Exhibit 4.69
CONSENT AND
AMENDMENT NO. 8 TO SECURITIES PURCHASE AND LOAN
AGREEMENT
This CONSENT AND AMENDMENT NO. 8 TO
SECURITIES PURCHASE AND LOAN AGREEMENT
(this "Amendment") dated as of September 29, 2009, is by and among
National
Investment Managers Inc., a Florida corporation (the
"Company"), Woodside
Capital Partners IV, LLC ("Woodside IV"), Woodside Capital Partners
IV QP, LLC
("QP"), Woodside Capital Partners V, LLC, as assignee of Woodlands
Commercial
Bank (f/k/a Lehman Brothers Commercial Bank) ("Woodside V"),
Woodside Capital
Partners V QP, LLC, as assignee of Woodlands Commercial Bank (f/k/a
Lehman
Brother Commercial Bank) ("Woodside V QP", and together with
Woodside IV, QP,
and Woodside V, the "Holders") and Woodside Agency Services, LLC as
collateral
agent for the Holders (the "Collateral Agent").
WHEREAS, the Company, the
Holders and the Collateral Agent are parties to
that certain Securities Purchase and Loan Agreement, dated November
30, 2007 (as
amended, restated, supplemented or
otherwise modified from time to time, the
"Securities Purchase Agreement"). Capitalized terms used but
not defined herein
shall have the same meanings herein as in the Securities Purchase
Agreement.
WHEREAS, the
Company has informed the Holders that the Company and
the
Senior Creditor intend to modify
certain terms and conditions of the Senior
Documents pursuant to the agreements attached hereto as
Exhibit A (the "Senior
Amendments").
WHEREAS, the Company has
requested that the Holders and Collateral Agent
(i) consent to the Senior Amendments and (ii) agree to amend
certain provisions
of the Securities Purchase Agreement.
WHEREAS, the Holders and
the Collateral Agent are willing to (i) consent
to the Senior Amendments and
(ii) amend certain provisions of the
Securities Purchase Agreement, in each
case, subject to the terms,
conditions and other provisions as more fully
provided herein.
NOW, THEREFORE, in consideration of
the mutual agreements contained in the
Securities Purchase Agreement,
herein and for other good and
valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the
parties hereto agree as follows:
SECTION 1. CONSENT. The Collateral
Agent and the Holders hereby consent to
the Senior Amendments; provided that, for the avoidance
of doubt, any increase
to the Senior Debt provided in the Senior
Amendments shall count towards the
Senior Debt Cap (as defined in the Intercreditor Agreement)
and the Senior Debt
Cap shall not be increased as
a result of this Senior Amendments or this
Amendment.
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SECTION 2.
AMENDMENT TO SECURITIES PURCHASE AGREEMENT. Section 9 of
the
Securities Purchase Agreement is
hereby amended by deleting Section 9.12
contained therein and substituting in lieu thereof the
following:
"9.12 Independent Directors. On or prior to (a)
October 30, 2009,
the Company's
board of directors shall nominate
an individual for
appointment to the
Company's board of directors in accordance with the
terms of its
Charter as an Independent Director that is satisfactory to
the Holders, (b)
October 3, 2009, the Company shall have recommended to
the Holders an individual to
be nominated as such an Independent Director
and (c) December 31, 2009, the
Company shall have appointed or elected to
its board of
directors in accordance with the terms of its Charter
an
Independent Director that is
satisfactory to the Holders and, at all times
thereafter, at least one
Independent Director that is satisfactory to the
Holders shall be a member of the
Company's board of directors."
SECTION 3. PRESIDENT AND CHIEF
OPERATING OFFICER. The Company, the Holders
and the Collateral Agent hereby acknowledge and agree that it
shall be an Event
of Default if the employment of John
Davis as President and Chief Operating
Officer of the Company
shall be terminated for any
reason, including
resignation, or if John Davis is otherwise legally restricted from
acting as the
President and Chief Operating Officer of the Company,
unless the Company shall
have hired a replacement President and Chief Operating
Officer within 120 days
thereafter that is acceptable to the Majority Holders.
SECTION 4. CONSENT AND AMENDMENT
FEE. In consideration for the consent and
the amendments provided by the Holders herein, the Company
agrees to pay to the
Collateral Agent, for the pro
rata account of the Holders, a fee equal to
$17,500 (the "Fee"). The Fee shall be fully earned on the
date hereof and shall
be due and payable in full (in cash) on the earlier of (a) the
Maturity Date and
(b) the date the Notes are
accelerated. Commencing on the date hereof, the
unpaid portion of the Fee outstanding from time to time
shall bear interest at
the same rate applicable to the
Notes as set forth in Section 3.5 of the
Securities Purchase Agreement, with such interest being
due and payable at the
times set forth in Section 3.5 of the Securities Purchase
Agreement.
SECTION 5.
AFFIRMATION AND ACKNOWLEDGMENT OF THE COMPANY.
The Company
hereby affirms its absolute and unconditional promise to pay
to the Holders and
the Collateral Agent all amounts due under the Securities
Purchase Agreement as
amended hereby and the Financing Agreements. The
Company hereby confirms that
the Obligations are secured pursuant to the Security
Documents and pursuant to
all other instruments and documents
executed and delivered by the Company as
security for the Obligations.
SECTION 6.
EFFECTIVENESS OF AMENDMENT. The
parties hereto hereby
acknowledge and agree that this
Amendment shall become effective upon the
Collateral Agent's receipt of (a) a copy of this Amendment
duly executed by the
Company and the Holders, (b) fully executed copies of the
Senior Amendments and
(c) evidence satisfactory to the Collateral Agent that the terms of
the existing
seller subordinated debt have been
modified in accordance with the proposed
amortization schedules presented by the Company to the Holders.
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SECTION 7.
RELEASE. In order to induce the
Collateral Agent and the
Holders to enter into this
Amendment, the Company and its
Subsidiaries
acknowledge and agree that: (a) the Company and its Subsidiaries do
not have any
claim or cause of action against the Collateral Agent
or any Holder (or any of
its respective directors, officers, employees or
agents); (b) the Company and
its Subsidiaries do not have any offset right,
counterclaim or defense of any
kind against any of its respective obligations,
indebtedness or liabilities to
the Collateral Agent or any Holder; and (c) the Collateral
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