AMENDMENT NO. 4 TO REVOLVING LINE OF CREDIT AND TERM LOAN AGREEMENT
Exhibit
4.57
AMENDMENT
NO. 4 TO REVOLVING LINE
OF CREDIT AND
TERM
LOAN AGREEMENT
This
Amendment No. 4 to Revolving Line of Credit and Term Loan Agreement (this
“Agreement”)
is by
and between RBS Citizens, National Association, having a lending office at
00
Xxxxx Xxxxxx, Xxxxxx, XX 00000 (the “Lender”)
and
National Investment Managers Inc., a Florida corporation having an address
of
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000 (the “Borrower”).
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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 amended by (i) a certain Amendment No. 1 to Term Loan
Agreement, dated Xxxxx 00, 0000, (xx) a certain Amendment No. 2 to
Term
Loan Agreement, dated June 30, 2008, and (iii) a certain Amendment
No. 3
to Term Loan Agreement, dated June 30, 2008 (as amended, 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,
as
amended by a certain Amendment No. 1 and Allonge to Term Promissory
Note,
dated as of June 30, 2008, increasing the maximum principal amount
to
$15,000,000.00 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 and as amended, 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 advance a Term Loan Advance to fund the
Financed
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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Lender
has agreed to advance such Term Loan Advance for the Financed Acquisition,
provided that Borrower joins with Lender in the execution of this
Agreement and satisfies the conditions precedent for the Financed
Acquisition set forth herein, including, without limitation, the
execution
by the Subsidiary of a Guaranty of the
Loans.
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| 1. |
The
Lender hereby consents to the acquisition of the Subsidiary on the
terms
set forth in a certain Stock Purchase Agreement, dated as of June
30,
2008, among the Borrower, the Subsidiary, and Xxxx X. Xxxxxx, and
the
acquisition of the Subsidiary shall be deemed to be a Permitted
Acquisition.
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Amendment
No. 4 to Revolving Line of Credit and Term Loan
Agreement
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Page
1 of
7
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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
new
Schedule
A
is
substituted therefor.
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3.
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Lender
and Borrower hereby agree that, as a result of the acquisition of
the
Subsidiary as an Acquired Entity (as defined in the Loan Agreement),
the
updated calculation of Acquired EBITDA shall be as set forth on the
table
attached hereto as Schedule 1(a) “Acquired EBITDA” which Schedule shall be
considered incorporated into and part of the Loan Agreement. The
calculations set forth on Schedule 1(a) “Acquired EBITDA” are hereby
intended to supersede and replace any prior agreements between Lender
and
Borrower as to the calculation of Acquired
EBITDA.
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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-out-of pocket costs in connection with this Agreement
and
the Modification Documents (as defined below), including reasonable
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 reasonably
satisfactory to Lender or, if applicable, as required by the terms
and
conditions of the Loan Agreement:
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(i)
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an
Amendment No. 3 to Stock Pledge executed by
Borrower;
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(ii)
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an
Amendment No. 4 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
Perfection Certificate executed by the
Subsidiary;
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(v)
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a
Guaranty in favor of Lender executed by the Subsidiary;
and
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(vi)
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a
Security Agreement executed by the Subsidiary in favor of
Lender.
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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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Amendment
No. 4 to Revolving Line of Credit and Term Loan
Agreement
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Page
2 of
7
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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 in all material
respects 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 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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7.
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No
other changes shall be made to the Loan Agreement, and Borrower reaffirms
its obligations under the Loan Documents (as amended hereby) 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, except as amended hereby.
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.
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8.
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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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Amendment
No. 4 to Revolving Line of Credit and Term Loan
Agreement
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Page
3 of
7
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9.
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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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10.
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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
on following page]
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Amendment
No. 4 to Revolving Line of Credit and Term Loan
Agreement
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Page
4 of
7
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EXECUTED
under seal as of the 16th day of July, 2008.
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LENDER:
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||||
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RBS
CITIZENS, NATIONAL ASSOCIATION
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/s/
Xxxxx X. Bora
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By: |
/s/
Xxxxx Xxxxxx
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Witness
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Name: |
Xxxxx
Xxxxxx
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| Title: |
Senior
Vice President
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| BORROWER: | ||||
| NATIONAL INVESTMENT MANAGERS INC. | ||||
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/s/
Xxxx Xxxxxxxxxx
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By: |
/s/
Xxxx X. Xxxxx
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Witness
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Name:
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Title:
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Amendment
No. 4 to Revolving Line of Credit and Term Loan
Agreement
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Page
5 of
7
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SCHEDULE
A
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Amendment
No. 4 to Revolving Line of Credit and Term Loan
Agreement
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Page
6 of
7
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SCHEDULE
1(A)
“ACQUIRED
EBITDA”
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Applicable Time Period
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For the four fiscal
quarter period
ending June 30,
2008, an amount
equal to:
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For four fiscal
quarter period
ending September
30, 2008, an
amount equal to:
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For the four fiscal
quarter period
ending December
31, 2008, an
amount equal to:
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For the four fiscal
quarter period
ending March 31,
2009, an amount
equal to:
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Acquired
EBITDA for
CIAS
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$
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363,945
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$
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259,518
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$
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124,842
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N/A
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Acquired
EBITDA for
Alaska Pension Services, Ltd.
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$
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244,402
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$
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209,640
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$ |
(16,159
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)
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$
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33,760
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Acquired
EBITDA for
Xxxx X. Xxxxxx & Associates, Inc.
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$
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340,815
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$
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245,824
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176,270
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156,008
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Total
Acquired EBITDA for Applicable Time Period
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$
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949,162
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$
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714,982
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$
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284,953
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$
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189,768
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Amendment
No. 4 to Revolving Line of Credit and Term Loan
Agreement
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Page
7 of
7
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