brpa_ex1016





 






 Exhibit
10.16

 


 

 



PROMISSORY NOTE

 


 


	


$446,283.25

	


As of December 31, 2019






 


Big
Rock Partners Acquisition Corp. ("Maker") promises to pay to the
order of A/Z Property Partners, LLC or its successors or assigns
("Payee") the principal sum of four hundred and forty-six thousand,
two hundred and eighty-three Dollars and twenty-five Cents
($446,283.25) in lawful money of the United States of America, on
the terms and conditions described below. This note replaces and
supersedes the note as of Sept. 30, 2019

 


1. Principal.
The principal balance of this Note
shall be repayable on the consummation of the Maker's initial
merger, capital stock exchange, asset acquisition or other similar
business combination with one or more businesses or entities (a
"Business Combination"). Payee understands that if a Business
Combination is not consummated within the time period specified in
the Maker's amended and restated certificate of incorporation, this
Note will not be repaid and all amounts owed hereunder will be
forgiven except to the extent that the Maker has funds available to
it outside of its trust account established in connection with its
initial public offering ("Trust Account") after paying all other
fees and expenses of the Maker incurred prior to the date of such
failure to so consummate a Business Combination which are due and
payable.

 


2. Interest.
No interest shall accrue on the unpaid
principal balance of this Note.

 


3. Application of
Payments. All payments shall be
applied first to payment in
full of any costs incurred in the collection of any sum due under
this Note, including (without limitation) reasonable attorneys'
fees, then to the payment in full of any late charges and finally
to the reduction of the unpaid principal balance of this
Note.

 


4. Events of
Default. The following shall
constitute Events of Default:

 


(a)        Failure
to Make Required Payments. Failure by Maker to pay the principal of this Note
within five (5) business days following the date when
due.

 


(b)        Voluntary
Bankruptcy, Etc. The
commencement by Maker of a voluntary case under the Federal
Bankruptcy Code, as now constituted or hereafter amended, or any
other applicable federal or state bankruptcy, insolvency,
reorganization, rehabilitation or other similar law, or the consent
by it to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of Maker or for any substantial part of its
property, or the making by it of any assignment for the benefit of
creditors, or the failure of Maker generally to pay its debts as
such debts become due, or the taking of corporate action by Maker
in furtherance of any of the foregoing.

 


(c)        Involuntary
Bankruptcy, Etc. The entry of a
decree or order for relief by a court having jurisdiction in the
premises in respect of Maker in an involuntary case under the
Federal Bankruptcy Code, as now or hereafter constituted, or any
other applicable federal or state bankruptcy, insolvency or other
similar law, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of Maker or
for any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 60
consecutive days.

 


5. Remedies.

 


(a)
Upon the occurrence of an Event of Default specified in Section
4(a), Payee may, by written notice to Maker, declare this Note to
be due and payable, whereupon the principal amount of this Note,
and all other amounts payable thereunder, shall become immediately
due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived,
anything contained herein or in the documents evidencing the same
to the contrary notwithstanding.


 




 








 






(b)
Upon the occurrence of an Event of Default specified in Sections
4(b) and 4(c), the unpaid principal balance of, and all other sums
payable with regard to, this Note shall automatically and
immediately become due and payable, in all cases without any action
on the part of Payee.

 


6.             Waivers.
Maker and all endorsers and guarantors
of, and sureties for, this Note waive presentment for payment,
demand, notice of dishonor, protest, and notice of protest with
regard to the Note, all errors, defects and imperfections in any
proceedings instituted by Payee under the terms of this Note, and
all benefits that might accrue to Maker by virtue of any present or
future laws exempting any property, real or personal, or any part
of the proceeds arising from any sale of any such property, from
attachment, levy or sale under execution, or providing for any stay
of execution, exemption from civil process, or extension of time
for payment; and Maker agrees that any real estate that may be
levied upon pursuant to a judgment obtained by virtue hereof, on
any writ of execution issued hereon, may be sold upon any such writ
in whole or in part in any order desired by
Payee.

 


7.             Unconditional
Liability. Maker hereby waives
all notices in connection with the delivery, acceptance,
performance, default, or enforcement of the payment of this Note,
and agrees that its liability shall be unconditional, without
regard to the liability of any other party, and shall not be
affected in any manner by any indulgence, extension of time,
renewal, waiver or modification granted or consented to by Payee,
and consents to any and all extensions of time, renewals, waivers,
or modifications that may be granted by Payee with respect to the
payment or other provisions of this Note, and agrees that
additional makers, endorsers, guarantors, or sureties may become
parties hereto without notice to them or affecting their liability
hereunder.

 


8.             Notices.
Any notice called for hereunder shall
be deemed properly given if (i) sent by certified mail, return
receipt requested, (ii) personally delivered, (iii) dispatched by
any form of private or governmental express mail or delivery
service providing receipted delivery, (iv) sent by telefacsimile or
(v) sent by e-mail, to the following addresses or to such other
address as either party may designate by notice in accordance with
this Section:

 


If
to Maker:

 


Big
Rock Partners Acquisition Corp.

 


2645
N. Federal Highway


Suite
230


Delray
Beach, Florida 33483

 


If
to Payee:

 


Notice
shall be deemed given on the earlier of (i) actual receipt by the
receiving party, (ii) the date shown on a telefacsimile
transmission confirmation, (iii) the date on which an e-mail
transmission was received by the receiving party's on-line access
provider (iv) the date reflected on a signed delivery receipt, or
(vi) two (2) Business Days following tender of delivery or dispatch
by express mail or delivery service.

 


9.             Construction.
This Note shall be construed and
enforced in accordance with the domestic, internal law, but not the
law of conflict of laws, of the State of New
York.

 


10.             Severability.
Any provision contained in this Note
which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.




 








 






1 0. Trust Fund
Waiver. Payee hereby waives any
and all right, title, interest or claim of any kind in or to any
distribution of the funds held in the Trust Account ("Claim") and
agrees it will not seek recourse against the Trust Account for any
reason whatsoever, except in the event Maker consummates a Business
Combination.

 


IN
WITNESS WHEREOF, Maker, intending to be legally bound hereby, has
caused this Note to be duly executed the day and year first above
written.

 


BIG
ROCK PARTNERS ACQUISITION CORP.

 


By: /s/ Lori B.
Wittman  


Name:
Lori B. Wittman


Title:
Chief Financial Officer