TERM NOTE
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Amount: $350,000.00 Dated: October 1, 2001
FOR VALUE RECEIVED, LIGHTHOUSE FAST FERRY, INC., a New Jersey corporation,
and FAST FERRY I CORP. and FAST FERRY II CORP., New York corporations, located
at 000 Xxxxxxxxx Xxxxxx, Xxxxx 0X, Xxxx Xxxxxxxx, Xxx Xxxxxx 00000 (the
"Borrowers"), promise to pay to the order of XXXXX X. XXXXXXXX (the "Lender"),
000 Xxxxxxxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxx Xxxxxx 00000, or at such other place
as the Lender may direct, THREE HUNDRED AND FIFTY THOUSAND ($350,000.00)
DOLLARS, together with interest, as hereinafter provided.
1. TERM LOAN. This Note evidences a term loan in the amount of Three Hundred
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and Fifty Thousand ($350,000.00) Dollars (the "Term Loan"), made pursuant
to the terms and provisions of a certain Loan and Security Agreement dated
as of the date hereof between the Lender and the Borrowers (the "Loan
Agreement"). All defined terms used herein and not defined herein shall
have the meanings ascribed thereto in the Loan Agreement.
2. INTEREST RATE. The Borrowers shall pay the Lender interest on the unpaid
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principal balance of the Term Loan from the date of this Note at the rate
of eighteen (18%) percent per annum (calculated on the actual number of
days elapsed over a 360-day year). Interest will be calculated on the basis
of a year of 360 days for the actual number of days in each interest
period. In no event will the rate of interest hereunder exceed the maximum
rate allowed by law.
3. TERM. This Note shall mature on April 1, 2002 (the "Maturity Date").
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4. PAYMENTS OF PRINCIPAL AND INTEREST. Principal and interest shall be due
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and payable by the Borrowers in monthly installments in the respective
amounts and the times as set forth in Schedule "A" attached hereto and made
a part hereof. Payments of principal and interest shall commence to be paid
by the Borrowers on November 1, 2001, and on the first (1/st/) day of each
succeeding calendar month thereafter until the Maturity
Date, when the entire remaining unpaid amount of accrued interest and
principal outstanding is due. All payments shall be applied first to
interest and then to unpaid principal.
5. PREPAYMENT. Borrowers may prepay the Term Loan only after January 31, 2001
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and upon at least three (3) business days' prior written notice to Lender
(which notice shall be irrevocable). Lender shall be entitled to receive
one-half (1/2) of the interest which would have been payable had there been
no prepayment.
6. LATE FEE. If the entire amount of any of the aforesaid monthly payments of
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principal or interest or any sum required to be paid under the terms of this
Note is not paid within ten (10) days when due, the Lender, at his option,
and in additional to any other remedies available to him, may charge the
Borrowers a e fee" of three (3%) percent of the entire amount of each such
unpaid monthly payment and/or sum (the "Late Fee"), to reimburse the Lender
for the extra expense involved in handling delinquent payments. The
Borrowers acknowledge that (a) the Late Fee is a material inducement to the
Lender to make the Term Loan; (b) the Lender would not have made the Term
Loan in the absence of the agreement of the Borrowers to pay the Late Fee;
(c) such Late Fee represents compensation to the Lender for the increased
risk to the Lender that this Note will not be repaid by the Borrowers; and
(d) the Late Fee is not a penalty and represents a reasonable estimate of
(i) the cost to the Lender in allocating his resources (both personal and
financial) to the ongoing review, monitoring, administration and collection
of this Note and (ii) compensation to the Lender for losses resulting from
the Borrower's default that are difficult to ascertain.
7. COLLATERAL AND GUARANTIES. Payment of this Note is secured by the Loan
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Agreement and the other Loan Documents described therein.
8. DEFAULT. The Borrowers shall be in default under this Note upon the
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occurrence of any of the following events (each an "Event of Default"):
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a. Failure to make any payment required under this Note on the Maturity Date or
on the due date of any other payment, which failure remains unremedied ten
(10) days after written notice thereof shall have been given to Borrowers;
or
b. Any default under the terms and provisions of this Note, the Loan Agreement
or any of the other Loan Documents, and such default remains unremedied
thirty (30) days after written notice thereof shall have been given to
Borrowers.
Upon the happening of any Event of Default, or on the Maturity Date, the entire
amount of interest, principal and any other sums due under this Note shall
become due and payable immediately and interest shall accrue thereafter at a
rate of interest equal to twenty-four (24%) percent per annum (the "Default
Rate"). The Default Rate shall apply, without notice, immediately upon the
occurrence of any Event of Default and shall continue thereafter until all sums
then due and payable under this Note are paid in full. The Borrowers acknowledge
that (a) the Default Rate is a material inducement to the Lender to make the
Term Loan; (b) the Lender would not have made the Term Loan in the absence of
the Agreement of the Borrowers to pay the Default Rate upon the occurrence of
any Event of Default; (c) such Default Rate represents compensation to the
Lender for the increased risk to the Lender that his Note will not be repaid by
the Borrowers; and (d) the Default Rate is not a penalty and represents a
reasonable estimate of (i) the cost to the Lender in allocating its resources
(both personnel and financial) to the ongoing review, monitoring, administration
and collection of this Note and (ii) compensation to the Lender for losses
resulting from the Borrowers' default that are difficult to ascertain. Upon and
following an Event of Default, the Lender may proceed to protect and enforce the
Lender's rights under this Note and any Loan Document, and under applicable law,
by action at law, inequity, or other appropriate proceedings, including, without
limitation, an action for specific performance to enforce or aid in the
enforcement of any provision contained herein and in any other Loan Documents.
The Lender does not give up its rights upon an Event of Default as a result of
any delay in declaring or failing to declare an Event of Default.
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1. WAIVERS. The Borrowers hereby waive, demand, presentment for payment,
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protest, notice of dishonor and notice of protest, notice of intent to
accelerate and notice of acceleration, and specifically consent to, and
waive notice of, any renewals or extensions of this Note, whether made to
or in favor of the Borrowers or any other person or persons, and hereby
waive any defense by reason of extension of time for payment or other
indulgence granted by the Lender.
2. CHANGES. This Note can only be changed by an agreement, in writing, signed
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by the Borrowers and the Lender.
3. NOTE BINDING ON XXXXXXXXX' SUCCESSORS. All obligations under this Note are
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the unconditional obligations of the Borrowers and all who succeed to its
rights and interests, provided, however, that the Borrowers may not assign
its rights or obligations hereunder, or any interest herein, without the
prior written consent of the Lender, and any such assignment or attempted
assignment by the Borrowers shall be void and of no effect with respect to
the Lender.
4. GOVERNING LAW. This Note shall be construed according to the laws of the
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State of New Jersey and the Borrowers consent to the jurisdiction of the
courts of the State of New Jersey to determine any questions of fact or law
arising under this note.
5. ACTIONS INVOLVING THIS NOTE.
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a. If this Note is referred to any attorney for collection, the Borrowers
agree to pay all costs of collection, including court costs and
reasonable attorneys' fees.
b. The Borrowers hereby consent that any action or proceeding against the
Borrowers 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 or process on the Borrowers; and Borrowers agree
that 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 persons of Borrowers
and all collateral securing the obligations of Borrowers. Borrowers
agree not to assert any defense to any action or proceeding initiated
by
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the Lender based upon improper venue or inconvenient forum. The
Borrowers hereby consent to process being served in any suit, action
or proceeding of the nature referred to herein by mailing a copy
thereof by registered or certified mail, postage-prepaid, return
receipt requested, to it at its address set forth herein.
c. Borrowers hereby acknowledge and agree that this section is a specific
and material aspect of this Note and that the Lender would not extend
credit to Borrowers if the waivers set forth in this section were not
a part of this Note.
6. NO USURY. The Lender and the Borrowers intend to comply at all times with
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applicable usury laws. If at any such time such laws would ever render
usurious any amounts called for under this Note or the Loan Documents, then
it is in the Borrowers' and the Lender's express intention that such excess
amount shall be immediately credited on the principal balance of this Note
(or, if this Note has been fully paid, refunded by the Lender to the
Borrowers), and the provisions hereof shall be immediately reformed and the
amounts thereafter collectible under this Note reduced, without the
necessity of the execution of any further documents, so as to comply with
the then applicable law, but so as to permit the recovery of the fullest
amount otherwise called for under this Note. The Borrowers agree that in
determining whether or not any interest payable under this Note or the Loan
Documents exceeds the highest rate not prohibited by law, any non-principal
payment (except payments specifically stated in this Note or in the Loan
Documents to be "interest"), including, without limitation, prepayment fees
and late charges, shall, to the maximum extent not prohibited by law, be an
expense, fee, premium or penalty rather than interest.
7. RIGHTS CUMULATIVE. The rights and remedies of the Lender under this Note
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and the Loan Documents shall be cumulative and concurrent and, at the sole
discretion of the Lender, may be pursued singly, successively or together,
and exercised as often as the Lender shall desire. The failure of the
Lender to exercise any such right or remedy shall in no event be construed
as a waiver of release thereof. Nothing herein contained shall be construed
as limiting the Lender to the remedies mentioned above.
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8. SEVERABILITY. If any term, clause or provision of this Note shall be
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determined by any court to be illegal, invalid or unenforceable, the
illegality, invalidity or unenforceability of such term, clause or provision
shall not affect the legality, validity or enforceability of the remainder
thereof or of any other term, clause or provision hereof, and this Note
shall be construed and enforced as if such illegal, invalid or unenforceable
term, clause or provision had not been contained herein, and all covenants
obligations and agreements shall be enforceable to the full extent permitted
by law.
9. This Term Note is expressly subject to all the terms and conditions of that
certain Loan and Security Agreement dated simultaneously herewith. To the
extent of any inconsistencies between this Term Note and the Loan and
Security Agreement, the terms of the Loan and Security Agreement shall be
deemed to control.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Note as
of October ___, 2001.
Attest: LIGHTHOUSE FAST FERRY, INC.
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxxx Xxxxxxx
_______________________________ By:__________________________________
Xxxxxxx X. Xxxxxxxxx, Secretary Xxxxxxx Xxxxxxx, President
FAST FERRY I CORP.
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxxx Xxxxxxx
_______________________________ By:__________________________________
Xxxxxxx X. Xxxxxxxxx, Secretary Xxxxxxx Xxxxxxx, Chairman
FAST FERRY II CORP.
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxxx Xxxxxxx
_______________________________ By:__________________________________
Xxxxxxx X. Xxxxxxxxx, Secretary Xxxxxxx Xxxxxxx, Chairman
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