Exhibit 10.1
LOAN AGREEMENT
LOAN AGREEMENT dated July 25, 2005, (together with any amendments or
modifications hereto in effect from time to time, the "Agreement"), among ROBERT
JAFFEE, a resident of the Town of Hamden, County of New Haven, and State of
Connecticut (hereinafter referred to as "Jaffee" or "Lender"), AGU ENTERTAINMENT
CORP., a Delaware corporation having an office and principal place of business
in Lauderdale Lakes, County of Broward, and State of Florida (hereinafter
referred to as the "Borrower" or "Company"), and LES GARLAND, DAVID C. LEVY,
VICTORIA LEVY, MARC GELBERG, GREG CATINELLA AND JOHN W. POLING (hereinafter
referred to as "Directors").
Jaffee has agreed to make a loan to Borrower and Borrower has agreed to
accept the loan proceeds in the principal amount of Five Hundred Thousand
($500,000.00) Dollars (the "Loan"), on the terms and conditions set forth
herein. The Loan shall be evidenced by a Promissory Note of even date herewith
from Borrower to Jaffee (the "Note").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, Jaffee and Borrower agree as follows:
1. DEFINITIONS
1.1. "Borrower" means AGU Entertainment Corp.
1.2 "Directors" means Les Garland, David C. Levy, Marc Gelberg, Greg
Catinella and John W. Poling. Directors are executing this Agreement solely for
the purposes set forth in Paragraph 4.4, and have no personal liability on Note.
1.3. "Liabilities" means, collectively: (i) the repayment of all sums due
under the Note (and all extensions, renewals, replacements, substitutions,
amendments and modifications thereof) and the other Loan Documents, including,
without limitation, principal, interest, fees, late charges and expenses,
including attorneys' fees; and (ii) the performance of all terms, conditions and
covenants set forth in the Loan Documents.
1.4. "Loan Documents" means, collectively, the Agreement, the Promissory
Note, and a Warrant together with all amendments, modifications, renewals or
extensions thereof.
2. THE LOAN
2.1. Terms of Loan. Jaffee agrees to make the Loan to Borrower on the
terms and conditions hereinafter set forth. The Loan will bear interest at the
rate and will be repaid as set forth in the Note.
2.2. Use of Loan Proceeds. Borrower shall use the proceeds of the Loan
only for the following purpose: finance the expansion of Borrower's business,
the purchase of equipment in connection therewith and for general corporate
purposes.
2.3. Incorporation. All of the Loan Documents are hereby made a part of
this Agreement to the extent and with the same effect as if fully set forth
herein.
3. CONDITIONS PRECEDENT. Jaffee's obligations hereunder are conditioned upon the
satisfaction of each of the following conditions precedent:
3.1. Borrower shall have delivered or caused to be delivered to Jaffee
each of the Loan Documents, in form and substance satisfactory to Jaffee, duly
executed by Borrower and Directors.
4. THE TRANSACTION. The parties agree as follows:
4.1 Loan. Jaffee will lend to Borrower the sum of Five Hundred Thousand
($500,00.00) Dollars under the terms and provisions set forth in the Note.
4.2 Right of Conversion. Jaffee will have the right to convert the
principal and interest of the Note, or any portion thereof, into common stock of
the Borrower by notifying the Borrower of his intent to convert the Note. The
conversion price is $2.00 per share (the "Conversion Price"). In the event
Jaffee elects to convert all or any portion of this Note, Jaffee shall provide
the Borrower with written notice at least two days prior to conversion date. Any
partial conversion shall be treated as partial payment of the note. In the event
of a partial conversion, the conversion shall be treated as having first been a
conversion of accrued interest. The conversion may take place from time to time;
any balance of the principal and accrued interest remaining unconverted at the
maturity date of the Note shall, at the option of Jaffee, either be paid in full
or converted as herein set forth.
4.3 Inducement. As an inducement to Jaffee to enter into this agreement,
contemporaneously with the execution of this agreement, Borrower is executing
and delivering to Jaffee warrants under the terms of which Jaffee may purchase
up to 400,000 shares of the common stock of Borrower.
4.4. Further Inducement. As a further inducement to Jaffee to enter into
this agreement, Borrower agrees to obtain Officers and Directors' liability
insurance in an amount satisfactory to Jaffee. Upon the issuance of such policy,
Directors agree to appoint Jaffee or his representative to the Board of
Directors of Borrower to fill an existing vacancy left by Michael Solomon. The
Board of Directors agrees that so long as the Note shall remain unpaid or Jaffee
shall be a stockholder or warrant holder of the Company, the Board of Directors
shall recommend to the stockholders that Jaffee or his designee shall be
re-elected to the Board of Directors at any annual meeting that Jaffee's Board
seat comes up for re-election. In the event that Borrower shall fail to obtain
such insurance, then Jaffee shall have the option, in lieu of declaring a
default under the loan documents, of electing to have himself or his designee
attend all meetings of the directors and be given all information given to the
directors. The Directors and Officers of the Borrower will use their best
efforts to have Jaffee or his designee relected to the Board of Directors,
provided the terms of the Loan Agreement are in place.
4.5 Protection Against Dilution. (a) In the event at any time or from time
to time, all holders of Common Stock (or any other shares of stock or other
securities at that time receivable upon exercise of any rights) shall have
received, other or additional or less Common Stock without payment therefore
(whether through a dividend in stock or any class of stock of Company or any
other corporation, or through stock split, spin-off, split-off,
reclassification, combination of shares or otherwise) (a "Distribution"), then,
and in each such case, Jaffee upon the exercise of any right of conversion
and/or exercise of warrants, shall be entitled to receive, in addition to the
shares called for under the Note and/or Warrant, the shares or other securities
to which Holder would have been entitled in the Distribution if Holder had
exercised such rights immediately prior thereto. In case of the partial exercise
of the conversion of the Note or Warrant under such circumstances, the number of
shares of stock or other securities which would have been receivable upon the
full exercise of the conversion rights or Warrant, and the conversion price and
Exercise Price payable therefore shall be proportionately reduced.
(b) In case of any reorganization of Company, or any other corporation
the stock or securities of which are at the time deliverable on the
exercise of the conversion of the Note or exercise of the Warrant,
or in case Company or such other corporation shall consolidate with
or merge into another corporation, or convey all or substantially
all of its assets to another corporation, or liquidate, Jaffee, upon
the exercise thereof, shall be entitled to receive, in lieu of the
shares called for under conversion of the Note or under the Warrant,
the stock or other securities to which Jaffee would have been
entitled upon the consummation of such reorganization,
consolidation, merger, conveyance, or liquidation if Jaffee had
converted the Note or purchased the shares immediately prior
thereto; and in such case, the provisions of the agreement
concerning the conversion of the Note and the exercise of the
Warrant shall be applicable to the shares of stock or other
securities thereafter deliverable. In the case of the partial
conversion of the Note or partial exercise of the Warrant under such
circumstances, the number of shares of stock or other securities
which would have been receivable upon the full exercise of the right
of conversion or exercise of the Warrant, and the Exercise Price
payable therefore, shall be proportionately reduced.
4.6. Piggy-Back Registrations. If at any time prior to the payment of the
Note or the termination of the Warrants, the Company shall determine to prepare
and file with the Securities and Exchange Commission a registration statement
relating to an offering for its own account or the account of others under the
Securities Act of any of its equity securities, other than (i) an offering that
it being offered on a firm-commitment basis or (ii) an offering on Form S-4 or
Form S-8 (each as promulgated under the Securities Act) or their then
equivalents relating to equity securities to be issued solely in connection with
any acquisition of any entity or business or equity securities issuable in
connection with the stock option or other employee benefit plans, then the
Company shall send to Jaffee a written notice of such determination and, if
within ten days after the date of such notice, Jaffee shall so request in
writing, the Company shall include in such registration statement all or any
part of the securities underlying this Note Jaffee requests to be registered;
provided, that, subsequent to an effective registration the Company shall not be
required to maintain such registration statement as effective to the extent any
such securities hereunder are eligible for resale pursuant to Rule 144(k)
promulgated under the Securities Act or that are the subject of a then effective
Registration Statement.
4.7 Legal Fees and Expenses. Borrower will pay promptly, upon submission
of a statement, all reasonable legal fees and expenses incurred by Lender in
connection with this transaction and with the subsequent enforcement of all
rights and remedies under the Loan Documents.
4.8 Remedies. All remedies of Jaffee under the Loan Documents shall be
cumulative and concurrent, and they may be pursued singly, successively, or
together at the discretion of Jaffee. Failure to exercise a remedy shall not be
considered to be a waiver of the right to exercise that remedy in the future.
Jaffee shall be entitled to specific performance as to any of the rights
hereunder.
5. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower represents and warrants
as of the date hereof and, unless otherwise indicated, at all times hereafter
until the Liabilities are fully paid and performed, as follows:
5.1. Organization, Powers. Borrower (i) is a corporation duly organized,
validly existing, and in good standing under the laws of the state of its
organization, and is authorized to do business in each other jurisdiction
wherein its ownership of property or conduct of business legally requires such
authorization; (ii) has the power and authority to own its properties and assets
and to carry on its business as now being conducted and as now contemplated; and
(iii) has the power and authority to execute, deliver and perform all of its
obligations under each Loan Document to which it is a party.
5.2. Execution of Loan Documents. Each of the Loan Documents to which
Borrower is a party have been duly executed and delivered by Borrower.
Execution, delivery and performance of each of the Loan Documents to which
Borrower is a party will not: (i) violate any of its organizational documents,
provision of law, order of any court, agency or instrumentality of government,
or any provision of any indenture, agreement or other instrument to which it is
a party or by which it or any of its properties is bound; (ii) result in the
creation or imposition of any lien, charge or encumbrance of any nature, other
than the liens created by the Loan Documents; and (iii) require any
authorization, consent, approval, license, exemption of, or filing or
registration with, any court or governmental authority.
5.3. Obligations of Borrower. Each of the Loan Documents to which Borrower
is a party is the legal, valid and binding obligations of Borrower, enforceable
against Borrower in accordance with their terms, except as the same may be
limited by bankruptcy, insolvency, reorganization or other laws or equitable
principles relating to or affecting the enforcement of creditors' rights
generally. Borrower is obtaining the Loan for commercial purposes.
5.4. Litigation; Compliance with Laws. There is no action, suit, or
proceeding at law or in equity or by or before any governmental authority,
agency or other instrumentality now pending or, to the knowledge of Borrower,
threatened against or affecting Borrower or any of its properties or rights
which, if adversely determined, would materially impair or affect: (i) the value
of any collateral securing the Liabilities; (ii) Borrower's right to carry on
its business with respect to the Mortgaged premises substantially as now
conducted (and as now contemplated); (iii) its financial condition; or (iv) its
capacity to consummate and perform its obligations under the Loan Documents to
which it is a party. Borrower is not in violation of or in default with respect
to any order, writ, injunction, decree, or demand of any court or governmental
authority.
5.5. Payment of Taxes. Borrower has filed or caused to be filed all
federal, state and local tax returns which are required to be filed, and has
paid or caused to be paid all taxes as shown on said returns or on any
assessment received by it, to the extent that such taxes or assessments have
become due, except such that are contested in good faith by Borrower by
appropriate proceedings and for which adequate reserves have been established.
Borrower is not aware of any material unasserted claims for prior taxes against
it for which adequate reserves satisfactory to Jaffee have not been established.
5.6. No Defaults. Borrower is not in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained herein or in any material agreement or instrument to which it is a
party or by which it or any of its properties is bound, except as disclosed in
the Borrower's filings with the Securities and Exchange Commission.
5.7. Financial Statements. All financial statements delivered by Borrower
to Jaffee, are true, correct and complete in all material respects, fairly
represent Borrower's financial condition as of the date hereof and thereof, and
no information has been omitted which would make the information previously
furnished misleading or incorrect in any material respect.
5.8. No Material Adverse Change. As of the date hereof, there has been no
material adverse change in the financial condition, operations, affairs or
prospects of Borrower, or business of Borrower from the date of the most recent
financial statements provided by Borrower to Jaffee, except as disclosed in the
Borrower's filings with the Securities and Exchange Commission.
5.9. No Untrue Statements. No Loan Document or other document, certificate
or statement furnished to Jaffee by or on behalf of Borrower contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein and therein not misleading. It is
specifically understood by Borrower that all such statements, representations
and warranties shall be deemed to have been relied upon by Jaffee as an
inducement to make the Loan to Borrower.
5.10. Title to Property. Borrower has good and marketable title to all of
its properties and assets listed in the most recent financial statements
delivered to Jaffee on or prior to the date hereof, except as otherwise
expressly described in said financial statements, and except those properties
and assets disposed of since the date of said financial statements in the
ordinary course of business.
5.11. Corporate Stock. Borrower's corporate stock consists of 100,000,000
shares of common stock, par value $0.0001. per share and 10,000,000 shares of
preferred stock, par value $0.0001 per share. As of the date hereof, there are
25,134,909 shares of common stock and no shares of preferred stock outstanding.
All shares of common stock are of the same class. Directors and affiliates
collectively are the registered holders of more than fifty (50%) percent of the
outstanding common stock.
6. INVESTMENT REPRESENTATIONS OF JAFFEE. Lender hereby represents and warrants
to Borrower as follows:
(a) Lender is an accredited investor as the term is defined in Rule 501(a)
of the Regulation D of the Rules and Regulations of the Securities and Exchange
Commission as of the date hereof, a copy of which is attached hereto.
(b) Lender is sufficiently experienced in financial and business matters
to be capable of evaluating the merits and numerous and substantial risks of
Lender's highly speculative investment in the Company.
(c) Lender and its representative, if any, have evaluated the merits and
substantial risks of Lender's investment in the Company, including those risks
particular to Lender's personal situation, and have determined that this
investment is suitable for the Lender, despite its highly speculative nature.
Lender has a substantial net worth and adequate financial resources for an
investment of this character, and at this time Lender could bear a complete loss
of its investment. (d) Lender is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company,
its management, financial condition, business and operations, and substantial
risks associated with the investment in the Company to reach an informed and
knowledgeable decision to acquire the Securities.
(e) Lender is acquiring the Securities for investment, for Lender's own
account only and not with a view to, or for resale in connection with, any
"distribution" thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act").
(f) Lender acknowledges and understands that the Securities constitute
"restricted securities" under the Securities Act and have not been registered
under the Securities Act in reliance upon a specific exemption there from, which
exemption depends upon, among other things, the bona fide nature of Lender's
investment intent as expressed herein. Lender understands that, in the view of
the Securities and Exchange Commission, the statutory basis for such exemption
may be unavailable if Lender's representation was predicated solely upon a
present intention to hold these Securities for the minimum capital gains period
specified under tax statutes, for a deferred sale, for or until an increase or
decrease in the market price of the Securities, or for a period of one year or
any other fixed period in the future. Lender further understands that the
Securities must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is available.
Lender further acknowledges and understands that the Company is under no
obligation to register the Securities. Lender understands that the certificate
evidencing the Securities will be imprinted with a legend which prohibits the
transfer of the Securities unless they are registered or such registration is
not required in the opinion of counsel satisfactory to the Company and any other
legend required under applicable state securities laws.
(g) Lender is familiar with the provisions of Rule 144 promulgated under
the Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly from an issuer or an
affiliate thereof, in a non-public offering subject to the satisfaction of
certain conditions. The Securities may be resold in certain limited
circumstances subject to the provisions of Rule 144, which requires the resale
to occur not less than one year after the Securities were transferred by the
Company o ran affiliate of the Company within the meaning of Rule 144.
(h) Lender further understands that in the event all of the applicable
requirements of Rule 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A, or some other registration exemption will be
required; and that, notwithstanding the fact that Rule 144 is not exclusive, the
Staff of the Securities and Exchange Commission has expressed its opinion that
persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from registration
is available for such offers or sales, and that such persons and their
respective brokers who participate in such transactions do so at their own risk.
Lender understands that no assurances can be given that any such other
registration exemption will be available in such event.
7. COVENANTS
7.1. Mergers, Restructure. Borrower shall not merge into, consolidate with
or into, or sell, assign, lease or otherwise dispose of (whether in one
transaction or a series of transactions) all or substantially all of its assets
(now owned or hereafter acquired) to any person or entity, except as set forth
in the Loan Documents.
7.2. Maintenance of Business. Borrower shall: (i) continue to remain in
and operate substantially the same line of business presently engaged in by it;
(ii) not suspend transaction of its usual business; (iii) conduct its business
in an orderly, efficient and customary manner; (iv) comply with all laws,
ordinances, rules, regulations and requirements and shall maintain its business,
properties and assets necessary to conduct its business in compliance with all
applicable governmental laws, ordinances, approvals, rules, regulations and
requirements, including without limitation, zoning, sanitary, pollution,
building, environmental and safety laws and ordinances, and the rules and
regulations promulgated there under; and (v) not remove, demolish, materially
alter, discontinue the use of, sell, transfer, assign, hypothecate, pledge or
otherwise dispose of any part of its properties and assets necessary for the
continuance of its business, as presently conducted and as presently
contemplated, other than in the normal course of its business.
7.3. Books and Records. Borrower shall keep and maintain complete and
accurate books and records in accordance with generally accepted accounting
principles consistently applied, reflecting all of the financial affairs of
Borrower. Borrower shall permit representative of Jaffee to examine and audit
Borrower's (and its parent's and its subsidiaries') books and records, to
inspect the Mortgaged Premises, and to discuss Borrower's financial condition
and the contents of Borrower's financial statements with Borrower's accountants.
7.4. Financial Statements; Compliance Certificate. Borrower shall furnish
to Jaffee the following financial information at the time the same is furnished
to the Directors of the corporation.
(a) statements showing income, and operating expenses. Such
statements shall include balance sheets, income statements, and financial
statements for Borrower and any related entities;
(b) a true and complete copy of the federal tax returns, including
all schedules, of Borrowers;
(c) all other information and materials furnished to the directors.
7.5. Taxes and Other Charges. Borrower shall prepare and timely file all
federal, state and local tax returns required to be filed by Borrower and
promptly pay and discharge all taxes, assessments, water and sewer rents, and
other governmental charges, imposed upon Borrower or the Mortgaged Premises when
due, but in no event after interest or penalties commence to accrue thereon or
become a lien upon such property, except for those taxes, assessments, water and
sewer rents, and other governmental charges then being contested in good faith
by Borrower by appropriate proceedings.
8. EVENTS OF DEFAULT AND REMEDIES
8.1. Each of the following shall constitute a default (each, an "Event of
Default") hereunder:
8.1.1. Non-payment when due of any sum required to be paid to Jaffee
under any of the Loan Documents;
8.1.2. A breach by Borrower of any term, covenant, condition,
obligation or agreement under this Agreement;
8.1.3. Any representation or warranty made by Borrower in this
Agreement shall prove to be false, incorrect or misleading in any material
respect as of the date when made; or
8.1.4. An Event of Default under any of the other Loan Documents,
except as disclosed in the Borrower's filings with the Securities and Exchange
Commission.; or
8.2. Upon or at any time after the occurrence of an Event of Default,
Jaffee may exercise any right, power or remedy permitted by law or as set forth
in any of the Loan Documents.
9. CONTINUING ENFORCEMENT OF AGREEMENT.
If, after receipt of any payment of all or any part of the Liabilities,
Jaffee is compelled or agrees, for settlement purposes, to surrender such
payment to any person or entity for any reason (including, without limitation, a
determination that such payment is void or voidable as a preference or
fraudulent conveyance, an impermissible setoff, or a diversion of trust funds),
then this Agreement and the other Loan Documents shall continue in full force
and effect, and Borrower shall be liable for, and shall indemnify, defend and
hold harmless Jaffee with respect to the full amount so surrendered. The
provisions of the Section shall survive the termination of the Agreement and the
other Loan Documents and shall remain effective notwithstanding the payment of
the Liabilities, the cancellation of the Note or any other Loan Document, the
release of any security interest, lien or encumbrance securing the Liabilities
or any other action which Jaffee may have taken in reliance upon its receipt of
such payment. Any cancellation, release or other such action by Jaffee shall be
deemed to have been conditioned upon any payment of the Liabilities having
become final and irrevocable.
10. MISCELLANEOUS.
10.1. Integration. This Agreement and the other Loan Documents constitute
the sole agreement of the parties with respect to the transaction contemplated
hereby and supersede all oral negotiations and prior writings with respect
thereto.
10.2. Attorneys' Fees and Expenses. If Jaffee retains the services of
counsel by reason of a claim of a default or an Event of Default hereunder or
under any of the other Loan Documents, or on account of any matter involving
this Agreement, or for examination of matters subject to Jaffee's approval under
the Loan Documents, all costs of suit and collection and all reasonable
attorneys' fees (and/or allocated fees of Jaffee's in-house legal counsel) and
such other reasonable expenses so incurred by Jaffee shall forthwith, on demand,
become due and payable and shall be secured hereby.
10.3. No Implied Waiver. Jaffee shall not be deemed to have modified or
waived any of its rights or remedies hereunder unless such modification or
waiver is in writing and signed by Jaffee, and then only to the extent
specifically set forth therein. A waiver in one event shall not be construed as
continuing or as a waiver of or bar to such right or remedy on a subsequent
event.
10.4. Partial Invalidity. The invalidity or unenforceability of any one or
more provisions of this Agreement shall not render any other provisions herein
contained invalid or unenforceable. In lieu of any invalid or unenforceable
provision, there shall be added automatically a valid and enforceable provision
as similar in terms to such invalid or unenforceable provision as may be
possible.
10.5 Binding Effect. The covenants, conditions, waivers, releases and
agreements contained in this Agreement and in the other Loan Documents shall
bind, and the benefits thereof shall inure to, the parties hereto and their
respective heirs, executors, administrators, successors and assigns.
10.6. Modifications. This Agreement may not be supplemented, extended,
modified or terminated except by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification or discharge is
sought.
10.7. Notices. All notices and communications under this Agreement shall
be in writing and shall be given by either (a) hand-delivery, (b) first class
mail (postage prepaid), or (c) reliable overnight commercial courier (charges
prepaid) to the addresses listed in this Agreement. Notice shall be deemed to
have been given and received: (i) if by hand delivery, upon delivery; (ii) if by
mail, three (3) calendar days after the date first deposited in the United
States mail; and (iii) 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. Any notice required under this Agreement or any of
the other Loan Documents shall be sufficient if addressed to or delivered to
Borrower at 3200 West Oakland Park Blvd., Lauderdale Lakes, Florida 33311 or to
Jaffee at 1055 Ridge Road, Hamden, CT 06517. Either party may notify the other
of a change of address for notices.
10.8. Waiver of Jury Trial. BORROWER AND JAFFEE AGREE THAT ANY SUIT,
ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT BY JAFFEE OR
BORROWER ON OR WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
DEALINGS OF THE PARTIES WITH RESPECT HERETO OR THERETO, SHALL BE TRIED ONLY BY A
COURT AND NOT BY A JURY. JAFFEE AND BORROWER EACH HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND INTELLIGENTLY, AND WITH THE ADVICE OF THEIR RESPECTIVE
COUNSEL, WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR
PROCEEDING, FURTHER, BORROWER WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER,
IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE,
CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
BORROWER ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC AND MATERIAL
ASPECT OF THIS AGREEMENT AND THAT JAFFEE WOULD NOT EXTEND CREDIT TO BORROWER IF
THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF THIS AGREEMENT.
10.9 Prejudgment Remedy Waiver. BORROWER HEREBY REPRESENTS, COVENANTS AND
AGREES THAT THE PROCEEDS OF THE LOAN SHALL BE USED FOR GENERAL COMMERCIAL
PURPOSES. BORROWER HEREBY WAIVES ALL RIGHTS TO NOTICE AND PRIOR COURT HEARING OR
COURT ORDER WITH RESPECT TO ANY AND ALL PREJUDGMENT REMEDIES JAFFEE MAY EMPLOY
TO ENFORCE ITS RIGHTS AND REMEDIES HEREUNDER.
This Loan Agreement may be executed in any number of counterparts and delivered
by facsimile transmission, each of which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall constitute
one and the same instrument, and all facsimile signatures shall be deemed to be
originals for purposes of this instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have duly executed and delivered this Loan Agreement as of the day and year
first above written.
BORROWER:
AGU Entertainment Corp.
By: /s/ David Levy
Its: David Levy, President
JAFFEE:
/s/ Robert Jaffee
Robert Jaffee
DIRECTORS
The Directors and Victoria Levy are executing this Agreement solely for the
purposes set forth in Paragraph 4.4, and have no personal liability on Note or
Loan Agreement.
/s/ Les Garland
- ---------------------
Les Garland
/s/ David Levy
- ---------------------
David Levy
/s/ Greg Catinella
- ---------------------
Greg Catinella
/s/ Marc Gelberg
- ---------------------
Marc Gelberg
/s/ John W. Poling
- ---------------------
John W. Poling
/s/ Victoria Levy
- ---------------------
Victoria Levy