Senior Secured Note due January 31, 2011
EXHIBIT
A
Senior
Secured Note due January 31, 2011
This
Note
has not been registered under the Securities Act of 1933, as amended, and may
not be sold or otherwise transferred in the absence of such registration or
an
exemption therefrom under such Act. Furthermore, this Note may be sold or
otherwise transferred only in compliance with the conditions specified in the
Securities Purchase Agreement (as hereinafter defined), a complete and correct
copy of which is available for inspection at the principal office of the Company
(as hereinafter defined) and will be furnished without charge to the holder
of
this Note upon written request.
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$___________
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Dated:
___________ __, ____
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National
Investment Managers Inc., a Florida corporation (hereinafter called the
"Company"),
for
value received, hereby promises to pay to [_________________] (the "Holder")
or its
registered assigns, the entire principal amount of [_____________________]
($[_________]) or such lesser amount as then remains outstanding under the
Note,
prior to or on January 31, 2011 (the "Maturity Date"),
and
to pay interest on the unpaid principal amount hereof from the original date
hereof until and including the payment in full of the unpaid principal amount
hereof at a rate equal to 15% per annum payable in the manner and at the time
provided in Section 3.5(a) of the Securities Purchase Agreement (as defined
below). During the continuance of an Event of Default, the principal amount
of
this Note shall, until such Event of Default has been cured or remedied or
such
Event of Default has been waived by the Majority Holders of the Notes, bear
interest at a rate equal to eighteen percent (18%) per annum, payable in the
manner and at the time provided in Section 3.5(b) of the Securities Purchase
Agreement (as defined below). All payments of principal and interest hereof
shall be made in lawful money of the United States of America to the account
of
the Holder hereof upon presentation hereof at the principal office of the Holder
at [_____________________], or at such other place as the Holder hereof shall
have designated to the Company in writing.
This
Note
is one of the Notes of the Company aggregating $12,000,000 in original
authorized principal amount issued pursuant to the Securities Purchase and
Loan
Agreement, dated as of November 30, 2007 (as amended from time to time, the
"Securities Purchase Agreement"),
among
the Company, Woodside
Capital Partners IV, LLC, Woodside Capital Partners IV QP, LLC, Xxxxxx Brothers
Commercial Bank, and Woodside Agency Services, LLC.
This
Note is, as further described in Section 3.6 of the Securities Purchase
Agreement, secured by the Collateral. The
Holder is entitled to enforce the provisions of the Securities Purchase
Agreement and to enjoy the benefits thereof, and of the other Financing
Agreements, and may exercise the respective remedies provided for thereby or
otherwise available in respect thereof, all in accordance with the respective
terms thereof. Capitalized terms used and not defined herein shall have the
meanings ascribed thereto in the Securities Purchase Agreement.
The
Company may, at any time after May 30 2009, prepay this Note at its election,
in
whole or in part, and the maturity hereof may be accelerated by the Majority
Holders of the Notes outstanding following an Event of Default, all as provided
in the Securities Purchase Agreement, to which reference is made for the terms
and conditions of such provisions as to prepayment and acceleration;
provided,
that no
prepayment of this Note may be made except upon compliance with the terms of
Sections 3.1 and 3.2 of the Securities Purchase Agreement and payment of
applicable prepayment charges provided for therein.
Any
permitted transfer of this Note is registrable on the note register of the
Company upon presentation at the principal office of the Company accompanied
by
a written instrument of transfer in form satisfactory to the Company duly
executed by, or on behalf of, the holder hereof. This Note may also be exchanged
at such office for one or more Notes in any authorized denominations, as
requested by the Holder, of a like aggregate unpaid principal amount. The date,
time and interest rate applicable to the borrowing evidenced by this Note and
all payments and prepayments of the principal hereof and interest hereon and
the
respective dates thereof shall be recorded by the Holder hereof in its internal
records and, prior to any transfer of the Note, endorsed by the Holder on the
schedule attached hereto or on any continuation thereof; provided, however,
that
the failure to make such a notation or any error in making such a notation
shall
not in any manner affect the obligation of the Company to make payments of
principal and interest in accordance with the terms hereof.
Prior
to
due presentment for registration of transfer, the Company and any agent of
the
Company may treat the person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment of principal and interest as herein
provided and for all other purposes.
No
delay
or omission on the part of the Holder or any holder hereof in exercising any
right hereunder shall operate as a waiver of such right or of any other rights
of the Holder or such holder, nor shall any delay, omission or waiver on any
one
occasion be deemed a bar or waiver of the same or any other right on any future
occasion.
The
Company and every endorser and guarantor of this Note or the obligation
represented hereby waives presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Note, and assents to any extension or
postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
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The
Company agrees to pay, on demand, all out-of-pocket costs of collection of
the
principal or any interest on this Note, including, without limitation, court
costs and attorneys’ fees.
This
Note
shall be deemed to take effect as a sealed instrument under the laws of the
Commonwealth of Massachusetts and for all purposes shall be construed in
accordance with such laws.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NO REGISTRATION OF TRANSFER OF SUCH
SECURITIES WILL BE MADE ON THE BOOKS OF THE COMPANY UNLESS SUCH TRANSFER IS
MADE
IN CONNECTION WITH AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT OR
SUCH
ACT DOES NOT APPLY.
PAYMENT
OF PRINCIPAL AND INTEREST ON THE NOTES AND OTHER AMOUNTS RELATING TO THE
SECURITIES PURCHASE AGREEMENT HAS BEEN SUBORDINATED TO PRIOR PAYMENT OF THE
SENIOR DEBT IN THE MANNER, AND TO THE EXTENT, SET FORTH IN THE INTERCREDITOR
AGREEMENT.
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