Senior Secured Promissory Note

Contract

 

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.  THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR (B) AN APPROPRIATE EXCEPTION UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT.  NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.  ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS NOTE.

 

SENIOR SECURED PROMISSORY NOTE

February 25, 2014

$167,000

FOR VALUE RECEIVED, FRESH HEALTHY VENDING INTERNATIONAL, INC., a Nevada corporation (the “Company”), hereby promises to pay to the order of [Investor Name] or registered assigns (the “Holder”) the principal amount of One Hundred Sixty Seven Thousand United States Dollars ($167,000.00) no later than the Maturity Date (as defined below), and to pay interest (“Interest”) on the unpaid principal balance hereof at Maturity, or earlier upon conversion, acceleration or redemption pursuant to the terms hereof, at the rate of twelve percent (12%) per annum.  Interest on this Secured Promissory Note (this “Initial Note”) payable monthly, or earlier  upon acceleration, repayment or redemption pursuant to the terms hereof, shall accrue from the Issuance Date (as defined below) and shall be computed on the basis of a 365-day year composed of the actual days elapsed.

The obligations of the Company to the Holder pursuant to this Initial Note shall be secured by a senior lien on all assets of the Company. This Initial Note is one of a series of three identical Initial Notes issued by the Company as of this date, aggregating $501,000.00 and may at the option of the Company include additional notes yielding gross proceeds of another $1,500,000 (the "Additional Notes"). The Holder acknowledges that the Company also reserves the right to issue supplemental notes to lenders within 91 days from the date of this Initial Note that in total do not exceed an aggregate of  $1,000,000 (the "Supplemental Notes" and together with the Initial Notes and the Additional Notes, the "Notes"). The Notes shall not amount to more than a total of $3,001,000 and shall be senior to all other indebtedness of the Company, however by accepting this Initial Note the Holder agrees that holders of the other Notes, when and if issued, will have security interests identical to and pari passu with those granted to the Holder.

 

                                                                                                            FHVI Form Senior Secured Promissory Note v.F2


 
 

 

1.         Payments.  All payments of principal of, and interest on, this Initial Note shall be made in lawful money of the United States of America.  Whenever any amount expressed to be due by the terms of this Initial Note is due on any day that is not a Business Day (as defined in Section 2(a)), the same shall instead be due on the next succeeding day that is a Business Day (unless in the case of interest, such next succeeding Business Day would be in the following calendar month, in which case such payment will be made on the immediately preceding Business Day). 

            (a) Prepayment Rights. The Company shall have the right to prepay this Initial Note in lawful money of the United States at any time prior to Maturity by giving the Holder ten (10) days written notice.        

2.         Definitions

(a) Certain Defined Terms.  For purposes of this Initial Note, the following terms shall have the following meanings:

 

 “Acquiring Entity” means the Person purchasing Company’s assets or the successor resulting from the Organic Change.

Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in the city of Los Angeles are authorized or required by law to remain closed.

 “Common Stock” means (A) the Company’s Common Stock, $0.001 par value per share, and (B) any capital stock resulting from a reclassification of any such common membership interests or common stock.

 “Default” means any event or circumstance that is, or with the giving of notice or lapse of time or both, would be an Event of Default.

Dollars” or “$” means United States Dollars. 

GAAP” means United States generally accepted accounting principles.

Governmental Authority” means the government of any nation, state or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.

 

                                                                                                            FHVI Form Senior Secured Promissory Note v.F2


 
 

 

Interest Amount” means, with respect to any Principal, all accrued and unpaid Interest on such Principal through and including such date of determination.

Issuance Date” means the original date of issuance of this Note regardless of any exchange or replacement hereof. 

Maturity Date” means that date which is twelve (12) months following the Issuance Date.

 “Organic Change” means any recapitalization, reorganization, reclassification, consolidation, merger, self tender offer for all or substantially all shares of common stock of the Company, sale of all or substantially all of the Company’s assets to another Person or other transaction that is effected in such a way that holders of Common Stock are entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Stock.

Person” means any individual, firm, corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint venture, joint stock company, Governmental Authority or other entity of any kind, and shall include any successor (by merger or otherwise) of such entity.