Exhibit 4.69
CONSENT AND AMENDMENT NO. 8 TO SECURITIES PURCHASE AND LOAN
AGREEMENT
This CONSENT AND AMENDMENT NO. 8 TO SECURITIES PURCHASE AND LOAN AGREEMENT
(this "Amendment") dated as of September 29, 2009, is by and among National
Investment Managers Inc., a Florida corporation (the "Company"), Woodside
Capital Partners IV, LLC ("Woodside IV"), Woodside Capital Partners IV QP, LLC
("QP"), Woodside Capital Partners V, LLC, as assignee of Woodlands Commercial
Bank (f/k/a ▇▇▇▇▇▇ Brothers Commercial Bank) ("Woodside V"), Woodside Capital
Partners V QP, LLC, as assignee of Woodlands Commercial Bank (f/k/a ▇▇▇▇▇▇
Brother Commercial Bank) ("Woodside V QP", and together with Woodside IV, QP,
and Woodside V, the "Holders") and Woodside Agency Services, LLC as collateral
agent for the Holders (the "Collateral Agent").
WHEREAS, the Company, the Holders and the Collateral Agent are parties to
that certain Securities Purchase and Loan Agreement, dated November 30, 2007 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Securities Purchase Agreement"). Capitalized terms used but not defined herein
shall have the same meanings herein as in the Securities Purchase Agreement.
WHEREAS, the Company has informed the Holders that the Company and the
Senior Creditor intend to modify certain terms and conditions of the Senior
Documents pursuant to the agreements attached hereto as Exhibit A (the "Senior
Amendments").
WHEREAS, the Company has requested that the Holders and Collateral Agent
(i) consent to the Senior Amendments and (ii) agree to amend certain provisions
of the Securities Purchase Agreement.
WHEREAS, the Holders and the Collateral Agent are willing to (i) consent
to the Senior Amendments and
(ii) amend certain provisions of the Securities Purchase Agreement, in each
case, subject to the terms, conditions and other provisions as more fully
provided herein.
NOW, THEREFORE, in consideration of the mutual agreements contained in the
Securities Purchase Agreement, herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. CONSENT. The Collateral Agent and the Holders hereby consent to
the Senior Amendments; provided that, for the avoidance of doubt, any increase
to the Senior Debt provided in the Senior Amendments shall count towards the
Senior Debt Cap (as defined in the Intercreditor Agreement) and the Senior Debt
Cap shall not be increased as a result of this Senior Amendments or this
Amendment.
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SECTION 2. AMENDMENT TO SECURITIES PURCHASE AGREEMENT. Section 9 of the
Securities Purchase Agreement is hereby amended by deleting Section 9.12
contained therein and substituting in lieu thereof the following:
"9.12 Independent Directors. On or prior to (a) October 30, 2009,
the Company's board of directors shall nominate an individual for
appointment to the Company's board of directors in accordance with the
terms of its Charter as an Independent Director that is satisfactory to
the Holders, (b) October 3, 2009, the Company shall have recommended to
the Holders an individual to be nominated as such an Independent Director
and (c) December 31, 2009, the Company shall have appointed or elected to
its board of directors in accordance with the terms of its Charter an
Independent Director that is satisfactory to the Holders and, at all times
thereafter, at least one Independent Director that is satisfactory to the
Holders shall be a member of the Company's board of directors."
SECTION 3. PRESIDENT AND CHIEF OPERATING OFFICER. The Company, the Holders
and the Collateral Agent hereby acknowledge and agree that it shall be an Event
of Default if the employment of ▇▇▇▇ ▇▇▇▇▇ as President and Chief Operating
Officer of the Company shall be terminated for any reason, including
resignation, or if ▇▇▇▇ ▇▇▇▇▇ is otherwise legally restricted from acting as the
President and Chief Operating Officer of the Company, unless the Company shall
have hired a replacement President and Chief Operating Officer within 120 days
thereafter that is acceptable to the Majority Holders.
SECTION 4. CONSENT AND AMENDMENT FEE. In consideration for the consent and
the amendments provided by the Holders herein, the Company agrees to pay to the
Collateral Agent, for the pro rata account of the Holders, a fee equal to
$17,500 (the "Fee"). The Fee shall be fully earned on the date hereof and shall
be due and payable in full (in cash) on the earlier of (a) the Maturity Date and
(b) the date the Notes are accelerated. Commencing on the date hereof, the
unpaid portion of the Fee outstanding from time to time shall bear interest at
the same rate applicable to the Notes as set forth in Section 3.5 of the
Securities Purchase Agreement, with such interest being due and payable at the
times set forth in Section 3.5 of the Securities Purchase Agreement.
SECTION 5. AFFIRMATION AND ACKNOWLEDGMENT OF THE COMPANY. The Company
hereby affirms its absolute and unconditional promise to pay to the Holders and
the Collateral Agent all amounts due under the Securities Purchase Agreement as
amended hereby and the Financing Agreements. The Company hereby confirms that
the Obligations are secured pursuant to the Security Documents and pursuant to
all other instruments and documents executed and delivered by the Company as
security for the Obligations.
SECTION 6. EFFECTIVENESS OF AMENDMENT. The parties hereto hereby
acknowledge and agree that this Amendment shall become effective upon the
Collateral Agent's receipt of (a) a copy of this Amendment duly executed by the
Company and the Holders, (b) fully executed copies of the Senior Amendments and
(c) evidence satisfactory to the Collateral Agent that the terms of the existing
seller subordinated debt have been modified in accordance with the proposed
amortization schedules presented by the Company to the Holders.
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SECTION 7. RELEASE. In order to induce the Collateral Agent and the
Holders to enter into this Amendment, the Company and its Subsidiaries
acknowledge and agree that: (a) the Company and its Subsidiaries do not have any
claim or cause of action against the Collateral Agent or any Holder (or any of
its respective directors, officers, employees or agents); (b) the Company and
its Subsidiaries do not have any offset right, counterclaim or defense of any
kind against any of its respective obligations, indebtedness or liabilities to
the Collateral Agent or any Holder; and (c) the Collateral Agent and each Holder
have heretofore properly performed and satisfied in a timely manner all of its
obligations to the Company and its Subsidiaries. The Company and its
Subsidiaries wish to eliminate any possibility that any past conditions, acts,
omissions, events, circumstances or matters would impair or otherwise adversely
affect the Collateral Agent's or any Holder's rights, interests, contracts,
collateral security or remedies. Therefore, the Company and its Subsidiaries
unconditionally release, waive and forever discharge (i) any and all
liabilities, obligations, duties, promises or indebtedness of any kind of the
Collateral Agent or any Holder to the Company and its Subsidiaries, except the
obligations to be performed by the Collateral Agent or any Holder on or after
the date hereof as expressly stated in this Amendment, the Securities Purchase
Agreement and the other Financing Agreements, and (ii) all claims, offsets,
causes of action, suits or defenses of any kind whatsoever (if any), whether
arising at law or in equity, whether known or unknown, which the Company and its
Subsidiaries might otherwise have against the Collateral Agent, any Holder or
any of its directors, officers, employees or agents, in either case (i) or (ii),
on account of any past or presently existing condition, act, omission, event,
contract, liability, obligation, indebtedness, claim, cause of action, defense,
circumstance or matter of any kind.
Section 8. Miscellaneous Provisions.
(a) Except as otherwise expressly provided by this Amendment, all of the
terms, conditions and provisions of the Securities Purchase Agreement shall
remain the same. It is declared and agreed by each of the parties hereto that
the Securities Purchase Agreement, as amended hereby, shall continue in full
force and effect, and that this Amendment and the Securities Purchase Agreement
shall be read and construed as one instrument. Nothing contained in this
Amendment shall (i) be construed to imply a willingness on the part of the
Collateral Agent or the Holders to grant any similar or other future waiver or
amendment of any of the terms and conditions of the Securities Purchase
Agreement or the other Financing Agreements or (ii) in any way prejudice, impair
or effect any rights or remedies of the Collateral Agent or the Holders under
the Securities Purchase Agreement or the other Financing Agreements.
(b) The Company hereby represents and warrants that, after giving effect
to the provisions hereof: (i) its representations and warranties set forth in
the Securities Purchase Agreement are true in all material respects on and as of
the date hereof as if made on such date (except to the extent that the same
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expressly relate to an earlier date or are affected by the consummation of
transactions permitted hereby or by the Securities Purchase Agreement); (ii) it
is in compliance in all material respects with all of the terms and provisions
set forth in the Securities Purchase Agreement on its part to be observed or
performed; (iii) no Default or Event of Default has occurred and is continuing;
(iv) since the date of the financial statements most recently provided to the
Collateral Agent and the Holders by the Company, there has occurred no material
adverse change in the assets or liabilities or the financial or other condition
of the Company and its Subsidiaries; (v) the Company and the Guarantors each
have full power to execute, deliver and perform their respective obligations
under the this Amendment and the execution, delivery and performance of this
Amendment has been authorized and directed by the appropriate parties; (vi) this
Amendment constitutes the legal, valid and binding obligations of the Company
and the Guarantors, enforceable in accordance with their terms, subject to any
limitations with respect to enforcement that may be imposed in connection with
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or other laws affecting the enforcement of creditor's rights generally,
and general principles of equity (regardless of whether considered and applied
in a proceeding at law or in equity); (vii) the execution, delivery and
performance of this Amendment will not violate any provision of any existing law
or regulation applicable to the Company or any Guarantor or their respective
governing documents or of any order or decree of any court, arbitrator or
governmental authority or of any contractual undertaking to which either is a
party or by which either may be bound; and (viii) no consents, licenses,
approvals or authorizations of, exemptions by or registrations or filings with,
any governmental authority are required with respect to this Amendment.
(c) If the Company fails to comply with any of the terms and conditions of
this Amendment, such failure shall constitute a default under this Amendment and
an immediate Event of Default under the Securities Purchase Agreement and the
other Financing Agreements.
(d) This Amendment shall constitute a Financing Agreement under the
Securities Purchase Agreement, and all obligations included in this Amendment
(including, without limitation, all obligations for the payment of principal,
interest, fees, and other amounts and expenses) shall constitute Obligations
under the Securities Purchase Agreement and be secured by the collateral
security for such Obligations.
(e) This Amendment is made in the Commonwealth of Massachusetts and shall
be construed in accordance with its laws without regard to principles of
conflicts of laws. If any provision hereof is in conflict with any statute or
rule of law of the Commonwealth of Massachusetts or any other statute or rule of
law of any other applicable jurisdiction or is otherwise unenforceable, such
provisions shall be deemed null and void only to the extent of such conflict or
unenforceability and shall be deemed separate from and shall not invalidate any
other provision of this Amendment. This Amendment may be signed in counterparts,
each of which shall be deemed an original and all of which, when taken together,
shall constitute one and the same instrument. Signatures delivered by facsimile
or electronic transmission shall have the same force and effect as original
signatures delivered in person.
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(f) The Company hereby agrees to pay to the Collateral Agent, on demand by
the Collateral Agent, all reasonable out-of-pocket costs and expenses incurred
or sustained by the Collateral Agent in connection with the preparation of this
Amendment and any documentation executed in connection with this Amendment
(including reasonable legal fees).
DB1/63714055.2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment under
seal as of the date first written above.
NATIONAL INVESTMENT MANAGERS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: CEO
DB1/63714055.2
WOODSIDE CAPITAL PARTNERS IV, LLC, as a Holder
By: Woodside Opportunity Partners, LLC, its Manager
By: Woodside Capital Management, LLC, its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: EVP
WOODSIDE CAPITAL PARTNERS IV QP, LLC, as a Holder
By: Woodside Opportunity Partners, LLC, its Manager
WOODSIDE CAPITAL PARTNERS V, LLC, as a Holder
By: Woodside Opportunity Partners II, LLC, its Manager By: Woodside
Capital Management, LLC, its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: EVP
WOODSIDE CAPITAL PARTNERS V QP, LLC, as a Holder
By: Woodside Opportunity Partners II, LLC, its Manager By: Woodside
Capital Management, LLC, its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: EVP
DB1/63714055.2
GUARANTORS' ACKNOWLEDGEMENT
Each of the undersigned Guarantors hereby (a) acknowledges and consents to
the foregoing Amendment and the Company's execution thereof; (b) joins the
foregoing Amendment; (c) ratifies and confirms all of their respective
obligations and liabilities under the Financing Agreements to which any of them
is a party and ratifies and confirms that such obligations and liabilities
extend to and continue in effect with respect to, and continue to guarantee and
secure, as applicable, the Obligations under the Securities Purchase Agreement
and other Financing Agreements; (d) acknowledges and confirms that the liens and
security interests granted pursuant to the Security Documents are and continue
to be valid and perfected first priority liens and security interests that
secure all of the Obligations on and after the date hereof; and (e)
acknowledges, affirms and agrees that, as of the date hereof, such Guarantor
does not have any defense, claim, cause of action, counterclaim, offset or right
of recoupment of any kind or nature against any of their respective obligations,
indebtedness or liabilities to the Collateral Agent or any Holder.
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DB1/63714055.2
ABR ADVISORS, INC.
▇▇▇▇ ▇. ▇▇▇▇▇▇ & ASSOCIATES, INC.
ALASKA PENSION SERVICES, LTD.
ASSET PRESERVATION CORP.
BENEFIT DYNAMICS, INC.
BENEFIT MANAGEMENT INC.
BPI/PPA, INC.
CALIFORNIA INVESTMENT ANNUITY SALES, INC.
CIRCLE PENSION, INC.
COMPLETE INVESTMENT MANAGEMENT, INC. OF
PHILADELPHIA
HADDON STRATEGIC ALLIANCES, INC.
LAMORIELLO & CO., INC.
NATIONAL ACTUARIAL PENSION SERVICES, INC.
NATIONAL ASSOCIATES, INC., N.W.
PENSION ADMINISTRATION SERVICES, INC.
PENSION TECHNICAL SERVICES, INC. (d/b/a REPTECH CORP.)
PENTEC, INC.
PENTEC CAPITAL MANAGEMENT, INC.
SOUTHEASTERN PENSION SERVICES, INC.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & ASSOCIATES, INC.
THE PENSION ALLIANCE, INC.
THE PENSION GROUP, INC.
VEBA ADMINISTRATORS, INC.
VALLEY FORGE ENTERPRISES, LTD.
V.F. ASSOCIATES, INC.
VF INVESTMENT SERVICES CORP.
VALLEY FORGE CONSULTING CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: CEO
DB1/63714055.2
