CONSENT AND AMENDMENT NO. 1 TO SECURITIES PURCHASE AND LOAN AGREEMENT
[EXECUTION
COPY]
CONSENT
AND AMENDMENT
NO. 1 TO SECURITIES PURCHASE AND LOAN AGREEMENT
This
Consent and Amendment No. 1 to Securities Purchase and Loan Agreement, dated
as
of April 3, 2008 (this “Agreement”),
is by
and among National Investment Managers Inc., a Florida corporation (the
“Company”),
Woodside Capital Partners IV, LLC (“Woodside”),
Woodside Capital Partners IV QP, LLC (“QP”),
▇▇▇▇▇▇ Brothers Commercial Bank (“▇▇▇▇▇▇”
and
together with Woodside and QP, the “Holders”)
and
Woodside Agency Services, LLC as collateral agent for the Holders (the
“Collateral
Agent”).
R
E C
I T A L S
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A.
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Reference
is hereby made to a certain Securities Purchase and Loan Agreement
dated
as of November 30, 2007 by and among the Company, the Holders and
the
Collateral Agent (the “SPA”).
All capitalized terms used herein and not otherwise defined herein
shall
have the meanings as set forth in the
SPA.
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B.
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The
Company has requested that Holders consent to the acquisition of
California Investment Annuity Sales, Inc., a California corporation
with
its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇, ▇▇
▇▇▇▇▇ (the “Subsidiary”)
pursuant to that certain Stock Purchase Agreement, dated as of April
___,
2008 (the “Acquisition
Agreement”)
among the Company, the Subsidiary, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇.
▇▇▇▇▇▇
Inter Vivos Trust Agreement dated 1/29/97 as amended and restated
1//10/03
(the “Trust”)
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇”
and together with the Trust, the “Sellers”).
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C.
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The
Holders have agreed to consent to the acquisition of the Subsidiary,
provided that the Company joins with the Holders in the execution
of this
Agreement and satisfies the conditions precedent set forth herein,
including, without limitation, the execution by the Subsidiary of
a
Guaranty of the Obligations.
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NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, the Holders, the Collateral Agent and the Company
hereby agree as follows:
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1.
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Consent.
The Holders hereby consent to the acquisition of the Subsidiary on
the
terms set forth in the Acquisition Agreement, and the acquisition
of the
Subsidiary shall be deemed to be a Permitted Acquisition.
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2.
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Amendments.
The Holders, the Collateral Agent and the Company hereby agree to
the
following amendments to the SPA:
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(a)
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Schedule 1(a)
to
the SPA is hereby deleted in its entirety and the attached Schedule 1(a)
is
substituted therefor.
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1
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(b)
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Schedule 4.6
to
the SPA is hereby deleted in its entirety and the attached Schedule 4.6
is
substituted therefor.
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3.
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Conditions
Precedent.
As a condition of this Agreement, the Company shall at the time of
execution of this Agreement:
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(a)
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reimburse
the Collateral Agent and the Holders for their costs in connection
with
this Agreement and the Modification Documents (as defined below),
including legal fees and expenses incurred by the Collateral Agent
and the
Holders;
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(b)
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deliver
to the Collateral Agent the following documents in form and substance
satisfactory to the Collateral Agent or, if applicable, as required
by the
terms and conditions of the SPA:
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| (i) |
a
Securities Pledge Agreement executed by the Company and by the
Subsidiary;
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(ii)
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an
Amendment No. 1 to Intercreditor Agreement executed by the Company
and by
the Senior Creditor;
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(iii)
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copies
of the Stock Certificate and the Stock Power executed in blank by
the
Company in favor of the Senior Creditor with respect to the stock
of the
Subsidiary;
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(iv)
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Seller
Subordination Agreements executed by each seller of the equity interests
in the Subsidiary;
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| (v) |
a
Perfection Certificate executed by the
Subsidiary;
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| (vi) |
a
Guaranty in favor of the Collateral Agent and the Holders executed
by
the Subsidiary;
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| (vii) |
a
Security Agreement executed by the Subsidiary in favor of the Collateral
Agent
and the Holders; and
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(viii)
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any
other documents the Collateral Agent deems necessary to effectuate
this
amendment to the SPA.
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The
foregoing documents and any additional documents executed herewith,
together with this Agreement, shall be referred to herein as the
“Modification
Documents”.
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2
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4.
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The
Company hereby represents and warrants that: (i) its representations
and
warranties set forth in the SPA are true on and as of the date hereof
as
if made on such date (except to the extent that the same expressly
relate
to an earlier date or are affected by the consummation of transactions
permitted hereby or by the Agreement); (ii) it is in compliance in
all
material respects with all of the terms and provisions set forth
in the
SPA on its part to be observed or performed; (iii) after giving effect
to
the acquisition of the Subsidiary 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;
(v) the Company and the Subsidiary each have full power to execute,
deliver and perform their respective obligations under the Modification
Documents and the execution, delivery and performance of the Modification
Documents have been authorized and directed by the appropriate parties;
(vi) the Modification Documents constitute the legal, valid and binding
obligations of the Company and/or the Subsidiary, as applicable,
enforceable in accordance with their terms; (vii) the execution,
delivery
and performance thereof will not violate any provision of any existing
law
or regulation applicable to the Company or the Subsidiary 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 the Modification Documents.
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5.
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If
the Company fails to comply with all the terms and conditions of
the
Modification Documents, such failure shall constitute a default under
this
Agreement and an Event of Default under the SPA and other Financing
Agreements.
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No
other
changes shall be made to the SPA, and the Company reaffirms its obligations
under the Financing Agreements in their entirety. This Agreement is not intended
to extinguish or affect any of the debt evidenced by the Notes or to otherwise
modify any of the obligations under any of the Financing Agreements. The Company
hereby reaffirms that the Company remains indebted to the Collateral Agent
and
the Holders without defense, counterclaim or offset and hereby releases each
of
the Collateral Agent and the Holders from any and all claims or other causes
of
action which the Company may have against the Collateral Agent or any Holder
with respect to the Obligations and the Financing Agreements.
This
Agreement is made in the Commonwealth of Massachusetts and shall be construed
in
accordance with its 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 Agreement.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, and no other parties shall be
a
beneficiary hereunder. Neither this Agreement nor any of the provisions hereof
can be changed, waived, discharged or terminated except by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
[Signatures
on following page]
3
EXECUTED
under seal as of the date first above written.
WOODSIDE
CAPITAL PARTNERS IV, LLC,
as a
Holder
| By: | Woodside Opportunity Partners, LLC, its Manager | |
| By: |
Woodside
Capital Management,LLC, its Manager
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By:
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/s/
▇▇▇▇▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇
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Title:
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WOODSIDE
CAPITAL PARTNERS IV QP, LLC,
as a
Holder
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By:
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Woodside Opportunity Partners, LLC, its Manager | |
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By:
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Woodside Capital Management,LLC, its Manager | |
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By:
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/s/
▇▇▇▇▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇
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Title:
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▇▇▇▇▇▇
BROTHERS COMMERCIAL BANK,
as a
Holder
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By:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title:
Operating Officer
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WOODSIDE
AGENCY SERVICES, LLC,
as
Collateral Agent
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By:
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Woodside
Capital Management, LLC, its Manager
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By:
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/s/
▇▇▇▇▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇
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Title:
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[Signature
Page to Consent and Amendment No. 1]
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By:
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/s/
▇▇▇▇▇▇ ▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇
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Title:
CEO
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[Signature
Page to Consent and Amendment No. 1]
RATIFICATION
OF OBLIGATIONS
Each
of
the undersigned Guarantors hereby acknowledges, agrees and consents to the
foregoing Consent and Amendment No. 1 and agrees that the Guaranties and each
of
the other Financing Agreements remain in full force and effect, and the
Guarantors confirm and ratify all of their obligations under each Financing
Agreement (as amended hereby) to which such Guarantor is a party.
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ABR
ADVISORS, INC.
ASSET
PRESERVATION CORP.
BENEFIT
DYNAMICS, INC.
BENEFIT
MANAGEMENT INC.
BPI/PPA,
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.
PENTEC,
INC.
PENTEC
CAPITAL MANAGEMENT, INC.
SOUTHEASTERN
PENSION SERVICES, INC.
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ & ASSOCIATES, INC.
THE
PENSION ALLIANCE, INC.
VALLEY
FORGE ENTERPRISES, LTD.
V.F.
ASSOCIATES, INC.
VF
INVESTMENT SERVICES, CORP.
VALLEY
FORGE CONSULTING CORPORATION
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By:
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/s/▇▇▇▇▇▇
▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇
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Title:
CEO
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Schedule 1(a)
Acquired
EBITDA
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For
the Company’s and its Subsidiaries’ four fiscal quarter period ending June
30, 2008, an amount equal to:
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$363,945.04
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For
the Company’s and its Subsidiaries’ four fiscal quarter period ending
September 30, 2008, an amount equal to:
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$259,517.79
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For
the Company’s and its Subsidiaries’ four fiscal quarter period ending
December 31, 2008, an amount equal to:
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$124,841.55
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Schedule 4.6
Subsidiaries
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National
Investment Managers Inc. Subsidiaries
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ABR
Advisors, Inc.
NY
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Benefit
Dynamics, Inc.
PA
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Benefit
Management Inc.
MA
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California
Investment Annuity Sales, Inc.
CA
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Circle
Pension, Inc.
NY
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Complete
Investment Management, Inc. of Philadelphia
PA
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▇▇▇▇▇
▇▇▇▇▇▇▇ Associates, Inc.
(merged into Benefit Management Inc.)
NY
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Haddon
Strategic Alliances, Inc.
NJ
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Lamoriello
& Co., Inc.
RI
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Asset
Preservation Corp.
PA
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National
Actuarial Pension Services, Inc.
TX
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National
Associates, Inc., N.W.
WA
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Pension
Administration Services, Inc.
PA
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Pentec,
Inc.
CT
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Pentec
Capital Management, Inc.
CT
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Southeastern
Pension Services, Inc.
FL
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ & Associates, Inc.
NJ
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The
Pension Alliance, Inc.
PA
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Valley
Forge Enterprises, Ltd.
PA
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Valley
Forge Consulting Corporation
PA
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V.F.
Associates, ▇▇▇.▇▇
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V.F.
Investment Services Corp.
PA
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BPI/PPA
Inc.
DE
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VEBA
Administrators, Inc.
(d/b/a
Benefit Planning, Inc.)
CA
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