EXHIBIT 10.45
THE SECURITIES REPRESENTED BY THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY APPLICABLE STATE, AND MAY
NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS MADE
IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES EVIDENCE
SATISFACTORY TO IT WHICH MAY INCLUDE AN OPINION OF COUNSEL FOR THE HOLDER OF
THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY STATING THAT SUCH SALE,
TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AND IN EACH CASE SUCH TRANSACTION IS REGISTERED OR
EXEMPT UNDER THE SECURITIES LAWS OF ALL APPLICABLE STATES.
SECURED PROMISSORY NOTE
$_____________ August 1, 2003
FOR VALUE RECEIVED, the undersigned, BRIAZZ, Inc., a Washington corporation
(the "Company"), promises to pay to the order of __________________ ("Holder"),
at such place as may be designated from time to time in writing by Holder, the
principal sum of ______________________ ($____________) in lawful money of the
United States of America.
This Note is being issued in connection with a certain Note Purchase
Agreement dated May 28, 2003, as amended on August 1, 2003 (such Note Purchase
Agreement, as so amended, and as it may be supplemented, amended, restated
otherwise modified from time to time, being the "Purchase Agreement") by and
among the Company and certain investors, including Holder. Capitalized terms
used herein without definition shall have the meanings given such terms in the
Purchase Agreement.
1. Payment Terms. The unpaid principal balance of this Promissory Note
(this "Note") shall bear simple interest beginning on the date hereof at the
rate of 2.1%, which is LIBOR plus one percent per annum (360-day year, actual
days elapsed), payable on the first day of each calendar quarter beginning
October 1, 2003. Unless paid (as described in Section 4 hereof) on or prior
thereto, the unpaid principal balance of, and all unpaid and accrued interest of
this Note shall be due and payable on the second anniversary of the date hereof
(such date, the "Maturity Date"). "LIBOR" is the rate for one month U.S. dollar
deposits as reported on Telerate page 3750 as of 11:00 a.m., London time, on the
second business prior to the date hereof, or if such day is not a London
business day, then the immediately preceding London business day (or if not so
reported, then as determined by Holder from another recognized source or
interbank quotation.
2. Security Interest. Pursuant to the terms of the Security Agreement
attached as Exhibit D to the Purchase Agreement, the Company has granted to
Holder a security interest in
all of the Company's assets (of every nature and type whatsoever), to secure the
payment of all of the Company's indebtedness hereunder.
3. Event of Default. Upon the occurrence of an Event of Default (as defined
in the Purchase Agreement), Holder shall have the rights and remedies described
in the Purchase Agreement and Sections 6 and 7 of the Purchase Agreement are
incorporated herein by reference.
4. Prepayment. The Company may prepay this Note only in accordance with
terms set forth in the Purchase Agreement.
5. Representations and Warranties. The respective representations and
warranties of the Company and Holder set forth in the Purchase Agreement are
incorporated herein by reference.
6. Successors and Assigns. Subject to the restrictions on transfer
described in Section 7 below, the rights and obligations of the Company and
Holder shall be binding upon and benefit the successors, assigns, heirs,
administrators and transferees of the parties.
7. Transfer. Holder (and any Permitted Transferee) (i) acknowledges that
this Note is non-transferable without the consent of the Company, except that
Holder (and any Permitted Transferee) shall be permitted to transfer this Note,
in the case of a Holder that is an entity, to its partners or members or to an
entity affiliated with such Holder, partner or member, or in the case of a
Holder that is a natural person, for estate planning purposes, provided that
each transferee is an "accredited investor" as defined in Rule 501(a) of
Regulation D under the Securities Act of 1933, as amended (the "Act") and the
Company receives evidence satisfactory to it (which may include an opinion of
counsel reasonably satisfactory to the Company) that such transfer will not
result in a violation of the Act or any state securities laws.
8. Waiver and Amendment. Except as otherwise provided in the Purchase
Agreement or the Security Agreement, any provision of this Note may be amended,
waived or modified only by an instrument in writing signed by the Company and
Holder.
9. Assignment by the Company. Except as otherwise provided in the Purchase
Agreement or the Security Agreement, neither this Note nor any of the rights,
interests or obligations hereunder may be assigned, by operation of law or
otherwise, in whole or in part, by the Company without the prior written consent
of Holder.
10. Notices. Notices and communications hereunder shall be given in
accordance with the Purchase Agreement.
11. Governing Law. The Note shall be enforced and construed in accordance
with the laws of the State of New York, excluding that body of law concerning
conflict of laws. All actions and proceedings arising out of or relating to this
Note shall be heard and determined exclusively in any New York state or federal
court sitting in the Borough of Manhattan of The City of New York. The parties
hereto hereby (a) submit to the exclusive jurisdiction of any state or federal
court sitting in the Borough of Manhattan of The City of New York for the
purpose of any action arising out of or relating to this Note brought by any
party hereto, and (b) irrevocably
waive, and agree not to assert by way of motion, defense, or otherwise, in any
such action, any claim that it is not subject personally to the jurisdiction of
the above-named courts, that its property is exempt or immune from attachment or
execution, that the action is brought in an inconvenient forum, that the venue
of the action is improper, or that this Note or the transactions contemplated by
this Note may not be enforced in or by any of the above-named courts.
12. Waiver of Jury Trial. Each of the parties hereto hereby waives to the
fullest extent permitted by applicable law any right it may have to a trial by
jury with respect to any litigation directly or indirectly arising out of, under
or in connection with this Note or the transactions contemplated by the Purchase
Agreement. Each of the parties hereto (a) certifies that no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce
that foregoing waiver and (b) acknowledges that it and the other party hereto
have been induced to enter into this Note and the transactions contemplated by
this Note, as applicable, by, among other things, the mutual waivers and
certifications in this Section 12.
13. Miscellaneous.
(a) No delay or omission on the part of Holder in exercising any right
under this Note shall operate as a waiver of such right or of any other right
under this Note.
(b) The Company hereby waives presentment for payment, demand, notice
of demand and of dishonor and non-payment of this Note, protest and notice of
protest, diligence in collecting, and the bringing of suit against any other
party. The pleading of any statute of limitations as a defense to any demand
against the Company, any endorsers, guarantors and sureties of this Note is
expressly waived by such parties to the extent permitted by law.
(c) Any payment hereunder shall be made in lawful tender of the United
States and shall first be applied to any collection costs, then against accrued
and unpaid interest hereunder and then against the outstanding principal balance
of this Note.
IN WITNESS WHEREOF, the Company has caused this Note to be issued as of the
date first written above.
BRIAZZ, INC.,
a Washington corporation
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
SIGNATURE PAGE TO ______________ SECURED PROMISSORY NOTE