EXHIBIT 4(n)
EIGHTH AMENDMENT AND CONSOLIDATION OF CREDIT AND SECURITY
AGREEMENT
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This Eighth Amendment and Consolidation of the Credit and Security
Agreement (this "Agreement") is made and entered into as of the 13 day of
November, 1997, by and among YASAWA HOLDING, N.V., a Netherlands Antilles
corporation ("Lender"); and 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 "Borrower").
R E C I T A L S
A. Borrower and Lender have entered into a certain Seventh Amendment to
Credit and Security Agreement dated December 2, 1992 and a Mortgage and Security
Agreement dated February 1, 1994(unrecorded) including schedules and exhibits
thereto, as amended.
B. Borrower and Lender mutually agree to consolidate the debt due Lender
from Borrower under the Seventh Amendment to Credit and Security Agreement dated
December 2, 1992 and the Mortgage and Security Agreement dated February 1, 1994
including schedules and exhibits thereto, as amended, hereinafter referred to as
the "Loan Instruments", into this Agreement.
C. Certain companies included as Borrowers in the Loan Instruments are no
longer active corporations and no longer participants in this Agreement;
specifically, Delainco, Inc., an inactive Florida corporation, Deldade, Inc.
(formerly known as Deltampa, Inc.), an inactive Florida corporation, and
Intercoastal Properties of St. Xxxxxxxxx Xxxxxx, Inc., an inactive Florida
corporation.
D. The principal balance due and owing under the Loan Instruments as of the
date hereof is $12,819,791 (the "Debt").
E. Lender has received a security interest in certain real property,
fixtures and personal property (whether tangible or intangible) evidenced by
UCC-1 Financing Statements, mortgages and notes, as more particularly described
in the Loan Instruments and Lender will receive a security interest in certain
additional real property and assets of Borrower (the "Division Portfolio") as
further identified on Exhibits "A" and "B", annexed hereto.
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NOW THEREFORE, for and in consideration of the premises, the mutual
promises contained herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto do hereby
covenant and agree as follows:
ARTICLE 1
RECITATIONS
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Section 1.1. Recitations. Lender and Borrower hereby acknowledge and agree
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that each and all of the recitations set forth above in Paragraphs A through E
inclusive, are true and correct and are incorporated in this Agreement by this
reference.
Section 1.2. Definitions. All capitalized terms used in this Agreement,
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unless otherwise defined in this Agreement, shall have the meanings ascribed to
such terms in the Credit Agreement.
ARTICLE 2
ACKNOWLEDGMENT OF INDEBTEDNESS
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Section 2.1. Borrower hereby acknowledges and confirms that the entire
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amount of the Debt as of the date of this Agreement is $12,819,791, including
any interest and expenses payable by Borrower to Lender without offset,
counterclaims or defenses.
Section 2.2. Borrower has no defenses, claims or offsets to payment of the
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indebtedness evidenced by the Loan Instruments and enforcement of the mortgages
and security interest included with the Loan Instruments, and Borrower waives
and releases any claims, causes of action or defenses relating to the
indebtedness evidenced by the Loan Instruments, the enforcement of the mortgages
and security interests and the enforceability of the Loan Instruments in
accordance with their terms.
ARTICLE 3
GENERAL TERMS OF SETTLEMENT
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Section 3.1. Obligations of Borrower and Lender. On or before November 30,
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1997, Borrower and Lender shall perform all of their obligations under this
Agreement, unless, if necessary, said date is extended upon the mutual consent
of the parties hereto.
Section 3.2. Reduction of Debt. Simultaneously with the closing of the
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transactions contemplated under the Asset Agreements, and as more specifically
set forth in the Asset Agreements, Borrower shall issue to Lender or Lender's
designee 4,144,602 shares of common stock of The Deltona Corporation at $1.00
per share (par value) and shall make a cash repayment to Lender in the amount of
$1,982,457 in full satisfaction of the Mortgage and Security Agreement dated
February 1, 1994 including schedules and exhibits thereto, as amended (the
"Second Yasawa Loan).
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The amount of the remaining debt shall be reduced by Lender to the amount of
$6,692,732. Lender agrees to execute or cause Lender's designee to execute, all
documents necessary to release Borrower's real and personal property from the
lien and effect of the Loan Documents pursuant to the requirements of the Asset
Agreements and to effect the terms and obligations under this Agreement.
Section 3.3. Release of St. Xxxxxxxxx Xxxxxx Lots. Lender agrees to release
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or to cause to be released all real property in St. Xxxxxxxxx Xxxxxx Subdivision
from the lien and effect of the Mortgage.
Section 3.4. Release of Receivables. Lender agrees to release or to cause
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to be released all liens on contract and mortgage receivables being purchased by
Lender or an affiliate of Lender .
Section 3.5. Payment of Remaining Debt. Borrower agrees that the terms of
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payment to Lender of the remaining debt of $6,692,732 to be secured under the
Loan Instruments shall be restructured 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 Exhibit C attached hereto.
(iii) Principal will be paid in accordance with Exhibit C attached hereto.
Payments shall be made in cash or by transferring current contracts receivable
at face value, with recourse, to Lender or Lender's designee.
Borrower agrees to execute a renewal promissory note to evidence the above
payment terms and obligations.
Section 3.6. Future Release of Receivables. Lender agrees to release or
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cause to be released to Borrower the liens on receivables to enable Borrower to
sell those receivables to meet its obligations under this Agreement. Lender
commits to purchase, or make available an entity to purchase receivables, upon
Borrower's request and subject to Borrower's discretion, and agrees to pay or
arrange for payment, for those receivables at the rate of 65% of face value,
with recourse.
Section 3.7. No Fraudulent Conveyance. The conveyances which are
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contemplated by this Agreement are not fraudulent conveyances under applicable
Bankruptcy Law and such conveyances are being made for "reasonable equivalent
value" as defined in Section 548 of Title 11 of the United States Bankruptcy
Code.
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Section 3.8. Collateral. Borrower represents and covenants that Lender has,
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or will have upon closing of this Agreement, a security interest in all real
property in title to Borrower, and fixtures and personal property (whether
tangible or intangible) belonging to Borrower as evidenced by a UCC-1 Financing
Statement, mortgage and promissory note. Simultaneous with the closing of this
transaction, Borrower will execute all additional documents necessary to give
Lender a security interest in the Division Portfolio, previously released by the
Lender or its predecessors, including the Consent Order Lots presently in title
to Borrower and contracts and mortgages receivable in which Borrower retains an
interest. The lien on Borrower's contracts receivable shall be subordinate to
the lien on Borrower's contracts receivables held by Scafholding, B.V.
Section 3.9. Automatic Release of Registered Lots. Lender acknowledges that
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the real property in title to the Borrower is currently being offered for sale
by Borrower and it is actively registered with the Division of Florida Land
Sales, Condominiums and Mobile Homes. Pursuant to the Loan Instruments, in the
event Registered Lots are sold by the Borrower in the ordinary course of
business in a transaction which is not exempt under the Florida Uniform Land
Sales Practices Law, the issuance of a Warranty Deed by the Borrower to the
purchaser of the lot shall automatically release such Registered Lot from the
lien and effect of the mortgage and with the same force and effect as if such
Registered Lot had been released from the lien by a formal release recorded in
the County in which the released property is located. The rights of the
purchaser are superior to and take priority over the lien and effect of any
mortgage. In the event a Warranty Deed is issued by the Borrower to a purchaser
of property prior to payment in full of the purchase price by the purchaser and
the purchaser executes a mortgage in favor of the Borrower for the balance of
the purchase price, said mortgage will be collaterally assigned by Borrower to
Lender pursuant to Section 3.8 hereof. The provisions of this paragraph shall be
binding upon any purchaser at a foreclosure sale and any person acquiring title
to such land shall be bound to convey legal title to such purchaser who is
entitled to a deed under the terms of their Agreement of Purchase and Sale.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS
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Section 4.1. Transactions not Prohibited. Borrower is not prohibited from
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entering into this Agreement or consummating the transactions contemplated
hereby by any law, regulation, agreement, instruction, restriction, order or
judgment. Likewise, the execution and performance of this Agreement will not
modify (except with respect to the Loan Documents as provided herein) any
obligation of Borrower, or constitute (with or without notice or the passage of
time or both) a default or violation of or under, or conflict with, any law,
rule, regulation, order, judgment, indenture, contract, security instrument,
permit, lease or other agreement to which Borrower is a party or to which
Borrower is bound.
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Section 4.2. Organization. The Deltona Corporation is a corporation which
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is duly organized and validly existing under the laws of the State of Delaware.
Each other entity comprising the Borrower is a corporation which is duly
organized and validly existing under the laws of the State of Florida.
Section 4.3. Authority. Borrower has full power, legal capacity and
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authority to enter into and perform this Agreement. All proceedings required to
be taken and all consents required to be obtained by Borrower to authorize the
execution of this Agreement have been properly taken and obtained. This
Agreement constitutes a legal, valid and binding obligation of Borrower,
enforceable against Borrower in accordance with its terms, subject to
bankruptcy, and other laws generally affecting the enforcement of creditors'
rights, Similarly, the documents contemplated to be executed by Borrower
pursuant to this Agreement will, upon execution and delivery, constitute the
legal, valid and binding obligations of Borrower, enforceable in accordance with
their respective terms, subject to bankruptcy and other laws generally affecting
the enforcement of creditors' rights.
ARTICLE 5
ACKNOWLEDGMENTS OF BORROWER
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Section 5.1. Free and Voluntary Act. Borrower is freely and voluntarily
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entering into this Agreement. One or more responsible officers of the Borrower
individually have read this Agreement and have discussed this Agreement with its
legal, financial and other counsel.
Section 5.2. No Implied Terms. Any and all duties and obligations that
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Lender or Lender's designees may have to Borrower are limited to those expressly
stated in this Agreement and neither the duties and obligations of Lender or
Lender's designees nor the rights of the Borrower shall be expanded beyond the
express terms of this Agreement.
Section 5.3. Fair Consideration. The agreements of Lender and Lender's
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designees as are contained herein and in the Asset Agreements constitute
valuable, adequate and fair consideration for the obligations of Borrower
hereunder.
Section 5.4. No Other Representation. Borrower acknowledges and agrees that
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neither Lender nor any person or entity acting on its behalf has made any
representation or promise to Borrower which is not expressly set forth herein.
ARTICLE 6
MISCELLANEOUS
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Section 6.1. Lender's Authority. Lender hereby represents to Borrower that
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Lender has full power and lawful authority to execute this Agreement.
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Section 6.2. Captions. The captions and headings used in this Agreement are
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for convenience of reference only and do not in any way affect, limit, amplify
or modify the terms or provisions of this Agreement.
Section 6.3. Counterpart Execution. This Agreement may be executed in
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several counterparts, each of which shall constitute an original, but together
such counterparts shall constitute one and the same instrument.
Section 6.4. Survival. Each and every provision of this Agreement shall
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survive the execution hereof.
Section 6.5. Notices. All demands, notices, requests or other
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communications required or permitted hereby shall be in writing and shall be
deemed to be delivered when actually received by the relevant party at such
address as set forth below or at such other address as such party may have
specified to the other parties hereof by notice delivered and received by in
accordance with this section.
As to Lender: Yasawa Holding, N.V.
x/x Xxxx Xxxxx Xxxxxxxxxxx X.X., Xxxxxxxx
Xxxxx Xxxx Xxxxxx 0-0
XX Xxx 000
Xxxxxxxxxx, Xxxxxxx
Xxxxxxxxxxx Antilles
As to Borrower: The Deltona Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: President and Chief Operating Officer
Section 6.6. Successors and Assigns. This Agreement and any other documents
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executed in connection herewith shall inure to the benefit of and be binding
upon the parties hereto and their permitted legal; representatives, successors
and assigns.
Section 6.7. Time; Construction; Exhibits. Time is of the essence in each
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provision of this Agreement. All references to the singular or plural,
masculine, feminine or neuter gender shall, as the context requires, include all
others. All exhibits hereto are by this reference paid a part of this Agreement
for all purposes. All references to sections, paragraphs and exhibits are to
this Agreement unless otherwise specifically noted. The use of "hereof",
"hereunder", "herein" and words of similar import shall refer to this entire
Agreement and not to any particular section, paragraph or portion of this
Agreement unless otherwise specifically noted.
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Section 6.8. Applicable Law. This Agreement, including exhibits and
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schedules hereto, and any other Loan Documents shall be construed in accordance
with and governed by the laws of the State of Florida.
Section 6.9. Fees and Expenses. If any legal action, arbitration or other
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proceeding is commenced to enforce or interpret any provision of this Agreement,
the prevailing party shall be entitled to an award of its reasonable fees and
expenses, including, without limitation, attorneys' fees and disbursements
(including fees of paralegal and fees on appeal), expert witness fees, and
disbursements. The term "prevailing party" shall include a party who receives
substantially the relief desired, whether by settlement, dismissal, summary
judgement, judgment or otherwise.
Section 6.10. Severability. If for any reason any provision of this
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Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 6.11. Authority. Each individual executing this Agreement on behalf
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of any party to this Agreement represents and warrants that he or she is
authorized to enter into this Agreement on behalf of that party and that this
Agreement binds that party.
Section 6.12. Parties in Interest. Nothing in this Agreement is intended to
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confer any rights or remedies under or by reason of this Agreement on any person
other than the parties hereto and their respective permitted successors or
assigns, nor is anything in this Agreement intended to relieve or discharge any
obligation of any third party or any party hereto or to give any third party any
right to subrogation or action over or against any party of this Agreement.
Section 6.13. Restriction on Assignment. This Agreement nor any instrument
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relating to the remaining debt may be assigned to any party without the prior
written consent of the Borrower's Board of Directors.
Section 6.14. Lender's and Borrower's Costs. Lender shall pay the cost of
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all documentary stamps, intangible taxes and recording costs in connection with
the transactions contemplated under this Agreement. In addition, Lender shall
pay the costs and legal fees incurred by Lender or Lender's designee for
Lender's attorney for this transaction. Borrower shall pay the costs and legal
fees incurred by Borrower for Borrower's attorney for this transaction and the
transactions under the Asset Agreements.
Section 6.15. Credit Agreement. Except as specifically modified herein, the
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Credit Agreement shall remain in full force and effect and Borrower does hereby
re-affirm all terms and covenants of the Credit Agreement.
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Section 6.16. Contingencies. The obligations of Borrower and Lender and
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Lender's designees under this Agreement are expressly subject to receipt of the
written approval of the Division of Florida Land Sales, Condominiums and Mobile
Homes for the transactions evidenced by this Agreement; a release of the
Division's lien on The Deltona Corporation's receivables; and a release of the
mortgage held by the Division of Florida Land Sales, Condominiums and Mobile
Homes on certain real property owned by Borrower.
IN WITNESS WHEREBY, this Agreement was made and executed as of the date
first above written.
YASAWA HOLDING, N.V.
BY: /s/ X. Xx Xxxx
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X. Xx Xxxx for Zarf Trust Corporation N.V.,
Director
THE DELTONA CORPORATION
DLIC, INC.
DELTONA LAND & INVESTMENT CORP.
THREE SEASONS CORPORATION
DELTONA CONSTRUCTION COMPANY, INC
BY: /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxxx, Xx., President
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