SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934.
Date of Report: February 17, 1994
(Date of earliest event reported)
THE DELTONA CORPORATION
--------------------------
DELAWARE 1-4719 59-0997584
- ---------------------------- ------------- ---------------
(State of other jurisdiction (Commission (I.R.S. employer
of incorporation) file number) identification No.)
3250 S. W. THIRD AVENUE
MIAMI, FLORIDA 33129
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(Address of principal (Zip Code)
executive office)
Registrant's telephone number, including area code: (305) 854-1111
<PAGE>
ITEM 5 OTHER EVENTS
On March 10, 1994, the Registrant was advised that Selex International
B.V., a Netherlands corporation ("Selex"), which holds approximately 43.1% of
the Registrant's outstanding Common Stock, filed Amendment No. 2 dated February
17, 1994 to its Schedule 13D (the "Amendment") with the Securities and Exchange
Commission (the "Commission"). In the Amendment, Selex reported that it,
together with Yasawa Holding N.V., a Netherland Antilles corporation ("Yasawa")
which holds approximately 4.4% of the Registrant's outstanding Common Stock, and
their affiliates are uncertain as to whether they will provide any further funds
to the Registrant. The Amendment further stated that Selex, Yasawa and their
affiliates are seeking third parties to provide finance for the Registrant and
that as part of any such transaction, they would be willing to sell or
restructure all or a portion of their loans and Common Stock in the Registrant.
The Registrant has stated in previous filings with the Commission that the
obtainment of additional funds to implement its marketing program and achieve
the objectives of its business plan is essential to enable the Registrant to
maintain operations and continue as a going concern. Since December, 1992, the
Registrant has been dependent on loans and advances from Selex, Yasawa and their
affiliates in order to implement its marketing program and assist in meeting its
working capital requirements. During the last six months of 1993, Selex, Yasawa
and their affiliates loaned the Registrant an aggregate of $4,400,000 pursuant
to a Loan Agreement dated July 14, 1993 and amendments thereto (the "Third Selex
Loan"). The Third Selex Loan is secured by substantially all of the property of
the Registrant. Funds advanced under the Third Selex Loan enabled the
Registrant to commence implementation of the majority of its marketing program.
As indicated in the Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 24, 1993, however, implementation of the marketing program was
delayed until the third quarter of 1993, such that the full benefits of the
program could not be realized in 1993.
In March, 1994, an affiliate of Yasawa reimbursed the Registrant for
$265,000 of expenses previously incurred by the Registrant in operating a
venture between the Registrant and an affiliate of Yasawa. Also, in February
and March, 1994 Selex, Yasawa and their affiliates provided the Registrant with
approximately $697,500 in additional funds. Of these funds, $437,500 was in the
form of a loan from Yasawa and $260,000 resulted from the purchase by an
affiliate of Selex of certain multi-family property at the Registrant's St.
Augustine Shores, Florida community pursuant to an existing option agreement
(the property was purchased at a price of $312,000, with $260,000 being paid to
the Registrant in cash and $52,000 of debt due Selex being assumed by the
affiliate).
The Registrant also stated in its Quarterly Report on Form 10-Q for the
quarter ended September 24, 1993, that it was engaged in discussions with
external financing sources concerning its 1994 financing requirements. For a
variety of reasons, such negotiations have terminated.
Inasmuch as funding is not presently available from external sources and,
as stated in their Amendment, Selex, Yasawa and their affiliates have not
determined whether they will provide any further funds to the Registrant, the
Registrant is facing a severe cash shortfall. As a consequence of its liquidity
position, the Registrant has defaulted on certain obligations, including its
escrow obligations to the State of Florida, Department of Business Regulation,
Division of Florida Land Sales, Condominiums and Mobile Homes (the "Division")
pursuant to the Registrant's 1992 Consent Order with the Division, its
obligation under its lease for its corporate offices and its obligation to make
required interest payments under loans from Selex, Yasawa and their affiliates.
Furthermore, the Registrant has not paid certain real estate taxes which
aggregate more than $1,100,000.
Because of the Registrant's default on its escrow account obligations,
the Division is requiring the Registrant, in accordance with the terms of the
1992 Consent Order, to deposit collections on all contracts and mortgages
receivable in such escrow account until the deficiency has been satisfied.
Since collections on receivables have, in the past, been used to meet the
Registrant's working capital requirements, this recent action has caused a
critical strain on the Registrant's liquidity situation.
The Registrant is also subject to certain pending litigation which may
adversely affect the financial condition of the Registrant, as follows:
On December 8, 1993, the landlord of the Registrant's headquarters
building in Miami, Florida filed a complaint against the Registrant
styled Five_Points_Limited_v._The_Deltona_Corporation, Case No. 93-
22877, in the Circuit Court for Dade County, Florida. In its
complaint, the plaintiff is seeking damages against the Registrant
for an alleged breach of the lease for the office building. The
complaint alleges that the Registrant has defaulted in its
obligation to make payments under the lease and seeks damages in
excess of $272,000 for additional past due rent, plus damages for
acceleration of lease payments in excess of $4,000,000. On February
17, 1994 the Court entered an Order requiring the Registrant to pay
uncontested back rent of approximately $240,000, plus uncontested
rent of approximately $48,000, commencing on March 1, 1994. To
date, the Registrant has not paid any amounts to the Court under
this Order.
On February 28, 1994, the Registrant was served with an action
styled Lee,_et.al._v._The_Deltona_Corporation, Case No. 94-3808,
filed in the Circuit Court for Dade County, Florida. In the
complaint, the plaintiff alleges that the liquidated damages
provision in the Registrant's contracts for the sale of its
properties is unenforceable under Florida law and contests the
method utilized by the Registrant to calculate actual damages in the
event of contract cancellations. As part of its complaint, the
plaintiff is seeking certification as a class action, as well as
unspecified compensatory damages, together with interest, costs and
fees. The lawsuit has only recently been filed. The Registrant
believes it has meritorious defenses to the plaintiff's claims and
intends to vigorously defend this action.
The Registrant is presently in default of all its loans to Selex, Yasawa
and their affiliates due to its failure to make required interest payments. In
its Amendment, Selex, Yasawa and their affiliates have reported that they are
currently reviewing their rights and options under such loans. They are
considering, among other actions, declaring defaults under the loans, seeking to
realize on their security interests in the assets of the Registrant through
mortgage foreclosures and other actions, and restructuring their loans (which
might involve, among other things, accepting certain assets of the Registrant in
exchange for reduction of their loans).
As previously stated, Selex, Yasawa and their affiliates are also seeking
to locate third parties to provide financing for the Registrant. As part of any
such transaction, Selex, Yasawa and their affiliates have indicated that they
are willing to sell or restructure all or a portion of their loans and Common
Stock in the Registrant. They have also indicated that they are willing to sell
their interests in the Registrant at a significant discount. Consummation of
any such transaction may result in a change in control of the Registrant.
There can be no assurance, however, that any such transaction will result or
that any financing will be obtained. Accordingly, the Registrant's Board of
Directors is also considering other appropriate action given the severity of the
Registrant's liquidity position.
<PAGE>
ITEM 7 FINANCIAL STATEMENTS AND EXHIBITS
Exhibit
Number Exhibits Pages
- ---------- -------------------------------------- ---------
4 First, Second, Third, Fourth and Fifth
Amendments to Loan Agreement dated July
14, 1993 between the Registrant and
Selex International B.V.
10 Agreement for Purchase and Sale of Land
in St. John's County, Florida dated March
8, 1994.
99 Press Release dated March 10, 1994.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE DELTONA CORPORATION
(Registrant)
Date: March 14, 1994 BY: _Earle_D._Cortright,_Jr._
Earle D. Cortright, Jr.
President and Chief Financial
Officer
[TEXT]
FIRST AMENDMENT TO LOAN AGREEMENT
This First Amendment to Loan Agreement is made and entered
into this 5th day of August, 1993, by and between THE DELTONA
CORPORATION, a Delaware corporation ("Deltona"), DLIC, INC.,
DELAINCO, INC., DELTONA LAND AND INVESTMENT CORP., DELDADE, INC.,
THREE SEASONS CORPORATION, DELTONA CONSTRUCTION COMPANY, INC.,
INTERCOASTAL PROPERTIES OF ST. AUGUSTINE SHORES, INC., all Florida
corporations (hereinafter, together with Deltona, being
collectively referred to as the "Borrowers"), and SELEX
INTERNATIONAL B.V., a Netherlands corporation (the "Lender").
W I T N E S S E T H:
WHEREAS, the Lender and the Borrowers have previously entered
into a certain Loan Agreement dated July 14, 1993 (the "Original
Agreement"); and
WHEREAS, the Borrowers need additional working capital for
general corporate purposes; and
WHEREAS, the Lender has agreed to lend an additional
$170,000.00 to the Borrowers (the "Loan"); and
WHEREAS, the Borrowers own certain real property, as more
fully described in Schedule I of the Original Agreement (the "Real
Property"); and
WHEREAS, the Borrowers have previously entered into a Mortgage
and Security Agreement dated July 14, 1993, pursuant to which the
Borrowers have granted a mortgage on the Real Property to the
Lender in order to secure the obligations of the Borrowers to the
Lender (the "Mortgage"); and
WHEREAS, the Borrowers own certain personal property as more
fully described on Schedule II of the Original Agreement (the
"Personal Property"); and
WHEREAS, the Borrowers have previously entered into a certain
Security Agreement dated July 14, 1993 (the "Security Agreement"),
pursuant to which the Borrowers have granted a security interest in
the Personal Property to the Lender to secure the obligations of
the Borrowers to the Lender;
NOW, THEREFORE, in consideration of the mutual promises set
forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Loan. Upon the fulfillment of the conditions set forth
in Section 2, the Lender shall loan the amount of $170,000.00 to
the Borrowers.
2. Conditions to Loan. The obligation of the Lender to make
the Loan under this Agreement is subject to the fulfillment of the
following conditions, any of which may be waived by the Lender:
(a) Delivery of Additional Loan Documents. The
Borrowers shall have duly executed and delivered to the Lender, the
following documents (the "Additional Loan Documents"):
(i) A promissory note in the original principal
amount of $170,000.00 in the form of Exhibit
"A" to this Amendment (the "Note");
(ii) A Notice of Future Advance and Mortgage
Modification in the form of Exhibit "B" to
this Amendment (the "First Notice"); and
(iii) A mortgagee's title insurance policy in favor
of the Lender in form and substance reasonably
acceptable to the Lender.
For purposes of this Amendment, the "Loan Documents" shall
refer to the Original Agreement (and the corresponding promissory
note), this Amendment, the Mortgage, the First Notice, the Security
Agreement and each of the other Additional Loan Documents.
(b) Compliance with Representations, Warranties and
Covenants. The representations, warranties and covenants made by
the Borrowers under this Amendment shall be true and correct on and
as of the date of the Loan.
(c) No Default. There shall be no default, or no event
which with notice or lapse of time, or both, would become an event
of default, under the Original Agreement as amended by this
Amendment, the Note, the Mortgage, the Security Agreement, or any
other Loan Document.
(d) Delivery of Other Documents. The Borrowers shall
have delivered, or caused to be delivered to the Lender, such other
documents as may be reasonably requested by the Lender.
(e) Payment of Expenses and Fees. The Borrower shall
pay the Lender: (i) all reasonable out-of-pocket expenses incurred
by the Lender in connection with the Loan, including, but not
limited to, attorneys' fees, intangible taxes, documentary stamps
and recording costs; and (ii) the cost of a title insurance policy
issued in favor of the Lender.
3. Use of Proceeds. The proceeds of the Loan shall be
utilized for working capital purposes of the Borrowers.
4. Representations and Warranties. The Borrowers jointly
and severally represent and warrant to the Lender as follows:
(a) The Borrowers have the power to engage in all of the
transactions contemplated by this Amendment and the Additional Loan
Documents and have full power, authority and legal right to execute
and deliver, and to comply with their obligations under this
Amendment and the Additional Loan Documents, which documents
constitute the legally binding obligations of the Borrowers
enforceable against the Borrowers in accordance with their
respective terms. This Amendment and the Additional Loan Documents
have been duly authorized by all required corporate action of the
Borrowers.
(b) To the best of their knowledge and belief, there is
no suit, action or proceeding pending or threatened against or
affecting the Borrowers, before or by any court, administrative
agency or other governmental authority which brings into question
the validity of the transactions contemplated hereby or would
interfere with the ability of the Borrowers to comply with the
terms hereof.
(c) Deltona is a corporation, duly organized and in good
standing under the laws of the State of Delaware and is fully
qualified and authorized to do business in Florida. Each of the
other Borrowers is a corporation, duly organized and in good
standing under the laws of the State of Florida.
(d) Neither the execution or delivery of this Amendment
or the Additional Loan Documents, nor any other document relating
hereto, will conflict with or result in a breach of any of the
provisions of any applicable law, judgment, order, writ,
injunction, decree, rule or regulation of any court, administrative
agency or other governmental authority, or of any agreement or
other instrument to which the Borrowers are a party or by which any
of them is bound or constitute a default under any thereof, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property of the Borrowers, other than those
created under this Amendment and the Additional Loan Documents in
favor of the Lender.
(e) No consent, approval or other authorization of or by
any governmental authority is required in connection with the
execution or delivery by the Borrowers of this Amendment or the
Additional Loan Documents, or compliance with the provisions hereof
or thereof.
(f) There are no defaults existing on the part of the
Borrowers under any of the Loan Documents.
5. Covenants of Borrowers.
(a) The Borrowers shall do, or cause to be done, all the
things necessary to preserve, maintain and keep in full force and
effect their existence and their rights, licenses and permits and
shall comply with all laws applicable to each of them.
(b) The Borrowers shall at all times keep and maintain
true and correct books and records, and shall keep their books and
records in accordance with generally accepted accounting
principles.
(c) The Borrowers shall promptly pay and discharge: (i)
all taxes, assessments and governmental charges upon or against the
Borrowers or their assets prior to the date on which penalties are
attached thereto, unless such taxes are being diligently contested
in good faith by appropriate proceedings and appropriate reserves
therefor have been established, and (ii) all lawful claims for
labor, materials, supplies, services or anything else which might
or could, if unpaid, become a lien or charge upon the properties or
assets of the Borrowers, unless they are being diligently contested
in good faith, and by appropriate proceedings and appropriate
reserves therefor have been established.
(d) The Borrowers shall jointly and severally indemnify
and save harmless the Lender from and against all loss or damage of
any kind whatsoever and from any suits, claims or damages,
including, without limitation, Lender's reasonable legal fees and
expenses, at trial and appellate levels, on account of any matter
or thing arising out of this Amendment and the Additional Loan
Documents or in connection therewith, or on account of any act or
omission to act by the Borrowers in connection with this Amendment
and the Additional Loan Documents. The Borrowers further agree to
pay any and all taxes (other than taxes on and measured by net
income of Lender) incurred and payable in connection with the
execution and delivery of this Amendment and the Additional Loan
Documents. Such obligation shall survive repayment of the Loan.
(e) The Borrowers shall promptly notify the Lender upon
the commencement of any action, suit, claim or counterclaim, or
proceeding against or investigation of the Borrowers, the Real
Property or the Personal Property (except when such alleged
liability is fully covered by insurance).
(f) The Borrowers shall promptly notify the Lender in
writing of (a) any material assessments by any taxing authorities
for unpaid taxes as soon as the Borrowers have knowledge thereof,
and (b) any alleged default by the Borrowers in the performance of
or any modification of any of the terms and conditions contained in
any agreement, mortgage or instrument to which any of the Borrowers
is a party, or which is binding upon any of the Borrowers and upon
a default by any of the Borrowers the payment of any of their
indebtedness.
(g) The Borrowers shall allow the Lender, or Lender's
designated agent, to enter upon the Borrowers' premises and inspect
the Borrowers' property at all reasonable times, which inspection
shall be at the Borrowers' sole cost and expense.
(h) The Borrowers shall notify the Lender immediately of
any change in the name of any of the Borrowers, the place of
business of the Borrowers, the office where the books and records
of the Borrowers are kept, or any change in the registered agent of
the Borrowers for the purposes of service of process.
6. Waiver of Claims. The Borrowers hereby waive any and all
defenses, offsets and counterclaims with respect to their
obligations under any of the Loan Documents, including, but not
limited to, the Original Agreement, the Mortgage and the Security
Agreement.
7. Modification of Security Agreement. The Lender and the
Borrowers hereby modify the Security Agreement to provide that all
of the obligatons of the Borrowers under this Amendment and each of
the Additional Loan Documents are secured by the Security
Agreement. All other provisions of the Security Agreement are
hereby ratified and confirmed.
8. Miscellaneous.
(a) If the Lender shall waive any provisions of this
Amendment or the other Loan Documents, or shall fail to enforce any
of the conditions or provisions of this Amendment or the other Loan
Documents, such waiver shall not be deemed to be a continuing
waiver, and shall never be construed as such, and Lender shall
thereafter have the right to insist upon the enforcement of such
conditions or provisions. Furthermore, no provision of this
Amendment or the other Loan Documents, shall be amended, waived,
modified, discharged or terminated except by instrument in writing,
signed by the parties hereto.
(b) All notices given hereunder shall be in writing and
shall be addressed as follows:
Lender: Selex International B.V.
Gerrit v.d. Veenstraat 70
1077 EH Amsterdam
The Netherlands
With Copies to: Rosemarie N. Sanderson-Schade
Shutts & Bowen B.V.
Europa Boulevard 59
1083 AD Amsterdam
The Netherlands
Borrowers: c/o The Deltona Corporation
3250 S.W. Third Avenue
Miami, Florida 33129
(c) This Amendment shall be governed by and construed
and enforced in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
Witnesses: BORROWERS:
THE DELTONA CORPORATION
By: _______________________
Its: _______________________
Name:________________________
DLIC, INC.
By: _______________________
Its: _______________________
Name:_______________________
DELAINCO, INC.
By: _______________________
Its: _______________________
Name:_______________________
DELTONA LAND AND INVESTMENT CORP.
By: _______________________
Its: _______________________
Name:_______________________
DELDADE, INC.
By: _______________________
Its: _______________________
Name:_______________________
THREE SEASONS CORPORATION
By: _______________________
Its: _______________________
Name:_______________________
DELTONA CONSTRUCTION COMPANY, INC.
By: _______________________
Its: _______________________
Name:_______________________
INTERCOASTAL PROPERTIES OF
ST. AUGUSTINE SHORES, INC.
By: _______________________
Its: _______________________
Name:_______________________
LENDER:
SELEX INTERNATIONAL, B.V.
By: ______________________
Its: ______________________
Name:______________________
<PAGE>
SECOND AMENDMENT TO LOAN AGREEMENT
This Second Amendment to Loan Agreement is made and entered
into this 19th day of August, 1993, by and between THE DELTONA
CORPORATION, a Delaware corporation ("Deltona"), DLIC, INC.,
DELAINCO, INC., DELTONA LAND AND INVESTMENT CORP., DELDADE,
INC., THREE SEASONS CORPORATION, DELTONA CONSTRUCTION COMPANY,
INC., INTERCOASTAL PROPERTIES OF ST. AUGUSTINE SHORES, INC., all
Florida corporations (hereinafter, together with Deltona, being
collectively referred to as the "Borrowers"), and SELEX
INTERNATIONAL B.V., a Netherlands corporation (the "Lender").
W I T N E S S E T H:
WHEREAS, the Lender and the Borrowers have previously
entered into a certain Loan Agreement dated July 14, 1993 (the
"Original Agreement"), as amended by a First Amendment to Loan
Agreement dated August 5, 1993 (the "First Amendment"); and
WHEREAS, the Borrowers need additional working capital for
general corporate purposes; and
WHEREAS, the Lender has agreed to lend an additional
$1,000,000.00 to the Borrowers (the "Loan"); and
WHEREAS, the Borrowers own certain real property, as more
fully described in Schedule I of the Original Agreement (the
"Real Property"); and
WHEREAS, the Borrowers have previously entered into a
Mortgage and Security Agreement dated July 14, 1993, pursuant to
which the Borrowers have granted a mortgage on the Real Property
to the Lender in order to secure the obligations of the
Borrowers to the Lender (the "Mortgage"), as modified by a
certain Notice of Future Advance and Mortgage Modification dated
August 5, 1993 (the "First Notice"); and
WHEREAS, the Borrowers own certain personal property as
more fully described on Schedule II of the Original Agreement
(the "Personal Property"); and
WHEREAS, the Borrowers have previously entered into a
certain Security Agreement dated July 14, 1993 (the "Security
Agreement"), pursuant to which the Borrowers have granted a
security interest in the Personal Property to the Lender to
secure the obligations of the Borrowers to the Lender;
NOW, THEREFORE, in consideration of the mutual promises set
forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Loan. Upon the fulfillment of the conditions set
forth in Section 2, the Lender shall loan the amount of
$1,000,000.00 to the Borrowers.
2. Conditions to Loan. The obligation of the Lender to
make the Loan under this Agreement is subject to the fulfillment
of the following conditions, any of which may be waived by the
Lender:
(a) Delivery of Additional Loan Documents. The
Borrowers shall have duly executed and delivered to the Lender,
the following documents (the "Additional Loan Documents"):
(i) A promissory note in the original principal
amount of $1,000,000.00 in the form of
Exhibit "A" to this Amendment (the "Note");
(ii) A Second Notice of Future Advance in the
form of Exhibit "B" to this Amendment (the
"Second Notice"); and
(iii) A mortgagee's title insurance policy in
favor of the Lender in form and substance
reasonably acceptable to the Lender.
For purposes of this Amendment, the "Loan Documents" shall
refer to the Original Agreement (and the corresponding
promissory note), the First Amendment (and the corresponding
promissory note), this Amendment, the Mortgage, the First
Notice, the Second Notice, the Security Agreement and each of
the Additional Loan Documents.
(b) Compliance with Representations, Warranties and
Covenants. The representations, warranties and covenants made
by the Borrowers under this Amendment shall be true and correct
on and as of the date of the Loan.
(c) No Default. There shall be no default, or no
event which with notice or lapse of time, or both, would become
an event of default, under the Original Agreement as amended by
the First Amendment, this Amendment, the Note, the Mortgage, the
Security Agreement, or any other Loan Document.
(d) Delivery of Other Documents. The Borrowers shall
have delivered, or caused to be delivered to the Lender, such
other documents as may be reasonably requested by the Lender.
(e) Payment of Expenses and Fees. The Borrower shall
pay the Lender: (i) all reasonable out-of-pocket expenses
incurred by the Lender in connection with the Loan, including,
but not limited to, attorneys' fees, intangible taxes,
documentary stamps and recording costs; and (ii) the cost of a
title insurance policy issued in favor of the Lender.
3. Use of Proceeds. The proceeds of the Loan shall be
utilized for working capital purposes of the Borrowers.
4. Representations and Warranties. The Borrowers jointly
and severally represent and warrant to the Lender as follows:
(a) The Borrowers have the power to engage in all of
the transactions contemplated by this Amendment and the
Additional Loan Documents and have full power, authority and
legal right to execute and deliver, and to comply with their
obligations under this Amendment and the Additional Loan
Documents, which documents constitute the legally binding
obligations of the Borrowers enforceable against the Borrowers
in accordance with their respective terms. This Amendment and
the Additional Loan Documents have been duly authorized by all
required corporate action of the Borrowers.
(b) To the best of their knowledge and belief, there
is no suit, action or proceeding pending or threatened against
or affecting the Borrowers, before or by any court,
administrative agency or other governmental authority which
brings into question the validity of the transactions
contemplated hereby or would interfere with the ability of the
Borrowers to comply with the terms hereof.
(c) Deltona is a corporation, duly organized and in
good standing under the laws of the State of Delaware and is
fully qualified and authorized to do business in Florida. Each
of the other Borrowers is a corporation, duly organized and in
good standing under the laws of the State of Florida.
(d) Neither the execution or delivery of this
Amendment or the Additional Loan Documents, nor any other
document relating hereto, will conflict with or result in a
breach of any of the provisions of any applicable law, judgment,
order, writ, injunction, decree, rule or regulation of any
court, administrative agency or other governmental authority, or
of any agreement or other instrument to which the Borrowers are
a party or by which any of them is bound or constitute a default
under any thereof, or result in the creation or imposition of
any lien, charge or encumbrance upon any property of the
Borrowers, other than those created under this Amendment and the
Additional Loan Documents in favor of the Lender.
(e) No consent, approval or other authorization of
or by any governmental authority is required in connection with
the execution or delivery by the Borrowers of this Amendment or
the Additional Loan Documents, or compliance with the provisions
hereof or thereof.
(f) There are no defaults existing on the part of the
Borrowers under any of the Loan Documents.
5. Covenants of Borrowers.
(a) The Borrowers shall do, or cause to be done, all
the things necessary to preserve, maintain and keep in full
force and effect their existence and their rights, licenses and
permits and shall comply with all laws applicable to each of
them.
(b) The Borrowers shall at all times keep and
maintain true and correct books and records, and shall keep
their books and records in accordance with generally accepted
accounting principles.
(c) The Borrowers shall promptly pay and discharge:
(i) all taxes, assessments and governmental charges upon or
against the Borrowers or their assets prior to the date on which
penalties are attached thereto, unless such taxes are being
diligently contested in good faith by appropriate proceedings
and appropriate reserves therefor have been established, and
(ii) all lawful claims for labor, materials, supplies, services
or anything else which might or could, if unpaid, become a lien
or charge upon the properties or assets of the Borrowers, unless
they are being diligently contested in good faith, and by
appropriate proceedings and appropriate reserves therefor have
been established.
(d) The Borrowers shall jointly and severally
indemnify and save harmless the Lender from and against all loss
or damage of any kind whatsoever and from any suits, claims or
damages, including, without limitation, Lender's reasonable
legal fees and expenses, at trial and appellate levels, on
account of any matter or thing arising out of this Amendment and
the Additional Loan Documents or in connection therewith, or on
account of any act or omission to act by the Borrowers in
connection with this Amendment and the Additional Loan
Documents. The Borrowers further agree to pay any and all taxes
(other than taxes on and measured by net income of Lender)
incurred and payable in connection with the execution and
delivery of this Amendment and the Additional Loan Documents.
Such obligation shall survive repayment of the Loan.
(e) The Borrowers shall promptly notify the Lender
upon the commencement of any action, suit, claim or
counterclaim, or proceeding against or investigation of the
Borrowers, the Real Property or the Personal Property (except
when such alleged liability is fully covered by insurance).
(f) The Borrowers shall promptly notify the Lender
in writing of (a) any material assessments by any taxing
authorities for unpaid taxes as soon as the Borrowers have
knowledge thereof, and (b) any alleged default by the Borrowers
in the performance of or any modification of any of the terms
and conditions contained in any agreement, mortgage or
instrument to which any of the Borrowers is a party, or which is
binding upon any of the Borrowers and upon a default by any of
the Borrowers the payment of any of their indebtedness.
(g) The Borrowers shall allow the Lender, or Lender's
designated agent, to enter upon the Borrowers' premises and
inspect the Borrowers' property at all reasonable times, which
inspection shall be at the Borrowers' sole cost and expense.
(h) The Borrowers shall notify the Lender immediately
of any change in the name of any of the Borrowers, the place of
business of the Borrowers, the office where the books and
records of the Borrowers are kept, or any change in the
registered agent of the Borrowers for the purposes of service of
process.
6. Waiver of Claims. The Borrowers hereby waive any and
all defenses, offsets and counterclaims with respect to their
obligations under any of the Loan Documents, including, but not
limited to, the Original Agreement, the First Amendment, the
Mortgage and the Security Agreement.
7. Modification of Security Agreement. The Lender and
the Borrowers hereby modify the Security Agreement to provide
that all of the obligatons of the Borrowers under this Amendment
and each of the Additional Loan Documents are secured by the
Security Agreement. All other provisions of the Security
Agreement are hereby ratified and confirmed.
8. Miscellaneous.
(a) If the Lender shall waive any provisions of this
Amendment or the other Loan Documents, or shall fail to enforce
any of the conditions or provisions of this Amendment or the
other Loan Documents, such waiver shall not be deemed to be a
continuing waiver, and shall never be construed as such, and
Lender shall thereafter have the right to insist upon the
enforcement of such conditions or provisions. Furthermore, no
provision of this Amendment or the other Loan Documents, shall
be amended, waived, modified, discharged or terminated except by
instrument in writing, signed by the parties hereto.
(b) All notices given hereunder shall be in writing
and shall be addressed as follows:
Lender: Selex International B.V.
Gerrit v.d. Veenstraat 70
1077 EH Amsterdam
The Netherlands
With Copies to: Rosemarie N. Sanderson-Schade
Shutts & Bowen B.V.
Europa Boulevard 59
1083 AD Amsterdam
The Netherlands
Borrowers: c/o The Deltona Corporation
3250 S.W. Third Avenue
Miami, Florida 33129
(c) This Amendment shall be governed by and construed
and enforced in accordance with the laws of the State of
Florida.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above
written.
Witnesses: BORROWERS:
THE DELTONA CORPORATION
By: ________________________
Its: ________________________
Name:_________________________
DLIC, INC.
By: _________________________
Its: __________________________
Name:__________________________
DELAINCO, INC.
By: _________________________
Its: _________________________
Name:_________________________
DELTONA LAND AND INVESTMENT CORP.
By: __________________________
Its: __________________________
Name:__________________________
DELDADE, INC.
By: __________________________
Its: __________________________
Name:_____________________________
THREE SEASONS CORPORATION
By: __________________________
Its: __________________________
Name:_____________________________
DELTONA CONSTRUCTION COMPANY, INC.
By: __________________________
Its: __________________________
Name:_____________________________
INTERCOASTAL PROPERTIES OF
ST. AUGUSTINE SHORES, INC.
By: __________________________
Its:__________________________
Name:_____________________________
LENDER:
SELEX INTERNATIONAL, B.V.
By: _________________________
Its: _________________________
Name:_________________________
<PAGE>
THIRD AMENDMENT TO LOAN AGREEMENT
This Third Amendment to Loan Agreement is made and entered into this 29th
day of September, 1993, by and between THE DELTONA CORPORATION, a Delaware
corporation ("Deltona"), DLIC, INC., DELAINCO, INC., DELTONA LAND AND
INVESTMENT CORP., DELDADE, INC., THREE SEASONS CORPORATION, DELTONA CONSTRUCTION
COMPANY, INTERCOASTAL PROPERTIES OF ST. AUGUSTINE SHORES, INC., all Florida
corporations (hereinafter, together with Deltona, being collectively referred to
as the "Borrowers"), and SELEX INTERNATIONAL B.V.,
W I T N E S S E T H:
WHEREAS, the Lender and the Borrowers have previously entered into a
certain Loan Agreement dated July 14, 1993 (the "Original Agreement"), as
amended by a First Amendment to Loan Agreement dated August 5, 1993 (the "First
Amendment") and a Second Amendment to Loan Agreement dated August 19, 1993
(the "Second Amendment"); and
WHEREAS, the Borrowers need additional working capital for general
corporate purposes; and
WHEREAS, the Lender has agreed to lend an additional $1,510,000.00 to the
Borrowers (the "Loan"); and
WHEREAS, the Borrowers own certain real property, as more fully described
in Schedule I of the Original Agreement (the "Real Property"); and
WHEREAS, the Borrowers have previously entered into a Mortgage and Security
Agreement dated July 14, 1993, pursuant to which the Borrowers have granted a
mortgage on the Real Property to the Lender in order to secure the obligations
of the Borrowers to the Lender (the "Mortgage"), as modified by a certain
Notice of Future Advance and Mortgage Modification dated August 5, 1993
(the "First Notice") and a certain Second Notice of Future Advance dated August
19, 1993 (the "Second Notice"); and
WHEREAS, the Borrowers own certain personal property as more fully
described on Schedule II of the Original Agreement (the "Personal Property");
and
WHEREAS, the Borrowers have previously entered into a certain Security
Agreement dated July 14, 1993 (the "Security Agreement"), pursuant to which the
Borrowers have granted a security interest in the Personal Property to the
Lender to secure the obligationns of the Borrowers to the Lender;
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree
1. Loan. Upon the fulfillment of the conditions set forth in Section 2,
the Lender shall loan the amount of $1,510,000.00 to the Borrowers.
2. Conditions to Loan. The obligation of the Lender to make the Loan
under this Agreement is subject to the fulfillment of the following conditions,
any of which may be waived by the Lender:
(a) Delivery of Additional Loan Documents. The Borrowers shall
have duly executed and delivered to the Lender, the following documents (the
"Additional Loan Documents"):
(i) A promissory note in the original principal amount
of $1,510,000.00 in the form of Exhibit "A" to this Amendment (the "Note");
(ii) A Third Notice of Future Advance in the form of
Exhibit "B" to this Amendment (the "Third Notice"); and
(iii) A mortgagee's title insurance policy in favor of the
Lender in form and substance reasonably acceptable to the Lender.
For purposes of this Amendment, the "Loan Documents" shall refer to
the Original Agreement (and the corresponding
note), the First Amendment (and the corresponding note), the Second Amendment
(and the corresponding note), this
Amendment, the Mortgage, the First Notice, the Second Notice, the Third Notice,
the Security Agreement and each of the other
Additional Loan Documents.
(b) Compliance with Representations, Warranties and Covenants.
The representations, warranties and covenants made by the Borrowers under this
Amendment shall be true and correct on and as of the date of the Loan.
(c) No Default. There shall be no default, or no event which
with notice or lapse of time, or both,
would become an event of default, under the Original Agreement, the First
Amendment, the Second Amendment, this
Amendment, the Note, the Mortgage, the Security Agreement, or any other Loan
Document.
(d) Delivery of Other Documents. The Borrowers shall have
delivered, or caused to be delivered
to the Lender, such other documents as may be reasonably requested by the
Lender.
(e) Payment of Expenses and Fees. The Borrower shall pay the
Lender: (i) all reasonable out-of-pocket expenses incurred by the Lender in
connection with the Loan, including, but not limited to,
intangible taxes, documentary stamps and recording costs; and (ii) the cost of a
title insurance policy issued in favor of the
Lender.
3. Use of Proceeds. The proceeds of the Loan shall be utilized
for working capital purposes of the Borrowers.
4. Representations and Warranties. The Borrowers jointly and
severally represent and warrant to the Lender as follows:
(a) The Borrowers have the power to engage in all of the
transactions contemplated by this
Amendment and the Additional Loan Documents and have full power, authority and
legal right to execute and deliver, and
to comply with their obligations under this Amendment and the Additional Loan
Documents, which documents constitute the
legally binding obligations of the Borrowers enforceable against the Borrowers
in accordance with their respective terms. This
Amendment and the Additional Loan Documents have been duly authorized by all
required corporate action of the Borrowers.
(b) To the best of their knowledge and belief, there is no suit,
action or proceeding pending or
threatened against or affecting the Borrowers, before or by any court,
administrative agency or other governmental authority
which brings into question the validity of the transactions contemplated hereby
or would interfere with the ability of the
Borrowers to comply with the terms hereof.
(c) Deltona is a corporation, duly organized and in good standing
under the laws of the State of
Delaware and is fully qualified and authorized to do business in Florida.
Each of the other Borrowers is a corporation, duly
organized and in good standing under the laws of the State of Florida.
(d) Neither the execution or delivery of this Amendment or the
Additional Loan Documents, nor any
other document relating hereto, will conflict with or result in a breach of any
of the provisions of any applicable law, judgment,
order, writ, injunction, decree, rule or regulation of any court, administrative
agency or other governmental authority, or of any
agreement or other instrument to which the Borrowers are a party or by which any
of them is bound or constitute a default
under any thereof, or result in the creation or imposition of any lien, charge
or encumbrance upon any property of the
Borrowers, other than those created under this Amendment and the Additional Loan
Documents in favor of the Lender.
(e) No consent, approval or other authorization of or by any
governmental authority is required in
connection with the execution or delivery by the Borrowers of this Amendment or
the Additional Loan Documents, or
compliance with the provisions hereof or thereof.
(f) There are no defaults existing on the part of the Borrowers
under any of the Loan Documents.
5. Covenants of Borrowers.
(a) The Borrowers shall do, or cause to be done, all the things
necessary to preserve, maintain and
keep in full force and effect their existence and their rights, licenses and
permits and shall comply with all laws applicable to
each of them.
(b) The Borrowers shall at all times keep and maintain true and
correct books and records, and shall
keep their books and records in accordance with generally accepted accounting
principles.
(c) The Borrowers shall promptly pay and discharge: (i) all
taxes, assessments and governmental
charges upon or against the Borrowers or their assets prior to the date on
which penalties are attached thereto, unless such
taxes are being diligently contested in good faith by appropriate proceedings
and appropriate reserves therefor have been
established, and (ii) all lawful claims for labor, materials, supplies, services
or anything else which might or could, if unpaid,
become a lien or charge upon the properties or assets of the Borrowers, unless
they are being diligently contested in good
faith, and by appropriate proceedings and appropriate reserves therefor have
been established.
(d) The Borrowers shall jointly and severally indemnify and save
harmless the Lender from and
against all loss or damage of any kind whatsoever and from any suits, claims or
damages, including, without limitation,
Lender's reasonable legal fees and expenses, at trial and appellate levels, on
account of any matter or thing arising out of this
Amendment and the Additional Loan Documents or in connection therewith, or on
account of any act or omission to act by
the Borrowers in connection with this Amendment and the Additional Loan
Documents. The Borrowers further agree to pay
any and all taxes (other than taxes on and measured by net income of Lender)
incurred and payable in connection with the
execution and delivery of this Amendment and the Additional Loan Documents.
Such obligation shall survive repayment of
the Loan.
(e) The Borrowers shall promptly notify the Lender upon the
commencement of any action, suit,
claim or counterclaim, or proceeding against or investigation of the Borrowers,
the Real Property or the Personal Property
(except when such alleged liability is fully covered by insurance).
(f) The Borrowers shall promptly notify the Lender in writing of
(a) any material assessments by
any taxing authorities for unpaid taxes as soon as the Borrowers have knowledge
thereof, and (b) any alleged default by the
Borrowers in the performance of or any modification of any of the terms and
conditions contained in any agreement, mortgage
or instrument to which any of the Borrowers is a party, or which is binding upon
any of the Borrowers and upon a default by
any of the Borrowers the payment of any of their indebtedness.
(g) The Borrowers shall allow the Lender, or Lender's designated
agent, to enter upon the Borrowers'
premises and inspect the Borrowers' property at all reasonable times, which
inspection shall be at the Borrowers' sole cost
and expense.
(h) The Borrowers shall notify the Lender immediately of any
change in the name of any of the
Borrowers, the place of business of the Borrowers, the office where the books
and records of the Borrowers are kept, or any
change in the registered agent of the Borrowers for the purposes of service of
process.
6. Waiver of Claims. The Borrowers hereby waive any and all
defenses, offsets and counterclaims with
respect to their obligations under any of the Loan Documents, including, but not
limited to, the Original Agreement, the First
Amendment, the Second Amendment, the Mortgage and the Security Agreement.
7. Modification of Security Agreement. The Lender and the
Borrowers hereby modify the Security Agreement
to provide that all of the obligations of the Borrowers under this Amendment and
each of the Additional Loan Documents are
secured by the Security Agreement. All other provisions of the Security
Agreement are hereby ratified and confirmed.
8. Miscellaneous.
(a) If the Lender shall waive any provisions of this Amendment
or the other Loan Documents, or
shall fail to enforce any of the conditions or provisions of this Amendment or
the other Loan Documents, such waiver shall
not be deemed to be a continuing waiver, and shall never be construed as such,
and Lender shall thereafter have the right
to insist upon the enforcement of such conditions or provisions. Furthermore,
no provision of this Amendment or the other
Loan Documents, shall be amended, waived, modified, discharged or terminated
except by instrument in writing, signed by
the parties hereto.
(b) All notices given hereunder shall be in writing and shall be
addressed as follows:
Lender: Selex International B.V.
Gerrit v.d. Veenstraat 70
1077 EH Amsterdam
The Netherlands
With Copies to: Rosemarie N. Sanderson-Schade
Shutts & Bowen B.V.
Europa Boulevard 59
1083 AD Amsterdam
The Netherlands
Borrowers: c/o The Deltona Corporation
3250 S.W. Third Avenue
Miami, Florida 33129
(c) This Amendment shall be governed by and construed and
enforced in accordance with the laws
of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first
above written.
Witnesses: BORROWERS:
THE DELTONA CORPORATION
By:
Its:
Name:__________________________
DLIC, INC.
By:
Its:
Name:___________________________
DELAINCO, INC.
By:
Its:
Name:___________________________
DELTONA LAND AND INVESTMENT CORP.
By:
Its:
Name:___________________________
DELDADE, INC.
By:
Its:
Name:___________________________
THREE SEASONS CORPORATION
By:
Its:
Name:___________________________
DELTONA CONSTRUCTION COMPANY, INC.
By:
Its:
Name:___________________________
INTERCOASTAL PROPERTIES OF
ST. AUGUSTINE SHORES, INC.
By:
Its:
Name:___________________________
LENDER:
SELEX INTERNATIONAL, B.V.
By:
Its:
Name:
<PAGE>
FOURTH AMENDMENT TO LOAN AGREEMENT
This Fourth Amendment to Loan Agreement is made and entered into this 11th
day of November, 1993, by and
between THE DELTONA CORPORATION, a Delaware corporation ("Deltona"), DLIC, INC.,
DELAINCO, INC., DELTONA LAND
AND INVESTMENT CORP., DELDADE, INC., THREE SEASONS CORPORATION, DELTONA
CONSTRUCTION COMPANY, INC.,
INTERCOASTAL PROPERTIES OF ST. AUGUSTINE SHORES, INC., all Florida corporations
(hereinafter, together with Deltona,
being collectively referred to as the "Borrowers"), and SELEX INTERNATIONAL
B.V., a Netherlands corporation (the "Lender").
W I T N E S S E T H:
WHEREAS, the Lender and the Borrowers have previously entered into a certain
Loan Agreement dated July 14, 1993
(the "Original Agreement"), as amended by a First Amendment to Loan Agreement
dated August 5, 1993 (the "First
Amendment"), a Second Amendment to Loan Agreement dated August 19, 1993 (the
"Second Amendment") and a Third
Amendment to Loan Agreement dated September 29, 1993 (the "Third Amendment");
and
WHEREAS, the Borrowers need additional working capital for general corporate
purposes; and
WHEREAS, the Lender has agreed to lend an additional $790,000.00 to the
Borrowers (the "Loan"); and
WHEREAS, the Borrowers own certain real property, as more fully described in
Schedule I of the Original Agreement
(the "Real Property"); and
WHEREAS, the Borrowers have previously entered into a Mortgage and Security
Agreement dated July 14, 1993,
pursuant to which the Borrowers have granted a mortgage on the Real Property to
the Lender in order to secure the obligations
of the Borrowers to the Lender (the "Mortgage"), as modified by a certain Notice
of Future Advance and Mortgage Modification
dated August 5, 1993 (the "First Notice"), a certain Second Notice of Future
Advance dated August 19, 1993 (the "Second
Notice") and a certain Third Notice of Future Advance dated September 29, 1993
(the "Third Notice"); and
WHEREAS, the Borrowers own certain personal property as more fully described
on Schedule II of the Original
Agreement (the "Personal Property"); and
WHEREAS, the Borrowers have previously entered into a certain Security
Agreement dated July 14, 1993 (the
"Security Agreement"), pursuant to which the Borrowers have granted a security
interest in the Personal Property to the Lender
to secure the obligations of the Borrowers to the Lender;
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Loan. Upon the fulfillment of the conditions set forth in
Section 2, the Lender shall loan the amount of
$790,000.00 to the Borrowers.
2. Conditions to Loan. The obligation of the Lender to make the
Loan under this Agreement is subject to
the fulfillment of the following conditions, any of which may be waived by the
Lender:
(a) Delivery of Additional Loan Documents. The Borrowers
shall have duly executed and delivered
to the Lender, the following documents (the "Additional Loan Documents"):
(i) A promissory note in the original
principal amount of $790,000.00 in the form of
Exhibit "A" to this Amendment (the "Note");
(ii) A Fourth Notice of Future Advance in the
form of Exhibit "B" to this Amendment (the
"Fourth Notice"); and
(iii) A mortgagee's title insurance policy in
favor of the Lender in form and substance
reasonably acceptable to the Lender.
For purposes of this Amendment, the "Loan Documents" shall refer to
the Original Agreement (and the corresponding
note), the First Amendment (and the corresponding note), the Second Amendment
(and the corresponding note), the Third
Notice (and the corresponding note), this Amendment, the Mortgage, the First
Notice, the Second Notice, the Third Notice,
the Security Agreement and each of the other Additional Loan Documents.
(b) Compliance with Representations, Warranties and Covenants.
The representations, warranties
and covenants made by the Borrowers under this Amendment shall be true and
correct on and as of the date of the Loan.
(c) No Default. There shall be no default, or no event which
with notice or lapse of time, or both,
would become an event of default, under the Original Agreement, the First
Amendment, the Second Amendment, the Third
Amendment, this Amendment, the Note, the Mortgage, the Security Agreement, or
any other Loan Document.
(d) Delivery of Other Documents. The Borrowers shall have
delivered, or caused to be delivered
to the Lender, such other documents as may be reasonably requested by the
Lender.
(e) Payment of Expenses and Fees. The Borrower shall pay the
Lender: (i) all reasonable
out-of-pocket expenses incurred by the Lender in connection with the Loan,
including, but not limited to, attorneys' fees,
intangible taxes, documentary stamps and recording costs; and (ii) the cost of a
title insurance policy issued in favor of the
Lender.
3. Use of Proceeds. The proceeds of the Loan shall be utilized
for working capital purposes of the Borrowers.
4. Representations and Warranties. The Borrowers jointly and
severally represent and warrant to the Lender
as follows:
(a) The Borrowers have the power to engage in all of
the transactions contemplated by this
Amendment and the Additional Loan Documents and have full power, authority and
legal right to execute and deliver, and
to comply with their obligations under this Amendment and the Additional Loan
Documents, which documents constitute the
legally binding obligations of the Borrowers enforceable against the Borrowers
in accordance with their respective terms. This
Amendment and the Additional Loan Documents have been duly authorized by all
required corporate action of the Borrowers.
(b) To the best of their knowledge and belief, there
is no suit, action or proceeding pending or
threatened against or affecting the Borrowers, before or by any court,
administrative agency or other governmental authority
which brings into question the validity of the transactions contemplated hereby
or would interfere with the ability of the
Borrowers to comply with the terms hereof.
(c) Deltona is a corporation, duly organized and in
good standing under the laws of the State of
Delaware and is fully qualified and authorized to do business in Florida.
Each of the other Borrowers is a corporation, duly
organized and in good standing under the laws of the State of Florida.
(d) Neither the execution or delivery of this
Amendment or the Additional Loan Documents, nor any
other document relating hereto, will conflict with or result in a breach of any
of the provisions of any applicable law, judgment,
order, writ, injunction, decree, rule or regulation of any court, administrative
agency or other governmental authority, or of any
agreement or other instrument to which the Borrowers are a party or by which any
of them is bound or constitute a default
under any thereof, or result in the creation or imposition of any lien, charge
or encumbrance upon any property of the
Borrowers, other than those created under this Amendment and the Additional Loan
Documents in favor of the Lender.
(e) No consent, approval or other authorization of or
by any governmental authority is required in
connection with the execution or delivery by the Borrowers of this Amendment or
the Additional Loan Documents, or
compliance with the provisions hereof or thereof.
(f) There are no defaults existing on the part of the
Borrowers under any of the Loan Documents.
5. Covenants of Borrowers.
(a) The Borrowers shall do, or cause to be done, all
the things necessary to preserve, maintain and
keep in full force and effect their existence and their rights, licenses and
permits and shall comply with all laws applicable to
each of them.
(b) The Borrowers shall at all times keep and maintain
true and correct books and records, and shall
keep their books and records in accordance with generally accepted accounting
principles.
(c) The Borrowers shall promptly pay and discharge:
(i) all taxes, assessments and governmental
charges upon or against the Borrowers or their assets prior to the date on which
penalties are attached thereto, unless such
taxes are being diligently contested in good faith by appropriate proceedings
and appropriate reserves therefor have been
established, and (ii) all lawful claims for labor, materials, supplies, services
or anything else which might or could, if unpaid,
become a lien or charge upon the properties or assets of the Borrowers, unless
they are being diligently contested in good
faith, and by appropriate proceedings and appropriate reserves therefor have
been established.
(d) The Borrowers shall jointly and severally
indemnify and save harmless the Lender from and
against all loss or damage of any kind whatsoever and from any suits, claims or
damages, including, without limitation,
Lender's reasonable legal fees and expenses, at trial and appellate levels, on
account of any matter or thing arising out of this
Amendment and the Additional Loan Documents or in connection therewith, or on
account of any act or omission to act by
the Borrowers in connection with this Amendment and the Additional Loan
Documents. The Borrowers further agree to pay
any and all taxes (other than taxes on and measured by net income of Lender)
incurred and payable in connection with the
execution and delivery of this Amendment and the Additional Loan Documents.
Such obligation shall survive repayment of
the Loan.
(e) The Borrowers shall promptly notify the Lender
upon the commencement of any action, suit,
claim or counterclaim, or proceeding against or investigation of the Borrowers,
the Real Property or the Personal Property
(except when such alleged liability is fully covered by insurance).
(f) The Borrowers shall promptly notify the Lender in
writing of (a) any material assessments by
any taxing authorities for unpaid taxes as soon as the Borrowers have knowledge
thereof, and (b) any alleged default by the
Borrowers in the performance of or any modification of any of the terms and
conditions contained in any agreement, mortgage
or instrument to which any of the Borrowers is a party, or which is binding upon
any of the Borrowers and upon a default by
any of the Borrowers the payment of any of their indebtedness.
(g) The Borrowers shall allow the Lender, or Lender's
designated agent, to enter upon the Borrowers'
premises and inspect the Borrowers' property at all reasonable times, which
inspection shall be at the Borrowers' sole cost
and expense.
(h) The Borrowers shall notify the Lender immediately
of any change in the name of any of the
Borrowers, the place of business of the Borrowers, the office where the books
and records of the Borrowers are kept, or any
change in the registered agent of the Borrowers for the purposes of service of
process.
6. Waiver of Claims. The Borrowers hereby waive any and all
defenses, offsets and counterclaims with
respect to their obligations under any of the Loan Documents, including, but not
limited to, the Original Agreement, the First
Amendment, the Second Amendment, the Third Amendment, the Mortgage and the
Security Agreement.
7. Modification of Security Agreement. The Lender and the
Borrowers hereby modify the Security Agreement
to provide that all of the obligations of the Borrowers under this Amendment and
each of the Additional Loan Documents are
secured by the Security Agreement. All other provisions of the Security
Agreement are hereby ratified and confirmed.
8. Miscellaneous.
(a) If the Lender shall waive any provisions of this
Amendment or the other Loan Documents, or
shall fail to enforce any of the conditions or provisions of this Amendment or
the other Loan Documents, such waiver shall
not be deemed to be a continuing waiver, and shall never be construed as such,
and Lender shall thereafter have the right
to insist upon the enforcement of such conditions or provisions. Furthermore,
no provision of this Amendment or the other
Loan Documents, shall be amended, waived, modified, discharged or terminated
except by instrument in writing, signed by
the parties hereto.
(b) All notices given hereunder shall be in writing
and shall be addressed as follows:
Lender: Selex International B.V.
Gerrit v.d. Veenstraat 70
1077 EH Amsterdam
The Netherlands
With Copies to: Rosemarie N. Sanderson-Schade
Shutts & Bowen B.V.
Europa Boulevard 59
1083 AD Amsterdam
The Netherlands
Borrowers: c/o The Deltona Corporation
3250 S.W. Third Avenue
Miami, Florida 33129
(c) This Amendment shall be governed by and construed
and enforced in accordance with the laws
of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first
above written.
Witnesses: BORROWERS:
THE DELTONA CORPORATION
By:
Its:
Name:_____________________________
DLIC, INC.
By:
Its:
Name:_____________________________
DELAINCO, INC.
By:
Its:
Name:_____________________________
DELTONA LAND AND INVESTMENT CORP.
By:
Its:
Name:_____________________________
DELDADE, INC.
By:
Its:
Name:_____________________________
THREE SEASONS CORPORATION
By:
Its:
Name:_____________________________
DELTONA CONSTRUCTION COMPANY, INC.
By:
Its:
Name:_____________________________
INTERCOASTAL PROPERTIES OF
ST. AUGUSTINE SHORES, INC.
By:
Its:
Name:_____________________________
LENDER:
SELEX INTERNATIONAL, B.V.
By:
Its:
Name:
<PAGE>
FIFTH AMENDMENT TO LOAN AGREEMENT
This Fifth Amendment to Loan Agreement is made and entered into this
30th day of December 1993, by and
between THE DELTONA CORPORATION, a Delaware corporation ("Deltona"), DLIC, INC.,
DELAINCO, INC., DELTONA LAND
AND INVESTMENT CORP., DELDADE, INC., THREE SEASONS CORPORATION, DELTONA
CONSTRUCTION COMPANY, INC.,
INTERCOASTAL PROPERTIES OF ST. AUGUSTINE SHORES, INC., all Florida corporations
(hereinafter, together with Deltona,
being collectively referred to as the "Borrowers"), and SELEX INTERNATIONAL
B.V., a Netherlands corporation (the "Lender").
W I T N E S S E T H:
WHEREAS, the Lender and the Borrowers have previously entered into a
certain Loan Agreement dated July 14, 1993
(the "Original Agreement"), as amended by a First Amendment to Loan Agreement
dated August 5, 1993 (the "First
Amendment"), a Second Amendment to Loan Agreement dated August 19, 1993 (the
"Second Amendment"), a Third
Amendment to Loan Agreement dated September 29, 1993 (the "Third Amendment") and
a Fourth Amendment to Loan
Agreement dated November 11, 1993 ("Fourth Amendment"); and
WHEREAS, the Borrowers need additional working capital for general
corporate purposes; and
WHEREAS, the Lender has agreed to lend an additional $300,000.00 to
the Borrowers (the "Loan"); and
WHEREAS, the Borrowers own certain real property, as more fully
described in Schedule I of the Original Agreement
(the "Real Property"); and
WHEREAS, the Borrowers have previously entered into a Mortgage and
Security Agreement dated July 14, 1993,
pursuant to which the Borrowers have granted a mortgage on the Real Property to
the Lender in order to secure the obligations
of the Borrowers to the Lender (the "Mortgage"), as modified by a certain Notice
of Future Advance and Mortgage Modification
dated August 5, 1993 (the "First Notice"), a certain Second Notice of Future
Advance dated August 19, 1993 (the "Second
Notice"), a certain Third Notice of Future Advance dated September 29, 1993 (the
"Third Notice"), and a certain Fourth Notice
of Future Advance dated November 11, 1993 (the "Fourth Notice"); and
WHEREAS, the Borrowers own certain personal property as more fully
described on Schedule II of the Original
Agreement (the "Personal Property"); and
WHEREAS, the Borrowers have previously entered into a certain Security
Agreement dated July 14, 1993 (the
"Security Agreement"), pursuant to which the Borrowers have granted a security
interest in the Personal Property to the Lender
to secure the obligations of the Borrowers to the Lender;
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Loan. Upon the fulfillment of the conditions set forth in
Section 2, the Lender shall loan the amount of
$300,000 to the Borrowers.
2. Conditions to Loan. The obligation of the Lender to make
the Loan under this Agreement is subject to
the fulfillment of the following conditions, any of which may be waived by the
Lender:
(a) Delivery of Additional Loan Documents. The
Borrowers shall have duly executed and delivered
to the Lender, the following documents (the "Additional Loan Documents"):
(i) A promissory note in the original
principal amount of $300,000 in the form of Exhibit
"A" to this Amendment (the "Note");
(ii) A Fifth Notice of Future Advance in the
form of Exhibit "B" to this Amendment (the
"Fifth Notice"); and
(iii) A mortgagee's title insurance policy in
favor of the Lender in form and substance
reasonably acceptable to the Lender.
For purposes of this Amendment, the "Loan Documents" shall refer to
the Original Agreement (and the corresponding
note), the First Amendment (and the corresponding note), the Second Amendment
(and the corresponding note), the Third
Notice (and the corresponding note), the Fourth Notice (and the corresponding
note), this Amendment, the Mortgage, the First
Notice, the Second Notice, the Third Notice, the Fourth Notice, the Security
Agreement and each of the other Additional Loan
Documents.
(b) Compliance with Representations, Warranties and
Covenants. The representations, warranties
and covenants made by the Borrowers under this Amendment shall be true and
correct on and as of the date of the Loan.
(c) No Default. There shall be no default, or no
event which with notice or lapse of time, or both,
would become an event of default, under the Original Agreement, the First
Amendment and the Second Amendment, the Third
Amendment, the Fourth Amendment, this Amendment, the Note, the Mortgage,
the Security Agreement, or any other Loan
Document.
(d) Delivery of Other Documents. The Borrowers shall
have delivered, or caused to be delivered
to the Lender, such other documents as may be reasonably requested by the
Lender.
(e) Payment of Expenses and Fees. The Borrower shall
pay the Lender: (i) all reasonable
out-of-pocket expenses incurred by the Lender in connection with the Loan,
including, but not limited to, attorneys' fees,
intangible taxes, documentary stamps and recording costs; and (ii) the cost of a
title insurance policy issued in favor of the
Lender.
3. Use of Proceeds. The proceeds of the Loan shall be utilized
for working capital purposes of the Borrowers.
4. Representations and Warranties. The Borrowers jointly and
severally represent and warrant to the Lender
as follows:
(a) The Borrowers have the power to engage in all of
the transactions contemplated by this
Amendment and the Additional Loan Documents and have full power, authority and
legal right to execute and deliver, and
to comply with their obligations under this Amendment and the Additional Loan
Documents, which documents constitute the
legally binding obligations of the Borrowers enforceable against the Borrowers
in accordance with their respective terms. This
Amendment and the Additional Loan Documents have been duly authorized by all
required corporate action of the Borrowers.
(b) To the best of their knowledge and belief, there
is no suit, action or proceeding pending or
threatened against or affecting the Borrowers, before or by any court,
administrative agency or other governmental authority
which brings into question the validity of the transactions contemplated hereby
or would interfere with the ability of the
Borrowers to comply with the terms hereof.
(c) Deltona is a corporation, duly organized and in
good standing under the laws of the State of
Delaware and is fully qualified and authorized to do business in Florida. Each
of the other Borrowers is a corporation, duly
organized and in good standing under the laws of the State of Florida.
(d) Neither the execution or delivery of this
Amendment or the Additional Loan Documents, nor any
other document relating hereto, will conflict with or result in a breach of any
of the provisions of any applicable law, judgment,
order, writ, injunction, decree, rule or regulation of any court, administrative
agency or other governmental authority, or of any
agreement or other instrument to which the Borrowers are a party or by which any
of them is bound or constitute a default
under any thereof, or result in the creation or imposition of any lien, charge
or encumbrance upon any property of the
Borrowers, other than those created under this Amendment and the Additional Loan
Documents in favor of the Lender.
(e) No consent, approval or other authorization of or
by any governmental authority is required in
connection with the execution or delivery by the Borrowers of this Amendment or
the Additional Loan Documents, or
compliance with the provisions hereof or thereof.
(f) There are no defaults existing on the part of the
Borrowers under any of the Loan Documents.
5. Covenants of Borrowers.
(a) The Borrowers shall do, or cause to be done, all
the things necessary to preserve, maintain and
keep in full force and effect their existence and their rights, licenses and
permits and shall comply with all laws applicable to
each of them.
(b) The Borrowers shall at all times keep and maintain
true and correct books and records, and shall
keep their books and records in accordance with generally accepted accounting
principles.
(c) The Borrowers shall promptly pay and discharge:
(i) all taxes, assessments and governmental
charges upon or against the Borrowers or their assets prior to the date on which
penalties are attached thereto, unless such
taxes are being diligently contested in good faith by appropriate proceedings
and appropriate reserves therefor have been
established, and (ii) all lawful claims for labor, materials, supplies, services
or anything else which might or could, if unpaid,
become a lien or charge upon the properties or assets of the Borrowers, unless
they are being diligently contested in good
faith, and by appropriate proceedings and appropriate reserves therefor have
been established.
(d) The Borrowers shall jointly and severally
indemnify and save harmless the Lender from and
against all loss or damage of any kind whatsoever and from any suits, claims or
damages, including, without limitation,
Lender's reasonable legal fees and expenses, at trial and appellate levels, on
account of any matter or thing arising out of this
Amendment and the Additional Loan Documents or in connection therewith, or on
account of any act or omission to act by
the Borrowers in connection with this Amendment and the Additional Loan
Documents. The Borrowers further agree to pay
any and all taxes (other than taxes on and measured by net income of Lender)
incurred and payable in connection with the
execution and delivery of this Amendment and the Additional Loan Documents.
Such obligation shall survive repayment of
the Loan.
(e) The Borrowers shall promptly notify the Lender
upon the commencement of any action, suit,
claim or counterclaim, or proceeding against or investigation of the Borrowers,
the Real Property or the Personal Property
(except when such alleged liability is fully covered by insurance).
(f) The Borrowers shall promptly notify the Lender in
writing of (a) any material assessments by
any taxing authorities for unpaid taxes as soon as the Borrowers have knowledge
thereof, and (b) any alleged default by the
Borrowers in the performance of or any modification of any of the terms and
conditions contained in any agreement, mortgage
or instrument to which any of the Borrowers is a party, or which is binding upon
any of the Borrowers and upon a default by
any of the Borrowers the payment of any of their indebtedness.
(g) The Borrowers shall allow the Lender, or Lender's
designated agent, to enter upon the Borrowers'
premises and inspect the Borrowers' property at all reasonable times, which
inspection shall be at the Borrowers' sole cost
and expense.
(h) The Borrowers shall notify the Lender immediately
of any change in the name of any of the
Borrowers, the place of business of the Borrowers, the office where the books
and records of the Borrowers are kept, or any
change in the registered agent of the Borrowers for the purposes of service of
process.
6. Waiver of Claims. The Borrowers hereby waive any and all
defenses, offsets and counterclaims with
respect to their obligations under any of the Loan Documents, including, but not
limited to, the Original Agreement, the First
Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the
Mortgage and the Security
Agreement.
7. Modification of Security Agreement. The Lender and the
Borrowers hereby modify the Security Agreement
to provide that all of the obligations of the Borrowers under this Amendment and
each of the Additional Loan Documents are
secured by the Security Agreement. All other provisions of the Security
Agreement are hereby ratified and confirmed.
8. Miscellaneous.
(a) If the Lender shall waive any provisions of this
Amendment or the other Loan Documents, or
shall fail to enforce any of the conditions or provisions of this Amendment or
the other Loan Documents, such waiver shall
not be deemed to be a continuing waiver, and shall never be construed as such,
and Lender shall thereafter have the right
to insist upon the enforcement of such conditions or provisions. Furthermore,
no provision of this Amendment or the other
Loan Documents, shall be amended, waived, modified, discharged or terminated
except by instrument in writing, signed by
the parties hereto.
(b) All notices given hereunder shall be in writing
and shall be addressed as follows:
Lender: Selex International B.V.
Gerrit v.d. Veenstraat 70
1077 EH Amsterdam
The Netherlands
With Copies to: Rosemarie N. Sanderson-Schade
Shutts & Bowen B.V.
Europa Boulevard 59
1083 AD Amsterdam
The Netherlands
Borrowers: c/o The Deltona Corporation
3250 S.W. Third Avenue
Miami, Florida 33129
(c) This Amendment shall be governed by and construed
and enforced in accordance with the laws
of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first
above written.
Witnesses: BORROWERS:
THE DELTONA CORPORATION
By:
Its:
Name:_____________________________
DLIC, INC.
By:
Its:
Name:_____________________________
DELAINCO, INC.
By:
Its:
Name:_____________________________
DELTONA LAND AND INVESTMENT CORP.
By:
Its:
Name:_____________________________
DELDADE, INC.
By:
Its:
Name:_____________________________
THREE SEASONS CORPORATION
By:
Its:
Name:_____________________________
DELTONA CONSTRUCTION COMPANY, INC.
By:
Its:
Name:_____________________________
INTERCOASTAL PROPERTIES OF
ST. AUGUSTINE SHORES, INC.
By:
Its:
Name:_____________________________
LENDER:
SELEX INTERNATIONAL, B.V.
By:
Its:
Name:
<PAGE>
AGREEMENT FOR PURCHASE AND SALE
FOR ST. JOHN'S COUNTY REAL PROPERTY
This Agreement (this "Agreement") is made and entered into as
of the ____ day of March 1994, by and between The Deltona
Corporation, a Delaware corporation ("Deltona"), and its wholly
owned subsidiary, Intercoastal Properties of St. Augustine Shores,
Inc., a Florida corporation ("Intercoastal"), Conquistador
Development Corp., a Florida corporation ("Conquistador"), and its
affiliate, Selex International B.V., a Netherlands corporation
("Selex").
WHEREAS, Conquistador sold certain real property to
Intercoastal pursuant to an agreement of purchase and sale dated
June 15, 1992 (the "Prior Agreement"); and
WHEREAS, the Prior Agreement granted Conquistador an option to
repurchase the property conveyed thereunder pursuant to certain
terms and conditions; and
WHEREAS, Conquistador exercised its option to repurchase a
portion of the property conveyed to Intercoastal under the Prior
Agreement; and
WHEREAS, the parties have agreed to consummate the purchase
pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual
covenants and obligations herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is
acknowledged, the parties agree to the terms and conditions
hereinafter set forth:
1. Description of Property
The property to be conveyed hereunder shall include a
total development package consisting of the following:
(a) The Real Property. That certain parcel of real
property described in Exhibit "A" attached hereto and made a part
hereof and the forty eight (48) unconstructed condominium units and
common elements appurtenant thereto to be constructed thereon (the
"Condominium"), pursuant to that certain Declaration of Condominium
(the "Declaration"), as recorded in Official Records Book 515, Page
274 of the Public Records of St. Johns County, Florida together
with amendments thereto recorded in Official Records Book 515, Page
432; Official Records Book 515, Page 436; Official Records Book
516, Page 17; Official Records Book 522, Page 512; Official Records
Book 527, Page 534; Official Records Book 529, Page 193; Official
Records Book 757, Page 40; Official Records Book 800, Page 1351;
Official Records Book 888, Page 1314; and Certificate of Passage
Amendment, dated March 21, 1991, recorded in Official Records Book
891, Page 1390, as amended in Official Records Book 918, Page 1627;
Official Records Book 935, Page 718 and Official Records Book 936,
Page 1095, all of the Public Records of St. Johns County, Florida
(the "Real Property") together with the following:
(i) One full and complete set of architectural and
engineering plans for construction of typical buildings and units
of the forty-eight (48) condominium units and all common elements
to be built in Phase II of the Condominium including, but not
limited to all landscaping, lighting, parking and signage plans.
(ii) All permits and approvals needed for the
complete build-out of the Real Property.
(iii) Full and complete package of condominium
documents for the Condominium, properly approved and accepted by
all appropriate governmental entities. (The Real Property and the
documents and contract rights described in (i) through (iii) above
shall hereinafter be referred to as the "Property".)
2. Purchase Price and Method of Payment
(a) Purchase Price: The purchase price for the Property
shall be the sum of Three Hundred Twelve Thousand Dollars
($312,000.00) (the "Purchase Price").
(b) Method of Payment: The Purchase Price shall be
payable as follows:
(i) Cash at Closing: At closing, Conquistador
shall pay to Intercoastal the sum of Two Hundred Sixty Thousand
Dollars ($260,000.00), as adjusted by credits or prorations
provided for herein. Payment shall be made in immediately
available funds in Dade County, Florida by wire transfer or
certified check.
(ii) Debt Assumption: At closing, Conquistador
shall assume the obligation of Deltona and Intercoastal to pay to
Selex Fifty Two Thousand Dollars ($52,000.00), which payment
constitutes accrued interest due and owing by Deltona and
Intercoastal to Selex under that certain promissory note dated June
14, 1993, in the original principal amount of $1,000,000.
3. Existing Mortgages:
The Property shall be conveyed subject to the following
mortgages of record:
(a) Mortgage from Intercoastal Properties of St.
Augustine Shores, Inc. to Yasawa Holding, N.V., dated May 10, 1993
and recorded May 26, 1993, in Official Records Book 993, at Page
1520 of the Public Records of St. Johns County, Florida.
(b) Mortgage from The Deltona Corporation and
Intercoastal Properties of St. Augustine Shores, Inc., et al, to
Selex International, B.V., dated July 14, 1993 and recorded July
26, 1993, in Official Records Book 1003, at Page 706, of the Public
Records of St. Johns County, Florida.
4. Closing:
(a) This transaction shall be closed on March 5, 1994,
or such earlier date as may be mutually selected by the parties.
(b) The closing shall take place in accordance with the
provision of Section 627.7841, Florida Statutes, and at closing,
Selex and Conquistador shall pay to Intercoastal the Purchase
Price, provided Intercoastal delivers to Conquistador the following
items:
(i) a Statutory Warranty Deed and other documents
required under sub-section (c) of this section;
(ii) a title insurance policy (or marked up binder)
insuring the interest of Conquistador in the Real Property,
evidencing good and marketable title. The final title policy, with
all standard exceptions deleted, shall be delivered to Conquistador
within two (2) weeks after closing.
(c) At or before closing, Deltona and Intercoastal shall
deliver the following items to Conquistador:
(i) a copy of a certified resolution of the Board
of Directors of Deltona and Intercoastal approving the sale of the
Property and the execution and delivery of all instruments provided
for in this Agreement.
(ii) an incumbency certificate evidencing that the
persons signing on behalf of Deltona and Intercoastal are currently
appointed and serving as officers in the capacities set forth
opposite their respective names.
(iii) Governmental Certificate evidencing that
Deltona and Intercoastal are corporations duly organized, validly
existing and in good standing under the laws of their respective
states of incorporation.
(iv) a certificate evidencing that Intercoastal is
not a non-resident alien and including Intercoastal's federal
identification number and address.
(v) an affidavit attesting to Intercoastal's sole
possession of the Real Property and the absence of any financing
statement, claims or lien or potential lienors other than that
being satisfied from closing proceeds, further attesting that there
have been no improvements to the Real Property for ninety (90) days
immediately preceding the date of closing. If any portion of the
Real Property has been improved by Intercoastal within such time,
Intercoastal shall deliver to Conquistador releases or waivers of
all mechanic's liens, executed by general contractors,
subcontractors, suppliers or materialmen and further reciting that
in fact all bills for work to the Real Property which could serve
as a basis for a mechanic's lien have been or will be paid at or
before closing.
(vi) a statutory warranty deed from Intercoastal
which shall be effective to vest in Conquistador good, marketable
and insurable title to the Real Property, free and clear of all
matters except restrictions, reservations and easements of record
and subject to taxes for the year 1993 and subsequent years.
(vii) assignment from Intercoastal of all
development rights under the Declaration and together with all
rights to be conveyed or assigned pursuant to Subsection 1. (a)
(i), (ii) and (iii) above.
(viii) indemnification from Deltona and Intercoastal
as to representations and warranties provided in Section 5 below.
(ix) certificate from St. Augustine Shores Service
Corporation, that any and all maintenance fees, recreational fees
and/or association assessments are paid in full to a current date.
(x) certificate from Conquistador Condominium
Apartments of St. Augustine Shores Association, that any and all
maintenance fees, recreational fees and/or association assessments
are paid in full to a current date.
(xi) such other documentation as may be reasonably
required by Conquistador to effectuate and evidence the transaction
in accordance with the terms and conditions of this Agreement.
(xii) a closing statement to be mutually prepared
and agreed to by attorneys for the parties, which closing statement
shall be customary in form.
(d) At or before the closing, Conquistador shall deliver
the following items to Deltona and Intercoastal:
(i) the executed copy of the closing statement
described in Subsection (c)(x) of this Section.
(ii) the balance of the Purchase Price including
written acknowledgment of the debt reduction by Selex.
(iii) Assumption Agreement evidencing Conquistador's
assumption of the $52,000 debt of Deltona and Intercoastal to Selex
and release of Deltona and Intercoastal from said $52,000 debt.
(iv) a certified resolution of the Board of
Directors of Conquistador and Selex authorizing the purchase of
Property, and the execution and delivery of all instruments
provided for in this Agreement.
(v) a certificate evidencing that Selex and
Conquistador are corporations duly organized, validly existing and
in good standing under the laws of their respective jurisdictions
of incorporation.
(vi) such other documentation as may be reasonably
required by Deltona and Intercoastal to effectuate and evidence the
transaction in accordance with the terms and conditions of this
Agreement.
5. Representations and Warranties:
Deltona and Intercoastal jointly and severally represent
and warrant to Conquistador and Selex as of the date hereof and as
of the Closing as follows:
(a) Intercoastal is the owner of good and marketable
title in fee simple to the Real Property, subject only to the
Mortgages described in Section 3 of this Agreement, and matters of
record which do not impair or prohibit development or operation of
the Real Property pursuant to the Declaration. No person or entity
has any option to purchase or first refusal rights with respect to
the Real Property or any part thereof.
(b) The Real Property is zoned under a St. Johns County,
Florida, zoning classification which permits the current use of the
Real Property and the development and operation of the Real
Property pursuant to the Declaration [specifically including the
amendments to the Declaration, with the exception of the amendments
recorded in Official Records Book 888, Page 1314, Official Records
Book 891, Page 1390, Official Records Book 918, Page 1627, Official
Records Book 935, Page 718 and Official Records Book 936, Page
1095] such current and future uses comply with any and all
applicable municipal and governmental laws, ordinances, and
regulations covering the Real Property.
(c) The execution, delivery and performance by Deltona
and Intercoastal of this Agreement are not precluded by, and will
not violate any provisions of any existing law, statute, rule or
regulation in Florida, or any judgment, order, decree, or
injunction of any court, governmental department, commission,
board, bureau, agency or instrumentality, and will not result in a
breach of, or default under, any agreement, mortgage, contract,
undertaking or other instrument or document to which either of them
is a party or by which either of them is bound or to which either
of them or any portion of the Real Property is subject.
(d) No special or benefit assessment has been levied or
authorized for levy on the Real Property on account of any public
improvement in the vicinity and no such public improvement has been
commenced or authorized by any governmental authority that could
result in any special or benefit assessment on the Real Property.
(e) No portion of the Real Property is being acquired by
any governmental authority in the exercise of its power to condemn
or to acquire through eminent domain or private purchase in lieu
thereof, nor is the Real Property subject to governmental
regulation so as to give rise to an inverse condemnation action,
nor has Deltona or Intercoastal received any notice that any such
proceedings or actions are threatened, pending, or imminent.
(f) There are no actions, suits, or proceedings pending
or threatened against, by or affecting Deltona or Intercoastal in
any court or before any governmental entity relating to the Real
Property.
(g) There is no occupant of the Real Property, and there
is no person or entity entitled to possession or occupancy of the
Real Property, other than Intercoastal, and there will be no such
possessor/occupant or entitled possessor/occupant as of closing.
(h) With the exception of the Declaration, and
agreements supplement thereto, and the items described in Sections
1(a)(i)(ii) and (iii) of this Agreement, copies of all of which
have been delivered to Conquistador and Selex, there are no
agreements with or in favor of any governmental authority and no
conditions have been imposed by any governmental authority (other
than compliance with laws of general application) in connection
with the development of the Real Property and its compliance with
all laws, statutes, codes, acts, ordinances, orders, judgments,
injunctions, rules, regulations, permits, licenses, authorizations,
directions, and requirements of all governmental authorities.
(i) There are no fees, payments, obligations or
assessments, due or payable by Intercoastal to any person or entity
under the Declaration or that certain Declaration of Restrictions
recorded in Official Records Book 515, Page 415 of the Public
Records of St. Johns County, Florida, as supplemented and amended
(the "Restrictions"). There are no approvals by any person or
entity required under the Declaration or the Restrictions in order
for the parties hereto to enter into and consummate the transaction
described in this Agreement.
(j) The Mortgages referred to in Section 3 of this
Agreement are the only liens or security interests securing the
payment of money encumbering the Real Property or any part thereof.
(k) Deltona and Intercoastal are duly organized, validly
existing, and active and current corporations under the laws of
their respective states of incorporation. The execution and
delivery to Conquistador and Selex of this Agreement, and the
documents contemplated or required by this Agreement, or necessary
to effect the intent of this Agreement, will not violate and are
not prohibited by the articles of incorporation, bylaws, or other
similar documents of Deltona or Intercoastal.
(l) The Real Property is, and will be as of closing,
free from all hazardous or toxic substances, materials, or wastes,
including but not limited to those substances, materials, and
wastes listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR 172.101) and those considered to
be hazardous by the Environmental Protection Agency (as listed in
40 CFR 302), and amendments thereto, or such other substances,
materials, or wastes that are or become regulated under any
applicable local, state, or federal law.
Intercoastal and Deltona shall indemnify, defend, and
save Conquistador and Selex harmless from and against all
liabilities, damages, costs, and claims arising from the breach,
falsity, or inaccuracy of the representations and warranties of
this paragraph. The representations, warranties and indemnity of
this Section shall survive closing.
Each of the representations and warranties of Deltona and
Intercoastal is a material inducement for Conquistador and Selex to
enter into this Agreement, and each goes to the essence of this
Agreement.
6. Conditions to Closing:
Conquistador's obligation to close shall be subject to
the fulfillment by Deltona and Intercoastal of each of their
obligations under this Agreement and the accuracy of all of their
representations and warranties.
7. Recording Expenses:
Conquistador shall pay the documentary stamp taxes to be
paid on the deed of conveyance for the Real Property. Conquistador
shall pay the cost of the title insurance premium, at the
promulgated rate.
8. Condition of Property:
Except as otherwise specifically set forth in this
Agreement, Conquistador acknowledges that no representations or
warranties, whether express or implied, have been made by
Intercoastal to Conquistador as to the condition of the Property
for any purposes, and Conquistador further acknowledges that it has
made an independent investigation of the Property and determined
that the Property is sufficient for its intended uses and purposes.
Except as provided herein, Conquistador will accept the transfer
and conveyance of the Property by Intercoastal without any warranty
or representation concerning the quality, and patent and latent
conditions thereof.
9. Parties in Interest:
All the terms and provisions of this Agreement shall be
binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and assigns of the
parties.
10. Notices:
If any party desires to give notice or make tender to the
another party, such notice and such tender shall be in writing and
shall be deemed given when it shall have been deposited in the
United States certified mail, return receipt requested, addressed
to the party for whom intended, as follows:
For Deltona or
Intercoastal: Earle D. Cortright, Jr.
3250 S.W. Third Avenue
Miami, Florida 33129
For Conquistador c/o Selex International, B.V.
or Selex : Nusterweg
P.O. Box 80
6130 AB Sittard
Holland
Nothing herein contained shall be construed as preventing the
parties hereto, respectively, from changing the place to which
notice shall be addressed, but no such notice of change shall be
valid unless it is given in accordance with the terms of this
Section.
11. No Modification:
No term or provision of this Agreement may be changed or
waived, discharged or terminated orally, but only an instrument in
writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
12. Interpretation:
This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Florida.
13. Insertion of Corrections or Modifications:
Typewritten or handwritten provisions inserted in this
Agreement or in the exhibits hereto (and initialed by the parties)
shall control all printed provisions in conflict therewith.
14. Time:
Time is of the essence in this Agreement.
15. Counterparts:
This Agreement may be executed in one or more
counterparts each of which shall be deemed an original but all of
which shall constitute one and the same Agreement.
16. Agreement not to be Recorded:
This Agreement shall not be recorded in any public
records by either party hereto. If this Agreement is recorded, it
shall upon recordation, become null and void.
17. Survival:
The respective warranties, representations, covenants,
agreements, obligations, and undertakings of each party hereunder
shall be construed as dependent upon and given in consideration of
those of the other party, and shall survive the closing and the
delivery of the deed.
IN WITNESS WHEREOF, the parties have caused these presents to
be executed, all of which has been done on the time and date shown
below for each party.
WITNESSES: THE DELTONA CORPORATION, a Delaware
corporation
________________
By: _____________________________
________________ Earle D. Cortright, Jr.
President
Date: ____________________________
INTERCOASTAL PROPERTIES OF ST.
AUGUSTINE SHORES, INC., a Florida
corporation
________________
By: ______________________________
________________ Earle D. Cortright, Jr.
President
Date: ____________________________
SELEX INTERNATIONAL B.V., is a
Netherlands corporation
_________________ By: ______________________________
_________________ Its: _____________________________
Name: ____________________________
Date: ____________________________
CONQUISTADOR DEVELOPMENT CORP., a
Florida corporation
________________ By: ______________________________
Its: _____________________________
________________
Name: ____________________________
Date:_____________________________
March 10, 1994
FOR IMMEDIATE RELEASE
For further information
contact: Michelle R. Garbis
DELTONA FACES CONTINUING CASH SHORTFALLS --
FUNDING NOT AVAILABLE FROM CONTROL GROUP OR ALTERNATIVE SOURCES
MIAMI, FLORIDA -- The Deltona Corporation announced today that it is facing a
severe shortfall in working capital due to its failure to obtain additional
financing. The Company further announced that Selex International B.V., which
holds approximately 43.1% of Deltona's outstanding Common Stock, has stated in
a filing made with the Securities and Exchange Commission that it, as well as
Yasawa Holding N.V. (which holds approximately 4.4% of Deltona's Common Stock)
and their affiliates are uncertain as to whether they will provide any further
funds to Deltona. In their filing, Selex and its affiliates stated that they
are seeking third parties to provide financing for the Company and that as part
of any such transaction, they would be willing to sell or restructure all or a
portion of their loans and equity interest in the Company.
Deltona, the developer of nine planned communities in Florida, has stated on
numerous occasions that the obtainment of additional funds to implement its
marketing program and achieve the objectives of its business plan is essential
to enable the Company to continue as a going concern. The business plan was
designed to significantly increase Deltona's sales through a major marketing
effort so that future working capital could be obtained by selling or otherwise
financing newly generated contracts and mortgages receivable. Selex provided
$4,400,000 in loans to the Company during the last half of 1993 to commence
implementation of the marketing program and assist Deltona in meeting its
working capital requirements. Selex and its affiliates also provided Deltona
with $1,000,000 in additional funds in February and March, 1994 in the form of a
loan, purchase of property and reimbursement of expenses.
Deltona stated in its quarterly report on Form 10-Q for the quarter ended
September 24, 1993, that the Company was engaged in discussions with external
financing sources concerning its 1994 financing requirements. For a variety of
reasons, such negotiations have terminated.
As a consequence of Deltona's working capital problems, Deltona is in default of
several major obligations, including its obligation to the Division of Florida
Land Sales under its existing escrow agreement, its obligation under its lease
for its corporate offices and its obligation to make required interest payments
under loans from Selex and its affiliates. Furthermore, the Company has not
paid certain real estate taxes which total more than $1,100,000.
Due to the Company's default on its escrow obligations, the Division is
requiring the Company, in accordance with the existing Consent Order between the
Company and the Division, to deposit in escrow all funds received from contracts
and mortgages receivable. Since collections on receivables have, in the past,
been used to help meet Deltona's working capital requirements, this recent
action has caused a significant strain on the Company's liquidity position.
Deltona is also subject to certain pending litigation which may adversely affect
the financial condition of the Company, as follows:
On December 8, 1993, the landlord of the Company's headquarters
building in Miami, Florida filed a complaint against the Company in
the Circuit Court for Dade County, Florida (Case No. 93-22877). In
its complaint, the plaintiff is seeking damages against the Company
for an alleged breach of the lease for the office building. The
complaint alleges that Deltona has defaulted in its obligation to
make payments under the lease and seeks damages in excess of
$272,000 for additional past due rent, plus damages for acceleration
of lease payments in excess of $4,000,000. The Court has entered an
Order requiring the Company to pay uncontested back rent of
approximately $240,000, plus uncontested rent of approximately
$48,000, commencing on March 1, 1994. To date, the Company has not
paid any amounts to the Court under this Order.
On February 28, 1994, the Company was served with an action styled
Lee,_et.al._v._The_Deltona_Corporation, Case No. 94-3808, filed in
the Circuit Court for Dade County, Florida. In the complaint, the
plaintiff alleges that the liquidated damages provision in Deltona's
contracts for the sale of its properties is unenforceable under
Florida law and contests the method utilized by the Company to
calculate actual damages in the event of contract cancellations. As
part of its complaint, the plaintiff is seeking certification as a
class action, as well as unspecified compensatory damages, together
with interest, costs and fees. The lawsuit has only recently been
filed. The Company believes it has meritorious defenses to the
plaintiff's claims and intends to vigorously defend this action.
Deltona is presently in default of all its loans to Selex and its affiliates due
to its failure to make required interest payments. Selex and its affiliates
have reported to the SEC that they are currently reviewing their rights and
options under such loans. They are considering, among other actions, declaring
defaults under the loans, seeking to realize on their security interests in the
assets of Deltona through mortgage foreclosures and other actions, and
restructuring their loans (which might involve, among other things, accepting
certain assets of Deltona in exchange for reduction of their loans).
Selex and its affiliates are also seeking to locate third parties to provide
financing for the Company. As part of any such transaction, Selex and its
affiliates have indicated that they are willing to sell or restructure all or a
portion of their loans and equity interest in the Company. They have also
indicated that they are willing to sell their interests in the Company at a
significant discount. Consummation of any such transaction might result in a
change in control of Deltona.
In light of the foregoing factors, the Board of Directors is reviewing the
alternatives available to the Company to address its liquidity and working
capital problems.
