MASTER AGREEMENT
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This MASTER AGREEMENT (this "Agreement"), dated as of March 31, 2000 is
entered into among Point West Capital Corporation, formerly known as Dignity
Partners, Inc. ("PWCC"), Dignity Partners Funding Corp. I (the "Issuer"),
Bankers Trust Company (the "Indenture Trustee"), ▇▇▇▇▇▇ Financial, Inc.
("▇▇▇▇▇▇"), The Lincoln National Life Insurance Company ("Lincoln") and First
Penn-Pacific Life Insurance Company ("First Penn").
RECITALS
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WHEREAS, the Issuer, PWCC and the Indenture Trustee are parties to that
certain Contribution, Sale and Servicing Agreement, dated as of February 1, 1995
(the "Contribution, Sale and Servicing Agreement"), whereby PWCC originated and
assigned certain life insurance policies to the Issuer from time to time and, in
its capacity as Servicer, continues to provide collection, monitoring and
related services with respect to the Policies;
WHEREAS, the Issuer, PWCC, as Servicer, and the Indenture Trustee are
parties to that certain Indenture dated as of February 1, 1995 and various
amendments thereto (as so amended prior to the Effective Date, the "Indenture"),
whereby the Issuer issued its Senior Viatical Settlement Notes, Series 1995-A
(collectively, the "Notes") which are secured by the Policies;
WHEREAS, ▇▇▇▇▇▇, Lincoln and First-Penn (together, the "Noteholders")
and the Issuer previously entered into that certain Purchase Agreement, dated
February 28, 1995 (the "Purchase Agreement"), pursuant to which the Noteholders
purchased 100% of the Notes, and, as of the Effective Date, such Noteholders
continue to hold 100% of the Notes; and
WHEREAS, the Issuer, PWCC, the Indenture Trustee and the Noteholders
desire to modify certain terms applicable to the above transaction as further
provided herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
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ARTICLE ONE
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DEFINITIONS
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Section 1.01 Definitions.
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(a) The following terms have the following meanings for all
purposes of this Agreement.
"Amended Indenture": The Amended and Restated Indenture, dated
as of March 31, 2000, among the Issuer, PWCC, as the Servicer, and the
Indenture Trustee, in the form of Exhibit A attached hereto.
"Amended Servicing Agreement": The Amended and Restated
Contribution, Sale and Servicing Agreement among the Issuer, PWCC, as
the Servicer, and the Indenture Trustee, dated as of March 31, 2000, in
the form of Exhibit B attached hereto.
"Effective Date": Subject to the satisfaction of the
conditions set forth in Section 6.8 hereof, March 31, 2000.
"Stock Purchase Price": $1,000.
"Transaction Termination Date": The earlier to occur of (i)
June 30, 2002 and (ii) the date when a notice to sell the Trust Estate
is delivered by the Majority Noteholders pursuant to Section 5.02 of
the Amended Indenture becomes effective.
(b) Capitalized terms used in this Agreement and not defined
herein shall have the meaning set forth in the Amended Indenture or the Amended
Servicing Agreement, as applicable.
ARTICLE TWO
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AMENDMENT OF CERTAIN EXISTING AGREEMENTS
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Section 2.01 Amendment and Restatement of Indenture.
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The Issuer, PWCC, as Servicer, and the Indenture Trustee, with the
consent of the Noteholders, hereby consent, effective as of the Effective Date,
to all of the terms of the Amended Indenture in the form attached hereto as
Exhibit A. The Noteholders hereby authorize and direct the Trustee to enter into
the Amended Indenture as of the Effective Date and hereby waive any and all
conditions set forth in Section 9.01 of the Indenture.
Section 2.02 Amendment and Restatement of Contribution, Sale and
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Servicing Agreement.
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In consideration for PWCC agreeing to continue to service the Policies
for the period through the Transaction Termination Date, the Issuer, PWCC, as
Servicer, and the Indenture Trustee, with the consent of the Noteholders, hereby
further consent, effective as of the Effective Date, to all of the terms of the
Amended Servicing Agreement in the form attached hereto as Exhibit B. The
Noteholders hereby authorize and direct the Trustee to enter into the Amended
Servicing Agreement as of the Effective Date and hereby waive any and all
conditions set forth in Section 9.01 of the Contribution, Sale and Servicing
Agreement.
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Section 2.03 Amendment of Agency Agreement.
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The parties hereby consent, effective as of the Effective Date, to all
of the terms of that certain First Amendment to Agency Agreement, dated as of
March 31, 2000, between PWCC and Bankers Trust Company, substantially in the
form attached hereto as Exhibit C (the "Agency Agreement Amendment"). PWCC
hereby delivers notice to the Issuer, the Trustee and the Noteholders that
effective as of the Transaction Termination Date, the Agency Agreement shall
automatically terminate as it relates to any Policies then in the Trust Estate.
Section 2.04 Inconsistent Provisions Superceded.
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The Issuer and the Noteholders hereby agree that, effective as of the
Effective Date, if any provision of any Transaction Document conflicts with or
is inconsistent with the terms of this Agreement or the forgoing amendments,
such provision shall be interpreted in a reasonable manner that is consistent
with the terms and intent of such amendments but that if such an interpretation
is not feasible, such provision shall be superceded and of no further effect as
if expressly deleted hereby.
ARTICLE THREE
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CERTAIN ADDITIONAL COVENANTS
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Section 3.01 Sale of Issuer Common Stock to Noteholders.
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On the Transaction Termination Date, in consideration of the payment on
such date to PWCC of cash in an amount equal to the Stock Purchase Price, PWCC
shall absolutely sell, assign and otherwise convey to or upon the order of the
Noteholders, without recourse, and the Noteholders shall jointly and severally
purchase and acquire, as of such date, all right, title and interest in and to
the Common Stock of the Issuer.
Section 3.02 Alternative Liquidation of Trust Estate.
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The Noteholders hereby agree that, if they shall fail to purchase the
Common Stock in accordance with Section 4.01 hereof, the Issuer may (but shall
not be obligated to) at any time thereafter liquidate the Trust Estate (either
in whole or in part) and apply the proceeds to repay the Notes in accordance
with Section 5.02 of the Amended Indenture.
Section 3.03 Termination of Obligations of PWCC Under Amended
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Indenture.
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The Issuer and the Trustee, with the consent of the Noteholders, hereby
agree that, effective as of the Transaction Termination Date, all obligations of
PWCC , in its capacity as servicer (but not the rights of PWCC) under the
Transaction Documents shall automatically terminate, except as expressly
provided in Section 8.01 of the Amended Servicing Agreement. Such termination
shall be effective notwithstanding any other language to the contrary in such
Transaction Documents regarding the survival of any provisions, rights or
obligations thereunder.
Section 3.04 Funding of Expenses by the Noteholders.
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(a) Notwithstanding anything to the contrary contained in any of the
Transaction Documents, from and after the Effective Date, the Noteholders shall
jointly and severally:
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(i) advance funds to the Issuer in an amount sufficient to
fund any Monthly Required Payments then due but for which the
Issuer has insufficient funds (either in the Collection
Account or otherwise) in accordance with Section 8.01(i) of
the Indenture; and
(ii) deposit into the Premium Account on each Payment Date an
amount necessary to maintain the balance in the Premium
Account at the Required Premium Amount.
In addition, the Noteholders may elect to make additional advances from time to
time to the Issuer to cover other expenses pursuant to Section 8.01(ii) of the
Indenture. The parties hereto acknowledge and agree that PWCC is an express and
intended beneficiary of the obligations of the Noteholders set forth in this
Section 3.04.
(b) Any amounts advanced by a Noteholder pursuant to this Section 3.04
or Section 8.01 of the Indenture shall be added to the Outstanding Principal
Balance of such Holder's Note, effective as of the date so funded, in accordance
with Section 2.09(d) of the Amended Indenture.
(c) The Indenture Trustee is hereby directed that all amounts on
deposit in the Liquidity Account or any Premium Account as of the Effective Date
shall be deposited into the Collection Account for payment in accordance with
the Indenture on the next Payment Date.
ARTICLE FOUR
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PROVISIONS OF GENERAL APPLICATION
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Section 4.01 Amendments.
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This Agreement and the rights and obligations of the parties hereunder
may not be changed orally but only by an instrument in writing signed by each
party hereto. Promptly after the execution of any amendment, the Issuer shall
send to the Indenture Trustee and each Noteholder a conformed copy of each such
amendment.
Section 4.02 Notices.
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All demands, notices and communications hereunder shall be in writing
and shall be delivered or mailed by registered or certified United States mail,
postage prepaid, and addressed, in each case as follows:
(a) to the Indenture Trustee at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Trust and
Agency Group/Structured Finance, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, telephone (212)
▇▇▇-▇▇▇▇, telecopy (▇▇▇) ▇▇▇-▇▇▇▇, or at any other address subsequently
furnished in writing to the Issuer and the Noteholders; or
(b) to the Issuer at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇, telecopy
(▇▇▇) ▇▇▇-▇▇▇▇, or at any other address subsequently furnished in writing to the
Indenture Trustee and the Noteholders by the Issuer; or
(c) to PWCC at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇, telephone (▇▇▇) ▇▇▇-▇▇▇▇, telecopy (415)
394-9471, or at any other address subsequently furnished in writing to the
Indenture Trustee and the Noteholders by PWCC; or
(d) to the Noteholders, at the address for each Noteholder specified in
the Note Register.
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Section 4.03 Effect of Headings and Table of Contents.
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The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
Section 4.04 Representations and Warranties.
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By executing this Agreement, each party hereby represents and warrants
that the person executing this Agreement on behalf of such party is duly
authorized to do so, such party has full right and authority to enter into this
Agreement and to consummate the transactions described in this Agreement, and
this Agreement constitutes the valid and legally binding obligation of such
party, enforceable against such party in accordance with its terms.
Section 4.05 Successors and Assigns.
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All covenants and agreements in this Agreement by any party shall bind
its successors and assigns, whether so expressed or not.
Section 4.06 Separability.
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In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 4.07 No Third Party Beneficiaries.
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Nothing in this Agreement, express or implied, shall give to any
Person, other than the parties hereto and any of their successors hereunder, any
benefit or any legal or equitable right, remedy or claim under this Agreement.
Section 4.08 Effectiveness. This Agreement shall become effective as of
the date first written above upon the receipt by the Trustee of a fully executed
copy of each of the following documents: (a) this Agreement; (b) the Amended
Indenture; (c) the Amended Servicing Agreement; and (d) the Agency Agreement
Amendment.
Section 4.09 Governing Law.
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THE AGREEMENT AND EACH CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE
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WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
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AGREEMENTS MADE AND TO BE PERFORMED THEREIN, WITHOUT REGARD TO THE CONFLICT OF
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LAWS PROVISIONS OF ANY STATE.
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Section 4.10 Counterparts.
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The Agreement may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier shall
be as effective as delivery of manually executed counterpart of this Agreement.
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IN WITNESS WHEREOF, the Issuer, PWCC, the Indenture Trustee and the
Noteholders have caused this Master Agreement to be duly executed by their
respective officers thereunto duly authorized as of the date first written
above.
BANKERS TRUST COMPANY,
as Indenture Trustee
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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AVP
DIGNITY PARTNERS FUNDING
CORP. I, as Issuer
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By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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President
POINT WEST CAPITAL CORPORATION, including in
it capacity as Servicer
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By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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President
▇▇▇▇▇▇ FINANCIAL, INC., as a Noteholder
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Vice President
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, as a Noteholder
By: Lincoln National Investment Management Company,
Its Attorney-In-Fact
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Vice President
FIRST PENN-PACIFIC LIFE INSURANCE COMPANY, as a Noteholder
By: Lincoln National Investment Management Company,
Its Attorney-In-Fact
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Vice President