United States Securities and Exchange Commission
Washington, D.C. 20549
FORM 8-K/A-2
CURRENT REPORT
Pursuant to Section 13 or 15[d] of the Securities Exchange Act of 1934
June 7, 2013
Date of Report
SUNDANCE STRATEGIES, INC.
(Exact name of Registrant as specified in its Charter)
Nevada | 000-50547 | 88-0515333 |
(State or Other Jurisdiction of | (Commission File Number) | (I.R.S. Employer Identification No.) |
Incorporation) |
|
|
4626 North 300 West, Suite No. 365
Provo, Utah 84604
(Address of Principal Executive Offices)
(801) 705-8968
(Registrants Telephone Number, including area code)
N/A
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions (see general instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14-a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
FORWARD LOOKING STATEMENTS
This Current Report contains certain forward-looking statements, and for this purpose, any statements contained in this Current Report that are not statements of historical fact may be deemed to be forward-looking statements. Without limiting the foregoing, words such as may, will, expect, believe, anticipate, estimate or continue or comparable terminology are intended to identify forward-looking statements. These statements by their nature involve substantial risks and uncertainties, and actual results may differ materially, depending upon a variety of factors, many of which are not within our control. These factors include, but are not limited to, economic conditions generally in the United States and internationally, and in the industry and markets in which we have and may participate in the future, competition within our chosen industry, our current and intended business, our assets and plans, the effect of applicable United States and foreign laws, rules and regulations and our failure to successfully develop, compete in and finance our current and intended business operations.
You should read any other cautionary statements made in this Current Report as being applicable to all related forward-looking statements wherever they appear in this Current Report. We cannot assure you that the forward-looking statements in this Current Report will prove to be accurate, and therefore, prospective investors are encouraged not to place undue reliance on forward-looking statements. You should read this Current Report completely, and it should be considered in light of all other information contained in the reports or registration statement that we file with the Securities and Exchange Commission, including all risk factors outlined therein. Other than as required by law, we undertake no obligation to update or revise these forward-looking statements, even though our situation may change in the future.
JUMPSTART OUR BUSINESS STARTUPS ACT DISCLOSURE
We qualify as an emerging growth company, as defined in Section 2(a)(19) of the Securities Act by the Jumpstart Our Business Startups Act (the JOBS Act). An issuer qualifies as an emerging growth company if it has total annual gross revenues of less than $1.0 billion during its most recently completed fiscal year, and will continue to be deemed an emerging growth company until the earliest of:
| | the last day of the fiscal year of the issuer during which it had total annual gross revenues of $1.0 billion or more; |
| | the last day of the fiscal year of the issuer following the fifth anniversary of the date of the first sale of common equity securities of the issuer pursuant to an effective registration statement; |
| | the date on which the issuer has, during the previous three-year period, issued more than $1.0 billion in non-convertible debt; or |
| | the date on which the issuer is deemed to be a large accelerated filer, as defined in Section 240.12b-2 of the Exchange Act. |
As an emerging growth company, we are exempt from various reporting requirements. Specifically, we are exempt from the following provisions:
| | Section 404(b) of the Sarbanes-Oxley Act of 2002, which requires evaluations and reporting related to an issuers internal controls; |
| | Section 14A(a) of the Exchange Act, which requires an issuer to seek shareholder approval of the compensation of its executives not less frequently than once every three years; and |
| | Section 14A(b) of the Exchange Act, which requires an issuer to seek shareholder approval of its so-called golden parachute compensation, or compensation upon termination of an employees employment. |
Under the JOBS Act, emerging growth companies may delay adopting new or revised accounting standards that have different effective dates for public and private companies until such time as those standards apply to private companies. We have irrevocably elected not to avail ourselves of this exemption from new or revised accounting standards and, therefore, will be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.
NAME REFERENCES
In this Current Report, references to Sundance Strategies, the Company, we, our, us and words of similar import, refer to Sundance Strategies, Inc., the Registrant, and where applicable, include the current and intended business operations of ANEW LIFE, INC., a Utah corporation and our wholly-owned subsidiary (ANEW LIFE), our acquisition of which, by merger, occurred on March 29, 2013.
Item 1.01 Entry into Material Definitive Agreement.
INTRODUCTION
Effective June 7, 2013, the Company entered into an Asset Transfer Agreement (the ATA) with Del Mar Financial, S.a.r.l. (DMF). Under the ATA and related Exhibits to the ATA, PCH Financial S.a.r.l. (PCH) retained a lien on certain of the DMF assets being transfer or acquired by the Company under the ATA, and the Company was obligated to make its initial payments under the ATA to PCH to obtain lien releases on these assets. Also effective June 7, 2013, the Company and Europa Settlement Advisors Ltd. (Europa) executed and delivered a Structuring and Consulting Agreement (the Europa Agreement) related to services that were rendered regarding the ATA, and other services to be rendered. The ATA and the Europa Agreement are fully described below under the caption Previously Filed Agreements, and copies of these agreements have already been filed with the Securities and Exchange Commission and are referenced in Item 9.01 hereof. A number of additional agreements have been entered into by the Company and certain of these parties and other parties, which amend or clarify certain provisions of the ATA and the Europa Agreement, or which supplement issues related to the ATA or the Europa Agreement. These additional agreements are fully described below under the caption New or Amended Agreements, and each such additional agreement is filed as an Exhibit to this Current Report. See Item 9.01. Not all of these agreements are believed to be material agreements, either because the matters covered thereby were minor in nature or because, at least in one case, the particular agreement only confirmed compliance by the Company with its obligations under the ATA; however, all of these agreements are included herein for consistency, as of their respective dates of execution and delivery, listed and described in order of first to last. Capitalized terms have the meanings ascribed to them under the caption Previously Filed Agreements, below, unless defined otherwise herein.
NEW OR AMENDED AGREEMENTS
Europa Structuring and Consulting Agreement (Amendment No. 1)
This amendment to the Europa Agreement, effective August 28, 2013 (Amendment No. 1), confirmed that the $12,000,000 Compensation (the Total Up Front Costs) payable to Europa by the Company, as defined below under the heading Europa Structuring and Consulting Agreement of the caption Previously Filed Agreements, shall be reduced in the event the Cash Payment payable by the Company under the ATA exceeds $8,000,000, on a dollar for dollar basis. See the heading Purchase Price of the caption Additional NIBs Acquisition, below. A copy of Amendment No. 1 is filed as an Exhibit to this Current Report and is incorporated herein by reference. See Item 9.01.
Collateral Release Agreement from PCH to the Company
The Collateral Release Agreement executed and delivered by the Company and PCH on October 3, 2013, acknowledged full payment by the Company of all obligations to release the liens reserved by PCH as discussed in the ATA. The Company paid the Up Front Payment to PCH of $5,000,000 on the execution and the delivery of the ATA; and paid the Final PCH Payment of $1,000,000, along with an additional amount of $717,022.37 for other costs related to the ATA and the process of creating the Qualified NIBs due from DMF under the ATA, in exchange for the release of the lien by PCH on all of the assets acquired by the Company under the ATA. A total of $6,717,022.37 was paid to PCH under the ATA. See the heading Purchase Price of the caption Additional NIBs Acquisition, below. A copy of the Collateral Release Agreement is filed as an Exhibit to this Current Report and is incorporated herein by reference. See Item 9.01.
Europa Structuring and Consulting Agreement (Amendment No. 2)
The second amendment to the Europa Agreement (Amendment No. 2), which was duly acknowledged and agreed upon by DMF, and Michael D. Brown (Brown), as the consultant under the Europa Agreement, and effective October 29, 2013, (i) discussed the proposed sale of some policies underlying certain NIBs acquired by the Company under the ATA (the Proposed Sale) that may not have satisfied the requirements of Qualified NIBS under the ATA and to fund costs necessary to create the Qualified NIBs due from DMF under the ATA; (ii) outlined provisions to satisfy demands of Europa for an additional installment of $425,000 on its Structuring Fee under the
Europa Agreement and related to the structuring and consulting services rendered to the Company in regard to the ATA, with the understanding that these payments will be accounted for so that the Total Up Front Costs will not exceed $12,000,000; (iii) provided that as a condition of any such further payments, the Company shall be fully apprised of each step in the creation of the Qualifed NIBs and shall be allowed to review each such step and provide its input, along with having 14 days to review the Qualifed NIBs prior to a decision on whether to accept them; (iv) amended and clarified the Liquidated Damages payments due from DMF under the ATA, in the event of DMFs breach of its obligations under the ATA; (v) provided that the Promissory Note that will be due of the Company on the delivery by DMF of the Qualified NIBs under the ATA will be cross-collateralized by 50% of all of the Qualifed NIBs delivered by DMF under the ATA; and (vi) provided that no additional payments of any kind will be due by the Company to DMF or Europa until DMF has delivered the Company the $400,000,000 in Qualifed NIBs required under the ATA.
Additional Installment
The additional installment of $425,000 on the Europa Structuring Fee is payable as follows: $325,000 on October 18, 2013, which sum has been paid; $50,000 no later than November 15, 2013, assuming at least $90,000 in Qualifed NIBs have been delivered by DMF on or before November 1, 2013, and accepted by the Company within 14 days thereafter; and $50,000 no later than December 15, 2013, assuming at least $180,000 in Qualifed NIBs have been delivered by DMF on or before December 1, 2013, and accepted by the Company within 14 days thereafter.
Confirmation of Cash Payment and Additional Costs and Expenses Paid to Date
It was further confirmed that the Total Up Front Payment shall not exceed $12,000,000, and the parties acknowledged payments by the Company of $8,241,319.30 having been made by the Company, as outlined in Schedule A of Amendment No. 2, which included the payments to PCH.
Liquidated Damages Clarification
Regarding the clarification of the Liquidated Damages provisions of the ATA, under Amendment No. 2, both DFM and Europa shall be responsible for paying Liquidated Damages equal to two times the Cash Payment and all costs and expenses paid by the Company, computed on a pro rata basis. All Liquidated Damages shall accrue interest at 8% per annum until paid. The following are the examples of the Liquidated Damages payable:
Example: Assume no Qualified NIBs are delivered under the DMF Agreement and the costs to the Company are $10,000,000 (including the Cash Payment and all other costs and advances under the DMF Agreement or the Europa Agreement). DMF and ESA shall be required to pay Liquidated Damages of $20,000,000 under this example.
Example: Assume Qualified NIBs associated with $250,000,000 are delivered and accepted at a cost to the Company of $10,000,000 (including the Cash Payment and all such other costs advanced). DMF and ESA shall be required to pay Liquidated Damages of $7,500,000, calculated as:
$250,000,000 divided by $400,000,000 equals 0.6250% of delivered and accepted Qualified NIBs
0.6250% of $10,000,000 equals $6,250,000
$10,000,000 minus $6,250,000 equals $3,750,000
$3,750,000 times two equals $7,500,000
Thus, ESA and DMF shall be liable for Liquidated Damages of $7,500,000 under this example.
If Qualified NIBs associated with more than $300,000,000 but less than $400,000,000 are delivered and accepted under the DMF Agreement, DMF and ESA shall be jointly and severally liable for Liquidated Damages as outlined
in the following example. The Liquidated Damages shall be due immediately upon failure to deliver as required in the DMF Agreement.
Example: Assume Qualified NIBs associated with $350,000,000 are delivered and accepted at a cost to the Company of $11,500,000 (including the Cash Payment and all other costs advanced). DMF and ESA shall be required to pay Liquidated Damages of $1,000,000, calculated as:
$350,000,000 divided by $400,000,000 equals 0.8750% of delivered and accepted Qualified NIBs
0.8750% of $11,500,000 equals $10,062,500
$11,500,000 minus $10,062,500 equals $1,437,500
$1,437,500 because more than $300,000 in Qualified NIBs were delivered and accepted
Thus, ESA and DMF shall be liable for Liquidated Damages of only $1,437,500 under this example; however, the Liquidated Damages shall be increased to $2,875,000 or by 100% of the Cash Payment and costs and advances, if not paid within 90 days. Interest shall accrue on any Liquidated Damages owed at a rate of eight percent (8%) per annum on the expiration of such 90 day period.
If Qualified NIBs in the amount of $400,000,000 are not delivered and accepted by the Company under the ATA, the Company shall not be required to return any excess assets it acquired under the ATA as provided in Section 3.5 thereof. See the heading Acquisition of Assets of the caption Additional NIBs Acquisition of the caption Previously Filed Agreement, below. Further, the Company shall have all available remedies to pursue collection of the Liquidated Damages, including, without limitation, legal and equitable remedies, and set off against claims the DMF or Europa may have against it.
No party can assign rights under Amendment No. 2 unless agreeable to the other parties; however, any such consent will not be unreasonably withheld.
Utah law and jurisdiction govern, and a Dispute Resolution clause has been added that provides for arbitration of disputes in Utah County, Utah.
A copy of the Amendment No. 2 is filed as an Exhibit to this Current Report and is incorporated herein by reference. See Item 9.01.
Company Involvement in the Qualified NIBs Process
The Companys general counsel will be involved in assessing all policies to be utilized in satisfying the Qualified NIBs designation under the ATA, including but not limited to ensuring such policies come within the requirements of our structure of Qualified NIBs; that such policies were initiated properly with the applicable insurance company; and that the chain of title is accurate and clear.
Once this due diligence process is completed, the Company will contract with a servicer of life insurance policies to further evaluate the policies for presentation to a mortality protection insurance company, or MPIC (as discussed below under the caption Previously Filed Agreements).
The Company has hired a person who has had five years experience in building, purchasing, selling and insuring life settlement products. With the addition of this person to our management, the Company has added expertise and experience to help it find, purchase and structure products into its proprietary structure. This person will be actively involved in all aspects of creating the NIBs, or the Qualified NIBs under the ATA. See the Companys 8-K Current Report dated October 21, 2013, which was filed with the Securities and Exchange Commission on October 24, 2013. See Item 9.01.
The Company will also be evaluating, either alone or with hired consultants, initial purchases of policies and equity allowances of policies being considered for purchase, including such matters as life expectancy, age and health issues of the insureds, along with other parameters.
Brown Exclusivity Agreement
Brown, as the consultant to Europa under the Europa Consulting Agreement, and the Company, entered into the Brown Exclusivity Agreement, effective October 29, 2013, whereby it was agreed that: (i) the Company would pay Brown $25,000, which would be included in the computation of the Total Up Front Costs (this amount was previously paid by the Company on September 18, 2013; (ii) Brown agreed that the Total Up Front Costs would include those costs and expenses outlined in Schedule A of Amendment No. 2 to the Europa Agreement; and (iii) Brown agreed that the Proposed Sale would not interfere with the obligations of DMF or Europa regarding the $400,000,000 in Qualifed NIBs due under the ATA, and that he was personally bound by the exclusivity provisions of the Europa Agreement. Utah law and jurisdiction also governs the Brown Exclusivity Agreement, and a Dispute Resolution clause provides for arbitration of disputes in Utah County, Utah. A copy of the Brown Exclusivity Agreement is filed as an Exhibit to this Current Report and is incorporated herein by reference. See Item 9.01.
Amended and Restated Secured Promissory Note of ANEW LIFE, INC. to DMF
The Company acquired, under the ATA, the $2,999,000 Promissory Note it executed and delivered to PCH on March 11, 2013, in connection with its initial purchase of NIBs through its wholly-owned subsidiary, ANEW LIFE, INC., a Utah corporation (ANEW LIFE), along with certain other assets that were to secure potential Liquidated Damages of the Company in the event of the default of DMF under the ATA, and that were to be pledged to DMF for the Company obligations under the ATA for the Purchase Price of the Qualified NIBs that were delivered and accepted by the Company under the ATA. DMF had previously acquired this Promissory Note from PCH. See the heading Acquisition of Assets of the caption Additional NIBs Acquisition of the caption Previously Filed Agreement, below. Also see the Companys Current Report on Form 8-K dated March 29, 2013, which was filed with the Securities and Exchange Commission on April 5, 2013, along with the 8-KA Current Reports of the same date, which were respectively filed with the Securities and Exchange Commission on May 24, 2013, and September 12, 2013, along with the Companys Annual Report on Form 10-K for the fiscal year ended March 31, 2013, which was filed with the Securities and Exchange Commission on July 16, 2013. See Item 9.01. The Amended and Restated Secured Promissory Note, which was effective November 5, 2013, made the following changes to the Promissory Note (the Amended Note): (i) the Amended Note was payable to DMF rather than PCH; (ii) the due date of the Amended Note was extended from December 31, 2013, to April 11, 2015; (iii) the Amended Note provided that in the event that $400,000,000 of Qualified NIBs have been acquired by the Company in accordance with the ATA or otherwise are accepted by the Company even though not meeting the precise definition of Qualified NIBs in the ATA, and the Company issues a bond rated by a nationally recognized rating agency prior to April 11, 2014, the then outstanding principal balance of the Amended Note shall be reduced to $2,000,000 (if the then outstanding principal balance exceeds $2,000,000 at the time); (iv) the Amended Note also provided that at any time after April 11, 2014, until the Maturity Date, the maker of the Amended Note (ANEW LIFE) shall have the option, in its sole discretion and without qualification, and on five days notice to holder, to decrease the then outstanding principal balance of the Amended Note to $1,500,000; provided, further, that upon the exercise of such option, the Collateral described in the Pledge Agreement shall be reduced from 50% to 40% of the Companys NIBs; and (v) the Amended Note may be prepaid, in whole or in part, by the maker at any time without penalty. Any net death benefit or bond proceeds paid to maker or the Company in connection with the assets purchased under the PCH NIBs Transfer Agreement dated March 11, 2013, shall be used to prepay the Amended Note; provided, however, no such death benefits or bond proceeds paid to the maker or the Company shall be accounted for in any manner that would cause the maker or the Company to not receive the full benefit of the reductions of the principal balance of the Amended Note outlined in Section 4(a) and (b) thereof, without qualification, except the conditions outlined in such referenced Section 4(a) and (b). The Amended Note also provided Notwithstanding anything herein or in any agreement referenced herein to the contrary, once accrued interest and $1,500,000 has been received as payment on this Amended Note from any source, the Amended Note shall be deemed to be paid in full, and all Collateral under the referenced Pledge Agreement or otherwise, shall be the sole and separate property of maker, without exception. Maker may set off any claim it has against holder in payment of the Note, without qualification. A copy of the Amended Note is filed as an Exhibit to this Current Report and is incorporated herein by reference. See Item 9.01.
Assignment Agreement of Amended and Restated Secured Promissory Note from the Company to DMF
Effective November 5, 2013, the Company assigned its rights in the Amended Note and related Pledge Agreement to DMF (the Assignment Agreement), with each of the parties making customary representations and warranties to the other, and with Utah law and Utah jurisdiction being solely applicable to all disputes. A copy of the Assignment Agreement is filed as an Exhibit to this Current Report and is incorporated herein by reference. See Item 9.01.
Amended and Restated Assignment Agreement from DMF to Hyperion
Effective November 5, 2013, DMF assigned its rights in the Amended Note and related Pledge Agreement (the Amended and Restated Assignment Agreement) executed with respect to the PCH Transfer Agreement to Hyperion Funds II PLC, an umbrella investment company with segregated liability between its sub-funds incorporated with variable capital in Ireland on June 22, 2011, with registration number 500309 and acting for and on behalf and for the account of Hyperion Life Fund II-A (Hyperion). The Assignment provided that DMF (including any of its assignees, transferees and successors) shall have an irrevocable, exclusive option (the Buyback Option), which it may exercise for a period of 12 months from the date of the Amended and Restated Assignment Agreement, to buy back the Amended Note at a price equal to the Purchase Price ($1,000,000) plus an additional 2.0% for each month (whole or partial) that had elapsed from the date of the Amended and Restated Assignment Agreement to the date that the Buyback Option is exercised (the Buyback Price). Further, notwithstanding the foregoing, the Buyback Price shall in no circumstances be less than an amount equal to US$1,120,000.00 (the Minimum Buyback Price). A copy of the Amended and Restated Assignment Agreement is filed as an Exhibit to this Current Report and is incorporated herein by reference. See Item 9.01.
Assignment of Buyback Rights of Amended and Restated Secured Promissory Note from DMF to the Company
Effective November 5, 2013, DMF assigned its Buyback Option to the Company (the Assignment of Buyback Rights Agreement), subject to the following: the Company acquires from DMF, all of its Buyback Option rights until such time as the Company has acquired $400,000,000 of Qualified NIBs from DMF under the ATA. Upon acceptance by the Company of such Qualified NIBs, the Buyback Option shall revert back to DMF and the Company shall have no further rights in connection with the Assignment of Buyback Rights Agreement; provided, however, that in the event that the Company has not acquired and accepted $400,000,000 in Qualified NIBs under the ATA by December 31, 2013, neither the Assignment of Buyback Rights Agreement nor any rights assigned by DMF hereunder to the Company shall revert back to DMF, and such Buyback rights shall be the sole and separate property of the Company; and provided further, however, if the Company accepts NIBs as Qualified NIBs that do not meet the precise definition of Qualified NIBs in the ATA, such NIBs shall be excluded from all calculations in determining whether the Company has received $400,000,000 of Qualified NIBs for all purposes of this Assignment of Buyback Rights Agreement. A copy of the Assignment of Buyback Rights Agreement is filed as an Exhibit to this Current Report and is incorporated herein by reference. See Item 9.01.
The Amended Note was effectively removed from the assets acquired by the Company under the ATA, and which were a part of its security for any Liquidated Damages that may be due to it under the ATA; and similarly, the Amended Note is no longer Collateral for the Companys obligations to DMF for the Promissory Note that it will be required to execute as part of the Purchase Price of the Qualified NIBs under the ATA. The Company believes that it has adequate security of any Liquidated Damages that may be due it under the ATA, and as amended by Amendment No. 2 to the Europa Agreement, in other assets acquired under the ATA. See the heading Acquisition of Assets of the caption Additional NIBs Acquisition of the caption Previously Filed Agreement, below.
PREVIOUSLY FILED AGREEMENTS
Additional NIBs Acquisition
The terms of the ATA, a copy of which is attached hereto, are summarized below. Please note that though the following summary of the terms of the ATA is believed to be complete in every material respect, it should not be used as a substitute for review of the ATA. See Item 9.01.
Acquisition of Assets
The ATA involved the current purchase of certain assets (the Current Assets) and provided for the conversion of the Current Assets into Qualified NIBS defined below. The ATA also provides for the purchase of additional assets that will also meet the definition of Qualified NIBs.
Initial Acquisition of Current Assets: The Current Assets included the following:
1.
The Company purchased the net insurance benefits related life insurance policies with an aggregate face amount equal to $284,270,934 (the NIBs). The NIBs entitle the Company to all the death benefits payable after repayment of a senior lien and other limited rights and obligations of the life insurance policy owners. The NIBs are currently being converted into Qualified NIBs.
2.
The Company also purchased Class A Notes Issued by Hyperion Life Assets Limited with a Note Balance of $10,000,000 (the Class A Notes). Hyperion Life Assets Limited is a private limited company incorporated in Ireland under the Companies Acts 1963-2009 with registered number 506854, having its registered office at Styne House, Upper Hatch Street, Dublin 2, Ireland.
3.
The Company also purchased Class B Notes, also issued by Hyperion Life Assets Limited, with a Note Balance of $954,000 (the Class B Notes).
4.
Finally, the Company purchased its own promissory note in the amount of $2,999,000 issued to PCH Financial S.a.r.l. in connection with the Companys initial NIBs acquisition on March 11, 2013 (the SSI
Note).
For additional information on our business model and our initial NIBs acquisition referenced in paragraph 4, see our 8-K Current Report dated March 29, 2013, which was filed with the Securities and Exchange Commission on April 5, 2013, along with our 8-KA of the same date, which was filed with the Securities and Exchange Commission on May 24, 2013. See Item 9.01.
Additional Assets to be Delivered
According to the terms of the ATA, DMF is required to deliver to the Company, Qualified NIBs (defined below) related to life insurance policies with an aggregate face amount equal to $400,000,000. To the extent the Current Assets are converted into Qualified NIBs related to less than $400,000,000 of face amount of life insurance policies, DMF is obligated to purchase additional Qualified NIBs until such amount has been delivered to the Company.
Conversion of NIBs into Qualified NIBs
To meet the definition of Qualified NIBs for acceptance by the Company, the NIBs must have the following minimum characteristics:
1.
The NIBs are currently subject to indebtedness maturing at various times during the next two years. To qualify, the financing of the premiums must have a term of at least five (5) years.
2.
Each group of NIBs must have at least 10 underlying life insurance policies.
3.
The average age of the insureds underlying the life insurance policies is approximately 81.
4.
Each group of NIBs must have mortality protection insurance coverage (MPIC). The MPIC will insure against the risk that the life insurance policies underlying the NIBs do not mature as anticipated in the Companys models and projections, by providing for certain payments to the Company.
Return of Non-Qualifed NIBs Assets
Upon delivery of Qualifed NIBs related to life insurance policies with an aggregate face amount equal to $400,000,000, any Current Assets remaining in excess of the Qualified NIBs will be returned to DMF, including any Class A Notes, Class B Notes and the SSI Note that were acquired from DMF as outlined above under the heading Initial Acquisition of Current Assets.
Purchase Price
The Purchase Price for the Qualified NIBs shall be $20,000,000. $8,000,000 shall be paid in cash (the Cash Payment) and $12,000,000 shall be paid in connection with a promissory note (the Note Payment), as follows:
1.
Up Front Payment. An initial payment was made to PCH Financial S.a.r.l. (PCH) for the benefit of DMF in the amount of $5,000,000 on June 7, 2013. This payment was used to repay certain indebtedness of DMF to PCH. With this payment, PCH released its lien against the DMF assets to allow for the conversion of such assets into Qualified NIBs for the Companys benefit under the ATA. In connection with this payment, PCH also delivered certain of its assets to DMF to be used in the creation of Qualified NIBs by DMF according to the terms of a Loan Repayment & Asset Transfer Agreement between DMF and PCH (the PCH Agreement). The Company was named as a third party beneficiary to this agreement.
2.
Expense Payment. Additional payments will be advanced to cover certain approved expenses of DMF, as described in the ATA.
3.
Final PCH Payment. A final payment of $1,000,000 under the ATA will be made to PCH to fully repay any outstanding obligations of DMF under the PCH Agreement, upon the earlier of (i) 120 days following the Effective Date of June 6, 2013, and (ii) the receipt by the Company of confirmation that at least two of the NIBs have been converted into Qualified NIBs.
4.
Payment to DMF. As Qualified NIBs are delivered to the Company, the following payments shall be made to DMF:
a.
The balance of any Cash Payment due (after reduction for the payments described in paragraphs 1-3 above of this heading) shall be paid, pro rata, based on the Qualified NIBs being delivered until Qualified NIBs associated with life insurance policies of at least $400,000,000 of face amount have been delivered; and
b.
DMF shall receive (A) a secured promissory note in the amount of 3% of the face amount of the life insurance policies underlying the Qualified NIBs delivered to the Company in the form attached to the ATA as Exhibit E (the Promissory Note) and (B) a pledge agreement in the form attached to the ATA as Exhibit F (the Pledge Agreement), in which we pledge to DMF the Qualified NIBs as collateral to secure the Buyers obligations under the Promissory Note. The Buyer shall increase the outstanding principal amount of the Promissory Note by an amount equal to 3% of the face amount of the life insurance policies underlying the Qualified NIBs as they are delivered such that the total principal amount of the Promissory Note upon completion of the Transfers shall be $12,000,000.
Security for Payments
Under the ATA, as described above, the Company is advancing significant funds prior to the delivery of Qualifed NIBs. This is necessary to remove certain liens against the assets to facilitate the conversion of the DMF assets into Qualified NIBs. The initial acquisition assets that were delivered upon execution of the ATA are believed by management to be valued far in excess of the initial amounts advanced. We have also obtained a pledge from DMF of all of its remaining assets to secure delivery of the Qualified NIBs under the ATA. If DMF fails to deliver the Qualifed NIBs under the ATA by December 31, 2013, we will be able to immediately sell the initial acquisition assets to recoup any money advanced and will be able to attach the remaining DMF assets to cover any shortfall, with a liquidated damages settlement (the Liquidated Damages Settlement) equal to 100% of any cash advances made under the ATA.
Exclusivity
The ATA also provides that DMF will sell its Qualified NIBs to the Company on an exclusive basis for the next five (5) years, as more fully described in the ATA.
Miscellaneous
The ATA contains customary representations and warranties, due authorization and authority to enter into the ATA, liens on any of the assets acquired, the legal and beneficial ownership of the assets being acquired, the lack of other agreements, laws or other matters that would preclude the parties from performing their respective obligations under the ATA and that the portfolio of life insurance policies are valid, in-force and in good standing and have not lapsed.
Europa Structuring and Consulting Agreement
Under the Europa Agreement, the Company and Europa agreed that so long as the Company has an exclusive right to acquire NIBs from DMF, which Europa shall exclusively provide its NIBs related structuring and consulting services to the Company, with the understanding that the Company has no obligation to purchase any NIBs that Europa may present to the Company. Europa will receive an initial advance of $340,000 for its services (the Structuring Fee) related to its structuring and consulting services with respect to the DMF ATA, $100,000 of which was paid prior to the execution and delivery of the Europa Agreement and the balance of which was paid on the closing. Europa will also receive a Structuring Fee of 1% of the face amount of the life insurance policies underlying all NIBs introduced and acquired, payable as follows: 50% of the fee on the delivery of the NIBs; and the remaining 50% being payable on the conversion of the NIBs to Qualifed NIBs as defined in the DMF ATA. If all NIBs are qualified, all fees are due on closing. Notwithstanding the foregoing, the Structuring Fee for the first $400,000,000 in NIBs acquired by the Company under the DMF ATA shall be $3,660,000 rather than $4,000,000. The Company shall not be required to utilize more than 50% of its available cash resources or liquidity to pay the Structuring Fee on any NIBs that are not Qualified NIBs, provided that such fee shall be due and payable immediately upon receipt of additional cash or liquid assets, and provided, further, that the entire free shall be payble on receipt and delivery of Qualified NIBs, pro rata. Certain substitutions can be made in NIBs to maximize the value and minimize the costs associated with the Qualifed NIBs. The Europa Agreement can be terminated with or without cause by the Company, though Structuring Fees that would have been payable under the Europa Agreement will continue for NIBs providers introduced by Europa and purchased by the Company, with the Company no longer having an exclusive right to Europas services. Further, any such termination will have no effect on any Structuring Fee already earned. Please note that though the foregoing summary of the terms of the Europa Agreement is believed to be complete in every material respect, it should not be used as a substitute for review of the Europa Agreement. See Item 9.01.
There were no material relationship between the Company or any of its affiliates and any party to these agreements other than in respect of these agreements.
Item 2.01 Completion of Acquisition or Disposition of Assets.
See Item 2.01.
Item 3.02 Unregistered Sales of Equity Securities
As of November 12, 2013, the Company completed its $15,000,000 private placement of shares of its common stock comprised of restricted securities as defined in Rule 144 of the Securities and Exchange Commission, to accredited investors only, selling 3,018,500 shares for aggregate gross proceeds of $15,092,500.
1,384,000 of these shares were sold subsequent to the quarter ended September 30, 2013, for aggregate gross proceeds of $6,920,000. All subscriptions have been paid except three of the investors subscriptions are due, respectively, on November 18, 2013 ($2,000,000); November 30, 2013 ($3,000,000); and December 15, 2013 ($1,500,000). The Company is obligated to pay introduction fees on these three investors funds, on receipt of these funds, equal to 8% of the gross proceeds thereof or $520,000. It has paid $6,400 in introduction fees on two other
subscriptions received and paid subsequent to September 30, 2013. $100,000 was received for 20,000 of the shares subscribed in the quarter ended September 30, 2013. These shares have not yet been issued.
During the quarter ended September 30, 2013, the Company sold 170,500 shares for aggregate gross proceeds of $752,500. Payment for 20,000 of these subscribed shares ($100,000) was not received until after the quarter ended. It paid $36,000 in introduction fees related to four subscriptions received and paid during this quarter. These shares have not yet been issued.
1,464,000 of these shares were sold in the quarter ended June 30, 2013, for aggregate gross proceeds of $7,320,000. Introduction fees of $560,000 were paid to two parties that introduced three of the subscribers who purchased 1,400,000 of these shares for gross proceeds of $7,000,000; and two year warrants to purchase 70,000 shares of the Companys common stock at a price of $5.00 per share were also issued to one of these parties.
All of these shares were sold to persons who were accredited investors as defined in Rule 501 of Regulation D of the Securities and Exchange Commission, under Rule 506(b) thereof, and the offer and sale of these shares were exempt from the registration provisions of the Securities Act of 1933, as amended (the Securities Act), by reason thereof. In addition, the Company claims exemptions from registration of the offer and sale of these shares under Sections 4(a)(2) and 4(a)(5) of the Securities Act, along with Regulation S, for foreign sales. State laws requiring the registration of the offer and sale of securities under Rule 506 are preempted by Section 18 of the Securities Act, though notices of the sales are required to be filed by the Company in the states where the shares were sold.
Item 9.01 Financial Statements and Exhibits.
(a)
Financial statements of businesses acquired: Not applicable.
(b)
Proforma financial information: Not applicable.
(c)
Exhibits:
Exhibit No.
Exhibit Description
10.1
Del Mar Financial, S.a.r.l. Asset Transfer Agreement (i)
Exhibit A-1 (Schedule of NIBs)
Exhibit A-2 (Schedule of Salt Creek Bonds)
Exhibit B (Life Insurance Policies)
Exhibit C (Wire Instructions [to be provided])
Exhibit D (Expenses)
Exhibit E (Form of Promissory Note)
Exhibit F (Form of Pledge Agreement)
Exhibit G (DMF Pledged Assets and Sub Debt)
Exhibit H (DMF Pledge Agreement)
Exhibit I (Company Pledge Agreement)
Exhibit J (DMF Assignment Agreement)
Exhibit K (Form of PCH Bill of Sale and Assignment)
Exhibit L (DMF Transfer Agreement to Company)
10.2
Europa Structuring and Consulting Agreement (ii)
10.3
Europa Structuring and Consulting Agreement (Amendment No. 1) (iii)
10.4
Collateral Release Agreement from PCH to the Company (iii)
Exhibit A PCH Loan Repayment and Asset Transfer Agreement (iii)
Exhibit B DMF Transfer Agreement (i)
Exhibit C PCH Pledge Agreement - Exhibit I to DMF Transfer Agreement (i)
Exhibit D Note (See Exhibit 10.7 below)
10.5
Europa Structuring and Consulting Agreement (Amendment No. 2) (iii)
10.6
Brown Exclusivity Agreement (iii)
10.7
Amended and Restated Secured Promissory Note of ANEW LIFE, INC. to DMF (iii)
10.8
Assignment Agreement of Amended and Restated Secured Promissory Note from the Company to DMF (iii)
Exhibit A-1 Note (See Exhibit 10.7 above)
Exhibit A-2 Pledge Agreement (iv)
Exhibit A-3 NIBs Transfer Agreement (iv)
10.9
Amended and Restated Assignment Agreement from DMF to Hyperion (iii)
Exhibit A-1 Note (See Exhibit 10.7 above)
Exhibit A-2 Pledge Agreement (iv)
Exhibit A-3 NIBs Transfer Agreement (iv)
10.10
Assignment of Buyback Rights of Amended and Restated Secured Promissory Note by DMF to the Company (iii)
Exhibit A-1 Note (See Exhibit 10.7 above)
Exhibit A-2 Assignment Agreement (See Exhibit 10.9 above)
(i)
This Exhibit was attached to the amended Current Report on Form 8-K, which was filed with the Securities and Exchange Commission on September 19, 2013.
(ii)
This Exhibit was attached to the original Current Report on Form 8-K that was filed with the Securities and Exchange Commission on June 19, 2013.
(iii)
These Exhibits are attached hereto and incorporated herein by reference.
(iv)
The NIBs Transfer Agreement was attached to the amended Current Report on Form 8-K, which was filed with the Securities and Exchange Commission on May 24, 2013. The Pledge Agreement was Exhibit E to such NIBs Transfer Agreement.
For additional information about the Companys new COO, see its Current Report on Form 8-K dated October 21, 2013, which was filed with the Securities and Exchange Commission on October 24, 2013
For additional information about the Companys business model and its initial NIBs acquisition referenced in paragraph 4, see its Current Report on Form 8-K dated March 29, 2013, which was filed with the Securities and Exchange Commission on April 5, 2013, along with its 8-KA Current Reports of the same date, which were respectively filed with the Securities and Exchange Commission on May 24, 2013, July 12, 2013, and September 12, 2013, and its Annual Report on Form 10-K for the fiscal year ended March 31, 2013, which was filed with the Securities and Exchange Commission on July 16, 2013.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the Registrant has duly caused this Current Report to be signed on its behalf by the undersigned hereunto duly authorized.
SUNDANCE STRATEGIES, INC.
Date: | November 14, 2013 |
| By: | /s/ Randall F. Pearson |
|
|
|
| Randall F. Pearson |
|
|
|
| President, Chief Financial Officer, Controller and Director |
AMENDMENT NO. 1 TO
STRUCTURING AND CONSULTING AGREEMENT
This Amendment No. 1 to the Structuring and Consulting Agreement (the Amendment) is entered into this 28th day of August 2013, by and between Sundance Strategies, Inc. (SSI), and Europa Settlement Advisors Ltd. (ESA or Consultant). Each of SSI and ESA may be individually referred to herein as a Party or collectively as the Parties.
WHEREAS, SSI and ESA entered into a Structuring and Consulting Agreement on June 5, 2013 (the Agreement) whereby SSI engaged ESA on an exclusive basis to perform certain services in connection with the purchase of net life insurance benefits (NIBs) and other products tied to life insurance policies on insureds aged 75 and older from Del Mar Financial S.a.r.l. (DMF).
WHEREAS, SSI and DMF entered into an asset transfer agreement dated June 5, 2013 (the DMF Agreement) to purchase NIBs and other assets.
WHEREAS, all capitalized terms used but not defined herein shall have the meanings set forth in the DMF Agreement.
WHEREAS, due to certain unexpected expenses advanced by SSI and delays in connection with the DMF Agreement, SSI and ESA desire to amend the Agreement to defer certain payments to ESA as set forth below.
NOW THEREFORE, the Parties hereto agree as follows:
1.
Compensation. SSI confirms that the Compensation set forth in Section 5 of the Agreement shall be payable to ESA; provided that such amounts shall be reduced in the event the Cash Payment associated with the DMF Agreement exceeds $8,000,000 in connection with the purchase of the NIB Transfer, on a dollar for dollar basis of such excess. Because the current payments to DMF have far exceeded the pro rata portion of NIBs being converted into Qualified NIBs, ESA has agreed to a reduction of its compensation to ensure that the total compensation paid to ESA and DMF in connection with the NIB Transfer and the Cash Payment do not exceed $12,000,000 and that any amounts payable in excess of $8,000,000 to DMF for the NIB Transfer shall result in a reduction of the compensation payable to ESA.
2.
Miscellaneous.
a.
Due Authorization. Each Party represents to the other that its execution of this Amendment has been authorized by all necessary company action, if such action is required, and that this Amendment constitutes a binding obligation of such Party. Each individual who executes this Amendment on behalf of a Party represents to all Parties that he, she or it is authorized to do so. This Amendment will bind each Partys successors and permitted assigns.
b.
Counterparts. This Amendment may be executed in counterparts each of which will be deemed an original, and such counterparts when taken together shall constitute but one agreement.
c.
Governing Law. This Amendment and its interpretation and enforcement are governed by the laws of the state of Utah.
-1-
d.
No Other Amendment. Except as amended by this Amendment, the Amendment is reconfirmed and shall remain binding and enforceable in all respects. Amendments. No amendment or modification of any provision of this Amendment or the Agreement will be effective unless made in writing and signed by each of the Parties.
e.
Severance. If for any reason any provision of this Amendment is determined by a tribunal of competent jurisdiction to be legally invalid or unenforceable, the validity of the remainder of the Amendment will not be affected and such provision will be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision will then be enforceable and enforced.
IN WITNESS WHEREOF, the Parties have executed this Amendment, effective as of the Effective Date.
/s/ Randall F. Pearson SUNDANCE STRATEGIES, INC. Name: Randall F Pearson Its: President | /s/ Anya Maxwell EUROPA SETTLEMENT ADVISORS, LTD Name: Anya Maxwell Its: Managing Director |
|
|
-2-
Collateral Release Agreement
Effective as of October 3, 2013, this Collateral Agreement (Agreement) is accepted and acknowledged by PCH Financial S.à.r.l. (PCH) and Sundance Strategies, Inc (SSI) collectively referred to as the Parties.
WHEREAS, the Parties have entered into (i) the Loan Repayment & Asset Transfer Agreement (the PCH Transfer Agreement), executed effective June 5, 2013 and attached hereto as Exhibit A, (ii) the Asset Transfer Agreement (the DMF Transfer Agreement) executed effective June 5, 2013 and attached hereto as Exhibit B, and (iii) the Pledge Agreement (the PCH Pledge Agreement) executed effective June 5, 2013 and attached hereto as Exhibit C. Capitalized words used but not defined herein shall have the meanings set forth in the PCH Transfer Agreement;
WHEREAS, PCH transferred certain assets to Del Mar Financial, S.a.r.l. (DMF) under the PCH Transfer Agreement (the Target Assets or the Collateral under any agreement or Exhibit hereto);
WHEREAS, included in the Target Assets was that Secured Promissory Note dated March 11, 2013, in principal amount of U.S.$2,999,000.00 (the Note) attached hereto as Exhibit D;
WHEREAS, DMF transferred certain of the Target Assets, including the Note, to SSI under the DMF Transfer Agreement;
WHEREAS, SSI is obligated pay to PCH an aggregate amount equal to $1,717,022.37 under Sections 3.2(d) and 3.3 of the DMF Transfer Agreement and under Section 4.2(b) and 4.2(c) of the PCH Transfer Agreement no later than October 3, 2013 (the Final Payment);
WHEREAS, pending Final Payment to PCH, certain of the Target Assets and other assets held by SSI were pledged to PCH under the PCH Pledge Agreement;
WHEREAS, certain assets acquired by SSI under the DMF Transfer Agreement, including that Note, were not pledged to PCH under the PCH Pledge Agreement; and
WHEREAS, upon receipt of the Final Payment, PCH shall release all rights it has in an to any of the Target Assets or Collateral or otherwise in which SSI acquired or has any interest in by virtue of any agreement or Exhibit hereto or any exhibit to any agreement hereto, including the Note and any assets secured under the PCH Pledge Agreement, without qualification;
NOW THEREFORE, for good and valuable consideration, the parties agree as follows:
A.
Final Payment. The Parties acknowledge that SSI owes PCH a Final Payment in the aggregate amount of $1,717,022.37 on October 3, 2013.
Page | 1
B.
Release of Collateral. PCH acknowledges and agrees that effective on the receipt of the Final Payment on or before October 4th, all obligations of SSI to PCH under the PCH Pledge Agreement, the DMF Transfer Agreement and the PCH Transfer Agreement will be deemed to have been paid and satisfied in full in all respects, without qualification, and the SSI will have no further obligations whatsoever with respect to the Target Assets, the Collateral or otherwise, including the Note, or the other assets covered by the PCH Pledge Agreement and all security interests in and liens on any and all assets of the SSI, including, without limitation, the Target Assets, the Collateral and the Note, and the assets listed on Schedule A to the PCH Pledge Agreement, in favor of PCH, shall be terminated and released without recourse and without representation or warranty.
C.
Miscellaneous.
1.
Binding upon Successors and Assigns. This Agreement shall be binding on and shall inure to the benefit of the Parties and their respective heirs, successors and assigns. The terms and provisions of this Agreement are for the purpose of defining the relative rights and obligations of the Parties with respect to the transactions contemplated hereby. The Parties may not assign their rights or obligations hereunder without the prior written consent of the other Parties not to be unreasonably withheld.
2.
Further Assurances. Following the execution hereof, the Parties agree to execute such documents as are reasonably necessary to effect the terms of this Agreement.
3.
Headings. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be considered in interpreting any provision hereof.
4.
Counterparts; Facsimile and PDF Signatures. This Agreement may be executed in any number of separate original counterparts and by the different parties on separate counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one Agreement. A party to this Agreement may execute and deliver its signature page hereto by facsimile or by email (pdf file). Each party hereto agrees to be bound by its own facsimile or pdf signature page and to accept, as if it were a fully executed manual signature page, the facsimile or pdf signature page of any other party hereto.
5.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah.
Signature Page Follows
Page | 2
SUNDANCE STRATEGIES, INC.
/s/ Randall Pearson
By: Randall Pearson
Title: President
THE PLEDGEE: PCH Financial S.à r.l.
/s/Martin Kramer
/s/Benoit Bauduin
By: Martin Kramer
By: Benoit Bauduin
Title: Manager
Title: Manager
Page | 3
Exhibit A
PCH Transfer Agreement
Page | 4
5 June 2013
PCH Financial S.à r.l.
as Seller
and
DEL MAR FINANCIAL, S.à r.l.
as Buyer
in the presence of
SUNDANCE STRATEGIES, INC.
as the Company
Loan Repayment & Asset Transfer Agreement
1
THIS LOAN REPAYMENT AND ASSET TRANSFER AGREEMENT (the Agreement) is made on the 5th day of June, 2013:
BETWEEN
(1)
PCH FINANCIAL S.à.r.l., a société à responsabilité limitée incorporated and existing under the laws of the Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B 168291, having its registered office at 6, rue Guillaume Schneider, L-2522 Luxembourg (the Seller); and
(2)
DEL MAR FINANCIAL S.à r.l., a société à responsabilité limitée incorporated and existing under the laws of the Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register, having its registered office at 6, rue Guillaume Schneider, L-2522 Luxembourg (the Buyer);
IN THE PRESENCE OF
(3)
SUNDANCE STRATEGIES, INC., a corporation incorporated under the laws of the State of Utah, USA, having its registered office at 4626 North 300 West, Suite 365, Provo, Utah 84604, USA (the Company).
each a Party and together the Parties to this Agreement.
WHEREAS
(A)
The Seller owns the assets (the Target Assets) as set forth in Exhibit A; and
(B)
Buyer has borrowed significant funds from Seller (the Debt) and Seller has advanced or will advance additional amounts to pay expenses of the Buyer (the Expenses) as set forth in Exhibit A-1, as amended and updated from time to time as additional expenses are paid by Seller as provided herein; and
(C)
The Buyer owns the assets (the Buyer Assets) as set forth in Exhibit B, most of which have been pledged to secure the Debt; and
(D)
The Company is, concurrently herewith, purchasing certain assets from Buyer (1) that are pledged to Seller and (2) that are being acquired from Seller hereunder (the Company Purchase); and
(E)
The Company is taking the assets related to the Company Purchase subject to the obligations of Buyer under this Agreement; and
(F)
The Seller has agreed on behalf of the Buyer to sell certain assets described and designated for third party sale on Exhibit B. Buyer and Company agree that such assets are to be sold to 3rd parties and are not subject to any of the transactions considered in this document or the Company Purchase.
(G)
In accordance with the terms hereof, the Buyer is willing to use the proceeds of the Company Purchase to pay off the Debt and Expenses and buy the Target Assets, and the Seller is willing to sell the Target Assets in connection with the repayment of the Debts and Expenses, effective as of the date of this Agreement (the Effective Date).
2
THE PARTIES HEREBY AGREE AS FOLLOWS:
1.
Construction
1.1
In this Agreement, any reference to any agreement (howsoever named) is to such agreement as it may be amended, supplemented or extended from time to time, whether before or after the date hereof.
1.2
Clause headings are for ease of reference only.
1.3
Participating debt certificates (PDCs) represent the net insurance benefits (the NIBs) from a portfolio of life settlement policies. The Target Assets and Buyer Assets each include NIBs, as set forth in Exhibit A and Exhibit B (collectively, the Portfolio). Seller has agreed to assist in the conversion of a portion of the Portfolio such that the NIBs on such portion meet the definition of Qualified NIBs as described herein.
1.4
For purposes of this Agreement and any future communications between the Parties, the term PDCs and NIBs shall be considered interchangeable and all Parties hereby acknowledge and agree to their interchangeability.
2.
Debt Repayment
2.1
The Buyer agrees to repay the Debt and Expenses set forth on Exhibit A-1, as updated from time to time, as described in Section 4, below. In the event that Seller pays any additional expenses after the Effective Date, so long as such additional expenses have been approved by Buyer and the Company, such amounts shall be included in the Expenses being paid in Section 4, below. Email approval shall be sufficient for this purpose.
3.
Transfer
3.1
The Seller agrees to sell and transfer to the Buyer, who accepts, all of the Target Assets (as set forth in Exhibit A), such transfer to be effective as of the Effective Date and payable as described in Section 4, below.
4.
Consideration & Payment
4.1
The total consideration from Buyer for repayment of the Debt and Expenses and the transfer of the Target Assets (the Consideration) shall be US $6,000,000.00, plus an amount equal to the Expenses, payable partially on the Effective Date and partially upon the satisfaction of the Conversion (defined below).
4.2
The Consideration shall be paid as follows:
(a)
Upon the satisfaction of the Closing Conditions (defined below), the Company, by and on behalf of the Buyer, shall send US $5,000,000.00 in cash by wire transfer for the benefit of Sellers account pursuant to the wire instructions set forth in Exhibit C (the Up Front Purchase Price) and
(b)
An amount equal to the Expenses shall be paid to Sellers on the earlier of (i) the receipt of any reimbursement received in connection with such Expenses, up to the amount of any such reimbursement, (ii) the receipt of any proceeds related to the Target Assets or the Buyer Assets (including death benefits, loan proceeds or sale proceeds), (iii) the completion of the Conversion or (iv) 120
3
days following the Effective Date. The payment of Expenses shall be secured as described in Section 7 below.
(c)
Upon the earlier of (i) completion of the Conversion or (ii) 120 days following the Effective Date, the Company, by and on behalf of the Buyer, shall send US $1,000,000.00, in cash by wire transfer for the benefit of Sellers account pursuant to the wire instructions set forth in Exhibit C (the Conversion Purchase Price). The Conversion Purchase Price shall be secured as described in Section 7 below.
5.
Closing Conditions. The obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to the fulfillment of each of the following conditions (any or all of which may be waived in whole or in part by Buyer):
5.1
Company Note. The Seller shall deliver to the Company, by and on behalf of the Buyer in connection with the Company Purchase, the Promissory Note issued by Company to Seller in connection with that certain NIB Transfer Agreement dated March 11, 2013, duly endorsed over to Buyer and listed on a Bill of Sale in the form attached hereto in Exhibit D.
5.2
Miscellaneous Notes. The Seller shall deliver to the Buyer the remaining Promissory Notes issued to the Seller as described on Exhibit A, duly endorsed over to the Buyer and listed on a Bill of Sale in the form attached hereto in Exhibit D.
5.3
Transfer of Policies. The life insurance policies listed on Exhibit A with policy numbers 159207835 and JJ711646 are each held in a Wisconsin trust, the beneficial interests of which are held by Seller. Seller shall transfer the beneficial interests in the Wisconsin trusts to Buyer, duly executed by the trustee, pursuant to a Bill of Sale in the form attached hereto in Exhibit D.
5.4
NIB Registration. The NIB issuer identified on Exhibit A shall register the Buyer as holder of the NIBs issued by it in its register of NIBs. The Parties expressly grant power to the manager of the NIB issuer, acting individually and with full power of substitution, to amend and execute the above register for and on behalf of the NIB issuer and the Buyer and to do all such acts and things as may be ancillary thereto and/or necessary and/or useful and/or desirable in the sole opinion of such manager in connection with or for the purpose of giving full effect to this Agreement. Upon amendment and execution of the above register, the manager of the NIB issuer shall cause to be delivered to Buyer via email (to be followed by a hard copy via courier) a copy of such amended and executed register and confirm to Buyer via email (to be followed by a hard copy via courier) that the Buyer has been registered as the holder of the NIBs in its register of NIBs and is entitled to all rights and privileges of such ownership, including the right to transfer or convey such NIBs without further consent of any person, except only as may be limited by this Agreement, the Pledge or the Underlying Documents (as defined below).
5.5
Company Purchase. The transaction contemplated by this Agreement shall be consummated concurrently with the sale of assets from the Buyer to the Company in accordance with the respective terms and conditions thereof (without the waiver of any terms or conditions thereof) (the Company Purchase). If the Company Purchase agreements are not executed on or prior to the Effective Date, this Agreement shall also be terminated.
4
6.
Conversion
Seller has agreed to assist Buyer in the conversion of certain NIBs into Qualfied NIBs for purchase by the Company, as defined in the agreements for the Company Purchase. Generally, Qualified NIBs are those that meet the pricing criteria of the Company and have 5 year financing for the related life insurance policies and mortality protection insurance coverage. Seller shall use commercially reasonable efforts to assist Buyer with the conversion of any two NIBs listed on Exhibit A or Exhibit B into Qualified NIBs (the Conversion). Upon the earlier of (a) 120 days following the Effective Date, or (b) the Conversion, Company, for and on behalf of Buyer, shall pay the Conversion Purchase Price to Seller as provided above.
7.
Pledge of Assets.
Buyer shall receive the Target Assets free from any lien; provided, however, that until the Expenses and Conversion Purchase Price have been paid to Seller, Seller shall retain its lien against the Buyer Assets. Seller agrees to assist Buyer in the completion of its obligations related to the Company Purchase and to release its lien on an asset by asset basis, as is necessary to satisfy its obligations under the Company Purchase and assist Buyer in generating the funds necessary to pay the Expenses and Conversion Purchase Price; provided, that Seller shall not be required to release any assets unless Seller is satisfied, in its sole discretion, that it is fully secured with respect to any Expenses or Conversion Purchase Price outstanding. As soon as the total Consideration has been paid, Seller shall fully release all liens and claims against the Buyer Assets. Furthermore, Company shall enter into a new pledge with Seller to secure outstanding Expenses and Conversion Purchase Price for any assets transferred from Buyer to the Company until such time as those amounts have been fully paid. Once the Expenses and Conversion Purchase Price has been paid in full and Seller has fully released all liens and claims against the Buyer Assets, Seller shall have no further duties or obligations to the Buyer or the Company.
8.
Representations and Warranties
8.1
The Seller represents and warrants to the Buyer as of the Effective Date as follows:
(a)
The Seller is a validly organized and existing company under the laws of Luxembourg, and it has the corporate power and authority to enter into this Agreement and to perform its obligations hereunder;
(b)
The execution and the performance of this Agreement by the Seller have been duly authorized by its managers and/or any and all other necessary management body(ies) of the Seller and no further corporate action on the part of the Seller is necessary to authorize this Agreement and/or its performance;
(c)
This Agreement has been duly executed by the Seller, and this Agreement constitutes the valid and binding agreement of the Seller, enforceable against it in accordance with the terms hereof;
(d)
To the best of the Sellers knowledge, the centre of main interests (as that term is used in the Council Regulation (EC) N° 1346/2000 of 29 May 2000 on insolvency proceedings, the Insolvency Regulation) of the NIB Issuer described on Exhibit A is in Luxembourg, and has no establishment (as that term is used in the Insolvency Regulation) outside Luxembourg;
5
(e)
In respect of this Agreement and the transactions contemplated by, referred to in or provided for by this Agreement, (i) it entered into this Agreement in good faith and for the purpose of carrying out its business, (ii) it entered into this Agreement on arms length commercial term, and (iii) it entered into this Agreement without any intention to defraud or deprive of any legal benefit any other parties (such as third parties and in particular creditors) or to circumvent any applicable mandatory laws or regulations of any jurisdiction;
(f)
To the best of the Sellers knowledge, no action, petition, resolution or similar order for bankruptcy (faillite), voluntary or judicial winding-up (liquidation volontaire ou judiciaire), controlled management (gestion contrôlée), suspension of payment (sursis de paiement), voluntary arrangement with creditors (concordat préventif de faillite) or similar proceedings affecting the rights of creditors generally has been taken, lodged, passed or presented with regard to the Seller;
(g)
The Seller does not meet or threatens to meet the criteria for the opening of any proceedings referred to under the above paragraph;
(h)
The Seller is the sole beneficial and legal owner of the Target Assets;
(i)
As of the Effective Date, the NIBs described on Exhibit A are validly issued and fully paid up and represent in aggregate one hundred percent (100%) of the NIBs issued by the NIB Issuer; and the Seller is not aware of any document related to the NIBs and the collateral (the Underlying Documents) that would preclude the Seller from consummating the transactions contemplated hereunder;
(j)
Upon the delivery of the Target Assets, the Seller shall own the Target Assets free and clear of any lien, security interest, claim, option, pledge, charge, assignment, transfer and other encumbrances of any kind other than preferential rights arising by operation of law;
(k)
As of the Effective Date, each Policy listed on Exhibit A is valid, in-force and in good-standing and has not lapsed nor is in any grace period.
(l)
In respect of this Agreement and the transactions contemplated by, referred to in or provided for by this Agreement, (i) Seller entered into this Agreement in good faith and for the purpose of carrying out their business, and (ii) they entered into this Agreement without any intention to defraud or deprive of any legal benefit any other parties (such as third parties and in particular creditors) or to circumvent any applicable mandatory laws or regulations of any jurisdiction;
(m)
There are no proceedings or litigation at law, equity or otherwise pending or, to the knowledge of the Seller, threatened against the Seller, or to which the Seller is otherwise a party before any Governmental Authority, which, if adversely determined, would reasonably be expected to have a material adverse effect on the ability of the Seller to perform its obligations under this Agreement, or to consummate the transactions contemplated hereby. The Seller is not subject to any order of any Governmental Authority except to the extent the same would not reasonably be expected to have a material adverse effect on the ability of the Seller to perform its obligations under this Agreement or to consummate the transactions contemplated hereby
6
8.2
The Buyer hereby represents and warrants to the Seller as follows:
(a)
The Buyer is a validly organized and existing company under the laws of Luxembourg, and it has the corporate power and authority to enter into this Agreement and to perform its obligations hereunder;;
(b)
The execution and the performance of this Agreement by the Buyer have been duly authorized by its managers and/or any and all other necessary management body(ies) of the Buyer and no further corporate action on the part of the Buyer is necessary to authorize this Agreement and/or its performance;
(c)
This Agreement has been duly executed by the Buyer and this Agreement constitutes the valid and binding agreement of the Buyer, enforceable against it in accordance with the terms hereof;
(a)
The Buyer acknowledges that the Debt and Expenses as valid and owing and agrees to the allocation of the Consideration as set forth on Exhibit E.
(d)
In respect of this Agreement and the transactions contemplated by, referred to in or provided for by this Agreement, (i) it entered into this Agreement in good faith and for the purpose of carrying out its business, (ii) it entered into this Agreement on arms length commercial terms and (iii) it entered into this Agreement without any intention to defraud or deprive of any legal benefit any other parties (such as third parties and in particular creditors) or to circumvent any applicable mandatory laws or regulations of any jurisdiction.
(e)
No action, petition, resolution or similar order for bankruptcy (faillite), voluntary or judicial winding-up (liquidation volontaire ou judiciaire), controlled management (gestion contrôlée), suspension of payment (sursis de paiement), voluntary arrangement with creditors (concordat préventif de faillite) or similar proceedings affecting the rights of creditors generally has been taken, lodged, passed or presented with regard to the Buyer; and
(f)
This Agreement does not violate any contractual or other obligation binding upon it.
8.3
The Company hereby acknowledges its understanding of the terms of this Agreement and to the payment of the Consideration as set forth herein in conjunction with the Company Purchase; provided that the Company and Seller shall owe no duties to each other beyond the Sellers duties to provide certain assistance to the Buyer in connection with the Company Purchase as described herein and the Companys duty to make certain payments related to the Company Purchase directly to Seller.
9.
Right to Set-off
If Buyer obtains a final, non-appealable judgment from a court of competent jurisdiction against Seller for any violation of the representations and warranties in Section 7.1 (Sellers Violation), the Buyer shall have right to set-off any amounts Seller is obligated to pay Buyer pursuant to such final, non-appealable judgment against amounts due to Seller under this Agreement, including but not limited to what is owed under the Promissory Note (Set-Off). Such election to set-off costs associated with curing Sellers Violation shall not be construed as a waiver of any
7
other rights Seller may have with respect to Sellers Violation, including but not limited to a claim for damages. Notwithstanding this paragraph, Seller hereby reserves the right to exercise all available remedies with respect to Sellers Violation.
10.
Costs
Each Party shall bear its own costs, fees and expenses incurred in the negotiation, execution and performance of this Agreement and any matter contemplated by it.
11.
Further Assurances
The Parties each agree to execute and deliver such additional instruments and other documents, and to take all such further actions, as may be reasonably necessary or appropriate to effectuate, carry out and comply with all of the terms of this Agreement and the transactions contemplated hereby.
12.
Relationship of Parties
Nothing contained herein is intended, nor shall be construed, to create a partnership, joint venture or other similar association between or among any of the Parties hereto for any purpose.
13.
Waiver
The failure or delay of any Party hereto to enforce at any time any of the provisions of this Agreement shall in no way be construed as a waiver of any such provision, nor in any way to affect the validity or this Agreement or any part hereof or the right of such Party thereafter to enforce each and every such provision. No waiver of any breach of or non-compliance with this Agreement shall be held to be a waiver of any other or subsequent breach or non-compliance. All remedies, either under this Agreement or by law or otherwise afforded, will be cumulative and not alternative.
14.
Entire Agreement
This agreement constitutes the entire and sole agreement between the Parties thereto on the provisions covered by it. This agreement may only be amended or modified by a written document signed by the Seller and the Buyer.
15.
Amendments
No modification, amendment or waiver of, or with respect to, any provision of this Agreement, and all other agreements, instruments and documents delivered pursuant to this Agreement, shall be effective unless it shall be in writing and signed by each of the Parties.
16.
Severability
The unenforceability or nullity of any provision of this agreement shall not affect the validity or enforceability of any other provisions hereof.
17.
Governing Law, Jurisdiction and Waiver of Jury Trial
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
8
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES). ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, OR ANY LEGAL PROCESS WITH RESPECT TO ITSELF OR ANY OF ITS PROPERTY, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW. ALL PARTIES HEREUNDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE PARTIES IN CONNECTION HEREWITH OR THEREWITH. ALL PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED FULL AND SIGNIFICANT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO ENTER INTO THIS AGREEMENT.
18.
Headings
The headings herein are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.
19.
Counterparts
This Agreement may be executed by the Parties in separate counterparts, each of which when so executed shall be deemed to be an original and both of which when taken together shall constitute one and the same agreement.
20.
Confidentiality
The Parties agree to keep the terms of this Agreement and any aspects of any financial arrangements between them (collectively Confidential Information), strictly confidential, and not to disclose such terms to any third party, except as required by public reporting requirements imposed by applicable law, regulation, or securities exchange rules. In the event that reporting of Confidential Information is necessary, the reporting party shall request confidential treatment of the Confidential Information to the extent such confidential treatment is reasonably available. The reporting party shall coordinate with the other Parties to this Agreement within 20 days of disclosure regarding the Confidential Information for which the reporting party shall seek to redact in its filing. The reporting party shall use reasonable efforts to seek confidential treatment for all such Confidential Information; provided that notwithstanding the foregoing, each Party shall retain ultimate control and responsibility for its respective disclosures to governmental agencies and the public
9
generally, as such are required by applicable law, regulation, or securities exchange rules.
Each Party may disclose Confidential Information to the extent required in any judicial or administrative proceeding, in response to a court order, judicial, administrative, or investigative subpoena, or as otherwise required by law. A Party required to make such a disclosure shall promptly inform all other Parties of the disclosure that is sought in order to provide the other Parties opportunity to challenge or limit the disclosure obligations.
Each Party may disclose Confidential Information to its affiliates and present and former investors, shareholders, directors, officers, agents, servants, employees, sub-contractors, licenses, and sub-licensees (and, in each case, all successors, heirs, executors, estate trustees, administrators and assigns), provided that any such entity first agrees in writing to refrain from disclosure to third parties.
If a Party, in its sole discretion, deems it necessary to disclose Confidential Information to is outside attorneys, independent accountants, or financial advisors for the sole purpose of enabling such attorneys, independent accountants, or financial advisors to provide advice to the Party, then Confidential Information may be disclosed to such entities, provided that any such entity first agrees in writing to refrain from disclosure to third parties.
A Party may disclose Confidential Information to a potential investor, acquirer, assignee, or transferee of the Party or any of its assets the value of which may be affected by this Agreement, provided that any such entity first agrees in writing to refrain from disclosure to third parties.
21.
Releases
21.1
In consideration of this Agreement, Seller and Buyer, and each of their respective beneficiaries, heirs, partners, predecessors, successors, assigns, agents, representatives, employees, officers, directors, members, managers, parents, subsidiaries, divisions, shareholders, affiliates and attorneys does hereby release and forever discharge in full each other, and each of their respective beneficiaries, heirs, partners, predecessors, successors, assigns, agents, representatives, employees, officers, directors, members, managers, parents, subsidiaries, divisions, shareholders, affiliates and attorneys, from any and all accounts, charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts and expenses, both known and unknown, which they ever had, or now have, based on any events that have occurred prior to the Effective Date of this Agreement. This release shall not constitute a release of any undertaking, obligation, representation, warranty, covenant or agreement contained in this Agreement. The releases provided herein only include causes of action that are based on actions as of the date of this Agreement and do not include any cause of action based on violations of this Agreement or other actions of the Seller or Buyer occurring after the date of this Agreement.
21.2
In connection with this Agreement, Seller and Buyer each acknowledges that it is aware that it may later discover facts in addition to or different from those which it now knows or believes to be true, but that it is the intention of each Party to fully, finally and forever settle and release any and all disputes and differences, known or unknown, suspected or unsuspected, which now exist, may exist or formerly existed between the Seller and Buyer, and that in furtherance of that intention, this
10
Agreement shall be and will remain in effect as a full and complete mutual release, regarding any and all known or unknown disputes and differences between them.
21.3
THE SELLER AND BUYER HEREBY RELINQUISH AND WAIVE ALL RIGHTS CONFERRED UPON THEM BY THE PROVISIONS OF SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA WHICH READS AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
22.
Third Party Beneficiary.
The Company shall be a third party beneficiary of all representation and warranties of this Agreement.
(Signature Page follows)
11
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in counterparts as of the date first above written.
THE SELLER
PCH Financial S.à r.l.
/s/ Martin Kramer
By: Martin Kramer
Title: Manager
/s/ Benoit Bauduin By: Benoit Bauduin
Title: Manager
THE BUYER
Del Mar Financial S.à r.l.
/s/Paul Jacobson By: Paul Jacobson
Title: Manager
THE COMPANY
SUNDANCE STRATEGIES, INC.
/s/ Randall F. Pearson By:
Randall F. Pearson
Title: President
12
Exhibit A
Target Assets
1.
Loans
Issue Date | Issuing Company | Original Principal Amount | Current Balance |
November 30,2012 | Mapleridge Insurance Services, Inc. | $605,000 | $56,000 |
June 14, 2012 | Individual TW Investors: B., E., B., F., L., L. | Aggregate of $175,200 Individual notes for $29,200 | $182,880 |
June 14, 2012 | Individual TW Investors: B., E., B., F., L., L. | Aggregate of $172,500 Individual notes for $28,750 | $180,062 |
July 12, 2012 | Advent Finance Group | $106,350 | $110,359 |
July 12, 2012 | Advent Finance Group | $131,400 | $136,354 |
August 7, 2012 | Advent Finance Group | $4,145,000 | $4,161,579 |
December 4, 2012 | Advent Finance Group | $22,020 | $22,203 |
March 6, 2013 | ANEW LIFE, INC. | $2,999,000 | $3,015,762 |
2.
NIBs
Issue Date | Debtor/Issuing Company | Number of NIBs | Par Value |
November 23, 2012 | TW Life III S.à r.l. | 623,000 | $623,000 |
3.
Life Insurance Policies
Policy ID | Carrier | Death Benefit |
GABE835 | AXA | 4,000,000.00 |
SCDO646 | Lincoln National | $700,000.00 |
Exhibit A-1
Debts and Expenses
Debt = Balance as of the Effective Date
$4,955,726.00
Expenses Paid since 5/1/13
Date | Amount | Purpose |
5/2/13 | $15,046.19 | Capital Expenses related to Gem. |
5/10/13 | $13,490.86 | Premium for Policy Number: 97518542 |
5/20/13 | $138,485.32 | K&M Premiums1 |
5/24/13 | $130,000.00 | H.K. |
5/24/13 | $40,000.00 | T.Z. |
5/24/13 | $65,000.00 | Various entity expenses |
5/24/13 | $200,000.00 | H.K./ Gem.2 |
5/24/13 | $235,000.00 | Policy #U10033600L buy down |
Total |
|
|
For the avoidance of doubt, Expenses as defined in this Agreement as of the Effective Date are $837,022.37.
Additional Expenses Approved and Paid After Closing
1 $120,000 of this amount is expected to be reimbursed to DMF from NCB by 6/6/13 and any such reimbursement will be used to reduce this amount
2 $200,000 is expected to be reimbursed to DMF in the next couple of weeks and any such reimbursement will be used to reduce this amount
Exhibit B
Buyer Assets
Schedule of Subdebt
1.
Loans
Issue Date | Debtor/Issuing Company | Original Principal Amount |
February 27, 2012 | T.Z. (individual) | $617,500 |
April 3, 2012 | Insel Georgian | $3,461,500 |
April 20, 2012 | Insel Georgian | $2,133,000 |
2.
NIBs
Issue Date | Debtor/Issuing Company | Number of NIBs | Par Value |
May 8, 2012 | TW Life I S.à r.l. | 4,412,250 | $4,412,250 |
May 8, 2012 | TW Life II S.à r.l. | 4,598,250 | $4,598,250 |
May 14, 2012 | TW Life III S.à r.l. | 2,888,000 | $2,888,000 |
May 22, 2012 | TW Life IV S.à r.l. | 2,801,000 | $2,801,000 |
3.
Policies
Policy ID | Carrier | Death Benefit |
JEBA542 | Phoenix | $1,000,000 |
4.
Other Assets
Issue Date | Debtor/Issuing Company | Original Principal Amount |
April 30, 2027 Class A Notes | Hyperion Life Assets Limited | $18,000,000 |
April 30, 2027 Class B Notes | Hyperion Life Assets Limited | $954,000 |
5.
Partnership Interests Laguna Funding LP
99.5% Limited Partnership Interest in Laguna Funding LP
The following assets owned by Laguna Funding LP are slated for a sale to Third Parties and are not available for sale to the Company.
Policy | GmbH | Death Benefit (in US $) | % of DB | Carrier |
GEAN227 | XXXXXXXXXX1 | 1,000,000 | 100.0% | Sun Life |
HAHA199 | XXXXXXXXXX2 | 2,000,000 | 100.0% | Travelers |
LALA534 | XXXXXXXXXX3 | 10,000,000 | 100.0% | AXA |
ARGA415 | XXXXXXXXXX4 | 5,000,000 | 100.0% | AXA |
Exhibit C
Wire Transfer Instructions
To Be Provided Separately
Exhibit D-1
BILL OF SALE AND ASSIGNMENT
BILL OF SALE AND ASSIGNMENT, dated as of this 5th day of June, 2013 (this Bill of Sale), from PCH Financial S.à.r.l. (the Seller), to Sundance Strategies, Inc. (the Company), by and on behalf of Del Mar Financial S.à.r.l. (the Buyer);
W I T N E S S E T H :
WHEREAS, the undersigned entered into a Loan Repayment and Asset Transfer Agreement (the Agreement), dated as of June 5, 2013. All capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement; and
WHEREAS, subject to and in accordance with the terms and conditions of the Agreement, the Seller has agreed to transfer to the Company the Company Note (the Transferred Property).
NOW, THEREFORE, in consideration of the payment by the Company, on behalf of the Buyer, to the Seller of the Up Front Purchase Price, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Seller by these presents does hereby sell, convey, transfer and assign to the Company, its successors and assigns forever, all of the Sellers right, title and interest, legal and equitable, in and to the Transferred Property.
TO HAVE AND TO HOLD, unto the Company, its successors and assigns, from and after the passage of title as aforesaid, FOREVER.
The Transferred Property is being sold to the Company with only such representations or warranties as expressly set forth in the Agreement, herein or in the accompanying certificate of an authorized officer of the Seller.
The Seller shall be solely responsible for any and all transfer taxes and filing fees incurred by it in connection with this sale of Transferred Property by the Seller to the Company.
This instrument shall be binding upon, inure to the benefit of, and be enforceable by the Company and the Seller and their respective successors and assigns.
IN WITNESS WHEREOF, the Seller has caused this Bill of Sale to be executed by its duly authorized officer as of the date first above written.
PCH Financial S.à r.l.
/s/ Martin Kramer
By: Martin Kramer
Title: Manager
/s/ Benoit Bauduin
By: Benoit Bauduin
Title: Manager
Exhibit D-2
BILL OF SALE AND ASSIGNMENT
BILL OF SALE AND ASSIGNMENT, dated as of this 5th day of June, 2013 (this Bill of Sale), from PCH FINANCIAL S.à.r.l. (the Seller), to Del Mar FINANCIAL S.à.r.l. (the Buyer);
W I T N E S S E T H :
WHEREAS, the Seller and the Buyer entered into a Loan Repayment and Asset Transfer Agreement (the Agreement), dated as of June 5, 2013. All capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement; and
WHEREAS, subject to and in accordance with the terms and conditions of the Agreement, the Seller has agreed to sell to the Buyer, and the Buyer has agreed to purchase from the Seller, certain assets, including the assets listed on Exhibit A hereto (the Transferred Property).
NOW, THEREFORE, in consideration of the payment by the Buyer to the Seller of the Up Front Purchase Price, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Seller by these presents does hereby sell, convey, transfer and assign to the Buyer, its successors and assigns forever, all of the Sellers right, title and interest, legal and equitable, in and to the assets listed on Exhibit A hereto as same are constituted on the date hereof and wherever situated.
TO HAVE AND TO HOLD, unto the Buyer, its successors and assigns, from and after the passage of title as aforesaid, FOREVER.
The Transferred Property is being sold to the Buyer with only such representations or warranties as expressly set forth in the Agreement, herein or in the accompanying certificate of an authorized officer of the Seller.
The Seller shall be solely responsible for any and all transfer taxes and filing fees incurred by it in connection with this sale of Transferred Property by the Seller to the Buyer.
This instrument shall be binding upon, inure to the benefit of, and be enforceable by the Buyer and the Seller and their respective successors and assigns.
IN WITNESS WHEREOF, the Seller has caused this Bill of Sale to be executed by its duly authorized officer as of the date first above written.
PCH Financial S.à r.l.
/s/ Martin Kramer
By: Martin Kramer
Title: Manager
/s/ Benoit Bauduin
By: Benoit Bauduin
Title: Manager
Exhibit A to Sellers Bill of Sale and Assignment
LIST OF NOTES
Issue Date | Issuing Company | Original Principal Amount | Current Balance |
November 30,2012 | Mapleridge Insurance Services, Inc. | $605,000 | $56,000 |
June 14, 2012 | Individual TW Investors: Brethouwer, Echternach, Bardorf, Fröhlich, Langenberg, Lang | Aggregate of $175,200 Individual notes for $29,200 | $182,880 |
June 14, 2012 | Individual TW Investors: Brethouwer, Echternach, Bardorf, Fröhlich, Langenberg, Lang | Aggregate of $172,500 Individual notes for $28,750 | $180,062 |
July 12, 2012 | Advent Finance Group | $106,350 | $110,359 |
July 12, 2012 | Advent Finance Group | $131,400 | $136,354 |
August 7, 2012 | Advent Finance Group | $4,145,000 | $4,161,579 |
December 4, 2012 | Advent Finance Group | $22,020 | $22,203 |
Exhibit D-3
BILL OF SALE AND ASSIGNMENT
BILL OF SALE AND ASSIGNMENT, dated as of this 5th day of June, 2013 (this Bill of Sale), from PCH FINANCIAL S.à.r.l. (the Seller), to Del Mar FINANCIAL S.à.r.l. (the Buyer);
W I T N E S S E T H :
WHEREAS, the Seller and the Buyer entered into a Loan Repayment and Asset Transfer Agreement (the Agreement), dated as of June 5, 2013. All capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement; and
WHEREAS, subject to and in accordance with the terms and conditions of the Agreement, the Seller has agreed to sell to the Buyer, and the Buyer has agreed to purchase from the Seller, certain assets, including the assets listed on Exhibit A hereto (the Transferred Property).
NOW, THEREFORE, in consideration of the payment by the Buyer to the Seller of the Up Front Purchase Price, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Seller by these presents does hereby sell, convey, transfer and assign to the Buyer, its successors and assigns forever, all of the Sellers right, title and interest, legal and equitable, in and to the assets listed on Exhibit A hereto as same are constituted on the date hereof and wherever situated.
TO HAVE AND TO HOLD, unto the Buyer, its successors and assigns, from and after the passage of title as aforesaid, FOREVER.
The Transferred Property is being sold to the Buyer with only such representations or warranties as expressly set forth in the Agreement, herein or in the accompanying certificate of an authorized officer of the Seller.
The Seller shall be solely responsible for any and all transfer taxes and filing fees incurred by it in connection with this sale of Transferred Property by the Seller to the Buyer.
This instrument shall be binding upon, inure to the benefit of, and be enforceable by the Buyer and the Seller and their respective successors and assigns.
IN WITNESS WHEREOF, the Seller has caused this Bill of Sale to be executed by its duly authorized officer as of the date first above written.
PCH Financial S.à r.l.
/s/ Martin Kramer
By: Martin Kramer
Title: Manager
/s/ Benoit Bauduin
By: Benoit Bauduin
Title: Manager
Exhibit A to Sellers Bill of Sale and Assignment
Trusts and Policies
Policy Number | Insured Name | Carrier Name | Trust Name | Death Benefit |
AXA | Garcia Management Trust 2012-1 | $4,000,000 | ||
Lincoln | Schwartz Management Trust 2012-1 | $700,000 | ||
|
|
|
| Total DB |
|
|
|
| $ 4,700,000 |
|
|
|
|
|
|
|
|
|
|
Exhibit E
Allocation of Consideration
Allocation of Up Front Purchase Price:
Target Assets: $1,044,274
Debt Reduction: $3,955,726
$5,000,000
Expense Reimbursement:
Expense Reimbursement:
1
Conversion Purchase Price:
Debt Reduction:
$1,000,000³
³ $320,000 of this amount is expected to be reimbursed to DMF and any such reimbursement will be used to reduce this amount
Exhibit B
DMF Transfer Agreement
Page | 5
Exhibit C
PCH Pledge Agreement
Page | 6
Exhibit D
AMENDMENT NO. 2 TO
STRUCTURING AND CONSULTING AGREEMENT
This Amendment No. 2 to the Structuring and Consulting Agreement (the Amendment No. 2) is entered into this 29th day of October 2013, by and between Sundance Strategies, Inc. (SSI), and Europa Settlement Advisors Ltd. (ESA) and acknowledged and agreed upon by Del Mar Financial S.a.r.l. as the Seller under the DMF Agreement, defined below (DMF); and Michael D. Brown, as the consultant under the ESA Agreement, defined below (Brown and together with ESA and DMF, sometimes called the ESA Parties). Each of SSI, ESA, DMF and Brown may be referred to herein as a Party or collectively as the Parties.
WHEREAS, SSI and ESA entered into a Structuring and Consulting Agreement on June 5, 2013 (the ESA Agreement) whereby SSI engaged ESA on an exclusive basis to perform certain services in connection with the purchase of net life insurance benefits (NIBs) and other products tied to life insurance policies on insureds aged 75 and older from DMF.
WHEREAS, SSI and DMF entered into an Asset Transfer Agreement dated June 5, 2013 (the DMF Agreement) to purchase certain NIBs and other assets.
WHEREAS, all capitalized terms used but not defined herein shall have the meanings set forth in the DMF Agreement, and that all terms and conditions of the DMF Agreement not otherwise modified herein shall remain in full force and effect.
WHEREAS, SSI and ESA entered into Amendment No. 1 to the Structuring and Consulting Agreement (Amendment No. 1) to confirm that the total of the Cash Payment under the DMF Agreement and the total payments under the ESA Agreement shall not exceed $12,000,000.00 (the Total Up Front Cost), and to amend the ESA Agreement to clarify that ESAs compensation is reduced, dollar for dollar, to the extent the Cash Payment associated with the DMF Agreement exceeds $8,000,000.00.
WHEREAS, any prior, current or future payments to the ESA Parties, including those payments listed on Schedule A and the payments described herein, shall count towards the Total Up Front Cost.
WHEREAS, the ESA Parties have been engaged in conversations with a buyer related to the sale of certain assets currently held by SSI (the Proposed Sale).
WHEREAS, SSI has consented to certain disclosures and activities related to the Proposed Sale based on assurances that the ESA Parties continue to be bound by the exclusivity provisions of the ESA Agreement and the DMF Agreement and the understanding that SSI has no current interest in selling any of its Qualified NIBs and a Proposed Sale, if any, will be considered only to raise capital on assets not necessary for the creation of Qualified NIBs in accordance with the DMF Agreement.
WHEREAS, ESA has made demand for an additional installment of the Structuring Fee (as defined in the ESA Agreement) in the amount of $425,000.00 (the Advance), based upon assurances that the payment of the Advance will not cause the total of the Cash Payment and the fees under the ESA Agreement to exceed Total Up Front Cost for the delivery of Qualified NIBs related to $400,000,000.00 of face amount of life insurance policies under the DMF Agreement.
-1-
WHEREAS, SSI and DMF desire to amend the Liquidated Damages outlined in Recital (K) of the DMF Agreement as set forth below.
WHEREAS, SSI agrees that the Note and Pledge Agreement to be issued by SSI on delivery and acceptance of Qualified NIBs shall be cross-collateralized by 50% of all the Qualified NIBs delivered by DMF under the DMF Agreement.
WHEREAS, SSI does not believe any payment is currently due under the ESA Agreement or the DMF Agreement, but has agreed to pay the Advance based upon (i) the assurances set forth above and (ii) ESAs agreement to the conditions set forth below and the modification of the terms of the DMF Agreement herein, as acknowledged by DMF and Brown.
WHEREAS, the Parties agree that no additional payments of compensation will be required until the ESA Parties shall have delivered $400,000,000.00 of Qualified NIBs to SSI, and which Qualified NIBs are as defined in the DMF Agreement, and have been accepted by SSI, in accordance with the DMF Agreement.
NOW THEREFORE, the Parties hereto agree as follows:
1.
Compensation. SSI agrees to pay the Advance to ESA, as follows:
a.
$325,000 shall be paid to ESA no later than October 18, 2013, in exchange for the assurances, conditions and agreements set forth below.
b.
$50,000 shall be paid to ESA no later than November 15, 2013, so long as (i) Qualified NIBs related to at least $90,000,000 of face amount of life insurance shall have been delivered by DMF under the DMF Agreement by November 1, 2013, and accepted by SSI within 14 days of such delivery, and (ii) there has been no violation of the assurances, conditions and agreements set forth below.
c.
$50,000 shall be paid to ESA no later than December 15, 2013, so long as (i) Qualified NIBs related to at least $180,000,000 of face amount of life insurance shall have been delivered by DMF under the DMF Agreement by December 1, 2013, and accepted by SSI within 14 days of such delivery, and (ii) there has been no violation of the assurances, conditions and agreements set forth below..
2.
Conditions for Advance. The following conditions, assurances and agreements are made by ESA and acknowledged by DMF, as the Seller under the DMF Agreement, and Brown, as the Consultant under the ESA Agreement:
a.
The ESA Parties agree that all of the distributions set forth on Schedule A shall count toward the Cash Payment under the DMF Agreement and the fees under the ESA Agreement, not to exceed the Total Up Front Cost, for the delivery of Qualified NIBs related to $400,000,000.00 of face amount of life insurance policies.
b.
The ESA Parties confirm that the Proposed Sale does not and will not interfere with the obligations of any of the ESA Parties under the DMF Agreement or the ESA Agreement and that the ESA Parties, including Brown, as the consultant under the ESA Agreement, are fully committed to the creation of Qualified NIBs related to $400,000,000.00 of face amount of life insurance policies for SSI on an exclusive basis. Brown confirms that he is the consultant performing the services under the ESA Agreement and is covered by the
-2-
exclusivity provisions thereof, and he will use his best commercial efforts to assist DMF in its delivery of the Qualified NIBs.
c.
The payment of the Advance shall be credited against the Total Up Front Cost and shall not cause the total of the Cash Payment and the fees under the ESA Agreement to exceed $12,000,000.00 for the delivery of Qualified NIBs related to $400,000,000.00 of face amount of life insurance policies, and to the extent that it does, for any reason whatsoever, such excess amount shall become a liability of DMF, due on demand.
d.
In order to qualify the NIBs related to assets currently held by SSI as Qualified NIBs, DMF shall (i) provide letters from the senior lender stating that any four year loans will be converted into five year loans, without any additional fees, except for the increase in the origination fees based on the new loan term, as soon as such conversions are allowed without violating large exposure directive restrictions of the senior lender, (ii) adjust the Note to achieve a projected internal rate of return for the related NIBs to at least 23% per financed portfolio, and alter the Note to be nonrecourse, secured only by assets described in the Pledge Agreement, and change the maturity date for the Note to be paid as follows: 50% of Realized Death Benefits (defined below) shall be distributed to DMF and 50% of Realized Death Benefit shall be distributed to SSI until the Note is paid in full, and (iii) take whatever other steps are necessary to ensure the NIBs meet the definition of Qualified NIBs under the DMF Agreement. For purposes of this paragraph, Realized Death Benefits shall mean cash received from the NIBs issuer reduced by any amounts required to be used to pay down debt or expenses associated with such NIBs or other NIBs held by SSI. SSI shall be granted set off rights, permitting SSI to set off amounts owed to DMF under the Note against any amounts owed to SSI for any excess costs, origination fees and expenses or Liquidated Damages under the DMF Agreement, as amended below.
e.
DMF, with the assistance of ESA and Brown, shall provide SSI with a comprehensive plan and budget for the creation of Qualified NIBs related to $400,000,000.00 of face amount of life insurance policies no later than November 1, 2013. The comprehensive plan and budget shall include proposed policies, expenses, cash requirements, projected internal rates of return, timelines, preliminary bank approval and other information reasonably requested by SSI. To the extent that the comprehensive plan and budget require reasonable extensions of time to meet the obligations of the DMF Agreement, SSI may grant such reasonable extensions, not beyond April 1, 2014. SSI shall be fully advised by DMF of each step in such comprehensive plan and during the process of completing each such step. SSI and its representatives shall be allowed to review and provide input during such process. SSI shall have fourteen (14) days to review any NIBs delivered to SSI, prior to its acceptance or rejection of such NIBs or the payment of any fees associated with the delivery and acceptance of such NIBs as Qualified NIBs, including any payment described in Section 1, above.
f.
The ESA Parties agree and confirm that, except for the payments described in Section 1, above, that no additional payments from SSI will be required until DMF has delivered $400,000,000.00 of Qualified NIBs, which have been accepted by SSI, in its sole discretion, according to the DMF Agreement. SSI may or may not, in its sole discretion, provide warehouse financing or advance expenses to assist DMF in the creation of Qualified NIBs after a detailed review of the comprehensive plan, process and budget described above. Any additional expenses or disbursements will be paid out only at
-3-
SSIs sole and complete discretion and any such payments shall be credited against the Total Up Front Cost, at SSIs sole discretion, or shall become a liability to DMF, due on demand, or shall, at SSIs sole discretion, reduce the Note to the satisfaction of SSI.
g.
SSI agrees that the Note and Pledge Agreement to be issued by SSI on delivery and acceptance of Qualified NIBs shall be cross-collateralized by 50% of all the Qualified NIBs delivered by DMF under the DMF Agreement. Neither DMF, ESA nor Brown shall assign, pledge or otherwise transfer or hypothecate any interest in the Note, the Pledge Agreement, the DMF Agreement or the ESA Agreement, without the prior written consent of SSI. SSI shall not assign, pledge or otherwise transfer or hypothecate the collateral without either paying off the Note, prior to or in connection therewith, or obtaining DMFs prior written consent, which consent shall not be unreasonably withheld.
3.
Liquidated Damages. The Parties agree that the DMF Agreement shall be amended to provide for the following Liquidated Damages in the event that Qualified NIBs associated with less than $400,000,000 of face amount of life insurance are delivered and accepted under the DMF Agreement.
a.
Liquidated Damages if Less than $300,000,000 Qualified NIBs Delivered and Accepted. DMF remains obligated to deliver Qualified NIBs associated with $400,000,000 of face amount of life insurance. If Qualified NIBs associated with less than $300,000,000 of face amount of life insurance are delivered and accepted under the DMF Agreement, DMF and ESA shall be jointly and severally liable for Liquidated Damages equal to the aggregate of the Cash Payment and all of the costs advanced, reduced by the pro rata percentage of the Qualified NIBs delivered and accepted by SSI, multiplied by two. The Liquidated Damages shall be due immediately upon failure to deliver as required in the DMF Agreement. Interest shall accrue on any Liquidated Damages owed at a rate of eight percent (8%) per annum.
Example: Assume no Qualified NIBs are delivered under the DMF Agreement and the costs to SSI are $10,000,000 (including the Cash Payment and all other costs and advances under the DMF Agreement or those referenced herein). DMF and ESA shall be required to pay Liquidated Damages of $20,000,000 under this example.
Example: Assume Qualified NIBs associated with $250,000,000 of face amount of life insurance are delivered and accepted at a cost to SSI of $10,000,000 (including the Cash Payment and all such other costs advanced). DMF and ESA shall be required to pay Liquidated Damages of $7,500,000, calculated as:
$250,000,000 divided by $400,000,000 equals 0.6250% of delivered and accepted Qualified NIBs
0.6250% of $10,000,000 equals $6,250,000
$10,000,000 minus $6,250,000 equals $3,750,000
$3,750,000 times two equals $7,500,000
Thus, ESA and DMF shall be liable for Liquidated Damages of $7,500,000 under this example.
-4-
b.
Liquidated Damages if More than $300,000,000 Qualified NIBs but less than $400,000,000 Qualified NIBs Delivered and Accepted. DMF remains obligated to deliver Qualified NIBs associated with $400,000,000 of face amount of life insurance. If $300,000,000 in Qualified NIBs are delivered and accepted, then the Cash Payment and additional costs and advances will not be doubled unless they are not paid in 90 days. If Qualified NIBs associated with more than $300,000,000 but less than $400,000,000 of face amount of life insurance are delivered and accepted under the DMF Agreement, DMF and ESA shall be jointly and severally liable for Liquidated Damages as outlined in the following example. The Liquidated Damages shall be due immediately upon failure to deliver as required in the DMF Agreement.
Example: Assume Qualified NIBs associated with $350,000,000 of face amount of life insurance are delivered and accepted at a cost to SSI of $11,500,000 (includes Cash Payment and all costs advanced). DMF and ESA shall be required to pay Liquidated Damages of $1,000,000, calculated as:
$350,000,000 divided by $400,000,000 equals 0.8750% of delivered and accepted Qualified NIBs
0.8750% of $11,500,000 equals $10,062,500
$11,500,000 minus $10,062,500 equals $1,437,500
$1,437,500 because more than $300,000 in Qualified NIBs were delivered and accepted
Thus, ESA and DMF shall be liable for Liquidated Damages of only $1,437,500 under this example; however, the Liquidated Damages shall be increased to $2,875,000 or by 100% of the balance of the Cash Payment and costs and advances, if not paid within 90 days. Interest shall accrue on any Liquidated Damages owed at a rate of eight percent (8%) per annum on the expiration of such 90 day period.
c.
Retention of Assets. If Qualified NIBs associated with $400,000,000 of face amount of life insurance are not delivered and accepted by SSI, SSI shall not be required to return any excess assets to DMF under Section 3.5 of the DMF Agreement, but may release certain excess assets to DMF in its sole and absolute discretion.
d.
Liquidated Damages Remedies. SSI shall have all remedies of any type or nature whatsoever to recover such Liquidated Damages, without limitation, including legal and equitable remedies and set off.
4.
Miscellaneous.
a.
Due Authorization. Each Party represents to the other that its execution of this Amendment No. 2 has been duly authorized by all necessary company or individual action, if such action is required, and that this Amendment No. 2 constitutes a binding obligation of such Party. Each individual who executes this Amendment No. 2 on behalf of a Party represents to all Parties that he, she or it is authorized to do so. This Amendment No. 2 will bind each Partys successors and permitted assigns. To the extent that Amendment No. 2 amends or otherwise modifies the DMF Agreement, each applicable party represents to the other that its execution of this Amendment No. 2, to the
-5-
extent of such amendments or modifications, has also been duly authorized by all necessary company or individual action.
b.
Counterparts. This Amendment No. 2 may be executed in counterparts each of which will be deemed an original, and such counterparts when taken together shall constitute but one agreement.
c.
Noncircumvention. The Parties agree not to circumvent this Amendment No. 2, Amendment No. 1, the ESA Agreement or the DMF Agreement by creating additional entities or otherwise avoiding the commitments set forth therein.
d.
Governing Law. This Amendment No. 2 and its interpretation and enforcement are governed by the laws of the state of Utah, without qualification.
e.
Dispute Resolution. Notwithstanding anything contained herein to the contrary, in the case of any dispute which arises out of or relating to this Agreement or the relationship of the Parties, which the Parties cannot resolve amicably between themselves, a mediator agreeable to both Parties shall be selected to assist in resolving the dispute provided that the mediation shall be held within sixty (60) days of the notice by one Party that mediation is required. Fees for such mediation will be split equally between the Parties. If any such dispute cannot be resolved through mediation within such sixty (60) day period, any and all claims and actions arising out of or relating to this Agreement or relationship of the Parties, shall be exclusively arbitrated in Utah County, State of Utah, in accordance with the then prevailing rules and regulations of the American Arbitration Association, which proceedings shall be final and binding on the Parties, and strictly confidential. Attorneys fees for such arbitration of the prevailing Party or Parties will be paid by the other Party or Parties. Neither the existence of such proceedings nor the results thereof shall be disclosed to any third party, unless expressly required by law.
f.
No Other Amendment. Except as specifically amended by Amendment No. 1 and this Amendment No. 2, the ESA Agreement and the DMF Agreement are reconfirmed and shall remain binding and enforceable in all respects. No amendment or modification of any provision of this Amendment No. 2, Amendment No. 1, the ESA Agreement or the DMF Agreement will be effective unless made in writing and signed by each of the Parties.
g.
Severance. If for any reason any provision of this Amendment No. 2 is determined by a tribunal of competent jurisdiction to be legally invalid or unenforceable, the validity of the remainder of the Amendment No. 2 will not be affected and such provision will be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision will then be enforceable and enforced.
Signature Page Follows:
-6-
IN WITNESS WHEREOF, the Parties have executed this Amendment No. 2, effective as of the Effective Date.
SUNDANCE STRATEGIES, INC. By: /s/ Randall F. Pearson Name: Randall F Pearson Its: President DEL MAR FINANCIAL, SARL | EUROPA SETTLEMENT ADVISORS, LTD By: /s/Anya Maxwell Name: Anya Maxwell Its: Managing Director |
By: /s/ Paul Jacobson Name: Paul Jacobson Its: Manager | /s/ Michael D. Brown Michael D. Brown, as ESA Consultant for SSI |
-7-
Schedule A
Distributions as of 10/11/13
Date | Amount | Purpose |
5/9/2013 | $100,000.00 | ESA Initial Advance (prior) |
6/5/2013 | $5,000,000.00 | ESA PCH Closing |
6/5/2013 | $240,000.00 | ESA Initial Advance (at closing) |
6/6/2013 | $32,450.00 | ESA/NorthStar L.E.'s |
6/14/2013 | $250,000.00 | ESA |
6/24/2013 | $16,900.00 | ESA/Premiums |
6/28/2013 | $28,300.00 | ESA/Beiten |
6/28/2013 | $94,500.00 | ESA/Arendt |
6/28/2013 | $25,000.00 | ESA/Moss Adams |
7/3/2013 | $56,000.00 | ESA/Capita |
7/19/2013 | $15,000.00 | ESA/Mike Brown |
7/23/2013 | $14,700.00 | ESA/Premiums |
7/23/2013 | $25,000.00 | ESA/NorthStar |
8/16/2013 | $39,200.00 | ESA/Assorted Premiums |
8/23/2013 | $40,000.00 | ESA/Del Mar |
8/23/2013 | $224,600.00 | ESA/Jones Policy |
9/3/2013 | $12,000.00 | Rent/ESA |
9/5/2013 | $20,000.00 | ESA/Harmen |
9/13/2013 | $50,000.00 | ESA/Harmen |
9/13/2013 | $75,000.00 | ESA/Capita |
9/13/2013 | $25,000.00 | ESA/NorthStar |
9/18/2013 | $25,000.00 | ESA/Mike Brown |
9/25/2013 | $11,600.00 | ESA/Premiums |
9/25/2013 | $25,000.00 | ESA/NorthStar |
10/3/2013 | $1,717,022.30 | PCH Payment |
10/11/2013 | $16,200.00 | ESA/DMF Genesis |
10/25/2013 | $25,000.00 | Mike Brown |
10/28/2013 | $12,500.00 | ESA/Premiums |
10/29,2013 | $12,000.00 | ESA/Rent |
10/29/2013 | $13,347.00 | ESA/Mark Niu invoice |
Total: |
|
|
-8-
EXCLUSIVITY AND CONSULTING AGREEMENT
This Exclusivity and Consulting Agreement (the Agreement) is entered into this 29th day of October 2013, by and between Sundance Strategies, Inc. (SSI), and Michael D. Brown, individually and as the consultant under the ESA Agreement, defined below (Brown). Each of SSI and Brown may be referred to herein as a Party or collectively as the Parties.
WHEREAS, SSI and Europa Settlement Advisors Ltd. (ESA) entered into a Structuring and Consulting Agreement on June 5, 2013, as amended, (the ESA Agreement) whereby SSI engaged ESA on an exclusive basis to perform certain services in connection with the purchase of net life insurance benefits (NIBs) and other products tied to life insurance policies on insureds aged 75 and older from DMF.
WHEREAS, SSI and Del Mar Financial S.a.r.l. (DMF) entered into an Asset Transfer Agreement dated June 5, 2013 (the DMF Agreement) to purchase certain NIBs and other assets.
WHEREAS, all capitalized terms used but not defined herein shall have the meanings set forth in the DMF Agreement, and that all terms and conditions of the DMF Agreement not otherwise modified herein shall remain in full force and effect.
WHEREAS, ESA, DMF and Brown have been engaged in conversations with a buyer related to the sale of certain assets currently held by SSI (the Proposed Sale).
WHEREAS, SSI has consented to certain disclosures and activities related to the Proposed Sale based on assurances that ESA, DMF and Brown, as consultant under the ESA Agreement and individually, continue to be bound by the exclusivity provisions of the ESA Agreement and the DMF Agreement.
WHEREAS, ESA has made demand for an additional installment of the Structuring Fee (as defined in the ESA Agreement) in the amount of $425,000.00 (the Advance), based upon assurances that the payment of the Advance will not cause the total of the Cash Payment and the fees under the ESA Agreement to exceed Total Up Front Cost for the delivery of Qualified NIBs related to $400,000,000.00 of face amount of life insurance policies under the DMF Agreement.
WHEREAS, SSI does not believe any payment is currently due under the ESA Agreement or the DMF Agreement, but has agreed to pay the Advance based upon (i) the assurances set forth in Amendment No. 2 to the ESA Agreement, (Amendment No. 2) (ii) ESAs agreement to the conditions set forth in Amendment No. 2 and the modification of the terms of the DMF Agreement set forth in Amendment No. 2, and (iii) Browns agreement to provide all services, either individually or as the consultant under the ESA Agreement under an exclusive basis to SSI, reasonably necessary to complete the sale of Qualified NIBs associated with $400,000,000.00 of life insurance to SSI under the DMF Agreement.
WHEREAS, in addition to the Advance, which Brown acknowledges will benefit him as the consultant for ESA, SSI has paid $25,000.00 to Brown as separate consideration for this Agreement.
WHEREAS, the Parties agree that no additional payments of compensation will be required until DMF, with the assistance of ESA and Brown, shall have delivered Qualified NIBs associated with
-1-
$400,000,000.00 of life insurance to SSI, and which Qualified NIBs are as defined in the DMF Agreement, and have been accepted by SSI, in accordance with the DMF Agreement.
NOW THEREFORE, the Parties hereto agree as follows:
1.
Compensation. SSI agrees to pay the Advance to ESA, as set forth in Amendment No. 2, and an additional amount to Brown equal to $25,000.00, which was paid prior to the date hereof.
2.
Conditions for Advance. The following conditions, assurances and agreements are made by Brown, individually and as the Consultant under the ESA Agreement:
a.
Brown agrees that all of the distributions set forth on Schedule A shall count toward the Cash Payment under the DMF Agreement and the fees under the ESA Agreement, not to exceed the Total Up Front Cost, for the delivery of Qualified NIBs related to $400,000,000.00 of face amount of life insurance policies.
b.
Brown confirms that the Proposed Sale does not and will not interfere with the obligations of any of ESA, Brown or DMF. Brown confirms that he is the consultant performing the services under the ESA Agreement and is covered by the exclusivity provisions thereof, and he will use his best commercial efforts to assist ESA and DMF in its delivery of the Qualified NIBs, whether he is acting in his individual capacity or in his capacity as the consultant to ESA.
c.
The payment of the Advance and additional consideration shall be credited against the Total Up Front Cost and shall not cause the total of the Cash Payment and the fees under the ESA Agreement to exceed $12,000,000.00 for the delivery of Qualified NIBs related to $400,000,000.00 of face amount of life insurance policies, and to the extent that it does, for any reason whatsoever, such excess amount shall become a liability of DMF, due on demand.
3.
Miscellaneous.
a.
Due Authorization. Each Party represents to the other that its execution of this Agreement has been duly authorized by all necessary company or individual action, if such action is required, and that this Agreement constitutes a binding obligation of such Party. Each individual who executes this Agreement on behalf of a Party represents to all Parties that he, she or it is authorized to do so. This Agreement will bind each Partys successors and permitted assigns. To the extent that Agreement amends or otherwise modifies the DMF Agreement, each applicable party represents to the other that its execution of this Agreement, to the extent of such amendments or modifications, has also been duly authorized by all necessary company or individual action.
b.
Counterparts. This Agreement may be executed in counterparts each of which will be deemed an original, and such counterparts when taken together shall constitute but one agreement.
c.
Noncircumvention. The Parties agree not to circumvent this Agreement, Amendment No. 1, the ESA Agreement or the DMF Agreement by creating additional entities or otherwise avoiding the commitments set forth therein.
-2-
d.
Governing Law. This Agreement and its interpretation and enforcement are governed by the laws of the state of Utah, without qualification.
e.
Dispute Resolution. Notwithstanding anything contained herein to the contrary, in the case of any dispute which arises out of or relating to this Agreement or the relationship of the Parties, which the Parties cannot resolve amicably between themselves, a mediator agreeable to both Parties shall be selected to assist in resolving the dispute provided that the mediation shall be held within sixty (60) days of the notice by one Party that mediation is required. Fees for such mediation will be split equally between the Parties. If any such dispute cannot be resolved through mediation within such sixty (60) day period, any and all claims and actions arising out of or relating to this Agreement or relationship of the Parties, shall be exclusively arbitrated in Utah County, State of Utah, in accordance with the then prevailing rules and regulations of the American Arbitration Association, which proceedings shall be final and binding on the Parties, and strictly confidential. Attorneys fees for such arbitration of the prevailing Party or Parties will be paid by the other Party or Parties. Neither the existence of such proceedings nor the results thereof shall be disclosed to any third party, unless expressly required by law.
f.
No Other Amendment. Except as specifically amended by this Agreement, Amendment No. 1 and Amendment No. 2, the ESA Agreement and the DMF Agreement are reconfirmed and shall remain binding and enforceable in all respects. No amendment or modification of any provision of this Agreement, Amendment No. 2, Amendment No. 1, the ESA Agreement or the DMF Agreement will be effective unless made in writing and signed by each of the Parties.
g.
Severance. If for any reason any provision of this Agreement is determined by a tribunal of competent jurisdiction to be legally invalid or unenforceable, the validity of the remainder of the Agreement will not be affected and such provision will be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision will then be enforceable and enforced.
Signature Page Follows:
-3-
IN WITNESS WHEREOF, the Parties have executed this Agreement, effective as of the Effective Date.
SUNDANCE STRATEGIES, INC. By: /s/ Randall F. Pearson Name: Randall F Pearson Its: President |
|
| /s/ Michael D.Brown Michael D. Brown, Individually and as ESA Consultant for SSI |
-4-
Schedule A
Distributions as of 10/29/13
Date | Amount | Purpose |
5/9/2013 | $100,000.00 | ESA Initial Advance (prior) |
6/5/2013 | $5,000,000.00 | ESA PCH Closing |
6/5/2013 | $240,000.00 | ESA Initial Advance (at closing) |
6/6/2013 | $32,450.00 | ESA/NorthStar L.E.'s |
6/14/2013 | $250,000.00 | ESA |
6/24/2013 | $16,900.00 | ESA/Premiums |
6/28/2013 | $28,300.00 | ESA/Beiten |
6/28/2013 | $94,500.00 | ESA/Arendt |
6/28/2013 | $25,000.00 | ESA/Moss Adams |
7/3/2013 | $56,000.00 | ESA/Capita |
7/19/2013 | $15,000.00 | ESA/Mike Brown |
7/23/2013 | $14,700.00 | ESA/Premiums |
7/23/2013 | $25,000.00 | ESA/NorthStar |
8/16/2013 | $39,200.00 | ESA/Assorted Premiums |
8/23/2013 | $40,000.00 | ESA/Del Mar |
8/23/2013 | $224,600.00 | ESA/Jones Policy |
9/3/2013 | $12,000.00 | Rent/ESA |
9/5/2013 | $20,000.00 | ESA/Harmen |
9/13/2013 | $50,000.00 | ESA/Harmen |
9/13/2013 | $75,000.00 | ESA/Capita |
9/13/2013 | $25,000.00 | ESA/NorthStar |
9/18/2013 | $25,000.00 | ESA/Mike Brown |
9/25/2013 | $11,600.00 | ESA/Premiums |
9/25/2013 | $25,000.00 | ESA/NorthStar |
10/3/2013 | $1,717,022.30 | PCH Payment |
10/11/2013 | $16,200.00 | ESA/DMF Genesis |
10/25/2013 | $25,000.00 | Brown payment |
10/28/2013 | $12,500.00 | ESA/Premiums |
10/29,2013 | $12,000.00 | ESA/Rent |
10/29/2013 | $13,347.00 | ESA/Mark Niu invoice |
Total: |
|
|
-5-
THIS NOTE HAS NOT BEEN REGISTERED PURSUANT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT), OR QUALIFIED PURSUANT TO ANY APPLICABLE STATE SECURITIES LAW. THIS NOTE MAY BE RESOLD ONLY IF REGISTERED PURSUANT TO THE PROVISIONS OF THE ACT AND QUALIFIED PURSUANT TO APPLICABLE STATE SECURITIES LAWS OR IF AN EXEMPTION FROM SUCH REGISTRATION AND QUALIFICATION IS AVAILABLE, EXCEPT UNDER CIRCUMSTANCES WHERE NEITHER SUCH REGISTRATION, QUALIFICATION NOR EXEMPTION IS REQUIRED BY LAW.
Amended and Restated Secured Promissory Note
$2,999,000
Dated Effective: March 11, 2013
Amended Effective: November 5, 2013
FOR VALUE RECEIVED, ANEW LIFE, INC., a Utah Corporation, (the Maker), promises to pay to DEL MAR FINANCIAL S.à.R.L., a société à responsabilité limitée formed under the laws of the Grand-Duchy of Luxembourg, having its registered office at 1, allée Scheffer, L-2520 Luxembourg (the Holder), the principal sum of Two Million Nine Hundred Ninety Nine Thousand Dollars ($2,999,000.00), together with interest on the unpaid principal balance from time to time outstanding from March 11, 2013, until the entire principal amount due hereunder is paid in full at the rates hereinafter provided (the Note).
WHEREAS, this Note was originally executed between Maker and PCH Financial S.a.r.l. (PCH) on March 11, 2013, in connection with that certain NIBs Transfer Agreement also dated March 11, 2013 (the Original Note); and
WHEREAS, Maker was acquired by SUNDANCE STRATEGIES, INC. a Nevada corporation (SSI) which is now the sole owner of Maker; and
WHEREAS, Holder acquired the Original Note from PCH in connection with that certain Loan Repayment & Asset Transfer Agreement dated June 5, 2013; and
WHEREAS, SSI acquired the Original Note from Holder in connection with that certain Asset Transfer Agreement dated June 5, 2013 (the ATA); provided that SSI was obligated under such agreement to transfer the Original Note back to Holder upon completion of certain requirements under the ATA; and
WHEREAS, SSI has agreed to transfer this Note back to Holder prior to Holders meeting the requirements but without waiving Holders obligation to meet such certain requirements under the ATA and without otherwise affecting the terms of provisions of the ATA, in exchange for Holders agreement to amend the Original Note in accordance with the terms set forth herein; and
WHEREAS, neither the Original Note nor any interest therein has been otherwise assigned or encumbered by Maker, Del Mar, PCH or SSI; and
WHEREAS, the Maker intends to enter into an Assignment Agreement assigning this Note to Hyperion Funds II PLC, an umbrella investment company with segregated liability between its sub-funds incorporated with variable capital in Ireland on June 22, 2011, with registration number 500309 and
- 1 -Amended & Restated Secured Note |
|
|
acting for and on behalf and for the account of Hyperion Life Fund II-A (Hyperion), which such Assignment Agreement shall have a Buyback provision that shall be the subject of an additional Assignment Agreement from the Holder to the Maker; and
WHEREAS, the Holder shall simultaneously herewith procure the recording of the Note in any Register maintained in connection with any of the foregoing referenced agreements or any NIBs acquired under any of the foregoing agreements, along with the aforesaid Assignment Agreements, and shall provide the Maker with evidence of such filings.
NOW THEREFORE, the Original Note is hereby amended and restated in its entirety as follows, subject to the foregoing recitations and the ATA:
1.
Rates of Interest. Interest shall accrue from March 11, 2013 until paid at a rate per annum equal to 4.0% calculated on the basis of a three hundred sixty day year, compounded annually.
2.
Payments of Principal and Interest. The outstanding principal and accrued interest thereon shall be due and payable in full on April 11, 2015. All payments hereunder will be applied first to accrued and unpaid fees, costs or expenses hereunder, if any, second to accrued and unpaid interest hereunder, and then to the principal balance outstanding hereunder.
3.
Methods of Payment. Unless otherwise agreed by Holder, payments of both principal and interest as required hereunder shall be made in United States Dollars in immediately available funds.
4.
Write-Down of Note.
(a)
In the event that $400,000,000 of Qualified NIBs have been acquired by SSI in accordance with the ATA or otherwise are accepted by SSI even though not meeting the precise definition of Qualified NNIBs in the ATA, and SSI issues a bond rated by Scope rating agency prior to April 11, 2014, the then outstanding principal balance of this Note shall be reduced to $2,000,000 (if the then outstanding principal balance exceeds $2,000,000 at the time).
(b)
At any time after April 11, 2014 until the Maturity Date of this Note, Maker shall have the option, in its sole discretion and without qualification, and on five (5) days notice to Holder, to decrease the then outstanding principal balance of this Note to $1,500,000; provided that upon the exercise of such option, the Collateral described in the Pledge Agreement shall be reduced from 50% to 40% of its NIBs.
5.
Pre-Payment and Note Amount Reduction. This Note may be prepaid, in whole or in part, by the Maker at any time without penalty. Any net death benefit or bond proceeds paid to Maker or SSI in connection with the assets purchased under the NIBs Transfer Agreement dated March 11, 2013 shall be used to prepay this Note; provided, however, no such death benefits or bond proceeds paid to the Maker or SSI shall be accounted for in any manner that would cause the Maker or SSI to not receive the full benefit of the reductions of the principal balance of the Note outlined in Section 4(a) and (b), without qualification, except the conditions outlined in such referenced Section 4(a) and (b). Notwithstanding anything herein or in any agreement referenced herein to the contrary, once accrued interest and $1,500,000 has been received as payment on this Note from any source, this Note shall be deemed to be paid in full, and all Collateral under the referenced Pledge Agreement or otherwise, shall be the sole and separate property of Maker, without exception. Maker may set off any claim it has against Holder in payment of the Note, without qualification.
- 2 -Amended & Restated Secured Note |
|
|
6.
Security. This Note is secured by a Pledge Agreement dated March 11, 2013 (the Pledge Agreement), made by Maker for the benefit of PCH on 50% of certain assets acquired by Maker pursuant to the NIBs Transfer Agreement. The terms of the Pledge Agreement are incorporated herein and made a part hereof by reference as if fully set forth herein.
7.
Default. Each of the following shall be an Event of Default hereunder:
(i)
the failure of Maker to pay any amount when due or to perform any of its other obligations under this Note;
(ii)
any representation or warranty of Maker hereunder or in the Purchase Agreement or in connection therewith shall have been materially false or misleading when made;
(iii)
Maker shall (A) discontinue its business, (B) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of it or any of its property, (C) admit in writing its inability to pay its debts as they mature, (D) make a general assignment for the benefit of creditors, (E) be adjudicated a bankrupt or insolvent or be the subject of an order for relief, or (F) file a voluntary petition in bankruptcy or insolvency, or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law or corporate action shall be taken for the purpose of effecting any of the foregoing; or
(iv)
there shall be filed against Maker an involuntary petition seeking its reorganization or the appointment of a receiver, trustee, custodian or liquidator of Maker or a substantial part of its assets, or an involuntary petition under any bankruptcy, reorganization or insolvency law of any jurisdiction, whether now or hereafter in effect and such involuntary petition shall not have been dismissed within 60 days of the filing thereof.
Upon the occurrence of an Event of Default, at the option of Holder, the entire balance of principal together with all accrued interest thereon shall, without demand or notice, immediately become due and payable and so long as such Event of Default continues, the entire balance of principal together with all accrued Interest shall bear Interest at a Default Rate of 10% per annum. Upon the occurrence of an Event of Default, Holder may exercise any and all rights and remedies it may have under this Note, the Pledge Agreement, applicable law an in equity.
8.
Waivers. The Maker hereby waives presentment for payment, protest and demand, and notice of protest, demand and/or dishonor and nonpayment of this Note, notice of any Event of Default, and all other notices or demands otherwise required by law that the Maker may lawfully waive. The Maker expressly agrees that this Note, or any payment hereunder, may be extended from time to time, without in any way affecting the liability of the Maker. No unilateral consent or waiver by the Holder with respect to any action or failure to act which, without consent, would constitute a breach of any provision of this note shall be valid and binding unless in writing and signed by the Holder.
Governing Law. The rights and obligations of the Maker and all provisions hereof shall be governed by and construed in accordance with the laws of the State of Utah.
10.
Consent to Jurisdiction. The Maker and the Holder hereby submit to the jurisdiction of any federal court or Utah State Court sitting in Salt Lake County, Utah for the purpose of any suit, action or other proceeding arising out of the Makers obligations under or with respect to this Note, and
- 3 -Amended & Restated Secured Note |
|
|
expressly waives any and all objections it may have as to venue in any of such courts. Any action on this Note shall be required to be brought in the jurisdiction of any federal court or Utah State Court sitting in Salt Lake County, Utah. The Maker agrees to accept and acknowledge service of any and all process that may be served in any suit, action or proceeding. The Maker agrees that any service of process mailed by registered or certified mail, return receipt requested to the Maker at the address set forth above shall be deemed in every respect effective service of process upon such party in any such suit, action or proceeding.
11.
Savings Clause. All agreements between Maker and the Holder are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of acceleration of maturity of the indebtedness evidenced hereby or otherwise, shall the amount paid or agreed to be paid to the Holder for the use, forbearance or detention of the indebtedness evidenced hereby exceed the maximum permissible under applicable law. As used herein, the term applicable law shall mean the law in effect as of the date hereof, provided, however, that in the event there is a change in the law which results in a higher permissible rate of interest, then this note shall be governed by such new law as of its effective date. In this regard, it is expressly agreed that it is the intent of Maker and the Holder in the execution, delivery and acceptance of this Note to contract in strict compliance with the laws of Luxembourg. If, from any circumstance whatsoever, fulfillment of any provision hereof at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by law, then the obligation to be fulfilled shall automatically be reduced to the limit of such validity, and if from any circumstances any lender should ever receive as interest an amount which would exceed the highest lawful rate, such amount which would be excessive interest shall be applied to the reduction of the principal balance evidenced hereby and not to the payment of interest. This provision shall control every other provision of all agreements between Maker and the Holder.
12.
Attorneys Fees; Collection Costs. If this Note shall not be paid when due and shall be placed by the Holder hereof in the hands of any attorney for collection, through legal proceedings or otherwise, the Maker will pay upon demand to the Holder reasonable attorneys fees of such holder together with reasonable costs and expenses of collection of such Holder.
13.
Assignment. The Maker may assign its obligations under this Note only with the prior written consent of the Holder. Except as otherwise provided herein, the Holder may assign its interests in this Note only with the prior written consent of the Maker.
14.
Section Headings. Any section headings in this Note are included herein for convenience of reference only and shall not constitute a part of this note for any other purpose.
15.
Amendment. This Note shall amend and replace the Original Note in its entirety.
[Remainder of page left blank intentionally]
- 4 -Amended & Restated Secured Note |
|
|
IN WITNESS WHEREOF, the Maker, duly authorized, has caused this Note to be executed as of the day and year first above written.
ANEW LIFE, INC.
By: /s/Randall F. Pearson
Name: Randall F. Pearson
Title: President
Duly Authorized, Acknowledged and Consented to by:
DEL MAR FINANCIAL S.à R.L
By: /s/ Paul Jacobson
Name: Paul Jacobson
Title: Manager
- 5 -Amended & Restated Secured Note |
|
|
ASSIGNMENT AGREEMENT
This Assignment Agreement (this Agreement) is made effective as of November 5, 2013 (the Effective Date), by and between SUNDANCE STRATEGIES, INC. a Nevada corporation (the Assignor) and DEL MAR FINANCIAL S.à R.L., a société à responsabilité limitée formed under the laws of the Grand-Duchy of Luxembourg, having its registered office at 1, allée Scheffer, L-2520 Luxembourg (the Assignee). Assignor and Assignee are sometimes referred to herein collectively as the Parties and each individually as a Party.
Section 1.
Introductory. The Assignor desires and agrees to transfer to Assignee that certain Amended and Restated Secured Promissory Note dated November 5, 2013, in principal amount of U.S.$2,999,000.00 (the Note) attached hereto as Exhibit A-1 and any related rights or benefits of the Note as embodied in that certain Pledge Agreement and NIBs Transfer Agreement referenced therein (both herein referred to as the Related Agreements) and attached hereto as Exhibit A-2 and Exhibit A-3, respectively, and any amendments made thereto. Capitalized terms used in this Agreement but not otherwise defined shall have the meanings set forth in the Note, the Related Agreements, and any amendments made thereto.
Section 2.
Purchase and Sale of Note.
(a)
On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions set forth herein, the Assignor hereby conveys, transfers, assigns and delivers to the Assignee, and the Assignee hereby acquires from the Assignor, all of the Assignors right, title and interest in and to the Note as embodied in the Related Agreements, in exchange for the amendments made to the Note and described therein as of the Effective Date.
(b)
The Assignor hereby covenants and agrees that the Assignor will, at the reasonable request of Assignee, execute and deliver, and will cause any of the Assignors employees to execute and deliver, such further instruments of sale, transfer, conveyance, and assignment and take such other action as may reasonably be required to more effectively sell, transfer, convey, assign, and deliver to and vest in the Assignee, its successors and assigns all of the Assignors right, title and interest to and possession of the Note as embodied in the Related Agreements and any amendments made thereto.
Section 3.
Representations and Warranties of the Assignor. The Assignor represents and warrants to the Assignee that:
(a)
The Assignor is a corporation duly formed, validly existing and in good standing under the laws of the State of Nevada, with power and authority (corporate and other) to own its properties and conduct its business; and the Assignor is duly qualified to do business in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, and in which the failure to be so qualified is reasonably likely to have a Material Adverse Effect (as defined below) in relation to the Assignor. As used herein, Material Adverse Effect shall mean, with respect to any Person, a material adverse effect on the condition (financial or otherwise), business, properties or results of operations of such Person.
Exhibit A-1 |
|
|
(b)
This Agreement has been duly authorized by the Assignor and constitutes a valid and legally binding agreement of the Assignor, enforceable against the Assignor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles.
(c)
Assuming (i) that the Assignees representations and warranties contained in Section 4 are true and (ii) compliance by the Assignee with the covenants set forth therein, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and in connection with the sale of the Note by the Assignor, other than as have been made or obtained on or prior to the date hereof (or, if not required to be made or obtained on or prior to the date hereof, that will be made or obtained when required).
(d)
The execution, delivery and performance of this Agreement, the sale of the Note as contemplated by this Agreement and compliance with the terms and provisions hereof by the Assignor will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Assignor or any of its properties, (ii) any agreement or instrument to which the Assignor is a party or by which the Assignor is bound or to which any of the properties of Assignor is subject, or (iii) the organizational documents of the Assignor and the Assignor has full power and authority to authorize, sell the Note as contemplated by this Agreement.
(e)
The Assignor has good and marketable title to the Note free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by it, except liens, encumbrances and defects of which the Assignee has direct knowledge, including those that may result from the Related Agreements which are specifically waived by Assignee and PCH Financial S.a.r.l. There is no action, suit or proceeding before or by any governmental authority having jurisdiction over the Assignor or its properties, now pending, or to its knowledge, threatened, against or affecting it: (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of the transaction contemplated by this Agreement, or (iii) seeking any determination or ruling that might materially and adversely affect the performance of its obligations under, or the validity or enforceability of, this Agreement or otherwise adversely affect its ability to consummate the transaction contemplated hereby.
Section 4.
Representations of the Assignee. The Assignee represents and warrants to the Assignor that:
(a)
The Assignee is a société à responsabilité limitée duly formed, validly existing and in good standing under the laws of the Grand-Duchy of Luxembourg, with power and authority (corporate and other) to own its properties and conduct its business; and the Assignor is duly qualified to do business as a foreign entity in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, and in which the failure to be so qualified is reasonably likely to have a Material Adverse Effect (as defined below) in relation to the Assignee.
Exhibit A-1 |
|
|
(b)
This Agreement has been duly authorized by the Assignee and constitutes a valid and legally binding agreement of the Assignee, enforceable against the Assignee in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles.
(c)
Assuming (i) that the Assignors representations and warranties contained in Section 3 are true and (ii) compliance by the Assignor with the covenants set forth therein, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement, other than as have been made or obtained on or prior to the date hereof (or, if not required to be made or obtained on or prior to the date hereof, that will be made or obtained when required).
(d)
The execution, delivery and performance of this Agreement, the purchase of the Note as contemplated by this Agreement and compliance with the terms and provisions hereof by the Assignee will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Assignee or any of its properties, (ii) any agreement or instrument to which the Assignee is a party or by which the Assignee is bound or to which any of the properties of Assignee is subject, or (iii) the organizational documents of the Assignee and the Assignee has full power and authority to authorize, purchase the Note as contemplated by this Agreement.
(e)
There is no action, suit or proceeding before or by any governmental authority having jurisdiction over the Assignee or its properties, now pending, or to its knowledge, threatened, against or affecting it: (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of the transaction contemplated by this Agreement, or (iii) seeking any determination or ruling that might materially and adversely affect the performance of its obligations under, or the validity or enforceability of, this Agreement or otherwise adversely affect its ability to consummate the transaction contemplated hereby.
(f)
To the best of the Assignees knowledge, no action, petition, resolution or similar order for bankruptcy (faillite), voluntary or judicial winding-up (liquidation volontaire ou judiciaire), controlled management (gestion contrôlée), suspension of payment (sursis de paiement), voluntary arrangement with creditors (concordat préventif de faillite) or similar proceedings affecting the rights of creditors generally has been taken, lodged, passed or presented with regard to the Assignee.
(g)
The Assignee does not meet or threaten to meet the criteria for the opening of any proceedings referred to under the above paragraph.
Section 5.
Other Agreements. Except as specifically provided herein or in the Note, this Agreement shall not affect any rights or obligations of the Parties under the NIBs Transfer Agreement or any agreement other than the Note and the Pledge Agreement.
Exhibit A-1 |
|
|
Section 6.
Severability. 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 7.
Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when mailed by certified mail, postage prepaid, with proper address as indicated below (including electronic transmissions capable of producing a written record, or by e-mail accompanied by a delivery request). The Assignor and the Assignee may, by written notice given by each to the other, designate any other address or addresses to which notices, certificates or other communications to them shall be sent when required as contemplated by this Agreement. Until otherwise provided by the respective Parties, all notices, certificates and communications to each of them shall be addressed as set forth on the signature pages to this Agreement.
Section 8.
Successors. This Agreement will inure to the benefit of and be binding upon the Parties their respective successors, and no other Person will have any right or obligation hereunder.
Section 9.
Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF UTAH, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.
Submission to Jurisdiction. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY ONLY BE BROUGHT IN THE COURTS OF THE STATE OF UTAH OR OF THE UNITED STATES SITTING IN SALT LAKE COUNTY, UTAH, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, OR ANY LEGAL PROCESS WITH RESPECT TO ITSELF OR ANY OF ITS PROPERTY, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY UTAH LAW.
Section 11.
Waiver of Trial by Jury. THE PARTIES HERETO EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR
Exhibit A-1 |
|
|
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 12.
Counterparts. This 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.
Section 13.
Default.
In any action brought to enforce the terms and provisions of this Agreement, the non-defaulting party shall be entitled to recover reasonable attorneys fees and court costs.
<signature page to follow>
Exhibit A-1 |
|
|
IN WITNESS WHEREOF the Parties, duly authorized, have entered into this Agreement as of the Effective Date.
ASSIGNEE DEL MAR FINANCIAL S.à R.L. | ASSIGNOR SUNDANCE STRATEGIES INC. | ||
By: | /s/Paul Jacobson | By: | /s/ Randall F. Pearson |
Name: | Paul Jacobson | Name: | Randall F. Pearson |
Its: | Manager | Its: | President |
Address for Notice: 1, allée Scheffer L-2520 Luxembourg | Address for Notice: 4626 North 300 West, Suite No. 365 Provo, UT 84604 |
Exhibit A-1 |
|
|
EXHIBIT A-1
NOTE
Exhibit A-1 |
|
|
EXHIBIT A-2
PLEDGE AGREEMENT
Exhibit A-2 |
|
|
EXHIBIT A-3
NIBs TRANSFER AGREEMENT
Exhibit A-3 |
|
|
|
|
|
AMENDED AND RESTATED ASSIGNMENT AGREEMENT
This Amended and Restated Assignment Agreement (this Agreement) is made effective as of November 5, 2013 (the Effective Date), by and between DEL MAR FINANCIAL S.à R.L., a société à responsabilité limitée formed under the laws of the Grand-Duchy of Luxembourg, having its registered office at 1, allée Scheffer, L-2520 Luxembourg (the Assignor) and HYPERION FUNDS II PLC, an umbrella investment company with segregated liability between its sub-funds incorporated with variable capital in Ireland on June 22, 2011, with registration number 500309 and acting for and on behalf and for the account of Hyperion Life Fund II-A (the Assignee). Assignor and Assignee are sometimes referred to herein collectively as the Parties and each individually as a Party.
Section 1.
Introductory. The Assignor desires and agrees to sell to Assignee that certain Amended and Restated Secured Promissory Note dated November 5, 2013, in principal amount of U.S.$2,999,000.00 (the Note) attached hereto as Exhibit A-1 and any related rights or benefits of the Note as embodied in that certain Pledge Agreement and NIBs Transfer Agreement referenced therein (both herein referred to as the Related Agreements) and attached hereto as Exhibit A-2 and Exhibit A-3, respectively, and any amendments made thereto. Capitalized terms used in this Agreement but not otherwise defined shall have the meanings set forth in the Note, the Related Agreements, and any amendments made thereto. The Assignor initially entered into that certain Assignment Agreement with Assignee effective as of August 29, 2013 (the Prior Assignment) transferring a prior version of the Note and Related Agreements to Assignor. There has been some dispute related to the execution and acquisition of such prior version of the Note and Related Agreements from the prior owner, which disputes have been resolved and have resulted in the execution of the Note and Related Agreements as of November 5, 2013, as described herein, which shall replace in all respects the prior versions of the Note and Related Agreement attached to the Prior Assignment.
Section 2.
Purchase and Sale of Note.
(a)
On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions set forth herein, the Assignor hereby sells, conveys, transfers, assigns and delivers to the Assignee, and the Assignee hereby purchases from the Assignor, all of the Assignors right, title and interest in and to the Note, as embodied in the Related Agreements, for a purchase price of US$1,000,000.00 (the Purchase Price), which the Parties acknowledge was paid in full on September 6, 2013 in connection with the Prior Assignment.
(b)
The Assignor hereby covenants and agrees that the Assignor will, at the reasonable request of Assignee, execute and deliver, and will cause any of the Assignors employees to execute and deliver, such further instruments of sale, transfer, conveyance, and assignment and take such other action as may reasonably be required to more effectively sell, transfer, convey, assign, and deliver to and vest in the Assignee, its successors and assigns all of the Assignors right, title and interest to and possession of the Note, as embodied in the Related Agreements, and any amendments made thereto.
Section 3.
Assignors Buyback Option.
(a)
The Assignor (including any of its assignees, transferees, and successors) shall have an irrevocable, exclusive option (the Buyback Option), which the Assignor may exercise for a period of twelve months from the date of this Agreement, to buy back the Note at a price equal to the Purchase Price plus an additional 2.0% for each month (whole or partial) that has elapsed from the date of this Agreement to the date that the Buyback Option is exercised (the Buyback Price). Notwithstanding the foregoing, the Buyback Price shall in no circumstances be less than an amount equal to US$1,120,000.00 (the Minimum Buyback Price).
(b)
The Assignor may exercise the Buyback Option by giving written notice to the Assignee and by sending payment by wire transfer to Assignee in an amount equal to the Buyback Price (or the Minimum Buyback Price if the Buyback Option is exercised within the first six months). The Buyback Option must be exercised on the entire Note. No partial buy backs shall be allowed. Upon delivery of such notice and payment of the Buyback Price (or the Minimum Buyback Price if the Buyback Option is exercised within the first six months), the Assignor shall become the legal and beneficial owner of the Note being repurchased and all rights and interests contained in the Note, the Related Agreements, and any amendments made thereto.
(c)
The Buyback Option as provided for in this Agreement shall be freely transferable by the Assignor without prior approval by the Assignee, and the Assignee hereby acknowledges that all rights, interests, and benefits of the Buyback Option shall inure to the benefit of any transferee to whom the Assignor chooses to transfer the Buyback Option.
Section 4.
Representations and Warranties of the Assignor. The Assignor represents and warrants to the Assignee that:
(a)
The Assignor is a société à responsabilité limitée duly formed, validly existing and in good standing under the laws of the Grand-Duchy of Luxembourg, with power and authority (corporate and other) to own its properties and conduct its business; and the Assignor is duly qualified to do business as a foreign entity in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, and in which the failure to be so qualified is reasonably likely to have a Material Adverse Effect (as defined below) in relation to the Assignor. As used herein, Material Adverse Effect shall mean, with respect to any Person, a material adverse effect on the condition (financial or otherwise), business, properties or results of operations of such Person.
(b)
This Agreement has been duly authorized by the Assignor and constitutes a valid and legally binding agreement of the Assignor, enforceable against the Assignor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles.
(c)
Assuming (i) that the Assignees representations and warranties contained in Section 5 are true and (ii) compliance by the Assignee with the covenants set forth therein, no
- 2 -Assignment Agreement |
|
|
consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and in connection with the sale of the Note by the Assignor, other than as have been made or obtained on or prior to the date hereof (or, if not required to be made or obtained on or prior to the date hereof, that will be made or obtained when required).
(d)
The execution, delivery and performance of this Agreement, the sale of the Note as contemplated by this Agreement and compliance with the terms and provisions hereof by the Assignor will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Assignor or any of its properties, (ii) any agreement or instrument to which the Assignor is a party or by which the Assignor is bound or to which any of the properties of Assignor is subject, or (iii) the organizational documents of the Assignor and the Assignor has full power and authority to authorize, sell the Note as contemplated by this Agreement.
(e)
The Assignor has good and marketable title to the Note free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by it, except liens, encumbrances and defects of which the Assignee has direct knowledge, including those that may result from the Related Agreements which are specifically waived by Assignee and PCH Financial S.a.r.l.
(f)
There is no action, suit or proceeding before or by any governmental authority having jurisdiction over the Assignor or its properties, now pending, or to its knowledge, threatened, against or affecting it: (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of the transaction contemplated by this Agreement, or (iii) seeking any determination or ruling that might materially and adversely affect the performance of its obligations under, or the validity or enforceability of, this Agreement or otherwise adversely affect its ability to consummate the transaction contemplated hereby.
(g)
To the best of the Assignees knowledge, no action, petition, resolution or similar order for bankruptcy (faillite), voluntary or judicial winding-up (liquidation volontaire ou judiciaire), controlled management (gestion contrôlée), suspension of payment (sursis de paiement), voluntary arrangement with creditors (concordat préventif de faillite) or similar proceedings affecting the rights of creditors generally has been taken, lodged, passed or presented with regard to the Assignee.
(h)
The Assignee does not meet or threaten to meet the criteria for the opening of any proceedings referred to under the above paragraph.
Section 5.
Representations of the Assignee. The Assignee represents and warrants to the Assignor that:
(a)
The Assignee is an umbrella investment company with segregated liability between its sub-funds incorporated with variable capital in Ireland duly formed, validly existing and in good standing under the laws of Ireland, with power and authority (corporate and other) to own its properties and conduct its business; and the Assignee is duly qualified to do business as a
- 3 -Assignment Agreement |
|
|
foreign entity in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, and in which the failure to be so qualified is reasonably likely to have a Material Adverse Effect in relation to the Assignee.
(b)
This Agreement has been duly authorized by the Assignee and constitutes a valid and legally binding agreement of the Assignee, enforceable against the Assignee in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles.
(c)
Assuming (i) that the Assignors representations and warranties contained in Section 4 are true and (ii) compliance by the Assignor with the covenants set forth therein, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement, other than as have been made or obtained on or prior to the date hereof (or, if not required to be made or obtained on or prior to the date hereof, that will be made or obtained when required).
(d)
The execution, delivery and performance of this Agreement, the purchase of the Note as contemplated by this Agreement and compliance with the terms and provisions hereof by the Assignee will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Assignee or any of its properties, (ii) any agreement or instrument to which the Assignee is a party or by which the Assignee is bound or to which any of the properties of Assignee is subject, or (iii) the organizational documents of the Assignee and the Assignee has full power and authority to authorize, purchase the Note as contemplated by this Agreement.
(e)
There is no action, suit or proceeding before or by any governmental authority having jurisdiction over the Assignee or its properties, now pending, or to its knowledge, threatened, against or affecting it: (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of the transaction contemplated by this Agreement, or (iii) seeking any determination or ruling that might materially and adversely affect the performance of its obligations under, or the validity or enforceability of, this Agreement or otherwise adversely affect its ability to consummate the transaction contemplated hereby.
Section 6.
Other Agreements. Except as specifically provided herein or in the Note, this Agreement shall not affect any rights or obligations of the Parties under the NIBs Transfer Agreement or any agreement other than the Note and the Pledge Agreement.
Section 7.
Severability. 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 8.
Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when mailed by certified mail, postage prepaid, with proper address as indicated below (including electronic transmissions capable of producing a written record, or by e-mail accompanied by a delivery request). The Assignor and the
- 4 -Assignment Agreement |
|
|
Assignee may, by written notice given by each to the other, designate any other address or addresses to which notices, certificates or other communications to them shall be sent when required as contemplated by this Agreement. Until otherwise provided by the respective Parties, all notices, certificates and communications to each of them shall be addressed as set forth on the signature pages to this Agreement.
Section 9.
Successors. This Agreement will inure to the benefit of and be binding upon the Parties their respective successors, and no other Person will have any right or obligation hereunder.
Section 10.
Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.
Submission to Jurisdiction. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, OR ANY LEGAL PROCESS WITH RESPECT TO ITSELF OR ANY OF ITS PROPERTY, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
Section 12.
Waiver of Trial by Jury. THE PARTIES HERETO EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
- 5 -Assignment Agreement |
|
|
Section 13.
Counterparts. This 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.
Section 14.
Default.
In any action brought to enforce the terms and provisions of this Agreement, the non-defaulting party shall be entitled to recover reasonable attorneys fees and court costs.
<signature page to follow>
- 6 -Assignment Agreement |
|
|
IN WITNESS WHEREOF the Parties, duly authorized, have entered into this Agreement as of the Effective Date.
ASSIGNOR DEL MAR FINANCIAL S.à R.L. | ASSIGNEE HYPERION FUNDS II PLC | ||
By: | /s/ Paul Jacobson | By: | /s/ |
Name: | Paul Jacobson | Name: |
|
Its: | Manager | Its: |
|
Address for Notice: 1, allée Scheffer L-2520 Luxembourg | Address for Notice: 70 Sir John Rogersons Quay Dublin 2 Ireland |
- 7 -Assignment Agreement |
|
|
EXHIBIT A-1
NOTE
Exhibit A-1 |
|
|
EXHIBIT A-2
PLEDGE AGREEMENT
Exhibit A-2 |
|
|
EXHIBIT A-3
NIBs TRANSFER AGREEMENT
Exhibit A-3 |
|
|
|
|
|
ASSIGNMENT OF BUYBACK RIGHTS
This Assignment of Buyback Rights (this Agreement) is made effective as of November 5, 2013 (the Effective Date), by and between DEL MAR FINANCIAL S.à R.L., a société à responsabilité limitée formed under the laws of the Grand-Duchy of Luxembourg, having its registered office at 1, allée Scheffer, L-2520 Luxembourg (the Assignor) and SUNDANCE STRATEGIES, INC. a Nevada corporation (the Assignee). Assignor and Assignee are sometimes referred to herein collectively as the Parties and each individually as a Party.
Section 1.
Introductory.
(a)
The Assignor and Assignee entered into that certain Asset Transfer Agreement dated June 5, 2013 (the ATA) under which Assignor is obligated to sell to Assignee $400,000,000 of Qualifed NIBs (as defined in the ATA).
(b)
The Assignor transferred that certain Amended and Restated Secured Promissory Note attached hereto as Exhibit A-1 (the Note) to HYPERION FUNDS II PLC, subject to certain buyback rights described in Section 3 of that certain Amended and Restated Assignment Agreement dated November 5, 2013 attached hereto as Exhibit A-2 and any amendments made thereto (the Assignment Agreement).
(c)
The Assignor desires and agrees to transfer to Assignee those certain buyback rights described in Section 3 of the Assignment Agreement in accordance with this Agreement until such time as Assignee has acquired $400,000,000 of Qualified NIBs in accordance with the ATA. Capitalized terms used in this Agreement but not otherwise defined shall have the meanings set forth in the Note.
Section 2.
Transfer of Rights.
(a)
On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions set forth herein, the Assignor hereby conveys, transfers, assigns and delivers to the Assignee, and the Assignee hereby acquires from the Assignor, all of the Assignors buyback option rights described in Section 3 of the Assignment Agreement until such time as Assignee has acquired $400,000,000 of Qualifed NIBs from Assignor, as described in the ATA. Upon acceptance by Assignee of such Qualifed NIBs, the buyback rights described in Section 3 of the Assignment Agreement shall revert back to Assignor and Assignee shall have no further rights in connection with the Assignment Agreement; provided, however, that in the event that Assignee has not acquired and accepted $400,000,000 in Qualified NIBs under the ATA by December 31, 2013, neither this Assignment Agreement nor any rights assigned by Assignor hereunder to Assignee shall revert back to the Assignor, and such buy-back rights shall be the sole and separate property of the Assignee; and provided further, however, if Assignee accepts NIBs as Qualified NIBs that do not meet the precise definition of Qualified NIBs in the ATA, such NIBs shall be excluded from all calculations in determining whether Assignee has received $400,000,000 of Qualifed NIBs for all purposes of this Assignment Agreement.
(b)
The Assignor hereby covenants and agrees that the Assignor will, at the reasonable request of Assignee, execute and deliver, and will cause any of the Assignors employees to execute and deliver, such further instruments of sale, transfer, conveyance, and assignment and take such other action as may reasonably be required to more effectively sell, transfer, convey, assign, and deliver to and vest in the Assignee, its successors and assigns all rights associated with the buyback option under the Assignment Agreement.
Section 3.
Representations and Warranties of the Assignor. The Assignor represents and warrants to the Assignee that:
(a)
The Assignor is a société à responsabilité limitée duly formed, validly existing and in good standing under the laws of the Grand-Duchy of Luxembourg, with power and authority (corporate and other) to own its properties and conduct its business; and the Assignor is duly qualified to do business as a foreign entity in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, and in which the failure to be so qualified is reasonably likely to have a Material Adverse Effect (as defined below) in relation to the Assignee. As used herein, Material Adverse Effect shall mean, with respect to any Person, a material adverse effect on the condition (financial or otherwise), business, properties or results of operations of such Person.
(b)
This Agreement has been duly authorized by the Assignor and constitutes a valid and legally binding agreement of the Assignor, enforceable against the Assignor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles.
(c)
Assuming (i) that the Assignees representations and warranties contained in Section 4 are true and (ii) compliance by the Assignee with the covenants set forth therein, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement and in connection with the sale of the Note by the Assignor, other than as have been made or obtained on or prior to the date hereof (or, if not required to be made or obtained on or prior to the date hereof, that will be made or obtained when required).
(d)
The execution, delivery and performance of this Agreement, the sale of the Note as contemplated by this Agreement and compliance with the terms and provisions hereof by the Assignor will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Assignor or any of its properties, (ii) any agreement or instrument to which the Assignor is a party or by which the Assignor is bound or to which any of the properties of Assignor is subject, or (iii) the organizational documents of the Assignor and the Assignor has full power and authority to authorize, sell the Note as contemplated by this Agreement.
- 2 -Assignment Agreement |
|
|
(e)
The Assignor has good and marketable title to the Note free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by it.
(f)
There is no action, suit or proceeding before or by any governmental authority having jurisdiction over the Assignor or its properties, now pending, or to its knowledge, threatened, against or affecting it: (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of the transaction contemplated by this Agreement, or (iii) seeking any determination or ruling that might materially and adversely affect the performance of its obligations under, or the validity or enforceability of, this Agreement or otherwise adversely affect its ability to consummate the transaction contemplated hereby.
(g)
To the best of the Assignors knowledge, no action, petition, resolution or similar order for bankruptcy (faillite), voluntary or judicial winding-up (liquidation volontaire ou judiciaire), controlled management (gestion contrôlée), suspension of payment (sursis de paiement), voluntary arrangement with creditors (concordat préventif de faillite) or similar proceedings affecting the rights of creditors generally has been taken, lodged, passed or presented with regard to the Assignor.
(h)
The Assignor does not meet or threaten to meet the criteria for the opening of any proceedings referred to under the above paragraph.
Section 4.
Representations of the Assignee. The Assignee represents and warrants to the Assignor that:
(a)
The Assignee is a corporation duly formed, validly existing and in good standing under the laws of the State of Nevada, with power and authority (corporate and other) to own its properties and conduct its business; and the Assignee is duly qualified to do business in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, and in which the failure to be so qualified is reasonably likely to have a Material Adverse Effect in relation to the Assignee.
(b)
This Agreement has been duly authorized by the Assignee and constitutes a valid and legally binding agreement of the Assignee, enforceable against the Assignee in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles.
(c)
Assuming (i) that the Assignors representations and warranties contained in Section 3 are true and (ii) compliance by the Assignor with the covenants set forth therein, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement, other than as have been made or obtained on or prior to the date hereof (or, if not required to be made or obtained on or prior to the date hereof, that will be made or obtained when required).
- 3 -Assignment Agreement |
|
|
(d)
The execution, delivery and performance of this Agreement, the purchase of the Note as contemplated by this Agreement and compliance with the terms and provisions hereof by the Assignee will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Assignee or any of its properties, (ii) any agreement or instrument to which the Assignee is a party or by which the Assignee is bound or to which any of the properties of Assignee is subject, or (iii) the organizational documents of the Assignee and the Assignee has full power and authority to authorize, purchase the Note as contemplated by this Agreement.
(e)
There is no action, suit or proceeding before or by any governmental authority having jurisdiction over the Assignee or its properties, now pending, or to its knowledge, threatened, against or affecting it: (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of the transaction contemplated by this Agreement, or (iii) seeking any determination or ruling that might materially and adversely affect the performance of its obligations under, or the validity or enforceability of, this Agreement or otherwise adversely affect its ability to consummate the transaction contemplated hereby.
Section 5.
Severability. 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 6.
Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when mailed by certified mail, postage prepaid, with proper address as indicated below (including electronic transmissions capable of producing a written record, or by e-mail accompanied by a delivery request). The Assignor and the Assignee may, by written notice given by each to the other, designate any other address or addresses to which notices, certificates or other communications to them shall be sent when required as contemplated by this Agreement. Until otherwise provided by the respective Parties, all notices, certificates and communications to each of them shall be addressed as set forth on the signature pages to this Agreement.
Section 7.
Successors. This Agreement will inure to the benefit of and be binding upon the Parties their respective successors, and no other Person will have any right or obligation hereunder.
Section 8.
Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF UTAH, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.
Submission to Jurisdiction. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF UTAH OR OF THE UNITED STATES SITTING IN SALT LAKE COUNTY, UTAH, ONLY, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
- 4 -Assignment Agreement |
|
|
PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, OR ANY LEGAL PROCESS WITH RESPECT TO ITSELF OR ANY OF ITS PROPERTY, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY UTAH LAW.
Section 10.
Waiver of Trial by Jury. THE PARTIES HERETO EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 11.
Counterparts. This 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.
Section 12.
Default.
In any action brought to enforce the terms and provisions of this Agreement, the non-defaulting party shall be entitled to recover reasonable attorneys fees and court costs.
<signature page to follow>
- 5 -Assignment Agreement |
|
|
IN WITNESS WHEREOF the Parties, duly authorized, have entered into this Agreement as of the Effective Date.
ASSIGNOR DEL MAR FINANCIAL S.à R.L. | ASSIGNEE SUNDANCE STRATEGIES INC. | ||
By: | /s/ Paul Jacobson | By: | /s/ Randall Pearson |
Name: | Paul Jacobson | Name: | Randall Pearson |
Its: | Manager | Its: | President |
Address for Notice: 1, allée Scheffer L-2520 Luxembourg | Address for Notice: 4626 North 300 West, Suite No. 365 Provo, UT 84604 |
Duly Authorized, Acknowledged and Consented to by:
HYPERION FUNDS II PLC | |
By: | /s/ |
Name: |
|
Its: |
|
Address for Notice: 70 Sir John Rogersons Quay Dublin 2 Ireland |
- 6 -Assignment Agreement |
|
|
EXHIBIT A-1
NOTE
Exhibit A-1 |
|
|
EXHIBIT A-2
ASSIGNMENT AGREEMENT
Exhibit A-2 |
|
|
|
|
|