EXHIBIT 4(o)
XXXXXXX XXXXXXXXXX NOTE
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$6,692,732 November 13, 1997
Lender: YASAWA HOLDING, N.V. a Netherlands Antilles Corporation
(hereinafter, with any holder hereof, termed "Holder").
Borrower: THE DELTONA CORPORATION, a Delaware corporation, DLIC, INC., a
Florida corporation, DELTONA LAND & INVESTMENT CORP., a Florida
corporation, THREE SEASONS CORPORATION, a Florida corporation,
and DELTONA CONSTRUCTION COMPANY, INC. (formerly known as Deltona's
Xxxxxx-Built Construction Company, Inc.), a Florida corporation
(collectively, "Maker").
FOR VALUE RECEIVED, Maker, jointly and severally, 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 Six Million Six Hundred Ninety Two Thousand Seven
Hundred Thirty Two and No/100 Dollars ($6,692,732.00), with interest until paid
at the rate of 9.6 percent (9.6%) per annum. Payments of interest and principal
shall be due as follows:
(i) Interest will accrue on the remaining debt at the rate of 9.6% per
annum.
(ii) Interest on the remaining debt will be paid monthly in cash or by
transferring current contracts receivable at 65% of face value, with recourse,
to Lender or Lender's designee, in accordance with Schedule A attached hereto.
(iii) Principal will be paid in accordance with Schedule A attached hereto.
Payments shall be made in cash or by transferring current contracts receivable
at face value, with recourse, to Lender or Xxxxxx's designee.
Xxxxx also xxxxxx agrees as follow:
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1. This Note constitutes a consolidation, renewal and modification of, and
a substitution for those certain promissory notes listed on Exhibit "A" attached
hereto. Each of the undersigned hereby acknowledges and agrees that: (i) all
prior indebtedness described above in this paragraph is owed in full to Holder;
(ii) none of the undersigned has any defenses, offsets, claims, counterclaims or
objections involving, arising from or relating to such prior indebtedness or
this Note; and (iii) the undersigned have requested that Holder enter into the
consolidation, modification and substitution of promissory notes, and the
related transactions and arrangements, contemplated by or reflected in this Note
or any related or collateral documents.
2. Payment of all amounts now or hereafter owed to Holder hereunder is and
shall be secured by those certain mortgages and security agreements listed on
Exhibit "B" attached hereto, as well as by any additional security interest,
referred to herein or otherwise arising in connection herewith.
3. Both principal and interest hereunder 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.
4. If Maker should fail to make a payment, or any part of a payment, of
principal or interest hereunder within 10 days after such payment is due and
payable hereunder, or if Maker (or any of them) should otherwise fail to perform
or observe any provision hereof or should be deemed to have defaulted pursuant
to this Note, or the mortgages securing 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).
5. Maker may prepay the principal amount outstanding hereunder in whole or
in part without penalty.
6. If the undersigned are more than one, they are jointly and severally
liable as regards all obligations of Maker under this Note.
7. 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).
8. Maker (and each of them) hereby waives any presentment for payment,
demand, notice of dishonor and protest of this Note.
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9. Without limiting Holder's right to bring any action or proceeding
against Maker or any of them, or against any property of Maker (or any of them)
or in which Maker (or any of them) 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 Miami, 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 their
Resident Agent.
10. This Note shall be binding upon any successor or assign of Maker (or of
any of them). Any successor or assign of Holder shall enjoy the same rights,
benefits and remedies under this Note as Holder would enjoy.
11. 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:
Yasawa Holding, c/o/ Zarf Trust Corporation N.V., Director, Xxxxx Xxxx Xxxxxx
0-0, XX Xxx 000, Xxxxxxxxxx, Xxxxxxx, Xxxxxxxxxxx Antilles; 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, 000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 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).
12. 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
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of any nature whatsoever that is binding upon Maker or any of them 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 any of them or call into question the validity
or enforceability of this Notice.
13. 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.
14. 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 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.
15. 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 Xxxxxx.
16. 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.
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17. This Note shall be governed by and construed in accordance with Florida
law, excluding Florida law regarding comity and the conflict of laws.
18. Maker and each of them now and forever waives any rights it or they may
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have to a trial by jury with respect to any litigation or counterclaim based on
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this Note or arising out of, under or in connection with this Note or any course
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of conduct, course of dealing, statements (whether oral or written) or actions
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of Maker or Holder.
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Executed by the undersigned as of the date stated at the beginning hereof.
THE DELTONA CORPORATION
By:/s/Xxxxx X. Xxxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxxx, Xx., President
DLIC, INC.
By:/s/Xxxxx X. Xxxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxxx, Xx., President
DELTONA LAND & INVESTMENT CORP.
By:/s/Xxxxx X. Xxxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxxx, Xx., President
THREE SEASONS CORPORATION
By:/s/Xxxxx X. Xxxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxxx, Xx., President
DELTONA CONSTRUCTION COMPANY, INC.
By:/s/Xxxxx X. Xxxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxxx, Xx., President
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SCHEDULE A
REPAYMENT SCHEDULE
EXHIBIT A TO RENEWAL PROMISSORY NOTE
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EXISTING NOTES
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DATE AMOUNT PAYEE PURPOSE
12/2/92 $ 5,105,526.00 YASAWA HOLDINGS, N.V. 1st Yasawa Loan
02/01/94 437,500.00 YASAWA HOLDINGS, N.V. 2nd Yasawa Loan
02/08/94 77,366.41 YASAWA HOLDINGS, N.V. Conversion of Xxxxxxx & Xxxxx legal fees to debt
05/12/94 31,000.00 YASAWA HOLDINGS, N.V. New Loan
05/19/94 29,000.00 YASAWA HOLDINGS, N.V. New Loan
05/27/94 26,000.00 YASAWA HOLDINGS, N.V. New Loan
06/03/94 38,900.00 YASAWA HOLDINGS, N.V. New Loan
06/16/94 26,100.00 YASAWA HOLDINGS, N.V. New Loan
06/29/94 28,000.00 YASAWA HOLDINGS, N.V. New Loan
7/14/94 70,310.00 YASAWA HOLDINGS, N.V. New Loan
07/29/94 112,000.00 YASAWA HOLDINGS, N.V. New Loan
08/03/94 65,000.00 YASAWA HOLDINGS, N.V. New Loan
08/04/94 55,000.00 YASAWA HOLDINGS, N.V. New Loan
08/25/94 115,823.59 YASAWA HOLDINGS, N.V. New Loan
08/31/94 200,000.00 YASAWA HOLDINGS, N.V. New Loan
09/21/94 100,000.00 YASAWA HOLDINGS, N.V. New Loan
09/30/94 100,000.00 YASAWA HOLDINGS, N.V. New Loan
10/13/94 50,000.00 YASAWA HOLDINGS, N.V. New Loan
10/21/94 35,000.00 YASAWA HOLDINGS, N.V. New Loan
11/17/94 80,000.00 YASAWA HOLDINGS, N.V. New Loan
350,000.00 YASAWA HOLDINGS, N.V. New Loan (Landlord Settlement)
12/23/94 95,000.00 YASAWA HOLDINGS, N.V. New Loan
02/02/95 60,000.00 YASAWA HOLDINGS, N.V. New Loan
03/20/95 60,000.00 YASAWA HOLDINGS, N.V. New Loan
03/23/95 30,000.00 YASAWA HOLDINGS, N.V. New Loan
03/28/95 550,000.00 YASAWA HOLDINGS, N.V. New Loan (1992 real estate taxes)
05/02/95 100,000.00 YASAWA HOLDINGS, N.V. New Loan
05/23/95 75,000.00 YASAWA HOLDINGS, N.V. New Loan (Citrus Co)
05/30/95 175,000.00 YASAWA HOLDINGS, N.V. New Loan (Xxxxxxxx & Xxxxxx Settlements)
07/18/95 25,000.00 YASAWA HOLDINGS, N.V. New Loan
07/28/95 25,000.00 YASAWA HOLDINGS, N.V. New Loan
08/18/95 30,000.00 YASAWA HOLDINGS, N.V. New Loan (Deposit - New office lease)
09/ /95 500,000.00 YASAWA HOLDINGS, N.V. New Loan (LC Draw - Landlord)
09/27/95 200,000.00 YASAWA HOLDINGS, N.V. New Loan (Xxxxxx Settlement)
11/30/95 20,000.00 YASAWA HOLDINGS, N.V. New Loan
12/15/95 40,000.00 YASAWA HOLDINGS, N.V. New Loan
03/31/96 100,000.00 YASAWA HOLDINGS, N.V. Swan Development
04/16/96 1,000,000.00 YASAWA HOLDINGS, N.V. New Loan 1993 Real Estate Taxes
09/06/96 918,000.00 YASAWA HOLDINGS, N.V. New Loan - Xxxxxxxx Settlement
09/06/96 (100,000.00) YASAWA HOLDINGS, N.V. Swan Development (Pay Back)
11/18/96 82,000.00 YASAWA HOLDINGS, N.V. New Loan Xxxxxxxx Settlement
07/30/97 137,500.00 YASAWA HOLDINGS, N.V. New Loan St. Xxxxxxxxx Xxxxxx 1994 Taxes
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TOTAL $11,255,026.00
EXHIBIT B
Mortgage and Security Agreement Securing Note
(97new#3a -Consolidated Mortgage Modification and Spreader Agreement)
