AMENDMENT NO. 7 TO INTERCREDITOR AND SUBORDINATION AGREEMENT
Exhibit
4.65
AMENDMENT
NO. 7 TO INTERCREDITOR AND SUBORDINATION AGREEMENT
This Amendment No. 7 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, WOODSIDE CAPITAL PARTNERS V,
LLC, as
assignee of Woodlands Commercial Bank (f/k/a Xxxxxx Brothers Commercial Bank)
and WOODSIDE CAPITAL PARTNERS V
QP, LLC, as assignee of Woodlands Commercial Bank (f/k/a 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”.
RECITALS
|
A.
|
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, (iii) a certain
Amendment No. 3 to Intercreditor and Subordination Agreement dated as of
June 30, 2008, (iv) a certain Amendment No. 4 to Intercreditor and
Subordination Agreement dated as of July 16, 2008, (v) a certain Amendment
No. 5 to Intercreditor and Subordination Agreement dated as of October 1,
2008, (vi) a certain Amendment No. 6 to Intercreditor and Subordination
Agreement dated as of November 26, 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.
|
|
B.
|
Due
to certain covenant defaults by the Company under the Senior Documents and
under the Subordinated Documents, the Company and the Senior Creditor have
entered into certain amendments to the Loan Agreement and certain of the
other Senior Documents (the “Senior Amendments”) and the Company and the
Subordinating Creditors have entered into certain amendments to the
Subordinated Documents (the “Subordinated
Amendments”).
|
|
C.
|
The
Company has requested that, pursuant to the terms of the Intercreditor
Agreement, the Senior Lender consent to the Subordinated Amendments and
that the Subordinating Creditors consent to Senior
Amendments.
|
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties hereby agree as follows:
|
1.
|
The
Subordinating Creditors do hereby consent, pursuant to the terms of the
Intercreditor Agreement, to the Company and the Senior Lender modifying
the Senior Documents pursuant to the terms of that certain Amendment No. 7
to Revolving Line of Credit and Term Loan Agreement of even date herewith
and the other Modification Documents as defined
therein.
|
Exhibit
4.65
|
2.
|
The
Senior Lender does hereby consent, pursuant to the terms of the
Intercreditor Agreement, to the Company and the Subordinating Creditors
modifying the Subordinated Documents pursuant to the terms of that certain
Amendment No. 6 to Securities Purchase and Loan Agreement of even date
herewith and the other Modification Documents as defined
therein.
|
|
3.
|
The
parties to this Agreement do hereby acknowledge and agree that the
Intercreditor Agreement shall remain in full force and
effect.
|
|
4.
|
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.
|
|
5.
|
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.
|
|
6.
|
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.
|
[Signatures
appear on following pages]
|
Amendment
No. 7 to Intercreditor and Subordination Agreement
|
Page 2
of 6
|
Exhibit
4.65
EXECUTED
under seal as of the 30th day of March, 2009.
|
SENIOR CREDITOR:
|
||||
|
RBS
CITIZENS, NATIONAL ASSOCIATION
|
||||
|
By:
|
/s/ Xxxxx X. Xxxxxx
|
|||
|
Xxxxx
X. Xxxxxx, Senior Vice
President
|
||||
[Signature
of Subordinating Creditors on following page]
|
Amendment
No. 7 to Intercreditor and Subordination Agreement
|
Page 3
of 6
|
Exhibit
4.65
|
SUBORDINATING CREDITORS:
|
|||
|
WOODSIDE
CAPITAL PARTNERS IV, LLC
|
|||
|
By: Woodside
Opportunity Partners, LLC, its Manager
|
|||
|
By: Woodside
Capital Management, LLC, its Manager
|
|||
|
|
|||
|
By:
|
/s/ Xxxxxx Xxxxx
|
|
|
|
Name:
Xxxxxx Xxxxx
|
|||
|
Title:
EVP
|
|||
|
WOODSIDE
CAPITAL PARTNERS IV QP, LLC
|
|||
|
By: Woodside
Opportunity Partners, LLC, its Manager
|
|||
|
By: Woodside
Capital Management, LLC, its
Manager
|
|||
| By: |
/s/ Xxxxxx Xxxxx
|
||
|
|
Name:
Xxxxxx Xxxxx
|
||
|
|
Title:
EVP
|
||
|
WOODSIDE
CAPITAL PARTNERS V, LLC
|
|||
|
By:
Woodside
Opportunity Partners, LLC, its Manager
|
|||
|
By: Woodside
Capital Management, LLC, its
Manager
|
|||
| By: |
/s/ Xxxxxx
Xxxxx
|
|
|
|
Name:
Xxxxxx Xxxxx
|
|||
|
Title: EVP
|
|||
|
|
|||
|
WOODSIDE
CAPITAL PARTNERS V QP, LLC
|
|||
| By: Woodside Opportunity Partners, LLC, its Manager | |||
|
By: Woodside
Capital Management, LLC, its Manager
|
|||
|
By:
|
/s/ Xxxxxx Xxxxx
|
|
|
|
Name:
Xxxxxx Xxxxx
|
|||
|
Title:
EVP
|
|||
|
WOODSIDE
AGENCY SERVICES, LLC
|
|||
| By: Woodside Capital Management, LLC, its Manager | |||
| By: |
/s/ Xxxxxx Xxxxx
|
||
|
|
Name:
Xxxxxx Xxxxx
|
||
|
|
Title:
EVP
|
||
|
Amendment
No. 7 to Intercreditor and Subordination Agreement
|
Page 4
of 6
|
Exhibit
4.65
|
COMPANY:
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxx
|
||
|
Name:
Xxxxxx X. Xxxx
|
|||
|
Title:
CEO
|
|||
[Signature
of Guarantors on following page]
|
Amendment
No. 7 to Intercreditor and Subordination Agreement
|
Page 5
of 6
|
Exhibit
4.65
GUARANTORS:
|
1.
|
ABR
Advisors, Inc.
|
|
2.
|
Xxxx
X. Xxxxxx & Associates, Inc.
|
|
3.
|
Alaska
Pension Services, Ltd.
|
|
4.
|
Asset
Preservation Corp.
|
|
5.
|
Benefit
Dynamics, Inc.
|
|
6.
|
Benefit
Management Inc.
|
|
7.
|
BPI/PPA
Inc.
|
|
8.
|
California
Investment Annuity Sales, Inc.
|
|
9.
|
Circle
Pension, Inc.
|
|
10.
|
Complete
Investment Management, Inc. of Philadelphia
|
|
11.
|
Haddon
Strategic Alliances, Inc.
|
|
12.
|
Lamoriello
& Co., Inc.
|
|
13.
|
National
Actuarial Pension Services, Inc.
|
|
14.
|
National
Associates, Inc., N.W.
|
|
15.
|
Pension
Administration Services, Inc.
|
|
16.
|
Pension
Technical Services, Inc. (d/b/a REPTECH Corp.)
|
|
17.
|
Pentec,
Inc
|
|
18.
|
Pentec
Capital Management, Inc.
|
|
19.
|
Southeastern
Pension Services, Inc.
|
|
20.
|
Xxxxxxx
X. Xxxxx & Associates, Inc.
|
|
21.
|
The
Pension Alliance, Inc
|
|
22.
|
The
Pension Group, Inc.
|
|
23.
|
Valley
Forge Consulting Corporation
|
|
24.
|
Valley
Forge Enterprises, Ltd. (f/k/a VFE Merger Corp.)
|
|
25.
|
VEBA
Administrators, Inc. (d/b/a Benefit Planning, Inc.)
|
|
26.
|
V.F.
Associates, Inc.
|
|
27.
|
V.F.
Investment Services Corp.
|
|
By:
|
/s/ Xxxxxx X.
Xxxx
|
|
|
Name:
Xxxxxx X. Xxxx
|
||
|
Title:
CEO
|
||
|
Amendment
No. 7 to Intercreditor and Subordination Agreement
|
Page 6
of 6
|
