Exhibit 10.32
PROMISSORY NOTE SECURED BY
PLEDGE OF STOCK
_________, ____
San Francisco, California $________
The undersigned, ________________ ("Maker"), for value received,
promises to pay to the order of BF Enterprises, Inc., a Delaware corporation
(the "Company"), or any successor in interest to whom this Promissory Note
("Note") has been endorsed for payment (collectively the "Holder"), the
principal sum of __Unless and until the____________ and 00/100 ($_________)
(the "Principal Sum").
1. Interest Rate. This Note shall bear interest on the unpaid Principal
Sum, computed from the date of this Note until payment in full, at the
Applicable Federal Rate at the appropriate determination date for purposes of
Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended, but in
no case higher than the maximum rate allowed by law; the applicable interest
rate hereunder shall be 4.59% per annum.
2. Repayment of Principal and Interest. Maker shall repay the
Principal Sum, together with accrued interest as determined in Section 1 of
this Note, in lawful money of the United States of America, at the principal
office of the Company, as follows:
(a) Maker shall pay all interest accrued on the Principal Sum
annually on the anniversary date of this Note until such
time as the Principal Sum shall be repaid in its entirety by
Maker; and
(b) Maker shall repay the Principal Sum, together with
accrued interest thereon and all other amounts owing
in connection with this Note and/or the Security
Agreement (as defined below), in one lump sum upon
the earlier to occur of:
(i) the fifth (5th) anniversary of this Note, or
(ii) a sale of all of the shares of common stock of the
Company pledged by Maker (the "Shares") under the
terms of that certain Security and Pledge Agreement,
of even date herewith, by and between Maker and the
Company (the "Security Agreement"); provided,
however, that if some but not all of the Shares are
sold, then the amount of the Principal Sum due on the
date of each such sale shall be equal to the product
of (A) the Principal Sum and (B) the quotient equal to
the number of Shares sold divided by the total
number of Shares originally subject to the Security
Agreement, together with all accrued interest on such
amount.
3. Prepayment Allowed. This Note may be prepaid in whole or in part
at any time without penalty or premium and without notice of such prepayment,
provided that any partial payment shall be applied first against any interest
which has accrued to the date of the partial payment, and then to the
outstanding Principal Sum, if any amount of Principal Sum remains.
4. Default; Right To Accelerate Payment. Maker shall be in default of
this Note, and this Note shall become immediately due and payable in the full
amount of the Principal Sum then unpaid, together with all accrued and unpaid
interest thereon and all other amounts owing in connection with this Note and/or
the Security Agreement, at the option of the Holder of this Note, without notice
or demand, upon the occurrence of any of the following events:
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(a) Maker fails to pay timely any of the Principal Sum
under this Note or other amounts due under this Note
or the Security Agreement on the date the same
becomes due and payable or within five (5) business
days thereafter;
(b) Maker becomes insolvent in that either a petition is
filed by or against Maker under any bankruptcy,
reorganization, or moratorium law or any other law
for the relief of, or relating to, debtors, now or
hereafter in effect, or he/she is unable to pay
his/her debts as they fall due, or he/she makes any
assignment for the benefit of his/her creditors or
takes any other action to take advantage of any
insolvency laws;
(c) any default by Maker under the terms of the Security
Agreement which is not otherwise specified in
paragraphs (a) or (b) above; or
(d) Maker fails to perform any of his/her obligations
under the Note or the Security Agreement.
5. Governing Law. This Note shall be governed by and construed
and enforced in accordance with the laws of the State of Florida without
regard to any principles governing conflicts of laws.
6. Amendment. The provisions of this Note may not be amended,
supplemented, waived or changed orally, but only by a writing signed by
Maker and the Company making specific reference to this Note.
7. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or on the day sent by facsimile transmission if a true
and correct copy is sent the same day by registered or certified mail, postage
prepaid, or by dispatch by an internationally recognized express courier
service, or at such other address as any party may designate by ten (10) days'
advance written notice to the other party.
8. Severability. If any provision of this Note should be found
to be invalid or unenforceable, all other provisions shall nevertheless
remain in full force and effect to the maximum extent permitted by law.
9. Replacement. On receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Note and, in
the case of loss, theft or destruction, on delivery of an indemnity agreement
reasonably satisfactory in form and amount to the Company, or in the case of
mutilation, on surrender and cancellation of this Note, the undersigned, at
his/her expense, will execute and deliver, in lieu of this Note, a new Note of
like tenor.
10. Waiver. Maker waives presentment and demand for payment, notice
of dishonor, protest and notice of protest of this Note, and shall pay all
costs of collection when incurred, including, without limitation, reasonable
attorneys' fees, costs, and other expenses.
11. JURY WAIVER. IN ANY CIVIL ACTION, COUNTERCLAIM, OR PROCEEDING,
WHETHER AT LAW OR IN EQUITY, WHICH ARISES OUT OF, CONCERNS, OR RELATES TO THIS
NOTE, ANY AND ALL TRANSACTIONS CONTEMPLATED BY THIS NOTE, THE PERFORMANCE OF
THIS NOTE, OR THE RELATIONSHIP CREATED BY THIS NOTE, WHETHER SOUNDING IN
CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, TRIAL SHALL BE TO A COURT OF
COMPETENT JURISDICTION AND NOT TO A JURY. MAKER HEREBY IRREVOCABLY WAIVES ANY
RIGHT HE/SHE MAY HAVE TO A TRIAL BY JURY. ANY PARTY MAY FILE AN ORIGINAL
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COUNTERPART OR A COPY OF THIS NOTE WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF MAKER TO THIS AGREEMENT OF THE WAIVER OF HIS/HER RIGHT TO TRIAL BY
JURY. THE COMPANY HAS NOT MADE AND MAKER HAS NOT RELIED UPON ANY ORAL
REPRESENTATIONS TO OR BY ANY OTHER PARTY REGARDING THE ENFORCEABILITY
OF THIS PROVISION. MAKER HAS READ AND UNDERSTANDS THE EFFECT OF THIS JURY WAIVER
PROVISION.
12. ADVICE OF COUNSEL. MAKER ACKNOWLEDGES THAT HE/SHE HAS BEEN
ADVISED BY HIS OWN COUNSEL WITH RESPECT TO THIS NOTE, AND SPECIFICALLY WITH
RESPECT TO THE TERMS OF SECTION 16, WHICH CONCERNS THE WAIVER OF MAKER'S RIGHT
TO TRIAL BY JURY.
IN WITNESS WHEREOF, Maker has executed this Agreement effective as of
the date first above written.
MAKER:
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Signature
Name:
Address:
