EXHIBIT 6.7
SECURED PROMISSORY NOTE
$__________ ________ __, 2002
FOR VALUE RECEIVED, Xxxxxx Capital Corp., a Nevada corporation with a
principal office at 00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx (the
"Borrower"), hereby promises to pay to _________ _______ of _______, __________
(hereinafter sometimes called the "Payee"), the principal sum of
________________________ Dollars ($________) in lawful money of the United
States of America in immediately available funds in the following manner.
Commencing on the earlier to occur of (i) the fifth anniversary of the Note, or
(ii) thirty (30) days following the initial airing of the Borrower's television
commercial for its Rephresh product, excluding the test commercial, and
continuing over a six-month period thereafter, the Borrower shall pay, in a
single installment in the case of the fifth anniversary, or in monthly
installments in the case of a calculation based on Net Revenues (as defined
below), such Payee's pro rata share of the principal amount of the Notes (as
such term is defined in the Borrower's Confidential Offering Memorandum, dated
September, 2002), as calculated by multiplying the Borrower's Net Revenues by
fifty percent (50%). "Net Revenues" shall mean the Borrower's gross revenues
resulting from the airing of the first television commercial for its Rephresh
product and such related sales less the fulfillment cost of completing orders
and a royalty payment due and owing under a license agreement with Pharlo Citrus
Technologies, Inc. The Note shall be secured by a security interest in the Net
Revenues.
Interest on the unpaid principal amount hereof (computed on the basis of
the actual number of days elapsed over a 360-day year) shall accrue at the rate
of five percent
(5.00%) per annum. Interest on the Note shall be due and payable at maturity
(whether on the stated due date hereof, upon prepayment, by acceleration or
otherwise).
This Note is the Note referred to in the Subscription Agreement, dated as
of the date hereof, by and between the Borrower and the Payee.
The unpaid principal sum of this Note may be prepaid in full at any time
and in part, from time to time without penalty or premium.
All payments due under this Note shall be payable at the address of the
Payee at ____________________, ________, ______________ _____ or at such other
place in the United States of America as the holder of this Note may from time
to time in writing designate at least ten (10) days before such payment is due.
The entire unpaid balance due under this Note shall, at the option of the
holder of this Note, become forthwith due and payable upon the happening of any
of the following events of default: (a) the admission by the undersigned in
writing of the inability of the undersigned to pay the debts of the undersigned;
or (b) an assignment or trust mortgage by the undersigned for the benefit of
creditors; or (c) the appointment of a receiver, trustee, or custodian for all
or substantially all of the property of the undersigned and, if appointed
without the consent of the undersigned, such appointment is not discharged
within forty-five (45) days; or (d) the commencement of any proceedings under
any law relating to bankruptcy, insolvency, or the reorganization or relief of
debtors of, by, or against, the undersigned and, if contested by the
undersigned, such proceedings are not dismissed or stayed within forty-five (45)
days; or (e) the issuance or levy against a substantial part of the property of
the undersigned of any writ of attachment or execution
or any similar process, which judgment, writ, or process is not discharged,
released, stayed, bonded, or vacated within forty-five (45) days after its
entry, issue, or levy.
The undersigned agrees that no variance, extension, postponement of the
time of payment, or renewal of this Note shall affect the absolute and
unconditional liability of the undersigned hereunder. No delay or omission on
the part of the holder of this Note in exercising any right hereunder shall
operate as a waiver of such right hereunder and no single or partial exercise of
any right hereunder shall preclude other or future exercise thereof. A waiver of
any right or remedy on any occasion shall not be construed as a bar to or waiver
of any such right or remedy on any future occasion.
The undersigned, and every endorser of this Note, hereby waives
presentment, demand, notice of dishonor, notice of acceleration, protest, and
all other demands and notices in connection with the delivery, acceptance,
performance, default, or enforcement of this Note or of any rights hereunder,
assents to any extension or postponement of the time of payment of this Note or
any other indulgence, and hereby waives any rights of set-off or counterclaim.
The undersigned hereby agrees to pay to the holder of this Note on demand
all legal and other costs and expenses of every kind and description, including
reasonable attorneys' fees and disbursements, relating to the collection and/or
enforcement of this Note or of any rights hereunder. Such amounts shall
constitute additional principal amounts due hereunder.
Notices to the undersigned shall be deemed given when delivered in hand to
the undersigned or three (3) days after being mailed by registered or certified
mail, postage prepaid, return receipt requested, to the undersigned at 00 Xxxxx
Xxxxxx, Xxxxx 000,
Wellesley, Massachusetts, or at such other address of which the undersigned
shall have notified the holder of this Note in writing.
This Note shall be governed by, and construed and enforced in accordance
with, the laws of The Commonwealth of Massachusetts excluding any choice or
conflict of laws rules of The Commonwealth of Massachusetts that would require
the application of the laws of a jurisdiction other than The Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, the undersigned has executed this Note as an
instrument under seal, all as of the day, month, and year first written above.
XXXXXX CAPITAL CORP.
By: _______________________________
Name: Xxxxxx X. Xxxxxxxx
Title: President
