<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-Q
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(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
------------ ------------
COMMISSION FILE NUMBER 333-2820
FLORDECO, LTD.
(Exact Name of Registrant as Specified in its Charter)
FLORIDA 65-0671467
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
3951 FOWLER STREET 33901
FT. MYERS, FLORIDA (Zip Code)
(Address of Principal Executive Offices)
(941) 936-8888
(Registrant's Telephone Number, Including Area Code)
-------------------------
Indicate by check whether the registrant: (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past ninety (90) days. Yes No X
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<PAGE> 2
FLORDECO, LTD.
FORM 10-Q
For the Quarter Ended March 31, 1997
INDEX
<TABLE>
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Page
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<S> <C> <C>
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Condensed Balance Sheets - March 31, 1997 and December 31, 1996 . . . . . . . . . . . . . . . . . . . . . 2
Condensed Statement of Operations - three months ended March 31, 1997 . . . . . . . . . . . . . . . . . . 3
Condensed Statement of Cash Flows - three months ended March 31, 1997 . . . . . . . . . . . . . . . . . . 4
Notes to Condensed Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Item 3. Quantitative and Qualitative Disclosures about Market Risk . . . . . . . . . . . . . . . . . . . . . . . 9
PART II - OTHER INFORMATION
Item 1. Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Item 2. Changes in Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Item 3. Defaults Upon Senior Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Item 4. Submission of Matters to a Vote of Securities Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Item 5. Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
<PAGE> 3
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
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FLORDECO, LTD.
CONDENSED BALANCE SHEET
March 31, 1997 and December 31, 1996
(Unaudited)
ASSETS
<TABLE>
<CAPTION>
March 31, December 31,
1997 1996
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<S> <C> <C>
CURRENT ASSETS
Cash $ 181,094 $ 246,000
Due from related party 926
Notes receivable 7,500
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Total current assets 189,520 246,000
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RENTAL PROPERTY 816,636
Less accumulated depreciation 1,119
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Rental property, net 815,517
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OTHER ASSETS 10,228
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Total assets $1,015,265 $ 246,000
========== ==========
LIABILITIES AND PARTNERS' EQUITY
CURRENT LIABILITIES
Current portion of long-term debt $ 100,000
Other liabilities 5,642 $ 59,839
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Total current liabilities 105,642 59,839
LONG-TERM DEBT, less current portion 400,000
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Total liabilities 505,642 59,839
PARTNERS' EQUITY 509,623 186,161
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Total liabilities and partners' equity $1,015,265 $ 246,000
========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
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<PAGE> 5
FLORDECO, LTD.
CONDENSED STATEMENT OF OPERATIONS
For the three months ended March 31, 1997
(Unaudited)
<TABLE>
<CAPTION>
<S> <C>
Expenses
Advertising $ 3,580
Depreciation 1,119
Licenses 2,387
Amortization of loan costs 170
Outside services 855
Rubbish removal 1,807
Other 777
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10,695
---------
Loss from operations (10,695)
Interest income 2,898
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Net loss $ (7,797)
=========
</TABLE>
The accompanying notes are an integral part of these financial statements.
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FLORDECO, LTD.
CONDENSED STATEMENT OF CASH FLOWS
For the three months ended March 31, 1997
(Unaudited)
<TABLE>
<S> <C>
Net loss $ (7,797)
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation and amortization 1,289
Increase in assets:
Notes Receivable (7,500)
Other Current Assets (10,398)
Increase in other liabilities 5,642
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Net cash used in operating activities (18,764)
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Cash flows from investing activities
Acquisitions of property (816,636)
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Net cash used in investing activities (816,636)
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Cash flows from financing activities
Proceeds from long-term debt 500,000
Increase in loans to related parties (926)
Payments on loans from related parties (59,839)
Net proceeds from equity units 331,259
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Net cash provided by financing activities 770,494
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Net Decrease in Cash (64,906)
Cash at Beginning of Period 246,000
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Cash at End of Period $ 181,094
=========
</TABLE>
The accompanying notes are an integral part of these financial statements.
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FLORDECO, LTD.
NOTES TO CONDENSED FINANCIAL STATEMENTS
1. Nature of Business:
Flordeco, Ltd. (Flordeco), a Florida limited partnership, was organized on
March 19, 1996, to make equity investments in a diversified portfolio of
income producing residential and commercial properties. Profits, losses,
and distributions of cash or property by the Partnership generally will be
made to the Unitholders (including the general partner) in proportion to
the units held by each of them.
Due to the fact that the Company had not commenced operations at December
31, 1996, it was considered a development stage enterprise. A condensed
statement of operations and condensed statement of cash flows for the period
March 19, 1996 - March 31, 1996 has not been presented as there was no
activity for that period.
2. Basis of Presentation
The accompanying unaudited condensed financial statements, in the opinion
of management, include all adjustments, consisting only of normal recurring
adjustments necessary for a fair presentation of the results for the interim
periods. Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to SEC rules
and regulations, although the Flordeco believes that the disclosures
included herein are adequate to make the information presented not
misleading. The results of operations for the three month period ended
March 31, 1997 are not necessarily indicative of the results expected for
the full year.
3. Rental Property:
On March 5, 1997, Flordeco purchased commercial rental property for
approximately $755,000. The property is located in North Fort Myers,
Florida. Currently the property, a warehouse, is unoccupied.
4. Long-term debt:
On March 3, 1997, Flordeco obtained a three-year revolving line of credit
in the amount of $500,000. The line is collateralized by the partners'
promissory notes receivable. The rate of interest on the credit line is
prime plus one percent. Under terms of the credit line, the maximum
outstanding principal balance shall be reduced to $400,000 in the second
year and $300,00 in the third year. The loan matures March 1, 2000.
5. Partners' Equity:
In 1996, Flordeco filed a registration statement (Form S-11) with the
Securities and Exchange Commission in order to sell partnership units to the
public. The offering called for a maximum of 1,000 units and a minimum of
100 units at $12,000 per unit, payable $2,000 in cash and a $10,000 full-
recourse promissory note. Each promissory note is payable over ten years
at $1,000 per year without interest. The offering will terminate no later
than April 30, 1997.
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FLORDECO, LTD.
NOTES TO CONDENSED FINANCIAL STATEMENTS
5. Partners' Equity (continued):
As of March 31, 1997, Flordeco had sold 269 units, receiving cash of
$528,000, undeveloped land valued at $60,000 and notes totaling
$2,640,000. Of the 269 units sold, 5 units were purchased by the
general partner (Investors Trust, Inc.), 64 units were purchased,
directly or indirectly, by shareholders of the general partner and 10
units were purchased by an affiliate of the general partner, Flordeco,
Inc., a Florida corporation.
Activity in the partners' capital for the three months ending at
March 31, 1997 consisted of the following:
<TABLE>
<S> <C>
Partners' capital, January 1, 1997 $ 186,161
Sale of units 1,752,000
Less: Notes receivable (1,410,000)
Offering costs (10,741)
Year to date Net loss (7,797)
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Partners' capital, March 31, 1997 $ 509,623
============
</TABLE>
As of April 30, 1997, Flordeco sold an additional 18 units, receiving
$36,000 in cash and notes totaling $180,000. Included in the
additional 18 units were 7 units sold, directly or indirectly,
to shareholders of the general partner and 10 units to an affiliate of
the general partner, Flordeco, Inc., a Florida corporation, (the
Management Company).
6. Related Parties:
The Management Company will provide certain management services
to the partnership and its real property investments. Mr. Thomas R.
Cronin and Dr. Gerald Laboda, shareholders of the general partner,
together own a controlling interest in the Management Company.
Flordeco Realty, Inc. is a Florida corporation and a wholly-owned
subsidiary of the Management Company.
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FLORDECO, LTD.
NOTES TO CONDENSED FINANCIAL STATEMENTS
6. Related Parties (continued):
Partnership transactions involving the purchase, lease, and sale of the
partnership's properties may result in the immediate realization by the
general partner and its affiliates, including the Management Company
and Flordeco Realty, Inc., of substantial commissions, fees,
compensation and other income. These fees will generally be based upon
a percentage of the amount paid to or by the partnership. None of
the agreements for such services were the result of arm's-length
negotiations.
7. Risks and Uncertainties:
The partnership is subject to all of the risks inherent in owning
real property investments. Such risks include, but are not limited to,
changes in the investment climate for real estate, unanticipated
operating expenses, occupancy levels, and rental rates. It is
anticipated that the majority of the investments will be located in
the limited geographical area of Southwest Florida.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
INTRODUCTION
Flordeco, Ltd., a Florida limited partnership (the "Partnership"), was
organized on March 19, 1996 primarily for the purposes of making equity
investments in a diversified portfolio of income producing properties located
primarily in Southwest Florida.
The Partnership was initially capitalized in 1996 with total cash
contributions of $5,000 from Investors Trust, Inc., corporate general partner
of the Partnership ("General Partner"), and $900 from the initial limited
partner.
In order to obtain the necessary capitalization to commence its
business activities, the Partnership filed a Form S-11 registration statement
with the Securities and Exchange Commission to register 1,000 units of limited
partnership interests in the Partnership ("Units") for sale at a purchase price
of $12,000 per Unit. The purchase price per Unit is payable $2,000 in cash and
$10,000 in a five year fully secured promissory note ("Promissory Note"). The
Promissory Note is noninterest bearing and it is payable in ten equal annual
installments. The registration statement was declared effective on August 12,
1996, and the sale of Units was commenced. The Units were offered for sale on a
self underwritten best-efforts basis. A minimum of 100 Units ("Minimum
Offering") were required to be sold prior to December 31, 1996, unless extended
to January 31, 1997. On December 30, 1996, the Minimum Offering was achieved,
but the Partnership elected not to release the subscription proceeds from escrow
at that time. On January 15, 1997, the proceeds were released from escrow and
on January 22, 1997 the General Partner extended the offering through April 30,
1997. As of April 30, 1997, the Partnership sold 287 Units. Approximately 79
of the Units were purchased by the General Partner and its affiliates.
RESULTS OF OPERATIONS
The following discussion regarding the results of operations should be
read in conjunction with the historical financial statements of the
Partnership.
During the three month period ending March 31, 1997, the Partnership
was engaged primarily in start-up activities and the sale of Units. As a
result, the Partnership did not engage in any significant operations for the
first quarter of 1997 and incurred a loss of $7,797 for this period. Total
revenues for the first three months of 1997 consisted entirely of $2,898
received from interest income earned on the offering proceeds held in bank
deposits pending their investment.
Total expenses for the period were $10,695, of which approximately
$5,772 were associated with offering related activities. The remaining
expenses were for general repair, maintenance, administration, and other
outside services.
Revenues and expenses in future periods will be highly dependent upon
the type of real property investments acquired by the Partnership and the
timing of their acquisition. As discussed below, the Partnership recently
acquired real property which includes warehouse facilities. These facilities
are currently unoccupied and will not begin generating revenues until tenants
are secured. In the interim, the Partnership will continue to incur costs for
the promotion and maintenance of the property, including the payment of debt
service. Until the Partnership can find sufficient tenants to operate the
facility at a profit, the Partnership is expected to continue to generate
losses. Further, since the facilities have never been operated as a warehouse
facility for lease to third party tenants, there can be no assurance that the
Partnership will be able to secure sufficient tenants, if any, for the
facilities.
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LIQUIDITY AND CAPITAL RESOURCES
The following discussion regarding liquidity and capital resources
should be read in conjunction with the Balance Sheet as of March 31, 1997.
The Partnership's principal source of liquidity through the date
hereof has been the proceeds received from the public offering of its Units and
a recently obtained line of credit from a banking institution. As a result of
the public offering of its Units completed on April 30, 1997, the Partnership
raised $3,440,000 in gross proceeds consisting of $564,000 in cash, $50,000
paid by delivery of undeveloped land (which is valued at $60,000), and
$2,820,000 in investor's Promissory Notes. After taking into account the
offering expenses of $70,580 and the first quarter loss of $7,797, total cash
capital of the Partnership was approximately $545,000 through April 30, 1997.
On March 3, 1997, the Partnership pledged the Promissory Notes as
collateral for a three-year revolving line of credit from a banking institution
in the amount of $500,000 ("Line of Credit"). The interest rate payable on the
credit facility is 1% plus prime and the principal thereon matures on March 1,
2000. Under the terms of the Line of Credit, the outstanding principal balance
shall be reduced to $400,000 in the second year of the credit and to $300,000
in the third year. Through April 30, 1997, the Partnership has drawn
approximately $500,000 under the Line of Credit.
On March 5, 1997, the Partnership purchased a parcel of commercial
rental property and improvements thereon for a total purchase price of
approximately $755,000. The property, which was purchased by the Partnership
in fee simple, includes eight warehouse facilities. This property is located
in North Ft. Myers, Florida and currently is unoccupied. Prior to the
Partnership's acquisition of this real property investment, the warehouse
facilities had been owned by a non-affiliated business entity which used the
warehouse facilities for its operations. Accordingly, such facilities have not
been previously leased to third parties. The Partnership intends to commence
leasing activities in the near future. This acquisition was financed by the
$500,000 Line of Credit and proceeds from the offering. Approximately $21,000
of the closing costs were paid to Flordeco Realty, Inc., an affiliate of the
General Partner, for a portion of the real estate commissions paid in
connection with the property acquisition. See "Part II - Item 5. Other
Information" below for additional information regarding this investment.
The Partnership believes that the cash generated from its public
offering, together with the available credit facilities and the amounts owed to
it under the Promissory Notes, will be sufficient for the Partnership to meet
its capital requirements until the Partnership operations begin to generate the
cash necessary to support its operations.
The Partnership will continue to seek additional investment
opportunities consistent with its investment objectives as described in its
August 12, 1996 prospectus. The Partnership may seek additional financing to
fund any such acquisitions. There can be no assurance that such financing will
be available in amounts or on terms acceptable to the Partnership.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
None.
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PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None.
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS
None.
ITEM 5. OTHER INFORMATION
On March 5, 1997, the Partnership acquired certain commercial real
property located in North Ft. Myers, Florida for a purchase price of
approximately $755,000, including various closing costs. The purchase price
was financed pursuant to a $500,000 line of credit from a banking institution
("Line of Credit") and $255,000 from the cash proceeds received by the
Partnership in connection with its public offering of limited partnership
interests ("Units"). The Line of Credit, which bears interest at an annual
rate of 1% over prime, must be reduced to $400,000 in its second year, to
$300,000 in its third year, and must be fully repaid by March 1, 2000. Of the
$42,000 in real estate commissions paid in connection with this investment,
$21,000 was paid to Flordeco Realty, Inc., an affiliate of Investors Trust,
Inc., the general partner of the Partnership.
The real property, which is approximately 12.62 acres, has eight
warehouse facilities located thereon and sufficient space to construct an
additional facility, if required. Prior to the Partnership's acquisition of
this property, the non-affiliated selling parties had utilized these warehouse
facilities, which facilities were primarily granaries, for its business
operations. Consequently, these facilities have never been rented to third
parties and have no prior operating history or current tenants.
The facilities, which were constructed in 1981, are in excellent
condition and no improvements, renovations, or repairs are planned, except to
the extent that specific tenant requests are made or build-outs may be
necessary. It is anticipated that the warehouses will be leased to industrial
or manufacturing tenants. There is approximately 57,773 total square feet of
warehouse space available in the eight buildings, all of which is available for
lease. Although no final determination has been made, and the terms of any
leasing arrangements will likely be considered on a case-by-case basis, the
Partnership expects to enter into five year triple net leasing agreements with
prospective tenants. The Partnership expects to lease the warehouse facilities
at rates between $2.00 to $6.00 per square foot occupied by the tenant.
Although neither the Partnership nor the real property has any track record as
a commercial rental property, management believes that its first major tenant
will be secured within the next three months and believes it can lease
approximately
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90% of the facility by December 31, 1997. However, there can be no assurance
that the Partnership will be able to achieve this goal.
For more specific information with respect to each warehouse facility, see the
table below.
FLORDECO INDUSTRIAL CAMPUS
NORTH FT. MYERS, FLORIDA
--------------------------
<TABLE>
<CAPTION>
LEASE RATES: SQUARE ANTICIPATED RENT
BUILDING NUMBER FEET PER SQUARE FOOT DESCRIPTION
- --------------- ---------- ---------------- --------------------------
<S> <C> <C> <C>
Building One 1,405 $6.00 Main Office Building
Building Two
Refrigerated 17,100 $4.50 Clear Span
Non-refrigerated 10,500 $4.00 Clear Span
Building Three 4,587 $3.00 28+ Ceiling Height
Building Four 572 $4.00 Unfinished Office
Building Five 12,320 $2.00 Concrete Building
Building Six 576 $4.00 Unfinished Office
Building Seven 10,100 $3.50 Interior Dock Height
Building Eight 613 $4.00 Unfinished Office
- ----------------------------------------------------------------------------------------------------------
TOTAL SQUARE FEET 57,773
======
</TABLE>
The basis of this property for tax purposes is $755,580. The
Partnership intends to depreciate the assets on the straight-line method over a
39.5 year period, for a 2.53% rate of depreciation per year. Based on an
appraised value for real property tax purposes of $1.8 million, the annual
taxes on the property would be $34,000. However, since the property was
acquired for substantially less than this appraised value through an arm's
length transaction, management anticipates a reduction in the annual taxes to
$14,000.
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ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(A) EXHIBITS
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<CAPTION>
<S> <C>
10.1 -- Contract for Sale and Purchase by and between Pioneer Hi Bred International, Inc. and Thomas R. Cronin,
and Closing Statement dated March 5, 1997.
10.2 -- Loan Agreement by and among Flordeco, Ltd. and First Independence Bank of Florida, executed March 3,
1997, together with Promissory Note (Revolving Line of Credit) in the amount of $500,000 payable by
Flordeco, Ltd. to First Independence Bank of Florida, and other exhibits.
10.3 -- Closing Statement for title insurance on land received as payment for 5 units of limited partnership
interests in the Partnership.
27.1 -- Financial Data Schedule (for SEC use only).
</TABLE>
(B) REPORTS ON FORM 8-K
None.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
FLORDECO, LTD.
Date: May 15, 1997 By: INVESTORS TRUST, INC.,
a Florida corporation,
as general partner
/s/ Allan E. Fox
---------------------------
Allan E. Fox
President
/s/ Eileen W. Murphy
---------------------------
Eileen W. Murphy,
Treasurer and Secretary
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EXHIBIT 10.1
CONTRACT FOR SALE AND PURCHASE
FLORIDA ASSOCIATION OF REALTORS AND THE FLORIDA BAR
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<S> <C> <C>
PARTIES: Pioneer Hi Bred International, Inc. ("Seller")
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of 6800 Pioneer Parkway, Box 666, Johnston, IA 50131 (Phone)
--------------------------------------------------------------------------------------------- -------------------------
and Thomas R. Cronin, Trustee or Assigns ("Buyer")
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of P.O. Box 6966, Fort Myers, FL 33911 (Phone) 941-936-8888
------------------------------------------------------------------------------------------- -------------------------
hereby agree that the Seller shall sell and Buyer shall buy the following real property ("Real Property") and personal property
("Personally") (collectively "Property") upon the following terms and conditions which INCLUDE the Standards for Real Estate
Transactions ("Standard(s)") printed on the reverse or attached and any Riders and Addenda to this Instrument.
I. DESCRIPTION:
(a) Legal description of Real Property located in LEE County, Florida:
----------------------------- ---------------------------
See attached Exhibit "B" for legal description.
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(b) Street address, city, zip, of the Property is:
-----------------------------------------------------------------------
(c) Personalty: All appurtenances, equipment, machinery, located on and under the premises
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are included in sale.
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II. PURCHASE PRICE.................................................................................................$700,000.00
===========
PAYMENT:
(a) Deposit(s) to be held in escrow by Coldwell Banker McFadden & Sprowls Escrow Account in the amount of......$ 50,000.00
------------------------------------------------- ===========
(b) Additional escrow deposit within________days after Effective Date in the amount of.........................$
----------
(c) Subject to AND assumption of mortgage in good standing in favor of ________________________________________
_______________________________________________ having an approximate present principal balance of.............$
----------
(d) Purchase money mortgage and note bearing annual interest at __________% (see Addendum) in amount of........$
----------
(e) Other:
-----------------------------------------------------------------------------------------------------$
----------
(f) Balance to close (U.S. cash, LOCALLY DRAWN certified or cashier's check), subject to
adjustments and prorations.................................................................................$650,000.00
----------
III. TIME FOR ACCEPTANCE: EFFECTIVE DATE; FACSIMILE: If this offer is not executed by and delivered to all parties OR FACT OF
EXECUTION communicated in writing between the parties on or before January 24, 1997 5 PM the deposit(s) will, at Buyer's option, be
returned to Buyer and this offer withdrawn. A facsimile copy of Contract for Sale and Purchase ("Contract") and any signatures
hereon shall be considered for all purposes as originals. The date of Contract ("Effective Date") will be the date when the last
one of the Buyer and Seller has signed this offer.
IV. FINANCING:
(a) If the purchase price or any part of it is to be financed by a third-party loan, this Contract is conditioned on the
Buyer obtaining a written commitment for (CHECK) or (2) or (3)): (1) [ ] a fixed, (2) [ ] an adjustable or (3) [ ] a fixed
or adjustable rate loan within __________ days after Effective Date at an initial interest rate not to exceed _________
term of _________ years and for the principal amount of $ _________________. Buyer will make application within ___________
days after Effective Date and use reasonable diligence to obtain the loan commitment and, thereafter, to meet the terms and
conditions of the commitment and close the loan. Buyer shall pay all loan expenses. If Buyer fails to obtain the
commitment or fails to waive Buyer's rights under this subparagraph within the time for obtaining the commitment or after
diligent effort fails to meet terms and conditions of the commitment, then either party thereafter by prompt written notice
to the other may cancel the Contract and Buyer shall be refunded the deposit (b) The existing mortgage described in
Paragraph II (c) above has (CHECK (1) or (2)): (1) [ ] a variable interest rate or (2) [ ] a fixed interest rate of ________%
per annum. At time of title transfer some fixed interest rates are subject to increase. If increased, the rate shall not
exceed __________ % per annum. Seller shall, within __________ days of Effective Date, furnish statements from all
mortgagees stating principal balances, method of payment, interest rate and status of mortgages. If Buyer has agreed to
assume mortgage which requires approval of Buyer by the mortgagee for assumption, then Buyer shall promptly obtain all
required applications and will diligently complete and return them to the mortgagee. Any mortgagee charge(s) not to exceed $
__________ shall be paid by ____________ (if not filled in, equally divided). If Buyer is not accepted by mortgagee or the
requirements for assumption are not in accordance with the terms of this Contract or mortgagee makes a change in excess of
the stated amount, Seller or Buyer may rescind this Contract by prompt written notice to the other party unless either
elects to pay the increase in interest rate or excess mortgagee charges.
V. TITLE EVIDENCE: At least 20 days before closing date, Seller shall, at Seller's expense, deliver to Buyer or Buyer's
attorney, in accordance with Standard (CHECK (1) or (2)): (1) [ ] abstract of title or (2) [X] title insurance commitment and,
after closing, owner's policy of title insurance.
VI. CLOSING DATE: This transaction shall be closed and the deed and other closing papers delivered on 10 days after earlier of
expiration or inspection period, unless extended by other provisions of Contract.
VII. RESTRICTIONS; EASEMENTS; LIMITATIONS: Buyer shall take title subject to: zoning, restrictions, prohibitions and other
requirements imposed by governmental authority, restrictions and matters appearing on the plat or otherwise common to the
subdivision; public utility easements of record (easements are to be located contiguous to Real Property lines and not more than 10
feet in width as to the rear or front lines and 7 1/2 feet in width as to the side lines, unless otherwise stated herein); taxes for
year of closing and subsequent years; assumed mortgages and purchase money mortgages, if any; other:______________________________
____________________________________________________________________________________________________________________providing that
there exists at closing no violation of the foregoing and none of them prevents use of Real Property for AG-2 Zoning & Uses
purposes.
VIII. OCCUPANCY: Seller warrants that there are no parties in occupancy other than Seller; but, if Property is intended to be
rented or occupied beyond closing, the fact and terms thereof shall be stated herein and the tenant(s) or occupants disclosed
pursuant to Standard F. Seller agrees to deliver occupancy of Property at time of closing unless otherwise stated herein. If
occupancy is to be delivered before closing, Buyer assumes all risk of loss to Property from date of occupancy, shall be responsible
and liable for maintenance in that date, and shall be deemed to have accepted Property in its existing condition as of time
of taking occupancy unless otherwise stated herein or in a separate writing.
IX. TYPEWRITTEN OR HANDWRITTEN PROVISIONS: Typewritten or handwritten provisions shall control all printed provisions of
Contract in conflict with them.
X. RIDERS: (CHECK if any of the following Riders are applicable and are attached to this Contract):
(a) [ ] COASTAL CONSTRUCTION CONTROL LINE RIDER (c) [ ] FOREIGN INVESTMENT IN REAL PROPERTY (e) [ ] FHA/VA RIDER
TAX ACT RIDER
(b) [ ] CONDOMINIUM RIDER (d) [ ] INSULATION RIDER (f) [ ] OTHER ________
XI. ASSIGNABILITY: (CHECK (1) or (2)): Buyer (1) [X] may assign or (2) [ ] may not assign this Contract.
XII. SPECIAL CLAUSES: (CHECK (1) or (2)): Addendum (1) [X] is attached or (2) [ ] there is no Addendum. See attached Exhibit "A".
XIII. TIME IS OF THE ESSENCE OF THIS CONTRACT. BUYER'S INITIAL
XIV. DISCLOSURES: Buyer [ ] acknowledges or [ ] does not acknowledge receipt of the agency/radon/compensation
and estimated closing costs disclosures................................................................... ______________
THIS IS INTENDED TO BE A LEGALLY BINDING CONTRACT, IF NOT FULLY UNDERSTOOD, SEEK THE ADVICE OF AN ATTORNEY PRIOR TO SIGNING.
THIS FORM HAS BEEN APPROVED BY THE FLORIDA ASSOCIATION OF REALTORS AND THE FLORIDA BAR.
Approval does not constitute an opinion that any of the terms and conditions in this Contract should be
accepted by the parties in a particular transaction.
Terms and conditions should be ??????????????????????????????
COPYRIGHT 1991 BY THE FLORIDA BAR AND THE FLORIDA ASSOCIATION OF REALTORS
-------------------------------------------
By: /s/ Thomas Cronin, Trustee or Assigns 1/21/97 Date Date
--------------------------------------- ------------- -------------------------------------- ---------------
(Buyer) (Seller)
Social Security or Tax I.D. ####-##-#### Social Security or Tax I.D. #
------------- -------------
By: Date By /s/ James E. Miller V.P. Date
------------------------------------- ------------- ------------------------------------- ---------------
(Buyer) (Seller)
Social Security or Tax I.D. # Social Security or Tax I.D. #
------------- -------------
Deposit under Paragraph II(a) received; IF OTHER THAN CASH,
THEN SUBJECT TO CLEARANCE Coldwell Banker M&S Escrow Account (Escrow Agent)
BROKER'S FEE: (CHECK AND COMPLETE THE ONE APPLICABLE) By:
----------------------------------------
[ ] IF A LISTING AGREEMENT IS CURRENTLY IN EFFECT:
Seller agrees to pay the Broker named below, including cooperating sub-agents named, according to the terms of an existing
listing agreement:
OR
[ ] IF NO LISTING AGREEMENT IS CURRENTLY IN EFFECT:
Seller agrees to pay the Broker named below, at time of closing, from the disbursements of the proceeds of the sale,
compensation in the amount of (COMPLETE ONLY ONE) _____ % of gross purchase price or $____________ for Broker's services in
affecting the sale by finding the Buyer ready, willing and able to purchase pursuant to the foregoing Contract. Buyer fails to
perform and deposit(s) is retained, 60% thereof, but not exceeding the Broker's fee above provided, shall be paid Broker as full
consideration for Broker's service including costs expended by Broker, and the balance shall be paid to Seller. If the transaction
shall not close because of refusal or failure of Seller to perform, Seller shall pay the full fee to Broker on demand. In any
litigation arising out of the Contract concerning the Broker's fee, the prevailing party shall recover reasonable attorney's fees
and costs.
Godart Properties and Coldwell Banker Flordeco Realty, Inc.
- --------------------------------------- -------------------------------------- ---------------------------------------------
(firm name of listing Broker) (firm name of selling Broker) (Seller)
By:/s/ McFadden & Sprowls By: By:
------------------------------------ ----------------------------------- ------------------------------------------
</TABLE>
<PAGE> 2
EXHIBIT 10.1
STANDARDS FOR REAL ESTATE TRANSACTIONS
A. EVIDENCE OF TITLE: (1) An abstract of title prepared or brought current by
a reputable and existing abstract firm (if not existing then certified as
correct by an existing firm purporting to be an accurate synopsis of the
instruments affecting title to the Real Property recorded in the public records
of the county wherein Real Property is located through Effective Date and
which shall commence with the earliest public records, or such later date as
may be customary in the county. Upon closing of this transaction, the abstract
shall become the property of Buyer, subject to the right retention thereof by
first mortgagee until fully paid. (2) A title insurance commitment issued by
a Florida licensed title Insurer agreeing to issue to Buyer, upon recording of
the deed to Buyer, an owner's policy of title insurance in the amount of the
purchase price insuring Buyer's title to the Real Property subject only to
liens, encumbrances, exceptions or qualifications set forth in this Contract
and those which shall be discharged by Seller at or before closing. Seller
shall convey marketable title subject only to liens, encumbrances, exceptions or
qualifications specified in the Contract. Marketable title shall be determined
according to applicable Title Standards adopted by authority of The Florida
Bar and in accordance with law. Buyer shall have 30 days, if abstract, or 6
days, if title commitment, from date of receiving evidence of title to examine
it. If title is found defective, Buyer shall, within 3 days, notify Seller in
writing specifying defect(s). If the defect(s) render title unmarketable,
Seller will have 120 days from receipt of notice within which to remove the
defect(s), failing which Buyer shall have the option of either accepting the
title as it then is or demanding a refund of deposit(s) paid which shall
immediately be returned to Buyer; thereupon, Buyer and Seller shall release one
another of all further obligations under the Contract. Seller shall, if title
is found unmarketable use diligent effort to correct defect(s) in the title
within the time provided therefor, including the bringing of necessary suits.
C. SURVEY: Buyer, at Buyer's expense, within time allowed to deliver evidence
of title and to examine same, may have Real Property surveyed and certified by
a registered Florida surveyor. If survey shows encroachment on Real Property
or that improvements located on Real Property encroach on setback lines,
easements, lands of others or violate any restrictions, Contract covenants or
applicable governmental regulation, the same shall constitute a title defect.
E. INGRESS AND EGRESS: Seller warrants and represents that there is ingress
and egress to the Real Property sufficient for the intended use as described
in Paragraph VII herein title to which is in accordance with Standard A.
F. LEASES: Seller shall, not less than 15 days before closing, furnish to
Buyer copies of all written leases and estoppel letters from each tenant
specifying the nature and duration of the tenant's occupancy, rental rates,
advanced rent and security deposits paid by tenant. If Seller is unable to
obtain such letter from each tenant, the same information shall be furnished by
Seller to Buyer within that time period in the form of a Seller's affidavit,
and Buyer may thereafter contact tenants to confirm such information. Seller
shall, at closing, deliver and assign all original leases to Buyer.
G. LIENS: Seller shall furnish to Buyer at time of closing an affidavit
attesting to the absence, unless otherwise provided for herein, of any
financing statements, claims of lien, potential lienors known to Seller and
further attesting that there have been no improvements or repairs to the
Property for 90 days immediately preceding date of closing. If Property has
been improved or repaired within that time, Seller shall deliver releases or
waivers of mechanics' liens executed by all general contractors,
subcontractors, suppliers and materialmen in addition to Seller's lien affidavit
setting forth the names of all such general contractors, subcontractors,
suppliers and materialmen and further affirming that all charges for
improvements or repairs which could serve as a basis for a mechanic's lien or
a claim for damages have been paid or will be paid at closing of this Contract.
H. PLACE OF CLOSING: Closing shall be held in the county wherein the Real
Property is located at the office of the attorney or other closing agent
designated by Seller.
I. TIME: Time periods herein of less than 8 days shall in the computation
exclude Saturdays, Sundays and state or national legal holidays, and any time
period provided for herein which shall end on Saturday, Sunday or legal holiday
shall extend to 5:00 p.m. of the next business day.
J. DOCUMENTS FOR CLOSING: Seller shall furnish the deed, bill of sale,
mechanic's lien affidavit, assignments of leases, tenant and mortgagee estoppel
letters and corrective instruments. Buyer shall furnish closing statement,
mortgage, mortgage note, security agreement and financing statements.
L. PRORATIONS; CREDITS: Taxes, assessments, rent, interest, insurance and
other expenses and revenue of Property shall be prorated through day before
closing. Buyer shall have the option of taking over any existing policies of
insurance, if assumable, in which event premiums shall be prorated. Cash at
closing shall be increased or decreased as may be required by prorations.
Prorations will be made through day prior to occupancy if occupancy occurs
before closing. Advance rent and security deposits will be credited to Buyer and
escrow deposits held by mortgagee will be credited to Seller. Taxes shall be
prorated based on the current year's tax with due allowance made for maximum
allowable discounts, homestead and other exemptions. If closing occurs at a
date when the current year's millage is not fixed and current year's assessment
is available, taxes will be prorated based upon such assessment and the prior
year's millage. If current year's assessment is not available, then taxes will
be prorated on the prior year's tax. If there are completed improvements on the
Real Property by January 1st of year of closing which improvements were not in
existence on January 1st of the prior year, then taxes shall be prorated based
upon prior year's millage and at an equitable assessment to be agreed upon
between the parties, failing which, request will be made to the County Property
Appraiser for an interim assessment taking into consideration available
exemptions. Any tax proration based on an estimate shall, at request of either
Buyer or Seller, be subsequently readjusted upon receipt of tax bill on
condition that a statement to that effect is in the closing statement.
M. SPECIAL ASSESSMENT LIENS: Certified, confirmed and ratified special
assessment liens as of date of closing (not as of Effective Date) are to be
paid by Seller. Pending lien as of date of closing shall be assumed by Buyer,
if the improvement has been substantially completed as of Effective Date, such
pending lien shall be considered certified, confirmed or ratified and Seller
shall, at closing, be charged an amount equal to the last estimate of assessment
for the improvement by the public body.
O. RISK OF LOSS: If the Property is damaged by fire or other casualty before
closing and cost of restoration does not exceed 3% of the assessed valuation of
the Property damaged, cost of restoration shall be an obligation of the Seller
and closing shall proceed pursuant to the terms of Contract with restoration
costs escrowed at closing. If the cost of restoration exceeds 3% of the
assessed valuation of the improvements so damaged, Buyer shall have the option
of either taking Property as is, together with either the 3% any insurance
proceeds payable by virtue of such loss or damage, or of cancelling this
Contract and receiving return of deposit(s).
P. PROCEEDS OF SALE; CLOSING PROCEDURE: The deed shall be recorded upon
clearance of funds. If abstract, evidence of title shall be continued at
Buyer's expense to abstract title in Buyer, without any encumbrances or change
which would render Seller's title unmarketable from the date of the last
evidence. Proceeds of the sale shall be held in escrow by Seller's attorney or
by such other mutually acceptable escrow agent for a period of not longer than
5 days from and after closing date. If Seller's title is rendered unmarketable
through no fault of Buyer, Buyer shall, within the 5-day period, notify Seller
in writing of the defect and Seller shall have 30 days from date of receipt of
such notification to cure the defect. If Seller fails to timely cure the
defect, all deposit(s) and closing funds shall, upon written demand by Buyer and
within 5 days after demand, be returned to Buyer, simultaneously with such
repayment, Buyer shall return Personalty and vacate Property and reconvey it
to Seller by special warranty deed. If Buyer fails to make timely demand of
refund, Buyer shall take title as is, waiving all rights against Seller as to
any intervening defect, except as may be available to Buyer by virtue of
warranties contained in the deed. If a portion of the purchase price is to be
derived from institutional financing or refinancing, requirements of the
lending institution as to place, time of day and procedures for closing and for
disbursement of mortgage proceeds shall control over contrary provision in this
Contract. Seller shall have the right to require from the lending institution
a written commitment that it will not withhold disbursement of mortgage
proceeds as a result of any title defect attributable to Buyer-mortgagor. The
escrow and closing procedure required by this Standard may be waived if title
agent insures adverse matters pursuant to section 627.7841, F.S. (1989), as
amended.
Q. ESCROW: Any escrow agent ("Agent") receiving funds or equivalent is
authorized and agrees by acceptance of them to deposit them promptly, hold same
in escrow and, subject to clearance, disburse them in accordance with terms and
conditions of Contract. Failure of clearance of funds shall not excuse Buyer's
performance. If in doubt as to Agent's duties or liabilities under the
provisions of Contract, Agent may, at Agent's option, continue to hold the
subject matter of the escrow until the parties mutually agree to its
disbursement or until a judgment of a court of competent jurisdiction shall
determine the rights of the parties or Agent may deposit same with the clerk of
the circuit court having jurisdiction of the dispute. Upon notifying all
parties concerned of such action, all liability on the part of Agent shall
fully terminate, except to the extent of accounting for any items previously
delivered out of escrow. If a licensed real estate broker, Agent will comply
with provisions of Chapter 475, F.S. (1989), as amended. Any suit between Buyer
and Seller wherein Agent is made a party because of acting as Agent hereunder,
or in any suit wherein Agent interpleads the subject matter of the escrow,
Agent shall recover reasonable attorney's fees and costs incurred with the fees
and costs to be paid from and out of the escrowed funds or equivalent and
charged and awarded as court costs in favor of the prevailing parties.
Parties agree that Agent shall not be liable to any party or person for
misdelivery to Buyer or Seller of items subject to this escrow, unless such
misdelivery is due to willful breach of this Contract or gross negligence of
Agent.
R. ATTORNEY'S FEES; COSTS: In any litigation arising out of this Contract, the
prevailing party in such litigation which, for the purposes of this Standard,
shall include Seller, Buyer, listing broker, Buyer's broker and any subagents to
the listing broker or Buyer's broker, shall be entitled to recover reasonable
attorney's fees and costs.
S. FAILURE OF PERFORMANCE: If Buyer fails to perform this Contract within the
time specified, including payment of all deposit(s), the deposit(s) paid by
Buyer and deposits agreed to be paid, may be retained by or for the account of
Seller as agreed upon liquidated damages, consideration for the execution of
this Contract and in full settlement of claims; whereupon, Buyer and Seller
shall be relieved of all obligations under Contract; or Seller, at Seller's
option, may proceed in equity to enforce Seller's rights under this Contract.
If, for any reason other than failure of Seller to make Seller's title
marketable after diligent effort, Seller fails, neglects or refuses to perform
this Contract, the Buyer may seek specific performance or elect to receive the
return of Buyer's deposit(s) without thereby waiving any action for damages
resulting from Seller's breach.
T. CONTRACT NOT RECORDABLE; PERSONS BOUND; NOTICE: Neither this Contract, nor
any notice of it, shall be recorded in any public records. This Contract shall
bind inure to the benefit of the parties and their successors in interest.
Whenever the context permits, singular shall include plural and one gender
shall include all. Notice given by or to the attorney for any party shall be
as effective as if given by or to that party.
U. CONVEYANCE: Seller shall convey title to the Real Property by statutory
warranty, trustee's, personal representative's or guardian's deed, as
appropriate to the status of Seller subject only to matters contained in
Paragraph VII and those otherwise accepted by Buyer. Personalty shall, at
request of Buyer, be transferred by an absolute bill of sale with warranty of
title, subject only to such matters as may be otherwise provided for herein.
V. OTHER AGREEMENTS: No prior or present agreements or representations shall
be binding upon Buyer or Seller unless included in this Contract. No
modification or change in this Contract shall be valid or binding upon the
parties unless in writing and executed by the party or parties intended to be
bound by it.
<PAGE> 3
EXHIBIT "A"
ADDENDUM TO CONTRACT
--------------------
By and between
Pioneer Hi Bred International, Inc. (Seller)
and
Thomas R. Cronin, Trustee or Assigns (Purchaser)
Dated: January 8, 1997
#2. Inspection Period: Buyer shall have thirty (30) days from the
effective date hereof to enter onto the Property to perform engineering
tests, studies, and samples and to thoroughly evaluate all mechanical
and electrical systems, plumbing, and environmental aspects and
otherwise to determine whether, in Buyer's sole and absolute discretion,
the Property is suitable for Buyer's intended purposes. In the event
the Buyer shall determine within said thirty (30) day period that the
Property is not, in buyer's sole and absolute discretion, suitable for
Buyer's intended purpose, he shall notify Seller in writing, and Escrow
Agent shall, upon such notification, deliver Buyer all escrow deposits
held, and neither party shall thereafter have any further obligations to
the other. In the course of performing such studies and tests, Buyer
agrees to refrain from unreasonably disturbing the Property in any way
not reasonable consistent with the purpose of such test or studies, and
to restore the Property substantially to the same condition in which
he found it. Buyer agrees to promptly pay all invoices rendered in
connection with such test and studies and to protect the Property from
the filing of any mechanic's liens. Subsequent to the inspection
period referenced above, the earnest money deposit will become non-
refundable in the event Buyer fails to notify Seller of his intent to
cancel this contract.
#3. Purchaser is a registered real estate broker in the state of Florida.
#4. Upon seller and purchaser acceptance of this offer, seller agrees to
provide purchaser with all building plans, surveys, engineering plans
and studies etc. in seller's possession as regards the subject
property, as well as any and all environmental surveys, assessments and
reports. In the event purchaser does not complete the transaction and
close-all said plans, survey's, etc. shall be returned to sellers
immediately.
<PAGE> 4
#5. It is expressly understood that the $7000,000 purchase price is net to
seller except that Seller agrees to pay their prorated share of 1997
real estate taxes and their attorney fees. Purchaser will pay all other
closing costs including, title insurance and purchasers attorney fees,
stamps on deed, recording fees, and real estate commissions (6% of
total sales price).
<PAGE> 5
DESCRIPTION
-----------
EXHIBIT "B"
A parcel of land lying in Section 20, Township 43 South, Rt. 25 East, Lee
County, Florida, more particularly described a follows:
Commence at the southeast corner of the northwest quarter of the northeast
quarter of said Section 20 and run NO degrees 02' 29"W along the east line of
the aforesaid fraction for 422.38 feet to the intersection with the southerly
limited access right-of-way line of interstate Highway I-75 for the POINT OF
BEGINNING; Thence run S75 DEGREES 41' 07"E along said right-of-way line for
144.51 feet; thence run SO degrees 02' 29"E for 480.00 feet; thence run S44
degrees 24' 59"W for 115.08 feet to a point on a curve concave to the
southeast, having a radius of 75.00 feet; thence run along the arc of said curve
through a central angle of 60 degrees for an arc distance of 78.54 feet; thence
run S44 degrees 24' 59" W for 242.50 feet to a point on the northeasterly
right-of-way line of the Seaboard Coast Line Railroad (100 foot right-of-way
width); thence run N45 degrees 35' 01" W along said railroad right-of-way line
for 570.66 feet to a point on the south line of the aforesaid northwest quarter
of the northeast quarter of said Section 20; thence run N89 degrees 42' 16" E
along said south line for 14.21 feet; thence run N45 degrees 35'01" W along the
northeasterly right-of-way line of the Seaboard Coast Line Railroad (120 foot
right-of-way width) for 148.41 feet to the intersection with the west line of
the east half of the said northwest quarter of the northeast quarter of Section
20; thence run NO degrees 05' 56" W along said west line for 523.46 feet to the
point of intersection with south limited access right-of-way line of Interstate
Highway I-75, said point being on curve concave to the northeast and having a
radius of 3937.72 feet; thence run along the arc of said curve through a central
angle of 7 degrees 18' 16" for an arc distance of 502.01 feet to a point of
tangency; thence continue along said limited access right-of-way line S75 degree
41'07" E for 191.41 feet to the POINT OF BEGINNING Subject to a drainage
easement over and across the southeasterly 50.00 feet thereof. Containing 12.61
acres, more or less.
Prepared by:
De Lozier Engineering Company
January 7, 1981
[SEAL]
<PAGE> 1
EXHIBIT 10.2
LOAN AGREEMENT
THE FIRST INDEPENDENCE BANK, (hereafter called "bank" or "the bank"), and
Flordeco, LTD. (hereafter called "Borrower" or "the Borrower") agree on 3rd day
of August, 1996 as follows:
THE LOAN. The Bank will loan the Borrower $500,000 (the "Loan") which will be
used for the purpose of funding future real estate purchases and seasonal
working capital requirements. The terms and conditions of the loan are spelled
out below.
1. Security. Each and every promissory note delivered, or to be delivered, to
Debtor by purchasers of units in Debtor, which units represent limited
partnership interests in Debtor, pursuant to the terms of the Subscription
Agreement for units of Debtor, the Prospectus of Debtor dated August 12, 1996,
and related documents.
2. Guarantors. Mr. Thomas R. Cronin, Sr., and Flordeco, Inc.
3. Commitment Fee. $3,750.
REPRESENTATIONS. Borrower represents and warrants to Bank that the following
paragraphs are true and correct:
1. Power. Borrower is a Florida limited partnership, duly organized, validly
existing, and in good standing under the laws of the State of Florida and has
full power to execute this Agreement, to borrow money in accordance with the
terms hereof, and to do any and all things required herein.
2. Authority. The execution of this Agreement and the documents provided for
herein have been duly authorized by appropriate partnership action; and no
provision of Borrower's Partnership Agreement, regulations, or of any agreement
or undertaking to which Borrower is a party conflicts with or prevents the
Borrower from executing and carrying out the terms of this Agreement and the
loan's implementing documents.
3. Financial Condition. The financial statements, delivered to the Bank, are
true and show on a consolidated and consolidating basis the financial condition
of Borrower and any subsidiaries. Nothing has occurred or will occur before
funding that will materially affect in any adverse manner the condition of the
Borrower or any subsidiary as disclosed in the financial statements,
Borrower has no known actual or contingent liabilities, except such as are
reflected in the financial statements or in other documents that have been
delivered to the Bank.
4. Liens. There are no liens or encumbrances on any of the assets of the
Borrower or any subsidiary other than those granted to the Bank or those shown
on a special attachment to the Borrower's most recent financial statements.
5. Taxes. Borrower has filed all required federal, state, and local tax returns
and has paid all taxes and assessments as shown on such returns as they have
become due. No claims have been asserted or are unpaid with respect to such
taxes except as disclosed in the financial statements.
<PAGE> 2
BORROWER'S AFFIRMATIVE DUTIES: While the Loan is unpaid:
1. Annual Financial Statements. Borrower will furnish to the Bank, not later
than 90 days after the expiration of each fiscal year, detailed reports of the
Borrower covering such fiscal year. These are to be prepared on a consolidated
and consolidating basis and will be certified to by a CPA firm satisfactory to
the Bank. No change in accounting procedures or the CPA firm will be made
without the written permission of the bank.
2. Guarantors financial statements. All guarantors will provide to the Bank,
annual personal financial statements and tax returns, including K-1 schedules.
3. Insurance. Borrower will maintain property insurance (with Bank named as loss
payee) with responsible companies in such amounts and against such risks as is
customarily carried by prudent owners of similar businesses and property.
Borrower will promptly furnish the Bank a schedule of all such insurance.
Updates will be furnished annually thereafter. These annual updates will be
furnished as a schedule to the annual audited financial statements. Bank will be
furnished copies of insurance policies as requested.
4. Taxes. Borrower will promptly pay when due all taxes, assessments, and
governmental charges of every kind and nature lawfully levied, assessed, or
imposed upon Borrower or its properties except to the extent contested in good
faith, and in this connection will establish and maintain a reserve for federal
income taxes in accordance with generally accepted accounting practices.
5. Maintenance of Fixed Assets. The Borrower shall maintain all property, plant,
equipment, and rolling stock in a good state of repair.
6. Contingent Liabilities. The Bank will be informed of any litigation, changes
in contractual obligations, or other changes in the status quo of the borrower
that could materially affect the business.
7. Attorney's Fees. All attorney's fees and other direct Bank expenses incurred
in connection with the origination of the loan shall be paid by the Borrower.
8. Information. Borrower will furnish to the Bank with reasonable promptness
such data and information concerning the business of the Borrower as may be
requested by the Bank from time to time. Bank may inspect the Borrower's books
and records, as well as the plant, inventory, and equipment at any time.
BORROWER ALSO COVENANTS
1. Management. Borrower will maintain executive management which shall at all
times be satisfactory to the Bank and will notify Bank of any management
changes. Bank is satisfied with the existing executive management of the
Borrower.
3. Partnership Status. Borrower will maintain its partnership existence in good
standing. Borrower will not merge or consolidate with or into another entity,
except that a subsidiary of Borrower may merge with another subsidiary of
Borrower, or with the Borrower so long as Borrower is the continuing
corporation. Borrower will not change the character of its business.
<PAGE> 3
4. Bank Account. Borrower will regularly deposit all funds received from its
business activities in accounts maintained by Borrower at Bank. Payments of
interest and principal due on the loan and any other obligations created by this
Agreement may at Bank's discretion be charged against any of Borrower's accounts
with Bank. Borrower hereby grants to the Bank the unrestricted right of set-off
against any account of Borrower with the Bank. Bank will notify Borrower of all
charges which Bank makes against Borrower's account upon the making of such
charges.
EVENTS OF DEFAULT. Borrower will be in default under this Agreement and all the
documents given in connection herewith upon the happening of any of the
following events:
1. Payment. If Borrower fails to pay (1) all or any part of the principal or
interest of any note or any renewal note issued under this Agreement or (2) any
other amount Borrower owes Bank when the same is due and such failure continues
for a period of 10 days.
2. Duties. If Borrower fails to perform an of the duties to be performed by
Borrower in this Agreement or any document given in connection herewith, and
such failure continues for 30 days after written notice thereof has been given
to Borrower by the Bank.
3. Other Obligations. If Borrower Defaults in any payment of principal or
interest on any other obligation for borrowed money beyond any period of grace
provided with respect thereto, or in the performance of any other agreement,
term or condition contained in any agreement under which such obligation is
created, if the effect of such default is to cause or permit a holder of such
obligation to cause such obligation to become due prior to its stated maturity.
4. Misrepresentation. If any representation or warranty made by the Borrower or
any officer thereof in this Agreement or in any written statement, certificate,
or document now or later furnished by or for Borrower in connection herewith
proves to be materially untrue as of the date with respect to which it was
made.
REMEDIES. While Borrower is in default and at any time thereafter during the
continuance of such default, the Bank may, at the same or different times, take
one or more of the following actions:
1. Terminate its commitment to make loans hereunder.
2. The Bank may, by giving written notice to the Borrower then or at any time
thereafter, in its absolute discretion, declare the amount then remaining unpaid
on any notes or any renewal notes issued under this agreement to be forthwith
due and payable, anything herein contained or in any note or any renewal note to
the contrary notwithstanding.
MISCELLANEOUS. While the note is unpaid.
1. Costs and Expenses of the Bank. In addition to other obligations hereunder,
the Borrower will also pay all out-of-pocket expenses incurred by the Bank in
connection with the preparation of the Agreement and all the documents executed
in connection herewith (whether or not the transaction hereby or thereby
contemplated shall be consummated) and the enforcement and protection of the
rights of the Bank in connection with this Agreement and all the documents
executed in connection herewith.
2. Modifications and Consents. No modification or waiver of any provision of
this Agreement nor consent to any departure by the Borrower therefrom shall be
effective unless the same shall be in writing and signed by Bank, and then such
waiver or consent shall be effective only in the specific instance for the
purpose for which given. No notice of demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in the same,
similar, or other circumstances.
<PAGE> 4
3. Documents. Borrower will execute and cause others to execute and deliver to
the Bank the documents necessary to consummate the transactions contemplated
hereby (in a form satisfactory to Bank). Bank will have no duty to make any
loans until it has received all requested documents and any other items it deems
necessary for its files.
4. Notice. The service upon the Borrower of any notice provided for in this
Agreement may be made by mailing by registered mail a copy of such notice to the
last known address of the Borrower as shown by the records of the Bank.
5. No Waiver. No delay on the part of the Bank in exercising any right, power,
or privilege shall operate as a waiver thereof. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or remedies
which the Bank would otherwise have.
6. Binding Effect. This Agreement and the documents executed in connection
herewith will be construed in accordance with the laws of the State of Florida.
It may be executed in any number of counterparts which together shall constitute
but one and the same instrument and will bind and benefit the Borrower and the
Bank and their Respective successors and transferees.
7. Good Faith. The Bank acknowledges that all dealings by the Borrower that
precede this agreement were done in good faith with no fraudulent intent. The
Borrower acknowledges that all dealings by the Bank that precede this agreement
were done in good faith with no fraudulent intent. Any future questions
regarding good faith or intent will be resolved by mutual agreement between the
parties if this is possible. If this is not possible and unresolved questions of
good faith or intent must be litigated, the rights to a jury trial are hereby
waived. If the party who files such suit loses, that party will pay all
resulting legal fees incurred by the party that wins the suit.
8. Oral Agreements. All previous oral agreements between the Bank and the
Borrower have been superseded by this loan agreement. All future oral agreements
shall be null and void if not reduced to writing in seven days. This document
can be amended only by writings signed by both parties.
DATED: March 3rd, 1997
FIRST INDEPENDENCE BANK FLORDECO, LTD, a Florida limited partnership
By: INVESTORS TRUST, INC., a Florida corporation,
its General Partner
By /s/ Kenneth J. Iglesias By /s/ Allan Fox
---------------------------- --------------------------------------
Allan Fox, President
Its Senior Vice President Its
--------------------------- -------------------------------------
<PAGE> 5
PROMISSORY NOTE
(Revolving Line of Credit)
$500,000.00
MARCH 3, 1997
FOR VALUE RECEIVED, FLORDECO, LTD., A FLORIDA LIMITED PARTNERSHIP
(sometimes hereinafter referred to as the "undersigned" or the "Borrower"),
promises to pay to the order of FIRST INDEPENDENCE BANK OF FLORIDA, a Florida
banking corporation, or any subsequent holder of this note ("Bank"), at its
principal offices located at 16740 San Carlos Boulevard, S.W., P.O. Box 08009,
Fort Myers, Florida 33908 (or at such other place or places as Bank may
designate) the principal sum of FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($500,000.00) or so much thereof as may be from time to time outstanding,
subject to the restrictions set forth in Section 4 below, plus interest thereon
at the Rate hereinafter defined, all in accordance with the terms and conditions
of this Promissory Note (the "Note"). This Note is secured by an Assignment and
Security Agreement and UCC Financing Statements of even date filed or to be
filed for record in the public records of Lee County, Florida, and in the Office
of the Secretary of State of the State of Florida (the "Financing Statements")
and other agreements by and between Borrower and Bank. The Assignment and
Security Agreement and Financing Statements and such other agreements are
hereinafter referred to collectively as the "Security Documents" and the loan
evidenced thereby is hereinafter referred to as the "Loan." Terms used herein
but not otherwise defined hereunder are defined as set forth in the Security
Documents. All of the terms, definitions, conditions and covenants of the
Security Documents are expressly made a part of this Note by reference in the
same manner and with the same effect as if set forth herein at length, and any
holder of this Note is entitled to the benefits of and remedies provided in the
Security Documents. Subject to the terms and conditions of this Note and the
Security Documents, Bank shall advance funds to Borrower, such that Borrower may
borrow, partially or wholly repay, and reborrow, on a revolving basis, up to a
maximum principal sum as set forth herein.
1. Prime Rate. For purposes hereof, "Prime Rate" means the fluctuating rate of
interest per annum established by Bank as its prime lending rate in effect from
time to time whether or not such rate shall be otherwise published. Such Prime
Rate is established by Bank as an index or base rate and may or may not at any
time be the best or lowest rate of interest offered by Bank.
2. Interest. The outstanding Loan principal balance shall bear interest at the
per annum rate equal to the Prime Rate, as adjusted by Bank from time to time,
plus one percent (1%). The interest rate shall be adjusted as often as the Prime
Rate is adjusted by Bank, from time to time, during the term of the Loan. The
initial interest rate shall be nine and one-quarter percent (9.25%). Interest
shall be computed on the basis of a daily amount of interest accruing on the
daily outstanding principal balance during a 360-day year
<PAGE> 6
multiplied by the actual number of days the principal is outstanding during such
applicable interest period.
3. Payment of Interest and Principal. All accrued and unpaid interest shall be
due and payable quarterly, in arrears, with the first such interest payment to
be due and payable on June 1, 1997, and subsequent interest payments to be due
on the same day of each and every third (3rd) month thereafter during the term
of the Loan. Notwithstanding the above, all accrued but unpaid interest and the
entire outstanding principal balance shall be due and payable in full on the
Maturity Date, as defined below. All payments of principal and interest shall be
made in lawful currency of the United States of America which shall be legal
tender in payment of all debts, public and private, at the time of payment.
4. Maximum Outstanding Principal Balance. Notwithstanding anything to the
contrary herein, the maximum outstanding principal balance allowed shall be
reduced during the second and third years of the term of the Loan as follows:
Commencing with the date of this Note and continuing until the first anniversary
of this Note, the maximum principal balance that may be outstanding at any one
time shall be Five Hundred Thousand and No/100 Dollars ($500,000.00). Commencing
on the first anniversary of this Note and continuing until the second
anniversary of this Note, the maximum principal balance that may be outstanding
at any one time shall be Four Hundred Thousand and No/100 Dollars ($400,000.00).
Commencing on the second anniversary of this Note and continuing until the
Maturity Date, as defined below, the maximum principal balance that may be
outstanding at any one time shall be Three Hundred Thousand and no/100 Dollars
($300,000.00). If, on any anniversary of the date of this Note, the principal
balance shall exceed the maximum amount allowed as set forth above, Borrower
shall immediately pay to Bank the amount of such excess.
5. Prepayment. This Note may be prepaid in whole or in part at any time without
fee, premium or penalty. Any partial prepayment shall be applied in accordance
with paragraph 11 below and shall not postpone the due date of any subsequent
periodic installments or the Maturity Date, or change the amount of such
installments due, unless Bank shall otherwise agree in writing.
6. Late Charges. Should Borrower fail to pay the installments of interest or
principal (if applicable) on any due date provided for herein or within ten (10)
days thereafter, then Borrower further promises to pay a late payment charge
equal to four percent (4%) of the amount of the unpaid installment as liquidated
compensation to Bank for the extra expense to Bank to process and administer the
late payment, Borrower agreeing, by execution hereof, that any other measure of
compensation for a late payment is speculative and impossible to compute. This
provision for late charges shall not be deemed to extend the time for payment or
be a "grace period" or "cure period" that gives Borrower a right to cure a
Default or Default Condition. Imposition of late charges is not contingent upon
the giving of any notice or lapse of any cure period provided for in the
Security Documents and
2
<PAGE> 7
shall not be deemed a waiver of any right or remedy of Bank, including without
limitation, acceleration of this Note.
7. Maturity Date. The then outstanding principal balance plus all accrued but
unpaid interest shall be due and payable on March 1, 2000 (the "Maturity Date").
8. Default. Any failure of Borrower or any Guarantor to comply with any term,
covenant, or condition of this Note, including without limitation, Borrower's
failure to pay principal, interest, or expenses when same shall become due or
the existence of any Default Condition or Default under the Security Documents
shall be deemed, at the option of Bank, a Default under this Note.
9. Acceleration. Upon the occurrence of a Default hereunder or under the terms
of any one or more of the Security Documents, Bank may declare the then
outstanding principal and all accrued but unpaid interest immediately due and
payable and upon acceleration and thereafter this Note shall bear interest at
the Default Rate, hereinafter defined, until all indebtedness evidenced hereby
and secured by the Security Documents has been paid in full. Further, in the
event of such acceleration, the Loan and all other indebtedness of Borrower to
Bank arising out of or in connection with the Loan shall become immediately due
and payable, without presentation, demand, protest or notice of any kind, all of
which are hereby waived by Borrower. Any judgment rendered on this Note shall
bear interest at the Default Rate (as herein defined).
10. Default Rate. After default or maturity or upon acceleration, and
thereafter, the unpaid indebtedness then evidenced by this Note and due under
and secured by the Security Documents shall bear interest at a fixed rate equal
to the lesser of (a) the maximum rate then permitted under applicable law, or
(b) eighteen percent (18%) per annum.
11. Application of Payments. All sums received by Bank for application to the
Loan may be applied by Bank to late charges, expenses, costs, interest,
principal, and other amounts owing to Bank in connection with the Loan in the
order selected by Bank in its sole discretion.
12. Expenses. In the event this Note is not paid when due on any stated or
accelerated maturity date, or should it be necessary for Bank to enforce any
other of its rights under this Note, or the Security Documents, Borrower will
pay to Bank, in addition to principal, interest and other charges due hereunder
or under the Security Documents, all costs of collection or enforcement,
including reasonable attorneys' fees, paralegals' fees, legal assistants' fees,
costs and expenses, whether incurred with respect to collection, litigation,
bankruptcy proceedings, interpretation, dispute, negotiation, trial, appeal,
defense of actions instituted by a third party against Bank arising out of or
related to the Loan, enforcement of any judgment based on this Note, or
otherwise, whether or not a suit to collect such amounts or to enforce such
rights is brought or, if brought, is prosecuted to judgment.
3
<PAGE> 8
13. Waiver. All persons now or at any time liable for payment of this Note,
whether directly or indirectly, including without limitation any Guarantor,
hereby waive presentment, protest notice of protest and dishonor. The
undersigned expressly consents to any extensions and renewals, in whole or in
part to the release of any or all Guarantors or co-makers and any collateral
security or portions thereof, given to secure this Note, and all delays in time
of payment or other performance which Bank may grant, in its sole discretion, at
any time and from time to time without limitation all without any notice or
further consent of Borrower, and any such grant by Bank shall not be deemed a
waiver of any subsequent delay or any of Bank's rights hereunder or under the
Security Documents.
14. Usury. In no event shall this or any other provision herein or in the
Security Documents permit the collection of any interest which would be usurious
under the laws of the State of Florida. If any such interest in excess of the
maximum rate allowable under applicable law has been collected, Borrower agrees
that the amount of interest collected above the maximum rate permitted by
applicable law, together with interest thereon at the rate required by
applicable law, shall be refunded to Borrower, and Borrower agrees to accept
such refund, or, at Borrower's option, such refund shall be applied as a
principal payment hereunder.
15. Modification. This Note may not be changed orally, but only by an agreement
in writing signed by the Bank and Borrower.
16. Applicable Law. This Note shall be governed by and construed in accordance
with the laws of the State of Florida.
17. Notices. All notices or other communications required or permitted to be
given pursuant to the provisions of this Note shall be given in writing, by U.S.
Mail or by hand delivery.
18. Successors and Assigns. As used herein, the terms "Borrower" and "Bank"
shall be deemed to include their respective heirs, personal representatives,
successors and assigns. The owner of this Note may, from time to time, sell or
offer to sell the loan evidenced by this Note, or interests therein, to one or
more assignees or participants and is hereby authorized to disseminate any
information it has pertaining to the loan evidenced by this Note, including,
without limitation, any security for this Note and credit information on
Borrower, any of its principals and any guarantor of this Note, to any company
affiliated with the owner of this Note, any assignee or participant, and to the
extent, if any, specified in any such assignment or participation, such
affiliated companies, assignee(s) or participant(s) shall have the rights and
benefits with respect to this Note and the other Loan Documents as such
person(s) would have if such person(s) were Bank hereunder. The owner of this
Note may also disclose any such information to any regulatory body having
jurisdiction over Bank. Borrower may not assign this Note.
4
<PAGE> 9
19. Severability. In the event any one or more of the provisions of this Note
shall for any reason be held to be invalid, illegal, or unenforceable, in whole
or in part or in any respect, or in the event that any one or more of the
provisions of this Note operates or would prospectively operate to invalidate
this Note, then and in any of those events, only such provision or provisions
shall be deemed null and void and shall not affect any other provision of this
Note. The remaining provisions of this Note shall remain operative and in full
force and effect and shall in no way be affected, prejudiced, or disturbed
thereby. In the event any provisions of this Note are inconsistent with the
provisions of the Security Documents, or any other agreements or documents
executed in connection with this Note, this Note shall control.
20. Captions; Pronouns. Captions are for reference only and in no way limit the
terms of this Note. The pronouns used in this instrument shall be construed as
masculine, feminine, or neuter as the occasion may require. Use of the singular
includes the plural, and vice versa.
21. Business Day. Any reference herein or in the Security Documents to a day or
business day shall be deemed to refer to a banking day which shall be a day on
which Bank is open for the transaction of business, excluding any national
holidays, and any performance which would otherwise be required on a day other
than a banking day shall be timely performed in such instance, if performed on
the next succeeding banking day. Notwithstanding such timely performance,
interest shall continue to accrue hereunder until such payment or performance
has been made.
22. WAIVER OF JURY TRIAL. THE PARTIES MUTUALLY AGREE THAT NEITHER PARTY, NOR ANY
ASSIGNEE, SUCCESSOR, HEIR, OR LEGAL REPRESENTATIVE OF THE PARTIES (ALL OF WHOM
ARE HEREINAFTER REFERRED TO AS THE "PARTIES") SHALL SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE BASED UPON
OR ARISING OUT OF THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RELATED
AGREEMENT OR INSTRUMENT, ANY OTHER COLLATERAL FOR THE DEBT OR THE DEALINGS OR
THE RELATIONSHIP BETWEEN OR AMONG THE PARTIES, OR ANY OF THEM. NONE OF THE
PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN
WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES WITH
BANK. THE WAIVER CONTAINED HEREIN IS IRREVOCABLE, CONSTITUTES A KNOWING AND
VOLUNTARY WAIVER, AND IS SUBJECT TO NO EXCEPTIONS. BANK HAS IN NO WAY AGREED
WITH OR REPRESENTED TO BORROWER, ANY GUARANTOR, OR ANY OTHER PARTY THAT THE
PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
5
<PAGE> 10
23. Use of Loan Proceeds. All proceeds from this Loan will be used by Borrower
to purchase, renovate, lease out to third parties and mortgage real property for
investment purposes (the "Projects"). Bank shall be given the first opportunity
to finance any Project; however, Bank shall be under no obligation to do so.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed
as of the day and year first above written.
WITNESSES:
/s/ Kenneth J. Iglesias FLORDECO, LTD.,
- ------------------------------ a Florida limited partnership
Witness Signature
Kenneth J. Iglesias
- ------------------------------
Witness Print Name By: INVESTORS TRUST, INC.,
a Florida corporation,
its general partner
- ------------------------------
Witness Signature
/s/ Thomas R. Cronin
- ------------------------------
Witness Print Name /s/ Allan Fox
--------------------------------------------
By: Allan Fox
President
6
<PAGE> 11
ASSIGNMENT AND SECURITY AGREEMENT
THIS AGREEMENT is made this 3 day of March, 1997, between FLORDECO,
LTD., A FLORIDA LIMITED PARTNERSHIP ("DEBTOR"), and FIRST INDEPENDENCE BANK OF
FLORIDA, A FLORIDA BANKING CORPORATION ("SECURED Party").
WHEREAS, Debtor made, executed and delivered to Secured Party that
certain Revolving Line of Credit Promissory Note of even date, in the principal
amount of FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) (together with
any and all modifications, extensions and renewals thereof, hereinafter referred
to as the "Obligations"); and
WHEREAS, pursuant to the terms and conditions of the Subscription
Agreements for the purchase of units of Debtor, the Prospectus of Debtor dated
August 12, 1996, and other related documents, purchasers of units of Debtor,
which units represent limited partnership interests in Debtor, are to make,
execute and deliver to Debtor certain full recourse promissory notes (the
"Promissory Notes" or "Collateral") as part of the consideration for such units;
and
WHEREAS, as a condition to extending the Line of Credit to Borrower,
Secured Party requires Debtor to grant Secured Party a security interest in the
Collateral as security for the Obligations.
NOW, THEREFORE, the parties agree as follows:
1. GRANT OF SECURITY. For value received, Debtor hereby pledges,
assigns, conveys and transfers to Secured Party and grants to Secured Party
security title to and a security interest in the Promissory Notes, as more
particularly described in Exhibit "A" attached hereto, to secure payment of the
Obligations.
Concurrently with the execution of this Agreement, the
Promissory Notes will be endorsed by Debtor in favor of Secured Party in the
form of allonge attached hereto as Exhibit "B", and will be delivered to Secured
Party, to be held by Secured Party until the Obligations have been satisfied in
full.
The parties intend that additional Promissory Notes will be
made, executed and delivered in favor of Debtor as additional units of Debtor
are sold to investors pursuant to the terms of the Subscription Agreements. All
such additional Promissory Notes shall be Collateral hereunder as security for
the Obligations; and Debtor covenants and agrees to promptly endorse and deliver
to Secured Party all such additional Promissory Notes as the same are received
by Debtor. Secured Party may amend this Agreement and the financing statements
executed concurrently herewith, from time to time in Secured Party's sole
discretion, to specifically identify such additional Promissory Notes as
Collateral
1
<PAGE> 12
hereunder and under the financing statements, and Debtor agrees to execute
whatever documents Secured Party may request in connection therewith. Regardless
of whether this Agreement or the financing statements are amended as additional
Promissory Notes are received by Debtor, such additional Promissory Notes shall
be Collateral hereunder as security for the Obligations.
So long as Debtor is not in default under the Obligations,
Debtor shall be entitled to receive the payments due under the Promissory Notes.
If Debtor shall at any time be in default under the Obligations or if Secured
Party shall feel insecure for any reason, then, upon written notice from Secured
Party, all payments due under the Promissory Notes shall be made directly to
Secured Party and applied towards the Obligations. Debtor agrees to cooperate
with Secured Party in directing the makers of the Promissory Notes to make
payment directly to Secured Party in the event Secured Party exercises its
rights hereunder.
2. COVENANTS.
A. Debtor covenants and agrees to observe and enforce all of
the requirements and its rights under the Promissory Notes, the Subscription
Agreements, the Prospectus and related documents, including, but not limited to,
the requirement that the makers of the Promissory Notes who make such Notes in a
representative capacity provide opinion of counsel letters in accordance with
the Subscription Agreement, if requested by Bank, and the requirement that any
corporate officer executing a Promissory Note on behalf of a corporation or
other entity provide Certificates of Good Standing and evidence of such
officer's authority to execute such Note, if requested by Bank.
B. Debtor covenants and agrees to maintain its entire demand
deposit business with Secured Party.
3. DEFAULT. Upon default in the payment when due of principal or
interest on the Obligations, or upon the occurrence of any event of default as
defined in any document evidencing the Obligations which is not cured within the
time allowed therein, Secured Party may, without further notice, exercise any
and all of the rights of a Secured Party under Florida law then in effect,
including, without limitation, the right to receive payment under the Promissory
Notes which are Collateral hereunder and the right of setoff. Debtor hereby
appoints Secured Party as attorney-in-fact with full power to endorse, transfer,
convert sell and deliver any instrument of Collateral described above.
4. RELEASE OF COLLATERAL. The Collateral may be reduced or released
only with the written consent of Secured Party. When all Obligations secured
hereby have been fully satisfied, Debtor shall have the right to demand release
thereof.
5. WARRANTIES. Debtor warrants to Secured Party that Debtor is lawfully
organized and existing under the laws of Florida, is the lawful owner of the
Collateral, that
2
<PAGE> 13
it possesses full power and authority to pledge the Collateral to Secured Party
and that the Collateral is free of all claims and liens other than the lien
created hereby.
6. SECURED PARTY NOT LIABLE. Nothing contained herein shall be
interpreted to impose on Secured Party the obligation to enforce the collection
or any of the terms and conditions of the Promissory Notes; and Secured Party
shall under no circumstances incur any liability to any person or entity
whatsoever, including, but not limited to, Debtor, as a result of Secured Party
taking possession of the Promissory Notes, Secured Party not enforcing the terms
and conditions of the Promissory Notes, or Secured Party exercising its rights
hereunder. Debtor shall be solely responsible for enforcing the terms and
contions of the Promissory Notes and collecting payments under the Promissory
Notes.
7. BANKRUPTCY OF DEBTOR. In the event any bankruptcy or similar
proceedings are instituted against Debtor, whether voluntary or involuntary; or
in the event Debtor is declared or adjudged a bankrupt; or in the event Debtor
becomes insolvent, admits its inability to pay its debts as the same become due,
or makes an assignment for the benefit of creditors, then any such event shall
be considered a default hereunder.
8. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Florida and shall be binding upon the parties hereto,
and their respective heirs, executors, administrators, successors and assigns.
9. SEVERABILITY. In the event any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal, or unenforceable,
in whole or in part or in any respect, or in the event that any one or more of
the provisions of this Agreement operates or would prospectively operate to
invalidate this Agreement, then and in any of those events, only such provision
or provisions shall be deemed null and void and shall not affect any other
provision of this Agreement. The remaining provisions of this Agreement shall
remain operative and in full force and effect and shall in no way be affected,
prejudiced, or disturbed thereby.
10. CAPTIONS; PRONOUNS. Captions are for reference only and in no way
limit the terms of this Agreement. The pronouns used in this Agreement shall be
construed as masculine, feminine, or neuter as the occasion may require. Use of
the singular includes the plural, and vice versa.
11. MODIFICATION. This Agreement may not be changed orally, but only by
an agreement in writing signed by Debtor and Secured Party.
12. WAIVER. No waiver by Secured Party of any term or condition of this
Agreement shall be effective unless in writing and signed by Secured Party. No
waiver of any term or condition shall be deemed a waiver of any other term or
condition or of the same term or condition on a future occasion.
3
<PAGE> 14
13. EXPENSES. In the event it is necessary for Secured Party to enforce
any of its rights under this Agreement, Debtor will pay to Secured Party all
costs of collection or enforcement, including reasonable attorneys' fees,
paralegals' fees, legal assistants' fees, costs and expenses, whether incurred
with respect to collection, litigation, bankruptcy proceedings, interpretation,
dispute, negotiation, trial, appeal, defense of actions instituted by a third
party against Secured Party arising out of or related to this Agreement,
enforcement of any judgment based on this Agreement, or otherwise, whether or
not a suit to collect such amounts or to enforce such rights is brought or, if
brought, is prosecuted to judgment. All such expenses shall be deemed
Obligations secured by the Collateral.
IN WITNESS WHEREOF, this Agreement has been executed the day and year
first above written.
WITNESSES: FLORDECO, LTD.,
a Florida limited partnership
/s/ Kenneth J. Iglesias
- ------------------------------
Witness Signature By: INVESTORS TRUST, INC.,
a Florida corporation,
its general partner
Kenneth J. Iglesias
- ------------------------------
Witness Print Name
- ------------------------------
Witness Signature
/s/ Allan Fox
-----------------------------------
/s/ Thomas R. Cronin By: Allan Fox
- ------------------------------ President
Witness Print Name
4
<PAGE> 15
EXHIBIT "A"
<TABLE>
<CAPTION>
MAKER AMOUNT OF PROMISSORY NOTE
- ------------------------------------------------------------------
<S> <C>
Americhem, Inc. $ 50,000.00
Paul Bush $100,000.00
Closure Group, Inc. $ 50,000.00
Pauline R. Cronin, Trustee $250,000.00
Thomas R. Cronin, Trustee $ 50,000.00
Nick Cross $ 10,000.00
Peter & Cynthia Doragh $ 50,000.00
Flordeco, Inc. $100,000.00
Michael P. Geml $ 10,000.00
Frances H. Gresham, Trustee $ 50,000.00
GTP Investment Company $ 10,000.00
Nancy & Leonard Hall $ 50,000.00
Gerald & Beth Hendry $ 10,000.00
Barry R. Hillmyer $ 20,000.00
Joseph & Linda Howard $ 50,000.00
Investors Trust, Inc. $ 50,000.00
Barbara H. Kite, Trustee $ 60,000.00
Gerald Laboda, Trustee $ 70,000.00
Gerald Laboda, Trustee $ 20,000.00
David L. Lageschulte $150,000.00
David L. Lageschulte $150,000.00
Laurel Center Management $ 50,000.00
Marianne Link, Trustee $ 50,000.00
James & Paula Maples $ 10,000.00
Matech, Inc. $100,000.00
James & Terry McMenamy $ 20,000.00
Keith & Deborah Miller $ 50,000.00
Oswald, Trippe & Co. $ 50,000.00
Edmund I. Parnes $ 50,000.00
Edmund I. Parnes, Target Benefit Plan $ 50,000.00
Prather & Co., Inc. $ 50,000.00
J. Jeffrey & Barbara A. Rice. $ 50,000.00
Gail R. Williams, Trustee $ 10,000.00
R.V. Williams, Trustee $ 10,000.00
William B. Wiltshire $ 10,000.00
Jeffrey C. Ledward $ 20,000.00
Frances H. Gresham, Trustee $ 50,000.00
Kyle A. Williams $ 10,000.00
Harald J. Burke $ 30,000.00
Chevetta Schultz & Eileen Murphy $ 10,000.00
Chevetta R. & Scott Schultz $ 10,000.00
</TABLE>
<PAGE> 16
EXHIBIT "B"
FORM OF ALLONGE TO PROMISSORY NOTE
THIS ALLONGE TO PROMISSORY NOTE is hereby attached to and made a part
of that certain Promissory Note made by _____________________________, in favor
of FLORDECO, LTD., a Florida limited partnership, in the original principal
amount of $____________________.
PAY TO THE ORDER OF
FIRST INDEPENDENCE BANK OF FLORIDA,
A FLORIDA BANKING CORPORATION
FLORDECO, LTD., a Florida limited partnership
By: INVESTORS TRUST, INC.,
a Florida corporation, its general partner
By:
-------------------------------------------
Allan Fox, President
<PAGE> 17
STATE OF FLORIDA
<TABLE>
<CAPTION>
UNIFORM COMMERCIAL CODE FINANCING STATEMENT FORM UCC-1 (REV. 1993)
This Financing Statement is presented to a filing officer for filing pursuant to the Uniform Commercial Code:
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Debtor (Last Name First if an Individual) 1a. Date of Birth or FEI#
Flordeco, Ltd., a Florida limited partnership
- ----------------------------------------------------------------------------------------------------------------------------------
1b. Mailing Address 1c. City, State 1d. Zip Code
3591 Fowler Street Fort Myers, Florida 33901
- ----------------------------------------------------------------------------------------------------------------------------------
2. Additional Debtor or Trade Name (Last Name First if an individual) 2a. Date of Birth or FEI#
- ----------------------------------------------------------------------------------------------------------------------------------
2b. Mailing Address 2c. City, state 2d. Zip Code
- ----------------------------------------------------------------------------------------------------------------------------------
3. Secured Party (Last Name First if an Individual)
First Independence Bank of Florida, a Florida banking corporation
- ----------------------------------------------------------------------------------------------------------------------------------
3a. Mailing Address 3b. City, State 3c. Zip Code
16740 San Carlos Boulevard, P.O. Box 08009 Fort Myers, Florida 33908
- ----------------------------------------------------------------------------------------------------------------------------------
4. Assignee of Secured Party (Last Name First if an Individual)
- ----------------------------------------------------------------------------------------------------------------------------------
4a. Mailing Address 4b. City, State 4c. Zip Code
- ----------------------------------------------------------------------------------------------------------------------------------
5. This Financing Statement covers the following types or items or property [include description of real property on which located
and owner of record when required. If more space is required, attach additional sheets(s)].
Each and every Promissory Note delivered, or to be delivered, to Debtor by purchasers of units in Debtor, which units
represent limited partnership interests in Debtor, pursuant to the terms of the Subscription Agreements for units of Debtor, the
Prospectus of Debtor dated August 12, 1996, and related documents. The Promissory Notes are identified on Exhibit "A" attached
hereto.
- -----------------------------------------------------------------------------------------------------------------------------------
6. Check only if [X] Products of collateral [X] Proceeds of collateral [ ] Debtor is transmitting
Applicable: are also covered. are also covered. utility.
- -----------------------------------------------------------------------------------------------------------------------------------
7. Check appropriate box [X] All documentary stamp taxes due and payable or to become due and payable pursuant to
(One box must be marked) s.201.22 F.S., have been paid.
[ ] Florida Documentary Stamp Tax is not required.
- -----------------------------------------------------------------------------------------------------------------------------------
8. In accordance with s. 679.402(2), F.S., this statement is filled 9. Number of additional sheets presented:
without the Debtor's signature to perfect a security interest --------------
in collateral:
[ ] already subject to a security interest in another jurisdiction when --------------------------------------------------------
it was brought into this state or debtors location changed to this Space for Use of Filing Officer
state.
[ ] which is proceeds of the original collateral described above in which
a security interest was perfected.
[ ] as to which the filling has lapsed. Date filed ______________ and
previous UCC-1 file number_______________________________________.
[ ] acquired after a change of name, identity, or corporate structure
of the debtor.
- ---------------------------------------------------------------------------
10. Signature(s) of Debtor(s)
SEE EXHIBIT "B" ATTACHED HERETO.
- ---------------------------------------------------------------------------
11. Signature(s) of Secured Party or if Assigned, by Assignee(s)
SEE EXHIBIT "B" ATTACHED HERETO.
- ---------------------------------------------------------------------------
12. Return Copy to:
Name Samuel J. Hagan, Esquire
Address Smoot Adams Edwards & Green, P.A.
Address P.O. Box 60259
City, State, Zip Fort Myers, FL 33906-6259
- ---------------------------------------------------------------------------
FILING OFFICER COPY STANDARD FORM-FORM UCC-1 Approved by Secretary of State, State of Florida
</TABLE>
<PAGE> 18
10. Signature of Debtor:
FLORDECO, LTD., a Florida limited partnership
By: INVESTORS TRUST, INC., a Florida
corporation, its general partner
By: /s/ Allan Fox
-------------------------------------------
Allan Fox, President
11: Signature of Secured Party:
FIRST INDEPENDENCE BANK OF FLORIDA,
a Florida banking corporation
By: /s/ Kenneth J. Iglesias
-------------------------------------------
Kenneth J. Iglesias
Senior Vice President
EXHIBIT "B"
<PAGE> 19
EXHIBIT "A"
<TABLE>
<CAPTION>
MAKER AMOUNT OF PROMISSORY NOTE
- ------------------------------------------------------------------
<S> <C>
Americhem, Inc. $ 50,000.00
Paul Bush $100,000.00
Closure Group, Inc. $ 50,000.00
Pauline R. Cronin, Trustee $250,000.00
Thomas R. Cronin, Trustee $ 50,000.00
Nick Cross $ 10,000.00
Peter & Cynthia Doragh $ 50,000.00
Flordeco, Inc. $100,000.00
Michael P. Geml $ 10,000.00
Frances H. Gresham, Trustee $ 50,000.00
GTP Investment Company $ 10,000.00
Nancy & Leonard Hall $ 50,000.00
Gerald & Beth Hendry $ 10,000.00
Barry R. Hillmyer $ 20,000.00
Joseph & Linda Howard $ 50,000.00
Investors Trust, Inc. $ 50,000.00
Barbara H. Kite, Trustee $ 60,000.00
Gerald Laboda, Trustee $ 70,000.00
Gerald Laboda, Trustee $ 20,000.00
David L. Lageschulte $150,000.00
David L. Lageschulte $150,000.00
Laurel Center Management $ 50,000.00
Marianne Link, Trustee $ 50,000.00
James & Paula Maples $ 10,000.00
Matech, Inc. $100,000.00
James & Terry McMenamy $ 20,000.00
Keith & Deborah Miller $ 50,000.00
Oswald, Trippe & Co. $ 50,000.00
Edmund I. Parnes $ 50,000.00
Edmund I. Parnes, Target Benefit Plan $ 50,000.00
Prather & Co., Inc. $ 50,000.00
J. Jeffrey & Barbara A. Rice. $ 50,000.00
Gail R. Williams, Trustee $ 10,000.00
R.V. Williams, Trustee $ 10,000.00
William B. Wiltshire $ 10,000.00
Jeffrey C. Ledward $ 20,000.00
Frances H. Gresham, Trustee $ 50,000.00
Kyle A. Williams $ 10,000.00
Harald J. Burke $ 30,000.00
Chevetta Schultz & Eileen Murphy $ 10,000.00
Chevetta R. & Scott Schultz $ 10,000.00
</TABLE>
<PAGE> 20
GUARANTY BY CORPORATION
FORT MYERS , FL
-------------------------- ---------
(City) (State)
MARCH 3, 1997
----------------------------------
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and to induce FIRST INDEPENDENCE BANK OF FLORIDA,
16740 SAN CARLOS BLVD. S.W., FORT MYERS, FL 33908 (herein, with its
participants, successors and assigns, called "Lender"), at its option, at any
time or from time to time to make loans or extend other accommodations to or
for the account of FLORDECO, LTD. (herein called "Borrower") or to engage in
any other transactions with Borrower, the Undersigned hereby absolutely and
unconditionally guarantees to the Lender the full and prompt payment when due,
whether at maturity or earlier by reason of acceleration or otherwise, of the
debts, liabilities and obligations described as follows:
A.If this [ ] is checked, the Undersigned guarantees to Lender the payment
and performance of the debt, liability or obligation of Borrower to
Lender evidenced by or arising out of the following:____________________
______________________________________________________and any extensions,
renewals or replacements thereof (hereinafter referred to as the
"Indebtedness").
B.If this [X] is checked, the Undersigned guarantees to Lender the payment
and performance of each and every debt, liability and obligation of
every type and description which Borrower may now or at any time
hereafter owe to Lender (whether such debt, liability or obligation now
exists or is hereafter created or incurred, and whether it is or may be
direct or indirect, due or to become due, absolute or contingent,
primary or secondary, liquidated or unliquidated, or joint and several,
or joint and several; all such debts, liabilities and obligations being
hereinafter collectively referred to as the "Indebtedness"). Without
limitation, this guaranty includes the following described debt(s):
$500,000.00 REVOLVING LINE OF CREDIT.
The term, "Indebtedness" as used in this guaranty shall not include any
obligations entered into between Borrower and Lender after the date hereof
(including any extensions, renewals, or replacements of such obligations) for
which Borrower meets the Lender's standard of creditworthiness based on
Borrower's own assets and income without the addition of a guaranty or for
which a guaranty is required but Borrower chooses someone other than the
joint Undersigned to guaranty the obligation.
The Undersigned further acknowledges and agrees with Lender that:
1. No act or thing need occur to establish the liability of the Undersigned
hereunder, and no act or thing, except full payment and discharge of all
Indebtedness, shall in any way exonerate the Undersigned or modify, reduce,
limit or release the liability of the Undersigned hereunder.
2. This is an absolute, unconditional and continuing guaranty of payment of
the Indebtedness and shall continue to be in force and be binding upon the
Undersigned, whether or not all Indebtedness is paid in full, until this
guaranty is revoked by written notice actually received by the Lender, and such
revocation shall not be effective as to Indebtedness existing or committed for
at the time of actual receipt of such notice by the Lender, or as to any
renewals, extensions and refinancings thereof.
The Undersigned represents and warrants to the Lender that the Undersigned
has a direct and substantial economic interest in Borrower and expects to
derive substantial benefits therefrom and from any loans and financial
accommodations resulting in the creation of Indebtedness guaranteed hereby, and
that this guaranty is given for a corporate purpose. The Undersigned agrees to
rely exclusively on the right to revoke this guaranty prospectively as to
future transactions, by written notice actually received by Lender if at any
time, in the opinion of the directors or officers of the Undersigned, the
corporate benefits then being received by the Undersigned in connection with
this guaranty are not sufficient to warrant the continuance of this guaranty as
to future Indebtedness. Accordingly, so long as this guaranty is not revoked
prospectively in accordance with this guaranty, the Lender may rely
conclusively on a continuing warranty, hereby made, that the Undersigned
continues to be benefited, by this guaranty and the Lender shall have no duty
to inquire into or confirm the receipt of any such benefits, and this guaranty
shall be effective and enforceable by the Lender without regard to the receipt,
nature or value of any such benefits.
3. If the Undersigned shall be dissolved or shall be or become insolvent
(however defined) or revoke this guaranty, then the Lender shall have the right
to declare immediately due and payable, and the Undersigned will forthwith pay
to the Lender, the full amount of all Indebtedness, whether due and payable or
unmatured. If the Undersigned voluntarily commences or there is commenced
involuntarily against the Undersigned a case under the United States Bankruptcy
Code, the full amount of all indebtedness, whether due and payable or
unmatured, shall be immediately due and payable without demand or notice
thereof.
4. The liability of the Undersigned hereunder shall be limited to a
principal amount of $ UNLIMITED (if unlimited or if no amount is stated, the
Undersigned shall be liable for all Indebtedness, without any limitation as to
amount), plus accrued interest thereon and all attorneys' fees, collection
costs and enforcement expenses referable thereto. Indebtedness may be created
and continued in any amount, whether or not in excess of such principal amount,
without affecting or impairing the liability of the Undersigned hereunder. The
Lender may apply any sums received by or available to the Lender on account of
the Indebtedness from Borrower or any other person (except the Undersigned),
from their properties, out of any collateral security or from any other source
to payment of the excess. Such application of receipts shall not reduce,
affect or impair the liability of the Undersigned hereunder. If the liability
of the Undersigned is limited to a stated amount pursuant to this paragraph 4,
any payment made by the Undersigned under this guaranty shall be effective to
reduce or discharge such liability only if accompanied by a written transmittal
document, received by the Lender, advising the Lender that such payment is made
under this guaranty for such purpose.
5. The Undersigned will pay or reimburse the Lender for all costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred by
the Lender in connection with the protection, defense or enforcement of this
guaranty in any litigation or bankruptcy or insolvency proceedings.
THIS GUARANTY INCLUDES THE ADDITIONAL PROVISIONS ON PAGE 2 HEREOF, ALL OF WHICH
ARE MADE A PART HEREOF.
This guaranty is [X]unsecured; [ ]secured by a mortgage or security agreement
dated________________;[ ]secured by____________________________________________.
IN WITNESS WHEREOF, this guaranty has been duly executed by the Undersigned
the day and year first above written.
FLORDECO, INC.
----------------------------------------
(Title)
By /s/ Allan Fox
----------------------------------------
ALLAN FOX, PRESIDENT
By
----------------------------------------
"Undersigned" shall refer to all
entities who sign this guarantee,
individually and jointly
(page 1 of 2)
<PAGE> 21
ADDITIONAL PROVISIONS
6. Whether or not any existing relationship between the Undersigned and
Borrower has been changed or ended and whether or not this guaranty has been
revoked, the Lender may, but shall not be obligated to, enter into transactions
resulting in the creation or continuance of Indebtedness, without any consent or
approval by the Undersigned and without any notice to the Undersigned. The
liability of the Undersigned shall not be affected or impaired by any of the
following acts or things (which the Lender is expressly authorized to do, omit
or suffer from time to time both before and after revocation of this guaranty,
without notice to or approval by the Undersigned): (i) any acceptance of
collateral security, guarantors, accommodation parties or sureties for any or
all Indebtedness; (ii) any one or more extensions or renewals of Indebtedness
(whether or not for longer than the original period) or any modification of the
interest rates, maturities or other contractual terms applicable to any
Indebtedness; (iii) any waiver adjustment, forbearance, compromise or indulgence
granted to Borrower, any delay or lack of diligence in the enforcement of
Indebtedness, or any failure to institute proceedings, file a claim, give any
required notices or otherwise protect any Indebtedness; (iv) any full or partial
release of, settlement with, or agreement not to sue, Borrower or any other
guarantor or other person liable in respect of any Indebtedness; (v) any
discharge of any evidence of Indebtedness or the acceptance of any instrument in
renewal thereof or substitution therefor; (vi) any failure to obtain collateral
security (including rights of setoff) for Indebtedness, or to see to the proper
or sufficient creation and perfection thereof, or to establish the priority
thereof, or to protect, insure, or enforce any collateral security; or any
release, modification, substitution, discharge, impairment, deterioration,
waste, or loss of any collateral security; (vii) any foreclosure or enforcement
of any collateral security; (viii) any transfer of any Indebtedness or any
evidence thereof; (ix) any order of application of any payments or credits upon
Indebtedness; (x) any election by the Lender under Section 1111(b)(2) of the
United States Bankruptcy Code.
7. The Undersigned waives any and all defenses, claims and discharges
of Borrower, or any other obligor, pertaining to Indebtedness, except the
defense of discharge by payment in full. Without limiting the generality of the
foregoing, the Undersigned will not assert, plead or enforce against the Lender
any defense of waiver, release, estoppel, statute of limitations, res judicata,
statute of frauds, fraud, forgery, incapacity, minority, usury, illegality or
unenforceability which may be available to Borrower or any other person liable
in respect of any Indebtedness, or any setoff available against the Lender to
Borrower or any such other person, whether or not on account of a related
transaction. The Undersigned expressly agrees that the Undersigned shall be and
remain liable, to the fullest extent permitted by applicable law, for any
deficiency remaining after foreclosure of any mortgage or security interest
securing Indebtedness, whether or not the liability of Borrower or any other
obligor for such deficiency is discharged pursuant to statute or judicial
decision. The undersigned shall remain obligated, to the fullest extent
permitted by law, to pay such amounts as though Borrower's obligations had not
been discharged.
8. The Undersigned further agree(s) that the Undersigned shall be and
remain obligated to pay Indebtedness even though any other person obligated to
pay Indebtedness, including Borrower, has such obligation discharged in
bankruptcy or otherwise discharged by law. "Indebtedness" shall include
post-bankruptcy petition interest and attorneys' fees and any other amounts
which Borrower is discharged from paying or which do not accrue to Indebtedness
due to Borrower's discharge, and Undersigned shall remain obligated to pay such
amounts as fully as if Borrower's obligations had not been discharged.
9. If any payment applied by the Lender to Indebtedness is thereafter
set aside, recovered, rescinded or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or reorganization of
Borrower or any other obligor), the Indebtedness to which such payment was
applied shall for the purposes of this guaranty be deemed to have continued in
existence, notwithstanding such application, and this guaranty shall be
enforceable as to such Indebtedness as fully as if such application had never
been made.
10. The Undersigned waive(s) any claim, remedy or other right which the
Undersigned may now have or hereafter acquire against Borrower or any other
person obligated to pay Indebtedness arising out of the creation or performance
of the Undersigned's obligation under this guaranty, including, without
limitation, any right of subrogation, contribution, reimbursement,
indemnification, exoneration or any right to participate in any claim or remedy
the Undersigned may have against the Borrower, collateral, or other party
obligated for Borrower's debt, whether or not such claim, remedy, or right
arises in equity, or under contract, statute or common law.
11. The Undersigned waives presentment, demand for payment, notice of
dishonor or nonpayment, and protest of any instrument evidencing Indebtedness.
The Lender shall not be required first to resort for payment of the Indebtedness
to Borrower or other persons or their properties, or first to enforce, realize
upon or exhaust any collateral security for Indebtedness, before enforcing this
guaranty.
12. The liability of the Undersigned under this guaranty is in addition
to and shall be cumulative with all other liabilities of the Undersigned to the
Lender as guarantor or otherwise, without any limitation as to amount, unless
the instrument or agreement evidencing or creating such other liability
specifically provides to the contrary.
13. The Undersigned represents and warrants to the Lender that (i) the
Undersigned is a corporation duly organized and existing in good standing and
has full power and authority to make and deliver this guaranty; (ii) the
execution, delivery and performance of this guaranty by the Undersigned have
been duly authorized by all necessary action of its directors and shareholders
and do not and will not violate the provisions of, or constitute a default
under, any presently applicable law or its articles of incorporation or by-laws
or any agreement presently binding on it; (iii) this guaranty has been duly
executed and delivered by the authorized officers of the Undersigned and
constitutes its lawful, binding and legally enforceable obligation (subject to
the United States Bankruptcy Code and other similar laws generally affecting the
enforcement of creditors' rights); and (iv) the authorization, execution,
delivery and performance of this guaranty do not require notification to,
registration with, or consent or approval by, any federal, state or local
regulatory body or administrative agency.
14. This guaranty shall be effective upon delivery to the Lender,
without further act, condition or acceptance by the Lender, shall be binding
upon the Undersigned and the successors and assigns of the Undersigned and shall
inure to the benefit of the Lender and its participants, successors and assigns.
Any invalidity or unenforceability of any provision or application of this
guaranty shall not affect other lawful provisions and application hereof, and to
this end the provisions of this guaranty are declared to be severable. Except as
allowed by the terms herein, this guaranty may not be waived, modified, amended,
terminated, released or otherwise changed except by a writing signed by the
Undersigned and the Lender. This guaranty shall be governed by the laws of the
State in which it is executed. The Undersigned waives notice of the Lender's
acceptance hereof.
(page 2 of 2)
<PAGE> 22
ATTACHMENT TO GUARANTY BY CORPORATION
DATED MARCH 3,1997
FOR FLORDECO, INC.
ON BEHALF OF FLORDECO, LTD.
ADDITIONAL PROVISIONS (CONT'D)
15. I agree and authorize you to obtain credit information about me from time to
time. I agree to provide you, upon request, any financial statements and tax
returns or information you deem necessary, in a form acceptable by you. I
warrant that the statements and information I provide to you are or will be
accurate, correct and complete.
FLORDECO, INC.
By: /s/ Allan Fox
-----------------------------------------
Allan Fox, President
STATE OF FLORIDA
COUNTY OF LEE
The foregoing instrument was acknowledged before me this 3rd day of
March, 1997, by ALLAN FOX, President of FLORDECO, INC. He is personally known to
me or has produced ___________________ as identification.
/s/ Teresa M. Cypher
----------------------------------
Notary Public
Teresa M. Cypher
----------------------------------
Print Name
My Commission Expires:
CC603069
----------------------------------
Commission Number
TERESA M. CYPHER
Notary Public - State of Florida
My Commission Expires Nov 21, 2000
Commission # CC603069
<PAGE> 23
GUARANTY
FORT MYERS , FL
------------------------- ------------------
(City) (State)
March 3, 1997
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and to induce FIRST INDEPENDENCE BANK OF
FLORIDA, 16740 SAN CARLOS BLVD. S.W., FORT MYERS, FL 33908 (herein, with its
participants, successors and assigns, called "Lender"), at its option, at any
time or from time to time to make loans or extend other accommodations to or
for the account of FLORDECO, LTD. (herein called "Borrower") or to engage in
any other transactions with Borrower, the Undersigned hereby absolutely and
unconditionally guarantees to Lender the full and prompt payment when due,
whether at maturity or earlier by reason of acceleration or otherwise, of the
debts, liabilities and obligations described as follows:
A. If this [ ] is checked, the Undersigned guarantees to Lender
the payment and performance of the debt, liability or
obligation of Borrower to Lender evidenced by or arising out
of the following: ___________________________________________
and any extensions, renewals or replacements thereof
(hereinafter referred to as the "Indebtedness").
B. If this [X] is checked, the Undersigned guarantees to Lender
the payment and performance of each and every debt, liability
and obligation of every type and description which Borrower
may now or at any time hereafter owe to Lender (whether such
debt, liability or obligation now exists or is hereafter
created or incurred, and whether it is or may be direct or
indirect, due or to become due, absolute or contingent,
primary or secondary, liquidated or unliquidated, or joint,
several, or joint and several; all such debts, liabilities and
obligations being hereinafter collectively referred to as the
"Indebtedness"). Without limitation, this guaranty includes
the following described debt(s): REVOLVING LINE OF CREDIT IN
THE AMOUNT OF $500,000.00 DATED 3/03/97.
The term "Indebtedness" as used in this guaranty shall not include any
obligations entered into between Borrower and Lender after the date hereof
(including any extensions, renewals or replacements of such obligations) for
which Borrower meets the Lender's standard of creditworthiness based on
Borrower's own assets and income without the addition of a guaranty, or for
which a guaranty is required but Borrower chooses someone other than the joint
Undersigned to guaranty the obligation.
The Undersigned further acknowledges and agrees with Lender that:
1. No act or thing need occur to establish the liability of the
Undersigned hereunder, and no act or thing, except full payment and discharge of
all indebtedness, shall in any way, exonerate the Undersigned or modify, reduce,
limit or release the liability of the Undersigned hereunder.
2. This is an absolute, unconditional and continuing guaranty of
payment of the Indebtedness and shall continue to be in force and be binding
upon the Undersigned, whether or not all Indebtedness is paid in full, until
this guaranty is revoked by written notice actually received by the Lender, and
such revocation shall not be effective as to Indebtedness existing or committed
for at the time of actual receipt of such notice by the Lender, or as to any
renewals, extensions and refinancings thereof. If there be more than one
Undersigned, such revocation shall be effective only as to the one so revoking.
The death or incompetence of the Undersigned shall not revoke this guaranty,
except upon actual receipt of written notice thereof by Lender and then only as
to the decedent or the incompetent and only prospectively, as to future
transactions, as herein set forth.
3. If the Undersigned shall be dissolved, shall die, or shall be or
become insolvent (however defined) or revoke this guaranty, then the Lender
shall have the right to declare immediately due and payable, and the Undersigned
will forthwith pay to the Lender, the full amount of all Indebtedness, whether
due and payable or unmatured. If the Undersigned voluntarily commences or there
is commenced involuntarily against the Undersigned a case under the United
States Bankruptcy Code, the full amount of all Indebtedness, whether due and
payable or unmatured, shall be immediately due and payable without demand or
notice thereof.
4. The liability of the Undersigned hereunder shall be limited to a
principal amount of $UNLIMITED (if unlimited or if no amount is stated, the
Undersigned shall be liable for all Indebtedness, without any limitation as to
amount), plus accrued interest thereon and all attorneys' fees, collection costs
and enforcement expenses referable thereto. Indebtedness may be created and
continued in any amount, whether or not in excess of such principal amount,
without affecting or impairing the liability of the Undersigned hereunder. The
Lender may apply any sums received by or available to Lender on account of the
Indebtedness from Borrower or any other person (except the Undersigned), from
their properties, out of any collateral security or from any other source to
payment of the excess. Such application of receipts shall not reduce, affect or
impair the liability of the Undersigned hereunder. If the liability of the
Undersigned is limited to a stated amount pursuant to this paragraph 4, any
payment made by the Undersigned under this guaranty shall be effective to reduce
or discharge such liability only if accompanied by a written transmittal
document, received by the Lender, advising the Lender that such payment is made
under this guaranty for such purpose.
5. The Undersigned will pay or reimburse Lender for all costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred by
Lender in connection with the protection, defense or enforcement of this
guaranty in any litigation or bankruptcy or insolvency proceedings.
THIS GUARANTY INCLUDES THE ADDITIONAL PROVISIONS ON PAGE 2, ALL OF WHICH ARE
MADE A PART HEREOF.
This guaranty is [X] unsecured; [ ] secured by a mortgage or security
agreement dated _____________________________;
[ ] secured by ________________________________________________________________.
IN WITNESS WHEREOF, this guaranty has been duly executed by the
Undersigned the day and year first above written.
X /s/ Thomas R. Cronin, Sr.
--------------------------------------------
THOMAS R. CRONIN, SR.
--------------------------------------------
--------------------------------------------
--------------------------------------------
"Undersigned" shall refer to all persons
who sign this guaranty, severally and
jointly.
(page 1 of 2)
<PAGE> 24
ADDITIONAL PROVISIONS
6. Whether or not any existing relationship between the Undersigned and
Borrower has been changed or ended and whether or not this guaranty has been
revoked, Lender may, but shall not be obligated to, enter into transactions
resulting in the creation or continuance of Indebtedness, without any consent or
approval by the Undersigned and without any notice to the Undersigned. The
liability of the Undersigned shall not be affected or impaired by any of the
following acts or things (which Lender is expressly authorized to do, omit or
suffer from time to time, both before and after revocation of this guaranty,
without notice to or approval by the Undersigned): (i) any acceptance of
collateral security, guarantors, accommodation parties or sureties for any or
all Indebtedness; (ii) any one or more extensions or renewals of Indebtedness
(whether or not for longer than the original period) or any modification of the
interest rates, maturities or other contractual terms applicable to any
Indebtedness; (iii) any waiver, adjustment, forbearance, compromise or
indulgence granted to Borrower, any delay or lack of diligence in the
enforcement of Indebtedness, or any failure to institute proceedings, file a
claim, give any required notices or otherwise protect any Indebtedness; (iv) any
full or partial release of, settlement with, or agreement not to sue, Borrower
or any other guarantor or other person liable in respect of any Indebtedness;
(v) any discharge of any evidence of Indebtedness or the acceptance of any
instrument in renewal thereof or substitution therefor; (vi) any failure to
obtain collateral security (including rights of setoff) for Indebtedness, or to
see to the proper or sufficient creation and perfection thereof, or to establish
the priority thereof, or to protect, insure, or enforce any collateral security;
or any release, modification, substitution, discharge, impairment,
deterioration, waste, or loss of any collateral security; (vii) any foreclosure
or enforcement of any collateral security; (viii) any transfer of any
Indebtedness or any evidence thereof; (ix) any order of application of any
payments or credits upon Indebtedness; (x) any election by the Lender under
Section 1111(b)(2) of the United States Bankruptcy Code.
7. The Undersigned waives any and all defenses, claims and discharges
of Borrower, or any other obligor, pertaining to Indebtedness, except the
defense of discharge by payment in full. Without limiting the generality of the
foregoing, the Undersigned will not assert, plead or enforce against Lender any
defense of waiver, release, statute of limitations, res judicata, statute of
frauds, fraud, incapacity, minority, usury, illegality or unenforceability which
may be available to Borrower or any other person liable in respect of any
Indebtedness, or any setoff available against Lender to Borrower or any such
other person, whether or not on account of a related transaction. The
Undersigned expressly agrees that the Undersigned shall be and remain liable, to
the fullest extent permitted by applicable law, for any deficiency remaining
after foreclosure of any mortgage or security interest securing Indebtedness,
whether or not the liability of Borrower or any other obligor for such
deficiency is discharged pursuant to statute or judicial decision. The
undersigned shall remain obligated, to the fullest extent permitted by law, to
pay such amounts as though the Borrower's obligations had not been discharged.
8. The Undersigned further agrees that the Undersigned shall be and
remain obligated to pay Indebtedness even though any other person obligated to
pay Indebtedness, including Borrower, has such obligation discharged in
bankruptcy or otherwise discharged by law. "Indebtedness" shall include
post-bankruptcy petition interest and attorneys' fees and any other amounts
which Borrower is discharged from paying or which do not otherwise accrue to
Indebtedness due to Borrower's discharge, and the Undersigned shall remain
obligated to pay such amounts as though Borrower's obligations had not been
discharged.
9. If any payment applied by Lender to Indebtedness is thereafter set
aside, recovered, rescinded or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or reorganization of
Borrower or any other obligor), the Indebtedness to which such payment was
applied shall for the purposes of this guaranty be deemed to have continued in
existence, notwithstanding such application, and this guaranty shall be
enforceable as to such Indebtedness as fully as if such application had never
been made.
10. The Undersigned waives any claim, remedy or other right which the
Undersigned may now have or hereafter acquire against Borrower or any other
person obligated to pay Indebtedness arising out of the creation or performance
of the Undersigned's obligation under this guaranty, including, without
limitation, any right of subrogation, contribution, reimbursement,
indemnification, exoneration, and any right to participate in any claim or
remedy the Undersigned may have against the Borrower, collateral, or other party
obligated for Borrower's debts, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law.
11. The Undersigned waives presentment, demand for payment, notice of
dishonor or nonpayment, and protest of any instrument evidencing Indebtedness.
Lender shall not be required first to resort for payment of the Indebtedness to
Borrower or other persons or their properties, or first to enforce, realize upon
or exhaust any collateral security for Indebtedness, before enforcing this
guaranty.
12. The liability of the Undersigned under this guaranty is in addition
to and shall be cumulative with all other liabilities of the Undersigned to
Lender as guarantor or otherwise, without any limitation as to amount, unless
the instrument or agreement evidencing or creating such other liability
specifically provides to the contrary.
13. This guaranty shall be enforceable against each person signing this
guaranty, even if only one person signs and regardless of any failure of other
persons to sign this guaranty. If there be more than one signer, all agreements
and promises herein shall be construed to be, and are hereby declared to be,
joint and several in each of every particular and shall be fully binding upon
and enforceable against either, any or all the Undersigned. This guaranty shall
be effective upon delivery to Lender, without further act, condition or
acceptance by Lender, shall be binding upon the Undersigned and the heirs,
representatives, successors and assigns of the Undersigned and shall inure to
the benefit of Lender and its participants, successors and assigns. Any
invalidity or unenforceability of any provision or application of this guaranty
shall not affect other lawful provisions and application hereof, and to this end
the provisions of this guaranty are declared to be severable. Except as
authorized by the terms herein, this guaranty may not be waived, modified,
amended, terminated, released or otherwise changed except by a writing signed by
the Undersigned and Lender. This guaranty shall be governed by the laws of the
State in which it is executed. The Undersigned waives notice of Lender's
acceptance hereof.
(page 2 of 2)
<PAGE> 25
ATTACHMENT TO PERSONAL GUARANTY
OF THOMAS R. CRONIN, SR.
DATED MARCH 3, 1997
ON BEHALF OF FLORDECO, LTD.
ADDITIONAL PROVISIONS (CONT'D)
14. I agree and authorize you to obtain credit information about me
from time to time. I agree to provide you, upon request, any financial
statements and tax returns or information you deem necessary, in a form
acceptable by you. I warrant that the statements and information I provide to
you are or will be accurate, correct and complete.
/s/ Thomas R. Cronin, Sr.
--------------------------------------------
THOMAS R. CRONIN, SR.
STATE OF FLORIDA
COUNTY OF LEE
The foregoing instrument was acknowledged before me this 3rd day of
March, 1997, by THOMAS R. CRONIN, SR., who is personally known to me or who has
produced _______________________ as identification.
/s/ Teresa M. Cypher
----------------------------------
Notary Public
Teresa M. Cypher
----------------------------------
Print Name
My Commission Expires:
CC603069
----------------------------------
Commission Number
<PAGE> 26
CLOSING STATEMENT
BORROWER: FLORDECO, LTD., A FLORIDA LIMITED PARTNERSHIP
LENDER: FIRST INDEPENDENCE BANK OF FLORIDA
AMOUNT OF LOAN: $500,000.00 Revolving Line of Credit
COLLATERAL: Assignment of Promissory Notes
<TABLE>
<CAPTION>
DESCRIPTION AMOUNT PAYABLE TO
----------- ------ ----------
<S> <C> <C> <C>
A. LOAN CLOSING COSTS
Documentary Stamp Tax $ 1,750.00 State of Florida
Loan Fee $ 3,750.00 First Independence Bank
U.C.C. Search $ 30.00 U.C.C. Search Services
Certificate of Good Standing $ 23.75 U.C.C. Search Services
Certificate of Good Standing $ 23.75 U.C.C. Search Services
Certificate of Good Standing $ 23.75 U.C.C. Search Services
Documentation Preparation $ 475.00 Smoot, Adams, Edwards & Green, P.A.
Recording of U.C.C.'s $ 15.00 Clerk of Circuit Court
Recording of U.C.C.'s $ 31.00 Secretary of State
U.C.C. Termination $ 6.00 Clerk of Circuit Court/FIB
A. TOTAL CLOSING COSTS $ 6,128.25
-----------
B. DISBURSEMENTS $493,871.75 Available to Draw as Needed
C. TOTAL DISBURSEMENTS $500,000.00
D. LOAN AMOUNT $500,000.00 Revolving Line of Credit
E. REQUIRED FROM BORROWER $ -0-
</TABLE>
Acknowledged and Accepted this 3rd day of March, 1997.
FLORDECO, LTD., a Florida limited partnership
By: INVESTORS TRUST, INC., a Florida corporation,
its General Partner
By: /s/ Allan Fox
---------------------------
Allan Fox, President
<PAGE> 27
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL LOAN APPLICATION - SUMMARY
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
FLORDECO, LTD., BY INVESTORS FIRST INDEPENDENCE BANK Date 02/29/97
- --------------------------------------------------- OF FLORIDA ----------------------------------------
TRUST, INC., IT'S GEN. PARTNER 16740 SAN CARLOS BLVD. Telephone # (941) 936-8888
- --------------------------------------------------- S.W. ----------------------------------------
P.O. BOX 6966 FORT MYERS, FL 33908 Taxpayer I.D. # 65-0671467
- --------------------------------------------------- ----------------------------------------
FT. MYERS, FL 33911 Nature of Business
- --------------------------------------------------- ----------------------------------------
Applicant's Name and Address Creditor's Name and Address Business Year End Date
- ----------------------------------------------------------------------------------------------------------------------------------
General Information
- ----------------------------------------------------------------------------------------------------------------------------------
Legal Relationship: [ ] Corporation [X] Partnership [ ] Sole Proprietorship [ ] Other
- ----------------------------------------------------------------------------------------------------------------------------------
Authorization Resolution Dated: 2/20/97 [ ] Submitted with Statement [X] On File With Creditor [ ] To Be Provided
- ----------------------------------------------------------------------------------------------------------------------------------
Income Tax Return Filed Through What Date: Are Any Returns Being Contested or Audited: [ ] Yes [X] No
- ----------------------------------------------------------------------------------------------------------------------------------
Name of Accountant or Accounting Firm:
- ----------------------------------------------------------------------------------------------------------------------------------
Name of Persons Authorized to Borrow Money on Behalf of and in the Name of the Applicant: INVESTORS TRUST, INC.
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Loan Request
- ----------------------------------------------------------------------------------------------------------------------------------
Amount Requested $500,000.00 [x] Secured [ ] Unsecured [ ] Initial Request [ ] Additional Advance
- ----------------------------------------------------------------------------------------------------------------------------------
Purpose of Loan PURCHASING REAL ESTATE Terms 3 YEAR REVOLVING LINE OF CREDIT - DECREASING
- ----------------------------------------------------------------------------------------------------------------------------------
FOR RE-SALE YEARLY - INTEREST QUARTERLY
- ----------------------------------------------------------------------------------------------------------------------------------
Financial Summary (see page 2 for explanation)
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] Financial Statement Submitted with this Summary [ ] Current Financial Statement on File with Creditor.
- ----------------------------------------------------------------------------------------------------------------------------------
Assets Liabilities
- ----------------------------------------------------------------------------------------------------------------------------------
Current Assets Current Liabilities
- ----------------------------------------------------------------------------------------------------------------------------------
Account/Trade Receivables Long Term Liabilities
- ----------------------------------------------------------------------------------------------------------------------------------
Inventory - Gross Other Liabilities
- ----------------------------------------------------------------------------------------------------------------------------------
Fixed Assets Total Liabilities
- ----------------------------------------------------------------------------------------------------------------------------------
Other Net Worth (Total Assets minus Total Liabilities)
- ----------------------------------------------------------------------------------------------------------------------------------
Total Assets Total Liabilities and Net Worth
- ----------------------------------------------------------------------------------------------------------------------------------
Profit and Loss Additional Information Requested
- ----------------------------------------------------------------------------------------------------------------------------------
From To
- ----------------------------------------------------------------------------------------------------------------------------------
Net Sales
- ----------------------------------------------------------------------------------------------------------------------------------
Gross Profit
- ----------------------------------------------------------------------------------------------------------------------------------
Net Operating Profit
- ----------------------------------------------------------------------------------------------------------------------------------
Net profit/Loss
- ----------------------------------------------------------------------------------------------------------------------------------
Equal Credit Opportunity Notice
- ----------------------------------------------------------------------------------------------------------------------------------
Were your gross revenues $1,000,000 or less in your previous fiscal year? NOTICE. The Federal Equal Opportunity Act
[X] Yes [ ] prohibits creditors from discriminating against
If you answered "yes" and the Credit denies you application for credit, you credit applications on the basis of race, color,
have the right to a written statement of the specific reasons for the denial. religion, national origin, sex, marital status,
To obtain the statement please contact. age (providing the applicant has the capacity to
enter into a binding contract): because all or
KENNETH J. IGLESIAS a part of the applicant's income derives from
(813) 466-7500 any public assistance program; or because the
FIRST INDEPENDENCE BANK OF FLORIDA applicant has in good faith exercised any right
16740 SAN CARLOS BLVD. S.W. under the Consumer Credit Protection Act, the
FORT MYERS, FL 33908 federal agency that administers compliance with
within 60 days from the date you are notified of Creditor's decision. The Cre- this law concerning this creditor is:
ditor will send you a written statement of reasons for the denial within
30 days of receiving your request for the statement. This notice at right FEDERAL RESERVE BANK OF ATLANTA
describes additional protections extended to you. 104 MARIETTA STREET
ATLANTA, GA 30303
- ----------------------------------------------------------------------------------------------------------------------------------
This information and the information provided on all accompanying financial statements and schedules is provided for the purpose of
obtaining credit for the Applicant(s) or for the purpose of Applicant(s) or for the purpose of Applicant(s) guaranteeing credit for
others. Applicant(s) acknowledge that representations made in this statement will be relied on by Creditor in its decision to
grant such credit. This Statement is true and correct in every detail and accurately represents the financial condition of the
Applicant(s) on the date given below. Creditor is authorized to make all inquiries it deems necessary to verify the accuracy of the
information contained herein and to determine the creditworthiness of the Applicant(s). Applicant(s) will promptly notify Creditor
of any subsequent changes which would affect the accuracy of this Statement. Creditor is further authorized to answer any
questions about Creditor's credit experience with Applicant(s). Applicant(s) are aware that any knowing or willful false statements
regarding the value of the above property for purposes of influencing the actions of Creditor can be a violation of federal law,
18 U.S.C. & 1014, and may result in a fine or imprisonment or both.
By signing below, each applicant declares that he/she has read and understandins the statement above.
FLORDECO, LTD., BY INVESTORS TRUST, INC., IT'S GENERAL PARTNER
By /s/ Allan Fox 3-3-96
-------------------------------------------- By ------------------------------------------------------
Signature ALLAN FOX, PRESIDENT Date Signature, Date
By
-------------------------------------------- By ------------------------------------------------------
Signature ALLAN FOX, PRESIDENT Date Signature, Date
BANKERS SYSTEMS, INC., ST. CLOUD, MN 56301 (1-800-397-2341) FORM CLAS 5/10/91
</TABLE>
(page 1 of 2)
<PAGE> 28
DEFINITIONS
1. CURRENT ASSETS - Cash, marketable securities, accounts receivable -
trade (net), inventory (net) and other current assets.
2. ACCOUNT/TRADE RECEIVABLES - All current accounts and notes and deferred
notes, less reserve for bad debts.
3. INVENTORY-GROSS - Value of finished goods, work in progress and raw
materials.
4. FIXED ASSETS - Net value of all land, buildings, machinery, equipment,
fixtures, furniture, etc.
5. TOTAL ASSETS - All current assets, receivables, inventory, fixed assets
and amounts due from officers and employees, investments,
deferral/prepaid expenses, cash surrender value of life insurance
policies and others.
6. CURRENT LIABILITIES - Bank notes payable, other trade notes payable,
accounts payable-trade, other accounts payable, due to officers and
employees, taxes-income other, accrued expenses, long term debt due
within one year, other current liabilities.
7. LONG TERM LIABILITIES - Notes, bonds, and mortgages and other accounts
coming due in one year or more.
8. TOTAL LIABILITIES - All current, long term and other liabilities.
9. NET SALES - All sales less discounts, charge-backs and allowances.
10. GROSS PROFIT - Net sales less the cost of goods sold.
11. NET OPERATING PROFIT - Gross profit less: expenses, (selling, general
and administrative, interest, depreciation), officer's compensation,
provision for bad debt and other expenses.
12. NET PROFIT OR LOSS - Net operating profit, plus other income, less
federal, state and local taxes.
13. GROSS REVENUES - Value of all sales and services provided prior to
deducting discounts, charge backs and allowances. This amount is
requested to determine Applicant's rights and Creditor's obligations
under the Equal Credit Opportunity Act. The term has no exact
accounting definition and Creditor will rely on value provided by
Applicant.
(page 2 of 2)
<PAGE> 29
CORPORATE AUTHORIZATION RESOLUTION
<TABLE>
<CAPTION>
<S> <C>
FIRST INDEPENDENCE BANK OF FLORIDA By: FLORDECO, INC.
16740 SAN CARLOS BLVD. S.W. --------------------------------------------------
FORT MYERS, FL 33908 (Corporation)
P.O. BOX 6966
--------------------------------------------------
(Address)
FT. MYERS, FL 33911
--------------------------------------------------
(City, State, and Zip Code)
A. I, ___________________________________, certify that I am Secretary (clerk) of the above named corporation organized under the
laws of FLORIDA, Federal Employer I.D. Number 59-1480791, engaged in business under the trade name of FLORDECO, INC., and that
the following is a correct copy of resolutions adopted at a meeting of the Board of Directors of this corporation duly and properly
called and held on _______________________________. These resolutions appear in the minutes of this meeting and have not been
rescinded or modified.
B. Be it resolved that,
(1) The Financial Institution named above is designated as a depository for the funds of this corporation.
(2) This resolution shall continue to have effect until express written notice of its rescission or modification has been
received and recorded by this Financial Institution.
(3) All transactions, if any, with respect to any deposits, withdrawals, rediscounts and borrowings by or on behalf
of this partnership with this Financial Institution prior to the adoption of this resolution are hereby ratified, approved and
confirmed.
(4) Any of the persons named below, so long as they act in a representative capacity as agents of this corporation, are
authorized to make any and all other contracts, agreements, stipulations and orders which they may deem advisable for the effective
exercise of the powers indicated below, from time to time with this Financial Institution, concerning funds deposited in
this Financial Institution, moneys borrowed from this Financial Institution or any other business transacted by and between this
corporation and this Financial Institution subject to any restrictions stated below.
(5) Any and all prior resolutions adopted by the Board of Directors of this corporation and certified to this Financial
Institution as governing the operation of this corporation's account(s), are in full force and effect, unless supplemented or
modified by this authorization.
(6) This corporation agrees to the terms and conditions of any account agreement, property opened by any authorized
representative(s) of this corporation, and authorizes the Financial Institution named above, at any time, to charge this
corporation for all checks, drafts, or other orders, for the payment of money, that are drawn on this Financial Institution,
regardless of by whom or by what means the facsimile signature(s) may have been affixed so long as they resemble the facsimile
signature specimens in section C. (or the facsimile signature specimens that this corporation files with this Financial Institution
from time to time) and contain the required number of signatures for this purpose.
C. If indicated, any person listed below (subject to any expressed restrictions) is authorized to:
Name and Title Signature Facsimile Signature
(if used)
(A) ALLAN FOX, PRESIDENT /s/ Allan Fox
---------------------------------------- --------------------------------------- -----------------------------------
(B) THOMAS R. CRONIN, JR., VICE PRESIDENT /s/ Thomas R. Cronin, Jr.
---------------------------------------- --------------------------------------- -----------------------------------
(C)
---------------------------------------- --------------------------------------- -----------------------------------
(D)
---------------------------------------- --------------------------------------- -----------------------------------
Indicate A, B, C and/or D
A B
_________________________(1) Exercise all of the powers listed in (2) through (6).
_________________________(2) Open any deposit or checking account(s) in the name of this corporation.
_________________________(3) Endorse checks and orders for the payment of money and withdraw funds on deposit with this Financial
Institution.
Number of authorized signatures required for this purpose 1
------------------------.
_________________________(4) Borrow money on behalf and in the name of this corporation, sign, execute and deliver promissory notes
or other evidences of indebtedness.
Number of authorized signatures required for this purpose 1
------------------------.
_________________________(5) Endorse, assign, transfer, mortgage or pledge bills receivable, warehouse receipts, bills of lading,
stocks, bonds, real estate or other property now owned or hereafter owned or acquired by this
corporation as security for sums borrowed, and to discount the same, unconditionally guarantee payment
of all bills received, negotiated or discounted and to waive demand, presentment, protest, notice of
protest and notice of non-payment.
Number of authorized signatures required for this purpose 1
------------------------.
_________________________(6) Enter into written lease for the purpose of renting and maintaining a Safe Deposit Box in this
Financial Institution.
Number of authorized persons required to gain access and to terminate the lease 1
-----------------.
D. I further certify that the Board of Directors of this corporation has, and at the time of adoption of this resolution had, full
power and lawful authority to adopt the foregoing resolutions and to confer the powers granted to the persons named who have full
power and lawful authority to exercise the same.
In Witness Whereof, I have hereunto subscribed my name and affixed the seal of this
- -------------------------------- corporation on
IMPRINT
SEAL ----------------------------------------
HERE
/s/ Allan Fox /s/ Gerald Laboda
------------------------------- -----------------------------------
Attest by One Other Officer Secretary
ALLAN FOX GERALD LABODA
</TABLE>
(page 1 of 1)
<PAGE> 30
PARTNERSHIP RESOLUTION OF AUTHORITY
<TABLE>
<CAPTION>
<S> <C>
FIRST INDEPENDENCE BANK OF FLORIDA By: FLORDECO, LTD.
16740 SAN CARLOS BLVD. S.W. --------------------------------------------------
FORT MYERS, FL 33908 (Trade Name of Partnership)
P.O. BOX 6966
--------------------------------------------------
(Address)
FT. MYERS, FL 33911
--------------------------------------------------
(City, State, and Zip Code)
Date:
------------------------------------------------------- Federal I.D. Number: 65-0671467
----------------------------
The above partnership consists of the following members :
INVESTORS TRUST, INC.-G.P.
- -------------------------------------- --------------------------------------- -------------------------------------------
- -------------------------------------- --------------------------------------- -------------------------------------------
BE IT RESOLVED THAT, the above-named parties constitute all the members of the partnership and by signing below agree that:
(1) The Financial Institution named above is designated as a depository for the funds of this partnership.
(2) This resolution shall continue to have effect until express written notice of its rescission or modification has been
received and recorded by this Financial Institution. Any and all prior resolutions adopted by this partnership and certified to
this Financial Institution as governing the operation of this partnership's account(s), are in full force and effect, unless
supplemented or modified by this authorization.
(3) All transactions, if any, with respect to any deposits, withdrawals, rediscounts and borrowings by or on behalf
of this partnership with this Financial Institution prior to the adoption of this resolution are hereby ratified, approved and
confirmed.
(4) Any of the persons named below, so long as they act in a representative capacity as agents of this partnership, are
authorized to make any and all other contracts, agreements, stipulations and orders which they may deem advisable for the effective
exercise of their powers indicated below, from time to time with this Financial Institution, concerning funds deposited in
this Financial Institution, moneys borrowed from this Financial Institution or any other business transacted by and between this
partnership and this Financial Institution subject to any restrictions stated below.
(5) If any other parties become interested in this partnership as co-partners, the partnership relationship is altered in
any way or if the business should become incorporated, the partners shall notify this Financial Institution promptly.
(6) This partnership agrees to the terms and conditions of any account agreement, property opened by any authorized
representative(s) of this partnership, and authorizes the Financial Institution named above, at any time, to charge this
partnership for all checks, drafts, or other orders for the payment of money that are drawn on this Financial Institution,
regardless of by whom or by what means the facsimile signature(s) may have been affixed so long as they resemble the facsimile
signature specimens shown below, (or the facsimile signature specimens that this partnership filed with this Financial Institution
from time to time) and contain the required number of signatures for this purpose.
If indicated, any person listed below (subject to any expressed restrictions) is authorized to:
Name and Title Signature Facsimile Signature
if used
(A) INVESTORS TRUST, INC., ALLAN FOX, PRES. /s/ Allan Fox
---------------------------------------- --------------------------------------- -----------------------------------
(B) ---------------------------------------- --------------------------------------- -----------------------------------
(C) ---------------------------------------- --------------------------------------- -----------------------------------
(D) ---------------------------------------- --------------------------------------- -----------------------------------
Indicate A, B, C and/or D
A
- -------------------------(1) Exercise all of the powers listed in (2) through (6).
- -------------------------(2) Open any deposit or checking account(s) in the name of this partnership.
- -------------------------(3) Endorse checks and orders for the payment of money and withdraw funds on deposit with this Financial
Institution.
Number of authorized signatures required for this purpose 1
------------------------.
- -------------------------(4) Borrow money on behalf and in the name of this partnership, sign, execute and deliver promissory notes
or other evidences of indebtedness.
Number of authorized signatures required for this purpose 1
------------------------.
- -------------------------(5) Endorse, assign, transfer, mortgage or pledge bills receivable, warehouse receipts, bills of lading,
stocks, bonds, real estate or other property now owned or hereafter owned or acquired by this
partnership as security for sums borrowed, and to discount the same, unconditionally guarantee payment
of all bills received, negotiated or discounted and to waive demand, presentment, protest, notice of
protest and notice of non-payment.
Number of authorized signatures required for this purpose 1
------------------------.
- -------------------------(6) Enter into written lease for the purpose of renting and maintaining a Safe Deposit Box in this
Financial Institution.
Number of authorized persons required to gain access and to terminate the lease 1
-----------------.
Signatures: (Type name of each partner below each signature line.)
x
------------------------------------- X --------------------------------------- X ------------------------------------------
INVESTORS TRUST, INC.-G.P.
x BY: /s/ Allan Fox X
- -------------------------------------- --------------------------------------- X ------------------------------------------
ALLAN FOX, PRESIDENT
(page 1 of 1)
</TABLE>
<PAGE> 31
CORPORATE AUTHORIZATION RESOLUTION
<TABLE>
<CAPTION>
<S> <C>
FIRST INDEPENDENCE BANK OF FLORIDA By: INVESTORS TRUST, INC.
16740 SAN CARLOS BLVD. S.W. --------------------------------------------------
FORT MYERS, FL 33908 (Corporation)
P.O. BOX 6966
--------------------------------------------------
(Address)
FT. MYERS, FL 33911
--------------------------------------------------
(City, State, and Zip Code)
A. I, THOMAS R. CRONIN, SR., certify that I am Secretary (clerk) of the above named corporation organized under the laws of
FLORIDA, Federal Employer I.D. Number: __________________, engaged in business under the trade name of INVESTORS TRUST, INC., and
that the following is a correct copy of resolutions adopted at a meeting of the Board of Directors of this corporation duly and
properly called and held on __________________. These resolutions appear in the minutes of this meeting and have not been rescinded
or modified.
B. BE IT RESOLVED THAT,
(1) The Financial Institution named above is designated as a depository for the funds of this corporation.
(2) This resolution shall continue to have effect until express written notice of its rescission or modification has been
received and recorded by this Financial Institution.
(3) All transactions, if any, with respect to any deposits, withdrawals, rediscounts and borrowing by or on behalf
of this corporation with this Financial Institution prior to the adoption of this resolution are hereby ratified, approved and
confirmed.
(4) Any of the persons named below, so long as they act in a representative capacity as agents of this corporation, are
authorized to make any and all other contracts, agreements, stipulations and orders which they may deem advisable for the effective
exercise of the powers indicated below, from time to time with this Financial Institution, concerning funds deposited in this
Financial Institution, moneys borrowed from this Financial Institution or any other business transacted by and between this
corporation and this Financial Institution subject to any restrictions stated below.
(5) Any and all prior resolutions adopted by the Board of Directions of the corporation and certified to this Financial
Institution as governing the operation of this corporation's account(s), are in full force and effect, unless supplemented or
modified by this authorization.
(6) This corporation agrees to the terms and conditions of any account agreement, property opened by any authorized
representative(s) of this corporation, and authorizes the Financial Institution named above, at any time, charge this
corporation, and authorizes the Financial Institution named above, at any time, to charge this corporation for all checks, drafts,
or other orders, for the payment of money that are drawn on this Financial Institution, regardless of by whom or by what means the
facsimile signature(s) may have been affixed so long as they resemble the facsimile signature specimens in Section C. (or the
facsimile signature specimens that this corporation files with this Financial Institution from time to time) and contain the
required number of signatures for this purpose.
C. If indicated, any person listed below (subject to any expressed restrictions) is authorized to:
Name and Title Signature Facsimile Signature
(A) ALLAN FOX, PRESIDENT /s/ Allan Fox
---------------------------------------- --------------------------------------- -----------------------------------
(B) THOMAS R. CRONIN, SR., SECRETARY/TREAS. /s/ Thomas R. Cronin
---------------------------------------- --------------------------------------- -----------------------------------
(C)
---------------------------------------- --------------------------------------- -----------------------------------
(D)
---------------------------------------- --------------------------------------- -----------------------------------
Indicate A, B, C and/or D
A B
- -------------------------(1) Exercise all of the powers listed in (2) through (6).
- -------------------------(2) Open any deposit or checking account(s) in the name of this corporation.
- -------------------------(3) Endorse checks and orders for the payment of money and withdraw funds on deposit with this Financial
Institution.
Number of authorized signatures required for this purpose 1
------------------------.
- -------------------------(4) Borrow money on behalf and in the name of this corporation, sign, execute and deliver promissory notes
or other evidences of indebtedness.
Number of authorized signatures required for this purpose 1
------------------------.
- -------------------------(5) Endorse, assign, transfer, mortgage or pledge bills receivable, warehouse receipts, bills of lading
stocks, bonds, real estate or other property now owned or hereafter owned or acquired by this
corporation as security for sums borrowed, and to discount the same, unconditionally guarantee payment
of all bills received, negotiated or discounted and to waive demand, presentment, protest, and notice
of protest and notice of non-payment.
Number of authorized signatures required for this purpose 1
-----------------------.
- -------------------------(6) Enter into written lease for the purpose of renting and maintaining a Safe Deposit Box in this
Financial Institution.
Number of authorized persons required to gain access and to ferminate the lease 1
-----------------.
D. I further certify that the Board of Directors of the corporation has, and at the time of adoption of this resolution had, full
power and lawful authority to adopt the foregoing resolutions and to confer the powers granted to the persons named who have full
power and lawful authority to exercise the same.
In Witness Whereof, I have hereunto subscribed my name and affixed the seal of this
corporation on
- --------------------------
IMRPINT --------------------------------------------------------------
SEAL
HERE /s/ Allan Fox /s/ Thomas R. Cronin, Sr.
--------------------------------------- ------------------------------------------
Attest by One Other Officer Secretary
THOMAS R. CRONIN, SR
</TABLE>
(page 1 of 1)
<PAGE> 1
EXHIBIT 10.3
HERITAGE TITLE INSURANCE, LTD.
9400 Gladiolus Drive, Suite 290
Fort Myers, FL 33908
Telephone: (941) 433-0993
Facsimile: (941) 433-4004
CASE#: HTIL-97-2032
Date: February 26, 1997
Grantor: SEYMOUR G. MANDELL
Grantee: FLORDECO LTD., a Florida Limited Partnership
Property:
per legal description attached hereto, Fort Myers, Florida
<TABLE>
<CAPTION>
Credits Charges
--------- ----------
<S> <C> <C>
Exchange Value 60,000.00
Closing Costs:
Settlement Fee 100.00
Abstract Search 100.00
Title Examination 50.00
Title Insurance 345.00
Courier Fees (Fed-Ex) 30.00
Recording Deed 10.50
State Stamps on Deed 420.00
--------- ----------
Sub-Totals 0.00 61,055.50
Balance Due From Grantee at Closing 61,055.50 $ (60,000)
($60,000) Amount netted by exchange of
5 pd units Flordeco Ltd. for property
--------- ----------
Totals 61,055.50 61,055.50
</TABLE>
This Closing Statement is accepted and approved by the undersigned grantee who
authorizes the closing agent to disburse their funds in accordance herewith.
/s/ Allan Fox
-----------------------------------
FLORDECO LTD., a Florida
Limited Partnership
Revised Closing Statement
<PAGE> 2
Schedule A
The East half (E1/2) of the Northeast quarter (NE1/4) of the Southwest quarter
(SW1/4) of the Northeast quarter (NE1/4) of Section 3, Township 45, Range 25,
Lee County, Florida. The same being subject to the reservation of the South 33'
thereof for perpetual road right-of-way purposes.
Also the West half (W1/2) of the Northwest quarter (NW1/4) of the Southeast
quarter (SE1/4) of the Northeast quarter (NE1/4) of Section 3, Township 45,
Range 25, Lee County, Florida. The same being subject to the reservation of the
South 33' thereof for perpetual road right-of-way purposes.
Also the West half (W1/2) of the Northeast quarter (NE1/4) of the Southwest
quarter (SE1/4) of the Northeast quarter (NE1/4) of Section 3, Township 45,
Range 25, Lee County, Florida. The same being subject to the reservation of the
South 33' thereof for perpetual road right-of-way purposes.
<PAGE> 3
HERITAGE TITLE INSURANCE, LTD.
COMPLIANCE AGREEMENT
STATE OF FLORIDA
COUNTY OF Lee
BUYER: FLORDECO LTD., a Florida Limited Partnership
SELLER: SEYMOUR C. MANDELL
PROPERTY ADDRESS: per legal attached
The undersigned and in consideration of the above referenced, agrees if
requested by Closing Agent to fully cooperate and adjust for clerical errors,
any or all closing documents deemed necessary or desirable in the reasonable
discretion of Closing Agent to enable clear title.
The undersigned do hereby so agree and covenant in order to assure that
the documentation executed this date will and be acceptable for the issuance of
a Title Insurance Policy by the Closing Agent.
DATED effective day of February, 1997
/s/ Allan E. Fox
- -------------------------------
ALLAN E. FOX for FLORDECO LTD., a Florida Limited Partnership
- -------------------------------
- -------------------------------
SEYMOUR C. MANDELL
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File No. HTIL-97-2032
<PAGE> 4
BUYERS GAP AFFIDAVIT
STATE OF FLORIDA
COUNTY OF LEE
BEFORE ME, the undersigned authority, personally appeared Allan E. Fox
of Flordeco Ltd, a Florida limited partnership who, after being by me first duly
sworn, deposes and says:
That the Affiant is/are buying this date, the following described property, to
wit:
THE EAST HALF (E1/2) OF THE NORTHEAST QUARTER (NE1/4) OF THE SOUTHWEST QUARTER
(SW1/4) OF THE NORTHEAST QUARTER (NE1/4) OF SECTION 3, TOWNSHIP 45, RANGE 25,
LEE COUNTY, FLORIDA. THE SAME BEING SUBJECT TO THE RESERVATION OF THE SOUTH 33'
THEREOF FOR PERPETUAL ROAD RIGHT-OF-WAY PURPOSES.
ALSO THE WEST HALF (W1/2) OF THE NORTHWEST QUARTER (NW1/4) OF THE SOUTHEAST
QUARTER (SE1/4) OF THE NORTHEAST QUARTER (NE1/4) OF SECTION 3, TOWNSHIP 45,
RANGE 25, LEE COUNTY, FLORIDA. THE SAME BEING SUBJECT TO THE RESERVATION OF THE
SOUTH 33' THEREOF FOR PERPETUAL ROAD RIGHT-OF-WAY PURPOSES.
ALSO THE WEST HALF (W1/2) OF THE NORTHEAST QUARTER (NE1/4) OF THE SOUTHWEST
QUARTER (SE1/4) OF THE NORTHEAST QUARTER (NE1/4) OF SECTION 3, TOWNSHIP 45,
RANGE 25, LEE COUNTY, FLORIDA. THE SAME BEING SUBJECT TO THE RESERVATION OF THE
SOUTH 33' THEREOF FOR PERPETUAL ROAD RIGHT-OF-WAY PURPOSES.
That there are no matters pending against Affiant that could give rise
to a lien that would attach to the property between 1/28/97, Title Insurance
Commitment #CM-1-1205-137 and the date of the recording of the Deed.
That Affiant has not and will not execute any instrument that would adversely
affect the title to the property prior to the recording of the Deed.
FURTHER AFFIANT(S) SAYETH NOT.
/s/ Allan E. Fox
- -------------------------------
ALLAN E. FOX FOR FLORDECO LTD., A FLORIDA LIMITED PARTNERSHIP
- -------------------------------
Social Security Number
- -------------------------------
- -------------------------------
Social Security Number
SWORN TO AND SUBSCRIBED before me, this, day of February, 1997.
- -------------------------------
NOTARY PUBLIC:
PRINTED NAME:
-------------------------------
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<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
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<PP&E> 816,636
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0
0
<COMMON> 0
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<TOTAL-LIABILITY-AND-EQUITY> 1,015,265
<SALES> 0
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<OTHER-EXPENSES> 10,695
<LOSS-PROVISION> 0
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<INCOME-PRETAX> (7,797)
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