EXHIBIT 4(u)
XXXXXXX XXXXXXXXXX NOTE
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$2,293,950 November 13th, 1997
Lender: SCAFHOLDING B.V., a Netherlands 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 Two Million Two Hundred Ninety Three Thousand
Nine Hundred Fifty and No/100 Dollars ($2,293,950.00), 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 Exhibit A attached hereto.
Payments shall be made in cash or by transferring curent 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 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
renewal and modification of, and substitution for 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 a first position security interest in certain contracts
receivable as they appear on the attached Form UCC-1.
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 in which Maker (or any of them) has an
interest, 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:
Scafholding B.V., Ottergeerde 14, 4941 VM Raamsdanksveer, Netherlands; 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 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
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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.
17. This Note shall be governed by and construed in accordance with Florida
law,
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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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DATE AMOUNT
---- -----------
2/4/93 $287,640.00
2/4/93 $23,478.00
2/4/93 $238,882.00
3/11/93 $200,000.00
3/11/93 $325,000.00
5/24/93 $425,000.00
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TOTAL $1,500,000.00
