UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)
The Deltona Corporation
(Name of Issuer)
Common Stock, $1.00 par value
(Title of Class of Securities)
247883 10 1
(CUSIP Number)
Alfred G. Smith, Esq.
c/o Shutts & Bowen
1600 Miami Center
201 S. Biscayne Blvd.
Miami, Florida 33131
(305) 358-6300
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
February 17, 1994
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of Schedule 13D and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box.
[ ]
Check the following box if a fee is being paid with the statement [ ]. (A
fee is not required only if the reporting person has a previous statement
on file reporting beneficial ownership of more than five percent of the
class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less
of class. See Rule 13d-7).
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
<PAGE>
CUSIP NO. 247883-10-1
1. Name of Reporting Person and S.S. or I.R.S. Identification Number of
Above Person: Selex International, B.V. (1)
2. Check the Appropriate Box if a Member of a Group. (a) [ ] (b) [X]
3. SEC Use Only:
4. Source of Funds: WC
5. Check box if Disclosure of Legal Proceedings is required pursuant to
Items 2(d) or 2(e). [ ]
6. Citizenship or Place of Organization: The Netherlands
Number of Shares 7. Sole Voting Power: 0
Beneficially Owned 8. Shared Voting Power: 2,820,066
by Each Reporting 9. Sole Dispositive Power: 0
Person With: 10. Shared Dispositive Power: 2,820,066
11. Aggregate Amount Beneficially Owned by Each Reporting Person: 2,820,066
12. Check Box if the Aggregate Amount in Row 11 Excludes Certain Shares. [ ]
13. Percent of Class Represented by Amount in Row 11: 43.1% (2)
14. Type of Reporting Person: CO
(1) On December 28, 1992, Selex Sittard B.V. changed its name to Selex
International B.V.
(2) As of March 8, 1994, the issuer had 6,550,604 outstanding shares of
Common Stock.
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CUSIP NO. 247883-10-1
1. Name of Reporting Person and S.S. or I.R.S. Identification Number of
Above Person: Wilbury International N.V.
2. Check the Appropriate Box if a Member of a Group. (a) [ ] (b) [X]
3. SEC Use Only:
4. Source of Funds: WC
5. Check box if Disclosure of Legal Proceedings is required pursuant to
Items 2(d) or 2(e). [ ]
6. Citizenship or Place of Organization: Netherlands Antilles
Number of Shares 7. Sole Voting Power: 0
Beneficially Owned 8. Shared Voting Power: 2,820,066
by Each Reporting 9. Sole Dispositive Power: 0
Person With: 10. Shared Dispositive Power: 2,820,066
11. Aggregate Amount Beneficially Owned by Each Reporting Person: 2,820,066
12. Check Box if the Aggregate Amount in Row 11 Excludes Certain Shares.
[ ]
13. Percent of Class Represented by Amount in Row 11: 43.1%(1)
14. Type of Reporting Person: HC
(1) As of March 8, 1994, the issuer had 6,550,604 outstanding shares of
Common Stock.
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<PAGE>
CUSIP NO. 247883-10-1
1. Name of Reporting Person and S.S. or I.R.S. Identification Number of
Above Person: Antony Gram
2. Check the Appropriate Box if a Member of a Group. (a) [ ] (b) [X]
3. SEC Use Only:
4. Source of Funds: PF
5. Check box if Disclosure of Legal Proceedings is required pursuant to
Items 2(d) or 2(e). [ ]
6. Citizenship or Place of Organization: The Netherlands
Number of Shares 7. Sole Voting Power: 0
Beneficially Owned 8. Shared Voting Power: 3,109,703
by Each Reporting 9. Sole Dispositive Power: 0
Person With: 10. Shared Dispositive Power: 3,109,703
11. Aggregate Amount Beneficially Owned by Each Reporting Person: 3,109,703
12. Check Box if the Aggregate Amount in Row 11 Excludes Certain Shares. [ ]
13. Percent of Class Represented by Amount in Row 11: 47.5%(1)
14. Type of Reporting Person: IN
(1) As of March 8, 1994, the issuer had 6,550,604 outstanding shares of
Common Stock.
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<PAGE>
Item 1. SECURITY AND ISSUER.
This statement relates to the common stock, $1.00 par value
(the "Common Stock"), of The Deltona Corporation ("Deltona"). The address
of Deltona's principal executive offices is 3250 S.W. 3rd Avenue, Miami,
Florida 33129.
Item 2. IDENTITY AND BACKGROUND.
(a), (b) and (c) This statement is being filed jointly by
Selex International B.V. ("Selex"), Wilbury International N.V. ("Wilbury"),
and Antony Gram (collectively, the "Reporting Persons") pursuant to Rule
13d-1(f)(1).
Selex is a Netherlands corporation and a wholly-owned
subsidiary of Wilbury. Selex's principal business is to invest in Deltona.
Its principal business and office address is Gerrit v.d. Veenstraat 70,
Amsterdam, The Netherlands. Selex is the direct beneficial owner of
2,820,066 shares of the Common Stock which is the subject of this Schedule
13D. Selex was formerly known as "Selex Sittard B.V."
Wilbury is a Netherlands Antilles corporation. Its principal
business is to act as a holding company for Selex. Its principal business
and office address is International Trade Center Building, Piscaderabay,
Curacao, Netherlands Antilles. Wilbury is beneficially owned by five
shareholders (Messrs. Antony Gram, Marcellus H.B. Muyres, Cornelis L.J.J.
Zwaans, Cornelis van de Peppel and Leonardus G.M. Nipshagen). Mr. Gram
holds a fifty percent (50%) equity interest in Wilbury.
Mr. Antony Gram is the Managing Director of Gramyco BVBA.,
with its principal office at Tweemont Straat 202, 2100, Antwerp, Belgium.
Gramyco's principal business is the purchase, sale and leasing of
scaffolding. Mr. Gram is a citizen of The Netherlands.
Yasawa Holding, N.V. ("Yasawa") is a Netherlands Antilles
corporation. Yasawa's principal business is to invest in Deltona. Its
principal business and office address is 1-5 Plaza JoJo Correa, Curacao,
Netherland Antilles. Yasawa is the direct beneficial owner of 289,637
shares of the Common Stock which is the subject of this Schedule 13D.
Yasawa is beneficially owned by Mr. Gram.
Set forth below is a list of the directors and executive
officers of Selex, Wilbury and Yasawa, respectively, containing the
following information with respect to each such person: (i) name and
title; (ii) business address; (iii) present principal occupation or
employment and the name of any corporation or other organization in which
such employment is conducted, as well as such corporation or
organizations's address if different than such person's business address;
and (iv) citizenship.
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I. SELEX INTERNATIONAL, B.V. (f/k/a Selex Sittard, B.V.)
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION/
NAME OF ORGANIZATION
NAME AND TITLE BUSINESS ADDRESS (AND ADDRESS, IF DIFFERENT) CITIZENSHIP
<S> <C> <C> <C>
Cornelis L.J.J. Zwaans Keesinglaan 13 Managing Director Netherlands
Managing Director Antwerp, Belgium Zwaans, B.V. B.A.
Raymond P.A. Wynans Gerrit Van Den Accountant Netherlands
Managing Director Veenstraat 70 IBG Netherland B.V.
Amsterdam,
The Netherlands
Cornelis Oppers Avelingen Managing Director Netherlands
Managing Director West 26 Zwaans, B.V.
Gorinchem
The Netherlands
</TABLE>
II. WILBURY INTERNATIONAL, N.V.
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION/
NAME OF ORGANIZATION
NAME AND TITLE BUSINESS ADDRESS (AND ADDRESS, IF DIFFERENT) CITIZENSHIP
<S> <C> <C> <C>
Cornelis L.J.J. Zwaans Keesinglaan 13 Managing Director Netherlands
Director Antwerp, Belgium Zwaans, N.V.
Antony Gram, Director Tweemont Straat Managing Director Netherlands
202, 2100 Gramyco BVBA
Antwerp, Belgium
Leonardus G.M. Nipshagen, Gerrit Van Den Management Consultant Canada
Director Veenstraat 70 IBG Netherland, B.V.
Amsterdam
CTF Corporation N.V., International Managing Director Netherlands
Director Trade Center Bldg. Trust Company Antilles
Piscaderabay
Curacao
Netherlands Antilles
</TABLE>
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<PAGE>
III. YASAWA HOLDING, N.V.
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION/
NAME OF ORGANIZATION
NAME AND TITLE BUSINESS ADDRESS (AND ADDRESS, IF DIFFERENT) CITIZENSHIP
<S> <C> <C> <C>
Zarf Trust (Antilles) N.V. 1-5 Plaza JoJo Managing Director Netherlands
Director Correa, Curacao Trust Company Antilles
Antony Gram Tweemont Straat Managing Director The
Director 202, 2100 Gramyco BVBA Netherlands
Antwerp, Belgium
Leonardus G.M. Nipshagen Gerrit Van Den Management Consultant Canada
Director Veenstraat 70 IBG Nederland, B.V.
Amsterdam
</TABLE>
(d) and (e) During the past five years, none of the
Reporting Persons nor, to the best of the Reporting Persons' knowledge, any
person identified above: (i) has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors), or (ii) has been a
party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is made
subject to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activity subject to, federal or state
securities laws or finding any violation with respect to such laws.
(f) Information with respect to citizenship is included
above.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Information with respect to the amount of funds needed to
purchase the Common Stock which is the subject of this Schedule 13D is
provided in answer to Item 4 below. The funds came from the working
capital and/or personal funds of the Reporting Persons.
Item 4. PURPOSE OF THE TRANSACTION.
TRANSACTIONS INVOLVING SELEX
Pursuant to a Stock and Note Purchase Agreement
dated June 15, 1992, Selex acquired 2,220,066 shares of the Common Stock
from Empire of Carolina, Inc., a Delaware corporation ("Empire").
The purchase price for the shares was $1,000,000, or $.45 per share.
At the same time, Selex acquired a promissory note made by
Deltona in favor of Empire with an outstanding principal amount
of $1,000,000, plus accrued interest (the "Empire Note").
Selex paid $1,000,000 in cash for the Empire Note.
Effective on June 15, 1992, Selex loaned $3,000,000 to Deltona
(the "First Selex Loan") pursuant to a Loan and Escrow Agreement.
Deltona utilized $1,000,000 of the proceeds of the First Selex Loan
to acquire certain real estate interests held by Marcellus H.B.
Muyres and certain entities affiliated with Marcellus H.B. Muyres
and Cornelis L.J.J. Zwaans. As part of this transaction, Deltona
granted Selex an option (the "Selex Option") to acquire up to
850,000 shares of the Common Stock. The Selex Option was subject to
the approval of the holders of a majority of the Common Stock.
On September 23, 1992, Deltona held a shareholders meeting in which
the holders of a majority of the Common Stock approved the grant
of the Selex Option.
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<PAGE>
The exercise price under the Selex Option was equal to the
greater of: (i) $1.25 or (ii) 95% of the average closing price (as defined
in the Selex Option) of the Common Stock during the thirty days immediately
prior to exercise, but not exceeding $4.50 per share in any event. The
Selex Option was exercisable, in whole or in part, as long as the Selex
Loan remained outstanding, subject to certain restrictions designed to
protect Deltona's net operating loss carryforwards. In particular, Selex
could not acquire a number of shares which would increase its aggregate
ownership of Deltona to an amount in excess of 49.9% of the then
outstanding shares of the Common Stock during any "testing period" set
forth in Section 382 of the Internal Revenue Code of 1986, as amended,
adjusted for stock issued by Deltona and for stock acquisitions after June
15, 1992 by persons not affiliated with Selex that exceed 5% of the
outstanding shares of Common Stock.
On September 14, 1992, Selex formally waived and relinquished
its right to acquire 250,000 shares under the Selex Option. This waiver
and relinquishment enabled Deltona to settle certain litigation involving
Deltona. Under the settlement agreement, Deltona agreed to issue
approximately 250,000 shares of the Common Stock to the claimants. The
release of the shares by Selex meant that the issuance of the shares in the
settlement would not jeopardize the availability of Deltona's net operating
loss carryforwards.
On November 5, 1992, the independent directors of Deltona
reaffirmed their commitment to support action by Deltona to compensate
Selex for relinquishing its right to acquire 250,000 shares under the Selex
Option. One action considered was to increase the interest rate on that
portion of the Selex Loan that would have been convertible into 250,000
shares under the Option from 10% per annum to 15% per annum.
On April 30, 1993, Selex loaned the Company $1,000,000
pursuant to the terms of a certain Loan Agreement (the "Second Selex
Loan"). This loan is collateralized by a first mortgage on certain
property in the Company's Marion Oak's community. The loan agreement
provided that Selex would have conversion rights if certain proposed
regulations under Section 382 of the Internal Revenue Code (as reflected in
Proposed Treasury Decision CO-18-90) were adopted by December 31, 1993.
The proposed regulations were not adopted and Selex's conversion rights
were voided.
Between July 1993 and December 31, 1993, Selex loaned an
additional $4,400,000 to Deltona (the "Third Selex Loan"). These loans
were secured by substantially all of the property of Deltona.
On February 1, 1994, the Board of Directors of Deltona
approved a transaction in which an affiliate of Selex agreed to acquire 48
lots at the St. Augustine Shores development for a price of $312,000. The
purchase was made pursuant to an existing option agreement. The
transaction was closed on March 8, 1994. The purchase price was paid
$260,000 in cash and $52,000 through the assumption of debt owed to Selex.
On February 17, 1994, Selex exercised the Selex Option
converting a portion of the First Selex Loan into 600,000 shares of
Common Stock. The exercise price was $1.90 per share.
CHANGES IN BOARD OF DIRECTORS
On June 19, 1992, four of Selex's nominees were elected to
the Board of Directors of Deltona. These individuals were Marcellus H.B.
Muyres, Antony Gram, Cornelis Van de Peppel and Cornelis L.J.J. Zwaans. On
the same date, Mr. Muyres was named Chairman of the Board and Chief
Executive Officer of the Company. On September 23, 1992, an additional
nominee of Selex was elected to the Board of Directors -- Leonardus G.M.
Nipshagen. Set forth below is a list of the five Selex directors and the
following information with respect to each
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person: (i) name, (ii) business address, and (iii) citizenship:
NAME BUSINESS ADDRESS CITIZENSHIP
Marcellus H.B. Muyres Nusterweg The Netherlands
P.O. Box 80
6130 AB Sittard
Holland
Antony Gram Tweemont Straat 202 The Netherlands
2100
Antwerp, Belgium
Cornelis van de Peppel Kasteeldreff 59 The Netherlands
Schilde
Belgium
(Residence)
Cornelis L.J.J. Zwaans Zwaans, N.V. The Netherlands
Keesinglaan 13
Antwerp, Belgium
Leonardus G.M. Gerrit Van Den Canada
Nipshagen Veenstraat 70 Amsterdam
TRANSACTIONS WITH ANTONY GRAM
In December 1992, Antony Gram and his affiliate, Yasawa,
engaged in several transactions with Deltona and its principal lenders (the
"Bank Lenders"). Mr. Gram is the Vice-Chairman of the Board of Directors
of Deltona and the principal shareholder of Selex.
On December 4, 1992, Mr. Gram acquired all of the outstanding
debt of Deltona to the Bank Lenders (the "Bank Loan") pursuant to a certain
Sale and Assignment Agreement. At the time of the acquisition, the Bank
Loan had an outstanding balance of approximately $25,150,000. Mr. Gram
also acquired: (i) all of the Bank Lenders' rights under a certain Sixth
Amended and Restated Credit and Security Agreement dated June 18, 1992
between Deltona and the Bank Lenders, and (ii) three common stock purchase
warrants (the "Warrants") held by the Lenders. The Warrants entitled the
holder to purchase an aggregate of 277,387 shares of Deltona's Common Stock
at an exercise price of $1.00 per share. Mr. Gram paid the Lenders
$10,750,000 in cash for the Bank Lenders' rights under the Bank Loan and
the Warrants.
Immediately after the acquisition of the Bank Loan and the
Warrants, Gram transferred all of his interest in the Bank Loan and the
Warrants to Yasawa.
On December 11, 1992, Yasawa consummated several agreements
with Deltona to restructure the Bank Loan. These agreements were
originally executed on December 2, 1992. Under these agreements, Yasawa,
its affiliates and Deltona agreed as follows: (i) Deltona transferred
certain property at its Citrus Springs community to an affiliate of Yasawa
in exchange for approximately $6,500,000 of debt reduction credit; (ii) an
affiliate of Yasawa and Deltona entered into a joint venture agreement with
Deltona with respect to the Citrus Springs property, providing for Deltona
to market such property and receive an administration fee from the venture;
(iii) Deltona transferred contracts receivable with a face value of
approximately $10,800,000 to Scafholding, B.V., an affiliate of Yasawa
("Scafholding") for debt reduction credit of approximately $10,800,000;
(iv) Deltona transferred the Marco Shores Country Club and Golf Course to
an affiliate of Yasawa for an aggregate sales price of approximately
$5,500,000, which was paid by assuming an existing first mortgage of
approximately $1,100,000, a debt
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reduction credit of $2,400,000, and a cash payment to Deltona of
$2,000,000; (v) an affiliate of Yasawa agreed to lease the Marco
Shores Country Club and Golf Course to Deltona for a period
of approximately one year; (vi) Yasawa and Deltona agreed to amend the
terms of the Warrants to increase the number of shares issuable upon their
exercise from 277,387 shares to 289,637 shares and to adjust the exercise
price to an aggregate of approximately $314,000; (vii) Yasawa exercised the
Warrants in exchange for debt reduction credit of approximately $314,000;
(viii) Yasawa released certain collateral held for the Bank Loan; (ix)
Yasawa agreed to arrange for an additional loan of up to $1,500,000 to
Deltona; and (x) Yasawa agreed to restructure the payment terms of the
remaining $5,100,000 of the Bank Loan (the "First Yasawa Loan").
In the Spring of 1993, Scafholding loaned approximately
$1,500,000 to Deltona (the "Scafholding Loan").
In February 1994, Yasawa loaned an additional $437,500 to the
Company (the "Second Yasawa Loan").
OTHER MATTERS
At the present time, Deltona is in default of its obligations
under the First, Second and Third Selex Loans, the First Yasawa Loan, the
Second Yasawa Loan and the Scafholding Loan, due to its failure to make
required interest payments as well as various other defaults under the
terms of the loan documents. As a result, Selex, Yasawa and Scafholding
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 a reduction of their loans).
Selex, Yasawa and Scafholding are seeking to locate third
parties to provide financing for the Company. As part of any such
transaction, Selex, Yasawa and Scafholding are willing to sell or
restructure all or a portion of their loans and Common Stock in the
Company. Selex, Yasawa and Scafholding are willing to sell their interests
in the Company at a substantial discount. The consummation of any such
transaction may result in a change of control of Deltona.
The Reporting Persons may also have further discussions with
Deltona regarding the purchase of its assets, the purchase of additional
securities of Deltona, the granting of additional secured and unsecured
loans and advances to Deltona, the conversion of all or a portion of their
loans into equity of Deltona, and various other transactions involving
Deltona. There can be no assurance that any such transactions will be
consummated.
Since December 1992, Deltona has depended on funds from the
Reporting Persons in order to meet its working capital requirements. At
the present time, many of Deltona's liabilities are past due. If the
Reporting Persons do not make further funds available to Deltona (either
through loans, purchases of assets, stock purchases or other transactions),
then it is unlikely that Deltona will be able to fulfill its working
capital obligations. The Reporting Persons have not decided whether they
will provide any further funds to Deltona.
Except as discussed in this Schedule 13D, the Reporting
Persons have no other plans or proposals which relate to or would result
in:
(a) The acquisition by any person of additional securities
of Deltona, or the disposition of securities of Deltona;
(b) An extraordinary corporate transaction, such as a
merger, reorganization or liquidation, involving Deltona or any of its
subsidiaries;
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(c) A sale or transfer of a material amount of assets of
Deltona or any of its subsidiaries;
(d) Any further changes in the present Board of Directors
or management of Deltona, including any plans or proposals to change the
number or term of directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or
dividend policy of Deltona;
(f) Any other material change in Deltona's business or
corporate structure;
(g) Changes in Deltona's charter, by-laws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of Deltona by any person;
(h) Causing a class of securities of Deltona to be delisted
from a national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national
securities association;
(i) A class of equity securities of Deltona becoming
eligible for termination of registration pursuant to Section 12(g)(4) of
the Securities Exchange Act of 1934, as amended; or
(j) Any action similar to any of those enumerated above.
The descriptions of all agreements summarized in this
Schedule 13D are qualified in their entirety by reference to the copies
thereof filed as exhibits hereto, which are incorporated by reference
herein and made a part hereof to the same extent as though set forth in
full.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) On June 15, 1992, Selex acquired 2,220,066 shares of
the Common Stock pursuant to the Stock and Note Purchase Agreement. On
February 17, 1994, Selex acquired 600,000 shares by exercise of its
conversion rights under the First Selex Loan. These shares currently
represent 43.1% of the 6,550,604 shares of Common Stock outstanding on
March 8, 1994.
Yasawa has acquired 289,637 shares of the Common Stock
pursuant to the exercise of the Warrants. These shares represent 4.4% of
the Common Stock outstanding on March 8, 1994.
(b) The following table sets forth information with respect
to the beneficial ownership of each of the Reporting Persons:
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Selex and
Wilbury Antony Gram
Aggregate number of shares beneficially owned: 2,820,066 3,109,703
Percentage of class beneficially owned: 43.1% (1) 47.5% (1)
Number of shares as to which the Reporting
Persons have:
(i) sole power to vote or to direct
the vote ...................... 0 0
(ii) shared power to vote or to direct
the vote ...................... 2,820,066 3,109,703
(iii) sole power to dispose or to direct
the disposition of ............. 0 0
(iv) shared power to dispose or to direct
the disposition of ............ 2,820,066 3,109,703
(1) These percentages are based on a total of 6,550,604 outstanding
shares of Common Stock as of March 8, 1994.
Except as otherwise described herein, none of the Reporting
Persons nor, to the best of the Reporting Persons' knowledge, any other
person identified in Item 1 hereof beneficially owns any shares of the
Common Stock.
(c) Other than as described in Item 4, no transactions in
the Common Stock were effected since the filing of the original Schedule
13D by the Reporting Persons or, to the best of the Reporting Persons'
knowledge, by any of the persons identified in Item 1 hereof.
(d) Not applicable.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Other than as described herein, to the best of the knowledge
of each of the Reporting Persons, there are at present no contracts,
arrangements, understandings or relationships (legal or otherwise) among
the persons named in Item 2 and between such persons and any person with
respect to the Common Stock or other securities of Deltona.
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After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true,
complete and correct.
SELEX INTERNATIONAL, B.V.
By: /S/ Cornelis L.J.J. Zwaans
Cornelis L.J.J. Zwaans,
Managing Director
Date: March 8, 1994
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After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true,
complete and correct.
/S/ Antony Gram
Antony Gram
Date: March 8, 1994
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After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true,
complete and correct.
WILBURY INTERNATIONAL, N.V.
By: /S/ Antony Gram
Antony Gram, Managing Director
Date: March 8, 1994
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INDEX TO EXHIBITS
Index to Exhibits 99.0
Exhibit Index 99.1
First Amendment to Loan Agreement 10.1
Second Amendment to Loan Agreement 10.2
Third Amendment to Loan Agreement 10.3
Fourth Amendment to Loan Agreement 10.4
Fifth Amendment to Loan Agreement 10.5
Agreement for Purchase and Sale
for St. John's County Real Property 10.6
EXHIBIT INDEX
EXHIBIT PAGE
1 Consent to joint Schedule 13D filing. *
2 Stock and Note Purchase Agreement, dated as of
June 15, 1992, between Empire of Carolina, Inc. and
Selex Sittard B.V. *
3 Option, dated June 19, 1992, granted by The Deltona
Corporation to Selex Sittard B.V. 1992. *
4 Sale and Assignment Agreement dated December 4, 1992
by and between Antony Gram and Citibank, N.A., Fleet
National Bank and Chemical Bank. **
5 Warrants (3) dated June 18, 1992 issued by Deltona in
favor of Citibank, N.A., Fleet National Bank and
Chemical Bank. **
6 Seventh Amendment to Credit and Security Agreement dated
December 2, 1992 by and among Yasawa Holding, N.V.,
Deltona and certain subsidiaries of Deltona. **
7 Warrant Exercise and Debt Reduction Agreement dated
December 2, 1992 by and between Deltona and Yasawa
Holding, N.V. **
8 Agreement of Purchase and Sale dated December 2, 1992
between Deltona and Scafholding, B.V. **
9 Citrus Springs Joint Venture Agreement dated December 2,
1992 between Deltona and Citony Development Corporation. **
10 Agreement of Purchase and Sale dated December 2,
1992 between Deltona, Margolf Investments, Inc. and
Five Points Title Service Co., Inc., as Escrow Agent. **
11 Lease Agreement dated December 2, 1992 between Margolf
as Landlord and Deltona as Tenant. **
12 Loan Agreement dated December 2, 1992 between
Scafholding B.V. and Deltona. **
13 Loan Agreement dated April 30, 1993 between
Selex International, B.V. and Deltona. ***
14 Loan Agreement dated July 14, 1993 between Deltona
and Selex International, B.V. ****
15 First Amendment to Loan Agreement dated August 5, 1993.
16 Second Amendment to Loan Agreement dated August 19, 1993.
17 Third Amendment to Loan Agreement dated September 29, 1993.
18 Fourth Amendment to Loan Agreement dated November 11, 1993.
19 Fifth Amendment to Loan Agreement dated December 30, 1993.
20 Agreement for Purchase and Sale of Land in St. John's
County, Florida dated March 8, 1994.
<PAGE>
* Incorporated by reference from Schedule 13D dated June 19, 1992, as
previously filed by the Reporting Persons with the Securities and
Exchange Commission.
** Incorporated by reference from Amendment No. 1 to Schedule 13D dated
December 4, 1992, as previously filed by the reporting persons with the
Securities and Exchange Commission.
*** Incorporated by reference from Form 10-Q for the quarter ended March 26,
1993, as filed by Deltona with the Securities and Exchange
Commission.
**** Incorporated by reference from Form 10-Q for the quarter ended June 25,
1993, as filed by Deltona with the Securities and
Exchange Commission.
EXHIBIT 15
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.
<PAGE>
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.
-2-
<PAGE>
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.
-3-
<PAGE>
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
-4-
<PAGE>
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
-5-
<PAGE>
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.
-6-
<PAGE>
Witnesses: BORROWERS:
THE DELTONA CORPORATION
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DLIC, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELAINCO, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELTONA LAND AND INVESTMENT CORP.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
-7-
<PAGE>
DELDADE, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
THREE SEASONS CORPORATION
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELTONA CONSTRUCTION COMPANY, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
INTERCOASTAL PROPERTIES OF
ST. AUGUSTINE SHORES, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
-8-
<PAGE>
LENDER:
SELEX INTERNATIONAL, B.V.
- -------------------
By: --------------------
- ------------------- Its: --------------------
Name: --------------------
-9-
EXHIBIT 16
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:
<PAGE>
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.
-2-
<PAGE>
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.
-3-
<PAGE>
(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
-4-
<PAGE>
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
-5-
<PAGE>
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.
-6-
<PAGE>
Witnesses: BORROWERS:
THE DELTONA CORPORATION
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DLIC, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELAINCO, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELTONA LAND AND INVESTMENT CORP.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
-7-
<PAGE>
DELDADE, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
THREE SEASONS CORPORATION
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELTONA CONSTRUCTION COMPANY, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
INTERCOASTAL PROPERTIES OF
ST. AUGUSTINE SHORES, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
-8-
<PAGE>
LENDER:
SELEX INTERNATIONAL, B.V.
- -------------------
By: --------------------
- ------------------- Its: --------------------
Name: --------------------
-9-
EXHIBIT 17
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, 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 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 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
<PAGE>
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 $1,510,000.00 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
-2-
<PAGE>
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
-3-
<PAGE>
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).
-4-
<PAGE>
(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.
-5-
<PAGE>
(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.
-6-
<PAGE>
Witnesses: BORROWERS:
THE DELTONA CORPORATION
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DLIC, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELAINCO, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELTONA LAND AND INVESTMENT CORP.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
-7-
<PAGE>
DELDADE, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
THREE SEASONS CORPORATION
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELTONA CONSTRUCTION COMPANY, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
INTERCOASTAL PROPERTIES OF
ST. AUGUSTINE SHORES, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
-8-
<PAGE>
LENDER:
SELEX INTERNATIONAL, B.V.
- -------------------
By: --------------------
- ------------------- Its: --------------------
Name: --------------------
-9-
EXHIBIT 18
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;
<PAGE>
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.
-2-
<PAGE>
(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.
-3-
<PAGE>
(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
-4-
<PAGE>
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.
-5-
<PAGE>
(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.
-6-
<PAGE>
Witnesses: BORROWERS:
THE DELTONA CORPORATION
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DLIC, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELAINCO, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELTONA LAND AND INVESTMENT CORP.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
-7-
<PAGE>
DELDADE, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
THREE SEASONS CORPORATION
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELTONA CONSTRUCTION COMPANY, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
INTERCOASTAL PROPERTIES OF
ST. AUGUSTINE SHORES, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
-8-
<PAGE>
LENDER:
SELEX INTERNATIONAL, B.V.
- -------------------
By: --------------------
- ------------------- Its: --------------------
Name: --------------------
-9-
EXHIBIT 19
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
<PAGE>
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,
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<PAGE>
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
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<PAGE>
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
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<PAGE>
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
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<PAGE>
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.
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<PAGE>
Witnesses: BORROWERS:
THE DELTONA CORPORATION
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DLIC, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELAINCO, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELTONA LAND AND INVESTMENT CORP.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
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<PAGE>
DELDADE, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
THREE SEASONS CORPORATION
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
DELTONA CONSTRUCTION COMPANY, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
INTERCOASTAL PROPERTIES OF
ST. AUGUSTINE SHORES, INC.
s/s Joe E. Cam
By: s/s Earle D. Cortright, Jr.
s/s Debra L. Kess Its: President
Name: Earle D. Cortright, Jr.
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<PAGE>
LENDER:
SELEX INTERNATIONAL, B.V.
- -------------------
By: --------------------
- ------------------- Its: --------------------
Name: --------------------
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EXHIBIT 20
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
<PAGE>
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.
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<PAGE>
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.
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<PAGE>
(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.
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<PAGE>
(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
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<PAGE>
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,
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<PAGE>
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
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<PAGE>
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
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<PAGE>
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.
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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: --------------------
-10-
<PAGE>
SELEX INTERNATIONAL B.V., is a
Netherlands corporation
- -------------------
By: --------------------
- -------------------
Its: --------------------
Name: --------------------
Date: --------------------
CONQUISTADOR DEVELOPMENT CORP., a
Florida corporation
- -------------------
By: --------------------
- -------------------
Its: --------------------
Name: --------------------
Date: --------------------
-11-
