Exhibit 10.1
AGREEMENT FOR PURCHASE AND SALE
This Agreement for Purchase and Sale is made and entered into effective
as of September 10, 2004 (the "EFFECTIVE DATE") by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
in her capacity as Trustee of LAKES HOLDING TRUST U/A dated July 27, 2001 (the
"SELLER") and AGU ENTERTAINMENT CORP., a Colorado corporation ("BUYER").
R E C I T A L S:
A. Seller is the owner of fee simple title in and to an approximately
22 acre parcel of real property located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ Lakes, in Broward County, Florida, as more particularly described on
Exhibit "A" annexed hereto and made a part hereof (the "LAND"); and
B. Buyer wishes to purchase and Seller desires to sell to Buyer, the
Real Property (as defined below) in accordance with and subject to the terms,
conditions and provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the receipt and sufficiency of which is hereby acknowledged,
the parties do hereby agree as follows:
1. Recitals. The above set forth recitals are hereby incorporated by
reference as if restated in full herein.
2. Purchase and Sale of Real Property.
2.1 The Real Property to be sold by Seller to Buyer pursuant to
this Agreement consists of the following:
2.2 All that certain Land located in Broward County, Florida,
commonly known as ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
as more particularly described on Exhibit "A" annexed hereto and made a part
hereof, including, without limitation, all easements, if any, that benefit the
Land; all rights and appurtenances pertaining to the Land; all privileges,
rights, licenses and rights of way (excluding, however, all of the personal
property of any tenants thereon).
2.3 The buildings and improvements located upon the Land, including
without limitation the one-story building (the "BUILDING") located upon the
Land.
The foregoing is hereinafter collectively referred to as the "REAL PROPERTY".
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3. Purchase Price and Manner of Payment.
3.1 Purchase Price. The purchase price for the Real Property shall
be $8,500,000.00.
3.1.1 Manner of Payment. The Purchase Price shall be paid in the
following manner:
A. Buyer contemporaneous with the execution and delivery of this
Agreement shall make deposit (the "DEPOSIT") in the amount of $100,000 ($25,000
of which shall be non-refundable, except in the event of a material breach of
this Agreement by Seller) with Mombach, ▇▇▇▇▇ & ▇▇▇▇▇▇, P.A. (the "ESCROW
AGENT"), receipt of which shall be acknowledged by Escrow Agent's execution of
the Acknowledgment at the end of this Agreement. Notwithstanding the foregoing,
a $75,000 portion of the Deposit shall be refundable in accordance with the
provisions of Sections 5 and 13.2 hereof. The wire instructions of Escrow Agent
are attached as Exhibit "B". The Deposit shall be held by Escrow Agent in an
interest bearing account.
B. A portion of the Purchase Price in the amount of $650,000 shall
be paid by Buyer to Seller at closing by way of a wire transfer to such account
as Seller may designate.
C. A portion of Purchase Price in the amount of $750,000 shall be
paid by Buyer to Seller at closing by way of the transfer and delivery of
250,000 shares of the common stock, no par value, of Buyer (the "SHARES"). The
Shares shall be restricted securities, in accordance with applicable securities
laws, and shall include "piggyback registration" rights, in accordance with a
stock purchase agreement ("STOCK PURCHASE Agreement") in substantially the form
attached hereto as Exhibit "C".
D. The balance of the Purchase Price, shall be paid by Buyer at
closing by the execution and delivery of a promissory note ("PROMISSORY NOTE")
payable to Seller, in the original principal amount of $7,000,000 (subject to
any prorations as described in Section 7), in a form satisfactory to Seller, as
typically required by Florida institutional commercial lenders, which Promissory
Note shall be secured by a Mortgage Deed and Security Agreement ("MORTGAGE") and
UCC-1 Financing Statements, in a form satisfactory to Seller, as typically
required by Florida institutional commercial lenders. The Promissory Note shall
have no prepayment penalty. The Promissory Note shall bear interest at the rate
of 6.5% per annum and provide for monthly payments of interest only, together
with a principal prepayment of $250,000, which shall be due six months from the
date of closing; the entire outstanding principal and any accrued and unpaid
interest shall be due and payable in full one year from the date of closing. The
outstanding principal balance of the Promissory Note or any portion thereof
shall be convertible, at any time, at the sole option of Seller into the common
stock, no par value, of Buyer (the "CONVERSION SHARES") at a conversion price of
$3.50 per share. The Conversion Shares shall be restricted securities, in
accordance with applicable securities laws, and shall include "piggyback
registration" rights, in accordance with the Stock Purchase Agreement.
Additionally, upon five (5) days prior written notice to Seller, the Promissory
Note may be prepaid in full by the Buyer at anytime during the term of the
Promissory Note in the sole discretion of the Buyer. Such notice shall not
preclude Seller's conversion option, as described above, if exercised prior to
the date of such prepayment.
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4. Tax and Interest Escrow. Buyer agrees to deposit into an interest
bearing escrow account (the "TAX AND INTEREST ESCROW ACCOUNT") a prepayment of
mortgage interest and estimated real estate taxes, at closing, in the amount of
$150,000.00, which shall be used to pay the next three monthly interest payments
due under the Promissory Note and the excess, if any, shall be held by Seller
and applied to pay any real estate taxes due in connection with the Real
Property. Buyer 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 the ninety (90) day, one-hundred eighty (180) day and two-hundred
seventy (270) day anniversaries of the Closing Date (as defined hereinafter).
Seller will remit from the Tax and Interest Escrow Account, the payment of real
estate taxes, however, prior thereto, Buyer shall, if the amount in such Tax and
Interest Escrow Account allocated to real estate taxes is deficient, pay the
shortfall to Seller immediately upon receipt of notice of such deficiency from
Seller. All interest earned in the tax and interest escrow account shall be
allocated to the benefit of and be the sole property of the Buyer. Buyer agrees
to furnish Seller with its FEIN in connection with the establishment of the
interest bearing account.
5. Access to Real Property Prior to Closing.
5.1 Upon receipt by Seller of twenty-four (24) hours prior notice,
Buyer and its agents, servants, employees, contractors and representatives from
and after the Effective Date of this Agreement shall have the right to enter
onto the Real Property for the purpose of having inspections made as provided
herein or for any other purposes relevant to Buyer's purchase and proposed use
of the Real Property. Any inspections of the Real Property shall be subject to
the rights of any tenants currently occupying the Real Property. Buyer agrees to
repair any and all damage which may occur as a result of any inspections
performed by or on behalf of Buyer. Buyer agrees to indemnify, defend and hold
Seller harmless from and against any and all demands, liabilities, damages,
losses, actions or claims, costs or expenses incurred or asserted against Seller
(inclusive of attorney's fees) as a result of Buyer's inspection of the Real
Property and/or Buyer's activities on the Real Property of any nature. Prior to
performing any testing at the Real Property, Buyer shall furnish Seller with
evidence of liability insurance reasonably satisfactory to Seller. The repair of
any damage caused by any testing completed at the Real Property shall be a
condition precedent to the return of the Deposit to Buyer.
5.2 Buyer shall have ten (10) days from the Effective Date to
conduct due diligence on the real property (the "DUE DILIGENCE PERIOD"). Should
the Buyer, in its sole discretion, terminate this Agreement for any reason prior
to the expiration of the Due Diligence Period, the $75,000.00 portion of the
Deposit shall be refunded to the Buyer.
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6. Title and Survey.
6.1 Within three (3) business days of the Effective Date, Seller
will provide Buyer with a copy of the prior owner's policy for the Real
Property. Within ten (10) business days of the Effective Date, Buyer shall
obtain, at Buyer's expense, a title insurance commitment (the "COMMITMENT")
issued by a title insurance company selected by Buyer (the "TITLE COMPANY")
binding the Title Company to insure good, marketable and insurable fee simple
title to the Real Property by way of (i) an Owner's Title Insurance Policy, and
(ii) a Mortgagee Title Insurance Policy in favor of Seller.
6.2 Buyer shall have until 10 business days after its receipt of
the Commitment to specifically object in writing to any particular condition of
title or exception revealed by the Commitment, other than the Permitted
Exceptions as set forth on Exhibit "D" attached hereto. If Buyer fails to
specifically object in writing to any particular condition of title or exception
set forth in the Commitment within said time period, then same shall be deemed
waived and such condition of title or exception shall be deemed to constitute a
Permitted Exception. Notwithstanding anything to the contrary contained herein,
Seller shall have no obligation to bring any action or proceeding or otherwise
to incur any expense whatsoever to eliminate or modify any unacceptable
exceptions or to cure any such title deficiencies except, however: (i) Seller
shall be obligated to cure any monetary objections (i.e. mortgages or taxes not
reflected in the Permitted Exceptions); (ii) Seller shall be obligated to cure
any other title defects (including survey matters) provided, however, that
Seller shall not be obligated to expend in excess of an aggregate of $25,000.00
in connection with curing any such title defects except, however, as to any lien
or mortgage incurred after the Effective Date of this Agreement, Seller shall be
responsible for the entire cost thereof. If Buyer timely notifies Seller of any
objection to title, Seller shall advise Buyer within five (5) business days of
receipt of Buyer's notice as to whether Seller will eliminate or modify such
unacceptable exceptions. In the event Seller is unable or unwilling to eliminate
or modify such unacceptable exceptions, then Buyer, shall elect within five (5)
business days of receipt of notice from Seller, to either cancel this Agreement,
in which event Escrow Agent shall return the Deposit to Buyer and Buyer and
Seller shall be released from any further obligations under this Agreement
except those obligations arising under Section 5 of this Agreement, or Buyer may
waive the objection to the condition of title and close hereunder without
reduction of the Purchase Price. Unless Buyer gives notice terminating the
Agreement on or before the expiration of the 5 day period following Buyer's
receipt of notice from Seller, the title objections shall be deemed waived.
6.3 Seller, contemporaneous with the execution and delivery of this
Agreement, shall furnish to Buyer, Seller's existing survey with regard to the
Real Property. Buyer may cause a new survey or an update of the existing survey
to be made at Buyer's sole cost and expense. If a survey shows any
encroachments, gaps, gores, easements, rights-of-way or any other type of
encumbrance or impediment not authorized by this Agreement or not shown on any
prior survey of the Real Property as referenced in the Permitted Exceptions,
Buyer shall give written notice of such defect to Seller, together with a copy
of the survey, on or before 10 business days after the Effective Date in which
event said defect shall be governed in the same manner and time as objections to
title are dealt with in Section 6.2 and the parties shall have the same rights,
privileges and obligations as if the defect was an objection to title as
specified in Section 6.2 of this Agreement. The surveys shall be certified to
the Buyer, Seller, the Title Company, Seller's counsel and Buyer's counsel.
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7. Expenses and Prorations.
7.1 The costs relating to the recording of the special warranty
deed conveying the Real Property and all documentary stamps and intangible taxes
due on account of the Promissory Note and Mortgage shall be paid by the Buyer.
Buyer shall also pay all premiums incurred in obtaining the Commitment and the
issuance of the Owner's Title Insurance Policy and Mortgagee Title Insurance
Policy, the cost of any survey obtained by Buyer and the cost of all inspections
performed by or on behalf of Buyer. The documentary stamp taxes to be affixed to
the special warranty deed shall be paid by Seller.
7.2 Termination of Existing Leases. Seller agrees to notify any and
all tenants ("Tenants") to vacate the Real Property prior to the Closing Date.
To the extent that any Tenants have not vacated the Real Property prior to the
Closing Date, Seller agrees to proceed with the eviction of such Tenants at its
sole cost and expense and Buyer will have the option to (i) assume Seller's
rights and obligations with respect to the eviction process or (ii) postpone the
Closing Date until such time as all such holdover Tenants have vacated the Real
Property. Buyer, in its sole discretion, may notify Seller that it desires to
have one or more of the leases assigned to Buyer at Closing, any such assignment
to be without representations or warranties.
7.3 Taxes and Assessments; Pending and Certified Liens. Taxes and
assessments for the year of Closing shall be prorated as of the end of the day
prior to the day of Closing ("PRORATIONS DATE") upon the amount of such taxes
for the year of Closing if the amount of such taxes is known at the time of
Closing; if such amount cannot be then ascertained, proration shall be based
upon the amount of the taxes, with the maximum discount allowed by law, for the
preceding year. If any tax proration shall be based upon the amount of taxes for
the year preceding the year of Closing, such taxes, at the request of either
party, shall be reprorated and adjusted between the parties, on the basis of the
maximum discounted payment, forthwith after the tax bills for the year of
Closing are received. County or other public liens, if any, certified or for
which the work has been substantially completed on the date of Closing shall be
paid by Seller and any other such liens shall be assumed by Buyer. Other
assessments not included on the regular property tax bills, license fees for
transferred licenses, and state or municipal fees and taxes for the Real
Property for the applicable fiscal period during which Closing takes place shall
be adjusted as of the Prorations Date on the basis of the most recent
ascertainable assessments and rates, and shall be re-prorated as necessary
pursuant to subparagraph 7.5 below. Seller's share of the 2004 real estate taxes
will not be given as a credit to Buyer but will be deposited into the Tax and
Insurance Escrow Account as set forth in Section 4.
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7.4 Utility Charges. Electric, water, sewer, gas, fuel, waste
collection and removal and other utility and operating expenses relating to the
Real Property shall be prorated as of the Prorations Date. It shall be assumed
that the utility charges were incurred uniformly during the billing period in
which the Closing occurs. If bills for the applicable period are unavailable,
the amounts of such charges will be estimated based upon the latest known bills.
Notwithstanding the foregoing, to the extent possible, Seller and Buyer shall
request the utility companies to read the meters as of the Prorations Date, and
Seller shall be responsible for all charges incurred through the Prorations
Date. All prepaid deposits for utilities shall be refunded to Seller at the time
of closing, and it shall be Buyer's responsibility to make any utility deposits
required for service.
7.5 Reproration and Post-Closing Adjustments. In the event that any
adjustments or prorations cannot be apportioned or adjusted at Closing by reason
of the fact that final or liquidated amounts have not been ascertained, or are
not available as of such date, the parties hereto agree to apportion or adjust
such items on the basis of their best estimates of the amounts at Closing and to
re-prorate any and all of such amounts promptly when the final or liquidated
amounts are ascertained.
8. Buyer Covenant; Charter Schools. Buyer hereby covenants to Seller
that it will use its commercially reasonable efforts to execute an agreement at
or prior to Closing, with the New Vision Children's Foundation ("FOUNDATION")
respect to the Eagle Academy Charter School and the Smart School Charter School
(collectively, the "CHARTER SCHOOLS"), each of which are located adjacent to the
Real Property, for the purpose of organizing and performing the following: (i)
an annual fund raising event, the annual cost of which shall be a minimum of
$5,000; (ii) film, television and locational production work programs with the
students of the Charter Schools; (iii) a large group event (for example,
graduations, recitals, etc.) to be attended by all students of the Charter
Schools and their parents, at least twice per calendar year; (iv) a joint
production of the Buyer and the Foundation, at least once per calendar year
9. Seller Covenant. Seller acknowledges that it owns a certain parcel
of real property adjacent to or near the Real Property, which is described in
Exhibit "E" ("ADJACENT PROPERTY"). Seller hereby grants to Buyer a right of
first offer ("ROFO") in the event Seller decides to sell the Adjacent Property
to any unrelated third party. In connection with the ROFO, prior to selling or
leasing the Adjacent Property to an unrelated third party, Seller shall provide
Buyer with written notice thereof ("PROPOSAL SALE NOTICE"), which notice shall
include an asking price for the Adjacent Property. Buyer will have a period of
five (5) days from its receipt of the Proposal Sale Notice to enter into a
binding purchase and sale agreement with Seller at the price set forth in the
Proposal Sale Notice, on a cash basis. If Buyer fails to enter into a binding
purchase and sale agreement with Seller, which is satisfactory to Seller, in
Seller's sole discretion, within such five (5) day period, Seller will be free
to sell the Adjacent Property to any party without restriction.
10. Closing. The parties shall close the subject transaction (the
"CLOSING") on a date which is forty-five (45) days after the Effective Date,
provided, however, that if such date is a weekend or holiday, then the closing
date shall be the next business day (the "CLOSING DATE"). Closing shall be held
at the offices of Mombach, ▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or such other place mutually agreed upon
by the parties.
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11. Closing Documents.
11.1 At the time of Closing, Seller shall execute and/or deliver to
Buyer executed originals of the following documents:
A. Statutory form special warranty deed, in recordable form,
conveying the Real Property.
B. Properly executed Seller's affidavit of title containing such
matters as are customarily used in connection with purchase and sale
transactions including without limitation matters required in order for
the Title Commitment to delete the "gap" exception pursuant to Florida
Statutes, Section 627.7841 (1983) as amended, to provide coverage for
mechanics liens and to provide coverage as to rights of parties in
possession other than those identified in the Tenant Leases.
C. Closing statement of adjustments.
D. Properly executed Affidavit complying with the rules and
regulations promulgated under FIRPTA.
E. ▇▇▇▇ of Sale without warranties with respect to any personal
property, except for Seller's special warranty of title. A schedule of
such personal property is attached hereto as Exhibit "F".
F. Appropriate Trustee resolutions and certificates of good
standing, if applicable, evidencing the due authorization of Seller to
effectuate the sale of the Real Property.
G. All keys in Seller's possession to all entrance doors to, and
any rooms located in Building or on the Real Property; and
H. Such other customary and reasonably necessary documents as may
be required by Buyer to be delivered by Seller in accordance with the
terms and provisions of this Agreement.
11.2 At the time of Closing, Buyer shall execute and/or deliver to
Seller executed originals of the following documents:
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A. Certificates of good standing and corporate resolutions
evidencing the due authorization of Buyer to effectuate the purchase of
the Real Property, execute and deliver the Promissory Note and the
Mortgage, and issue the Shares and the Conversion Shares.
B. Promissory Note
C. Mortgage (including such terms and conditions as are customarily
required by Florida institutional commercial lenders, including, but
not limited to, liability and casualty insurance coverage requirements,
due on sale clause, authorization of filing of UCC-1, etc.)
D. Stock Purchase Agreement.
E. Closing Statement of adjustments.
F. Certificates, if any, representing all of the Shares, endorsed
in blank or accompanied by duly executed assignment documents.
G. Such other customary and reasonably necessary documents as may
be required by Seller to be delivered by Buyer in accordance with the
terms and provisions of this Agreement.
12. Brokerage.
12.1 The parties hereto represent to each other that they have
dealt with no broker, finder, agent or real estate consultant in connection with
this Agreement or the transactions contemplated hereby, except the following:
Commercial Property Realty Advisors ("BROKER") whose fees shall be paid by
Seller pursuant to a separate agreement. No commissions shall be due unless
closing is effected.
12.2 Seller agrees to, and hereby does, indemnify, defend and save
harmless Buyer and its respective successors and assigns against and from any
loss, liability or expense, including reasonable attorneys fees, to and through
all appellate and supplemental proceedings, arising out of any claim or claims
for commissions or other compensation for bringing about this Agreement or the
transactions contemplated hereby made by any broker, finder, agent or real
estate consultant if such claim or claims made by any such broker, finder, agent
or real estate consultant are based upon dealing with Seller or its
representatives.
12.3 Buyer agrees to, and hereby does, indemnify, defend and save
harmless Seller and its respective successors and assigns against and from any
loss, liability or expense, including reasonable attorneys fees, to and through
all appellate and supplemental proceedings arising out of any claim or claims
for commissions or other compensation for bringing about this Agreement or the
transactions contemplated hereby made by any broker, finder, agent or real
estate consultant (other than Broker, which shall be paid by Seller as set forth
in 15.1 above), if such claim or claims made by any such broker, finder, agent
or real estate consultant are based upon dealing with Buyer or its
representatives.
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12.4 The provisions of this Section 12 shall survive Closing.
13. Remedies Upon Default.
13.1 If Buyer defaults under this Agreement, Seller's sole remedy
shall be to receive and retain the Deposit as liquidated damages for loss of
bargain and not as a penalty, it being agreed that in the event of Buyer's
default, the actual damages to Seller would be difficult if not impossible to
ascertain and/or calculate. Upon such receipt and retention by Seller, this
Agreement shall be deemed null and void and of no further force and effect and
no party hereto shall have any further rights or obligations hereunder, except
the indemnification obligations of Buyer as set forth in Section 5 above.
13.2 If on or prior to the Closing Date, Seller shall have failed
to comply with any of the terms, provisions or conditions of this Agreement then
Buyer shall have the following rights: (i) to elect to receive the return of the
Deposit and waiving any action for damages resulting from Seller's breach; or
(ii) to seek specific performance of Seller's obligations hereunder. The
remedies set forth in this Section 13 shall be the sole remedies of the parties
hereto.
13.3 In the event any litigation should arise in connection with
this Agreement, the prevailing party shall be entitled to collect reasonable
attorney's fees and costs from the defaulting party to and through all
appellate, post judgment and bankruptcy proceedings. The remedies set forth in
this Section 13 shall be the sole remedies of the parties hereto.
14. Risk of Loss.
14.1 Until the Closing has occurred, all risk of loss or damage to
the Real Property shall be borne by Seller, subject to the terms hereof. Seller
agrees to maintain insurance coverages as to the Real Property during the period
of time from the Effective Date until closing in the same manner as maintained
by Seller prior to the Effective Date. Seller agrees to give Buyer prompt notice
of any fire or other casualty affecting the Real Property or of any actual or
threatened (to the extent that Seller has current actual knowledge thereof)
taking or condemnation of all or any portion of the Real Property. Seller, to
the best of its knowledge, is not aware of any pending or threatened
condemnation proceeding with regard to the Real Property or any portion thereof.
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14.2 If prior to Closing, there shall occur:
(a) damage to the Real Property caused by fire or other
casualty which would cost an amount, greater than, or equal to, five
percent (5%) of the total Purchase Price to repair; or
(b) the taking or condemnation of all or any portion of the
Real Property which would materially interfere with the present use of
the Real Property;
then, in such event, Buyer shall have the right, at Buyer's option, to terminate
this Agreement by written notice thereof delivered to Seller within ten (10)
days after Buyer has received notice from Seller or otherwise learns of that
event. If Buyer does not so timely elect to terminate this Agreement, then the
Closing shall take place as provided herein and there shall be assigned to Buyer
at the Closing all interest of Seller in and to any insurance proceeds or
condemnation awards payable to Seller on account of that event, less sums which
Seller incurs before the Closing to repair any of the damage, and the Purchase
Price shall be reduced by the amount of any deductible under Seller's insurance
policy. If Buyer does so timely elect to terminate this Agreement, then the
Deposit shall be returned to Buyer and this Agreement shall be deemed null and
void and of no further force and effect and neither party hereto shall have any
further rights or obligations hereunder, except the indemnification and
obligations of Buyer as set forth in Section 5 above.
14.3 If before any Closing there occurs:
(a) damage to the Real Property caused by fire or other
casualty which would cost less than five percent (5%) of the total
Purchase Price to repair; or
(b) the taking or condemnation of a portion of the Real
Property which would not materially interfere with the present use of
the Real Property;
then, Buyer may not terminate this Agreement and there shall be assigned to,
Buyer at the Closing all interest of Seller in and to any insurance proceeds or
condemnation awards payable to Seller on account of that event, less sums which
Seller incurs before the Closing to repair any of the damage, and the Purchase
Price shall be reduced by the amount of any deductible under Seller's insurance
policy.
15. Escrow Provisions.
15.1 Seller and Buyer hereby designate Mombach, ▇▇▇▇▇ & ▇▇▇▇▇▇,
P.A. as Escrow Agent, to receive and hold the Deposit, subject to the provisions
of this subsection. Upon receipt by Escrow Agent of a statement from Seller or
Buyer pertaining to a controversy relating to the Deposit and/or demanding
retention of the Deposit by Escrow Agent, then in that event Escrow Agent shall
have the following options: (i) to retain the Deposit until written agreement is
reached between the parties or until a final judgment has been entered by a
court of competent jurisdiction and the appeal period has expired thereon or, if
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appealed, after the matter has finally been concluded; (ii) to place the Deposit
with the Clerk of the Circuit Court having jurisdiction and to notify the
parties in accordance with the notice provisions set forth herein; (iii) to file
an action in the nature of an interpleader joining the parties hereto and,
thereafter, complying with the ultimate judgment of the Court with regard to the
disposition of the dispute. All costs incurred by Escrow Agent pertaining to any
such controversy shall be and constitute a charge against the Deposit.
15.2 Escrow Agent shall not be bound by any modifications,
cancellation or rescission of this Agreement unless in writing and signed by all
parties thereto. In no event, however, shall any modification of this Agreement
which shall affect the rights or duties of Escrow Agent be binding on Escrow
Agent unless it shall have given its prior written consent. Escrow Agent shall
make no charge for its service in acting as Escrow Agent; provided, however,
that if there is any dispute relating to the Deposit or its disposition, all
parties hereto shall be jointly and severally obligated to reimburse Escrow
Agent for all of its costs and expenses in connection therewith, including
reasonable attorneys fees, and to indemnify it and hold it harmless against any
claim asserted against it or any liability, loss or damage incurred by it in
connection therewith, unless any misdelivery of the Deposit or a portion thereof
shall be due to willful breach of this Agreement or gross negligence on the part
of Escrow Agent. It is agreed that Escrow Agent shall have full discretion as to
whom it may retain as legal counsel to protect its interest (including retaining
its own firm) and the same shall not affect or in any way prejudice or limit the
Escrow Agent's entitlement to reasonable attorneys' fees for services of such
attorneys. Buyer acknowledges that Escrow Agent has represented Seller in the
negotiation of this Agreement and in certain other matters and such shall not
limit Escrow Agent's right to represent Seller in the event of a dispute
hereunder.
16. Notices. Any notice provided for by this Agreement and any other
notice, demand or communication which any party may wish to send to another
(hereinafter collectively referred to as the "NOTICE") shall be in writing and
shall be deemed to have been properly given upon delivery or attempted delivery
if served by (i) personal delivery during normal business hours; or (ii)
registered or certified mail, return receipt requested, in a properly sealed
envelope, postage prepaid, addressed to the party for which such Notice is
intended; or (iii) by expedited national courier service, at such party's
address as set forth below:
If to Seller: Lakes Holding Trust U/A dated July 27, 2001
c/o Florida Production Central Studios, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
Mombach, ▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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If to Buyer: AGU Entertainment Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
with a copy to: Blank Rome, LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
If to Escrow Agent: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire.
Mombach, ▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
Suite 1950
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any address or name specified above may be changed by a Notice given by
the addressee to the other parties in accordance with the provisions set forth
above.
All Notices shall be deemed given and effective as of the date of
personal delivery thereof or the date of receipt set forth on the return
receipt. The inability to deliver because of a changed address of which no
Notice was given, or rejection or other refusal to accept any Notice shall be
deemed to be the receipt of the Notice as of the date of such inability to
deliver or rejection or refusal to accept.
17. Transition.
17.1 Real Property. Buyer is purchasing the Real Property in "as
is" condition as of the date of this Agreement, however, Seller shall be
responsible to maintain the Real Property in the same condition existing as of
the date of this Agreement.
17.2 Announcements. Except as required by applicable law, no Party
will issue any press release or make any public announcement or announcement to
any Tenant of Seller, relating to the subject matter of this Agreement prior to
the Closing without the prior written approval of the other Party in its sole
discretion.
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18. Condition of the Real Property. Upon completion of the Due
Diligence Period, Buyer acknowledges that Seller has provided Buyer sufficient
opportunity to make such independent factual, physical and legal examinations
and inquiries as Buyer deems necessary and desirable with respect to the Real
Property and the transaction contemplated by this Agreement and that Buyer has
approved the Real Property in all respects. The following provisions shall
thereupon be applicable and shall survive the Closing or termination of this
Agreement:
(a) Buyer does hereby acknowledge, represent, warrant and agree to and
with Seller that: (i) Buyer is expressly purchasing the Real Property
in its existing condition "AS IS, WHERE IS, AND WITH ALL FAULTS" with
respect to all facts, circumstances, conditions and defects; (ii)
Seller has no obligation to inspect for, repair or correct any such
facts, circumstances, conditions or defects or to compensate Buyer for
same (except for matters due to casualty or condemnation which shall be
subject to the provisions set forth below); (iii) Seller has
specifically bargained for the assumption by Buyer of all
responsibility to inspect and investigate the Real Property and of all
risk of adverse conditions and has structured the Purchase Price and
other terms of this Agreement in consideration thereof; (iv) Buyer has
undertaken all such inspections and investigations of the Real Property
as Buyer deems necessary or appropriate under the circumstances as to
the condition of the Real Property and the suitability of the Real
Property for Buyer's intended use, and based upon same, Buyer is and
will be relying strictly and solely upon such inspections and
examinations and the advice and counsel of its own consultants, agents,
legal counsel and officers and Buyer is and will be fully satisfied
that the Purchase Price is fair and adequate consideration for the Real
Property; and (v) Seller is not making and has not made any warranty or
representation with respect to any materials or other data provided by
Seller to Buyer (whether prepared by or for the Seller or others) or
the education, skills, competence or diligence of the preparers thereof
or the physical condition or any other aspect of all or any part of the
Real Property as an inducement to Buyer to enter into this Agreement
and thereafter to purchase the Real Property or for any other purpose.
Without limiting the generality of any of the foregoing, Buyer
specifically acknowledges that Seller does not represent or in any way
warrant the accuracy of any marketing information or pamphlets listing
or describing the Real Property or the information, if any, provided by
Seller to Buyer; and
(b) SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE
WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR
PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO WARRANTIES WITH RESPECT TO THE REAL PROPERTY, TAX
LIABILITIES, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES,
INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR SOIL CONDITIONS. BUYER
FURTHER ACKNOWLEDGES THAT BUYER IS BUYING THE REAL PROPERTY "AS IS" AND
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IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS AGREEMENT, BUYER IS NOT RELYING UPON ANY
REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER, OR ANY OF ITS
EMPLOYEES OR AGENTS WITH RESPECT TO THE REAL PROPERTY; and
(c) FURTHERMORE AND WITHOUT IN ANY WAY LIMITING ANY OTHER PROVISION OF
THIS AGREEMENT, SELLER MAKES NO WARRANTY WITH RESPECT TO THE PRESENCE
ON OR BENEATH THE REAL PROPERTY (OR ANY PARCEL IN PROXIMITY THERETO) OF
HAZARDOUS MATERIALS. BY ACCEPTANCE OF THIS AGREEMENT AND CLOSING OF THE
SALE, BUYER ACKNOWLEDGES THAT BUYER'S OPPORTUNITY FOR INSPECTION AND
INVESTIGATION OF THE REAL PROPERTY (AND OTHER PARCELS IN PROXIMITY
THERETO) HAS BEEN ADEQUATE TO ENABLE BUYER TO MAKE BUYER'S OWN
DETERMINATION WITH RESPECT TO THE PRESENCE ON OR BENEATH THE REAL
PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) OF SUCH HAZARDOUS
MATERIALS. FURTHERMORE, BUYER'S CLOSING HEREUNDER SHALL BE DEEMED TO
CONSTITUTE AN EXPRESS WAIVER OF BUYER'S AND ITS SUCCESSORS' AND
ASSIGNS' RIGHTS TO ▇▇▇ SELLER AND OF BUYER'S RIGHT TO CAUSE SELLER TO
BE JOINED IN AN ACTION BROUGHT UNDER ANY FEDERAL, STATE OR LOCAL LAW,
RULE, ACT, OR REGULATION NOW EXISTING OR HEREAFTER ENACTED OR AMENDED
WHICH PROHIBITS OR REGULATES THE USE, HANDLING, STORAGE, TRANSPORTATION
OR DISPOSAL OF HAZARDOUS MATERIALS OR WHICH REQUIRES REMOVAL OR
REMEDIAL ACTION WITH RESPECT TO SUCH HAZARDOUS MATERIALS, SPECIFICALLY
INCLUDING BUT NOT LIMITED TO FEDERAL "CERCLA", "RCRA", AND "▇▇▇▇" ACTS.
19. Miscellaneous.
19.1 Construction. The terms "Seller" and "Buyer" whenever used in
this Agreement shall include the heirs, personal representatives, successors and
assigns of the respective parties hereto; provided, however, that Buyer's right
of assignment is restricted by the provisions hereof. Whenever used, the
singular number shall include the plural and the plural the singular, and the
use of any gender shall include all genders. The term "including" as used herein
shall in all instances mean "including, but not limited to". The headings in
this Agreement are intended solely for convenience of reference and shall be
given no effect in the interpretation of this Agreement. This Agreement and any
related instruments shall not be construed more strictly against one party than
against the other by virtue of the fact that initial drafts may have been
prepared by counsel for one of the parties, it being recognized that this
Agreement and any related instruments are the product of extensive negotiations
between the parties hereto.
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19.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which will
constitute the same agreement.
19.3 Severability and Waiver. Invalidation of any one Section or
provision of this Agreement by judgment or court order shall in no way affect
any other Section or provision. Failure of any party to this Agreement to insist
on the full performance of any of its provisions by the other party (or parties)
shall not constitute a waiver of such performance unless the party failing to
insist on full performance of the provision declares in writing signed by it
that it is waiving such performance. A waiver of any breach under this Agreement
by any party, unless otherwise expressly declared in writing, shall not be a
continuing waiver or waiver of any subsequent breach of the same or other
provision of this Agreement. The provisions of this Section shall survive the
Closing.
19.4 Governing Law. The laws of the State of Florida (without
regard to conflicts of law) shall govern the validity, construction, enforcement
and interpretation of this Agreement.
19.5 Further Acts. In addition to the acts and deeds recited in
this Agreement and contemplated to be performed, executed, and/or delivered
under this Agreement, Seller and Buyer agree to perform, execute and/or deliver
or cause to be delivered, executed and/or delivered at Closing or after Closing
all further acts, deeds, and assurances reasonably necessary to consummate the
transactions contemplated hereby.
19.6 Radon Gas and Energy Efficiency Disclosures. Radon is a
naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantity, may present health risks to persons who are exposed to
it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit.
In accordance with the provisions of Section 553.996, Florida Statutes,
Buyer is advised that Buyer may have the energy-efficiency rating of the
buildings located on the Real Property determined. Buyer acknowledges that, with
the execution of this Agreement, Seller has provided to Buyer a copy of an
information brochure regarding energy-efficiency rating prepared and provided by
the Florida Department of Community Affairs.
19.7 Entire Agreement and Amendment. This Agreement contains the
entire understanding between Buyer and Seller with respect to the subject matter
hereof. Neither this Agreement nor any provision hereof may be modified,
amended, changed, waived, discharged or terminated orally. Any such action may
occur only by an instrument in writing signed by all of the parties.
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19.8 Recording. Neither this Agreement nor any memorandum of this
Agreement (or the ROFO) shall not be recorded and Buyer agrees that recording
same constitutes a default by Buyer.
19.9 Exhibit. The Exhibits which are referenced in and attached to
this Agreement are incorporated in, and made a part of, this Agreement for all
purposes.
19.10 Time of the Essence. It is expressly agreed by Seller and
Buyer that time is of the essence with respect to this Agreement. If the final
day of any period or any date of performance under this Agreement falls on a
date which is not a business day, then the final day of the period or the date
of performance, as applicable, shall be extended to the next day which is a
business day.
19.11 No Third Party Beneficiary. This Agreement is solely between
Seller and Buyer and no other party shall be entitled to rely upon any provision
hereof for any purpose whatsoever.
19.12 Assignment. Buyer may not assign this Agreement nor may any
of Buyer's rights hereunder by transferred in any manner to any person or entity
without Seller's specific prior written consent which consent may be withheld by
Seller for any reason whatsoever in Seller's sole and absolute discretion.
Excepted from the foregoing shall be an assignment to an entity which is
controlled by Buyer or Buyer's principals provided that there is no
consideration paid in connection with such assignment and further provided that
Buyer gives Seller notice of such assignment at least ten (10) days prior to
Closing.
INTENTIONALLY LEFT BLANK
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19.13 Waiver of Jury. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH OR RELATED HERETO, OR
ANY COURSE OR CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
PARTIES TO ENTER INTO THIS AGREEMENT.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto on the day and year indicated.
Signed, sealed and delivered
in the presence of: Seller:
LAKES HOLDING TRUST U/A DATED
July 27, 2001
/s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------- --------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, its Trustee
/s/ [ILLEGIBLE]
----------------------------------
Buyer:
AGU ENTERTAINMENT CORP.,
a Colorado corporation
/s/ ▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------- --------------------------
▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ President
----------------------------------
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ACKNOWLEDGMENT OF ESCROW AGENT
Mombach, ▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., as Escrow Agent, hereby acknowledges
receipt of the Deposit in the amount of $100,000.00, subject to clearance of
funds, and agrees to hold the Deposit in escrow in accordance with the foregoing
Agreement for Purchase and Sale.
MOMBACH, ▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Dated: September 15, 2004
SCHEDULE OF EXHIBITS
EXHIBIT "A" - Real Property
EXHIBIT "B" - Wire Instructions
EXHIBIT "C" - Stock Purchase Agreement
EXHIBIT "D" - Permitted Exceptions
EXHIBIT "E" - Adjacent Property
EXHIBIT "F" - Personal Property
EXHIBIT "A"
REAL PROPERTY
EXHIBIT "B"
ESCROW AGENT WIRE INSTRUCTIONS
MOMBACH, ▇▇▇▇▇ & ▇▇▇▇▇▇, P.A. WIRING INSTRUCTIONS:
To Whom It May Concern:
Please wire funds to the account listed below. Thank you.
[ACCOUNT INFORMATION OMITTED FROM EXHIBIT 10.1 TO CURRENT REPORT
ON FORM 8-K]
EXHIBIT "C"
STOCK PURCHASE AGREEMENT
TO BE PROVIDED BY BUYER AND
APPROVED BY SELLER PRIOR TO CLOSING,
IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT
EXHIBIT "D"
PERMITTED EXCEPTIONS
1. Any lien, or right to a lien, for services, labor, or material heretofore
or hereafter furnished, imposed by law and not shown by the public records.
2. Taxes or special assessments which are not shown as existing liens by the
public records.
3. Taxes and assessments for the year 2004 and subsequent years, which are not
yet due and payable.
4. Easements, dedications, limitations, private driveways and non-vehicular
access lines as shown on the Plat of Somerset Plaza, recorded in Plat Book
111, at page 19, Public Records of Broward County, Florida.
5. Terms and provisions of that Gas Agreement dated March 1, 1961 and filed
under Clerk's File No. 61-29764 on March 24, 1961 in Official Records Book
2145, at page 60, Public Records of Broward County, Florida.
6. Terms and provisions of that Agreement with Lauderdale Utilities, Inc.
filed June 2, 1960 under Clerk's File No. 60-56789 in Official Records Book
1942, at page 93, Public Records of Broward County, Florida, as amended in
that Agreement filed March 24, 1961 under Clerk's File No. 61-29797 in
Official Records Book 2145, at page 134, Public Records of Broward County,
Florida
7. Easement granted to Florida Power & Light Company, dated April 28, 1980,
filed April 30, 1980 in Official Records Book 8878, at page 713, Public
Records of Broward County, Florida.
8. Easement by and Between Rausman Venturer, Inc and Landall Venturer, Inc,
first Party, and Midland at Somerset, Inc. and Landall at Somerset, Inc.
d/b/a Somerset at Lauderdale Lakes, filed October 30, 1978 in Official
Records Book 7842, at page 528, Public Records of Broward County, Florida.
9. Covenants, conditions, limitations, restrictions and easements reserved in
that certain Warranty Deed filed under Clerk's File No. 73-30116 on
February 12, 1973 in Official Records Book 5161, at page 325, Public
Records of Broward County, Florida; as may be affected by Disclaimer of
interest filed October 30, 1978 in Official Records Book 7842, at Page 545.
10. Terms, provisions and easements in that Developers Agreement filed in
Official Records Book 5417, at page 657, Public Records of Broward County,
Florida; as amended by that Addendum to Developers Agreement filed under
Clerk's File No. 73-250435 on November 29, 1973 in Official Records Book
5542, at page 99, Public Records of Broward County, Florida.
11. Easement granted to Southern ▇▇▇▇ Telephone and Telegraph Company, dated
May 26, 1987, filed June 10, 1987 in Official Records Book 14518, at page
537, Public Records of Broward County, Florida.
12. Easement granted to Broward County, dated May 22, 1987, filed January
19,1989 in Official Records Book 16123, at page 506, Public Records of
Broward County, Florida.
13. Terms and provisions of that Indemnification Agreement filed January 19,
1989 under Clerk's File No. 89-23332 in Official Records Book 16123, at
page 523, Public Records of Broward County, Florida, additionally
evidencing "chain link gates" over a utility easement.
14. That certain unrecorded Billboard Lease dated January 31, 1997 between
▇▇▇▇▇▇▇ Realty and AK Media Group, Inc.
15. Matters appearing on that certain survey prepared by ▇. ▇▇▇▇▇ and
Associates, Inc., dated July 7, 2001, LB 6467.
EXHIBIT "E"
ADJACENT PROPERTY
PARCEL 1
Legal Description: ▇▇▇ ▇▇▇▇▇ Acres 138-20 B Parcel "A"
PARCEL 2
Legal Description: 30-49-42 N 70 of S 388 of W 1/2 of NW 1/4 of NE 1/4
of NE 1/4, Less W 30 for RD
PARCEL 3
Legal Description: 30-49-42 S 318 of W 1/2 of NW 1/4 of NE 1/4, Less 30
thereof.
PARCEL 4
Legal Description: Somerset Plaza 111-19 B Parcel A
EXHIBIT "F"
PERSONAL PROPERTY
1. All built-in fixtures to the Real Property.