exv10w24






Exhibit 10.24




FOURTH AMENDMENT

TO FINANCING AGREEMENT




          FOURTH AMENDMENT, dated as of December 1, 2009 (this Amendment”), to the Financing
Agreement, dated as of March 13, 2009, as amended, supplemented or otherwise modified from time to
time (as so amended, the “Financing Agreement”), by and among Imperial Life Financing II,
LLC, a Georgia limited liability company (the “Borrower”), the lenders from time to time
party thereto (each a “Lender” and collectively, the “Lenders”), White Oak Global
Advisors, LLC, a Delaware limited liability company (“White Oak”), as collateral agent for
the Lenders (as successor to CTL Holdings II, LLC)(in such capacity,
the “Collateral
Agent”), and White Oak Global Advisors, LLC, a Delaware limited liability company, as
administrative agent for the Lenders (as successor to CTL Holdings II, LLC)(in such capacity,
the “Administrative Agent” and together with the Collateral Agent, each an “Agent”
and collectively, the “Agents”).




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




          WHEREAS, the Lenders are willing to amend such terms and provisions subject to the terms and
conditions of this Amendment and the Financing Agreement.




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




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




          2. Amendments.




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




“‘Fourth Amendment’ means the Fourth Amendment to Financing
Agreement, dated as of December 1, 2009, among the Borrower, the
Agents and the Lenders.”




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



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




“‘Applicable Interest Rate’ means the interest rate which is
applicable thereto, as set forth on Schedule 1.01(E) attached hereto
and made a part hereof. ”



 









 





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



               (d) Schedule 1.01(E). Schedule 1.01(E) of the Financing Agreement is hereby
amended and restated in its entirety to read as attached hereto as Exhibit II.



               (e) Section 12.01. The names and addresses of the Administrative Agent
and the Collateral Agent appearing in Section 12.01 of the Financing Agreement are hereby
amended and restated follows:



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


White Oak Global Advisors, LLC

575 Market Street, Suite 3050

San Francisco, CA 94105

Attention: Andre Hakkak

Telephone: 415.644.4111

Telecopier: 415.644.4199




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


White Oak Global Advisors, LLC

575 Market Street, Suite 3050

San Francisco, CA 94105

Attention: Andre Hakkak

Telephone: 415.644.4111

Telecopier: 415.644.4199”




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




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



               (b) Organization, Good Standing, Etc. The Borrower (i) has been duly formed or
organized and is validly existing and in good standing under the laws of its jurisdiction of
organization or formation, (ii) has all requisite power and authority to conduct its



 









 




business as now conducted and as presently contemplated, and to execute and deliver this
Amendment, and to consummate the transactions contemplated hereby and by the Financing Agreement,
as amended hereby, and (iii) is duly qualified to do business in, and is in good standing in each
jurisdiction where the character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary.




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



               (d) Governmental Approvals; No Conflicts. The execution, delivery and
performance of this Amendment by the Borrower, and the performance of the Financing Agreement, as
amended hereby (i) do not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority that has not been obtained, (ii) will not violate any
applicable law, policy or regulation or the organizational documents of the Borrower or any order
of any Governmental Authority, (iii) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower, or any of its assets, or give rise to a
right thereunder to require any payment to be made by the Borrower, (iv) do not and will not result
in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any
permit, license, authorization or approval applicable to its operations or any of its properties
and (v) except for the Liens created by the Loan Documents, will not result in the creation or
imposition of any Lien on any asset of the Borrower.



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




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



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



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



 









 





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



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



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




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





 









 







contract, tort, statute or otherwise, which any Releasor has heretofore had or now or
hereafter can, shall or may have against any Released Party by reason of any act, omission or thing
whatsoever done or omitted to be done on or prior to the Fourth Amendment Effective Date arising
out of, connected with or related in any way to this Amendment, the Financing Agreement or any
other Loan Document, or any act, event or transaction related or attendant thereto, or the
agreements of any Agent or any Lender contained therein, or the possession, use, operation or
control of any of the assets of the Borrower, or the making of any Loans or other advances, or the
management of such Loans or advances or the Collateral on or prior to the Fourth Amendment
Effective Date.




          7. Miscellaneous.




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



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



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



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



 









 





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



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



[remainder of page intentionally left blank]



 








 





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




	 	 	 	 	 
	 	BORROWER:



IMPERIAL LIFE FINANCING II, LLC

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



Fourth Amendment





 









 








	 	 	 	 	 
	 	ADMINISTRATIVE AGENT AND COLLATERAL AGENT



WHITE OAK GLOBAL ADVISORS, LLC

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



Fourth Amendment






 









 








	 	 	 	 	 
	 	LENDERS:



WHITE OAK STRATEGIC MASTER FUND, LP





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

 	 
	 	By:  	/s/ Barbara J. S. McKee
 	 
	 	 	Name:  	Barbara J. S. McKee 	 
	 	 	Title:  	Managing Member 	 
	 
	 	WHITE OAK PATRIOT FUND, L.P.



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

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



Fourth Amendment







 









 








EXHIBIT I 




Schedule 1.01(A) 



Lenders and Lenders’ Commitments



	 	 	 	 	 
	Lender	 	Total Commitment	 
	White Oak Strategic Master Fund, LP
	 	$	14,933,732.88	 
	White Oak Patriot Fund, L.P.
	 	$	12,051,748.59	 
	Total
	 	$	26,985,481.47	 






 









 






EXHIBIT II




Schedule 1.01(E)



APPLICABLE INTEREST RATE



IMPERIAL LIFE FINANCING II, LLC

Applicable Interest Rate Listing by

Tranche/Insurance Premium Loan Number



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






 









 






IMPERIAL LIFE FINANCING II, LLC

Applicable Interest Rate Listing by

Tranche/Insurance Premium Loan Number




	 	 	 	 	 
	Tranche/Insurance	 	 	 
	Premium Loan	 	 	 
	Number	 	Applicable Rate	 
	2009-219
	 	 	18.95400	 
	2009-225
	 	 	19.06500	 
	2009-233
	 	 	19.00700	 
	2009-240
	 	 	19.07700	 
	2009-242
	 	 	17.75400	 
	2008-1158
	 	 	18.40800	 
	2009-144
	 	 	18.54200	 
	2009-198
	 	 	18.79500	 
	2009-209
	 	 	18.36500	 
	2009-210
	 	 	18.36500	 
	2009-211
	 	 	18.36500	 
	2009-217
	 	 	18.82600	 
	2009-222
	 	 	17.56800	 
	2009-246
	 	 	18.81800	 
	2009-247
	 	 	18.87800	 
	2009-248
	 	 	18.77300	 
	2009-250
	 	 	18.55100	 
	2009-261
	 	 	18.92000	 
	2009-262
	 	 	18.50700	 
	2009-268
	 	 	18.43600	 
	2009-282
	 	 	48.39200	 
	2009-361
	 	 	20.62900	 
	2009-386
	 	 	20.61200	 
	2009-374
	 	 	20.63000	 
	2009-300
	 	 	20.58500	 
	2009-323
	 	 	20.61700	 
	2009-303
	 	 	20.46700	 
	2009-395
	 	 	20.51700	 
	2009-398
	 	 	20.54200	 
	2009-149
	 	 	20.36600	 
	2009-382
	 	 	20.41500	 
	2009-428
	 	 	20.19800	 
	2009-112
	 	 	20.27400	 
	2009-277
	 	 	20.44900	 
	2009-404
	 	 	20.39800	 
	2009-298
	 	 	20.51900	 
	2009-433
	 	 	20.54600	 
	2009-380
	 	 	20.51200	 
	2009-405
	 	 	20.46300	 
	2009-257
	 	 	20.45000	 
	2009-269
	 	 	20.45100	 
	2009-327
	 	 	20.39600	 






 









 






IMPERIAL LIFE FINANCING II, LLC

Applicable Interest Rate Listing by

Tranche/Insurance Premium Loan Number




	 	 	 	 	 
	Tranche/Insurance	 	 	 
	Premium Loan	 	 	 
	Number	 	Applicable Rate	 
	2009-347
	 	 	20.50200	 
	2009-232
	 	 	20.06200	 
	2009-378
	 	 	19.99800	 
	2009-403
	 	 	20.02800	 
	2009-462
	 	 	20.12900	 
	2009-409
	 	 	20.00600	 
	2009-379
	 	 	19.98000	 
	2009-437
	 	 	20.05800	 
	2009-453
	 	 	20.11300	 
	2009-396
	 	 	20.01100	 
	2009-245
	 	 	19.98900	 
	2009-195
	 	 	19.70400	 
	2009-418
	 	 	20.01900