PROMISSORY NOTE
|
$475,000.00
|
Dublin,
Ohio
|
|
April
3, 2008
|
National
Investment Managers Inc., a Florida corporation (the "Maker"), for value
received, hereby promises to pay to Xxxxxxx
X. Xxxxxx and Xxxx X. Xxxxxx Inter Vivos Trust Agreement dated 1/29/97 as
amended and restated 1/10/03
(the
"Holder"), or order, the principal sum of Four Hundred Seventy Five Thousand
Dollars ($475,000) (the “Principal”) Dollars in such coin or currency of the
United States of America as at the time of payment shall be legal tender for
the
payment of public and private debts, which shall be payable in two equal
principal installments of Two Hundred Thirty Seven Thousand Five Hundred Dollars
($237,500) each, plus accrued interest, on (i) June 3, 2009 and (ii) June 3,
2010; provided,
however,
the
Principal and interest payable at each of the aforementioned payment dates
may
be adjusted pursuant to Section 2.3 of the Stock Purchase Agreement entered
by
and between the Maker, California Investment Annuity Sales, Inc., Xxxxxxx
X. Xxxxxx and Xxxx X. Xxxxxx Inter Vivos Trust Agreement dated 1/29/97 as
amended and restated 1/10/03
and
Xxxxxxx X. Xxxxxxx dated April 3, 2008 (the "Stock Purchase Agreement").
Further,
in the event that the Maker and the Holder are unable to determine if the Target
Revenue (as defined in the Stock Purchase Agreement) has been achieved pursuant
to Section 2.3(a) of the Stock Purchase Agreement, then the aforementioned
payment dates shall be extended to be a date five (5) business days from the
date that the Independent Accounting Firm (as defined in the Stock Purchase
Agreement) resolves any dispute between the Maker and the Holder.
The
Holder shall pay such amount within 30 calendar days of such request by Maker.
Maker further promises to pay interest on the unpaid principal balance hereof
at
the rate of seven percent (7%) per annum, principal and interest on the
outstanding balance to be paid annually. Interest shall be calculated on the
basis of a 360 day year and actual days elapsed. In no event shall the interest
charged hereunder exceed the maximum permitted under the laws of the State
of
California.
This
Note
can be prepaid in whole or in part at any time without the consent of the Holder
provided that Maker shall pay all accrued interest on the principal so prepaid
to date of such prepayment.
The
entire unpaid principal balance of this Note and interest accrued with respect
thereto shall be immediately due and payable upon the occurrence of any of
the
following (each, an "Event of Default"):
a.
Application for, or consent to, the appointment of a receiver, trustee or
liquidator for Maker or of its property;
b.
Admission in writing of the Maker's inability to pay its debts as they
mature;
c.
General assignment by the Maker for the benefit of creditors;
d.
Filing
by the Maker of a voluntary petition in bankruptcy or a petition or an answer
seeking reorganization, or an arrangement with creditors;
e.
Entering against the Maker of a court order approving a petition filed against
it under the federal bankruptcy laws, which order shall not have been vacated
or
set aside or otherwise terminated within 60 days; or
Page
1 of 2
f.
Default in the payment of the principal or accrued interest on this Note, when
and as the same shall become due and payable, whether by acceleration or
otherwise, which such default has not been cured within thirty (30) of the
Holder notifying the Maker in writing of such default.
All
rights and remedies available to the Holder pursuant to the provisions of
applicable law and otherwise are cumulative, not exclusive and enforceable
alternatively, successively and/or concurrently after default by Maker pursuant
to the provisions of this Note.
This
Note
may not be changed, modified or terminated orally, but only by an agreement
in
writing, signed by both Maker and Holder. .
This
Note
shall be governed by and construed in accordance with the laws of the State
of
California applicable to agreements made and to be performed in that state,
without regard to any of its principles of conflicts of laws or other laws
that
would result in the application of the laws of another jurisdiction. This
Agreement shall be construed and interpreted without regard to any presumption
against the party causing this Agreement to be drafted. Each of the parties
hereby unconditionally and irrevocably waives the right to a trial by jury
in
any action, suit or proceeding arising out of or relating to this Agreement
or
the transactions contemplated hereby. Each of the parties unconditionally and
irrevocably consents to the exclusive jurisdiction of the courts of the State
of
California located in the County of Los Angeles and the Federal court in the
Central District of California with respect to any suit, action or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby, and each of the parties hereby unconditionally and irrevocably waives
any objection to venue in any such court.
This
Note
shall be binding upon the successors, endorsees or assigns of the Maker and
inure to the benefit of the Holder, its successors, endorsees and
assigns.
In
the
event of any dispute between parties to this Note, the prevailing party shall
be
entitled to immediate payment of all costs incurred by such party in such
dispute, including, but not limited to, court costs and reasonable attorneys'
fees.
If
any
term or provision of this Note shall be held invalid, illegal or unenforceable,
the validity of all other terms and provisions hereof shall in no way be
affected thereby.
|
By:
|
|
|
|
Name:
|
||
|
Title:
|
||
Page
2 of 2
