vivakor_s1-ex1005.htm


    
      EXHIBIT
10.5

      


      SECURED NONRECOURSE
PROMISSORY NOTE

       

      
        	$1,500,000.00	
                 Las
      Vegas, Nevada

              	
                September 18,
      2008

              


      

       

      1.             Principal.

       

      FOR VALUE
RECEIVED, VivaKor, Inc., a Nevada corporation ("Borrower"), promises
to pay to Rico Italia Investments, Inc., a Nevada corporation (the "Lender"), as
nominee of HealthAmerica, Inc.' s Principle Shareholder Prior to the Acquisition
under that certain Acquisition Agreement and Plan of Acquisition at the offices
of the Lender or at such other place as the holder of this Note shall specify,
in lawful money of the United States of America, the principal amount of One
Million Five Hundred Thousand Dollars ($1,500,000.00 USD) together with interest
at the rate of four percent (4%) per annum, payable as hereinafter
provided.

       

      2.            Payment
of Principal and Interest.

       

      Principal
of and interest accruing on this Note shall be due and payable in equal monthly
installments of $25,000.00 commencing on August 18th, 2008
and each 30 days thereafter; in addition, Borrower agrees that if,
at any time after the initial deposit of $25,000.00 is realized, Borrower
receives proceeds from any sales of equity or debt securities, or any sale or
licensing of products or technology, that Borrower shall pay ten percent (10%)
of the gross proceeds to Lender as prepayment of this Note with the 1st
payment 90 days from the date of the initial deposit. Additional payments of ten
percent (10%) shall be paid every 90 days thereafter under the same terms
thereof. Interest shall be calculated on the unpaid principal balance of this
Note on the basis of a year of 360 days and the actual number of days
elapsed until payment. Interest shall accrue and be payable under this Note
whether or not Borrower, or Borrower's successors or assigns, should avail
themselves of the protection of the United States bankruptcy laws. From and
after the occurrence of an "event of default" as set forth in Section 6 hereof,
interest shall continue to accrue on the unpaid principal balance of this Note
at the same interest rate as set forth in Section 1 of this Note.

       

      3.            Prepayment.

       

      A.             This
Note may be Prepaid at any time or from time to time, in whole or in
part,
without penalty.

       

      B.             Each
such prepayment shall include all interest then accrued but unpaid on
this
Note.

       

      C.             Any
partial prepayment of the outstanding principal balance shall in no way
release, discharge or affect the obligation of the Borrower to continue to make
any other payments of principal or interest provided for herein until this Note
is paid in full.

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

       

      4.            Application
of Payments:

       

      Each
payment on this -Note
(whether made when due or otherwise) shall be credited first, to late charges,
fees and other charges due, including collection costs and attorneys' fees,
second against interest then due, and the remainder of such payment shall be
credited against the unpaid principal.

       

      5.            Waiver.

       

      Borrower
and all endorsers, guarantors and all persons liable, or to become liable on
this Note (each hereinafter referred to in this Section as the "Applicable
Party"); jointly and severally, waive presentment, protest and demand, notice of
protest, demand, dishonor and nonpayment of this Note, notice of acceleration,
notice of intent to accelerate, and any and all other notices or matters of a
like nature; and consent to any and all renewals and extensions of the time of
payment hereof. Each Applicable Party agrees that at any time and from time to
time, without notice, (i) the terms of payment herein, or (ii) the terms of any
guaranty of this Note, or (iii) the security described in any documents at any
time securing this Note, may be modified, increased, changed or exchanged, in
whole or in part, without in any way affecting the liability of any Applicable
Party.

       

      6.            Default
By Borrower.

       

      Any one
or more of the following shall constitute an "Event of Default" by Borrower
under the terms of this Note:

       

      A.            If
Borrower fails to pay any payment, whether at maturity or otherwise, of
principal
and/or interest upon the due date thereof.

       

      B.            If
Borrower defaults in the performance or observance of any of the covenants,
conditions or agreements set forth in this Note:

       

      C.            If
Borrower institutes proceedings to be adjudicated a voluntary bankrupt;
consents
to the filing of a bankruptcy proceeding against Borrower; files or consents to
filing of a petition or answer or consent seeking reorganization under the
federal bankruptcy laws or any other similar applicable federal or state law;
consents to the appointment or a receiver of liquidator or trustee or assignee
in bankruptcy or insolvency of the Borrower or a substantial part of Borrower's
property; an assignment for the benefit of creditors is made by the Borrower; or
Borrower admits in writing of Borrower's inability to pay Borrower's debts
generally as they become due.

       

      7.              Remedies
Upon Default.

       

      
        
          
          

        

        
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      Subject
to the provisions of Section 8 below, if an Event of Default occurs, at the
option of the Lender, and upon written demand, the Lender may accelerate the due
date of this Note and declare the entire outstanding principal balance hereof,
including all fees and costs (if any), and accrued but unpaid interest,
immediately due and payable in full.

       

      Each of
the options, rights and remedies provided herein or available at law or in
equity which may be exercised by the Lender may be exercised separately or
concurrently with any one or more other options, rights or remedies available to
the Lender. Failure to exercise any option, right or remedy shall not constitute
a waiver of the right of the Lender to exercise such option, right or remedy in
the event of or with respect to any prior, subsequent or concurrent transaction
or occurrence of the same or a different kind or character.

       

      8.            Nonrecourse
to Borrower.

       

      This Note
is a nonrecourse note and is secured solely by a pledge of shares of Common
Stock and all of the assets of HealthAmerica, Inc. (the "Pledged Shares and
Assets") pursuant to a Pledge and Security Agreement ("Pledge and Security
Agreement") of even date herewith, the provisions of which are incorporated
herein by reference and form a part hereof. Borrower shall be liable upon the
indebtedness evidenced by this Note, for all sums to accrue or to become payable
thereon and for performance of any covenants contained in this Note or in any of
the related documents to the extent, but only to the extent, of the Lender's
security for the same, which consists of all properties, rights, estates and
interests covered by the Pledge Agreement. No attachment, execution or other
writ or process shall be sought, issued or levied upon any assets, properties or
funds of Borrower other than the properties, rights, estates and interests
described in the Pledge Agreement. In the event of foreclosure of such title,
liens or security interests, no judgment of any deficiency upon such
indebtedness, sums and amounts shall be sought or obtained by the Lender against
Borrower.

       

      9.            Severability.

       

      Every
provision of this Note is intended to be severable. If any term or provision
hereof is declared by a court of competent jurisdiction to be illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
balance of the terms and provisions hereof, which terms and provisions shall
remain binding and enforceable.

       

      
        	
              	
                10.

              	
                Governing
      Law.

              


      

       

      This Note
shall be governed by and construed in accordance with the laws of the County of
Clark, State of Nevada.

       

      
        	
              	
                11.

              	
                Notices.

              


      

       

      All
notices, statements or demands shall be in writing and shall be served in
person, by telegraph, by express mail, by certified mail or by private overnight
delivery. Service shall be deemed conclusively made (i) at the time of service,
if personally served, (ii) at the time (as continued in writing by the
telegraphic agency) of delivery thereof to the addressee, if served
telegraphically, (iii) twenty-four (24) hours (exclusive of weekends and
national holidays) after deposit in the United States mail, properly addressed
and postage prepaid, if served by express mail, (iv) five (5) calendar days
after deposit in the United States mail, properly addressed and postage prepaid,
return receipt requested; if served by certified mail, (v) twenty-four (24)
hours after delivery by the party giving the notice, statement or demand to the
private overnight deliverer, if served by private overnight delivery and (vi) at
the time of electronic transmission, if a copy of such notice is mailed within
twenty-four (24) hours after the transmission.

       

      
        
          
          

        

        
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      Any party
hereto may change its address for the purpose of receiving notices, demands or
other communications as herein provided by a written notice given in the manner
aforesaid to the other party or parties hereto.

       

      12.            Successors
and Assigns.

       

      All the
terms and provisions of this Note shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.

       

      13.            Assignability.

       

      Borrower's
obligations hereunder may not be transferred or assigned without the prior
written consent of the Lender, which consent shall not be unreasonably
withheld.

       

      14.            Amendment.

       

      Neither
this Note nor any term or provision hereof may be modified, amended or altered
except by a written instrument approved by the Lender and signed by
Borrower.

       

      15.            Headings.

       

      Headings
at the beginning of each numbered Paragraph of this Note are intended solely for
convenience and are not to be deemed or construed to be a part of this
Note.

       

      16.            Time of
the Essence.

       

      TIME IS
EXPRESSLY DECLARED TO BE THE ESSENCE of each obligation of the Borrower
hereunder and in all matters concerning this Note, including all acts or things
to be done or performed in connection herewith, and specifically of every
provision of this Note in which time is an element.

       

      17.            Compliance
With Usury Laws.

       

      Borrower and the Lender intend to
comply with all applicable usury laws. In fulfilling this intention, all
agreement between Borrower and the Lender are expressly limited so that the
amount of interest paid or agreed to be paid to the Lender for the use,
forbearance, or detention of money under this Note shall not exceed the maximum
amount permissible under applicable law. If for any reason payment of any amount
required under this Note shall be prohibited by law, then the obligation shall
be reduced to the maximum allowable bylaw. If for any reason the Lender receives
as interest an amount that would exceed the highest lawful rate, then the amount
which would constitute excessive interest shall be applied to the reduction of
the principal of this Note and not to the payment of interest. If any conflict
arises between this provision and any provision of any other agreement between
Borrower and the
Lender, then this provision shall
control.

       

      
        
          
          

        

        
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      18.             Legal
Representation.

       

      Borrower
agrees and represents that such party has been represented by such party's own
legal counsel with regard to all aspects of this Note, or if such party is
acting without legal counsel, that such party has had adequate opportunity and
has been encouraged to seek the advice of such party's own legal counsel prior
to the execution of this Agreement.

       

      19.             Jurisdiction.

       

      Any
action whatsoever brought upon or dating to this Note shall be instituted and
prosecuted in the state courts of Clark County, State of Nevada, or the federal
district court therefore, and each party waives the right to change the venue.
The parties hereto further consent to accept service of process in any such
action or proceeding by certified mail, return receipt requested.

       

      20.             Pledge
Agreement.

       

      The
parties agree that this Note shall be secured by the Collateral, as defined in
that certain Pledge Agreement of even date herewith.

       

       

      
        	
                "BORROWER"

                 

                VivaKor, Inc.

                 

              	 	
                “LENDER"

                 

                Rico Italia Investments, Inc.

                 

              
	By:	/s/
      Tannin Fuja 	 	By:	/s/ Richard A.
      Taulli
	 	
                Tannin
      Fuja 

                 

              	 	 	Richard A.
      Taulli
	Title:	President	 	Title:	President


      

      
 

      
        
          
          

        

        
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      EXHIBIT
A

       

      Form of Plan of
Acquisition

       

       

      (Exhibit
omitted)


       

       

       

       

       

       

       

       

       

       

       

       

      A-1