EXHIBIT 10.8
SENIOR CONVERTIBLE PROMISSORY NOTE
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West ▇▇▇▇▇▇▇▇, New Jersey
FOR VALUE RECEIVED, the undersigned, LIGHTHOUSE LANDINGS, INC. a New Jersey
Corporation (the "Borrower" or the "Company") unconditionally promises to pay to
the order of _________________, c/o _______________, _________________,
_____________, _________ _______ (the "Lender"), the principal sum of
_____________________ ($________) DOLLARS (the "Indebtedness"), together with
interest thereon and all other amounts due hereunder, as follows:
1. COMMERCIAL LOAN. This Note evidences ▇▇▇▇▇▇▇▇'s indebtedness to Lender
for the Indebtedness, interest thereon and all other amounts due Lender
(collectively referred to as the "Loan"). The term "Loan Documents" means this
Note and any and all agreements and documents evidencing or relating to the
Loan, and all amendments and modifications thereto.
2. INTEREST RATE. Borrower shall pay Lender interest on the unpaid
principal balance of the Loan from the date hereof until the entire principal
balance hereunder is paid in full at the rate (calculated on the actual number
of days elapsed over a 360 day year) or ten (10%) percent per annum.
3. PAYMENT TERMS. All payments made hereunder shall be made on the due
date thereof, in immediately available funds and in lawful currency of the
United States of America. All payments made hereunder shall be made to Lender
at its offices set forth in this Note or at such other address as Lender shall
notify Borrower of in writing.
4. TERM. The Loan shall mature on _____________ (the "Maturity Date").
5. PAYMENTS.
▇. ▇▇▇▇▇▇▇▇ shall pay to Lender interest quarterly on the
outstanding principal balance of the Indebtedness with the first interest
payment being due _________________.
B. The entire unpaid principal of the Indebtedness, accrued interest
thereon and all other amounts relating thereto shall be due and shall be paid in
full by Borrower on the Maturity Date.
6. PREPAYMENT. The Loan may be prepaid in whole or in part, at any time,
without fee or penalty. In addition to any prepaid amount, Borrower shall also
pay to Lender any accrued and unpaid interest and all other sums due under the
terms of this Note at the time of such prepayment. All prepayments shall be
applied first to unpaid fees, unpaid interest and then to principal.
7. LATE FEE. If Lender does not receive the entire amount of any payment
required under this Note on the date it is due, Borrower shall pay a late fee of
five (5%) percent of that payment.
8. AFFIRMATIVE COVENANTS. Borrower covenants and agrees that so long as
there are any outstanding amounts due Lender, Borrower shall:
A. Financial Statements. Keep and maintain complete and accurate
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books and records; and permit representatives and/or agents of Lender full and
complete access to any or all of Borrower's financial records. Borrower shall
furnish to Lender the following financial information:
(i) Not later than forty-five (45) days after the end of
each calendar quarter, ▇▇▇▇▇▇▇▇'s consolidated financial statements, including
without limitation, statements of financial condition, income and cash flows,
all of the above certified as true, correct and complete by Borrower.
(ii) Not later than thirty (30) days after the end of each
month, a financial statement showing the operation of Borrower and revenues and
disbursements.
B. Preservation of Property; Insurance. Keep and maintain all of
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its property and assets in good order and repair, maintain insurance in amounts
sufficient to protect its assets and business operation.
9. NEGATIVE COVENANTS. So long as any sums are outstanding under the Loan
Documents, Borrower shall not, without the prior written consent of Lender
convey, lease, sell, transfer or assign any assets, including without
limitation, Borrower's interest in New York Fast Ferry.
10. EVENTS OF DEFAULT. The occurrence of any one of the following shall
constitute an Event of Default under this Note:
A. Breach. A breach by Borrower of any term, obligation, provision,
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covenant, representation or warranty arising under (i) this Note, including
without limitation, failure to make any payment when due hereunder, or under any
other Loan Document; or (ii) any present or future agreement with, or in favor
of, Lender including the failure to make any payment when due.
B. Bankruptcy; Insolvency. (i) Borrower commences any bankruptcy,
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reorganization, debt arrangement, or other case or proceeding under the United
States Bankruptcy Code or under any similar foreign, federal, state, or local
statute, or any dissolution or liquidation proceeding, or makes a general
assignment for the benefit of creditors, or takes any action for the purpose of
effecting any of the foregoing; (ii) any bankruptcy, reorganization, debt
arrangement or other case or proceeding under the United States Bankruptcy Code
or under any similar foreign, federal, state or local statute, or any
dissolution or liquidation proceeding, is involuntarily
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commenced against or in respect of Borrower or any order for relief is entered
in any such proceeding; (iii) the appointment, or the filing of a petition
seeking the appointment of a custodian, receiver, trustee, or liquidator for
▇▇▇▇▇▇▇▇, or any of its property, or the taking of possession of any part of the
property of Borrower at the instance of any governmental authority.
C. Material Misstatement. Any statement, representation or warranty
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made in or pursuant to this Note or any other Loan Document or to induce Lender
to enter into this Note shall prove to be untrue or misleading in any material
respect.
D. Entry of Judgment. The filing, entry or issuance of any
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judgment, execution, garnishment, attachment, distraint, or lien against
Borrower, or its property; the entry of an order enjoining or restraining
Borrower and/or restraining or seizing any property of Borrower.
E. Transfer of Assets. Borrower transfers or sells all or
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substantially all of its assets, without the prior written consent of Lender.
11. REMEDIES.
A. Acceleration of Liabilities; Rights of Lender. Upon the
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occurrence of an Event of Default described in Section 10 hereof the Loan shall
immediately become due and payable in full, all without protest, presentment,
demand or further notice of any kind to Borrower, all of which are expressly
waived. Upon and following an Event of Default, Lender, at its option, may
exercise any and all rights and remedies it has under this Note, the other Loan
Documents and under applicable law, including without limitation, the right to
charge and collect all default payments and penalties. Upon and following an
Event of Default hereunder, ▇▇▇▇▇▇ may proceed to protect and enforce ▇▇▇▇▇▇'s
rights under any Loan Document and/or under applicable law by action at law, in
equity, or other appropriate proceeding, including without limitation, an action
for specific performance to enforce or aid in the enforcement of any provision
contained herein or in any other Loan Document.
B. Remedies Cumulative; No Waiver. The rights, powers and remedies
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hereunder and under the other Loan Documents are cumulative and concurrent, and
are not exclusive of any other rights, powers or remedies available to Lender.
No failure or delay on the part of Lender in the exercise of any right, power or
remedy shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or remedy preclude any other or further exercise
thereof, or the exercise of any other right, power or remedy.
12. CONVERSION. The Lender shall have the right, at its sole and
exclusive option, to convert the outstanding Indebtedness to common shares (the
"Conversion Rights") of the Company at any time prior to Borrower making payment
and should such Conversion Rights be exercised, the Company shall issue such
shares to the Lender at the rate of one share for each One Dollar and Fifty
Cents ($1.50) of the Indebtedness then due and owing. The option and conversion
as provided herein shall be exercised by Lender issuing written notice to the
Borrower.
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13. DEFAULT AS TO REDEMPTION. Should Borrower default as to the payment
of the Indebtedness on the Maturity Date, the Conversion Rights of Lender as set
forth in Paragraph 12, shall be amended as follows:
▇. ▇▇▇▇▇▇ shall receive one (1) share of common stock of the Company
for each one dollar of the Indebtedness due and outstanding after the Maturity
Date.
B. Should the Indebtedness remain due and outstanding for a period
greater than ninety (90) days after the Maturity Date, then the Conversion
Rights shall be at the rate of one (1) share of common stock of the Company for
each fifty cents ($.50) of the Indebtedness outstanding.
C. In addition to the above, Borrower shall be obligated to issue to
Lender 15,000 one year warrants for each thirty (30) day period that the
Indebtedness remains outstanding after the Maturity Date, said warrants to be
issued on the first day of each thirty (30) day period and exercisable at
twenty-five cents ($.25) per share.
14. CHANGES. This Note can only be changed by an agreement in writing
signed by ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇.
15. NOTICES. Notices and communications under this Note shall be in
writing and shall be given by either (i) hand delivery, (ii) first class
(postage prepaid), or (iii) reliable overnight commercial courier (charges
prepaid) to the addresses listed in this Note. Notice shall be deemed to have
been given and received (a) if by and delivery, upon delivery, (b) if by mail,
three (3) calendar days after the date first deposited in the United States
mail; and (c) if by overnight courier, on the date scheduled for delivery. A
party may change its address by giving written notice to the other party as
specified herein.
16. INTEGRATION; AMENDMENT. This Note and the other Loan Documents,
constitute the sole agreement of the parties with respect to the subject matter
hereof and thereof and supersede all oral negotiations and prior writings with
respect to the subject matter hereof and thereof. No amendment of this Note,
and no waiver of any one or more of the provisions hereof shall be effective
unless set forth in writing and signed by the parties hereto.
17. SUCCESSORS AND ASSIGNS. This Note (i) shall be binding upon ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ and, where applicable, their respective heirs, executors,
administrators, successors and permitted assigns, and (ii) shall inure to the
benefit of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ and, where applicable, their respective heirs,
executors, administrators, successors and permitted assigns; provided, however,
that Borrower may not assign its rights or obligations hereunder or any interest
herein without the prior written consent of Lender, and any such assignment or
attempted assignment by the Borrower shall be void and of no effect with respect
to Lender.
18. SEVERABILITY AND CONSISTENCY. The illegality, unenforceability or
inconsistency of any provision of this Note or any instrument or agreement
required hereunder shall
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not in any way affect or impair the legality, enforceability or consistency of
the remaining provisions of this Note or any instrument or agreement required
hereunder. The Loan Documents are intended to be consistent. However, in the
event of any inconsistencies among any of the Loan Documents, such inconsistency
shall not affect the validity or enforceability of any Loan Document.
19. CONSENT TO JURISDICTION AND SERVICES OF PROCESS. Borrower hereby
consents and agrees that (i) any action or proceeding against it may be
commenced and maintained in any court within the State of New Jersey or in the
United States District Court for the District of New Jersey by service of
process on any Borrower, and (ii) the courts of the State of New Jersey and the
United States District Court for the District of New Jersey shall have
jurisdiction with respect to the subject matter hereof and the person of
Borrower and all collateral for the Liabilities. ▇▇▇▇▇▇▇▇ agrees that any
action brought by ▇▇▇▇▇▇▇▇ shall be commenced and maintained only in a court in
the federal judicial district or county in which Lender has its principal place
of business in New Jersey.
20. GOVERNING LAW. This Note shall be construed in accordance with and
governed by the substantive laws of the State of New Jersey without reference to
conflict of laws principles.
IN WITNESS WHEREOF, Borrower intending this Note to take effect as an
instrument under seal and intending to be legally bound, has caused these
presents to be duly executed the day and year first above written.
Attest: LIGHTHOUSE LANDINGS, INC. (Borrower)
_______________________________ By: ________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
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