Exhibit 10.2
NON-NEGOTIABLE PROMISSORY NOTE
$1,495,000.00
July 30, 2007
FOR VALUE RECEIVED, FirstPlus Development Company
and FirstPlus
Enterprises, Inc., each Texas corporations (collectively, the
"MAKER"), hereby
promise to pay Globalnet Enterprises, LLC, a Pennsylvania
limited liability
company ("PAYEE"), the principal amount of ONE MILLION FOUR
HUNDRED NINETY FIVE
THOUSAND DOLLARS ($1,495,000.00), with interest on the principal
amount hereof
from time to time outstanding from the date hereof at the rate of
seven percent
(7%) per annum, or, if and when applicable, at the Default Rate
(as defined in
Section 2.2 below), such interest and principal to be paid as set
forth below,
in lawful currency of the United States of America in
immediately available
funds, without counterclaim or setoff (except as provided herein)
and free and
clear of, and without any deduction or withholding for, any
taxes or other
payments.
This Note has been delivered pursuant to, and in
connection with the
closing of the transactions contemplated by that certain
Agreement for the
Purchase and Sale of Membership Interests, dated the date hereof,
by and among
Maker, Payee and Others (the "PURCHASE AGREEMENT"). The Purchase
Agreement and
all other agreements, documents and instruments collateral
thereto, together
with all amendments, replacements, increases, renewals and
modifications thereof
or thereto, are collectively referred herein as the "TRANSACTION
DOCUMENTS".
ARTICLE I
PAYMENT; MATURITY
Section 1.1 Subject to Payee's right to demand payment of
principal and
accrued interest as otherwise set forth in this Note, the
principal amount of
this Note, and interest thereon, shall be due and payable in a
lump sum on July
___, 2009 (the "MATURITY DATE").
Section 1.2 All computations of interest shall be made on the
basis of the
actual number of days elapsed in a three hundred sixty (360) day
year.
Section 1.3 The principal amount of this Note is
pre-payable in whole or
in part at any time, without premium or penalty; provided,
however, that any
such prepayment is accompanied by payment of all accrued and
unpaid interest on
the amount prepaid to the date of prepayment and payment of all
other amounts
due and payable hereunder.
Section 1.4 All payments shall be applied first to payment
of all fees,
expenses and other amounts due to Payee (excluding principal and
interest), then
to accrued interest, and the balance on account of
outstanding principal;
provided, however, that after an Event of Default hereunder,
payments will be
applied to the obligations of Maker to Payee as Payee determines
in its sole
discretion.
ARTICLE II
ADDITIONAL PAYMENTS; USURY LIMITATION
Section 2.1 From and after the Maturity Date, either as
stated in Section
1.1 hereof or as the result of a declaration of maturity made by
Payee, whether
by acceleration or otherwise, and from and after the occurrence of
any Event of
Default hereunder irrespective of any declaration of
maturity, the entire
principal remaining unpaid hereunder, as well as any amounts
owing pursuant to
Section 2.1, shall bear interest at the rate of ten percent (10%)
per annum (the
"DEFAULT RATE"), or the highest applicable lawful rate, whichever
is then less.
The Default Rate shall continue to apply whether or not
judgment shall be
entered on this Note. Maker acknowledges that: (i) such
additional rate is a
material inducement to Payee to enter into the Transaction
Documents; (ii) Payee
would not have agreed to the terms of the Transaction Documents
in the absence
of the agreement of Maker to pay interest at the Default Rate;
(iii) the Default
Rate represents compensation for increased risk to Payee that the
Note will not
be repaid; and (iv) such rate is not a penalty and represents
a reasonable
estimate of compensation to Payee for losses that are difficult to
ascertain.
Section 2.2 If the entire amount of unpaid principal and
interest and any
accrued but unpaid fees, costs and expenses hereunder are not
paid in full
within fifteen (15) days after the Maturity Date or following
demand by Payee in
accordance with the terms of this Note, Maker shall pay to
Payee a late fee
equal to five percent (5%) of such amount. Such fifteen-day period
shall not be
construed in any way to extend the Maturity Date. Maker
acknowledges that: (i)
such late fee is a material inducement to Payee to enter into the
Transaction
Documents; (ii) Payee would not have agreed to the terms of the
Transaction
Documents in the absence of the agreement of Maker to pay such
late fee; (iii)
such late fee represents compensation for increased risk to Payee
that the Note
will not be repaid; and (iv) such late fee is not a penalty and
represents a
reasonable estimate of compensation to Payee for losses that are
difficult to
ascertain.
Section 2.3 If any provision of this Note requires interest
payments in
excess of the highest rate permitted by law, the provision in
question shall be
deemed to require only the highest such payment permitted by
law. Any amounts
theretofore received by Payee hereunder in excess of the
maximum amount of
interest so permitted to be collected by Payee shall be
applied by Payee in
reduction of the outstanding principal balance hereof or, if
this Note shall
have theretofore been paid in full, the amount of such excess
shall be promptly
returned by Payee to the Maker. Any judgment obtained for sums
due hereunder
shall accrue interest at the Default Rate as aforesaid until paid.
ARTICLE III
DEFAULT
Section 3.1 Each of the following shall constitute an
event of default
hereunder (an "EVENT OF DEFAULT"):
(a) The nonpayment of principal and interest due
hereunder on the
Maturity Date.
(b) The nonpayment within fifteen (15) days of the
date when first
due of any sum payable under this Note other than the principal and
interest due
hereunder.
(c) Default in the performance of any obligations,
agreements or
covenants of Maker hereunder or under any of the other Transaction
Documents.
(d) Any representation or warranty made by Maker
hereunder or under
any of the other Transaction Documents is untrue in any material
respect as of
the date hereof, or becomes untrue in any material respect prior
to all of the
obligations hereunder being fully, finally and irrevocably paid.
(e) The entry of a judgment or judgments against Maker
in excess of
$250,000 in the aggregate and the failure of Maker to discharge or
bond over the
judgment(s) within twenty (20) days of the entry thereof.
(f) The filing by or on behalf of or against Maker of
a petition of
bankruptcy or a petition to take advantage of any insolvency
act including,
without limitation, a petition for reorganization, arrangement,
composition,
readjustment, liquidation, dissolution or similar relief under any
bankruptcy or
insolvency law, which is not withdrawn or dismissed within sixty
(60) days of
filing, or any assignment for the benefit of creditors by Maker.
(g) The dissolution or termination of existence of
Maker.
(h) Any material adverse change in Maker's financial
condition from
the financial condition thereof represented and/or disclosed to
Payee as of the
date hereof. For the purposes hereof, "material adverse change"
shall mean any
event that Maker's parent corporation, FirstPlus Financial Group,
Inc., would be
obligated to report under Item 2.04 of a Current Report on Form
8-K filed under
the Securities and Exchange Act of 1934, as amended.
Section 3.2 REMEDIES.
(a) Upon the occurr
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