PROMISSORY NOTE
$7,000,000.00 Fort Lauderdale, Florida
December 20, 2004
The undersigned, AGU ENTERTAINMENT CORP., a Delaware corporation
(hereinafter called "Maker" or "Borrower"), promises to pay to the order of
CHARLEY ZECHES, in her capacity as Trustee of LAKES HOLDING TRUST under
Agreement dated July 27, 2001 (hereinafter, together with any holder hereof,
called "Payee" or "Lender"), at her office at 3200 West Oakland Park Boulevard,
Fort Lauderdale, Florida 33311-1245, or at such other place as Payee may from
time to time designate, the principal sum of Seven Million and 00/100 Dollars
($7,000,000.00), together with interest thereon from the date hereof at the
interest rate set forth below, which sums are to be repaid as follows:
This Note shall bear interest at a fixed interest rate of six and one half
percent (6.5%) per annum. Payments of interest only shall be due and payable on
a monthly basis, with the first payment due and payable on the 1st day of
December, 2004, with monthly payments of interest due and payable in the 1st day
of each month thereafter until the 1st day of November, 2005 (the "Maturity
Date") on which date the entire principal balance of the Note, together with all
accrued and unpaid interest thereon and all other applicable changes should be
due and payable in full. A principal payment in the amount of Two Hundred Fifty
Thousand and 00/100 Dollars ($250,000.00) shall be due and payable on April 25,
2005.
Maker has deposited into an interest bearing escrow account established
with Payee (the "Tax and Interest Escrow Account") the amount of $150,000.00,
which shall be used to pay the next three monthly interest payments due under
this Note and the excess, if any, shall be held by Payee and applied to pay any
real estate taxes due in connection with the Real Property. Maker shall deposit
into the Tax and Interest Escrow Account, additional quarterly prepayments of
interest and estimated real estate taxes, to be applied as described in the
previous sentence, each in the amount of $145,000, on January 25, 2005, April
25, 2005 and August 25, 2005. Payee will remit from the Tax and Interest Escrow
Account, the payment of real estate taxes, however, prior thereto, Maker shall,
if the amount in such Tax and Interest Escrow Account allocated to real estate
taxes is deficient, pay the shortfall to Payee immediately upon receipt of
notice of such deficiency from Payee. All interest earned in the Tax and
Interest Escrow Account shall be allocated to the benefit of and be the sole
property of Maker. Maker has furnished Payee with its FEIN in connection with
the establishment of the Tax and Interest Escrow Account. The Tax and Interest
Escrow Account shall be held in accordance with the terms and provisions of that
certain Mortgage Deed and Security Agreement executed by Maker in favor of Payee
of even date herewith.
Interest charged under this Note shall be computed on the basis of a
360-day year for the actual number of days elapsed. All payments hereunder shall
be made in such coin or currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private debts,
and shall be applied first to interest and lawful charges and expenses then
accrued and then to principal.
In order to compensate Payee for loss and expense occasioned by handling
delinquent payments, which include, but are not limited to, the cost of
processing and collecting delinquencies, Maker shall pay to Payee, in addition
to any interest or other sums payable under this Note, a service charge equal to
five percent (5%) of the amount of any payment received by Payee ten (10) days
or more after the due date thereof.
The outstanding principal balance of this Note or any portion thereof
shall be convertible, at any time, at the sole option of Payee into the common
stock, no par value, of Maker (the "Conversion Shares") at a conversion price of
$2.50 per share. The Conversion Shares shall be restricted securities, in
accordance with applicable securities laws, and shall include "piggyback
registration" rights, in accordance with that certain Stock Purchase Agreement
by and between Maker and Payee of even date herewith. Additionally, upon five
(5) days prior written notice ("Prepayment Notice") to Payee, this Note may be
prepaid in full by Maker at any time during the term of this Note in the sole
discretion of Maker, without any prepayment penalty. Such Prepayment Notice
shall not preclude Payee's conversion option, as described above, if exercised
prior to the later of: (i) the date of Payee's receipt of such prepayment or
(ii) the date of Payee's receipt of the Prepayment Notice.
From and after the date upon which any payment of principal or interest
hereunder becomes due and payable (whether by acceleration or otherwise) if the
same is not timely paid, or upon the occurrence of any other default under this
Note or any default under any of the Loan Documents (as defined herein),
interest shall be payable on all sums outstanding hereunder at the lesser of:
(i) the maximum rate permitted by applicable law or (ii) 18% per annum (the
"Default Rate"), and shall be due and payable ON DEMAND. Any judgment obtained
by Payee against Maker as to any amounts due under this Note shall also bear
interest at the Default Rate.
This Note is secured by certain security documents encumbering the
property described therein, including, without limitation, the following:
A. Mortgage Deed and Security Agreement.
B. UCC-1 Financing Statements.
C. Associated affidavits, disclosures and miscellaneous loan
documentation.
This Note, all documents listed above, and any other documents executed in
connection with this Note, are hereinafter collectively referred to as the "Loan
Documents".
In the event of the continuation of any default in the payment of any
interest, principal or escrows under this Note for a period of ten (10) days
after such payment becomes due, or upon the occurrence of any other event of
default under the terms and provisions of this Note or any of the Loan
Documents, or any other documents delivered to Payee in connection with this
Note, or any other obligation of Maker to Payee, then Payee may declare the
entire unpaid principal amount outstanding hereunder, together with interest
accrued thereon and any other lawful charges accrued hereunder, immediately due
and payable.
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Maker and any endorsers, sureties, guarantors, and all others who are, or
at some future date may become, liable for the payments required hereunder grant
a continuing first lien security interest in and to, and authorize Payee, in its
sole discretion at any time after an event of default hereunder, in such order
as Payee may elect, to apply to the payment of obligations due and owing
hereunder, or to the payment of any and all indebtedness, liabilities and
obligations of such parties to Payee, whether now existing or hereafter created,
any and all monies, general or specific deposits, or collateral of whatsoever
nature of any of the above noted parties, now or hereafter in the possession of
Payee. All property described in this paragraph above, along with all property
secured by the Loan Documents, including all proceeds thereof and rights in
connection therewith, together with additions and substitutions, are hereinafter
collectively referred to as the "Collateral".
Additions to, releases, reductions, or exchanges of or substitutions for
the Collateral, payments on account of this Note, or increases of the same, or
other loans made partially or wholly upon the Collateral, may from time to time
be made without affecting the provisions of this Note or the liabilities of any
party hereto. If any of the Collateral is personal property, Payee shall
exercise reasonable care in the custody and preservation of the Collateral in
its possession, and shall be deemed to have exercised reasonable care if it
takes such action for that purpose as Maker shall reasonably request in writing,
but no omission to comply with any request of Maker shall of itself be deemed a
failure to exercise reasonable care. Payee shall not be bound to take any steps
necessary to preserve any rights in the Collateral against prior parties, and
Maker shall take all necessary steps for such purposes. Payee or its nominee
need not collect interest on or principal of any Collateral or give any notice
with respect thereto.
In the event Payee deems itself insecure or upon the happening of any of
the following events, each of which shall constitute a default hereunder, all
sums due hereunder shall thereupon or thereafter, at Payee's option, without
notice or demand, become immediately due and payable: (a) failure of any Obligor
(which term shall mean and include each Maker, endorser, surety, guarantor,
general partner of Maker or other party liable for payment of or pledging
collateral or security under this Note) to pay any sum due hereunder or due by
any Obligor to Payee under any other promissory note or under any security
instrument or written obligation of any kind now existing or hereafter created;
(b) occurrence of default (other than a default relating to any payment due
hereunder) under any of the Loan Documents or any other loan agreement or
security instrument now or hereafter in effect which, by its terms, covers this
Note or the indebtedness evidenced hereby, provided, however, if such default by
its nature can be cured, then Borrower shall have a period of 30 days ("Cure
Period") after Borrower receives notice of such default to cure the same and a
default shall not be deemed to exist during the Cure Period; provided further
that if Borrower commences to cure such failure during the Cure Period and is
diligently, and in good faith, attempting to effect such cure, the Cure Period
shall be extended for so long as Borrower shall diligently pursue completion of
such Cure, up to a maximum of 90 days; (c) filing of any petition under the
Bankruptcy Code or any similar federal or state statute by or against any
Obligor or the insolvency of any Obligor; (d) making of a general assignment by
any Obligor for the benefit of creditors, appointment of or taking possession by
a receiver, trustee or custodian or similar official for any Obligor or for any
assets of any such Obligor or institution by or against any Obligor of any kind
of insolvency proceedings or any proceeding for dissolution or liquidation of
any Obligor; (e) entry of a judgment against any Obligor, which results in the
filing of a lien against any of the collateral securing this Note, which lien is
not released or terminated within 30 days of the filing thereof; (f) material
falsity in any certificate, statement, representation, warranty or audit at any
time furnished to Payee by or on behalf of any Obligor pursuant to or in
connection with this Note, the Loan Documents or any loan agreement or security
agreements now or hereafter in effect which, by its terms, covers this Note or
the indebtedness evidenced hereby or otherwise including any omission to
disclose any substantial contingent or liquidated liabilities or any material
adverse change in any facts disclosed by any certificate, statement,
representation, warranty or audit furnished to Payee; (h) issuance of any writ
of attachment or writ of garnishment or filing of any lien against any
Collateral or the property of any Obligor; (i) taking of possession of any
material Collateral or of any substantial part of the property of any Obligor at
the instance of any governmental authority; (j) dissolution, termination,
merger, consolidation, or reorganization of any Obligor; (k) assignment or sale
by any Obligor of any equity in any Collateral securing payment of this Note
without the prior written consent of Payee; (l) cancellation of any guaranty
with respect hereto without the prior written consent of Payee; (m) the
determination by Payee that a material adverse change has occurred with respect
to the property encumbered by the Loan Documents (financial, physical or
otherwise) or in the financial condition of any Obligor from the condition set
forth in the most recent financial statements of such Obligor heretofore
furnished to Payee or from the condition of such Obligor as heretofore most
recently disclosed to Payee in any manner; or (n) occurrence of any default
under any guaranty executed in connection with this Note or under any obligation
of Maker or of any Obligor to Payee.
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Payee shall have all of the rights and remedies of a creditor, mortgagee
and secured party under all applicable law. Without limiting the generality of
the foregoing, upon the occurrence of any default hereunder or in the event
Payee, at any time, deems itself insecure, Payee may, at its option, and without
notice or demand (i) declare the entire unpaid principal and accrued interest
accelerated and due and payable at once, together with any and all other
liabilities of Maker or any of such liabilities selected by Payee; and (ii)
set-off against this Note all monies owed by Payee in any capacity to Maker,
whether or not due, and also set-off against all other liabilities of Maker to
Payee all monies owed by Payee in any capacity to Maker, and Payee shall be
deemed to have exercised such right of set-off, and to have made a charge
against any such money immediately upon the occurrence of such default, although
made or entered on the books subsequent thereto. To the extent that any of the
Collateral is personal property and Payee elects to proceed with respect to it
in accordance with the Uniform Commercial Code then, unless that collateral is
perishable or threatens to decline speedily in value, or is of a type
customarily sold on a recognized market, Payee will give Maker reasonable notice
of the time and place of any public or private sale thereof. The requirement of
reasonable notice shall be met if such notice is, at the option of Payee, hand
delivered, sent via expedited courier, or mailed, postage pre-paid to Maker, at
the address given to Payee by Maker, or at any other address shown on the
records of Payee at least five (5) days before the time of sale. Upon
disposition of any Collateral after the occurrence of any default hereunder,
Maker shall be and shall remain liable for any deficiency; and Payee shall
account to Maker for any surplus, but Payee shall have the right to apply all or
part of such surplus (or to hold the same as reserve) against any and all other
liabilities of Maker to Payee.
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Payee may, at any time, whether or not this Note is due: (i) pledge or
transfer this Note and its interest in the Collateral, and the pledgee or the
transferee shall, for all purposes, stand in the place of Payee and have all the
rights of Payee set forth herein; (ii) transfer the whole or any part of the
Collateral into the name of itself or its nominee; (iii) vote the Collateral;
(iv) notify Maker to make payment to Payee of any amounts due or to become due
thereon; (v) demand, sue for, collect, or make any compromise or settlement it
deems desirable with reference to the Collateral; (vi) take possession or
control of any proceeds of the Collateral; and (vii) exercise all other rights
necessary or required, in Payee's discretion, in order to protect its interests
hereunder.
In no event shall Payee be entitled to unearned or unaccrued interest or
other charges or rebates, except as may be authorized by law, and should any
interest or other charges paid by Maker or other parties liable for the payment
of this Note result in the computation or earning of interest in excess of the
maximum rate of interest that is legally permitted under applicable law, then
any and all such excess shall be and the same is hereby waived by Payee, and any
and all such excess shall be automatically credited against and reduce the
balance due under this indebtedness, and the portion of said excess which
exceeds the balance due under this indebtedness, shall be paid by Payee to Maker
and parties liable for the payment of this Note. Payee may, in determining the
maximum rate permitted under applicable law in effect from time to time, take
advantage of (i) the maximum rate of interest permitted under Florida law or
federal law, whichever is higher, including any laws regarding parity among
lenders; and (ii) any other law, rule or regulation in effect from time to time
available to Payee, which exempts Payee from any limit upon the rate of interest
it may charge, or grants to Payee the right to charge a higher rate of interest
than that permitted by Chapter 687, Florida Statutes. In determining whether or
not the interest paid or payable under any specific contingency exceeds the
highest lawful rate, Payee shall, to the maximum extent permitted under
applicable law (a) characterize any non-principal payment as an expense, fee or
premium rather than as interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) "spread" the total amount of interest throughout the
maximum term of the obligation so that the interest rate is uniform throughout
the entire term of the obligation.
The provisions of this Note and the Loan Documents shall be construed
according to the internal laws (and not the laws of conflicts) of the State of
Florida; except as set forth above, if Federal law would allow the payment of
interest hereunder at a higher maximum rate than would be applicable under
Florida law, in which case such Federal law shall apply to the determination of
the highest applicable lawful rate of interest hereunder.
No delay or omission on the part of Payee in exercising any right
hereunder shall operate as a waiver of such right or of any other rights under
this Note. Presentment, demand, protest, notice of dishonor and all other
notices are hereby waived by Maker. Maker promises and agrees to pay all costs
of collection and attorneys' fees, which shall include reasonable attorneys'
fees in connection with any suit, out of court, in trial, on appeal, in
bankruptcy proceedings or otherwise, incurred or paid by Payee in enforcing this
Note or preserving any right or interest of Payee set forth herein. Any notice
to Maker shall be sufficiently served for all purposes if placed in the mail,
postage prepaid, addressed to, or left upon the premises at the address of Maker
as provided to Payee.
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This Note is not assumable without Payee's prior written consent, which
consent may be granted by Payee or denied by Payee, in Payee's sole and absolute
discretion.
Maker agrees that Broward County, Florida shall be the proper venue for
any and all legal proceedings arising out of this Note or any of the Loan
Documents.
WAIVER OF TRIAL BY JURY. MAKER AND PAYEE HEREBY MUTUALLY, KNOWINGLY,
WILLINGLY AND VOLUNTARILY WAIVE THEIR RIGHT TO TRIAL BY JURY AND NO PARTY, NOR
ANY ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL REPRESENTATIVE OF THE PARTIES (ALL OF
WHOM ARE HEREINAFTER REFERRED TO AS THE "PARTIES") SHALL SEEK A JURY TRIAL IN
ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEEDING BASED
UPON OR ARISING OUT OF THIS NOTE OR THE LOAN DOCUMENTS, OR ANY INSTRUMENT
EVIDENCING, SECURING, OR RELATING TO THE INDEBTEDNESS AND OTHER OBLIGATIONS
EVIDENCED HEREBY OR ANY RELATED AGREEMENT OR INSTRUMENT, ANY OTHER COLLATERAL
FOR THE INDEBTEDNESS EVIDENCED HEREBY OR ANY COURSE OF ACTION, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS RELATING TO THE LOAN
OR TO THIS NOTE. THE PARTIES ALSO WAIVE ANY RIGHT TO CONSOLIDATE ANY ACTION IN
WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED
BY THE PARTIES. THE WAIVER CONTAINED HEREIN IS IRREVOCABLE, CONSTITUTES A
KNOWING AND VOLUNTARY WAIVER, AND SHALL BE SUBJECT TO NO EXCEPTIONS. PAYEE HAS
IN NO WAY AGREED WITH OR REPRESENTED TO MAKER OR ANY OTHER PARTY THAT THE
PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
THE PROPER FLORIDA DOCUMENTARY STAMP TAX HAS BEEN PAID AND THE PROPER
DOCUMENTARY STAMPS HAVE BEEN AFFIXED TO THE MORTGAGE DEED AND SECURITY AGREEMENT
SECURING THIS PROMISSORY NOTE.
AGU ENTERTAINMENT CORP., a
Delaware corporation
By: /s/ David Levy
-----------------------------
David Levy, President
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