WOODSIDE CAPITAL PARTNERS V, LLC WOODSIDE CAPITAL PARTNERS V QP, LLC WOODSIDE CAPITAL PARTNERS IV, LLC WOODSIDE CAPITAL PARTNERS IV QP, LLC
WOODSIDE
CAPITAL PARTNERS V, LLC
WOODSIDE
CAPITAL PARTNERS V QP, LLC
WOODSIDE
CAPITAL PARTNERS IV, LLC
WOODSIDE
CAPITAL PARTNERS IV QP, LLC
00
Xxxx
Xxxx
Xxxxxxxxxx,
XX 00000
November
3, 2008
000
Xxxxx
Xxxxx Xxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxx, Chief Executive Officer
Ladies
and Gentlemen:
We
refer
to that certain Securities Purchase and Loan Agreement, dated as of November
30,
2007 (as amended, modified, or supplemented from time to time, the “Securities
Purchase Agreement”),
by
and among Woodside Capital Partners IV, LLC (“Woodisde
IV”),
Woodside Capital Partners IV QP, LLC (“Woodisde
IV QP”),
Woodside Capital Partners V, LLC, as assignee of Woodlands Commercial Bank
(f/k/a Xxxxxx Brothers Commercial Bank) (“Woodside
V”),
Woodside Capital Partners V QP, LLC, as assignee of Woodlands Commercial Bank
(f/k/a Xxxxxx Brothers Commercial Bank) (“Woodside
V QP”,
and
together with Woodside IV, Woodside IV QP and Woodside V, the “Holders”),
Woodside Agency Services, LLC, as Collateral Agent, and National Investment
Managers Inc. (the “Company”).
Capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Securities Purchase Agreement.
In
consideration of the Holders’ support of the Company’s capital requirements and
the Holders’ assistance with the Company’s evaluation and implementation of its
strategic objectives, the Company hereby agrees that, in the event that a
Capital Transaction is consummated on or prior to May 4, 2009, the
Company will pay to the Holders a consulting fee in an amount equal to
$1,000,000, which consulting fee shall be due
and
payable in cash upon the consummation of the Capital Transaction and shall
be
due and payable without offset, counterclaim, deduction or withholding. The
Holders shall be entitled to allocate the consulting fee among themselves as
they may agree.
In
the
event that any portion of such consulting fee is not paid pursuant to the terms
hereof, interest shall accrue on such unpaid portion from the day immediately
following the day on which the same is due and payable until the date that
such
unpaid amount, and all interest accrued thereon, has been paid in full in cash,
at the rate of 18% per annum, compounded on a quarterly basis to the extent
permitted by law and payable on demand.
The
Company hereby agrees that it shall not enter into any document, instrument
or
agreement which would in any manner restrict the Company's ability to pay to
the
Holders the consulting fee when due and payable.
Any
notice pursuant to this Agreement to the Company or any Holder shall be in
writing and shall be deemed to have been duly given (a) if mailed by certified
or registered mail, postage prepaid, return receipt requested, when received,
(b) if by facsimile transmission, when electronic confirmation of receipt is
received, and (c) if by overnight courier, when receipted for, in each case
when
addressed to them at their respective addresses set forth above (or such other
address as any of them may designate by written notice to the others, in
accordance herewith).
THE
COMPANY HEREBY AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS
IN
AND OF THE COMMONWEALTH OF MASSACHUSETTS OVER ANY SUIT, ACTION OR PROCEEDING
EXISTING UNDER OR RELATING TO THIS LETTER AGREEMENT, AND CONSENTS THAT SERVICE
OF PROCESS WITH RESPECT TO ALL COURTS IN AND OF THE COMMONWEALTH OF
MASSACHUSETTS MAY BE MADE BY REGISTERED MAIL TO IT AT ITS ADDRESS DETERMINED
PURSUANT TO THE
IMMEDIATELY PRECEDING PARAGRAPH.
THIS
LETTER AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT AND MAY
BE
EXECUTED IN ANY NUMBER OF COUNTERPARTS WHICH TOGETHER SHALL CONSTITUTE ONE
INSTRUMENT AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
DOMESTIC SUBSTANTIVE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD CAUSE
THE
APPLICATION OF THE DOMESTIC SUBSTANTIVE LAWS OF ANY OTHER STATE, AND SHALL
BIND
AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS
AND ASSIGNS.
THE
COMPANY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION
OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS LETTER AGREEMENT,
ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY OF SUCH RIGHTS OR
OBLIGATIONS.
This
letter agreement is, as further described in Section 3.6 of the Securities
Purchase Agreement, secured by the Collateral pledged pursuant to the Security
Documents. Each Holder is entitled to enforce the provisions of the Securities
Purchase Agreement and to enjoy the benefits thereof, and of the Security
Documents and other Financing Agreements, and may exercise the respective
remedies provided for hereby and thereby or otherwise available in respect
hereof and thereof, all in accordance with the respective terms
thereof.
This
letter agreement shall constitute a Financing Agreement under the Securities
Purchase Agreement, and all obligations included in this letter agreement shall
constitute Obligations and be secured by the Collateral.
This
letter agreement sets forth the entire understanding of the parties hereto
with
respect to the matters set forth herein. The rights and remedies herein provided
are cumulative and not exclusive of any remedies provided by law or any other
agreement. The invalidity or unenforceability of any one or more sections of
this letter agreement shall not affect the validity or enforceability of its
remaining provisions. Captions are for the ease of reference only and shall
not
affect the meaning of the relevant provisions. The meanings of all defined
terms
used in this letter agreement shall be equally applicable to the singular and
plural forms of the terms defined.
This
letter agreement may be executed in any number of counterparts, and all such
counterparts shall together constitute but one instrument. In making proof
of
this letter agreement it shall not be necessary to produce or account for more
than one counterpart signed by each party hereto by and against which
enforcement hereof is sought. Any signature delivered by a party by facsimile
transmission or other electronic method of transmission (including without
limitation in “pdf” format) shall be deemed to be an original signature
hereto.
[Signature
page follows]
| Sincerely yours, | |
|
WOODSIDE
CAPITAL PARTNERS V, LLC
By:
Woodside Opportunity Partners II, LLC, its Manager
By:
Woodside Capital Management, LLC, its Manager
|
|
| By: /s/Xxxxx Xxx | |
|
Name:
Xxxxx Xxx
Title:
Executive Vice President
|
|
|
WOODSIDE
CAPITAL PARTNERS V QP, LLC
By:
Woodside Opportunity Partners II, LLC, its Manager
By:
Woodside Capital Management, LLC, its Manager
|
|
|
By:
/s/Xxxxx Xxx
Name:
Xxxxx Xxx
Title:
Executive Vice President
|
|
|
WOODSIDE
CAPITAL PARTNERS IV, LLC
By:
Woodside Opportunity Partners, LLC, its Manager
By:
Woodside Capital Management, LLC, its
Manager
|
|
|
By:/s/Xxxxx
Xxx
Name:
Xxxxx Xxx
Title:
Executive Vice President
|
|
WOODSIDE
CAPITAL PARTNERS IV QP, LLC
By:
Woodside Opportunity Partners, LLC, its Manager
By: Woodside
Capital Management, LLC, its Manager
|
|
|
By:
/s/Xxxxx Xxx
Name:
Xxxxx Xxx
Title:
Executive Vice President
|
Acknowledged
and Agreed:
By: /s/Xxxxxx
Xxxx
Name:
Xxxxxx Xxxx
Title:
CEO
WOODSIDE
AGENCY SERVICES, LLC,
as
Collateral Agent
By:
Woodside Capital Management, LLC, its Manager
By:
/s/Xxxxx Xxx
Name:
Xxxxx Xxx
Title:
Executive Vice President
