ex107tos10710701292008.htm


    Exhibit
      10.7

     

     

    PROMISSORY
      NOTE

     

    
      	
              $200,000

            	
              As
                of January 18, 2008

            
	
              New
                York, New York

            	 
	 	 


    

    Open
      Acquisition Corp. (“Maker”) promises to pay to the order of Open Acq LLC
      (“Payee”) the principal sum of two hundred thousand dollars and 00/100
      ($200,000) in lawful money of the United States of America on the terms and
      conditions described below.

     

    1.           Principal.  The
      principal balance of this Note shall be repayable upon the earlier of (i) 60
      days following the closing date of Maker’s initial public offering or (ii)
      December 31, 2008.

     

    2.           Interest.  Interest
      shall accrue at a rate of 5% per annum compounded semi-annually.

     

    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, then to accrued interest 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 or
      accrued interest on 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 the affairs of Maker, 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) or 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 facsimile 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:

     

    Open
      Acquisition Corp.

    c/o
      Olshan Grundman Frome Rosenzweig & Wolosky LLP

    Park
      Avenue Tower, 65 East 55th Street,
      2nd
      Floor

    New
      York,
      New York 10022

    Attention:
      Howard M. Lorber

     

    


    
      
         

      

      
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    If
      to
      Payee:

     

    Open
      Acq
      LLC

    c/o
      Olshan Grundman Frome Rosenzweig & Wolosky LLP

    Park
      Avenue Tower, 65 East 55th Street,
      2nd
      Floor

    New
      York,
      New York 10022

    Attention:
      Michael S. Liebowitz


     

    Notice
      shall be deemed given on the earlier of (i) actual receipt by the receiving
      party, (ii) the date shown on a facsimile 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 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.

     

    [SIGNATURE
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    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.

     

    
      	 	
              OPEN
                ACQUISITION CORP.

            
	 	 
	 	
              By:

            	/s/
              Michael
              S. Liebowitz
	 	 	
              Name:

            	
              Michael
                S. Liebowitz

            
	 	 	
              Title:

            	
              President
                and Chief Executive Officer

            


    

    
 

    
      


      
        
           

        

        
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