EXHIBIT 2.4
LOAN AGREEMENT
LOAN AGREEMENT (this "Agreement") entered as of November 3, 2005, THE
GRAND SHELL LANDING, INC., AZUR SHELL LANDING DEVELOPMENT II, LLC, AZUR SHELL
LANDING RESORT, INC., and AZUR INTERNATIONAL, INC. (collectively, `Borrowers"),
OMICRON MASTER TRUST, and the additional parties, identified on the signature
pages of this Agreement ("Lenders").
RECITALS
A. On even date herewith, the Lenders have loaned to the Borrowers Six
Million and No/100 Dollars ($6,000,000.00);
B. As partial consideration for such loan, Azur International, Inc.
("Azur") entered into a Securities Purchase Agreement with the Lenders pursuant
to which Azur agreed to issue certain securities to the Lenders;
C. The Lenders have requested and the Borrowers have agreed to deliver
certain security for their payment of the Loan, including deed of trust liens on
the real property of Azur Shell Landing Development II, LLC and The Grand Shell
Landing, Inc. and security interests in the personal property of the Borrowers;
D. This Agreement sets forth the obligations and rights of the parties
relating to that real estate and personal property and further conditions
related to the loan.
NOW, THEREFORE, for consideration paid, the parties agree that:
1. DEFINITIONS.
Each reference in this Agreement to the following terms shall be deemed to
have the following meanings:
Agent: Omicron Master Trust in its capacity as a Lender and on behalf of
the other Lender.
Azur: Azur International, Inc.
Azur Shell: Azur Shell Landing Development II, LLC, a Mississippi limited
liability company.
Azur Shell Property: The Real Estate, and all associated rights owned by
Azur Shell located in Gautier, Mississippi.
Collateral: The assets that secure the obligations of the Borrowers.
Deed of Trust: The Deed of Trust and Security Agreement executed by the
Borrowers in favor of Ann F. Corso, Trustee for the benefit of the Agent.
Environmental Laws: Any and all federal, state, and municipal laws,
whether now in force, or as amended or enacted in the future, pertaining to
health or the environment.
Grand Shell: The Grand Shell Landing, Inc.
Grand Shell Property: The Real Estate, and all the associated rights,
owned by Grand Shell located in Gautier, Mississippi.
Hazardous Materials: Any substance defined as a "hazardous substance,"
"hazardous material," or "hazardous waste" in the Environmental Laws, and any
other substance or compound prohibited or regulated under the Environmental
Laws.
Improvements: Any additions to a development of any of the Real Estate for
which any Borrower has applied for or received approvals from governmental
entities or that Borrowers have represented to Lenders as projected development
of the Real Estate, including without limitation construction of roads,
utilities, and dwellings.
Incipient Default: Any event which with notice or lapse of time, or both,
would become an event of default.
Lenders: The parties as defined in the first paragraph of this Agreement.
Loan: The advance of funds by the Lenders to the Borrowers and the
repayment obligation of the Borrowers, as described in the Notes.
Loan Documents: All of the documents executed by Borrowers in connection
with the Loan.
Notes: The promissory notes executed by the Borrowers in favor of the
Lenders in the aggregate amount of $6,000,000.00.
Real Estate: All land and buildings, and all appurtenant rights, owned by
both Grand Shell and Azur Shell, unless expressly excluded from this Agreement.
Resort: Azur Shell Landing Resort, Inc.
Securities Purchase Agreement: The agreement for the sale of certain
debentures of Azur to Lenders, of approximately this date, as amended from time
to time.
Securities Purchase Documents: All of the documents required to be
executed and delivered to Lenders by the Securities Purchase Agreement.
2. THE LOAN.
The Lenders will advance funds to borrowers (subject to the conditions
described below), in the aggregate principal amount of Six Million Dollars
($6,000,000.00), as evidenced by the Notes and in accordance with the Securities
Purchase Agreement, which incorporates the provisions of this agreement by
reference.
3. SECURITY FOR LOAN.
In addition to any documents described in the Securities Purchase
Agreement, the Loan and the payment and performance of the Borrowers'
obligations under the Notes and Azur's obligations under the Securities Purchase
Agreement, and all other sums due Lenders under the terms of any of the Loan
Documents or this Agreement, are secured by a Deed of Trust.
4. CONDITIONS PRECEDENT TO THE MAKING OF THE LOAN.
4.1 General Conditions. The obligation of the Lenders to make the Loan,
and to make any disbursements of the Loan, is subject to satisfaction of all
conditions in the Securities Purchase Agreement and the Notes and to each of the
following conditions:
4.1.1 There have been no Events of Default or Incipient Default
under this Agreement, the Securities Purchase Agreement or the Notes.
4.1.2 None of the Borrowers have experienced any material adverse
change in its financial condition or in its ability to perform its obligations
under this Agreement, the Notes, the Securities Purchase Agreement, or the Loan
Documents.
4.1.3 Borrowers have executed and delivered to Lenders all of the
Loan Documents.
4.2 Real Estate. The Agent has received the Deed of Trust.
4.2.1 Taxes. Evidence of payment of property taxes on the Real
Estate.
4.2.2 Insurance. Evidence of insurance for such insurance as Lenders
may require, as further described in section 7.1.
4.2.3 Title Insurance. Lenders' title insurance policy on the Azur
Shell Property and the Grand Shell Property in a form and with endorsements
approved by Lenders without any exceptions not approved by the Lenders'
attorneys, insuring the Lenders in the amount of $6,000,000.00.
4.2.4 Mechanic's Liens. Mechanic's lien waivers or the subordination
of such liens to the lien of the Lenders submitted by all parties who have the
right to claim such a lien on the Real Estate, or the applicable Borrowers'
affidavit that no labor has been performed or materials furnished and no
contracts to perform labor or furnish materials have been entered into in
connection with the Real Estate, except as disclosed in writing to and approved
by Lenders, in a form acceptable to Lenders.
4.2.5 Survey. Current surveys of the Real Estate, in a form
satisfactory to Lenders, and such certifications from the surveyor as Lenders
may require to delete the "Surveyor's exception" from the title insurance
policies on the Real Estate.
4.3 Entity Existence and Authorizations. The Lenders have received the
following evidence of Borrowers' authorization and existence:
4.3.1 For Grand Shell:
4.3.1.1 Certificate of Existence;
4.3.1.2 Certificates of Incumbency;
4.3.1.3 Certified copies of the Articles of Incorporation and
Bylaws; and
4.3.1.4 Resolution authorizing the execution and performance
of the Loan Documents.
4.3.2 For Azur Shell:
4.3.2.1 Certificate of Formation;
4.3.2.2 Certified Copy of Limited Liability Company Operating
Agreement, with all amendments;
4.3.2.3 Resolutions adopted by the managers authorizing the
execution and performance of the Loan Documents.
4.3.3 For Resort
4.3.3.1 Certificate of Existence;
4.3.3.2 Certificates of Incumbency;
4.3.3.3 Certified copies of the Articles of Incorporation and
Bylaws; and
4.3.3.4 Resolution authorizing the execution and performance
of the Loan Documents.
4.3.4 For Azur
4.3.4.1 Certificate of Existence;
4.3.4.2 Certificates of Incumbency;
4.3.4.3 Certified copies of the Articles of Incorporation and
Bylaws; and
4.3.4.4 Resolution authorizing the execution and performance
of the Loan Documents.
4.4 Opinion of Borrowers' Counsel. An opinion of Borrowers' counsel in
form and substance acceptable to the Lenders.
4.5 Other. Such other documents and schedules relating to the Real Estate,
and the Borrowers as the Lenders may request.
5. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lenders to make the Loan, the Borrowers makes the
following representations, warranties and promises:
5.1 Financial Condition. Subject to any limitations stated therein, all
financial data and all other documents which have been or will be furnished to
the Lenders to induce it to enter into this Agreement do, or will, fairly
represent the financial condition of the Borrowers and are, or will be,
accurate, true and complete in all material respects.
5.2 Financial Statements. The financial statements have been and will be
prepared in accordance with generally accepted accounting principles,
consistently applied and fairly and completely set forth the financial position
of Borrowers, as applicable, as of their date. Except as previously disclosed in
writing to the Lenders, since the date of the financial statements, there has
been no significant assignment of assets or material adverse change or
threatened change in the financial condition, operation or business prospects of
the Borrowers.
5.3 Entity Status.
5.3.1 Grand Shell. Grand Shell is a Mississippi corporation, duly
organized and existing under the laws of Mississippi, has complied with all laws
and regulations and has obtained all permits and approvals from all federal,
state and municipal authorities necessary to conduct its current business.
5.3.2 Azur Shell. Azur Shell is a limited liability company duly
organized and existing under the laws of the Mississippi, has complied with all
laws and regulations and has obtained all permits and approvals from all
federal, state and municipal authorities necessary to conduct its current
business.
5.3.3 Resort. Resort is a Mississippi corporation, duly organized
and existing under the laws of Mississippi, has complied with all laws and
regulations and has obtained all permits and approvals from all federal, state
and municipal authorities necessary to conduct its current business.
5.3.4 Azur. Azur is a Nevada corporation, duly organized and
existing under the laws of Nevada, has complied with all laws and regulations
and has obtained all permits and approvals from all federal, state and municipal
authorities necessary to conduct its current business.
5.4 Pending Litigation. There is not now pending or threatened against any
Borrower any litigation or any proceedings before any court or administrative
agency, the outcome of which might adversely affect the financial condition of
the Borrowers or the Collateral or their ability to perform their obligations
under this Agreement or the Note.
5.5 Approvals. No approval of any person, corporation, or other entity is
a prerequisite to the execution and delivery of any of the Loan Documents
submitted to the Lenders in connection with the Loan, or to ensure their
validity or enforceability.
5.6 Due Execution. The execution, delivery and performance of the Loan
Documents are within the power of Borrowers, have been duly authorized, are not
in contravention of law or any agreement or undertaking to which any Borrower is
a party or by which it is bound, and when executed will constitute the valid and
binding obligations of the Borrowers, and will be enforceable according to their
terms.
5.7 Title. Grand Shell and Azur Shell holds good and marketable title to
the Real Estate owned by it, free and clear of all mortgages, liens, and
encumbrances, except for the liens of Textron Financial Corporation and Olympic
Coast Investments, Inc. and those matters shown in the commitments for title
insurance insuring the Property and acceptable to the Lenders.
5.8 Compliance With Laws. The Real Estate is and will be in compliance
with all federal, state, and local laws, including, without limitation, all
zoning and land-use restrictions and all laws relating to use, storage, and
disposal of Hazardous Materials.
5.9 Trade Names. Grand Shell and Azur Shell have not used any trade names
or other entities in connection with its ownership of its Real Estate within the
past five years, except Shell Landing Development and Shell Landing.
6. USE OF FUNDS.
The proceeds of the Loan shall be used by the Borrowers as set forth in
the Securities Purchase Agreement.
7. COVENANTS OF BORROWERS.
7.1 Insurance.
7.1.1 Grand Shell and Azur Shell shall maintain insurance in full
force and effect and will deposit certificates with the Lenders for the
following:
7.1.1.1 Commercial general liability insurance, including
limited contractual liability and coverage limits of not less than One Million
Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00)
in the aggregate;
7.1.1.2 Fire and broad form coverage insurance;
7.1.1.3 Business interruption insurance;
7.1.1.4 All insurance required by any documents or agreements
related to the operation or development of any of the Real Estate, and by any
other Loan Documents.
All required insurance policies shall be issued by companies
satisfactory to Lenders; be in an amount sufficient to protect Lenders'
interest; shall show the applicable Borrower and the Agent as insured, as their
interest may appear, or, where appropriate, show the Agent as beneficiary, an
additional named insured and lender loss-payee; be evidenced by duplicate
original policies or ACORD 28 forms; and shall require thirty (30) days' prior
written notice to the Agent of any intended cancellation.
7.1.2 In the event Grand Shell or Azur Shell fail to provide
insurance as provided above, the Lenders may at its option provide such
insurance and charge the amount to the applicable Borrowers' account; such
action by the Lenders shall not constitute a waiver of the Lenders' right to
claim a default.
7.2 Additional Liens. Other than the liens described in Section 5 hereof,
Grand Shell and Azur Shell shall not create, assume, incur, or allow to be
created, assumed or incurred, any mortgage, lien, attachment or security
interest or other encumbrance of any kind in respect to any of the Real Estate
during the existence of the Loan, without Lenders' prior written approval. Any
such encumbrance shall be discharged or released within thirty (30) days, or
within such longer term as is reasonably required, provided that the applicable
Borrower (a) contests the encumbrance in good faith, (b) is taking all steps
reasonably necessary to contest the encumbrance, and (c) maintains adequate
reserves or insurance to discharge the encumbrance if its challenge is
unsuccessful.
7.3 Actions Against Borrowers. Borrowers shall notify the Lenders in
writing as soon as any one of them has knowledge of any pending or threatened
actions, suits, or proceedings at law, in equity, or before any governmental
authority, against or affecting any of the Borrowers or the Real Estate, or any
business activities conducted or planned to be conducted by any of the
Borrowers, or involving the validity or enforceability of the Loan Documents or
the priority of the liens created by any of the Loan Documents.
7.4 Tax Receipt. Grand Shell and Azur Shell shall, within thirty (30) days
from the date any taxes or any assessment on any of the Real Estate must be paid
without incurring a penalty, furnish to the Lenders a receipted tax or
assessment bill. All taxes and assessments on the Real Estate shall be paid on
or before the due date.
7.5 Tax Escrow. For the purpose of providing regularly for the prompt
payment of all taxes levied or assessed against the Real Estate, in the event
Grand Shell or Azur Shell fails to pay any taxes when due, the Lenders may
require the applicable Borrower to deposit with the Lenders, on the dates
installments under the Notes are payable, an amount equal to an estimate of such
taxes divided by the number of months to elapse prior to the date when such
taxes will become due and payable. The monies thus deposited with the Lenders
shall earn such interest as is required by law, and are to be held by the
Lenders as escrowee and disbursed by it in payment of such taxes as and when
due, upon Borrower's timely submission of a tax bill.
7.6 Additional Documents. The Borrowers shall execute any and all
documents required by the Lenders to confirm the Lenders' interest in the
Collateral.
7.7 Financial Statements and Records. In addition to such other financial
information as the Lenders may request, each of the Borrowers shall provide the
following to Lenders:
7.7.1 Tax Returns. The Borrowers shall provide the Lenders with
copies of all federal tax returns within one hundred twenty (120) days after the
close of its fiscal year.
7.7.2 Financial Records. Each of the Borrowers shall, during the
term of the Loan, keep accurate and complete records of its financial condition
and records of the operation of the Real Estate owned by it, if any, which
records shall be located at each Borrower's place of business as listed in this
agreement. Lenders and its agents shall have the right, upon reasonable notice
to Borrowers, to inspect, audit, check and make extracts from any copies of such
records relating to the Real Estate or to the general financial condition of the
Borrowers, and the Borrowers shall provide copies of any such records as Lenders
may request.
7.8 Expenses and Fees. In addition to all other amounts due under this
Agreement, the Loan Documents, and the Securities Purchase Agreement, Borrowers
shall pay, when specified below or upon demand, all costs and expenses of:
7.8.1 Preparing the Loan Documents by Lenders and Lenders'
attorneys, and all filing and recording fees;
7.8.2 Preserving and inspecting the Real Estate; inspecting and
auditing the financial records of the Borrowers; collecting all amounts due to
the Lenders under this Agreement, the Notes, the Securities Purchase Agreement,
or the Loan Documents, including, without limitation, filing fees and attorneys'
fees; and exercising any of its other rights and remedies under this Agreement:
7.8.3 Any appraisals, environmental site assessments, and other site
tests or investigations required or permitted by this Agreement;
7.8.4 The title search and title insurance policies required by this
Agreement.
7.9 Repairs. Grand Shell and Azur Shell will maintain the Real Estate
owned by it in good repair, working order, and condition, and will make all
needed and proper repairs, renewals, and replacements, and shall take all
actions necessary to comply with and maintain in good standing any permits and
approvals granted for the development and operation of the Real Estate.
7.10 Transfer of Interest in the Real Estate. Grand Shell and Azur Shell
shall not sell, assign, or lease any interest in the Real Estate, except for the
sales of Lots and the Block Sale Property (as such terms are defined in the
Notes).
7.11 Extraordinary Entity Actions. Except with the prior written consent
of Lenders, each of the Borrowers shall not:
7.11.1 Merge or consolidate or be merged or consolidated with or
into any other entity, or allow any change in ownership or control.
7.11.2 Sell or dispose of any of its assets except in the ordinary
and usual course of business and excluding the sales of the Lots and the Block
Sale Property.
7.11.3 Engage in any business other than the business in which it is
currently engaged or a business reasonably related to it.
7.11.4 Amend any of its articles of incorporation, bylaws,
certificates of formation, and operating agreements, or any other entity
formation and governance documents.
7.11.5 Issue any shares or membership interests.
8. AGENT FOR THE LENDERS
8.1 Appointment and Authorization of the Agent. Each Lender hereby
designates and appoints the Agent as its representative under this Agreement,
the Deed of Trust, the Security Agreement and the other Loan Documents and each
Lender hereby irrevocably authorizes the Agent to take such other action on its
behalf under the provisions of this Agreement and the Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Agent by the terms of this Agreement or any Loan Document, together with such
powers as are reasonably incidental thereto. The provisions of this Section 8.1
are solely for the benefit of the Agent and the Borrowers shall have no rights
as a third party beneficiary of any of the provisions contained herein. Any
provision to the contrary contained elsewhere in this Agreement or in any Loan
Document notwithstanding, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the Agent
have or be deemed to have any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any Loan Document or otherwise
exist against the Agent; it being expressly understood and agreed that the use
of the word "Agent" is for convenience only, that the Agent is merely the
representative of the Lenders, and only has the contractual duties set forth
herein. Except as expressly otherwise provided in this Agreement, the Agent
shall have and may use its sole discretion with respect to exercising or
refraining from exercising any discretionary rights or taking or refraining from
taking any actions that the Agent expressly is entitled to take or assert under
or pursuant to this Agreement or the Loan Documents.
8.2 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any Loan Documents by or through agents, employees or
attorneys in fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney in fact that it selects as
long as such selection was made without gross negligence or willful misconduct.
8.3 Liability of the Agent. None of the Agent, its affiliates, officers,
directors, employees, attorneys, or agents (collectively, the "Agent-Related
Persons") shall (a) be liable for any action taken or omitted to be taken by any
of them under or in connection with this Agreement or any Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct), or (b) be responsible in any manner to any of the Lenders for any
recital, statement, representation or warranty made by the Borrowers, contained
in this Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, this Agreement or any Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any Loan
Document, or for any failure of the Borrowers to perform its obligations
hereunder or thereunder.
8.4 Successor Agent. The Agent may resign as Agent upon 45 days notice to
the Lenders. If the Agent resigns under this Agreement, a majority-in-interest
of the Lenders, including the Agent (the "Required Lenders"), shall appoint a
successor Agent for the Lenders. If no successor Agent is appointed prior to the
effective date of the resignation of the Agent, the Agent may appoint, after
consulting with the Lenders, a successor Agent. If the Agent has materially
breached or failed to perform any material provision of this Agreement or of
applicable law, the Lenders may agree in writing to remove and replace the Agent
with a successor Agent from among the Lenders. In any such event, upon the
acceptance of its appointment as successor Agent hereunder, such successor Agent
shall succeed to all the rights, powers, and duties of the retiring Agent and
the term "Agent" shall mean such successor Agent and the retiring Agent's
appointment, powers, and duties as the Agent shall be terminated.
8.5 Exercise of Remedies. The Lenders hereby authorize the Agent to
exercise on their behalf all rights and remedies available under the Loan
Documents or available law, including but not limited to the foreclosure of the
Real Estate.
8.6 Applications of Payments. Any amounts collected by the Agent
hereunder, whether principal or interest payments or proceeds in payment of the
Loan, shall be paid to each Lender according to its pro-rata share.
9. EVENTS OF DEFAULT AND REMEDIES.
9.1 Events of Default. Borrowers shall be in default under this Agreement
upon the occurrence of any one or more of the following events:
9.1.1 Any Borrower fails to make any payment due on the Notes, this
Agreement, or any of the Loan Documents, as due and prior to the expiration of
any applicable grace period.
9.1.2 Any Borrower fails to comply with any of the other covenants
or provisions of this Agreement, the Notes, the Securities Purchase Agreement,
the Loan Documents, or any other document delivered in connection with the Loan.
9.1.3 Any representation or warranty made in this Agreement, or any
Loan Documents, or in any report, certificate, financial statement or other
instrument furnished in connection with this Agreement or the Loan is false or
misleading in any material respect.
9.1.4 A receiver or trustee of the property of any of the Borrowers
is appointed, or a Borrower files or have filed against it a petition under any
of the provisions of the bankruptcy law or any similar law, state or federal,
that is not dismissed or discharged within sixty (60) days, or makes an
assignment for the benefit of creditors.
9.1.5 Any Real Estate is found to contain Hazardous Waste, or an
environmental lien under Mississippi law is placed on the Real Estate, unless
Borrowers provide evidence acceptable to Lenders of their ability to remediate
or remove the Hazardous Waste and Borrowers diligently undertake and complete
within a reasonable time removal or remediation of the Hazardous Waste in
accordance with the requirements of Mississippi Department of Environmental
Quality.
9.1.6 Any of the Real Estate is materially injured or destroyed by
fire or other casualty, and Lenders reasonably determines that the available
insurance proceeds are not sufficient to restore the Real Estate to its original
condition, or the Real Estate or any material portion of the Real Estate is
taken by eminent domain and the Real Estate cannot be used by the Borrowers for
its original purpose.
9.2 Lenders' Rights on Default. Upon the occurrence of any one or more of
the Events of Default, and at any time thereafter:
9.2.1 Acceleration of Debt. Any and all indebtedness of the
Borrowers to the Lenders shall, at the Agent's option, become immediately due
and payable, without presentment, demand, protest or notice of any kind, all of
such being hereby expressly waived by the Borrowers.
9.2.2 Other Remedies. The Agent may pursue any and all other
remedies granted it under this Agreement, the Securities Purchase Agreement, and
the other Loan Documents, including without limitation the right to occupy and
operate the Real Estate, to collect the proceeds therefrom, to pay expenses of
maintenance and operation of the Real Estate or to foreclosure on its lien on
the Real Estate. All payments made or liabilities incurred by Lenders hereunder
of any kind shall be secured by the Loan Documents and the Securities Purchase
Documents, shall be paid by the Borrowers to Lenders on demand, and shall bear
interest at the highest rate stipulated in the Notes until the date of
repayment.
9.3 Insurance and Condemnation Procedure. If one of the events set forth
in subsection 9.1.6 occurs, the insurance proceeds or condemnation award, as the
case may be, shall be paid to the Lenders alone, to be applied by the Agent to
the expenses related to protecting its Collateral, if applicable, and then
pro-rata to the Lenders. The Agent is authorized, without the consent of the
Borrowers, to adjust and compromise any such loss or condemnation award, collect
and receipt for any such proceeds or awards and endorse the Borrowers' name on
any check or draft in payment thereof.
9.4 Remedies Not Exclusive. The Lenders' rights and remedies under this
Agreement are cumulative. The Agent's or the Lenders' failure to exercise any
remedy shall not constitute a waiver of its other remedies hereunder or a waiver
of the default or any subsequent event of default.
10. GENERAL CONDITIONS.
10.1 Inspection. The Lenders shall have the right to inspect the Real
Estate at all reasonable times. All inspections made by the Lenders or its
agents are made solely to ascertain the condition of the Real Estate for the
benefit of the Lenders, and the Borrowers agree that the Lenders does not
thereby assume additional responsibilities, and agrees that it will indemnify
and hold the Lenders harmless from any liability asserted by reason of such
inspections.
10.2 Notices. Except as expressly provided, all required notices between
the Borrowers and the Lenders or to any of the following shall be in writing and
shall be deemed to have been properly given when sent by certified or registered
mail, return receipt requested, postage prepaid, or by Federal Express or other
reputable courier service providing receipted delivery, addressed as set forth
in the Security Purchase Documents.
10.3 Waiver. The waiver of any of the terms and conditions of this
Agreement shall not be deemed to constitute a subsequent waiver of the same or
any other terms or condition.
10.4 Complete Agreement. This Agreement, together with the Loan Documents,
the Securities Purchase Agreement, and the Securities Purchase Documents,
constitute the complete understanding between the parties and may not be changed
except by an agreement in writing signed by the parties.
10.5 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the Governing Law for the Securities Purchase
Agreement, except that any rights and remedies as to the Real Estate granted by
this Agreement or the Loan Documents shall be construed with and in accordance
with the laws of the State of Mississippi.
10.6 Waiver of Jury Trial. The parties waive and elect not to assert their
right to trial by jury on any issues triable by a jury on any issue triable by a
jury arising under this Agreement or any of the Loan Documents.
10.7 Assurance of Execution and Delivery of Additional Instruments. The
Borrowers agree to execute and deliver, or to cause to be executed and
delivered, to the Lenders all such further instruments, and to do or cause to be
done all such further acts and things, as the Lenders may reasonably request to
achieve the purposes of this Agreement and the Loan Documents.
10.8 Counterparts. This Agreement, and all of the Loan Documents, may be
executed in any number of counterparts, with the same effect as if all of the
signatures on such counterparts appeared on one document, and each such
counterpart shall be deemed to be an original document.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date written above.
THE GRAND SHELL LANDING, INC.
By: /s/ Carl Crawford
-----------------------------------
Title: Manager
-----------------------------------
AZUR SHELL LANDING DEVELOPMENT II, LLC
By: /s/Carl Crawford
-----------------------------------
Title: Manager
-----------------------------------
By:
-----------------------------------
Title:
-----------------------------------
AZUR INTERNATIONAL, INC.
By: /s/ Donald Winfrey
-----------------------------------
Title: President
-----------------------------------
AZUR SHELL LANDING RESORT, INC.
By: /s/ Donald Winfrey
-----------------------------------
Title: Vice President
-----------------------------------
OMICRON MASTER TRUST
By: /s/ Bruce Bernstein
-----------------------------------
Title: Managing Partner
-----------------------------------
THE ROBERT AND KATHLEEN COHEN FAMILY TRUST
By: /s/ Robert B. Cohen
-----------------------------------
Title: Trustor and Trustee
-----------------------------------
CRANSHIRE CAPITAL LTD.
DOWNSVIEW CAPITAL, GENERAL PARTNER
By: /s/ Mitchell Kapin
-----------------------------------
Title: President
-----------------------------------
IROQUOIS MASTER FUND, LTD.
By: /s/ Joshua Silverman
-----------------------------------
Title: Authorized Signatory
-----------------------------------
CCA (US) Fund I, C.P.
By: Crestview Capital Advisors, LLC,
General Partner
By: /s/ Westin Lovy
-----------------------------------
Title: Director