AMENDMENT NO. 4 AND ALLONGE TO REVOLVING LINE OF CREDIT NOTE
Exhibit
4.76
AMENDMENT NO. 4 AND ALLONGE
TO REVOLVING LINE OF CREDIT NOTE
This
Amendment No. 4 to Revolving Line of Credit Note (this “Agreement”) is made
as of the 26th day of
April, 2010 by and among 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”).
RECITALS
WHEREAS, Borrower and Lender
are parties to that certain Revolving Line of Credit and Term Loan Agreement,
dated as of November 30, 2007, as amended by (i) a certain Amendment No. 1 to
Revolving Line of Credit and Term Loan Agreement, dated Xxxxx 00, 0000, (xx) a
certain Amendment No. 2 to Revolving Line of Credit and Term Loan Agreement,
dated June 30, 2008, (iii) a certain Amendment No. 3 to Revolving Line of Credit
and Term Loan Agreement, dated June 30, 2008, (iv) a certain Amendment No. 4 to
Revolving Line of Credit and Term Loan Agreement dated as of July 16, 2008, (v)
a certain Amendment No. 5 to Revolving Line of Credit and Term Loan Agreement
dated as of October 1, 2008, (vi) a certain Amendment No. 6 to Revolving Line of
Credit and Term Loan Agreement dated as of November 26, 2008, (vii) a certain
Amendment No. 7 to Revolving Line of Credit and Term Loan Agreement dated as of
March 30, 2009, (viii) a certain Amendment No. 8 to Revolving Line of Credit and
Term Loan Agreement dated as of June 30, 2009, (ix) a certain Amendment No. 9 to
Revolving Line of Credit and Term Loan Agreement dated as of September 25, 2009,
and (x) a certain Amendment No. 10 to Revolving Line of Credit and Term Loan
Agreement dated as of December 14, 2009 (collectively, the “Loan
Agreement”). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Loan
Agreement.
WHEREAS, the 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) 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, (b) a certain Amendment No. 2
and Allonge to Term Promissory Note dated as of October 1, 2008, and (c) a
certain Amendment No. 3 and Allonge to Term Promissory Note dated as of March
30, 2009 (collectively, the “Term Note”); 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, as
amended by (a) a certain Amendment No. 1 and Allonge to Revolving Line of Credit
Note dated as of Xxxxx 00, 0000, (x) a certain Amendment No. 2 and Allonge to
Revolving Line of Credit Note dated as of September 25, 2009, temporarily
increasing the maximum principal amount to $2,500,000.00 and (c) a certain
Amendment No. 3 and Allonge to Revolving Line of Credit Note dated as of
December 14, 2009 (collectively, the “Revolving Note”, and
together with the Term Note, the “Notes”).
WHEREAS, the obligations of
Borrower to Lender evidenced by the Loan Agreement and the Notes are secured by
(i) a certain Security Agreement dated as of November 30, 2007 by Borrower in
favor of Lender (the “Security Agreement”)
and (ii) a certain Stock Pledge Agreement dated as of November 30, 2007 by
Borrower in favor of Lender (as subsequently amended, the “Stock Pledge
Agreement,” and together with the Loan Agreement, the Notes and the
Security Agreement, the “Loan
Documents”).
Exhibit 4.76
WHEREAS, the following Events
of Default (collectively, the “Identified Events of
Default”) have occurred or may occur:
(i) Borrower
has failed to comply with the Minimum EBITDA covenant set forth in Section 5(m)
of the Loan Agreement for the periods ending September 30, 2009 and December 31,
2009;
(ii) Borrower
has failed to comply with the Maximum Ratio of Total Funded Debt to Adjusted
EBITDA covenant set forth in Section 5(n) of the Loan Agreement for the periods
ending September 30, 2009 and December 31, 2009;
(iii) Borrower
has failed to comply with the Minimum Fixed Charge Coverage Ratio covenant set
forth in Section 5(o) of the Loan Agreement for the periods ending September 30,
2009 and December 31, 2009;
(iv)
Borrower has failed to comply with Section 6(iv)(i) of the Loan
Agreement due to the occurrence of certain defaults under the Junior
Loan;
(v)
Borrower has failed to comply with Section I(1) of Amendment No. 10 to the
Loan Agreement, pursuant to which Borrower was required to repay any amounts
outstanding under the Revolving Note in excess of $2,000,000 on or before
February 28, 2010; and
(vi) Borrower
anticipates that one or more Events of Default may occur during the Forbearance
Period (as defined below) under Sections 5(m), 5(n) and 5(o) of the Loan
Agreement and under Section 6(a)(iv)(ii) of the Loan Agreement with respect to
Seller Financing.
WHEREAS, contemporaneously
herewith, the Lender and Borrower have executed that certain Eleventh Amendment
to Revolving Line of Credit and Term Loan Agreement (the “Eleventh Amendment”),
pursuant to which the Lender has agreed to forbear from exercising its rights
and remedies in respect of the Identified Events of Default, but only as and to the
extent provided therein and on the terms and conditions described therein;
and
WHEREAS, pursuant to and as a
condition to the effectiveness of the Eleventh Amendment, the Lender and the
Borrower have agreed to amend certain terms of the Revolving Note.
NOW, THEREFORE, with the
foregoing Recitals incorporated by reference and made a part hereof, in
consideration of the mutual agreements contained in the Loan Documents
(including the Eleventh Amendment) and herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
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Exhibit 4.76
1. Amendments
to Revolving Note.
(a) Section
1.3 of the Revolving Note is hereby amended by deleting the definition of
“Expiration Date” and replacing it with the following:
“Expiration Date”
means January 2, 2011.
(b) Section
1.5 of the Revolving Note is hereby amended by deleting the definition of
“Maximum Revolving Credit” and replacing it with the following:
“Maximum Revolving
Credit” means $4,000,000.
(c) Section
3 of the Revolving Note is hereby deleted in its entirety and replaced with the
following:
“INTEREST: Each
Revolving Advance shall accrue interest at a variable per annum rate of interest
equal to either, at Borrower’s election in accordance with the terms and
conditions of the Loan Agreement, (i) the Prime Rate or (ii) the Adjusted LIBOR
Rate, plus the Libor
Rate Margin (as such terms are defined in Rider A entitled “RBS Citizens
Standard Libor Provisions (Revolving Line of Credit)” attached hereto and made a
part hereof) (the “LIBOR Option”). Notwithstanding the foregoing,
after the Forbearance and Amendment Agreement Effective Date (as defined in that
certain Eleventh Amendment to Revolving Line of Credit and Term Loan Agreement
dated as of April 26, 2010), Revolving Advances (including, for the avoidance of
doubt, Revolving Advances outstanding as of the Forbearance and Amendment
Agreement Effective Date and Revolving Advances made thereafter) shall accrue
interest at the Prime Rate plus six hundred (600) Basis
Points. Changes in the interest rate applicable to any Revolving
Advance occurring as a result of changes in the Prime Rate or the LIBOR Rate, as
applicable, shall take place immediately without notice to Borrower or demand of
any kind. Interest on each Revolving Advance shall at all times be
calculated on a 360-day year of twelve 30-day months, but shall accrue and be
payable on the actual number of days elapsed.”
2. Ratification
of Loan Documents. Borrower hereby ratifies, confirms and
approves each of the terms and conditions, and its liabilities and obligations
under, each of the Loan Documents, including, without limitation, the Eleventh
Amendment.
3. Entire
Agreement; Amendments and Waivers. There are no
other understandings, express or implied, between Lender and Borrower regarding
the subject matter hereof. This Agreement may not be amended or
modified, and no provision of this Agreement may be waived, orally but only by a
written agreement executed and approved in accordance with Section 18 of the
Revolving Note.
4. Choice of
Law. The validity of
this Agreement, its construction, interpretation and enforcement, and the rights
of the parties hereunder, shall be determined under, governed by, and construed
in accordance with the laws of The Commonwealth of Massachusetts without regard
to conflicts of laws principles.
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Exhibit 4.76
5. Counterparts;
Delivery by Facsimile or Electronic Mail. This Agreement
may be executed in any number of counterparts and by different parties in
separate counterparts, each of which when so executed and delivered, shall be
deemed an original, and all of which, when taken together, shall constitute one
and the same instrument. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile or electronic mail shall be as
effective as delivery of a manually executed counterpart of this
Agreement. Any party delivering an executed counterpart of this
Agreement by facsimile or electronic mail also shall deliver a manually executed
counterpart of this Agreement but the failure to deliver a manually executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Agreement..
[Signature
Page Follows]
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Exhibit 4.76
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first above written.
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NATIONAL
INVESTMENT MANAGERS, INC.
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By:
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/s/ Xxxxxx X. Xxxx
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| Name: Xxxxxx X. Xxxx | |
| Title: CEO | |
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LENDER:
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RBS
CITIZENS, NATIONAL ASSOCIATION
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By:
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| Name: Xxxxxx Xxxxxxxx | |
| Title: Senior Vice President | |
