Borrower (actually or beneficially through a participation) with proceeds
from the Loan and/or take possession of the Collateral and the books and records relating thereto.
The Borrower shall not, without prior written consent of the Collateral Agent, grant any extension
of time of payment of any such Insurance Premium Loan or payments under the Collateral Value Policy
or the Contingent Collateral Value Policy,



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compromise or settle any such Insurance Premium Loan for less than the full amount thereof, release, in whole or in part, any Person or property liable for
the payment thereof, or allow any credit or discount whatsoever thereon.




               (g) The Borrower hereby appoints each Agent or its designee on behalf of such Agent as the
Borrower’s attorney-in-fact with power exercisable during the continuance of an Event of Default to
endorse the Borrower’s name upon any notes, acceptances, checks, drafts, money orders or other
evidences of payment relating to the Insurance Premium Loans acquired by the Borrower (actually or
beneficially through a participation) with proceeds from the Loan, the Collateral Value Policy and
the Contingent Collateral Value Policy, to sign the Borrower’s name on any invoice or bill of
lading relating to any of such Insurance Premium Loans and the Collateral Value Policy and the
Contingent Collateral Value Policy, drafts against Insurance Premium Borrowers with respect to such
Insurance Premium Loans, the Collateral Value Policy and the Contingent Collateral Value Policy,
assignments and verifications of the such Insurance Premium Loans, the Collateral Value Policy and
the Contingent Collateral Value Policy and notices to Insurance Premium Borrowers with respect to
such Insurance Premium Loans, the Collateral Value Insurer with respect to the Collateral Value
Policy and the Contingent Collateral Value Insurer with respect to the Contingent Collateral Value
Policy, to send verification of such Insurance Premium Loans, the Collateral Value Policy and the
Contingent Collateral Value Policy, and to notify the Postal Service authorities to change the
address for delivery of mail addressed to the Borrower to such address as such Agent or its
designee may designate and to do all other acts and things necessary to carry out this Agreement.
All acts of said attorney or designee are hereby ratified and approved, and said attorney or
designee shall not be liable for any acts of omission or commission (other than acts of omission or
commission constituting gross negligence or willful misconduct as determined by a final judgment of
a court of competent jurisdiction), or for any error of judgment or mistake of fact or law; this
power being coupled with an interest is irrevocable until all of the Loans and other Obligations
under the Loan Documents are paid in full and all of the Loan Documents are terminated.



               (h) Nothing herein contained shall be construed to constitute any Agent as agent of the
Borrower for any purpose whatsoever, and the Agents shall not be responsible or liable for any
shortage, discrepancy, damage, loss or destruction of any part of the Collateral wherever the same
may be located and regardless of the cause thereof (other than from acts of omission or commission
constituting gross negligence or willful misconduct as determined by a final judgment of a court of
competent jurisdiction). The Agents shall not, under any circumstance or in any event whatsoever,
have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Insurance
Premium Loans acquired by the Borrower (actually or beneficially through a participation) with
proceeds from the Loan or any instrument received in payment thereof or for any damage resulting
therefrom (other than acts of omission or commission constituting gross negligence or willful
misconduct as determined by a final judgment of a court of competent jurisdiction). The Agents, by
anything herein or in any assignment or otherwise, do not assume any of the obligations under any
contract or agreement assigned to any Agent and shall not be responsible in any way for the
performance by the Borrower of any of the terms and conditions thereof.



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               (i) If any Insurance Premium Loan acquired by the Borrower (actually or beneficially through a
participation) with proceeds from the Loan includes a charge for any tax payable to any
Governmental Authority, each Agent is hereby authorized (but in no event obligated) in its
discretion to pay the amount thereof to the proper taxing authority for the Borrower’s account and
to charge the Borrower therefor. The Borrower shall notify the Agents if any Insurance Premium Loan
acquired by the Borrower (actually or beneficially through a participation) with proceeds from the
Loan includes any taxes due to any such Governmental Authority and, in the absence of such notice,
the Agents shall have the right to retain the full proceeds of such Insurance Premium Loan and
shall not be liable for any taxes that may be due by reason of the sale and delivery creating such
Insurance Premium Loan.



               (j) Notwithstanding any other terms set forth in the Loan Documents, the rights and remedies
of the Agents and the Lenders herein provided, and the obligations of the Borrower set forth
herein, are cumulative of, may be exercised singly or concurrently with, and are not exclusive of,
any other rights, remedies or obligations set forth in any other Loan Document or as provided by
law.



          Section 8.02 Collateral Custodian. Upon the occurrence and during the continuance of any Default or
Event of Default, the Collateral Agent or its designee may at any time and from time to time employ
and maintain on the premises of the Borrower a custodian selected by the Collateral Agent or its
designee who shall have full authority to do all acts necessary to protect the Agents’ and the
Lenders’ interests. The Borrower hereby agrees to cooperate with any such custodian and to do
whatever the Collateral Agent or its designee may reasonably request to preserve the Collateral.
All costs and expenses incurred by the Collateral Agent or its designee by reason of the employment
of the custodian shall be the responsibility of the Borrower and charged to the Loan Account.




ARTICLE IX




EVENTS OF DEFAULT



          Section 9.01 Events of Default. If any of the following Events of Default shall occur and be
continuing:




               (a) the Borrower shall fail to pay any principal of or interest on any Loan, any Collateral
Agent Advance or any fee, indemnity or other amount payable under this Agreement or any other Loan
Document (including any fees, indemnities, or expenses payable to the Servicer and the Insurance Collateral Agent) when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) ;



               (b) any representation or warranty made or deemed made by or on behalf of any Credit Party,
any Subject Imperial Affiliate, or by any officer of the foregoing under or in connection with any
Loan Document or Transaction Document or under or in connection with any report, certificate or
other document delivered to any Agent or any Lender pursuant to any Loan Document or Transaction
Document, which representation or warranty is subject to a materiality or a Material Adverse Effect
qualification, shall have been incorrect in any respect when made or deemed made; or any
representation or warranty made or deemed



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made by or on behalf of any Credit Party, any Subject Imperial Affiliate or by any officer of the foregoing under or in connection with any Loan Document
or Transaction Document or under or in connection with any report, certificate or other document
delivered to any Agent or any Lender pursuant to any Loan Document or Transaction Document, which
representation or warranty is not subject to a materiality or a Material Adverse Effect
qualification, shall have been incorrect in any material respect when made or deemed made;




               (c) any Credit Party or any Subject Imperial Affiliate shall fail to perform or comply with
any covenant or agreement contained in paragraphs (a)(vi), (viii-xii), (xiv-xviii), (xx) and
(xxiii), (c), (d), (f), (h), (j), (o), (p), (q), (r), (s), (t), (u), (v) or (w) of Section 7.01,
Section 7.02 or ARTICLE VIII, or any Credit Party shall fail to perform or comply with any covenant
or agreement contained in the Security Agreement to which it is a party or any Guarantor Security
Agreement to which it is a party;



               (d) any Credit Party or any Subject Imperial Affiliate shall fail to perform or comply with
any term, covenant or agreement contained in Section 7.01 of this Agreement (to the extent not
otherwise provided in paragraph (c) of this Section 9.01) and such failure, if capable of being
remedied, shall remain unremedied for a period of 10 days after the earlier of the date a senior
officer of any Credit Party or any Subject Imperial Affiliate becomes aware of such failure and the
date written notice of such default shall have been given by any Agent to such Credit Party or
Subject Imperial Affiliate;



               (e) any Credit Party, or Subject Imperial Affiliate shall fail to perform or comply with any
other term, covenant or agreement contained in any Loan Document or Transaction Document to be
performed or observed by it and, except as set forth in subsections (a), (b), (b) and (d) of this
Section 9.01, such failure, if capable of being remedied, shall remain unremedied for 15 days after
the earlier of the date a senior officer of any Credit Party, or Subject Imperial Affiliate becomes
aware of such failure and the date written notice of such default shall have been given by any
Agent to such Credit Party or Subject Imperial Affiliate; provided that, notwithstanding the
foregoing, the failure of the Servicer to perform or comply with any term, covenant or agreement
contained in any Transaction Document or any Loan Document shall not constitute an Event of Default
under this Section 9.01(e) so long as within thirty (30) days of the occurrence of any such
failure, the Servicer is replaced by a replacement servicer acceptable to the Agents;
provided, that the Borrower shall use best efforts to replace the Servicer as soon as
possible after the occurrence of any such failure;



               (f) the Borrower or the Originator shall fail to pay any of its Indebtedness (excluding
Indebtedness evidenced by this Agreement) in excess of $250,000, or any payment of principal,
interest or premium thereon, when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such Indebtedness, or any
other default under any agreement or instrument relating to any such Indebtedness, or any other
event, shall occur and shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to
be due and payable, or required to be prepaid (other than by a regularly scheduled required
prepayment), redeemed, purchased or defeased or an offer to



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prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof;




               (g) any Credit Party, any Subject Imperial Affiliate (i) shall institute any proceeding or
voluntary case seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition
of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for any such Person or for any substantial part of its
property, (ii) shall be generally not paying its debts as such debts become due or shall admit in
writing its inability to pay its debts generally, (iii) shall make a general assignment for the
benefit of creditors, or (iv) shall take any action to authorize or effect any of the actions set
forth above in this subsection (g);



               (h) any proceeding shall be instituted against any Credit Party, or any Subject Imperial
Affiliate seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar
official for any such Person or for any substantial part of its property, and either such
proceeding shall remain undismissed or unstayed for a period of 30 days or any of the actions
sought in such proceeding (including, without limitation, the entry of an order for relief against
any such Person or the appointment of a receiver, trustee, custodian or other similar official for
it or for any substantial part of its property) shall occur;



               (i) any provision of any Loan Document or Transaction Document shall at any time for any
reason (other than pursuant to the express terms thereof) cease to be valid and binding on or
enforceable against any Credit Party or any Subject Imperial Affiliate intended to be a party
thereto, or the validity or enforceability thereof shall be contested by any party thereto
(excluding any Transaction Documents evidencing Insurance Premium Loans not exceeding more than 2%
of the aggregate Maturity Principal Balance of all Eligible Insurance Premium Loans of the
Borrower), or a proceeding shall be commenced by any Credit Party, the Originator or the Servicer
or any Governmental Authority having jurisdiction over any of them, seeking to establish the
invalidity or unenforceability thereof, or any Credit Party, the Originator or the Servicer shall
deny in writing that it has any liability or obligation purported to be created under any Loan
Document;



               (j) any Security Agreement, any Guarantor Security Agreement or any other security document,
after delivery thereof pursuant hereto, shall for any reason fail or cease to create a valid and
perfected and, except to the extent permitted by the terms hereof or thereof, first priority Lien
in favor of the Collateral Agent for the benefit of the Agents and the Lender on any Collateral
purported to be covered thereby;



               (k) any Cash Management Bank at which the Collection Account, the Reserve Account or the
Operating Account of the Borrower is maintained shall fail to comply with any of the terms of any
Cash Management Agreement to which such bank is a party or any securities intermediary, commodity
intermediary or other financial institution at any time in custody, control or possession of any
investment property of the Borrower shall fail to comply



74









 




with any of the terms of any investment property control agreement to which such Person is a party and such failure remains uncured for
five (5) days following delivery of written notice of such failure to such bank or securities
intermediary, commodity intermediary or other financial institution;




               (l) one or more judgments, orders or awards (or any settlement of any claim that, if breached,
could result in a judgment, order or award) for the payment of money exceeding $250,000 in the
aggregate shall be rendered against the Borrower or the Originator and remain unsatisfied and
either (i) enforcement proceedings shall have been commenced by any creditor upon any such
judgment, order, award or settlement, (ii) there shall be a period of 10 consecutive days after
entry thereof during which a stay of enforcement of any such judgment, order, award or settlement,
by reason of a pending appeal or otherwise, shall not be in effect, or (iii) at any time during
which a stay of enforcement of any such judgment, order, award or settlement, by reason of a
pending appeal or otherwise, is in effect, such judgment, order, award or settlement is not bonded
in the full amount of such judgment, order, award or settlement; provided, however,
that any such judgment, order, award or settlement shall not give rise to an Event of Default under
this subsection (1) if and for so long as (A) the amount of such judgment, order, award or
settlement is covered by a valid and binding policy of insurance between the defendant and the
insurer covering full payment thereof and (B) such insurer has been notified, and has not disputed
the claim made for payment, of the amount of such judgment, order, award or settlement;



               (m) any Subject Imperial Affiliate is enjoined, restrained or in any way prevented by the
order of any court or any Governmental Authority from conducting all or any material part of its
business for more than fifteen (15) days;



               (n) any failure of the security interests created by the Security Agreement and Guarantor
Security Agreement to constitute legal, valid and enforceable first priority security interests in
the Collateral, any material loss or theft of any Collateral, whether or not insured, or any act of
God or public enemy, or other casualty which causes, for more than fifteen (15) consecutive days,
the cessation or substantial curtailment of revenue producing activities of the Borrower or the
Originator, if any such event or circumstance could reasonably be expected to have a Material
Adverse Effect;



               (o) any cessation of a substantial part of the business of any Subject Imperial Affiliate for
a period which materially and adversely affects the ability of such Person to continue its business
on a profitable basis;



               (p) the loss, suspension or revocation of, or failure to renew, any license or permit now held
or hereafter acquired by the any Subject Imperial Affiliate, if such loss, suspension, revocation
or failure to renew could reasonably be expected to have a Material Adverse Effect;



               (q) the indictment, or the threatened indictment of any Credit Party or any Subject Imperial
Affiliate under any criminal statute, or commencement or threatened commencement of criminal or
civil proceedings against any Credit Party or any Subject Imperial Affiliate pursuant to which
statute or proceedings the penalties or remedies sought or available



75









 




include forfeiture to any Governmental Authority of any material portion of the property of such Person;




               (r) a Change of Control shall have occurred;



               (s) the Collateral Value Policy or, following the occurrence of a Credit Event, the Contingent
Collateral Value Policy, shall cease to be effective with respect to any portion of the Insurance
Premium Loans (or interests therein) acquired by the Borrower with the proceeds of any Term Loan
hereunder or cease to be the legally valid, binding and enforceable obligation of the Collateral
Value Insurer or the Contingent Collateral Value Insurer or the Collateral Value Insurer or the
Contingent Collateral Value Insurer shall contest, defend against or otherwise dispute, in any
manner, such effectiveness, validity, binding nature or enforceability, or otherwise assert any
defense to a claim made thereunder (including without limitation any defense, exception or
exclusion to payment permitted by the terms of such Collateral Value Policy or the Contingent
Collateral Value Policy);



               (t) any event or circumstance shall have occurred that may reasonably be expected to cause any
Subject Imperial Affiliate to suffer materially adverse regulatory consequences (including as may
be applicable to its insurance premium finance, life settlement or related business);



               (u) any event or circumstance under Section V.A or Section V.B of the Collateral Value Policy
shall have occurred or the Borrower, the Originator or any of their Affiliates commits a Prohibited
Act (as defined in the Collateral Value Policy); or



               (v) an event or development occurs which could reasonably be expected to have a Material
Adverse Effect (including, without limitation, any change or proposed change in any relevant law,
rule or regulation, in any Applicable Non-Licensed State or Applicable Licensed State or otherwise,
which (i) makes the financing, origination or transfer of any Insurance Premium Loan or life
insurance policy in accordance with the transactions contemplated by the Loan Documents and/or the
Transaction Documents unlawful or economically or procedurally disadvantageous or (ii) limits,
alters or otherwise compromises, could be reasonably expected to compromise, the insurable interest
in the related Life Insurance Policy, as contemplated by the Loan Documents, the Transaction Documents and the Loan Document
Package);



               (w) any default under the Imperial Limited Guaranty; or



               (x) Borrower or the Servicer shall fail to submit a properly completed and duly executed Proof
of Loss (as defined in the Collateral Value Policy) to the insurer under the Collateral Value
Policy or, following the occurrence of a Credit Event, the Contingent Collateral Value Policy,
prior to the date by which a Proof of Loss must be submitted to the insurer to avoid a loss being
excluded from coverage under such policy.



          then, and in any such event, the Collateral Agent may, and shall at the request of the
Required Lenders, by notice to the Borrower, (i) terminate or reduce all Commitments, whereupon all
Commitments shall immediately be so terminated or reduced, (ii) declare all or any portion of the
Loans then outstanding to be due and payable, whereupon all or such portion





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of the aggregate principal of all Loans, all accrued and unpaid interest thereon, all fees and all other amounts
payable under this Agreement and the other Loan Documents shall become due and payable immediately
together with the payment of the Applicable Prepayment Premium (if any), without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly waived by the
Borrower and (iii) exercise any and all of its other rights and remedies under applicable law,
hereunder and under the other Loan Documents; provided, however, that upon the
occurrence of any Event of Default described in subsection (g) or (h) of this Section 9.01 with
respect to the Borrower, without any notice to the Borrower or any other Person or any act by any
Agent or any Lender, all Commitments shall automatically terminate and all Loans then outstanding,
together with all accrued and unpaid interest thereon, all fees and all other amounts due under
this Agreement and the other Loan Documents shall become due and payable automatically and
immediately, without presentment, demand, protest or notice of any kind, all of which are expressly
waived by the Borrower.




ARTICLE X




AGENTS



          Section 10.01 Appointment. The Lender (and each subsequent maker of any Loan by its making thereof)
hereby irrevocably appoints and authorizes the Administrative Agent and the Collateral Agent to
perform the duties of each such Agent as set forth in this Agreement including: (i) to receive on
behalf of the Lender any payment of principal of or interest on the Loans outstanding hereunder and
all other amounts accrued hereunder for the account of the Lender and paid to such Agent, and,
subject to Section 2.02 of this Agreement, to distribute promptly to the Lender (and if at the time
there is more than one Lender hereunder, to each Lender its Pro Rata Share) of all payments so
received; (ii) to distribute to the Lender copies of all material notices and agreements received
by such Agent and not required to be delivered to the Lender pursuant to the terms of this
Agreement, provided that the Agents shall not have any liability to the Lender for any Agent’s
inadvertent failure to distribute any such notices or agreements to the Lender; (iii) to maintain,
in accordance with its customary business practices, ledgers and records reflecting the status of
the Obligations, the Term Loans, and related matters and to maintain, in accordance with its
customary business practices, ledgers and records reflecting the status of the Collateral and related matters; (iv) to execute or file
any and all financing or similar statements or notices, amendments, renewals, supplements,
documents, instruments, proofs of claim, notices and other written agreements with respect to this
Agreement or any other Loan Document; (v) to make the Term Loans and Collateral Agent Advances, for
such Agent or on behalf of the Lender as provided in this Agreement or any other Loan Document;
(vi) to perform, exercise, and enforce any and all other rights and remedies of the Lender with
respect to the Borrower, the Obligations, or otherwise related to any of same to the extent
reasonably incidental to the exercise by such Agent of the rights and remedies specifically
authorized to be exercised by such Agent by the terms of this Agreement or any other Loan Document;
(vii) to incur and pay such fees necessary or appropriate for the performance and fulfillment of
its functions and powers pursuant to this Agreement or any other Loan Document; and (viii) subject
to Section 10.03 of this Agreement, to take such action as such Agent deems appropriate on its
behalf to administer the Loans and the Loan Documents and to exercise such other powers delegated
to such Agent by the terms hereof or the other Loan Documents (including, without limitation, the
power to give or to refuse to give notices, waivers,




77









 







consents, approvals and instructions and the power to make or to refuse to make determinations and calculations) together with such powers as
are reasonably incidental thereto to carry out the purposes hereof and thereof. As to any matters
not expressly provided for by this Agreement and the other Loan Documents (including, without
limitation, enforcement or collection of the Loans), the Agents shall not be required to exercise
any discretion or take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the instructions of the
Lender (or if at the time there is more than one Lender hereunder, the Required Lenders), and such
instructions of the Lender (or the Required Lenders) shall be binding upon all Lenders and all
makers of Loans.




          Section 10.02 Nature of Duties. The Agents shall have no duties or responsibilities except those
expressly set forth in this Agreement or in the other Loan Documents. The duties of the Agents
shall be mechanical and administrative in nature. The Agents shall not have by reason of this
Agreement or any other Loan Document a fiduciary relationship in respect of the Lender. Nothing in
this Agreement or any other Loan Document, express or implied, is intended to or shall be construed
to impose upon the Agents any obligations in respect of this Agreement or any other Loan Document
except as expressly set forth herein or therein. The Lender shall make its own independent
investigation of the financial condition and affairs of the Borrower in connection with the making
and the continuance of the Loans hereunder and shall make its own appraisal of the creditworthiness
of the Borrower and the value of the Collateral, and the Agents shall have no duty or
responsibility, either initially or on a continuing basis, to provide the Lender with any credit or
other information with respect thereto, whether coming into their possession before the initial
Loan hereunder or at any time or times thereafter, provided that, upon the reasonable request of a
Lender, each Agent shall provide to the Lender any documents or reports delivered to such Agent by
the Borrower pursuant to the terms of this Agreement or any other Loan Document. If any Agent seeks
the consent or approval of the Lender (or the Required Lenders, as applicable) to the taking or
refraining from taking any action hereunder, such Agent shall send notice thereof to the Lender (or
all Lenders, as applicable). Each Agent shall promptly notify the Lender any time that the Lender
has instructed such Agent to act or refrain from acting pursuant hereto.




          Section 10.03 Rights, Exculpation, Etc. The Agents and their directors, officers, agents or
employees shall not be liable for any action taken or omitted to be taken by them under or in
connection with this Agreement or the other Loan Documents, except for their own gross negligence
or willful misconduct as determined by a final judgment of a court of competent jurisdiction.
Without limiting the generality of the foregoing, the Agents (i) may treat the payee of any Term
Loan as the owner thereof until the Collateral Agent receives written notice of the assignment or
transfer thereof, pursuant to Section 12.07 hereof, signed by such payee and in form satisfactory
to the Collateral Agent; (ii) may consult with legal counsel (including, without limitation,
counsel to any Agent or counsel to the Borrower), independent public accountants, and other experts
selected by any of them and shall not be liable for any action taken or omitted to be taken in good
faith by any of them in accordance with the advice of such counsel or experts; (iii) make no
warranty or representation to any Lender and shall not be responsible to any Lender for any
statements, certificates, warranties or representations made in or in connection with this
Agreement or the other Loan Documents; (iv) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or conditions of this Agreement or
the other Loan Documents on the part of any Person, the





78









 







existence or possible existence of any Default or Event of Default, or to inspect the Collateral or other property (including, without
limitation, the books and records) of any Person; (v) shall not be responsible to the Lender for
the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or the other Loan Documents or any other instrument or document furnished pursuant hereto
or thereto; and (vi) shall not be deemed to have made any representation or warranty regarding the
existence, value or collectibility of the Collateral, the existence, priority or perfection of the
Collateral Agent’s Lien thereon, or any certificate prepared by the Borrower in connection
therewith, nor shall the Agents be responsible or liable to the Lender for any failure to monitor
or maintain any portion of the Collateral. The Agents shall not be liable for any apportionment or
distribution of payments made in good faith pursuant to Section 4.04, and if any such apportionment
or distribution is subsequently determined to have been made in error the sole recourse of any
Lender to whom payment was due but not made, shall be to recover from other Lenders any payment in
excess of the amount which they are determined to be entitled. The Agents may at any time request
instructions from the Lender with respect to any actions or approvals which by the terms of this
Agreement or of any of the other Loan Documents the Agents are permitted or required to take or to
grant, and if such instructions are promptly requested, the Agents shall be absolutely entitled to
refrain from taking any action or to withhold any approval under any of the Loan Documents until
they shall have received such instructions from the Lender (or if at such time there is more than
one Lender hereunder, the Required Lenders). Without limiting the foregoing, no Lender shall have
any right of action whatsoever against any Agent as a result of such Agent acting or refraining
from acting under this Agreement or any of the other Loan Documents in accordance with the
instructions of the Lender (or if at such time there is more than one Lender hereunder, the
Required Lenders).




          Section 10.04 Reliance. Each Agent shall be entitled to rely upon any written notices, statements,
certificates, orders or other documents or any telephone message believed by it in good faith to be
genuine and correct and to have been signed, sent or made by the proper Person, and with respect to
all matters pertaining to this Agreement or any of the other Loan Documents and its duties
hereunder or thereunder, upon advice of counsel selected by it.




          Section 10.05 Indemnification. To the extent that any Agent is not reimbursed and indemnified by the
Borrower, the Lender will reimburse and indemnify such Agent from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses,
advances or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against such Agent in any way relating to or arising out of this Agreement or any of the
other Loan Documents or any action taken or omitted by such Agent under this Agreement or any of
the other Loan Documents, (in proportion to each Lender’s Pro Rata Share if at such time there is
more than one Lender hereunder), including, without limitation, advances and disbursements made
pursuant to Section 10.08; provided, however, that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, advances or disbursements for which there has been a final judicial
determination that such liability resulted from such Agent’s gross negligence or willful
misconduct. The obligation of the Lender under this Section 10.05 shall survive the payment in full
of the Loans and the termination of this Agreement.




          Section 10.06 Agents Individually. Each Agent and its Affiliates may accept deposits from, lend
money to, and generally engage in any kind of banking, trust or other





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business with the Borrower as if it were not acting as an Agent pursuant hereto without any duty to account to the Lender.




          Section 10.07 Successor Agent. (a) Each Agent may resign from the performance of all its functions
and duties hereunder and under the other Loan Documents at any time by giving at least thirty (30)
Business Days’ prior written notice to the Borrower and the Lender. Such resignation shall take
effect upon the acceptance by a successor Agent of appointment pursuant to clauses (b) and (c)
below or as otherwise provided below.




               (b) Upon any such notice of resignation, the Lender (or if at such time there is more than one
Lender hereunder, the Required Lenders) shall appoint a successor Agent. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed
to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations under this Agreement and the
other Loan Documents. After any Agent’s resignation hereunder as an Agent, the provisions of this
ARTICLE X shall inure to its benefit as to any actions taken or omitted to be taken by it while it
was an Agent under this Agreement and the other Loan Documents.



               (c) If a successor Agent shall not have been so appointed within said thirty (30) Business Day
period, the retiring Agent, with the consent of the other Agent shall then appoint a successor
Agent who shall serve as an Agent until such time, if any, as the Lender (or if at such time there
are more than one Lender party hereto, Required Lenders) with the consent of the other Agent,
appoint a successor Agent as provided above.



          Section 10.08 Collateral Matters.




               (a) The Collateral Agent may from time to time make such disbursements and advances
(“Collateral Agent Advances”) which the Collateral Agent, in its sole discretion, deems
necessary or desirable to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion thereof, to enhance the likelihood or maximize the
amount of repayment by the Borrower of the Loans and other Obligations or to pay any other amount
chargeable to the Borrower pursuant to the terms of this Agreement, including, without limitation,
costs, fees and expenses as described in Section 12.04. Without limiting the foregoing, the
Collateral Agent shall be permitted at anytime to make Collateral Agent Advances to pay insurance
premiums due under the Life Insurance Policies. The Collateral Agent Advances shall be repayable on
demand and be secured by the Collateral. The Collateral Agent Advances shall constitute Obligations
hereunder which may be charged to the Loan Account in accordance with Section 4.02. The Collateral
Agent shall notify the Lender and the Borrower in writing of each such Collateral Agent Advance,
which notice shall include a description of the purpose of such Collateral Agent Advance. Without
limitation to its obligations pursuant to Section 10.05, the Lender agrees that it shall make
available to the Collateral Agent, upon the Collateral Agent’s demand, in Dollars in immediately
available funds, the amount of each such Collateral Agent Advance (or if there is more than one
Lender hereunder, such Lender’s Pro Rata Share). If such funds are not made available to the
Collateral Agent by the Lender, the Collateral Agent shall be entitled to recover such funds on
demand from the Lender, together with interest thereon for each day from the date such payment was
due until the date such



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amount is paid to the Collateral Agent, at the Federal Funds Rate for three
Business Days and thereafter at the Reference Rate.




               (b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its
discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral upon
termination of the Total Commitment and payment and satisfaction of all Loans, Reimbursement
Obligations, Letter of Credit Obligations, and all other Obligations in accordance with the terms
hereof; or constituting property being sold or disposed of in the ordinary course of the Borrower’s
business or otherwise in compliance with the terms of this Agreement and the other Loan Documents;
or constituting property in which the Borrower owned no interest at the time the Lien was granted
or at any time thereafter; or if approved, authorized or ratified in writing by the Lender. Upon
request by the Collateral Agent at any time, the Lender will confirm in writing the Collateral
Agent’s authority to release particular types or items of Collateral pursuant to this Section
10.08(b).



               (c) Without in any manner limiting the Collateral Agent’s authority to act without any
specific or further authorization or consent by the Lender (as set forth in Section 10.08(b)), the
Lender agrees to confirm in writing, upon request by the Collateral Agent, the authority to release
Collateral conferred upon the Collateral Agent under Section 10.08(b). Upon receipt by the
Collateral Agent of confirmation from the Lender of its authority to release any particular item or
types of Collateral, and upon prior written request by the Borrower, the Collateral Agent shall
(and is hereby irrevocably authorized by the Lender to) execute such documents as may be necessary
to evidence the release of the Liens granted to the Collateral Agent for the benefit of the Agents
and the Lender upon such Collateral; provided, however, that (i) the Collateral
Agent shall not be required to execute any such document on terms which, in the Collateral Agent’s
opinion, would expose the Collateral Agent to liability or create any obligations or entail any
consequence other than the release of such Liens without recourse or warranty, and (ii) such
release shall not in any manner discharge, affect or impair the Obligations or any Lien upon (or
obligations of the Borrower in respect of) all interests in the Collateral retained by the
Borrower.



               (d) The Collateral Agent shall have no obligation whatsoever to any Lender to assure that the
Collateral exists or is owned by the Borrower or is cared for, protected or insured or has been
encumbered or that the Lien granted to the Collateral Agent pursuant to this Agreement or any other
Loan Document has been properly or sufficiently or lawfully created, perfected, protected or
enforced or is entitled to any particular priority, or to exercise at all or in any particular
manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the
rights, authorities and powers granted or available to the Collateral Agent in this Section 10.08
or in any other Loan Document.



          Section 10.09 Agency for Perfection. Each Agent and the Lender hereby appoints each other Agent as
agent and bailee for the purpose of perfecting the security interests in and liens upon the
Collateral in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be
perfected only by possession or control (or where the security interest of a secured party with
possession or control has priority over the security interest of another secured party) and each
Agent hereby acknowledges that it holds possession of or otherwise controls any such Collateral for
the benefit of the Agents and the Lender as secured party.





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Should the Administrative Agent or any Lender obtain possession or control of any such Collateral, the Administrative Agent or such Lender
shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request
therefor shall deliver such Collateral to the Collateral Agent or in accordance with the Collateral
Agent’s instructions. In addition, the Collateral Agent shall also have the power and authority
hereunder to appoint such other sub-agents as may be necessary or required under applicable state
law or otherwise to perform its duties and enforce its rights with respect to the Collateral and
under the Loan Documents. The Borrower by its execution and delivery of this Agreement hereby
consents to the foregoing.




          Section 10.10 No Reliance on any Agent’s Customer Identification Program. The Lender acknowledges
and agrees that neither the Lender, nor any of its Affiliates, participants or assignees, may rely
on any Agent to carry out the Lender’s, Affiliate’s, participant’s or assignee’s customer
identification program, or other obligations required or imposed under or pursuant to the USA
PATRIOT Act or the regulations thereunder, including the regulations contained in 31 CFR 103.121
(as hereafter amended or replaced, the “CIP Regulations”), or any other Anti-Terrorism Law,
including any programs involving any of the following items relating to or in connection with the
Borrower, their Affiliates or their agents, the Loan Documents or the transactions hereunder or
contemplated hereby: (1) any identity verification procedures, (2) any recordkeeping, (3)
comparisons with government lists, (4) customer notices or (5) other procedures required under the
CIP Regulations or such other laws. The Lender, Affiliate, participant or assignee subject to
Section 326 of the USA PATRIOT Act will perform the measures necessary to satisfy its own
responsibilities under the CIP Regulations.




ARTICLE XI




SERVICER TERMINATION EVENTS



          Section 11.01 Servicer Termination Event. If a Servicer Termination Event has occurred and is
continuing, the Agents, by notice in writing to the Servicer and the Borrower, may terminate the
Servicing Agreement pursuant to the terms set forth in the Servicing Agreement. On and after the
effective time of any notice of termination, a replacement servicer approved in writing by the Agents shall be the successor Servicer, as more fully set forth in
a replacement servicing agreement in form and substance satisfactory to the Agents.




ARTICLE XII




MISCELLANEOUS



          Section 12.01 Notices, Etc. All notices and other communications provided for hereunder shall be in
writing and shall be mailed (certified mail, postage prepaid and return receipt requested),
telecopied or delivered by hand, Federal Express or other reputable overnight courier, if to the
Borrower, at the following address:





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Imperial PFC Financing II, LLC

191 Peachtree Street, NE

Suite 3300

Atlanta, Georgia 30303

Attention: General Counsel

Telephone: 404-736-3630

Telecopier: 404-736-3620



with a copy to:



Folely & Lardner, LLP

One Independent Drive, Suite 1300

Jacksonville, Florida 32202

Attention: Robert S. Bernstein, Esq.

Telephone: 904-359-2000

Telecopier: 904-359-8700



if to the Administrative Agent, to it at the following address:



EBC Asset Management, Inc.

One Huntington Quadrangle, Suite 4C18

Melville, New York 11747

Attention: Eileen Moore

Telephone: 631-770-0650

Telecopier: 631-770-0641



if to the Collateral Agent, to it at the following address:



EBC Asset Management, Inc.

One Huntington Quadrangle, Suite 4C18

Melville, New York 11747

Attention: Eileen Moore

Telephone: 631-770-0650

Telecopier: 631-770-0641





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in each case, with a copy to:



Graubard Miller

The Chrysler Building

405 Lexington Avenue

New York, NY 10174-1901

Attention: David A. Miller, Esq.

Telephone: 212-818-8800

Telecopier: 212-818-8881



or, as to each party, at such other address as shall be designated by such party in a written
notice to the other parties complying as to delivery with the terms of this Section 12.01. All such
notices and other communications shall be effective, (i) if mailed (certified mail, postage prepaid
and return receipt requested), when received or 3 days after deposited in the mails, whichever
occurs first, (ii) if telecopied, when transmitted and confirmation received, or (iii) if delivered
by hand, Federal Express or other reputable overnight courier, upon delivery, except that notices
to any Agent pursuant to ARTICLE II shall not be effective until received by such Agent.




          Section 12.02 Amendments, Etc. (a) No amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Borrower therefrom, shall in any event
be effective unless the same shall be in writing and signed by the Lender (or in the event at the
time there is more than one Lender hereunder, the Required Lenders) or by the Collateral Agent with
the consent of the Lender (or in the event at the time there is more than one Lender hereunder, the
Required Lenders), and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given, provided, however, that no amendment,
waiver or consent shall (i) increase the Commitment of any Lender, reduce the principal of, or
interest on, the Term Loans payable to any Lender, reduce the amount of any fee payable for the
account of the Lender, or postpone or extend any scheduled date fixed for any payment of principal
of, or interest or fees on, the Term Loans payable to any Lender, in each case without the written
consent of any Lender affected thereby, (ii) increase the Total Term Loan Commitment without the
written consent of each Lender, (iii) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Term Loans that is required for the Lenders (if at such time there
is more than one Lender hereunder) or any of them to take any action hereunder without the written
consent of each Lender, (iv) amend the definition of “Required Lenders” or “Pro Rata Share” without
the written consent of each Lender, (v) release all or a substantial portion of the Collateral
(except as otherwise provided in this Agreement and the other Loan Documents), subordinate any Lien
granted in favor of the Collateral Agent for the benefit of the Agents and the Lenders, or release
the Borrower or any Guarantor without the written consent of each Lender, (vi) amend, modify or
waive Section 4.04 or this Section 12.02 of this Agreement without the written consent of each
Lender then party hereto, or (vii) amend the definition of “Borrowing Base”, “Borrowing Base
Deficit”, “Collateral Value Policy”, “Contingent Collateral Value Policy”, “Collateral Value
Insurer”, “Contingent Collateral Value Insurer”, “Collections”, “Coverage Certificate”, “Covered
Loan Amount” or “Eligible Insurance Premium Loan”, in each case, without the written consent of
each Lender then party hereto. Notwithstanding the foregoing, no





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amendment, waiver or consent shall, unless in writing and signed by an Agent, affect the
rights or duties of such Agent under this Agreement or the other Loan Documents. Notwithstanding
the foregoing, the parties hereto hereby agree that any amendment, modification or waiver of, or
consent with respect to the definitions of “Collateral Value Insurer”, “Collateral Value Policy”,
“Collections”, “Coverage Certificate”, “Person” and “Salvage Collections” in Section 1.01, Section
2.05(e), Section 12.19 and the last three sentences in this Section 12.02(a) shall require the
written consent of the Collateral Value Insurer (prior to the occurrence of a Credit Event or the
written consent of the Contingent Collateral Value Insurer (following the occurrence of a Credit
Event) to be effective. In all events, copies of any amendments to this Agreement, any other Loan
Document or any Transaction Document shall be promptly provided by the Borrower to the Collateral
Value Insurer following execution thereof. Each of the parties hereto agrees that the Collateral
Value Insurer (prior to the occurrence of a Credit Event) or the Contingent Collateral Value
Insurer (following the occurrence of a Credit Event) is a third party beneficiary solely with
respect to Section 2.05(e), Section 12.19 and the last three sentences in Section 12.02(a) of this
Agreement.




               (b) In the event there is more than one Lender, if any action to be taken by the Lenders
requires the unanimous consent, authorization, or agreement of all of the Lenders, and a Lender
(the “Holdout Lender”) fails to give its consent, authorization, or agreement, then the
Collateral Agent, upon at least 5 Business Days prior irrevocable notice to the Holdout Lender, may
permanently replace the Holdout Lender with one or more substitute Lenders (each, a
“Replacement Lender”), and the Holdout Lender shall have no right to refuse to be replaced
hereunder. Such notice to replace the Holdout Lender shall specify an effective date for such
replacement, which date shall not be later than 15 Business Days after the date such notice is
given. Prior to the effective date of such replacement, the Holdout Lender and each Replacement
Lender shall execute and deliver an Assignment and Acceptance, subject only to the Holdout Lender
being repaid its share of the outstanding Obligations without any premium or penalty of any kind
whatsoever. If the Holdout Lender shall refuse or fail to execute and deliver any such Assignment
and Acceptance prior to the effective date of such replacement, the Holdout Lender shall be deemed
to have executed and delivered such Assignment and Acceptance. The replacement of any Holdout
Lender shall be made in accordance with the terms of Section 12.07(b). Until such time as the
Replacement Lenders shall have acquired all of the Obligations, the Commitments, and the other
rights and obligations of the Holdout Lender hereunder and under the other Loan Documents, the
Holdout Lender shall remain obligated to make its Pro Rata Share of Loans.



          Section 12.03 No Waiver; Remedies, Etc. No failure on the part of any Agent or the Lender to
exercise, and no delay in exercising, any right hereunder or under any other Loan Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any right under any Loan
Document preclude any other or further exercise thereof or the exercise of any other right. The
rights and remedies of the Agents and the Lender provided herein and in the other Loan Documents
are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by
law. The rights of the Agents and the Lender under any Loan Document against any party thereto are
not conditional or contingent on any attempt by the Agents and the Lender to exercise any of their
rights under any other Loan Document against such party or against any other Person.





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          Section 12.04 Expenses; Taxes; Attorneys’ Fees. The Borrower will pay on demand, all costs and
expenses incurred by or on behalf of each Agent (and, in the case of clauses (b) through (m) below,
each Lender at such time party hereto), regardless of whether the transactions contemplated hereby
are consummated, including, without limitation, reasonable fees, costs, client charges and expenses
of counsel for each Agent (and, in the case of clauses (b) through (m) below, each Lender),
accounting, due diligence, periodic field audits, physical counts, valuations, investigations,
searches and filings, monitoring of assets, appraisals of Collateral and title searches,
miscellaneous disbursements, examination, travel, lodging and meals, arising from or relating to:
(a) the negotiation, preparation, execution, delivery, performance and administration of this
Agreement and the other Loan Documents (including, without limitation, the preparation of any
additional Loan Documents pursuant to Section 7.01(b) or the review of any of the agreements,
instruments and documents referred to in Section 7.01(0), (b) any requested amendments, waivers or
consents to this Agreement or the other Loan Documents whether or not such documents become
effective or are given, (c) the preservation and protection of the Agents’ or any of the Lenders’
rights under this Agreement or the other Loan Documents, (d) the defense of any claim or action
asserted or brought against any Agent or any Lender by any Person that arises from or relates to
this Agreement, any other Loan Document, the Agents’ or the Lenders’ claims against the Borrower,
or any and all matters in connection therewith, (e) the commencement or defense of, or intervention
in, any court proceeding arising from or related to this Agreement or any other Loan Document, (f)
the filing of any petition, complaint, answer, motion or other pleading by any Agent or any Lender,
or the taking of any action in respect of the Collateral or other security, in connection with this
Agreement or any other Loan Document, (g) the protection, collection, lease, sale, taking
possession of or liquidation of, any Collateral or other security in connection with this Agreement
or any other Loan Document, (h) any attempt to enforce any Lien or security interest in any
Collateral or other security in connection with this Agreement or any other Loan Document, (i) any
attempt to collect from the Borrower, or (i) the receipt by any Agent or any Lender of any advice
from professionals with respect to any of the foregoing. Without limitation of the foregoing or any
other provision of any Loan Document: (x) the Borrower agrees to pay all stamp, document, transfer,
recording or filing taxes or fees and similar impositions now or hereafter determined by any Agent
or any Lender to be payable in connection with this Agreement or any other Loan Document, and the
Borrower agrees to save each Agent and each Lender harmless from and against any and all present or
future claims, liabilities or losses with respect to or resulting from any omission to pay or delay
in paying any such taxes, fees or impositions, (y) the Borrower agrees to pay all broker fees that
may become due in connection with the transactions contemplated by this Agreement and the other
Loan Documents, and (z) if the Borrower fails to perform any covenant or agreement contained herein
or in any other Loan Document, any Agent may itself perform or cause performance of such covenant
or agreement, and the expenses of such Agent incurred in connection therewith shall be reimbursed
on demand by the Borrower.




          Section 12.05 Right of Set-off. Upon the occurrence and during the continuance of any Event of
Default, any Agent or any Lender may, and is hereby authorized to, at any time and from time to
time, without notice to the Borrower (any such notice being expressly waived by the Borrower) and
to the fullest extent permitted by law, set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other Indebtedness at any time owing by
such Agent or such Lender to or for the credit or the account of the





86









 







Borrower against any and all obligations of the Borrower either now or hereafter existing
under any Loan Document, irrespective of whether or not such Agent or such Lender shall have made
any demand hereunder or thereunder and although such obligations may be contingent or unmatured.
Each Agent and each Lender agrees to notify the Borrower promptly after any such set-off and
application made by such Agent or such Lender provided that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of the Agents and the Lenders
under this Section 12.05 are in addition to the other rights and remedies (including other rights
of set-off) which the Agents and the Lenders may have under this Agreement or any other Loan
Documents of law or otherwise.




          Section 12.06 Severability. Any provision of this Agreement which 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.




          Section 12.07 Assignments and Participations.




               (a) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit
of the Borrower and each Agent and the Lender and its respective successors and assigns;
provided, however, that Borrower may not assign or transfer any of its rights
hereunder or under the other Loan Documents without the prior written consent of each Lender then
party hereto and any such assignment without such Lenders’ prior written consent shall be null and
void.



               (b) Any Lender may with the written consent of the Collateral Agent, assign to one or more
other lenders or other entities all or a portion of its rights and obligations under this Agreement
with respect to all or a portion of its Term Loan Commitment and any Term Loan made by it, and (ii)
the parties to each such assignment shall execute and deliver to the Collateral Agent, for its
acceptance, an Assignment and Acceptance, together with any promissory note subject to such
assignment and such parties shall deliver to the Collateral Agent, for the benefit of the
Collateral Agent, a processing and recordation fee of $3,000 (except the payment of such fee shall
not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such
Lender or a Related Fund of such Lender) and (iii) no written consent of the Collateral Agent shall
be required if such assignment is in connection with any merger, consolidation, sale, transfer, or
other disposition of all or any substantial portion of the business or loan portfolio of such
Lender. Upon such execution, delivery and acceptance, from and after the effective date specified
in each Assignment and Acceptance and recordation on the Register, which effective date shall be at
least 3 Business Days after the delivery thereof to the Collateral Agent (or such shorter period as
shall be agreed to by the Collateral Agent and the parties to such assignment), (A) the assignee
thereunder shall become a “Lender” hereunder and, in addition to the rights and obligations
hereunder held by it immediately prior to such effective date, have the rights and obligations
hereunder that have been assigned to it pursuant to such Assignment and Acceptance and (B) the
assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released
from its obligations under this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an



87









 




assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be
a party hereto).




               (c) By executing and delivering an Assignment and Acceptance, the assigning Lender and the
assignee thereunder confirm to and agree with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance, the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any statements, warranties
or representations made in or in connection with this Agreement or any other Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement
or any other Loan Document furnished pursuant hereto; (ii) the assigning Lender 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 its obligations under this
Agreement or any other Loan Document furnished pursuant hereto; (iii) such assignee confirms that
it has received a copy of this Agreement and the other Loan Documents, together with such other
documents and information it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the assigning Lender, any Agent or any 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 this Agreement and the other Loan Documents; (v) such assignee
appoints and authorizes the Agents to take such action as agents on its behalf and to exercise such
powers under this Agreement and the other Loan Documents as are delegated to the Agents by the
terms hereof and thereof, together with such powers as are reasonably incidental hereto and
thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of
the obligations which by the terms of this Agreement and the other Loan Documents are required to
be performed by it as a Lender.



               (d) The Administrative Agent shall, acting solely for this purpose as an agent of the
Borrower, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and
Acceptance delivered to and accepted by it and a register (the “Register”) for the
recordation of the names and addresses of the Lenders and the Commitments of, and the principal
amount of the Loans (and stated interest thereon) (the “Registered Loans”). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agents and the Lenders may treat each Person whose name is recorded in the Register
as a Lender hereunder for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower and any Lender at any reasonable time and from time to time upon
reasonable prior notice.



               (e) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and
subject to any consent required from the Collateral Agent pursuant to Section 12.07(b) (which
consent of the Collateral Agent must be evidenced by the Collateral Agent’s execution of an
acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such
assignment and record the information contained therein in the Register.



               (f) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned
or sold in whole or in part only by registration of such assignment or sale



88









 




on the Register (and each registered note shall expressly so provide). Any assignment or sale
of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may
be effected only by registration of such assignment or sale on the Register, together with the
surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a
written instrument of assignment or sale duly executed by) the holder of such registered note,
whereupon, at the request of the designated assignee(s) or transferee(s), one or more new
registered notes in the same aggregate principal amount shall be issued to the designated
assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered
Loan (and the registered note, if any, evidencing the same), the Agents shall treat the Person in
whose name such Registered Loan (and the registered note, if any, evidencing the same) is
registered on the Register as the owner thereof for the purpose of receiving all payments thereon,
notwithstanding notice to the contrary.




               (g) In the event that any Lender sells participations in a Registered Loan, such Lender shall,
acting for this purpose as an agent on behalf of the Borrower, maintain, or cause to be maintained,
a register on which it enters the name of all participants in the Registered Loans held by it and
the principal amount (and stated interest thereon) of the portion of the Registered Loan that is
the subject of the participation (the “Participant Register”). A Registered Loan (and the
registered note, if any, evidencing the same) may be participated in whole or in part only by
registration of such participation on the Participant Register (and each registered note shall
expressly so provide). Any participation of such Registered Loan (and the registered note, if any,
evidencing the same) may be effected only by the registration of such participation on the
Participant Register. The Participant Register shall be available for inspection by the Borrower
and any Lender at any reasonable time and from time to time upon reasonable prior notice.



               (h) Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such
Registered Loan shall comply with Section 2.08(d).



               (i) Any Lender may sell participations to one or more banks or other entities in or to all or
a portion of its rights and obligations under this Agreement and the other Loan Documents
(including, without limitation, all or a portion of its Commitments, the Loans made by it);
provided, that (i) such Lender’s obligations under this Agreement (including
without limitation, its Commitment hereunder) and the other Loan Documents shall remain unchanged;
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations, and the Borrower and the Agents and any other Lenders shall continue to deal
solely and directly with such Lender in connection with the Lender’s rights and obligations under
this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to
require such Lender to take or omit to take any action hereunder except (A) action directly
effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B)
action directly effecting an extension of the due dates or a decrease in the rate of interest
payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a
release of all or a substantial portion of the Collateral or the Borrower (except as set forth in
Section 10.08 of this Agreement or any other Loan Document). The Borrower agrees that each
participant shall be entitled to the benefits of Section 2.08 and Section 4.05 of this Agreement
with respect to its participation in any portion of the Total Term Loan Commitment and the Loans as
if it was a Lender.



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          Section 12.08 Counterparts. This Agreement 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 Agreement by telefacsimile or electronic mail shall be equally as
effective as delivery of an original executed counterpart of this Agreement. Any party delivering
an executed counterpart of this Agreement by telefacsimile or electronic mail also shall deliver an
original executed counterpart of this Agreement but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of this Agreement.
The foregoing shall apply to each other Loan Document mutatis mutandis.




          Section 12.09 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED
TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT) SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK.




          Section 12.10 CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK IN THE COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY
IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE AFORESAID COURTS. THE BORROWER HEREBY IRREVOCABLY APPOINTS THE SECRETARY OF STATE OF THE STATE
OF NEW YORK AS ITS AGENT FOR SERVICE OF PROCESS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING AND
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS AND
IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS FOR NOTICES AS SET FORTH IN SECTION 12.01 AND TO
THE SECRETARY OF STATE OF THE STATE OF NEW YORK, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS
AFTER SUCH MAILING. THE BORROWER AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENTS AND THE LENDERS
TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT





90









 







THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR
FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT
IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS.




          Section 12.11 WAIVER OF JURY TRIAL, ETC. THE BORROWER, EACH AGENT AND THE LENDER HEREBY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT,
DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION
THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT,
AND AGREES THAT ANY SUCH ACTION, PROCEEDINGS OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY. THE BORROWER CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
AGENT OR THE LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY AGENT OR ANY LENDER WOULD
NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS.
THE BORROWER HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS AND
THE LENDER ENTERING INTO THIS AGREEMENT.




          Section 12.12 Consent by the Agents and Lender. Except as otherwise expressly set forth herein to
the contrary or in any other Loan Document, if the consent, approval, satisfaction, determination,
judgment, acceptance or similar action (an “Action”) of any Agent or any Lender shall be
permitted or required pursuant to any provision hereof or any provision of any other agreement to
which the Borrower is a party and to which any Agent or any Lender has succeeded thereto, such
Action shall be required to be in writing and may be withheld or denied by such Agent or such
Lender, in its sole discretion, with or without any reason, and without being subject to question
or challenge on the grounds that such Action was not taken in good faith.




          Section 12.13 No Party Deemed Drafter. Each of the parties hereto agrees that no party hereto shall
be deemed to be the drafter of this Agreement.




          Section 12.14 Reinstatement; Certain Payments. If any claim is ever made upon any Agent or any
Lender for repayment or recovery of any amount or amounts received by such Agent or such Lender in
payment or on account of any of the Obligations, such Agent or such Lender shall give prompt notice
of such claim to each other Agent and the Borrower, and if such Agent or such Lender repays all or
part of such amount by reason of (i) any judgment, decree or order of any court or administrative
body having jurisdiction over such Agent or such Lender or any of its property, or (ii) any good
faith settlement or compromise of any such claim effected by such Agent or such Lender with any
such claimant, then and in such event the Borrower agrees that (A) any such judgment, decree,
order, settlement or compromise shall be binding upon it





91









 







notwithstanding the cancellation of any Indebtedness hereunder or under the other Loan
Documents or the termination of this Agreement or the other Loan Documents, and (B) it shall be and
remain liable to such Agent or such Lender hereunder for the amount so repaid or recovered to the
same extent as if such amount had never originally been received by such Agent or such Lender.




          Section 12.15 Indemnification.




               (a) General Indemnity. In addition to the Borrower’s other Obligations under this
Agreement, the Borrower agrees to defend, protect, indemnify and hold harmless each Agent, each
Lender and all of their respective officers, directors, employees, attorneys, consultants and
agents (collectively called the “Indemnitees”) from and against any and all losses,
damages, liabilities, obligations, penalties, fees, reasonable costs and expenses (including,
without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Indemnitees,
whether prior to or from and after the Effective Date, whether direct, indirect or consequential,
as a result of or arising from or relating to or in connection with any of the following: (i) the
negotiation, preparation, execution or performance or enforcement of this Agreement, any other Loan
Document or of any other document executed in connection with the transactions contemplated by this
Agreement, (ii) any Agent’s or any Lender’s furnishing of funds to the Borrower for the account of
the Borrower under this Agreement or the other Loan Documents, including, without limitation, the
management of any such Loans, (iii) any matter relating to the financing transactions contemplated
by this Agreement or the other Loan Documents or by any document executed in connection with the
transactions contemplated by this Agreement or the other Loan Documents, or (iv) any claim,
litigation, investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto (collectively, the “Indemnified Matters”); provided,
however, that Borrower shall not have any obligation to any Indemnitee under this
subsection (a) for any Indemnified Matter caused by the gross negligence or willful misconduct of
such Indemnitee, as determined by a final judgment of a court of competent jurisdiction.



               (b) To the extent that the undertaking to indemnify, pay and hold harmless set forth in this
Section 12.15 may be unenforceable because it is violative of any law or public policy, the
Borrower shall contribute the maximum portion which it is permitted to pay and satisfy under
applicable law, to the payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees. The indemnities set forth in this Section 12.15 shall survive the repayment of the
Obligations and discharge of any Liens granted under the Loan Documents.



          Section 12.16 Records. The unpaid principal of and interest on the Loans, the interest rate or rates
applicable to such unpaid principal and interest, the duration of such applicability, the
Commitments, and the accrued and unpaid fees payable pursuant to Section 2.06 hereof, including,
without limitation, the Applicable Prepayment Premium, shall at all times be ascertained from the
records of the Agents, which shall be conclusive and binding absent manifest error.




          Section 12.17 Binding Effect. This Agreement shall become effective when it shall have been executed
by the Borrower, each Agent and the Lender and when the conditions precedent set forth in Section
5.01 hereof have been satisfied or waived in writing by the Agents,





92









 







and thereafter shall be binding upon and inure to the benefit of the Borrower, each Agent and
each Lender, and their respective successors and assigns, except that the Borrower shall not have
the right to assign their rights hereunder or any interest herein without the prior written consent
of each Agent and the Lender, and any assignment by any Lender shall be governed by Section 12.07
hereof.




          Section 12.18 Interest. It is the intention of the parties hereto that each Agent and each Lender
shall conform strictly to usury laws applicable to it. Accordingly, if the transactions
contemplated hereby or by any other Loan Document would be usurious as to any Agent or any Lender
under laws applicable to it (including the laws of the United States of America and the State of
New York or any other jurisdiction whose laws may be mandatorily applicable to such Agent or the
Lender notwithstanding the other provisions of this Agreement), then, in that event,
notwithstanding anything to the contrary in this Agreement or any other Loan Document or any
agreement entered into in connection with or as security for the Obligations, it is agreed as
follows: (i) the aggregate of all consideration which constitutes interest under law applicable to
any Agent or any Lender that is contracted for, taken, reserved, charged or received by such Agent
or such Lender under this Agreement or any other Loan Document or agreements or otherwise in
connection with the Obligations shall under no circumstances exceed the maximum amount allowed by
such applicable law, any excess shall be canceled automatically and if theretofore paid shall be
credited by such Agent or such Lender on the principal amount of the Obligations (or, to the extent
that the principal amount of the Obligations shall have been or would thereby be paid in full,
refunded by such Agent or such Lender, as applicable, to the Borrower); and (ii) in the event that
the maturity of the Obligations is accelerated by reason of any Event of Default under this
Agreement or otherwise, or in the event of any required or permitted prepayment, then such
consideration that constitutes interest under law applicable to any Agent or any Lender may never
include more than the maximum amount allowed by such applicable law, and excess interest, if any,
provided for in this Agreement or otherwise shall be canceled automatically by such Agent or such
Lender, as applicable, as of the date of such acceleration or prepayment and, if theretofore paid,
shall be credited by such Agent or such Lender, as applicable, on the principal amount of the
Obligations (or, to the extent that the principal amount of the Obligations shall have been or
would thereby be paid in full, refunded by such Agent or the Lender to the Borrower). All sums paid
or agreed to be paid to any Agent or any Lender for the use, forbearance or detention of sums due
hereunder shall, to the extent permitted by law applicable to such Agent or such Lender, be
amortized, prorated, allocated and spread throughout the full term of the Loans until payment in
full so that the rate or amount of interest on account of any Loans hereunder does not exceed the
maximum amount allowed by such applicable law. If at any time and from time to time (x) the amount
of interest payable to any Agent or any Lender on any date shall be computed at the Highest Lawful
Rate applicable to such Agent or such Lender pursuant to this Section 12.18 and (y) in respect of
any subsequent interest computation period the amount of interest otherwise payable to such Agent
or such Lender would be less than the amount of interest payable to such Agent or such Lender
computed at the Highest Lawful Rate applicable to such Agent or such Lender, then the amount of
interest payable to such Agent or such Lender in respect of such subsequent interest computation
period shall continue to be computed at the Highest Lawful Rate applicable to such Agent or such
Lender until the total amount of interest payable to such Agent or such Lender shall equal the
total amount of interest which would have been payable to such Agent or such





93









 







Lender if the total amount of interest had been computed without giving effect to this Section
12.18.




          For purposes of this Section 12.18, the term “applicable law” shall mean that law in effect
from time to time and applicable to the loan transaction between the Borrower, on the one hand, and
the Agents and the Lenders, on the other, that lawfully permits the charging and collection of the
highest permissible, lawful non-usurious rate of interest on such loan transaction and this
Agreement, including laws of the State of New York and, to the extent controlling, laws of the
United States of America.




          The right to accelerate the maturity of the Obligations does not include the right to
accelerate any interest that has not accrued as of the date of acceleration.




          Section 12.19 Confidentiality. Each Agent and the Lender agrees (on behalf of itself and each of its
affiliates, directors, officers, employees and representatives) to use reasonable precautions to
keep confidential, in accordance with its customary procedures for handling confidential
information of this nature and in accordance with safe and sound practices of comparable commercial
finance companies, any non-public information supplied to it by the Borrower pursuant to this
Agreement or the other Loan Documents which is identified in writing by the Borrower as being
confidential at the time the same is delivered to such Person (and which at the time is not, and
does not thereafter become, publicly available or available to such Person from another source not
known to be subject to a confidentiality obligation to such Person not to disclose such
information), provided that nothing herein shall limit the disclosure of any such
information (i) to the extent required by any Requirement of Law or judicial process or as
otherwise requested by any Governmental Authority, (ii) to counsel for any Agent or any Lender,
(iii) to examiners, auditors, accountants or Securitization parties; provided, that the
Agents and the Lenders shall not be entitled to disclose the identity of the Collateral Value
Insurer or the Contingent Collateral Value Insurer to the Rating Agencies or, except as provided
below, provide a copy of the Collateral Value Policy to the Rating Agencies, in each case, without
the prior written consent of the Collateral Value Insurer or the Contingent Collateral Value
Insurer, as applicable; provided, further, that the Agents and the Lenders shall be
permitted to disclose a copy of the Collateral Value Policy and the Contingent Collateral Value
Policy to the Rating Agencies and to investors (or prospective investors) and their counsel or
other advisors of any indebtedness issued by the Lender that relates to this Financing Agreement
and the Eligible Insurance Premium Loans financed hereunder so long as the identity of the
Collateral Value Insurer and the Contingent Collateral Value Insurer is redacted, (iv) in
connection with any litigation to which any Agent or the Lender is a party or (v) to any assignee
or participant (or prospective assignee or participant) so long as such assignee or participant (or
prospective assignee or participant) first agrees, in writing, to be bound by confidentiality
provisions similar in substance to this Section 12.19.




          Section 12.20 Public Disclosure. The Borrower agrees that neither it nor any of its Affiliates will
now or in the future issue any press release or other public disclosure using the name of an Agent,
the Lender or any of their respective Affiliates or referring to this Agreement or any other Loan
Document without the prior written consent of such Agent or such Lender, except to the extent that
the Borrower or such Affiliate is required to do so under applicable law (in which event, the
Borrower or such Affiliate will consult with such Agent or the Lender





94









 







before issuing such press release or other public disclosure). The Borrower hereby authorizes
each Agent and the Lender, after consultation with the Borrower, to advertise the closing of the
transactions contemplated by this Agreement, and to make appropriate announcements of the financial
arrangements entered into among the parties hereto, as such Agent or the Lender shall deem
appropriate, including, without limitation, announcements commonly known as tombstones, in such
trade publications, business journals, newspapers of general circulation and to such selected
parties as such Agent or the Lender shall deem appropriate.




          Section 12.21 Integration. This Agreement, together with the other Loan Documents, reflects the
entire understanding of the parties with respect to the transactions contemplated hereby and shall
not be contradicted or qualified by any other agreement, oral or written, before the date hereof.




          Section 12.22 USA PATRIOT Act. The Lender hereby notifies the Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title 111 of Pub. L. 107-56 (signed into law October 26,
2001)) (as amended, the “USA PATRIOT Act”), a Lender may be required to obtain, verify and
record information that identifies the entities composing the Borrower, which information includes
the name and address of each such entity and other information that will allow the Lender to
identify the entities composing the Borrower in accordance with the USA PATRIOT Act. The Borrower
agrees to take such action and execute, acknowledge and deliver at its sole cost and expense, such
instruments and documents as any Lender may reasonably require from time to time in order to enable
such Lender to comply with the USA PATRIOT Act.




[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]




95









 






          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 above written.




	 	 	 	 	 
	 	BORROWER:



IMPERIAL PFC FINANCING II, LLC

 	 
	 	By:  	/s/ Carlos Cadena	 
	 	 	Name:  	Carlos Cadena 	 
	 	 	Title:  	Vice President 	 
	 
	 	LENDER:



Cedar Lane Capital LLC

 	 
	 	By:  	EBC Asset Management, Inc., its Sole Member
 	 
	 	 	 	 
	 	 	 
	 	By:  	/s/ Eileen Moore	 
	 	 	Name:  	Eileen Moore	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	COLLATERAL AGENT:





EBC Asset Management, Inc.

 	 
	 	By:  	/s/ Eileen Moore	 
	 	 	Name:  	Eileen Moore	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	ADMINISTRATIVE AGENT:





EBC Asset Management, Inc.

 	 
	 	By:  	/s/ Eileen Moore	 
	 	 	Name:  	Eileen Moore	 
	 	 	Title:  	Chief Financial Officer	 
	 



[SIGNATURE PAGE TO FINANCING AGREEMENT]



















 





Schedule 1.01(A)




Lenders and Lenders’ Commitments




	 	 	 	 	 
	Lender	 	Commitment
	LoIC LLC

	 	$	15,000,000	 
	Total

	 	$	15,000,000	 











 









 








Schedule 1.01(B)




Applicable Non-Licensed States




1. Georgia




2. Utah









 









 








Schedule 1.01(C)




Applicable Licensed States




1. Mississippi









 









 








Schedule 1.01(D)




Loan Schedule 




None








 









 








Schedule 1.01(E)




Non-Corporate Trustee Insurance Premium Loans




None








 









 








Schedule 5.02(e)




Delivery of Documents





	1.	 	Loan Schedule
	 
	2.	 	Life Insurance Policy and evidence of receipt by insurance carrier of the related premium
	 
	3.	 	Eligibility Certification
	 
	4.	 	Trust Agreement
	 
	5.	 	Completed compliance checklist for Insurance Premium Loan
	 
	6.	 	Loan Documentation Package for Insurance Premium Loan
	 
	7.	 	Coverage Certificate
	 
	8.	 	Revised Non-Corporate Trustee Insurance Premium Loan Schedule, if necessary
	 
	9.	 	Insurance Premium Loan Assignment Agreement or Participation Certificate from Master
Participation Agreement
	 
	10.	 	All other deliveries required by the Agents, including all documents and certificates
required for an Insurance Premium Loan to be an Eligible Insurance Premium Loan










 









 








Schedule 6.01(e)




Capitalization




          100% of the issued and outstanding Equity Interests are owned by Imperial Premium Finance, LLC









 









 








Schedule 6.01(q)




Insurance




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Insurance Company	 	Type	 	Policy Period	 	Limit of Liability	 	Policy #
	American Intl.
Specialty Lines Ins.
Co.

	 	Professional

Liability E&O
	 	12/19/08 — 12/19/09
	 	 	10,000,000.00	 	 	 	013777922	 
	Navigators Insurance Company

	 	Directors &

Officers Liability
	 	8/20/09 — 8/20/10
	 	$	5,000,000.00	 	 	NY09D0L6014101V

	Capital Specialty
Insurance Corp.

	 	General Liability
	 	11/10/09 — 1/10/10
	 	$	2,000,000.00	 	 	BR00357869












 









 








Schedule 6.01(t)




Bank Accounts




	 	 	 

	Bank

	 

	Wachovia Bank

	Account Name

	 	Imperial PFC Financing II, LLC

	Type of Account

	 	Collection







	 	 	 

	Bank

	 

	Wachovia Bank

	Account Name

	 

	Imperial PFC Financing II, LLC

	Type of Account

	 

	Operating







	 	 	 

	Bank

	 

	Wachovia Bank

	Account Name

	 

	Imperial PFC Financing II, LLC
	Type of Account

	 

	Reserve











 









 








Schedule 6.01(u)




Intellectual Property




None




 









 





Schedule 6.01(v)




Material Contracts





	1.	 	Transaction Documents.
	 
	2.	 	Loan Documents to which Borrower is a party.










 









 








Schedule 6.01(aa)




Name; Jurisdiction of Organization; Organizational ID Number;

Chief Place of Business; Chief Executive Office; FEIN 




	 	 	 	 	 
	Name	 	Imperial PFC Financing II, LLC
	Jurisdiction of Organization

	 	Georgia

	 
	Organizational Identification Number

	 	 	09008735	 
	 
	Place(s) of Business

	 	191 Peachtree Street NE, Suite 3300

Atlanta, Georgia 30303;

701 Park of Commerce Blvd., Suite 301

Boca Raton, FL 33487

	 
	Chief Executive Office

	 	191 Peachtree Street NE, Suite 3300

Atlanta, Georgia 30303

	 
	FEIN

	 	 	26-4476722	 











 









 








Schedule 6.01(bb)




Collateral Locations





	1.	 	701 Park of Commerce Blvd., Suite 301, Boca Raton FL 33487
	 
	2.	 	191 Peachtree Street, NE, Suite 3300, Atlanta, GA 30303










 









 








Schedule 8.01 




Cash Management Bank and Collection Account, Operating Account and Reserve Account




	 	 	 

	Bank

	 	Wachovia Bank

	Account Name

	 	Imperial PFC Financing II, LLC

	Type of Account

	 	Collection







	 	 	 

	Bank

	 	Wachovia Bank

	Account Name

	 	Imperial PFC Financing II, LLC

	Type of Account

	 	Operating







	 	 	 

	Bank

	 	Wachovia Bank
	Account Name

	 	Imperial PFC Financing II, LLC
	Type of Account

	 	Reserve







 











 





EXHIBIT A




FORM OF SECURITY AGREEMENT



          PLEDGE AND SECURITY AGREEMENT, dated as of                     , 2009 made by the Grantor referred to
below, in favor of LoIC LLC, a Delaware limited liability company (“LoIC”), in its capacity as
collateral agent for the Secured Parties referred to below (in such capacity, together with its
successors and assigns in such capacity, if any, the “Collateral Agent”).




W I T N E S S E T H:




          WHEREAS, Imperial PFC Financing II, LLC, a Georgia limited liability company (the
“Borrower” and the “Grantor”, the lenders from time to time party thereto (each a
“Lender” and collectively, the “Lenders”), the Collateral Agent and LoIC, as
administrative agent for the Lenders (in such capacity, together with its successors and assigns in
such capacity, if any, the “Administrative Agent” and together with the Collateral Agent,
each an “Agent” and collectively, the “Agents”) are parties to a Financing
Agreement, dated as of                     , 2009 (such agreement, as amended, restated, supplemented, modified or
otherwise changed from time to time, including any replacement agreement therefor, being
hereinafter referred to as the “Financing Agreement”);




          WHEREAS, pursuant to the Financing Agreement, the Lenders have agreed to make term loans (each
a “Loan” and collectively, the “Loans”), to the Borrower in an aggregate principal
amount at any one time outstanding not to exceed the Total Term Loan Commitment (as defined in the
Financing Agreement);




          WHEREAS, it is a condition precedent to the Lenders making any Loan to the Borrower pursuant
to the Financing Agreement that the Grantor shall have executed and delivered to the Collateral
Agent a pledge to the Collateral Agent, for the benefit of the Secured Parties, and the grant to
the Collateral Agent, for the benefit of the Secured Parties, of (a) a security interest in and
Lien on the outstanding shares of Equity Interests (as defined in the Financing Agreement) and
indebtedness from time to time owned by the Grantor of each Person now or hereafter existing and in
which the Grantor has any interest at any time, and (b) a security interest in all other personal
property and fixtures of the Grantor; and




          WHEREAS, Grantor has determined that the execution, delivery and performance of this Agreement
directly benefit, and are in the best interest of, the Grantor;




          NOW, THEREFORE, in consideration of the premises and the agreements herein and in order to
induce the Collateral Agent and the Lenders to make and maintain the Loans to the Borrower pursuant
to the Financing Agreement, the Grantor agrees with the Collateral Agent, for the benefit of the
Secured Parties, as follows:




          SECTION 1. Definitions.




               (a) Reference is hereby made to the Financing Agreement for a statement of the terms thereof.
All capitalized terms used in this Agreement and the recitals



Exh. A-1









 




hereto which are defined in the Financing Agreement or in Article 8 or 9 of the Uniform
Commercial Code as in effect from time to time in the State of New York (the “Code”) and
which are not otherwise defined herein shall have the same meanings herein as set forth therein;
provided that terms used herein which are defined in the Code as in effect in the State of New York
on the date hereof shall continue to have the same meaning notwithstanding any replacement or
amendment of such statute except as the Collateral Agent may otherwise determine.




               (b) The following terms shall have the respective meanings provided for in the Code:
“Accounts”, “Account Debtor”, “Cash Proceeds”, “Certificate of Title”, “Chattel Paper”, “Commercial
Tort Claim”, “Commodity Account”, “Commodity Contracts”, “Deposit Account”, “Documents”,
“Electronic Chattel Paper”, “Equipment”, “Fixtures”, “General Intangibles”, “Goods”, “Instruments”,
“Inventory”, “Investment Property”, “Letter-of-Credit Rights”, “Noncash Proceeds”, “Payment
Intangibles”, “Proceeds”, “Promissory Notes”, “Record”, “Security Account”, “Software”, “Supporting
Obligations” and “Tangible Chattel Paper”.



               (c) As used in this Agreement, the following terms shall have the respective meanings
indicated below, such meanings to be applicable equally to both the singular and plural forms of
such terms:



          “Additional Collateral” has the meaning specified therefor in Section 4(a)(i) hereof.




          “Certificated Entities” has the meaning specified therefor in Section 5(m) hereof.




          “Existing Issuer” has the meaning specified therefor in the definition of the term
“Pledged Shares”.




          “Intellectual Property” means all U.S and non-U.S. (i) published and unpublished works
of authorship (including, without limitation, computer software), copyrights therein and thereto,
and registrations and applications therefor, and all renewals, extensions, restorations and
reversions thereof, including, without limitation, all copyright registrations and applications
listed in Schedule II hereto (collectively, “Copyrights”); (ii) inventions, discoveries,
ideas and all patents, registrations, and applications therefor, including, without limitation,
divisions, continuations, continuations-in-part and renewal applications, and all renewals,
extensions and reissues, including, without limitation, all patents and patent applications listed
in Schedule II hereto (collectively, “Patents”); (iii) trademarks, service marks, brand
names, certification marks, collective marks, d/b/a’s, Internet domain names, logos, symbols, trade
dress, assumed names, fictitious names, trade names, and other indicia of origin, all applications
and registrations for all of the foregoing, and all goodwill associated therewith and symbolized
thereby, and all extensions, modifications and renewals of same, including, without limitation, all
trademark registrations and applications listed in Schedule II hereto (collectively,
“Trademarks”); (iv) confidential and proprietary information, trade secrets and know-how,
including, without limitation, processes, schematics, databases, formulae, drawings, prototypes,
models, designs and customer lists (collectively, “Trade Secrets”); and (v) all other
intellectual property or proprietary rights and claims or causes of action arising out of or
related to any infringement,





Exh. A-2









 







misappropriation or other violation of any of the foregoing, including, without limitation,
rights to recover for past, present and future violations thereof (collectively, “Other
Proprietary Rights”).




          “Pledged Debt” means the indebtedness described in Schedule VII hereto and all
indebtedness from time to time owned or acquired by the Grantor, the promissory notes and other
Instruments evidencing any or all of such indebtedness, and all interest, cash, Instruments,
Investment Property, financial assets, securities, Equity Interests, other equity interests, stock
options and commodity contracts, notes, debentures, bonds, promissory notes or other evidences of
indebtedness and all other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of such indebtedness.




          “Pledged Interests” means, collectively, (a) the Pledged Debt, (b) the Pledged Shares
and (c) all security entitlements in any and all of the foregoing.




          “Pledged Issuer” has the meaning specified therefor in the definition of the term
“Pledged Shares”.




          “Pledged Shares” means (a) the shares of Equity Interests described in Schedule VIII
hereto, whether or not evidenced or represented by any stock certificate, certificated security or
other Instrument, issued by the Persons described in such Schedule VIII (the “Existing
Issuers”), (b) the shares of Equity Interests at any time and from time to time acquired by the
Grantor of any and all Persons now or hereafter existing (such Persons, together with the Existing
Issuers, being hereinafter referred to collectively as the “Pledged Issuers” and each
individually as a “Pledged Issuer”), whether or not evidenced or represented by any stock
certificate, certificated security or other Instrument, and (c) the certificates representing such
shares of Equity Interests, all options and other rights, contractual or otherwise, in respect
thereof and all dividends, distributions, cash, Instruments, Investment Property, financial assets,
securities, Equity Interests, other equity interests, stock options and commodity contracts, notes,
debentures, bonds, promissory notes or other evidences of indebtedness and all other property
(including, without limitation, any stock dividend and any distribution in connection with a stock
split) from time to time received, receivable or otherwise distributed in respect of or in exchange
for any or all of such Equity Interests.




          “Secured Parties” means, collectively, the Agents and the Lenders.




          “Secured Obligations” has the meaning specified therefor in Section 3 hereof.




          SECTION 2. Grant of Security Interest. As collateral security for the payment,
performance and observance of all of the Secured Obligations, the Grantor hereby pledges and
assigns to the Collateral Agent (and its agents and designees), and grants to the Collateral Agent
(and its agents and designees), for the benefit of the Secured Parties, a continuing security
interest in, all personal property and Fixtures of the Grantor, wherever located and whether now or
hereafter existing and whether now owned or hereafter acquired, of every kind and description,
tangible or intangible, including, without limitation, the following (all being collectively
referred to herein as the “Collateral”):





Exh. A-3









 








               (a) all Accounts;



               (b) all Chattel Paper (whether tangible or electronic);



               (c) the Commercial Tort Claims specified on Schedule VI hereto;



               (d) all Deposit Accounts, all cash, and all other property from time to time deposited therein
or otherwise credited thereto and the monies and property in the possession or under the control of
any Agent or any Lender or any affiliate, representative, agent or correspondent of any Agent or
any Lender;



               (e) all Documents;



               (f) all General Intangibles (including, without limitation, all Payment Intangibles and
Intellectual Property);



               (g) all Goods, including, without limitation, all Equipment, Fixtures and Inventory;



               (h) all Instruments (including, without limitation, Promissory Notes);



               (i) all Investment Property;



               (j) all Letter-of-Credit Rights;



               (k) all Pledged Interests;



               (l) all Supporting Obligations;



               (m) all Insurance Premium Loans;



               (n) all other tangible and intangible personal property of the Grantor (whether or not subject
to the Code), including, without limitation, all bank and other accounts and all cash and all
investments therein, all proceeds, products, offspring, accessions, rents, profits, income,
benefits, substitutions and replacements of and to any of the property of the Grantor described in
the preceding clauses of this Section 2 hereof (including, without limitation, any proceeds of
insurance thereon and all causes of action, claims and warranties now or hereafter held by the
Grantor in respect of any of the items listed above), and all books, correspondence, files and
other Records, including, without limitation, all tapes, disks, cards, Software, data and computer
programs in the possession or under the control of the Grantor or any other Person from time to
time acting for the Grantor that at any time evidence or contain information relating to any of the
property described in the preceding clauses of this Section 2 hereof or are otherwise necessary or
helpful in the collection or realization thereof; and



               (o) all Proceeds, including all Cash Proceeds and Noncash Proceeds, and products of any and
all of the foregoing Collateral;


in each case howsoever the Grantor’s interest therein may arise or appear (whether by ownership,
security interest, claim or otherwise).






Exh. A-4









 







Notwithstanding anything herein to the contrary, the term “Collateral” shall not include, and the
Grantor is not pledging, nor granting a security interest hereunder in, any of the Grantor’s right,
title or interest in any license, contract or agreement to which the Grantor is a party as of the
date hereof or any of its right, title or interest thereunder to the extent, but only to the
extent, that such a grant would, under the express terms of such license, contract or agreement on
the date hereof result in a breach of the terms of, or constitute a default under, such license,
contract or agreement (other than to the extent that any such term (i) has been waived or (ii)
would be rendered ineffective pursuant to Sections 9-406, 9-408, 9-409 of the Code or other
applicable provisions of the Uniform Commercial Code of any relevant jurisdiction or any other
applicable law (including the Bankruptcy Code) or principles of equity); provided, that (x)
immediately upon the ineffectiveness, lapse, termination or waiver of any such provision, the
Collateral shall include, and the Grantor shall be deemed to have granted a security interest in,
all such right, title and interest as if such provision had never been in effect and (y) the
foregoing exclusion shall in no way be construed so as to limit, impair or otherwise affect the
Collateral Agent’s unconditional continuing security interest in and liens upon any rights or
interests of the Grantor in or to the proceeds of, or any monies due or to become due under, any
such license, contract or agreement.




          SECTION 3. Security for Secured Obligations. The security interest created hereby in
the Collateral constitutes continuing collateral security for all of the following obligations,
whether now existing or hereafter incurred (the “Secured Obligations”):




               (a) the prompt payment by the Grantor, as and when due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), of all amounts from time to time
owing by it in respect of the Financing Agreement and/or the other Loan Documents, including,
without limitation, (i) all Obligations and (ii) all interest, fees, commissions, charges, expense
reimbursements, indemnifications and all other amounts due or to become due under any Loan Document
(including, without limitation, all interest, fees, commissions, charges, expense reimbursements,
indemnifications and other amounts that accrue after the commencement of any Insolvency Proceeding
of any Credit Party, whether or not the payment of such interest, fees, commissions, charges,
expense reimbursements, indemnifications and other amounts are unenforceable or are not allowable,
in whole or in part, due to the existence of such Insolvency Proceeding); and



               (b) the due performance and observance by the Grantor of all of its other obligations from
time to time existing in respect of the Loan Documents.



          SECTION 4. Delivery of the Pledged Interests.




               (a) (i) All promissory notes currently evidencing the Pledged Debt and all certificates
currently representing the Pledged Shares shall be delivered to the Collateral Agent on or prior to
the execution and delivery of this Agreement. All other promissory notes, certificates and
Instruments constituting Pledged Interests from time to time required to be pledged to the
Collateral Agent pursuant to the terms of this Agreement or the Financing Agreement (the
“Additional Collateral”) shall be delivered to the Agent promptly upon, but in any event
within five (5) days of, receipt thereof by or on behalf of the Grantor. All such promissory notes,
certificates and Instruments shall be held by or on behalf of the Collateral



Exh. A-5









 




Agent pursuant hereto and shall be delivered in suitable form for transfer by delivery or
shall be accompanied by duly executed instruments of transfer or assignment or undated stock powers
executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent. If
any Pledged Interests consists of uncertificated securities, unless the immediately following
sentence is applicable thereto, the Grantor shall cause the Collateral Agent (or its designated
custodian or nominee) to become the registered holder thereof, or cause each issuer of such
securities to agree that it will comply with instructions originated by the Collateral Agent with
respect to such securities without further consent by the Grantor. If any Pledged Interests
consists of security entitlements, the Grantor shall transfer such security entitlements to the
Collateral Agent (or its custodian, nominee or other designee), or cause the applicable securities
intermediary to agree that it will comply with entitlement orders by the Collateral Agent without
further consent by the Grantor.




                    (ii) Within five (5) days of the receipt by the Grantor of any Additional Collateral, a Pledge
Amendment, duly executed by the Grantor, in substantially the form of Exhibit A hereto (a
“Pledge Amendment”), shall be delivered to the Collateral Agent, in respect of the
Additional Collateral that must be pledged pursuant to this Agreement and the Financing Agreement.
The Pledge Amendment shall from and after delivery thereof constitute part of Schedules VII and
VIII hereto. The Grantor hereby authorizes the Collateral Agent to attach each Pledge Amendment to
this Agreement and agrees that all promissory notes, certificates or Instruments listed on any
Pledge Amendment delivered to the Collateral Agent shall for all purposes hereunder constitute
Pledged Interests and the Grantor shall be deemed upon delivery thereof to have made the
representations and warranties set forth in Section 5 hereof with respect to such Additional
Collateral.



               (b) If the Grantor shall receive, by virtue of the Grantor’s being or having been an owner of
any Pledged Interests, any (i) stock certificate (including, without limitation, any certificate
representing a stock dividend or distribution in connection with any increase or reduction of
capital, reclassification, merger, consolidation, sale of assets, combination of shares, stock
split, spin-off or split-off), promissory note or other Instrument, (ii) option or right, whether
as an addition to, substitution for, or in exchange for, any Pledged Interests, or otherwise, (iii)
dividends payable in cash (except such dividends permitted to be retained by the Grantor pursuant
to Section 7 hereof) or in securities or other property or (iv) dividends, distributions, cash,
Instruments, Investment Property and other property in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in
surplus, the Grantor shall receive such stock certificate, promissory note, Instrument, option,
right, payment or distribution in trust for the benefit of the Collateral Agent, shall segregate it
from the Grantor’s other property and shall deliver it forthwith to the Collateral Agent, in the
exact form received, with any necessary indorsement and/or appropriate stock powers duly executed
in blank, to be held by the Collateral Agent as Pledged Interests and as further collateral
security for the Secured Obligations.



          SECTION 5. Representations and Warranties. The Grantor represents and warrants as
follows:




               (a) Schedule I hereto sets forth (i) the exact legal name of the Grantor, (ii) the state or
jurisdiction of organization of the Grantor, (iii) the type of organization of the



Exh. A-6









 




Grantor and (iv) the organizational identification number of the Grantor or states that no
such organizational identification number exists.




               (b) This Agreement is, and each other Loan Document to which the Grantor is or will be a
party, when executed and delivered, will be, a legal, valid and binding obligation of the Grantor,
enforceable against the Grantor in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws and principles
of equity.



               (c) There is no pending or, to the knowledge of the Grantor, threatened action, suit,
proceeding or claim before any court or other Governmental Authority or any arbitrator, or any
order, judgment or award by any court or other Governmental Authority or any arbitrator, that, if
adversely determined, may adversely affect the grant by the Grantor, or the perfection, of the
security interest purported to be created hereby in the Collateral, or the exercise by the
Collateral Agent of any of its rights or remedies hereunder.



               (d) All Collateral now existing are, and all Collateral hereafter existing will be, located at
the addresses specified therefor in Schedule III hereto. The Grantor’s chief place of business and
chief executive office, the place where the Grantor keeps its Records concerning Accounts,
Insurance Premium Loans and all originals of all Chattel Paper are located at the addresses
specified therefor in Schedule III hereto (as amended, supplemented or otherwise modified from time
to time in accordance with the terms hereof). None of the Accounts is evidenced by Promissory Notes
or other Instruments. Set forth in Schedule IV hereto is a complete and accurate list, as of the
date of this Agreement, of each Deposit Account, Securities Account and Commodities Account of the
Grantor, together with the name and address of each institution at which each such Account is
maintained, the account number for each such Account and a description of the purpose of each such
Account. Set forth in Schedule II hereto is (i) a complete and correct list of each trade name used
by the Grantor and (ii) the name of, and each trade name used by, each Person from which the
Grantor has acquired any substantial part of the Collateral within five years of the date hereof.



               (e) (i) The Grantor owns and controls, or otherwise possesses adequate rights to use, all
Intellectual Property necessary to conduct their business in substantially the same manner as
conducted as of the date hereof. Schedule II hereto sets forth a true and complete list of all
issued, registered, renewed, applied-for or otherwise material Intellectual Property owned or used
by the Grantor as of the date hereof. All such Intellectual Property is valid, subsisting and
enforceable, and none of such Intellectual Property has been abandoned in whole or in part and is
not subject to any outstanding order, judgment or decree restricting its use in any material
respect or adversely affecting the Grantor’s rights thereto in any material respect. Except as set
forth in Schedule II hereto, no such Intellectual Property is the subject of any licensing or
franchising agreement.



                    (ii) Grantor is not violating and Grantor has not received a written notice that it has
violated any Intellectual Property rights. There are no suits, actions, reissues, reexaminations,
public protests, interferences, arbitrations, mediations, oppositions, cancellations, Internet
domain name dispute resolutions or other proceedings (collectively, “Suits”) pending,
decided, to Grantor’s knowledge, threatened or asserted concerning any claim



Exh. A-7









 




or position that the Grantor or any of its indemnitees have violated any Intellectual Property
rights. There are no Suits or claims pending, decided, threatened or asserted concerning the
Intellectual Property owned or controlled by the Grantor, and, to the Grantor’s knowledge, no valid
basis for any such Suits or claims exists.




               (f) The Existing Issuers set forth in Schedule VIII identified as a Subsidiary of the Grantor
are the Grantor’s only Subsidiaries existing on the date hereof. The Pledged Shares have been duly
authorized and validly issued and are fully paid and nonassessable and the holders thereof are not
entitled to any preemptive, first refusal or other similar rights. Except as noted in Schedule VIII
hereto, the Pledged Shares constitute 100% of the issued shares of Equity Interests of the Pledged
Issuers as of the date hereof. All other shares of Equity Interests constituting Pledged Interests
will be duly authorized and validly issued, fully paid and nonassessable.



               (g) The promissory notes currently evidencing the Pledged Debt have been, and all other
promissory notes from time to time evidencing Pledged Debt, when executed and delivered, will have
been, duly authorized, executed and delivered by the respective makers thereof, and all such
promissory notes are or will be, as the case may be, legal, valid and binding obligations of such
makers, enforceable against such makers in accordance with their respective terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws and
principles of equity.



               (h) The Grantor is and will be at all times the sole and exclusive owners of, or otherwise
have and will have adequate rights in, the Collateral free and clear of any Lien except for the
Permitted Liens. No effective financing statement or other instrument similar in effect covering
all or any part of the Collateral is on file in any recording or filing office except such as may
have been filed to perfect or protect any Permitted Lien.



               (i) The exercise by the Collateral Agent of any of its rights and remedies hereunder will not
contravene any Requirement of Law or any contractual restriction binding on or otherwise affecting
the Grantor or any of its properties and will not result in, or require the creation of, any Lien
upon or with respect to any of its properties.



               (j) No authorization or approval or other action by, and no notice to or filing with, any
Governmental Authority or other regulatory body, or any other Person, is required for (i) the due
execution, delivery and performance by the Grantor of this Agreement, (ii) the grant by the Grantor
of the security interest purported to be created hereby in the Collateral or (iii) the exercise by
the Collateral Agent of any of its rights and remedies hereunder, except, in the case of this
clause (iii), as may be required in connection with any sale of any Pledged Interests by laws
affecting the offering and sale of securities generally. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or any other Person, is
required for the perfection of the security interest purported to be created hereby in the
Collateral, except (A) for the filing under the Uniform Commercial Code as in effect in the
applicable jurisdiction of the financing statements described in Schedule V hereto, all of which
financing statements have been duly filed and are in full force and effect” (B) with respect to any
action that may be necessary to obtain control of Collateral constituting Deposit Accounts,
Electronic Chattel Paper, Investment Property or Letter-of-Credit Rights, the



Exh. A-8









 




taking of such actions, and (C the Collateral Agent’s having possession of all Documents,
Chattel Paper, Instruments and cash constituting Collateral (subclauses (A), (B) and (C), each a
“Perfection Requirement” and collectively, the “Perfection Requirements”).




               (k) This Agreement creates a legal, valid and enforceable security interest in favor of the
Collateral Agent, for the benefit of the Secured Parties, in the Collateral, as security for the
Secured Obligations. The Perfection Requirements result in the perfection of such security
interests. Such security interests are, or in the case of Collateral in which the Grantor obtains
rights after the date hereof, will be, perfected, first priority security interests, subject in
priority only to the Permitted Liens that, pursuant to the definition of the term “Permitted
Liens”, are not prohibited from being prior to the Liens in favor of the Collateral Agent, for the
benefit of the Secured Parties, and the recording of such instruments of assignment described
above. Such Perfection Requirements and all other action necessary or desirable to perfect and
protect such security interest have been duly made or taken, except for (i) the Collateral Agent’s
having possession of all Instruments, Documents, Chattel Paper and cash constituting Collateral
after the date hereof, (ii) the Collateral Agent’s having control of all Deposit Accounts,
Electronic Chattel Paper, Investment Property or Letter-of-Credit Rights constituting Collateral
after the date hereof, and (iii) the other filings and recordations and actions described in
Section 5(j) hereof.



               (l) As of the date hereof, the Grantor does not hold any Commercial Tort Claims or is not
aware of any such pending claims, except for such claims described in Schedule VI.



               (m) The Grantor has irrevocably opted into Article 8 of the Uniform Commercial Code
(collectively, the “Certificated Entities”). Such interests are securities for purposes of
Article 8 of any relevant Uniform Commercial Code.



          SECTION 6. Covenants as to the Collateral. So long as any of the Secured Obligations
(whether or not due) shall remain unpaid or any Lender shall have any Commitment under the
Financing Agreement, unless the Collateral Agent shall otherwise consent in writing:




               (a) Further Assurances. The Grantor will at its expense, at any time and from time to
time, promptly execute and deliver all further instruments and documents and take all further
action that may be necessary or reasonably desirable or that the Collateral Agent may request in
order (i) to perfect and protect, or maintain the perfection of, the security interest and Lien
purported to be created hereby; (ii) to enable the Collateral Agent to exercise and enforce its
rights and remedies hereunder in respect of the Collateral; or (iii) otherwise to effect the
purposes of this Agreement, including, without limitation: (A) marking conspicuously all Chattel
Paper and Instruments and, at the request of the Collateral Agent, all of its Records pertaining to
the Collateral with a legend, in form and substance reasonably satisfactory to the Collateral
Agent, indicating that such Chattel Paper, Instrument or Collateral is subject to the security
interest created hereby, (B) if any Account shall be evidenced by a Promissory Note or other
Instrument or Chattel Paper, delivering and pledging to the Collateral Agent such Promissory Note,
other Instrument or Chattel Paper, duly endorsed and accompanied by executed instruments of
transfer or assignment, all in form and substance satisfactory to the Collateral Agent, (C)
executing and filing (to the extent, if any, that the Grantor’s signature is



Exh. A-9









 




required thereon) or authenticating the filing of, such financing or continuation statements,
or amendments thereto, (D) with respect to Intellectual Property hereafter existing and not covered
by an appropriate security interest grant, the executing and recording in the United States Patent
and Trademark Office or the United States Copyright Office, as applicable, appropriate instruments
granting a security interest, as may be necessary or desirable or that the Collateral Agent may
request in order to perfect and preserve the security interest purported to be created hereby, (E)
delivering to the Collateral Agent irrevocable proxies in respect of the Pledged Interests, (F)
furnishing to the Collateral Agent from time to time statements and schedules further identifying
and describing the Collateral and such other reports in connection with the Collateral as the
Collateral Agent may reasonably request, all in reasonable detail, (G) if any Collateral shall be
in the possession of a third party, notifying such Person of the Collateral Agent’s security
interest created hereby and obtaining a written agreement, in form and substance reasonably
satisfactory to the Collateral Agent, providing access to such Collateral in order to remove such
Collateral from such premises during an Event of Default and acknowledging that such Person holds
possession of the Collateral for the benefit of the Collateral Agent, (H) if at any time after the
date hereof, the Grantor acquires or holds any Commercial Tort Claim, immediately notifying the
Collateral Agent in a writing signed by the Grantor setting forth a brief description of such
Commercial Tort Claim and granting to the Collateral Agent a security interest therein and in the
proceeds thereof, which writing shall incorporate the provisions hereof and shall be in form and
substance reasonably satisfactory to the Collateral Agent, and (I) taking all actions required by
law in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in any
foreign jurisdiction. No Grantor shall take or fail to take any action which would in any manner
impair the validity or enforceability of the Collateral Agent’s security interest in and Lien on
any Collateral.




               (b) Taxes, Etc. The Grantor agrees to pay promptly when due all property and other
taxes, assessments and governmental charges or levies imposed upon, and all claims (including
claims for labor, materials and supplies) against, the Collateral, except to the extent otherwise
provided in the Financing Agreement.



               (c) Insurance. The Grantor will, at its own expense, maintain insurance with respect
to the Collateral in accordance with the terms of the Financing Agreement. The Grantor will, if so
requested by the Collateral Agent, deliver to the Collateral Agent original or duplicate insurance
policies and, as often as the Collateral Agent may reasonably request, a report of a reputable
insurance broker with respect to such insurance. The Grantor will also, at the request of the
Collateral Agent, execute and deliver instruments of assignment of such insurance policies and
cause the respective insurers to acknowledge notice of such assignment.



               (d) Provisions Concerning the Insurance Premium Loans. The Grantor will, except as
otherwise provided in this subsection (d), continue to collect, at its own expense, all amounts due
or to become due under the Insurance Premium Loans. In connection with such collections, the
Grantor may (and, at the Collateral Agent’s direction, will) take such action as the Grantor (or,
if applicable, the Collateral Agent) may reasonably deem necessary or advisable to enforce
collection or performance of the Insurance Premium Loans; provided, however, that
the Collateral Agent shall have the right at any time, upon the occurrence and during the
continuance of an Event of Default, to notify the Premium Finance Borrower or obligors under



Exh. A-10









 




any Insurance Premium Loans of the assignment of such Insurance Premium Loans to the
Collateral Agent and to direct such Premium Finance Borrower or obligors to make payment of all
amounts due or to become due to the Grantor thereunder directly to the Collateral Agent or its
designated agent and, upon such notification and at the expense of the Grantor and to the extent
permitted by law, to enforce collection of any such Insurance Premium Loans and to adjust, settle
or compromise the amount or payment thereof, in the same manner and to the same extent as the
Grantor might have done. After receipt by the Grantor of a notice from the Collateral Agent that
the Collateral Agent has notified, intends to notify, or has enforced or intends to enforce the
Grantor’s rights against the Premium Finance Borrower or obligors under any Premium Finance
Borrower as referred to in the proviso to the immediately preceding sentence, (A) all amounts and
proceeds (including Instruments) received by the Grantor in respect of the Premium Finance Loans
shall be received in trust for the benefit of the Collateral Agent hereunder, shall be segregated
from other funds of the Grantor and shall be forthwith paid over to the Collateral Agent or its
designated agent in the same form as so received (with any necessary endorsement) to be held as
cash collateral and either (x) credited to the Loan Account so long as no Event of Default shall
have occurred and be continuing or (y) if any Event of Default shall have occurred and be
continuing, applied as specified in Section 9(d) hereof, and (B) the Grantor will not adjust,
settle or compromise the amount or payment of any Insurance Premium Loan or release wholly or
partly any Premium Finance Borrower or obligor thereof or allow any credit or discount thereon. The
Collateral Agent may (in its sole and absolute discretion) direct any or all of the banks and
financial institutions with which the Grantor either maintains a Deposit Account or a lockbox or
deposits the proceeds of any Insurance Premium Loan to send immediately to the Collateral Agent or
its designated agent by wire transfer (to such account as the Collateral Agent shall specify, or in
such other manner as the Collateral Agent shall direct) all or a portion of such securities, cash,
investments and other items held by such institution. Any such securities, cash, investments and
other items so received by the Collateral Agent or its designated agent shall (in the sole and
absolute discretion of the Collateral Agent) be held as additional Collateral for the Secured
Obligations or distributed in accordance with Section 9 hereof.




               (e) Provisions Concerning the Pledged Interests. The Grantor will



                    (i) at the Grantor’s expense, promptly deliver to the Collateral Agent a copy of each notice
or other communication received by it in respect of the Pledged Interests;



                    (ii) at the Grantor’s expense, defend the Collateral Agent’s right, title and security
interest in and to the Pledged Interests against the claims of any Person;



                    (iii) not make or consent to any amendment or other modification or waiver with respect to any
Pledged Interests or enter into any agreement or permit to exist any restriction with respect to
any Pledged Interests other than pursuant to the Loan Documents; and



                    (iv) not permit the issuance of (A) any additional shares of any class of Equity Interests of
any Pledged Issuer, (B) any securities convertible voluntarily by the holder thereof or
automatically upon the occurrence or non-occurrence of any event or condition



Exh. A-11









 




into, or exchangeable for, any such shares of Equity Interests or (C) any warrants, options,
contracts or other commitments entitling any Person to purchase or otherwise acquire any such
shares of Equity Interests.




               (f) Transfers and Other Liens.



                    (i) Except to the extent expressly permitted by Section 7.02(c) of the Financing Agreement,
the Grantor will not sell, assign (by operation of law or otherwise), lease, license, exchange or
otherwise transfer or dispose of any of the Collateral.



                    (ii) Except to the extent expressly permitted by Section 7.02(a) of the Financing Agreement,
the Grantor will not create, suffer to exist or grant any Lien upon or with respect to any
Collateral.



               (g) Intellectual Property.



                    (i) The Grantor (either itself or through its licensees or its sublicensees) will, for each
Trademark used in the conduct of the Grantor’s business, (i) maintain such Trademark in full force
free from any claim of abandonment or invalidity for non-use, (ii) maintain the quality of products
and services offered under such Trademark, (iii) display such Trademark with notice of U.S. or
non-U.S. registration to the extent necessary to establish and preserve its rights under applicable
law, and (iv) not knowingly use or knowingly permit the use of such Trademark in violation of any
third party rights.



                    (ii) The Grantor shall notify the Collateral Agent promptly if it knows or has reason to know
that any Intellectual Property material to the conduct of its business may become abandoned, lost
or dedicated to the public, or of any final materially adverse determination (including the
institution of, or any such determination in, any proceeding in the United States Patent and
Trademark Office, United States Copyright Office or any court or similar office of any country)
regarding the Grantor’s ownership of any Intellectual Property, its right to register the same, or
its right to keep and maintain the same.



                    (iii) In the event that the Grantor (i) files an application or registration for any
Intellectual Property with the United States Patent and Trademark Office, United States Copyright
Office or any office or agency in any political subdivision of the United States or in any other
country or any political subdivision thereof, either itself or through any agent, employee,
licensee or designee or (ii) obtains rights to or develop any new Intellectual Property or any
reissue, division, continuation, renewal, extension or continuation-in-part of any existing
Intellectual Property, whether pursuant to any license or otherwise; the provisions of Section 2
hereof shall automatically apply thereto and the Grantor shall give to the Collateral Agent prompt
notice thereof, and, upon request of the Collateral Agent, execute and deliver any and all
agreements, instruments, documents and papers as the Collateral Agent may reasonably request to
evidence the Collateral Agent’s security interest in such Intellectual Property, and Grantor hereby
appoints the Collateral Agent as its attorney-in-fact to execute and file such writings for the
foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power,
being coupled with an interest, is irrevocable.



Exh. A-12









 





                    (iv) The Grantor will take all necessary steps that are consistent with the practice in any
proceeding before the United States Patent and Trademark Office, United States Copyright Office or
any office or agency in any political subdivision of the United States or in any other country or
any political subdivision thereof, to maintain and pursue each application relating to the
Intellectual Property of the Grantor (and to obtain the relevant grant or registration) and to
maintain each issued Patent and each registration of the Trademarks and Copyrights that is used in
the conduct of the Grantor’s business as conducted or proposed to be conducted, including timely
filings of applications for renewal, affidavits of use, affidavits of incontestability and payment
of maintenance fees, and, if consistent with good business judgment, to initiate opposition,
interference and cancellation proceedings against third parties.



                    (v) In the event that the Grantor has reason to believe that any Collateral consisting of
Intellectual Property used in the conduct of the Grantor’s business has been infringed,
misappropriated or diluted by a third party, the Grantor shall if consistent with good business
judgment, promptly sue for infringement, misappropriation or dilution and to recover any and all
damages for such infringement, misappropriation or dilution, and take such other actions as are
appropriate under the circumstances to protect such Collateral and promptly shall notify the
Collateral Agent of the initiation of such suit.



                    (vi) Upon and during the continuance of an Event of Default, (i) the Grantor shall not abandon
or otherwise permit any Intellectual Property to become invalid and (ii) the Grantor shall use
commercially reasonable efforts to obtain all requisite consents or approvals by the licensor of
each License that constitutes Collateral owned by the Grantor to effect the assignment of all the
Grantor’s right, title and interest thereunder to the Collateral Agent or its designee.



                    (vii) The Grantor shall execute, authenticate and deliver any and all assignments, agreements,
instruments, documents and papers as the Collateral Agent may reasonably request to evidence the
Collateral Agent’s security interest hereunder in such Intellectual Property and the General
Intangibles of the Grantor relating thereto or represented thereby, the Grantor hereby appoints the
Collateral Agent as its attorney-in-fact to execute and file such writings for the foregoing
purposes, all acts of such attorney being hereby ratified and confirmed; such power, being coupled
with an interest, is irrevocable.



               (h) Deposit, Commodities and Securities Accounts. On or prior to the date hereof, the
Grantor shall cause each bank and other financial institution with an account referred to in
Schedule IV hereto to execute and deliver to the Collateral Agent (or its designee) a control
agreement, in form and substance satisfactory to the Collateral Agent, duly executed by the Grantor
and such bank or financial institution, or enter into other arrangements in form and substance
satisfactory to the Collateral Agent, pursuant to which such institution shall irrevocably agree,
among other things, that (i) it will comply at any time with the instructions originated by the
Collateral Agent (or its designee) to such bank or financial institution directing the disposition
of cash, Commodity Contracts, securities, Investment Property and other items from time to time
credited to such account, without further consent of the Grantor, (ii) all cash, Commodity
Contracts, securities, Investment Property and other items of the Grantor deposited with such
institution shall be subject to a perfected, first priority security interest in favor of the
Collateral Agent (or its designee), (iii) any right of set off, banker’s Lien or other similar
Lien,



Exh. A-13









 




security interest or encumbrance shall be fully waived as against the Collateral Agent (or its
designee) and (iv) upon receipt of written notice from the Collateral Agent during the continuance
of an Event of Default, such bank or financial institution shall immediately send to the Collateral
Agent (or its designee) by wire transfer (to such account as the Collateral Agent (or its designee)
shall specify, or in such other manner as the Collateral Agent shall direct) all such cash, the
value of any Commodity Contracts, securities, Investment Property and other items held by it.
Without the prior written consent of the Collateral Agent, the Grantor shall not make or maintain
any Deposit Account, Commodity Account or Securities Account except for the accounts set forth in
Schedule IV hereto. The provisions of this Section 6(h) shall not apply to Deposit Accounts for
which the Collateral Agent is the depositary.




               (i) Control. The Grantor hereby agrees to take any or all action that may be necessary
or desirable or that the Collateral Agent may request in order for the Collateral Agent to obtain
control in accordance with Sections 9-104, 9-105, 9-106, and 9-107 of the Code with respect to the
following Collateral: (i) Deposit Accounts, (ii) Electronic Chattel Paper and (iii) Investment
Property. The Grantor hereby acknowledges and agrees that any agent or designee of the Collateral
Agent shall be deemed to be a “secured party” with respect to the Collateral under the control of
such agent or designee for all purposes.



               (j) Records; Inspection and Reporting.



                    (i) The Grantor shall keep reasonably adequate records concerning the Accounts, Insurance
Premium Loans, Chattel Paper and Pledged Interests. The Grantor shall permit any Agent or any
agents or representatives thereof or such professionals or other Persons as any Agent may designate
(A) unless an Event of Default has occurred and is continuing, upon reasonable prior notice and
during normal business hours, to examine and make copies of and abstracts from the Grantor’s books
and records, (B) unless an Event of Default has occurred and is continuing, upon reasonable prior
notice and during normal business hours, to visit and inspect its properties, (C) to verify
materials, leases, notes, Accounts, Insurance Premium Loans and other assets of the Grantor from
time to time, (D) to conduct audits, physical counts, appraisals and/or valuations or examinations
at the locations of the Grantor and (E) to discuss the Grantor’s affairs, finances and accounts
with any of its directors, officers, managerial employees, independent accountants or any of its
other representatives, in each case as provided in the Financing Agreement.



                    (ii) Except as otherwise expressly permitted by Section 7.02(m) of the Financing Agreement,
the Grantor shall not, without the prior written consent of the Collateral Agent, change (A) its
name, identity or organizational structure, (B) its jurisdiction of incorporation or organization
as set forth in Schedule I hereto or (C) its chief executive office as set forth in Schedule III
hereto. The Grantor shall immediately notify the Collateral Agent upon obtaining an organizational
identification number, if on the date hereof the Grantor did not have such identification number.



               (k) Partnership and Limited Liability Company Interest. Each interest in any limited
liability company or partnership controlled by the Grantor and pledged hereunder shall be (i)
represented by a certificate, (ii) deemed a “security” within the meaning of Article 8 of the UCC
and (iii) shall be governed by Article 8 of the UCC.



Exh. A-14









 





          SECTION 7. Voting Rights, Dividends, Etc. in Respect of the Pledged Interests.




               (a) So long as no Event of Default shall have occurred and be continuing:



                    (i) the Grantor may exercise any and all voting and other consensual rights pertaining to any
Pledged Interests for any purpose not inconsistent with the terms of this Agreement, the Financing
Agreement or the other Loan Documents; provided, however, that (A) the Grantor will
give the Collateral Agent at least five (5) Business Days’ written notice of the manner in which it
intends to exercise, or the reasons for refraining from exercising, any such right that could
reasonably be expected to adversely affect in any material respect the value, liquidity or
marketability of any Collateral or the creation, perfection and priority of the Collateral Agent’s
Lien; and (B) the Grantor will not exercise or refrain from exercising any such right, as the case
may be, if the Collateral Agent gives the Grantor written notice that, in the Collateral Agent’s
reasonable business judgment, such action (or inaction) could reasonably be expected to adversely
affect in any material respect the value, liquidity or marketability of any Collateral or the
creation, perfection and priority of the Collateral Agent’s Lien; and



                    (ii) the Grantor may receive and retain any and all dividends, interest or other distributions
paid in respect of the Pledged Interests to the extent permitted by the Financing Agreement;
provided, however, that any and all (A) dividends and interest paid or payable
other than in cash in respect of, and Instruments and other property received, receivable or
otherwise distributed in respect of or in exchange for, any Pledged Interests, (B) dividends and
other distributions paid or payable in cash in respect of any Pledged Interests in connection with
a partial or total liquidation or dissolution or in connection with a reduction of capital, capital
surplus or paid-in surplus, and (C) cash paid, payable or otherwise distributed in redemption of,
or in exchange for, any Pledged Interests, together with any dividend, interest or other
distribution or payment which at the time of such payment was not permitted by the Financing
Agreement, shall be, and shall forthwith be delivered to the Collateral Agent, to hold as, Pledged
Interests and shall, if received by the Grantor, be received in trust for the benefit of the
Collateral Agent, shall be segregated from the other property or funds of the Grantor, and shall be
forthwith delivered to the Collateral Agent in the exact form received with any necessary
indorsement and/or appropriate stock powers duly executed in blank, to be held by the Collateral
Agent as Pledged Interests and as further collateral security for the Secured Obligations; and



                    (iii) the Collateral Agent will execute and deliver (or cause to be executed and delivered) to
the Grantor all such proxies and other instruments as the Grantor may reasonably request for the
purpose of enabling the Grantor to exercise the voting and other rights which it is entitled to
exercise pursuant to Section 7(a)(i) hereof and to receive the dividends, interest and/or other
distributions which it is authorized to receive and retain pursuant to Section 7(a)(ii) hereof.



               (b) Upon the occurrence and during the continuance of an Event of Default:



Exh. A-15









 





                    (i) all rights of the Grantor to exercise the voting and other consensual rights which it
would otherwise be entitled to exercise pursuant to Section 7(a)(i) hereof, and to receive the
dividends, distributions, interest and other payments that it would otherwise be authorized to
receive and retain pursuant to Section 7(a)(ii) hereof, shall cease, and all such rights shall
thereupon become vested in the Collateral Agent, which shall thereupon have the sole right to
exercise such voting and other consensual rights and to receive and hold as Pledged Interests such
dividends, distributions and interest payments;



                    (ii) the Collateral Agent is authorized to notify each debtor with respect to the Pledged Debt
to make payment directly to the Collateral Agent (or its designee) and may collect any and all
moneys due or to become due to the Grantor in respect of the Pledged Debt, and the Grantor hereby
authorizes each such debtor to make such payment directly to the Collateral Agent (or its designee)
without any duty of inquiry;



                    (iii) without limiting the generality of the foregoing, the Collateral Agent may at its option
exercise any and all rights of conversion, exchange, subscription or any other rights, privileges
or options pertaining to any of the Pledged Interests as if it were the absolute owner thereof,
including, without limitation, the right to exchange, in its discretion, any and all of the Pledged
Interests upon the merger, consolidation, reorganization, recapitalization or other adjustment of
any Pledged Issuer, or upon the exercise by any Pledged Issuer of any right, privilege or option
pertaining to any Pledged Interests, and, in connection therewith, to deposit and deliver any and
all of the Pledged Interests with any committee, depository, transfer agent, registrar or other
designated agent upon such terms and conditions as it may reasonably determine; and



                    (iv) all dividends, distributions, interest and other payments that are received by the
Grantor contrary to the provisions of Section 7(b)(i) hereof shall be received in trust for the
benefit of the Collateral Agent, shall be segregated from other funds of the Grantor, and shall be
forthwith paid over to the Collateral Agent as Pledged Interests in the exact form received with
any necessary indorsement and/or appropriate stock powers duly executed in blank, to be held by the
Collateral Agent as Pledged Interests and as further collateral security for the Secured
Obligations.



          SECTION 8. Additional Provisions Concerning the Collateral.




               (a) To the maximum extent permitted by applicable law, and for the purpose of taking any
action that the Collateral Agent may deem necessary or advisable to accomplish the purposes of this
Agreement, the Grantor hereby (i) authorizes the Collateral Agent to execute any such agreements,
instruments or other documents in the Grantor’s name and to file such agreements, instruments or
other documents in the Grantor’s name and in any appropriate filing office, (ii) authorizes the
Collateral Agent at any time and from time to time to file, one or more financing or continuation
statements and amendments thereto, relating to the Collateral (including, without limitation, any
such financing statements that (A) describe the Collateral as “all assets” or “all personal
property” (or words of similar effect) or that describe or identify the Collateral by type or in
any other manner as the Collateral Agent may determine, regardless of whether any particular asset
of the Grantor falls within the scope of Article 9 of the Uniform Commercial Code or whether any
particular asset of the Grantor constitutes part of the



Exh. A-16









 




Collateral, and (B) contain any other information required by Part 5 of Article 9 of the Code
for the sufficiency or filing office acceptance of any financing statement, continuation statement
or amendment, including, without limitation, whether the Grantor is an organization, the type of
organization and any organizational identification number issued to the Grantor) and (iii) ratifies
such authorization to the extent that the Collateral Agent has filed any such financing statements,
continuation statements, or amendments thereto, prior to the date hereof. A photocopy or other
reproduction of this Agreement or any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law.




               (b) The Grantor hereby irrevocably appoints the Collateral Agent as its attorney-in-fact and
proxy, with full authority in the place and stead of the Grantor and in the name of the Grantor or
otherwise, from time to time in the Collateral Agent’s discretion after the occurrence and during
the continuance of an Event of Default, to take any action and to execute any instrument that the
Collateral Agent may deem necessary or advisable to accomplish the purposes of this Agreement
(subject to the rights of the Grantor under Section 6 hereof and Section 7(a) hereof), including,
without limitation, (i) to obtain and adjust insurance required to be paid to the Collateral Agent
pursuant to the Financing Agreement, (ii) to ask, demand, collect, sue for, recover, compound,
receive and give acquittance and receipts for moneys due and to become due under or in respect of
any Collateral, (iii) to receive, endorse, and collect any drafts or other Instruments, Documents
and Chattel Paper in connection with clause (i) or (ii) above, (iv) to receive, indorse and collect
all Instruments made payable to the Grantor representing any dividend, interest payment or other
distribution in respect of any Pledged Interests and to give full discharge for the same, (v) to
file any claims or take any action or institute any proceedings which the Collateral Agent may deem
necessary or desirable for the collection of any Collateral or otherwise to enforce the rights of
the Collateral Agent and the Lenders with respect to any Collateral, (vi) to execute assignments,
licenses and other documents to enforce the rights of the Collateral Agent and the Lenders with
respect to any Collateral, (vii) to pay or discharge taxes or Liens levied or placed upon or
threatened against the Collateral, the legality or validity thereof and the amounts necessary to
discharge the same to be determined by the Collateral Agent in its sole discretion, and such
payments made by the Collateral Agent to become Obligations of the Grantor to the Collateral Agent,
due and payable immediately without demand, and (viii) to sign and endorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, assignments, verifications and
notices in connection with Accounts, Chattel Paper and other documents relating to the Collateral.
This power is coupled with an interest and is irrevocable until the date on which all of the
Secured Obligations have been indefeasibly paid in full in cash after the termination of each
Lender’s Commitment and each of the Loan Documents.



               (c) For the purpose of enabling the Collateral Agent to exercise rights and remedies
hereunder, at such time as the Collateral Agent shall be lawfully entitled to exercise such rights
and remedies, and for no other purpose, the Grantor hereby (i) grants to the Collateral Agent an
irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to
the Grantor) to use, assign, license or sublicense any Intellectual Property now or hereafter owned
by the Grantor, wherever the same may be located, including in such license reasonable access to
all media in which any of the licensed items may be recorded or stored and to all computer programs
used for the compilation or printout thereof; and (ii) assigns to the Collateral Agent, to the
extent assignable, all of its rights to any Intellectual Property now or hereafter licensed or used
by the Grantor. Notwithstanding anything contained



Exh. A-17









 




herein to the contrary, but subject to the provisions of the Financing Agreement that limit
the right of the Grantor to dispose of its property and Section 6(g) hereof, so long as no Event of
Default shall have occurred and be continuing, the Grantor may exploit, use, enjoy, protect,
license, sublicense, assign, sell, dispose of or take other actions with respect to the
Intellectual Property in the ordinary course of its business. In furtherance of the foregoing,
unless an Event of Default shall have occurred and be continuing, the Collateral Agent shall from
time to time, upon the request of the Grantor, execute and deliver any instruments, certificates or
other documents, in the form so requested, which the Grantor shall have certified are appropriate
(in the Grantor’s judgment) to allow it to take any action permitted above (including
relinquishment of the license provided pursuant to this clause (c) as to any Intellectual
Property). Further, upon the date on which all of the Secured Obligations have been indefeasibly
paid in full in cash after the termination of each Lender’s Commitment and each of the Loan
Documents, the Collateral Agent (subject to Section 13(e) hereof) shall release and reassign to the
Grantor all of the Collateral Agent’s right, title and interest in and to the Intellectual
Property, all without recourse, representation or warranty whatsoever and at the Grantor’s sole
expense. The exercise of rights and remedies hereunder by the Collateral Agent shall not terminate
the rights of the holders of any licenses or sublicenses theretofore granted by the Grantor in
accordance with the second sentence of this clause (c). The Grantor hereby releases the Collateral
Agent from any claims, causes of action and demands at any time arising out of or with respect to
any actions taken or omitted to be taken by the Collateral Agent under the powers of attorney
granted herein other than actions taken or omitted to be taken through the Collateral Agent’s gross
negligence or willful misconduct, as determined by a final determination of a court of competent
jurisdiction.




               (d) If the Grantor fails to perform any agreement or obligation contained herein, the
Collateral Agent may itself perform, or cause performance of, such agreement or obligation, in the
name of the Grantor or the Collateral Agent, and the expenses of the Collateral Agent incurred in
connection therewith shall be payable by the Grantor pursuant to Section 10 hereof and shall be
secured by the Collateral.



               (e) The powers conferred on the Collateral Agent hereunder are solely to protect its interest
in the Collateral and shall not impose any duty upon it to exercise any such powers. Other than the
exercise of reasonable care to assure the safe custody of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Collateral Agent shall have no duty as
to any Collateral or as to the taking of any necessary steps to preserve rights against prior
parties or any other rights pertaining to any Collateral and shall be relieved of all
responsibility for any Collateral in its possession upon surrendering it or tendering surrender of
it to the Grantor (or whomsoever shall be lawfully entitled to receive the same or as a court of
competent jurisdiction shall direct). The Collateral Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any Collateral in its possession if such
Collateral is accorded treatment substantially equal to that which the Collateral Agent accords its
own property, it being understood that the Collateral Agent shall not have responsibility for
ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relating to any Collateral, whether or not the Collateral Agent has or is deemed to
have knowledge of such matters. The Collateral Agent shall not be liable or responsible for any
loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of
the act or omission of any warehouseman, carrier, forwarding agency, consignee or other agent or
bailee selected by the Collateral Agent in good faith.



Exh. A-18









 





               (f) The Collateral Agent may at any time in its discretion (i) without notice to the Grantor,
transfer or register in the name of the Collateral Agent or any of its nominees any or all of the
Pledged Interests, subject only to the revocable rights of the Grantor under Section 7(a) hereof,
and (ii) exchange certificates or Instruments constituting Pledged Interests for certificates or
Instruments of smaller or larger denominations.



          SECTION 9. Remedies Upon Default. If any Event of Default shall have occurred and be
continuing:




               (a) The Collateral Agent may exercise in respect of the Collateral, in addition to any other
rights and remedies provided for herein or otherwise available to it, all of the rights and
remedies of a secured party upon default under the Code (whether or not the Code applies to the
affected Collateral), and also may (i) take absolute control of the Collateral, including, without
limitation, transfer into the Collateral Agent’s name or into the name of its nominee or nominees
(to the extent the Collateral Agent has not theretofore done so) and thereafter receive, for the
benefit of the Collateral Agent and the Lenders, all payments made thereon, give all consents,
waivers and ratifications in respect thereof and otherwise act with respect thereto as though it
were the outright owner thereof, (ii) require the Grantor to, and the Grantor hereby agrees that it
will at its expense and upon request of the Collateral Agent forthwith, assemble all or part of the
Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a
place or places to be designated by the Collateral Agent that is reasonably convenient to both
parties, and the Collateral Agent may enter into and occupy any premises owned or leased by the
Grantor where the Collateral or any part thereof is located or assembled for a reasonable period in
order to effectuate the Collateral Agent’s rights and remedies hereunder or under law, without
obligation to the Grantor in respect of such occupation, and (iii) without notice except as
specified below and without any obligation to prepare or process the Collateral for sale, (A) sell
the Collateral or any part thereof in one or more parcels at public or private sale, at any of the
Collateral Agent’s offices, at any exchange or broker’s board or elsewhere, for cash, on credit or
for future delivery, and at such price or prices and upon such other terms as the Collateral Agent
may deem commercially reasonable and/or (B) lease, license or otherwise dispose of the Collateral
or any part thereof upon such terms as the Collateral Agent may deem commercially reasonable. The
Grantor agrees that, to the extent notice of sale or any other disposition of the Collateral shall
be required by law, at least five (5) Business Days’ prior written notice to the Grantor of the
time and place of any public sale or the time after which any private sale or other disposition of
the Collateral is to be made shall constitute reasonable notification. The Collateral Agent shall
not be obligated to make any sale or other disposition of Collateral regardless of notice of sale
having been given. The Collateral Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned. The Grantor hereby waives any claims
against the Collateral Agent and the Lenders arising by reason of the fact that the price at which
the Collateral may have been sold at a private sale was less than the price which might have been
obtained at a public sale or was less than the aggregate amount of the Secured Obligations, even if
the Collateral Agent accepts the first offer received and does not offer the Collateral to more
than one offeree, and waives all rights that the Grantor may have to require that all or any part
of the Collateral be marshaled upon any sale (public or private) thereof. The Grantor hereby
acknowledges that (i) any such sale of the Collateral by the Collateral Agent shall be made without
warranty, (ii) the



Exh. A-19









 




Collateral Agent may specifically disclaim any warranties of title, possession, quiet
enjoyment or the like, (iii) the Collateral Agent may bid (which bid may be, in whole or in part,
in the form of cancellation of indebtedness), if permitted by law, for the purchase, lease, license
or other disposition of the Collateral or any portion thereof for the account of the Collateral
Agent (on behalf of itself and the Lenders) and (iv) such actions set forth in clauses (i), (ii)
and (iii) above shall not adversely affect the commercial reasonableness of any such sale of the
Collateral. In addition to the foregoing, (i) upon written notice to the Grantor from the
Collateral Agent, the Grantor shall cease any use of the Intellectual Property or any trademark,
patent or copyright similar thereto for any purpose described in such notice; (ii) the Collateral
Agent may, at any time and from time to time, upon five (5) Business Days’ prior written notice to
the Grantor, license, whether general, special or otherwise, and whether on an exclusive or
non-exclusive basis, any of the Intellectual Property, throughout the universe for such term or
terms, on such conditions, and in such manner, as the Collateral Agent shall in its sole discretion
determine; and (iii) the Collateral Agent may, at any time, pursuant to the authority granted in
Section 8 hereof (such authority being effective upon the occurrence and during the continuance of
an Event of Default), execute and deliver on behalf of the Grantor, one or more instruments of
assignment of the Intellectual Property (or any application or registration thereof), in form
suitable for filing, recording or registration in any country.




               (b) In the event that the Collateral Agent determines to exercise its right to sell all or any
part of the Pledged Interests pursuant to Section 9(a) hereof, the Grantor will, at the Grantor’s
expense and upon request by the Collateral Agent: (i) execute and deliver, and cause each issuer of
such Pledged Interests and the directors and officers thereof to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts and things, as may be
necessary or, in the reasonable opinion of the Collateral Agent, advisable to register such Pledged
Interests under the provisions of the Securities Act, and to cause the registration statement
relating thereto to become effective and to remain effective for such period as prospectuses are
required by law to be furnished, and to make all amendments and supplements thereto and to the
related prospectus which, in the reasonable opinion of the Collateral Agent, are necessary or
advisable, all in conformity with the requirements of the Securities Act and the rules and
regulations of the SEC applicable thereto, (ii) cause each issuer of such Pledged Interests to
qualify such Pledged Interests under the state securities or “Blue Sky” laws of each jurisdiction,
and to obtain all necessary governmental approvals for the sale of the Pledged Interests, as
requested by the Collateral Agent, (iii) cause each Pledged Issuer to make available to its
securityholders, as soon as practicable, an earnings statement which will satisfy the provisions of
Section 11(a) of the Securities Act, and (iv) do or cause to be done all such other acts and things
as may be necessary to make such sale of such Pledged Interests valid and binding and in compliance
with applicable law. The Grantor acknowledges the impossibility of ascertaining the amount of
damages which would be suffered by the Collateral Agent by reason of the failure by the Grantor to
perform any of the covenants contained in this Section 9(b) and, consequently, agrees that, if the
Grantor fails to perform any of such covenants, it shall pay, as liquidated damages and not as a
penalty, an amount equal to the value of the Pledged Interests on the date the Collateral Agent
demands compliance with this Section 9(b); provided, however, that the payment of
such amount shall not release the Grantor from any of its obligations under any of the other Loan
Documents.



Exh. A-20









 





               (c) Notwithstanding the provisions of Section 9(b) hereof, the Grantor recognizes that the
Collateral Agent may deem it impracticable to effect a public sale of all or any part of the
Pledged Shares or any other securities constituting Pledged Interests and that the Collateral Agent
may, therefore, determine to make one or more private sales of any such securities to a restricted
group of purchasers who will be obligated to agree, among other things, to acquire such securities
for their own account, for investment and not with a view to the distribution or resale thereof.
The Grantor acknowledges that any such private sale may be at prices and on terms less favorable to
the seller than the prices and other terms which might have been obtained at a public sale and,
notwithstanding the foregoing, agrees that such private sales shall be deemed to have been made in
a commercially reasonable manner and that the Collateral Agent shall have no obligation to delay
the sale of any such securities for the period of time necessary to permit the issuer of such
securities to register such securities for public sale under the Securities Act. The Grantor
further acknowledges and agrees that any offer to sell such securities which has been (i) publicly
advertised on a bona fide basis in a newspaper or other publication of general circulation in the
financial community of New York, New York (to the extent that such an offer may be so advertised
without prior registration under the Securities Act) or (ii) made privately in the manner described
above to not less than fifteen bona fide offerees shall be deemed to involve a
“public disposition” for the purposes of Section 9-610(c) of the Code (or any successor or similar,
applicable statutory provision) as then in effect in the State of New York, notwithstanding that
such sale may not constitute a “public offering” under the Securities Act, and that the Collateral
Agent may, in such event, bid for the purchase of such securities.



               (d) Any cash held by the Collateral Agent (or its agent or designee) as Collateral and all
Cash Proceeds received by the Collateral Agent (or its agent or designee) in respect of any sale of
or collection from, or other realization upon, all or any part of the Collateral may, in the
discretion of the Collateral Agent, be held by the Collateral Agent (or its agent or designee) as
collateral for, and/or then or at any time thereafter applied (after payment of any amounts payable
to the Collateral Agent pursuant to Section 10 hereof) in whole or in part by the Collateral Agent
against, all or any part of the Secured Obligations in such order as the Collateral Agent shall
elect, consistent with the provisions of the Financing Agreement. Any surplus of such cash or Cash
Proceeds held by the Collateral Agent (or its agent or designee) and remaining after the date on
which all of the Secured Obligations have been indefeasibly paid in full in cash after the
termination of each Lender’s Commitment and each of the Loan Documents, shall be paid over to
whomsoever shall be lawfully entitled to receive the same or as a court of competent jurisdiction
shall direct.



               (e) In the event that the proceeds of any such sale, collection or realization are
insufficient to pay all amounts to which the Collateral Agent and the Lenders are legally entitled,
the Grantor shall be liable for the deficiency, together with interest thereon at the highest rate
specified in any applicable Loan Document for interest on overdue principal thereof or such other
rate as shall be fixed by applicable law, together with the costs of collection and the reasonable
fees, costs, expenses and other client charges of any attorneys employed by the Collateral Agent to
collect such deficiency.



               (f) The Grantor hereby acknowledges that if the Collateral Agent complies with any applicable
requirements of law in connection with a disposition of the



Exh. A-21









 




Collateral, such compliance will not adversely affect the commercial reasonableness of any
sale or other disposition of the Collateral.




               (g) The Collateral Agent shall not be required to marshal any present or future collateral
security (including, but not limited to, this Agreement and the Collateral) for, or other
assurances of payment of, the Secured Obligations or any of them or to resort to such collateral
security or other assurances of payment in any particular order, and all of the Collateral Agent’s
rights hereunder and in respect of such collateral security and other assurances of payment shall
be cumulative and in addition to all other rights, however existing or arising. To the extent that
the Grantor lawfully may, the Grantor hereby agrees that it will not invoke any law relating to the
marshalling of collateral which might cause delay in or impede the enforcement of the Collateral
Agent’s rights under this Agreement or under any other instrument creating or evidencing any of the
Secured Obligations or under which any of the Secured Obligations is outstanding or by which any of
the Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent that
it lawfully may, the Grantor hereby irrevocably waives the benefits of all such laws.



          SECTION 10. Indemnity and Expenses.




               (a) The Grantor agrees to defend, protect, indemnify and hold harmless each Agent and each
other Indemnitee from and against any and all claims, losses, damages, liabilities, obligations,
penalties, fees, reasonable costs and expenses (including, without limitation, reasonable
attorneys’ fees, costs, expenses and disbursements) incurred by such Agent or such Indemnitee to
the extent that they arise out of or otherwise result from or relate to or are in connection with
this Agreement (including, without limitation, enforcement of this Agreement), except claims,
losses or liabilities resulting solely and directly from such Agent’s or any such Indemnitee’s
gross negligence or willful misconduct, as determined by a final judgment of a court of competent
jurisdiction.



               (b) The Grantor agrees to pay to the Agents upon demand the amount of any and all costs and
expenses, including the reasonable fees, costs, expenses and disbursements of counsel for the
Agents and of any experts and agents (including, without limitation, any collateral trustee which
may act as agent of the Agents), which the Agents may incur in connection with (i) the preparation,
negotiation, execution, delivery, recordation, administration, amendment, waiver or other
modification or termination of this Agreement, (ii) the custody, preservation, use or operation of,
or the sale of, collection from, or other realization upon, any Collateral, (iii) the exercise or
enforcement of any of the rights of the Agents hereunder, or (iv) the failure by the Grantor to
perform or observe any of the provisions hereof.



          SECTION 11. Notices, Etc. All notices and other communications provided for hereunder
shall be given in accordance with the notice provision of the Financing Agreement.




          SECTION 12. Security Interest Absolute; Joint and Several Obligations.




               (a) All rights of the Secured Parties, all Liens and all obligations of the Grantor hereunder
shall be absolute and unconditional irrespective of (i) any lack of validity or enforceability of
the Financing Agreement or any other Loan Document, (ii) any change in the



Exh. A-22









 




time, manner or place of payment of, or in any other term in respect of, all or any of the
Secured Obligations, or any other amendment or waiver of or consent to any departure from the
Financing Agreement or any other Loan Document, (iii) any exchange or release of, or non-perfection
of any Lien on any Collateral, or any release or amendment or waiver of or consent to departure
from any guaranty, for all or any of the Secured Obligations, or (iv) any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the Grantor in respect of the
Secured Obligations. All authorizations and agencies contained herein with respect to any of the
Collateral are irrevocable and powers coupled with an interest.




               (b) The Grantor hereby waives (i) promptness and diligence, (ii) notice of acceptance and
notice of the incurrence of any Obligation by any Borrower, (iii) notice of any actions taken by
any Agent, any Lender, any Guarantor or any other Person under any Loan Document or any other
agreement, document or instrument relating thereto, (iv) all other notices, demands and protests,
and all other formalities of every kind in connection with the enforcement of the Obligations, the
omission of or delay in which, but for the provisions of this subsection (b), might constitute
grounds for relieving the Grantor of any of Grantor’s obligations hereunder and (v) any requirement
that any Agent or any Lender protect, secure, perfect or insure any security interest or other lien
on any property subject thereto or exhaust any right or take any action against the Grantor or any
other Person or any collateral.



          SECTION 13. Miscellaneous.




               (a) No amendment of any provision of this Agreement (including any Schedule attached hereto)
shall be effective unless it is in writing and signed by the Grantor affected thereby and the
Collateral Agent, and no waiver of any provision of this Agreement, and no consent to any departure
by the Grantor therefrom, shall be effective unless it is in writing and signed by the Collateral
Agent, and then such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.



               (b) No failure on the part of the Secured Parties to exercise, and no delay in exercising, any
right hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The rights and remedies of the Secured Parties provided herein and in
the other Loan Documents are cumulative and are in addition to, and not exclusive of, any rights or
remedies provided by law. The rights of the Secured Parties under any Loan Document against any
party thereto are not conditional or contingent on any attempt by such Person to exercise any of
its rights under any other Loan Document against such party or against any other Person, including
but not limited to, the Grantor.



               (c) This Agreement shall create a continuing security interest in the Collateral and shall (i)
remain in full force and effect, subject to paragraph (e) below, until the date on which all of the
Secured Obligations have been indefeasibly paid in full in cash after the termination of each
Lender’s Commitment and each of the Loan Documents and (ii) be binding on the Grantor all other
Persons who become bound as debtor to this Agreement in accordance with Section 9-203(d) of the
Code, and shall inure, together with all rights and remedies of the Secured Parties hereunder, to
the benefit of the Secured Parties and their respective successors, transferees and assigns.
Without limiting the generality of clause (ii) of the immediately



Exh. A-23









 




preceding sentence, the Secured Parties may assign or otherwise transfer their respective
rights and obligations under this Agreement and any other Loan Document to any other Person
pursuant to the terms of the Financing Agreement, and such other Person shall thereupon become
vested with all of the benefits in respect thereof granted to the Secured Parties and herein or
otherwise. Upon any such assignment or transfer, all references in this Agreement to any Secured
Party shall mean the assignee of any such Secured Party. None of the rights or obligations of the
Grantor hereunder may be assigned or otherwise transferred without the prior written consent of the
Collateral Agent, and any such assignment or transfer shall be null and void.




               (d) Upon the date on which all of the Secured Obligations have been indefeasibly paid in full
in cash after the termination of each Lender’s Commitment and each of the Loan Documents, (i)
subject to paragraph (e) below, this Agreement and the security interests and licenses created
hereby shall terminate and all rights to the Collateral shall revert to the Grantor and (ii) the
Collateral Agent will, upon the Grantor’s request and at the Grantor’s expense, without any
representation, warranty or recourse whatsoever, (A) return to the Grantor (or whomsoever shall be
lawfully entitled to receive the same or as a court of competent jurisdiction shall direct) such of
the Collateral as shall not have been sold or otherwise disposed of or applied pursuant to the
terms hereof and (B) execute and deliver to the Grantor such documents as the Grantor shall
reasonably request to evidence such termination.



               (e) This Agreement shall remain in full force and effect and continue to be effective should
any petition be filed by or against the Grantor for liquidation or reorganization, should the
Grantor become insolvent or make an assignment for the benefit of any creditor or creditors or
should a receiver or trustee be appointed for all or any significant part of the Grantor’s assets,
and shall continue to be effective or be reinstated, as the case may be, if at any time payment or
performance of the Secured Obligations, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the
Secured Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all
as though such payment or performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Secured Obligations shall be reinstated
and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.



               (f) THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE
EXTENT THAT THE VALIDITY AND PERFECTION OR THE PERFECTION AND THE EFFECT OF PERFECTION OR
NON-PERFECTION OF THE SECURITY INTEREST CREATED HEREBY, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.



               (g) In addition to and without limitation of any of the foregoing, this Agreement shall be
deemed to be a Loan Document and shall otherwise be subject to all of terms and conditions
contained in Sections 12.10 and 12.11 of the Financing Agreement, mutatis mutandi.



Exh. A-24









 





               (h) The Grantor irrevocably and unconditionally waives any right it may have to claim or
recover in any legal action, suit or proceeding with respect to this Agreement any special,
exemplary, punitive or consequential damages.



               (i) Any provision of this Agreement which 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 thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.



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



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



[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]








Exh. A-25









 








          IN WITNESS WHEREOF, the Grantor has caused this Agreement to be executed and delivered by its
officer thereunto duly authorized, as of the date first above written.




	 	 	 	 	 
	 	GRANTOR:



IMPERIAL PFC FINANCING II, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	David Manchester 	 
	 	 	Title:  	Senior Vice President 	 
	 



[SIGNATURE PAGE TO SECURITY AGREEMENT]





 












 





SCHEDULE I




LEGAL NAME; ORGANIZATIONAL IDENTIFICATION NUMBER;

STATE OR JURISDICTION OF ORGANIZATION



	 	 	 

	Legal Name
	 	Imperial PFC Financing II, LLC
	State or Jurisdiction of Organization
	 	Georgia
	Type of Organization
	 	Limited Liability Company
	Organizational Indemnification Number
	 	09008735






Sched. I-1









 






SCHEDULE II




INTELLECTUAL PROPERTY; TRADE NAMES



	 	 	 	 	 	 	 	 	 

	A.	 	COPYRIGHTS	 	 	 	 
	 	 	 
	 	 	 	 	 	 
	 	 	1.
	 	Registered Copyrights	 	—	 	none
	 	 	 
	 	 	 	 	 	 
	 	 	2.
	 	Copyright Applications	 	—	 	none
	 	 	 
	 	 	 	 	 	 
	B.	 	PATENTS	 	 	 	 
	 	 	 
	 	 	 	 	 	 
	 	 	1.
	 	Patents	 	—	 	none
	 	 	 
	 	 	 	 	 	 
	 	 	2.
	 	Patent Applications	 	—	 	none
	 	 	 
	 	 	 	 	 	 
	C.	 	TRADEMARKS	 	 	 	 
	 	 	 
	 	 	 	 	 	 
	 	 	1.
	 	Registered Trademarks	 	—	 	none
	 	 	 
	 	 	 	 	 	 
	 	 	2.
	 	Trademark Applications	 	—	 	none
	 	 	 
	 	 	 	 	 	 
	D.	 	OTHER PROPRIETARY RIGHTS	 	 	 	 
	 	 	 
	 	 	 	 	 	 
	E.	 	TRADE NAMES	 	—	 	none
	 	 	 
	 	 	 	 	 	 
	F.	 	NAME OF, AND EACH TRADE NAME USED BY, EACH
PERSON FROM WHICH THE GRANTOR HAS ACQUIRED ANY
SUBSTANTIAL PART OF THE COLLATERAL WITHIN THE
PRECEDING FIVE YEARS	 	—	 	none






Sched. II-1









 






SCHEDULE III




LOCATIONS OF GRANTOR



	 	 	 

	Location

	 	Description of Location (state if Location
	 

	 	(i) contains Collateral
	 

	 	(ii) is chief place of business and chief
executive office, or
	 

	 	(iii) contains Records concerning Accounts,
Insurance Premium Loans and originals of
Chattel Paper)
	 
	 	 
	Chief Place of Business

	 	701 Park of Commerce Blvd., Suite 301, Boca
Raton, FL 33487
	 
	 	 
	Chief Executive Office

	 	191 Peachtree Street NE, Suite 3300, Atlanta,
GA 30303
	 
	 	 
	Location of Records
concerning Accounts,
Insurance Premium Loans
and originals of Chattel
Paper

	 	701 Park of Commerce Blvd., Suite 301, Boca
Raton, FL 33487
	 
	 	 
	Location of Collateral

	 	701 Park of Commerce Blvd., Suite 301, Boca
Raton, FL 33487






Sched. III-1









 






SCHEDULE IV




DEPOSIT ACCOUNTS, SECURITIES ACCOUNTS AND COMMODITIES ACCOUNTS



	 	 	 

	Name and Address of


Institution Maintaining Account
	 	Wachovia Bank
	 
	 	 
	Account Name
	 	Imperial PFC Financing II, LLC
	 
	 	 
	Type of Account
	 	Collection
	 
	 	 






	 	 	 

	Name and Address of 

Institution Maintaining Account
	 	Wachovia Bank
	 
	 	 
	Account Name
	 	Imperial PFC Financing II, LLC
	 
	 	 
	Type of Account
	 	Operating
	 
	 	 






	 	 	 

	Name and Address of


Institution Maintaining Account

	 	Wachovia Bank
	 
	 	 
	Account Name

	 	Imperial PFC Financing II, LLC
	 
	 	 
	Type of Account

	 	Reserve






Sched. IV-1









 






SCHEDULE V




UCC FINANCING STATEMENTS


UCC Financing Statements have been filed in the jurisdictions below against the Grantor:




	 	 	 
	Name of Grantor	 	Jurisdiction - Filing Office
	Imperial PFC Financing II, LLC

	 	Florida Secured Transaction Registry
	 
	 	 
	Imperial PFC Financing II. LLC

	 	Georgia — Superior County Clerk, Fulton
County






Exh. B-1









 






SCHEDULE VI




COMMERCIAL TORT CLAIMS



None



Sched.VI-1









 





SCHEDULE VII




PLEDGED DEBT



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Principal Amount	 
	Grantor	 	 	Name of Maker	 	 	Description	 	 	Outstanding as of	 





None






Sched. VII-1









 








SCHEDULE VIII




PLEDGED SHARES



None



	 	 	 	 	 	 	 	 	 	 	 
	 	 	Name of Pledged	 	 	 	Percentage of	 	 	 	 
	Grantor	 	Issuer	 	Number of Shares	 	Outstanding Shares	 	Class	 	Certificate Number
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 





Sched. VIII-1









 






EXHIBIT A




PLEDGE AMENDMENT



          This Pledge Amendment, dated                      ___, ___, is delivered pursuant to Section 4 of the
Pledge and Security Agreement referred to below. The undersigned hereby agrees that this Pledge
Amendment may be attached to the Pledge and Security Agreement, dated                                         , 2009, as it may heretofore
have been or hereafter may be amended, restated, supplemented, modified or otherwise changed from
time to time (the “Security Agreement”) and that the promissory notes or shares listed on
this Pledge Amendment shall be hereby pledged and assigned to the Collateral Agent and become part
of the Pledged Interests referred to in such Pledge Agreement and shall secure all of the Secured
Obligations referred to in such Security Agreement.



Pledged Debt




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount
	Grantor	 	Name of Maker	 	Description	 	Outstanding as of
	 
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 





Pledged Shares




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage of	 	 	 	 
	 	 	Name of	 	Number of	 	Outstanding	 	 	 	Certificate
	Grantor	 	Pledged Issuer	 	Shares	 	Shares	 	Class	 	Number
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 





	 	 	 	 	 
	 	[GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



                                                            ,

as the Collateral Agent




	 	 	 	 	 
	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 



Exh. A-1









 






	 	 	 	 	 



EXHIBIT B




NOTICE OF BORROWING



[LETTERHEAD OF THE BORROWER]



LoIC LLC, as Administrative Agent

     under the below-referenced Financing Agreement

New York City

275 Madison Avenue

27th Floor

New York, New York 10016

Attention: David Nussbaum

Telecopier:                                                             



Ladies and Gentlemen:





          The undersigned, Imperial PFC Financing II, LLC, a Georgia limited liability company (the
“Borrower”), refers to the Financing Agreement, dated as of                     , 2009 (as the same may
be further amended, supplemented or otherwise modified from time to time, the “Financing
Agreement”), by and among the Borrower, the lenders from time to time party thereto (each a
“Lender” and collectively, the “Lenders”), LoIC LLC, a Delaware limited liability company
(“LoIC”), as collateral agent for the Lender (in such capacity, the “Collateral Agent”),
and LoIC, as administrative agent for the Lender (in such capacity, the “Administrative
Agent” and together with the Collateral Agent, each an “Agent” and collectively, the
“Agents”), and hereby gives you notice pursuant to Section 2.02 of the Financing Agreement
that the undersigned hereby requests a Loan under the Financing Agreement, and in that connection
sets forth below the information relating to such Loan (the “Proposed Loan”) as required by
Section 2.02(a) of the Financing Agreement. All capitalized terms used but not defined herein have
the same meanings herein as set forth in the Financing Agreement.



          (i) The aggregate principal amount of the Proposed Loan is $                     [Proposed Loan amount
cannot exceed $4,000,000].



          (ii) The Proposed Loan shall bear interest on the principal amount thereof from time to time
outstanding from the borrowing date until repaid in full at a rate per annum equal to
[                    ].1 The Borrower hereby represents that as of the date hereof, none of it, its
parent or any Affiliate has entered into an agreement to finance premium insurance loans originated
or held by it at an interest rate higher than the interest rate specified in this clause (ii).





 




			
	1	 	This rate should be 20% unless the borrower
has entered into another transaction to finance premium insurance loans at a
higher interest rate in which case such higher interest rate should be filled
in here.




Exh. B-1









 










          (iii) The borrowing date of the Proposed Loan is                     .2



          (iv) The proceeds of the Proposed Loan should be made available to the undersigned by wire
transferring such proceeds in accordance with the payment instructions attached hereto as Exhibit
A.



[signature page follows]



The undersigned certifies that (i) the representations and warranties contained in Article VI of
the Financing Agreement and in each other Loan Document and certificate or other writing delivered
to any Agent or any Lender pursuant thereto on or prior to the date hereof are true and correct on
and as of the date hereof as though made on and as of the date hereof (except that any
representation and warranty made as of a specific date shall be true and correct as of such
specific date), (ii) no Default or Event of Default has occurred and is continuing or will result
from the making of the Proposed Loan or will occur or will be continuing on the date of the
Proposed Loan and (iii) all applicable conditions set forth in Article V of the Financing Agreement
have been satisfied as of the date hereof.




	 	 	 	 	 
	 	Very truly yours,



IMPERIAL PFC FINANCING II, LLC

 	 
	 	By:  	Imperial Premium Finance, LLC, its sole member
 	 
	 	 	 
	 	By:  	                                              Imperial Holdings, LLC, its managing member
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	Jonathan Neuman 	 
	 	 	Title:  	President 	 
	 





 




			
	2	 	This date must be a Business Day and not
occur more than once each week.




Exh. B-2









 










EXHIBIT A




Payment Instructions



[Wachovia Operating Account information to be provided]



 









 





EXHIBIT C




FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT


This ASSIGNMENT AND ACCEPTANCE AGREEMENT (“Assignment Agreement”) is entered into as of
                     ___, 20___between                      (“Assignor”) and                       
                   (“Assignee”).
Reference is made to the agreement described in Item 2 of Annex I annexed hereto
(as amended, restated, modified or otherwise supplemented from time to time, the “Financing
Agreement”). Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Financing Agreement.





          1. In accordance with the terms and conditions of Section 12.07 of the Financing
Agreement, the Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases
and assumes from the Assignor, that interest in and to the Assignor’s rights and obligations under
the Loan Documents as of the date hereof and the Commitments with respect to the Obligations owing
to the Assignor, and the Assignor’s portion of the Loans as specified on Annex I.



          2. The Assignor (a) represents and warrants that (i) 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 adverse
claim and (ii) it has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment Agreement and to consummate the transactions contemplated hereby; (b) makes
no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any
other instrument or document furnished pursuant thereto; and (c) makes no representation or
warranty and assumes no responsibility with respect to the financial condition of any Loan Party or
the performance or observance by any Loan Party of any of its obligations under the Loan Documents
or any other instrument or document furnished pursuant thereto.



          3. The Assignee (a) confirms that it has received copies of the Financing Agreement and the
other Loan Documents, together with copies of the financial statements referred to therein and such
other documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement; (b) agrees that it will, independently and
without reliance upon the Administrative Agent, the Collateral Agent, the Assignor, or any other
Lender, 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 Documents; (c)
appoints and authorizes each of the Administrative Agent and the Collateral Agent to take such
action as the Administrative Agent or the Collateral Agent (as the case may be) on its behalf and
to exercise such powers under the Loan Documents as are delegated to the Administrative Agent or
the Collateral Agent (as the case may be) by the terms thereof, together with such powers as are
reasonably incidental thereto; (d) agrees that it will perform in accordance with their terms all
of the obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender; and (e) attaches the forms prescribed by the Internal Revenue Service of the United States
certifying as to the Assignee’s status for



Exh. C-1









 




purposes of determining exemption from United States withholding taxes with respect to all
payments to be made to the Assignee under the Financing Agreement or such other documents as are
necessary to indicate that all such payments are subject to such rates at a rate reduced by an
applicable tax treaty.




          4. Following the execution of this Assignment Agreement by the Assignor and the Assignee, it
will be delivered by the Assignor to the Collateral Agent for recording by the Administrative
Agent. The effective date of this Assignment Agreement (the “Settlement Date”) shall be the
latest of (a) the date of the execution hereof by the Assignor and the Assignee, (b) the date this
Assignment Agreement has been accepted by the Collateral Agent and recorded in the Register, (c)
the date of receipt by the Collateral Agent of a processing and recordation fee in the amount of
$5,0003, (d) the settlement date specified on Annex I, and (e) the receipt by
Assignor of the Purchase Price specified in Annex I.



          5. As of the Settlement Date (a) the Assignee shall be a party to the Financing Agreement and,
to the extent of the interest assigned pursuant to this Assignment Agreement, have the rights and
obligations of a Lender thereunder and under the other Loan Documents, and (b) the Assignor shall,
to the extent of the interest assigned pursuant to this Assignment Agreement, relinquish its rights
and be released from its obligations under the Financing Agreement and the other Loan Documents.



          6. Upon recording by the Administrative Agent, from and after the Settlement Date, the
Administrative Agent shall make all payments under the Financing Agreement and the other Loan
Documents in respect of the interest assigned hereby (including, without limitation, all payments
of principal, interest and commitment fees (if applicable) with respect thereto) to the Assignee.
The Assignor and the Assignee shall make all appropriate adjustments in payments under the
Financing Agreement and the other Loan Documents for periods prior to the Settlement Date directly
between themselves on the Settlement Date.



          7. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISION (OTHER
THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).



          8. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BASED UPON OR ARISING OUT OF THIS ASSIGNMENT AGREEMENT OR ANY OF THE TRANSACTIONS
RELATED HERETO, AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.



          9. This Assignment Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which taken together shall





 




			
	3	 	Not applicable in connection with an
assignment by a Lender to a Lender, an Affiliate of such Lender or a Related
Fund of such Lender.




Exh. C-2









 









constitute one and the same agreement. Delivery of an executed counterpart of this Assignment
Agreement by facsimile or electronic mail shall be equally effective as delivery of an original
executed counterpart.




[Remainder of page left intentionally blank.]







Exh. C-3









 







IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by
their respective officers thereunto duly authorized, as of the date first above written.




	 	 	 	 	 
	 	[ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	Date:  	 	 
	 
	 	NOTICE ADDRESS FOR ASSIGNOR



[INSERT ADDRESS]

Telephone No.:

Telecopy No.:



[ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	Date:  	 	 
	 
	 	NOTICE ADDRESS FOR ASSIGNEE



[INSERT ADDRESS]

Telephone No.:

Telecopy No.:

 	 
	 	 	 



Exh. C-4









 






	 	 	 	 	 



ACCEPTED AND CONSENTED TO this _______day

of _____, 20_____



LoIC LLC, as Collateral Agent




	 	 	 	 	 
	 	 	 
	 	By:  	              EBC Asset Management, Inc., its Sole Member
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Exh. C-5











 





ANNEX FOR ASSIGNMENT AND ACCEPTANCE




ANNEX I




	1.	 	Borrower: Imperial PFC Financing II, LLC
	 
	2.	 	Name and Date of Financing Agreement:






Financing Agreement, dated as of , 2009, by and among Imperial PFC
Financing II, LLC, a Georgia limited liability company (the
“Borrower”), the lenders from time to time party thereto
(each a “Lender” and collectively, the “Lenders”), LoIC LLC,
a Delaware limited liability company (“LoIC”), as collateral agent
for the Lenders (in such capacity, the “Collateral Agent”),
and LoIC, as administrative agent for the Lenders (in such capacity,
the “Administrative Agent” and together with the Collateral
Agent, each an “Agent” and collectively, the
“Agents”).



	 	 	 	 	 	 	 

	3.
	 	Date of Assignment Agreement:	 	 	                    	 
	 
	 	 	 	 	 	 
	4.
	 	Amount of Commitments:	 	 	                    	 
	 
	 	 	 	 	 	 
	5.
	 	Amount of Loans:	 	 	                    	 
	 
	 	 	 	 	 	 
	6.
	 	Purchase Price:	 	 	                    	 
	 
	 	 	 	 	 	 
	7.
	 	Settlement Date:	 	 	                    	 






Exh. C-6















 








EXHIBIT D




FORM OF INDIVIDUAL GUARANTY



          INDIVIDUAL GUARANTY, dated as of                     , 2009, made by [Jonathan Neuman] [Antony Mitchell],
an individual with a principal address at [                    ] (the “Guarantor”), in favor of each
of the Lenders (as hereinafter defined) and LoIC LLC, a Delaware limited liability company
(“LoIC”), as Collateral Agent for the Lenders (in such capacity, the “Collateral Agent”)
pursuant to the Financing Agreement referred to below.




W I T N E S S E T H:




          WHEREAS, Imperial PFC Financing II, LLC, a Georgia limited liability company (the
“Borrower”), the lenders from time to time party thereto (each a “Lender” and
collectively, the “Lenders”), the Collateral Agent, and LoIC, as administrative agent for
the Lenders (in such capacity, the “Administrative Agent” and together with the Collateral
Agent, each an “Agent” and collectively, the “Agents”) are parties to a Financing
Agreement, dated as of                     , 2009 (such agreement, as amended, restated or otherwise modified from time
to time, being hereinafter referred to as the “Financing Agreement”);




          WHEREAS, pursuant to the Financing Agreement, the Lenders have agreed to make term loans (each
a “Loan” and collectively, the “Loans”) to the Borrower;




          WHEREAS, pursuant to Section 5.01(d) of the Financing Agreement, the Guarantor is required to
execute and deliver to the Agents a guaranty guaranteeing the Loans and all other Obligations under
the Financing Agreement under certain limited circumstances set forth in this Guaranty; and




          WHEREAS, the Guarantor has determined that his execution, delivery and performance of this
Guaranty directly benefit, and are within the purposes and in the best interests of, the Guarantor;




          NOW, THEREFORE, in consideration of the premises and the agreements herein and in order to
induce the Lenders to enter into the Financing Agreement and to make the Loans pursuant thereto,
the Guarantor hereby agrees with the Lenders and the Agents as follows:




          SECTION 1. Definitions. Reference is hereby made to the Financing Agreement for a
statement of the terms thereof. All terms used in this Guaranty which are defined in the Financing
Agreement and not otherwise defined herein shall have the same meanings herein as set forth
therein.




          SECTION 2. Guaranty. (a) The Guarantor hereby (i) irrevocably, absolutely and
unconditionally guarantees (A) the prompt payment by the Borrower, as and when due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), of all
Obligations from time to time owing in respect of the Financing Agreement or any other Loan
Document, whether for principal, interest (including, without limitation, all interest that accrues
after the commencement of any Insolvency Proceeding with respect to the Borrower, whether or not a
claim for post-filing interest is allowed in such proceeding), fees,






Exh. D-1









 







commissions, expense reimbursements, indemnifications or otherwise, and whether accruing
before or subsequent to the commencement of any Insolvency Proceeding with respect to the Borrower
(notwithstanding the operation of the automatic stay under Section 362(a) of the U.S. Bankruptcy
Code), and the due performance and observance by the Borrower of its other obligations now or
hereafter existing in respect of the Loan Documents, and (B) the full and completion performance by
Imperial Premium Finance, LLC of all of its obligations and duties under the Initial Servicing
Agreement (collectively, the “Guaranteed Obligations”), and (ii) agrees to pay any and all
expenses (including reasonable counsel fees and expenses) incurred by the Agents and the Lenders in
enforcing any rights under this Guaranty. Without limiting the generality of the foregoing, the
Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by the Borrower to the Agents and the Lenders under any Loan Document
but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving any Credit Party.




          (b) Notwithstanding anything contained in this Guaranty, except as provided in clause (ii) of
this Section 2(b) and Section 2(c), (x) the Guarantor shall not have any liability under this
Guaranty for the payment or performance of the Guaranteed Obligations, (y) the Guarantor shall not
have any obligation to expend its own funds in the performance of any provision of any Loan
Document, and (z) no Agent nor any Lender shall obtain any deficiency judgment against the
Guarantor with respect to any of the foregoing; provided, however, that:




               (i) nothing contained herein shall limit or otherwise restrict (A) any Agent’s or any Lender’s
rights and remedies against any of the Collateral under any other Loan Document, either at law or
equity, including, without limitation, any rights or remedies with respect to the Equity Interests
of the Borrower owned by the Guarantor, (B) the Agent or any Lender from bringing any action, suit
or proceeding for specific performance against the Guarantor to perform any obligation imposed on
the Guarantor hereunder, (C) recourse to or liability of the Guarantor for any fraud committed by
the Guarantor or material misrepresentation by the Guarantor in any Loan Document to which the
Guarantor is a party, or (D) the obligations of the Guarantor under any Loan Document which
obligations are either directly in favor of any Agent or any Lender or have been assigned to any
Agent or any Lender, each of which may be enforced by and for the benefit of the Agents and
Lenders, and



               (ii) the Guarantor shall have (A) full liability and responsibility for the Guaranteed
Obligations and other obligations hereunder if (x) any act (or omission to act) constituting fraud
or willful misconduct on the part of the Guarantor or any Non-Corporate Trustee that impairs the
Agents’ and the Lenders’ ability to be repaid under the Loan Documents occurs, or (y) the Guarantor
or any Non-Corporate Trustee authorizes, approves, participates in or assists the Borrower or the
Originator in commencing a voluntary or involuntary case under the Bankruptcy Code or any other
Insolvency Proceeding, and (B) liability and responsibility for the Guaranteed Obligations and
other obligations hereunder if (x) any Collections are not promptly deposited directly into the
Collection Account or (ii) inadvertently deposited into an account of the Originator or any
Affiliate and promptly removed from such account and deposited into the Collection Account);
provided, that in the case of this clause (B)(x), such liability and responsibility of the
Guarantor shall not exceed the aggregate amount of the Collections not promptly deposited directly
into the Collection Account, or (y) the Borrower,



Exh. D-2









 




Guarantor and/or an agent of Imperial and/or its Subsidiaries or any Person appointed by the
Borrower to perform any duties on behalf of the Borrower in connection with the Collateral Value
Policy or the Contingent Collateral Value Policy shall refer any claim to the Collateral Value
Insurer or the Contingent Collateral Value Insurer knowing the same to be fraudulent;
provided, that in the case of this clause (B)(y), such liability and responsibility of the
Guarantor shall not exceed the aggregate amount of the loss relating to the applicable Coverage
Certificate related to such fraudulent claim or (z) the applicable Premium Finance Borrower, the
Originator or the Borrower ceases to be the legal owner of a Covered Policy (as defined in the
Collateral Value Policy or the Contingent Collateral Value Policy) and any Non-Corporate Trustee,
the Guarantor and/or an employee of Imperial and/or its Subsidiaries (collectively, the “Guarantor
Responsible Parties”), directly or indirectly, caused, or assisted another Person in, the transfer
of legal title of such Covered Policy from the applicable Premium Finance Borrower, the Originator
or the Borrower to another Person other than the Collateral Value Insurer or the Contingent
Collateral Value Insurer (or a designee of the Collateral Value Insurer or of the Contingent
Collateral Value Insurer) in accordance with the provisions of the Collateral Value Policy or the
Contingent Collateral Value Policy; provided, that in the case of this clause (B)(z), such
liability and responsibility of the Guarantor shall not exceed the aggregate amount of the loss
relating to the applicable Coverage Certificate related to such Covered Policy; provided further,
and for greater clarity, in the case of this clause (B)(z), any transfer or change in legal
ownership caused solely by a Person other than a Guarantor Responsible Party that is permitted by
the Transaction Documents shall not result in liability or responsibility hereunder for the
Guarantor.




          (c) Nothing in subsection (b) of this Section 2 shall limit or otherwise restrict in any
manner the rights, powers and privileges of any Agent against the Guarantor under any other Loan
Document to which the Guarantor is a party.




          SECTION 3. Guaranty Absolute; Continuing Guaranty; Assignments.




          (a) Subject to Sections 2(b) and 2(c) of this Agreement, the Guarantor hereby guarantees that
the Guaranteed Obligations will be paid or performed, as applicable, strictly in accordance with
the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the Agents or the Lenders
with respect thereto. The Guarantor agrees that, subject to Sections 2(b) and 2(c) of this
Agreement, this guarantee constitutes a guaranty of payment when due and not of collection and
waives any right to require that any resort be made by the Agents or the Lenders to any Collateral.
The obligations of the Guarantor under this Guaranty are independent of the obligations under the
Financing Agreement and the other Loan Documents, and a separate action or actions may be brought
and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action
is brought against any Credit Party or whether any Credit Party is joined in any such action or
actions. Subject to Sections 2(b) and 2(c) of this Agreement, the liability of the Guarantor under
this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and the Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any way relating to, any or
all of the following:




               (i) any lack of validity or enforceability of any Loan Document or any agreement or instrument
relating thereto;



Exh. D-3









 





               (ii) any change in the time, manner or place of payment or performance of, or in any other
term in respect of, all or any of the Guaranteed Obligations, or any other amendment or waiver of
or any consent to departure from any Loan Document, including, without limitation, any increase in
the Guaranteed Obligations resulting from the extension of additional credit to any Credit Party or
otherwise;



               (iii) any taking, exchange, release or non-perfection of any Collateral, or any taking,
release or amendment or waiver of or consent to departure from any other guaranty, for all or any
of the Guaranteed Obligations;



               (iv) the existence of any claim, set-off, defense or other right that the Guarantor may have
against any Person, including, without limitation, any Agent or any Lender;



               (v) any change, restructuring or termination of the limited liability company structure or
existence of the Borrower; or



               (vi) any other circumstance (including any statute of limitations) or any existence of or
reliance on any representation by the Agents or the Lenders that might otherwise constitute a
defense available to, or a discharge of, any Credit Party or any other guarantor or surety.


This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the
Agents, the Lenders or any other Person upon the insolvency, bankruptcy or reorganization of any
Credit Party or otherwise, all as though such payment had not been made.




          (b) This Guaranty is a continuing guaranty and shall (i) remain in full force and effect until
the later of (x) the cash payment in full of the Guaranteed Obligations and all other amounts
payable under this Guaranty and (y) the Final Maturity Date, (ii) be binding upon the Guarantor,
his heirs, executors, administrators, legal representatives, successors and assigns and (iii) inure
to the benefit of and be enforceable by the Agents, the Lenders and their successors, pledgees,
transferees and assigns. Without limiting the generality of the foregoing clause (iii), any Lender
may pledge, assign or otherwise transfer all or any portion of his rights and obligations under any
Loan Document to any other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender herein or otherwise, in each case as provided in
the Financing Agreement.




          SECTION 4. Waivers. The Guarantor hereby waives, to the full extent permitted by
applicable law, (i) promptness and diligence; (ii) notice of acceptance and notice of the
incurrence of any Obligation by the Borrower; (iii) notice of any actions taken by any Agent, the
Borrower, any Credit Party or any Lender under any Loan Document or any other agreement or
instrument related thereto; (iv) all other notices, demands and protests, and all other formalities
of every kind in connection with the enforcement of the Obligations or of the obligations of the
Guarantor hereunder, the omission of or delay in which, but for the provisions of this Section 4,
might constitute grounds for relieving the Guarantor of his obligations hereunder; (v) any right to
compel or direct any Agent or any Lender to seek payment or recovery of any amounts owed under this
Guaranty from any one particular fund or source; (vi) any requirement that any Agent






Exh. D-4









 







or any Lender protect, secure, perfect or insure any security interest or Lien or any property
subject thereto or exhaust any right or take any action against the Borrower, any other Credit
Party or any other Person or any Collateral; and (vii) any other defense available to the
Guarantor. The Guarantor acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated herein and that the waiver set forth in this Section 4 is
knowingly made in contemplation of such benefits. The Guarantor hereby waives any right to revoke
this Guaranty, and acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.




          SECTION 5. Subrogation. (a) Until the final payment in cash and performance in full
of all of the Obligations, the Guarantor shall not exercise any rights against the Borrower or any
other guarantor arising as a result of payment by the Borrower or such guarantor hereunder, by way
of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim
in competition with any Agent or any Lender in respect of any payment hereunder in any Insolvency
Proceedings; the Guarantor will not claim any setoff, recoupment or counterclaim against the
Borrower or any other guarantor in respect of any liability of the Guarantor to the Borrower or
guarantor; and the Guarantor, the Borrower and each guarantor waives any benefit of and any right
to participate in any collateral security which may be held by any Agent or any Lender. Anything to
the contrary contained in the foregoing notwithstanding, the Guarantor shall not exercise any such
rights against the Borrower (including after payment in full of the Obligations) if all or any
portion of the Obligations shall have been satisfied in connection with an exercise of remedies by
the Collateral Agent in respect of the Equity Interests of the Borrower whether pursuant to the
Individual Guarantor Security Agreement or otherwise.




          (b) The payment of any amounts due with respect to any Indebtedness of the Borrower or the
Guarantor for money borrowed or credit received now or hereafter owed to the Guarantor is hereby
subordinated to the prior payment in full of all of the Obligations. The Guarantor agrees that,
after the occurrence of any default in the payment or performance of any of the Obligations, the
Guarantor will not demand, sue for or otherwise attempt to collect any such indebtedness of the
Borrower or other guarantor to the Guarantor until all of the Obligations shall have been paid in
full. If, notwithstanding the foregoing sentence, the Guarantor shall collect, enforce or receive
any amounts in respect of such indebtedness while any Obligations are still outstanding, such
amounts shall be collected, enforced and received by the Guarantor as trustee for the Agents and
the Lenders and be paid over to the Collateral Agent, for the benefit of the Agents and the
Lenders, on account of the Obligations without affecting in any manner the liability of the
Guarantor under the other provisions of this Guaranty.




          SECTION 6. Representations, Warranties. The Guarantor hereby represents and warrants
as follows:




          (a) The Guarantor has the legal capacity and right to execute, deliver and perform this
Guaranty and each other Loan Document to which the Guarantor is a party.




          (b) The execution, delivery and performance by the Guarantor of this Guaranty and each other
Loan Document to which the Guarantor is a party (i) do not and will not contravene any Requirements
of Law or any contractual restriction binding on or otherwise affecting the Guarantor or his
properties, (ii) do not and will not result in or require the creation






Exh. D-5









 







of any Lien (other than pursuant to any Loan Document) upon or with respect to any of his
properties, and (iii) 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 any of his properties.




          (c) No authorization or approval or other action by, and no notice to or filing with, any
Governmental Authority is required in connection with the due execution, delivery and performance
by the Guarantor of this Guaranty or any of the other Loan Documents to which the Guarantor is a
party, except for the filing of any UCC financing statement or such other registrations, filings or
recordings as may be necessary to perfect the Lien purported to be created by any Loan Documents to
which the Guarantor is a party.




          (d) Each of this Guaranty and the other Loan Documents to which the Guarantor is or will be a
party, when delivered, will be, a legal, valid and binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws.




          (e) There are no pending or written notices threatening any action, suit or proceeding
affecting the Guarantor before any court or other Governmental Authority or any arbitrator that (x)
if adversely determined could reasonably be expected to have a material adverse effect to the
Guarantor’s financial condition or (y) relates to this Guaranty or any of the other Loan Documents
to which the Guarantor is a party or any transaction contemplated hereby or thereby.




          (f) The Guarantor is not in violation of any Requirements of Law or any material term of any
agreement or instrument (including, without limitation, any contract) binding on or otherwise
affecting him or any of his properties.




          (g) The Guarantor is not a party to any agreement or instrument, or subject to any restriction
or any judgment, order, regulation, ruling or other requirement of a court or other Governmental
Authority, which has, or in the future could have, a material adverse effect to the Guarantor’s
financial condition.




          (h) The Guarantor has filed or caused to be filed all tax returns which he is required to file
and has paid all taxes shown to be due and payable on such returns or on any assessments made
against the Guarantor or any of his property by any Governmental Authority except to the extent any
such taxes are being contested in good faith. No tax Lien has been filed with respect to any
material tax liability against the Guarantor, and, to the knowledge of the Guarantor, no tax
assessment is pending against the Guarantor.




          (i) The Guarantor (i) has read and understands the terms and conditions of the Financing
Agreement and the other Loan Documents, and (ii) now has and will continue to have independent
means of obtaining information concerning the affairs, financial condition and business of the
Borrower and the other Credit Parties, and has no need of, or right to obtain from any Agent or any
Lender, any credit or other information concerning the affairs, financial condition or business of
the Borrower or the other Credit Parties that may come under the control of any Agent or any
Lender.







Exh. D-6









 








          (j) All representations and warranties set forth in this Guaranty are true and correct in all
respects at the time as of which such representations were made and on the Effective Date.




          SECTION 7. Covenants. The Guarantor hereby covenants and agrees that, until full and
final payment of the Obligations in cash and the termination of the Total Term Loan Commitment, the
Guarantor will:




          (a) Not accept or retain any distribution or other payment from the Borrower if the making of
such distribution or other payment by the Borrower violates, or may reasonably be expected to
result in a violation of, the Financing Agreement or any other Loan Document.




          (b) Comply in all material respects with all Requirements of Law (including any settlement of
any claim that, if breached, could give rise to any of the foregoing).




          (c) Promptly notify the Agents of:




               (i) (A) any breach or non-performance of, or any default under, any Contractual Obligation of
such Guarantor which could reasonably be expected to have a material adverse effect to the
Guarantor’s financial condition, and (B) any action, suit, litigation or proceeding which may exist
at any time which could reasonably be expected to have a material adverse effect to the Guarantor’s
financial condition; and



               (ii) the occurrence of any event or development that could have a material adverse effect to
the Guarantor’s financial condition;


provided that (A) each notice pursuant to this Section 7(c) shall be accompanied by a
written statement signed by such Guarantor, setting forth details of the occurrence referred to
therein, and stating what action the Guarantors propose to take with respect thereto and at what
time. Each notice under Section 7(c)(i) shall describe with particularity the provisions of this
Guaranty or other Loan Document that have been breached.




          (d) Pay all taxes, assessments, governmental charges and other obligations when due, except as
may be contested in good faith or those as to which a bona fide dispute may exist.




          (e) Execute and deliver to the Agents such further instruments and do such other further acts
as the Agent may reasonably request to carry out more effectively the purposes of this Guaranty,
the other Loan Documents and any agreements and instruments referred to herein.




          (f) Not knowingly commit, and not knowingly permit any of its Affiliates, including the
Borrower, to knowingly commit, a Prohibited Act (as defined in the Collateral Value Policy) or any
other act that results in the liability of the Collateral Value Insurer under the Collateral Value
Policy being reduced or terminated.




          (g) On the Effective Date, deliver to the Agents, for the benefit of the Lenders, a personal
financial statement of the Guarantor, in form and substance reasonably






Exh. D-7









 







satisfactory to the Agents, accompanied by a signed representation by the Guarantor that such
personal financial statement is complete and accurate in all material respects and fairly presents
the financial condition of the Guarantor as of the Effective Date and that the Guarantor has no
contingent obligations or liabilities (for taxes or otherwise) or any unusual long term commitment
except as set forth in such financial statement or the notes thereto.




          SECTION 8. Right of Set-off. Upon the occurrence and during the continuance of any
Event of Default, and subject to Sections 2(b) and 2(c) of this Agreement, the Agents and the
Lenders may, and are hereby authorized to, at any time and from time to time, without notice to the
Guarantor (any such notice being expressly waived by the Guarantor) and to the fullest extent
permitted by law, set-off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing by any Agent or any
Lender to or for the credit or the account of the Guarantor against any and all obligations of the
Guarantor either now or hereafter existing under this Guaranty or any other Loan Document,
irrespective of whether or not any Agent or any Lender shall have made any demand under this
Guaranty or any other Loan Document and although such obligations may be contingent or unmatured.
Each of the Agents and Lenders agrees to notify the Guarantor promptly after any such set-off and
application made by such Agent or Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of the Agents and the
Lenders under this Section 8 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Agents and the Lenders may have under this Guaranty
or any other Loan Document in law or otherwise.




          SECTION 9. Notices, Etc. All notices and other communications provided for hereunder
shall be in writing and shall be mailed (by certified mail, postage prepaid and return receipt
requested), telecopied or delivered, if to the Guarantor, to it at his address set forth on the
signature page hereto, or if to the Collateral Agent, to it at its address set forth in the
Financing Agreement; or as to either such Person at such other address as shall be designated by
such Person in a written notice to such other Person complying as to delivery with the terms of
this Section 9. All such notices and other communications shall be effective (i) if mailed
(certified mail, postage prepaid and return receipt requested), when received or 3 days after
deposited in the mails, whichever occurs first, (ii) if telecopied, when transmitted and
confirmation received, or (iii) if delivered by hand, Federal Express or other reputable overnight
courier, upon delivery.




          SECTION 10. CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE. ANY LEGAL ACTION
OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF NEW YORK IN THE COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE GUARANTOR
HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF HIS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT ITS ADDRESS SET FORTH ON THE
SIGNATURE PAGE HERETO, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS






Exh. D-8









 







AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY AGENT AND THE LENDERS TO
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE GUARANTOR IN ANY OTHER JURISDICTION. THE GUARANTOR HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT THE GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION
OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO HIM OR HIS PROPERTY, THE
GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF HIS OBLIGATIONS UNDER THIS GUARANTY
AND THE OTHER LOAN DOCUMENTS.




          SECTION 11. WAIVER OF JURY TRIAL, ETC. THE GUARANTOR HEREBY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS GUARANTY
OR THE OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER
AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR
ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY OR THE OTHER LOAN
DOCUMENTS, AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY. THE GUARANTOR CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR ANY
LENDER WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE
FOREGOING WAIVERS. THE GUARANTOR HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE AGENTS AND THE LENDERS ENTERING INTO THIS AGREEMENT.




          SECTION 12. Miscellaneous.




          (a) The Guarantor will make each payment hereunder in lawful money of the United States of
America and in immediately available funds to the Collateral Agent, for the benefit of the Lenders,
at such address specified by the Collateral Agent from time to time by notice to the Guarantor.




          (b) No amendment of any provision of this Guaranty shall be effective unless it is in writing
and signed by the Guarantor and the Collateral Agent, and no waiver of any provision of this
Guaranty, and no consent to any departure by the Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Guarantor and the






Exh. D-9









 







Collateral Agent, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.




          (c) No failure on the part of any Agent or any Lender to exercise, and no delay in exercising,
any right hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any right hereunder or under any other Loan Document preclude any
other or further exercise thereof or the exercise of any other right. The rights and remedies of
the Agents and the Lenders provided herein and in the other Loan Documents are cumulative and are
in addition to, and not exclusive of, any rights or remedies provided by law. The rights of the
Agents and the Lenders under any Loan Document against any party thereto are not conditional or
contingent on any attempt by the Agents and the Lenders to exercise any of their rights under any
other Loan Document against such party or against any other Person.




          (d) Any provision of this Guaranty which 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 thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.




          (e) This Guaranty shall (i) be binding on the Guarantor and his heirs, executors,
administrators, legal representatives, successors and assigns, and (ii) inure, together with all
rights and remedies of the Agents and the Lenders hereunder, to the benefit of the Agents and the
Lenders and their respective successors, transferees and assigns. Without limiting the generality
of clause (ii) of the immediately preceding sentence, to the extent permitted by Section 12.07 of
the Financing Agreement, any Lender may assign or otherwise transfer its rights under the Financing
Agreement or any other Loan Document to any other Person, and such other Person shall thereupon
become vested with all of the benefits in respect thereof granted to the Lenders herein or
otherwise. The Guarantor agrees that each participant shall be entitled to the benefits of Section
8 with respect to its participation in any portion of the Loans as if it was a Lender. None of the
rights or obligations of the Guarantor hereunder may be assigned or otherwise transferred without
the prior written consent of the Collateral Agent.




          (f) This Guaranty and the other Loan Documents reflect the entire understanding of the
transactions contemplated hereby and thereby and shall not be contradicted or qualified by any
other agreement, oral or written, before the date hereof.




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




          (h) Delivery of an executed counterpart of this Guaranty by telefacsimile or electronic mail
shall be equally as effective as delivery of an original executed counterpart of this Guaranty. Any
party delivering an executed counterpart of this Guaranty by telefacsimile or electronic mail also
shall deliver an original executed counterpart of this Guaranty but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and binding effect of
this Guaranty.







Exh. D-10









 








          (i) This Guaranty and the other Loan Documents (unless expressly provided to the contrary in
another Loan Document in respect of such other Loan Document) 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 the State of New York.




[signature page follows]









Exh. D-11









 








          IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed by an officer
thereunto duly authorized, as of the date first above written.




	 	 	 	 	 

	 

	 	 	 	 
	 

	 	 	 	 
	 

	 	Antony Mitchell — Guarantor	 	 
	 
	 	 	 	 
	 

	 	Address:	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 





	 	 	 

	STATE OF                    
	 	 
	 

	 	ss.:
	COUNTY OF                    
	 	 






          On this  
                    day of  
                      
                 
, 2009, before me personally came
                     
                   , to me known to be the person who executed the foregoing instrument, and who,
being duly sworn by me, did depose and say to me that s/he executed the foregoing instrument.




        
                    
                    
                                




[SIGNATURE PAGE TO INDIVIDUAL GUARANTEE]






 









 








          IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed by an officer
thereunto duly authorized, as of the date first above written.




	 	 	 	 	 

	 

	 	 	 	 
	 

	 	 	 	 
	 

	 	Jonathan Neuman — Guarantor	 	 
	 
	 	 	 	 
	 

	 	Address:	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 





	 	 	 

	STATE OF                    
	 	 
	 

	 	ss.:
	COUNTY OF                    
	 	 






          On this                      day of                                         
, 2009, before me personally came
                                        , to me known to be the person who executed the foregoing instrument, and who,
being duly sworn by me, did depose and say to me that s/he executed the foregoing instrument.




    
                   
                     
                    
                




[SIGNATURE PAGE TO INDIVIDUAL GUARANTEE]




 









 








EXHIBIT E




FORM OF GUARANTOR SECURITY AGREEMENT



          PLEDGE AND SECURITY AGREEMENT, dated as of                     , 2009 (this “Agreement”), made by Imperial
Premium Finance, LLC, a Florida limited liability company (the “Pledgor”), in favor of LoIC
LLC, a Delaware limited liability company (“LoIC”), in its capacity as collateral agent (in such
capacity, together with any successors or assigns in such capacity, if any, the “Collateral
Agent”) on behalf of the Lenders referred to below.




W I T N E S S E T H:




          WHEREAS, Imperial PFC Financing II, LLC, a Georgia limited liability company (the
“Borrower”), the lenders from time to time party thereto (each a “Lender” and
collectively, the “Lenders”), the Collateral Agent, and LoIC, as administrative agent for
the Lenders (in such capacity, the “Administrative Agent” and together with the Collateral
Agent, each an “Agent” and collectively, the “Agents”) are parties to a Financing
Agreement, dated as of , 2009 (such agreement, as amended, restated or otherwise modified from time
to time, being hereinafter referred to as the “Financing Agreement”);




          WHEREAS, pursuant to the Financing Agreement the Lenders have agreed to make term loans (each
a “Loan” and collectively, the “Loans”) to the Borrower in an aggregate principal amount at
any one time outstanding not to exceed the Total Term Loan Commitment (as defined in the Financing
Agreement);




          WHEREAS, the Pledgor owns 100% of the Equity Interests (as defined in the Financing Agreement)
of the Borrower, as set forth in Schedule I hereto;




          WHEREAS, it is a condition precedent to the Lenders making any Loan to the Borrower pursuant
to the Financing Agreement that the Pledgor shall have executed and delivered to the Collateral
Agent a pledge and security agreement providing for the pledge to the Collateral Agent, for the
benefit of the Agents and the Lenders, and the grant to the Collateral Agent, for the benefit of
the Agents and the Lenders, of a security interest in and Lien on the outstanding shares of the
Equity Interests (as defined in the Financing Agreement) owned by the Pledgor of the Borrower, and
in which such Pledgor has any interest at any time;




          WHEREAS, the Pledgor has determined that the execution, delivery and performance of this
Agreement directly benefits, and is in the best interest of, the Pledgor.




          NOW, THEREFORE, in consideration of the premises and the agreements herein and in order to
induce the Lenders to make and maintain the Loans to the Borrower pursuant to the Financing
Agreement, the Pledgor hereby agrees with the Collateral Agent, for the benefit of the Agents and
the Lenders, as follows:




          SECTION 1. Definitions. Reference is hereby made to the Financing Agreement for a
statement of the terms thereof. All terms used in this Agreement which are defined in the






Exh. E-1









 







Financing Agreement or in Article 8 or Article 9 of the Uniform Commercial Code (the
“Code”) as in effect from time to time in the State of New York and which are not otherwise
defined herein shall have the same meanings herein as set forth therein; provided, that
terms used herein which are defined in the Code as in effect in the State of New York on the date
hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such
statute except as the Collateral Agent may otherwise determine.




          SECTION 2. Pledge and Grant of Security Interest. As collateral security for all of
the Obligations (as defined in Section 3 hereof), the Pledgor hereby pledges and assigns to the
Collateral Agent, and grants to the Collateral Agent, for the benefit of the Agents and the
Lenders, a continuing security interest in and Lien on the Pledgor’s right, title and interest in
and to the following (collectively, the “Pledged Collateral”):




               (a) the shares of stock, partnership interests, member interests and other equity interests
described in Schedule I hereto (the “Pledged Shares”), whether or not evidenced or
represented by any stock certificate, certificated security or other instrument, issued by the
Borrower described in such Schedule I (the “Pledged Issuers”), the certificates
representing the Pledged Shares, all options and other rights, contractual or otherwise, in respect
thereof and all dividends, distributions, cash, instruments, investment property and other property
(including but not limited to, any stock dividend and any distribution in connection with a stock
split) from time to time received, receivable or otherwise distributed in respect of or in exchange
for any or all of the Pledged Shares;



               (b) all additional shares of stock, partnership interests, member interests or other equity
interests from time to time acquired by the Pledgor, of the Pledged Issuers, the certificates
representing such additional shares, all options and other rights, contractual or otherwise, in
respect thereof and all dividends, distributions, cash, instruments, investment property and other
property from time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such additional shares, interests or equity;



               (c) all security entitlements of the Pledgor in any and all of the foregoing; and



               (d) all proceeds (including proceeds of proceeds) of any and all of the foregoing;


in each case, whether now owned or hereafter acquired by the Pledgor and howsoever its interest
therein may arise or appear (whether by ownership, security interest, Lien, claim or otherwise).




          SECTION 3. Obligations. (a) The Pledgor hereby (i) irrevocably, absolutely and
unconditionally guarantees the prompt payment by the Borrower, as and when due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise), of all amounts from
time to time owing in respect of the Financing Agreement or any other Loan Document, whether for
principal, interest (including, without limitation, all interest that accrues after the
commencement of any Insolvency Proceeding with respect to the Borrower, whether or not a claim for
post-filing interest is allowed in such proceeding), fees, commissions, expense






Exh. E-2









 







reimbursements, indemnifications or otherwise, and whether accruing before or subsequent to
the commencement of any Insolvency Proceeding with respect to the Borrower (notwithstanding the
operation of the automatic stay under Section 362(a) of the U.S. Bankruptcy Code), and the due
performance and observance by the Borrower of its other obligations now or hereafter existing in
respect of the Loan Documents (the “Obligations”), and (ii) agrees to pay any and all
expenses (including reasonable counsel fees and expenses) incurred by the Agents and the Lenders in
enforcing any rights under this Agreement.




               (b) The security interest created hereby in the Pledged Collateral constitutes continuing
collateral security for (x) Obligations and (y) the due performance and observance by the Pledgor
of all of its other obligations from time to time existing in respect of the Loan Documents.



               (c) Notwithstanding anything to the contrary contained in this Agreement, the recourse of the
Agent and the Lenders with respect to the liability of the Pledgor under this Agreement solely with
respect to the Obligations shall be limited to the Pledged Collateral.



          SECTION 4. Delivery of the Pledged Collateral.




               (a) (i) All certificates currently representing the Pledged Shares shall be delivered to the
Collateral Agent contemporaneously with or prior to the execution and delivery of this Agreement.
All other certificates and instruments constituting Pledged Collateral from time to time or
required to be pledged to the Collateral Agent, pursuant to the terms of this Agreement or the
Financing Agreement (the “Additional Collateral”), shall be delivered to the Collateral
Agent promptly upon receipt thereof by or on behalf of the Pledgor. All such certificates and
instruments shall be held by or on behalf of the Collateral Agent pursuant hereto and shall be
delivered in suitable form for transfer by delivery or shall be accompanied by duly executed
instruments of transfer or assignment or undated stock powers executed in blank, all in form and
substance reasonably satisfactory to the Collateral Agent. If any Pledged Collateral consists of
uncertificated securities, unless the immediately following sentence is applicable thereto, the
Pledgor shall cause the Collateral Agent (or its designated custodian or nominee) to become the
registered holder thereof, or cause each issuer of such securities to agree that it will comply
with instructions originated by the Collateral Agent with respect to such securities without
further consent by the Pledgor. If any Pledged Collateral consists of security entitlements, the
Pledgor shall transfer such security entitlements to the Collateral Agent (or its custodian,
nominee or other designee), or cause the applicable securities intermediary to agree that it will
comply with entitlement orders by the Collateral Agent without further consent by the Pledgor.



               (ii) Within five (5) days of the receipt by the Pledgor of any Additional Collateral, a Pledge
Amendment, duly executed by the Pledgor, in substantially the form of Annex I hereto (a “Pledge
Amendment”) shall be delivered to the Collateral Agent, in respect of the Additional Collateral
which must be pledged pursuant to this Agreement and the Financing Agreement. The Pledge Amendment
shall from and after delivery thereof constitute part of Schedule I hereto. The Pledgor hereby
authorizes the Collateral Agent to attach each Pledge Amendment to this Agreement and agrees that
all certificates or instruments listed on any Pledge



Exh. E-3









 




Amendment delivered to the Collateral Agent shall for all purposes hereunder constitute
Pledged Collateral and such Pledgor shall be deemed upon delivery thereof to have made the
representations and warranties set forth in Section 5 hereof with respect to such Additional
Collateral.




               (b) If the Pledgor shall receive, by virtue of the Pledgor’s being or having been an owner of
any Pledged Collateral, any (i) stock certificate (including, without limitation, any certificate
representing a stock dividend or distribution in connection with any increase or reduction of
capital, reclassification, merger, consolidation, sale of assets, combination of shares, stock
split, spin-off or split-off) or other instrument, (ii) option or right, whether as an addition to,
substitution for, or in exchange for, any Pledged Collateral, or otherwise, (iii) dividends payable
in cash (except such dividends permitted to be retained by any such Pledgor pursuant to Section 7
hereof) or in securities or other property or (iv) dividends or other distributions in connection
with a partial or total liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in surplus, the Pledgor shall receive such stock certificate, instrument,
option, right, payment or distribution constituting certificated Pledged Collateral in trust for
the benefit of the Collateral Agent, shall segregate it from such Pledgor’s other property and
shall deliver it forthwith to the Collateral Agent, in the exact form received, with any necessary
endorsement and/or appropriate stock powers duly executed in blank, to be held by the Collateral
Agent as Pledged Collateral and as further collateral security for the Obligations.



          SECTION 5. Representations and Warranties. The Pledgor represents and warrants as
follows:




               (a) The Pledgor is a limited liability company duly organized, validly existing and in good
standing under the laws of the state of its organization as set forth on the first page hereof, and
has all the requisite limited liability company power and authority to execute, deliver and perform
this Agreement.



               (b) The execution, delivery and performance by the Pledgor of this Agreement (i) have been
duly authorized by all necessary limited liability company power and authority, (ii) do not and
will not contravene its certificate of formation, operating agreement, any Requirements of Law or
any contractual restriction binding on or affecting it or any of its properties, (ii) do not and
will not result in or require the creation of any Lien upon or with respect to any of its
properties other than pursuant to this Agreement, and (iii) do not and will not results in any
default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any
material permit, license, authorization or approval applicable to any of its properties.



               (c) Schedule II hereto sets forth (i) the exact legal name of the Pledgor and all other names
used by the Pledgor at any time during the five years preceding the Effective Date, and (ii) the
Pledgor’s chief executive office and principal place of business and each place of business of the
Pledgor during the five years preceding the Effective Date.



               (d) The Pledged Shares have been duly authorized and validly issued and are fully paid and
nonassessable and the holders thereof are not entitled to any preemptive,



Exh. E-4









 




first refusal or other similar rights (other than pursuant to a stock transfer agreement
entered into with the prior written consent of the Collateral Agent). All other shares of stock
constituting Pledged Collateral will be duly authorized and validly issued, fully paid and
nonassessable.




               (e) The Pledgor is and will be at all times the legal and beneficial owner of the Pledged
Collateral free and clear of all Liens except for the Lien created by this Agreement.



               (f) The exercise by the Collateral Agent of any of its rights and remedies hereunder will not
contravene any law or any contractual restriction binding on or affecting the Pledgor or any of the
properties of the Pledgor and will not result in or require the creation of any Lien upon or with
respect to any of the properties of the Pledgor other than pursuant to this Agreement or the other
Loan Documents.



               (g) No authorization or approval or other action by, and no notice to or filing with, any
Governmental Authority is required to be obtained or made by the Pledgor for (i) the due execution,
delivery and performance by the Pledgor of this Agreement, (ii) the grant by the Pledgor, or the
perfection, of the Lien created hereby in the Pledged Collateral, except for the filing in the
office described in Schedule III hereto of a UCC financing statement naming the Pledgor as debtor,
the Collateral Agent as secured party and describing the Pledged Collateral, to perfect the
Collateral Agent’s security interests in items of the Pledged Collateral in which such security
interests are not susceptible to perfection by possession of certificates or instruments, which
financing statement has been duly filed or (iii) the exercise by the Collateral Agent of any of its
rights and remedies hereunder, except as may be required in connection with any sale of any Pledged
Collateral by laws affecting the offering and sale of securities generally.



               (h) This Agreement is a legal, valid and binding obligation of the Pledgor, enforceable
against the Pledgor in accordance with its terms.



               (i) This Agreement creates a valid Lien in favor of the Collateral Agent, for the benefit of
the Agents and the Lenders, in the Pledged Collateral as security for the Obligations. The
Collateral Agent’s having possession of the certificates representing the Pledged Shares and all
other certificates, instruments and cash constituting Pledged Collateral from time to time results
in the perfection of such Lien. Such Lien is, or in the case of Pledged Collateral in which the
Pledgor obtains rights after the date hereof, will be, a perfected, first priority Lien. All action
necessary or desirable to perfect and protect such Lien has been duly taken, except for the
Collateral Agent’s having possession of certificates, instruments and cash constituting Pledged
Collateral after the date hereof



               (j) The partnership interests or membership interests of each Pledged Issuer are (i)
securities for purposes of Article 8 of the UCC, (iii) investment company securities within the
meaning of Section 8-103 of the UCC and (iii) evidenced by a certificate.



               (k) The pledge of the Pledged Collateral pursuant to this Agreement does not violate
Regulation T, U or X of the Board of Governors of the Federal Reserve System.





Exh. E-5









 








          SECTION 6. Covenants as to the Pledged Collateral. So long as any of the Obligations
shall remain outstanding or prior to the termination of all Commitments, the Pledgor will, unless
the Collateral Agent shall otherwise consent in writing:




               (a) keep adequate records concerning the Pledged Collateral and permit the Collateral Agent or
any agents, designees or representatives thereof at any time or from time to time to examine and
make copies of and abstracts from such records consistent with the terms of the Financing
Agreement;



               (b) at the Pledgor’s expense, promptly deliver to the Collateral Agent a copy of each notice
or other communication received by it in respect of the Pledged Collateral;



               (c) at the Pledgor’s expense, defend the Collateral Agent’s right, title and security interest
in and to the Pledged Collateral against the claims of any Person;



               (d) at the Pledgor’s expense, at any time and from time to time, promptly execute and deliver
all further instruments and documents and take all further action that may be necessary or
desirable or that the Collateral Agent may reasonably request in order to (i) perfect and protect,
or maintain the perfection of, the security interest and Lien created hereby, (ii) enable the
Collateral Agent to exercise and enforce its rights and remedies hereunder in respect of the
Pledged Collateral or (iii) otherwise effect the purposes of this Agreement, including, without
limitation, delivering to the Collateral Agent irrevocable proxies in respect of the Pledged
Collateral;



               (e) not sell, assign (by operation of law or otherwise), exchange or otherwise dispose of any
Pledged Collateral or any interest therein except as expressly permitted by Section 7.02(c) of the
Financing Agreement;



               (f) not create or suffer to exist any Lien upon or with respect to any Pledged Collateral
except for the Lien created hereby;



               (g) not make or consent to any amendment or other modification or waiver with respect to any
Pledged Collateral or enter into any agreement or permit to exist any restriction with respect to
any Pledged Collateral other than pursuant to the Loan Documents;



               (h) not vote in favor of the issuance of (i) any additional shares of any class of Equity
Interests of each Pledged Issuer, (ii) any securities convertible voluntarily by the holder thereof
or automatically upon the occurrence or non occurrence of any event or condition into, or
exchangeable for, any such shares of Equity Interests or (iii) any warrants, options, contracts or
other commitments entitling any Person to purchase or otherwise acquire any such shares of Equity
Interests, except in the case of clauses (i), (ii) and (iii), to the extent any such issuance is
expressly permitted by the Financing Agreement;



               (i) not take or fail to take any action which would in any manner impair the value of or the
enforceability of the Collateral Agent’s security interest in and Lien on any Pledged Collateral;
and



Exh. E-6









 





               (j) cause each interest in each Pledged Issuer controlled by the Pledgor and pledged hereunder
to be (i) represented by a certificate, (ii) deemed a “security” within the meaning of Article 8 of
the UCC and (iii) governed by Article 8 of the UCC.



          SECTION 7. Voting Rights, Dividends, Etc. in Respect of the Pledged Collateral.




               (a) So long as no Event of Default shall have occurred and be continuing:




                    (i) the Pledgor may exercise any and all voting and other consensual rights pertaining to any
Pledged Collateral for any purpose not inconsistent with the terms of this Agreement, the Financing
Agreement or the other Loan Documents; provided, however, that (A) the Pledgor will
not exercise or will refrain from exercising any such right, as the case may be, if the Collateral
Agent gives the Pledgor notice that, in the Collateral Agent’s judgment, such action (or inaction)
is reasonably likely to have a material adverse effect to the Pledgor’s financial condition and (B)
the Pledgor will give the Collateral Agent at least five (5) Business Days’ notice of the manner in
which it intends to exercise, or the reasons for refraining from exercising, any such right which
is reasonably likely to have a material adverse effect to the Pledgor’s financial condition;



                    (ii) the Pledgor may receive and retain any and all dividends, interest or other distributions
or payments in respect of the Pledged Collateral to the extent permitted by the Financing
Agreement; provided, however, that any and all (A) dividends and interest paid or
payable other than in cash in respect of, and instruments and other property received, receivable
or otherwise distributed in respect of or in exchange for, any Pledged Collateral, (B) dividends
and other distributions paid or payable in cash in respect of any Pledged Collateral in connection
with a partial or total liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in surplus, and (C) cash paid, payable or otherwise distributed in
redemption of, or in exchange for, any Pledged Collateral, together with any dividend, interest or
other distribution or payment which at the time of such payment was not permitted by the Financing
Agreement, shall be, and shall forthwith be delivered to the Collateral Agent, if such Collateral
constitutes certificated Pledged Collateral, to hold as, Pledged Collateral and shall, if received
by the Pledgor, be received in trust for the benefit of the Collateral Agent, shall be segregated
from the other property or funds of the Pledgor, and shall be forthwith delivered to the Collateral
Agent in the exact form received with any necessary endorsement and/or appropriate stock powers
duly executed in blank, to be held by the Collateral Agent as Pledged Collateral and as further
collateral security for the Obligations; and



                    (iii) the Collateral Agent will execute and deliver (or cause to be executed and delivered) to
the Pledgor all such proxies and other instruments as the Pledgor may reasonably request for the
purpose of enabling the Pledgor to exercise the voting and other rights which it is entitled to
exercise pursuant to Section 7(a)(i) hereof and to receive the dividends, interest and/or other
distributions which it is authorized to receive and retain pursuant to Section 7(a)(ii) hereof.






Exh. E-7









 








               (b) Upon the occurrence and during the continuance of an Event of Default:



                    (i) all rights of the Pledgor to exercise the voting and other rights which it would otherwise
be entitled to exercise pursuant to Section 7(a)(i) hereof, and to receive the dividends,
distributions, interest and other payments which it would otherwise be authorized to receive and
retain pursuant to Section 7(a)(ii) hereof, shall cease, and all such rights shall thereupon become
vested in the Collateral Agent which shall thereupon have the sole right to exercise such voting
and other consensual rights and to receive and hold as Pledged Collateral such dividends and
interest payments;



                    (ii) without limiting the generality of the foregoing, the Collateral Agent may, at its option
exercise any and all rights of conversion, exchange, subscription or any other rights, privileges
or options pertaining to any of the Pledged Collateral as if it were the absolute owner thereof,
including, without limitation, the right to exchange, in its discretion, any and all of the Pledged
Collateral upon the merger, consolidation, reorganization, recapitalization or other adjustment of
each Pledged Issuer, or upon the exercise by each Pledged Issuer of any right, privilege or option
pertaining to any Pledged Collateral, and, in connection therewith, to deposit and deliver any and
all of the Pledged Collateral with any committee, depository, transfer agent, registrar or other
designated agent upon such terms and conditions as it may determine; and



                    (iii) all dividends, distributions, interest and other payments which are received by the
Pledgor contrary to the provisions of Section 7(b)(i) hereof shall be received in trust for the
benefit of the Collateral Agent shall be segregated from other funds of the Pledgor, and shall be
forthwith paid over to the Collateral Agent as Pledged Collateral in the exact form received with
any necessary endorsement and/or appropriate stock powers duly executed in blank, to be held by the
Collateral Agent as Pledged Collateral and as further collateral security for the Obligations.



          SECTION 8. Additional Provisions Concerning the Pledged Collateral.




          (a) To the maximum extent permitted by applicable law, and for the purpose of taking any
action which the Agent may deem necessary or advisable to accomplish the purposes of this
Agreement, the Pledgor (i) authorizes the Collateral Agent to execute any such agreements,
instruments or other documents in the Pledgor’s name and to file such agreements, instruments or
other documents in the Pledgor’s name and to file such agreements, instruments, or other documents
in any appropriate filing office (ii) authorizes the Collateral Agent to file any financing
statements required hereunder or under any other Loan Document, and any continuation statements or
amendment with respect thereto, in any appropriate filing office without the signature of the
Pledgor and (iii) ratifies the filing of any financing statement, and any continuation statement or
amendment with respect thereto, filed without the signature of the Pledgor prior to the date hereof
A photocopy or other reproduction of this Agreement or any financing statement covering the Pledged
Collateral or any part thereof shall be sufficient as a financing statement where permitted by law.







Exh. E-8









 








               (b) The Pledgor hereby irrevocably appoints the Collateral Agent as the Pledgor’s
attorney-in-fact and proxy, with full authority in the place and stead of the Pledgor and in the
name of the Pledgor or otherwise, from time to time in the Collateral Agent’s discretion, to take
any action and to execute any instrument which the Collateral Agent may deem necessary or advisable
to accomplish the purposes of this Agreement (subject to the rights of the Pledgor under Section
7(a) hereof), including, without limitation, to receive, endorse and collect all instruments made
payable to the Pledgor representing any dividend, interest, distribution or other payment in
respect of any Pledged Collateral and to give full discharge for the same. This power is coupled
with an interest and is irrevocable until all of the Obligations are indefeasibly paid in full
after all Commitments have been terminated.



               (c) If the Pledgor fails to perform any agreement or obligation contained herein, the
Collateral Agent itself may perform, or cause performance of, such agreement or obligation, and the
expenses of the Collateral Agent incurred in connection therewith shall be payable by the Pledgor
pursuant to Section 10 hereof and shall be secured by the Pledged Collateral.



               (d) Other than the exercise of reasonable care to assure the safe custody of the Pledged
Collateral while held hereunder, the Collateral Agent shall have no duty or liability to preserve
rights pertaining thereto and shall be relieved of all responsibility for the Pledged Collateral
upon surrendering it or tendering surrender of it to the Pledgor. The Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation of the Pledged Collateral
in its possession if the Pledged Collateral is accorded treatment substantially equal to that which
the Collateral Agent accords its own property, it being understood that the Collateral Agent shall
not have responsibility for (i) ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relating to any Pledged Collateral, whether or not
the Collateral Agent has or is deemed to have knowledge of such matters, or (ii) taking any
necessary steps to preserve rights against any parties with respect to any Pledged Collateral.



               (e) The powers conferred on the Collateral Agent hereunder are solely to protect its interest
in the Pledged Collateral and shall not impose any duty upon the Collateral Agent to exercise any
such powers. Except for the safe custody of any Pledged Collateral in its possession and the
accounting for monies actually received by it hereunder, the Collateral Agent shall have no duty as
to any Pledged Collateral or as to the taking of any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Pledged Collateral.



               (f) The Collateral Agent may at any time in its discretion (i) without notice to the Pledgor,
transfer or register in the name of the Collateral Agent or any of its nominees any or all of the
Pledged Collateral, subject only to the revocable rights of such Pledgor under Section 7(a) hereof,
and (ii) exchange certificates or instruments constituting Pledged Collateral for certificates or
instruments of smaller or larger denominations.



          SECTION 9. Remedies Upon Default. If any Event of Default shall have occurred and be
continuing:







Exh. E-9









 








               (a) The Collateral Agent may exercise in respect of the Pledged Collateral, in addition to any
other rights and remedies provided for herein or otherwise available to it, all of the rights and
remedies of a secured party upon default under the Code then in effect in the State of New York;
and without limiting the generality of the foregoing and without notice except as specified below,
sell the Pledged Collateral or any part thereof in one or more parcels at public or private sale,
at any exchange or broker’s board or elsewhere, at such price or prices and on such other terms as
the Collateral Agent may deem commercially reasonable. The Pledgor agrees that, to the extent
notice of sale shall be required by law, at least five (5) days notice to the Pledgor of the time
and place of any public sale of Pledged Collateral owned by the Pledgor or the time after which any
private sale is to be made shall constitute reasonable notification. The Collateral Agent shall not
be obligated to make any sale of Pledged Collateral regardless of whether or not notice of sale has
been given. The Collateral Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.



               (b) In the event that the Collateral Agent determines to exercise its right to sell all or any
part of the Pledged Collateral pursuant to Section 9(a) hereof, the Pledgor will, upon request by
the Collateral Agent: (i) execute and deliver, and vote in favor of causing the issuer of the
Pledged Collateral and the directors and officers thereof to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts and things, as may be
necessary or, in the opinion of the Collateral Agent, advisable to register the Pledged Collateral
under the provisions of the Securities Act of 1933, as amended (the “Securities Act”), and
to cause the registration statement relating thereto to become effective and to remain effective
for such period as prospectuses are required by law to be furnished, and to make all amendments and
supplements thereto and to the related prospectus which, in the opinion of the Collateral Agent,
are necessary or advisable, all in conformity with the requirements of the Securities Act and the
rules and regulations of the Securities and Exchange Commission applicable thereto, (ii) vote in
favor of causing the issuer of the Pledged Collateral to qualify the Pledged Collateral under the
state securities or “Blue Sky” laws of each jurisdiction, and to obtain all necessary governmental
approvals for the sale of the Pledged Collateral, as requested by the Collateral Agent, (iii) vote
in favor of causing each Pledged Issuer to make available to its securityholders, as soon as
practicable, an earnings statement which will satisfy the provisions of Section 11(a) of the
Securities Act, and (iv) do or cause to be done all such other acts and things within its power as
may be necessary to make such sale of the Pledged Collateral valid and binding and in compliance
with any applicable law.



               (c) Notwithstanding the provisions of Section 9(b) hereof, the Pledgor recognizes that the
Collateral Agent may deem it impracticable to effect a public sale of all or any part of the
Pledged Shares or any other securities constituting Pledged Collateral and that the Collateral
Agent may, therefore, determine to make one or more private sales of any such securities to a
restricted group of purchasers who will be obligated to agree, among other things, to acquire such
securities for their own account, for investment and not with a view to the distribution or resale
thereof. The Pledgor acknowledges that any such private sale may be at prices and on terms less
favorable to the seller than the prices and other terms which might have been obtained at a public
sale and, notwithstanding the foregoing, agrees that such private sales shall be deemed to have
been made in a commercially reasonable manner and that the Collateral



Exh. E-10









 




Agent shall have no obligation to delay the sale of any such securities for the period of time
necessary to permit the issuer of such securities to register such securities for public sale under
the Securities Act. The Pledgor further acknowledges and agrees that any offer to sell such
securities which has been (i) publicly advertised on a bona fide basis in a newspaper or other
publication of general circulation in the financial community of New York, New York (to the extent
that such an offer may be so advertised without prior registration under the Securities Act) or
(ii) made privately in the manner described above to not less than fifteen bona
fide offerees shall be deemed to involve a “public disposition” for the purposes of Section
9-610(c) of the Code (or any successor or similar, applicable statutory provision) as then in
effect in the State of New York, notwithstanding that such sale may not constitute a “public
offering” under the Securities Act, and that the Collateral Agent may, in such event, bid for the
purchase of such securities.




               (d) Any cash held by the Collateral Agent as Pledged Collateral and all cash proceeds received
by the Collateral Agent in respect of any sale of, collection from, or other realization upon, all
or any part of the Pledged Collateral may, in the discretion of the Collateral Agent, be held by
the Collateral Agent as collateral for, and/or then or at any time thereafter applied (after
payment of any amounts payable to the Collateral Agent pursuant to Section 10 hereof) in whole or
in part by the Collateral Agent against, all or any part of the Obligations in such order as the
Collateral Agent shall elect consistent with the provisions of the Financing Agreement. Any surplus
of such cash or cash proceeds held by the Collateral Agent and remaining after indefeasible payment
in full of all of the Obligations after all Commitments have been terminated shall be paid over to
the Pledgor or to such Person as may be lawfully entitled to receive such surplus.



               (e) In the event that the proceeds of any such sale, collection or realization are
insufficient to pay all amounts to which the Agents and the Lenders are legally entitled, the
Pledgor shall be liable for the deficiency, together with interest thereon at the highest rate
specified in the Financing Agreement for interest on overdue principal thereof or such other rate
as shall be fixed by applicable law, together with the costs of collection and the fees, costs and
expenses and other client charges of any attorneys employed by the Collateral Agent to collect such
deficiency.



          SECTION 10. Indemnity and Expenses.




               (a) The Pledgor agrees to defend, protect, indemnify and hold harmless each Agent and each
Lender (and all of their respective officers, directors, employees, attorneys, consultants and
agents) from and against any and all claims, damages, losses, liabilities obligations, penalties,
fees, costs and expenses (including, without limitation, legal fees, costs and expenses of counsel)
to the extent that they arise out of or otherwise result from the enforcement of this Agreement,
except, as to any such indemnified Person, claims, losses or liabilities resulting solely and
directly from such Person’s gross negligence or willful misconduct as determined by a final
judgment of a court of competent jurisdiction.



               (b) The Pledgor agrees to pay to the Collateral Agent upon demand the amount of any and all
costs and expenses, including the fees, costs, expenses and disbursements of the Collateral Agent’s
counsel and of any experts and agents, which the Collateral Agent may



Exh. E-11









 




incur in connection with (i) the amendment, waiver or other modification or termination of
this Agreement, (ii) the custody, preservation, use or operation of, or the sale of, collection
from, or other realization upon, any Pledged Collateral, (iii) the exercise or enforcement of any
of the rights of the Collateral Agent hereunder, or (iv) the failure by the Pledgor to perform or
observe any of the provisions hereof.




          SECTION 11. Notices, Etc. All notices and other communications provided for hereunder
shall be in writing and shall be mailed (by certified mail, postage prepaid and return receipt
requested), telecopied or delivered, if to the Pledgor, to the Pledgor as specified next to such
Pledgor’s signature below; if to the Borrower, at its address specified in Section 12.01 of the
Financing Agreement; or if to the Collateral Agent, to it at its address specified in Section 12.01
of the Financing Agreement; or as to any such Person at such other address as shall be designated
by such Person in a written notice to such other Person complying as to delivery with the terms of
this Section 11. All such notices and other communications shall be effective (i) if mailed
(certified mail, postage prepaid and return receipt requested), when received or three (3) days
after deposited in the mails, whichever occurs first, (ii) if telecopied, when transmitted and
confirmation received, or (iii) if delivered by hand, Federal Express or other reputable overnight
courier, upon delivery.




          SECTION 12. Security Interest Absolute. All rights of the Agents and the Lenders, all
Liens and all obligations of the Pledgor hereunder shall be absolute and unconditional irrespective
of: (i) any lack of validity or enforceability of the Financing Agreement or any other agreement or
instrument relating thereto, (ii) any change in the time, manner or place of payment of, or in any
other term in respect of, all or any of the Obligations, or any other amendment or waiver of or
consent to any departure from the Financing Agreement or any other Loan Document, (iii) any
exchange or release of, or non-perfection of any Lien on any Collateral, or any release or
amendment or waiver of or consent to departure from any Guaranty, for all or any of the
Obligations, or (iv) any other circumstance which might otherwise constitute a defense available
to, or a discharge of, the Pledgor in respect of the Obligations. All authorizations and agencies
contained herein with respect to any of the Pledged Collateral are irrevocable and powers coupled
with an interest.




          SECTION 13. Miscellaneous.




               (a) No amendment of any provision of this Agreement shall be effective unless it is in writing
and signed by the Collateral Agent, and no waiver of any provision of this Agreement, and no
consent to any departure the Pledgor therefrom, shall be effective unless it is in writing and
signed by the Collateral Agent, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.



               (b) No failure on the part of any Agent or any Lender to exercise, and no delay in exercising,
any right hereunder or under any Loan Document shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The rights and remedies of the Agents and the Lenders provided herein
and in the other Loan Documents are cumulative and are in addition to, and not exclusive of, any
rights or remedies provided by law. The rights of the



Exh. E-12









 




Agents and the Lenders under the applicable Loan Document against any party thereto are not
conditional or contingent on any attempt by the Agents or the Lenders to exercise any of their
rights under any other document against such party or against any other Person, including but not
limited to, the Pledgor.




               (c) Any provision of this Agreement which 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 thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.



               (d) This Agreement shall create a continuing security interest in and Lien on the Pledged
Collateral and shall (i) remain in full force and effect until the indefeasible payment in full or
release of the Obligations after the termination of all of the Commitments and (ii) be binding on
each Pledgor and, by its acceptance hereof, the Collateral Agent, and its respective successors and
assigns, and shall inure, together with all rights and remedies of the Agents and the Lenders
hereunder, to the benefit of each of the Agents and the Lenders and their respective successors,
transferees and assigns. Without limiting the generality of clause (ii) of the immediately
preceding sentence, without notice to the Pledgor, the Agents and the Lenders may assign or
otherwise transfer their respective rights and obligations under this Agreement and any other Loan
Document to any other Person, and such other Person shall thereupon become vested with all of the
benefits in respect thereof granted to the Agents and the Lenders herein or otherwise. Upon any
such assignment or transfer, all references in this Agreement to any such Agent or Lender shall
mean the assignee of such Agent or Lender. None of the rights or obligations of the Pledgor
hereunder may be assigned or otherwise transferred without the prior written consent of the
Collateral Agent, and any such assignment or transfer shall be null and void.



               (e) Upon the satisfaction in full of the Obligations after the termination of all of the
Commitments (i) this Agreement and the security interest and Lien created hereby shall terminate
and all rights to the Pledged Collateral shall revert to the Pledgor, and (ii) the Collateral Agent
will, upon the Pledgor’s request and at the Pledgor’s expense, (A) return to the Pledgor such of
the Pledged Collateral as shall not have been sold or otherwise disposed of or applied pursuant to
the terms hereof, and (B) execute and deliver to the Pledgor, without recourse, representation or
warranty, such documents as the Pledgor shall reasonably request to evidence such termination.



               (f) This Agreement may be executed in any number of counterparts and by the different parties
hereto on separate counterparts, each of which shall be deemed an original, but all such
counterparts shall constitute one and the same agreement. Delivery of an executed counterpart of
this Agreement by telefacsimile or electronic mail shall be equally as effective as delivery of an
original executed counterpart of this Agreement. Any party delivering an executed counterpart of
this Agreement by telefacsimile or electronic mail also shall deliver an original executed
counterpart of this Agreement but the failure to deliver an original executed counterpart shall not
affect the validity, enforceability, and binding effect of this Agreement.



               (g) This Agreement shall be governed by and construed in accordance with the law of the State
of New York, except as required by mandatory provisions of law and



Exh. E-13









 




except to the extent that the validity and perfection or the perfection and the effect of
perfection or non-perfection of the security interest and Lien created hereby, or remedies
hereunder, in respect of any particular Pledged Collateral are governed by the law of a
jurisdiction other than the State of New York.




               (h) ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY DOCUMENT
RELATED THERETO MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK IN THE COUNTY OF NEW YORK OR
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS THEREOF,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE PLEDGOR HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS.
THE PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING
OF ANY SUCH ACTION, SUIT OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS AND CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.



               (i) THE PLEDGOR AND (BY ITS ACCEPTANCE OF THE BENEFITS OF THIS AGREEMENT) THE COLLATERAL AGENT
WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR OTHER ACTION OF THE PARTIES HERETO.



[signature page follows]









Exh. E-14









 








          IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be executed and delivered on the
date first above written.




	 	 	 	 	 
	 	PLEDGOR: 



IMPERIAL PREMIUM FINANCE, LLC

 	 
	 	By:  	Imperial Holdings, LLC, its managing member
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	Jonathan Neuman 	 
	 	 	Title:  	President 	 
	 
	 	Address:



701 Park of Commerce Blvd., Suite 301

Boca Raton, Florida 33487

Telecopy No.: (561) 995-4203

 	 
	 



[SIGNATURE
PAGE TO INDIVIDUAL GUARANTEE SECURITY AGREEMENT]







 









 








SCHEDULE I

TO

GUARANTOR SECURITY AGREEMENT




Pledged Shares




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pledgor	 	Name of Issuer	 	Number of Shares	 	Class	 	Certificate Number
	Imperial Premium 

Finance, LLC

	 	Imperial PFC

Financing II, LLC
	 	 	100	 	 	Common
	 	 	1	 











 









 








SCHEDULE II




TO



GUARANTOR SECURITY AGREEMENT



Part A



Current Names and Addresses of Pledgor



	 	 	 	 	 	 	 	 	 	 	 
	Exact Name	 	Address	 	City	 	State	 	Zip Code
	Imperial Premium 

Finance, LLC

	 	701 Park of
Commerce Blvd.,
Suite 301
	 	Boca Raton
	 	Florida
	 	 	33487	 






Part B




Names and Addresses of Pledgor Used During Last Five Years



	 	 	 	 	 	 	 	 	 
	Exact Name	 	Address	 	City	 	State	 	Zip Code
	 
	 	 	 	 	 	 	 	 










 









 








SCHEDULE III




TO



GUARANTOR SECURITY AGREEMENT



Filing Offices



	 	 	 

	Name
	 	Filing Office
	 
	 	 
	Florida
	 	Secretary of State











 









 








ANNEX I




TO



GUARANTOR SECURITY AGREEMENT



PLEDGE AMENDMENT



          This Pledge Amendment, dated                     , is delivered pursuant to Section 4 of the Pledge and
Security Agreement referred to below. The undersigned hereby agrees that this Pledge Amendment may
be attached to the Guarantor Security Agreement, dated as of                     , 2009, as it may
heretofore have been or hereafter may be amended or otherwise modified or supplemented from time to
time (the “Pledge and Security Agreement”) and that the shares listed on this Pledge
Amendment shall be hereby pledged and assigned to the Collateral Agent and become part of the
Pledged Collateral referred to in such Pledge and Security Agreement and shall secure all of the
Obligations referred to in such Pledge and Security Agreement.




          Pledged Shares




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Number of	 	 	 	Certificate
	Pledgor	 	Name of Issuer	 	Shares	 	Class	 	Number(s)
	 
	 	 	 	 	 	 	 	 





	 	 	 	 	 
	 	[PLEDGOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 








 









 





Exhibit F




Loan Document Package


The following documents comprising Exhibit F have been omitted in their
entirety pursuant to a request for confidential treatment. An unredacted copy of each of
the following documents has been filed separately with the United States Securities
and Exchange Commission pursuant to a request for confidential treatment.





	1.	 	Authorization and Direction to Provide Death Certificate
	 
	2.	 	Brokers Rights of Agent
	 
	3.	 	Assignment of Life Insurance Policy as Collateral
	 
	4.	 	Authorization for Use and/or Disclosure of Health Information
	 
	5.	 	Hold Harmless Agreement
	 
	6.	 	Guaranty
	 
	7.	 	Insured Disclosure Statement, Representations and Warranties, and Consent
	 
	8.	 	Authorization Form for Use and Disclosure of Health Information
	 
	9.	 	Limited Power of Attorney
	 
	10.	 	Loan Application and Agreement
	 
	11.	 	Limited Specific Power of Attorney
	 
	12.	 	Promissory Note
	 
	13.	 	Out-of-State Closing Affidavit
	 
	14.	 	Representations, Warranties and Covenants of Agent
	 
	15.	 	Beneficiary Pledge Agreement
	 
	16.	 	Assignment of Beneficial Interests
	 
	17.	 	Fee Agreement
	 
	18.	 	Trust Disclosure Statement, Representations and Warranties, and Consent



















 





EXHIBIT G




FORM OF BORROWING BASE CERTIFICATE



Date:                                                             .     
                



     This Borrowing Base Certificate (this “Certificate”) is given by Imperial PFC
Financing II, LLC, a Georgia limited liability company (the “Borrower”) pursuant to the
Financing Agreement, dated as of                     , 2009 (as amended, restated, supplemented or
otherwise modified from time to time, including any replacement agreement therefor, the
“Financing Agreement”), by and among the Borrower, the lenders from time to time party
thereto (each a “Lender” and collectively, the “Lenders”), LoIC LLC, a Delaware
limited liability company (“LoIC”), as collateral agent for the Lenders (the “Collateral
Agent”), and LoIC, as administrative agent for the Lenders (the “Administrative Agent”
and together with the Collateral Agent, each an “Agent” and collectively, the
“Agents”). Capitalized terms defined in the Financing Agreement and not otherwise defined
herein are used herein as defined in the Financing Agreement.



     The individual executing this Certificate on behalf of the Borrower is an Authorized Officer
and, as such, is duly authorized to execute and deliver this Certificate on behalf of the Borrower.
By executing this Certificate such Authorized Officer hereby certifies to the Agents and the
Lenders that:




	 	(a)	 	Attached hereto as Exhibit A is a schedule of the Borrowing Base as of
the date set forth above and the calculations made with respect thereto; and
	 
	 	(b)	 	Based on such schedule:






	 	(i)	 	the Borrowing Base as of the date set forth above is $
                    , and
	 
	 	(ii)	 	[no prepayment of the principal amount of the Loans is required
pursuant to Section 2.05(c)(ii) of the Financing Agreement] [$                     of the
principal amount of the Loans is required to be prepaid pursuant to Section
2.05(c)(ii) of the Financing Agreement].





     Additionally, the undersigned hereby certifies, represents and warrants to the Agents and the
Lenders that (i) as of the date hereof, each representation and warranty contained in or made
pursuant to any Loan Document is true and correct in all material respects (except to the extent
such representation or warranty expressly relates to an earlier date, in which case, such
representation or warranty was true and correct as of such earlier date), (ii) each of the
covenants and agreements contained in any Loan Document have been performed (to the extent required
to be performed on or before the date hereof), (iii) no Default or Event of Default has occurred
and is continuing on the date hereof, and (iv) all of the calculations set forth on Exhibit A have
been made in accordance with the requirements of the Financing Agreement.



[Signature page follows]






1









 








          IN WITNESS WHEREOF, the Borrower has caused this Certificate to be executed by one of its
Authorized Officers this ___day of                                         , 200__.





	 	 	 	 	 
	 	IMPERIAL PFC FINANCING II, LLC 



	 
	 	By:  	                                              Imperial Premium Finance, LLC, its sole member
 	 



	 	 	 	 	 
	 	 	 
	 	By:  	                                              Imperial Holdings, LLC, its managing member
 	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	Jonathan Neuman 	 
	 	 	Title:  	President 	 
	 




2











 





EXHIBIT A

TO

BORROWING BASE CERTIFICATE


Effective Date of Calculation:



A. Borrowing Base Calculation




	 	 	 	 	 	 	 	 	 	 	 	 	 

	1.     100% of the present value (utilizing __% as the
discount rate) of the sum of (A) the aggregate of the
Covered Loan Amount of all Eligible Insurance Premium
Loans owned (actually, beneficially or through a
participation) by the Borrower and (B) the Aggregate
Interest Amount of all such Eligible Insurance Premium
Loans at the maturity date of each such Eligible Insurance
Premium Loan	 	 	 	 	 	 	$	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	2.       Covered Loan Amount Limit	 	 	 	 	 	 	 	 
	 

	 	(a)
	 	The lesser of (x) the outstanding principal
balance of all Eligible Insurance Premium
Loans financed under the Financing
Agreement and (y) (A) with respect to
Eligible Insurance Premium Loans being
initially financed under the Financing
Agreement at the time of calculation, the
aggregate First Year Premiums relating
thereto and (B) with respect to Eligible
Insurance Loans not described in the
preceding clause (A), the aggregate First
Year Premiums and Second Year Premiums
relating thereto
	 	 	$	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	(b)
	 	Aggregate Origination Fees with respect to
such Insurance Premium Loans
	 	 	$	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	(c)
	 	Aggregate of the Collateral Value Policy
and the Contingent Collateral Value Policy
premium reimbursement amounts payable,
directly or indirectly, by the Premium
Finance Borrowers to the Borrower in
respect of such Insurance Premium Loans,
to the extent financed under the Financing
Agreement
	 	 	$	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	(d)
	 	The amount of interest reasonably expected
to be due on the scheduled maturity dates of	 	 	 	 	 	 	 	 






1









 






	 	 	 	 	 	 	 	 	 	 	 	 	 

	 

	 	 	 	the Eligible Premium Finance Loans

financed hereunder
	 	 	$	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	(e)
	 	100% of the sum of 2(a), 2(b), 2(c) and 2(d)
discounted to present value utilizing ___%
as the discount rate
	 	 	$	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	3.       Borrowing Base (the lesser of 1 and 2)	 	 	 	 	 	 	$	 






2









 






EXHIBIT H




FORM OF OPINION




September          , 2009



To the Agents and each of the

Lenders party to the Financing

Agreement referred to below





	 	Re:  	 	Imperial PFC Financing II, LLC




Ladies and Gentlemen:




          We have acted as counsel to Imperial PFC Financing II, LLC, a Georgia limited liability
company (the “Borrower”), Imperial Premium Finance, LLC, a Florida limited liability
company (“Imperial”) and Jonathan Neuman and Antony Mitchell (each an “Individual
Guarantor” and collectively, the “Individual Guarantors” and together with the Borrower
and Imperial, each a “Credit Party”, and collectively, the “Credit Parties”) in
connection with the making by the Lenders (as defined herein) of the term loans (the “Term
Loans”) to the Borrower pursuant to the Financing Agreement, dated as of               , 2009 (the
“Financing Agreement”), by and among the Borrower, the lenders from time to time party
thereto (each a “Lender” and collectively, the “Lenders”) and LoIC LLC, a Delaware
limited liability company (“LoIC”), as collateral agent for the Lenders (in such capacity, the
“Collateral Agent”), and LoIC, as administrative agent for the Lenders (in such capacity,
the “Administrative Agent” and together with the Collateral Agent, each an “Agent”
and collectively, the “Agents”). This opinion is being delivered to you pursuant to Section
5.01(d) of the Financing Agreement. All capitalized terms used and not defined herein have the same
meanings herein as set forth in the Financing Agreement.1




          In connection with this opinion, we have reviewed (i) the organization and existence of the
Credit Parties, (ii) the proceedings of the Credit Parties in relation to the Loan Documents and
the Transaction Documents to which the Credit Parties are parties, (iii) the Loan Documents, (iv)
the UCC financing statements which have been prepared by the Collateral Agent pursuant to Section
5.01(d) of the Financing Agreement (the “Financing Statements”), and (v) such certificates
and other documents of the public officials, officers and other representatives of the Credit
Parties as we have deemed relevant or proper as a basis for our opinions set forth herein. In this
regard, we have relied as to factual matters on the representatives of the Credit Parties as we
have deemed relevant or proper as a basis for our opinions set forth herein. In this regard, we
have relied as to factual matters on the representations and warranties contained in the Loan
Documents and the Transaction Documents. In addition, we have assumed the genuineness of signatures
on original documents






 




			
	1	 	Note that in addition to these opinions, we
will also need full non-consolidation, true sale and true participation
opinions.




1









 









of all Persons and officers and other representatives of the Credit Parties, and the
conformity to the original of all copies submitted to us as photocopies or conformed copies.




          Based upon the foregoing and such investigations as we deem advisable and proper, we are of
the opinion that:




          1. Each of the Borrower and Imperial (i) is a limited liability company duly organized,
validly existing and in good standing under the law of the state of its organization, (ii) has all
requisite power and authority to conduct its business as now conducted and to consummate the
transactions contemplated by the Loan Documents and the Transaction Documents to which it is a
party, and (iii) is duly qualified to do business and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it or in which the transaction of its
business makes such qualification necessary or desirable. Each Individual Guarantor has the legal
capacity and right to execute, deliver and perform each Loan Document and each Transaction Document
to which the Individual Guarantor is a party.




          2. The execution, delivery and performance by each Credit Party of each Loan Document and
Transaction Document to which it is a party, (i) have been duly authorized by all necessary action,
(ii) do not contravene its Governing Documents, any law or regulation (including, without
limitation, Regulations T, U, or X of the Board), or any judgment, writ, injunction, decree, order
or ruling of which we have knowledge that names such Credit Party and is specifically directed to
it or its properties, (iii) do no breach, result in a default under or accelerate, or give any
party the right to accelerate, any of the obligations of such Credit Party under any Material
Contract, (iv) do not and will not result in or require the creation of any lien, security interest
or other charge or encumbrance (other than pursuant to the Loan Documents) upon or with respect to
any of its properties, and (v) do not and will not result in any suspension, revocation,
impairment, forfeiture or nonrenewal of any permit, licenses, authorization or approval applicable
to its operations or any of its properties.




          3. No consent, authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority or other regulatory body is required (i) in connection with the due
execution, delivery and performance by any Credit Party of any Loan Document or Transaction
Document to which such Person is a party, (ii) for the grant by any Credit Party pursuant to any
Loan Document, or the perfection, of any lien or security interest purported to be created thereby
in any Collateral, or (iii) for the exercise by the Agents and the Lenders of any of their rights
and remedies under any Loan Document, except for the recordings and filings referred to in
paragraph 6 below, all of which have been duly obtained or made and are in full force and effect.




          4. Each Loan Document and Transaction Document has been duly executed and delivered by each
Credit Party which is a party thereto. Each such Loan Document and Transaction Document constitutes
the legal, valid and binding obligation of the Credit Party which is a party thereto, enforceable
against such Credit Party in accordance with its terms, except to the extent that the
enforceability thereof may be limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws from time to time in effect affecting generally the enforcement of
creditors’ rights and remedies and by general principles of equity.






2









 








          5. The Security Agreement creates a valid security interest in favor of the Collateral Agent
for the benefit of the Agents and the Lenders in the Collateral purported to be covered thereby as
security for the obligations purported to be secured thereby. Each Individual Guarantor Security
Agreement creates a valid security interest in favor of the Collateral Agent for the benefit of the
Agents and the Lenders in the Collateral purported to be covered thereby as security for the
obligations purported to be secured thereby.




          6. The Borrower is a “registered organization” and is “located” in the state where the
Borrower is formed as set forth in Schedule A, and the local law of such state governs
perfection by the filing of Financing Statements. Each Individual Guarantor resides at the location
set forth in Schedule A, and the local law of such state governs perfection by the filing
of Financing Statements. Each Financing Statement to be filed in a state set forth on Schedule A
hereto (each, a “State”) is in appropriate form and has been duly filed in the offices set
forth in Schedule A hereto, which filings result in the perfection of the security interests in the
Collateral covered by such Financing Statements to the extent that such Collateral consists of the
type of property in which a security interest may be created under Article 9 of the Uniform
Commercial Code as currently in effect in such State (the “UCC”) and in which a security
interest may be perfected by the filing of a financing statement in such State. The description of
the Collateral set forth in the Financing Statements is sufficient to perfect a security interest
in the items and types of collateral in which a security interest may be perfected by the filing of
financing statements under the UCC currently in effect in the applicable State. Such security
interests of the Agents and the Lenders are perfected security interests. Other than nominal
recording or filing fees, no fees, taxes or other charges are due or payable in any State in
connection with the execution, delivery, filing or recordation of any Financing Statement.




          7. Upon the execution and delivery of each cash management agreement by a depositary bank that
maintains a collection account, the security interest of the Collateral Agent in the applicable
collection account maintained with such depositary bank will be perfected.




          8. Each Credit Party which is a party to the Security Agreement or an Individual Guarantor
Security Agreement is the owner of the Pledged Debt (as defined in the Security Agreement or an
Individual Guarantor Security Agreement, as applicable) and the Pledge Shares (as defined in the
Security Agreement or an Individual Guarantor Security Agreement, as applicable) in existence on
the date hereof, free and clear of any Lien except for the security interest created by the
Security Agreement or the Individual Guarantor Security Agreement. The Pledged Shares have been
duly authorized and validly issued, are fully paid and nonassessable and constitute 100% of the
issued and outstanding Equity Interests of the issuer of such Pledged Shares.




          9. The Collateral Agent’s having possession of the certificates representing the Pledged
Shares and the promissory notes representing the Pledged Debt delivered to the Collateral Agent on
the date hereof results in the perfection of such security interest. Such security interest is a
perfected, first priority security interest. The Collateral Agent has a perfected security interest
in that portion of the Pledged Shares consisting of general intangibles and other items in which a
security interest may be perfected by the filing of a financing statement in the applicable State.






3









 








          10. There is no pending or, to our knowledge, threatened action, suit or proceeding affecting
any Credit Party before any court, arbitrator, or Governmental Authority which may materially and
adversely affect (i) the financial condition, business, performance, properties, operations or
prospects of any Credit Party, (ii) the ability of any Credit Party to perform the obligations of
such Person under any Loan Document or Transaction Document to which it is a party, (iii) the
legality, validity or enforceability of any Loan Document or Transaction Document, (iv) the rights
and remedies of any Agent or any Lender under any Loan Document, or (v) the creation, perfection or
priority of the Lien of the Collateral Agent on any of the Collateral securing the Obligations.




          11. None of the Credit Parties is an “investment company” or a company “controlled by an
“investment company”, as such terms are defined in the Investment Company Act of 1940, as amended.




          12. The choice of New York law to govern the Financing Agreement and the other Loan Documents
is a valid choice of law and will be upheld in a properly presented case by a court of competent
jurisdiction in the States of                     . The Credit Parties’ submission to the jurisdiction of
the courts of the State of New York in the county of New York or the United District court for the
Southern District of New York is legal, valid and binding under the laws of the applicable state
jurisdiction.




          13. If a court of the States of                      were to apply the usury law of such
jurisdiction to the Financing Agreement and the other Loan Documents, the Term Loans, as made,
would not violate any applicable usury law of such jurisdiction, or other applicable laws
regulating the interest rate, fees and other charges that may be collected with respect to the Term
Loans.2




          14. This opinion letter may not be relied upon or furnished to any other Person, except your
attorneys and auditors, any state or federal governmental or other regulatory authority, bank
examiners, pursuant to any legal process of any court or governmental or regulatory authority or to
your successors, assigns and participants.




Very truly yours,






 




			
	2	 	For each Credit Party, insert the State of
incorporation or organization for such Credit Party, and each State where such
Credit Party’s headquarters, chief executive office and principal place of
business or personal residence are located.




4









 










SCHEDULE A 




FILINGS OF FINANCING STATEMENTS



Debtor                                               Office










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EXHIBIT I




FORM OF INSURANCE PREMIUM LOAN SALE AND ASSIGNMENT AGREEMENT




     This INSURANCE PREMIUM LOAN SALE AND ASSIGNMENT AGREEMENT (“Assignment Agreement”) is
entered into as of                
       , 20___between Imperial Premium Finance, LLC, a Florida limited liability
company (“Assignor”) and Imperial PFC Financing II, LLC, a Georgia limited liability
company (“Assignee”). Reference is made to the agreement described in Item 2 of
Annex I annexed hereto (as amended, restated, modified or otherwise supplemented from time
to time, the “Financing Agreement”). Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Financing Agreement.



          1. Interests. The Assignor hereby sells, transfers and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, all of the Assignor’s right, title and
interest in and to the Insurance Premium Loan identified on Annex I together with the Loan
Documentation Package as of the date hereof with respect to such Insurance Premium Loan originated
in an Applicable Non-Licensed State as specified on Annex I.




          2. Representations and Warranties of the Assignor. The Assignor hereby represents and
warrants to the Assignee as of the Settlement Date (or such other date as expressly provided below)
that:




          (a) Organization and Good Standing. The Assignor has been duly organized and is
validly existing as a limited liability company in good standing under the laws of the state of its
incorporation or formation, and has power and authority to own its properties and to conduct its
business as such properties shall be currently owned and such business is presently conducted.




          (b) Due Qualification. The Assignor is duly qualified to do business (or is exempt
from such qualification requirements) and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to so qualify or to obtain such licenses or approvals would have a
material adverse effect on the Assignor’s ability to perform its obligations as an Assignor under
this Assignment Agreement.




          (c) Due Authorization. The Assignor’s execution, delivery and performance of this
Assignment Agreement and the other agreements and instruments executed or to be executed by the
Assignor contemplated by this Assignment Agreement, and the consummation of the transactions
contemplated by this Assignment Agreement, have been duly and validly authorized by all necessary
action on the part of the Assignor.




          (d) Binding Obligation. This Assignment Agreement constitutes the legal, valid and
binding obligation of the Assignor enforceable against the Assignor in accordance with its terms,
except as enforceability may be limited by insolvency, reorganization, moratorium and other similar
laws affecting creditors’ rights generally or by general principles of equity whether considered in
a suit at law or in equity.




          (e) No Conflict. The Assignor’s execution and delivery of this Assignment Agreement,
its performance of the transactions contemplated hereby and its fulfillment of the






1









 







terms hereof applicable to the Assignor do not (i) contravene the Assignor’s organizational or
governing documents, (ii) conflict with or violate any applicable law, (iii) violate any provision
of, or require any filing, registration, consent or approval under, any law presently in effect
having applicability to the Assignor, except for such filings, registrations, consents or approvals
as have already been obtained or made and are in full force and effect, (iv) conflict with, result
in any breach of (A) any of the terms or provisions of, or constitute (with or without notice or
lapse of time or both) a default under any Insurance Premium Loan or (B) any of the terms or
provisions of, or constitute (with or without notice or lapse of time or both) a default under any
indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Assignor
is a party or by which it or its properties or assets are bound.




          (f) No Proceedings. There are no proceedings, injunctions, writs, restraining orders
or investigations pending or, to the best knowledge of the Assignor, threatened against the
Assignor before any governmental authority (i) asserting the illegality, invalidity or
unenforceability, or seeking any determination or ruling that would affect the legality, validity
or enforceability, of the Loan Documents, this Assignment Agreement or any other Transaction
Document, (ii) seeking to prevent the consummation of any of the transactions contemplated by the
Loan Documents, this Assignment Agreement or any other Transaction Document, (iii) seeking any
determination or ruling that, if adversely determined, could have a material and adverse effect on
the financial condition or operations of the Assignor or the validity or enforceability of, or the
performance by the Assignor of its obligations under, this Assignment Agreement or (iv) seeking to
affect adversely the income tax attributes or other tax attributes of the Assignor under the U.S.
federal or the State of Florida, as applicable, tax systems. There are no proceedings, injunctions,
writs, restraining orders or investigations pending with respect to any Insurance Premium Loan an
interest in which is being sold to the Assignee, or the related Life Insurance Policy, before any
governmental authority asserting the illegality, invalidity or unenforceability, or seeking any
determination or ruling that would affect the legality, validity or enforceability, of any such
Insurance Premium Loan or the related Life Insurance Policy.




          (g) No Consents. No authorization, consent, license, order or approval of, or
registration or declaration with, any Person, including any governmental authority, is required for
the Assignor in connection with the execution and delivery of this Assignment Agreement by the
Assignor or the performance of its obligations under this Assignment Agreement, except for the
exercise by the Assignee or its assigns of the rights provided for in this Assignment Agreement or
the remedies in respect of any Insurance Premium Loans an interest in which is sold, transferred,
assigned or otherwise conveyed by the Assignor to the Assignee pursuant to this Assignment
Agreement.




          (h) Liens. Each Insurance Premium Loan which has been sold and transferred hereunder
is owned by the Assignor free and clear of any Lien, and the Assignor has not either created or
consented to the creation of any Lien affecting any Insurance Premium Loan sold and transferred
hereunder or any related Life Insurance Policy other than the Liens contemplated by the Transaction
Documents.




          (i) Valid Transfers. This Assignment Agreement constitutes a valid sale, transfer and
assignment to the Assignee of an interest in the Assignor’s entire right, title and interest in and
to the Insurance Premium Loans sold and transferred hereunder, whether now





2









 







existing or hereafter created (including all monies due or to become due with respect to such
Insurance Premium Loans, all proceeds (including “proceeds” as defined in the UCC of the
jurisdiction whose law governs the perfection of an interest in such Insurance Premium Loans) of
such Insurance Premium Loans and all cash proceeds of any related security).




          (j) Solvency. The Assignor is solvent and will not become insolvent after giving
effect to the transactions contemplated by this Assignment Agreement.




          (k) Compliance. The Assignor has complied with all Requirements of Law with respect to
it, its business and properties and all Insurance Premium Loans and the Life Insurance Policy
related thereto. The Assignor has obtained all applicable permits, certifications and licenses
(including all licenses to originate Insurance Premium Loans) necessary with respect to its
business and properties and all Insurance Premium Loans and the Life Insurance Policy related
thereto.




          (l) No Rescission. Neither any Insurance Premium Loans sold hereunder nor the related
Life Insurance Policy has been subordinated or rescinded or, except as disclosed in writing to the
Assignee, amended in any manner




          (m) No Event of Bankruptcy. No Event of Bankruptcy has occurred with respect to the
Assignor. An “Event of Bankruptcy” means an Event of Default under Sections 9.01(g) or (h) of the
Financing Agreement.




          (n) Fraudulent Conveyance. The Assignor is not entering into the transactions
contemplated hereby with any intent of hindering, delaying or defrauding creditors.




          (o) Insurance Premium Loans.




               (i) As of the Settlement Date, each Insurance Premium Loan sold by the Assignor hereunder is
an Eligible Insurance Premium Loan and the grant, sale and purchase hereunder of such Insurance
Premium Loans and Collections arising thereunder do not conflict with, result in a breach of any of
the provisions of, or constitute (with or without notice or lapse of time or both) a default under,
any agreements evidencing such Insurance Premium Loan;



               (ii) As of the Settlement Date, each Insurance Premium Loan on such date is the valid, binding
and enforceable obligation of each obligor thereunder;



               (iii) As of the Settlement Date, each Insurance Premium Loan on such date was originated by
the Assignor in the ordinary course of the Assignor’s premium finance lending activities and in
accordance with all Requirements of Law;



               (iv) As of any Settlement Date, the information set forth in this Assignment Agreement with
respect to each Insurance Premium Loan therein is correct;



               (v) With respect to each Insurance Premium Loan sold by the Assignor, the Assignor represents
and warrants that each such Insurance Premium Loans has



3









 




been originated in accordance with the applicable criteria set forth in the Transaction
Documents;




               (vi) As of the Settlement Date, no payment default exists with respect to any Insurance
Premium Loan;



               (vii) As of the Settlement Date, no event or circumstance under Section V.A or Section V.B of
the Collateral Value Policy has occurred;



               (viii) As of the Settlement Date, the Assignor (A) has not committed a Prohibited Act (as
defined in the Collateral Value Policy) and (B) is not aware that any Prohibited Act has been
committed by any Person with respect to an Insurance Premium Loan in which an interest is sold by
the Assignor hereunder; and



               (ix) As of the Settlement Date, no policy loan, cash withdrawal or surrender has occurred with
respect to the Life Insurance Policy related to the Insurance Premium Loan in which an interest is
sold by the Assignor hereunder.



          (p) Legal Names. As of the Settlement Date, the legal name of the Assignor is as set
forth on the signature pages of this Assignment Agreement.




          (q) Margin Regulations. The Assignor will not use any of the proceeds of the Purchase
Price for any purpose which will conflict with or contravene any of Regulations T, U or X
promulgated by the Federal Reserve Board from time to time.




          (r) Reasonably Equivalent Value. The Assignee has given reasonably equivalent value to
the Assignor in consideration for each purchase under this Assignment Agreement, no such transfer
has been made for or on account of an antecedent debt owed by the Assignor to the Assignee, and no
such transfer is or may be voidable or subject to avoidance under any applicable bankruptcy,
insolvency or other similar law.




          (s) Accuracy of Information. All certificates, reports, statements, documents and
other information furnished to the Assignee by or on behalf of the Assignor pursuant to any
provision of this Assignment Agreement, or in connection with or pursuant to any amendment or
modification of, or waiver under, this Assignment Agreement are, and shall, at the time the same
are so furnished, be complete and correct in all material respects on the date the same are
furnished.




          (t) Taxes. The Assignor has filed or has caused to be filed all federal, state and
local tax returns which it is required to file and has paid all Taxes, assessments and other
governmental charges due in respect of its respective returns, except to the extent that any such
Taxes, assessments or other governmental charges are being contested in good faith and as to which
the Assignor has set aside on its books adequate reserves and in respect of which no Liens have
attached to or been filed against the Assignor or any of its properties. There are no agreements or
waivers extending the statutory period of limitations applicable to any federal income tax return
of the Assignor for any period.






4









 








          (u) Investment Company Act. The Assignor is not an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.




          (v) Quality of Title. No effective financing statement or other similar instrument is
in effect covering any of the Insurance Premium Loans that have been transferred hereunder or any
interest therein that has been filed, authorized, acknowledged or otherwise permitted by the
Assignor or any Affiliate thereof in any recording office except for financing statements that may
be filed (x) in favor of the Collateral Agent in accordance with the Security Agreement, and/or (y)
in favor of the Assignor under the related Loan Document Package.




          3. Representations and Warranties of the Assignee. The Assignee hereby represents and
warrants to the Assignor as of the Settlement Date that:




          (a) Organization and Good Standing. The Assignee has been duly organized and is
validly existing as a limited liability company in good standing under the laws of the State of
Georgia, and has power and authority to own its properties and to conduct its business as such
properties shall be currently owned and such business is presently conducted.




          (b) Power and Authority. The Assignee shall have the power and authority to execute
and deliver this Assignment Agreement and to carry out its terms; the Assignee shall have full
power and authority to purchase the property to be purchased and shall have duly authorized such
purchase; and the execution, delivery and performance of this Assignment Agreement shall have been
duly authorized by the Assignee by all necessary action.




          (c) Binding Obligation. This Assignment Agreement shall constitute a legal, valid and
binding obligation of the Assignee enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors’ rights generally or by general principles of equity.




          The representations and warranties set forth in Section 2 and Section 3 of this Assignment
Agreement shall survive the sale of the interests by the Assignor to the Assignee pursuant to this
Assignment Agreement. Upon discovery by the Assignor or the Assignee of a breach of any of the
foregoing representations and warranties, the party discovering such breach shall give prompt
written notice to the other.




          4. Remedies.




          (a) Repurchase of interests for Certain Breaches. In the event of a breach of any
representations and warranties set forth in Section 2(c), (d), (e), (f), (g), (h), (i), (j), (k),
(l), (o) or (v), upon the earlier to occur of the discovery of such breach by the Assignor or
receipt by the Assignor of written notice of such breach given by or on behalf of the Assignee, the
Assignee’s interest in each Insurance Premium Loan relating to such breach shall be repurchased by
the Assignor from the Assignee and upon such repurchase shall terminate and be extinguished.




          (b) Reconveyed Insurance Premium Loans. Upon the repurchase by the Assignor of any
interest under this Assignment Agreement, then, on the date required for such repurchase, the
Assignor shall deposit into the Collection Account in immediately available





5









 







funds an amount equal to the outstanding principal balance of the affected Insurance Premium
Loans on the date of such repurchase, together with accrued and unpaid interest thereon through
such date. Such deposit shall be considered payment in full for such interest.




     In connection with the preceding paragraph, the Assignee shall execute such documents and
instruments of transfer or assignment as shall be prepared by the Assignor, and shall take such
other actions as shall reasonably be requested by the Assignor, to effect the repurchase of the
interests from the Assignee. Upon repurchase of the interests in Insurance Premium Loans from the
Assignee, the Assignee shall automatically and without further action be deemed to transfer,
assign, set over and otherwise convey to or upon the order of the Assignor, without recourse,
representation or warranty, all the right, title and interest of the Assignee in and to the
reconveyed interest and all Collections with respect thereto and all proceeds thereof received
after the date of such repurchase.



          5. Covenants of the Assignor. The Assignor hereby covenants that:




          (a) No Impairment. Except in accordance with, or as contemplated by, the Loan
Documents and the Transaction Documents, the Assignor shall take no action, nor omit to take any
action, which would impair the rights of the Assignee in any Insurance Premium Loan in which an
interest has been transferred hereunder.




          (b) Compliance with Law. The Assignor will comply in all material respects with all
Requirements of Law with respect to it, its business and properties and the Insurance Premium Loans
and related Life Insurance Policies. The Assignor will maintain all applicable permits,
certifications and licenses (including all licenses to originate Insurance Premium Loans) necessary
with respect to its business and properties and all Insurance Premium Loans and the Life Insurance
Policy related thereto.




          (c) Preservation of Existence. The Assignor will preserve and maintain its existence,
rights, franchises and privileges as a limited liability company or corporation, as applicable, and
become and remain licensed in each jurisdiction where the failure to maintain such license would
materially and adversely affect (A) the interests of the Assignee hereunder or (B) the
collectibility of any Insurance Premium Loans in which an interest has been transferred hereunder
or the related Life Insurance Policies; and the Assignor shall not consolidate with or merge into
any other Person or convey or transfer its properties and assets substantially as an entirety to
any Person without the prior written consent of the Assignee.




          (d) Performance and Compliance with Insurance Premium Loans. The Assignor will, at its
expense, timely and fully perform and comply with all provisions, covenants and other promises
required to be observed by it hereunder. The Assignor shall comply with and perform its obligations
with respect to any Insurance Premium Loan.




          (e) Collections and Payments. Except as otherwise provided in this Assignment
Agreement, the Assignor will cause any Collections received by it to be deposited in the Collection
Account no later than the Business Day following the receipt and identification of proceeds.






6









 








          (f) Arm’s-Length Relationship; Separate Existence. The Assignor will maintain an
arm’s-length relationship with the Assignee. Any transaction between the Assignee on the one hand
and the Assignor or any respective Affiliates thereof, on the other hand, will, in the reasonable
judgment of the Assignor, be fair and equitable to the Assignee. The Assignor shall not acquire any
obligations of the Assignee.




          (g) Responsibility of Assignor. The Assignor will not agree to be, or hold itself out
to be, responsible for the debts of the Assignee or for the decisions or actions with respect to
the daily business and affairs of the Assignee.




          (h) Reporting Requirements.




               (i) As soon as possible and in any event within ten (10) Business Days after the Assignor
obtains knowledge thereof, the Assignor shall notify the Assignee of any litigation, investigation
or proceeding that could reasonably be expected to impair in any material respect the ability of
the Assignor to perform its obligations under this Assignee Agreement.



               (ii) The Assignor shall promptly deliver to the Assignee such other information, documents,
records or reports regarding the Insurance Premium Loans in which an interest has been transferred
hereunder and related Life Insurance Policies as the Assignee may from time to time reasonably
request in order to protect the Assignee’s interests under or as contemplated by this Assignment
Agreement..



          (i) No Bankruptcy Filing Against Assignee. The Assignor will not commence, institute
or cause to be commenced or instituted any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or state bankruptcy
or similar law, against the Assignee or join in the commencement of any proceeding against the
Assignee under any such law.




          6. Sale. It is the intention of the parties that the conveyance of the Insurance
Premium Loans hereunder constitute a sale and not pledges of security for a loan and the parties
will treat such conveyance as a sale for tax and accounting purposes. The parties acknowledge and
agree that the transactions contemplated by this Assignment Agreement shall be, and shall be
treated as a purchase by the Assignor and a sale by the Assignee of the Insurance Premium Loans
hereunder, and not as a lending transaction or the grant of a security interest in the Insurance
Premium Loans hereunder, such that the Insurance Premium Loans hereunder shall not be part of the
bankruptcy estate of the Assignor under Section 541 of the Bankruptcy Code or subject to the
automatic stay under Section 362 of the Bankruptcy Code or any similar law. However, if the
conveyances of such Insurance Premium Loans were not characterized by a court of law as sales of
Insurance Premium Loans or a court of law determined that the consideration for the conveyance of
the Insurance Premium Loans hereunder did not represent fair value, then such conveyances of such
Insurance Premium Loans shall be considered a capital contribution to the Assignee (or, in the case
where the consideration for the conveyances of the Insurance Premium Loans did not represent fair
value, capital contributions to the extent of any shortfall in fair value).






7









 








          7. Settlement Date. Following the execution of this Assignment Agreement by the
Assignor and the Assignee, it will be delivered by the Assignor to the Collateral Agent and the
Insurance Collateral Agent. The effective date of this Assignment Agreement (the “Settlement Date”)
shall be the latest of (a) the date of the execution hereof by the Assignor and the Assignee, (b)
the date this Assignment Agreement has been delivered to the Collateral Agent and the Insurance
Collateral Agent, (c) the settlement date specified on Annex I, and (d) the receipt by Assignor of
the Purchase Price specified in Annex I.




          8. Rights. As of the Settlement Date (a) the Assignee shall be a party to the Loan
Documentation Package and, to the extent of the interest assigned pursuant to this Assignment
Agreement, have the rights and obligations of a Lender thereunder, and (b) the Assignor shall, to
the extent of the interest assigned pursuant to this Assignment Agreement, subject to the
provisions of any Servicing Agreement, relinquish its rights and be released from its obligations
under the Loan Documentation Package.




          9. Adjustments. The Assignor and the Assignee shall make all appropriate adjustments
in payments under the Loan Documentation Package for periods prior to the Settlement Date directly
between themselves on the Settlement Date.




          10. Governing Law. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.




          11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED UPON OR ARISING OUT OF THIS ASSIGNMENT AGREEMENT OR
ANY OF THE TRANSACTIONS RELATED HERETO, AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.




          12. Counterparts. This Assignment Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of this Assignment
Agreement by facsimile or electronic mail shall be equally effective as delivery of an original
executed counterpart.




          13. Indemnification. Without limiting any other rights that the Assignee may have
hereunder or under any applicable law, the Assignor hereby agrees to indemnify the Assignee and the
Indemnitees from and against any and all amounts awarded against or incurred by any of them, and
arising out of or resulting from this Assignment Agreement or the activities of the Assignor in
connection herewith or in respect of any Insurance Premium Loan in which an interest has been
transferred hereunder or related Life Insurance Policy that are sustained as a result of:




               (i) any representation, warranty or covenant made by the Assignor under this Assignment
Agreement, or any other document, certificate or report



8









 




delivered by the Assignor hereunder that was incorrect in any material respect when made or
deemed made or that the Assignor failed to perform;




               (ii) the failure by the Assignor to comply with this Assignment Agreement, the Transaction
Documents, the Loan Documents, or any Requirement of Law with respect to any Insurance Premium Loan
or Life Insurance Policy;



               (iii) any commingling by the Assignor of Collections with other funds of the Assignor or any
of its Affiliates; or



               (iv) any breach by the Assignor of any obligation under any Insurance Premium Loan in which an
interest has been transferred hereunder or related Life Insurance Policy.



     The foregoing indemnity excludes (a) losses on Insurance Premium Loans in which an interest
has been transferred hereunder to the extent reimbursement therefor would constitute credit
recourse to the Assignor for nonpayment of any Insurance Premium Loan in which an interest has been
transferred hereunder by the related obligor and (b) any income or franchise taxes or similar taxes
(or any interest or penalties on them).



          14. Amendment. This Assignment Agreement may be amended from time to time by the
Assignor and the Assignee in writing with the prior written consent of the Agents and the Required
Lenders. Notwithstanding the foregoing, the parties hereby agree that no amendment, modification or
waiver of, or consent with respect to, any provision of this Assignment Agreement that (a) prior to
the occurrence of a Credit Event (as defined in the Collateral Value Insurance Policy) would, in
the reasonable belief of any party hereto, be likely to adversely affect the interests of the
Collateral Value Insurer shall in any event be made or become effective unless the same shall be
consented to by the Collateral Value Insurer in writing or (b) following the occurrence of a Credit
Event, would, in the reasonable belief of any party hereto, be likely to adversely affect the
interests of the Contingent Collateral Value Insurer shall in any event be made or become effective
unless the same shall be consented to by the Contingent Collateral Value Insurer in writing. In all
events, copies of any amendments to this Agreement shall be promptly provided to (x) the Collateral
Value Insurer prior to the occurrence of a Credit Event and (y) the Contingent Collateral Value
Insurer following the occurrence of a Credit Event, by the Assignee following execution thereof.
Each of the parties hereto agrees that the Collateral Value Insurer and the Contingent Collateral
Value Insurer are third party beneficiaries solely with respect to this Section 14, and shall have
no rights with respect to any other provisions of this Assignment Agreement. Each of the parties
hereto agrees that the each of the Agents and the Lenders is a third party beneficiary with respect
to this Assignment Agreement.




[Remainder of page left intentionally blank.]







9









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
by their respective officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 
	 	ASSIGNOR:




IMPERIAL PREMIUM FINANCE, LLC

 	 
	 	By:  	Imperial Holdings, LLC, its managing

member 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	Date:  	 	 
	 
	 	NOTICE ADDRESS FOR ASSIGNOR



701 Park of Commerce Blvd., Suite 301

Boca Raton, Florida 33487

Telephone No.: (561) 995-4202

Telecopy No.: (561) 995-4203



ASSIGNEE:



IMPERIAL PFC FINANCING II, LLC
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	David Manchester 	 
	 	 	Title:  	Senior Vice President 	 
	 	 	Date:  	 	 
	 
	 	NOTICE ADDRESS FOR ASSIGNEE



191 Peachtree Street, NE, Suite 3300

Atlanta, Georgia 30303

Telephone No.: (404) 736-3630

Telecopy No.: (404) 736-3620

 	 
	 	 	 
	 	 	 
	 	 	 
	 



[SIGNATURE PAGE TO INSURANCE PREMIUM LOAN SALE AND ASSIGNMENT AGREEMENT]





 











 





ANNEX FOR INSURANCE PREMIUM LOAN SALE AND ASSIGNMENT AGREEMENT




ANNEX I



	 	 	 	 	 	 	 

	1.	 	Assignee/Purchaser: Imperial PFC Financing II, LLC, a Georgia limited liability company	 	 
	 
	 	 	 	 	 	 
	2.	 	Name and Date of Financing Agreement:	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Financing Agreement, dated as of , 2009, by and among Imperial PFC
Financing II, LLC, a Georgia limited liability company (the
“Borrower”), the lenders from time to time party thereto (each a
“Lender” and collectively, the “Lenders”), LoIC LLC, a Delaware
limited liability company (“LoIC”), as collateral agent for the
Lenders (in such capacity, the “Collateral Agent”), and LoIC, as
administrative agent for the Lenders (in such capacity, the
“Administrative Agent” and together with the Collateral Agent, each
an “Agent” and collectively, the “Agents”).	 	 
	 
	 	 	 	 	 	 
	3.	 	Date of Assignment Agreement:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	4.	 	Premium Finance Borrower:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	5.	 	Insurance Premium Loan Number:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	6.	 	Loan Documentation:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	7.	 	Insurance Premium Loan Agreement Date:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	8.	 	Life Insurance Policy Number:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	9.	 	Amount of Insurance Premium Loan:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	10.	 	Purchase Price:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	11.	 	Final Maturity Date of Insurance Premium Loan:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	12.	 	Settlement Date:	 	 
	 

	 	 	 	 	 	 





 









 








EXHIBIT J




FORM OF MASTER PARTICIPATION AGREEMENT



          This
MASTER PARTICIPATION AGREEMENT, dated as
of                , 2009 (the “Agreement”), between Imperial
Premium Finance, LLC, a Florida limited liability company (the “Originator”) and Imperial PFC
Financing II, LLC, a Georgia limited liability company (the “Participant”).



          In consideration of the premises and the mutual covenants herein contained, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the
parties hereto, the parties hereby agree as follows:



ARTICLE I.




DEFINITIONS



          SECTION 1.01 Definitions. Capitalized terms used herein and not otherwise defined in
this Agreement shall have the respective meanings ascribed to such terms in the Financing Agreement
or, if not in the Financing Agreement, in the Glossary of Defined Terms attached hereto as Exhibit
A.



          SECTION 1.02 Usage of Terms.



          (a) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement, including the Glossary of Defined Terms, shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; article, section, subsection, exhibit and
schedule references contained in this Agreement are references to articles, sections, subsections,
exhibits and schedules in or to this Agreement unless otherwise specified; with respect to all
terms in this Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to “writing” include printing, typing,
lithography and other means of reproducing words in a visible form; references to agreements and
other contractual instruments include all subsequent amendments, amendments and restatements and
supplements thereto or changes therein entered into in accordance with their respective terms and
not prohibited by this Agreement; references to Persons include their permitted successors and
assigns; references to laws include their amendments and supplements, the rules and regulations
thereunder and any successors thereto; and the term “including” means “including without
limitation.”



          SECTION 1.03 Computation of Time Periods. Unless otherwise stated 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 means “to but excluding.”



 









 





ARTICLE II.




TRANSFERS OF INTERESTS IN INSURANCE PREMIUM LOANS



          SECTION 2.01 Transfers of Interests in Insurance Premium Loans. On the terms and
subject to the conditions of this Agreement, the Originator shall, on the Effective Date and from
time to time thereafter, sell and transfer to the Participant without recourse, and the Participant
shall, on the Effective Date and from time to time thereafter purchase from the Originator (any
such sale, transfer, purchase and acquisition is herein referred to as a “Transfer”), a
participation interest in each Insurance Premium Loan originated by the Originator in an Applicable
Licensed State.



ARTICLE III.




PARTICIPATIONS



          SECTION 3.01 Transfers. (a) On the terms and conditions set forth herein, during the
Effective Period and on and as of the related Transfer Effective Date, the Originator hereby sells,
transfers and assigns to the Participant, and the Participant hereby purchases and acquires from
the Originator, with respect to each Insurance Premium Loan made by the Originator in an Applicable
Licensed State identified in a Participation Certificate (as defined herein), a participation
evidencing a 100% undivided beneficial ownership interest (each, a “Participation”) in all of the
Originator’s right, title and interest in, to and under (i) such Insurance Premium Loan, the
related promissory note and all other documents in the Loan Documentation Package for such
Insurance Premium Loan and all right, title and interest of the Originator in the Collateral
(including any related Life Insurance Policies) and (ii) all Collections thereon received by the
Originator on or after the Transfer Effective Date, including all cash proceeds received with
respect to such Insurance Premium Loans and all related security (including “proceeds” as defined
in the UCC of the jurisdiction whose law governs the perfection of an interest in such Insurance
Premium Loans). On each Transfer Effective Date, the Participant and the Originator shall execute a
participation certificate in the form of Exhibit B attached hereto (each a “Participation
Certificate”). Each Participation Certificate shall be deemed to incorporate in its entirety, the
terms and conditions of this Agreement and all representations, warranties, agreements and
covenants made hereunder shall be deemed to have been made in respect of the Insurance Premium
Loans the subject of the Participation Certificate as of the applicable Transfer Effective Date.



          (b) The parties acknowledge and agree that (i) the conveyance of the Insurance Premium Loans
is being effected hereunder by Participations instead of outright assignments and (ii) accordingly,
the sale, transfer, assignment and conveyance of the Participations in the Insurance Premium Loans
hereunder shall have the consequence that the Originator holds legal title and not an equitable
interest in such Insurance Premium Loans and the Participant holds 100% of the equitable interest
in such Insurance Premium Loans. The Originator acknowledges and agrees that, to the fullest extent
permitted by applicable law, it holds legal title to such Insurance Premium Loans as trustee for
the benefit of the Participant and its successors and assigns. However, notwithstanding any other
provision herein, the Originator and the Participant agree and acknowledge that the Originator
shall remain the lender of record



2









 




on all Insurance Premium Loans in which a Participation has been transferred hereunder. The
parties acknowledge and agree that the transactions contemplated by this Agreement shall be, and
shall be treated as a purchase by the Participant and a sale by the Originator of Participations in
the Insurance Premium Loans hereunder, and not as a lending transaction or the grant of a security
interest in Participations in the Insurance Premium Loans hereunder, such that the Participations
in the Insurance Premium Loans hereunder shall not be part of the bankruptcy estate of the
Originator under Section 541 of the Bankruptcy Code or subject to the automatic stay under Section
362 of the Bankruptcy Code or any similar law.




          (c) Subject to Section 5.03, the Participations sold, transferred, assigned and conveyed
hereunder in such Insurance Premium Loans are final and irrevocable from and after the Transfer
Effective Date, and neither the Participant nor the Originator shall have any right to require that
any such Participation terminate or be repurchased by the Originator from the Participant and be
extinguished.



          (d) It is the intention of the parties that the conveyance of the Insurance Premium Loans to
the Participant effected by this Agreement constitute sales of Participations in such Insurance
Premium Loans and not pledges of security for a loan. However, if the conveyances of such Insurance
Premium Loans were not characterized by a court of law as sales of Participations or a court of law
determined that the consideration for the Participations did not represent fair value, then such
conveyances of such Insurance Premium Loans shall be considered a capital contribution to the
Participant (or, in the case where the consideration for the Participations did not represent fair
value, capital contributions to the extent of any shortfall in fair value).



          SECTION 3.02 Payment of Purchase Price. In consideration of the Transfer of each
Participation from the Originator to the Participant as provided in Section 3.01, on each Transfer
Effective Date the Participant agrees to pay the Originator an amount equal to the Purchase Price
for each such Participation purchased by the Participant hereunder.



          (a) Initial Purchase Price Payment. On the terms and subject to the conditions set forth in
this Agreement, the Participant agrees to pay to the Originator the Purchase Price in cash for the
purchase to be made from the Originator on the Effective Date.



          (b) Subsequent Purchase Price Payments. On each Transfer Effective Date subsequent to the
Effective Date, on the terms and subject to the conditions set forth in this Agreement, the
Participant shall pay to the Originator the Purchase Price for the Participations being sold by the
Originator on such Transfer Effective Date in cash.



          SECTION 3.03 Payments to Participant. Whenever the Originator receives or collects a
payment in respect of any Insurance Premium Loan subject to a Participation, it will pay over the
same to the Participant in the same funds as received promptly after its receipt thereof and in any
event within one Business Day of its receipt thereof.



3









 





ARTICLE IV.




CONDITIONS TO EFFECTIVENESS AND PURCHASES



          SECTION 4.01 Conditions Precedent to Initial Transfer. The initial Transfer hereunder
is subject to the condition precedent that the Participant shall have received, on or before the
date hereof, the following, each in form and substance satisfactory to the Participant:



          (a) A certified copy of the organizational or governing documents of the Originator.



          (b) Evidence reasonably satisfactory to the Participant of (i) due authorization by the
Originator of the transactions contemplated by this Agreement and (ii) due execution of this
Agreement (including the names and true signatures of the officers of the Originator authorized to
execute this Agreement and any other documents contemplated hereunder and appropriate documentation
evidencing the incumbency of such officers).



          (c) Written search reports certified by a search service acceptable to the Participant,
listing all effective financing statements that name the Originator as debtor or assignor and that
are filed in the jurisdictions in which filings were made pursuant to clause (d) below and in such
other jurisdictions that the Participant shall reasonably request, together with copies of such
financing statements (none of which shall cover any Collateral or interests therein or proceeds of
any thereof), and tax, ERISA and judgment lien search reports from a Person satisfactory to the
Participant showing no evidence of such lien filed against the Originator.



          (d) Copies of proper amendment or termination statements, if any, necessary to release all
security interests and other rights of any Person in the Collateral previously granted by the
Originator.



          (e) The Agreement and the other Transaction Documents and all documentation to be delivered in
connection therewith shall have been executed and delivered, and all conditions thereto shall have
been satisfied.



          (f) An opinion of Locke Lord Bissell & Liddell, local counsel to the Participant and an
opinion of Foley & Lardner, LLP, counsel to the Participant and the Originator, in form and
substance satisfactory to the Agents, and as to such other matters as the Collateral Agent may
reasonably request, including, without limitation, non-consolidation, true sale and true
participation opinions.



          (g) All legal matters incident to the execution and delivery of this Agreement and to the
purchases by the Participant of a Participation from the Originator shall be satisfactory to
counsel for the Participant.



          SECTION 4.02 Conditions Precedent to All Transfers. The Transfer to take place on the
initial Transfer Effective Date and each Transfer to take place on a subsequent Transfer Effective
Date hereunder shall be subject to the further conditions precedent that:



4









 






          (a) On or prior to such Transfer Effective Date, the Originator (or the Servicer on its
behalf) shall, at its own expense, have marked its records related to each Insurance Premium Loan
in which a Participation has been transferred hereunder with a notation, acceptable to the
Participant, stating that a Participation in such Insurance Premium Loan, the related promissory
note and all other documents in the Loan Documentation Package for such Insurance Premium Loan and
Collections with respect thereto and other proceeds thereof, has been sold in accordance with this
Agreement, and the Originator further agrees not to alter such file designation with respect to any
applicable Insurance Premium Loan in which a Participation has been transferred hereunder during
the term of this Agreement;



          (b) On each Transfer Effective Date, the following statements shall be true:




          (i) all of the Originator’s representations and warranties contained in Section 5.01
are correct on and as of such date as though made on and as of such date; and




          (ii) no event has occurred and is continuing, or would result from such Transfer, that
constitutes an Event of Termination or would constitute an Event of Termination but for the
requirement that notice be given or that time elapse or both;



          (c) On each Transfer Effective Date, the Originator and the Participant shall have executed a
Participation Certificate for each Insurance Premium Loan for which a Participation has been
transferred hereunder;



          (d) On each Transfer Effective Date, the Originator shall have complied with all of its
covenants hereunder and shall have fulfilled in all material respects all of its obligations
hereunder;



          (e) As of each Transfer Effective Date, no Originator shall be insolvent;



          The acceptance by the Originator of the Purchase Price for any Participation shall be deemed
to be a representation and warranty by the Originator as to the matters set forth in this Section.



ARTICLE V.




REPRESENTATIONS AND WARRANTIES



          SECTION 5.01 Representations and Warranties of the Originator. The Originator hereby
represents and warrants as to itself to the Participant as of the Effective Date and each Transfer
Effective Date (or such other date as expressly provided below) that:



          (a) Organization and Good Standing. The Originator has been duly organized and is
validly existing as a limited liability company in good standing under the laws of the state of its
incorporation or formation, and has power and authority to own its properties and to conduct its
business as such properties shall be currently owned and such business is presently conducted.



5









 





          (b) Due Qualification. The Originator is duly qualified to do business (or is exempt
from such qualification requirements) and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to so qualify or to obtain such licenses or approvals would have a
material adverse effect on the Originator’s ability to perform its obligations as the Originator
under this Agreement.



          (c) Due Authorization. The Originator’s execution, delivery and performance of this
Agreement and the other agreements and instruments executed or to be executed by the Originator
contemplated by this Agreement, and the consummation of the transactions contemplated by this
Agreement, have been duly and validly authorized by all necessary action on the part of the
Originator.



          (d) Binding Obligation. This Agreement constitutes the legal, valid and binding
obligation of the Originator enforceable against the Originator in accordance with its terms,
except as enforceability may be limited by insolvency, reorganization, moratorium and other similar
laws affecting creditors’ rights generally or by general principles of equity whether considered in
a suit at law or in equity.



          (e) No Conflict. The Originator’s execution and delivery of this Agreement, its
performance of the transactions contemplated hereby and its fulfillment of the terms hereof
applicable to the Originator do not (i) contravene the Originator’s organizational or governing
documents, (ii) conflict with or violate any applicable law, (iii) violate any provision of, or
require any filing, registration, consent or approval under, any law presently in effect having
applicability to the Originator, except for such filings, registrations, consents or approvals as
have already been obtained or made and are in full force and effect, (iv) conflict with, result in
any breach of (A) any of the terms or provisions of, or constitute (with or without notice or lapse
of time or both) a default under any Insurance Premium Loan or (B) any of the terms or provisions
of, or constitute (with or without notice or lapse of time or both) a default under any indenture,
contract, agreement, mortgage, deed of trust or other instrument to which the Originator is a party
or by which it or its properties or assets are bound.



          (f) No Proceedings. There are no proceedings, injunctions, writs, restraining orders
or investigations pending or, to the best knowledge of the Originator, threatened against the
Originator before any governmental authority (i) asserting the illegality, invalidity or
unenforceability, or seeking any determination or ruling that would affect the legality, validity
or enforceability, of the Loan Documents, this Agreement or any other Transaction Document, (ii)
seeking to prevent the consummation of any of the transactions contemplated by the Loan Documents,
this Agreement or any other Transaction Document, (iii) seeking any determination or ruling that,
if adversely determined, could have a material and adverse effect on the financial condition or
operations of the Originator or the validity or enforceability of, or the performance by the
Originator of its obligations under, this Agreement or (iv) seeking to affect adversely the income
tax attributes or other tax attributes of the Originator under the U.S. federal or the State of
Florida, as applicable, tax systems. There are no proceedings, injunctions, writs, restraining
orders or investigations pending with respect to any Insurance Premium Loan a Participation in
which is being sold to the Participant, or the related Life Insurance Policy, before any
governmental authority asserting the illegality, invalidity or unenforceability, or seeking any



6









 




determination or ruling that would affect the legality, validity or enforceability, of any
such Insurance Premium Loan or the related Life Insurance Policy.




          (g) No Consents. No authorization, consent, license, order or approval of, or
registration or declaration with, any Person, including any governmental authority, is required for
the Originator in connection with the execution and delivery of this Agreement by the Originator or
the performance of its obligations under this Agreement, except for (i) the filing of the financing
statements or other documents required to have been filed on or prior to the Effective Date or
applicable Transfer Effective Date pursuant to Section 4.01, all of which were so filed and are in
full force and effect, (ii) the filing from time to time of any amendments, assignments or
continuation statements which may become applicable pursuant to this Agreement or (iii) the
exercise by the Participant or its assigns of the rights provided for in this Agreement or the
remedies in respect of any Insurance Premium Loans a Participation in which is sold, transferred,
assigned or otherwise conveyed by the Originator to the Participant pursuant to this Agreement.



          (h) Liens. Each Insurance Premium Loan in which a Participation has been transferred
hereunder is owned by the Originator free and clear of any Lien (subject to the Participations
therein), and the Originator has not either created or consented to the creation of any Lien
affecting any Insurance Premium Loan in which a Participation has been transferred hereunder or any
related Life Insurance Policy other than the Liens contemplated by this Agreement and the other
Transaction Documents.



          (i) Location. As of the Effective Date, the chief executive office of the Originator,
and the office where the Originator keeps its copy of the Transaction Documents and Records, is
located at the Originator’s address specified in Section 9.03.



          (j) Valid Transfers. This Agreement constitutes a valid sale, transfer and assignment
to the Participant of Participations in the Originator’s entire right, title and interest in and to
the Insurance Premium Loans in which a Participation has been transferred hereunder, whether now
existing or hereafter created (including all monies due or to become due with respect to such
Insurance Premium Loans, all proceeds (including “proceeds” as defined in the UCC of the
jurisdiction whose law governs the perfection of an interest in such Insurance Premium Loans) of
such Insurance Premium Loans and all cash proceeds of any related security). If an Event of
Bankruptcy were to occur with respect to the Originator, the right to retain the Insurance Premium
Loans (including all monies due or to become due with respect to such Insurance Premium Loans, all
proceeds of such Insurance Premium Loans and all cash proceeds of any related security) would not
be deemed to be property of the Originator. If and to the extent the sale of the Participations in
the Insurance Premium Loans under this Agreement is not deemed to be or is not recognized as a sale
by a court of law, the conveyance of the interest in the Insurance Premium Loans created on or
after the applicable Transfer Effective Date, shall to the extent set forth in Section 3.01(d) be
considered a capital contribution to the Participant.



          (k) Solvency. The Originator is, solvent and will not become insolvent after giving
effect to the transactions contemplated by this Agreement. The Originator is currently repaying all
of its indebtedness as such indebtedness becomes due; and, after giving effect to the



7









 




transactions contemplated by this Agreement, the Originator will have adequate capital to
conduct its business as presently conducted and as contemplated by this Agreement.




          (1) Compliance. The Originator has complied, and will comply on each Transfer
Effective Date, with all Requirements of Law with respect to it, its business and properties and
all Insurance Premium Loans and the Life Insurance Policy related thereto. The Originator has
obtained and will maintain all applicable permits, certifications and licenses (including all
licenses to originate Insurance Premium Loans) necessary with respect to its business and
properties and all Insurance Premium Loans and the Life Insurance Policy related thereto.



          (m) No Rescission. Neither any Insurance Premium Loans in which a Participation is
sold hereunder nor the related Life Insurance Policy has been subordinated or rescinded or, except
as disclosed in writing to the Participant, amended in any manner.



          (n) No Event of Bankruptcy. No Event of Bankruptcy has occurred with respect to the
Originator.



          (o) Fraudulent Conveyance. The Originator is not entering into the transactions
contemplated hereby with any intent of hindering, delaying or defrauding creditors.



          (p) Insurance Premium Loans.




          (i) As of each Transfer Effective Date, each Insurance Premium Loan in which a
Participation is granted or sold by the Originator hereunder is an Eligible Insurance
Premium Loan and the grant, sale and purchase hereunder of a Participation in such Insurance
Premium Loans and Collections arising thereunder do not conflict with, result in a breach of
any of the provisions of, or constitute (with or without notice or lapse of time or both) a
default under, any agreements evidencing such Insurance Premium Loan;




          (ii) As of any Transfer Effective Date, each Insurance Premium Loan on such date is the
valid, binding and enforceable obligation of each obligor thereunder;




          (iii) As of any Transfer Effective Date, each Insurance Premium Loan on such date was
originated by the Originator in the ordinary course of the Originator’s premium finance
lending activities and in accordance with all Requirements of Law;




          (iv) As of any Transfer Effective Date, the information set forth in the applicable
Participation Certificate with respect to each Insurance Premium Loan therein was correct;




          (v) With respect to each Insurance Premium Loan in which a




          Participation is granted or sold by the Originator, the Originator represents and
warrants that each such Insurance Premium Loans has been originated in accordance with the
applicable criteria set forth in the Transaction Documents;



8









 






          (vi) As of any Transfer Effective Date, no payment default exists with respect to any
Insurance Premium Loan;




          (vii) As of any Transfer Effective Date, no event or circumstance under Section V.A or
Section V.B. of the Collateral Value Policy has occurred;




          (viii) As of any Transfer Effective Date, the Originator (A) has not committed a
Prohibited Act (as defined in the Collateral Value Policy) and (B) is not aware that any
Prohibited Act has been committed by any Person with respect to an Insurance Premium Loan in
which a Participation is granted or sold by the Originator; and




          (ix) As of any Transfer Effective Date, no policy loan, cash withdrawal or surrender
has occurred with respect to the Life Insurance Policy related to the Insurance Premium Loan
in which a Participation is granted or sold by the Originator.



          (q) Legal Names. As of the Effective Date, the legal name of the Originator is as set
forth on the signature pages of this Agreement.



          (r) ERISA. With respect to any Plan maintained or participated in during the past six
years by the Originator or any of its ERISA Affiliates, (i) such Plan complied and complies in all
material respects with all Requirements of Law, (ii) a Reportable Event has not occurred with
respect to any such Plan, (iii) such Plan has not been terminated and (iv) no funding deficiency
has occurred in respect of any such Plan, except, in each case, where the occurrence of any of the
foregoing could not be reasonably expected to result in liability to such Seller or any such ERISA
Affiliate in excess of $50,000 or result in a Lien against the Participations, or any related
Insurance Premium Loans or related Life Insurance Policies (or any portion thereof). With respect
to any such Plan that is intended to qualify for special tax treatment under Sections 401(a) or
403(a) of the Code, such Plan is in compliance with the applicable requirements of the Code for
such qualifications.



          (s) Margin Regulations. The Originator will not use any of the proceeds of the
Purchase Price for any purpose which will conflict with or contravene any of Regulations T, U or X
promulgated by the Federal Reserve Board from time to time.



          (t) Reasonably Equivalent Value. The Participant has given reasonably equivalent value
to the Originator in consideration for each purchase of a Participation under this Agreement, no
such transfer has been made for or on account of an antecedent debt owed by the Originator to the
Participant, and no such transfer is or may be voidable or subject to avoidance under any
applicable bankruptcy, insolvency or other similar law.



          (u) Accuracy of Information. All certificates, reports, statements, documents and
other information furnished to the Participant by or on behalf of the Originator pursuant to any
provision of this Agreement, or in connection with or pursuant to any amendment or modification of,
or waiver under, this Agreement are, and shall, at the time the same are so furnished, be complete
and correct in all material respects on the date the same are furnished.



9









 





          (v) Taxes. The Originator has filed or has caused to be filed all federal, state and
local tax returns which it is required to file and has paid all Taxes, assessments and other
governmental charges due in respect of its respective returns, except to the extent that any such
Taxes, assessments or other governmental charges are being contested in good faith and as to which
the Originator has set aside on its books adequate reserves and in respect of which no Liens have
attached to or been filed against the Originator or any of its properties. There are no agreements
or waivers extending the statutory period of limitations applicable to any federal income tax
return of the Originator for any period.



          (w) Investment Company Act. The Originator is not an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.



          (x) Quality of Title. No effective financing statement or other similar instrument is
in effect covering any of the Insurance Premium Loans in which a Participation has been transferred
hereunder or any interest therein that has been filed, authorized, acknowledged or otherwise
permitted by the Originator or any Affiliate thereof in any recording office except for financing
statements that may be filed (x) in favor of the Collateral Agent in accordance with the Security
Agreement, (y) in favor of the Participant under this Agreement, and/or (z) in favor of the
Originator under the related Loan Documentation Package.



          SECTION 5.02 Representations and Warranties of the Participant. The Participant hereby
represents and warrants to the Originator as of the Effective Date and each Transfer Effective Date
that:



          (a) Organization and Good Standing. The Participant has been duly organized and is
validly existing as a limited liability company in good standing under the laws of the State of
Illinois, and has power and authority to own its properties and to conduct its business as such
properties shall be currently owned and such business is presently conducted.



          (b) Power and Authority. The Participant shall have the power and authority to execute
and deliver this Agreement and to carry out its terms; the Participant shall have full power and
authority to purchase the property to be purchased and shall have duly authorized such purchase;
and the execution, delivery and performance of this Agreement shall have been duly authorized by
the Participant by all necessary action.



          (c) Binding Obligation. This Agreement shall constitute a legal, valid and binding
obligation of the Participant enforceable in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors’ rights generally or by general principles of equity.



          The representations and warranties set forth in this Section 5.02 and in Section 5.01 shall
survive the sale of the Participations by the Originator to the Participant pursuant to this
Agreement. Upon discovery by the Originator or the Participant of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give prompt written notice
to the other.



10









 





          SECTION 5.03 Remedies.



          (a) Repurchase of Participations for Certain Breaches. In the event of a breach of any
representations and warranties set forth in Sections 5.01(e), (f), (g), (h), (l), (p) or (x), upon
the earlier to occur of the discovery of such breach by the Originator or receipt by the Originator
of written notice of such breach given by or on behalf of the Participant, the Participant’s
Participation in each Insurance Premium Loan relating to such breach shall be repurchased by the
Originator from the Participant and upon such repurchase shall terminate and be extinguished.



          (b) Reconveyed Insurance Premium Loans. Upon the repurchase by the Originator of any
Participation under this Agreement, then, on the date required for such repurchase, the Originator
shall deposit into the Collection Account in immediately available funds an amount equal to the
outstanding principal balance of the affected Insurance Premium Loans on the date of such
repurchase, together with accrued and unpaid interest thereon through such date. Such deposit shall
be considered payment in full for such Participation.



          In connection with the preceding paragraph, the Participant shall execute such documents and
instruments of transfer or assignment as shall be prepared by the Originator, and shall take such
other actions as shall reasonably be requested by the Originator, to effect the repurchase of
Participations from the Participant. Upon repurchase of Participations in Insurance Premium Loans
from the Participant, the Participant shall automatically and without further action be deemed to
transfer, assign, set over and otherwise convey to or upon the order of the Originator, without
recourse, representation or warranty, all the right, title and interest of the Participant in and
to the reconveyed Participations and all Collections with respect thereto and all proceeds thereof
received after the date of such repurchase.



          SECTION 5.04 Covenants of the Originator. The Originator hereby covenants that:



          (a) Security Interests. Except for the Transfers hereunder and the Liens contemplated
by the Loan Documents and the Transaction Documents, the Originator will not sell, pledge, assign
or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on any
Insurance Premium Loan in which a Participation has been transferred hereunder, whether now
existing or hereafter created, or any interest therein, the Originator will promptly notify the
Participant upon its knowledge of the existence of any such Lien on any such Insurance Premium
Loan, and the Originator shall defend the Participation interest of the Participant in the
Insurance Premium Loans transferred hereunder, whether now existing or hereafter created, against
all claims of third parties claiming through or under the Originator.



          (b) No Impairment. Except in accordance with, or as contemplated by, the Loan
Documents and the Transaction Documents, the Originator shall take no action, nor omit to take any
action, which would impair the rights of the Participant in any Insurance Premium Loan in which a
Participation has been transferred hereunder, nor shall the Originator, except as expressly
provided in the Servicing Agreement, reschedule, revise or defer payments due on any Insurance
Premium Loan in which a Participation has been transferred hereunder.



11









 





          (c) Compliance with Law. The Originator will comply in all material respects with all
Requirements of Law with respect to it, its business and properties and the Insurance Premium Loans
and related Life Insurance Policies. The Originator will maintain all applicable permits,
certifications and licenses (including all licenses to originate Insurance Premium Loans) necessary
with respect to its business and properties and all Insurance Premium Loans and the Life Insurance
Policy related thereto.



          (d) Preservation of Existence. The Originator will preserve and maintain its
existence, rights, franchises and privileges as a limited liability company or corporation, as
applicable, and become and remain licensed in each jurisdiction where the failure to maintain such
license would materially and adversely affect (A) the interests of the Participant hereunder or (B)
the collectibility of any Insurance Premium Loans in which a Participation has been transferred
hereunder or the related Life Insurance Policies; and the Originator shall not consolidate with or
merge into any other Person or convey or transfer its properties and assets substantially as an
entirety to any Person without the prior written consent of the Participant.



          (e) Keeping of Records and Books of Account. The Originator (or the Servicer on its
behalf) will maintain and implement administrative and operating procedures (including, without
limitation, the ability to recreate the records related to any items comprising a Loan
Documentation Package in the event of the destruction of the originals thereof) and keep and
maintain all such records and other documents, books, records and information reasonably necessary
or advisable for the collection of the Insurance Premium Loans and related Life Insurance Policies
(including, without limitation, records adequate to permit the daily identification of each
Insurance Premium Loan and related Life Insurance Policy and all Collections of and adjustments to
each such Insurance Premium Loan and related Life Insurance Policy).



          (f) Performance and Compliance with Insurance Premium Loans. The Originator will, at
its expense, timely and fully perform and comply with all provisions, covenants and other promises
required to be observed by it hereunder, The Originator shall comply with and perform its
obligations with respect to any Insurance Premium Loan.



          (g) Collections and Payments. Except as otherwise provided in this Agreement, the
Originator will cause any Collections received by it to be deposited in the Collection Account no
later than the Business Day following the receipt and identification of proceeds.



          (h) Protection of the Participant’s Interest in Insurance Premium Loans.




          (i) Except as provided in Article VII, the Originator covenants and agrees that it will
not convey, assign, exchange or otherwise transfer its rights under the Insurance Premium
Loan in which a Participation has been transferred hereunder to any Person prior to the
termination of this Agreement pursuant to Section 7.01.




          (ii) The Originator will advise the Participant promptly, in reasonable detail, (A) of
any Lien or claim asserted against any of the Insurance Premium Loans in which a
Participation has been transferred hereunder or related Life Insurance Policy,



12









 






other than the Liens created hereby, (B) of the occurrence of any breach by the
Originator of any of its representations, warranties and covenants contained herein, (C) of
the occurrence of any other event that would materially and adversely affect the value of
any of the Insurance Premium Loans in which a Participation has been transferred hereunder,
(D) of the occurrence of any event or circumstance under [Section V.A or Section V.B. of the
Collateral Value Policy or Contingent Collateral Value Policy] [discuss], (E) of the
occurrence of a Prohibited Act (as defined in the Collateral Value Policy) by the Originator
or knowledge of the commission of a Prohibited Act by any Person with respect to an
Insurance Premium Loan in which a Participation is granted or sold by the Originator, and
(F) of the occurrence of any policy loan, cash withdrawal or surrender with respect to the
Life Insurance Policy related to the Insurance Premium Loan in which a Participation is
granted or sold by the Originator.




          (iii) The Originator will not, without providing 45 days’ prior written notice to the
Participant and without filing such amendments to any previously filed financing statements
as may be required by law to fully preserve and protect the interests of the Participant
hereunder in and to the Insurance Premium Loans Participations in which are conveyed hereby,
(i) change its jurisdiction of organization, (ii) change the location of its chief executive
office in the United States or the location of where records related to the Insurance
Premium Loans are kept or (iii) change its name, identity or business structure in any
manner that would, could or might make any financing statement or continuation statement
filed by the Originator in accordance with this Agreement “seriously misleading” within the
meaning of Section 9-402(7) of any applicable enactment of the UCC.



          (i) Arm’s-Length Relationship; Separate Existence. The Originator will maintain an
arm’s-length relationship with the Participant. Any transaction between the Participant on the one
hand and the Originator or any respective Affiliates thereof, on the other hand, will, in the
reasonable judgment of the Originator, be fair and equitable to the Participant. The Originator
shall not acquire any obligations of the Participant.



          (j) Responsibility of Originator. The Originator will not agree to be, or hold itself
out to be, responsible for the debts of the Participant or for the decisions or actions with
respect to the daily business and affairs of the Participant.



          (k) Reporting Requirements.




          (i) As soon as possible and in any event within ten (10) Business Days after the
Originator obtains knowledge thereof, the Originator shall notify the Participant of any
litigation, investigation or proceeding that could reasonably be expected to impair in any
material respect the ability of the Originator to perform its obligations under this
Agreement.




          (ii) The Originator shall promptly deliver to the Participant such other information,
documents, records or reports regarding the Insurance Premium Loans in which a Participation
has been transferred hereunder and related Life Insurance Policies



13









 






as the Participant may from time to time reasonably request in order to protect the
Participant’s interests under or as contemplated by this Agreement.



          (1) Extension, Renewal, Waiver or Amendment of Insurance Premium Loans. Except as
otherwise permitted under this Agreement, Originator will not without the consent of the
Participant (i) renew, extend, amend, waive or otherwise modify the terms of any Insurance Premium
Loan in which a Participation has been transferred hereunder or other item comprising a component
of any Loan Documentation Package or (ii) rescind, cancel, terminate or sell any Insurance Premium
Loan in which a Participation has been transferred hereunder or other item comprising a component
of any Loan Documentation Package except as ordered by a court of competent jurisdiction or other
governmental authority.



          (m) No Actions Against Obligors. The Originator will not, without the consent of the
Participant, commence or settle any legal action to enforce collection of any Insurance Premium
Loan in which a Participation has been transferred hereunder.



          (n) No Bankruptcy Filing Against Participant. The Originator will not commence,
institute or cause to be commenced or instituted any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law, against the Participant or join in the commencement of any
proceeding against the Participant under any such law.



          (o) ERISA. The Originator will not maintain any Plans in its own name or otherwise
agree to make contributions to any Plan. The Originator will not allow any Plan maintained by any
of its ERISA Affiliates to incur any “accumulated funding deficiency” (within the meaning of
Section 302 of ERISA or Section 412 of the Code), whether or not waived. The Originator will not
allow any of its ERISA Affiliates to fail to timely make all contributions required to be made by
it to any Plans.



          (p) Taxes. The Originator will file or will cause to be filed all federal, state and
local tax returns which it is required to file and will pay promptly when due all Taxes,
assessments and other governmental charges due in respect of its respective returns, except to the
extent that any such Taxes, assessments or other governmental charges are being contested in good
faith and as to which the Originator has set aside on its books adequate reserves and in respect of
which no Liens have attached to or been filed against the Originator or any of its properties.



ARTICLE VI.




CONFIDENTIALITY



          SECTION 6.01 General Duty. Each party hereto agrees that (i) each of the Transaction
Documents and its contents, (ii) each Loan Documentation Package and its contents, (iii) all
medical and personal information concerning the Underlying Lives and Premium Finance Borrowers,
(iv) the identity of and information concerning payments to brokers or other similar parties
involved in the sourcing, negotiation and funding of any Insurance Premium Loan, (v) any
information supplied by either party and marked confidential, restricted or proprietary or that
otherwise reasonably could be expected to be confidential in nature regarding its customers and



14









 




prospective customers, account information, products and services, vendors, financial,
technical or marketing information, business or marketing strategies, operating policies and
procedures, in whatever form, in each case to the extent not in the public domain when transmitted
by one party to another, not published or otherwise become part of the public domain (through no
fault of the receiving party) after transmission, not known to the receiving party prior to
transmission or through disclosure by a third party with a lawful right to make such disclosure
(and not to the knowledge of the recipient of such information bound by any duty to the
transmitting party to keep such information confidential) and not independently developed by the
receiving party, comprise “Confidential Information”.




          SECTION 6.02 Reasonable Precautions. Each party hereto shall safeguard and hold as
confidential all Confidential Information, and shall use such information solely for the purposes
contemplated by the Transaction Documents, in each case other than its own Confidential Information
to the extent appropriately disclosed to others in connection with its business unrelated to the
transactions contemplated by the Transaction Documents. Each party hereto shall take such
precautions as may be lawful and reasonably necessary to restrain its officers, directors,
employees, agents or representatives from disclosure of all Confidential Information to any other
Person other than to its own officers, directors, employees, agents or representatives that have a
need to know such information in order for such party to perform its obligations under the
Transaction Documents, other than its own Confidential Information to the extent appropriately
disclosed to others in connection with its business unrelated to the transactions contemplated by
the Transaction Documents. If any party reasonably and in good faith determines that it is required
by law (or by subpoena, discovery request, search warrant or similar legal process) to disclose any
Confidential Information to a third party (other than a regulator that regulates the Originator or
any of its Affiliates), such party promptly shall notify the other of such situation or of its
receipt of such legal process and shall reasonably cooperate with such other party in an effort to
quash such legal process or to seek a protective order or other appropriate relief. Upon the
termination or expiration of this Agreement, each party hereto promptly shall return to the other
all Confidential Information of such other party that is within its custody and control. Each party
hereto agrees that legal remedies may be insufficient for a breach of the duties specified in this
Section 6.02, and that each party shall be entitled to injunctive relief to prevent disclosure of
and cause the return of Confidential Information as contemplated herein, in addition to any other
legal or equitable remedies available to such party.



          SECTION 6.03 Dissemination of Certain Information. Each party hereto shall at all
times comply with all laws and regulations applicable to it in the performance of its duties
hereunder and affecting the Insurance Premium Loans and related Collateral (including any Life
Insurance Policies) and the negotiation, documentation, funding and servicing thereof, including
laws and regulations regarding the privacy of any Underlying Life or Premium Finance Borrower and
the maintenance of all information obtained by the Originator and/or the Participant in the
performance of their duties in accordance with applicable laws and regulations concerning the
dissemination of such information; provided that any party may disclose such information to
competent judicial or regulatory authorities in response to a written request therefrom for such
information or as otherwise reasonably and in faith determined to be required by law; provided,
however, that (i) no party shall disclose such information to such judicial or regulatory
authorities before the date set forth in such request therefor and (ii) each party shall provide
the other with prompt notice to the extent permitted by law or regulation of such request,



15









 




in order to permit such other party, at its own expense, to seek judicial or other relief
before such information is disclosed.




          SECTION 6.04 Monitoring. In recognition of the Originator’s responsibilities under the
Gramm Leach Bliley Act, Section 501(b) (15 U.S.C. 6801) and the Interagency Guidelines Establishing
Standards for Safeguarding Customer Information (the “Guidelines”), the Participant represents and
warrants that it maintains an information security program designed to: (i) ensure the security and
confidentiality of customer information, (ii) protect against any anticipated threats or hazards to
the security or integrity of customer information, (iii) protect against unauthorized access to or
use of customer information that could result in substantial harm or inconvenience to any customer
of the Originator and (iv) ensure proper disposal of consumer and customer information as required
by applicable law, in each case only with respect to customer information actually in the
possession and control of the Participant received in connection with an Insurance Premium Loan.
The Participant agrees promptly to notify the Originator of any security breaches that relate to
Confidential Information supplied by the Originator.



ARTICLE VII.




EVENTS OF TERMINATION SECTION 7.01 Termination.



          If any of the following events (each, an “Event of Termination”) shall have occurred:



          (a) any failure by the Originator to make any payment, transfer or deposit required to be
paid, effected or made by it hereunder on or before the date occurring two (2) Business Days after
the date such payment, transfer or deposit is required to be made hereunder; or



          (b) any representation (other than any representation as to an Insurance Premium Loan the
breach of which is cured by repurchase pursuant to Section 5.03), warranty, certification or
written statement made or deemed made by the Originator under or in connection with this Agreement
or in any statement, record, certificate, financial statement or other document delivered pursuant
hereto or in connection herewith shall prove to have been incorrect in any material respect on or
as of the date made or deemed made which continues unremedied for 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall have been given to the
Originator by the Participant; or



          (c) the Originator shall fail to observe or perform in any covenant or agreement applicable to
it contained herein (other than as specified in clause (a) or (b) above) which continues unremedied
for 30 days after the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Originator by the Participant; or



          (d) an Event of Bankruptcy shall occur with respect to the Originator; or



          (e) the Participant shall fail for any reason to have a valid sale, transfer and assignment of
the Participations and a beneficial ownership of the Originator’s right, title and interest in and
to the Insurance Premium Loans in which a Participation has been transferred



16









 





hereunder, Collections related thereto, all proceeds of such Insurance Premium Loans and all
cash proceeds of any related security; or




          (f) this Agreement shall cease to be in full force and effect except in accordance with its
terms; or



          (g) the Originator shall become required to register as an “investment company” under the
Investment Company Act of 1940, as amended; or



          (h) a Servicer Default shall have occurred; or



          (i) an “Event of Default” shall have occurred under the Financing Agreement;



then, if the event set forth in paragraph (d) above shall have occurred, an Event of Termination
shall occur without any notice, demand, protest or other requirement of any kind immediately upon
the occurrence of such event, and the Participant may, by notice to the Originator, declare that an
Event of Termination shall occur as of the date set forth in such notice. Upon the occurrence of an
Event of Termination, the Effective Period shall automatically terminate (any such termination of
the Effective Period, an “Early Termination”).



          Upon the occurrence of an Early Termination, the Participant shall have, in addition to the
rights and remedies set forth above and any other rights and remedies under this Agreement, the
following rights and remedies:



          (1) The Participant may require the Originator to assign all of the Originator’s right, title
and interest in and to the Insurance Premium Loans in which a Participation has been transferred
hereunder, the related promissory note and all other documents in the Loan Documentation Package
for such Insurance Premium Loan and any Collateral therefor (including any related Life Insurance
Policy) to a Person designated by the Participant; and



          (2) The Participant shall have all other rights and remedies with respect to the Insurance
Premium Loans in which a Participation has been transferred hereunder and related Life Insurance
Policies provided after default under the UCC of the applicable jurisdiction and under other
applicable laws, which rights and remedies shall be cumulative.



ARTICLE VIII.




INDEMNIFICATION AND LIMITATION ON LIABILITY



          SECTION 8.01 Originator Indemnification. Without limiting any other rights that the
Participant may have hereunder or under any applicable law, the Originator hereby agrees to
indemnify the Participant and the Indemnitees from and against any and all amounts awarded against
or incurred by any of them, and arising out of or resulting from this Agreement or the activities
of the Originator in connection herewith or in respect of any Insurance Premium Loan in which a
Participation has been transferred hereunder or related Life Insurance Policy that are sustained as
a result of:



17









 





          (a) any representation, warranty or covenant made by the Originator under this Agreement, or
any other document, certificate or report delivered by the Originator hereunder that was incorrect
in any material respect when made or deemed made or that the Originator failed to perform;



          (b) the failure by the Originator to comply with this Agreement, the Transaction Documents,
the Loan Documents, or any Requirement of Law with respect to any Insurance Premium Loan or Life
Insurance Policy;



          (c) any commingling by the Originator of Collections with other funds of the Originator or any
of its Affiliates;



          (d) any breach by the Originator of any obligation under any Insurance Premium Loan in which a
Participation has been transferred hereunder or related Life Insurance Policy; or



          (e) the failure to vest and maintain vested in the Participant a first priority perfected
ownership interest in any Participation or Collections or a first priority perfected security
interest in the Insurance Premium Loans in which a Participation has been transferred hereunder and
Collections.



          The foregoing indemnity excludes (a) losses on Insurance Premium Loans in which a
Participation has been transferred hereunder to the extent reimbursement therefor would constitute
credit recourse to the Originator for nonpayment of any Insurance Premium Loan in which a
Participation has been transferred hereunder by the related obligor and (b) any income or franchise
taxes or similar taxes (or any interest or penalties on them).



ARTICLE IX.




MISCELLANEOUS PROVISIONS



          SECTION 9.01 Amendment. This Agreement may be amended from time to time by the
Participant and the Originator in writing with the prior written consent of the Agents and the
Required Lenders. Notwithstanding the foregoing, the parties hereby agree that no amendment,
modification or waiver of, or consent with respect to, any provision of this Agreement that (a)
prior to the occurrence of a Credit Event (as defined in the Collateral Value Insurance Policy)
would, in the reasonable belief of any party hereto, be likely to adversely affect the interests of
the Collateral Value Insurer shall in any event be made or become effective unless the same shall
be consented to by the Collateral Value Insurer in writing, or (b) following to the occurrence of a
Credit Event, would, in the reasonable belief of any party hereto, be likely to adversely affect
the interests of the Contingent Collateral Value Insurer, shall in any event be made or become
effective unless the same shall be consented to by the Contingent Collateral Value Insurer in
writing. In all events, copies of any amendments to this Agreement shall be promptly provided to
(x) the Collateral Value Insurer prior to the occurrence of a Credit Event, and (y) the Contingent
Collateral Value Insurer following the occurrence of a Credit Event, by the Participant following
execution thereof. Each of the parties hereto agrees that the Collateral Value Insurer and the
Contingent Collateral Value Insurer are third party beneficiaries solely with respect to this
Section 9.01, and shall have no rights with respect to any other provisions of



18









 




this Agreement. Each of the parties hereto agrees that the each of the Agents and the Lenders
is a third party beneficiary with respect to this Agreement.




          SECTION 9.02 Governing Law; Submission to Jurisdiction; Waiver.



          (a) THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS
(OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.



          (b) EACH OF THE PARTIES HERETO IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY
FEDERAL OR STATE COURT SITTING IN THE COUNTY AND STATE OF NEW YORK IN RESPECT OF ANY ACTION OR
PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH PROCEEDINGS IN ANY SUCH COURT AND ANY
CLAIM THAT ANY PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.



          (c) EACH PARTY HERETO HEREBY WAIVES THE RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY ON ANY
CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING OUT OF OR IN ANY WAY
RELATED TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENTS, OR (B) IN ANY WAY IN CONNECTION WITH
OR PERTAINING OR RELATED TO OR INCIDENTAL TO ANY DEALINGS OF THE PARTIES TO THIS AGREEMENT WITH
RESPECT TO THE TRANSACTION DOCUMENTS OR IN CONNECTION WITH THIS AGREEMENT OR THE EXERCISE OF ANY
PARTY’S RIGHTS AND REMEDIES UNDER THIS AGREEMENT OR OTHERWISE, OR THE CONDUCT OR THE RELATIONSHIP
OF THE PARTIES HERETO, IN ALL OF THE FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING AND
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.



          SECTION 9.03 Notices. All demands, notices, reports and communications hereunder shall
be in writing and shall be deemed to have been duly given if personally delivered at, delivered by
electronic mail to, mailed by certified mail, return receipt requested, mailed by a nationally
recognized overnight courier or sent via facsimile, to (a) in the case of the Participant, to such
party’s address specified in the Financing Agreement or (b) in the case of the Originator, to the
address specified for the Originator in the signature pages attached hereto; or, as to any of such
Persons, at such other address, facsimile number or electronic mail address as shall be designated
by such Person in a written notice to the other Persons. Notices, demands and communications
hereunder given shall be effective, (1) if personally delivered, when received, (2) if sent by
certified mail, three (3) Business Days after having been deposited in the mail, postage prepaid,
(3) if sent by overnight courier, one (I) Business Day after having been given to



19









 




such courier, and (4) if transmitted by facsimile or electronic mail, upon oral confirmation
of receipt by the addressee or upon the sender’s receipt of an affirmative confirmation of receipt
thereof by the addressee. Notwithstanding the foregoing, notice of breach, service of legal process
or other similar communications shall not be given by electronic mail and will not be deemed duly
given under this Agreement if delivered by such means.




          SECTION 9.04 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall for any reason whatsoever be held invalid,
then such covenants, agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions and terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement.



          SECTION 9.05 Further Assurances. The Originator and the Participant agree to do and
perform, from time to time, any and all acts and to authorize and execute any and all further
documents and instruments reasonably and in good faith determined to be required by law or
reasonably requested by the other party hereto to more fully to effect the purposes of this
Agreement. The Originator authorizes the Participant to file any financing statements or
continuation statements relating thereto and to the Insurance Premium Loans in which a
Participation has been transferred hereunder and related Life Insurance Policy under the provisions
of the UCC, or any similar law, of any applicable jurisdiction.



          SECTION 9.06 No Waiver, Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Participant or the Originator, of any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights, remedies, powers and
privileges provided by law.



          SECTION 9.07 Counterparts. This Agreement may be executed in two or more counterparts
(and by different parties on separate counterparts), each of which shall be an original, but all of
which together shall constitute one and the same instrument. Delivery of an executed counterpart of
a signature page to this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.



          SECTION 9.08 Merger and Integration. Except as specifically stated otherwise herein,
in the other Transaction Documents and in the Loan Documents to which the parties hereto are a
party, this Agreement sets forth the entire understanding of the parties hereto relating to the
subject matter hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented except as provided
herein. Except for items specifically required to be delivered hereunder, the Participant shall not
have any duty or responsibility to provide the Originator or any of their respective affiliates any
information that comes into the possession of the Participant or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.



20









 






          SECTION 9.09 Headings. The headings herein are for purposes of reference only and
shall not otherwise affect the meaning or interpretation of any provision hereof



          SECTION 9.10 No Petition. The Originator, by entering into this Agreement, hereby
covenants and agrees that it will not at any time institute against the Participant, or solicit or
incite any other Person to institute for the purpose of joining in any such institution against the
Participant, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any United States federal or state bankruptcy or similar law. This Section
will survive the termination of this Agreement.



          SECTION 9.11 Tax Classification. Nothing contained in this Agreement shall be deemed
or construed by the parties hereto or by any third person to create the relationship of a
partnership or joint venture. The parties hereto agree that they will not take any action contrary
to the foregoing intention and agree to report the transaction for all tax purposes consistent with
the foregoing intention unless and until determined to the contrary by an applicable tax authority.



          SECTION 9.12 Electronic Communications. Unless otherwise provided herein,
communications may be via e-mail; provided that if communication by e-mail is required under this
Agreement, but is not available for any reason, any other suitable means of written communication
providing for same or next day delivery shall be used in lieu thereof, including by facsimile
transmission or personal delivery.



          SECTION 9.13 Participations. THE PARTIES HERETO ARE PARTICIPATING IN INSURANCE PREMIUM
LOANS AND ARE NOT INVESTING IN A BUSINESS ENTERPRISE.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]



21









 





          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective officers as of the day and year first above written.



	 	 	 	 	 
	 	IMPERIAL PREMIUM FINANCE, LLC,

as the Originator

 	 
	 	By:  	Imperial Holdings, LLC, its managing member
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	Jonathan Neuman 	 
	 	 	Title:  	President

	 	 	
Address:          	701 Park of Commerce Blvd., Suite 30

Boca Raton, FL 33487

Telecopy No.: (561) 995-4203 	 
	 
	 	IMPERIAL PFC FINANCING II, LLC,

as Participant

 	 
	 	By:  	 	 
	 	 	Name:  	David Manchester 	 
	 	 	Title:  	Senior Vice President
	 	 	
Address:   	191 Peachtree Street NE, Suite 3300

Atlanta, GA  30303

Telecopy No.: (404) 736-3620 	 
	 



[SIGNATURE PAGE TO MASTER PARTICIPATION AGREEMENT]





 









 








EXHIBIT A




Glossary of Defined Terms





          “Agents” means                                         , as collateral agent and administrative agent under the
Financing Agreement, together with its successors and assigns.



          “Code” means the Internal Revenue Code of 1986, as amended.



          “Collection Account” means that certain bank account, referenced as the “Imperial PFC
Financing II, LLC Collection Account” and pledged pursuant to the Security Agreement, maintained at
the Cash Management Bank, for the purpose of receiving Collections and which is subject to a
blocked account agreement, or with respect to which a security interest has otherwise been created
and perfected.



          “Early Termination” is defined in Section 7.01 of the Master Participation Agreement.



          “Effective Period” means the period beginning on the Effective Date and terminating on the
close of business on the date on which an Early Termination occurs.



          “ERISA Affiliate” means, with respect to any Person, any trade or business (whether or not
incorporated) which is a member of a group of which such Person is a member and which would be
deemed to be a “controlled group” within the meaning of Sections 414(b), (c), (m) and (o) of the
Code.



          “Event of Bankruptcy” means an Event of Default under Sections 9.01(g) or (h) of the Financing
Agreement.



          “Event of Termination” is defined in Article VII of the Master Participation Agreement.



          “Financing Agreement” means the Financing Agreement, dated on or about the Effective Date, by
and among the Participant, the lenders from time to time party thereto and LoIC LLC, a Delaware
limited liability company (“LoIC”), as administrative agent and LoIC, as collateral agent, as the
same may be amended, modified, restated, supplemented, refinanced, extended, refunded or replaced
(in whole or in part) from time to time.



          “Funding Date” means for each Insurance Premium Loan the date on which the Participant pays
the Originator the Purchase Price.



          “Lenders” means the lenders from time to time party to the Financing Agreement, together with
their successors and assigns.



          “Lien” means any interest in property securing an obligation owed to, or a claim by, a Person,
whether such interest is based on the common law, statute or contract, and including but not
limited to the security interest lien arising from a mortgage, encumbrance, judgment, pledge,
conditional sale or trust receipt for a lease, consignment or bailment for



 









 




security purposes, but, with respect to a Life Insurance Policy, does not include the interest
of the Life Insurance Carrier therein if such interest arises solely from or with respect to a
related policy loan.




          “Life Insurance Carrier” means the issuer of a Life Insurance Policy.



          “Master Participation Agreement” means the Master Participation Agreement, dated as of the
Effective Date, between the Originator and the Participant.



          “Originator” means Imperial Premium Finance, LLC.



          “Participant” means Imperial PFC Financing II, LLC, a Georgia limited liability company, in
its capacity as participant under the Master Participation Agreement, and its successors and
permitted assigns in that capacity.



          “Participation” has the meaning set forth in the Master Participation Agreement.



          “Purchase Price” means, with respect to each 100% participation in an Insurance Premium,
acquired or purported to be acquired by the Participant under the Master Participation Agreement or
any similar sale or purchase agreement, the initial outstanding principal balance of such Insurance
Premium Loan.



          “Requirements of Law” means, with respect to any Person, collectively, the common law and all
federal, state, provincial, local, foreign, multinational or international laws, statutes, codes,
treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs,
injunctions, decrees (including administrative or judicial precedents or authorities) and the
interpretation or administration thereof by, and other determinations, directives, requirements or
requests of, any Governmental Authority, in each case that are applicable to or binding upon such
Person.



          “Transfer Effective Date” means, with respect to any Insurance Premium Loan in which a
Participation has been transferred, the related Funding Date.




 











 





EXHIBIT B




FORM OF PARTICIPATION CERTIFICATE




     AGREEMENT, dated as of                                         , 200_, by and between Imperial Premium Finance, LLC,
a Florida limited liability company (in such capacity, the “Seller”) and Imperial PFC
Financing II, LLC, a Georgia limited liability company (“Purchaser”).



     Reference is made to that certain Master Participation Agreement dated as of                     ,
2009 by and between Seller and Purchaser (the “Master Participation Agreement”).
Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in
the Master Participation Agreement.



     This Participation Certificate shall be deemed to be a Participation Certificate as described
in the Master Participation Agreement and with respect to the sale by Seller to Purchaser of a
participation interest in certain Insurance Premium Loans described below. As set forth in Section
3.01 of the Master Participation Agreement, the terms and conditions of the Master Participation
Agreement shall be deemed incorporated herein.



     The parties hereto hereby agree that the Seller has sold a Participation (subject to the
receipt of funds in the amount of the Participation in accordance with the provisions of the Master
Participation Agreement), and the Participant has purchased from the Seller (and forwarded to the
Seller funds in the amount of the Participation in accordance with the terms of the Master
Participation Agreement), a Participation in the Insurance Premium Loan:


Item 1. Transfer Effective Date:



Item 2. Borrower:



Item 3. Insurance Premium Loan Number:



Item 4. Loan Documentation:



Item 5. Insurance Premium Loan Agreement Date:



Item 6. Life Insurance Policy Number:



Item 7. Amount of Participation in Outstanding Insurance Premium Loan:



Item 8. Insurance Premium Loan:



Item 9. Purchase Price:



Item 10: Final Maturity Date of Insurance Premium Loan:






 









 








     IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Participation
Certificate this ___day of                                         , 200_.



	 	 	 	 	 

	 	 	SELLER
	 
	 	 	 	 
	 	 	IMPERIAL PREMIUM FINANCE, LLC
	 
	 	 	 	 
	 

	 	By:
	 	Imperial Holdings, LLC, its managing member
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Jonathan Neuman
	 

	 	 	 	Title: President
	 
	 	 	 	 
	 	 	PURCHASER
	 
	 	 	 	 
	 	 	IMPERIAL PFC FINANCING II, LLC
	 
	 	 	 	 
	 

	 	By:
	 	Imperial Premium Finance, LLC, its sole member
	 
	 	 	 	 
	 

	 	By:
	 	Imperial Holdings, LLC, its managing member
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Jonathan Neuman
	 

	 	 	 	Title: President






 









 






EXHIBIT K




Local Counsel Opinion Questions


1. What state’s insurable interest laws would a state court (or a federal court) apply to determine
whether an irrevocable life insurance trust (or its trustee) has an insurable interest in the life
of the insured (assuming that a case would be brought in and remain in either state or federal
court in the state where the trustee with authority over the policy and loan was located (the
“State”), rather than a state or federal court in the home state of the insured)?



2. Will the life insurance policy issued in the proposed lending transaction be supported by a
valid insurable interest under the law of the State, including, if applicable, does the State’s law
address or provide that a trustee of a trust, or the trust itself, has an insurable interest in the
life of the grantor or settlor of such trust?



3. Does the State have a usury law that is applicable to the individual lending transactions in the
Imperial program; if so, what is the maximum permissible interest rate under the usury law; and if
relevant, whether any loan origination fees and any pass-through of the life insurance policy
premium and other fees to be charged would be included as part of “interest” under such usury law?



4. Does the State have an insurance premium finance law and, if so, does such law apply to the
individual lending transactions in the Imperial program? If so, would the lending transactions and
the related loan documents be in compliance with such premium finance law? If there is not a
premium finance law in effect in the State, or if there is not an Imperial entity that is a
licensed premium finance company in the State, do the State’s general consumer lending laws apply
to the Imperial loans and/or to the Imperial lender? If so, would the individual lending
transactions and the related Loan Documents be in compliance with the general consumer lending
laws?



5. Does the State have a life or viatical settlement law and, if so, does it apply to the
individual lending transactions in the Imperial program?



6. Are life insurance policies generally assignable to a lender as security under the State’s law?





 









 








Exhibit L




GUARANTY




     THIS GUARANTY is entered into as of November ___, 2009 by IMPERIAL HOLDINGS, LLC, a Florida
limited liability company (the “Guarantor”), and EBC ASSET MANAGEMENT, INC., a New York
corporation, as Collateral Agent (“Collateral Agent”) in favor of and for the benefit of
Cedar Lane Capital, LLC, a Delaware limited liability company (the “Lender,” which for all
purposes of this Guaranty shall include any assignees, whether or not by operation of law, and
successors thereto).



RECITALS




     WHEREAS, pursuant to a financing agreement among Lender and Imperial PFC Financing II, LLC, a
Georgia limited liability company (“Borrower”) dated September 14, 2009 (as amended, supplemented
or otherwise modified from time to time (“Financing Agreement”)), Lender has agreed to make Term
Loans to Borrower, upon the terms and subject to the conditions set forth therein;



     WHEREAS, pursuant to the Financing Agreement, the Lender agreed to make one or more Term Loans
to the Borrower prior to the Term Loan Commitment Termination Date, in the case of all Term Loans,
in an aggregate principal amount not to exceed the amount of the Lender’s Term Loan Commitment;



     WHEREAS, the aggregate principal amount of any Term Loan made on any borrowing date shall not
exceed the lesser of (x) the undrawn Total Term Loan Commitment at such time, and (y) the Maximum
Tranche Amount with respect to any applicable Insurance Premium Loans being acquired by the
Borrower with the proceeds of such Term Loan;



     WHEREAS, the Lender desires to secure the guaranty by Guarantor of five percent (5%) of each
Term Loan made under the Financing Agreement;



     WHEREAS, Guarantor indirectly owns 100% of the equity interests in the Borrower and will
derive benefits from the extension of Term Loans under the Financing Agreement;



     WHEREAS, capitalized terms referred to herein without definition have the meaning given to
them in the Financing Agreement;



     NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the adequacy and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:



     1. Conditions to Liability. Subject to the limitation set forth herein, the Guarantor
hereby unconditionally guaranties the punctual payment in full (in immediately available funds)
when due of five percent (5%) of the amount outstanding (including interest accrued thereon) under
each Term Loan made or arising under the Financing Agreement (the “Guaranteed Obligations”).
Notwithstanding the foregoing or anything else herein to the contrary, before making a claim or
proceeding against the Guarantor under this Guaranty, (a) the Lender shall be obligated to proceed
against the Borrower or any other person liable on the Guaranteed Obligations and to proceed
against any security held by the Borrower or any other person, or to pursue any other remedy in the
Lender’s power whatsoever to collect the Term Loans, and an Event of Default involving the failure
of the Borrower in paying any interest or principal due under a Term Loan or Tranche (determined
without regard to, and by disregarding the effects of,



Page 1 of 10









 




any acceleration of amounts due under a Term Loan or Tranche prior to the applicable Final
Maturity Date) shall have existed for at least thirty (30) consecutive days or (b) there shall be a
default in full payment of the Covered Loan Amount under an Eligible Insurance Premium Loan
(determined without regard to, and by disregarding the effects of, any acceleration of amounts due
under such loan prior to the applicable maturity date) owned actually or beneficially through a
participation by the Borrower (a “Client Default”) and such Client Default shall have existed for
sixty (60) days; provided further, in the event of a Client Default, the amount due under this
guaranty as a result of such event shall be limited to the shortfall in collections arising as a
consequence thereof (taking into account any payments from the Collateral Value Insurer and
Contingent Collateral Value Insurer and any proceeds from the disposition of any collateral for
such Eligible Insurance Premium Loan) and the Guarantor shall be subrogated to the Lender’s rights
to the shortfall in respect to such Client Default following payment.




     2. Waiver.



          (a) The Guarantor unconditionally and irrevocably waives, to the fullest extent permitted by
applicable law: (i) any release, amendment or waiver of or consent to departure from any other
guaranty or any document relating to any security for or in respect of the Guaranteed Obligations;
(ii) all notices which may be required by statute, rule of law or otherwise to preserve any rights
against the Guarantor hereunder, including, without limitation, notice of the acceptance of this
Guaranty, or the creation, renewal, extension, modification or accrual of the Guaranteed
Obligations or notice of any other matters relating thereto, any presentment, demand, notice of
dishonor, protest, nonpayment of any damages or other amounts payable under the Financing
Agreement; (iii) any requirement for diligence in collection or protection of or realization upon
the Guaranteed Obligations or any part thereof or any collateral therefor; (iv) any requirement of
diligence; (v) any requirement to mitigate the damages resulting from a default by the Borrower
under the Financing Agreement; (vi) the occurrence of every other condition precedent to which the
Guarantor or the Borrower may otherwise be entitled; (vii) any lack of validity or enforceability
of the Financing Agreement, (vii) any exchange or release of, or non-perfection of any collateral
securing, all or any of the Guaranteed Obligations; (ix) any other circumstances which might
otherwise constitute a defense available to, or discharge of, the Guarantor; or (x) any and all
rights it may now or hereafter have under any agreement or at law or in equity (including, without
limitation, any law subrogating the Guarantor to the rights of the Lender) to assert any claim
against or seek contribution, indemnification or any other form of reimbursement from the Borrower
or any other party liable for payment of any or all of the Guaranteed Obligations for any payment
made by the Guarantor under or in connection with this Guaranty or otherwise.




          (b) The Lender may, at its election, exercise any right or remedy it may have against the
Borrower without affecting or impairing in any way the liability of the Guarantor hereunder and the
Guarantor waives, to the fullest extent permitted by applicable law, any defense arising out of the
absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other
right or remedy of the Guarantor against the Borrower, whether resulting from such election by the
Lender or otherwise. The Guarantor waives any defense arising by reason of any disability or other
defense of the Borrower or by reason of the cessation for any cause whatsoever of the liability,
either in whole or in part, of the Borrower to the Lender for the Guaranteed Obligations.




2









 








          (c) The Guarantor assumes the responsibility for being and keeping informed of the financial
condition of the Borrower and of all other circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and agrees that the Lender shall not have any duty to advise the Guarantor
of information regarding any condition or circumstance or any change in such condition or
circumstance. The Guarantor acknowledges that the Lender has not made any representations to the
Guarantor concerning the financial condition of the Borrower. The value of the consideration
received and to be received by the Guarantor is reasonably worth at least as much as the liability
and obligation of Guarantor incurred or arising under this Guaranty and all related papers and
arrangements.




     3. Parties. This Guaranty shall inure to the benefit of the Lender and its
successors, assigns or transferees, and shall be binding upon the Guarantor and his or her
respective heirs, successors and assigns; provided, that the Guarantor may not delegate or assign
any of the Guarantor’s duties or obligations under this Guaranty without the prior written consent
of the Lender.



     4. Notices. All notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by U.S. mail, certified
with return receipt requested, or sent by telecopy (with confirmed receipt or followed by overnight
delivery) to the addresses (or telecopy numbers) set forth on the signature pages hereto. The
Guarantor or the Lender may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given in accordance with the provisions of this Guaranty shall be deemed to have
been given on the date of receipt or, if mailed, the fifth (5th) business day following the date so
mailed, if earlier, or the next business day if sent by overnight courier.



     5. Right to Deal with the Borrower. At any time and from time to time, without
terminating, affecting or impairing the validity of this Guaranty or the obligations of the
Guarantor hereunder, the Lender and/or Agent may deal with the Borrower in the same manner and as
fully as if this Guaranty did not exist and shall be entitled, among other things, to grant the
Borrower, without notice or demand and without affecting the Guarantor’s liability hereunder, such
extension or extensions of time to perform, renew, compromise, accelerate or otherwise change the
time for payment of or otherwise change the terms of indebtedness or any part thereof contained in
or arising under the Financing Agreement or any other document evidencing obligations of the
Borrower to the Lender, or to waive any obligation of the Borrower to perform, any act or acts as
the Lender and/or Agent may deem advisable.



     6. Subrogation. Notwithstanding anything to the contrary contained herein, any and
all rights and claims of the Guarantor against the Borrower or any of its property or against any
other person, arising by reason of any payment by the Guarantor to the Lender pursuant to the
provisions, or in respect, of this Guaranty shall be subordinate, junior and subject in right of
payment to the prior and indefeasible payment in full of the Guaranteed Obligations to the Lender,
and until such time, the Guarantor shall have no right of subrogation, contribution or any similar
right and hereby waive any right to enforce any remedy the Lender may now or hereafter have against
the Borrower, any endorser or any other guarantor of all or any part of the Guaranteed Obligations
and any right to participate in, or benefit from, any security given to the Lender to secure the
Guaranteed Obligations. All liens and security interests of the Guarantor,



3









 




whether now or hereafter arising and howsoever existing, in assets of the Borrower or any
assets securing the Guaranteed Obligations shall be and hereby are subordinated to the rights and
interests of the Lender in those assets until the prior and indefeasible final payment in full of
all of the Guaranteed Obligations to the Lender and termination of all financing arrangements
between the Borrower and the Lender. If any amount shall be paid to the Guarantor contrary to the
provisions of this Section 6 at any time when all the Guaranteed Obligations shall not have been
indefeasibly paid in full, such amount shall be held in trust for the benefit of the Lender and
shall forthwith be turned over in kind in the form received to the Lender (duly endorsed if
necessary) to be credited and applied against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms of the Financing Documents and this Guaranty.




     7. Representations and Warranties. The Guarantor hereby represents and warrants as
follows:



          (a) The Guarantor has the legal capacity and right to execute, deliver and perform this
Guaranty to which the Guarantor is a party.




          (b) The execution, delivery and performance by the Guarantor of this Guaranty and each other
Loan Document to which the Guarantor is a party (i) do not and will not contravene any Requirements
of Law or any contractual restriction binding on or otherwise affecting the Guarantor or its
properties, (ii) do not and will not result in or require the creation of any Lien (other than
pursuant to any Loan Document) upon or with respect to any of its properties, and (iii) 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 any of its properties.




          (c) No authorization or approval or other action by, and no notice to or filing with, any
Governmental Authority is required in connection with the due execution, delivery and performance
by the Guarantor of this Guaranty or any of the other Loan Documents to which the Guarantor is a
party.




          (d) Each of this Guaranty and the other Loan Documents to which the Guarantor is or will be a
party, when delivered, will be, a legal, valid and binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws.




          (e) There are no pending or written notices threatening any action, suit or proceeding
affecting the Guarantor before any court or other Governmental Authority or any arbitrator that (x)
if adversely determined could reasonably be expected to have a material adverse effect to the
Guarantor’s financial condition or (y) relates to this Guaranty or any of the other Loan Documents
to which the Guarantor is a party or any transaction contemplated hereby or thereby.




          (f) The Guarantor is not in violation of any Requirements of Law or any material term of any
agreement or instrument (including, without limitation, any contract) binding on or otherwise
affecting him or any of his properties.







4









 








          (g) The Guarantor is not a party to any agreement or instrument, or subject to any restriction
or any judgment, order, regulation, ruling or other requirement of a court or other Governmental
Authority, which has, or in the future could have, a material adverse effect to the Guarantor’s
financial condition.




          (h) The Guarantor has filed or caused to be filed all tax returns which it is required to file
and has paid all taxes shown to be due and payable on such returns or on any assessments made
against the Guarantor or any of his property by any Governmental Authority except to the extent any
such taxes are being contested in good faith. No tax Lien has been filed with respect to any
material tax liability against the Guarantor, and, to the knowledge of the Guarantor, no tax
assessment is pending against the Guarantor.




          (i) The Guarantor (i) has read and understands the terms and conditions of the Financing
Agreement and the other Loan Documents, and (ii) now has and will continue to have independent
means of obtaining information concerning the affairs, financial condition and business of the
Borrower, and has no need of, or right to obtain from any Agent or any Lender, any credit or other
information concerning the affairs, financial condition or business of the Borrower that may come
under the control of any Agent or any Lender.




          (j) As of the date hereof, the Guarantor has members’ equity of an amount not less than
$12,500,000.




          (k) All representations and warranties set forth in this Guaranty are true and correct in all
respects at the time as of which such representations were made and on the Effective Date.




     8. Survival of Representations, Warranties, and Agreements. All representations,
warranties, covenants and agreements made herein, including representations and warranties deemed
made herein, shall survive any investigation or inspection made by or on behalf of the Lender and
shall continue in full force and effect until all of the obligations of the Guarantor under this
Guaranty shall be fully performed in accordance with the terms hereof, and until the payment in
full of the Guaranteed Obligations.



     9. Covenants. The Guarantor hereby covenants and agrees that, during the term of this
Guaranty, the Guarantor will:



          (a) Maintain members’ equity not less than 5% of the aggregate Guaranteed Obligations. The
members’ equity shall be determined by the Guarantor’s independent accountants in accordance with
GAAP.




          (b) Not accept or retain any distribution or other payment from the Borrower if the making of
such distribution or other payment by the Borrower violates, or may reasonably be expected to
result in a violation of, the Financing Agreement or any other Loan Document.




          (c) Comply in all material respects with all Requirements of Law (including any settlement of
any claim that, if breached, could give rise to any of the foregoing).




          (d) Promptly notify the Agents of:







5









 









	 	(i)	 	(A) any breach or non-performance
of, or any default under, any Contractual Obligation of such
Guarantor which could reasonably be expected to have a material
adverse effect to the Guarantor’s financial condition, and (B)
any action, suit, litigation or proceeding which may exist at
any time which could reasonably be expected to have a material
adverse effect to the Guarantor’s financial condition; and
	 
	 	(ii)	 	the occurrence of any event or
development that could have a material adverse effect to the
Guarantor’s financial condition;




provided that (A) each notice pursuant to this Section 7(d) shall be accompanied by a written
statement signed by such Guarantor, setting forth details of the occurrence referred to therein,
and stating what action the Guarantor proposes to take with respect thereto and at what time. Each
notice under Section 7(d)(i) shall describe with particularity the provisions of this Guaranty or
other Loan Document that have been breached.




          (e) Pay all taxes, assessments, governmental charges and other obligations when due, except as
may be contested in good faith or those as to which a bona fide dispute may exist.




          (f) Execute and deliver to the Agents such further instruments and do such other further acts
as the Agent may reasonably request to carry out more effectively the purposes of this Guaranty.




          (g) Not knowingly commit, and not knowingly permit any of its Affiliates, including the
Borrower, to knowingly commit, a Prohibited Act (as defined in the Collateral Value Policy) or any
other act that results in the liability of the Collateral Value Insurer or Contingent Collateral
Value Insurer under the Collateral Value Policy or the Contingent Collateral Value Policy, as
applicable, being reduced or terminated.




     10. CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF
THE STATE OF NEW YORK IN THE COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE GUARANTOR
HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF HIS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT ITS ADDRESS SET FORTH ON THE
SIGNATURE PAGE HERETO, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF ANY AGENT AND THE LENDERS TO SERVICE OF PROCESS IN ANY OTHER
MANNER



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PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE GUARANTOR
IN ANY OTHER JURISDICTION. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID
OF EXECUTION OR OTHERWISE) WITH RESPECT TO HIM OR HIS PROPERTY, THE GUARANTOR HEREBY IRREVOCABLY
WAIVES SUCH IMMUNITY IN RESPECT OF HIS OBLIGATIONS UNDER THIS GUARANTY AND THE OTHER LOAN
DOCUMENTS.




     11. WAIVER OF JURY TRIAL, ETC. THE GUARANTOR HEREBY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS GUARANTY OR THE
OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER
AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR
ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY OR THE OTHER LOAN
DOCUMENTS, AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY. THE GUARANTOR CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR ANY
LENDER WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE
FOREGOING WAIVERS. THE GUARANTOR HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE AGENTS AND THE LENDERS ENTERING INTO THIS AGREEMENT.



     12. Expenses. The Guarantor hereby agrees to pay on demand, and to hold the Lender
harmless against liability for, any and all costs and expenses (including, without limitation,
reasonable legal fees, costs and expenses of counsel and fees, costs and expenses incurred in
connection with any bankruptcy proceeding) incurred or expended by the Lender in connection with
the enforcement, amendment, modification or waiver of or preservation of any rights under this
Guaranty, and the collection of amounts payable hereunder, and until so paid, such fees, costs,
disbursements and expenses shall be added to, and constitute, Guaranteed Obligations.



     13. Further Assurances. The Guarantor hereby covenants and agrees to execute and
deliver to the Lender such additional agreements, instruments and documents as the Lender may
reasonably request to give effect to the obligations of the Guarantor under this Guaranty.



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     14. Miscellaneous.



          (a) The Guarantor will make each payment hereunder in lawful money of the United States of
America and in immediately available funds to the Collateral Agent, for the benefit of the Lenders,
at such address specified by the Collateral Agent from time to time by notice to the Guarantor.




          (b) No amendment of any provision of this Guaranty shall be effective unless it is in writing
and signed by the Guarantor and the Collateral Agent, and no waiver of any provision of this
Guaranty, and no consent to any departure by the Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Guarantor and the Collateral Agent,
and then such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.




          (c) No failure on the part of any Agent or any Lender to exercise, and no delay in exercising,
any right hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any right hereunder or under any other Loan Document preclude any
other or further exercise thereof or the exercise of any other right. The rights and remedies of
the Agents and the Lenders provided herein and in the other Loan Documents are cumulative and are
in addition to, and not exclusive of, any rights or remedies provided by law. The rights of the
Agents and the Lenders under any Loan Document against any party thereto are not conditional or
contingent on any attempt by the Agents and the Lenders to exercise any of their rights under any
other Loan Document against such party or against any other Person.




          (d) Any provision of this Guaranty which 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 thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.




          (e) This Guaranty shall (i) be binding on the Guarantor and its successors and assigns, and
(ii) inure, together with all rights and remedies of the Agents and the Lenders hereunder, to the
benefit of the Agents and the Lenders and their respective successors, transferees and assigns.
Without limiting the generality of clause (ii) of the immediately preceding sentence, to the extent
permitted by Section 12.07 of the Financing Agreement, any Lender may assign or otherwise transfer
its rights under the Financing Agreement or any other Loan Document to any other Person, and such
other Person shall thereupon become vested with all of the benefits in respect thereof granted to
the Lenders herein or otherwise. None of the rights or obligations of the Guarantor hereunder may
be assigned or otherwise transferred without the prior written consent of the Collateral Agent.




          (f) This Guaranty and the other Loan Documents reflect the entire understanding of the
transactions contemplated hereby and thereby and shall not be contradicted or qualified by any
other agreement, oral or written, before the date hereof.




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







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          (h) Delivery of an executed counterpart of this Guaranty by telefacsimile or electronic mail
shall be equally as effective as delivery of an original executed counterpart of this Guaranty. Any
party delivering an executed counterpart of this Guaranty by telefacsimile or electronic mail also
shall deliver an original executed counterpart of this Guaranty but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and binding effect of
this Guaranty.




          (i) This Guaranty and the other Loan Documents (unless expressly provided to the contrary in
another Loan Document in respect of such other Loan Document) shall be governed by, and construed
in accordance with, the internal law of the State of New York applicable to contracts made and to
be performed in the State of New York.




[The remainder of this page is intentionally left blank.]






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IN WITNESS WHEREOF, the undersigned have executed and delivered this Guaranty as of the day and
year first above written.




	 	 	 	 	 
	 	IMPERIAL HOLDINGS, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Address:



Accepted:



EBC ASSET MANAGEMENT, INC., as Collateral Agent in favor of and for the benefit of Cedar Lane Capital, LLC




	 	 	 	 	 
	 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



Address:





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