EXHIBIT 10.28.2
UNSECURED PROMISSORY NOTE
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$1,534,000 Walnut Creek, California
December 19, 1997
1. Principal. FOR VALUE RECEIVED, the undersigned, Virtual Mortgage
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Network, Inc., a Nevada corporation ("Maker"), hereby promises to pay to Xxxxxx
X. Xxxxxx, an individual ("Holder"), or his successors or assigns, at 000 Xxxxxx
Xxxxxx, Xxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or at such other place as
Holder may from time to time designate, in lawful money of the United States of
America, the principal sum of One Million Five Hundred Thirty Four Thousand
Dollars ($1,534,000.00) (the "Principal Sum") in accordance with the terms of
this Promissory Note (this "Note"). This Note is unsecured. This Note is
issued in connection with the First Amended and Restated Stock Purchase
Agreement, dated June 6, 1997, as amended by that Amendment dated of even date
herewith, (the "Stock Purchase Agreement") by and among Holder, Maker and Xxxxxx
Mortgage Corporation. Capitalized terms used herein without definition have the
same meaning as set forth in the Stock Purchase Agreement.
2. Maturity of Note. The Principal Sum shall be due and payable on
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the earlier of (a) the later of (i) the closing of the Offering or (ii) any
other financing transaction in which Maker raises more than $2 million of net
proceeds (including net proceeds payable in installments), or (b) if no such
closing has occurred by March 31, 1998, then on April 1, 1998.
3. Terms of Payment. Maker hereby agrees to make, and Holder hereby
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agrees to accept, the payment terms of this Note. In the event this Note
becomes due and payable pursuant to Section 2, Maker shall be required to pay
the outstanding Principal Sum out of the cash proceeds to be received at the
closing of the Offering.
4. Event of Default. As used herein, an "Event of Default" shall be
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defined as the failure of Maker to make any payment of principal when due under
the terms of this Note or a material breach by Maker or the Company of the terms
of the Stock Purchase Agreement or the Pledge Agreement, with such failure or
breach continuing for a period of five (5) calendar days without being cured.
5. Waiver. No delay or omission on the part of Holder hereof in
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exercising any right under this Note shall operate as a waiver of such right.
Moreover, a waiver of any term or condition contained under this Note by Holder
must be in writing to be effective and shall not be construed as a waiver of any
subsequent breach or failure of the same term or condition or of any other term
or condition contained in this Note.
6. Amendments. Neither this Note nor any provision hereof may be
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changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
7. Successors. This Note shall be binding upon and inure to the
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benefit of the parties hereto and their respective successors and permitted
assigns. Maker may not assign or transfer all or any part of its rights and
obligations hereunder.
8. Costs of Collection. Maker promises to pay all costs and
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expenses, including reasonable attorneys' fees and expenses, incurred in
connection with the collection and enforcement of this Note. Maker hereby
waives diligence, presentment, protest, demand and notice of every kind, to the
fullest extent permitted by law, and the right to plead any statute of
limitations as a defense to any demand hereunder.
9. Governing Law. This Note shall be governed by, and construed and
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enforced in accordance with, the laws of the State of California, without regard
to conflict of laws principles.
10. Drafting. Maker hereby waives the benefit of any statute or rule
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of law or judicial decision, which would otherwise require that the provisions
of this Note be construed or interpreted most strongly against the party
responsible for the drafting thereof.
11. Severability. If any provision of this Note is held to be
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unenforceable for any reason, it shall be adjusted rather than voided, if
possible, to achieve the intent of the parties to the extent possible. In any
event, if any term of this Note, or the application thereof to any person,
entity or circumstance, shall, to any extent, be invalid or unenforceable, the
remainder of this Note, or the application of such term to persons, entities or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each term of this Note shall be valid and
enforceable to the fullest extent permitted by law.
12. Headings. Headings at the beginning of each numbered paragraph of
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this Note are intended solely for convenience and are not to be deemed or
construed to be part of this Note.
13. Entire Agreement. This Note and the Stock Purchase Agreement set
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forth the entire agreement and understanding of the parties with respect to the
subject matter hereof and supersede all prior agreements, arrangements and
understandings with respect to the subject matter hereof. No representation,
promise, oral or written agreement, understanding, inducement or statement of
intention has been made by Maker or Holder which is not embodied in this Note.
Neither Maker nor Holder shall be bound by or liable for any alleged
representation, promise, oral or written agreement, understanding, inducement or
statement of intention not so set forth.
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IN WITNESS WHEREOF, the undersigned have executed this Note as of the
day and year first written above.
MAKER:
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VIRTUAL MORTGAGE NETWORK, INC.,
a Nevada corporation
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: President and
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Chief Financial Officer
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Acknowledged and Agreed:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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