WAIVER AGREEMENT AND AMENDMENT
THIS WAIVER AGREEMENT AND AMENDMENT (this "Agreement") is made as the 14th
of February, 2006, by and among AZUR INTERNATIONAL INC., a Nevada corporation
(the "Company"), AZUR HOLDINGS, INC., a Delaware corporation (the "Guarantor")
and each of the lenders to the Company signatory hereto (collectively, the
"Lenders").
RECITALS:
1. On May 31, 2005, pursuant to that certain Securities Purchase
Agreement, dated as of May 31, 2005 (the "Purchase Agreement"), the Company
executed in favor of certain Lenders signatory thereto ("Lenders") certain 12%
Convertible Debentures due May 31, 2006 (the "Debentures") in the aggregate
principal amount of $1,000,000. In connection with the issuance of the
Debentures, the Company also issued the Lenders, in the aggregate, 375,000
shares of common stock of the Company (the "Shares"). Capitalized terms used and
not otherwise defined herein that are defined in the Purchase Agreement shall
have the meanings given such terms in the Purchase Agreement.
2. The Company desires to assign 100% of the issued and outstanding
capital stock of The Grand Shell Landing, Inc. (the "Grand Shell"), a
Mississippi corporation, and 75% of the issued and outstanding capital stock of
Shell Landing Resort, Inc. ("Resort") to Guarantor, a corporation of which
approximately 50.4% of the issued and outstanding capital stock is owned by the
Company, in exchange for the issuance to the Company of approximately 24,375,000
shares of common stock of the Guarantor ("Guarantor Shares") which shall
constitute 99.8% of the common stock of the Guarantor on a fully diluted basis
and the assumption by the Guarantor of certain indebtedness of the Company. The
terms of such transaction are set forth in an Exchange Agreement dated as of the
date hereof between the Company and the Guarantor attached hereto as Exhibit A
(the "Exchange Agreement").
3. The Company and the Guarantor have informed the Lenders that (a)
promptly after the consummation of the Exchange Agreement, the Company shall
declare a pro rata distribution to the holders of common stock of the Company of
all of the Guarantor Shares held by the Company (the "Distribution") and (b) the
Distribution would be made pursuant to an effective registration statement under
the Securities Act.
4. The Lenders, the Company and the Guarantor also desire that,
concurrently with the consummation of the Exchange Agreement, the Debentures
shall be amended and restated such that the maturity date shall be extended for
a period of four months and the conversion obligations thereunder are assumed by
the Guarantor such that the Debentures are convertible into common stock of the
Guarantor as set forth therein;
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5. The Lenders, the Company and the Guarantor desire to make certain
amendments such that the Guarantor assumes the obligations of the Company under
the Transaction Documents.
6. The consent of the Lenders is required for the consummation of
transactions set forth in Recitals 2, 3 and 5 (collectively, the "Exchange
Transactions").
7. As an inducement to the Lenders to give such consent, the Guarantor has
agreed to guarantee the obligations of the Company under the Transaction
Documents pursuant to a Guaranty in the form attached hereto as Exhibit A (the
"Guaranty").
8. The respective Boards of Directors of the Company and the Guarantor
have determined that the Company's and the Guarantor's execution, delivery and
performance of this Agreement and the Guaranty may reasonably be expected to
benefit the Company and the Guarantor, directly or indirectly, and are in the
best interests of the Company and the Guarantor.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
Section 1. Consent and Waiver. Each Lender hereby consents to the
consummation of the Exchange Transactions on the terms set forth in the recitals
to this Agreement and waives any "Events of Default" under the Debentures that
will result solely and directly from the consummation of the Exchange
Transactions being deemed a Change of Control Transaction or Fundamental
Transaction provided that all of the Exchange Transactions occur on or prior to
June 30, 2006.
Section 2. Guaranty. In consideration of the consent and waiver made by
the Lenders pursuant to Section 1 of this Agreement, the Guarantor is
simultaneously herewith delivering to the Lenders the Guaranty.
Section 3. Registration Rights Agreement. Section 4.16 and 4.17 of the
Purchase agreement are hereby terminated and no longer of any force and effect.
The registration rights and obligations of the parties thereunder shall be
provided for pursuant to the registration rights agreement in the form of the
registration rights agreement set forth in Exhibit C attached hereto.
Section 4. Distribution. Promptly after the consummation of all of the
Exchange Transactions, the Company shall distribute to the holders of common
stock of the Company, on a pro-rata basis, all of the Guarantor Shares held by
the Company pursuant to an effective registration statement under the Securities
Act.
Section 5. Amendment and Restatement of Debentures. Concurrently upon the
consummation of the Exchange Transactions, the Company, the Guarantor and the
Lenders hereby agree to amend and restate the Debentures in the form of Exhibit
B attached hereto ("Amended Debentures"). Without limiting the foregoing, the
maturity date of the Debentures shall be extended until September 30, 2006. The
shares of common stock of the Guarantor into which the Amended Debentures shall
be convertible shall not constitute less than .67% of the shares of common stock
of the Guarantor, on a fully diluted basis..
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The parties agree that any references in the Transaction Documents to
"Debentures" or "Securities" shall be deemed to refer to the Amended Debentures.
Section 6. Assumption by Guarantor of Transaction Documents. By executing
and delivering this Agreement, the Guarantor hereby becomes a party to each of
the Transaction Documents with the same rights and obligations as the Company
(jointly and severally with the Company) with the same force and effect as if
the Guarantor originally was named as a co-party with the Company and, without
limiting the generality of the foregoing, hereby expressly assumes, jointly and
severally with the Company, all obligations and liabilities of the Company under
each of the Transaction Documents. The Guarantor hereby represents and warrants
that each of the representations and warranties contained in the Transaction
Documents is true and correct on and as the date hereof as to such Guarantor
(after giving effect to this Agreement) as if made on and as of such date.
Section 7. References to "Common Stock", "Underyling Shares", etc.
Effective upon the consummation of the Exchange Transactions, any references to
"Common Stock", "Common Stock Equivalents" "Underlying Shares", "Registrable
Securities" or any other similar term used in the Transaction Documents shall be
deemed to refer to the common stock of the Guarantor. The rights and obligations
of the Company, the Guarantor and the Lenders under the Transaction Documents
with respect to the Amended Debentures, the shares of common stock of the
Guarantor issuable thereunder (the "Amended Underlying Shares") and the
Guarantor Shares shall be identical in all respects to the rights and
obligations of the Company, the Guarantor and the Lenders with respect to the
Debentures, the Underlying Shares and the Shares.
Section 8. Representations and Warranties of the Company and the
Guarantor. The Company and the Guarantor (collectively the "Credit Party"),
jointly and severally, made the following representations and warranties:
(a) Except as set forth under the corresponding section of the
disclosure schedules attached to the Purchase Agreement and except as set forth
on Schedule 8 attached hereto, if any, all representations and warranties of the
Company and now, by this Agreement, the Guarantor, contained in the Purchase
Agreement were true and correct when made and remain true and correct as of the
date hereof, as though made at and as of the date hereof. Except as set forth on
Schedule 6 attached hereto, the Company has performed all of the covenants of
the Company contained in the Transaction Documents to be performed by the
Company through the date hereof.
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(b) The recitals at the beginning of this Agreement are true and
correct in all respects.
(c) Each Credit Party has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of this Agreement by such Credit Party and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of such Credit Party and no
further action is required by such Credit Party, its board of directors or its
stockholders in connection therewith other than in connection with the Required
Approvals. This Agreement has been duly executed by such Credit Party and, when
delivered in accordance with the terms hereof will constitute the valid and
binding obligation of such Credit Party enforceable against such Credit Party in
accordance with its terms except (i) as limited by general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors' rights generally,
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable law.
(d) The execution, delivery and performance of this Agreement by
such Credit Party and the consummation by such Credit Party of the transactions
contemplated hereby do not and will not: (i) conflict with or violate any
provision of such Credit Party's certificate or articles of incorporation,
bylaws or other organizational or charter documents, or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, result in the creation of any Lien (except as
contemplated by the Security Documents) upon any of the properties or assets of
such Credit Party, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of,
any material agreement, credit facility, debt or other material instrument
(evidencing Credit Party debt or otherwise) or other material understanding to
which such Credit Party is a party or by which any property or asset of such
Credit Party is bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which such Credit Party is subject (including federal and state
securities laws and regulations), or by which any property or asset of such
Credit Party is bound or affected; except in the case of each of clauses (ii)
and (iii), such as could not have or reasonably be expected to result in a
Material Adverse Effect.
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(e) The Amended Debentures are duly authorized and, upon the
execution of this Agreement by a Lender, will be duly and validly issued, fully
paid and nonassessable, free and clear of all Liens imposed by the Credit
Parties other than restrictions on transfer provided for in the Transaction
Documents. The Amended Underlying Shares, when issued in accordance with the
terms of the Amended Debentures, will be validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Guarantor. The
Guarantor has reserved from its duly authorized capital stock a number of shares
of its common stock for issuance of the Amended Underlying Shares at least equal
to the Required Minimum on the date hereof.
(f) Except as set forth in this Agreement, no consideration has been
offered or paid to any person to amend or consent to a waiver, modification,
forbearance or otherwise of any provision of any of the Transaction Documents.
(g) As of the date of this Agreement, to the knowledge of the Credit
Parties, no Event of Default exists.
(h) The direct or indirect value of the consideration received and
to be received by Credit Parties in connection herewith is reasonably worth at
least as much as the liability and obligations of Credit Parties hereunder, and
the incurrence of such liability and obligations in return for such
consideration may reasonably be expected to benefit each Credit Party, directly
or indirectly.
(i) All balance sheets, earning statements, financial data and other
information concerning the Credit Parties which have been furnished to each
Lender to induce it to accept this Agreement (or otherwise furnished to each
Lender in connection with the transactions contemplated hereby or associated
herewith) fairly represent the financial condition of the Credit Parties as of
the dates and the results of each Credit Party's operations for the periods for
which the same are furnished. None of such balance sheets, earnings and cash
flow statements, financial data and other information contains any untrue
statement of a material fact or omits to state any material fact which is
necessary to make any statements contained therein not misleading.
(j) The capitalization of the Guarantor immediately following the
Closing of the Exchange Transactions is as set forth on Schedule 8(j). There are
no agreements, understandings or otherwise that exist that would materially
change the information set forth on Schedule 6(i).
Section 9. Representations and Warranties of the Lenders. Each Lender
hereby, for itself and for no other Lender, represents and warrants as of the
date hereof to the Credit Parties as follows:
(a) Such Lender's representations and warranties listed in Section
3.2 of the Purchase Agreement are true and correct as of the date hereof.
(b) The execution, delivery and performance by such Lender of the
transactions contemplated by this Agreement have been duly authorized by all
necessary corporate or similar action on the part of such Lender. This Agreement
has been duly executed by such Lender, and when delivered by such Lender in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Lender, enforceable against it in accordance with its terms,
except (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
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(c) Such Lender understands that the Guarantor Shares are
"restricted securities" and have not been registered under the Securities Act or
any applicable state securities law and is acquiring the Guarantor Shares as
principal for its own account and not with a view to or for distributing or
reselling such Guarantor Shares or any part thereof in violation of the
Securities Act or any applicable state securities law, has no present intention
of distributing any of such Securities in violation of the Securities Act or any
applicable state securities law and has no arrangement or understanding with any
other persons regarding the distribution of such Guarantor Shares (this
representation and warranty not limiting such Lender's right to sell the
Guarantor Shares pursuant to the Registration Statement or otherwise in
compliance with applicable federal and state securities laws) in violation of
the Securities Act or any applicable state securities law. Such Lender is
acquiring the Guarantor Shares hereunder in the ordinary course of its business.
Such Lender does not have any agreement or understanding, directly or
indirectly, with any Person to distribute any of the Guarantor Shares.
(d) Such Lender is an "accredited investor" as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act. Such
Lender is not required to be registered as a broker-dealer under Section 15 of
the Exchange Act.
(e) Such Lender is not purchasing the Guarantor Shares as a result
of any advertisement, article, notice or other communication regarding the
Additional Debentures published in any newspaper, magazine or similar media or
broadcast over television or radio or presented at any seminar or any other
general solicitation or general advertisement.
Section 10. Delivery of Opinion. Concurrently herewith, the Company and
Guarantor shall deliver to the Lenders an opinion of the Company's internal
general counsel regarding this Agreement in form and substance reasonably
acceptable to the Lenders.
Section 11. Public Disclosure. The Company shall, on or before the 4th
Trading Day following the date hereof, issue a Current Report on Form 8-K,
reasonably acceptable to the Lenders, disclosing the material terms of the
transactions contemplated hereby, and shall attach this Agreement thereto. The
Company shall consult with the Lenders in issuing any other press releases with
respect to the transactions contemplated hereby.
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Section 12. Effect on Transaction Documents. Except as expressly set forth
above, all of the terms and conditions of the Transaction Documents shall
continue in full force and effect after the execution of this Agreement and
shall not be in any way changed, modified or superseded by the terms set forth
herein, including but not limited to, any other obligations the Company may have
to the Lenders under the Transaction Documents. Notwithstanding the foregoing,
this Agreement shall be deemed for all purposes as an amendment to any
Transaction Document as required to serve the purposes hereof, and in the event
of any conflict between the terms and provisions of the Debentures, the
Registration Rights Agreement or any other Transaction Document, on the one
hand, and the terms and provisions of this Agreement, on the other hand, the
terms and provisions of this Agreement shall prevail.
Section 13. Miscellaneous.
(a) Expenses. The Company agrees to pay to Lenders upon demand any
and all reasonable out-of-pocket costs or expenses (including, without
limitation, reasonable legal fees and disbursements) incurred or sustained by
Lenders, in connection with the preparation of this Agreement and related
matters.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the same shall be in writing and signed by the Company
and each Lender.
(c) Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be delivered as
set forth in the Purchase Agreement.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each Lender. The Company may not
assign (except by merger) its rights or obligations hereunder without the prior
written consent of all of the Lenders of the then-outstanding Securities. Each
Lender may assign their respective rights hereunder in the manner and to the
Persons as permitted under the Purchase Agreement.
(e) Execution and Counterparts. This Agreement may be executed in
two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have
been signed by each party and delivered to the other party, it being understood
that both parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission or by e-mail delivery of a
".pdf" format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or ".pdf"
signature page were an original thereof.
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(f) Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be determined
in accordance with the provisions of the Purchase Agreement.
(g) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(h) Headings. The headings in this Agreement are for convenience
only, do not constitute a part of the Agreement and shall not be deemed to limit
or affect any of the provisions hereof.
(i) Independent Nature of Holders' Obligations and Rights. The
obligations of each Lender hereunder are several and not joint with the
obligations of any other Lenders hereunder, and no Lender shall be responsible
in any way for the performance of the obligations of any other Lender hereunder.
Nothing contained herein or in any other agreement or document delivered at any
closing, and no action taken by any Lender pursuant hereto, shall be deemed to
constitute the Lenders as a partnership, an association, a joint venture or any
other kind of entity, or create a presumption that the Lenders are in any way
acting in concert with respect to such obligations or the transactions
contemplated by this Agreement. Each Lender shall be entitled to protect and
enforce its rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Lender to be joined as an
additional party in any proceeding for such purpose.
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IN WITNESS WHEREOF, the parties have executed and delivered this Waiver
Agreement and Amendment as of the date first written above.
AZUR HOLDINGS, INC. AZUR INTERNATIONAL INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, President Xxxxxx Xxxxxxx, President
Address of Notice:
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SIGNATURE PAGE FOR PURCHASER FOLLOWS]
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[PURCHASER SIGNATURE PAGES TO AZUR WAIVER AGREEMENT AND AMENDMENT]
IN WITNESS WHEREOF, the undersigned have caused this Waiver Agreement and
Amendment to be duly executed by their respective authorized signatories as of
the date first indicated above.
Name of Purchaser:
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Signature of Authorized Signatory of Purchaser:
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Name of Authorized Signatory:
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Title of Authorized Signatory:
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Email Address of Purchaser:
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Address for Notice of Purchaser: (if not the same as in the Purchase Agreement)
[SIGNATURE PAGES CONTINUE]
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