AMENDMENT NO. 1 TO REVOLVING LINE OF CREDIT AND TERM LOAN AGREEMENT
AMENDMENT
NO. 1 TO REVOLVING LINE
OF CREDIT AND
TERM
LOAN AGREEMENT
This
Amendment No. 1 to Revolving Line of Credit and Term Loan Agreement (this
“Agreement”)
is by
and between RBS Citizens, National Association, a national bank having a lending
office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Lender”)
and
National Investment Managers Inc., a Florida corporation having an address
of
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Borrower”).
R
E C
I T A L S
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A.
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Reference
is hereby made to a certain Revolving Line of Credit and Term Loan
Agreement dated as of November 30, 2007 by and between Borrower and
Lender
as (the “Loan
Agreement”).
The loan obligations of Borrower to Lender are further evidenced
by (i) a
certain Term Promissory Note dated November 30, 2007 from the Borrower
to
the Lender in the maximum principal amount of up to $13,000,000.00
and
(ii) a certain Revolving Line of Credit Note dated November 30, 2007
from
the Borrower to the Lender in the maximum principal amount of
$2,000,000.00 (together, the “Notes”).
All capitalized terms used herein and not otherwise defined herein
shall
have the meanings as set forth in the Loan
Agreement.
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B.
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Borrower
has requested that Lender approve the acquisition of California Investment
Annuity Sales, Inc., a California corporation with its principal
place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ (the
“Subsidiary”).
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C.
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Lender
has agreed to approve the acquisition of the Subsidiary, provided
that
Borrower joins with Lender 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
Loans.
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NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, Lender and Borrower hereby agree as
follows:
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1.
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The
Lender hereby consent to the acquisition of the Subsidiary on the
terms
set forth in a certain Stock Purchase Agreement, dated as of March
31,
2008 among the Borrower, the Subsidiary, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇
▇.
▇▇▇▇▇▇ Inter Vivos Trust Agreement dated 1/29/97 as amended and restated
1//10/03 and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and the acquisition of the Subsidiary
shall
be deemed to be a permitted
Acquisition.
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2.
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To
evidence that the Subsidiary is an additional Guarantor of the Loans,
Schedule
A
to
the Loan Agreement is hereby deleted in its entirety and the attached
Schedule
A
is
substituted therefor.
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3.
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Lender
and Borrower hereby agree that, with respect to the acquisition of
the
Subsidiary as an Acquired Entity (as defined in the Loan Agreement),
the
calculation of Acquired EBITDA shall be as
follows:
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Amendment
No. 1 to Revolving Line of Credit and Term Loan Agreement
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Page
1 of 6
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For
the four fiscal quarter period ending June 30, 2008, an amount equal
to:
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$363,945.04
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For
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 four fiscal quarter period ending December 31, 2008, an amount
equal
to:
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$124,841.55
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4.
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As
a condition of this Agreement, Borrower shall at the time of execution
of
this Agreement:
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(a)
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reimburse
Lender for its costs in connection with this Agreement and the
Modification Documents (as defined below), including legal fees and
expenses incurred by Lender;
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(b)
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deliver
to Lender the following documents in form and substance satisfactory
to
Lender or, if applicable, as required by the terms and conditions
of the
Loan Agreement:
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| (i) |
an
Amendment No.1 to Stock Pledge executed by
Borrower;
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(ii)
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an
Amendment No. 1 to Intercreditor Agreement executed by Borrower and
by
Junior Lender;
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(iii)
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a
Stock Power certificate executed in blank by Borrower in favor of
Lender
with respect to the stock of the
Subsidiary;
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(iv)
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a
Seller Subordination Agreement executed by the seller of the equity
interests in the Subsidiary in connection with any Seller
Financing;
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| (v) |
a
Perfection Certificate executed by the
Subsidiary;
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| (vi) |
a
Guaranty in favor of Lender executed by the
Subsidiary;
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| (vii) |
a
Security Agreement executed by the Subsidiary in favor of Lender;
and
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(viii)
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any
other documents the Lender deems necessary to effectuate this amendment
to
the Loan.
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Amendment
No. 1 to Revolving Line of Credit and Term Loan Agreement
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Page 2 of 6
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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”;
and
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(c)
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satisfy
and/or be in compliance with the Financed Acquisition Conditions
on the
date hereof and at the time of the advance by Lender of the Term
Loan
Advance contemplated hereby.
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5.
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Borrower
hereby represents and warrants that: (i) its representations and
warranties set forth in the Loan Agreement 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 Loan Agreement on its part to be observed or performed;
(iii) after giving effect to any extension of credit to be made on
the
date hereof, no Event of Default (as defined in the Loan Agreement)
or
Default Event has occurred and is continuing; (iv) since the date
of the
financial statements most recently provided to Lender by Borrower,
there
has occurred no material adverse change in the assets or liabilities
or
the financial or other condition of Borrower; (v) it has full power
to
execute, deliver and perform its 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 Borrower 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 Borrower 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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6.
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If
Borrower 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 Loan Agreement and other
Loan
Documents.
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No
other
changes shall be made to the Loan Agreement, and Borrower reaffirms its
obligations under the Loan Documents 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 Loan Documents.
Borrower hereby reaffirms that Borrower remains indebted to Lender without
defense, counterclaim or offset and hereby releases Lender from any and all
claims or other causes of action which Borrower may have against Lender with
respect to the Loans and the Loan Documents.
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]
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Amendment
No. 1 to Revolving Line of Credit and Term Loan Agreement
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Page 4 of 6
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EXECUTED
under seal as of the 3rd
day of
April, 2008.
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LENDER:
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RBS
CITIZENS, NATIONAL ASSOCIATION
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_____________________________
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By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Witness
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Name:
▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
Senior Vice President
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BORROWER:
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___________________________
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By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇
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Witness
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Name:
▇▇▇▇▇▇ ▇▇▇▇
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Title:
CEO
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SCHEDULE
A