PROMISSORY NOTE
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$5,690,000 March 26, 1999
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Lender: SWAN DEVELOPMENT CORPORATION, a Florida corporation, hereinafter
termed "Holder").
Borrower: THE DELTONA CORPORATION, a Delaware corporation,("Maker").
FOR VALUE RECEIVED, Maker hereby promise(s) to pay to the Order of
Holder at its address as indicated hereinbelow, or wherever else Holder may
specify, the sum of Five Million Seven Hundred Sixty Five Thousand and No/100
Dollars ($5,765,000.00) with no interest if paid in full within six(6) months of
the date of receipt of monies and thereafter at the rate of six percent(6%) per
annum on the outstanding balance at the end of the six month period. For
purposes of determining when interest begins to accrue, monies were received and
interest begins accruing at the rate of six percent (6%) as follows:
Amount Received Date Received Interest Accrual Begins
$ 500,000 10/9/98 4/9/99
$ 200,000 12/7/98 6/9/99
$ 65,000 12/14/98 6/14/99
$ 200,000 1/5/99 7/5/99
$ 125,000 1/12/99 7/12/99
$ 100,000 1/28/99 7/28/99
$ 1,000,000 2/3/99 8/3/99
$ 3,500,000 3/26/99 9/26/99
Payment of principal and interest shall be made by transferring current
contracts receivable at 90% of face value, with recourse, to Lender or Lender's
designee in an amount equal to the total amount of contractually current
receivables in Maker's contracts receivable portfolio (the "D Pool") less and
except an amount of contractually current contracts receivable equal to
approximately Five Hundred Thousand and no/Dollars ($500,000) at any given
month.
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Maker also hereby agrees as follow:
1. Payment of all amounts now or hereafter owed to Holder hereunder
is and shall be secured by a security interest in Maker's contracts receivable
portfolio, as well as by any additional security interest, referred to herein or
otherwise arising in connection herewith.
2. Both principal and interest shall be payable in lawful money of
the United States of America and same day funds, without set off, counterclaim
or deduction of any kind, or in contracts receivable belonging to Maker.
Payments hereunder shall be applied first against interest and lawful charges
accrued but unpaid and the remainder, if any, against principal.
3. If Maker should fail to make a payment, or any part of a payment
of principal and interest hereunder within 10 days after such payment is due and
payable hereunder, or if Maker should otherwise fail to perform or observe any
provision hereof or should be deemed to have defaulted pursuant to this Note,
then declare the entire unpaid balance of this Note immediately due any payable.
If Holder thus declares the unpaid balance of this Note immediately due any
payable, then such amount shall be due and payable forthwith without presentment
or demand for payment (which are hereby expressly waived by Maker).
4. Maker may prepay the principal amount outstanding hereunder in
whole or in part without penalty.
5. Holder may, at any time, pledge or assign this Note, whereupon
Holder shall be relieved of all duties it may have hereunder (including any
duties with respect to any collateral securing this Note).
6. Maker hereby waives any presentment for payment, demand, notice
of dishonor and protest of this Note.
7. Without limiting Holder's right to bring any action or proceeding
against Maker or against any property of Maker or in which Maker has an interest
(any "Property"), arising out of or relating to this Note (an "Action") in the
courts of other jurisdictions, Maker hereby irrevocably submits to the
non-exclusive jurisdiction of any Florida state or Federal court sitting in
Ocala, any Maker hereby irrevocably agrees that any Action may be heard and
determined in such Florida state court or in such Federal court. Maker: (a)
hereby irrevocably waives, the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of any Action in any
jurisdiction; and (b) hereby irrevocably agrees that the summons and complaint
or any other process in any Action in any jurisdiction may be served upon Maker
by mailing it to the undersigned at the address specified at the end hereto (or,
if no such address is specified, the address shown on Holder's records), or by
hand delivery to Maker through its Resident Agent.
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8. This Note shall be binding upon any successor or assign of Maker.
Any successor or assign of Holder shall enjoy the same rights, benefits and
remedies under this Note as Holder would enjoy.
9. Except as in otherwise expressly provided in this Note, any
Notice of other communication required or contemplated under this Note may be
sent to Holder by hand delivery or by mail (postage prepaid), addressed to
Holder at: Swan Development Corporation, 00 Xxxxxx Xxxxxxxxx, Xx. Xxxxxxxxx, XX
; or in such manner or at such address as Holder shall give Maker notice of in
the fashion provided herein (any such communication or notice becoming effective
when received by Holder). Except as is otherwise expressly provided in this
Note, any notice or other communication required or contemplated under this Note
may be delivered to any of the undersigned by hand delivery or by mail (postage
prepaid), sent or delivered, as regards each of the undersigned, c/o The Deltona
Corporation, 0000 XX 000xx Xxxxxx Xxxx, Xxxxx, XX 00000 (any such communication
or notice becoming effective, unless otherwise expressly provided in this Note,
immediately, when hand-delivered, or two calendar days after it is placed in the
mail).
10. Maker represents and warrants to Holder (and, while this Note
remains outstanding, shall be deemed continually to represent and warrant to
Holder) that: (a) Maker has full power, authority and legal right to execute,
deliver and perform this Note and has taken all legal actions (and made any
filings and obtained any authorizations by governmental or regulatory
authorities) that are necessary to authorize the execution, delivery and
performance of this Note; (b) Maker has received adequate consideration for
executing, delivering and performing this Note; (c) this Note is valid and
binding upon Maker and enforceable in accordance with its terms; (d) the
execution, delivery and performance of this Note by Maker do not violate any
internal rule of Maker, any law or regulation, any judgment, order or decree of
any court, arbitrator or governmental authority, or any agreement of any nature
whatsoever that is binding upon Maker or any Property; (e) there is no action,
suit, proceeding or investigation of any kind pending or threatened against
Maker or any of them unknown to Holder, before any court, tribunal or
administrative agency or board which, if adversely determined, might materially
adversely affect the properties, assets, financial condition or business of
Maker or call into question the validity or enforceability of this Notice.
11. All payments provided for in this Note shall be made free and
clear of any deductions for any surcharges, contributions, penalties and
interest or other charges imposed at any time by any government or political
subdivision or authority thereof or therein. Maker shall pay (or reimburse
Holder for) any documentary stamp, intangible or similar taxes imposed at any
time with respect to this Note, the indebtedness evidenced hereby, any agreement
relating hereto or any advance hereunder and any interest or penalty relating
thereto.
12. Maker shall pay all costs and expenses, including attorneys'
fees, of or incidental to the enforcement, compromise or settlement of any
indebtedness of Maker hereunder, and including without limitation all costs and
expenses of any amendment or waiver of, addition to, or rescheduling
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of, this Note and of any actual or attempted sale, exchange, or collection of
any of the Mortgages and of the care of any of the Mortgages (including the
insuring thereof). Any such costs and expenses incurred by Holder shall be added
to its indebtedness hereunder. As used herein, "attorneys' fees" shall include,
without limitation, attorneys' fees incurred by Holder in any judicial,
bankruptcy, administrative or other proceedings and in any appellate
proceedings, whether such proceedings arise before or after entry of a final
judgment.
13. The rights and remedies expressly specified in this Note are
cumulative and not exclusive of any rights or remedies which Holder might
otherwise have. No delay or omission by Holder in exercising any right or remedy
under this Note shall operate as a waiver thereof or of any other right or
remedy, nor shall any single or partial exercise thereof preclude any further
exercise thereof or the exercise of any other right or remedy. Holder shall not
be liable for exercising or failing to exercise any right or remedy. No exercise
by Holder of any one or more of its rights or remedies hereunder or under
applicable law or any other agreement (including any right of rights of Holder
to realize on any collateral securing this Note) shall be deemed to be an
election of remedies by Holder.
14. The invalidity or unenforceability of any provision of this Note
shall not be deemed to affect the validity or enforceability of any other
provision hereof. If any provision of this Note is capable of more than one
interpretation, it shall be interpreted, if possible, so as to render it
enforceable. In order to be effective, any addition to this Note or any
modification or waiver of any provision or provisions of this Note must be
expressly consented to by Holder in writing. As used in this Note, the singular
includes the plural, "it" and "its" include the masculine and feminine genders,
and "hereof", "hereunder", "herewith", "herein" and "hereto" refer to this Note
in its entirety.
15. This Note shall be governed by and construed in accordance with
Florida law, excluding Florida law regarding comity and the conflict of laws.
16. Maker now and forever waives any rights it or they may have to a
trial by jury with respect to any litigation or counterclaim based on this Note
or arising out of, under or in connection with this Note or any course of
conduct, course of dealing, statements (whether oral or written) or actions of
Maker or Holder.
Executed by the undersigned as of the date stated at the beginning
hereof.
THE DELTONA CORPORATION
By: /s/ Xxxxxx X. XxXxxxxx
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Xxxxxx X. XxXxxxxx
Treasurer
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