AMENDMENT NO. 4 TO INTERCREDITOR AND SUBORDINATION AGREEMENT
Exhibit
4.58
AMENDMENT
NO. 4 TO INTERCREDITOR AND SUBORDINATION AGREEMENT
This
Amendment No. 4 to Intercreditor and Subordination Agreement (the “Agreement”)
is by
and among (i) RBS
CITIZENS, NATIONAL ASSOCIATION
(the
“Senior
Creditor”),
(ii)
WOODSIDE
CAPITAL PARTNERS IV, LLC, WOODSIDE CAPITAL PARTNERS IV QP, LLC
and
XXXXXX
BROTHERS COMMERCIAL BANK (the
“Holders”),
(iii)
WOODSIDE
AGENCY SERVICES, LLC,
as
collateral agent for the Holders (the “Collateral
Agent”
and
together with the Holders, the “Subordinating
Creditors”),
(iv)
NATIONAL INVESTMENT MANAGERS INC., a
Florida
corporation (the “Company”),
and
(v) the Guarantors named on the signature pages of this Agreement (the
“Guarantors”
and
together with the Company, the “Obligors”).
The
parties named above shall be collectively referred to herein as the
“Parties”.
R
E C
I T A L S
A.
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Reference
is hereby made to a certain Intercreditor and Subordination Agreement,
dated as of November 30, 2007, by and among Senior Creditor, the
Subordinating Creditors, and the Obligors, as amended by (i) a certain
Amendment No. 1 to Intercreditor and Subordination Agreement dated
as of
Xxxxx 00, 0000, (xx) a certain Amendment No. 2 to Intercreditor and
Subordination Agreement dated as of June 30, 2008 and (iii) a certain
Amendment No. 3 to Intercreditor and Subordination Agreement dated
as of
June 30, 2008 (as amended, the “Intercreditor
Agreement”).
All capitalized terms used herein and not otherwise defined herein
shall
have the meanings as set forth in the Intercreditor
Agreement.
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B.
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Company
has requested approval of and/or financing from the Senior Creditor
and
Subordinating Creditors for the Company’s acquisition of Xxxx X. Xxxxxx
& Associates, Inc., a Maryland corporation with its principal place
of
business at 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx, XX 00000 (the
“Subsidiary”).
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C.
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Senior
Creditor and Subordinating Creditors have approved of and/or have
agreed
to provide financing for the Company’s acquisition of the Subsidiary and,
in connection therewith, have required that the Subsidiary execute
certain
guaranties in favor of Senior Creditor and Subordinating Creditors
of the
Company’s obligations under the Senior Documents and the Subordinated
Documents, respectively.
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D.
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In
connection with the execution of the foregoing guaranties, the Senior
Creditor and Subordinating Creditors have also required that the
Subsidiary agree, by its execution of this Agreement, to be bound
by the
terms and conditions of the Intercreditor
Agreement.
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NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, the Parties hereby agree as follows:
Amendment
No. 4 to Intercreditor and Subordination Agreement
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Page
1
of 6
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1.
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The
definition of “Guarantors” and “Obligors” set forth in the Intercreditor
Agreement shall hereby be deemed to include the Subsidiary, and Subsidiary
hereby agrees to be bound by the terms and conditions of the Intercreditor
Agreement.
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2.
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Any
guaranties executed by Subsidiary in favor of Senior Creditor shall
hereby
be deemed to be a “Senior Guaranty” under the Intercreditor Agreement, and
any guaranties executed by Subsidiary in favor of Subordinated Creditors
shall hereby be deemed to be a “Junior Guaranty” under the Intercreditor
Agreement.
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3.
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No
other changes shall be made to the Intercreditor Agreement. This
Agreement
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
Agreement.
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4.
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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.
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5.
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This
Agreement 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 transmission
shall
have the same force and effect as original signatures delivered in
person.
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[Signatures
appear on following page]
Amendment
No. 4 to Intercreditor and Subordination Agreement
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Page
2
of 6
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EXECUTED
under seal as of the 16th day of July, 2008.
SENIOR
CREDITOR:
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||
RBS
CITIZENS, NATIONAL ASSOCIATION
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By:
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/s/
Xxxxx X. Bora
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Xxxxx
X. Bora, Vice President
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Amendment
No. 4 to Intercreditor and Subordination Agreement
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Page
3
of 6
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SUBORDINATING
CREDITORS:
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WOODSIDE
CAPITAL PARTNERS IV, LLC
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By:
Woodside
Opportunity Partners, LLC, its Manager
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By:
Woodside
Capital Management, LLC, its Manager
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By:
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/s/
Xxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxx
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Title:
EVP
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WOODSIDE
CAPITAL PARTNERS IV QP, LLC
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By:
Woodside
Opportunity Partners, LLC, its Manager
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By:
Woodside
Capital Management, LLC, its Manager
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By:
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/s/
Xxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxx
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Title:
EVP
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XXXXXX
BROTHERS COMMERCIAL BANK
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By:
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/s/
Xxxx Xxxxxx
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Name:
Xxxx Xxxxxx
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Title:
ECO
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WOODSIDE
AGENCY SERVICES, LLC
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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/
Xxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxx
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Title:
EVP
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Amendment
No. 4 to Intercreditor and Subordination Agreement
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Page
4
of 6
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COMPANY: | ||
By:
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/s/
Xxxx X. Xxxxx
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Name:
Xxxx X. Xxxxx
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Title:
President & COO
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Amendment
No. 4 to Intercreditor and Subordination Agreement
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Page
5
of 6
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GUARANTORS:
ABR
Advisors, Inc.
Xxxx
X.
Xxxxxx & 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.
Pentec,
Inc
Pentec
Capital Management, Inc.
Southeastern
Pension Services, Inc.
Xxxxxxx
X. Xxxxx & Associates, Inc.
The
Pension Alliance, Inc
Valley
Forge Consulting Corporation
VFE
Merger Corp. a/k/a Valley Forge Enterprises, Ltd.
VEBA
Administrators, Inc.
(d/b/a
Benefit Planning, Inc.)
V.F.
Associates, Inc.
V.F.
Investment Services Corp.
By:
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/s/
Xxxxxx X. Xxxx
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Xxxxxx
X. Xxxx, Chief Executive
Officer
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Amendment
No. 4 to Intercreditor and Subordination Agreement
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Page
6
of 6
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