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Exhibit 10.2
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED.
IT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID
ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT
REQUIRED.
NUMOBILE, INC.
PROMISSORY NOTE
$5,000,000.00
September 9, 2009
Louisville, Kentucky
FOR VALUE
RECEIVED, NUMOBILE, INC., a Nevada corporation (the
"BORROWER") promises to pay to Aubrey C. Brown ("LENDER"), or his
registered
assigns, subject to the terms and conditions set forth herein, in
lawful money
of the United States of America the principal sum of Five Million
and 0/100
Dollars ($5,000,000.00), or such lesser amount as shall equal the
outstanding
principal amount hereof, together with interest (a) from the date
of this Note
(with respect to the Initial Principal Amount) (as defined below)
on the unpaid
Initial Principal Amount balance, and (b) subject to the
satisfaction of the
Final Principal Amount Conditions (as defined below), from April 1,
2011 (with
respect to the Final Principal Amount) (as defined below) on the
unpaid Final
Principal Amount balance, at a rate equal to eight percent (8%) per
annum,
computed on the basis of the actual number of days elapsed and a
year of 365
days. One Million and 0/100 Dollars ($1,000,000) (the "INITIAL
PRINCIPAL
AMOUNT") (less any principal payments with respect to the Initial
Principal
Amount previously paid in accordance with the terms hereof), of the
principal
sum under this Note, together with any then unpaid and accrued
interest on the
Initial Principal Amount, and other amounts payable hereunder with
respect to
the Initial Principal Amount, shall be due and payable on the
earlier of (i)
September 9, 2010 (the "INITIAL MATURITY DATE"), or (ii) when, upon
or after the
occurrence of an Event of Default (as defined below) such amounts
are declared
due and payable by Lender or made automatically due and payable in
accordance
with the terms hereof. Subject to the satisfaction of the Final
Principal Amount
Conditions, Four Million and 0/100 Dollars ($4,000,000) (the "FINAL
PRINCIPAL
AMOUNT") (less any principal payments with respect to the Final
Principal Amount
previously paid in accordance with the terms hereof), of the
principal sum under
this Note, together with any then unpaid and accrued interest on
the Final
Principal Amount, and other amounts payable hereunder with respect
to the Final
Principal Amount, shall be due and payable on the earlier of (i)
September 9,
2014 (the "FINAL MATURITY DATE"), or (ii) when, upon or after the
occurrence of
an Event of Default (as defined below) such amounts are declared
due and payable
by Lender or made automatically due and payable in accordance with
the terms
hereof. If the Final Principal Amount Conditions are not satisfied,
payment of
the Initial Principal Amount, together with interest and other
payments due on
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the Initial Principal Amount, shall be deemed payment in full of
this Note and,
subject to such payment, this Note shall be deemed paid in full and
cancelled on
April 1, 2011.
The following is a
statement of the rights of Lender and the conditions
to which this Note is subject, and to which Lender, by the
acceptance of this
Note, agrees:
1. DEFINITIONS. As
used in this Note, the following capitalized terms
have the following meanings:
(a) the "BORROWER" includes the corporation initially
executing this Note and any Person which shall succeed to or assume
the
obligations of the Borrower under this Note.
(b) "EVENT OF DEFAULT" has the meaning given in SECTION 3
hereof.
(c) "FINAL PRINCIPAL AMOUNT CONDITIONS" means the following
conditions, the satisfaction of which shall be a condition to the
obligations of
the Borrower to pay the Final Principal Amount, any interest
thereon, and any
other payments with respect thereto: Prior to April 1, 2011,
Enhance Network
Communication, Inc. shall enter into a contract with respect to its
proprietary
technology that contemplates the generation of at least $20,000,000
in revenue
and $8,000,000 or gross margin.
(d) "LENDER" shall mean the Person specified in the
introductory paragraph of this Note or any Person who shall at the
time be the
registered holder of this Note.
(e) "OBLIGATIONS" shall mean and include all principal,
interest and obligations, howsoever arising, owed by the Borrower
to Lender, now
existing or hereafter arising under or pursuant to the terms of
this Note,
provided that, no obligations shall arise under this Note with
respect to
principal, interest, or other payments with respect to the Final
Principal
Amount unless the Final Principal Amount Conditions shall be met,
and provided
further that, no obligations shall arise under this Note with
respect to
principal, interest or other payments with respect to the Final
Principal Amount
prior to April 1, 2011.
(f) "PERSON" shall mean and include an individual, a
partnership, a corporation (including a business trust), a joint
stock company,
a limited liability company, an unincorporated association, a joint
venture or
other entity or a governmental authority.
(g) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
(h)
"TRANSACTION DOCUMENTS" shall mean this Note.
2. PREPAYMENT.
Upon ten (10) days prior written notice to Lender, the
Borrower may prepay this Note in whole or in part; provided that
any such
prepayment will be applied first to the payment of expenses due
under this Note,
second to interest accrued on this Note and third, if the amount of
prepayment
exceeds the amount of all such expenses and accrued interest, to
the payment of
principal of this Note.
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3. EVENTS OF
DEFAULT. The occurrence of any of the following shall
constitute an "EVENT OF DEFAULT" under this Note and the other
Transaction
Documents:
(a) FAILURE TO PAY. The Borrower shall fail to pay (i) when
due any principal or interest payment on the due date hereunder or
(ii) any
other payment required under the terms of this Note on the date due
and such
payment shall not have been made within five (5) days of the
Borrower's receipt
of Lender's written notice to the Borrower of such failure to pay;
or
(b) VOLUNTARY BANKRUPTCY OR INSOLVENCY PROCEEDINGS. The
Borrower shall (i) apply for or consent to the appointment of a
receiver,
trustee, liquidator or custodian of itself or of all or a
substantial part of
its property, (ii) be unable, or admit in writing its inability, to
pay its
debts generally as they mature, (iii) make a general assignment for
the benefit
of its or any of its creditors, (iv) be dissolved or liquidated,
(v) become
insolvent (as such term may be defined or interpreted under any
applicable
statute), (vi) commence a voluntary case or other proceeding
seeking
liquidation, reorganization or other relief with respect to itself
or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect
or consent to any such relief or to the appointment of or taking
possession of
its property by any official in an involuntary case or other
proceeding
commenced against it, or (vii) take any action for the purpose of
e
