AGREEMENT
Exhibit
10.1
AGREEMENT
THIS
AGREEMENT is made and entered into this 4th
day of
August 2006 and effective as of the 28th
day of
July 2006 (the “Effective Date”) by and between Azur Shell Landing Development
II LLC, a Mississippi limited liability company (“ASLD II”), Azur Holdings,
Inc., a Delaware corporation (“AHI”), Azur Shell Landing Resort Inc., a
Mississippi corporation (“ASLR”), Azur International, Inc., a Nevada corporation
(“Azur”), and Xxxxxxxx Partners, LLC, a Mississippi limited liability company
(“Xxxxxxxx”). Collectively, the above entities are referred to as the
“Parties.”
RECITALS
WHEREAS
ASLD II, ASLR, Azur and AHI (the latter by amendment), entered into a
Co-ownership Agreement on or about October 21, 2005 to develop certain real
property located in Gautier, Mississippi, and otherwise known as the “Shell
Landing Development” (“Shell Landing”); and
WHEREAS
ASLD II owns certain property within Shell Landing described on the attached
Exhibit A, upon which a condominium project has been proposed to be constructed,
known as “The Islands at Shell Landing” (“Condo Site”); and
WHEREAS
ASLD II owns the Condo Site, subject to a Deed of Trust, dated May 4, 2005
held
by Olympic Coast Investment, Inc. (“Olympic”) and a Second Deed of Trust dated
November 3, 2005 held by Omicron Master Trust (“Omicron”); and
WHEREAS
Xxxxxxxx desires to participate in the development of the Condo Site upon the
terms set forth herein; and
WHEREAS
the parties desire to memorialize the critical terms of their agreement
intentions regarding the Condo Site, recognizing that additional documents
may
be required to be executed by them to finalize the transaction.
WHEREAS
The Islands at Shell Landing, LLC (“Islands LLC”) is a Mississippi limited
liability company, which is wholly owned by ASLR, but has no assets, debts,
liabilities or other obligations.
NOW,
THERFORE, for and in consideration of Ten ($10.00) Dollars paid by each of
the
parties hereto to the other, and in consideration of the mutual promises of
the
parties hereto running one to the other, the receipt and sufficiency of which
is
hereby acknowledged by each of the parties hereto, it is hereby agreed as
follows.
1. Incorporation
of Recitals. The above recitals are incorporated herein by
reference.
2. Ownership
of Condo Site. ASLD II and ASLR shall transfer all of their respective interests
in the Condo Site to a Mississippi limited liability company, “The Islands at
Shell Landing, LLC” (“Islands LLC”). A formal real estate contract memorializing
all of the terms of that transfer shall be prepared and executed by ASLD II,
ASLR and Islands LLC within three business days after this Agreement is
executed. ASLD II and ASLR shall deliver at Closing a warranty deed transferring
the Condo Site to Islands LLC.
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3. Purchase
of Islands LLC Ownership Interest.
A. In
consideration for ASLD II and ASLR transferring the Condo Site to Islands LLC,
ASLD II’s members (currently Xxxxxxxx Family Limited Partnership and Xxxxxxx
Family Limited Partnership) shall become members of the Islands LLC and each
receive a sixteen and two-thirds percent (16⅔%) ownership interest in, the
Islands, LLC and AHI shall each become Members in, and receive a sixteen and
two-thirds percent (16⅔%) ownership interest in, the Islands, LLC.
B. In
consideration for it becoming Member in, and ASLR transferring a fifty percent
(50%) ownership interest in, the Islands, LLC. Xxxxxxxx shall:
(1)
pay
ASLR on the Effective Date the sum of one hundred thousand dollars ($100,000)
(“Deposit”). Xxxxxxxx agrees that this deposit shall be released to ASLR and
shall be non-refundable, even if this transaction fails to close for any
reason.
(2)
pay
on or before the Closing Date the additional sum of three million, one hundred
thousand dollars ($3,100,000) (“Balance”), which shall be paid as
follows;
(a)
one
million, two hundred thousand dollars ($1,200,000) to Omicron;
(b)
one
million, one hundred ninety thousand dollars ($1,190,000) to Olympic,
(c)
three
hundred twenty thousand dollars ($320,000) to ASLD II to be distributed 50%
to
each member of ASLD II,
(d)
one
hundred sixty thousand dollars ($160,000) to AHI, and,
(e)
two
hundred thirty thousand dollars ($230,000) to ASLR.
(3)
assume all responsibility and obligations (including financial) to develop
no
less than 126 luxury units at the Condo Site. To the extent that funds are
required to develop the Condo Site, Xxxxxxxx agrees to provide 100% of such
funding. However, if required by a lending institution, Xxxx Xxxxxxxx and AHI
shall each provide a personal guarantee for no more than fifty percent (50%)
of
any construction loan obtained.
C. Within
five (5) business days after this Agreement is executed, a limited liability
company agreement (“LLC Agreement”) for Islands LLC shall be prepared setting
forth all of the Members’ rights, duties, obligations and other terms, including
but not limited to, the Members and Manager(s) (and their respective rights
and
percentages of ownership, majority voting rights, etc.), obligations of the
respective Members for the development of the Condo Site, etc. The managers
of
Islands LLC shall be Xxxx Xxxxxxxx and a person to be designated by Xxxxxxxx
within five business days.
4. Closing.
The Closing Date shall be no later than September 1, 2006. If this transaction
fails to close on or before the Closing Date, then (1) the real estate contract
referenced in Section 2 shall terminate, (2) any deed transferring the Condo
Site which has been executed and held in trust by closing counsel or any
third-party shall be destroyed, (3) any LLC Agreement for Islands LLC shall
terminate, (4) ownership of the Condo Site shall remain with ASLD II and ASLR;
and (5) this Agreement shall terminate and be of no further force and effect.
The parties agree that time is of the essence with respect to this
Agreement.
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Upon
written request by Xxxxxxxx delivered to ASLR and ASLD II before the Closing
Date, accompanied by a contemporaneous nonrefundable payment by Xxxxxxxx to
ASLR
in the amount of One Hundred Thousand Dollars ($100,000.00) (the “Extension
Payment”) in immediately available funds, Purchaser may delay the Closing Date
until September 25, 2006 (“Extended Closing Date”). The Extension Payment shall
not be credited against the Purchase Price. Any further extension of the Closing
Date must be agreed to in writing by all parties.
5. Modification
of Co-ownership Agreement. To the extent this Agreement in any way differs
from, or contradicts, the Co-Ownership Agreement or any amendments thereto,
then
the parties agree this Agreement shall control.
6.
Authority.
Each
person signing below, warrants and represents that he has the requisite
authority to execute this Agreement and bind that respective party to the terms
and conditions set forth herein.
7. Transfer
and Assignment.
All the
terms, covenants and conditions herein contained shall be for and shall inure
to
the benefit of and shall bind the respective parties hereto and their legal
representatives, successors and assigns, respectively.
8. Attorney’s
Fees.
If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable costs
and
attorney's fees, including costs and attorney's fees for any appellate
proceedings.
9. Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original and all of which together shall be deemed to be one
and
the same instrument.
10. No
Assignment.
No party
may assign nor delegate any of its rights or obligations hereunder without
first
obtaining the written consent of every other party.
11. Amendment.
The
parties hereto may amend, modify and supplement this Agreement only in such
manner as may be agreed upon by them in writing.
12. Severability.
If any
provision of this Agreement is determined to be illegal or unenforceable, such
provision will be deemed amended to the extent necessary to conform to
applicable law or, if it cannot be so amended without materially altering the
intention of the parties, it will be deemed stricken and the remainder of the
Agreement will remain in full force and effect.
13. Notices.
All notices, demands and acceptances required to be given hereunder shall be
in
writing and shall be delivered by hand, mailed by certified or registered mail,
return receipt requested, or delivered by a nationally recognized overnight
delivery service, to the following addresses:
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To
ASLD II & Xxxx Xxxxxxxx:
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0000
Xxxxx Xxxxxxx Xxxxxxxxx
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Xxxxxxx,
Xxxxxxxxxxx 00000
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Attn:
Xxxx Xxxxxxxx
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To
ASLR, AHI, Azur:
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000
XX 0xx
Xxxxxx, Xxxxx 0000
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Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
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Attn:
President
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Copy
To:
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Xxxxxxx
X. Xxxxxx
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Williams,
Heidelberg, Xxxxxxxxxxx & XxXxxxxxx
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X.X.
Xxx 0000
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Xxxxxxxxxx,
XX 00000-0000
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To
Xxxxxxxx:
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____________________________
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____________________________
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Attn:
Xxxx Xxxxxxxx, Manager
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14. Governing
Law and Venue. This Agreement shall be construed in accordance with and
governed by the laws of the State of Mississippi. The parties consent to the
jurisdiction of either the U.S. District Court for the Southern District of
Mississippi, Southern Division, or any court of the State of Mississippi located
in Xxxxxxx County, Mississippi.
15. Entire
Agreement. The parties agree that this Agreement, and the future agreements
identified herein, embodies the entire agreement and understanding of the
parties with respect to the transactions contemplated hereby and supersedes
all
prior written or oral commitments, arrangements or understandings between the
parties with respect thereto. There are no restrictions, agreements, promises,
warranties, covenants or undertakings with respect to the transactions
contemplated hereby other than those expressly set forth herein.
(THE
REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the day and year first above
written.
Azur
Shell Landing Development II LLC
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By:
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/s/
Xxxx Xxxxxxxx
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Xxxx
Xxxxxxxx, Manager
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Azur
Shell Landing Resort Inc.
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By:
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/s/
Xxxx Xxxxxxxx
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Xxxx
Xxxxxxxx, President
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Azur
International, Inc.
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By:
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/s/
Xxxxxx Xxxxxxx
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Xxxxxx
Xxxxxxx, President
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By:
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/s/
Xxxxxx Xxxxxxx
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Xxxxxx
Xxxxxxx, President
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Xxxxxxxx
Partners, LLC
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By:
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/s/
Xxxx Xxxxxxxx
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Xxxx
Xxxxxxxx, one of its Managers
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