exv10w1






Exhibit 10.1




EXECUTION VERSION


 

 



ASSET PURCHASE AGREEMENT


by and between


AMERICAN INTERNATIONAL GROUP, INC.


and


FIRST INSURANCE FUNDING CORP.


Dated as of July 28, 2009



 

 



 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	ARTICLE I
	 	PURCHASE AND SALE OF THE PURCHASED ASSETS	 	 	2	 
	 
	 	 	 	 	 	 
	Section 1.1
	 	Purchase and Sale	 	 	2	 
	Section 1.2
	 	Assumption of Liabilities	 	 	4	 
	Section 1.3
	 	Excluded Assets; Escrowed Assets	 	 	5	 
	Section 1.4
	 	Purchase Price	 	 	15	 
	Section 1.5
	 	Purchase Price Adjustment	 	 	15	 
	Section 1.6
	 	Allocation of Consideration; Ownership of Escrowed Items	 	 	18	 
	 
	 	 	 	 	 	 
	ARTICLE II
	 	THE CLOSING; ESCROWED ASSET RELEASE DATES	 	 	18	 
	 
	 	 	 	 	 	 
	Section 2.1
	 	Time and Place	 	 	18	 
	Section 2.2
	 	Deliveries by Sellers	 	 	19	 
	Section 2.3
	 	Deliveries by Purchaser	 	 	20	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	REPRESENTATIONS AND WARRANTIES OF AIG ON BEHALF OF SELLERS	 	 	21	 
	 
	 	 	 	 	 	 
	Section 3.1
	 	Organization and Authority of Sellers	 	 	21	 
	Section 3.2
	 	No Violation; Consents	 	 	22	 
	Section 3.3
	 	Litigation	 	 	22	 
	Section 3.4
	 	Title to Purchased Assets	 	 	22	 
	Section 3.5
	 	Security Interest	 	 	23	 
	Section 3.6
	 	Loans; Loan Documents	 	 	23	 
	Section 3.7
	 	Compliance With Law	 	 	24	 
	Section 3.8
	 	Employees	 	 	24	 
	Section 3.9
	 	Related Party Transactions	 	 	25	 
	Section 3.10
	 	Change in Business Relationships	 	 	25	 
	Section 3.11
	 	Employee Benefits	 	 	25	 
	Section 3.12
	 	Transferred Intellectual Property	 	 	25	 








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	Section 3.13
	 	OFAC	 	 	26	 
	Section 3.14
	 	Broker’s and Advisor’s Fees	 	 	26	 
	Section 3.15
	 	No Bankruptcy Event	 	 	26	 
	Section 3.16
	 	Disclaimer	 	 	26	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	REPRESENTATIONS AND WARRANTIES OF PURCHASER	 	 	27	 
	 
	 	 	 	 	 	 
	Section 4.1
	 	Organization and Authority of Purchaser	 	 	27	 
	Section 4.2
	 	No Violation; Consents	 	 	27	 
	Section 4.3
	 	Governmental Licenses and Permits	 	 	28	 
	Section 4.4
	 	Litigation	 	 	28	 
	Section 4.5
	 	Broker's and Advisor's Fees	 	 	28	 
	Section 4.6
	 	Securities Matters	 	 	29	 
	Section 4.7
	 	Renewal of Loans	 	 	29	 
	Section 4.8
	 	Compliance with Law	 	 	29	 
	Section 4.9
	 	Investigation	 	 	29	 
	Section 4.10
	 	Disclaimer	 	 	29	 
	 
	 	 	 	 	 	 
	ARTICLE V
	 	INTELLECTUAL PROPERTY AND CONFIDENTIALITY	 	 	30	 
	 
	 	 	 	 	 	 
	Section 5.1
	 	AIG Intellectual Property; Trade Names and Trademarks	 	 	30	 
	Section 5.2
	 	Confidentiality	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE VI
	 	COVENANTS OF THE PARTIES	 	 	33	 
	 
	 	 	 	 	 	 
	Section 6.1
	 	Perfection of Security Interest; Further Assurances	 	 	33	 
	Section 6.2
	 	Post-Closing Cooperation	 	 	35	 
	Section 6.3
	 	Consents	 	 	37	 
	Section 6.4
	 	Transaction Costs; Taxes	 	 	38	 
	Section 6.5
	 	Remittances	 	 	40	 
	Section 6.6
	 	UCC Financing Statements	 	 	41	 





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	Section 6.7
	 	Specified A.I. Credit Employees	 	 	41	 
	Section 6.8
	 	Bulk Sales Laws	 	 	43	 
	Section 6.9
	 	Renewal Loans	 	 	43	 
	Section 6.10
	 	Post-Closing Covenants	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE VII
	 	DISCLAIMER; SURVIVAL; INDEMNIFICATION; EXCLUSIVE REMEDIES	 	 	44	 
	 
	 	 	 	 	 	 
	Section 7.1
	 	Survival	 	 	44	 
	Section 7.2
	 	Indemnification by AIG	 	 	44	 
	Section 7.3
	 	Indemnification by Purchaser	 	 	46	 
	Section 7.4
	 	Other Limitations on Indemnification	 	 	47	 
	Section 7.5
	 	Notification of Claims	 	 	48	 
	Section 7.6
	 	Payment	 	 	50	 
	Section 7.7
	 	Exclusive Remedies	 	 	50	 
	Section 7.8
	 	Additional Indemnification Provisions	 	 	50	 
	Section 7.9
	 	Representations and Warranties of AIG	 	 	51	 
	 
	 	 	 	 	 	 
	ARTICLE VIII
	 	DEFINITIONS	 	 	52	 
	 
	 	 	 	 	 	 
	Section 8.1
	 	Definitions	 	 	52	 
	 
	 	 	 	 	 	 
	ARTICLE IX
	 	MISCELLANEOUS	 	 	65	 
	 
	 	 	 	 	 	 
	Section 9.1
	 	Expenses	 	 	65	 
	Section 9.2
	 	Notices	 	 	65	 
	Section 9.3
	 	Public Announcements	 	 	67	 
	Section 9.4
	 	Severability	 	 	67	 
	Section 9.5
	 	Entire Agreement	 	 	67	 
	Section 9.6
	 	Assignment	 	 	67	 
	Section 9.7
	 	Third-Party Beneficiaries	 	 	68	 
	Section 9.8
	 	Amendment; Waiver	 	 	68	 






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	Section 9.9
	 	AIG Disclosure Schedule	 	 	68	 
	Section 9.10
	 	Governing Law; Submission To Jurisdiction; Waiver of Jury Trial	 	 	69	 
	Section 9.11
	 	Rules of Construction	 	 	70	 
	Section 9.12
	 	Specific Performance	 	 	71	 
	Section 9.13
	 	Counterparts	 	 	71	 






	 	 	 
	Exhibit A
	 	Form of Transition Services Agreement
	Exhibit B
	 	Form of Escrow Agreement
	Exhibit C
	 	Form of Assignment and Assumption Agreement
	Exhibit D
	 	Form of Loan Servicing Agreement
	Exhibit E
	 	Form of Restrictive Covenant Agreement
	Exhibit F
	 	Form of Additional Loan Purchase Letter Agreement
	Exhibit G
	 	Reassumption Price Calculation Illustrations






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ASSET PURCHASE AGREEMENT




     ASSET PURCHASE AGREEMENT dated as of July 28, 2009 is made by and between AMERICAN
INTERNATIONAL GROUP, INC., a Delaware corporation (“AIG”), and FIRST INSURANCE FUNDING
CORP., an Illinois corporation (the “Purchaser”).



     WHEREAS, (w) AIG desires to cause A.I. Credit Corp., a New Hampshire corporation (“A.I.
Credit”) and A.I. Credit Consumer Discount Company, a Pennsylvania corporation (“A.I.
Credit Consumer” and, together with A.I. Credit, collectively, the “Sellers”) to sell
and assign to Purchaser, and Purchaser desires to purchase from Sellers and accept assignment from
Sellers of, without recourse, warranty or representation of any kind other than as specifically
provided in the Transaction Documents, all of Sellers’ right, title and interest in, to and under
certain loans, and the agreements and collateral relating thereto, that are identified herein, (x)
Purchaser desires to assume certain of Sellers’ obligations and other liabilities relating thereto,
(y) AIG desires to cause Sellers to sell to Purchaser, and Purchaser desires to purchase from
Sellers and accept from Sellers without recourse, warranty or representation of any kind other than
as specifically provided in the Transaction Documents, the Transferred Intellectual Property, and
(z) Purchaser desires to hire certain employees of Sellers who are identified herein, and assume
related obligations and enter into specified transactions in connection therewith, all upon the
terms and conditions set forth herein.



     WHEREAS, in connection with this Agreement, as of the Closing: (i) AIG, the Sellers and the
Purchaser shall have entered into a transition services agreement in the form attached hereto as
Exhibit A (the “Transition Services Agreement”); (ii) AIG, The Bank of New York
Mellon, as escrow agent (the “Escrow Agent”), the Bank of New York Mellon Trust Company,
N.A., as custodian (the “Custodian”) and the Purchaser shall have entered into an escrow
agreement in the form attached hereto as Exhibit B (the “Escrow Agreement”); (iii)
with respect to the Purchased Assets to be sold and assigned by Sellers to Purchaser hereunder and
the Assumed Liabilities to be assumed by Purchaser hereunder, each of the Sellers and the Purchaser
shall have entered into an instrument of assignment and assumption, in substantially the form
attached hereto as Exhibit C (the “Assignment and Assumption Agreement”); (iv) AIG,
the Sellers and the Purchaser, as servicer, shall have entered into a loan servicing agreement in
the form attached hereto as Exhibit D (the “Loan Servicing Agreement”), under which
the Purchaser shall, among other things, provide certain services with respect to the Escrowed
Assets (as hereinafter defined); (v) as additional consideration for Purchaser’s willingness to
execute, deliver and perform its obligations under this Agreement, AIG and the Purchaser shall have
entered into a restrictive covenant agreement in the form attached hereto as Exhibit E (the
“Restrictive Covenant Agreement”); and (vi) AIG and the Purchaser shall have entered into
an additional loan purchase letter agreement in the form attached hereto as Exhibit F (the
“Additional Loan Purchase Letter Agreement” and, together with the Transition Services
Agreement, the Escrow Agreement, the Assignment and Assumption Agreement and the Restrictive
Covenant Agreement, collectively, the “Ancillary Agreements”), under which the Purchaser
shall, upon the satisfaction of certain conditions set forth therein, purchase certain additional
Loans and the related Loan Documents, Loan Agreements, Loan Collateral, Loan Security Documents and
any other assets related thereto that Purchaser has agreed to
purchase and the related obligations and other liabilities related thereto that Purchaser has agreed to assume;



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     NOW, THEREFORE, in consideration of the foregoing premises and the mutual representations,
warranties, covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:



ARTICLE I




PURCHASE AND SALE OF THE PURCHASED ASSETS




     Section 1.1 Purchase and Sale. Upon the terms and conditions and in the manner set
forth herein, at the Closing, AIG is causing each Seller to sell, convey, assign, transfer and
deliver to Purchaser, and Purchaser is accepting from such Seller, without recourse, warranty or
representation of any kind other than as specifically provided in the Transaction Documents, and in
each case free and clear of all Liens created by or through such Seller, other than Permitted
Liens:




(x) (i) those Purchased Assets (as defined below) set forth on Schedule 1.1(x)
hereto, (ii) with respect to each Escrowed Asset, to the extent not included in the Escrowed
Assets, each Loan, Loan Document, Loan Agreement, Loan Collateral, Loan Security Document
and any other agreement, instrument, correspondence and any other document included in the
applicable Loan File in respect of such Escrowed Asset (collectively, the “Escrowed
Asset Non-Legal Loan Files”), (iii) the Transferred Intellectual Property (collectively,
the “Closing Date Purchased Assets”); and




(y) subject to Section 1.3(b) of this Agreement and the terms of the Escrow
Agreement, those Purchased Assets set forth on Schedule 1.1(y) hereto (collectively,
the “Escrowed Assets”), which pursuant to Section 2.2(b) of this Agreement
AIG is causing each Seller to deliver to the Custodian for the benefit of Purchaser. Upon
the applicable Escrowed Asset Release Date of an Escrowed Asset, in accordance with the
terms of the Escrow Agreement and upon joint direction from AIG and Purchaser in the manner
specified therein, the Custodian shall deliver to Purchaser, and Purchaser shall accept from
the Custodian such Escrowed Asset (upon release from escrow, a “Released Escrowed
Asset”; all such Released Escrowed Assets, together with the Closing Date Purchased
Assets, collectively, the “Purchased Assets”).


For all purposes of and under this Agreement, the term “Purchased Assets” of a Seller
(other than the Transferred Intellectual Property included in the Closing Date Purchased Assets)
means all of such Seller’s right, title and interest, in, to and under all of the following items
in existence on the Closing Date and, solely in respect of the Escrowed Assets, all of such
Seller’s right, title and interest in, to and under all of the following items in existence as of
the applicable Escrowed Asset Release Date (as defined below):




     (a) each loan which was made by such Seller and the rights and benefits in respect of any
commitment or obligation on the part of such Seller to make any loan that has not yet been funded
by such Seller on the date hereof, in each case as set forth on Schedule 1.1(x) or
Schedule 1.1(y) hereto in respect of the Closing Date Purchased Assets and the Escrowed
Assets, respectively (each such loan or commitment or obligation to make such a loan, a
“Loan”);



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     (b) each agreement, instrument and document pursuant to which a Loan was made or is to be made
by such Seller and is or is to be secured (if and to the extent so secured) by (i) the cash value
of or the net death benefits under the life insurance policies (the “Policies”) set forth
on Schedule 1.1(b)(x)(I) or Schedule 1.1(b)(x)(II) hereto in respect of the Closing
Date Purchased Assets and the Escrowed Assets, respectively or (ii) the cash value or surrender
value of, or rights to payments under, the annuities set forth on Schedule 1.1(b)(y)(I) or
Schedule 1.1(b)(y)(II) hereto in respect of the Closing Date Purchased Assets and the
Escrowed Assets, respectively (the “Annuities”) or which was or will be entered into by or
in favor of such Seller in connection with a Loan made or to be made by such Seller, and the
documents pursuant to which such Seller was or will be granted a security interest in collateral to
secure the Loan (collectively, the “Loan Documents”), including:




     (i) each commitment letter, loan agreement, credit agreement, indenture or other
written agreement pursuant to which a Loan was made or is to be made by a Seller (each, a
“Loan Agreement”);




     (ii) if any are applicable with respect to a Loan, each other “Financing Credit
Application”, “Offer Letter”, “Master Promissory Note”, “Applicable State Schedule”,
“Security Agreement”, “Control Agreement”, “Personal Guaranty”, “Assignment of Life
Insurance Policy”, “Assignment of Annuity”, “Agreement for Security of Financial
Obligations”, “Stock Pledge Agreement”, “Disclaimer and Hold Harmless Agreement”, “Direction
Letter”, “Letter of Credit”, “Collateral Transfer Direction Letter”, “Default Letter”,
“Renewal Letter”, “Pay Off Letter” or similar document relating to each Loan Agreement (as
the applicable term may be defined or otherwise used in the Loan Agreement relating to such
Loan); provided, that the foregoing shall not include any of the following (and none
of the following shall be a Purchased Asset): any correspondence or other communication
among the employees of any Seller or any of its Affiliates, among any Seller and any of its
Affiliates or among any Seller and its legal counsel or any other representative, or any
other document, file, correspondence or other book or record, except in each case as already
included in a Loan File or Escrowed Asset Non-Legal Loan File at the Closing Date or the
applicable Escrowed Asset Release Date, as the case may be, relating to such Loan or which
AIG or any Seller has determined in good faith to be privileged or confidential to such
Seller and/or any of its Affiliates; provided, further, that,
notwithstanding the foregoing, the Purchased Assets shall include any such correspondence or
other communication or document, file, correspondence or other book or record to the extent
delivered to the Purchaser or the Custodian pursuant to Sections 2.2(a)(i),
2.2(b)(i) or 6.1(c) hereof; and




     (iii) each other agreement, instrument and document set forth on Schedule
1.1(b)(iii)(x) or Schedule 1.1(b)(iii)(y) hereto in respect of the Closing Date
Purchased Assets and the Escrowed Assets, respectively;



     (c) all property of any kind, whether real or personal, tangible or intangible in which a
security interest is purported to be granted under a Loan Security Document, or which is purported
to have been pledged, assigned, mortgaged, delivered or transferred as security under a Loan
Security Document, including cash and cash equivalents, to secure payment and



3









 







performance of the obligations of an Obligor under a Loan Agreement or other Loan Document
(“Loan Collateral”);



     (d) to the extent not otherwise constituting a Purchased Asset, all of the following
agreements, instruments and other documents: loan pay off letters; legal opinions (to the extent
assignable); UCC financing and termination statements; and other transaction documents relating to
the Purchased Assets that were delivered to or by such Seller in connection with the closing of a
Loan transaction, and of any amendment, modification, release, extension or waiver to, or of the
terms of, any Loan Document (the foregoing collectively referred to as the “Loan Files”);
provided, that, no Loan File or Escrowed Asset Non-Legal Loan File shall include any of the
following (and none of the following shall be a Purchased Asset): any correspondence or other
communication among the employees of any Seller or of any of its Affiliates, among any Seller and
any of its Affiliates or among any Seller and its legal counsel or any other representative; or any
other document, file, correspondence or other book or record, except in each case as already
included in a Loan File or an Escrowed Asset Non-Legal Loan File at the Closing Date or the
applicable Escrowed Asset Release Date, as the case may be, relating to such Loan or which AIG or
any Seller has determined in good faith to be privileged or confidential to such Seller and/or any
of its Affiliates;



     (e) any right to indemnification of either Seller, pursuant to any Loan Document with respect
to any period or any event occurring prior to, the Closing Date, solely with respect to any Assumed
Liability, including any right of recourse or recovery against any Person with respect to any such
right to indemnification;



     (f) all judgments entered on or prior to the applicable Escrowed Asset Release Date in respect
of any Escrowed Asset (i) in default on the Closing Date as set forth on Schedule 3.6(g) or
(ii) with respect to which a default occurs during the period commencing on the Closing Date
through the applicable Escrowed Asset Release Date in respect of such Escrowed Asset; and



     (g) all goodwill with respect to the items to be conveyed to Purchaser in accordance with the
foregoing clauses (a) through (f) of this Section 1.1.



     Section 1.2 Assumption of Liabilities. Upon the terms and conditions set forth
herein, at and as of the Closing, Purchaser shall assume from each Seller, and shall timely
thereafter pay, perform, fulfill, discharge and otherwise satisfy in accordance with their
respective terms, and AIG shall cause such Seller to sell, convey, assign, transfer and deliver to
Purchaser, all of the Assumed Liabilities of such Seller, and such Seller shall have no obligation
to perform any Assumed Liability and shall forever be absolutely and unconditionally released and
discharged from any obligation to so perform any Assumed Liability. For all purposes of and under
this Agreement, the term “Assumed Liabilities” of a Seller means:



     (a) all obligations of such Seller as set forth on the face of each Loan Document or Loan
Agreement included in the Purchased Assets to which such Seller is a party; provided,
however, that such obligations shall not include any obligations or liabilities of a Seller
arising as a result of such Seller’s breach or non-performance of such Loan Document (collectively,
the



4









 







“Breach Obligations”) on or before the Closing Date (which Breach Obligations shall be
included in the Excluded Liabilities);



     (b) all liabilities for Taxes for which Purchaser is liable pursuant to Section 6.4;



     (c) such Seller’s obligations or commitments as of the Closing Date to renew and/or fund any
Loan as set forth on Schedule 1.2(c) hereto; and



     (d) all of such Seller’s contingency fee obligations to third-party counsel retained by such
Seller with respect to collection efforts in respect of Loan numbers 90-100729 and 91-100949 not in
excess of twenty five percent (25%) of the outstanding principal balance of each such Loan as of
the date hereof (such amount, the “Contingency Fee Obligation Limit”).



     For the avoidance of doubt, Purchaser shall not assume any liabilities or obligations of any
kind whatsoever, whether known or unknown, of Sellers or its Affiliates other than the Assumed
Liabilities (all such liabilities or obligations other than the Assumed Liabilities, collectively,
the “Excluded Liabilities”). The Excluded Liabilities shall include, but not be limited
to, any liabilities or obligations of Sellers or their Affiliates (i) relating to or arising from
the Excluded Assets, (ii) any Breach Obligations, (iii) any of such Seller’s contingency fee
obligations to third-party counsel retained by such Seller with respect to collection efforts
pursuant to Section 1.2(d) in excess of the Contingency Fee Obligation Limit, (iv) except
as otherwise contemplated by Sections 1.2(a), (c) and (d), relating to or
arising from any joint venture, subsidiary investment, agreement, contract, obligation, undertaking
or arrangement of any kind, whether written or oral, to which a Seller or its Affiliate is a party
or by which a Seller or its Affiliate may be bound or (v) except as otherwise contemplated by
Sections 1.2(a), (c) and (d), otherwise relating to or arising from a
Seller’s or its Affiliate’s conduct of its business or ownership of its properties and assets.



     Section 1.3 Excluded Assets; Escrowed Assets.



     (a) Excluded Assets. Notwithstanding anything to the contrary herein, AIG is not
causing any Seller to convey, assign, transfer or deliver, and no Seller is selling, conveying,
assigning, transferring or delivering to Purchaser, and Purchaser is not purchasing or accepting
from such Seller, any of such Seller’s right, title or interest in, to or under any Excluded Asset.
For all purposes of and under this Agreement, the term “Excluded Assets” means
collectively, any asset not specifically set forth in Section 1.1 hereof, including,
without limitation, (A) all minute books, organizational documents, stock registers and such other
books and records of Sellers as pertain to ownership, organization or existence of Sellers and
duplicate copies of such records as are necessary to enable Sellers to file tax returns and
reports, (B) except for the Transferred Intellectual Property, all Intellectual Property rights of
AIG, the Sellers and their Affiliates, (C) all confidential personnel and medical records or files
pertaining to any employees, including, without limitation, the Specified A.I. Credit Employees,
(D) any documents that Sellers are required by Law to retain or that Sellers determine are
necessary or advisable to retain; provided, however, that Purchaser shall have the
right to make copies of any portions of such retained documents that relate to the Purchased Assets
or the Assumed Liabilities; (E) except for the Transferred Intellectual Property, any information
management systems of Sellers; (F) documents relating to proposals to acquire all or a material
portion of the



5









 







Purchased Assets by Persons other than Purchaser, (G) all tax returns and financial statements
of Sellers and the business and all records (including working papers) related thereto, (H) any
claim, right or interest of Sellers, as applicable, in or to any refund, rebate, abatement or other
recovery for Taxes, together with any interest due thereon or penalty rebate arising therefrom, (I)
all of Sellers’ rights, causes of action, claims, credits, demands or rights of set off against
third parties relating to or otherwise in respect of any Purchased Asset or Assumed Liability to
the extent arising out of events occurring prior to the Closing Date (other than any of such
rights, causes of action, claims, credits, demands or rights of set-off against third parties in
respect of which either Seller has exercised any remedies and for which a deficiency balance exists
with respect to a Purchased Asset), (J) all Reassumed Assets as of the Reassumption Date and (K)
all rights that accrue to AIG or Sellers under this Agreement.



     (b) Escrowed Assets.



          (i) Escrow Deliveries.





     (A) Closing Deliveries. At the Closing, (A) AIG is causing Sellers to
deliver to the Custodian for the benefit of Purchaser, to be held in escrow by the
Custodian, each of the Escrowed Assets in accordance with Section 2.2(b)
hereof, and (B) Purchaser is remitting to the Escrow Agent for the benefit of
Sellers, for deposit into the Purchase Price Escrow Account in accordance with
Section 2.3(b) hereof, the Estimated Escrowed Assets Purchase Price, subject
to adjustment as provided in Section 1.5 hereof, in each case, to be held in
escrow by the Escrow Agent pursuant to the terms of the Escrow Agreement, and
subject, in each case, to liens granted pursuant to the Escrow Agreement (x) by AIG
to the Purchaser with respect to the Purchase Price Escrow Account and (y) by
Purchaser to AIG with respect to the Escrowed Assets Escrow Account, the Escrowed
Assets and the Escrowed Asset Non-Legal Loan Files, in each case to secure their
respective obligations under this Section 1.3(b) and under the Escrow
Agreement and the Loan Servicing Agreement.




     (B) Funding Loans Included in the Escrowed Assets; Deliveries During the
Escrowed Asset Transfer Period. Other than in respect of renewal fundings of
Loans set forth on Schedule 1.2(c) hereto scheduled to renew and require an
additional funding within forty five (45) days following the Closing Date (which are
the subject of Section 6.9 hereof and shall be funded by the Purchaser in
accordance with Section 6.9 hereof), if within one hundred twenty (120) days
of the Closing Date, Purchaser requests that AIG or either Seller, as an
accommodation to Purchaser, make an AIG Funding to the applicable Borrower of any
Loan included in the Escrowed Assets that requires an additional funding in respect
of the renewal of such Loan during such one hundred twenty (120) day period, then
(1) AIG shall or shall cause the applicable Seller or either of their respective
Affiliates make such AIG Funding to the applicable Borrower on the date and to the
account specified in a notice to AIG from Purchaser, such notice to be delivered to
AIG by Purchaser not less than ten (10) Business Days prior to the requested funding
date and (2) Purchaser shall deposit an amount equal to one hundred percent (100%)
of such AIG Funding into the Purchase Price Escrow



6









 







Account (any such deposit, an “Additional Purchaser Deposit”) on or
prior to the date of such AIG Funding, to be held by the Escrow Agent pursuant to
the terms of the Escrow Agreement and subject to liens granted pursuant to the
Escrow Agreement by AIG and Sellers to the Purchaser to secure AIG’s obligations
under this Section 1.3(b) and under the Escrow Agreement and the Loan
Servicing Agreement; provided, however, that prior to any such
request that AIG or either Seller make an AIG Funding during such period, Purchaser
shall use its reasonable efforts to make the required funding to the applicable
Borrower.




     (ii) Required Consents. With respect to each such Escrowed Asset, AIG shall
cause each Seller and each of their respective Affiliates to use, and Purchaser shall and
shall cause its respective Affiliates to use, their respective reasonable efforts to
cooperate with each other for a period ending upon the earlier to occur of (A) the date that
is fifteen (15) months following the Closing Date or (B) the date upon which all Escrowed
Assets have been released in accordance with the terms of the Escrow Agreement (such period,
the “Escrowed Asset Transfer Period”) in endeavoring to obtain each of the third
party consents and approvals set forth on Schedule 1.3(b)(ii) hereto (the
“Required Consents”); provided, however, that except as set forth in Section
6.4(a), such efforts shall not require Sellers, AIG or any of their respective
Affiliates to provide any financial accommodation or to remain secondarily, contingently or
otherwise liable for any Assumed Liability to obtain any such Required Consent.




     (iii) Special Rules for Letters of Credit. With respect to any Letter of
Credit included in the Loan Collateral for an Escrowed Asset, a Required Consent shall be
deemed to have been obtained upon (A) receipt of any consent required to change the
beneficiary of a Letter of Credit included in the Loan Collateral to the Purchaser and an
effective assignment of such Letter of Credit to the Purchaser, (B) any renewal or new loan
made by the Purchaser in connection with which the beneficiary of a Letter of Credit
included in the Loan Collateral is changed to the Purchaser, (C) in connection with the
servicing, renewal or collection by Purchaser of a Loan contained in the Escrowed Assets, a
complete draw of the principal amount of such Letter of Credit upon instruction from
Purchaser to the applicable Seller, upon which Seller shall hold such amount in trust and
immediately deposit it into the Escrowed Assets Escrow Account, (D) the expiration of such
Letter of Credit as permitted to occur by Purchaser in connection with the servicing,
renewal or collection by Purchaser of a Loan contained in the Escrowed Assets, or (E) the
replacement of such Letter of Credit by another form of eligible Loan Collateral reasonably
satisfactory to Purchaser, which does not require consent for assignment to Purchaser or for
which any Required Consent has been obtained.




     (iv) Novation of Assumed Liabilities. Purchaser shall, and AIG shall cause
Sellers to, use their respective reasonable efforts to obtain, or cause to be obtained, any
consent, substitution, approval or amendment required to novate all Assumed Liabilities to
Purchaser or to obtain in writing the unconditional release of Sellers and their respective
Affiliates so that, in any such case, Purchaser shall be solely responsible for such Assumed
Liabilities.



7









 






     (v) Servicing of Escrowed Assets. In the event and to the extent that any
Required Consent to the assignment or change of beneficiary of an Escrowed Asset cannot be
or has not been obtained, such Escrowed Asset shall be held, as of and from the Closing Date
until the last day of the Escrowed Asset Transfer Period (such date, the “Escrowed Asset
Transfer Cut-Off Date”) by the Custodian. Purchaser shall perform all covenants and
obligations with respect to each Escrowed Asset at Purchaser’s sole cost and expense until
such Escrowed Asset is released from escrow pursuant to the terms of the Loan Servicing
Agreement and the Escrow Agreement, including, without limitation, to take or cause to be
taken such actions to effect collection of money or other consideration that becomes due and
payable in respect of such Escrowed Assets. Purchaser shall, if applicable, promptly pay
over to the Escrow Agent to be held in the Escrowed Assets Escrow Account in accordance with
the terms of the Escrow Agreement and the Loan Servicing Agreement, all money or other
consideration received by Purchaser in respect of such Escrowed Assets. Purchaser hereby
agrees to indemnify and hold AIG, Sellers and their respective agents, successors and
assigns harmless from and against any and all liabilities, costs, expenses and Losses based
upon, arising out of or relating to such Escrowed Assets.




     (vi) Receipt of Required Consents.




     (A) In the event and to the extent that all Required Consents in respect of any
Escrowed Asset are received or deemed received pursuant to Sections
1.3(b)(ii) and (iii) on or prior to the Escrowed Asset Transfer Cut Off
Date, then the party entitled to give notice of such receipt or deemed receipt under
the Loan Servicing Agreement shall deliver to the other party a certificate in the
form of Exhibit 1.3(b)(vi)(A) hereto, certifying that each Required Consent
in respect of such Escrowed Asset has been obtained or is deemed to have been
obtained in accordance with this Agreement (including reasonable supporting
documentation in respect thereof) (each, a “Required Consents
Certification”), as promptly as practicable, and in any event, not more than
five (5) Business Days following the obtaining or the deemed obtaining of the last
such Required Consent in respect of such Escrowed Asset. If the recipient party
disagrees in good faith with the Required Consents Certification, then the recipient
party shall notify the delivering party in writing (any such notice, a “Required
Consents Notice of Disagreement”) of such disagreement within five (5) Business
Days following receipt of such Required Consents Certification setting forth in
reasonable detail the basis for the disagreement described therein. If no such
Required Consents Notice of Disagreement is received by the delivering party within
such five (5) Business Day period, then such Required Consents Certification shall
be deemed to have been accepted by the recipient party and shall become final and
binding on all parties hereto.




     (B) In the event the recipient party provides any such Required Consents Notice
of Disagreement to the delivering party within such five (5) Business Day period,
AIG and the Purchaser shall cooperate in good faith for a period of ten (10)
Business Days to appoint an arbitrator with substantive life premium finance
industry experience mutually agreeable to AIG and the



8









 







Purchaser (the “Arbitrator”) for review and resolution of any and all
disputed matters contained in such Required Consents Notice of Disagreement. If AIG
and the Purchaser are unable to mutually agree on selecting such an Arbitrator
within such ten (10) Business Day period, then AIG and the Purchaser shall promptly
jointly request the American Arbitration Association to, within five (5) Business
Days of such request, appoint an Arbitrator. AIG and the Purchaser shall instruct
the Arbitrator that it should undertake such review and resolution, and deliver
written notice thereof to AIG and the Purchaser, within ten (10) Business Days after
the matter has been referred to the Arbitrator. The opinion of the Arbitrator as to
whether all Required Consents in respect of such Escrowed Asset have been obtained
or are deemed to have been obtained in accordance with the terms of this Agreement
as reflected in the corresponding Required Consents Certification shall be final and
binding on the parties hereto and all reasonable costs and expenses of such
arbitration (including the fees of the Arbitrator) shall be paid in full by the
unsuccessful party.




     (C) As promptly as practicable, and in any event not more than two (2) Business
Days following such Required Consents Certification becoming final and binding on
the parties hereto in accordance with the foregoing, the Purchaser shall deliver a
written notice to AIG setting forth the Escrowed Assets to be released in accordance
with clause (1) below and Purchaser’s calculation of the amounts due to either party
in accordance with clauses (2) and (3) below (including reasonable supporting
documentation in respect thereof) (each, a “Released Escrowed Assets
Certification”), and if AIG disagrees in good faith with such Released Escrowed
Assets Certification, then AIG shall notify Purchaser in writing (each, a
“Released Escrowed Assets Certification Notice of Disagreement”) of such
disagreement within five (5) Business Days following Purchaser’s delivery of any
Released Escrowed Assets Certification. The Released Escrowed Assets Certification
Notice of Disagreement shall set forth in reasonable detail the basis for the
disagreement described therein. If no Released Escrowed Assets Notice of
Disagreement is received by Purchaser within such five (5) Business Day period, then
such Released Escrowed Assets Certification shall be deemed to have been accepted by
AIG and shall become final and binding on the parties hereto. During the five (5)
Business Day period immediately following the delivery of a Released Escrowed Assets
Certification Notice of Disagreement, AIG, on the one hand, and Purchaser, on the
other hand, shall attempt in good faith to resolve any differences that they may
have with respect to any matter specified in the Released Escrowed Assets
Certification Notice of Disagreement. If AIG, on the one hand, and Purchaser, on
the other hand, are able to resolve all of such differences within such five (5)
Business Day period following such delivery of a Released Escrowed Assets
Certification Notice of Disagreement, then the Released Escrowed Assets
Certification, as adjusted to reflect such resolution, shall become final and
binding on the parties hereto. If AIG, on the one hand, and Purchaser, on the other
hand are unable to resolve all of such differences within such five (5) Business Day
period, then any item that remains in dispute shall be resolved in accordance with
the dispute resolution procedures set forth in Section 1.3(b)(vii)(E). As
promptly as



9









 







practicable, and in any event not more than two (2) Business Days following
such Released Escrowed Assets Certification becoming final and binding on the
parties hereto in accordance with this Section 1.3(b)(vi)(C) or Section
1.3(b)(vii)(E), Purchaser and AIG shall jointly direct the Escrow Agent and the
Custodian, as applicable in writing in the form attached hereto as Exhibit
1.3(b)(vi)(C) to, within five (5) Business Days following the Escrow Agent’s and
the Custodian’s receipt thereof (each such date, an “Escrowed Asset Release
Date”), (1) deliver each such Escrowed Asset to the Purchaser in accordance with
the terms of the Escrow Agreement, (2) to the extent applicable in respect of such
Escrowed Asset, remit to Purchaser by wire transfer of immediately available funds,
the aggregate amount collected in respect of such Escrowed Asset and deposited by
the Escrow Agent in the Escrowed Assets Escrow Account in accordance with the terms
of the Escrow Agreement prior to the Escrowed Asset Release Date (whether any
portion of such aggregate amount constitutes principal of, interest on, or any other
fee or other amount in respect of, such Escrowed Asset), including for purposes of
this clause (2), all proceeds realized in respect of any Loan Collateral relating to
such Escrowed Asset and any applicable Post-Closing Prepaid Interest Amount (to the
extent actually received by the Escrow Agent prior to the related Escrowed Asset
Release Date), together with any Escrow Earnings accrued on such amounts, and (3)
remit from the Purchase Price Escrow Account by wire transfer of immediately
available funds to an account specified in writing by AIG, (x) the Purchase Price
payable in respect of such Escrowed Assets as finally determined in accordance with
Sections 1.4 and 1.5 hereof and (y) any applicable Additional
Purchaser Deposit in respect thereof, together with any Escrow Earnings accrued on
such portion of the Purchase Price and any applicable Additional Purchaser Deposit
through the applicable Escrowed Asset Release Date.




     (vii) No Receipt of Required Consents.




     (A) In the event and to the extent that any Required Consent in respect of any
Escrowed Asset has not been received prior to the Escrowed Asset Transfer Cut Off
Date, then (1) AIG’s and the applicable Seller’s and Purchaser’s obligations
pursuant to Section 1.3(b)(ii) through (v) hereof shall terminate as
of the Escrowed Asset Transfer Cut Off Date, (2) such Seller shall reassume and
become the sole owner of any such Escrowed Asset (each, a “Reassumed Asset”)
as of the day immediately following the Escrowed Asset Transfer Cut Off Date or such
later date as may be necessary to resolve any outstanding dispute in respect of any
Required Consents Certification delivered by AIG to the Purchaser prior to the
Escrowed Assets Transfer Cut-Off Date in accordance with Section 1.3(b)(vi)
hereof (such date, the “Reassumption Date”), (3) Purchaser’s, the Escrow
Agent’s and the Custodian’s interest in such Reassumed Asset shall immediately
terminate and be released in full upon the Reassumption Date, without any further
action or the execution of any further instrument by any Person, (4) any Escrowed
Asset Non-Legal Loan File previously delivered to the Purchaser in accordance with
the terms of this Agreement shall be held in trust by the Purchaser for the benefit
of Sellers until returned to the applicable Seller in accordance with the terms of
this



10









 







Agreement and (5) Purchaser shall execute and deliver to AIG or the applicable
Seller for delivery to the applicable Insurer, a notice from the Purchaser to each
applicable Insurer notifying such Insurer of the assignment to AIG or the applicable
Seller of Purchaser’s security interest in the Policies or Annuities issued by such
Insurer, which security interest is to be assigned hereunder as of the Reassumption
Date in respect of any Reassumed Asset, in substantially the form(s) attached as
Exhibit 1.3(b)(vii)(A) hereto, dated as of the Reassumption Date in respect
of Policies and Annuities securing Loans that constitute Reassumed Assets.
Notwithstanding the foregoing, in the event and to the extent that at any time prior
to the Reassumption Date either AIG, Purchaser or Sellers determine that an Obligor
under any Escrowed Asset is a person or entity with whom Persons subject to United
States jurisdiction are restricted from doing business under regulations of the
Office of Foreign Assets Control (“OFAC”) of the U.S. Department of Treasury
(including those named on OFAC’s List of Specially Designated Nationals and Blocked
Persons, as amended from time to time) or pursuant to any Law, including, without
limitation, the September 24, 2001, Executive Order Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism and such restriction with respect to such Obligor continues to be in
effect on the Reassumption Date, then (1) the related Escrowed Asset shall not
become a Reassumed Asset and the applicable Seller shall not reassume such Escrowed
Asset, (2) the Purchaser shall conclusively be deemed, without any further action on
its part, to have irrevocably and unconditionally waived Seller’s obligations
pursuant to this Section 1.3(b)(vii) to reassume such Escrowed Asset,
irrespective of whether the related Required Consents have been obtained with
respect to such Escrowed Asset and (3) AIG and the Purchaser shall promptly jointly
direct the Escrow Agent and the Custodian, as applicable in writing in accordance
with Section 1.3(b)(vi)(C) hereof and the terms of the Escrow Agreement to
release such Escrowed Asset and other applicable amounts from escrow to the
Purchaser and to remit the applicable portion of the Purchase Price and other
applicable amounts to the applicable Seller.




     (B) As promptly as practicable, but in any event within five (5) Business Days
following the Reassumption Date, Purchaser shall prepare and deliver to AIG and
Sellers a written schedule (the “Reassumption Date Loan Value Schedule”)
setting forth Purchaser’s calculation of the Reassumption Date Loan Value in respect
of each Loan included in the Reassumed Assets as of the Reassumption Date. AIG
shall and shall cause Sellers to cooperate with Purchaser to permit Purchaser to
prepare the Reassumption Date Loan Value Schedule. Such cooperation shall include
providing Purchaser and its agents and representatives with reasonable access to all
books and records in Sellers’ (or any of their respective Affiliates’) possession
relating to the Reassumed Assets, and with reasonable access to the personnel of
Sellers and their respective Affiliates.




     (C) As promptly as practicable, and in any event not more than two (2) Business
Days following the date upon which the Reassumption Date Loan Value Schedule becomes
final and binding on the parties hereto in accordance with



11









 







Section 1.3(b)(vii)(D) or (E), (I) Purchaser shall deliver to
the applicable Seller each Escrowed Asset Non-Legal Loan File (together with each
Loan, Loan Document, Loan Agreement, Loan Collateral, Loan Security Document and any
other agreement, instrument, correspondence and any other document included in such
Escrowed Asset Non-Legal Loan File on or after the Closing Date) and (II) Purchaser
and AIG shall jointly direct the Escrow Agent and the Custodian, as applicable in
writing in the form attached hereto as Exhibit 1.3(b)(vii)(C) to (whether by
physical delivery of such Reassumed Assets and of any other documents or assets to
the address specified by the applicable party or, in respect of any required
payment, by wire transfer of immediately available funds to the account specified by
the applicable party, as the case may be), within five (5) Business Days of receipt
of such notice by the Escrow Agent and the Custodian, as applicable (such date, the
“Reassumption Transfer Date”), take the following actions:




     (1) In respect of any such Reassumed Asset that is a Loan (each, a
“Reassumed Loan”), the Escrow Agent shall remit to Purchaser an
amount equal to the sum of (x) (I) the aggregate Reassumed Loan Price in
respect of each Reassumed Loan plus (II) an amount equal to any applicable
Purchaser Funding outstanding as of the Reassumption Date and Additional
Purchaser Deposit less (III) any applicable Valuation Adjustment Amount from
the Purchase Price Escrow Account less (IV) any principal remitted by the
Borrower in respect of any AIG Funding (it being understood that any
payments of principal by a Borrower remitted with respect to any Loan that
is an Escrowed Asset during the Escrowed Asset Transfer Period shall first
be applied against the applicable Loan’s existing principal balance
outstanding as of the Closing Date and next to any AIG Funding or Purchaser
Funding) (such amount, the “Reassumption Price”) and (y) the
aggregate amount collected in respect of all Reassumed Loans and deposited
by the Escrow Agent in the Escrowed Assets Escrow Account in accordance with
the terms of the Escrow Agreement on or prior to the Escrowed Assets
Transfer Cut-Off Date (whether any portion of such aggregate amount
constitutes principal of, interest on, or any other fee or other amount in
respect of, such Reassumed Loan), including for purposes of this clause (y),
all proceeds realized in respect of any Loan Collateral relating to such
Reassumed Loan and any applicable Post-Closing Prepaid Interest Amount (to
the extent actually received by the Escrow Agent prior to the related
Escrowed Asset Transfer Cut-Off Date, together with any Escrow Earnings
accrued on such amounts. In the event and to the extent that the aggregate
Reassumption Price is greater than the cash balance of funds held in the
Purchase Price Escrow Account as of the Reassumption Transfer Date, then AIG
shall or shall cause Sellers to remit an amount equal to such excess to the
Purchaser within five (5) Business Days of the Reassumption Transfer Date by
wire transfer of immediately available funds to the account specified by the
Purchaser in writing to AIG. In the event and to the extent that the
aggregate Reassumption Price calculated in



12









 







accordance with the foregoing is a negative amount, then
AIG shall direct the Escrow Agent to or the Purchaser shall, as the
case may be, remit the absolute value of such amount by wire transfer of
immediately available funds to the account specified by AIG in writing to
the Escrow Agent or the Purchaser, as the case may be.




     (2) The Escrow Agent and the Custodian shall deliver to the applicable
Seller any and all such Reassumed Assets and any other documents or assets
delivered to the Escrow Agent or the Custodian, as the case may be, pursuant
to Section 2.2(b) hereof and remit to the applicable Seller an
amount equal to the amount by which the cash balance of funds held in the
Purchase Price Escrow Account (which shall include any Escrow Earnings
accrued on the Purchase Price, as finally determined in accordance with
Sections 1.4 and 1.5 hereof and deposited into the Purchase
Price Escrow Account in accordance with the terms of the Escrow Agreement)
as of the Reassumption Transfer Date exceeds the aggregate Reassumption
Price remitted to the Purchaser pursuant to Section
1.3(b)(vii)(C)(1) hereof. In the event and to the extent that the
aggregate Reassumption Price is a negative amount or there are insufficient
funds held in the Purchase Price Escrow Account as of the Reassumption
Transfer Date to remit to the applicable Seller an amount equal to the
Escrow Earnings accrued on the Purchase Price in accordance with the
immediately preceding sentence, then the Purchaser shall remit an amount
equal to the sum of (x) the absolute value of the amount by which the
Reassumption Price is less than zero dollars ($0) and (y) any amount by
which funds held in the Purchase Price Escrow Account are insufficient to
remit to the applicable Seller the Escrow Earnings accrued on the Purchase
Price by wire transfer of immediately available funds to the account
specified by AIG in writing to the Purchaser within five (5) Business Days
of the Reassumption Transfer Date.




     Attached as Exhibit G hereto for illustrative purposes only are
examples of certain Reassumption Price calculations.




     (D) If AIG disagrees in good faith with the Reassumption Date Loan Value
Schedule, then AIG shall notify Purchaser in writing (the “Reassumption Price
Notice of Disagreement”) of such disagreement within fifteen (15) days following
Purchaser’s delivery of the Reassumption Date Loan Value Schedule. The Reassumption
Price Notice of Disagreement shall set forth in reasonable detail the basis for the
disagreement described therein. If no Reassumption Price Notice of Disagreement is
received by Purchaser within such fifteen (15) day period, then the Reassumption
Date Loan Value Schedule shall be deemed to have been accepted by AIG and shall
become final and binding on the parties hereto. During the fifteen (15) day period
immediately following the delivery of the Reassumption Price Notice of Disagreement,
AIG, on the one hand, and Purchaser, on the other hand, shall attempt in good faith
to resolve any differences that they may have with respect to any matter specified
in the Reassumption Price



13









 







Notice of Disagreement. If AIG, on the one hand, and Purchaser, on the other
hand, are able to resolve all of such differences within fifteen (15) days
following such delivery of the Reassumption Price Notice of Disagreement, then the
Reassumption Date Loan Value Schedule, as adjusted to reflect such resolution, shall
become final and binding on the parties hereto. If AIG, on the one hand, and
Purchaser, on the other hand, are unable to resolve all of such differences within
such fifteen (15) day period, any item remaining in dispute shall be resolved in
accordance with the dispute resolution procedures set forth in Section
1.3(b)(vii)(E).




     (E) Dispute Resolution Procedures. If AIG, on the one hand, and
Purchaser, on the other hand, are unable to resolve (i) within five (5) Business
Days following delivery of any Released Escrowed Assets Certification Notice of
Disagreement all differences thereunder, or (ii) within fifteen (15) days following
delivery of any Reassumption Price Notice of Disagreement all differences
thereunder, as the case may be, then AIG and Purchaser shall submit the applicable
Released Escrowed Assets Certification or Reassumption Date Loan Value Schedule, as
the case may be, to the Independent Accountant (selected in accordance with the
procedures set forth in Section 1.5(b) hereof) for review and resolution of
any and all matters that remain in dispute with respect to such Released Escrowed
Assets Certification Notice of Disagreement or the Reassumption Price Notice of
Disagreement, as the case may be, and the opinion of the Independent Accountant as
to the applicable Released Escrowed Assets Certification or the Reassumption Date
Loan Value Schedule, as the case may be, shall be final and binding on the parties
hereto. AIG shall and shall cause Sellers to, and Purchaser shall provide the
Independent Accountant with reasonable cooperation and reasonable access to permit
such review and resolution; provided, however, that the accountants
of AIG and Sellers will not be obligated to make any work papers available to the
Purchaser unless and until the Purchaser and the Independent Accountant have signed
a customary confidentiality and hold harmless agreement relating to such access to
work papers in form and substance reasonably acceptable to such accountants. AIG
and Purchaser shall instruct the Independent Accountant that it should undertake
such review and resolution, and deliver written notice thereof to AIG and Purchaser,
within thirty (30) days after the matter has been referred to the Independent
Accountant. The scope of the Independent Accountant’s engagement (which shall not
be an audit) shall be limited to the resolution of the disputed items expressly
described in the applicable Released Escrowed Assets Certification Notice of
Disagreement or Reassumption Price Notice of Disagreement, as the case may be, and
the recalculation, if any, of (I) the Escrowed Assets to be released and the amounts
payable to either party, each in accordance with Section 1.3(b)(vi)(C) or
(II) the Reassumption Price, as the case may be, in light of such resolution in
accordance with this Section 1.3(b)(vii)(E). The Independent Accountant
shall have no authority to review or raise items not expressly identified in any
Released Escrowed Assets Certification Notice of Disagreement or Reassumption Price
Notice of Disagreement, as the case may be. If the Independent Accountant is
engaged pursuant to this Section 1.3(b)(vii)(E), the fees and expenses of
the




14












 






Independent Accountant shall be borne equally by AIG (on behalf of Sellers), on
the one hand, and Purchaser, on the other hand.



     Section 1.4 Purchase Price. The initial aggregate purchase price for the Purchased
Assets, including the Transferred Intellectual Property is SIX HUNDRED SEVENTY NINE MILLION FIVE
HUNDRED ONE THOUSAND EIGHT DOLLARS ($679,501,008.00) (the “Initial Purchase Price”), but is
subject to adjustment as provided in Section 1.5 hereof (as so adjusted, the “Purchase
Price”). The Initial Purchase Price equals, in the aggregate, the Initial Loan Value of each
Loan contained in the Purchased Assets multiplied by the Purchase Price Percentage in respect of
such Loan. Schedule 1.4 hereto (the “Initial Loan Value Schedule”) sets forth the
calculation of the Initial Loan Value in respect of each Loan. At the Closing, Purchaser shall (i)
pay the Initial Purchase Price in respect of the Closing Date Purchased Assets with respect to
which there are no Escrowed Assets related thereto (such amount, the “Estimated Closing Date
Purchased Assets Purchase Price”) to Sellers, (ii) deposit on behalf of Sellers an amount equal
to the Initial Purchase Price in respect of the Escrowed Assets and the Closing Date Purchased
Assets related thereto (such amount, the “Estimated Escrowed Assets Purchase Price” and,
together with the Estimated Closing Date Purchased Assets Purchase Price, collectively, the
“Estimated Purchase Price”) in the Purchase Price Escrow Account to be held by the Escrow
Agent in accordance with the terms of the Escrow Agreement, and (iii) assume the Assumed
Liabilities from Sellers. Sellers shall accept (x) the Estimated Closing Date Purchased Assets
Purchase Price from Purchaser, and (y) the Estimated Escrowed Assets Purchase Price delivered by
Purchaser to the Escrow Agent for deposit into the Purchase Price Escrow Account to be held and
released in accordance with the terms of the Escrow Agreement and the assumption of the Assumed
Liabilities by Purchaser, in full payment for the Purchased Assets, including the Transferred
Intellectual Property, subject to any adjustment as provided in Section 1.5(c) hereof. The
Estimated Purchase Price is payable in the manner provided in Sections 2.3(a)(i) and
2.3(b) hereof.



     Section 1.5 Purchase Price Adjustment.



     (a) As promptly as practicable, but in any event within thirty (30) calendar days following
the Closing Date, Purchaser shall prepare and deliver to AIG and Sellers a schedule (the
“Closing Date Loan Value Schedule”) setting forth Purchaser’s calculation of the Closing
Date Loan Value. The Closing Date Loan Value shall be calculated in the same manner as the Initial
Loan Value, using accounting procedures and practices consistent with those used to calculate the
Initial Loan Value, including the same Purchase Price Percentage in respect of each Loan. AIG
shall and shall cause Sellers to cooperate with Purchaser to permit Purchaser to prepare the
Closing Date Loan Value Schedule. Such cooperation shall include providing Purchaser and its
agents and representatives with reasonable access to all books and records in Sellers’ (or any of
their respective Affiliates’) possession relating to the Purchased Assets, and with reasonable
access to the personnel of Sellers and their respective Affiliates.



     (b) If AIG disagrees in good faith with the Closing Date Loan Value Schedule, then AIG shall
notify Purchaser in writing (the “Notice of Disagreement”) of such disagreement within
fifteen (15) days following Purchaser’s delivery of the Closing Date Loan Value Schedule. The
Notice of Disagreement shall set forth in reasonable detail the basis for the disagreement
described therein. If no Notice of Disagreement is received by Purchaser within



15









 







such fifteen (15) day period, then the Closing Date Loan Value Schedule shall be deemed to
have been accepted by AIG and shall become final and binding on the parties hereto. During the
fifteen (15) day period immediately following the delivery of a Notice of Disagreement in
accordance with the first two sentences of this Section 1.5(b), AIG, on the one hand, and
Purchaser, on the other hand, shall attempt in good faith to resolve any differences that they may
have with respect to any matter specified in the Notice of Disagreement. If AIG, on the one hand,
and Purchaser, on the other hand, are able to resolve all of such differences within fifteen (15)
days following such delivery of the Notice of Disagreement, then the Closing Date Loan Value
Schedule, as adjusted to reflect such resolution, shall become final and binding on the parties
hereto. If AIG, on the one hand, and Purchaser, on the other hand, are unable to resolve all of
such differences within fifteen (15) days following such delivery of the Notice of Disagreement,
then AIG and Purchaser shall submit the Closing Date Loan Value Schedule to KPMG LLP (the
“Independent Accountant”) for review and resolution of any and all matters that remain in
dispute with respect to the Notice of Disagreement, and the opinion of the Independent Accountant
as to the Closing Date Loan Value Schedule shall be final and binding on the parties hereto. In
the event that KPMG LLP refuses or is otherwise unable to act as the Independent Accountant, the
parties shall cooperate in good faith to appoint an independent certified public accounting firm in
the United States mutually agreeable to the parties, in which event “Independent Accountant” shall
mean such firm. If the parties are unable to agree on selecting such firm, then the parties
promptly shall jointly request the American Arbitration Association to appoint, within ten (10)
Business Days from the date of such request, an internationally recognized firm of public
accountants independent of both AIG and Purchaser to serve as the Independent Accountant. AIG
shall and shall cause Sellers to, and Purchaser shall provide the Independent Accountant with
reasonable cooperation and reasonable access to permit such review and resolution;
provided, however, that the accountants of AIG and Sellers will not be obligated to
make any work papers available to the Purchaser unless and until the Purchaser and the Independent
Accountant have signed a customary confidentiality and hold harmless agreement relating to such
access to work papers in form and substance reasonably acceptable to such accountants. AIG and
Purchaser shall instruct the Independent Accountant that it should undertake such review and
resolution, and deliver written notice thereof to AIG and Purchaser, within thirty (30) days after
the matter has been referred to the Independent Accountant. The scope of the Independent
Accountant’s engagement (which shall not be an audit) shall be limited to the resolution of the
disputed items expressly described in the Notice of Disagreement, and the recalculation, if any, of
the Purchase Price in light of such resolution in accordance with this Section 1.5(b). The
Independent Accountant shall have no authority to review or raise items not expressly identified in
the Notice of Disagreement. If the Independent Accountant is engaged pursuant to this Section
1.5(b), the fees and expenses of the Independent Accountant shall be borne equally by AIG (on
behalf of Sellers), on the one hand, and Purchaser, on the other hand.



     (c) The Purchase Price in respect of the Purchased Assets in the aggregate shall be reduced
(the “Purchase Price Reduction”) by the amount, if any, that the sum of the aggregate
Closing Date Loan Value of each Loan (as set forth on the final Closing Date Loan Value Schedule
prepared pursuant to Sections 1.5(a) and (b)), in each case, multiplied by the
applicable Purchase Price Percentage in respect of each such Loan (such amount, the “Final
Closing Date Purchase Price”) is less than the Estimated Purchase Price. The Purchase Price in
respect of the Purchased Assets in the aggregate shall be increased (the “Purchase Price
Increase”) by the



16









 







amount, if any, that the Final Closing Date Purchase Price is greater than the Estimated
Purchase Price. In the event and to the extent that:




     (i) any Purchase Price Reduction is payable by Sellers to Purchaser in respect of any
Closing Date Purchased Assets with respect to which there are no Escrowed Assets related
thereto or any Released Escrow Assets for which all applicable Required Consents have been
obtained on or prior to the date upon which the Closing Date Loan Value Schedule has become
final and binding on the parties hereto in accordance with Section 1.5(b) hereof,
AIG shall cause Sellers to pay such applicable portion of the Purchase Price Reduction in
respect of such Closing Date Purchased Assets and Released Escrowed Assets to Purchaser;




     (ii) any Purchase Price Reduction is payable by Sellers to Purchaser in respect of any
Escrowed Assets (and the related Closing Date Purchased Assets) for which all applicable
Required Consents have not been obtained on or prior to the date upon which the Closing Date
Loan Value Schedule has become final and binding on the parties hereto in accordance with
Section 1.5(b) hereof, AIG shall, as promptly as practicable, and in any event, not
more than two (2) Business Days following such date, direct the Escrow Agent in writing in
the form attached hereto as Exhibit 1.5(c)(ii) to release to Purchaser from the
Purchase Price Escrow Account, such applicable portion of the Purchase Price Reduction in
respect of such Escrowed Assets;




     (iii) any Purchase Price Increase is payable by Purchaser to Sellers in respect of any
Closing Date Purchased Assets with respect to which there are no Escrowed Assets related
thereto or any Released Escrow Assets for which all applicable Required Consents have been
obtained on or prior to the date upon which the Closing Date Loan Value Schedule has become
final and binding on the parties hereto in accordance with Section 1.5(b) hereof,
Purchaser shall pay such applicable portion of the Purchase Price Increase in respect of
such Closing Date Purchased Assets and Released Escrowed Assets to the applicable Seller;
and




     (iv) any Purchase Price Increase is payable by Purchaser to Sellers in respect of any
Escrowed Assets (and the related Closing Date Purchased Assets) for which all applicable
Required Consents have not been obtained on or prior to the date upon which the Closing Date
Loan Value Schedule has become final and binding on the parties hereto in accordance with
Section 1.5(b) hereof, the Purchaser shall deliver to the Escrow Agent to be
deposited in the Purchase Price Escrow Account and held and released by the Escrow Agent in
accordance with the terms of the Escrow Agreement, such applicable portion of the Purchase
Price Increase in respect of such Escrowed Assets,



     In any such case of the preceding clauses (i), (ii), (iii) or (iv) of this Section
1.5(c), the applicable party shall, within three (3) Business Days after the date upon which
the Closing Date Loan Value Schedule becomes final and binding in accordance with Section
1.5(b) hereof, pay by wire transfer of immediately available funds to one or more accounts
designated by the party or parties or to the Purchase Price Escrow Account, as the case may be,
entitled to such amount in accordance with the foregoing. If no Purchase Price Reduction or
Purchase Price Increase is required by the terms hereof, then the Purchase Price shall equal the
Estimated Purchase Price.



17









 




For the avoidance of doubt, there shall be no adjustment to the Purchase Price in respect of
any amount payable under any Retention Bonus Agreement to any Transferred Employee in accordance
with Section 6.7(c) hereof.




     Section 1.6 Allocation of Consideration; Ownership of Escrowed Items.



     (a) Allocation of Consideration. AIG shall cause each of the Sellers to, and the
Purchaser shall, allocate the Purchase Price (plus any other items treated as consideration for the
Purchased Assets for Tax purposes) among the Purchased Assets (including the Escrowed Assets and
Transferred Intellectual Property) in a manner consistent with the allocation set forth on
Schedule 1.6(a) attached hereto (the “Allocation”), and, unless otherwise required
by applicable Law, AIG agrees to cause the Sellers, and the Purchaser hereby agrees, to file
Internal Revenue Service Form 8594, and all federal, state, provincial, local and foreign Tax
Returns, in accordance with such Allocation.



     (b) Ownership of Assets and Monies Held in Escrow. The parties hereto hereby
acknowledge and agree that from and after the Closing, the Purchaser, AIG and the Sellers shall
treat (i) Sellers as the owners for all purposes of amounts deposited into the Purchase Price
Escrow Account, subject to compliance with Section 1.3(b) of this Agreement and the lien
granted by AIG and Sellers to Purchaser pursuant to the Escrow Agreement to secure AIG’s
obligations under such Section 1.3(b), and (ii) the Purchaser as the owner of (x) the
Escrowed Assets and the Closing Date Purchased Assets related thereto and amounts deposited into
the Escrowed Assets Escrow Account, subject to compliance with Section 1.3(b) of this
Agreement and the lien granted by the Purchaser to AIG pursuant to the Escrow Agreement to secure
the Purchaser’s obligations under such Section 1.3(b) and (y) the Escrowed Asset Non-Legal
Loan Files, subject to compliance with Section 1.3(b) of this Agreement and the lien
granted by the Purchaser to AIG pursuant to the Escrow Agreement to secure the Purchaser’s
obligations under such Section 1.3(b).



ARTICLE II




THE CLOSING; ESCROWED ASSET RELEASE DATES




     Section 2.1 Time and Place. The closing of the transactions contemplated by this
Agreement is taking place at a closing (the “Closing”) to be held at (i) 10:00 a.m., New
York City time, on the date hereof, at the offices of Sidley Austin LLP, 787 Seventh Avenue, New
York, New York 10019. For all purposes of this Agreement, the sale and assignment of (i) the
Closing Date Purchased Assets by Sellers to Purchaser, and the assumption of the Assumed
Liabilities by Purchaser from Sellers, pursuant to this Agreement shall be deemed effective, and as
having occurred, as of 1:00 a.m., New York City time, on the Closing Date and (ii) the Released
Escrowed Assets by Sellers to Purchaser, pursuant to the Escrow Agreement shall be deemed
effective, and as having occurred, as of 1:00 a.m., New York City time, on and as of the applicable
Escrowed Asset Release Date.



18









 





     Section 2.2 Deliveries by Sellers.



     (a) Without limiting any other provision of this Agreement, at the Closing, AIG is delivering
or causing each Seller to deliver the following to Purchaser (or, as applicable pursuant to the
last sentence of this Section 2.2(a), following the Closing):




     (i) the Loan Documents and Loan Files (or a copy thereof) included in the Closing Date
Purchased Assets, and for the Loans included in the Escrowed Assets, each Escrowed Asset
Non-Legal Loan File (or a copy thereof) relating thereto other than the Escrowed Assets
which are to be delivered to the Custodian pursuant to Section 2.2(b);




     (ii) a notice from the respective Seller and Purchaser to each applicable Borrower
notifying such Borrower of the sale and assignment of the respective Loan Documents to be
sold and assigned by such Seller to Purchaser hereunder at the Closing, in substantially the
forms attached as Exhibits 2.2(a)(ii)(x) and 2.2(a)(ii)(y) hereto, dated as
of the Closing Date in respect of Loan Documents constituting Closing Date Purchased Assets
and the Escrowed Assets, respectively and executed by such Seller;




     (iii) a notice from the respective Seller and Purchaser to each applicable Insurer
notifying such Insurer of the assignment to Purchaser of such Seller’s security interest in
the Policies or Annuities issued by such Insurer, which security interest is to be assigned
hereunder at the Closing, in substantially the form(s) attached as Exhibit
2.2(a)(iii) hereto, dated as of the Closing Date in respect of Policies and Annuities
securing Loans that constitute Closing Date Purchased Assets and the Escrowed Assets and
executed by such Seller;




     (iv) with respect to each promissory note in favor of a Seller evidencing a Loan
included in the Closing Date Purchased Assets with respect to which there are no Escrowed
Assets related thereto made by such Seller, such promissory note with an indorsement thereon
in substantially the form attached as Exhibit 2.2(a)(iv) hereto;




     (v) counterparts of each of the Ancillary Agreements duly executed by AIG or its
applicable Affiliates and, in respect of the Escrow Agreement, duly executed by the Escrow
Agent and the Custodian;




     (vi) the Transferred Intellectual Property;




     (vii) a secretary’s certificate of AIG, in substantially the form attached as
Exhibit 2.2(a)(vii) hereto, that is dated as of the Closing Date and has been
executed by the secretary or an assistant secretary of AIG;




     (viii) the Facilities Payment; and




     (ix) a spreadsheet setting forth the information (and related valuations) of the types
set forth on Schedule 2.2(a)(ix) hereto with respect to each Loan and the related
Loan Collateral included in the Closing Date Purchased Assets and the Escrowed Assets, each
as of June 30, 2009 or, solely in respect of Loan number 90-101780, as of July 17, 2009.



19









 




With respect to the deliverables listed in clauses (ii) through (ix) above, AIG is delivering or
causing each Seller to deliver such deliverables on the Closing Date at the Closing. With respect
to the deliverables listed in clause (i) above, AIG shall cause Sellers to transfer to Purchaser,
possession of such deliverables at a mutually agreeable date as soon as practicable after the
Closing but in no event later than the second (2nd) Business Day following the Closing
Date.




     (b) Without limiting any other provision of this Agreement, on the Closing Date, AIG is
delivering or causing each Seller to deliver the following to the Custodian to be held for the
benefit of the Purchaser and released by the Custodian in accordance with the terms of the Escrow
Agreement:




     (i) the Escrowed Assets; and




     (ii) with respect to each promissory note in favor of a Seller evidencing a Loan
included in the Escrowed Assets made by such Seller, such promissory note with an
indorsement thereon in substantially the form attached as Exhibit 2.2(b)(ii) hereto.



     (c) Without limiting any other provision of this Agreement, in the event and to the extent
that either Seller receives, on or following the Closing Date, any prepaid amount in respect of
interest not accrued and not due and payable on or prior to the Closing Date and received by either
Seller on or after the Closing Date with respect to any Loan included in the Closing Date Purchased
Assets or the Escrowed Assets (any such amount, a “Post-Closing Prepaid Interest Amount” in
respect of such Loan), AIG shall cause such Seller to (i) remit, within five (5) Business Days of
receipt thereof, to the Escrow Agent (if at the time of such remittance such amount is with respect
to an Escrowed Asset or a Closing Date Purchased Asset related thereto) by wire transfer of
immediately available funds an amount equal to such Post-Closing Prepaid Interest Amount to be
deposited by the Escrow Agent into the Escrowed Assets Escrow Account to be held and released by
the Escrow Agent in accordance with the terms of the Escrow Agreement or (ii) remit, within five
(5) Business days of receipt thereof, to the Purchaser (if at the time of such remittance such
amount is with respect to a Closing Date Purchased Asset in respect of which no Escrowed Asset
remains in escrow on such date or a Released Escrowed Asset) by wire transfer of immediately
available funds, an amount equal to such Post-Closing Prepaid Interest Amount to the account
designated in writing by the Purchaser to AIG.



     Section 2.3 Deliveries by Purchaser.



     (a) Without limiting any other provision of this Agreement, at the Closing, Purchaser is
delivering the following to AIG and Sellers, as applicable:




     (i) the payment of the Estimated Closing Date Purchased Assets Purchase Price by wire
transfer of immediately available funds in such amount to such account(s) designated to
Purchaser by AIG;




     (ii) counterparts of each of the Ancillary Agreements duly executed by the Purchaser or
its applicable Affiliates and, in respect of the Escrow Agreement, duly executed by the
Escrow Agent and the Custodian; and



20









 






     (iii) a secretary’s certificate of Purchaser, in substantially the form attached as
Exhibit 2.3(a)(iii) hereto, that is dated as of the Closing Date and has been
executed by the secretary or an assistant secretary of Purchaser.



     (b) Without limiting any other provision of this Agreement, at the Closing, Purchaser is
delivering the payment of the Estimated Escrowed Assets Purchase Price by wire transfer of
immediately available funds in such amount to the Purchase Price Escrow Account to be held for the
benefit of AIG and released by the Escrow Agent in accordance with the terms of the Escrow
Agreement.



ARTICLE III




REPRESENTATIONS AND WARRANTIES OF AIG ON BEHALF OF SELLERS




     Except as set forth in the corresponding sections or subsections of the disclosure schedule
delivered to Purchaser by AIG prior to entering into this Agreement (the “AIG Disclosure
Schedule”), AIG, on behalf of each Seller and as to (i) the Purchased Assets other than the
Transferred Intellectual Property, (ii) solely as referenced in Section 3.2 and Section
3.12, the Transferred Intellectual Property, and (iii) the Assumed Liabilities each Seller is
transferring to Purchaser hereunder, hereby represents and warrants to Purchaser on and as of the
date hereof, as follows:



     Section 3.1 Organization and Authority of Sellers. Each Seller is a corporation duly
incorporated, validly existing and in good standing under the Laws of the jurisdiction of its
incorporation. Each Seller is a corporation duly qualified or licensed as a foreign corporation
and is in good standing in each jurisdiction in which its right, title or interest in or to any
Purchased Assets makes such qualification necessary, except where the failure to be so duly
qualified or licensed would not have a Material Adverse Effect. Each Seller has all requisite
corporate power to enter into, consummate the transactions contemplated by, and carry out its
respective obligations under, each of the Transaction Documents to which it is a party. The
execution and delivery by each Seller of the Transaction Documents to which such Seller is a party
(or the applicable Affiliate of the Seller of each of the Transaction Documents to which the Seller
or the applicable Affiliate of the Seller is a party) and the consummation by such Seller (or the
applicable Affiliate of such Seller) of the transactions contemplated by, and the performance by
such Seller (or the applicable Affiliate of such Seller) of its respective obligations under, the
Transaction Documents have been duly authorized by all requisite action on the part of such Seller
(or the applicable Affiliate of such Seller). Upon their execution and delivery the Transaction
Documents will be, duly executed and delivered by each Seller to the extent a party thereto.
Assuming due authorization, execution and delivery by the other parties thereto, and upon execution
and delivery thereof, the Transaction Documents will constitute, the legal, valid and binding
obligation of each Seller to the extent a party thereto (or the applicable Affiliate of the Seller
of the Transaction Documents to which the applicable Affiliate of the Seller is a party),
enforceable against such Seller (or the applicable Affiliate of such Seller) in accordance with
their terms, subject to the effect of any applicable bankruptcy, reorganization, insolvency,
moratorium, rehabilitation, liquidation, fraudulent conveyance, preferential transfer or similar
Laws now or hereafter in effect relating to or affecting creditors’ rights and remedies generally
and subject, as to enforceability, to the effect of general equitable principles (regardless of



21









 







whether enforcement is sought in a proceeding in equity or at law) (the “Enforceability
Exceptions”).



     Section 3.2 No Violation; Consents. The execution and delivery by each Seller of
each Transaction Document to which such Seller is or will be a party (or by the applicable
Affiliate of the Seller of each of the Transaction Documents to which such Affiliate of the Seller
is a party), and the consummation by such Seller (or the applicable Affiliate of such Seller) of
all of the transactions contemplated hereby and thereby, including, without limitation, the sale
and assignment of the Purchased Assets, including the Transferred Intellectual Property of such
Seller by such Seller to Purchaser and the assumption of the Assumed Liabilities by Purchaser:



     (a) do not violate any provision of such Seller’s Organizational Documents;



     (b) except as may result from any facts or circumstances solely relating to the identity or
regulatory status of Purchaser or its Affiliates and except as set forth on Schedule 3.2(b)
hereto, do not require any consent, approval, license, permit, order, qualification, authorization
of, or registration or other action by, or any filing with or notification to, any Governmental
Authority (including, without limitation, any party to a Loan Document) (each, a “Governmental
Approval”), to be obtained or made by the Sellers, except for any Governmental Approvals the
failure to obtain or make which, individually or in the aggregate, would not have a Material
Adverse Effect; and



     (c) except as set forth on Schedule 3.2(c), do not violate or conflict with, or result
in a breach or termination of any provision of, or constitute a default under, or accelerate or
permit the acceleration of the performance required by the terms of, or result in the creation of
any Lien other than a Permitted Lien upon any of the Purchased Assets, including the Transferred
Intellectual Property of each Seller under, (i) any contract, license, permit, agreement or
instrument to which such Seller is a party or by which such Seller or any of the Purchased Assets,
including the Transferred Intellectual Property of such Seller is bound or (ii) any applicable
Governmental Order or Law to which such Seller is a party or by which such Seller or any of the
Purchased Assets, including the Transferred Intellectual Property of such Seller is bound, except,
in the case of either clause (i) or (ii), for any such violation, conflict, breach, termination,
default or acceleration which (A) is applicable solely as a result of (I) any act or omission by
Purchaser or any of its Affiliates or (II) the status of any fact, event or circumstance pertaining
to Purchaser or any of its Affiliates but not to any Seller or any of its Affiliates or (B) would
not have a Material Adverse Effect.



     Section 3.3 Litigation. Except as set forth on Schedule 3.3 hereto, as of
the date of this Agreement there are no Actions of any kind or nature pending or, to the Knowledge
of each Seller, threatened in writing by any Person against such Seller relating to the Purchased
Assets and the Assumed Liabilities.



     Section 3.4 Title to Purchased Assets. Except for the Transferred Intellectual
Property which is the subject of Section 3.12, and except as set forth on Schedule
3.4 hereto, each Seller has good title to or a valid right to possess those Purchased Assets
not held as Loan Collateral of such Seller, free and clear of all Liens, other than (a) any Liens
arising as a result of the Transaction Documents and (b) Permitted Liens.



22









 





     Section 3.5 Security Interest. Except as set forth on Schedule 3.5, each
Seller has a validly created, existing and perfected security interest in the Loan Collateral
pledged, assigned, mortgaged, delivered or transferred as security under such Seller’s Loan
Security Documents.



     Section 3.6 Loans; Loan Documents. With respect to each Loan made by a Seller:



     (a) except as set forth on Schedule 3.6(a), such Loan arose from a bona fide
transaction in the Ordinary Course of Business;



     (b) a copy of each written Loan Document relating to such Loan has been made available to
Purchaser;



     (c) to the extent a Loan Document is evidenced via a photocopy, scanned copy in portable
document format (“pdf”), facsimile or other copy delivered via electronic means and not an original
executed instrument or document, such copy or copies (i) are maintained in the Loan File or
Escrowed Asset Non-Legal Loan File for such Loan, (ii) are true, complete and correct copies of the
original instruments or documents as executed by the Borrower, and (iii) have not been superseded,
replaced or modified by any other writing, except for any such amendment, modification, extension,
renewal or confirmation of such Loan Document as maintained in the applicable Loan File or Escrowed
Asset Non-Legal Loan File, as the case may be;



     (d) each Loan File and Escrowed Asset Non-Legal Loan File delivered at the Closing Date or the
applicable Escrowed Asset Release Date, as the case may be, contains all correspondence or other
communication, documents, files or other books and records that Sellers reasonably believe are
material to the origination, servicing or renewal of such Loan; provided, that the
Purchaser acknowledges and agrees that each Escrowed Asset Non-Legal Loan File does not include the
applicable Escrowed Assets which would otherwise be included therein;



     (e) except as set forth in Schedule 3.6(e)(x), to the Knowledge of Sellers, each
outstanding Loan constitutes the legal, valid and binding obligation of the Obligor named therein,
enforceable in accordance with its terms, except to the extent such enforceability may be limited
by the Enforceability Exceptions. Except as otherwise set forth in Schedule 3.6(e)(y), no
Obligor named in any Loan has provided notice (whether written or, to the Knowledge of Sellers,
oral) to any Seller that such Obligor intends to attempt to avoid the enforceability of any term of
any Loan under any such Enforceability Exceptions or for any other reason, and no Loan is subject
to any valid defense, set off or counterclaim that has been asserted (whether written or, to the
Knowledge of Sellers, oral) with respect to such Loan;



     (f) except as set forth in Schedule 3.6(f), to the Knowledge of Sellers, the forms of
documentation used by Sellers for the origination of Loans contain provisions enforceable against
the Obligor (subject to the Enforceability Exceptions) such that the rights and remedies of the
holder thereof pursuant to such provisions create a valid, binding and enforceable obligation in
accordance with the express terms of the Loans (subject to the Enforceability Exceptions); and



     (g) except as set forth on Schedule 3.6(g), such Seller is not in material breach of
or material default under any Loan Document relating to such Loan and to the Knowledge of the
applicable Seller, no other party to any Loan Document relating to such Loan is as of the date



23









 







hereof in material breach of or material default under any such Loan Document. Solely for
purposes of this Section 3.6(g), a Loan will only be deemed to be in material breach or
material default if (i) a Seller has received written notice of a breach or material default by
such Seller under a Loan Document relating to such Loan, (ii) any payment in respect of such Loan
is more than sixty (60) days past due, (iii) any Obligor thereto has failed to satisfy any other
material obligation in respect thereof (including remedying of any Loan Collateral deficiency in
respect thereof) for more than sixty (60) days or (iv) the applicable Seller has otherwise
exercised any remedies with respect to such Loan and the Loan Collateral securing such Loan is
insufficient to satisfy principal and other amounts due and payable to the applicable Seller.



     Section 3.7 Compliance With Law.



     (a) Except as set forth on Schedule 3.7(a), the Loans have been originated and
serviced since June 30, 2006 in material compliance with all Laws applicable to the origination or
servicing of the Loans (collectively, “Origination and Servicing Laws”), except where the
failure to be in such material compliance would not result in the failure of any of the Loans to be
valid, binding and enforceable in accordance with its express terms (subject to the Enforceability
Exceptions).



     (b) No Seller has received any notice, whether written or, to the Knowledge of each Seller,
oral, involving any matters that are unresolved as of the date hereof from any Governmental
Authority regarding any actual or alleged failure of the origination or servicing of the Loans to
be in material compliance with any Origination and Servicing Law and where such actual or alleged
failure of the origination or servicing of the Loans to be in such material compliance would result
in the failure of any of the Loans to be valid, binding and enforceable obligations in accordance
with its express terms (subject to the Enforceability Exceptions).



     (c) Since June 30, 2006 there exist no facts or circumstances relating to Sellers’ compliance
with all requirements for licenses, permits, exemptions, consents, waivers, authorizations, rights,
franchises, orders, approvals, and registrations imposed by any Governmental Authority that would
result in any of the Loans failing to be valid, binding and enforceable obligations in accordance
with its express terms (subject to the Enforceability Exceptions).



     Section 3.8 Employees. Schedule 3.8 hereto lists certain employees of
Sellers who, as of the date of this Agreement, have employment duties primarily related to the life
insurance premium finance business of such Seller and to whom Purchaser (or one of its Affiliates)
shall offer employment as of the Closing Date pursuant to Section 6.7 hereof, and
indicating the date of employment, current title and compensation, and date of employment with
either Seller or any Affiliate of either Seller or AIG. Each such employee set forth on
Schedule 3.8 hereto is referred to herein individually as a “Specified A.I. Credit
Employee” and collectively, as the “Specified A.I. Credit Employees.”



24









 





     Section 3.9 Related Party Transactions. Except as set forth in Schedule 3.9
hereto, and except for any Loan made to purchase a Policy or Annuity issued by any Affiliate of
either Seller, none of the Sellers’ Related Parties, directly or indirectly:



     (a) is involved in any business arrangement or relationship with either Seller with respect to
the origination or servicing of the Loans, other than employment arrangements entered into in the
Ordinary Course of Business;



     (b) is a party, in respect of the origination or servicing of the Loans, to any contract
currently in effect with either Seller; or



     (c) provides services or resources in respect of the origination or servicing of the Loans to
either Seller.



     Section 3.10 Change in Business Relationships. Except as set forth in Schedule
3.10, no Seller has received notice (whether written or, to Sellers’ Knowledge, oral) (a) that
any customer, agent, broker or business referral sources of either Seller material to the Purchased
Assets intends to discontinue or materially diminish the business it does with Sellers, or (b) that
any Specified A.I. Credit Employee set forth on Schedule 3.10 hereof of either Seller
intends to terminate or materially alter the terms of his or her employment other than on the
Closing Date in accordance with the terms of this Agreement with respect to such Specified A.I.
Credit Employees. Except as set forth in Schedule 3.10, to the Knowledge of Sellers, there
are no complaints or disputes (in each case set forth in writing) with any Specified A.I. Credit
Employee or any customer, agent, broker or business referral source that have not been resolved
which are reasonably likely to be material to the Purchased Assets.



     Section 3.11 Employee Benefits.



     (a) Schedule 3.11(a) hereto sets forth a list of all material (i) “employee benefit
plans,” as defined in Section 3(3) of ERISA, and (ii) incentive, profit sharing, stock option,
stock purchase, other equity based, employment, consulting, compensation, vacation or other leave,
change in control, retention, supplemental retirement, severance, health, medical, disability, life
insurance, deferred compensation and other employee compensation and benefit plans, programs,
policies, agreements, arrangements and practices, in each case for the benefit of any Specified
A.I. Credit Employee as of the date hereof (collectively, the “Benefit Plans”). Summaries
of all such Benefit Plans have been provided or made available to Purchaser.



     (b) All contributions required to be made by the Sellers under the terms of any Benefit Plan
have been timely made when due.



     Section 3.12 Transferred Intellectual Property.



     (a) Transferred System Intellectual Property. To the Knowledge of Sellers, as of the
date hereof Sellers are the sole and exclusive owners of the Transferred System Intellectual
Property, free and clear of all Liens, other than Permitted Liens. Since January 1, 2005, neither
Seller has received any written notice from a third party alleging that the Transferred System
Intellectual Property infringes or violates any Intellectual Property rights of such third party.



25









 





     (b) Transferred Life Business Intellectual Property. As of the date hereof Sellers
are the sole and exclusive owners of the Transferred Life Business Intellectual Property, free and
clear of all Liens, other than Permitted Liens. Other than (i) the Parent Names and Marks, (ii)
third party software including open source software and (iii) know-how as may be retained by any
Specified A.I. Credit Employees who do not become Transferred Employees or any other employee of
either Seller, AIG or any of their respective Affiliates, the Transferred Life Business
Intellectual Property includes all material Intellectual Property used predominantly in connection
with originating and servicing the Loans as currently conducted by Sellers. To the Knowledge of
Sellers, there is no unauthorized use, infringement or misappropriation of the Transferred Life
Business Intellectual Property. Since January 1, 2005, neither Seller has received any written
notice from a third party alleging that the Transferred Life Business Intellectual Property
infringes or violates any Intellectual Property rights of such third party.



     (c) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 3.12 AND SECTION 3.2, THE
TRANSFERRED INTELLECTUAL PROPERTY IS BEING TRANSFERRED TO PURCHASER “AS IS”, “WHERE IS” AND “WITH
ALL FAULTS”, WITHOUT WARRANTY OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.



     Section 3.13 OFAC. To the Knowledge of Sellers, as of July 21, 2009, no Obligor
under any Closing Date Purchased Asset or Escrowed Asset is a person or entity with whom Persons
subject to United States jurisdiction are restricted from doing business under regulations of OFAC
of the U.S. Department of Treasury (including those named on OFAC’s List of Specially Designated
Nationals and Blocked Persons, as amended from time to time, and those with whom business is
prohibited or restricted under country sanction programs, such as the Cuban Asset Control
Regulations) or pursuant to any Law, including, without limitation, the September 24, 2001
Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit or Support Terrorism. Since June 30, 2006, in accordance with Sellers practices and
procedures in effect at the applicable time, Sellers have performed periodic checks of OFAC’s List
of Specially Designated Nationals and Blocked Persons with respect to each Obligor under each
Closing Date Purchased Asset and Escrowed Asset.



     Section 3.14 Broker’s and Advisor’s Fees. Sellers do not have any liability or
obligations under any arrangement entered into by or on behalf of Sellers or any of their
respective Affiliates to pay any fees or commissions to any broker, finder or advisor with respect
to the consummation of the transactions contemplated by this Agreement for which Purchaser would be
liable.



     Section 3.15 No Bankruptcy Event. As of the date hereof, none of AIG or Sellers
expects to undertake or effect within the next ninety (90) days a voluntary Bankruptcy Event.



     Section 3.16 Disclaimer. Except for the representations and warranties contained in
this Article III, and solely with respect to AIG, Section 7.9, none of AIG, the
Sellers or any of their respective Affiliates or their respective Representatives makes any other
representation or warranty of any kind or nature whatsoever, oral or written, express or implied,
with respect to AIG, the Sellers, their respective Affiliates, the Purchased Assets, the Assumed
Liabilities, the Transaction Documents or the transactions contemplated by the Transaction
Documents,




26












 




including any relating to the financial condition, performance, results of operations, or assets or
liabilities of any of the foregoing. Except for the representations and warranties contained in
this Article III (and solely with respect to AIG, Section 7.9), (i) each of AIG and
the Sellers disclaim, on behalf of itself, their respective Affiliates and their respective
Representatives, any other representations or warranties, whether made by AIG, the Sellers or any
of their respective Affiliates or their respective Representatives or any other Person, and (ii)
each of AIG and the Sellers disclaim, on behalf of itself, their respective Affiliates and their
respective Representatives, all liability and responsibility for any other representation,
warranty, opinion, projection, forecast, advice, statement or information made, communicated or
furnished (orally or in writing) to the Purchaser or its Affiliates or Representatives (including
any opinion, projection, forecast, advice, statement or information that may have been or may be
provided to the Purchaser or its Affiliates or Representatives by any Representative of AIG, the
Sellers or any of their respective Affiliates). For the avoidance of doubt, none of AIG, the
Sellers or their respective Affiliates or their respective Representatives makes any
representations or warranties to the Purchaser or any other Person regarding the performance or
profitability of the Purchased Assets (whether before or after Closing).




ARTICLE IV




REPRESENTATIONS AND WARRANTIES OF PURCHASER




     Except as set forth in the corresponding sections or subsections of the disclosure schedule
delivered by the Purchaser prior to entering into this Agreement (the “Purchaser Disclosure
Schedule”), it being agreed that disclosure of any item in any section or subsection of the
Purchaser Disclosure Schedule shall be deemed disclosure with respect to any other section or
subsection to which the relevance of such item is readily apparent on the face of such disclosure,
the Purchaser hereby represents and warrants to AIG as of the date hereof as follows:



     Section 4.1 Organization and Authority of Purchaser. The Purchaser is a corporation
duly incorporated, validly existing and in good standing under the Laws of the jurisdiction of its
incorporation. The Purchaser has all requisite corporate power to enter into, consummate the
transactions contemplated by, and carry out its obligations under, the Transaction Documents. The
execution and delivery by the Purchaser of the Transaction Documents and the consummation by the
Purchaser of the transactions contemplated by, and the performance by the Purchaser of its
obligations under, the Transaction Documents have been duly authorized by all requisite action on
the part of the Purchaser. This Agreement has been, and upon execution and delivery the other
Transaction Documents will be, duly executed and delivered by the Purchaser. Assuming due
authorization, execution and delivery by AIG or the Sellers (as applicable), this Agreement
constitutes, and upon execution and delivery thereof, the other Transaction Documents will
constitute, the legal, valid and binding obligation of the Purchaser, enforceable against it in
accordance with its terms, subject to the Enforceability Exceptions.



     Section 4.2 No Violation; Consents. The execution and delivery by Purchaser of this
Agreement and each other Transaction Document to which Purchaser is or will be a party, and the
consummation by Purchaser of all of the transactions contemplated hereby and thereby, including,
without limitation, the purchase and acceptance of the Purchased Assets by Purchaser



27









 







from Sellers, the assumption of the Assumed Liabilities by Purchaser and the making of loans,
including with respect to commitments outstanding but unfunded as of the Closing Date:



     (a) do not violate any provision of Purchaser’s Organizational Documents;



     (b) except as set forth on Schedule 4.2(b) hereto, do not require any consent,
approval, license, permit, order, qualification, authorization of, or registration or other action
by, or any filing with or notification to, any Governmental Authority, to be obtained or made by
the Purchaser or its Affiliates, except where the failure to obtain any such consent, approval,
license, permit, order, qualification, authorization of, or registration or other action would not
be reasonably likely to have a Purchaser Material Adverse Effect; and



     (c) do not with or without the giving of notice or the passage of time or both, violate or
conflict with, or result in a breach or termination of any provision of, or constitute a default
under, or accelerate or permit the acceleration of the performance required by the terms of (i) any
contract, license, permit, note, bond, loan or credit agreement, mortgage or indenture or other
agreement or instrument to which Purchaser is a party or by which Purchaser or any of its assets or
properties is bound or (ii) any applicable Governmental Order or Law to which Purchaser is a party
or by which Purchaser or any of Purchaser’s assets or properties is bound, except, in the case of
either clause (i) or (ii), for any such violation, conflict, breach, termination, default,
acceleration which (A) is applicable solely as a result of (I) any act or omission by any AIG or
any of its Affiliates or (II) the status of any fact, event or circumstance pertaining to AIG or
any of its Affiliates but not to Purchaser or any of its Affiliates or (B) does not have a
Purchaser Material Adverse Effect.



     Section 4.3 Governmental Licenses and Permits.



     (a) Purchaser holds all governmental qualifications, registrations, filings, licenses,
permits, approvals or authorizations necessary or appropriate for the consummation by Purchaser of
the transactions contemplated by, and the performance by the Purchaser of its obligations under,
the Transaction Documents, including without limitation taking title to and holding the Loans and
the Purchased Assets, assuming the Assumed Liabilities (collectively, the “Purchaser
Permits”) and the making of loans, including with respect to commitments outstanding but
unfunded as of the Closing Date.



     (b) All Purchaser Permits are valid and in full force and effect. Purchaser is not the
subject of any pending or, to the Knowledge of Purchaser, threatened Action seeking the revocation,
suspension, termination, modification or impairment of any Purchaser Permit.



     Section 4.4 Litigation. There are no Actions pending or, to the Knowledge of
Purchaser, threatened in writing by any Person against Purchaser or its Affiliates or any of their
respective assets, properties or businesses (i) that question the legality of the transactions
contemplated by any of the Transaction Documents or (ii) that would reasonably be expected to have
a Purchaser Material Adverse Effect.



     Section 4.5 Broker’s and Advisor’s Fees. None of Purchaser or any of its Affiliates
has any liability or obligation under any arrangement entered into by or on behalf of Purchaser or
any of its Affiliates to pay any fees or commissions to any broker, finder or advisor with respect



28









 







to the transactions contemplated by this Agreement for which any of AIG or any Seller could be
liable.



     Section 4.6 Securities Matters. The Loans are being acquired by the Purchaser for
its own account and without a view to the public distribution or sale of the Loans or any interest
in them. The Purchaser has sufficient knowledge and experience in financial and business matters
so as to be capable of evaluating the merits and risks of its investment in the Loans, and the
Purchaser is capable of bearing the economic risks of such investment, including a complete loss of
its investment in the Loans. The Purchaser understands and agrees that it may not sell, transfer,
assign, pledge or otherwise dispose of any of the Loans other than pursuant to a registered
offering in compliance with, or in a transaction exempt from, the registration requirements of the
Securities Act and applicable state and foreign securities Laws.



     Section 4.7 Renewal of Loans. Purchaser intends that following the Closing Date,
Purchaser shall fund, on the same terms and at the then existing interest rate spread above LIBOR
or any other benchmark, as applicable in respect of such Loan, each renewal (whether in the form of
a new loan or a renewal of an existing loan) of any Loan included in the Purchased Assets or the
Escrowed Assets so long as (a) the funding of each such renewal meets Purchaser’s underwriting
standards in effect at the time such Loan is up for renewal, which standards may be changed from
time to time by Purchaser in its sole discretion and (b) there has been no adverse change, as
determined by Purchaser in its sole discretion, in the value of such Loan or the creditworthiness
of the applicable Borrower.



     Section 4.8 Compliance with Law.



     (a) The Purchaser and its Affiliates are not, and have not been, in violation of any Laws or
Governmental Orders applicable to them or their respective assets, properties or businesses
(including any Laws regulating the insurance premium financing business), except for violations
that, individually or in the aggregate, would not reasonably be expected to have a Purchaser
Material Adverse Effect.



     (b) Neither the Purchaser nor its Affiliates, nor any of their respective properties or
assets, is subject to any outstanding Governmental Order, except for those Governmental Orders
that, individually or in the aggregate, would not reasonably be expected to have a Purchaser
Material Adverse Effect.



     Section 4.9 Investigation. The Purchaser acknowledges and agrees that it (i) has
made its own inquiry and investigation into, and, based thereon, has formed an independent judgment
concerning, the Purchased Assets and the Assumed Liabilities and (ii) has been furnished with or
given adequate access to such information about the Purchased Assets and the Assumed Liabilities as
it has requested.



     Section 4.10 Disclaimer. Except for the representations and warranties contained in
this Article IV, neither the Purchaser nor any of its Affiliates or their respective
Representatives makes any other representation or warranty of any kind or nature whatsoever, oral
or written, express or implied, with respect to itself, its Affiliates, their respective
businesses, the Transaction Documents or the transactions contemplated by the Transaction
Documents. Except



29









 







for the representations and warranties contained in this Article IV, (i) the Purchaser
disclaims, on behalf of itself, its Affiliates and their respective Representatives, any other
representations or warranties, whether made by the Purchaser or any of its Affiliates or their
respective Representatives or any other Person, and (ii) the Purchaser disclaims, on behalf of
itself, its Affiliates and their respective Representatives, all liability and responsibility for
any other representation, warranty, opinion, projection, forecast, advice, statement or information
made, communicated or furnished (orally or in writing) to AIG or its Affiliates or their respective
Representatives (including any opinion, projection, forecast, advice, statement or information that
may have been or may be provided to AIG or its Affiliates or Representatives by any Representative
of the Purchaser or any of its Affiliates).



ARTICLE V




INTELLECTUAL PROPERTY AND CONFIDENTIALITY




     Section 5.1 AIG Intellectual Property; Trade Names and Trademarks.



     (a) The Purchaser, for itself and its Affiliates, acknowledges and agrees that, except for the
Transferred Intellectual Property or as set forth in the Transition Services Agreement, the
Purchaser is not purchasing, acquiring or otherwise obtaining any right, title or interest in and
to any Intellectual Property owned or licensed by AIG, the Sellers or their respective Affiliates,
including the names “AIG” or “American International Group, Inc.” or “AI”, or any trade, corporate
or business names, trademarks, tag lines, identifying logos, trade dress, monograms, slogans,
service marks, domain names or brand names or any other name or source identifiers related thereto
or employing the wording “AIG” or any “AI formative marks”, “American International-formative
marks”, or any derivation or variation of the foregoing (for example, among others, AI, AI RISK,
AIA, AIU, A.I. Credit as well as American International, American International Group, American
International Underwriters, American International Assurance) or any confusingly similar trade
name, corporate or business name, trademark, tag-line, identifying logo, trade dress, monogram,
slogan, service mark, domain name or brand name or other name or source identifier (including all
registrations and applications relating thereto) (collectively, the “Parent Names and
Marks”), and, except as otherwise expressly provided in the Transition Services Agreement,
neither the Purchaser nor any of its Affiliates shall have any rights in or to the Parent Names and
Marks and neither the Purchaser nor any of its Affiliates shall (i) seek to register in any
jurisdiction any trade, corporate or business name, trademark, tag-line, identifying logo, trade
dress, monogram, slogan, service mark, domain name, brand name or other name or source identifier
that is a derivation, translation, adaptation, combination or variation of the Parent Names and
Marks or that is confusingly similar thereto, (ii) contest the use, ownership, validity or
enforceability of any rights of AIG or any of its Affiliates in or to any of the Parent Names and
Marks, or (iii) for the avoidance of doubt have any right or license to use the Parent Names and
Marks in connection with the Purchased Assets or Assumed Liabilities.



     (b) The Purchaser agrees that, except as otherwise provided in this Section 5.1 or any
Ancillary Agreement, following the Closing Date, the Purchaser and its Affiliates shall not use any
of the Intellectual Property owned or licensed by AIG, the Sellers or their respective Affiliates,
including the Parent Names and Marks, whether or not in combination with other words, symbols or
other distinctive or non-distinctive elements and all trade, corporate or



30









 







business names, trademarks, tag-lines, identifying logos, trade dress, monograms, slogans,
service marks, domain names or brand names and other name or source identifiers similar to any of
the foregoing or embodying any of the foregoing whether or not in combination with other words,
symbols or other distinctive or non-distinctive elements. The Purchaser, for itself and its
Affiliates, agrees that after the Closing Date the Purchaser and its Affiliates will not expressly,
or by implication, do business as or represent themselves as AIG, the Sellers or their Affiliates,
and shall use reasonable efforts to ensure that there is no confusion that the Purchaser and its
Affiliates are not affiliated with AIG, Sellers or their Affiliates.



     (c) The Purchaser, on behalf of itself and its Affiliates, agrees that irreparable damage
would occur if this Section 5.1 were not performed in accordance with its specific terms or
were otherwise breached. It is accordingly agreed that, without the necessity of posting bond or
other undertaking, AIG or any of its Affiliates (or their respective successors or assigns) shall
be entitled to proceed against the Purchaser and its Affiliates in law and/or in equity for such
damages or other relief as a court may deem appropriate and shall be entitled to seek a temporary
restraining order and/or preliminary and final injunctive or other equitable relief, including
specific performance, to prevent breaches of this Section 5.1 and, in addition to any other
remedy to which they are entitled at law or in equity, to enforce specifically the terms and
provisions of this Section 5.1. In the event that any Action is brought in equity to
enforce the provisions of this Section 5.1, no party will allege, and each party hereby
waives the defense or counterclaim, that there is an adequate remedy at law.



     (d) AIG, on behalf of itself, each of the Sellers and each of their respective Affiliates
hereby acknowledges and agrees that as of the delivery of the Transferred Intellectual Property to
Purchaser, Purchaser and its Affiliates shall own the Transferred Intellectual Property, have the
right to create Improvements of the Transferred Intellectual Property, and to own all right, title
and interest in and to such Improvements. In connection therewith, Purchaser may sell, transfer,
license or assign its interests in the Transferred Intellectual Property or any such Improvements.
The Purchaser, and its respective Affiliates, and their successors and assigns shall be solely
responsible for and shall indemnify, defend and hold harmless AIG, each Seller and their respective
Affiliates for any and all Losses caused by or related to any uses, appropriations, sales,
transfers, licenses or assignments of the Transferred Intellectual Property or any Improvements
thereof made after the date hereof; provided, that if and to the extent that any such Loss by AIG,
Sellers or their Affiliates in respect of the Transferred Intellectual Property is caused by the
breach of any representation or warranty made by AIG on behalf of Sellers in Sections
3.12(a) or (b), indemnification for such Loss shall be governed by Article VII
hereof.



     (e) The Purchaser for itself and its Affiliates each hereby acknowledge and agree that as of
the Closing, AIG, each of the Sellers and each of their respective Affiliates, shall retain
ownership of the L3 System, have the right to create Improvements of the L3 System, and to own all
right, title and interest in and to such Improvements. In connection therewith, AIG, Sellers or
their Affiliates may sell, transfer, license or assign their interests in the L3 System or any such
Improvements. AIG, on behalf of itself, Sellers and each of their respective Affiliates, shall be
solely responsible for and shall indemnify, defend and hold harmless the Purchaser and its
Affiliates for any and all Losses caused by or related to any uses, appropriations, sales,
transfers, licenses or assignments of the L3 System (but, for the avoidance of doubt, not the
Transferred System Intellectual Property) and any Improvements thereof made after the Closing.



31









 





     (f) For the avoidance of doubt, as between the parties, Improvements (to the Transferred
System Intellectual Property in the case of Purchaser, and to the L3 System in the case of the AIG,
Sellers and their Affiliates) made after the delivery of the Transferred System Intellectual
Property to Purchaser, and all Intellectual Property rights therein shall be owned by the party
making such Improvement. No rights are granted hereunder to either party to any Improvements made
by, or on behalf of, the other party or any Intellectual Property rights therein to the extent such
Improvement was made after the date hereof. The parties shall have no obligation to disclose
Improvements to each other.



     Section 5.2 Confidentiality.



     (a) The terms of the confidentiality agreement, dated January 22, 2009 (the
“Confidentiality Agreement”), between Purchaser and AIG are incorporated into this
Agreement by reference and shall continue in full force and effect until the Closing, at which time
the confidentiality obligations under the Confidentiality Agreement shall terminate and be
superseded by the obligations set forth in this Section 5.2. If, for any reason, the
transactions contemplated by this Agreement are not consummated, the Confidentiality Agreement
shall nonetheless continue in full force and effect in accordance with its terms.



     (b) From and after the Closing, AIG shall (and shall cause Sellers, each of their respective
Affiliates and each of their respective Representatives) on the one hand, and the Purchaser and its
Affiliates shall, and shall cause their respective Representatives, on the other hand, to,
maintain in strict confidence any written, oral or other information relating to or obtained from
the other party or its Affiliates, except that the foregoing requirements of this Section
5.2(b) shall not apply to the extent that (i) any such information is or becomes generally
available to the public other than (A) in the case of the Purchaser, as a result of disclosure by
AIG, Sellers, their respective Affiliates or any of their respective Representatives and (B) in the
case of AIG or Sellers, as a result of disclosure by the Purchaser or any of its respective
Affiliates, or any of its respective Representatives, (ii) any such information is required by
applicable Law, Governmental Order or a Governmental Authority to be disclosed after prior notice
has been given to the other party (including any report, statement, testimony or other submission
to such Governmental Authority), (iii) any such information is or is required to be disclosed by
Sellers or the Purchaser to the Federal Reserve Bank of New York (or the Federal Reserve Bank of
Chicago, in the case of the Purchaser), the U.S. Department of Treasury, the Board of Governors of
the United States Federal Reserve System, the Federal Deposit Insurance Corporation, state
insurance, banking, consumer finance or other applicable regulatory bodies or any of their
respective officers, employees, agents or representatives, (iv) any such information is reasonably
necessary to be disclosed in connection with any Action or in any dispute with respect to the
Transaction Documents (including in response to any summons, subpoena or other legal process or
formal or informal investigative demand issued to the disclosing party in the course of any
litigation, investigation or administrative proceeding), (v) information relating solely to the
Transferred System Intellectual Property or any Improvements thereto is necessary to be disclosed
in the event that Purchaser sells, transfers, licenses or assigns its interest in the Transferred
System Intellectual Property or any Improvements thereto as permitted by Section 5.1(d),
(vi) information relating solely to the L3 System or any Improvements thereto is necessary to be
disclosed in the event that AIG, Sellers or their Affiliates sell, transfer, license or assign
their interest in the L3 System or any Improvements thereto as permitted by Section



32









 







5.1(e), (vii) any such information was or becomes available to such party on a non
confidential basis and from a source (other than a party to this Agreement or any Affiliate or
Representative of such party) that is not bound by a confidentiality agreement or a fiduciary or
confidentiality obligation with respect to such information or (viii) any such information that
after the Closing becomes known or available pursuant to or as a result of the carrying out of the
provisions of an Ancillary Agreement (which information shall be governed by the confidentiality
provisions set forth in such Ancillary Agreement). Each of the parties hereto shall instruct its
Affiliates and Representatives having access to such information of such obligation of
confidentiality.



     (c) Notwithstanding anything in this Agreement to the contrary, the parties acknowledge and
agree that (x) AIG, the Sellers and their respective Affiliates, on the one hand, may share any
information relating to or obtained from the Purchaser and its Affiliates, and Purchaser and its
Affiliates, on the other hand, may share information relating to or obtained from AIG, Sellers or
their respective Affiliates, with (i) the Federal Reserve Bank of New York (or the Federal Reserve
Bank of Chicago, with respect to the Purchaser or its Affiliates), the Board of Governors of the
United States Federal Reserve System, the Federal Deposit Insurance Corporation or the U.S.
Department of the Treasury and their respective Representatives, (ii) any insurance or banking
regulatory authority or (iii) the U.S. Internal Revenue Service or any other tax authority, in each
case as any of AIG, the Sellers or the Purchaser deem necessary or advisable in its good faith
judgment, and (y) the parties hereto may disclose information about the tax treatment and tax
structure of the transactions contemplated by this Agreement (including any facts or materials
relating thereto or reasonably necessary to understand such treatment or structure).



     (d) Without limiting the generality of the foregoing, from and after the Closing, the
Purchaser shall, and shall cause its Affiliates and its and its Affiliates’ Representatives to,
maintain in strict confidence (including establishing and maintaining commercially reasonable and
appropriate measures to prevent a Data Security Breach) all Consumer Information relating to or
obtained from AIG, the Sellers or their respective Affiliates or obtained from Loan Documents, Loan
Files, Escrowed Asset Non-Legal Loan Files, Policies or Annuities. The Purchaser shall instruct
its Affiliates and Representatives having access to such information to observe such obligation of
confidentiality. The Purchaser shall, and shall cause its Affiliates and its Affiliates’
Representatives, to use, maintain, and process Consumer Information in accordance with all
applicable privacy and data protection Laws, including without limitation the Gramm Leach Bliley
Act, the Health Insurance Portability and Accountability Act of 1996, state insurance or banking
privacy Laws, and Laws regulating the use of Social Security and Social Insurance numbers.



ARTICLE VI




COVENANTS OF THE PARTIES




     Section 6.1 Perfection of Security Interest; Further Assurances.



     (a) During the period beginning on the Closing Date and ending on the date that is one hundred
eighty (180) days following the Closing Date, AIG shall cause each Seller to execute and deliver to
Purchaser for delivery by Purchaser to the applicable Insurer, all



33









 







documents and other instruments prepared by Purchaser and delivered to the applicable Seller
for execution by Purchaser, in each case as may reasonably be requested by Purchaser, and take such
further actions as may be reasonably requested by Purchaser to perfect or otherwise record
Purchaser’s title to or other interest in any Policy or Annuity, with respect to which such Seller
has an interest in respect of the Closing Date Purchased Assets and the Escrowed Assets, including
by (i) cooperating with Purchaser in the delivery of the notices to Insurers described in
Section 2.2(a)(iii) and (ii) using its reasonable efforts to obtain a written
acknowledgement from such Insurer that such Insurer has recorded Purchaser as a lienholder on such
Policy or Annuity. During the period beginning on the Reassumption Date and ending on the date
that is one hundred eighty (180) days following the Reassumption Date in respect of any Reassumed
Asset, Purchaser shall execute and deliver to AIG or either Seller for delivery by AIG or either
Seller to the applicable Insurer, all documents and other instruments prepared by AIG or either
Seller and delivered to Purchaser for execution by AIG or either Seller, in each case as may
reasonably be requested by AIG or either Seller, and take such further actions as may be reasonably
requested by AIG or either Seller to perfect or otherwise record AIG’s or either Seller’s title to
or other interest in any Policy or Annuity, with respect to which Purchaser has an interest in
respect of any such Reassumed Asset, including by (i) cooperating with AIG and Sellers in the
delivery of the notices to Insurers described in Section 1.3(b)(vii)(A) and (ii) using its
reasonable efforts to obtain a written acknowledgement from such Insurer that such Insurer has
recorded AIG or such Seller as a lienholder on such Policy or Annuity.



     (b) Without limiting Section 6.1(a) hereof, on and after the Closing Date, Purchaser
shall and AIG shall cause Sellers to execute and deliver (or shall cause to be executed,
acknowledged and delivered) such documents and other instruments and take (or shall cause to be
taken) such further actions as may be reasonably required to (i) assign, transfer and convey to
Purchaser all of Sellers’ right, title and interest in, to and under, the Purchased Assets, (ii)
allow Purchaser to assume each of the Assumed Liabilities and forever absolutely and
unconditionally release and discharge Sellers from any obligation under such Assumed Liabilities
and (iii) otherwise carry out the provisions of this Agreement and give effect to the transactions
contemplated hereby. At and following the Closing as appropriate, Purchaser shall execute and
deliver all instruments, certificates and other documents that may be necessary or otherwise
reasonably appropriate to obtain the Required Consents or to otherwise permit the sale of any
Purchased Asset to Purchaser.



     (c) Following the Closing, AIG shall and shall cause Sellers to and the Purchaser shall (i)
refrain from taking any actions that could reasonably be expected to impair, delay or impede
obtaining any Required Consent, and (ii) subject to the proviso in Section 1.3(b)(ii)
hereof, and not in limitation of any other provision of this Agreement, use their respective
reasonable efforts to cause all Required Consents to be obtained as soon as reasonably practicable.
From time to time following the Closing, AIG shall cause Sellers to and Purchaser shall execute,
acknowledge and deliver (or shall cause to be executed, acknowledged and delivered) all such
further conveyances, notices, assumptions, releases and acquittances and such other instruments,
and shall take (or shall cause to be taken) such further actions, as may be reasonably necessary or
appropriate to assure that Purchaser and its successors or assigns shall have all of the rights,
titles and interests intended to be conveyed to Purchaser under this Agreement and the Transaction
Documents and to assure that the Purchaser shall have assumed the liabilities and obligations
intended to be assumed by Purchaser, including, without limitation,



34









 







the Assumed Liabilities under this Agreement and the Transaction Documents, and to otherwise
make effective the transactions contemplated hereby and thereby.



     Section 6.2 Post-Closing Cooperation.



     (a) Reasonable Access. After the Closing, Purchaser shall afford, and shall cause its
Affiliates to afford, to AIG, each Seller, its Affiliates and its and their Representatives, upon
reasonable notice and during normal business hours and without undue disruption to Purchaser’s
normal business operations, reasonable access to (I) the books and records and similar materials
relating to the Purchased Assets and the Assumed Liabilities (including the Loan Files, the
Escrowed Asset Non-Legal Loan Files and the Loan Documents) and any liability or other obligation
of any Seller or any of its Affiliates not constituting an Assumed Liability, and the right to make
and retain copies thereof, and (II) the employees of Purchaser, including, without limitation, the
Transferred Employees, to the extent that such access may be reasonably required by AIG, any Seller
or any of their respective Affiliates in connection with (i) the preparation of the financial
statements of AIG, any Seller or any of their respective Affiliates and all Tax Returns or in
connection with any audit or proceeding with respect thereto, (ii) the investigation, litigation
and final disposition of any Action which may have been, or may hereafter be made, against AIG, any
Seller or any of their respective Affiliates or may otherwise affect AIG, any Seller or any of
their respective Affiliates, including, without limitation, making any Transferred Employee
available to reasonably assist in the defense or prosecution of any such Action and to complete and
to execute any affidavit, instrument, certification or other document necessary or convenient in
connection therewith or to submit written or oral testimony in connection therewith whether or not
such Action relates to a Purchased Asset or otherwise or (iii) the satisfaction by AIG, any Seller
or any of their respective Affiliates of any liability or other obligation that is not an Assumed
Liability.



     (b) Books and Records.




     (i) AIG, Sellers and their respective Affiliates shall have the right to retain copies
of all books, data, files, information and records in any media (including, for the
avoidance of doubt, tax returns and other information and documents relating to tax matters)
of each of the Sellers and their respective businesses with respect to the Purchased Assets
and Assumed Liabilities (collectively, the “Books and Records”) relating to periods
ending on or prior to the Closing Date (i) relating to information (including employment and
medical records) regarding the Specified A.I. Credit Employees, (ii) as required by any
legal or regulatory authority, including but not limited to, any applicable Law, rule,
regulation, statute, order, judgment, ruling, or regulatory request or (iii) as may be
necessary for AIG, Sellers or their respective Affiliates to perform their obligations
pursuant to this Agreement and the Transaction Documents, in each case subject to compliance
with all applicable privacy Laws. Purchaser agrees that, with respect to all original Books
and Records existing as of the Closing Date, it will (and will cause each of its Affiliates
to) (a) comply in all material respects with all applicable Laws, including the Code,
relating to the preservation and retention of records and (b) apply preservation and
retention policies that are no less stringent than those generally applied by Purchaser. In
addition, Purchaser shall preserve all original Books and Records existing as of the Closing
Date as required by the Code and for at least three (3)



35









 






years after the Closing Date and thereafter may dispose of such Books and Records only
after it shall have given AIG and Sellers ninety (90) days’ prior written notice of such
disposition and the opportunity (at AIG or Seller’s expense) to remove and retain such
information.




     (ii) Purchaser further agrees to retain and preserve all documents subject to a
Document Retention Hold, until the earlier of (1) such time as AIG or the applicable Seller
notifies Purchaser in writing that such documents may be destroyed or (2) five (5) years
after the Closing Date (unless AIG or the applicable Seller notifies the Purchaser prior to
the end of such five (5) year period that such documents must continue to be maintained for
a reasonable additional period to be specified by AIG or the applicable Seller, as the case
may be); provided, that Purchaser shall give AIG and the applicable Seller ninety
(90) days’ prior written notice of its intent to destroy such documents and the opportunity
to specify a reasonable longer period during which such documents must continue to be
maintained by Purchaser. Purchaser shall provide AIG and Sellers with access to any
documents subject to this Section 6.2(b)(ii) in accordance with the terms of
Section 6.2(a). AIG shall or shall cause the applicable Seller to notify Purchaser
within ninety (90) days of the termination of any applicable Document Retention Hold.




     (iii) Notwithstanding anything to the contrary in this Agreement or any other
Transaction Document, to the extent that AIG or any of its Affiliates has retained, pursuant
to a Litigation Hold or otherwise, books, records, files, tapes, software, data, documents,
hardware, storage devices or other information, materials or equipment that are not
Purchased Assets, Loans, Loan Files, Escrowed Asset Non-Legal Loan Files and that are not
used in connection with conducting the ongoing business of owning the Purchased Assets and
Assumed Liabilities (“Archived Files”), the Purchaser acknowledges and agrees that
the Archived Files are solely the property of AIG. AIG shall retain any such Archived Files
for no less than three (3) months post-Closing after which AIG may dispose of such Archived
Files in its sole discretion; provided, that AIG shall cause each Seller to preserve
for no less than fifteen (15) months post-Closing any books, records, files, tapes,
software, data, documents, hardware, storage devices or other information, materials or
equipment used in connection with conducting the ongoing business of owning the Purchased
Assets and the Assumed Liabilities (“Operational Files”), to the extent any such
Operational Files are retained by any Seller on and as of the Closing, after which fifteen
(15)-month period Sellers may dispose of such materials in their sole discretion.



     (c) From time to time after the Closing, if Purchaser or any of its Affiliates has knowledge
of any liability or other obligation of AIG, any Seller or their respective Affiliates under or
with respect to any Purchased Asset which was required to be paid or performed prior to the Closing
Date and was not so paid or performed in whole or in part, Purchaser shall promptly notify AIG and
Sellers in writing of such obligation; provided, however, that the failure to
provide such notice shall not release AIG, any Seller or their respective Affiliates from such
liability or obligation. At the request of AIG or any Seller from time to time, Purchaser will
reasonably cooperate and assist AIG or Sellers, at AIG’s or Sellers’ sole cost and expense, as
applicable, in satisfying or minimizing any such liability or other obligation. Notwithstanding



36









 







anything in this Section 6.2(c), any matter with respect to Taxes shall be governed by
Section 6.4.



     Section 6.3 Consents.



     (a) Without limiting Section 6.1 hereof, upon the terms and subject to the conditions
set forth in this Agreement, AIG shall, and shall cause Sellers to, and Purchaser shall use their
reasonable efforts to take, or cause to be taken, all appropriate actions that are, and to do, or
cause to be done, and to assist and cooperate with the other party hereto in doing, all things that
are or may become necessary or otherwise reasonably appropriate to consummate the transactions
contemplated hereby and by the Transaction Documents, including, without limitation, as promptly as
practicable (i) obtaining any necessary consent, license, approval of, and making any necessary
filing with and giving any necessary notice to, any Governmental Authority with competent
jurisdiction over the transactions contemplated hereby which consent, license, approval or filing
was not obtained or made prior to the Closing Date, (ii) obtaining the Required Consents, (iii)
resolving any investigation or inquiry into the transactions contemplated hereby and (iv) unless
otherwise instructed by AIG in writing, defending any Action challenging this Agreement or the
consummation of the transactions contemplated hereby, including seeking to have vacated or reversed
any stay or temporary restraining order entered by any Governmental Authority prohibiting or
otherwise restraining the consummation of the transactions contemplated hereby.



     (b) Subject to the terms and conditions set forth in this Agreement, without limiting the
generality of the other undertakings pursuant to this Section 6.3, each of AIG and the
Purchaser agrees to take or cause to be taken the following actions: (i) the prompt provision to a
Governmental Authority of non-privileged information, documents or testimony requested by such
Governmental Authority or that are necessary, proper or advisable to give effect to the
transactions contemplated by the Transaction Documents; (ii) the prompt use of its best efforts to
avoid the entry of, or to effect the dissolution of, any permanent, preliminary or temporary
injunction or other order, decree, decision, determination or judgment that would delay, restrain,
prevent, enjoin or otherwise prohibit giving effect to the transactions contemplated by the
Transaction Documents; and (iii) the prompt use of its best efforts to take, in the event that any
permanent, preliminary or temporary injunction, decision, order, judgment, determination or decree
is entered or issued, or becomes reasonably foreseeable to be entered or issued, in any proceeding
or inquiry of any kind that would make giving effect to the transactions contemplated by the
Transaction Documents in accordance with the terms of the Transaction Documents unlawful or that
would delay, restrain, prevent, enjoin or otherwise prohibit giving effect to the transactions
contemplated by the Transaction Documents, any and all steps (including the appeal thereof, the
posting of a bond or, in the case of the Purchaser, the taking of the steps contemplated by clause
(ii) of this paragraph) necessary to resist, vacate, modify, reverse, suspend, prevent, eliminate
or remove such actual, anticipated or threatened injunction, decision, order, judgment,
determination or decree so as to permit such giving effect to on a schedule as close as possible to
that contemplated by the Transaction Documents.



     (c) Subject to applicable Laws relating to the sharing of information, and subject to
Section 5.2 hereof, each of AIG and the Purchaser shall promptly notify one another of any
communication it receives from any Governmental Authority and permit the other party to



37









 







review in advance any proposed communication by such party to any Governmental Authority and
shall provide each other with copies of all correspondence, filings or communications between such
party or any of its Representatives, on the one hand, and any Governmental Authority or members of
the staff of any Governmental Authority, on the other hand, in each case to the extent relating to
the matters that are the subject of this Agreement.



     (d) AIG and the Purchaser shall use their reasonable efforts to obtain any other consents and
approvals and make any other notifications that may be required in connection with the transactions
contemplated by the Transaction Documents; provided, however, that none of AIG or the Sellers shall
be required to compensate any third party, commence or participate in litigation or offer or grant
any accommodation (financial or otherwise) to any third party to obtain any such consent or
approval.



     Section 6.4 Transaction Costs; Taxes.



     (a) Except as otherwise expressly provided for herein, AIG and the Sellers, on the one hand,
and Purchaser, on the other hand, shall each be liable for and pay all transaction costs and
expenses (including any legal, accounting and other professional fees and expenses) that AIG and
the Sellers and their Affiliates, on the one hand, and Purchaser and its Affiliates, on the other
hand, respectively, incur in connection with the negotiation, execution and performance of this
Agreement and the Transaction Documents and the consummation of the transactions contemplated
hereby and thereby. Notwithstanding the foregoing, all out-of-pocket costs and expenses incurred
by AIG, Sellers and each of their respective Affiliates (other than any legal, accounting or other
professional fees or expenses of AIG, the Sellers or any of their Affiliates), and Purchaser and
its Affiliates (other than any legal, accounting or other professional fees or expenses of
Purchaser or any of its Affiliates), in connection with the obtainment or attempted obtainment of
any Required Consent or any other consent or approval required to be obtained by the terms of a
Loan Document in connection with the transactions contemplated by this Agreement and the
Transaction Documents, (i) shall be borne by AIG up to the first two hundred thousand dollars
($200,000) of such costs, (ii) shall be shared equally by AIG and Purchaser for any such costs
exceeding two hundred thousand dollars ($200,000) but totaling less than eight hundred thousand
dollars ($800,000) in the aggregate, inclusive of any Taxes paid in accordance with Section
6.4(b) (the “Maximum Amount”), and (iii) any such costs and expenses in excess of the
Maximum Amount shall be borne solely by AIG. With respect to the actual making of payments for
such costs and expenses referred to in the preceding sentence, such payments shall be made by
Purchaser (and AIG shall as promptly as practicable forward any invoices received by AIG, Sellers
or any of their respective Affiliates in respect of such costs and expenses to the Purchaser for
payment); provided, that prior to incurring any out-of-pocket costs or expenses in
connection with the obtainment or attempted obtainment of any Required Consent in respect of any
Letter of Credit, the Purchaser shall have obtained AIG’s prior consent and approval (which shall
not be unreasonably withheld or delayed) to incur any such out-of-pocket costs or expenses in
excess of thirty one-hundredths of one percent (0.30%) of the face amount in respect of such Letter
of Credit, and the parties hereto shall settle any amounts due and payable to one another in
accordance with the immediately preceding sentence (including any Taxes paid in accordance with
Section 6.4(b)) on a monthly basis.



38









 





     (b) Notwithstanding anything contained herein to the contrary, (x) any and all Taxes
associated with the sale and assignment of the Purchased Assets by Sellers to Purchasers and the
other transactions contemplated hereby shall be borne equally by AIG and Sellers, on the one hand,
and Purchaser, on the other hand, and AIG and Sellers, on the one hand, and Purchaser on the other
hand, shall each pay when due its share of any and all such Taxes, subject to the proviso to the
last sentence of Section 6.4(a) above and (y) Purchaser shall be responsible for the fees
and costs of recording and filing all applicable conveyancing or other instruments (including,
without limitation, all UCC filings and other similar filings), associated with the sale and
assignment of the Purchased Assets by Sellers to Purchaser and the other transactions contemplated
hereby. AIG shall cause Sellers to, and Purchaser shall, be responsible for preparing and filing
each Tax Return required by Law to be filed by it, and AIG shall cause Sellers to, on the one hand,
and Purchaser shall, on the other hand, cooperate with each other in the preparation, execution and
filing of all Tax Returns regarding any Tax which becomes payable as a result of the transactions
contemplated hereby and shall cooperate with each other to seek an available exemption from any
such Tax.



     (c) Subject to Section 6.4(b) hereof, AIG shall cause each Seller to be responsible
for and pay or cause to be paid when due all Taxes applicable to the Purchased Assets being sold
and assigned by such Seller hereunder or the Escrowed Assets being transferred by such Seller
hereunder and attributable to any Tax period (or portion thereof) ending on or prior to the Closing
Date or, in the case of any Reassumed Asset, any Tax period (or portion thereof) that begins on or
after the Reassumption Date. Except to the extent provided in the preceding sentence with respect
to any Reassumed Asset, Purchaser shall be responsible for and pay or cause to be paid when due all
Taxes applicable to the Purchased Assets or the Escrowed Assets attributable to any Tax period (or
portion thereof) that begins after the Closing Date. For purposes of this Section 6.4(c),
any period beginning before and ending on or after the Closing Date shall be treated as two
separate Tax periods, one ending on the close of the Closing Date and the other beginning on the
day after the Closing Date, except that Taxes imposed on a periodic basis shall be allocated
between a period ending on the Closing Date and a period beginning on the day after the Closing
Date in proportion to the number of days in each such period.



     (d) Purchaser, on the one hand, and AIG, on the other hand, shall provide indemnification and
reimbursement for any Tax or other amount which is the responsibility of such party or, in the case
of AIG, Sellers, pursuant to the terms of this Section 6.4 and which is required to be paid
by the other party hereto or its Affiliates. Each of Purchaser and AIG hereby acknowledge and
agree that notwithstanding Section 7(a) and Section 9(b)(i) of the Escrow Agreement
and subject to Section 6.4(b) hereof, (i) each shall bear fifty percent (50%) of any
transfer tax referred to in Section 7(a) of the Escrow Agreement and of any claim for
indemnification made by any Escrow Agent Indemnified Party in accordance with Section
9(b)(i) of the Escrow Agreement, and each of AIG and the Purchaser shall indemnify and
reimburse the other to the extent such party has paid an amount to any Escrow Agent Indemnified
Party over its fifty percent (50%) share of any such claim, such that following such reimbursement,
each of AIG and the Purchaser shall have borne a fifty percent (50%) share of any such claim and
(ii) each of AIG and Purchaser shall indemnify and reimburse the other to the extent such party has
paid an amount to any Escrow Agent Indemnified Party in respect of a tax referred to in Section
7(a) of the Escrow Agreement (other than a transfer tax) with respect to



39









 







any Escrowed Assets, Escrow Earnings or interest or other income earned in respect of the
Escrowed Assets which is not treated as the asset or income of such party pursuant to Section
7(a) of the Escrow Agreement or this Agreement, such that, following such indemnification and
reimbursement, each of AIG and the Purchaser bear the amount of such tax such party is obligated to
bear pursuant to this Section 6.4, or that is attributable to income reported to such party
by the Escrow Agent in accordance with Section 7(a) of the Escrow Agreement. Within a reasonable
time prior to the payment of any such Tax (or other amount) by an indemnified party, the Person
paying such Tax (or other amount) shall notify in writing the indemnifying party pursuant to this
Section 6.4(d) of the amount of such Tax (or other amount) and the portion thereof which is
the liability of such indemnifying party, although a failure to receive such notice will not
relieve such party from its liability hereunder except to the extent that it has been prejudiced by
such delay or failure.



     (e) Purchaser shall promptly notify AIG in writing upon receipt by Purchaser or any of its
Affiliates of notice of any pending or threatened federal, state, provincial, local or foreign Tax
audit, examination, assessment or reassessment which may affect the Tax liabilities for which AIG
would be required to indemnify Purchaser or any of its Affiliates pursuant to this Section
6.4. AIG shall have the sole right to control any Tax audit or administrative or court
proceeding relating to any Tax period (or portion thereof) ending on or prior to the Closing Date
or, in the case of any Reassumed Asset, any Tax period (or portion thereof) beginning on of after
the Reassumption Date, and to employ counsel of AIG’s choice at AIG’s expense and Purchaser shall
have a reasonable opportunity to participate in any such Tax audit or administrative or court
proceeding. Neither Purchaser nor any of its Affiliates may settle any Tax claim for any Tax
period (or portion thereof) ending on or prior to the Closing Date or, in the case of any Reassumed
Asset, any Tax period (or portion thereof) beginning on or after the Reassumption Date which may be
the subject of indemnification by AIG under this Section 6.4 without the prior written
consent of AIG, which consent may be withheld in the sole discretion of AIG.



     Section 6.5 Remittances. If a Seller receives any remittance from an Obligor after
the Closing Date with respect to any obligation of such Obligor due after the Closing Date (i) in
respect of any Closing Date Purchased Asset with respect to which there are no Escrowed Assets
related thereto or any Released Escrowed Asset, AIG shall cause such Seller to endorse such
remittance (or applicable portion thereof) to the order of Purchaser and forward it to Purchaser or
(ii) in respect of any Escrowed Asset or Closing Date Purchased Asset related thereto, AIG shall
cause such Seller to forward such remittance (or applicable portion thereof) to the Escrow Agent
for deposit into the Escrowed Assets Escrow Account to be held and released by the Escrow Agent in
accordance with the terms of the Escrow Agreement. If Purchaser receives any remittance (including
any Post-Closing Prepaid Interest Amount) from an Obligor after the Closing Date with respect to
any obligation of such Obligor in respect of any Escrowed Asset or any Closing Date Purchased Asset
related thereto (other than in respect of any Released Escrowed Asset), the Purchaser shall forward
such remittance to the Escrow Agent for deposit into the Escrowed Assets Escrow Account to be held
and released by the Escrow Agent in accordance with the terms of the Escrow Agreement.



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     Section 6.6 UCC Financing Statements.



     (a) With respect to each Loan for which a UCC financing statement designating Sellers as a
“secured party” has been filed and is in effect on the Closing Date, AIG, on behalf of each of the
Sellers, hereby authorizes Purchaser (within the meaning of Section 9-509(d) of the UCC) to file,
at Purchaser’s sole cost and expense, a notice of assignment or an amendment to each such UCC
financing statement designating the applicable Seller as “assignor” and Purchaser as
“assignee/secured party” at any time (i) after the Closing in respect of any Closing Date Purchased
Asset and (ii) after the applicable Escrowed Asset Release Date in respect of any Released Escrowed
Asset.



     (b) Purchaser hereby authorizes AIG to file, at AIG’s sole cost and expense and in any
jurisdiction which AIG deems necessary, financing statements and any amendments thereto designating
all or any portion of the Escrowed Assets and the Closing Date Purchased Assets related thereto,
Escrowed Asset Non-Legal Loan Files, Escrowed Assets Escrow Account, any collateral assignment
executed by either Seller and delivered to the applicable Insurer in accordance with the terms of
this Agreement in respect of any Policy or Annuity which serves as collateral for an Escrowed Asset
(whether such Policy or Annuity is included in the Closing Date Purchased Assets or the Escrowed
Assets) and, in each case, all proceeds thereof as collateral and designating the Purchaser as
“debtor” and AIG as “secured party”.



     (c) AIG hereby authorizes and shall cause Sellers to authorize Purchaser to file, at
Purchaser’s sole cost and expense and in any jurisdiction in which Purchaser deems necessary,
financing statements and any amendments thereto designating all or any portion of the Purchase
Price Escrow Account and all proceeds thereof as collateral and designating AIG and Sellers as
“debtor” and Purchaser as “secured party”.



     Section 6.7 Specified A.I. Credit Employees.



     (a) Offers of Employment. Purchaser will offer to employ as of the Closing Date each
of the Specified A.I. Credit Employees. All Specified A.I. Credit Employees who accept such offer
of employment are referred to as “Transferred Employees.” Each offer of employment to a
Specified A.I. Credit Employee will be on such terms and conditions as Purchaser may determine in
its sole discretion based upon Purchaser’s standard policies and procedures; provided,
however, that such offers will be for a comparable position as that held by such Specified
A.I. Credit Employee with Sellers on the Closing Date.



     (b) Certain Employment Agreements. On the Closing Date those certain Specified A.I.
Credit Employees listed on Schedule 6.7(b) shall have entered into employment agreements
with Purchaser in the form attached as Exhibit 6.7(b).



     (c) Payments to Certain Transferred Employees Upon Hiring. Subject to and only upon
receipt by AIG on or prior to the Closing Date of an executed acknowledgment in substantially the
form attached as Exhibit 6.7(c) hereto from each Specified A.I. Credit Employee listed on
Schedule 6.7(c) who becomes a Transferred Employee, Purchaser is paying simultaneously with
the execution of this Agreement to each such Specified A.I. Credit Employee listed on Schedule
6.7(c) who becomes a Transferred Employee the amount set forth



41









 







opposite his or her name (which amount paid by the Purchaser is net of any applicable federal,
state and local withholding taxes) in consideration for such person agreeing to accept Purchaser’s
offer of employment and in full and final satisfaction of any obligations or liabilities that AIG
or the Purchaser may have which arise from or relate to the applicable Retention Bonus Agreement
set forth on Schedule 6.7(c) opposite such Transferred Employee’s name (collectively, the
“Retention Bonus Agreements”).



     (d) Cessation of Employment. Each Specified A.I. Credit Employee that becomes a
Transferred Employee shall cease to be an employee of the applicable Seller as of the Closing Date.
Other than the bonuses due and payable by the Purchaser upon the Closing pursuant to Section
6.7(c), Sellers will retain responsibility for, and will indemnify Purchaser with respect to,
all compensation, bonus, welfare benefit, severance and other employment-related obligations,
including, without limitation, all obligations and liabilities under any Benefit Plans or for any
workers’ compensation or similar workers’ protection claims with respect to all Specified A.I.
Credit Employees for all periods while employed by Sellers or payable upon any cessation of
employment with Sellers in accordance with Sellers’ Benefit Plans or other contractual obligations,
whether or not they accept Purchaser’s offers of employment; provided, however,
that the Purchaser shall credit each Transferred Employee for any and all unused vacation and
discretionary days accrued through the day immediately prior to the Closing Date by such
Transferred Employee as set forth on Schedule 6.7(d).



     (e) Purchaser’s Benefit Plans. With respect to each Transferred Employee:




     (i) Transferred Employees will be eligible to participate in Purchaser’s retirement
savings plan, employee stock purchase plan, health, medical, long-term disability and
short-term disability plans, vacation policy and other applicable benefit plans
(collectively, “Purchaser Benefit Plans”) as provided to similarly situated
employees of Purchaser, in accordance with the terms of such Purchaser Benefit Plans. Time
in service for each Transferred Employee under Purchaser’s 401(k) Plan shall include his or
her period of service with either Seller ending on the Closing Date. Time in service for
each Transferred Employee under Purchaser’s vacation policy shall include his or her period
of service with either Seller ending on the Closing Date. To the extent that any other
Purchaser Benefit Plan takes into account time in service in determining eligible rights,
benefits or any other matter thereunder, time in service for each Transferred Employee shall
include his or per period of service with either Seller or any Affiliate of either Seller or
AIG ending on the Closing Date. In addition, although Purchaser has no written severance
policy and awards severance to terminated employees on a case-by-case basis, if in making
any decision to award severance with respect to a Transferred Employee Purchaser determines
in its sole discretion to take into account such employee’s time in service, Purchaser will
include the period of a Transferred Employee’s past service with Sellers ending on the
Closing Date as such Transferred Employee’s time in service with Purchaser. Purchaser
reserves the right to amend, modify, change or terminate any of Purchaser Benefit Plans at
any time or from time to time.




     (ii) To the extent permitted by Purchaser’s Benefit Plans without additional cost,
Purchaser will cause any pre-existing condition limitation under the medical benefit



42









 






plans made available by Purchaser to be waived to the extent such conditions have been
waived under the applicable Seller’s Benefit Plans.




     (iii) Purchaser hereby assumes the obligation and liability for, and will indemnify AIG
and Sellers with respect to, all compensation, bonus, welfare benefit, severance and other
employment-related obligations, including, without limitation, all obligations and
liabilities under any Purchaser Benefit Plans or for any workers’ compensation or similar
workers’ protection claims with respect to any Transferred Employee for all periods while
employed by Purchaser.



     (f) No Rights or Remedies. Nothing in this Section 6.7 shall confer upon any
Specified A.I. Credit Employee, Transferred Employee or other employee of AIG or either Seller, or
his or her legal representative, any rights or remedies, including any right to employment, or
continued employment, for any specified period, or any nature or kind whatsoever under or by reason
of this Agreement.



     Section 6.8 Bulk Sales Laws. Purchaser hereby waives compliance by AIG, Sellers and
each of their respective Affiliates with the requirements and provisions of any “bulk-transfer”
Laws of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of
the Purchased Assets to Purchaser.



     Section 6.9 Renewal Loans. Following the Closing Date, if and to the extent that the
Purchaser determines, as an internal policy matter and not in response to any Governmental Order
affecting Purchaser or its Affiliates, to no longer renew (whether in the form of a new loan or a
renewal of an existing loan) a Loan included in the Purchased Assets or the Escrowed Assets on the
same terms and at the then existing interest rate spread above LIBOR or any other benchmark, as
applicable in respect of such Loan (other than to the extent (a) such renewal does not meet
Purchaser’s underwriting standards in effect at the time such Loan is up for renewal, which
standards may be changed from time to time by Purchaser in its sole discretion or (b) there has
been an adverse change, as determined by Purchaser in its sole discretion, in the value of such
Loan or the creditworthiness of the applicable Borrower) or to otherwise wind-down its life premium
finance business generally, Purchaser hereby acknowledges and agrees that it shall (i) effect such
non-renewals or wind-down of its life premium finance business in a commercially reasonable manner
and (ii) (x) provide not less than six (6) months prior written notice to each Borrower to the
extent such determination occurs on or before December 31, 2009 or (y) provide not less than four
(4) months prior written notice to each Borrower to the extent such determination occurs during the
period from January 1, 2010 through December 31, 2013, in each case, of its intention to cease
funding renewals of such Borrower’s Loan or otherwise generally wind-down its life premium finance
business. Notwithstanding the foregoing, (i) Purchaser shall not be obligated to provide any such
notice to a Borrower whose Loan is an Escrowed Asset for which a renewal date occurs less than six
(6) months after the Closing Date and with respect to which the applicable Required Consent has not
been (or is not deemed to have been in accordance with the terms of this Agreement) obtained at the
time of such determination by Purchaser to cease funding renewals of such Borrower’s Loan or
otherwise generally wind-down its life premium finance business and (ii) the Purchaser hereby
acknowledges and agrees that it shall renew and/or fund any Loan as set forth on Schedule 1.2(c)




43











 




scheduled to renew and/or require any additional funding within forty five (45) days following
the Closing Date.




     Section 6.10 Post-Closing Covenants. Notwithstanding anything in this Agreement to
the contrary, Purchaser and AIG hereby acknowledge and agree that AIG shall have no obligation to
perform or cause the applicable Seller to so perform, and Purchaser shall forever absolutely and
unconditionally release and discharge AIG and such Seller from any such obligation to so perform or
to cause such performance, as the case may be (without any further action by Purchaser or execution
of any further instrument), any Post-Closing Covenant hereunder upon any such Seller no longer
constituting an Affiliate of AIG; provided, however, that AIG’s obligation to cause
the applicable Seller to perform any Post-Closing Covenant contained in Sections 1.3(b),
1.5, 2.2(c), 5.1(e), 5.2(b), 6.1, 6.3,
6.4(b) and (c), 6.5, 6.6(c), 7.8(c) and 9.3 hereof
shall survive.



ARTICLE VII




DISCLAIMER; SURVIVAL; INDEMNIFICATION; EXCLUSIVE REMEDIES




     Section 7.1 Survival. The representations, warranties, covenants and agreements of
the parties contained in or made pursuant to this Agreement shall survive the Closing in full force
and effect until the date that is fifteen (15) months after the Closing Date, at which time they
shall terminate (and no claims shall be made for indemnification under Section 7.2 or
Section 7.3, as applicable thereafter); except: (i) Sellers’ Specified
Representations and the Purchaser’s Specified Representations shall survive the Closing
indefinitely; and (ii) the covenants and agreements contained in this Agreement (“Post-Closing
Covenants”) shall survive for the period provided in such covenants and agreements, if any, or
until fully performed.



     Section 7.2 Indemnification by AIG.



     (a) After the Closing and subject to this Article VII, AIG shall indemnify, defend and
hold harmless the Purchaser and its Affiliates and each of their respective directors, officers,
employees, stockholders, successors and permitted assigns (collectively, the “Purchaser
Indemnified Parties”) against, and reimburse any Purchaser Indemnified Party for, all Losses
that such Purchaser Indemnified Party may at any time suffer or incur, or become subject to, as a
result of or in connection with:




     (i) the breach or inaccuracy of any representation or warranty made by AIG on behalf of
Sellers or AIG in this Agreement;




     (ii) any Loss arising with respect to an Excluded Asset or an Excluded Liability; or




     (iii) any breach or failure by AIG to perform or to cause Sellers to perform any
covenants or obligations contained in this Agreement, subject to the relevant survival
period in respect of any such covenant or obligation set forth in Section 7.1 and
subject to Section 6.10 hereof.



44









 





     (b) Notwithstanding any other provision to the contrary, AIG shall not be required to
indemnify, defend or hold harmless any Purchaser Indemnified Party against, or reimburse any
Purchaser Indemnified Party for, any Losses pursuant to Section 7.2(a)(i):




     (i) with respect to any claim (or series of related claims arising from the same
underlying facts, events or circumstances), unless such claim (or series of related claims
arising from the same underlying facts, events or circumstances) involves Losses in excess
of one hundred thousand dollars ($100,000) (the “Threshold Amount”) (nor shall any
such claim or series of related claims that do not meet the Threshold Amount be applied to
or considered for purposes of calculating the aggregate amount of the Purchaser Indemnified
Parties’ Losses for which AIG has responsibility under Section 7.2(b)(ii) below);




     (ii) until the aggregate amount of the Purchaser Indemnified Parties’ Losses for which
Purchaser Indemnified Parties are finally determined to be otherwise entitled to
indemnification under Section 7.2(a)(i) exceeds one percent (1%) of the Purchase
Price (the “Basket Amount”), after which AIG shall be obligated for all Purchaser
Indemnified Parties’ Losses for which the Purchaser Indemnified Parties are finally
determined to be otherwise entitled to indemnification under Section 7.2(a)(i) that
are in excess of the Basket Amount, but only if such excess Losses arise with respect to any
claim (or series of related claims arising from the same underlying facts, events or
circumstances) that involves Losses in excess of the Threshold Amount;




     (iii) with respect to any Losses arising out of the breach or inaccuracy of a
representation or warranty set forth in Sections 3.5, 3.6(a),
3.6(e), 3.6(g) or 3.7, in a cumulative aggregate amount in excess of
ten percent (10%) of the Purchase Price (the “Maximum Indemnification Obligation”);
and




     (iv) with respect to any Losses for which the Purchaser Indemnified Parties are finally
determined to be entitled to indemnification under Section 7.2(a)(i) (other than
Sellers’ Specified Representations) in a cumulative aggregate amount in excess of five
percent (5%) of the Purchase Price; provided, however, that in no event
shall the aggregate amount of Losses for which AIG shall be obligated to indemnify the
Purchaser Indemnified Parties under Sections 7.2(b)(iii) and (iv) together
exceed the Maximum Indemnification Obligation; and


provided, further, however, that none of the foregoing limitations shall
apply to AIG’s indemnification obligations (x) with respect to Losses in respect of the breach or
inaccuracy of any of Sellers’ Specified Representations or (y) under Sections 5.1(e),
6.4, 7.2(a)(ii) and 7.2(a)(iii).




     (c) Notwithstanding any other provision to the contrary:




     (i) AIG shall not be required to indemnify, defend or hold harmless any Purchaser
Indemnified Party against, or reimburse any Purchaser Indemnified Party for, any Losses
pursuant to Section 7.2(a)(i) (including, for this purpose, in respect of the



45









 







breach of any representation or warranty made by AIG in Section 7.9 hereof) in
a cumulative aggregate amount exceeding the Purchase Price; and




     (ii) in the event that any fact, event or circumstance which results in an adjustment
to the Purchase Price would also constitute a breach or inaccuracy of any representations
and warranties made by AIG on Sellers’ behalf under this Agreement, or a breach or
nonperformance of any covenants or agreements to be performed by AIG or which AIG has agreed
to cause to be performed under this Agreement, AIG shall have no obligation to indemnify the
Purchaser Indemnified Parties pursuant to this Section 7.2 with respect to such
breach or inaccuracy to the extent the Losses resulting from, arising out of or related to
such fact, event or circumstance have been fully recovered by Purchaser in connection with
the computation of either the Purchase Price Increase or the Purchase Price Reduction (in
each such case, either as a reduction of the amount otherwise payable by Purchaser to
Sellers or as an increase in the amount otherwise payable by Sellers to Purchaser).



     Section 7.3 Indemnification by Purchaser.



     (a) After the Closing and subject to Section 1.3(b)(v) and Sections 6.4(b) and
(d) and this Article VII, the Purchaser shall indemnify, defend and hold harmless
AIG, the Sellers and their respective Affiliates and each of their respective directors, officers,
employees, stockholders, successors and permitted assigns (collectively, the “Seller
Indemnified Parties”) against, and reimburse any Seller Indemnified Party for, all Losses that
such Seller Indemnified Party may at any time suffer or incur, or become subject to, as a result of
or in connection with:




     (i) the breach or inaccuracy of any representation or warranty made by the Purchaser in
this Agreement;




     (ii) any breach or failure by the Purchaser to perform any of its covenants or
obligations contained in this Agreement, subject to the relevant survival period in respect
of any such covenant or obligation set forth in Section 7.1;




     (iii) each Assumed Liability;




     (iv) any Loss arising with respect to a Purchased Asset from and after the Closing
Date, other than arising as a result of a breach or inaccuracy of any representation or
warranty made by AIG or Sellers;




     (v) the failure to maintain as confidential any Consumer Information on or after the
Closing Date; or




     (vi) any Data Security Breach on or after the Closing Date.



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     (b) Notwithstanding any other provision to the contrary, the Purchaser shall not be required
to indemnify, defend or hold harmless any Seller Indemnified Parties against, or reimburse any
Seller Indemnified Party for, any Losses pursuant to Section 7.3(a)(i):




     (i) with respect to any claim (or series of related claims arising from the same
underlying facts, events or circumstances) unless such claim (or series of related claims
arising from the same underlying facts, events or circumstances) involves Losses in excess
of the Threshold Amount (nor shall any such claim or series of related claims that do not
meet the Threshold Amount be applied to or considered for purposes of calculating the
aggregate amount of the Seller Indemnified Parties’ Losses for which the Purchaser has
responsibility under Section 7.3(b)(ii) below);




     (ii) until the aggregate amount of the Seller Indemnified Parties’ Losses for which
Seller Indemnified Parties are finally determined to be otherwise entitled to
indemnification under Section 7.3(a)(i) exceeds the Basket Amount, after which the
Purchaser shall be obligated for all Seller Indemnified Parties’ Losses for which the Seller
Indemnified Parties are finally determined to be otherwise entitled to indemnification under
Section 7.3(a)(i) that are in excess of the Basket Amount; but only if such excess
Losses arise with respect to any claim (or series of related claims arising from the same
underlying facts, events or circumstances) that involves Losses in excess of the Threshold
Amount; and




     (iii) in a cumulative aggregate amount in excess of the Maximum Indemnification
Obligation, it being agreed that for purposes of determining whether the Maximum
Indemnification Obligation has been met or exceeded, any amount paid by the Purchaser for
Losses pursuant to Section 7.3(a)(i), other than any Losses in respect of the
inaccuracy or breach of any Purchaser Specified Representations, shall be taken into
account;


provided, however, that none of the foregoing limitations shall apply to
Purchaser’s indemnification obligations (x) with respect to Losses in respect of the inaccuracy or
breach of any of Purchaser’s Specified Representations or (y) under Section 1.3(b)(v),
Section 5.1(d), Section 6.4 or Sections 7.3(a)(ii)-(vi).




     (c) Notwithstanding any other provision to the contrary, Purchaser shall not be required to
indemnify, defend or hold harmless any Seller Indemnified Party against, or reimburse any Seller
Indemnified Party for, any Losses pursuant to Section 7.3(a)(i) (including, for this
purpose, in respect of the inaccuracy or breach of Purchaser Specified Representations) in a
cumulative aggregate amount exceeding the Purchase Price.



     Section 7.4 Other Limitations on Indemnification.



     (a) No amounts of indemnity shall be payable, nor shall any Indemnifying Party or any of its
Affiliates be obligated to respond to any claim for indemnity, for Losses to the extent, but only
to the extent, that such Losses arise from any action taken by an Indemnified Party or any of its
Affiliates after the Closing; provided, however, that the foregoing limitations
shall not apply in respect of any Losses of any party arising from any action taken by any other
party or



47









 







any of its Affiliates after the Closing in respect of the Escrowed Assets. Each Indemnifying
Party shall take, and shall cause to be taken by each of its Affiliates, all reasonable efforts to
mitigate any Loss upon and after becoming aware of any event which could reasonably be expected to
give rise to a claim for indemnification under this Agreement.



     (b) If Purchaser sells, assigns or transfers any of its right, title or interest in, to or
under any Purchased Asset to a third party, neither Purchaser nor any other Purchaser Indemnified
Party shall assert against Sellers, AIG or its Affiliates, as applicable, for purposes of
indemnification under Section 7.2, Section 5.1(e), Sections 6.4(b) and
(d) hereof, that it shall have suffered any Loss by virtue of such sale, assignment or
transfer, and any such claim for indemnification (whether such claim shall then be pending or shall
be only prospective) shall be barred forever.



     (c) (c) If Purchaser waives, amends, modifies or otherwise changes the terms of any Loan
Document after the Closing (or consents to any such waiver, amendment, modification or other change
or directs AIG to cause Sellers to make any such waiver, amendment, modification or other change to
any Loan Document included in the Escrowed Assets) or changes or modifies the Transferred System
Intellectual Property, as the case may be, neither Purchaser nor any other Purchaser Indemnified
Party shall have or assert at any time any claim (whether such claim shall then be pending or shall
be only prospective) against any Seller, AIG or any of its Affiliates, as applicable, for purposes
of indemnification under Section 7.2, Section 5.1(e) or Sections 6.4(b) and
(d) hereof, that it shall have suffered any Loss resulting from or arising out of such
waiver, amendment, modification or other change to such Loan Document or the Transferred System
Intellectual Property. For the avoidance of doubt, nothing in this Section 7.4(c) shall
limit in any manner (i) the ability of Purchaser to provide additional funding with respect to any
Loan or (ii) the ability of any Purchaser Indemnified Party to have or assert any claim, in
accordance with this Article VII, against any Seller or AIG for Losses caused by any breach
or inaccuracy of any representation or warranty made by AIG on behalf of Sellers or AIG in this
Agreement or any breach or failure by AIG to perform or to cause Sellers to perform any of their
respective covenants or obligations contained in this Agreement.



     Section 7.5 Notification of Claims.



     (a) A Person that may be entitled to be indemnified under this Agreement (the “Indemnified
Party”), shall promptly notify the party or parties liable for such indemnification (the
“Indemnifying Party”) in writing of any claim in respect of which indemnity may be sought
under this Article VII, including any pending or threatened claim or demand by a third
party that the Indemnified Party has reasonably determined has given or could reasonably give rise
to a right of indemnification under this Agreement (including a pending or threatened claim or
demand asserted by a third party against the Indemnified Party, such claim being a “Third Party
Claim”), describing in reasonable detail the facts and circumstances with respect to the
subject matter of such claim or demand; provided, however, that the failure to provide such notice
shall not release the Indemnifying Party from any of its obligations under this Article VII
except to the extent the Indemnifying Party is prejudiced by such failure. The parties agree that
(i) in this Article VII they intend to shorten (in the case of the limited survival periods
specified in Section 7.1) and lengthen (in the case of the indefinite survival periods
specified in Section 7.1), as the case may be, the applicable statute of limitations period
with respect to certain claims, (ii)



48









 







notices for claims in respect of a breach of a representation, warranty, covenant or agreement
(other than a Post-Closing Covenant) must be made in good faith and delivered prior to the
expiration of any applicable survival period specified in Section 7.1 for such
representation, warranty, covenant or agreement, and (iii) any claims for indemnification for which
notice is not timely delivered in accordance with this Section 7.5(a) shall be expressly
barred and are hereby waived; provided, that if, prior to such applicable date, a party hereto
shall have notified in good faith the other party hereto in accordance with the requirements of
this Section 7.5(a) of a claim for indemnification under this Article VII (whether
or not formal legal action shall have been commenced based upon such claim), such claim shall
continue to be subject to indemnification in accordance with this Article VII
notwithstanding the passing of such applicable date.



     (b) Upon receipt of a notice of a claim for indemnity from an Indemnified Party pursuant to
Section 7.5(a) in respect of a Third Party Claim, the Indemnifying Party may, by notice to
the Indemnified Party delivered within twenty (20) Business Days of the receipt of notice of such
Third Party Claim, assume the defense and control of any Third Party Claim, with its own counsel
and at its own expense, subject to any pre existing rights of the Indemnified Party’s insurance
carrier to assume the defense and control of such claim, but shall allow the Indemnified Party a
reasonable opportunity to participate in the defense of such Third Party Claim with its own counsel
and at its own expense. The Indemnified Party may take any actions reasonably necessary to defend
such Third Party Claim prior to the time that it receives a notice from the Indemnifying Party as
contemplated by the preceding sentence. AIG or the Purchaser, as the case may be, shall, and shall
cause each of their respective Affiliates and Representatives to, cooperate fully with the
Indemnifying Party in the defense of any Third Party Claim. The Indemnifying Party shall not,
without the prior written consent of the Indemnified Party (which shall not be unreasonably
withheld, delayed or conditioned), consent to a settlement, compromise or discharge of, or the
entry of any judgment arising from, any Third Party Claim, unless such settlement, compromise or
discharge does not involve any finding or admission of any violation of Law or admission of any
wrongdoing by the Indemnified Party and the Indemnifying Party shall (i) pay or cause to be paid
all amounts arising out of such settlement or judgment concurrently with the effectiveness of such
settlement, (ii) not encumber any of the material assets of any Indemnified Party or agree to any
restriction or condition that would materially adversely affect any Indemnified Party or the
conduct of any Indemnified Party’s business and (iii) obtain, as a condition of any settlement or
other resolution, a complete and unconditional release of each Indemnified Party from any and all
liability in respect of such Third Party Claim. The Indemnified Party shall not settle, compromise
or consent to the entry of any judgment with respect to any claim or demand for which it is seeking
indemnification from the Indemnifying Party or admit to any liability with respect to such claim or
demand without the prior written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld, conditioned or delayed.



     (c) Notwithstanding anything to the contrary in this Article VII (including
Sections 7.2 and 7.3), no Indemnifying Party shall have any liability under this
Article VII for any Losses arising out of or in connection with any Third Party Claim that
is settled or compromised by an Indemnified Party without the consent of such Indemnifying Party.



     (d) In the event any Indemnifying Party receives a notice of a claim for indemnity from an
Indemnified Party pursuant to Section 7.5(a) that does not involve a Third Party Claim,



49









 







the Indemnifying Party shall notify the Indemnified Party within twenty (20) Business Days
following its receipt of such notice whether the Indemnifying Party disputes its liability to the
Indemnified Party under this Article VII. The Indemnified Party shall reasonably cooperate
with and assist the Indemnifying Party in determining the validity of any such claim for indemnity
by the Indemnified Party.



     Section 7.6 Payment. In the event an Action for indemnification under this
Article VII shall have been finally determined, the amount of such final determination
shall be paid (i) if the Indemnified Party is a Purchaser Indemnified Party, by AIG to the
Indemnified Party, and (ii) if the Indemnified Party is a Seller Indemnified Party, by the
Purchaser to the Indemnified Party, in each case on demand in immediately available funds. A claim
or an Action, and the liability for and amount of damages therefor, shall be deemed to be
“finally determined” for purposes of this Article VII when the parties to this
Agreement have so determined by mutual written agreement or, if disputed, when a final non
appealable Governmental Order has been entered into with respect to such claim or Action.



     Section 7.7 Exclusive Remedies. Each party acknowledges and agrees that, other than
(a) in the case of fraud or intentional misrepresentation or (b) with respect to Taxes for which an
indemnity is provided pursuant to Section 6.4, the indemnification provided by this
Article VII shall be the sole and exclusive remedies of AIG and the Purchaser,
respectively, for any breach of the representations or warranties in this Agreement. For the
avoidance of doubt, absent fraud or intentional misrepresentation, no breach of any representation,
warranty, covenant or agreement contained herein shall give rise to any right on the part of any
party hereto to rescind this Agreement or any of the transactions contemplated hereby. Each party
further acknowledges and agrees that, other than (i) in the case of fraud or intentional
misrepresentation, (ii) in the case of a breach of Sections 5.1(a), (b) or
(f) or Section 6.3, (iii) with respect to Taxes for which an indemnity is provided
pursuant to Section 6.4, (iv) with respect to any Escrowed Asset for which an indemnity is
provided pursuant to Section 1.3(b)(v) and (v) with respect to the Transferred System
Intellectual Property for which an indemnity is provided pursuant to Section 5.1(d) or
(e), the indemnification provided by this Article VII shall be the sole and
exclusive monetary remedies of the parties for any breach of the Post Closing Covenants.



     Section 7.8 Additional Indemnification Provisions.



     (a) AIG and the Purchaser agree, for themselves and on behalf of their respective Affiliates
and Representatives, that with respect to each indemnification obligation in this Agreement, any
Transaction Documents or any other document executed or delivered in connection with the Closing
(i) each such obligation shall be calculated on an After Tax Basis, (ii) all Losses once finally
determined shall be net of any Eligible Insurance Proceeds and (iii) in no event shall the
Indemnifying Party have liability to the Indemnified Party for any consequential, special,
incidental, indirect or punitive damages, lost profits or similar items.



     (b) Any amount payable by an Indemnifying Party pursuant to this Article VII shall be
paid promptly and payment shall not be delayed pending any determination of Eligible Insurance
Proceeds. In any case where an Indemnified Party recovers from a third Person any Eligible
Insurance Proceeds or any other amount in respect of any Losses for which an Indemnifying Party has
actually reimbursed it pursuant to this Article VII such Indemnified



50









 







Party shall promptly pay over to the Indemnifying Party the amount so recovered (after
deducting therefrom the amount of expenses incurred by it in procuring such recovery), but not in
excess of the sum of (i) any amount previously paid by the Indemnifying Party to or on behalf of
the Indemnified Party in respect of such claim and (ii) any amount expended by the Indemnifying
Party in pursuing or defending any claim arising out of such matter.



     (c) The parties shall and shall cause each of their respective Affiliates to treat the amount
of any indemnification payment made under this Article VII, Section 1.3(b)(v),
Section 6.4 or Sections 5.1(d) or (e) as an adjustment to the Purchase
Price for all Tax purposes.



     (d) If any portion of Losses to be reimbursed by the Indemnifying Party may be covered, in
whole or in part, by third party insurance coverage, the Indemnified Party shall promptly give
notice thereof to the Indemnifying Party (a “Notice of Insurance”). If the Indemnifying
Party so requests within one hundred eighty (180) days after receipt of a Notice of Insurance, the
Indemnified Party shall use its reasonable efforts to collect the maximum amount of insurance
proceeds thereunder, in which event all such proceeds actually received shall be considered
“Eligible Insurance Proceeds.”



     Section 7.9 Representations and Warranties of AIG. Except as set forth in the
corresponding sections or subsections of the AIG Disclosure Schedule, AIG solely as to itself,
represents and warrants to Purchaser on and as of the date hereof, as follows:



     (a) AIG is a corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all corporate power and authority required to enter into,
consummate the transactions contemplated by and carry out its obligations under, each of the
Transaction Documents to which it is a party. The execution, delivery and performance of each of
the Transaction Documents to which it is a party has been duly authorized by all necessary
corporate action on the part of AIG. This Agreement has been duly and validly executed and
delivered by AIG to the Purchaser and, assuming due authorization, execution and delivery by the
Purchaser, constitutes the valid and legally binding obligations of AIG, enforceable in accordance
with its terms, subject to the Enforceability Exceptions.



     (b) Provided that all consents, approvals, authorizations and other actions described in
Section 3.2 have been obtained or taken, except as otherwise provided in this Section 7.9
and except as may result from any facts or circumstances relating to the identity or regulatory
status of the Purchaser or its Affiliates, the execution and delivery by AIG of, and the
consummation by AIG of the transactions contemplated by, the Transaction Documents to which it is a
party do not and will not (a) violate or conflict with the organizational documents of AIG, (b)
subject to the Governmental Approvals referred to in Section 3.2, conflict with or violate
any Law or other Governmental Order applicable to AIG or by which it or any of its properties or
assets is bound or subject, except, in the case of clause (b), for any such conflicts or violations
that, individually or in the aggregate, would not reasonably be expected to have an AIG Material
Adverse Effect.



     (c) except as may result from any facts or circumstances solely relating to the identity or
regulatory status of Purchaser or its Affiliates and except as set forth on Schedule 7.9(c)
hereto, do not require any Governmental Approval, to be obtained or made by AIG, except for



51









 







any Governmental Approvals the failure to obtain or make which, individually or in the
aggregate, would not reasonably be expected to have an AIG Material Adverse Effect.



ARTICLE VIII




DEFINITIONS




     Section 8.1 Definitions. The following terms have the respective meanings set forth
below:



     “Action” means any claim, action, suit, proceeding, arbitral action, governmental
inquiry, criminal prosecution or other investigation.



     “Additional Purchaser Deposit” has the meaning set forth in Section
1.3(b)(i)(B)(2) hereof.



     “After-Tax Basis” means that, in determining the amount of the payment necessary to
indemnify any party against, or reimburse any party for, Losses, the amount of such Losses shall be
determined net of any Tax benefit derived (or reasonably expected to be derived) by the Indemnified
Party (or any Affiliate thereof) as the result of sustaining or paying such Losses (including as
the result of facts or circumstances due to which the Indemnified Party sustained or paid such
Losses). Such Tax benefits shall be computed assuming that the Indemnified Party (or such
Affiliate) is subject to taxation at an invariant income tax rate equal to forty percent (40%), and
that any such Tax benefits are fully utilized in the taxable period during which such Losses are
sustained or paid.



     “Affiliate” means, with respect to any specified Person, any other Person that, at the
time of determination, directly or indirectly through one or more intermediaries, Controls, is
Controlled by or is under common Control with such specified Person; provided,
however, that for the purposes of this definition, Sellers and AIG are deemed not to be
controlled by the United States Department of the Treasury, the Board of Governors of the United
States Federal Reserve System, the Federal Reserve Bank of New York or the Federal Deposit
Insurance Corporation.



     “Agent” means the insurance agent or broker involved in the issuance of a Policy or
Annuity.



     “Agreement” means this Asset Purchase Agreement (together with the schedules and
exhibits attached hereto, which are deemed a part hereof), as amended, modified, supplemented,
waived or restated from time to time in accordance with its terms.



     “A.I. Credit” means has the meaning set forth in the recitals hereto.



     “A.I. Credit Consumer” has the meaning set forth in the recitals hereto.



     “AIG” has the meaning set forth in the preamble hereto.



     “AIG Disclosure Schedule” has the meaning set forth in the first paragraph of
Article III hereof.



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     “AIG Funding” means any amounts funded to the applicable Borrower on or after the
Closing Date and prior to the Escrowed Assets Transfer Cut-Off Date by either Seller or AIG or any
Affiliate of either Seller or AIG in respect of any Loan included in the Escrowed Assets.



     “AIG Material Adverse Effect” shall mean a material adverse effect on (i) the
execution, delivery or performance by AIG of this Agreement or the Ancillary Agreements to which it
is a party or (ii) AIG’s ability to consummate all of its obligations contemplated hereby and
thereby.



     “Allocation” has the meaning set forth in Section 1.6 hereof.



     “Ancillary Agreements” has the meaning set forth in the recitals hereto.



     “Annuitant” means any Person who is entitled to receive payments from an Annuity.



     “Annuity” has the meaning set forth in Section 1.1(b) hereof.



     “Arbitrator” has the meaning set forth in Section 1.3(b)(vi)(B) hereof.



     “Archived Files” has the meaning set forth in Section 6.2(b)(iii) hereof.



     “Assignment and Assumption Agreement” has the meaning set forth in the recitals
hereto.



     “Assumed Liabilities” has the meaning set forth in Section 1.2 hereof.



     “Bankruptcy Event” means any of the following events: (i) the passage of a resolution
for the dissolution of AIG or the Seller; (ii) AIG or any Seller becoming the subject of (A) the
entry of an order for relief by a Governmental Authority having jurisdiction in the premises
judging either or both of AIG and any Seller a bankrupt or insolvent under any applicable
bankruptcy, insolvency, reorganization, liquidation, rehabilitation, conservation, examination or
other similar Law, (B) the appointment of a receiver, liquidator, rehabilitator, conservator,
assignee, trustee, sequestrator or examiner (or other similar official) of either or both of AIG
and any Seller or of any substantial part of the property of either of them, (C) an order to wind
up or liquidate either or their affairs, or (D) an involuntary bankruptcy, insolvency,
reorganization, liquidation, rehabilitation, conservation, examination or other similar proceeding
with respect to either or both of AIG and any Seller that is unstayed or undismissed for a period
of thirty (30) consecutive days; or (iii) any of (A) the commencement by either or both of AIG and
any Seller of a proceeding to be adjudicated a bankrupt or insolvent; (B) the consent by either or
both of AIG and any Seller to the institution of bankruptcy, insolvency or examination proceedings
against it, (C) the filing or consent to the filing by either or both of AIG and any Seller of a
petition or answer or consent seeking reorganization or relief under any applicable bankruptcy,
insolvency, reorganization, liquidation, rehabilitation, conservation, examination or other similar
Law, (D) the consent or application by either or both of AIG and any Seller to the appointment of a
receiver, liquidator, rehabilitator, conservator, assignee, trustee, sequestrator, examiner (or
other similar official) of AIG or any Seller, as applicable, or of any substantial part of AIG’s or
any Seller’s property, or (E) the making by either or both of AIG and any Seller of an assignment
for the benefit of creditors.



53









 





     “Baseline Date” means June 30, 2009 or, solely in respect of Loan number 90-101780,
July 17, 2009.



     “Basket Amount” has the meaning set forth in Section 7.2(b)(ii) hereof.



     “Benefit Plans” has the meaning set forth in Section 3.11(a) hereof.



     “Books and Records” has the meaning set forth in Section 6.2(b)(i) hereof.



     “Borrower” means the “Borrower” or the Person holding an equivalent position, under,
and as identified in, a Loan Agreement.



     “Breach Obligations” has the meaning set forth in Section 1.2(a) hereof.



     “Business Day” means a day other than a Saturday, a Sunday or any day on which
commercial banks located in the State of New York are authorized or obligated to close under the
Laws of the State of New York.



     “Closing” has the meaning set forth in Section 2.1 hereof.



     “Closing Date” means the date of this Agreement.



     “Closing Date Loan Principal Amount” means the principal amount of each Loan
outstanding pursuant to the terms of the Loan Documents as of the Closing Date, as set forth and
calculated on the Closing Date Loan Value Schedule (and in the manner set forth in Section
1.5(a) hereof).



     “Closing Date Loan Value” means, in respect of each Loan outstanding pursuant to the
terms of the Loan Documents as of the Closing Date, the sum of (i) the Closing Date Loan Principal
Amount of such Loan, (ii) the aggregate amount of accrued and unpaid interest on such Loans
outstanding as of the Closing Date less any Pre-Closing Prepaid Interest Amounts received by the
applicable Seller prior to the Closing Date and (iii) the aggregate amount of any other fees or
other amounts due and payable to a Seller in respect of such Loan pursuant to the terms of the Loan
Documents outstanding as of the Closing Date, each as set forth and calculated on the Closing Date
Loan Value Schedule (and in the manner set forth in Section 1.5(a) hereof).



     “Closing Date Loan Value Schedule” has the meaning set forth in Section 1.5(a)
hereof.



     “Closing Date Purchased Assets” means the Purchased Assets set forth on Schedule
1.1(x) hereof.



     “Code” means the United States Internal Revenue Code of 1986, as amended.



     “Confidentiality Agreement” has the meaning set forth in Section 5.2(a)
hereof.



     “Consumer Information” means medical, health, financial and personal information about
an Obligor or an Insured under a Policy or an Annuitant under an Annuity, as the case may be (each,
a “Consumer”), including, but not limited to, a Consumer’s name, street or mailing



54









 







address, electronic mail address, telephone or other contact information, employer, social
security or tax identification number, date of birth, driver’s license number, state identification
card number, financial account, credit or debit card number, health insurance information, health
and medical information, or photograph or documentation of identity or residency (whether
independently disclosed or contained in any disclosed document).



     “Contingency Fee Obligation Limit” has the meaning set forth in Section 1.2(d)
hereof.



     “Control” means, as to any Person, the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting securities, by
contract or otherwise. The terms “Controlled by”, “under common Control with” and “Controlling”
shall have correlative meanings. For the purposes of this Agreement, AIG shall be deemed not to be
controlled by any Person.



     “Custodian” has the meaning set forth in the recitals hereto.



     “Data Security Breach” means the loss or misuse of Consumer Information, the
inadvertent, unauthorized, and/or unlawful processing, disclosure, access, alteration, corruption,
transfer, sale or rental, destruction, or use of Consumer Information, or any other act or omission
that compromises the security, confidentiality, or integrity of Consumer Information.



     “Discount” means in respect of each Loan, 27.5%; provided, that the “Discount”
shall be 37.5% solely with respect to Loan Numbers 20-100602, 20-101462, 90-100655, 90-100729,
90-100969, 90-101221, 90-101388, 90-101448, 90-101528, 90-101530, 91-100643, 91-100801, 91-100949,
91-101065, 91-101146, 91-101289, 91-100148 and 91-100149.



     “Document Retention Hold” means the documents and records whose preservation is
mandated by a document retention notice issued in connection with any litigation, arbitration,
mediation (or other form of dispute resolution), third party subpoenas, or regulatory inquiries as
set forth in Schedule 8.1(t) with respect to the Purchased Assets. For the purposes of
this definition, the term “documents” is defined as set forth in the applicable document retention
notice.



     “Eligible Insurance Proceeds” has the meaning set forth in Section 7.8(d)
hereof.



     “Enforceability Exceptions” has the meaning set forth in Section 3.1 hereof.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “Escrow Accounts” has the meaning set forth in the Escrow Agreement.



     “Escrow Agent” has the meaning set forth in the recitals hereto.



     “Escrow Agent Indemnified Party” has the meaning set forth in the Escrow Agreement.



     “Escrow Agreement” has the meaning set forth in the recitals hereto.



     “Escrow Earnings” has the meaning set forth in the Escrow Agreement.



55









 





     “Escrowed Asset Non-Legal Loan Files” has the meaning set forth in Section
1.1(x) hereof.



     “Escrowed Assets” means the Purchased Assets set forth on Schedule 1.1(y)
hereof.



     “Escrowed Assets Escrow Account” has the meaning set forth in the Escrow Agreement.



     “Escrowed Asset Release Date” has the meaning set forth in Section
1.3(b)(vi)(C) hereof.



     “Escrowed Asset Transfer Cut-Off Date” has the meaning set forth in Section
1.3(b)(v) hereof.



     “Escrowed Asset Transfer Period” has the meaning set forth in Section
1.3(b)(ii) hereof.



     “Estimated Closing Date Purchased Assets Purchase Price” has the meaning set forth in
Section 1.4 hereof.



     “Estimated Escrowed Assets Purchase Price” has the meaning set forth in Section
1.4 hereof.



     “Estimated Purchase Price” has the meaning set forth in Section 1.4 hereof.



     “Excluded Assets” has the meaning set forth in Section 1.3(a) hereof.



     “Excluded Liabilities” has the meaning set forth in Section 1.2 hereof.



     “Facilities Payment” means the payment in the amount of $350,000 to Purchaser as
inducement for Purchaser to establish its facilities for the ownership and operation of the
Purchased Assets at 101 Hudson Street, Jersey City, New Jersey, 35th floor, in order to
facilitate an orderly operational and physical separation and relocation of the Purchased Assets
from Sellers’ existing facilities in the same building.



     “Final Closing Date Purchase Price” has the meaning set forth in Section
1.5(c) hereof.



     “GAAP” means United States generally accepted accounting principles.



     “Governmental Approval” has the meaning set forth in Section 3.2(b) hereof.



     “Governmental Authority” means any local, state, provincial, federal or foreign
governmental, legislative, judicial, administrative or regulatory authority, agency, commission,
body, court, association or entity.



     “Governmental Order” means any order, writ, judgment, injunction, decree, stipulation,
determination or award entered by or with any Governmental Authority.



     “Guarantee and Pledge Agreement” means the Guarantee and Pledge Agreement, dated as of
September 22, 2008 among AIG, the Guarantors party thereto and the Federal Reserve Bank of New
York, as Secured Party (as amended, modified or supplemented from time to time in accordance with
its terms).



56









 





     “Improvement” means an enhancement, update, modification, or other derivative work of
an underlying work.



     “Indemnified Party” has the meaning set forth in Section 7.5(a) hereof.



     “Indemnifying Party” has the meaning set forth in Section 7.5(a) hereof.



     “Initial Loan Principal Amount” means the principal amount of each Loan outstanding
pursuant to the terms of the Loan Documents as of the Baseline Date, as set forth and calculated on
the Initial Loan Value Schedule.



     “Initial Loan Value” means, in respect of each Loan outstanding pursuant to the terms
of the Loan Documents as of the Baseline Date, the sum of (i) the Initial Loan Principal Amount of
such Loan, (ii) the aggregate amount of accrued and unpaid interest on such Loan outstanding as of
the Baseline Date less any Pre-Closing Prepaid Interest Amounts received by the applicable Seller
prior to the Baseline Date and (iii) the aggregate of any other fees or other amounts due and
payable to a Seller in respect of such Loan pursuant to the terms of the Loan Documents outstanding
as of the Baseline Date, each as set forth and calculated on the Initial Loan Value Schedule.



     “Initial Loan Value Schedule” has the meaning set forth in Section 1.4 hereof.



     “Initial Purchase Price” has the meaning set forth in Section 1.4 hereof.



     “Independent Accountant” has the meaning set forth in Section 1.5(b) hereof.



     “Insured” means the individual or individuals named as the insured under the terms of
a Policy.



     “Insurer” means, with respect to each Policy or Annuity, as applicable, the insurance
company that issued such Policy or Annuity, as the case may be.



     “Intellectual Property” means: (a) patents, patent applications and statutory
invention registrations, including reissues, divisions, continuations, continuations in part,
renewals, extensions and reexaminations thereof, all patents which may issue on such applications,
documented unpatented invention disclosures, and all rights therein provided by international
treaties or conventions, (b) trademarks, service marks, trade dress, logos, Internet domain names,
any and all common law rights thereto, and registrations and applications for registration thereof,
all rights therein provided by international treaties or conventions, and all reissues, extensions
and renewals of any of the foregoing, (c) copyrights, whether or not registered, and registrations
and applications for registration thereof, and all rights therein provided by international
treaties or conventions, (d) proprietary information, including trade secrets, processes and know
how, and (e) applications, computer programs, technology, trade secrets, know how, confidential
information, proprietary processes and formulae.



     “Knowledge” means as to any Seller, the actual knowledge, after due inquiry, as of the
date of this Agreement of any Person listed on Schedule 8.1(u), subject to the subject
matter limitations set forth on such schedule.



57









 





     “Knowledge of Purchaser” means, the actual knowledge, after due inquiry, as of the
date of this Agreement of any Person listed on Schedule 8.1(v), subject to the subject
matter limitations set forth on such schedule.



     “L3 System” means the proprietary software application used to support the life
insurance premium finance business of the Sellers and process information with respect to such
business.; provided, however, that the “L3 System” shall not include any third
party software, including any open source software that is used with such proprietary software.
For purposes of clarification, the third party software excluded pursuant to the proviso in the
immediately preceding sentence includes, without limitation the software set forth on Schedule
8.1(w).



     “Law” means any law, statute, rule, regulation, ordinance or any rule, regulation,
standard, judgment, order, writ, injunction, ruling, decree or agency requirement of any
Governmental Authority.



     “LIBOR” means the applicable London Interbank Offered Rate.



     “Lien” means any lien, security interest, pledge, mortgage, charge or other
encumbrance of any kind.



     “Litigation Hold” means the scope of documents and records whose preservation is
mandated by a document retention notice issued in connection with any litigation, arbitration,
mediation (or other form of dispute resolution), third party subpoena, or regulatory inquiry.



     “Loan” has the meaning set forth in Section 1.1(a) hereof.



     “Loan Agreement” has the meaning set forth in Section 1.1(b)(i) hereof.



     “Loan Collateral” has the meaning set forth in Section 1.1(c) hereof.



     “Loan Documents” has the meaning set forth in Section 1.1(b) hereof.



     “Loan Files” has the meaning set forth in Section 1.1(d) hereof.



     “Loan Security Document” means any Loan Document which purports to evidence or grant a
security interest in, or which purports to provide for the pledge, assignment, mortgage, delivery
or transfer as security of, any property for the payment and/or performance of any obligation of an
Obligor under any Loan Document.



     “Loan Servicing Agreement” has the meaning set forth in the recitals hereto.



     “Losses” means all losses, damages, costs, expenses, liabilities, obligations and
claims of any kind, including reasonable and documented attorneys’, accountants’, investigators’,
consultants’ and other experts’ fees and costs incurred by an Indemnified Party in investigating,
enforcing or defending its indemnification rights under this Agreement, but excluding (i) punitive
damages other than punitive damages recovered by third parties in connection with a Third Party
Claim and (ii) any damage solely attributable to diminution of value or lost profits to the extent
constituting damages in excess of the difference between the value of what the



58









 







Indemnified Party received in the transactions contemplated by this Agreement and the value of
what the Indemnified Party should have received in the transactions contemplated by the Agreement
if there had been no breach of the representation and warranty or covenant by the Indemnifying
Party for which breach the Indemnified Party is seeking indemnification.



     “Material Adverse Effect” means an effect that is materially adverse to (i) the
Purchased Assets, taken as a whole; provided, however, that “Material Adverse
Effect” shall not be deemed to include the effects of (A) changes after the date of this Agreement
in general United States or global business, political, economic or market (including, without
limitation, capital or financial markets) conditions (including changes generally in prevailing
interest rates, credit availability or liquidity, currency exchange rates or price levels or
trading volumes in the United States or foreign securities or credit markets), any outbreak,
escalation or worsening of hostilities, declared or undeclared acts of war, sabotage, military
action or terrorism, (B) changes or proposed changes after the date hereof in GAAP or regulatory
accounting requirements, or authoritative interpretations thereof, (C) changes or proposed changes
after the date hereof in Laws of general applicability or related policies or interpretations of
Governmental Authorities (in the case of each of these clauses (A), (B) and (C), other than changes
or occurrences to the extent that such changes or occurrences have or would reasonably be expected
to have a materially disproportionate adverse effect on the Purchased Assets relative to comparable
loans made by other United States banking or financial services organizations), (D) the
negotiation, execution, announcement or consummation of the transactions contemplated by, or the
performance of obligations under, this Agreement or the other Transaction Documents, (E) the
identity of, or the effects of any facts or circumstances relating to, the Purchaser, (F) actions
permitted to be taken or omitted pursuant to this Agreement or taken with the Purchaser’s consent
or not taken because the Purchaser declined to give its consent, (G) any change or development in
the credit, financial strength or other ratings of, or the value of any of the investment assets
of, the Sellers or any of their Affiliates, (H) any failure by the Sellers to achieve any earnings
or other financial projections or forecasts (unless the facts and circumstances giving rise to such
failure are not otherwise excluded from the definition of “Material Adverse Effect”); or (ii) the
ability of each Seller to perform and comply with its obligations under this Agreement (including
each Seller’s obligations to perform as directed or as caused to be performed by AIG hereunder) and
the Transaction Documents to which each Seller is a party and to consummate the transactions
contemplated by the Transaction Documents on a timely basis.



     “Maximum Amount” has the meaning set forth in Section 6.4(a) hereof.



     “Maximum Indemnification Obligation” has the meaning set forth in Section
7.2(b)(iii) hereof.



     “Notice of Disagreement” has the meaning set forth in Section 1.5(b) hereof.



     “Notice of Insurance” has the meaning set forth in Section 7.8(d) hereof.



     “Obligor” means (i) each Borrower, (ii) any Person which has guaranteed pursuant to a
Loan Document any payment or other obligation of a Borrower under a Loan Document and




59












 




(iii) any other Person with a payment or other obligation to a Seller under a Loan Document,
including any Person which has granted a collateral security interest in favor of a Seller.




     “Operational Files” has the meaning set forth in Section 6.2(b)(iii) hereof.



     “OFAC” has the meaning set forth in Section 1.3(b)(vii)(A) hereof.



     “Ordinary Course of Business” means (i) with respect to an action taken or omitted to
be taken during the period on or prior to March 31, 2008 (such period, the “Specified Prior
Period”), an action taken or omitted to be taken consistent with such Seller’s custom and
practices as in effect at the time such action or omission to act was taken, (ii) with respect to
an action taken or omitted to be taken during the period commencing on April 1, 2008 through but
not including September 1, 2008 (such period, the “Specified Subsequent Period”), an action
taken or omitted to be taken which is consistent with such Seller’s custom and practices as in
effect during either the Specified Prior Period or the Specified Subsequent Period and (iii) with
respect to an action taken or omitted to be taken during the period on an after September 1, 2008,
an action taken or omitted to be taken which is consistent with such Seller’s custom and practices
as in effect since September 1, 2008, and, in each case, where for such action to be taken or
omitted to be taken, no separate authorization of a Seller’s board of directors is required;
provided, however, that any material loss incurred in connection with litigation or
judicial, administrative or arbitration proceedings or claims against a Seller shall not be deemed
to be incurred in the Ordinary Course of Business.



     “Organizational Documents” means collectively the certificate or articles of
incorporation, bylaws or other constituent documents of a Seller or Purchaser, as applicable.



     “Origination and Servicing Laws” has the meaning set forth in Section 3.7(a)
hereof.



     “Parent Names and Marks” has the meaning set forth in Section 5.1(a) hereof.



     “Permitted Liens” means the following: (i) the Liens set forth on Schedule
8.1(x) hereto; (ii) the Liens granted pursuant to the Escrow Agreement; (iii) any Lien created
pursuant to and in material compliance with a Loan Document; (iv) any “Permitted Lien”, “Permitted
Encumbrance” or similar term under, and as defined in, any Loan Document; (v) Liens for Taxes (a)
that are not yet due and payable or (b) that are being contested in good faith; (vi) statutory
Liens of landlords and workers’, mechanics’, suppliers’, carriers’, warehousemen’s and other
similar Liens; (vii) Liens incurred or deposits made in the ordinary course of business in
connection with workers’ compensation, unemployment insurance or other types of social security;
(viii) Liens incurred in the ordinary course of business securing obligations or liabilities that
are not individually or in the aggregate material to the Loans; (ix) Liens created by (1) the
Guarantee and Pledge Agreement, (2) the Credit Agreement, dated as of September 22, 2008, between
AIG and the Federal Reserve Bank of New York (as amended, modified or supplemented from time to
time in accordance with its terms) or (3) any other contract with, or entered into at the direction
of, the Federal Reserve Bank of New York or the U.S. Department of the Treasury, each of which such
Liens described in clauses (ix)(1) through (3) automatically
discharge at Closing; and (x) Liens resulting from any facts or circumstances relating to the
Purchaser or its Affiliates.



60









 





     “Person” means any natural person, general or limited partnership, corporation,
limited liability company, limited liability partnership, firm, association or organization or
other legal entity.



     “Policies” has the meaning set forth in Section 1.1(b)(i) hereof.



     “Post-Closing Covenants” has the meaning set forth in Section 7.1 hereof.



     “Post-Closing Prepaid Interest Amount” has the meaning set forth Section
2.2(c) hereof.



     “Pre-Closing Prepaid Interest Amount” means, with respect to any Loan, any amount
prepaid by the applicable Borrower to the applicable Seller in respect of interest not accrued and
not due and payable prior to the Baseline Date in respect of the calculation of the Initial Loan
Value or prior to the Closing Date in respect of the calculation of the Closing Date Loan Value, as
the case may be.



     “Purchased Assets” has the meaning set forth in Section 1.1 hereof.



     “Purchase Price” has the meaning set forth in Section 1.4 hereof.



     “Purchase Price Escrow Account” has the meaning set forth in the Escrow Agreement.



     “Purchase Price Increase” has the meaning set forth in Section 1.5(c) hereof.



     “Purchase Price Percentage” means in respect of each Loan, one hundred percent (100%)
minus the Discount.



     “Purchase Price Reduction” has the meaning set forth in Section 1.5(c) hereof.



     “Purchaser” has the meaning set forth in the preamble to this Agreement.



     “Purchaser Benefit Plans” has the meaning set forth in Section 6.7(e)(i).



     “Purchaser Disclosure Schedule” has the meaning set forth in Article IV
hereof.



     “Purchaser Funding” means any amounts funded to the applicable Borrower on or after
the Closing Date and prior to the Escrowed Assets Transfer Cut-Off Date by the Purchaser or any
Affiliate of the Purchaser in respect of any Loan included in the Escrowed Assets.



     “Purchaser Indemnified Parties” has the meaning set forth in Section 7.2(a)
hereof.



     “Purchaser Material Adverse Effect” shall mean a material impairment or delay of the
ability of the Purchaser to perform its obligations under this Agreement or to consummate the
transactions contemplated hereby. For the avoidance of doubt and without limiting the foregoing,
“Purchaser Material Adverse Effect” includes a material impairment of the ability of the
Purchaser to obtain any Governmental Approval required in connection with the
consummation of the transactions contemplated by the Transaction Documents, notwithstanding
the compliance by the Purchaser with the terms of this Agreement (including Section 6.3
hereof).



61









 





     “Purchaser Permits” has the meaning set forth in Section 4.3(a) hereof.



     “Purchaser’s 401(k) Plan” means the Wintrust Financial Corporation Retirement Savings
Plan.



     “Purchaser’s Specified Representations” means, collectively, Purchaser’s
representations and warranties set forth in Sections 4.1 (Organization and Authority),
4.3 (Governmental Licenses and Permits), 4.5 (Broker’s and Advisor’s Fees),
4.6 (Securities Matters), 4.9 (Investigation) and 4.10 (Disclaimer) hereof.



     “reasonable efforts” means, when used with respect to any party, the commercially
reasonable and good faith efforts of a party without the requirement that such party incur any
unreasonable out of pocket expenses or other unreasonable burden, or commence or pursue litigation
in any action, suit or proceeding, whether administrative, civil, criminal or otherwise.



     “Reassumed Asset” has the meaning set forth in Section 1.3(b)(vii)(A) hereof.



     “Reassumed Loan” has the meaning set forth in Section 1.3(b)(vii)(C)(1) hereof.



     “Reassumed Loan Price” means an amount equal to, in the aggregate, the Reassumption
Date Loan Value of each Reassumed Loan multiplied by the applicable Purchase Price Percentage in
respect of such Reassumed Loan.



     “Reassumption Date” has the meaning set forth in Section 1.3(b)(vii)(A)
hereof.



     “Reassumption Date Loan Principal Amount” means the principal amount of each Loan
outstanding pursuant to the terms of the Loan Documents and included in the Escrowed Assets as of
the Reassumption Date, as set forth and calculated on the Reassumption Date Loan Value Schedule.



     “Reassumption Date Loan Value” means, in respect of each Loan outstanding pursuant to
the terms of the Loan Documents and included in the Escrowed Assets as of the Reassumption Date,
the sum of (i) the Reassumption Date Loan Principal Amount of such Loan, (ii) the aggregate amount
of accrued and unpaid interest on such Loans outstanding and included in the Escrowed Assets as of
the Reassumption Date less (a) any Post-Closing Prepaid Interest Amounts remitted by the applicable
Seller to the Escrow Agent and deposited into the Escrowed Assets Escrow Account in accordance with
the terms of this Agreement and the Escrow Agreement on or prior to the Escrowed Assets Transfer
Cut-Off Date and (b) an amount equal to any AIG Funding outstanding as of the Reassumption Date or
Purchaser Funding outstanding as of the Reassumption Date and (iii) the aggregate amount of any
other fees or other amounts due and payable to a Seller in respect of such Loan pursuant to the
terms of the Loan Documents outstanding and included in the Escrowed Assets as of the Reassumption
Date, each as set forth and calculated on the Reassumption Date Loan Value Schedule and calculated
in the same manner as the Closing Date Loan Value, using accounting procedures and practices
consistent
with those used to calculate the Closing Date Loan Value, including the same Purchase Price
Percentage in respect of each Loan.



62









 





     “Reassumption Date Loan Value Schedule” has the meaning set forth in Section
1.3(b)(vii)(B) hereof.



     “Reassumption Price” has the meaning set forth in Section 1.3(b)(vii)(C)(1)
hereof.



     “Reassumption Price Notice of Disagreement” has the meaning set forth in Section
1.3(b)(vii)(D) hereof.



     “Reassumption Transfer Date” has the meaning set forth in Section
1.3(b)(vii)(C) hereof.



     “Related Parties” with respect to any specific Person, means (i) any Affiliate of such
Person, or any director, officer, general partner or managing member of such Affiliate or Person in
a similar capacity of such Affiliate, (ii) any other Person who holds, directly or through an
Affiliate, any of the outstanding equity or ownership interests of such specified Person or (iii)
any immediate family member (i.e., any spouse, parent, child or sibling, including adoptive
relationships and relationships through marriage or civil union) of a Person described in clause
(i) or (ii); provided, however, that for the purposes of this definition, Sellers
and AIG are deemed not to be “Related Parties” of the United States Department of the Treasury, the
Board of Governors of the United States Federal Reserve System, the Federal Reserve Bank of New
York or the Federal Deposit Insurance Corporation.



     “Released Escrowed Assets” has the meaning set forth in Section 1.1(y) hereof.



     “Released Escrowed Assets Certification” has the meaning set forth in Section
1.3(b)(vi)(C) hereof.



     “Released Escrowed Assets Certification Notice of Disagreement” has the meaning set
forth in Section 1.3(b)(vi)(C) hereof.



     “Representative” of a Person means the directors, officers, employees, advisors,
agents, attorneys, consultants, accountants, investment bankers or other representatives of such
Person and of such Person’s Affiliates.



     “Required Consents” has the meaning set forth in Section 1.3(b)(ii) hereof.



     “Required Consents Certification” has the meaning set forth in Section
1.3(b)(vi)(A) hereof.



     “Required Consents Notice of Disagreement” has the meaning set forth in Section
1.3(b)(vi)(A) hereof.



     “Restrictive Covenant Agreement” has the meaning set forth in the recitals hereto.



     “Retention Bonus Agreements” has the meaning set forth in Section 6.7(c)
hereof.



     “Securities Act” means the U.S. Securities Act of 1933, as amended.



     “Seller Indemnified Party” has the meaning set forth in Section 7.3(a) hereof.



63









 





     “Sellers” has the meaning set forth in the recitals hereto.



     “Sellers’ Specified Representations” means, collectively, the representations and
warranties of Sellers set forth in Sections 3.1 (Organization and Authority of Sellers),
3.2 (No Violation; Consents) excluding, however, 3.2(c)(i), 3.4 (Title to Purchased
Assets), 3.6(c) (as to copies of certain Loan Documents), 3.14 (Broker’s and
Advisor’s Fees) and 3.16 (Disclaimer) hereof.



     “Specified A.I. Credit Employees” has the meaning set forth in Section 3.8
hereof.



     “Taxes” means, collectively, (i) any net or gross income, minimum, alternative
minimum, sales, goods and services, value added, ad valorem, use, excise, franchise, real or
personal property, transfer, conveyance, environmental, gross receipts, capital stock, production,
business and occupation, disability, employment, payroll, severance, withholding or other tax,
assessment, duty, fee, levy or charge of any nature whatever, whether disputed or not, imposed by
any Governmental Authority, (ii) any interest, penalties (civil or criminal), additions to tax or
additional amounts related either to amounts described in clause (i) or to the nonpayment thereof
and (iii) any obligation under any agreement or other arrangement with respect to any item
described in clause (i) or (ii) above.



     “Tax Return” means any return, report or similar statement required to be filed with
respect to any Tax (including any attached schedules), including, without limitation, any
information return, claim for refund, amended return or declaration of estimated Tax.



     “Third Party Claim” has the meaning set forth in Section 7.5(a) hereof.



     “Threshold Amount” has the meaning set forth in Section 7.2(b) hereof.



     “Transaction Documents” means, collectively, (i) this Agreement, (ii) the Ancillary
Agreements and (iii) the Assignment and Assumption Agreement.



     “Transferred Employees” has the meaning set forth in Section 6.7(a).



     “Transferred Intellectual Property” means the Transferred Life Business Intellectual
Property and the Transferred System Intellectual Property.



     “Transferred Life Business Intellectual Property” means the Intellectual Property
assets set forth on Schedule 8.1(y) hereto.



     “Transferred System Intellectual Property” means the copy of the source code for the
L3 System delivered to the Purchaser, as adapted for Purchaser in accordance with the Purchaser’s
written instructions as set forth on Schedule 8.1(z) hereto.



     “Transition Services Agreement” has the meaning set forth in the recitals hereto.



     “UCC” means the Uniform Commercial Code in the applicable jurisdiction.



64









 





     “Valuation Adjustment Amount” means an amount mutually agreed in good faith by the
parties and not otherwise reflected in the calculation of the Reassumption Date Loan Value of any
Reassumed Loan to give effect to any amendment to or waiver of any Loan Document relating to such
Reassumed Loan following the Closing which decreases the value of such Reassumed Loan, determined
in accordance with the same principles used to determine the Closing Date Loan Value of such
Reassumed Loan. For the avoidance of doubt, any amendment or waiver made in connection with any
renewal funding made by Purchaser of any Reassumed Loan on materially the same terms (including
compliance with underwriting standards and ordinary course collateralization standards) as of the
latter of the date of (x) the original origination of such Reassumed Loan or (y) the most recent
renewal of such Reassumed Loan prior to the Closing Date by the applicable Seller, shall not be
deemed to decrease the value of such Reassumed Loan for purposes of determining any applicable
Valuation Adjustment Amount in respect of such Reassumed Loan.



ARTICLE IX




MISCELLANEOUS




     Section 9.1 Expenses. Except as set forth in Section 6.4 or as may be
otherwise specified in the Transaction Documents, all costs and expenses, including fees and
disbursements of counsel, financial advisers and accountants, incurred in connection with the
Transaction Documents and the transactions contemplated by the Transaction Documents shall be paid
by the Person incurring such costs and expenses.



     Section 9.2 Notices. All notices, requests, claims, demands and other communications
under the Transaction Documents shall be in writing and shall be given or made (and shall be deemed
to have been duly given or made upon receipt) by delivery in person, by overnight courier service,
by facsimile with receipt confirmed (followed by delivery of an original via overnight courier
service) or by registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 9.2):



     (a) If to AIG, to:


American International Group, Inc.

70 Pine Street

New York, New York 10270

Attention: General Counsel

Facsimile: (212) 425-2175




65









 







With a copy to:



American International Group, Inc.

70 Pine Street — Floor 24

New York, NY 10270

Attention: Financial Services Division

                 General Counsel

Facsimile: (866) 587-2665



With a further copy to A.I. Credit Corp. at the address below.




     (b) If to any Seller, to:


A.I. Credit Corp.

101 Hudson Street, Floor 33

Jersey City, New Jersey 07302

Attention: General Counsel

Facsimile: (201) 631-5515



In each case with a copy to AIG at the address above.



In the case of each of (a) and (b), with a copy to:

Sidley Austin llp

787 Seventh Avenue

New York, New York 10019

Attention: Jonathan L. Freedman, Esq.

Facsimile: (212) 839-5599




     (c) If to Purchaser, to:


FIRST Insurance Funding Corp.

450 Skokie Blvd.

Suite 1000

Northbrook, IL 60062

Attention: Frank J. Burke, President

Facsimile: (847) 509-7145



and to:



Wintrust Financial Corporation

727 North Bank Lane

Lake Forest, IL 60045

Attention: David A. Dykstra, Senior Executive Vice President

Facsimile: (847) 615-4091




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With a copy to:



Schiff Hardin LLP

233 South Wacker Drive

Suite 6600

Chicago, IL 60606

Attention: Matthew Galo, Esq.

Facsimile: (312) 258-5600




     Section 9.3 Public Announcements. No party to this Agreement or any Affiliate or
Representative of such party shall issue or cause the publication of any press release or public
announcement or otherwise communicate with any news media in respect of this Agreement or the
transactions contemplated by this Agreement without the prior written consent of the other party
(which consent shall not be unreasonably withheld, delayed or conditioned), except as may be
determined in good faith upon the advice of counsel to be required by applicable Law, applicable
securities exchange rules or by the United States Department of the Treasury, the Board of
Governors of the United States Federal Reserve System, the Federal Reserve Bank of New York, the
Federal Reserve Bank of Chicago or the Federal Deposit Insurance Corporation, in which case the
party seeking to publish such press release or public announcement shall allow the other parties a
reasonable opportunity to comment on such press release or public announcement in advance of such
publication.



     Section 9.4 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in full force and
effect so long as the economic or legal substance of the transactions contemplated by this
Agreement is not affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being enforced, the parties to
this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in order that the
transactions contemplated by this Agreement be consummated as originally contemplated to the
greatest extent possible.



     Section 9.5 Entire Agreement. Except as otherwise expressly provided in the
Transaction Documents, the Transaction Documents constitute the entire agreement of the parties
hereto with respect to the subject matter of the Transaction Documents and supersede all prior
agreements and undertakings, both written and oral, other than the Confidentiality Agreement to the
extent not in conflict with this Agreement, between or on behalf of Sellers and/or their respective
Affiliates, on the one hand, and the Purchaser and/or its Affiliates, on the other hand, with
respect to the subject matter of the Transaction Documents.



     Section 9.6 Assignment. This Agreement shall not be assigned, in whole or in part,
by operation of law or otherwise without the prior written consent of the parties hereto;
provided, however, that no such assignment shall release Purchaser from any
liability or obligation under this Agreement. Any attempted assignment in violation of this
Section 9.6 shall be void. This Agreement shall be binding upon, shall inure to the
benefit of, and shall be enforceable by the parties hereto and their successors and permitted
assigns. Notwithstanding the foregoing, the



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parties hereto hereby acknowledge and agree that upon any Seller no longer constituting an
Affiliate of AIG, such Seller shall be deemed to have assigned such Seller’s rights and obligations
hereunder to AIG, and AIG shall be deemed to have assumed such Seller’s rights and obligations, and
thereafter (i) AIG shall be entitled to the benefits of Purchaser’s covenants, agreements and
obligations hereunder with respect to such Seller, and (ii) Purchaser shall be entitled to the
benefits of such Seller’s covenants, agreements and obligations hereunder as assumed by AIG, in
each case, without any further action by Purchaser, AIG or such Seller or the execution of any
further instrument.



     Section 9.7 Third-Party Beneficiaries. Except as provided in Article VII with respect to
Seller Indemnified Parties and Purchaser Indemnified Parties and in the following proviso, this
Agreement is for the sole benefit of the parties to this Agreement and their successors and
permitted assigns and nothing in this Agreement, express or implied, is intended to or shall confer
upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement; provided, that the parties hereto hereby acknowledge
and agree that AIG (i) shall be an express third party beneficiary of each Seller’s respective
legal and equitable rights, benefits and remedies hereunder or by reason of this Agreement and (ii)
shall be permitted, without any further action by any Seller, AIG or Purchaser or the execution of
any further instrument, to enforce such rights and benefits and exercise such remedies in such
Seller’s name and on its behalf.



     Section 9.8 Amendment; Waiver. No provision of this Agreement or any other
Transaction Documents may be amended, supplemented or modified except by a written instrument
signed by all the parties to such agreement. No provision of this Agreement or any other
Transaction Document may be waived except by a written instrument signed by the party against whom
the waiver is to be effective. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by Law.



     Section 9.9 AIG Disclosure Schedule. For all purposes of this Agreement, (i) the AIG
Disclosure Schedule and any matter disclosed in the AIG Disclosure Schedule is qualified in its
entirety by reference to the specific provisions of this Agreement, and is not intended to
constitute, or be construed as constituting, any representations or warranties of AIG or any of its
Affiliates (including the Sellers), except and to the extent provided in this Agreement, (ii) the
inclusion of information in the AIG Disclosure Schedule shall not be deemed to constitute (a) an
admission or otherwise imply that such information (1) is material to the condition (financial or
otherwise) or results of operations of any of the Sellers (whether or not covered by insurance),
taken as a whole, (2) is material to the ability of AIG or any of its Affiliates (including the
Sellers) to perform any obligations under this Agreement, (3) is material to consummate the
transactions contemplated by this Agreement or (4) would have a Material Adverse Effect, or (b) an
admission of any obligation or liability to any Person who is not a party to this Agreement, (iii)
matters reflected in the AIG Disclosure Schedule are not necessarily limited to matters required by
this Agreement to be so reflected, (iv) headings inserted on the AIG Disclosure Schedule are for
convenience of reference only and shall to no extent have the effect of amending or changing the
express terms of the sections or subsections as set forth in this



68









 






     Agreement to which the AIG Disclosure Schedule relates, (v) the AIG Disclosure Schedule
contains confidential and proprietary information of AIG and its Affiliates (including the Sellers)
that is being provided to the Purchaser subject to the Purchaser’s obligations and the limitations
set forth in the Confidentiality Agreement (except to the extent superseded by Section 5.2
of this Agreement), and AIG and its Affiliates (including the Sellers) expressly do not waive any
attorney-client privilege associated with any matter disclosed in the AIG Disclosure Schedule or
any protection afforded by the work-product doctrine with respect to any matter disclosed in the
AIG Disclosure Schedule and (vi) any matter set forth on any schedule shall be deemed to be
included on all other schedules (a) which are expressly cross referenced in such other schedules or
(b) where such inclusion is reasonably apparent on the face of such disclosure.



     Section 9.10 Governing Law; Submission To Jurisdiction; Waiver of Jury Trial.



     (a) This Agreement, all Ancillary Agreements, all transactions contemplated by this Agreement
or any Ancillary Agreement, and all claims and defenses arising out of or relating to any such
transaction or agreement or the formation, breach, termination or validity of any such agreement,
shall in all respects be governed by, and construed in accordance with, the Laws of the State of
New York without giving effect any conflict or choice of Law principles of such state that would
apply the Laws of another jurisdiction.



     (b) Each of AIG and the Purchaser irrevocably and unconditionally:




     (i) submits for itself and its property to the exclusive jurisdiction of the Delaware
Court of Chancery, or if the Delaware Court of Chancery lacks jurisdiction of the subject
matter, the United States District Court for the District of Delaware, or if both the
Delaware Court of Chancery and the United States District Court for the District of Delaware
lack jurisdiction of the subject matter, any court of competent jurisdiction sitting in the
State of Delaware, in any Action directly or indirectly arising out of or relating to this
Agreement, the transactions contemplated by this Agreement, or the formation, breach,
termination or validity of this Agreement; and agrees that all claims in respect of any such
Action shall be heard and determined solely in such court;




     (ii) consents that any such Action may and shall be brought in such courts and waives
any objection that it may now or hereafter have to the venue or jurisdiction of any such
Action in such court or that such court is an inconvenient forum for the Action and agrees
not to assert, plead or claim the same;




     (iii) agrees that the final judgment of such court shall be enforceable in any court
having jurisdiction over the relevant party or any of its assets;




     (iv) irrevocably waives any right to remove any such Action from the Delaware Court of
Chancery to any federal court;




     (v) agrees that service of process in any such Action may be effected by mailing a copy
of such process by registered or certified mail (or any substantially similar form of mail),
postage prepaid, to such party at its address as provided in Section 9.2; and



69









 






     (vi) agrees that nothing in this Agreement shall affect the right to effect service of
process in any other manner permitted by the applicable rules of procedure.



     (c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THE
TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH
SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR
THE OTHER TRANSACTION DOCUMENTS. EACH OF AIG AND THE PURCHASER CERTIFIES AND ACKNOWLEDGES THAT (I)
NO REPRESENTATIVE, AGENT OR ATTORNEY OR ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER,
(II) EACH OF AIG AND THE PURCHASER UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER,
(III) EACH OF AIG AND THE PURCHASER MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH OF AIG AND THE
PURCHASER HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS OF THIS SECTION 9.10. EITHER OF AIG OR THE PURCHASER MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE PARTIES TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.



     Section 9.11 Rules of Construction. Interpretation of this Agreement and the other
Transaction Documents (except as specifically provided in any such agreement, in which case such
specified rules of construction shall govern with respect to such agreement) shall be governed by
the following rules of construction: (a) words in the singular shall be held to include the plural
and vice versa, and words of one gender shall be held to include the other gender as the context
requires; (b) references to the terms Article, Section, paragraph, Exhibit and Schedule are
references to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless
otherwise specified; (c) references to “$” shall mean U.S. dollars; (d) the word “including” and
words of similar import when used in the Transaction Documents shall mean “including without
limitation,” unless otherwise specified; (e) the word “or” shall not be exclusive; (f) the words
“herein,” “hereof” or “hereunder,” and similar terms are to be deemed to refer to this Agreement as
a whole and not to any specific section; (g) the headings contained in the Transaction Documents
are for reference purposes only and shall not affect in any way the meaning or interpretation of
the Transaction Documents; (h) the Transaction Documents shall be construed without regard to any
presumption or rule requiring construction or interpretation against the party drafting or causing
any instrument to be drafted; (i) if a word or phrase is defined, the other grammatical forms of
such word or phrase have a corresponding meaning; and (j) references to any statute, listing rule,
rule, standard, regulation or other Law (i) includes a reference to the corresponding rules and
regulations and (ii) includes a reference to each of them as amended, modified, supplemented,
consolidated, replaced or rewritten from time to time; and to any section of any statute, listing
rule, rule, standard, regulation or other Law include any successor to such section.



70









 





     Section 9.12 Specific Performance. The parties hereby expressly recognize and
acknowledge that immediate, extensive and irreparable damage would result, no adequate remedy at
law would exist and damages would be difficult to determine in the event that any provision of this
Agreement is not performed in accordance with its specific terms or otherwise breached. It is
accordingly agreed that the parties shall be entitled to specific performance of the terms hereof
and immediate injunctive relief, without the necessity of proving the inadequacy of money damages
as a remedy. Such remedies, and any and all other remedies provided for in this Agreement, shall,
however, be cumulative in nature and not exclusive and shall be in addition to any other remedies
whatsoever which any party may otherwise have. Each of the parties hereby acknowledges and agrees
that it may be difficult to prove damages with reasonable certainty, that it may be difficult to
procure suitable substitute performance, and that injunctive relief and/or specific performance
will not cause an undue hardship to the parties. Each of the parties hereby further acknowledges
that the existence of any other remedy contemplated by this Agreement does not diminish the
availability of specific performance of the obligations hereunder or any other injunctive relief.
Each party hereby further agrees that in the event of any action by the other party for specific
performance or injunctive relief, it will not assert that a remedy at law or other remedy would be
adequate or that specific performance or injunctive relief in respect of such breach or violation
should not be available on the grounds that money damages are adequate or any other grounds.



     Section 9.13 Counterparts. This Agreement and each of the other Transaction
Documents may be executed in one or more counterparts, and by the different parties to each such
agreement in separate counterparts, each of which when executed 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 a signature page to any Transaction Documents by facsimile shall be as
effective as delivery of a manually executed counterpart of any such Agreement.



[signature page follows]




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     IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first
above written.



	 	 	 	 	 
	 	AMERICAN INTERNATIONAL GROUP, INC.

 	 
	 	By:  	/s/ P. Nicholas Kourides
 	 
	 	 	Name:  	P. Nicholas Kourides	 
	 	 	Title:  	Attorney-in-Fact	 
	 
	 	FIRST INSURANCE FUNDING CORP.

 	 
	 	By:  	/s/ David A. Dykstra
 	 
	 	 	Name:  	David A. Dykstra	 
	 	 	Title:  	Senior Executive Vice President	 
	 



[Signature Page — Asset Purchase Agreement]