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EXHIBIT 2.1
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STOCK PURCHASE AGREEMENT
Among
LAHAINA ACQUISITIONS, INC.
and
ACCENT MORTGAGE SERVICE, INC., the Sellers
and
NP HOLDING, LLC, the Buyer
Dated as of December 31, 1999
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TABLE OF CONTENTS
1. Definitions.............................................................................................1
2. Purchase and Sale of Target Shares......................................................................3
(a) Basic Transaction..............................................................................3
(b) Purchase Price.................................................................................3
(c) The Closing....................................................................................4
(d) Deliveries at the Closing......................................................................4
3. Representations and Warranties Concerning the Transaction...............................................4
(a) Representations and Warranties of the Sellers..................................................4
(b) Representations and Warranties of the Buyer....................................................5
4. Representations and Warranties Concerning the Target....................................................5
(a) Organization, Qualification, and Corporate Power...............................................6
(b) Capitalization.................................................................................6
(c) Noncontravention...............................................................................6
(d) Brokers' Fees..................................................................................6
(e) Title to Personal Property.....................................................................7
(f) Legal Compliance...............................................................................7
(g) Real Property..................................................................................7
(h) Intellectual Property..........................................................................7
(i) Powers of Attorney.............................................................................8
(j) Litigation.....................................................................................8
(k) Employees......................................................................................8
(l) Environmental Matters..........................................................................8
(m) Insurance......................................................................................8
(n) Permits and Licenses...........................................................................8
(o) Disclaimer of other Representations and Warranties.............................................9
5. Conveyance of Warranties and Representations............................................................9
6. Post-Closing Covenants..................................................................................9
(a) General........................................................................................9
(b) Litigation Support.............................................................................9
(c) Transition.....................................................................................9
(d) Assumed Liabilities...........................................................................10
7. Conditions to Obligation to Close......................................................................10
(a) Conditions to Obligation of the Buyer.........................................................10
(b) Conditions to Obligation of the Sellers.......................................................11
8. Remedies for Breaches of This Agreement................................................................11
(a) Survival of Representations and Warranties....................................................11
(b) Indemnification Provisions for Benefit of the Buyer...........................................12
(c) Indemnification Provisions for Benefit of the Sellers.........................................12
(d) Matters Involving Third Parties...............................................................12
(e) Determination of Adverse Consequences.........................................................13
(f) Other Indemnification Provisions..............................................................13
9. Miscellaneous..........................................................................................13
(a) Nature of Certain Obligations.................................................................13
(b) Press Releases and Public Announcements.......................................................13
(c) No Third-Party Beneficiaries..................................................................13
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TABLE OF CONTENTS
(d) Entire Agreement..............................................................................13
(e) Succession and Assignment.....................................................................14
(f) Counterparts..................................................................................14
(g) Headings......................................................................................14
(h) Notices.......................................................................................14
(i) Governing Law.................................................................................15
(j) Amendments and Waivers........................................................................15
(k) Severability..................................................................................15
(l) Expenses......................................................................................15
(m) Incorporation of Exhibits, Annexes, and Schedules.............................................15
Exhibit A Non-Recourse Purchase Money Note
Exhibit B Stock Pledge Agreement
Exhibit C Assumed Liabilities
Exhibit D Side Agreements
Schedule 1 Disclosure Schedule
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into on the 31st day of December, 1999, by and among NP Holding, LLC, a Georgia
limited liability company (the "Buyer"), and LAHAINA ACQUISITIONS, INC., a
Colorado corporation, and ACCENT MORTGAGE SERVICES, INC., a Georgia corporation
(collectively the "Sellers"). The Buyer and the Sellers are referred to
collectively herein as the "Parties."
R E C I T A L S
WHEREAS, the Sellers in the aggregate own all of the outstanding
capital stock of Beachside Commons I, Inc., a Florida corporation (the
"Target"); and
WHEREAS, this Agreement contemplates a transaction in which the Buyer
will purchase from the Sellers, and the Sellers will sell to the Buyer, all of
the outstanding capital stock of the Target in return for the Buyer Note (as
defined below).
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. DEFINITIONS.
"Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands, injunctions,
judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs,
liabilities, obligations, taxes, liens, losses, expenses, and fees, including
court costs and attorneys' fees and expenses.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Business" means the existing business operations of the Target which
consists primarily of owning and leasing (as lessor) certain improved real
property commonly known as Beachside Commons.
"Buyer" has the meaning set forth in the preface above.
"Buyer Note" has the meaning set forth in Section 2(b) below.
"Cash" means cash and cash equivalents (including marketable
securities and short term investments) calculated in accordance with GAAP
applied on a basis consistent with the preparation of the Financial Statements.
"Closing" has the meaning set forth in Section 2(c) below.
"Closing Date" has the meaning set forth in Section 2(c) below.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Information" means any information concerning the
businesses and affairs of the Target that is not already generally available to
the public.
"Disclosure Schedule" has the meaning set forth in Section 4 below.
"Employee Benefit Plan" means any (a) nonqualified deferred
compensation or retirement plan or arrangement which is an employee pension
benefit plan, (b) qualified defined contribution retirement plan or arrangement
which is an employee pension benefit plan, (c) qualified defined benefit
retirement plan or arrangement which is an employee pension benefit plan
(including any multiemployer plan), or (d) employee welfare benefit plan or
material fringe benefit plan or program.
"Environmental Claims" mean any claim, action, cause of action,
investigation or notice (written or oral) by any person or entity alleging
potential liability (including potential liability for investigatory costs,
cleanup costs, governmental response costs, natural resources damages, property
damages, personal injuries or civil or criminal penalties) arising out of or
resulting from the actual or alleged presence or release into the environment
of any Hazardous Materials on or about the Real Property by the Sellers.
"Environmental Laws" mean any federal, state and local law, rule,
regulation, ordinance, order, decree, judgment, injunction, notice or binding
agreement issued by the United States or of any state, municipality or other
subdivision thereof in effect as of the Closing Date relating in any way to the
environment, the management, release or threatened release of any Hazardous
Materials, the health effects of Hazardous Materials or the pollution of the
environment.
"First Mortgage" means the First Mortgage granted by the Target in
favor of Pacific Coast Investment Company in the original principal amount of
$1,550,000.
"Hazardous Materials" mean any contaminant, pollutant, waste,
petroleum, petroleum product, chemical or other substance defined, designated
or classified as hazardous, toxic, radioactive or dangerous under any
Environmental Laws.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"Indemnified Party" has the meaning set forth in Section 8(d) below.
"Indemnifying Party" has the meaning set forth in Section 8(d) below.
"Knowledge" means actual knowledge without independent investigation.
"Liens" means any lien, claim, charge, encumbrance and any security
interest whatsoever, howsoever and wherever created or arising, including
without limitation liens for taxes.
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"Ordinary Course of Business" means the ordinary course of business
consistent with part custom and practice (including with respect to quantity
and frequency).
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Property" means the real property commonly known as "Beachside
Commons" which is located in Nassau County, Florida and is currently owned by
the Target.
"Purchase Price" has the meaning set forth in Section 2(b) below.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Sellers" has the meaning set forth in the preface above.
"Target" has the meaning set forth in the preface above.
"Target Shares" means all of the shares of capital stock of the Target
which is issued and outstanding at the Closing.
"Third Party Claim" has the meaning set forth in Section 8(d) below.
2. PURCHASE AND SALE OF TARGET SHARES.
(a) BASIC TRANSACTION. On and subject to the terms and
conditions of this Agreement, the Buyer agrees to purchase from the
Sellers, and the Sellers agree to sell to the Buyer, all of the Target
Shares for the consideration specified below in this Section 2.
(b) PURCHASE PRICE. The Buyer agrees to pay to the
Sellers at the Closing $4,550,000 (the "Purchase Price") by delivery
of its non-recourse purchase money promissory note (the "Buyer Note")
in the form of Exhibit A attached hereto in the aggregate principal
amount of $3,000,000 secured by 660,000 shares of stock (the
"Collateral") of Lahaina Acquisitions, Inc. to be pledged by Beachside
Holding LLC, a Georgia limited liability company and by taking the
Property subject to the First Mortgage. The Stock Pledge Agreement for
the Collateral will be substantially in the form of Exhibit B attached
hereto and incorporated herein by reference. The Purchase Price shall
be allocated between the Sellers in proportion to their respective
holdings of Target Shares as set forth in Section 4(b) of the
Disclosure Schedule (as defined below) and for the reimbursement,
payment and settlement of all expenses between the Buyer and the
Sellers previously incurred in connection with the acquisition of
Target. The Sellers acknowledge that the Buyer has not participated in
the allocation process.
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(c) THE CLOSING. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Xxxxx Xxxx in
Atlanta, Georgia, commencing at 9:00 a.m. local time on December 30, 1999 or
such other date as the Buyer and the Sellers may mutually determine (the
"Closing Date"); provided, however, that the Closing Date shall be no later
than December 31, 1999.
(d) DELIVERIES AT THE CLOSING. At the Closing, (i) the Sellers
will deliver to the Buyer the various certificates, instruments, and documents
referred to in Section 7(a) below together with such documents, deeds, title
certificates, leases, appraisals, books and records and other written materials
relating to the Property or to the Target, (ii) the Buyer will deliver to the
Sellers the various certificates, instruments, and documents referred to in
Section 7(b) below, (iii) each of the Sellers will deliver to the Buyer stock
certificates representing all of the Target Shares, endorsed in blank or
accompanied by duly executed assignment documents, and (iv) the Buyer will
deliver to the Sellers the consideration specified in Section 2(b) above.
3. REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION.
(a) REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Each of the
Sellers represents, warrants and covenants to the Buyer that the statements
contained in this Section 3(a) are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though
made then and as though the Closing Date were substituted for the date of this
Agreement throughout this Section 3(a)).
(i) Organization of the Sellers. Each Seller is duly
organized, validly existing, and in good standing under the laws of
the jurisdiction of its incorporation.
(ii) Authorization of Transaction. Each Seller has full
corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of each Seller, enforceable
in accordance with its terms and conditions. Each Seller need not give
any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order
to consummate the transactions contemplated by this Agreement.
(iii) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court
to which each Seller is subject or any provision of its charter or
bylaws, or (B) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the
right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or
other arrangement to which each Seller is a party or by which it is
bound or to which any of its assets is subject.
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(iv) Brokers' Fees. The Sellers have no liability or
obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement
for which the Buyer could become liable or obligated.
(v) Target Shares. The Sellers hold of record and owns
all legal and beneficial right, title and interest in and to the
number of Target Shares set forth next to its name in Section 4(b) of
the Disclosure Schedule (as defined below), free and clear of any
restrictions on transfer (other than restrictions under the Securities
Act and state securities laws), Liens, options, warrants, purchase
rights, contracts, commitments, equities, claims, and demands. The
Sellers are not a party to any option, warrant, purchase right, or
other contract or commitment that could require the Sellers to sell,
transfer, or otherwise dispose of any capital stock of the Target
(other than this Agreement). The Sellers are not a party to any voting
trust, proxy, or other agreement or understanding with respect to the
ownership, transfer or voting of any capital stock of the Target.
(b) REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer
represents and warrants to the Sellers that the statements contained in this
Section 3(b) are correct and complete as of the date of this Agreement and will
be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Section 3(b)).
(i) Organization of the Buyer. Buyer is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its formation.
(ii) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court
to which the Buyer is subject, or (B) conflict with, result in a
breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which the Buyer is a
party or by which it is bound.
(iii) Brokers' Fees. The Buyer has no liability or
obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement
for which any of the Sellers could become liable or obligated.
(iv) Investment. The Buyer is not acquiring the Target
Shares with a view to or for sale in connection with any distribution
thereof within the meaning of the Securities Act.
4. REPRESENTATIONS AND WARRANTIES CONCERNING THE TARGET. The Sellers
represent and warrant to the Buyer that the statements contained in this
Section 4 are correct and
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complete as of the date of this Agreement and will be correct and complete as
of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this Section 4), except
as set forth in the disclosure schedule delivered by the Sellers to the Buyer
on the date hereof and initialed by the Parties (the "Disclosure Schedule") and
attached hereto as Schedule 1.
(a) ORGANIZATION, QUALIFICATION, AND CORPORATE POWER.
The Target is a corporation duly organized, validly existing, and in
good standing under the laws of the jurisdiction of its incorporation.
The Target is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification
is required, except where the lack of such qualification would not
have a material adverse effect on the financial condition of the
Target taken as a whole. The Target has full corporate power and
authority to carry on the businesses in which it is engaged and to own
and use the properties owned and used by it. Section 4(a) of the
Disclosure Schedule lists the directors and officers of the Target.
There are no subsidiary corporations of the Target.
(b) CAPITALIZATION. The entire authorized capital stock
of the Target consists of 500 Target Shares, of which 500 Target
Shares are issued and outstanding. All of the issued and outstanding
Target Shares have been duly authorized, are validly issued, fully
paid, and nonassessable, and are held of record by the respective the
Sellers as set forth in Section 4(b) of the Disclosure Schedule. There
are no outstanding or authorized options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights, or other
contracts or commitments that could require the Target to issue, sell,
or otherwise cause to become outstanding any of its capital stock.
There are no outstanding or authorized stock appreciation, phantom
stock, profit participation, or similar rights with respect to the
Target.
(c) NONCONTRAVENTION. To the Knowledge of any of the
Sellers, neither the execution and the delivery of this Agreement, nor
the consummation of the transactions contemplated hereby, will (i)
violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Target is
subject or any provision of the charter or bylaws of any of the Target
or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under
any agreement, contract, lease, license, instrument, or other
arrangement to which the Target is a party or by which it is bound or
to which any of its assets is subject (or result in the imposition of
any Lien upon any of its assets). To the Knowledge of any of the
Sellers, the Target does not need to give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order for the Parties to
consummate the transactions contemplated by this Agreement.
(d) BROKERS' FEES. The Target has not retained or
employed any broker, finder, investment banker or other person or has
taken any action or entered into any agreement or understanding that
would give any broker, finder, investment banker or other person any
valid claim against the Buyer or the Target for a commission,
brokerage fee or other compensation.
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(e) TITLE TO PERSONAL PROPERTY. The Target has good and
marketable title to all of the Target's personal property and other
assets, free and clear of all Liens. All such personal property will
be in possession of the Target on the Closing Date.
(f) LEGAL COMPLIANCE. During the Sellers' ownership of
the Target Shares, the Target has complied in all material respects
with all applicable laws (including rules, regulations, codes, plans,
injunctions, judgments, orders, decrees, rulings and charges
thereunder) of federal, state, local and foreign governments (and all
agencies thereunder). During the Sellers' ownership of the Target
Shares, no action, suit, proceeding, hearing, investigation, charge,
compliant, claim, demand or notice has been filed or commenced against
the Target alleging any failure to so comply.
(g) REAL PROPERTY.
(i) Section 4(g)(i) of the Disclosure Schedule
lists all real property that the Target owns (collectively,
the "Real Property"). With respect to each such parcel of
owned real property:
(A) Target has good and marketable fee
simple title to the Property, free and clear of any
Liens and any other matters other than as set forth
in the Disclosure Schedule;
(B) There are no outstanding options or
rights of first refusal to purchase any of the Real
Property, or any portion thereof or interest therein.
(C) No material changes have occurred to
any of the Real Property since Target was acquired by
the Sellers.
(D) All payments of principle, interest,
taxes and insurance regarding the Real Property are
current through the Closing Date.
(E) To Seller's knowledge, all books and
records, correspondence and other documents
pertaining to the Real Property have been delivered
to Purchaser.
(ii) Section 4(g)(ii) of the Disclosure Schedule
lists all real property leased or subleased by the Target as
lessor or sublessor. The Sellers have delivered to the Buyer
correct and complete copies of the leases and subleases listed
in Section 4(g)(ii) of the Disclosure Schedule (as amended to
date). To the Knowledge of any of the Sellers, each lease and
sublease listed in Section 4(g)(ii) of the Disclosure Schedule
is legal, valid, binding, enforceable, has not been modified
and is in full force and effect.
(h) INTELLECTUAL PROPERTY. Section 4(h) of the Disclosure
Schedule identifies each patent or registration which has been issued to any of
the Target with respect to any of its intellectual property, identifies each
pending patent application or application for registration which any the Target
has made with respect to any of its intellectual property,
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identifies all trademarks and service marks of the Target and identifies each
license, agreement, or other permission which the Target has granted to any
third party with respect to any of its intellectual property.
(i) POWERS OF ATTORNEY. To the Knowledge of any of the Sellers,
there are no outstanding powers of attorney executed on behalf of the Target.
(j) LITIGATION. During the Sellers' ownership of the Target
Shares, there has been no suit, action, proceeding (legal, administrative or
otherwise), claim, investigation or inquiry (by an administrative agency,
governmental body or otherwise) pending or threatened by, against, or otherwise
affecting the Target or any its capital stock properties, assets or business
prospects or the transactions contemplated by this Agreement, at law or in
equity, or before or by any federal, state, municipal or other governmental
department, commission, board, agency, instrumentality, arbitration tribunal,
or other authority, domestic or foreign, or to which the Target is or may
become a party. During the Sellers' ownership of the Target Shares, there has
been no outstanding judgment, order, writ, injunction or decree of any court,
administrative agency, governmental body or arbitration tribunal entered
against or affecting the Target or any of its capital stock, properties, assets
or business prospects of the Target.
(k) EMPLOYEES. The Target does not employ any employees in the
operation of the Business and, therefore, does not maintain any Employee
Benefit Plans.
(l) ENVIRONMENTAL MATTERS. During Sellers' ownership of the
Target Shares:
(i) no Environmental Claims exist or are pending or
threatened against the Target; and
(ii) Hazardous Materials were not used, generated,
emitted, transported, stored, treated or disposed of by the Target in
violation of any Environmental Law or which may result in an
Environmental Claim.
(m) INSURANCE. During the Sellers' ownership of the Target
Shares, the Sellers have maintained all insurance policies (true and complete
copies of which have previously been delivered to the Buyer and are listed in
Section 4(m) of the Disclosure Schedule) in full force, all premiums with
respect to such insurance policies are currently paid and all duties of the
insured under those policies have been fully discharged. There is no threatened
termination of, or premium increase with respect to any of those policies, and
there is no claim by or on behalf of Target pending under any of those policies
as to which coverage has been questioned, denied or disputed by the
underwriters of such policies.
(n) PERMITS AND LICENSES. During the Sellers' ownership of the
Target Shares, the Sellers have maintained all permits, licenses, orders or
approvals necessary for the Target to carry on the Business as presently
conducted and all such permits and licenses are in full force and effect. All
fees and charges incident to those permits, licenses, orders and approvals have
been fully paid and are current, and no suspension or cancellation of any such
permit, license, order or approval has been threatened.
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(o) DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES.
Except as expressly set forth in Section 3 and this Section 4, the
Sellers make no representation or warranty, express or implied, at law
or in equity, in respect of the Target, or any of its respective
assets, liabilities or operations, including, without limitation, with
respect to merchantability or fitness for any particular purpose, and
any such other representations or warranties are hereby expressly
disclaimed.
5. CONVEYANCE OF WARRANTIES AND REPRESENTATIONS. Sellers hereby
transfer convey and assign to Buyer the benefit of all warranties and
representations of Lahaina Acquisitions, Inc., a Colorado corporation, and XXXX
No. 1, Inc., set forth in the Merger Agreement. The Buyer hereby acknowledges
that the Buyer full access to all premises, properties, personnel, books,
records (including tax records), contracts, and documents of or pertaining to
the Target. The Buyer hereby agrees that the Buyer will treat and hold as such
any Confidential Information it receives from any of the Sellers and, the
Target in the course of the reviews contemplated by this Section 5(c), will not
use any of the Confidential Information except in connection with this
Agreement, and, if this Agreement is terminated for any reason whatsoever, will
return to the Sellers and the Target, all tangible embodiments (and all copies)
of the Confidential Information which are in its possession.
6. POST-CLOSING COVENANTS. The Parties agree as follows with
respect to the period following the Closing:
(a) GENERAL. In case at any time after the Closing any
further action is necessary to carry out the purposes of this
Agreement, each of the Parties will take such further action
(including the execution and delivery of such further instruments and
documents) as any other Party reasonably may request, all at the sole
cost and expense of the requesting Party (unless the requesting Party
is entitled to indemnification therefor under Section 8 below),
including but not limited to Sellers directing its auditors to release
financial information pertaining to Target.
(b) LITIGATION SUPPORT. In the event and for so long as
any Party actively is contesting or defending against any action,
suit, proceeding, hearing, investigation, charge, complaint, claim, or
demand in connection with (i) any transaction contemplated under this
Agreement or (ii) any fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction on or prior to the Closing Date
involving the Target each of the other Parties shall cooperate with it
and its counsel in the defense or contest, make available their
personnel, and provide such testimony and access to their books and
records as shall be necessary in connection with the defense or
contest, all at the sole cost and expense of the contesting or
defending Party (unless the contesting or defending Party is entitled
to indemnification therefor under Section 8 below).
(c) TRANSITION. None of the Sellers will take any action
that is designed or intended to have the effect of discouraging any
lessor, licensor, customer, supplier, or other business associate of
the Target from maintaining the same business relationships with the
Target after the Closing as it maintained with the Target prior to the
Closing.
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(d) ASSUMED LIABILITIES. The Sellers, jointly and severally,
agree to perform and pay when owning all debts, liabilities and obligations
that are set forth on Exhibit C attached hereto and any liabilities associated
with the ownership or operation of the Target during the Seller's operation of
the Business prior to the Closing Date (the "Assumed Liabilities"). Upon
written notice from Buyer, Sellers agree to pay such liabilities within thirty
(30) days after the receipt of written demand from the Buyer for payment. Any
payments not made within thirty (30) days after receipt of written demand from
the Buyer for payment may be satisfied by the Buyer pursuant to the terms of
the Stock Pledge Agreement attached hereto as Exhibit B. The Buyer hereby
agrees that the Sellers shall be entitled to sell any portion of the Collateral
in accordance with the Stock Pledge Agreement to satisfy any of the Assumed
Liabilities and the principal amount of the Buyer Note shall be reduced by the
numbers of shares sold by $4.00 per share regardless of the sales price of the
Collateral sold in order to satisfy payments on the First Mortgage due and
payable prior to the Closing Date, real property taxes due and owing on the
Property for the time period in which the Sellers' owned the Target Shares or
the liabilities set forth on Exhibit C attached hereto. In addition, Sellers
jointly and severally, hereby agree to pay all late fees and filing fees
described in the Letter Agreement dated as of December 31, 1999 among Lahaina
Acquisitions, Inc., Buyer and Beachside Holding, LLC. Any payments of any such
fees not made within one (1) business day after receipt by Lahaina
Acquisitions, Inc. of written demand from the Buyer and/or NP Holding may be
satisfied by Beachside Holding, LLC pursuant to the terms of the Stock Pledge
Agreement attached hereto as Exhibit B. In addition, with respect to transfers
of stock for the payment of such Assumed Liabilities, Sellers agree, jointly
and severally, at their cost to use commercially reasonable efforts to cause
legal counsel for Lahaina Acquisitions, Inc. to execute and deliver to Lahaina
Acquisitions, Inc.'s transfer agent a written legal opinion confirming
compliance with Rule 144 under the Securities Act of 1933, provided that such
sale of stock complies with the requirements set forth in Rule 144, within two
(2) business days after receipt by such counsel of an appropriate seller's
representation letter and a broker's representation letter.
7. CONDITIONS TO OBLIGATION TO CLOSE.
(a) CONDITIONS TO OBLIGATION OF THE BUYER. The obligation of the
Buyer to consummate the transactions to be performed by it in connection with
the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in
Section 3(a) and Section 4 above shall be true and correct in all
material respects at and as of the Closing Date;
(ii) the Sellers shall have performed and complied with
all of their covenants hereunder in all material respects through the
Closing;
(iii) there shall not be any injunction, judgment, order,
decree, ruling, or charge in effect preventing consummation of any of
the transactions contemplated by this Agreement;
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(iv) the relevant parties shall have entered into
side agreements listed on Exhibit D;
(v) the Sellers will pay all payments due and
payable prior to the Closing Date under the First Mortgage
with third party written verification that all payments have
been made and the outstanding principle balance of the First
Mortgage.
(vi) The Sellers shall have delivered third-party
written verification that (a) all insurance premiums,
property taxes and utilities relating to the Property and
attributable to the period on or prior to the Closing Date
shall have been paid in full; (b) that the Target shall have
no liability under the second mortgage currently effecting
the Property
(vii) all actions to be taken by the Sellers in
connection with consummation of the transactions contemplated
hereby and all certificates, opinions, instruments, and other
documents required to effect the transactions contemplated
hereby will be reasonably satisfactory in form and substance
to the Buyer.
The Buyer may waive any condition specified in this Section 7(a) if it
executes a writing so stating at or prior to the Closing.
(b) CONDITIONS TO OBLIGATION OF THE SELLERS. The
obligation of the Sellers to consummate the transactions to be
performed by them in connection with the Closing is subject to
satisfaction of the following conditions:
(i) the representations and warranties set forth
in Section 3(b) above shall be true and correct in all
material respects at and as of the Closing Date;
(ii) the Buyer shall have performed and complied
with all of its covenants hereunder in all material respects
through the Closing;
(iii) there shall not be any injunction, judgment,
order, decree, ruling, or charge in effect preventing
consummation of any of the transactions contemplated by this
Agreement;
(iv) the relevant parties shall have entered into
side agreements listed on Exhibit D; and
(v) all actions to be taken by the Buyer in
connection with consummation of the transactions contemplated
hereby and all certificates, opinions, instruments, and other
documents required to effect the transactions contemplated
hereby will be reasonably satisfactory in form and substance
to the Sellers.
The Sellers may waive any condition specified in this Section 7(b) if
they execute a writing so stating at or prior to the Closing.
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8. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of the Sellers contained in Section 4 above
shall survive the Closing hereunder and continue in full force and effect for a
period of one (1) year thereafter, except with respect to any federal or state
taxes of Target, the representations and warranties of the Seller shall
continue until the applicable statute of limitations has expired. All of the
representations and warranties of the Parties contained in Section 3 above
shall survive the Closing (unless the damaged Party knew or had reason to know
of any misrepresentation or breach of warranty at the time of Closing) and
continue in full force and effect forever thereafter (subject to any applicable
statutes of limitations).
(b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE BUYER.
(i) In the event any of the Sellers breaches any of
their representations, warranties, and covenants contained herein and
if there is an applicable survival period pursuant to Section 8(a)
above, provided that the Buyer makes a written claim for
indemnification against any of the Sellers within such survival
period, then each of the Sellers agrees to indemnify the Buyer from
and against any Adverse Consequences the Target shall suffer as a
proximate cause of such breach. Any claims for indemnification by
Buyer against Seller shall be satisfied within ten (10) days after
written demand is made by Buyer to Seller. If any claim for
indemnification is not satisfied by Seller within the required time
limits, Buyer may proceed under the terms of the Stock Pledge
Agreement attached hereto as Exhibit B.
(c) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE SELLERS. In the
event the Buyer breaches any of its representations, warranties, and covenants
contained herein, and, if there is an applicable survival period pursuant to
Section 8(a) above, provided that any of the Sellers makes a written claim for
indemnification against the Buyer within such survival period, then the Buyer
agrees to indemnify each of the Sellers from and against the entirety of any
Adverse Consequences the Sellers shall suffer through and after the date of the
claim for indemnification (but excluding any Adverse Consequences the Sellers
shall suffer after the end of any applicable survival period) caused by the
breach.
(d) MATTERS INVOLVING THIRD PARTIES.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party
Claim") which may give rise to a claim for indemnification against any
other Party (the "Indemnifying Party") under this Section 8, then the
Indemnified Party shall promptly (and in any event within five (5)
business days after receiving notice of the Third Party Claim) notify
each Indemnifying Party thereof in writing.
(ii) Any Indemnifying Party will have the right at any
time to assume and thereafter conduct the defense of the Third Party
Claim with counsel of its
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choice; provided, however, that the Indemnifying Party will not
consent to the entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written consent of
the Indemnified Party (not to be withheld unreasonably) unless the
judgment or proposed settlement involves only the payment of money
damages and does not impose an injunction or other equitable relief
upon the Indemnified Party.
(iii) Unless and until an Indemnifying Party assumes the
defense of the Third Party Claim as provided in Section 8(d)(ii)
above, however, the Indemnified Party may defend against the Third
Party Claim in any manner it reasonably may deem appropriate.
(iv) In no event will the Indemnified Party consent to
the entry of any judgment or enter into any settlement with respect to
the Third Party Claim without the prior written consent of each of the
Indemnifying Parties.
(v) Notwithstanding anything to the contrary set forth
in this Section 8(d), the rights of third parties to make a Third
Party Claim shall not apply to those liabilities set forth on Exhibit
C attached hereto.
(e) DETERMINATION OF ADVERSE CONSEQUENCES. The Parties shall make
appropriate adjustments for insurance coverage in determining Adverse
Consequences for purposes of this Section 8.
(f) OTHER INDEMNIFICATION PROVISIONS. The indemnification
provisions in this Section 8 are in addition to, and not in derogation of, any
statutory, equitable, or common law remedy any Party may have for breach of
representation, warranty, or covenant, provided, however, that the Buyer's
obligations under the Buyer's Note shall be non-recourse and Buyer's recourse
obligations hereunder shall be limited exclusively to the warranties and
representations set forth in Section 3(b) hereof.
9. MISCELLANEOUS.
(a) NATURE OF CERTAIN OBLIGATIONS. The covenants of each of the
Sellers in Section 3(a) above concerning the sale of the Target Shares to the
Buyer, the representations and warranties of each of the Sellers in Section
4(a) above concerning the transaction and the indemnification obligations under
Section 8 are joint and several obligations.
(b) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue
any press release or make any public announcement relating to the subject
matter of this Agreement prior to the Closing without the prior written
approval of the Buyer and the Sellers; provided, however, that any Party may
make any public disclosure it believes in good faith is required by applicable
law or any listing or trading agreement concerning its publicly-traded
securities (in which case the disclosing Party will use its reasonable best
efforts to advise the other Parties prior to making the disclosure).
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(c) NO THIRD-PARTY BENEFICIARIES. Other than the indemnification
provisions set forth in Section 8(a), (b), (c) and (d) of this Agreement, this
Agreement shall not confer any rights or remedies upon any Person other than
the Parties and their respective successors and permitted assigns.
(d) ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among
the Parties, written or oral, to the extent they have related in any way to the
subject matter hereof. Notwithstanding anything to the contrary set forth in
this Agreement, this Agreement is not intended to supercede or affect the
Agreement and Plan of Merger Agreement dated July 21, 1999 by and between
Lahaina Acquisitions, Inc., XXXX No.1, Inc., The Accent Group, Inc., Accent
Mortgage Services, Inc. and Mongoose Investments, LLC.
(e) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior
written approval of the Buyer and the Sellers; provided, however, that the
Buyer may (i) assign any or all of its rights and interests hereunder to one or
more of its Affiliates, and (ii) designate one or more of its Affiliates to
perform its obligations hereunder (in any or all of which cases the Buyer
nonetheless shall remain responsible for the performance of all of its
obligations hereunder).
(f) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) HEADINGS. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
(h) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and then
two (2) business days after) it is sent by overnight delivery, registered or
certified mail, return receipt requested, postage prepaid, and addressed to the
intended recipient as set forth below:
If to the Sellers: Lahaina Acquisitions, Inc.
Accent Mortgage Services, Inc.
Xxxxx 000
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
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If to the Buyer: NP Holding, LLC
Xxxxxx X. Xxxxxxxx, Manager
0000 Xxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
With a copy to: Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxx & Green
Suite 1400
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication shall be deemed to
have been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests,
demands, claims, and other communications hereunder are to be delivered by
giving the other Parties notice in the manner herein set forth.
(i) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Georgia without
giving effect to any choice or conflict of law provision or rule (whether of
the State of Georgia or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Georgia.
(j) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Buyer and the Sellers. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(k) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) EXPENSES. Each of the Buyer, and the Sellers will bear their
own costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby.
(m) INCORPORATION OF EXHIBITS, ANNEXES, AND SCHEDULES. The
Exhibits, Annexes, and Schedules identified in this Agreement are incorporated
herein by reference and made a part hereof.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
as of the date first above written.
BUYER:
NP HOLDING, LLC
By /s/
---------------------------------
Name Xxxxxx X. Xxxxxxxx
-------------------------------
Title Manager
-------------------------------
SELLERS:
LAHAINA ACQUISITIONS, INC.
By /s/
---------------------------------
Name L. Xxxxx Xxxxxxx
-------------------------------
Title President
-------------------------------
ACCENT MORTGAGE SERVICE, INC.
By /s/
---------------------------------
Name Xxxxx Xxxxxxxx
-------------------------------
Executive Vice President
Title and Secretary
-------------------------------
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EXHIBIT A
NON-RECOURSE PURCHASE MONEY NOTE
$3,000,000 ATLANTA, GEORGIA
FOR VALUE RECEIVED, the undersigned, NP HOLDING, LLC, a Georgia
limited liability company ("Maker"), with offices located at 0000 Xxxxxxx 00
Xxxx, Xxxxx 000-000, Xxxxxxxxxxx, XX 00000, on this 31st day of December, 1999
promises to pay to the order of ACCENT MORTGAGE SERVICES, INC., a Georgia
corporation ("Holder"), at 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000, or any
other location designated by Holder, the sums specified below at the time or
times indicated below.
1. PRINCIPAL AND INTEREST. Maker promises to pay the entire
principal amount of THREE MILLION DOLLARS ($3,000,000), together with interest
on the outstanding principal balance until the Maturity Date (as hereinafter
defined) at the rate of six percent (6%) per annum, in lawful money of the
United States and in immediately available funds on or before December 31, 2000
(the "Maturity Date"). If the Maturity Date occurs on a day other than a
business day, the Maturity Date shall be extended to the next succeeding
business day, and interest shall be payable thereon at the rate herein
specified during such extension.
2. DEFAULT. Each of the following events shall constitute an "Event
of Default" hereunder: (a) if the value of the Collateral (hereinafter defined)
as determined by the average closing price for thirty (30) consecutive days is
less than 102% of the principal amount of the Note; (b) Maker makes an
assignment for the benefit of creditors, or files a voluntary petition in
bankruptcy, receivership or insolvency, or files an answer in any involuntary
proceedings of that nature admitting the material allegations of the petition,
or if a proceeding or bankruptcy, receivership or insolvency, shall be
instituted against Maker and such proceeding shall not be dismissed within
sixty (60) days, or if a trustee or receiver shall be appointed for Maker and
such proceeding shall not be dismissed or such trustee or receiver shall not be
discharged within sixty (60) days (collectively subsections (a) and (b)
referred to herein as a "Default"), then a Default shall exist hereunder, and
any sums advanced hereunder, together will all unpaid interest accrued thereon,
shall, at the option of Holder, without further notice, at once shall, become
due and payable and may be collected immediately, regardless of the stipulated
Maturity Date. Notwithstanding anything to the contrary set forth in this Note,
Holder hereby agrees that Holder will not exercise its remedies under this Note
in the event of a default under Section 2(a) unless and until all obligations
and liabilities of the "Sellers" set forth in Section 6(d) of the Stock
Purchase Agreement dated December 31, 1999, between Maker, "Buyer" therein and
Holder and Lahaina Acquisitions, Inc., "Sellers" therein, have been paid and
satisfied in full and under no circumstances shall Holder sell more than eighty
percent (80%) of the shares pledged under the Pledge Agreement (as defined
below) within the first ninety (90) days after the date hereof.
3. COLLATERAL. Maker has caused to be delivered to Holder 660,000
shares of common stock (the "Collateral") of Lahaina Acquisitions, Inc. a
Colorado corporation pursuant to the terms and conditions of a Stock Pledge
Agreement of even date herewith (the "Pledge Agreement").
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4. EXCULPATION. Notwithstanding any other provisions of this Note,
the sole remedy for the repayment of the principal and interest and costs shall
be limited to the Collateral or any proceeds realized from the sale of the
Collateral. If the principal amount of this Note together with all accrued
interest is not paid by the Holder to the Maker on the Maturity Date, Holder
shall take possession of the Collateral free and clear of all liens and
encumbrances and satisfy all of the obligations of Maker hereunder.
It is expressly understood and agreed that the undertaking of the
Maker to pay this Note is included herein for the sole purpose of establishing
the existence of the indebtedness evidenced by this Note and the maturity of
such indebtedness. The Holder or Holders of this Note will not have any claim,
remedy, or right to proceed (at law or in equity) against Maker or the members
of Maker or their affiliates for the payment of any deficiency or any other sum
or performance of any obligation of any nature whatsoever under this Note or
under the Pledge Agreement or in connection therewith, from any source other
than the Collateral; provided, however, nothing herein contained will limit,
restrict, or impair the rights of the Holder of this Note to accelerate the
maturity of this Note during the continuance of an Event of Default under this
Note except as otherwise provided herein with respect to a default under
Section 2(a).
5. WAIVER OF NOTICE AND REMEDIES. Maker hereby (a) waives grace,
presentment and demand for payment, protest and notice of protest, and
non-payment, all other notice, including notice of intent to accelerate the
Maturity Date and notice of acceleration of the Maturity Date, filing of suit
and diligence in collecting this Note, (b) consents to any extension or
postponement of time of payment of this Note and in any other indulgence with
respect hereto without notice from Holder and (c) agrees that Holder shall not
be required first to institute suit or exhaust its remedies against Maker under
this Note.
6. NOTICES. Any and all other notices, elections, demands, requests
and responses thereto permitted or required to be given under this Note shall
be in writing, signed by or on behalf of the party giving the same, and shall
be deemed properly given and effective upon being (a) personally delivered, (b)
deposited with an overnight courier service in time for and specifying
overnight delivery or (c) deposited in the United States mail, postage prepaid,
certified with return receipt requested to the other party at the address of
such other party set forth in the first paragraph hereof. All such notices
shall be deemed delivered on the date of delivery if sent by personal delivery,
the next business day by overnight courier service and five (5) days after
being deposited in the United States Mail if sent by registered or certified
mail.
7. USURY LAW. It is the intention of Maker and Holder to comply with
any applicable usury laws. In furtherance of this intention of Holder and
Maker, all agreements between Maker and Holder are hereby expressly limited so
that in no contingency or event whatsoever shall the amount paid or agreed to
be paid to Holder for the use, forbearance or detention of money under this
Note exceed the maximum rate permissible under applicable law. If, from any
circumstance whatsoever, fulfillment of any provision hereof shall be
prohibited by law, the obligation to be fulfilled shall be reduced to the
maximum not so prohibited, and if from any circumstances Holder should ever
receive as interest an amount which would exceed the highest lawful rate, such
amount as would be excessive interest shall, at Holder's option, shall be
applied to the reduction of the principal of the Note and not to the payment of
interest, or shall be
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refunded to Maker. This provision shall control every other provision of all
agreements between Maker and Holder.
8. TIME OF ESSENCE. Time is of the essence of this Note.
9. JURISDICTION. Maker admits that this Note has been negotiated,
executed and delivered in Atlanta, Georgia, Xxxxxx County, and that Maker (a)
submits to personal jurisdiction in Xxxxxx County in the State of Georgia for
the enforcement of this Note, (b) waives any and all rights under the laws of
any state to object to jurisdiction within the State of Georgia for the
purposes of litigation to enforce this Note and (c) waives trial by jury.
10. OFFSET RIGHTS. Holder and Maker acknowledge that the terms and
conditions relating to the offset right of Maker to this Note as set forth in
Section 6(d) of the Stock Purchase Agreement dated December 31, 1999 are
incorporated herein by reference.
11. MISCELLANEOUS. Any payment received by Holder hereunder may, at
Holder's option, be applied first to interest or to reduce the principal
balance. A waiver or release with reference to one event shall not be construed
as continuing, as a bar to, or as a waiver or release of any subsequent right,
remedy or recourse to any subsequent event. No failure or delay on the part of
Holder in exercising any right, power or remedy granted hereunder shall operate
as waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder. Maker hereby consents to all
renewals and extensions of time at or after the maturity hereof and hereby
waives diligence, presentment, protest, demand and notice of every kind and, to
the full extent permitted by law, the right to plead any statute of limitations
as a defense and hereby agrees that no failure on the part of Holder to
exercise any power, right and privilege hereunder, or to insist upon prompt
compliance with the terms hereof, shall constitute a waiver thereof. This Note
may not be changed orally, but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification or discharge
is sought. As used herein, the terms, "Maker" and "Holder" shall be deemed to
include their respective successors, legal representatives and assigns, whether
by voluntary action of the parties or by operation of law.
12. PREPAYMENT. This Note may be prepaid in whole or in part prior
to the Maturity Date without premium or penalty.
13. NONTRANSFERABLE NOTE. Holder shall not transfer, sell, assign or
convey this Note or any rights hereunder to any individual or other person or
entity unless the transferee or assignee thereof is a corporate affiliate of
the initial Holder on the date hereof and any transfer or purported transfer of
this Note in violation of this Section 13 shall be null and void.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF GEORGIA.
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IN WITNESS WHEREOF, the undersigned, by its officers duly appointed
and authorized, has executed this Note as of the day and year first above
written.
MAKER:
NP HOLDING, LLC
By
------------------------------------
Name
-----------------------------------
Title
----------------------------------
[SEAL]
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EXHIBIT B
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (the "Agreement"), entered into as of this
31st day of December, 1999, by and between BEACHSIDE HOLDING, LLC, a Georgia
limited liability company (the "Pledgor"), and Lahaina Acquisitions, Inc., a
Colorado corporation, and ACCENT MORTGAGE SERVICES, INC., a Georgia corporation
(collectively, the "Pledgee").
WITNESSETH
WHEREAS, NP Holding, LLC on even date herewith has delivered a
Non-Recourse Purchase Money Note payable to Pledgee in the original principal
amount of $3,000,000 (the "Note"); and
WHEREAS, to secure the payment and performance of all obligations of
NP Holding, LLC under the Note, the Pledgor wishes to pledge to the Pledgee all
of its right, title and interest in 660,000 shares of common stock of Lahaina
Acquisitions, Inc. currently owned by Pledgor (the "Stock");
NOW, THEREFORE, the parties hereby agree as follows:
1. WARRANTY. Pledgor hereby represents and warrants to the Pledgee
that except for the security interest created hereby, the Pledgor owns the
stock free and clear of all liens, charges and encumbrances, that the Stock is
duly issued, fully paid and nonassessable, and that Pledgor has the
unencumbered right to pledge its Stock.
2. SECURITY INTEREST. Pledgor hereby unconditionally grants and
assigns to the Pledgee, its successors and assigns, a continuing security
interest in and to the Stock. The Pledgor has delivered to and deposited with
the Pledgee herewith all of its right, title and interest in and to the Stock,
together with certificates representing the Stock and stock powers endorsed in
blank by Pledgor, as security for the payment and performance of all
obligations of Pledgor to the Pledgee under the Note, or any extension,
renewal, amendment or modification of the foregoing, however created, acquired,
arising or evidenced, whether direct or indirect, absolute or contingent, now
or hereafter existing, or due or to become due. Beneficial ownership of the
Stock, including, without limitation, all voting, consensual and dividend
rights, shall remain in the Pledgor until the occurrence of an Event of Default
(as defined below) and until the Pledgee shall notify Pledgor of the Pledgee's
exercise of voting rights to the Stock pursuant to Section 8 of this Agreement.
3. ADDITIONAL SHARES. In the event that, during the term of this
Agreement:
(a) any stock dividend, stock split, reclassification,
readjustment or other change is declared or made in the capital
structure of Pledgee, all new, substituted and additional shares, or
other securities, issued by reason of any such change and received by
Pledgor or to which Pledgor shall be entitled shall be immediately
delivered to the
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Pledgee, together with stock powers endorsed in blank by Pledgor, and
shall thereupon constitute Stock to be held by the Pledgee under the
terms of this Agreement; and
(b) subscriptions, warrants or any other rights or options
shall be issued in connection with the Stock, all new stock or other
securities acquired through such subscriptions, warrants, rights or
options by Pledgor shall be immediately delivered to the Pledgee and
shall thereupon constitute Stock to be held by the Pledgee under the
terms of this Agreement.
4. DEFAULT. In the event of a default under the terms of the Note
or a default under the terms of this Agreement (any of such occurrences being
referred to as an "Event of Default"), after ten (10) days' written notice to
Pledgor, Pledgee shall have the right to take title to the Stock and shall
deposit the Stock as treasury stock of Lahaina Acquisitions, Inc. The value of
such Stock shall be determined by the closing price of shares of common stock
of Lahaina Acquisitions, Inc. as quoted on the OTC Bulletin Board on the date
the title of such shares is transferred to Pledgee. In the event the value of
shares is not sufficient to pay such expenses, interest, principal, obligations
and damages, the Pledgor shall not be liable to the Pledgee for any such
deficiency.
5. EXPENSES. Each party shall be responsible for the payment of
their expenses incurred in connection with this Agreement.
6. RETURN OF STOCK TO PLEDGOR. Upon payment in full of all
principal and interest on the Note and full performance by the Pledgor of all
covenants, undertakings and obligations under the Note, the Pledgee shall
immediately return to the Pledgor all of the then remaining Stock and all
rights received by the Pledgee as agent for the Pledgor as a result of its
possessory interest in the Stock.
7. PLEDGOR'S OBLIGATIONS ABSOLUTE. The obligations of the Pledgor
under this Agreement shall be direct and immediate and not conditional or
contingent upon the pursuit of any remedies against any other person, nor
against other security or liens available to the Pledgee or its successors,
assigns or agents. The Pledgor hereby waives any right to require that an
action be brought against any other person or to require that resort be had to
any security or to any balance of any deposit account or credit on the books of
the Pledgee in favor of any other Person prior to any exercise of rights or
remedies hereunder, or to require resort to rights or remedies of the Pledgee
in connection with the Note.
8. VOTING RIGHTS.
(a) For so long as the Note remains unpaid, after an Event
of Default, (i) the Pledgee may, upon five (5) days' prior written
notice to the Pledgor of its intention to do so, exercise all voting
rights, and all other ownership or consensual rights of the Stock, but
under no circumstances is the Pledgee obligated by the terms of this
Agreement to exercise such rights, and (ii) Pledgor hereby appoints
the Pledgee, which appointment shall be effective on the fifth day
following the giving of notice by the Pledgee as provided in the
foregoing Section 8(a)(i), Pledgor's true and lawful attorney-in-fact
and IRREVOCABLE PROXY to vote the Stock in any manner the Pledgee
deems advisable
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for or against all matters submitted or which may be submitted to a
vote of shareholders. The power-of-attorney granted hereby is coupled
with an interest and shall be irrevocable.
(b) For so long as Pledgor shall have the right to vote
the Stock, Pledgor covenants and agrees that it will not, without the
prior written consent of the Pledgee vote or take any consensual
action with respect to the Stock which would constitute a default
under this Agreement.
9. DIVIDENDS. The Pledgor shall be entitled to receive and
retain any and all dividends and other payments in respect of the Stock
provided, however, that any and all:
(a) dividends paid or payable other than in cash, and
instruments and other property received or receivable in respect the
Stock;
(b) dividends and other distributions paid or payable in
cash in respect of any Stock in connection with a partial or total
liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in-surplus, and
(c) cash paid or payable in redemption of, or in exchange
for, any Stock,
shall be delivered to the Pledgee to hold as collateral and shall, if received
by the Pledgor, be received in trust for the benefit of the Pledgee and be
segregated from the other property or funds of the Pledgor (with any necessary
endorsement).
10. RELEASE OF STOCK.
(a) ESTABLISHMENT OF BROKERAGE ACCOUNT. Pledgor and
Pledgee shall on or before January ___, 2000 establish a joint account
(the "Escrow Fund") with Xxxxxx Xxxxxxx Xxxx Xxxxxx ("Xxxxxx Xxxxxxx")
and shall deposit the Stock in the Escrow Fund. Upon the opening of
the joint account, the parties agree to deliver joint written
instructions to Xxxxxx Xxxxxxx to dispose of the Stock in accordance
with the terms of this Agreement. On December 31, 2000, all Stock
remaining in the Escrow Fund shall be delivered to Pledgee unless any
Disputes (as defined below) remain unpaid, a number of shares of Stock
equal to the aggregate dollar amount of such Disputes (as shown in the
Notice of Dispute) shall be retained by Xxxxxx Xxxxxxx in the Escrow
Fund (and the balance paid to Pledgee in such proportions). Pledgor's
authorized representative and Pledgee's authorized representative
shall be named in the joint instructions delivered to Xxxxxx Xxxxxxx.
Upon receipt of written instructions from either Pledgor's authorized
representative or Pledgee's authorized representative that a condition
under Section 10(b) has occurred, Xxxxxx Xxxxxxx shall at the end of
such business day sell that amount of shares from the Escrow Fund as
indicated in the written instructions and shall hold the proceeds
received from such sale for a period of at least five (5) business
days. Upon joint instructions of Pledgor and Pledgee, Xxxxxx Xxxxxxx
shall be instructed in writing to release the proceeds received from
such sale to the appropriate party.
(b) CONDITIONS FOR RELEASE OF ESCROW FUND. Pledgor or
Pledgee may deliver unilateral instructions for the sale or delivery
of stock as follows:
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(i) By the Pledgor provided the sale will generate net
proceeds, after the deduction of expenses and commissions, of $4.00
per share which proceeds shall reduce the outstanding principal of the
Note with the remainder of sales proceeds paid to Pledgor;
(ii) By the Pledgor in the event that the liabilities set
forth on Exhibit A attached hereto are not paid in accordance with
Section 6(d) of the Purchase Agreement, then Buyer may sell an amount
of shares of stock from the Escrow Fund which will generate net
proceeds, after the deduction of expenses and commissions, up to an
amount equal to the unpaid amount of such liabilities plus a fee to be
retained by Pledgor equal to 40% of such liabilities provided that the
net proceeds (other than the 40% fee) are used by Pledgor to pay in
full such unpaid liabilities; or
(iii) By the Pledgee if the value of the Stock (as measured
by the closing price of the shares of common stock of Lahaina
Acquisitions, Inc. as quoted on the OTC Bulletin Board) for thirty
(30) consecutive days is less than 102% of the principal amount of the
Note in accordance with and subject to the provisions of Section 2(a)
of the Note.
Notwithstanding the foregoing, the parties hereby agree that
shares of stock from the Escrow Fund may only be sold in increments of
1,000 shares. Notice of instructions to Xxxxxx Xxxxxxx by one party
shall be simultaneously provided to the other party.
(c) PAYMENT OF LIABILITIES. In the event that shares of stock
from the Escrow Fund are sold pursuant to Section 10(b)(ii), Pledgor shall use
the proceeds received from the sale of such stock to pay for the liabilities
which were not paid by Pledgee in accordance with Section 6(d) of the Purchase
Agreement and for the payment of expenses and commissions associated with such
sale of stock and the 40% fee to which Pledgor is entitled to receive under
Section 10(b)(ii) above. Pledgor shall furnish Pledgee within five (5) days
from the receipt of such proceeds with sufficient evidence of the payment in
full of such liabilities. Pledgor hereby agrees to indemnify, defend and hold
Pledgee harmless from and against any and all claims, losses, liabilities,
costs and expenses (including attorneys' fees and expenses) arising out a
breach of Pledgor of this Section 10(c).
(d) CLAIMS. If either party dispute the occurrence of any of the
conditions set forth in Section 10(b) of this Agreement (a "Dispute"), the
disputing party shall deliver a written notice of a Dispute (a "Notice of
Dispute") to the other party within twenty-four (24) hours from the receipt of
notice from the other party that a condition for the release of the shares of
stock from the Escrow Fund has occurred. Such Notice of Dispute shall specify
the nature of any Dispute, the claims of each party to the Dispute and shall
specify the amount and nature of any damages, if any, sought to be recovered as
a result of any alleged claim. The parties hereby agree and acknowledge that
all Disputes shall be resolved between the parties. If the parties are unable
to resolve such Dispute within one (1) business day from the receipt of a
Notice of Dispute then the parties hereby agree
4
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that the Dispute shall be resolved by the decision of an independent
third party selected by the parties (the "Arbitrator") in the
Arbitrator's sole discretion within five (5) business days from the
date of the Notice of Dispute. In the event that the parties are
unable to agree upon an Arbitrator, Pledgor and Pledgee hereby agree
that Xxxx XxXxxxx, Esq. shall resolve the Dispute as the Arbitrator.
The parties hereby agree that the decision by the Arbitrator shall
final and binding on all parties hereto. Pledgor and the Pledgee may
enforce any final determination in any state or federal court located
in Atlanta, Georgia. The parties hereby agree to issue joint written
instructions to Xxxxxx Xxxxxxx for the release of the proceeds of the
sale of stock from the Escrow Fund promptly upon the resolution of any
Dispute by the Arbitrator hereunder. If a Dispute has not arisen
between the parties under this Agreement, the parties hereby agree to
issue joint written instructions to Xxxxxx Xxxxxxx for the release of
the proceeds of the sale of the stock from the Escrow Fund no later
than the clearance of such sale of stock by Xxxxxx Xxxxxxx.
11. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when (a) delivered
personally, (b) sent by telecopier (with written confirmation of receipt),
provided that a copy is mailed by registered mail, return receipt requested,
(c) one (1) business day after delivery by a recognized express overnight
courier service or (d) three (3) days after being mailed by certified mail,
return receipt requested, to the parties at the following addresses:
If to the Pledgor: Xx. Xxxxxx X. Xxxxxxxx
Beachside Holding, LLC
0000 Xxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Facsimile Number:
with a copy to: Xxxxxx X. Xxxxxxx, Esquire
Xxxxxxx, Xxxxxx & Green
The Lenox Building, Suite 1400
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
If to the Pledgee: L. Xxxxx Xxxxxxx
Lahaina Acquisitions, Inc.
Suite 220
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Facsimile Number:
5
29
with a copy to: Xxxxxx X. Xxxxxxxxx, Esquire
Xxxxx Xxxx LLP
Suite 2100
Peachtree Center South Tower
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
12. BINDING AGREEMENT. The provisions of this Agreement shall be
construed and interpreted, and all rights and obligations of the parties hereto
determined, in accordance with the laws of the State of Georgia. This
Agreement, together with all documents referred to herein including the Escrow
Agreement, constitutes the entire Agreement between the Pledgor and the Pledgee
with respect to the matters addressed herein and may not be modified except by
a writing executed by the Pledgee and delivered by the Pledgee to the Pledgor.
This Agreement may be executed in multiple counterparts, each of which shall be
deemed an original but all of which, taken together, shall constitute one and
the same instrument.
13. SEVERABILITY. If any paragraph or part thereof shall for any
reason be held or adjudged to be invalid, illegal or unenforceable by any court
of competent jurisdiction, such paragraph or part thereof so adjudicated
invalid, illegal or unenforceable shall be deemed separate, distinct and
independent, and the remainder of this Agreement shall remain in full force and
effect and shall not be affected by such holding or adjudication.
14. ASSIGNMENT, BINDING EFFECT. Except with the prior written
consent of the Pledgee, no assignment or transfer by the Pledgor of the
Pledgor's rights and obligations under this Agreement may be made. In addition,
Pledgee may not assign its rights under this Agreement to a third party except
with the prior written consent of the Pledgor, which shall not be unreasonably
withheld. This Agreement shall be binding upon the parties to this Agreement
and their respective successors and assigns, shall inure to the benefit of the
parties to this Agreement and their respective permitted successors and assigns
and any reference to a party to this Agreement shall also be a reference to a
successor or assign.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and each counterpart shall be deemed to be an original.
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30
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
affixed their seals, by and through their duly authorized officers, as of the
day and year first above written.
PLEDGOR:
BEACHSIDE HOLDING, LLC
By
---------------------------------
Name
--------------------------------
Title
-------------------------------
PLEDGEE:
LAHAINA ACQUISITIONS, INC.
By
---------------------------------
Name
--------------------------------
Title
-------------------------------
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31
EXHIBIT C
ASSUMED LIABILITIES
LAHAINA PAYABLES
-------------------------------------------------------------------------------------------------------------------
PRE-MERGER MERGER RELATED
-------------------------------------------------------------------------------------------------------------------
AAA Advertising Agency $ 2,975 0
-------------------------------------------------------------------------------------------------------------------
Allsafe $ 64 0
-------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx $ 1,200 0
-------------------------------------------------------------------------------------------------------------------
Xxxxxx Islander Magazine $ 8,649 0
-------------------------------------------------------------------------------------------------------------------
Arm & Associates 0 10,000
-------------------------------------------------------------------------------------------------------------------
AT&T (Long Distance) $ 1,222 0
-------------------------------------------------------------------------------------------------------------------
Boree Canvas $ 2,778 0
-------------------------------------------------------------------------------------------------------------------
Brad's Glass $ 4,426
-------------------------------------------------------------------------------------------------------------------
Xxxxxx $ 22,342 0
-------------------------------------------------------------------------------------------------------------------
FPU (Shop's) $ 600 0
-------------------------------------------------------------------------------------------------------------------
FPU (In dispute) $ 4,200* 0
-------------------------------------------------------------------------------------------------------------------
Harbor Sound $ 1,049 0
-------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx (CPA) $ 12,000 0
-------------------------------------------------------------------------------------------------------------------
Masons Refrigeration $ 402 0
-------------------------------------------------------------------------------------------------------------------
Pacific Coast (August) $ 20,000 0
-------------------------------------------------------------------------------------------------------------------
Nationwide Ins. $ 2,966 0
-------------------------------------------------------------------------------------------------------------------
NewsLeader $ 1,578 0
-------------------------------------------------------------------------------------------------------------------
The Chamber $ 235 0
-------------------------------------------------------------------------------------------------------------------
Tribune-Georgian $ 957 0
-------------------------------------------------------------------------------------------------------------------
Waycross Journal-Herald 4 3,784 0
-------------------------------------------------------------------------------------------------------------------
32
-------------------------------------------------------------------------------------------------------------------
PRE-MERGER MERGER RELATED
-------------------------------------------------------------------------------------------------------------------
WWRR-FM 100.7 $ 579 0
-------------------------------------------------------------------------------------------------------------------
Kres Real Estate (expenses) $ 2,116 0
-------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx (termination costs) $ 0 30,000
-------------------------------------------------------------------------------------------------------------------
Signs & Frames $ 246 0
-------------------------------------------------------------------------------------------------------------------
AT&T $ 200 0
-------------------------------------------------------------------------------------------------------------------
Xxxxxxx & Xxxxx $ 2,645 0
-------------------------------------------------------------------------------------------------------------------
BellSouth $ 894 0
-------------------------------------------------------------------------------------------------------------------
Xxxxx $ 10,000 5,000
-------------------------------------------------------------------------------------------------------------------
Boy Scouts of America $ 1,000 0
-------------------------------------------------------------------------------------------------------------------
Florida Times Union $ 49 0
-------------------------------------------------------------------------------------------------------------------
Georgia Secretary of State $ 50 0
-------------------------------------------------------------------------------------------------------------------
Mik's of Xxxxxx $ 285 0
-------------------------------------------------------------------------------------------------------------------
Xxxxxxx & Co. $ 2,061 0
-------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxxx $ 140,000 85,000*
-------------------------------------------------------------------------------------------------------------------
PR Newsake $ 4,200 0
-------------------------------------------------------------------------------------------------------------------
Internet Stock Market $ 3,325 0
-------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx $ 7,000 0
-------------------------------------------------------------------------------------------------------------------
Corporate Stock Transfer $ 9,100 0
-------------------------------------------------------------------------------------------------------------------
Xxxxx (Consulting) $ 0 60,000
-------------------------------------------------------------------------------------------------------------------
Xxxxxxxx (Consulting) $ 0 50,000
-------------------------------------------------------------------------------------------------------------------
Xxx Xxxxxx $ 18,500 0
-------------------------------------------------------------------------------------------------------------------
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-------------------------------------------------------------------------------------------------------------------
X. Xxxx (CFO Retirement) $ 12,500 0
-------------------------------------------------------------------------------------------------------------------
Fernandina Bch Newsletter $ 1,500 0
-------------------------------------------------------------------------------------------------------------------
TOTAL 285,336 238,000
-------------------------------------------------------------------------------------------------------------------
(1) water and sewer dispute
(2) includes 25,000 for costs
going forward
(A) Certain amounts on this Exhibit C have been paid by the Seller
subsequent to the Merger on August 23, 1999.
(B) Sellers acknowledge that they are responsible for paying those amounts on
this Exhibit C that have not been paid as of the Closing Date, together
with any interest or penalties associated with such amounts since
August 23, 1999.
(C) Sellers acknowledge that they are responsible for the payment of
debts and liabilities as set forth in Section 6(d) of this Agreement.
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EXHIBIT D
SIDE AGREEMENTS
1. Termination of Consulting Agreement dated June 1, 1999 by and
between Gator Glory, LLC and Lahaina Acquisitions, Inc.
35
SCHEDULE 1
DISCLOSURE SCHEDULE
- Section 4(a). DIRECTORS AND OFFICERS OF THE TARGET.
- DIRECTORS. Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxxx, Xxxxxx Xxxxxxxxxx and
Xxxx Xxxxxx.
- OFFICERS. . Xxxxx X. Xxxxxxx, President; Xxxxx Xxxxxxxx, Executive
Vice President and Secretary; Xxxxxx Xxxxxxxxxx, Assistant Secretary;
and Xxxxxxx X. Xxxxxxx, Vice President of Finance.
- Section 4(b). OWNERSHIP OF TARGET SHARES.
- Lahaina Acquisitions, Inc. owns 500 shares of common stock of
Beachside Commons I, Inc.
- Accent Mortgage Services, Inc. does not own any shares of common
stock of Beachside Commons I, Inc.
- Section 4(g)(i). OWNED REAL PROPERTY.
- The real property commonly known as Beachside Commons located at 0000
Xxxxxxxx Xxxxxx in Fernandina Beach, Florida.
- Section 4(g)(ii). LEASED REAL PROPERTY. The real property known as
Beachside Commons is leased by the Target pursuant to the following lease
agreements:
- Commercial Lease Agreement dated December 1, 1998 by and between
Beachside Commons I, Inc. and J.P. Concepts, Inc. and Xxxxx Xxxx.
- Commercial Lease Agreement dated May 6, 1998 by and between Mongoose
Investments, LLC and Ridison South, Inc.
- Commercial Lease Agreement dated October 1, 1998 by and between
Mongoose Investments, LLC and Xxxxxxx and Xxxxx Xxxxx.
- Commercial Lease Agreement dated June 2, 1998 by and between Mongoose
Investments, LLC and Xxxxxxx X. Xxxxx.
- Commercial Lease Agreement dated July 24, 1998 by and between
Mongoose Investments, LLC and Beachside Coffee and Wine.
- Commercial Lease Agreement dated March 5, 1999 by and between
Beachside Commons I, Inc. and Beachside Styles.
36
- Commercial Lease Agreement dated July 21, 1998 by and between
Mongoose Investments, LLC and Blue Ridge Ventures.
- Commercial Lease Agreement dated March 23, 1999 by and between
Beachside Commons I, Inc. and RJM Communications, Inc. and Xxxx
XxXxxxx.
- Commercial Lease Agreement dated May 29, 1998 by and between Mongoose
Investments, LLC and Xxxxx and Xxxxx Xxxxx.
- Commercial Lease Agreement dated May 27, 1998 by and between Mongoose
Investments, LLC and Xxxxx Xxxxxxxxxx.
- Commercial Lease Agreement dated June 5, 1998 by and between Mongoose
Investments, LLC and Xxxx Xxxxxx.
- Section 4(h). INTELLECTUAL PROPERTY REGISTRATIONS.
- Not Applicable
- Section 4(m). INSURANCE POLICIES.
- Copies available by request from Pacific Coast Investment Company.
2
