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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[ X ] ANNUAL REPORT PURSUANT TO SECTION 13
OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended June 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION
13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from ___________ to __________
Commission file number: 0-28168
JJFN SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-3289981
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2500 Military Trail North
Suite 260
Boca Raton, FL 33631
(Address of principal executive offices)
(561) 995-0043
(Registrant's telephone number, including area code
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common, $.001 par
value
(Title of class)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject of such filing
requirements for the past 90 days.
Yes (X) No ( )
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of the Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
State the aggregate market value of the voting stock held by non-affiliates of
the Registrant. The aggregate market value shall be computed by reference to
the price at which the stock was sold, or the average bid and asked prices of
such stock, as of a specified date within 60 days prior to the date of filing.
$2,754,000 at July 21 , 1997
Indicate the number of shares outstanding of each of the Registrant's classes
of common stock, as of the latest practicable date. 16,811,990 shares as of
July 21, 1997.
List hereunder the following documents if incorporated by reference and the
Part of the Form 10-K (e.g., Part I, Part II, etc.) into which the document is
incorporated: (1) Any annual report to security holders; (2) Any proxy or
information statement; and (3) Any prospectus filed pursuant to Rule 424(b) or
(c) under the Securities Act of 1933. The listed documents should be clearly
described for identification purposes (e.g., annual report to security holders
for fiscal year ended June 30, 1997).
None
PART I
ITEM 1. BUSINESS
GENERAL
JJFN Services, Inc. (the "Company" or "JJFN"), a Delaware Corporation was
organized in November 1995. The Companies principal operations consist of
(i) the Model home sale-leaseback program, and (ii) the Land Acquisition and
Contract Development Program, both of which are currently marketed exclusively
to national publicly traded homebuilders and real estate developers.
Model Home Sale-Leaseback Program
The Company purchases fully furnished model homes complete with options and
upgrades and leases back the units to homebuilders on a "triple net" basis.
The leases are "perpetual" providing for payment of rentals without abatement
or offset until the model is sold, typically within 18-24 months of lease
commencement. In order to insure the performance under the lease, the lessee
posts a performance bond, letter of credit, or cash escrow, equal to 5% of
JJFN's cash closing purchase price of the model home.
A 'net listing' contract is signed with the builders or a designated real
estate broker. Upon sale of the model home, JJFN receives all proceeds up to
the amount of their original purchase price plus cash closing costs. In order
to maximize the ultimate sales price, the real estate broker is paid an
incentive commission if the sales price after selling costs exceeds the
original investment. JJFN will not agree to sell any model home below its
original cash closing purchase price unless the homebuilder elects to make up
the deficiency.
To date the Company has purchased model homes from six developers, all of whom
are large publicly held corporations. Two of these developers, Hovnanian
Enterprises, Inc. and Engle Homes, Inc., account for 80% of the entire
sale-leaseback contracts entered into by the Company since its inception. For
information on the financial condition of these two developer clients, see
Note 5 to the consolidated Financial Statements at page F-15.
Since inception in November 1995 through June 30, 1997, the Company has
purchased a total of 136 model homes at a cost of $26,349,000, and sold 26
homes costing $4,940,000, leaving a current model home portfolio at June 30,
1997 of 110 model homes at a cost of $21,409,000. The average purchase price
per model home acquired has been approximately $194,000, and the average
profit on sale of the 26 homes sold to date has been $3,363.
At June 30, 1997, the Company was negotiating two agreements with existing
homebuilder clients to acquire additional model homes. One agreement involves
the acquisition of 71 model homes in New Jersey and Pennsylvania at a cost of
approximately $15 million. The other agreement involves the acquisition of
four model homes in Colorado at a cost of approximately $900,000. During July
1997, closings took place on the four model homes in Colorado from Engle
Homes, Inc. and ten model homes from Hovnanian Enterprises, Inc. in
Pennsylvania, at an aggregate cost of approximately $3.1 million.
At June 30, 1997, the Company has sales contracts pending on nine model homes
at an aggregate sales price of $1,416,216. The model homes were acquired at
an aggregate cost of $1,398,305.
The following chart outlines the unit totals of model home purchases and sales
by geographic region:
# of Models # of Models Current Model
State Purchased Sold Inventory
- ----------------- ----------- ----------- -------------
Colorado 18 2 16
Florida 99 19 80
Georgia 5 5 0
North Carolina 3 0 3
Texas 5 0 5
Virginia 6 0 6
----------- ----------- -------------
Total 136 26 110
=========== =========== =============
The following chart outlines the total costs of model home purchases and sales
by geographic region:
Cost of Models Cost of Models Current Model
State Purchased Sold Inventory
- ----------------- ------------ ------------ -------------
Colorado $ 3,799,000 $ 422,000 $ 3,377,000
Florida 17,830,000 2,941,000 14,889,000
Georgia 1,577,000 1,577,000 -
North Carolina 737,000 - 737,000
Texas 910,000 - 910,000
Virginia 1,496,000 - 1,496,000
------------ ------------ -------------
Total $26,349,000 $ 4,940,000 $ 21,409,000
============ ============ =============
Land Acquisition and Contract Development Program
The Company's land acquisition and contract development program is a three
phase transaction requiring simultaneous execution of the following contracts
between JJFN and client homebuilders; (i) Land Acquisition Contract, (ii)
Development Agreement, and (iii) "Option To Purchase" Contract.
The following is a summary of each contract:
(i) Land Acquisition Contract
* Builder identifies a parcel of property for purchase by JJFN.
* Builder posts a performance (Financial Guaranty) Bond equal to 20% of the
outstanding balance which insures against default and is adjusted for
purchases required by "Option To Purchase" Contract.
* Builder is responsible for all permitting, entitlements, site development,
and approvals required by various authorities, which must be in place prior
to closing.
(ii) Development Agreement
* Simultaneous with the land acquisition, the builder enters into a
development agreement, whereby the builder will develop the land for JJFN.
Site development costs may or may not be provided by JJFN depending on the
builder requirements.
* Builder is required to provide bonding for all work by a surety acceptable
to JJFN.
(iii) "Option To Purchase" Contract
* Simultaneous with the land acquisition, the builder enters into an "Option
To Purchase" Contract, whereby the builder is required to purchase a
predetermined dollar amount of finished lots on a monthly or quarterly basis,
starting immediately but no later than 180 days from the contract date.
JJFN recovers it's investment plus "option fees" over a 36-42 month period
of time.
The homebuilder is required to pay JJFN a monthly option fee on the purchase
price of the land and any advances for site development work. The option fee
rate is determined on a contract by contract basis.
As of June 30, 1997, the Company had one outstanding land acquisition and
development contract with Engle Homes, Inc. The transaction involved the
purchase of 70 acres in western Boca Raton to be subdivided into 370 lots for
the development of single family estate homes, zero lot single family homes,
townhouses, and villas. See Note 5 to the Company's Consolidated Financial
Statements for information relating to option exercise in July 1997.
During June 1997, the Company was advised by the homebuilder that it was
electing to fully exercise its option to purchase the approximate 70-acre
tract of land being developed for 370 residential units and terminate the
development agreement. The homebuilder exercised the option on July 3, 1997,
and purchased the property for the sum of $8,591,956.
The Company has executed a letter of intent with a major publicly-traded
homebuilder and real estate developer to acquire 4-5 tracts of land having a
fully-developed cost of approximately $112,000,000, of which the maximum amount
outstanding at any point in time is anticipated to be $75,000,000 to
$85,000,000. The agreement provides for a monthly parcel takedown schedule of
finished lots at minimum dollar amounts over a period not to exceed 36 months.
The closing is subject to completion of due diligence, securing a financing
commitment and formal documentation among other events.
Competition and Market Factors
The Company's business is highly competitive. It competes with REITs or their
subsidiaries, banks, financial subsidiaries of industrial companies, insurance
companies, major investment banking firms, and/or their subsidiaries, and
other financial institutions competing to do business with or provide services
to national homebuilders and real estate developers. Almost all competitors
have substantially greater financial strength and far longer operating
histories than the Company, and these resources make them formidable
competitors to the Company in its attempt to attract capital and clients.
The home-building industry in general is cyclical, with demand fluctuating
with general economic conditions such as recessionary forces, availability of
financing, interest rate levels and consumer confidence. In addition to the
numerous economic factors affecting housing demand, a variety of other factors
affect the housing industry, including the availability of labor and materials
and increases in the costs thereof, changes in costs associated with home
ownership (such as increases in property taxes and energy costs), changes in
consumer preferences, demographic trends, and government regulations and fees.
Divested Operations
For information on divested operations, see Note 12 to the Company's
Consolidated Financial Statements of pages F-22 and F-23.
Employees
At July 31, 1997, the Company employed 7 persons, including sales and marketing,
executive, and administrative personnel.
Item 2. Properties
The Company's corporate office is located at 2500 Military Trail North, Suite
260, Boca Raton, Florida 33431, where the Company leases 2,798 square feet of
office space for a term expiring January 2002.
ITEM 3. LEGAL PROCEEDINGS
The Company is a Plaintiff in a legal proceeding against Susan Schlapkohl, the
Company's former President, for a violation of her restrictive covenant
contained in paragraphs 12 and 14 of her employment agreement with the
Company. The suit was commenced on May 21, 1997 in the Circuit Court for Palm
Beach County, Florida, index number CC-97-4525 AH. In her answer to the
Corporation's Complaint and Motion for Preliminary Injunction, Ms. Schlapkohl
asserted the following counterclaims; (i) breach of contract relating to
misrepresentations and omissions of facts inducing her to enter into an
employment contract, and (ii) misrepresentations and omissions relating to her
purchase of 1,000,000 shares of the Company's common stock. The Company is
vigorously defending the counterclaim. Management believes, after
consultation with legal counsel, that Ms. Schlapkohl's counterclaim is without
merit, but that even if she were successful, it would not have a material
adverse effect on the business, financial position or results of the
operations of the Company.
The Company knows of no other material litigation or claims pending,
threatened, or contemplated to which the Company is or may become a party.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
NONE
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Common Stock of the Registrant has been quoted on the OTC Bulletin Board
under the symbol "JJFN" since May 15, 1996. The following table sets forth,
for the periods indicated, the high and low closing sales price for the Common
Stock, as reported on the OTC Bulletin Board. As of July 15, 1997 there were
over 1,000 shareholders of which approximately 515 were shareholders of
record. The closing price of the Company's Common Stock as reported on the
OTC Bulletin Board on July 21, 1997, was $.375.
Year Ended June 30,
----------------------------
1997 1996
----------------------------
High Low High Low
----------------------------
First Quarter 7.37 1.00 (Not trading)
Second Quarter 5.28 0.25 3.50 0.50
Third Quarter 2.90 0.68 6.00 0.68
Fourth Quarter 1.00 0.26 8.12 5.00
----------------------------
The Company has paid no cash dividends on its Common Stock and does not
anticipate paying any in the foreseeable future. It intends to continue its
present policy of retaining cash flow from the investment in the Registrant's
operations.
The Company paid regular quarterly distributions on the Preferred Stock of
$15,000 in February, May, and July 1996. Through June 30, 1996, $10,000 was
accrued as a preferred distribution payable. All distributions paid and
accrued have been made out of additional paid-in capital due to the lack of
available retained earnings. No dividends have been declared or paid since
July 1996.
ITEM 6. SELECTED FINANCIAL DATA
The selected financial data presented below for the year ended June 30, 1997
and the eight month period from the Registrant's inception (November 2, 1995)
through June 30, 1996 have been derived from the Registrant's audited
consolidated financial statements. This data should be read in conjunction
with "Management's Discussion and Analysis of Financial Condition and Results
of Operations" and the consolidated financial statements and related notes
thereto included elsewhere in this Report.
SELECTED FINANCIAL DATA
Income Statement Data:
Inception
November 2, 1995
Year Ended through
June 30, 1997 June 30, 1996
------------- -------------
Revenues $ 7,524,938 $ 965,168
Expenses 7,167,567 1,002,881
------------- -------------
Income(loss) from continuing operations
before depreciation and amortization 357,371 (37,713)
Depreciation and amortization 707,345 124,682
------------- -------------
Loss from continuing operations
before income tax benefit (349,974) (162,395)
Income tax benefit 77,000 -
------------- -------------
Loss from continuing operations (272,974) (162,395)
Discontinued operations, net of taxes
Loss from discontinued operations (54,444) (22,558)
Gain on disposal of discontinued operations 284,876 -
------------- -------------
230,432 (22,558)
------------- -------------
Net loss (42,542) (184,953)
Preferred stock distributions 5,000 40,000
------------- -------------
Loss applicable to common shareholders $ (47,542) $ (224,953)
============= =============
Earnings (loss) per share data:
Continuing operations $ (0.01) $ (0.02)
Divested operations 0.01 -
------------- -------------
Net loss per share $ 0.00 $ (0.02)
============= =============
Weighted average number
of common shares outstanding 16,551,091 10,801,114
Balance Sheet Data:
June 30, 1997 June 30, 1996
------------- -------------
Total assets $ 32,430,295 $ 14,727,388
Mortgages and notes payable 23,658,372 6,477,271
Other liabilities 682,557 191,875
Stockholders' equity 8,089,366 8,058,242
SELECTED FINANCIAL DATA - PREDECESSOR
The following table sets forth selected financial data for the Company's
predecessor, JJFN Holdings, Inc., and should be read in conjunction with the
financial statements included elsewhere in this Form 10-K.
Income Statement Data:
Year Ended
----------------------------
June 30, June 30, June 30,
1995 1994 1993
-------- -------- --------
Revenues $ - $ - $ -
Corporate costs 25,700 26,800 2,000
Interest and financing 42,750 42,750 42,750
costs
Income (loss) before income
taxes, extraordinary loss
and cumulative effect of
change in accounting for
income taxes (68,450) (69,550) (44,750)
-------- -------- --------
Net loss (68,450) (69,550) (44,750)
======== ======== ========
Loss per common share:
-------- -------- --------
Net loss (0.50) (0.51) (0.33)
======== ======== ========
Weighted average number
of common shares outstanding 136,896 136,896 136,896
Balance Sheet Data:
----------------------------
June 30, June 30, June 30,
1995 1994 1993
-------- -------- --------
Total assets $ - $ - $ -
Current liabilities 378,108 309,658 240,108
Stockholders' equity (378,108) (309,658) (240,108)
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Overview
A summary of the operating results of JJFN Services, Inc. and subsidiary for
the fiscal year ended June 30, 1997, and inception (November 2, 1995) through
June 30, 1996 are presented below:
Inception
Year November 2, 1995
Ended through
June 30 June 30
1997 % 1996 %
-----------------------------------
Revenues:
Lease revenue & option fees $2,892,657 39% $418,507 43%
Model home sales 4,528,600 60% 515,000 53%
Interest income 103,681 1% 5,411 1%
Gain on sale of marketable securities - -% 26,250 3%
-----------------------------------
Total revenues 7,524,938 100% 965,168 100%
Costs and expenses:
Interest expense 1,660,803 22% 249,038 26%
Cost of model homes sold 4,448,915 59% 507,244 53%
Corporate 1,057,849 14% 246,599 26%
-----------------------------------
Total costs and expenses 7,167,567 95% 1,002,881 104%
-----------------------------------
Income from continuing operations
before depreciation & amortization 357,371 5% (37,713) (4%)
Depreciation & amortization 707,345 9% 124,682 13%
-----------------------------------
Loss from continuing operations
before income tax benefit (349,974) (4%) (162,395) (17%)
Income tax benefit 77,000 1% - -
-----------------------------------
Loss from continuing operations (272,974) (3%) (162,395) (17%)
Discontinued operations, net of taxes:
Loss from discontinued operations (54,444) (1%) (22,558) (2%)
Gain on disposal of discontinued
operations 284,876 4% - -
-----------------------------------
230,432 3% (22,558) (2%)
-----------------------------------
Net loss (42,542) (1%) (184,953) (19%)
===================================
Note: The operating results for inception (November 2, 1995) through June 30,
1996 has been reclassified to give effect to the divested operations of
Iron Eagle Contracting and Mechanical, Inc.
Results of Operations
Year Ended June 30, 1997 Compared to inception (November 2, 1995) through
June 30, 1996.
The Company's lease and option fee revenues during fiscal 1997 increased $2.5
million (or 591%) compared to the period from inception through June 30, 1996.
On an annualized basis for fiscal 1996, this would represent an increase of
361%. The increase is attributable to additional acquisitions of model homes
on lease during fiscal 1997, and option fee revenues from the land acquisition
program started in the first quarter of fiscal 1997.
Revenues from the sale of model homes increased $4.0 million (or 780%) compared
to the period from inception through June 30, 1996. On an annualized basis for
fiscal 1996, this would represent an increase of 486%. The increase is
attributable to the maturity of the model home portfolio with the expected
turnover of the homes in the 18-24 month range.
Interest expense related to lease and option fee revenues increased
approximately $1.4 million (or 567%) compared to the period from inception
through June 30, 1996, primarily due to the increase in loans utilized to
purchase additional model homes and assets relating to the Company's land
acquisition and contract development program. Cost of interest expense as a
percentage of lease and option fee revenues is consistent with fiscal 1996.
Cost of model homes sold increased $3.9 million (or 777%) compared to the
period from inception through June 30, 1996, primarily due to the related
increase in model home sales revenue. Cost of model home sales as a
percentage of model home sale revenues is consistent with fiscal 1996.
The Company's selling, marketing, general & administrative expenses increased
$811,000 (or 329%) during fiscal year 1997 as compared to the period from
inception through June 30, 1996. On an annualized basis for fiscal 1996, this
would represent an increase of 186%. This increase was attributable to the
hiring of additional personnel and the selling, general and administrative
costs associated with generating the increased revenue levels. Corporate
costs as a percentage of revenues decreased 12% from 26% for the eight months
ended June 30, 1996 to 14% for fiscal 1997.
Net loss for the period was $42,542 of which $272,974 was incurred in the
Company's continuing operations, $54,444 from discontinued operations, offset
by a gain of $284,876 on disposal of discontinued operations.
The net loss of $42,542 was a decrease of $142,411 (or 335%) as compared to
the net loss of $184,953 for the period from inception through June 30, 1996.
The decrease in net loss was attributable to the gain on disposal of
discontinued operations and increased operations.
Results of Operations - Company 1996 compared to Predecessor 1995
Year Ended June 30, 1996 Compared to Predecessor's Year Ended June 30, 1995.
For the period from its inception on November 2, 1995 through June 30, 1996,
the Registrant had real estate related revenues of $933,507 of which lease
rentals on model homes totaled $418,507, and revenues from the sale of model
homes were $515,000. The Company's predecessor, JJFN Holdings, Inc. ("Old
JJFN"), had no revenues for the year ended June 30, 1995.
Cost of model home sales as a percentage of model home sale revenues was 98%.
The Company's predecessor, JJFN Holdings, Inc., had no cost of revenues for the
year ended June 30, 1995.
The Company's selling, marketing, general & administrative expenses increased
$240,000 (or 351%) during fiscal year 1996 as compared to fiscal 1995, due
primarily to the predecessor's limited operations for fiscal year 1995.
Net loss for the period was $184,953 of which $151,820 was incurred in the
Company's operating activities, $22,558 by Iron Eagle Contracting and
Mechanical, Inc., and $10,575 from costs incurred by Old JJFN.
The net loss of $184,953 was an increase of $116,503 (or 170%) as compared to
fiscal 1995.
Geographic Lease Revenue Summary
A breakdown of lease rental revenues by location is as follows:
Lease revenues Lease revenues
11/2/95 7/1/96 Percentage
State through 6/30/96 through 6/30/97 Increase
- ----------- --------------- ---------------- ----------
Florida $ 305,901 $ 1,290,731 322%
Colorado $ 62,664 $ 419,228 569%
Virginia $ 19,423 $ 160,386 726%
North Carolina $ 23,317 $ 88,475 279%
Texas $ 7,202 $ 60,293 737%
Georgia $ - $ 49,337 N/A
- ----------- ---------- ------------ -------
Total $ 418,507 $ 2,068,450 394%
=========== ============ =======
The average purchase price of model homes acquired by the Registrant was
approximately $194,000. Since inception, the Company has sold twenty-six (26)
model homes for total sales price of $5,043,600 less costs of sales of
$4,956,159 for a net gain of $87,441.
Trends in Operations
The Registrant's operations have been and continue to accelerate at a rapid
rate. For the fiscal year ended June 30, 1997, total purchases of model homes
involved over $13.0 million in financing, and land acquisitions involved over
$6.8 million in financing. At June 30, 1997, the Registrant's lease rental
and option fee revenues had risen to a level of over $312,000 per month, as
compared to $113,000 per month at June 30, 1996, an increase of 176%.
Liquidity and Capital Resources
The Company's cash uses during the twelve months ended June 30, 1997, were for
operating expenses, interest, model home acquisitions, and land acquisitions.
The Company provided for its cash requirements from outside borrowing, various
credit facilities, asset turnover, and cash flow from operations. The Company
believes that these sources of cash are sufficient to finance its working
capital requirements and other needs.
The Company's bank borrowings are made pursuant to agreements with several
financial institutions which have provided credit facilities in excess of
$28,000,000 since the Company's inception. At June 30, 1997, the Company had
$3,350,000 available under a revolving credit facility expiring in July 1998.
Interest is payable monthly at rates ranging from prime plus 1/2% to prime
plus 1% or LIBOR plus 2.85%. The Company believes that it will be able to
extend current facilities, or negotiate additional facilities, but there can
be no assurance of such extensions or additional facilities. For additional
information on the Company's borrowings and financing activities, see Notes 6
and 11 to the Company's Consolidated Financial Statements and Business Section.
Cash Flows:
The Company has experienced positive cash flows during fiscal 1997. This is
the result of positive cash flows from investing and operating activities,
offset by negative cash flows from financing activities.
Net cash provided in operating activities totaled $666,000, comprised of a net
loss of $43,000, plus net adjustments for non-cash items of $449,000, plus
a net change in other operating assets and liabilities of $260,000.
Net cash provided by investing activities totaled $226,000, comprised of
$4,458,000 from the sale of model homes, and $239,000 from the sale of
marketable securities, offset by $4,443,000 in model home purchases and
$28,000 in capital expenditures.
Net cash used in financing activities totaled $832,000, comprised of principal
payments on mortgages payable of $3,846,000, deferred costs of $254,000, and
preferred stock distributions of $15,000, offset by proceeds from mortgages
payable of $1,578,000, proceeds from stockholder loans of $1,705,000, and
proceeds from issuance of common stock of $1,000.
Forward Looking Statements
This report contains certain forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") concerning
the Company's operations, economic performance and financial conditions,
including, in particular, the likelihood of the Company's success in
developing and bringing to market the products which it currently has under
development. These statements are based upon a number of assumptions and
estimates which are inherently subject to significant uncertainties, and
contingencies, many of which are beyond the control of the Company and
reflect future business decisions which are subject to change. Some of
these assumptions inevitably will not materialize, and unanticipated events
will occur which will affect the Company's results. Consequently, actual
results will vary from the statements contained herein and such variance may
be material. Prospective investors should not place undue reliance on this
information.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY SCHEDULES
See page F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
NONE
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Executive Officers and Directors
The executive officers and directors of the Registrant are:
Name Age Position
- ---------------- --- ------------------------------------
David Miller 52 Chairman of the Board
Samuel G. Weiss 46 President, Secretary, Counsel
and Director
Gary L. Carlson 46 Executive Vice President
Don B. Lederman 46 Vice President, Sales & Marketing
John P. Kushay 37 Vice President, Chief Financial Officer,
Treasurer and Director
Joan E. Kushay 36 Vice President, Assistant Secretary
and Director
Janice Rufo 26 Assistant Secretary and Director
Ralph Wilson 66 Director
Kenneth MacKenzie 63 Director
All directors will hold office until the next annual meeting of shareholders
and until their successors have been elected and qualified. Officers of the
Registrant are elected and serve until their death, resignation or removal by
the directors. There are no family relationships among the officers and
directors, other than the fact that John Kushay and Joan Kushay are husband
and wife, and there is no arrangement or understanding between the Registrant
(or any of its directors) and any other person pursuant to which that person
was or is to be selected as a director or officer.
David Miller, was appointed Chairman of the Board on July 29, 1997. Mr.
Miller has been engaged as a strategic consultant to the Company since its
organization. Prior to his consulting engagement, Mr. Miller had been a
strategic consultant to several companies, including Antares Resources
Corporation, since 1992.
Samuel G. Weiss, Secretary, General Counsel and Director, has held these
positions with the Company since its organization. Effective May 1997, Mr.
Weiss was appointed interim President and Chief Executive Officer until such
time a replacement can be found. Since 1974, Mr. Weiss has been engaged in
the practice of law in Port Washington, New York. Mr. Weiss also served as
Secretary, General Counsel, and Director of Antares Resources from June 1993
to December 1996.
Gary L. Carlson, was appointed Executive Vice President in June 1997. Prior to
joining the Company, Mr. Carlson had been Senior Vice President, Strategic
Operations, at Avatar Properties, Inc. since April 1995. From June 1994 to
April 1995, he was self employed as a consultant to builders for the purchase
and land banking of major tract builders. From February 1990 to June 1994, Mr.
Carlson held executive positions at UDC Homes, Inc., a major public
homebuilder.
Don B. Lederman, was appointed Vice President, Sales & Marketing in November
1996. Prior to joining the Company, Mr. Lederman had been Director - Sales &
Marketing, at K. Hovnanian Companies of Florida, since July 1993. From
September 1988 to July 1993, he was Project Manager at Kennedy Properties, Ltd.
John P. Kushay, was appointed Treasurer and CFO in June 1996. Mr. Kushay was
elected a Director of the Company in June 1996. In May 1997, Mr. Kushay was
appointed Vice President. Prior to joining the Company, Mr. Kushay had been
Controller of International Operations, at Xpedite Systems, Inc., from
February 1994 through March 1996. From May 1990 to February 1994, he was
Controller at Tamco Systems, Inc.
Joan E. Kushay, Assistant Secretary and Director, has held these positions
since the Company's organization. From June 1994 to November 1995, she was
employed as an executive assistant at XYZ Cleaning Contractors in Garden City,
New York. From February 1994 through June 1994, Ms. Kushay was employed by
Arrow Electronics Inc. of Melville, New York in shareholder and investor
relations and, from July 1988 to January 1994, by Action Staffing Inc., a
publicly held corporation located in Tampa, Florida, as Executive Assistant to
the Chairman. Ms. Kushay was also Assistant Secretary and Director of Antares
Resources from December 1994 to December 1996.
Janice Rufo, Director, has held that position since the Company's
organization. Since June 1994, she has been an executive assistant at
Intercapital Holdings, Inc., a financial consulting and merchant banking firm
in Garden City, New York. Prior to that date, she was a full-time student at
Adelphi University, from which she graduated in 1994 with a B.A. Degree in
History. Ms. Rufo devotes only such time as is necessary to the business of
the Company.
Ralph Wilson, Director, has held that position since the Company's
organization. From October 1990 through February 1995, Mr. Wilson was
President of Antares Resources Corporation and served as a director of that
company from December 1994 to December 1996. In addition, since 1971 Mr.
Wilson has been a principal officer of Comet Electronics Corp., A privately
owned manufacturer of subassemblies in Farmingdale, New York. Mr. Wilson
devotes only such time as is necessary to the business of the Company.
Kenneth MacKenzie, was elected a Director of the Company in November 1996.
From 1985 to 1996, Mr. MacKenzie served as co-executive director of The
Institute of Business Appraisers Inc. and President of Southeast Business
Investment Corp. of Boynton Beach, Florida. In January 1997, Mr. MacKenzie
co-founded Southeast Business Appraisal Corporation which specializes
in appraisals and valuations of businesses. Mr. MacKenzie devotes only such
time as is necessary to the business of the Company.
The Company considers Kenneth MacKenzie, Ralph Wilson and Janice Rufo to be
independent directors, as they are not employees and have no affiliation with
the promoters, officers or directors of the Company.
Reporting under Section 16
Based upon a review of the Forms 3, Forms 4 and Forms 5 furnished to the
Registrant with respect to its most recent fiscal year by its officers,
directors and holders of 10% or more of its outstanding Common Stock, the
following persons and entities failed to file on a timely basis reports
required by Section 16(a) of the Exchange Act during the fiscal year ended
June 30, 1997:
Name Type of Report Date filing Date filing
Required Made
Samuel G. Weiss Form 4 November 10, 1996 June 26, 1997
Samuel G. Weiss Form 4 June 10, 1997 June 26, 1997
John P. Kushay Form 4 November 10, 1996 June 26, 1997
John P. Kushay Form 4 June 10, 1997 June 26, 1997
Joan E. Kushay Form 4 November 10, 1996 June 26, 1997
Joan E. Kushay Form 4 June 10, 1997 June 26, 1997
Janice Rufo Form 4 November 10, 1996 June 26, 1997
Janice Rufo Form 4 June 10, 1997 June 26, 1997
Ralph Wilson Form 4 November 10, 1996 June 26, 1997
Ralph Wilson Form 4 June 10, 1997 June 26, 1997
Kenneth MacKenzie Form 3 February 10, 1997 June 26, 1997
Kenneth MacKenzie Form 4 June 10, 1997 June 26, 1997
Don Lederman Form 3 December 10, 1996 June 26, 1997
Don Lederman Form 4 June 10, 1997 June 26, 1997
Note: The Form 4 Report relates to the issuance of stock options. See Note 8
to the Company's Consolidated Financial Statements.
ITEM 11. EXECUTIVE COMPENSATION
Through June 30, 1997, compensation to current employees, consultants,
directors or officers of the Company were paid as follows:
David Miller $ 189,000 (1)
Susan Schlapkohl $ 107,908 (2)
(1) Does not include 300,000 stock options granted in October 1996 and May
1997. See Note 8 for additional information.
(2) Does not include 100,000 stock options granted in October 1996 and
subsequently canceled. See ITEM 3 - LEGAL PROCEEDINGS.
Samuel G. Weiss, the Company's acting Chief Executive Officer was granted
75,000 stock options in October 1996 and May 1997.
The Registrant reimbursed all employees, consultants, officers and directors
for out-of-pocket expenses incurred in the pursuit of their duties; such
reimbursements were $87,892 in the aggregate through June 30, 1997.
Effective June 1, 1996, the Company entered into an employment contract with
Ms. Schlapkohl calling for her employment as President for a period of five
(5) years at a salary of $120,000 per year. On the same date, the Company
signed a consulting contract with Mr. Miller, calling for his part-time
services as strategic consultant, at an annual fee of $180,000. On May 2,
1997, Ms. Schlapkohl terminated her employment with the Company. Thereafter,
the Company elected Mr. Miller as its Chairman of the Board of Directors and
replaced his consulting contract with an employment contract calling for his
full-time employment for ten (10) years at a salary of $225,000 per year.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information with respect to the
beneficial ownership of the Company's Common Stock as of July 21, 1997, for
(i) each director, (ii) all directors and officers of the Company as a group,
(iii) each person known to the Company to own beneficially five percent (5%)
or more of the outstanding shares of the Company's Common Stock.
The persons named in the table have sole voting and investment power with
respect to all of the Common Stock shown as beneficially owned by them, subject
to community property laws where applicable.
Does not include options to purchase Common Stock which can not be exercised
within 60 days. See Note 8 of the Company's Consolidated Financial Statements.
Executive Officers and Directors Shares Owned Percentage Owned
- ------------------------------------- -------------- ----------------
David Miller 1,465,868 8.7%
3565 NW 61st Circle
Boca Raton, FL 33496
Samuel G. Weiss 154,165 0.9%
30 Main Street
Port Washington, NY 11050
Joan E. Kushay 154,200 0.9%
618 Cypress Green Circle
Wellington, FL 33414
Ralph Wilson 157,500 0.9%
7 Ensign Lane
Massapequa, NY 11758
Janice Rufo 100,000 0.6%
30 Hillvale Road
Albertson, NY 11507
-------------- ----------------
All directors and officers as a group 2,031,733 12.1%
-------------- ----------------
5% Stockholders Shares Owned Percentage Owned
- ------------------------------------- -------------- ----------------
Helen Miller 1,418,500 8.4%
240-60 65th Avenue
Douglaston, NY 11362
Scott Miller 1,333,500 7.9%
89 Middle Road
Sands Point, NY 11050
Rita Miller 1,333,500 7.9%
89 Middle Road
Sands Point, NY 11050
Helen Miller Irrevocable 1,250,000 7.4%
Trust No.1, Libo Fineberg, Trustee
3500 Gateway Drive
Pompano Beach, FL 33069
Lite 'N Low, Inc. 1,050,000 6.2%
50 Commercial Street
Plainview, NY 11803
Priority Capital 1,050,000 6.2%
50 Commercial Street
Plainview, NY 11803
Intercapital Holdings, Inc. 1,000,000 5.9%
100 Quentin Roosevelt Blvd.-Suite 202
Garden City, NY 11530
Susan Schlapkohl 1,000,000 5.9%
199 Shelter Lane
Jupiter, FL 33469
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
During July 1996, the Company entered into an indemnity agreement with a
significant shareholder, which induced JJFN not to sell its shares in Antares.
The shareholder agreed that if JJFN, in the future, sold any shares at a
price less than the market value of the shares at their date of acquisition
($2.50 per share), the shareholder would contribute additional shares of
Antares common stock, or other property, having a fair market value equal to
such difference.
During September 1996, JJFN sold 485,000 shares of Antares, which were
acquired at a cost of $1,212,500, for $218,250, and in October 1996 sold
100,000 shares of Antares, which were acquired at a cost of $250,000, for
$21,000. Since the shareholder agreed to indemnify JJFN if the marketable
securities were sold at less than cost, no loss was recorded on the sale. The
deficiency of $1,223,250 was satisfied by offsetting $1,223,250 of loans due
to the shareholder.
The transaction is summarized as follows:
Original cost $1,462,500
Sale price (239,250)
-----------
Deficiency satisfied by offsetting loans due to shareholder $1,223,250
===========
Stockholder loans payable arose from advances various stockholders have made
to the Company. The notes are payable on demand and accrue interest at 9%.
Interest on stockholder notes payable totaled $33,815 for the year ended June
30, 1997, and $82,109 for the period November 2, 1995 through June 30, 1996.
On June 30, 1996, stockholder loans totaling $1,442,656 plus accrued interest
of $103,265 were converted to 1,288,268 shares of the Company's common stock.
At June 30, 1997, stockholder loans of $1,025,907 were still outstanding.
During the year ended June 30, 1997, the Company issued a total of 1,026,000
warrants to stockholders who had made loans to the Company. The warrants are
exercisable at the fair value of the stock on the date the warrant was issued.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) Financial Statements
Item Page Number
Index to consolidated financial statements F-1
Independent Auditors' Report F-2
Consolidated balance sheets as of June 30, 1997 and 1996 F-3 - F-4
Consolidated statements of operations for the year ended
June 30, 1997 and for the period November 2, 1995
(date of incorporation) through June 30, 1996 F-5
Consolidated statements of stockholders' equity for the year ended
June 30, 1997 and for the period November 2, 1995
(date of incorporation) through June 30, 1996 F-6
Consolidated statements of cash flows for the year ended
June 30, 1997 and for the period November 2, 1995
(date of incorporation) through June 30, 1996 F-7
Notes to consolidated financial statements F-8 - F-23
Other schedules are either not applicable to the Registrant or have been
omitted because the required information is included in the financial
statements or notes thereto.
(b) Reports on Form 8-K
No reports on Form 8-K were filed in the fourth quarter of the fiscal year
ended June 30, 1997.
(c) Exhibits
(a) Exhibits
Incorporated by
Reference to Registration
Exhibit No. Statement 333-1842 Description
- ----------- ------------------------- -----------------------------------
2.1 X Merger Agreement between
the Company, JJFN Inc. and
Priority Financial, Inc. dated
December 29, 1995
3.1 X Company Certificate of
Incorporation, as amended
to date
3.2 X Company By-laws, as amended
to date
10.1 X Subscription Agreement between
JJFN and Tarlton Company Ltd.
10.2 X Consulting Agreement between
JJFN and Tarlton Company Ltd.
dated December 8, 1995
10.3 X Loan Agreement, Promissory Note and
Mortgage of the Company to Capital
Bank dated January 24, 1996
10.4 X Form of Sale and Lease-Back
Agreements between the Company and
K. Hovnanian Company of Florida, Inc.
10.6 X Purchase Agreement, Loan Agreement
and Consulting Agreements among JJFN
and Iron Eagle Contracting Corp.,
VJS International Holdings. and
Priority Capital Corp.
10.7 X Agreement reforming the
Purchase Agreement
between JJFN and Iron
Eagle Contracting Corp.
10.8 X Form of Purchase Agreement, Lease and
and Exclusive Sale Agreement between
the Company and Engle Homes Inc.
10.9 Purchase Contract, Option Contract
and Development Contract with Engle
Homes, dated September 18, 1996.
10.10 Loan Agreement with Capital Bank
dated September 18, 1996.
10.11 Loan Agreement with Capital Bank
dated July 31, 1996.
10.12 Employment Contract with David
Miller dated as of July 29, 1997.
10.13 Incentive Stock Plan of the Company.
11.1 Statement regarding computation of
per share earnings.
21.1 List of Company subsidiaries.
(d) Financial Schedules
None applicable.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
JJFN SERVICES, INC.
By: /s/Samuel G. Weiss ____________________
Samuel G. Weiss, President, Chief Executive Officer
By: _/s/John P. Kushay ____________________
John P. Kushay, Treasurer,
Chief Financial Officer and
Chief Accounting Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
/s/David Miller _________________________ Dated: August 7, 1997
David Miller, Director
/s/Samuel G. Weiss ______________________ Dated: August 7, 1997
Samuel G. Weiss, Director
/s/Joan E. Kushay _______________________ Dated: August 7, 1997
Joan E. Kushay, Director
/s/John P. Kushay _______________________ Dated: August 7, 1997
John P. Kushay, Director
/s/Janice Rufo __________________________ Dated: August 7, 1997
Janice Rufo, Director
/s/Ralph Wilson _________________________ Dated: August 7, 1997
Ralph Wilson, Director
/s/Kenneth MacKenzie ____________________ Dated: August 7, 1997
Kenneth MacKenzie, Director
JJFN SERVICES, INC.
AND SUBSIDIARY
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Page
Independent Auditors' Report F-2
Consolidated balance sheets as of June 30, 1997 and 1996 F-3 - F-4
Consolidated statements of operations for the year ended
June 30, 1997 and for the period November 2, 1995
(date of incorporation) through June 30, 1996 F-5
Consolidated statements of stockholders' equity for the year ended
June 30, 1997 and for the period November 2, 1995
(date of incorporation) through June 30, 1996 F-6
Consolidated statements of cash flows for the year ended
June 30, 1997 and for the period November 2, 1995
(date of incorporation) through June 30, 1996 F-7
Notes to consolidated financial statements F-8 - F-23
F-1
INDEPENDENT AUDITORS' REPORT
The Board of Directors
JJFN Services, Inc. and subsidiary
Garden City, New York
We have audited the accompanying consolidated balance sheets of JJFN Services,
Inc. and subsidiary as of June 30, 1997 and 1996, and the related consolidated
statements of operations, stockholders' equity, and cash flows for the year
ended June 30, 1997, and for the period November 2, 1995 (date of
incorporation) through June 30, 1996. These financial statements are the
responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audits.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of JJFN Services,
Inc. and subsidiary as of June 30, 1997 and 1996, and the results of its
consolidated operations and its consolidated cash flows for the year ended
June 30, 1997 and for the period November 2, 1995 (date of incorporation)
through June 30, 1996 in conformity with generally accepted accounting
principles.
WAYNE, NEW JERSEY
HORTON & COMPANY, L.L.C.
July 23, 1997
F-2
JJFN SERVICES, INC.
AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
ASSETS
June 30,
--------------------------
1997 1996
--------------------------
Revenue producing assets:
Model homes on lease, at cost, net of
accumulated depreciation of $484,176 in 1997,
and $88,027 in 1996 $ 20,925,073 $ 11,245,534
Real estate under contract for development
and sale 8,591,956 -
----------- -----------
Total revenue producing assets 29,517,029 11,245,534
----------- -----------
Other assets:
Cash 831,266 770,723
Marketable securities - 1,462,500
Net assets realizable on divestiture 1,312,500 832,068
Deferred charges and goodwill 606,962 211,932
Other 162,538 204,631
----------- -----------
Total other assets 2,913,266 3,481,854
----------- -----------
Total assets $32,430,295 $14,727,388
=========== ===========
See notes to consolidated financial statements
F-3
JJFN SERVICES, INC.
AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
LIABILITIES AND STOCKHOLDERS' EQUITY
June 30,
--------------------------
1997 1996
--------------------------
Liabilities:
Mortgages payable $ 22,632,465 $ 6,477,271
Accounts payable and accrued expenses 467,214 131,739
Unearned rental revenue 215,343 60,136
Stockholder loans 1,025,907 -
----------- -----------
Total liabilities 24,340,929 6,669,146
----------- -----------
Commitments - -
Stockholders' equity:
Convertible preferred stock, $.01 par value
25,000,000 shares authorized,
400,000 shares issued and outstanding 4,000 4,000
Common stock, $.001 par value
50,000,000 shares authorized
16,811,990 shares issued and outstanding in 1997 16,812 -
15,959,990 shares issued and outstanding in 1996 - 15,960
Additional paid-in capital 8,296,049 8,223,235
Accumulated deficit (227,495) (184,953)
----------- -----------
Total stockholders' equity 8,089,366 8,058,242
----------- -----------
Total liabilities and stockholders' equity $32,430,295 $14,727,388
=========== ===========
See notes to consolidated financial statements
F-4
JJFN SERVICES, INC.
AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
For the year ended June 30, 1997, and for the period November 2, 1995
(date of incorporation) through June 30, 1996
Year Ended Period Ended
June 30, 1997 June 30, 1996
------------- -------------
Revenues:
Lease revenue and option fees $ 2,892,657 $ 418,507
Sales of model homes 4,528,600 515,000
Interest income 103,681 5,411
Gain on sale of marketable securities - 26,250
------------ ------------
7,524,938 965,168
------------ ------------
Costs and expenses:
Interest and financing costs 1,660,803 249,038
Cost of model homes sold 4,448,915 507,244
Corporate 1,057,849 246,599
------------ ------------
7,167,567 1,002,881
------------ ------------
Income(loss) before depreciation and amortization 357,371 (37,713)
------------ ------------
Depreciation and amortization 707,345 124,682
------------ ------------
Loss from continuing operations before
income tax benefit (349,974) (162,395)
Income tax benefit 77,000 -
------------ ------------
Loss from continuing operations (272,974) (162,395)
Discontinued operations, net of taxes:
Loss from divested operations (54,444) (22,558)
Gain on disposal of divested operations 284,876 -
------------ ------------
230,432 (22,558)
------------ ------------
Net loss (42,542) (184,953)
Preferred stock distribution 5,000 40,000
------------ ------------
Loss applicable to common shareholders $ (47,542) $ (224,953)
============ ============
Earnings (loss) per share data:
Continuing operations $ (0.01) $ (0.02)
Divested operations 0.01 -
------------ ------------
Net loss per share $ 0.00 $ (0.02)
============ ============
See notes to consolidated financial statements
F-5
JJFN SERVICES, INC.
AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
For the year ended June 30, 1997, and for the period November 2, 1995
(date of incorporation) through June 30, 1996
Preferred stock Common Stock
------------------ ---------------------
Shares Amount Shares Amount
-------- -------- ---------- --------
Common stock issued at inception - $ - 10,000,000 $10,000
Preferred stock issued 400,000 4,000 - -
Preferred distributions - - - -
Common stock issued in merger - - 4,084,990 4,085
Common stock issued under
option and consulting agreements - - 125,000 125
Common stock issued in conversion
of line of credit and stockholder loans - - 1,750,000 1,750
Net loss - - - -
-------- -------- ---------- --------
Balances, June 30, 1996 400,000 4,000 15,959,990 15,960
-------- -------- ---------- --------
Common stock issued under
option agreements - - 700,000 700
Common stock issued in
satisfaction of expenses - - 152,000 152
Preferred Distributions - - - -
Net loss - - - -
-------- -------- ---------- --------
Balances, June 30, 1997 400,000 $ 4,000 16,811,990 $ 16,812
======== ======== ========== ========
Additional Paid-In Accumulated
Capital Deficit
------------------ -------------
Common stock issued at inception $ 1,490,000 $ -
Preferred stock issued 996,000 -
Preferred distributions (40,000) -
Common stock issued in merger 3,760,296 -
Common stock issued under
option and consulting agreements 149,875 -
Common stock issued in conversion
of line of credit and stockholder loans 1,867,064 -
Net loss - (184,953)
------------------ -------------
Balances, June 30, 1996 8,223,235 (184,953)
------------------ -------------
Common stock issued under
option agreements - -
Common stock issued in
satisfaction of expenses 77,814 -
Preferred Distributions (5,000) -
Net loss - (42,542)
------------------ -------------
Balances, June 30, 1997 $ 8,296,049 $ (227,495)
================== =============
See notes to consolidated financial statements
F-6
JJFN SERVICES, INC.
AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the year ended June 30, 1997, and for the period November 2, 1995
(date of incorporation) through June 30, 1996
Period
Year Ended Ended
June 30, June 30,
1997 1996
---------- ---------
Net loss $ (42,542) $(184,953)
Adjustments to reconcile net loss to net cash ---------- ---------
used in operating activities:
Amortization expense 242,050 27,863
Depreciation expense 465,295 96,819
Non-cash expenses of divested operations 28,618 13,504
Gain on sale of model homes (79,685) (7,756)
Gain on sale of marketable securities - (26,250)
Gain on sale of divested operations (284,876) -
Operating expenses satisfied through issuance
of common stock 77,966 -
Changes in assets and liabilities, net of effects
from business combination:
Increase in net operating assets of divested segment (224,175) (185,981)
Increase in miscellaneous assets 59,577 62,176
Increase in deferred income tax asset (77,000) -
Increase in accounts payable and accrued expenses 345,475 18,763
Increase in unearned rental revenue 155,207 60,136
------------ -----------
Total adjustments 708,452 59,274
------------ -----------
Net cash provided by operating activities 665,910 (125,679)
------------ -----------
Cash flows from investing activities:
Cash acquired in business combination - 1,044,480
Purchase of model homes (4,442,544)(2,018,818)
Proceeds from sale of model homes 4,457,977 229,520
Proceeds from sale of marketable securities 239,250 313,750
Capital expenditures (27,838) (53,568)
Acquisition costs - (36,121)
------------ -----------
Net cash provided by investing activities 226,845 (520,757)
------------ -----------
Cash flows from financing activities:
Proceeds from mortgages payable 1,577,688 1,383,099
Principal payments on mortgages payable (3,846,200) (148,462)
Deferred finance charges (254,400) (104,579)
Proceeds from stockholder loans 1,705,000 158,250
Loans from affiliates - 158,851
Preferred distributions (15,000) (30,000)
Proceeds from issuance of common stock 700 -
------------ -----------
Net cash provided by financing activities (832,212) 1,417,159
------------ -----------
Net increase in cash 60,543 770,723
Cash at beginning of period 770,723 -
------------ -----------
Cash at end of period $ 831,266 $ 770,723
============ ===========
See notes to consolidated financial statements
F-7
JJFN SERVICES, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the year ended June 30, 1997, and for the period
November 2, 1995 (date of incorporation) through June 30, 1996
1. Summary of significant accounting policies
This summary of significant accounting policies of JJFN Services, Inc.
(formerly J & J Financial Services, Inc.) and subsidiary (hereinafter the
"Company") is presented to assist in understanding the consolidated financial
statements. The consolidated financial statements and notes are
representations of the Company's management, which is responsible for their
integrity and objectivity. These accounting policies conform to generally
accepted accounting principles and have been consistently applied in the
preparation of the consolidated financial statements.
Use of estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of financial statements, and the
reported amounts of revenues and expenses during the reporting period. Actual
results could differ from those estimates.
Principles of consolidation
The accompanying consolidated financial statements include the accounts of
JJFN Services, Inc. for the year ended June 30, 1997, and for the period
November 2, 1995 (date of incorporation) through June 30, 1996, and of its
inactive, wholly-owned subsidiary, JJFN Holdings, Inc. ("Holdings") from its
date of acquisition, May 15, 1996 (Note 2). Intercompany transactions and
balances have been eliminated in consolidation.
History and business activity
The Company is engaged in two lines of business, both with major homebuilders
and real estate developers:
1) The purchase and leaseback of fully furnished model homes.
2) The contract acquisition, development and sale of real estate.
From its inception through June 30, 1997, the Company has purchased a total of
136 model homes and sold 26, resulting in a portfolio of 110 model homes owned
at June 30, 1997. All such purchases have been from six nationally-known,
publicly-traded homebuilders and real estate developers. Concurrent
therewith, the Company entered into arrangements to lease the units back to
the builders under operating lease agreements (Note 5). During September
1996, the Company acquired a 70-acre tract of land and entered into a
development agreement with a homebuilder (Note 5).
F-8
1. Summary of significant accounting policies (continued)
Fair value of financial instruments
The Financial Accounting Standards Board ("FASB") issued Statement of
Financial Accounting Standards ("SFAS") No. 107, "Disclosure about Fair Value
of Financial Instruments", which requires the disclosure of the fair market
value of off- and on-balance sheet financial instruments. The carrying value
of all financial instruments, including long-term and short-term debt, cash
and temporary cash investments, approximates their fair value at year end.
Concentration of credit risk
Financial instruments, which potentially subject the Company to concentration
of credit risk, consist principally of cash and net assets realizable on
divestiture which consists of a note receivable (Note 12).
At June 30, 1997, the Company had cash balances with two banks which were, in
the aggregate, $603,137 in excess of the $100,000 limit insured by the Federal
Deposit Insurance Corporation. At June 30, 1996, the Company had cash balances
with four banks which were, in the aggregate, $554,219 in excess of the
$100,000 limit insured by the Federal Deposit Insurance Corporation. In
addition, there is off-balance sheet risk to the extent of outstanding checks.
The Company has not experienced any losses in such accounts and believes it is
not exposed to any significant credit risk on cash.
Through June 30, 1997, the model homes that the Company has purchased are
located in Florida, Colorado, North Carolina, Virginia, Texas and Georgia.
All such homes have been leased to six different major homebuilders and real
estate developers (Note 5).
Depreciation
Property and equipment are carried at cost. Depreciation is provided on the
straight-line method over the following estimated useful lives:
Model homes on lease 30 years
Office furniture and equipment 5 years
(included in miscellaneous other assets)
Maintenance, repairs and renewals which neither materially add to the value of
the homes nor appreciably prolong their lives are charged to expense as
incurred. Gains or losses or disposition of model homes are included in
income.
Depreciation expense was $465,294 for the year ended June 30, 1997, and
$96,819 for the period November 2, 1995 (date of incorporation) through June
30, 1996.
F-9
1. Summary of significant accounting policies (continued)
Accounting standards changes
In March 1995, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 121 "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to be Disposed of" ("SFAS 121")
which is effective for fiscal years beginning after December 15, 1995. The
Company has adopted SFAS 121 for the fiscal year beginning July 1, 1996.
However, its adoption has not had any material impact on the Company's
consolidated financial position. SFAS 121 provides additional guidance on
when long-lived assets should be reviewed for possible impairment, how
impairment losses should be measured and when such losses should be
recognized. In addition to long-lived assets, SFAS 121 amended the accounting
standards for valuing real estate assets to the lower of cost or fair value
less cost to sell (for certain assets the lower of cost or fair value) from
the lower of cost or net realizable value.
In October 1995, the Financial Accounting Standards Board issued "Accounting
for Stock Based Compensation" ("SFAS 123") which is effective for fiscal years
beginning after December 15, 1995. With respect to stock options granted to
employees, SFAS 123 permits companies to continue using the accounting method
promulgated by the Accounting Principles Board Opinion No. 25 ("APB 25"),
"Accounting for Stock Issued to Employees," to measure compensation or to
adopt the fair value based method prescribed by SFAS 123. The Company has
elected to continue to account for stock-based compensation in accordance with
APB 25 and therefore SFAS 123 has no effect on the financial statements of the
Company for the year ended June 30, 1997. Under APB 25, the Company does not
recognize compensation expense for its stock option plans as options are
granted at an exercise price equal to, or greater than, the market price of
the underlying stock on the date of grant. Should the exercise price be below
the market price, the Company would then recognize compensation expense in an
amount equal to the excess of the market value of the underlying stock over
the exercise price of the stock option. If the APB 25 method is continued and
if the differences are material, pro forma disclosures are required as if SFAS
123 accounting provisions were followed. No pro forma disclosures have been
presented since, in the opinion of management, the effect of the application
of such provision are immaterial to the financial statements for the year
ended June 30, 1997 and the period ended June 30, 1996.
Loss per common share
Loss per common share is computed by dividing the net loss applicable to
common stock shareholders by the weighted average number of shares of common
stock outstanding during the period. For the year ended June 30, 1997, the
weighted average number of shares used in the calculation was 16,551,091. For
the period November 2, 1995 through June 30, 1996, the weighted average number
of shares used in the calculation was 10,801,114. Primary loss per common
share does not include the effect of common stock equivalents because the
effect of such inclusion would be to reduce loss per common share. Fully
diluted loss per share amounts are not presented because they are
anti-dilutive.
Reclassifications
Certain reclassifications have been made to the 1996 financial statements to
conform to the 1997 presentation.
F-10
2. Business combination
In a statutory merger which became effective May 15, 1996, the Company
acquired all of the stock of Holdings in exchange for 4,084,990 shares of its
$.001 par value common stock. The value of the stock issued was $3,764,381
based on the fair market value of the net assets acquired. The acquisition
has been accounted for under the purchase method and accordingly, the
operating results of Holdings and its wholly-owned subsidiary, Iron Eagle
Contracting and Mechanical, Inc. ("IECM"), have been included in the
consolidated operating results since the date of acquisition. Effective
October 1, 1996, the Company divested itself of the operations of IECM (Note
12).
Holdings was a publicly-held company which was inactive until it commenced
operations as a construction contractor through its wholly-owned subsidiary,
IECM, on December 29, 1995. Under the terms of the merger agreement, Priority
Financial, Inc. ("PFI"), a wholly-owned subsidiary of the Company, merged into
Holdings which became the surviving subsidiary corporation. On the effective
date of the merger, each non-dissenting Holdings shareholder received one
share of the Company's common stock for each share of Holdings common stock.
The preferred stockholders of Holdings received one share of the Company's
common stock for each 50 shares of preferred stock owned. On the effective
date of the merger, the Company also assumed the rights and obligations of
Holdings.
The merger agreement also provided that the Company file a registration
statement with the Securities and Exchange Commission in order to register all
shares issued or to be issued to Holdings shareholders. The registration
statement became effective on May 8, 1996, and the merger was completed on May
15, 1996. As a result, JJFN Services, Inc. became a publicly held company.
The following unaudited information has been prepared on a pro forma basis as
if Holdings had been acquired as of the beginning of the period November 2,
1995 through June 30, 1996:
Revenues $ 1,318,007
Costs and expenses 1,882,084
---------------
Loss from operations (564,077)
Other income 38,143
---------------
Net loss $ (525,934)
===============
Net loss per share $ (.04)
===============
Average shares outstanding 14,050,871
===============
The pro forma financial information is presented for informational purposes
only and is not necessarily indicative of the operating results that would
have occurred had the Holdings acquisition been consummated as of the
beginning of the period presented, nor are they necessarily indicative of
future operating results.
F-11
3. Marketable securities
Marketable securities, which consist of equity securities available-for-sale,
are shown in the balance sheet at fair value. The cost of securities sold is
determined using the specific identification method.
At June 30, 1996, the Company owned 585,000 shares of Antares Resources
Corporation ("Antares"), a publicly-held company whose stock is traded on the
NASDAQ Small-Cap Stock Market. At June 30, 1996, the fair value of the
securities approximates cost. While the listed bid price of the stock is $3
per share at June 30, 1996, the market value was discounted to reflect an
estimated block trading price.
The Company's investment at June 30, 1996, represented approximately 3% of the
outstanding common stock of Antares. Antares owns all of the Company's
convertible preferred stock (Note 8). At June 30, 1996, four individuals who
were officers and/or directors of the Company were also directors of Antares.
All such individuals resigned as directors of Antares in December 1996.
During July 1996, the Company entered into an indemnity agreement with a
significant shareholder, which induced JJFN not to sell its shares in Antares.
The shareholder agreed that if JJFN, in the future, sold any shares at a
price less than the market value of the shares at their date of acquisition
($2.50 per share), the shareholder would contribute additional shares of
Antares common stock, or other property, having a fair market value equal to
such difference.
During September 1996, JJFN sold 485,000 shares of Antares, which were
acquired at a cost of $1,212,500, for $218,250, and in October 1996 sold
100,000 shares of Antares, which were acquired at a cost of $250,000, for
$21,000. Since the shareholder agreed to indemnify JJFN if the marketable
securities were sold at less than cost, no loss was recorded on the sale. The
deficiency of $1,223,250 was satisfied by offsetting $1,223,250 of loans due
to the shareholder.
The transaction is summarized as follows:
Original cost $1,462,500
Sale price (239,250)
-----------
Deficiency satisfied by offsetting loans due to shareholder $1,223,250
===========
F-12
4. Deferred charges and goodwill
Deferred charges and goodwill consist of the following:
June 30,
1997 1996
-------- --------
Deferred finance charges $429,191 $152,876
Deferred offering costs 53,829 -
Deferred income tax asset 77,000 -
Goodwill 46,942 59,056
-------- --------
$606,962 $211,932
======== ========
Deferred finance charges are carried at cost. Amortization is provided on the
straight-line method over the lives of the loans to which the deferred finance
charges relate. Amortization expense of deferred finance charges was $229,936
for the year ended June 30, 1997, and $26,349 for the period ended June 30,
1996. Accumulated amortization of deferred finance charges totaled $256,285
and $26,349 at June 30, 1997 and 1996, respectively.
Goodwill is carried at cost and is being amortized over a fifteen-year period.
For the year ended June 30, 1997, and for the period from November 2, 1995
through June 30, 1996, amortization expense of goodwill totaled $12,114 and
$1,514, respectively. Accumulated amortization of goodwill was $13,628 and
$1,514 at June 30, 1997 and 1996, respectively.
5. Leasing and option fee arrangements
Leasing arrangements
The Company has entered into a series of operating leases with six different
major homebuilders and real estate developers (the "Lessees") (Note 1) which
provide for monthly lease payments equal to 1% of the Company's purchase price
of each premises. Under the terms of the lease agreements, all expenses
arising during the term of the lease shall be paid by the Lessee including,
but not limited to, utilities, homeowner association assessments, maintenance,
insurance and real estate taxes. Monthly revenue from leases existing at June
30, 1997 and 1996, was $214,093 and $113,293, respectively.
The leases terminate only upon the sale of the model homes. In connection
therewith, the Company has entered into listing agreements with brokerage
affiliates of some of the Lessees. Such agreements specify that the
commission to the affiliate shall not exceed 1.25% plus a 3% fee to be paid to
another broker, if any, who produces a purchaser. The agreements also provide
for sales incentives to the brokers.
F-13
5. Leasing and option fee arrangements (continued)
Leasing arrangements (continued)
The sales price may not be less than the original cash closing purchase price
unless the lessee elects to fund any deficiency at the closing.
The Lessees have provided surety bonds, letters of credit or cash in order to
assure the performance of their obligations. The financial instruments
provided by Lessees are equal to 5% of the Company's purchase price including
related costs.
For the year ended June 30, 1997, the Company sold 23 of its model homes for a
total sales price of $4,528,600. The Company recognized a net gain on the
sales of $79,385.
During the period November 2, 1995 through June 30, 1996, the Company sold
three of its model homes for a total sales price of $515,000. The Company
recognized a net gain on the sales of $7,756. Option fee arrangements
During September 1996, the Company acquired a 70 acre tract of land to be
developed by a homebuilder for 370 residential units at a cost of $8,591,956.
In addition, the Company entered into a development agreement to pay the
homebuilder a total fee of $4,500,000 for site development costs. Any excess
costs are for the sole account of the homebuilder. In addition, the Company
entered into a purchase option agreement whereby the developer agreed to
purchase the property on a finished lot basis over a scheduled three-year
period and to provide a $1,719,000 deposit and post a performance bond to
secure their performance under the development agreement. During the period
from the Company's original acquisition of the land until the developer
purchases the finished lots, the developer is obligated to pay a
non-refundable monthly option fee equal to 1% of the Company's total costs
including acquisition cost, closing costs, plus sums paid under the
development agreement.
During June 1997, the Company was advised by the homebuilder that it was
electing to fully exercise its option to purchase the approximate 70-acre
tract of land being developed for 370 residential units and terminate the
development agreement. The homebuilder exercised the option on July 3, 1997,
and purchased the property for the sum of $8,591,956.
Major customers
Revenues derived from two Lessees, Hovnanian Enterprises, Inc. and subsidiaries
("Hovnanian") and Engle Homes, Inc. and subsidiaries ("Engle"), represent 86%
and 100% of total lease and option fee revenue for the year ended June 30,
1997, and the period ended June 30, 1996, respectively. Summaries of
operating results and net assets of Hovnanian and Engle follows:
F-14
5. Leasing and option fee arrangements (continued)
Major customers (continued)
Hovnanian Enterprises, Inc. and subsidiaries
Results of Operations
(In thousands)
Year ended October 31,
1996 1995 1994
Revenues $807,464 $777,745 $704,433
Operating expenses $782,458 $756,091 $687,912
Net income $ 17,287 $ 14,128 $ 11,477
Total assets $614,111 $645,378 $612,925
Total liabilities $420,489 $469,043 $450,795
Total stockholders' equity $193,622 $176,335 $162,130
Engle Homes, Inc. and subsidiaries
Results of Operations
(In thousands)
Year ended October 31,
1996 1995 1994
Revenues $332,088 $244,528 $224,459
Operating expenses $318,387 $234,992 $212,280
Net income $ 8,495 $ 5,912 $ 8,907
Total assets $284,789 $251,918 $188,913
Total liabilities $203,297 $177,812 $122,610
Total stockholders' equity $ 81,492 $ 74,106 $ 66,303
F-15
6. Mortgages payable
Mortgages payable consist of the following:
June 30,
-----------------------
1997 1996
----------- -----------
Mortgage payable to a bank, bearing interest at prime
plus 1% with interest only payable monthly. The loan
balance is due February 1998. The loan is secured by
model homes purchased and by the related leases
described in Note 5. $ 1,202,003 $ 1,703,867
Mortgage payable to a bank, bearing interest at 8.625%
with interest only payable monthly. The loan balance is
due May 1998. The loan is secured by model homes
purchased and by the related leases described in Note 5. 1,532,235 2,300,000
Mortgage payable to a bank in monthly installments of
$32,191, including interest at 9.25%, until maturity in
April 1999. The loan is secured by model homes
purchased and by the related leases described in Note 5. 2,156,062 2,473,404
Mortgage payable to a bank in monthly installments of
$5,502, including interest at 9.25%, until maturity in
January 2000. The loan is secured by model homes
purchased and by the related leases described in Note 5. 416,499 -
Mortgage payable to a bank, bearing interest at prime
plus 1/2% for Florida properties and prime plus 1% for
non-Florida properties, with interest only payable
monthly. The note is part of a $13 million revolving
loan agreement which is payable on demand. The loan is
secured by model homes purchased and by the related
leases described in Note 5. 9,649,109 -
Mortgage payable to a bank in monthly installments of
$5,063, plus interest at the LIBOR rate plus 2.85%,
until maturity in June 1998. The loan is secured by
model homes purchased and by the related leases
described in Note 5. 801,557 -
Mortgage payable to a bank, bearing interest at prime
plus 1% with interest only payable monthly. The loan
balance is due October 1997. The loan is secured by
real estate purchased and by a related option fee
agreement described in Note 5. This loan was repaid
in-full in July 1997. 6,875,000 -
----------- -----------
$22,632,465 $ 6,477,271
=========== ===========
At June 30, 1997, maturities of mortgages payable are as follows:
Year ending June 30, 1998 $20,283,590
Year ending June 30, 1999 1,992,547
Year ending June 30, 2000 356,328
-----------
$22,632,465
===========
F-16
7. Stockholder loans payable
Stockholder loans payable arose from advances various stockholders have made
to the Company. The notes are payable on demand and accrue interest at 9%.
Interest on stockholder notes payable totaled $33,815 for the year ended June
30, 1997, and $82,109 for the period November 2, 1995 through June 30, 1996.
On June 30, 1996, the stockholder loans totaling $1,442,656 plus accrued
interest of $103,265 were converted to 1,288,268 shares of the Company's
common stock.
During the year ended June 30, 1997, the Company issued a total of 1,026,000
warrants to stockholders who had made loans to the Company. The warrants are
exercisable at the fair value of the stock on the date the warrant was issued.
Under the terms of an indemnity agreement described in Note 3, during
September and October 1996, $1,223,250 of stockholder loans were utilized to
offset stockholder obligations which arose from sales of marketable securities.
8. Stockholders' equity
Convertible preferred stock
On November 2, 1995, the Company issued 400,000 shares of its 6% participating
non-cumulative preferred stock. Each share is convertible into one share of
the Company's common stock commencing in December 1996. Dividends may be
declared on the basis of a 50% participation in the rental revenue stream up
to $60,000 per year. The preferred stock is redeemable at the option of the
Company, on the basis of 105% within the first six-month period, 104% within
the second six-month period, 103% within the third six-month period, 102%
within the fourth six-month period, 101% within the fifth six-month period and
100% thereafter.
The Company paid regular quarterly distributions of $15,000 in February, May,
and July 1996. Through June 30, 1996, $10,000 was accrued as a preferred
distribution payable. All distributions paid and accrued have been made out
of additional paid-in capital due to the lack of available retained earnings.
No dividends have been declared or paid since July 1996.
Warrants
In conjunction with a loan agreement entered into by a former subsidiary, IECM
(Notes 2 and 12) in December 1995, the Company issued 1,200,000 warrants which
are convertible into 1,200,000 shares of the Company's common stock at $.001
per share. In August 1996, 700,000 warrants were exercised and the Company
issued 700,000 shares of common stock.
Stock option plan
During August 1996, the Company established an Equity Incentive Plan (the
"Plan") to attract and retain key employees, to provide an incentive for them
to achieve long-range performance goals and to enable them to participate in
the long-term growth of the Company. Under the terms of the plan, the Company
may award Incentive Stock Options which are intended to qualify under Section
422A of the Internal Revenue Code.
F-17
8. Stockholders' equity (continued)
Stock option plan (continued)
During October 1996, the Company awarded a total of 450,000 stock options to
purchase common stock at an option price of $.125 per share. During May 1997,
175,000 of the options previously awarded were canceled and the Company
awarded a total of 775,000 additional options to purchase common stock at an
option price of $0.25 per share. During July 1997, the Company awarded a
total of 150,000 options to purchase common stock at an option price of $0.44
per share. All such options may be exercised during a four-year period
commencing one year from the date of the option grant and terminating five
years from date of issuance.
9. Income taxes
The Company has net operating losses available for carry forward to offset
future years' taxable income. The amounts and dates of expiration are as
follows:
June 30,
--------
2010 $184,953
2011 124,542
--------
$309,495
========
Deferred income taxes arise from temporary differences in reporting assets and
liabilities for income tax and financial accounting purposes primarily
resulting from net operating losses. The components of the deferred tax asset
and the related tax effects of the temporary differences are as follows:
June 30,
1997 1996
------- --------
Non-current deferred income tax asset
arising from net operating loss carryforward $77,000 $46,000
Valuation allowance - (46,000)
------- --------
Net deferred income tax asset $77,000 $ -
======= ========
During the year ended June 30, 1997, the Company eliminated its deferred tax
asset valuation allowance which stood at $46,000 as of June 30, 1996. Based
on estimates of future revenues and profitability, management believes that
the Company will utilize its net operating losses to offset future taxable
income prior to their expiration date.
F-18
10. Supplemental cash flow information
The Company's non-cash investing and financing activities were as follows:
During the year ended June 30, 1997, and the period ended June 30, 1996, the
Company acquired model homes and real estate at a cost of $23,104,728 and
$11,835,986, respectively. Such purchases were financed as follows:
June 30,
1997 1996
----------- -----------
Model homes acquired $14,512,772 $11,835,986
Real estate acquired 8,591,956 -
Funds deposited into escrow by
stockholders and affiliates - (4,374,913)
Bank borrowings (18,662,184) (5,442,255)
----------- -----------
Expenditures for acquisition of model homes
and real estate $ 4,442,544 $ 2,018,818
=========== ===========
In connection with the Company's initial capitalization, the Company issued
common and preferred stock as follows:
Common stock issued $ 1,500,000
Preferred stock issued 1,000,000
Consideration received:
Marketable securities received (1,500,000)
Funds deposited into escrow in connection
with acquisition of model homes (1,000,000)
------------
Proceeds from issuance of common
and preferred stock $ -
============
During the period ended June 30, 1996, the Company completed a business
combination in which it acquired all of the capital stock of JJFN Holdings,
Inc. in exchange for 4,084,990 shares of the Company's common stock as follows:
Cash acquired $ 1,044,480
Fair value of non-cash assets acquired 3,468,990
Liabilities assumed (749,089)
------------
Common stock and additional paid-in capital
issued in business combination $ 3,764,381
============
During the period ended June 30, 1996, the Company converted the $164,814
balance of a line of credit to 330,000 shares of the Company's common stock.
In addition, $1,545,921 of stockholder loans and accrued interest were
converted to 1,288,268 shares of the Company's common stock.
On June 30, 1997, at the option of three different law firms, the Company
issued 152,000 shares of stock in payment of an aggregate of $77,966 of fees
owed to those firms.
F-19
10. Supplemental cash flow information (continued)
In connection with the divestiture described in Note 12, the Company sold
$1,027,624 in net assets of the divested segment in exchange for a note
receivable in the amount of $1,312,500.
As a result of an indemnity agreement entered into with a significant
shareholder (Note 3) the Company satisfied losses on sales of marketable
securities in September and October 1996, by off-setting $1,223,250 of
stockholder loans.
Interest paid totaled $1,496,206 and $249,940 during the year ended June 30,
1997, and the period ended June 30, 1996, respectively. At June 30, 1996,
net assets realizable on divestiture includes $195,668 of cash which has been
excluded from the cash balances reflected in the balance sheet and in the
statement of cash flows.
11. Commitments and contingencies
Line of credit
From the date of the business combination described in Note 2 (May 15, 1996)
through June 30, 1996, the Company had a $250,000 credit line with Damill
Capital Corp. ("Damill"), a corporation which is owned by a principal
stockholder of the Company. The line of credit accrued interest at the rate
of 16% per annum on the outstanding portion of principal and loan origination
fee of 7.5% of the committed amount. Interest is payable on a monthly basis.
The line of credit was secured by all assets of Holdings, including stock in
any subsidiaries.
On June 30, 1996, Damill exercised its right to convert the loan plus unpaid
interest and origination fees into common stock at a conversion price of $.50
per share. A total of 330,000 shares were issued in full satisfaction of the
line of credit thereby terminating the credit facility.
Lease agreement
The Company leases its office space under an operating lease for a five-year
term ending in January 2002. Rent expense for the year ended June 30, 1997,
and for the period November 2, 1995 through June 30, 1996 was $42,968 and
$7,979, respectively. The following is a schedule of future minimum lease
payments:
Year ending June 30, 1998 $ 66,312
Year ending June 30, 1999 67,795
Year ending June 30, 2000 69,278
Year ending June 30, 2001 70,761
Year ending June 30, 2002 41,782
--------
$315,928
========
Consulting and employment agreements
Effective June 1996, the Company entered into a ten-year consulting agreement
with a principal stockholder. The agreement specifies that the consultant
shall receive annual compensation of $180,000 with 10% annual increases during
the second through tenth years. In addition, the consultant is entitled to
certain benefits and participation in any Company bonus or retirement plan.
F-20
11. Commitments and contingencies (continued)
Consulting and employment agreements (continued)
Effective July 29, 1997, the Board of Directors elected the shareholder to the
position of Chairman of the Board. The consulting agreement was terminated
and the Company entered into an employment agreement with the shareholder on
substantially the same terms of the consulting agreement. Effective July 30,
1997, the employment agreement provides for annual compensation of $225,000.
Land purchase commitment
The Company has executed a letter of intent with a major publicly-traded
homebuilder and real estate developer to acquire 4-5 tracts of land having a
fully-developed cost of approximately $112,000,000, of which the maximum cost
outstanding at any point in time is anticipated to be $75,000,000 to
$85,000,000. The agreement provides for a parcel takedown schedule of
finished lots at minimum dollar amounts over a period not to exceed 36 months.
The closing is subject to completion of due diligence, securing a financing
commitment and formal documentation among other events.
Model home purchase commitments
At June 30, 1997, the Company was in the process of negotiating two agreements
with existing homebuilder clients to acquire additional model homes. One
agreement would involve the acquisition of 71 model homes in New Jersey and
Pennsylvania at a cost of approximately $15 million. The other agreement
involves the acquisition of four model homes in Colorado at a cost of
approximately $900,000. During July 1997, closings took place on the
acquisition of 14 of the above model homes at an aggregate cost of
approximately $3.1 million.
Qualified retirement plan
During the year ended June 30, 1997, the Company adopted the provisions of a
savings incentive match plan for employees ("SIMPLE") which covers
substantially all employees of the Company. The SIMPLE is a qualified plan
under the provisions of the Internal Revenue Code which permits employees to
make elective contributions to a retirement plan on a pre-tax basis. The
Company makes a matching contribution which totaled $3,180 for the year ended
June 30, 1997.
Legal proceedings
Effective June 1996, the Company entered into a five-year employment agreement
with the Company's former president. The agreement specified that the
president would receive annual compensation of $120,000 with 10% annual
increases during the second through fifth years. During May 1997, the
Company's president improperly terminated her employment agreement.
The Company has commenced in a legal proceeding against Susan Schlapkohl, the
Company's former President, for a violation of her restrictive covenant with
the Company. In her answer to the Company's Complaint and Motion for
Preliminary Injunction, Ms. Schlapkohl asserted certain counterclaims. The
Company is vigorously defending the counterclaim. Management believes, after
consultation with legal counsel, that Ms. Schlapkohl's counterclaims are
without merit, but that even if she were successful, it would not have a
material adverse effect on the business, financial position or results of the
operations of the Company.
F-21
11. Commitments and contingencies (continued)
Model home sales contracts
The Company has sales contracts pending on nine model homes at an aggregate
sales price of $1,416,216. The model homes were acquired at an aggregate cost
of $1,398,305.
Financing activities
The Company is in active negotiations with institutions to increase its credit
facilities and reduce it's borrowing costs. It is anticipated that the new
facilities will enable the Company to continue its rapid growth. Indications
are that the cost of funds will be LIBOR plus a reasonable premium with a cap;
or the rate of two or three year treasuries plus a reasonable premium which
will be fixed at closing. The indicated term of the facilities will be two
years with a one year extension (renewal) at the Company's option.
As part of its ongoing business, the Company is in constant discussion with
financial institutions for credit facilities, as well as private or public
placements of its debt or equity securities. An offering or private placement
of senior notes with warrants, convertible preferred stock or similar type of
security is currently being evaluated.
12. Divested operations
Effective October 1, 1996, the Company disposed of its construction
subsidiary, Iron Eagle Contracting and Mechanical, Inc. ("IECM"). The results
of IECM have been reported separately as a divestiture in the consolidated
statements of operations. The consolidated balance sheet at June 30, 1996,
has been reclassified to give effect to the divested operations of IECM.
Assets and liabilities of IECM which were divested consist of the following:
September 30, 1996 June 30, 1996
------------------ ----------------
Cash $ 56,641 $ 195,668
Contract receivables 601,976 319,500
Land and development costs 556,826 388,980
Furniture and equipment 276,953 282,570
Intangibles and other assets 339,038 355,505
--------- -----------
Total assets 1,831,434 1,542,223
Liabilities (803,809) (710,155)
--------- -----------
Net assets of divested segment $1,027,624 $ 832,068
========== ===========
The following table summarizes selected financial data of the Company's
divested operation.
May 15, 1996
(date of acquisition)
Three-months ended through
September 30, 1996 June 30, 1996
------------------ ---------------------
Revenues $ 596,730 $ 190,000
Expenses 651,174 212,558
---------- ------------
Loss from divested operations $ (54,444) $ (22,558)
=========== =============
F-22
12. Divested operations (continued)
Such amounts have not been included in operating revenues or expenses in the
accompanying consolidated statements of operations.
Under the terms of the agreement, the Company sold the net assets of IECM for
a note in the amount of $1,312,500 thereby realizing a gain on divestiture of
$284,876. The note bears interest at the prime rate plus 1%. Interest is
payable in monthly installments beginning in August 1997 through January 2002.
Interest accrued through July 1997 shall be payable in six equal monthly
installments commencing August 1997. Principal is payable in five equal
consecutive annual installments commencing January 1998 and ending January
2002.
In the event the IECM completes a securities offering, it shall be obligated
to prepay the lessor of $500,000 or the then remaining unpaid amount of
principal and interest. Upon completion of any second offering, the IECM
shall be obligated to prepay the then remaining unpaid amount of principal and
interest.
The note is secured by all of the issued and outstanding shares of IECM and by
150,000 shares of common stock of its parent company, Iron Holdings, Inc.
which became a publicly-traded company in March 1997.
F-23
EXHIBIT 10.9
AGREEMENT FOR PURCHASE AND
SALE
This Agreement for Purchase and Sale is made and entered into as of the ~ day
of March, 1996, by and between SOUTH PALM CONDOMINIUM, INC., a Florida
corporation and WATER RESOURCES CORPORATION, a Florida corporation, a joint
venture (hereinafter collectively referred to as the "Seller"), and ENGLE
HOMES/PALM BEACH, INC., a Florida corporation (the "Buyer").
WITNESSETH
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, all of the Seller's Agreement rights to purchase the real and
personal property described in Paragraph 1 of this Agreement (the
"Property"), upon the terms and conditions herein set forth:
NOW, THEREFORE, in consideration of the premises, of the payments provided for
herein and other valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by Seller, the parties to this Agreement do hereby
covenant and agree as follows:
1. Description of Property. The real property which is being purchased and
sold hereunder and which is referred to herein as the "Property", shall mean
the real property described in "Exhibit A" which is attached to and made a
part of this Agreement, containing approximately seventy (70) acres. A
portion of the Property which is separately described in "Exhibit A-1"
consists of two separate five (5) acre parcels and shall be referred to
herein as the "10 Acre Parcel".
2. Description of the Existing Sales Agreements. The Seller has executed six
(6) separate real estate purchase and sale agreements and addendums, copies
of which are attached hereto as Exhibit "B" and which are hereinafter
referred to as "The Existing Agreements". The Seller is the buyer under all
of The Existing Agreements and the real property described in The Existing
Agreements wheh taken in the aggregate comprises the Property. It is the
intent of the parties that, pursuant to the terms and conditions contained in
this Agreement, the Buyer shall purchase all of Seller's rights as the buyer
under The Existing Agreements such that at the closing of this transaction
The Existing Agreements shall be assigned from the Seller to the Buyer who
will then be able to purchase the Property under the terms and conditions of
The Existing Agreements.
3. Price and Payment. Seller hereby agrees to sell to the Buyer, and Buyer
hereby agrees to purchase from the Seller, all of the Seller's interest in
The Existing Agreements for a total Purchase Price of EIGHT MILLION FIVE
HUNDRED NINETY-FIVE THOUSAND DOLLARS ($8,595,000.00). Said Purchase Price is
inclusive of the collective Purchase Price that the Buyer shall be required
to pay to the various sellers under the Existing Agreements. The difference
between the total Purchase Price to be paid to the various sellers under The
Existing Agreement and the total Purchase Price of EIGHT MILLION FIVE HUNDRED
NINETY-FIVE THOUSAND DOLLARS ($8,595,000.00) shall be paid to the Seller at
closing as consideration for the assignment of The Existing Agreements from
the Seller to the Buyer. The Purchase Price shall be paid as follows:
(A) Deposit. Buyer shall on the Effective Date of this Agreement has
hereinafter defined) deposit (a) the sum of TWO HUNDRED THOUSAND DOLLARS
($200,000.00) with the firm of Moyle, Flanigan, Katz, Fitzgerald & Sheehan,
Barnett Centre, 9th Floor, 625 North Flagler Drive, West Palm Beach, Florida
33401 ("Escrow Agent"), and (b) the sum of ONE HUNDRED THOUSAND DOLLARS
($100,000.00) with the firm of Cohen, Chernay, Norris, Weinberger & Harris
("Cohen"). Any and all interest earned on said deposit shall accrue to the
benefit of the Buyer. The ONE HUNDRED
THOUSAND DOLLARS ($100,000.00) portion of the deposit paid to Cohen shall be
considered a nonrefundable reimbursement to Seller for expenses relating to
land planning, engineering and legal fees relative to planning and zoning
matters regarding the Property. Escrow Agent shall hold the TWO HUNDRED
THOUSAND DOLLAR ($200,000.00) balance of said cash deposit pursuant to the
terms and conditions of this Agreement. On the Effective Date of this
Agreement, the Buyer shall deposit with the Escrow Agent a surety guarantee
bond (the "Bond") in the principal amount of $200,000.00 payable to the
Escrow Agent in the event of a default by the Buyer under the terms and
conditions of this Agreement. Both the language of the Bond and the Bond's
underwriter shall be subject to the prior approval of the Seller. The entire
deposit (together with interest thereon as to the cash portion) shall be
applied to the Purchase Price at closing. The Buyer shall substitute cash at
closing in lieu of payment of the Bond proceeds by the underwriter under the
Bond. The Bond shall have a term of one (1) year from the Effective Date of
this Agreement as defined in Paragraph 4 below. Notwithstanding the foregoing,
in the event the closing of the sale of the Property has not occurred within
one (1) year of the Effective Date and this Agreement is still in full force
and effect, then the Buyer shall have thirty (30) days from the end of the
initial one (1) year bond term to extend the term of the Bond for a time
period required by the Seller, not to exceed an additional one (1) year
period. If the Buyer is unable to extend the Bond term as aforesaid, then the
Buyer shall be required to post an additional cash deposit of Two Hundred
Thousand Dollars ($200,000.00) to the Escrow Agent within thirty (30)
calendar days of the end of the initial one (1) year term of the Bond. The
failure of the Buyer to extend the terms of the Bond, , or make the
additional cash deposit within the above-described time frames shall
constitute a default by the Buyer under this Agreement.
For purposes of this Agreement, the cash and/or Bond shall together constitute
the entire Deposit hereunder.
(B) Balance of Payment. The balance of the Purchase Price shall be paid by the
Buyer by cashier's check or Federal Funds Wire Transfer to Escrow Agent at
the closing, plus or minus prorations and adjustments as provided in this
Agreement. Out of said proceeds, the Escrow Agent shall pay all closing costs
associated with the transaction, pay the various sellers under The Existing
Agreements the payments due them under The Existing Agreements and the balance
shall be paid to the Seller hereunder as payment for Sellers agreeing to
assign The Existing Agreements to the Buyer.
4. Time for Acceptance: Effective Date. If this Agreement is not executed by
Buyer and Seller and delivered to all parties by March , 1996 then this
Agreement shall not be effective. The effective date of this Agreement shall
be the date when the last of the Buyer and Seller have signed this Agreement.
5. Rezoning of the Property. Immediately upon the execution of this Agreement
by both parties, the Buyer shall take all steps reasonably necessary to
prepare, and submit to Palm Beach County an Application to rezone the
Property so that the same may be developed as a residential project with a
minimum of seven (7) residential units per acre. Said seven (7) unit per acre
zoning shall be based on an average over the entire Property, taking into
consideration the fact that the Palm Beach County Comprehensive Land Use Plan
permits three (3) units per acre on the 10 Acre Parcel and eight (8) units
per acre on the balance of the Property. Buyer shall, at Buyer's sole cost
and expense prepare and proceed with the zoning application and also execute a
Developer Agreement with Palm Beach County for the development of the
Property. The parties acknowledge that Palm Beach County has expressed a
willingness to waive the payment of the $202.00 per unit equivalent
residential connection fees as a prerequisite to the execution of a Developer
Agreement, however, it shall be Buyer's responsibility to obtain a binding
written waiver from the Palm Beach County Planning and Zoning Department. The
Zoning Application shall be prepared in the name of the Buyer and the Seller
so that in the event that the Buyer fails to complete the rezoning and close
this transaction the Seller may continue to pursue the Rezoning to its
completion. Should Buyer fail to complete the Zoning Application, all work
product including surveys, reports, etc. shall become the property of the
Seller. In connection with the foregoing duties regarding the rezoning ,
Buyer shall immediately undertake the following at Buyers expense:
(A) Retain qualified professionals for land processing and legal
representation in connection with the rezoning;
(B) Immediately contract to have a traffic study of the Property prepared by a
firm designated by Buyer's land planning professional; and
(C) Prepare all reasonably and necessary studies, plans etc. that would be
required in connection with the rezoning of the Property.
Buyer shall have the rezoning application completed and submitted to Palm
Beach County in accordance with the schedule attached hereto as Exhibit C.
Buyer shall use its good faith best efforts and due diligence to obtain the
rezoning approval pursuant to said schedule.
Buyer shall, at its sole cost and expense, proceed to obtain site plan
approval from Palm Beach County simultaneously with the rezoning process.
Seller agrees to execute any documents necessary and shall obtain such
executed documents from the owners under the Existing Agreements, if
necessary, in order to enable Buyer to proceed with and obtain said rezoning
and site plan approval or any other governmental approvals which Buyer may
undertake to accomplish Buyer's intended project for the Property.
The Rezoning of the Property as described in this Section shall be deemed
a-condition precedent to the obligation of the Buyer to close this
transaction. If, after exercising due diligence the Buyer is unable to obtain
the approval of Palm Beach County for the rezoning of the Property as
contemplated by this Section, then the Buyer may terminate this Agreement by
written Notice to the Seller and Escrow Agent. Upon receipt of said Notice,
the Escrow Agent shall refund the balance of the deposit (other than the One
Hundred Thousand Dollar ($100,000.00) nonrefundable portion) together with
any and all interest earned thereon to the Buyer and this Agreement shall be
terminated and of no further force and effect.
6. Title. Within ten (10) days of the Effective Date, Seller will deliver to
Buyer, at Seller's expense, a current title insurance commitment for the
Property at the minimum promulgated rate allowed by law ("Title Commitment"),
issued by Cohen, Chernay, Norris, Weinberger & Harris ("Title Agent") as
agent for Attorneys Title Insurance Company ("Title Company"), and copies of
all exceptions referred to therein. The Title Commitment shall obligate Title
Company to issue an ALTA (1990 Form) owners title insurance policy in favor
of Buyer for the amount of the Purchase Price ("Title Policy"). The Title
Policy shall insure Buyer's fee simple title to the Property, subject only to
the permitted exceptions, as shown on Exhibit D ("Permitted Exceptions").
Within ten (10) days after receipt of the Title Commitment, Buyer shall
provide Seller with written notice specifying any matters set forth therein
which are unacceptable to Buyer ("Title Defects"). Within three (3) days
after receipt of notice from Buyer, Seller shall notify Purchaser whether
Seller will attempt to cure the Title Defects. In the event Seller fails to
notify Buyer of its intent to cure the Title Defects within said three (3)
day period, Seller shall be deemed to have refused to cure the Title Defects.
If Seller elects to attempt to cure such Title Defects, Seller shall have
until Closing within which to use its best efforts to cure such Title Defects
to the satisfaction of the Title Company and Buyer, provided, however, Seller
shall not be obligated to bring suit or expend funds to cure any Title
Defects. In the event Seller refuses or fails to cure any Title Defect as set
forth hereinabove or if the Title Company will insure over a Title Defect,
then Buyer at its option, by providing Seller with written notice prior to the
Closing Date, may (i) terminate this Agreement, whereupon Seller shall return
the Deposit (less the One Hundred Thousand Dollar $100,000.00) nonrefundable
portion) to Buyer and thereafter the Agreement shall be deemed null and void
and of no force and effect, and no party hereto shall have any further
rights, obligations or liability hereunder; or (ii) accept title to the
Property subject to such Title Defects. Thirty (30) days prior to Closing,
Seller shall deliver to Buyer an endorsement to the Title Commitment,
updating the effective date thereof to the most current date reasonably
practical. Seller shall deliver to Buyer copies of any exceptions referred to
therein which were not set forth on the Title Commitment. Within ten (10)
days of receipt of said endorsement, Buyer shall provide Seller with written
notice specifying any matters set forth therein which constitute Title
Defects. Seller shall respond to such notice in the manner set forth above.
At closing, Seller shall deliver to Buyer a "marked up" Title Commitment,
deleting all Schedule B. Part I requirements, the gap exception, and all
standard exemptions listed therein. Within thirty (30) days after Closing,
Seller shall deliver to Buyer the Title Policy, as called for by the marked
up Title Commitment.
7. Survey. Buyer shall, with ten (10) days of the Effective Date, at its sole
cost and expense, have an updated survey of the Property prepared by a
licensed Florida land surveyor and certified to Seller and to the title
company which will be issuing owner's title insurance to Buyer. If the survey
shows any encroachment on the Property, or that there are any other defects to
title, or that any of Seller's covenants or representations herein are
violated or untrue, the sate shall be considered to be a defect rendering
title in the Property unmarketable and thus entitling Buyer to the remedies
set forth in Paragraph 6 above.
8 Closing and Conveyance.
(a) Closing and Seller's Deliveries. The Closing shall be held within thirty
(30) days of the final approval by Palm Beach County of the re-zoning of the
Property as described in paragraph 5A of this Agreement. The Closing will
take place at a location in southern Palm Beach County designated by Seller.
At the Closing, Seller shall deliver to Buyer all of the following:
(1) An assignment of The Existing Agreements which assigns all of the Seller's
rights under The Existing Agreements to the Buyer.
(2) Written authorizations (including corporate resolutions, consents, court
orders, etc.) as may be reasonably required by Buyer in order to establish
the Seller's authority to execute, and faithfully and promptly comply with
all the terms, agreements, covenants, indemnities and conditions contained in
this Agreement
(3) Such other documentation as may be reasonably requested by Buyer to
effectuate this transaction.
(b) Buyer's Deliveries. At the Closing, the Buyer shall deliver or caused to
be delivered to the Seller all of the following:
4
(1) The balance of the Purchase Price pursuant to Section 3(b) of this
Agreement.
(2) Written authorizations (including corporate resolutions, consents, court
orders, etc.) as may be reasonably required by Seller or Seller's designed in
order to establish the Buyer or the Buyer's designees authority to execute,
and faithfully and promptly comply with all of its obligations under this
Agreement.
(3) Such other documentation as may be reasonably requested by Seller to
effectuate this transaction.
9. Expenses and Prorations. The parties hereto acknowledge that all prorations
regarding the Property shall be made pursuant to the terms and conditions
contained in The Existing Agreements.
10. Costs of Closing. The costs of closing to be apportioned between the Buyer
and the various sellers under The Existing Agreements shall be apportioned as
described in The Existing Agreements. Notwithstanding the foregoing, the
Seller has agreed to pay for a title insurance commitment and policy
reflecting the total Purchase Price being paid by the Buyer pursuant to this
Agreement which is in excess of the Purchase Price to be paid to the various
sellers under The Existing Agreements. Under The Existing Agreements, those
sellers are responsible for payment of the title insurance premiums up to the
amount of the respective Purchase Prices under The Existing Agreements.
Accordingly, Buyer shall reimburse Seller for the portion of the title
insurance costs attributable to the aggregate Purchase Price of The Existing
Agreements.
11. Additional Credits to the Seller. The Seller shall be entitled to a credit
at closing for the amount of any deposits made, if any, by the Seller under
The Existing Agreements together with any interest earned upon said deposits.
12. Brokers. Buyer and Seller hereby warrant that neither party has dealt with
any real estate broker in connection with this transaction and the parties
agree to hold each other harmless from the claims of any such broker claiming
by or through either of them.
13. Seller's Representations. Seller represents and warrants to, and covenants
with Buyer that the following representations and warranties are true and
will be true from the Effective Date hereof through and including the date of
the Closing, except for those changes which (i) may become necessary to give
effect to, and to comply with, the terms of this Agreement, and (ii) are
specifically provided for or permitted herein:
(a) At Closing, Seller will be the owner of all of Seller's rights under The
Existing Agreements to purchase the Property. There are now, and at Closing
will be, no outstanding options or other agreements obligating Seller with
respect to The Existing Agreements which would affect the ability of Seller
to deliver all legal title in, and all beneficial ownership of, its rights
under The Existing Agreements.
(b) The consummation of the transaction contemplated by this Agreement will
not result in or constitute any of the following: (i) a default, breach or
violation of the laws of the State of Florida, any joint venture agreement,
lease, license, promissory note, conditional sales Agreement, commitment,
indenture, mortgage, deed of trust, or other agreement, instrument, rule,
regulation or arrangement of which Seller is a party or by which it is bound;
(ii) an event that would permit any party to accelerate the maturity of any
indebtedness or other obligation of Seller which is secured by any part of
the Property; and (iii) except for this, Agreement, the creation or
imposition of any lien, charge, or encumbrance on the Property.
(c) No representation contained herein or in any certificate, instrument,
document or other writing furnished pursuant to the provisions hereof or in
connection with the transaction contemplated herein contains any untrue
statement of facts or omits to state a material fact necessary to make the
statements herein or therein true and complete.
(d) As of the date hereof there are no actions, suits, or proceedings pending
or, to the knowledge of the Seller, threatened against or affecting Seller's
ownership of the Property (including but not limited to actions in eminent
domain) and on the date of the Closing there will be no such actions, suits
or proceedings pending or threatened.
(e) Seller is duly authorized by its shareholders and board of directors to
comply with all the terms and conditions of this Agreement.
(f) The Existing Agreements are in full force and effect, are not in default
and are fully enforceable by all of the parties thereto.
(g) During the term of this Agreement, the Existing Agreements will not be
modified or amended without the written consent of Buyer, which consent shall
not be unreasonably withheld.
(h) All of the conditions to Closing set forth in the Existing Agreements
shall be satisfied.
14. Buyer's Representations. Buyer represents and warrants to, in covenants
with the Seller that the following representations or warranties are true and
will be true from the Effective Date hereof through and including the date of
closing, except for those changes which (i) may become necessary to give
effect to, and to comply with, the terms of this Agreement, and (ii) are
specifically provided for permitted herein:
(I) Buyer is duly authorized by its shareholders and board of directors to
comply with all the terms and conditions of this Agreement.
(B) There is no material threatened or pending litigation or proceeding, or
any governmental investigation, against or relating to Buyer which would
hinder the re-zoning of the Property.
.
15. Via Ancho Road. Seller and Buyer acknowledge that Palm Beach County is
actively proceeding with the acquisition of additional road rights of way
from the Palm Beach County Parks & Recreation Department and the City of Boca
Raton in order to create a full ninety (90) foot road right of way for Via
Ancho Road thus making Via Ancho Road a legally dedicated public road. Seller
will provide Buyer prior to closing with written verification from Palm Beach
County that the right of way acquisition is actively proceeding and will be
completed prior to Buyer's platting of the Property which shall occur
subsequent to the Closing Date hereunder. Delivery of the above described
written verification from Palm Beach County shall be deemed a condition
precedent to the obligation of the Buyer to close this transaction.
16. Survival. All representations, indemnifications, warranties, covenants,
and agreements contained in this Agreement or in any other instrument,
certificate, opinion, or other writing provided for in this Agreement, shall
survive the Closing.
17. Right to Assign. Neither party shall have the right to assign to other
entities its rights and obligations hereunder, without the prior written
consent of the other party, which consent shall not be unreasonably withheld..
18. Default. In the event Seller breaches any covenant, condition, warranty,
representation, or any other requirement contained in this Agreement, Buyer,
in Buyer's sole discretion, shall be entitled to either (i) terminate the
Agreement and receive an immediate return of the Deposit from Seller (other
than the One Hundred Thousand Dollar ($100,000.00) nonrefundable portion) or
(ii) exercise any and all rights and remedies available to Buyer in equity,
including, without limitation, the right of specific performance; provided,
however, Buyer hereby waives any right it may now or in the future have, at
law, equity or otherwise, to seek or obtain money damages from Seller. Buyer
acknowledges and agrees that Seller was materially induced to enter into this
Agreement in reliance upon Buyer's agreement to accept the foregoing
limitations on its remedies in the case of a breach of this Agreement by
Seller, and that Seller would not have entered into this Agreement but for
Buyer's agreement to so limit its remedies. In the event Buyer fails to comply
with or perform any of the covenants, agreements or obligations of a material
nature to be performed by Buyer under this Agreement, Seller, , shall be
entitled to terminate the Agreement and the Deposit shall be paid to the
Seller by Escrow Agent as agreed upon liquidated damages for such breach and
default. Seller acknowledges and agrees that Buyer was materially induced to
enter into this Agreement in reliance upon Seller's agreement to accept the
foregoing limitations on its remedies in the case of a breach of this
Agreement by Buyer, and that Buyer would not have entered into this Agreement
but for Seller's agreement to so limit its remedies".
19. Time. Time is of the essence to this Agreement for Purchase and Sale.
20. Escrow. Nothing contained herein shall be deemed to obligate the Escrow
Agent to disburse monies, or record or transfer any documents hereunder
unless the same shall have been received by the Escrow Agent pursuant to the
provisions of this Agreement. The Escrow Agent shall have no duty or
obligation to collect any documents not deposited with him and shall not be
responsible for any defaults hereunder by any other party. Escrow Agent may
consult with counsel of his choice and shall have full and complete
authorization and protection for any action taken or suffered by him in good
faith and in accordance with the opinion of such counsel. Buyer and Seller
agree, jointly and severally, to indemnify the Escrow Agent and hold him
harmless from any and all claims, liabilities, losses actions suits or
proceedings at law or in equity and any other expense with which he may be
threatened by reason of acting as Escrow Agent under this Agreement, except
in the case of willful misconduct or gross negligence. Notwithstanding the
foregoing, the Escrow Agent shall have no interest in the funds or documents
being held in escrow. All of the terms and conditions in connection with the
Escrow Agent's duties and responsibilities are contained in this instrument,
and the Escrow Agent is not required to be familiar with the provisions of
any other instrument or agreement, and shall not be charged with any
responsibility or liability in connection with the observance of
non-observance by anyone of the provisions of such other instrument or
agreement. Escrow Agent may rely, and shall be protected in acting upon any
paper or other document which may be submitted to him in connection with his
duties hereunder and which is believed by him to be genuine and to have been
signed or presented by the property party or parties, and he shall have no
liability or responsibility with respect to the form, execution or validity
thereof. Escrow Agent shall not be required to institute or defend any action
or legal process involving any matter referred to herein which in any manner
affects his duties or liabilities hereunder unless or until receiving full
indemnity in an amount and of such character as he shall require, against any
and all claims, liabilities, judgments, and other expenses of every kind in
relation thereto, except in the case of willful misconduct or gross
negligence. Escrow Agent shall not be bound nor in any way be affected by any
notice of any modification, cancellation, abrogation or rescission of this
Agreement, or any fact or circumstance affecting or alleged to affect the
rights or liabilities of any other persons, unless he has received written
notice satisfactory to him, signed by all parties to this Agreement.
If Buyer and Seller shall be in disagreement about the interpretation of these
escrow provisions, or about the rights and obligations of, or the propriety
of any action contemplated by the Escrow Agent hereunder, Escrow Agent may,
in his sole discretion, file an action in interpleaded to resolve said
disagreement. Escrow Agent shall be indemnified for all costs in connection
with the aforesaid interpleaded action, and shall be fully protected in
suspending all or a part of his activities under this Agreement until a final
judgment in the interpleaded action is received.
21. Construction. The captions and headings used in this Agreement are for the
convenience of reference only, and are not part of this Agreement and shall
not be used in construing it.
22. Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement and understanding between the parties with
respect to the subject matter hereof, and may not be changed, except by an
instrument in writing signed by the party against whom enforcement of such
change would be sought. This Agreement shall be binding upon the parties
hereto and their respective heirs, executors, successors and permitted assigns.
23. Governing Law and Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida without reference to the
laws of any other jurisdiction. The venue of any litigation arising out of
this Agreement shall be Palm Beach County, Florida. In the event it becomes
necessary for either party To litigate in order to enforce its rights under
the terms of this Agreement, then the prevailing party shall be entitled to
reimbursement of its litigation costs and reasonable attorney's fees,
including those caused by appellate proceedings, by the other party.
24. Notices. All notices and communications hereunder, to be effective, shall
be in writing and shall be delivered or mailed by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows: .
If to Seller: SOUTH PALM CONDOMINIUM, INC.
WATER RESOURCES CORPORATION
7000 West Palmetto Park Road
Suite 212
Boca Raton, Florida 33433
With a copy to: Fred Cohen, Esquire
COHEN, CHERNAY, NORRIS,
WEINBERGER & HARRIS
712 U.S. Highway One
Fourth Floor
North Palm Beach, Florida 33408
If to Buyer: ENGLE HOMES/PALM BEACH, INC,
123 Northwest 13th Street
Suite 300
Boca Raton, Florida 33432
An address referred to in this Paragraph may be changed from time to time by
the party to whom that address refers by sending written notice to the other
party.
25. Severability. This Agreement is intended to be performed in accordance
with, and only to the extent permitted by, all applicable laws, ordinance,
rules and regulations. If any provision of this Agreement or the application
thereof to any person or circumstances shall, for any reason and to the
extent, be invalid or enforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent
permitted by law.
26. Further Acts and Relationship. In addition to the acts and deeds recited
herein and contemplated and performed, executed, and or delivered by Seller
and Buyer, Seller and Buyer agree to perform, execute, and/or deliver or
cause to be performed, executed, and/or delivered at the Closing, any and all
such further acts, deeds, and assurances as may be reasonably necessary to
consummate the transactions contemplated hereby. Nothing contained in this
Agreement shall constitute or be construed to be or create a partnership,
joint venture or any other relationship between Seller and Buyer other than
the relationship of Buyer and Seller of real property as set forth in this
Agreement.
27. Waiver of Trial by Jury. The parties to this Agreement hereby waive their
respective rights to trial by jury in any action, proceeding, counterclaim,
or the like, brought by either of them concerning any matters arising out of
or in any way connected with this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
WITNESSES: SELLER: A JOINT VENTURE
CONSISTING OF:
SOUTH PALM CONDOMINIUM, INC.,
a Florida corporation
By
WATER RESOURCES CORPORATION, a Florida corporation
BUYER:
ENGLE HOMES/PALM BEACH, INC.
MOYLE, FLANIGAN, KATZ, FITZGERALD & SHEEHAN as Escrow Agent hereby
acknowledges receipt of the cash and Bond described in the foregoing Agreement.
MOYLE, FLANIGAN, KATZ,
FITZGERALD & SHEEHAN
BY:
Cohen, Chernay, Norris, Weinberger & Harris hereby acknowledges receipt of the
ONE HUNDRED THOUSAND DOLLARS ($100,000.00) nonrefundable cash deposit
described in the foregoing Agreement.
COHEN, CHERNAY, NORRIS,
WEINBERGER & HARRIS
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
Tracts 4 through 11, inclusive and Tracts 22 through 27, inclusive, Block 79,
Palm Beach Farms Co. Plat No. 3, according to the plat thereof as recorded in
Plat Book 2, Page 45 of the Public Records of Palm Beach County, Florida.
EXHIBIT "A-1"
LEGAL DESCRIPTION OF THE 10 ACRE PARCEL
Tracts 10 and 11, Block 79, Palm Beach Farms Co. Plat No. 3, according to the
map or plat thereof as recorded in Plat Book 2, Page 45 of the Public Records
of Palm Beach County, Florida.
ASSIGNMENT OF AGREEMENT
[OR VALUE RECEIVED, tile undersigned, as Assignor, makes this Assignment as of
the day of September, 1996, and hereby assigns, transfers and sets over to
JJFN SERVICES, INC. a Delaware Corporation (Assignee) all its right, title
and interest in and to that Agreement for Purchase and Sale dated March 29,
1996, ("Agreement"), between Assignor and South Palm Condominium, Inc. and
Water Resources Corporation for the purchase and sale of real property
located in Palm Beach County, Florida.
The Assignee hereby ratifies and adopts the subject Agreement and all addenda
thereto and assumes and agrees to perform and be responsible for all of the
obligations of the Assignor under the Agreement.
ASSIGNOR:
ENGLE HOMESIPALM BEACH, INC.
corporation
CONSENT BY SELLER
The undersigned, as Seller in the above referenced transaction, hereby
consents to the subject Assignment.
WITNESSES: SELLER: A JOINT VENTURE
CONSISTING OF:
SOUTH PALM CONDOMINIUM, INC.
. WATER RESOURCES
ASSIGNMENT OF CONTRACTS
FOR VALUE RECEIVED, the undersigned, as Assignor makes this Assignment as of
the lath day of September, 1996, and hereby assigns, transfers and sets over
to JJFN SERVICES, INC., a Delaware Corporation (Assignee) all its right,
title and interest in and to those six (6) contracts for Purchase and Sale
(Contracts) copies of which are attached hereto, for the purchase and sale of
approximately 70 acres of real property located in Palm Beach County, Florida.
The Assignee hereby ratifies and adopts the subject Contract and all addenda
thereto and assumes and agrees to perform and be responsible for all of the
obligations of the Assignor under the Agreement.
WITNESSES: ASSIGNOR: A JOINT VENTURE
CONSISTING OF:
SOUTH PALM CONDOMINIUM, INC.
WATER RESOURCES CORPORATION a Florida corporation
ASEE:
WIT MASS; JJFN SERVICES, INC.
MEMORANDUM OF AGREEMENT
This Memorandum has been recorded to give constructive notice as to the
existence of an Agreement between JJFN Services, Inc., a Delaware corporation
and Engle Homes/Palm Beach, Inc., a Florida corporation ("Engle") in
relationship to an agreement to acquire three hundred seventy-one (371) lots
pursuant to a rolling option contract, and to the real property described as:
Tracts 4 through 11, inclusive and Tracts 22 through 27, inclusive, Block 79,
Palm Beach Farms Co. Plat No. 3, according to the plat thereof as recorded in
Plat Book 2, Page 45 of the Public Records of Palm Beach County, Florida.
Tracts 10 and 11, Block 79, Palm Beach Farms Co. Plat No. 3, according to the
map or plat thereof as recorded in Plat Book 2, Page 45 of the Public Records
of Palm Beach County, Florida.
Further, this Memorandum is subordinate in all respects to that
certain mortgage recorded in OR Book Page of the Public Records of Palm Beach
County, Florida and interests of any successors to said mortgage by sale,
foreclosure~deed in lieu of foreclosure or any other event arising under said
mortgage whatsoever.
WITH: /7/: ENGLE HOMES/PALM BEACH, INC.
corporation O
NOT~4RYPUBLIC I< - Typed or Printed Name WC
Abel, State d Honda My Commission Expire: (Impress or Affix Seal)fly
Cornmission Expires Sept. 6, 1998 Commission No.: Bonded Thru 0ffirut
lasters Error
STATE OF FLORIDA
COUNT
The forgoing instrument as acknowledged before me on the 29 day of September,
1996 by Susances, Inc. and she is personally known to me.
NOTARY PUBLIC
Typed or Printed Name:
My Commission Expires
OPTION TO PURCHASE CONTRACT BETWEEN
ENGLE HOMES/PALM BEACH, INC.
AND
JJFN SERVICES, INC.
This option contract to purchase ("Contract") is made and entered into as of
the Effective Date of this Contract (as hereafter defined) by and between
ENGLE HOMES/PALM BEACH, INC., a Florida corporation, whose address is 123
N.W. 13th Street, Suite 300, Boca Raton, Florida 33432 ("Buyer"), and JJFN
SERVICES, INC., a Delaware corporation whose address is 2500 Military Trail
North, Suite 220, Boca Raton, Florida 33431 ("Seller").
WITNESSETH:
WHEREAS, Buyer has entered into an agreement for Sale and Purchase dated March
29, 1996 between Buyer and South Palm Condominium, Inc. and Water Resources
Corporation ("Original Agreement") for seventy (70) acres said property
situated in Palm Beach County, Florida more particularly described on Exhibit
"A" attached hereto and made part hereof ("Property"); and
WHEREAS, Seller has agreed to take assignment of the Original Agreement and
forthwith close upon same; and
WHEREAS, Seller desires to sell the Property and Buyer desires to purchase the
Property front Seller, upon the terms and conditions hereinbelow set forth.
NOW THEREFORE, for and in consideration of the premises hereof, the sums of
money to be paid hereunder, the mutual covenants herein contained, and for
other good and valuable considerations, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto do covenant, stipulate and agree
as follows, to wit:
1. Recitals The foregoing recitals are true and correct and are incorporated
herein by this reference.
2. agreement to Buy and sell Seller agrees to sell the Property to Buyer and
Buyer agrees to purchase the Property from Seller in the manner and upon the
terms and conditions hereinbelow set forth in this Contract.
3. Purchase Price and Method of Payment Subject to credits, adjustments and
prorations for which provisions are hereinafter made in this Contract, the
purchase price for the Property to be paid by Buyer and received and accepted
by Seller shall be a sum which is the total price paid (excluding financing
cost) by Seller as shown on the closing statement for the Property plus all
sums advanced by Seller pursuant to the Development Agreement as set forth in
Section 5 herein divided by the number of lots approved for the Property. The
price to be paid for each lot by Buyer to Seller is shown on Exhibit "B"
attached hereto and made part hereof ("Base Purchase Price"). The Base
Purchase Price shall be paid by Buyer to Seller in the manner and at the times
following, to wit:
a. The Buyer's deposit in the amount of One Million Seven Hundred Nineteen
Thousand Dollars ($1,719,000) shall be deposited with and held by Universal
Land Title, Inc., (hereinafter sometimes referred to as "Escrow Agent") as an
earnest money deposit ("Earnest Money Deposit") hereunder, simultaneously
with Seller's acceptance of this Contract, which sum shall be held by Escrow
Agent, in escrow subject to disbursement in accordance with the terms and
provisions of this Contract. The Earnest Money Deposit shall be held by Escrow
Agent in an interest bearing account at the maximum interest rate obtainable
and interest earned thereon shall be credited to Buyer at die final closing
of Lots and reported under Buyer's U.S. Taxpayer Identification Number which
is 65-0326491. Buyer may, in the alternative, deposit with Seller a Letter of
Credit in a form reasonably acceptable to Seller for the full amount of the
Earnest Money Deposit. Except as otherwise provided in this Contract, the
Earnest Money Deposit shall be credited toward the last lots to be acquired
by Buyer and considered as payment of part of the purchase price for the
Property at which time the interest earned thereon shall be delivered to
Buyer.
b. Buyer shall close on no less than one million dollars ($1,000,000) in Lots
based on the Base Purchase Price for each lot type shown on Exhibit B within
ten (10) days of notice from Seller that the Lots are completed in accordance
with Paragraph 5 herein ("Initial Closing"). The Initial Closing shall occur
no later than 180 days from the Effective Date force majeur excepted. Buyer
shall, thereafter, close a minimum of one million dollars ($1,000,000) in Lots
every ninety (90) days from the Initial Closing until all Lots have been
acquired by Buyer ("Subsequent Closing" or "Closing"). All funds due to
Seller from Buyer at the time of each closing shall be paid by federal funds
"wire transfer" to Seller. Notwithstanding the foregoing, Buyer may close any
Lots or the Property at any time and the dollar amount of said Lots or the
Property paid to Seller shall be credited toward Buyer's required future
payments to Seller.
c. During the period from the date upon which Seller closes the
Property pursuant to the assignment of the Original Agreement from Buyer to
Seller ("Purchase Date") Date"), until the final closing by Buyer of all the
Lots subject to this Contract, Buyer , agrees to pay Seller on a monthly
basis a nonrefundable option fee equal to an amount calculated by (i)
multiplying the total price paid by Seller for the Property plus all closing
costs (excluding financing costs) as shown on the closing statement for the
Property and (ii) all sums paid by Seller to Buyer pursuant to the Development
Agreement as hereinafter defined by (iii) twelve percent (12%), (iv) dividing
by 360 and (v) multiplying by the number of days from the Effective Purchase
Date until the first day of each calendar month ("Option Fee").
d. Buyer may, at Buyer's option, close on its purchase of the Lots hereunder
prior to the date set forth above by giving notice of the early purchase of
such Lots in accordance with the requirements of Paragraph 21 hereof. The
notice shall identify the Lots which Buyer is purchasing. In such event, the
excess Lots purchased shall be credited toward subsequent closing obligations
of the Buyer.
e. In the event that Buyer fails to purchase the Lots on or before the date
set forth above, and Seller is not otherwise in default or breach hereunder,
then Seller shall give written notice to Buyer of Buyer's failure to satisfy
such requirements and in the event Buyer has failed within five (5) days from
receipt of such notice to purchase such Lots, then Buyer shall be in default
under this Contract and Seller shall have available all the remedies specified
in Paragraph 15 herein.
4. Survey and Title Matters.
a. Buyer shall, at Buyer's expense, obtain a survey of the Property
("Survey"), certified to Buyer, Seller, and the Title Company (as hereinafter
defined), and Underwriter (as hereafter defined) and certifying that such
Survey was prepared in accordance with the minimum technical requirements and
standards promulgated by the Florida Board of Professional Land Surveyors,
Chapter 21 HN-6 of the Florida Administrative Code and Section 427.027 of the
Florida Statutes. The Surveyor's seal shall be affixed to the Survey.
b. Pursuant to the Original Agreement, Buyer has obtained and has delivered to
Seller a current title insurance commitment for the Property ("Title
Commitment"), issued by Cohen, Chernay, Norris, Weinberger & Harris as agent
for Attorney's Title Insurance Fund, and copies of all exceptions referred to
therein. Buyer agrees that all of the matters set forth on Exhibit "C"
attached hereto and made a part hereof are acceptable to Buyer and shall not
be considered title objections to by Buyer ("Permitted Exceptions").
c. Within ten (10) days prior to each Closing, Seller shall, at Buyer's
expense, shall obtain and deliver to Buyer a title commitment issued by
Universal Land Title ("Title Company") for all the Lots to be purchased at
that Closing ("Commitment"). The Commitment obligates the Title Company to
issue and ALTA (1990 Form) Owners title insurance policy in favor of Buyer for
the amount of the Purchase Price ("Title Policy"). The Title Policy shall
insure Buyer's fee simple title to the Property, subject only to the Permitted
Exceptions. Seller shall use its best efforts to ensure that all Commitments
are consistent with the original Title Commitment. Buyer shall pay for the
cost of the title insurance policy and title insurance in favor of Buyer's
mortgagee and for any endorsements required by either the Buyer or Buyer's
mortgagee.
d. Buyer shall have five (5) business days after receipt of each title
commitment and the title documents applicable to such Lots to notify Seller
in writing of any objections Buyer has to any exceptions to title contained
in the Commitment ("Title Defects"). In connection with the Commitment
provided pursuant to Buyer's notice of closing on Lots, Buyer may only object
to any additional title exceptions which did not appear in the Title
Commitment Buyer may not object to anything shown on the recorded final plat
of the Lots. Any exceptions to title contained in the Commitment to which
Buyer does not object in writing before the end of the applicable title
review period, together with any and customary taxes not yet due and payable
for the current calendar year and subsequent years and any customary
exceptions relating to Buyer's financing shall also be deepened "permitted
exceptions".
e. If Buyer does furnish written notice to Seller of Title Defects in
accordance with the foregoing provisions, Seller shall have the option to
either: (i) elect not to attempt to cure such Title Defects, in which case
Seller shall deliver written notice of such refusal to Buyer within five (5)
days following Seller's receipt of such written notice of Title Defects; or
(ii) attempt to cure such Title Defects within thirty (30) days of its
receipt of the written notice of the Title Defects. In the event Seller shall
either refuse to attempt to cure the title defects or is unable to cure or
eliminate the Title Defects within the thirty (30) day period of time stated
above, Buyer shall have the option to either: (i) waive the Title Defects and
proceed with the acquisition of all of the Lots pursuant to the terms of this
Contract; or (ii) terminate this Contract only as to the Lots affected by
such Title Defects and proceed with the acquisition of all remaining Lots
pursuant to the terms of this Contract; or (iii) if the objection is
applicable to more than fifty percent (50%) of the Lots remaining
unpurchased, terminate this Contract as to all remaining Lots, in which event
the Deposit shall be returned to Buyer and this Contract shall be null and
void.
5. Conditions Precedent to Closing Seller agrees, promptly after the Effective
Date, to enter into an agreement with Buyer for the development of the
Property ("Development Agreement"). The Development Agreement shall provide
that Buyer will develop the Property into Lots in a manner consistent with
the conditions set forth herein this Paragraph 5 and in conformance with the
plans prepared and permits issued for the Property. The Development Agreement
shall contain the following conditions:
a. A sanitary sewer system shall be provided together with a sub-in tap
connection installed from the sewer main ten (10) feet into the front of the
Lot.
b. A public water system shall be provided together with a tap connection
installed from the water main ten (10) feet into the front of each Lot.
c. All curbs, gutters, paved streets, and storm drainage facilities necessary
to serve the Lots shall be provided.
d. Electric and telephone service shall have been contracted for with the
proper utility company.
e. A drainage system shall be provided and all Lots shall be graded in
accordance with a grading plan approved by Palm Beach County.
f. All street signs, pavement markings, and other street appurtenances deemed
necessary by the appropriate governing jurisdiction shall have been installed.
g. The Lots shall be approved by Palm Beach County such that a building permit
shall be available without further development of the Lot being required.
h. All off-site development work, including, without limitation, the
construction and installation of all required improvements adjacent to the
Property.
i. All of the foregoing improvements shall be constructed in compliance with
the requirements of all applicable ordinances, codes and similar governmental
impositions. Buyer agrees to complete the work set forth in the Development
Agreement for a fixed price not to exceed the cost estimate prepared by the
engineer of record for the Property. Buyer shall provide a Performance Bond
to Palm Beach County for all bondable costs required by Palm Beach County in
a form substantially similar to that attached as Exhibit D and shall remain
solely responsible for the cost of any development approvals. Seller agrees
to pay Buyer on a monthly basis the costs expended by Buyer to develop the
Property pursuant to the Development Agreement.
6. Conveyance of Property, At the time of Closing hereunder, Seller agrees to
convey title to the Real Property to Buyer by Special Warranty Deed free and
clear of all liens encumbrances and exceptions whatsoever, save and except
only for the Permitted Exceptions.
7. Closing. The transaction contemplated in this Contract shall be closed, the
Purchase Price paid and aforesaid Special Warranty Deed, and other closing
documents reasonably required by either party shall be executed and delivered
on the date for the Initial Closing. The Initial Closing and all Subsequent
Closings hereunder shall take place at a location mutually agreeable to Buyer
and Seller within Palm Beach County, Florida or by Courier and/or Federal
Express with transmittal of all executed documents and funds required for
closing on the date as specified herein, unless extended by other provisions
hereof.
8. Closing Costs. The Buyer shall pay the cost of the state documentary stamps
required to be affixed to the Special Warranty Deed and the cost of recording
of the Special Warranty Deed and the premium for the owners' title insurance
policy to be issued pursuant to the Commitment at the promulgated rate. Each
of the respective parties shall bear its own attorneys' fees.
9. Possession. Possession of the Property, including all items to be
transferred by Seller to Buyer pursuant to this Contract, shall be delivered
by Seller to Buyer at the time of each Closing.
10. Prorations. Ad valorem real and personal property taxes for the year of
Closing shall be prorated as of the Effective Date. If however, the amount of
such taxes for to year of closing cannot be ascertained, the rates, millages
and assessed valuations for the previous year, with known changes and
utilizing full discounts, shall be used as an estimate, and tax prorations
based on such estimate shall be readjusted when the actual tax bills for the
year of sale are received.
11. Intact Fees. Buyer shall be responsible for any impact fees and/or
connection fees associated with the construction of single family homes upon
the Property.
12. Association Documents Buyer shall, at Buyer's expense, prepare homeowner
association documents for the Property in accordance with Buyer's intended
plan for development prior to the initial Closing ("Documents"). The
documents may be reviewed by Seller and are subject to Seller's reasonable
approval. Seller agrees to record such documents against the Property after
the plat for the Property has been recorded. If Buyer fails to prepare the
Documents as stated herein, Seller may complete the Documents and Buyer shall
reimburse Seller for any reasonable cost incurred.
13. Warranties and Representations of Seller, To induce Buyer to enter into
this Contract, Seller, to the best of Seller's knowledge, hereby makes the
following representations and warranties. None of Seller's representations or
warranties shall survive Closing or the earlier termination of this Contract
for any reason. Upon Closing, all such representations and warranties shall be
deemed to be merged into the Deed.
a. Seller will, at Closing, own fee simple title to the Property, and, to the
best of its knowledge, but without investigation of any kind, said title is
free and clear of all liens, special assessments, easements, reservations,
restrictions and encumbrances other the ad valorem real property taxes and
matters of record, and the Permitted Exceptions.
b. Seller has the full right, power and authority to enter into and deliver
this Contract and to consummate the sale of the Property in accordance
herewith and to perform all covenants and agreements of Seller hereunder.
c. The execution and delivery of this Contract and the consummation of the
transaction contemplated herein shall not and do not constitute a violation
or breach by Seller of any provision of any agreement or other instrument to
which Seller is a party, nor result in or constitute a violation or breach of
any judgment, order, writ, injunction or decree issued against Seller.
d. Seller is a United States corporation, not a foreign entity (as such terms
are defined in the Internal Revenue Code and Income Tax Regulations), for
puree l of U.S. income taxation and Seller's U.S. Taxpayer Identification
Number is l - 2 and no withholding of sale proceeds is required with respect
to Seller's interest in the Property under Section 1445(a) of the Internal
Revenue Code.
e. There are no outstanding unpaid bills for labor performed on or materials
supplied to the Property for which a lien could be filed except for those
specified under the Development Agreement.
f. Seller has received no notice of any threatened, condemnation or eminent
domain proceedings affecting the Property.
g. There is no pending, or to Seller's knowledge, threatened, litigation or
claims affecting the Property.
h. EXCEPT AS TO THE FOREGOING REPRESENTATIONS AND WARRANTIES AND ANY OTHER
WARRANTIES AND REPRESENTATIONS OF SELLER SET FORTH IN THIS CONTRACT, THE
BUYER ACKNOWLEDGES AND AGREES THAT IT IS PURCHASING THE SUBJECT PROPERTY IN
"AS IS" CONDITION.
14. Warranties and Representations of Buyer. To induce Seller to enter into
this Contract, Buyer hereby makes the following representations and
warranties, all of which shall survive Closing or the earlier termination of
this Contract for any reason.
a. Buyer has the full right, power and authority to enter into and deliver
this Contract and the Development Agreement and to consummate the purchase of
the Property in accordance herewith and to perform all covenants and
agreements of Buyer hereunder.
b. The execution and delivery of this Contract and the consummation of the
transaction contemplated herein shall not and do not constitute a violation
or breach by Buyer or any provision of any agreement or other instrument to
which Buyer is a party, nor result in or constitute a violation or breach of
any judgment, order, writ, injunction or decree issued against Buyer.
15. Default.
a. In the event Seller breaches any warranty or representation contained in
this Contract or fails to comply with or perform any of the covenants,
agreements, or obligations of a material nature to be performed by Seller
under this Contract, Buyer, in Buyer's sole discretion, shall be entitled to
either (i) terminate the Contract and receive an immediate refund of the
Earnest Money Deposit from Escrow Agent or (ii) exercise any and all rights
and remedies available to Buyer in equity, including, without limitation, the
right of specific performance; provided, however, Buyer hereby waives any
right it may now or in the future have, at law, equity or otherwise, to seek
or obtain money damages from Seller. Buyer acknowledges and agrees that
Seller was materially induced to enter into this Contract in reliance upon
Buyer's agreement to accept the foregoing limitations on its remedies in the
case of a breach of this Contract by Seller, and that Seller would not have
entered into this Contract but for Buyer's agreement to so limit its remedies.
b. In the event Buyer fails to comply with or perform any of the covenants,
agreements or obligations of a material nature to be performed by Buyer under
this Contract, Seller shall be entitled to terminate the Contract and receive
the Earnest Money Deposit with all interest earned thereon as agreed upon
liquidated damages for such breach and default from Escrow Agent. Seller
acknowledges and agrees that Buyer was materially induced to enter into this
Contract in reliance upon Seller's agreement to accept the foregoing
limitations on its remedies in the case of a breach of this Contract by
Buyer, and that Buyer would not have entered into this Contract but for
Seller's agreement to so limit its remedies. Notwithstanding the foregoing,
Seller may proceed in equity against Buyer to recover any uncollected Option
Fee.
c. Cross-Default. This Contract shall be cross-defaulted with the Development
Agreement. A Default under the Development Agreement shall constitute a
Default under this Contract. A Default under this Contract shall constitute a
Default under the Development Agreement. To the extent not prohibited by
applicable law, if either party avails itself of this cross-default provision,
the nondefaulting party shall have the option to pursue its remedies under
either the Contract or Agreement or both.
16. Condemnation In the event the Property or any material portion or portions
thereof shall be taken or condemned or be the subject to a bona fide threat
of condemnation by any governmental authority or other entity prior to
Closing, Buyer shall have the option of either (i) terminating this Contract
by giving written notice thereof to Seller and Escrow Agent, whereupon the
Earnest Money shall be immediately refunded by Escrow Agent to Buyer, and
this Contract and all rights and obligations created hereunder shall be null
and void and of no further force or effect, (ii) requiring Seller to convey
the portions of the Property remaining after the taking or condemnation based
on a reduced price calculated on the number of dwelling units lost to
development as a result of the taking or condemnation, and Seller shall
retain all of the right, title and interest of Seller in and to any award
made or to be made by reason of such taking or condemnation, or (iii)
requiring Seller to convey the entirety of the Property to Buyer for the full
Purchase Price if the taking or condemnation has not yet occurred, pursuant
to the terms and provisions hereof, and to transfer and assign to Buyer at
the Closing all of Seller's right, title and interest in and to any award
made or to be made by reason of such taking or condemnation. Seller and Buyer
further agree that Buyer shall have the right to participate in all
negotiations with such governmental authority relating to the Property or to
the compensation to be paid for any portion or portions thereof condemned by
such governmental authority or other entity.
17.Signage and Trailer. Upon execution and so long as Buyer has performed the
matters to be performed by the Buyer in accordance with the terms of this
Contract and so long as Buyer is not otherwise in default hereof, the Buyer
shall have the right to place and use on the Property a sales trailer and
signage ("Trailer"). The Buyer will indemnify and protect the Seller from and
against any and all claims against the Seller arising out of the placing and
use of such trailer on the Property other than for the gross negligence and
willful misconduct of Seller. The Seller will be named as an additional
insured on the Buyer's Insurance Policy with a minimum $1,000,000 liability
coverage as concerns the Trailer. This indemnification shall survive Closing
or the earlier termination hereof. In the event the Buyer fails to close, the
Buyer agrees to forthwith remove the Trailer from the Property and to restore
the Property on which the Trailer was situated to its prior condition.
18. Litigation and Attorneys' Feed In the event it shall be necessary for
either party to this Contract to bring suit to enforce any provision hereof
or for damages on account of any breach of this Contract or of any warranty,
covenant, condition, requirement or obligation contained herein, the
prevailing party in any such litigation, including appeals, shall be entitled
to recover from the other party, in addition to any damages or other relief
granted as a result of such litigation, all costs and expenses of such
litigation and a reasonable attorneys' fee as fixed by the Court.
19. Survival of Provisions. The provisions of this Contract shall not survive
the closing hereunder except as expressly provided elsewhere in this Contract.
20. Time of Essence. It is expressly agreed by both the Seller and Buyer that
time is of the essence of this Contract and in the performance of all
conditions, covenants, requirements, obligations and warranties to be
performed or satisfied by the parties hereto. Waiver of performance or
satisfaction of timely performance or satisfaction of any condition, covenant,
requirement, obligation or warranty by one party shall not be deemed to be a
waiver of the performance or satisfaction of any other condition, covenant,
requirement, obligation or warranty unless specifically consented to in
writing.
21. Notices. Any notice or other communication permitted or required to be
given hereunder by one party to the other shall be in writing and shall be
delivered or mailed, by registered or certified United States Mail, postage
prepaid, return receipt requested, or by facsimile or telecopy transmission
with acknowledgment of receipt upon transmission, to the party entitled or
required to receive the same, as follows:
As to Seller: ENGLE HOMES/PALM BEACH, INC.
123 N. W. 13th Street
Suite 300
Boca Raton, Florida 32817
Attention: John A. Kraynick, Vice President
Phone: 407-391-4012
Fax: 407-750-6945
As to Buyer: JJFN SERVICES, INC.
2500 Military Trail North
Suite 220
Boca Raton, Florida 33431
Attention: Susan Schlapkohl, President
Phone: 407-995-0043
Fax: 407-995-0636
with a copy to: LIBO B. FINEBERG
Attorney at Law
3500 Gateway Drive, Suite 201
Pompano Beach, Florida 33069
Phone: 954-975-6060
Fax: 954-975-6005
Any notice to Seller hereunder shall not be effective unless and until a copy
thereof has also been delivered, mailed or telecopied, in accordance with the
foregoing requirements, to Escrow Agent at the address set forth above.
22. Governing Law and Binding Effect. This Contract and the interpretation and
enforcement of the same shall be governed by and construed in accordance with
the laws of the State of Florida and shall be binding upon, inure to the
benefit of, and be enforceable by the parties hereto as well as their
respective heirs, personal representatives, successors and assigns.
23. integrated Contras Waiver and MQdi6Cat;On. This Contract represents the
complete and entire understanding and agreement between the parties hereto
with regard to all matters involved in this transaction and supersedes any
and all prior or contemporaneous agreements, whether written or oral. No
agreements or provisions, unless incorporated herein, shall be binding on
either party hereto. This Contract may not be modified or amended nor may any
covenant, agreement, condition, requirement, provision, warranty or
obligation contained herein be waived, except in writing signed by both
parties or, in the event that such modification, amendment or waiver is for
the benefit of one of the parties hereto and to the detriment of the other,
then the same must be in writing signed by the party to whose detriment the
modification, amendment or waiver inures.
24. Brokerage. Each of the Seller and Buyer warrants to the other that no
commissions are payable or due to any broker or finder in connection with
this Contract or the transaction contemplated herein and each of Seller and
Buyer agrees to indemnify, defend and hold the other harmless from and
against any commissions or fees or claims for commissions or fees arising
under the indemnifying party, which indemnification shall expressly survive
the termination of this Contract and the Closing of the Sale and purchase of
the Subject Property contemplated by this Contract
25. Joinder of Escrow Aged Escrow Agent joins in the execution of this
Contract for the express purpose of acknowledging receipt of the Earnest
Money Deposit lodged with it by Buyer and agreeing to be bound by the
provisions herein set forth with respect to the disbursement of the Earnest
Money Deposit. Buyer and Seller hereby authorize the payment of said Earnest
Money Deposit with interest earned thereon, by the Escrow Agent in accordance
with the terms and provisions set forth in this Contract. In the event,
however, that in the discretion of the Escrow Agent there exists some doubt
as to how or under what circumstances the Earnest Money Deposit or interest
earned thereon shall be disbursed hereunder, and the parties hereto are unable
to agree and direct, in writing, as to when or under what circumstances the
Escrow Agent shall disburse the same, Escrow Agent shall be entitled to
interplead said earnest money deposit and interest into the Circuit Court of
Palm Beach County, Florida, without further liability or responsibility on its
part. Costs, expenses and attorneys fees associated with any such
interpleader shall be deducted from the amount of the earnest deposit and
interest prior to its deposit into the registry of the Court.
26. Severability. This Contract is intended to be performed in accordance
with, and only to the extent permitted by, all applicable laws, ordinance,
rules and regulations. If any provision of this Contract or the application
thereof to any person or circumstances shall, for any reason and to the
extent, be invalid or enforceable, the remainder of this Contract and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent
permitted by law.
27. Recordation. The parties agree that a Memorandum of this Contract, as
shown on Exhibit E attached hereto and made part hereof, shall be recorded in
the Public Records of Palm Beach County, Florida.
28. Execution and Counterparts. To facilitate execution, the parties hereto
agree that this Contract may be executed and telecopied to the other party
and that the executed telecopy shall be binding and enforceable as an
original; the parties agree to fully execute two (2) originals of this
Contract. This Contract may be executed in as many counterparts as may be
required and it shall not be necessary that the signature of, or on behalf
of, each party or that the signatures of all persons required to bind any
party, appear on each counterpart; it shall be sufficient that the signature
of, or on behalf of, each party, or that the signatures of the persons
required to bind any party, appear on one or more of such counterparts. All
counterparts shall collectively constitute a single Contract.
29. Further Acts and Relationships. In additions to the acts and deeds recited
herein and contemplated and performed, executed, and or delivered by Seller
and Buyer, Seller and Buyer agree to perform, execute, and/or deliver or
cause to be performed, executed, and/or delivered at Closing or after the
Closing, any and all such further acts, deeds, and assurances as may be
reasonably necessary to consummate the transactions contemplated hereby.
Nothing contained in this Contract shall constitute or be construed to be or
create a partnership, joint venture or any other relationship between Seller
and Buyer other than the relationship of Buyer and Seller of real property as
set forth in this Contract.
30. WAIVER OF JURY TRIAL THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY BUYER OR ANY MATTERS
ARISING OUT OF OR IN ANY WAY IN CONNECTION WITH THIS CONTRACT.
31. Effective Date. When used herein, the term "Effective Date" or the phrase
"the date hereof" or "the date of the Contract" shall mean the last date that
either Buyer or Seller executes this Contract.
32. Joint Preparation The preparation of this Contract has been a joint effort
of the parties and the resulting documents shall not, solely as a matter of
judicial construction, be construed more severely against one of the parties
than the other.
33. Mortgagedi~/SuLn~jua5Q~. Any mortgage lien or other lien or easement
which, in the reasonable discretion of Seller, Seller desires to place on the
Property, may be made by Seller so long as such mortgage lien or liens shall
be released of record at Closing and that such easements are necessary to the
development of the Property and do not materially interfere with Buyer's
intended use of the Property. Buyer also agrees to subordinate its position
under this Contract to any lender of Seller and to consent to a Collateral
Assignment of the rights under this Contract and the Development Agreement
and the deposit to such lender and to execute any and all documentation
necessary to accomplish same and as required by Seller's lender.
IN WITNESS WHEREOF, Buyer and Seller have executed this Contract, each on the
date set forth below.
Signed, sealed and delivered in the presence of:
WITNESS ENGLE HOMES/PALM BEACH,
EXHIBIT "A"
Tract 4 through 11, inclusive and Tracts 22 through 27, inclsuve, Block 79
Palm Beach Farms Co. Plat No. 3, according to the Plat thereof recorded in
Plat Boos 2, Page 49 of the Public Records fo Palm Beach Couty, Florida, LESS
the North 28 feet of Tracts 4 through 7 and LESS the North 26 feet of Tracts
8 and 9.
EXHIBIT "B"
BASE PURCHASE PRICE CALCULATION
LOT TYPE LOT NO. LAND(1) SITE(2)TOTAL(3) CUMULATWE
Town 126 $16,640 $ 8,712 $25,352 $ 3,194,352
Villa 128 $17,749 $ 9,293 $27,042 $ 3,461,376
Zero 87 $33,280 $17,424 $50,703 $ 4,411,161
Single 30 $44,373 $23,232 $67,605 $ 2,028,1S0
TOTAL $ 13,095,039
Notes: (1) Based on weighted acreage of lot area divided by the base land
purchase price of $8,595,000
(2) Based on weighted acreage of lot area divided by the total site
development cost of $4,500,000.
(3) The total purchase price of the property is $13,095,000
EXHIBIT "C"
FUND COMMITMENT
4. AS TO ALL TRACTS: Restrictions, conditions, reservations, easements,
and other matters contained on the Plat Beach Farms Co. Plat No. 3, as
recorded in Plat Book 2, Page 45, Public Records of Palm Beach County,
Florida.
5. AS TO ALL TRACTS, EXCEPT Tracts 10 & 11: Rights-of-Way to the Lake
Worth Drainage District Easement recorded in Deed Book 904, Page 475, Public
Records of Palm Beach County, Florida.
6. AS TO ALL TRACTS EXCEPT Tracts 10 & 11: Reservations of the Board of
Commissioners of the Everglades Drainage District recorded in Deed Book 779,
Page 557, Public Records of Palm Beach County, Florida.
7. AS TO ALL TRACTS: Riparian and littoral rights are not insured.
AS TO TRACT 4:
8. Right-of-Way for small lateral ditches in favor of other tracts
recorded in Deed Book 72, Page 147, Public Records of Palm Beach County,
Florida.
9. Deed to Lake Wroth Drainage District recorded in Deed Book 113, Page
368, Public Records of Palm Beach County, Florida. (as to the North 28 feet)
10. Deed to Lake Wroth Drainage District recorded in O.R. Book 1585, Page
505, Public Records of Palm Beach County, Florida.
11. Rights in Reservations recorded in O.R. Book 1994, Page 1573, Public
Records of Palm Beach County, Florida.
AS TO TRACT 5:
12. Right-of-Way for small lateral ditches in favor of other tracts
recorded in Deed Book 26, Page 330, Public Records of Palm Beach County,
Florida.
13. Deed to Lake Wroth Drainage District recorded in Deed Book 148, Page
465, Public Records of Palm Beach County, Florida (as to the North 28 feet)
14. Reservations in favor of the State of Florida, as set forth in the
deed from the Trustees of the Internal Improvement Fund of the State of
Florida, recorded in Deed Book 266, Page 505, Public Records of Palm Beach
County, Florida.
15. Deed to Lake Worth Drainage District recorded in O.R. Book 1585, Page
505, Public Records of Palm Beach County, Florida.
16. Rights in Reservations recorded in O.R. Book 1994, Page 1573 and O.R.
Book 1994, Page 1615, Public Records of Palm Beach County, Florida.
AS TO TRACT 6:
17. Right-of-Way for small lateral ditches in favor of other tracts
recorded in Deed Book 53, Page 135, Public Records of Palm Beach County,
Florida.
18. Deed to Lake Worth Drainage District recorded in Deed Book 129, Page
153, Public Records of Palm Beach County, Florida. (as to the North 28 feet)
19. Reservations in favor of the State of Florida, as set forth in the
deed from the Trustees of the Internal Improvement Fund of the State of
Florida, recorded in Deed Book 376, Page 216, Public Records of Palm Beach
County, Florida.
20. Reservations in favor of the State of Florida, as set forth in the
deed from the Trustees of the Internal Improvement Fund of the State of
Florida, recorded in Deed Book 646, Page 303, Public Records of Palm Beach
County, Florida.
21. Deed to Lake Worth Drainage District recorded n O.R. Book 1585, Page
505, Public Records of Palm Beach County, Florida.
22. Rights in Reservations recorded in O.R. Book 1994, Pages 1573 and
1615, Public Records of Pam Beach County, Florida.
AS TO TRACT 7:
23. Right-of-Way for small lateral ditches in favor of other tracts
recorded in Deed Book 63, Page 488, Public Records of Palm Beach County,
Florida.
24. Deed to Lake Worth Drainage District recorded in O.R. Book 1585, Page
505 Public Records of Palm Beach County, Florida.
25. Rights in Reservations recorded in O.R. Book 1994, Pages 1573 and
1615, Public Records of Palm Beach County, Florida.
26. Easement contained in instrument recorded September 3, 1970, O.R. Book
1836, Page 138, Public Records of Palm Beach County, Florida.
27. Chancery 407 regarding Lake Worth Drainage District recorded in O.R.
Book 6495, Page 761, Public Records of Palm Beach County, Florida (as to
the North 28 feet)
AS TO TRACT 8:
28. Rights-of-Way for small lateral ditches in favor of other tracts
recorded in Deed Book 95, Page 6, Public Records of Palm Beach County,
Florida.
29. Deed to Lake Worth Drainage District recorded in Deed Book 129, Page
13, Public Records of Palm Beach County, Florida. (as to the North 26 feet)
30. Rights in Reservations recorded in O.R. Book 1994, Page 1573, Public
Records of Palm Beach County, Florida.
31. Easement contained in instrument recorded September 3, 1970, O.R. Book
1836, Page 138, Public Records of Palm Beach County, Florida.
AS TO TRACT 9:
32. Rights-of-Way for small lateral ditches in favor of other tracts
recorded in Deed Book 58, Page 79, Public Records of Palm Beach County,
Florida.
33. Reservations in favor of the State of Florida, as set forth in the
deed from the Trustees of the Internal Improvement Fund of the State of
Florida, recorded in Deed Book 354, Page 208, Public Records of Palm Beach
county, Florida.
34. Chancery Case 407 regarding Lake Wroth Drainage District recorded in
O.R. Book 6495, Page 761, Public Records of Palm Beach County, Florida.
35. Rights in Reservations recorded in O.R. Book 1994, Pages 1573 and
1615, Public Records of Palm Beach County, Florida.
AS TO TRACT 10:
36. Rights-of-Way for small lateral ditches in favor of other tracts
recorded in Deed Book 53, Page 61, Public Records of Palm Beach County,
Florida.
37. Reservations in favor of the State of Florida, as set forth in the
deed from the Trustees of the Internal Improvement Fund of the State of
Florida, recorded in Deed Book 317, Page 117 and as modified in O.R. Book
424, Page 374, Public Records of Palm Beach County, Florida.
38. Reservations of the Lake Wroth Drainage District recorded in O.R. Book
226, Page 505, Public Records of Palm Beach County, Florida.
39. Rights in Reservations recorded in O.R. Book 1994, Page 1615, Public
Records of Palm Beach County, Florida.
40. Bill of Sale recorded in O.R. Book 2081, Page 1413, Public Records of
Palm Beach County, Florida.
41. Easement contained in instrument recorded September 13, 1972, O.R.
Book 2855, Page 1093, Public Records of Palm Beach County, Florida.
42. Chancery Case No. 407 regarding the Lake Wroth Drainage District
recorded in O.R. Book 6495, Page 761, Public Records of Palm Beach County,
Florida.
AS TO TRACT 11:
43. Rights-of-Way for lateral ditches in favor of other tracts recorded in
Deed Book 55, Page 433, Public Records of Palm Beach County, Florida.
44. Reservations in favor of the State of Florida, as set forth in the
deed from the Trustees of the Internal Improvement Fund of the State of
Florida, recorded in Deed Book 315, Page 326, and as modified in O.R. Book
424, Page 372, Public Records of Palm Beach County, Florida.
45. Reservations of the Lake Wroth Drainage District recorded in O.R. Book
226, Page 505, Public Records of Palm Beach County, Florida.
46. Rights in Reservations recorded in Reservations recorded in O.R. Book
1994, Page 1615, Public Records of Palm Beach County, Florida.
47. Bill of Sale recorded in O.R. book 2081, Page 1413, Public Records of
Palm Beach County, Florida.
48. Easement contained in instrument recorded July 26, 1973, O.R. Book
2192, Page 680, Public Records of Palm Beach County, Florida.
49. Chancery Case No. 407 regarding the Lake Worth Drainage District
recorded in O.R. Book 6495, Page 761, Public Records of Palm Beach County,
Florida.
AS TO TRACT 22:
50. Rights-of-Way for small lateral ditches in favor of other tracts
recorded in Deed Book 95, Page 7, Public Records of Palm Beach County,
Florida.
AS TO TRACT 23: 51. Rights-of-Way for small lateral ditches in
favor of other tracts recorded in Deed Book 49, Page 133, Public Records of
Palm Beach County, Florida.
52. Reservations in favor of the State of Florida, as set forth in the
deed from the Trustees of the Internal Improvement Fund of the State of
Florida, recorded in Deed Book 353, Page 508, Public Records of Palm Beach
County, Florida.
AS TO TRACT 24:
53. Rights-of Way for small lateral ditches in favor of other tracts
recorded in Deed Book 55, Page 317, Public Records of Palm Beach County,
Florida.
54. Reservations in favor of the State of Florida, as set forth in the
deed from the Trustees of the Internal Improvement Fund of the state of
Florida recorded in Deed Book 316, Page 392, Public Records of Palm Beach
County, Florida.
55. Reservations in favor of the State of Florida, as set forth in the
deed from the Trustees of the Internal Improvement Fund of the State of
Florida, recorded in Deed Book 646, Page 303, Public Records of Palm Beach
County, Florida.
AS TO TRACT 25:
56. Rights-of-Way for small lateral ditches in favor of other tracts
recorded in Deed Book 105, Page 9, Public Records of Palm Beach County,
Florida.
AS TO TRACT 26:
57. Rights-of-Way for small lateral ditches in flavor of other tracts
recorded in Deed Book 72, Page 304, Public Records of Palm Beach County,
Florida.
AS TO TRACT 27:
58. Rights-of-Way for small lateral ditches in favor of other tracts
recorded in Deed Book 42, Page 490, Public Records of Palm Beach County,
Florida.
59. Taxes for the year of the effective date of this policy. (as to all
Tracts)
ENDORSEMENT
Attorneys' Title Insurance Fund, Inc.
ORLANDO, FLORIDA
Endorsement No. 2 to ~ Commitment No. C-2287866 Name of Original Insured:
ENGLE HOMES PALM BEACH INC., A FLORIDA CORPORATION Original Effective Date:
March 27, 1996 at 11:00 PM Original Amount of Insurance: $8,595,000.00 Agent's
File Reference: 90592039
The policy is hereby amended as follows:
1. Schedule A, Item 1, the Proposed Named Insured is changed to
read:
JJFN Services, Inc., a Delaware corporation.
2. Schedule A, Item 1, a Proposed Insured Mortgagee is added as follows:
Capital Bank, a Florida banking corporation; and the mortgage amount insured
is : $6,875,000.00.
3. All references to Callie M. Ross as the owner of Tract 11 are hereby
changed to: William Junior Cody as Personal Representative of the Estate of
Callie M. Ross, deceased.
4. The following requirements are added to Schedule B-I:
(a) Execution of mortgage by JJFN Services, Inc. a Delaware corporation in
favor of Capital Bank, a Florida banking corporation in the amount of
$6,875,000.00 encumbering the subject property.
(b) Evidence of the existence and good standing of JJFN Services, Inc. c
Corporate certificate of JJFN Services, Inc. authorizing the execution of the
insured mortgage and designating the authorized signatory.
(d) Obtain copy of death certificate of Callie M. Ross.
(e) Obtain Letters of Administration for Callie MRoss. A,- Aft
5. Schedule B-I, Items 1-24 are deemed satisfied deleted
6. Schedule B-II, Items 1,3,5,8,12,17,23,28,32,36340~3~?51,53
and 56 through 58 are hereby deleted. And delted 38 & 50.
7. Schedule B-II, Item 2 (standard exceptions) are pelleted with the exception
of taxes for 1996 and future years.
8. The mortgagee policy will contain the following endorsements: Florida 9,
ALTA 6.1 (variable rate) and survey endorsement.
Date September 18, 1996 Agent No.
EXHIBIT "I" Bond
FORM 8.31-12B (See 3. 14 A 6)
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS
That we, _, hereinafter called PRINCIPAL, and Reliance Insurance
Company, a Pennsylvania corporation, a surety company authorized to do
business in the Stale of Florida, hereinafter referred to as SURETY, are held
and firmly bound unto Palm Beach county, a political subdivision of the State
of Florida, hereinafter called COUNTY, in the full and just sum of lawful
money of the United States of America, to De paid to the Board of County
Commissioners of Palm Beach County, to which payment will and truly be made,
we bind ourselves, our heirs, executors' administrators, successors and
assigns, jointly and severally, firmly by these presents
WHEREAS the above bound PRINCIPAL, has received approval of COUNTY for
recording of a certain subdivision plat known as prior to completion of
construction of the Required Improvements as prescribed by the Subdivision,
Platting, and Required Improvements Regulations, Development Code of County,
Florida, hereinafter the REGULATIONS, pertaining to said subdivision; and
WHEREAS, PRINCIPAL has been issued Land Development Permit No hereinafter the
PERMIT, for construction of said Required Improvements, a copy of which PERMIT
is attached hereto and by reference made a part hereof, and WHEREAS, it was
one of the conditions of said REGULATIONS and PERMIT that this bond be
executed
(To1, THEREFORE, the conditions of this obligation are such that if the above
bound PRINCIPAL shall in all respects comply with the terms and conditions of
the PERMIT, then this obligation shall be null and void; otherwise it shall
remain in full force and effect
The PRINCIPAL and COUNTY agree that the County Engineer mar reduce the initial
amount stated above in accordance with the requirements of the REGULATIONS
The SURETY UNCONDITIONALLY COVENANTS AND AGREES that if the PRINCIPAL fails
to perform all a. any pare of the construction war; required by said PERMIT a
d REGULATIONS, within the time specified, the SURETY, upon thirty (30) days
written notice from COUNTY, or its authorized agent or officer, of the
default, Jill forthwith perform and complete the aforesaid construction work
and pay the cost thereof, including but not limited to, engineering, legal,
and contingent costs. Should the surety fail or refuse to perform and
complete the said improvements, county, in view of the public interest
health, safety and welfare factors involved and the iducement in approving
and filing the said plat, shall have the right to resort to any and all legal
remedies against the PRINCIPAL and SURETY, or either both at law and in
equity including specifically specific performance, to which the principal and
surety unconditionally agree.
THE PRINCIPAL AND SURETY FURTHER JOINTLY AND SEVERALLY AGREE THE COUNTY at
its option, shall have the right to construct or, pursuant to public
advertisement and receipt of bids, cause to be constructed the aforesaid
improvements in case the PRINCIPAL should fail or refuse to do so in
accordance with the terms of said PERMIT. In the event COUNTY should exercise
and give erect to such right, the PRINCIPAL and SURETY shall be jointly and
severally liable hereunder to reimburse COUNTY the total cost thereof,
including, but not limited to, engineering, fecal, and contingent costs,
together with any damages, either direct or consequential, which may be
sustained on account of the failure of the PRINCIPAL to carry out and execute
all the obligations for construction o' Required Improvements pursuant to the
REGULATIONS and PERMIT.
IN WITNESS MASS WHEREOF, the PRINCIPAL and SURETY have executed these presents
this day of , 19
(CORPORATE PRINCIPAL)
Engle Homes
Florida corporation
PRINCIPAL
BY:
(Impressionable corporate seal)
Reliance Insurance Company, a
Pennsylvania corporation, Surety
ATTEST: By:
Attorney in-Fact
ADDRESS:
Countersigned:
P. O. Box 811088
Boca Raton, FL 33181-1088
EXHIBIT E
MEMORANDUM OF AGREEMENT
This Memorandum has been recorded to give constructive notice as to the
existence of an Agreement between JAN Services, Inc.; a Delaware corporation
and Engle Homes/Palm Beach, Inc., a Florida corporation ("Engle") in
relationship to an agreement to acquire three hundred seventy-one (371) lots
pursuant to a rolling option contract, and to the real property described as:
Tracts 4 through 11, inclusive and Tracts 22 through 27, inclusive, Block 79,
Palm Beach
Farms Co. Plat No. 3, according to the plat thereof as recorded in Plat Book
2, Page 45 of the Public Records of Palm Beach County, Florida. Tracts 10 and
11, Block 79, Palm Beach Farms Co. Plat NO. 3, according to the map or plat
thereof as recorded in Plat Book 2, Page 45 of the Public Records of Palm
Beach County, Florida.
Further, this Memorandum is subordinate in all respects to that certain
mortgage recorded in OR Book . Page othe Public Records of Palm Beach County,
Florida and interests of any successors to said mortgage by sale,
foreclosure, deed in lieu of foreclosure or any other event arising under said
mortgage whatsoever.
WITNESSES: ENGLE HOMES/PALM BEACH, INC.
a Florida corporation
By:
John A. Kraynick, Vice President
IJFN SERVICES, INC.
a Delaware corporation
By:
Susan Schlapkohl, President
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me on the day of September,
1996, by JOHN A. Kraynick, Vice President of Engle Homes/Palm Beach, Inc. and
he is personally known to me.
NOTARY PUBLIC
Typed or printed Name:
My Commission Expires: (Impress or Affix Seal)
Commission No.:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me on the _ day of September,
1996 by Susan Schlapkohl, President of JJFN Services, Inc. and she is
personally known to me.
NOTARY PUBLIC
Typed or Printed Name
DEVELOPMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this Monday of Am, 1996
by and between ENGLE HOMES/PALM BEACH, INC., a Florida corporation;
("Developer"), and JJFN SERVICES, INC. a Delaware corporation ("Owner").
RECITALS
WHEREAS, simultaneously with the execution of this Agreement, Developer and
Owner are entering into an Option to Purchase Contract (the "Contract") for
the sale by Owner to Developer of seventy (70) acres located in Palm Beach
County (the "Property") The Property is proposed for development into 126
townhouse lots, 128 villa lots, 87 zero lot line lots, and 30 single family
lots, and associated roads, recreational facilities, stormwater management
areas, and other common areas and facilities. The Property is legally
described on Exhibit "A" attached hereto.
WHEREAS, Owner desires to retain Developer to perform certain development work
with respect to the Property and Developer is willing to perform such work,
subject to the terms set forth in this Agreement.
NOW THEREFORE, for and in consideration of the premises hereof, the sums of
money to be paid hereunder, the mutual covenants herein contained, and for
other good and valuable considerations, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto do covenant, stipulate and agree
as follows, to wit:
1. RETENTION OF DEVELOPER.
Owner retains Developer to perform and Developer agrees to perform the
"Development Work" (as hereinafter described) in accordance with and subject
to this Agreement.
2.DEVELOPMENT FEE.
As total compensation for Developer's services under this Agreement, Owner
shall pay to Developer a fee in the amount of Four Million Five Hundred
Thousand Dollars ($4,500,000) as provided in Section 9 herein.
3. DEVELOPMENT WORM..
Developer shall promptly and diligently perform the development work described
in this Section 3 on or to serve the Property in conformity with the plans
approved by the appropriate authorities of Palm Beach County, Florida
("Development Work"). All associated costs of engineering, construction
drawings and legal services shall be at Developer's expense. It is understood
and agreed that Developer shall be entitled to assign its right and
obligation to perform the Development Work to subcontractors provided that
such subcontractors are known and reputable carry proper insurance as
required under Florida Statute, but that Developer shall remain obligated to
Owner for full performance under this Agreement until all of Developer's
obligations as described herein have been fulfilled. The Development Work
shall be as follows:
(a) Plans. Developer shall promptly, at its sole expense, prepare, submit,
modify, contract, and obtain permits for all development plans for the
Property. These plans shall include, but not be limited to, approvals from
Palm Beach County Engineering, Department of Environmental Reserve
Management, Florida Department of Health and Rehabilitative Services, South
Florida Water Management District, and Lake Worth Drainage District. (the
"Plans").
(b) Finished Lots. Developer shall improve and develop the Property By making
all site improvements shown on the approved Plan s and developing the
Property into building lots, including, but not limited to, the installation
of the following: streets providing access to public thoroughfares, curbs,
gutters, utility strips, street lights, recreation area, common area
landscaping, street signs, public sewer and water utilities, including
functioning sanitary sewers and water lines and hydrants in adequate size and
capacity, to serve all of the building lots shown on the Site Plans,
stormwater detention and drainage facilities, all site development erosion and
sediment controls, and clearing and grading of the Property, including
filling, cutting and compaction as required. The Property shall be delivered
free of rubbish and debris. Developer shall diligently pursue obtaining all
off-site easements and rights-of-way, if any, required for sanitary sewers,
storm sewers, roadways, water, electricity and any other purpose required by
Palm Beach County or necessary to develop the Property in accordance with the
approved Plans ("Finished Lots").
(c) Grading. The Property shall be cleared and graded by Developer to allow
for proper and lawful drainage of the lots before the erection of houses
thereon, within six inches (6"), plus or minus, of final grade as shown on
the approved Site Plan. Any fill areas shall be the responsibility of the
Developer and shall be filled by the Developer with "clean" fill dirt in a
professional manner, organic materials removed, with fill placed and
compacted to meet all local, state, and federal requirements and with
certificates of approval obtained from a qualified professional engineer
licensed in Florida. Such certificates shall be provided at the time of the
joint inspection which is described in Section 10. All fill used on building
lots shall be compaction so as to allow for typical monolytic slab
construction.
(d) Storm Drainage/Sediment Control. Developer shall construct and complete
all storm water detention and drainage facilities and install all storm water
structures, pipes and facilities per the approved Plans.
(e) Sanitary Sewer and Water. The public sanitary sewer will be extended to
within eight feet (8') of each lot with location markings visible. All
off-site construction costs, including sanitary sewer, and stone pro-rata
fees, availability fees, and tap fees, shall be paid by Developer.
(f) Streets and Parking Areas. Developer shall construct and complete all
roadways per the approved Plans and the approved pavement design plan.
Developer shall be responsible for scheduling all tests required by the
County for the roadways and to establish the pavement design required for
installation.
(g) Sewer and Water Connection Developer shall be responsible for the payment
of all sewer and water connection fees for the Property.
(h) Electric and Telephone Service Light. Developer, at its expense, will
facilitate the extensions of underground electric and telephone service lines
to the boundary line of each lot by granting the necessary easements and
rights-of-way and coordinating the installation thereof during the time the
Property is being developed by Developer.
(i) Common Areas With the Property, Developer shall be responsible for causing
all common areas within the Property to be dedicated to a Homeowners
Association to be created by Developer at its expense for the Property.
Developer shall construct and complete all common areas, including, without
limitation, neighborhood recreational facilities, located upon the Property
as shown on the approved ** Plans.
(j) Other Development Work. Developer shall perform all other items designated
as follows:
Site Plan Record Plat Subdivision Bonds Bond & Inspection Fees Grade
Establishment (ROW) and Building Pad Grading Erosion Control Storm Water
Management Preparation Water & Sewer Plans Preparation of Drainage & Paving
Plans Sheet Plan and Profiles Cleaning Stakeout Excavation Stakeout
House Stakeout
Electric & Telephone Easement Stakeout
Storm Drainage Stakeout
Curb and Gutter Stakeout
Lot Stakeout
Landscaping - Common Area
Recreational Area
Traverse Conhols & Bench Marks
Street Signs
Curb & Gutter
Sidewalk
Parking Lots
ROW Access
Erosion Control & Storm Water Management:
(a) Sheets
(b) Building Pads
(c) Adjacent open space lot area
Off-site Public Improvements
Entrance Feature
Erosion Control Maintenance
Monuments
Compaction and Certification of Building Pads
Paving; base and final
Sewer
Water
Storm Sewer
Sewer laterals to each lot
Water laterals to each lot
Building Pad Grading
Finish and Fine Grading
Processing and Coordination of Underground Utilities
Fees-Underground Electric, and Phone
Sewer and Water Tap Fees
4. STANDARD OF WORK.
All work, materials and improvements done or to be installed or furnished by
Developer under this Agreement shall be done in a good and workmanlike manner
using new materials and in accordance with the approved Plans and all rules,
regulations, laws and ordinances of the applicable governmental authorities.
Developer warrants to owner that all of the Development Work shall be free
from defects in workmanship and material for a period of one (1) year from the
date that Developer completes and Owner accepts the Development Work.
Developer, at its sole expense, shall promptly correct any such defect of
which it receives written notice within the one (1) year period.
5.RIGHT OF ENTRY; INDEMNIFICATION.
Developer shall retain the right to enter upon any portion of the Property
after Settlement in order to fulfill its development obligations provided
Developer shall defend, indemnify and hold Owner harmless from any death,
personal injury or property damage resulting therefrom, and ally and all
claims, suits, judgments, awards and all costs and expenses of any kind
resulting from or arising out of the work done or required to be done by
Developer. Developer warrants and covenants that all of Developer's work on
or to serve the Property is and shall be free of mechanic's and materialmen's
liens. The failure by Developer to have released any mechanic's or
materialmen's lien filed against the Property within thirty (30) days after
the filing thereof shall be a default hereunder and, without limiting Owner's
remedies for such default, Owner may discharge the lien and deduct the cost
of so doing from the Finishing Price. Upon request by Owner or Owner's title
insurance company, Developer shall provide Owner a waiver of liens signed by
it and each contractor, subcontractor arid supplier working on or supplying
materials to be used on the Property. Developer shall maintain comprehensive
public liability insurance for its work on the Property with coverage of TWO
MILLION DOLLARS ($2,000,000.00) naming Owner and Owner's mortgagee(s) if any,
as additional insureds. Such insurance shall be non-cancelable lay Developer
without thirty (30) days prior written notice to the Owner and shall not be
canceled by Developer until Developer has completed the Development Work.
Developer shall deliver evidence of such insurance to Owner at execution of
this Agreement.
6. CONSTRUCTION AND DEDICATION Of PUBLIC IMPROVEMENTS.
Developer shall construct all public improvements which are intended to serve
the Property and which are Developer's responsibility hereunder or under the
governmental approvals for the Property. Developer shall dedicate or cause to
be dedicated to public use any public improvements. Developer shall be
responsible for causing all such public improvements to be accepted for
maintenance by the applicable governmental authorities at the earliest
practical date, in accordance with the Plans approved by Palm Beach County,
at no expense to Owner.
7. BONDS AND ESCROWS.
Developer agrees to post and keep in effect any surety bonds as may be
required lay the applicable authorities for the Development Work. Developer
shall furnish Owner copies of bond and escrow documents upon request.
8. TIMELY PERFORMANCE BY DEEPER
(a) Development Schedule. Within fifteen (15) days after all applicable
governmental authorities have issued permits for the development of the
Property ("Permits"), weather permitting, Developer shall commence the
Development Work. Developer shall diligently and continuously prosecute the
Development Work. Except for the "Final Work" (defined below), Developer shall
substantially complete the Development Work within one hundred fifty (150)
days after Permits, weather permitting, ("Completion Date"). The Completion
Date shall be reasonably extended for unavoidable delays caused lay adverse
weather conditions. The term "Final Work" means (I) the final course paving
of the roads within the Property, (ii) the sodding, and landscaping of the
Property, and (iii) the construction of the recreational facilities for the
Property. Developer covenants that it will use due diligence in the
performance of all tasks required by this Agreement to be performed by
Developer so as not to delay any construction work or sales of houses upon
the Property.
(b) Self-Help. if Developer fails to timely complete the Development Work in
accordance with the schedule set forth in the Contract, then following twenty
(20) days written notice to Developer, Owner may perform such tasks as
Developer has been required and failed to perform. Owner shall be entitled to
deduct from any payments due to Developer all reasonable costs incurred by
Owner to perform such tasks or work, plus ten percent (10%) of those costs as
an administrative and overhead fee ("Cure Costs"). In the event of any
dispute with respect to the Cure Costs, such dispute will be resolved in the
same manner as is provided in Section 10. If the unpaid balance due to
Developer by Owner is insufficient to pay all Cure Costs, Developer shall
reimburse the deficiency to Owner within thirty (30) days after receipt of
reasonable documentation of Owner's expenses. Sums not reimbursed within said
thirty (30) day period shall bear interest at the rate of twelve percent
(12%) per annum from the due date until the actual date of receipt by Owner.
9. PAYMENT BY OWNER.
Owner shall make payments to Developer as the Development work progresses,
according to the budget attached to and made a part of this Agreement as
Exhibit "B" and on a percentage of completion basis with no retainage
withheld. The total amount payable by Owner for each element of the
Development Work shall not exceed amount shown for that element on Exhibit
"B"! As a condition to each payment, Developer shall submit to Owner a
written request for payment in the form attached to and made a part of this
Agreement as Exhibit "C", accompanied by (i) mechanics' lien waivers duly
executed Developer in such form as Owner's title insurance company or lender
may require written certification by Developer that the work covered by the
request for payment has been performed insubstantial accordance with the
Permits. Owner shall have the right to inspect the Development Work and
verify that the work and materials covered by any request for payment have,
in fact, been performed or supplied and that the stated percentage of
completion is correct if. Any such inspection is solely for Owner's purposes
and shall not be deemed an acceptance of any defective or incomplete work or
materials. Provided that the work has liven performed and the materials have
been supplied as represented by Developer, Owner shall make payment of
requisitions submitted in accordance with this Section 9 and Exhibit "C" on
or about the 10th or 25th days of each calendar month, so long as each request
for payment is received by Opener at least fifteen (15) days in advance of
the next scheduled payment date. ON ;
10 INSPECTION BY OWNER
When Developer has completed and is ready to deliver to Owner each lot in
accordance with this Agreement, the parties may jointly inspect all the
improvements required by this Agreement to have been completed by such time
with respect to the lot and sign a memorandum describing the results of their
joint inspection. Developer shall be responsible for repairing any damage,
deficiency or defective work revealed by such joint inspection within thirty
(30) days thereof, weather permitting. All repairs shall be to the
satisfaction of the appropriate governmental bonding authority. If the
parties are unable to agree upon completion of the items described in this
Agreement or upon the responsibility for or adequacy of repair or replacement
of damaged improvements, each of the parties shall promptly select a licensed
professional engineer, the two engineers thus selected shall promptly select
a third, and the consensus of such three engineers as to the matters in
dispute shall be binding upon the parties. The fees charged by such engineers
for their services, if any, shall be borne by the party determined to be
responsible for the matters in dispute or prorated in proportion to the
relative responsibilities of the parties as solely determined by the
engineers.
11. PERFORMANCE BONDS.
Developer shall post all performance bonds and conservation escrows required
by the governmental authorities for development of the Property. Developer
shall be liable for the performance of the Development Work as specified in
this Agreement, whether or not covered by Developer's bonds, and shall be
responsible for satisfying the requirements of the governmental authorities
for the prompt release of such bonds, without cost to Owner.
12. NOTICES. Any notice or other communication permitted or required to be
given hereunder by one patty to the other shall be in writing and shall be
delivered or mailed, lay registered or certified United States Mail, postage
prepaid, return receipt requested, or by facsimile or telecopy transmission
with acknowledgment of receipt party entitled or required to receive the same,
as
follows:
As to Developer: ENGLE HOMES/PALM BEACH, INC.
123 N.W. 13th Street
Suite 300
Boca Raton, Florida 33432
Attention: John A. Kraynick, Vice President
Phone: 561-391-4012
Fax: 561-750-6945
As to Seller: JJFN SERVICES, INC.
2500 Military Trail North
Suite 220
Boca Raton, Florida 33431
Attention: Susan Schlapkohl, President
Phone: 561-995-0043
Fax: 561-995-0636
with a copy to: Libo B. Fineberg
Attorney at Law
3500 Gateway Drive
Suite 201
Pompano Beach, Florida 33069
Phone: 954-975-6060
Fax: 954-975-6005
13. DEFAULT.
a. In the Event Owner fails to comply with or perform any
of the covenants, agreements, or obligations to be performed by Owner under
this Agreement,
Developer, in its sole discretion and after ten (10) days notice to Owner,
shall be entitled to either (i) terminate the Agreement and perform the
Development Work and deduct the cost of such work from the Purchase Price of
the Lots as set forth in the Contract or (ii) exercise any and all rights and
remedies available to Developer in equity. b. In the event Developer fails to
comply with or perform any of the covenants, agreements or obligations to be
performed by Developer under this Agreement, Owner shall, after ten (10) days
notice to Developer, be entitled to either (i) terminate the Agreement and
perform the Development work in accordance with Section 8(a) herein or (ii)
exercise any and all lights and remedies available to Owner in equity or as
provided in the Contract.
14. MISCELLANEOUS.
(a) This Agreement may be executed in several counterparts, each of which
shall lie deemed an original, and all of which shall be deemed to constitute
one and the same i instrument.
(b) Partial Invalidity. If any term of this Agreement, or the application of
any such term to any persons or circumstances, shall be invalid or
unenforceable, the remainder of this Agreement, and the application of such
term to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected. Each term of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
(c) Governing Law. This Agreement shall be construed and the fights and
obligations of the parties shall be determined under the laws of the State of
Florida.
(d) Interpretation. The headings used in this Agreement are for convenience
only and shall not enter into its interpretation. The Recitals set forth
above are incorporated in and made a part of this Agreement. Nothing
contained in this Agreement shall be deemed to be for the benefit of any
third parties.
(e) Binding Effect. Subject to the restrictions contained in Section 23, all
of the terms of this Agreement shall be binding upon and shall inure to the
benefit of the respective legal representatives, successors, and assigns of
the Developer and the Owner.
(f) Authority. The Developer represents to the Owner and the Owner represents
to the Developer that, as to itself, it has full power and authority to enter
into this Agreement and to consummate the transactions contemplated in this
Agreement.
(g) Relationships the parties. The parties are not and shall not be deemed to
be partners or joint venturers, and neither party shall be liable for any of
the debts or obligations of the other.
(h) Entire Agreement. This Agreement contains the entire agreement between
the parties. There are not promises, agreements, conditions, undertakings,
warranties, or representations, oral or written, express or implied, between
the parties with regard to the subject matter of this Agreement other than as
set forth in this Agreement. This Agreement is intended by the patties to be
an integration of all prior or contemporaneous promises, agreements,
conditions, negotiations, and undertakings between them. This Agreement may
not be modified orally or in any manner other than by an agreement in writing
signed by both of the parties or their respective successors in interest.
(i) No Recordation. Neither this Agreement nor a record nor a memorandum
thereof shall be recorded in the Public Records of any county in the State of
Florida by either party hereto.
EXHIBIT C
(Form of Request for Payment)
REQUEST FOR PAYMENT-
Project Name: To Owner: From Developer: Engle Homes/Palm Beach, Inc. As of
Date: Requisition No:
This Request for Payment is submitted pursuant to the Development Agreement,
dated 1996, between Engle Homes/Palm Beach, Inc. (Developer) and JJFN
Services, Inc. (Owner) (Development Agreement). Unless otherwise defined,
capitalized terms used in this Request for Payment have the meanings set
forth for them in the Development Agreement.
The undersigned certifies to the Owner as follows:
1. The information set forth below is true and correct.
2. The work covered by this Request for Payment is part of Development Work,
as set forth in the Development Agreement, and is described as follows:
3. The work covered by this Request for Payment has been completed in
substantial accordance with the Plans and Permits and in conformance with all
applicable governmental requirements.
4. The undersigned has paid all amounts due to subcontractors and suppliers
for work and materials furnished by Hem for Development Work through the date
of the immediately preceding this Request for Payment.
5. After payment of the amount requested below, there will remain a sufficient
balance of the Finishing Price not yet paid to Developer to ensure the
completion and full payment of the cost of all remaining Development Work.
IN WITNESS WHEREOF, the undersigned has caused this Request for Payment No. To
be executed and delivered on this day of , 199
ENGLE HOMES/PALM BEACH, INC. a Florida corporation
By:
EXHIBIT 10.10
PROMlSSORY NOTE
$6,875,000.00
Miami, Florida
September 18, 1996
FOR VALUE RECEIVED, the undersigned (Borrower) promises to pay to the order of
CAPITAL BANK, a Florida banking corporation ("Banks), at the office of the
Bank at 1221 Brickell Avenue, Miami, Florida 33131 or at such other place as
the holder hereof may from time to time designate in writing, the principal
sum of SIX MILLION EIGHT HUNDRED SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS
($6,875,000.00), together with interest thereon on the principal amount from
time to time outstanding at an annual rate prior to maturity or default of one
percent (1 %) over the "Prime Rate" (Prime Rate shall mean, at any time, the
rate of interest quoted in the Wall Street Journal, Money Rates Section as the
"Prime Rate" (currently defined as the base rate on corporate loans posted by
at least 75% of the nation's thirty (30) largest banks), with the Prime Rate
in effect on the first day of a month being applicable to the entire month. In
the event that the Wall Street Journal quotes more than one rate, or a range
of rates as the Prime Rate, then the Prime Rate shall mean the average of the
quoted rates. In the event that the Wall Street Journal ceases to publish a
Prime Rate, then the Prime Rate shall be the average of the three largest U.S.
money center commercial banks, as determined by Bank). Interest shall be
computed on the actual number of days elapsed and an assumed year of 360 days.
Borrower and all endorsers, sureties, guarantors and any other persons liable
or to become liable with respect to the loan evidenced by this Note (the
"Loan") are each included in the term "Obligors" as used in this Note. Said
principal and interest shall be payable in lawful money of the United States,
on the dates and in the amounts specified below, to wit:
Interest only shall be due and payable monthly commencing on the first day of
November, 1996 and on the first day of each succeeding month thereafter until
October 1, 1997 on which date the entire outstanding principal balance
together with all accrued and unpaid interest shall be due and payable.
Provided that the Loan remains in good standing and no Event of Default (as
hereinafter defined) has occurred under this Note or any other Loan Documents
(as hereinafter defined), Borrower shall have the right to extend the maturity
date of this Note for two (2) additional twelve month periods (each, an
"Extension Period") from its originally scheduled maturity date on the
following terms and conditions: (i) Borrower shall have notified Bank in
writing at least thirty (30) days prior to the scheduled maturity date of this
Note for each respective Extension Period that it intends to exercise its
right to extend the maturity date of this Note for the respective Extension
Period; and (ii) Prior to the scheduled maturity date of this Note, Borrower
shall have paid to Bank an extension fee equal to one (1 %) of the total of
the outstanding principal balance of this Note for each such Extension Period.
During each Extension Period, all of the terms, provisions and conditions of
this Note and all other Loan Documents including, without limitation,
Borrower's obligations under the Note to pay interest on the first day of each
month, shall remain in full force and effect, except that the maturity date of
this Note shall be extended for twelve (12) months for each Extension Period.
Upon Borrower complying with the terms and conditions set forth in this
paragraph, the maturity date of this Note shall be automatically extended for
each Extension Period in accordance with the terms of this paragraph.
Borrower shall pay to Bank a late charge of five percent (5 %) of any payment
not received by Bank within fifteen (15) days of its due date; provided,
however, if said fifteen (15) day period ends on a day other than a day on
which Bank is open for Business (a "Business Day"), then the aforedescribed
late charge shall be payable if the payment is not received by the last
Business Day within said fifteen (15) day period.
This Note may be prepaid in whole or in part at any time without penalty.
Borrower shall pay all amounts owing under this Note in full when due without
set-off, counterclaim deduction or withholding for any reason whatsoever. If
any payment falls due on a day other than a Business Day, then such payment
shall instead be made on the next succeeding Business Day, and interest shall
accrue accordingly. Any payment received by Bank after 2:00 p.m. shall not be
credited against the indebtedness under this Note until the next succeeding
Business Day.
If default be made for ten (10) days in the payment of any sums payable
pursuant to the terms of this Note, or, if, subject to the expiration of the
applicable grace period, a default or other event causing the acceleration of
this Note occur under the Florida Real Estate Mortgage, Assignment of Leases
and Rents and Security Agreement securing this Note (the "Mortgage"), or any
other instrument or document executed in connection with the Loan (this Note,
the Mortgage and all such instruments and documents, including, without
limitation, any guaranties, agreements, mortgages, security agreements,
assignments and other documents securing this Note, are referred to in this
Note as the "Loan Documents") (an "Event of Defaults), then or at any time
thereafter at the option of Bank, the whole of the principal sum then
remaining unpaid hereunder, together with all interest accrued thereon and all
other sums owing under the Loan Documents, shall immediately become due and
payable without notice and Bank shall be entitled to pursue any and all rights
and remedies provided by applicable law and/or under the terms of this Note or
any other Loan Document, all of which shall be cumulative and may be exercised
successively or concurrently. Upon the occurrence and during the continuation
of any Event of Default, Bank, at its option, may at any time declare any or
all other liabilities of any Obligor to Bank immediately due and payable
(notwithstanding any contrary provisions thereof) without demand or notice of
any kind. In addition, Bank shall have the right to set off any and all sums
owed to any Obligor by Bank in any capacity (whether or not then due) against
the Loan and/or against any other liabilities of any Obligor to Bank.
From and after an Event of Default, and regardless of whether the Bank also
elects to accelerate the maturity of this Note, the entire principal remaining
unpaid hereunder shall bear an augmented annual interest rate equal to the
lesser of (i) twenty-five percent (25 %) per annum, or (ii) the highest
applicable lawful rate. Failure to exercise any and all rights or remedies
Bank may in the event of any such default be entitled to shall not constitute
a waiver of the right to exercise such rights or remedies in the event of any
subsequent default, whether of the same or different nature. No waiver of
any right or remedy by Bank shall be effective unless made in writing and
signed by Bank, nor shall any waiver on one occasion apply to any future
occasion.
of interest delayed by the application rate under this paragraph, at which
time the Loan shall once again bear interest at the then applicable floating
interest rate. In the event that the interest provisions of this Note or any
exactions provided for in this Note or any other Loan Document shall result at
any time or for any reason in an effechve rate of interest that transcends the
maximum interest rate permitted by applicable law (if any), then without
further agreement or notice the obligation to be fulfilled shall be
automatically reduced to such limit and all sums received by Bank in excess of
those lawfully collectible as interest shall be applied against the principal
of the Loan immediately upon Bank's receipt thereof, with the same force and
effect as though the payor had specifically designated such extra sums to be
so applied to principal and Bank had agreed to accept such extra payment(s) as
a premium-free prepayment or prepayments. During any time that the Loan bears
interest at the maximum lawful rate (whether by application of this paragraph,
the default provisions of this Note or otherwise), interest shall be computed
on the basis of the actual number of days elapsed and the actual number of
days in the respective calendar year. Pursuant to Florida Statutes, Section
687.12, the interest rate charged is authorized by Florida Statutes, Chapter
665.
The Obligors hereby severally: (a) waive demand, presentment, protest, notice
of dishonor, suit against or joinder of any other person, and all other
requirements necessary to charge or hold any Obligor liable with respect to
the Loan; (b) waive any right to immunity from any such action or proceeding
and waive any immunity or exemption of any property, wherever located, from
garnishment, levy, execution, seizure or attachment prior to or in execution
of judgment, or sale under execution or other process for the collection of
debts; (c) waive any right to interpose any set-off or non-compulsory
counterclaim or to plead [aches or any statute of limitations as a defense in
any such action or proceeding and waive (to the extent lawfully waivable) all
provisions and requirements of law for the benefit of any Obligor now or
hereafter in force; (d) submit to the jurisdiction of the state and federal
courts in the State of Florida for purposes of any such action or proceeding;
(e) agree that the venue of any such action or proceeding may be laid in Dade
County, Florida (in addition to any county in which any collateral for the
Loan is located), and waive any claim that the same is an inconvenient forum;
(I) stipulate that service of process in any such action or proceeding shall
be properly made if mailed by any form of registered or certified mail
(airmail if international), postage prepaid, to the address then registered
in Bank's records for the Obligor(s) so served, and that any process so served
shall be effective ten (10) days after mailing; and (g) agree that the death
or mental or physical incapacity of any Obligor who is a natural person, or
the dissolution or merger or consolidation or termination of the existence of
any Obligor that is a business entity (or if any person controlling such
Obligor shall take any action authorizing or leading to the same), shall at
Bank's option, which option may be exercised then or at any time thereafter,
result in the Loan being then due and payable in full. No provision of this
Note shall limit Bank's right to serve legal process in any other manner
permitted by law or to bring any such action or proceeding in any other
competent jurisdiction. The Obligors hereby severally consent and agree that,
at any time and from time to time without notice, (i) Bank and the owners(s)
of any collateral then securing the Loan may agree to release, increase,
change, substitute or exchange all or any part of such collateral, and (id)
Bank and any person(s) then primarily liable for the Loan may agree to renew,
extend or compromise the Loan in whole or in part or to modify the terms of
the Loan in any respect whatsoever; no such release, increase, change,
substitution, exchange, renewal, extension, compromise or modification shall
release or affect in any way the liability of any Obligor, and the Obligors
hereby severally waive any and all defenses and claims whatsoever based
thereon. Until Bank receives all sums due under this Note and all other Loan
Documents in immediately availablefunds, no Obligor shall be released from
liability with respect to the Loan unless Bank expressly releases such Obligor
in a writing signed by Bank, and Bank's release of any Obligor(s) shall not
release any other person liable with respect to the Loan. The Obligors jointly
and severally agree to pay an filing fees and similar charges and an costs
incurred by Bank in collecting or securing or attempting to collect or secure
the Loan, including attorney's fees, whether or not involving litigation
and/or appellate, administrative or bankruptcy proceedings. The Obligors
jointly and severally agree to pay any documentary stamp taxes, intangibles
taxes or other taxes (except for federal or Florida franchise or income taxes
based on Bank's net income) which may now or hereafter apply to this Note or
the Loan or any security therefor, and the Obligors jointly and severally
agree to indemnify and hold Bank harmless from and against any liability,
costs, attorney's fees, penalties, interest or expenses relating to any such
taxes, as and when the same may be incurred. The Obligors jointly and
severally agree to pay on demand, and to indemnify and hold Bank harmless from
and against, any and an present or future taxes, levies, imposts, deductions,
charges and withholdings imposed in connection with the Loan by the laws or
governmental authorities of any jurisdiction other than the State of Florida
or the United States of America, and all payments to Bank under this Note
shall be made free and clear thereof and without deduction therefor.
This Now shall be governed by, and construed and enforced in accordance with,
the laws of the State of Florida, except that federal law shall govern to the
extent that it may permit Bank to charge, from time to time, interest on the
Loan at a rate higher than may be permissible under applicable Florida Law.
Any provision of this Note which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction only, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of
such provision in any other jurisdiction.. To the extent that the Obligors may
lawfully waive any law that would otherwise invalidate any provision of this
Now, each of them hereby waives the same, to the end that this Note shad be
valid and binding and enforceable against each of them in accordance with an
its terms.
If this Note is signed by more than one person, then the term "Borrower" as
used in this Note shad refer to an such persons jointly and severally, and all
promises, agreements, covenants waivers, consents, representations, warranties
and other provisions in this Note are made by and shall be binding upon each
and every undersigned person, jointly and severally. The term "Bank" shad be
deemed to include any subsequent holder(s) of this Now. Whenever used in this
Note, the Arm "person" means any individual, firm, corporation, trust or other
organization or association or other enterprise or any governmental or
political subdivision, agency, department or instrumentality thereof. Whenever
used in this Note, words in the singular include the plural, words in the
plural include the singular, and pronouns of any gender include the other
genders, all as may be appropriate. The term "Obligors" as used in dais Note
shall refer only to the Borrower since there are no additional persons or
endues liable or to becomeliable with respect to the Loan.
Time shah be of the essence with respect to the terms of this Note. This Note
cannot be changed or modified orally. Bank shad have the right unilaterally to
correct payment errors or omissions in dais Note or any other Loan Document.
Except as otherwise required by law or by the provisions of this Note or any
other Loan Document, payments received by Bank hereunder shall be applied
first against expenses and Obligor shad if made personally or if mailed,
postage prepaid, to such Obligor's address as it appears in this Note (or, if
none appears, to any address for such Obligor then registered in Bank's
records). Bank may grant participations in an or any portion of, and may
assign all or any part of Bank's rights under, this Now. Bank may disclose to
any such participant or assignee any and all information held by or known to
Bank at any time with respect to any Obligor. If Borrower or any other Obligor
is a partnership, then an general partners thereof shah be liable jointly and
severally for an obligations under dais Now and for all other covenants,
agreements, undertakings and obligations of Borrower in connection with the
Loan, notwithstanding any contrary provision of the partnership laws of the
State of Florida. All of the terms of this Now shall inure to the benefit of
Bank and its successors and assigns and shad be binding upon each and every
one of the Obligors and their respective heirs, executors, administrators,
personal representatives, successors and assigns, jointly and severally.
The Mortgage encumbers real and personal property located in Palm Beach
County, Florida, and is intended to be recorded amongst the Public Records of
said County.
BANK AND BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT EITHER MAY HAVE TO TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE AND ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS, (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF EITHER PARTY. BORROWER ACKNOWLEDGES THAT THIS WAIVER OF JURY TRIAL
IS A MATERIAL INDUCEMENT TO THE BANK IN EXTENDING CREDIT TO THE BORROWER, THAT
THE BANK WOULD NOT HAVE EXTENDED SUCH CREDIT WITHOUT THIS JURY TRIAL WAIVER,
AND THAT BORROWER HAS BEEN REPRESENTED BY AN ATTORNEY OR HAS HAD AN
OPPORTUNITY TO CONSULT WITH AN ATTORNEY IN CONNECTION WITH THIS JURY TRIAL
WAIVER AND UNDERSTANDS THE LEGAL EFFECT OF THIS WAIVER.
WITNESS the due execution hereof as of the date first above written.
JJFN SERVICED, INC., a Delaware corporation
Susan Schlapkohl, President
DOCUMENTARY STAMPS IN THE AMOUNT OF $24,062.50 HAVE BEEN PAID UPON AND AFFIXED
TO THE MORTGAGE SECURING THIS PROMISSORY NOTE.
EXHIBIT 10.11
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") is made as of July 31, 1996 by and
between CAPITAL BANK, a Florida banking corporation (the "Lender"), and JJFN
SERVICES, INC., a Delaware corporation (the "Borrower").
WITNESSETH:
WHEREAS, Borrower has requested Lender to make a revolving loan to Borrower in
the amount of Ten Million and No/100 Dollars ($10,000,000.00) (the "Loan") for
the purpose of financing Borrower's acquisition of furnished model homes from
builder/sellers, in accordance with Lender's Commitment Letter dated June 6,
1996 (the "Commitment"); the Loan is evidenced by a master promissory note
(the "Note"), is to be secured by, inter alla, one or more mortgages made by
Borrower in favor of Lender (collectively, the "Mortgages") , and Borrower has
executed and may hereafter execute from time to time other instruments and
documents in connection with the Loan (this Agreement, the Note, the Mortgage,
the Commitment and all such other instruments and documents are referred to
collectively as the "Loan Documents"); and
WHEREAS, Lender has agreed to make the Loan to Borrower, subject to all of the
applicable terms and conditions of the Loan Documents, and Borrower has agreed
to accept the Loan from Lender.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in the Loan Documents and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Lender and Borrower
agree that the foregoing recitals are true and correct and further agree as
follows:
Loan: Disbursements. The purpose of the Loan is to finance Borrower's purchase
of furnished model homes (both within and outside of Florida) from various
subdivision developers (each of whom must be reasonably acceptable to Lender).
Each such model home purchased by Borrower is hereinafter referred to as a
"Model Home". Each Model Home shall be immediately leased back by Borrower to
its builder/seller for a monthly rental in an amount equal to 1% of its sales
price to Borrower, for a term extending until the Model Home is sold and
pursuant to a written lease otherwise in form and content acceptable to
Lender. The Loan is a "revolving loan" and Borrower shall have the right at
any time before the maturity date of the Loan to repay all or any portion of
the Loan funds from time to time and thereafter to reborrow Loan funds so that
the outstanding balance on the Loan may increase or decrease from time to time
as a result of such repayments and reborrowings; provided, however, that all
borrowings and reborrowings under the Loan shall be subject to the terms and
conditions of this Agreement and the other Loan Documents. In that regard, and
in addition to the other terms and conditions of this Agreement, Lender's
obligation to advance Loan funds shall be subject to the following terms and
conditions:
(a) Lender shall never be obligated to advance, with respect to any Model
Home, Loan funds in an amount greater than 75% of (i) the sales price to
Borrower of the applicable Model Home or (ii) the appraised value of the Model
Home, as reflected in the appraisal required by the Commitment, whichever is
less.
(b) At no time shall more than $2,500,000.00 of Loan funds be outstanding with
respect to Model Homes located outside of the State of Florida.
2. Conditions Precedent to First Draw. Lender shall disburse the first advance
of Loan funds when the following conditions precedent have been satisfied:
(a) Lender shall have received its Collateral Management and Documentation
Costs fee (the "Commitment Fee") of $56,250.00;
(b) Borrower shall have executed and delivered to Lender the Note, the
Mortgage(s) with respect to the Model Homes encumbered at the time the Loan is
initially funded and all other Loan Documents required by Lender, all in form
and content satisfactory to Lender; (c) Lender shall have received and
approved, with respect to the equivalent);Model Homes for which Lender is
initially advancing Loan funds, the following:
(i) a copy of the duly issued Certificate of Occupancy (or
(ii) the property inspection report required by the Commitment;
(iii) the appraisal required by the Commitment;
(iv) the insurance coverage required by the Commitment;
(v) a copy of the duly executed lease between the Borrower, as
lessor, and the builder-seller, as lessee, which lease must be for a term
extending until the Model Home is sold to a third party purchaser, must call
for a monthly rental equal to at least 1% of the purchase price paid by
Borrower for the Model Home, and must otherwise be in form and content
acceptable to Lender;
(vi) evidence that the seller-lessee must have delivered in escrow an amount
equal to 5% of the purchase amount of the Model Home (or a bond for an
equivalent amount), as required by the Commitment;
(vii) two prints of an original "ALTA" survey of the applicable lot, showing a
state of facts acceptable to Lender; by the Commitment;
(viii) the hazard, liability and flood insurance policies required by the
Commitment;
(ix) a title insurance policy (or a "marked-up commitment for its issuance)
(a) insuring that Lender holds a first mortgage lien on the Model Homes;
subject only to those matters approved by Lender in its discreti on, (b)
containing a comprehensive endorsement, a revolving credit endorsement and
other endorsements as Lender may require; (c) for an amount equal to at least
the amount of Loan funds then advanced; and (d) otherwise in form and content
acceptable to Lender; and
(x) If the Model Home is located outside of the State of Florida, Lender
additionally must have received evidence acceptable to Lender with respect to
the following matters (this condition may be satisfied by an opinion of local
counsel acceptable to Lender):
(aa) Lender is not subject to any "business qualification" laws applicable
advance; or obligation to pay taxes as a result of the applicable advance;
(bb) all recording taxes have been paid in connection with the applicable
advance
(cc) all necessary filings have been made to assure Lender a first lien
position on the applicable Model Home; and
(dd) such other matters as Lender as may reasonably require, consistent with
its normal standards for making out-of-state loans;
(c) Lender shall have received and approved any other items required by the
Commitment or otherwise necessary to satisfy the other requirements of the
Commitment for the disbursement of Loan funds.
Conditions Precedent to Advances of Loan Funds After the First Draw. After
Closing, upon the written request of Borrower, Lender shall from time to time
make advances of Loan funds for the purpose of financing Borrower's
acquisition of additional Model Homes in accordance with the terms and
conditions of this Agreement, which shall include the following conditions
precedent with respect to each such request by Borrower:
(a) No default shall exist under this Agreement or any Loan Documents, and no
act shall have been committed or event occurred or then be occurring which
with the passage of time and/or the giving of notice would constitute any such
default;
(b) Lender shall have received and approved a copy of the sales contract
pursuant to which Borrower is acquiring the Model Homes for which it is
requesting Loan funds, together with all of the other items required under
paragraph 2 with respect to such Model Home;
(c) Borrower shall have executed and delivered to Lender a mortgage instrument
and WCC-1 Financing Statements, in form and content acceptable to Lender
granting in favor of Lender a perfected first priority lien and security
interest in the Model Home and all related property and property rights of
Borrower. In the event that the Model Homes are located in the State of
Florida, it is contemplated that the mortgage instrument shall be in the form
of a mortgage spreader document. If the Model Homes are located outside of the
State of Florida and a mortgage spreader document (or its equivalent) is not
practical, then a new mortgage instrument (or deed of trust) in form and
Content acceptable to Lender, shall be employed. In the event a mortgage
spreader document is used, then the title insurance policy requirement may be
satisfied by an endorsement to the existing title policy in favor of Lender
which endorsement shall reflect the recording of the mortgage spreader
document, shall increase coverage to include the amount of the applicable
advance amount of the Loan, shall insure that the lien held by Lender is a
first lien against the applicable Model Homes, and which must otherwise be in
form and content acceptable to Lender;
(d) Lender shall have received, with respect to all prior advances of Loan
funds, the original recorded mortgage instrument, UCC-1 Financing Statements
and all title policies and endorsements.
4. Non-Use Fee. During the term of the Loan, Borrower shall pay to Lender, on
a quarterly basis, a non-use fee equal to 1/4 of one percent (1%) of the
unused portion of the Loan. The non-use fee shall be calculated on a daily
basis and shall be due and payable on the first day of the first month
following the applicable quarter; provided, however, in the event the Loan is
paid in full or matures (whether as a result the occurrence of demand,
acceleration or otherwise) on other than the last day of the quarter, the
quarter shall be deemed to end on such date, and the non-use fee for that
quarter shall be payable in full on such date . If the Loan commences on a
date other than the first day of a month, the first quarter shall be a partial
quarter, ending on the last day of the second full month following the month
in which the Loan commenced.
5. Partial Commitment Fee. In consideration for Lender making the Loan, the
Borrower owes to Lender a total Commitment Fee of $112,500.00. Borrower has
paid $56,250 at the closing of the Loan. The balance of this Commitment Fee,
$56,250, shall be payable by Borrower to Lender no later than thirty (30) days
prior to the first annual anniversary date of the Loan.
6. Lease Payments. Pursuant to the Mortgage, Borrower has assigned to Lender
its interest in all leases (and resulting rental payments) with regard to the
Model Homes. Borrower shall cause all rental payments to be made directly to
Lender for deposit into an account maintained by Borrower with Lender (the
"Account"). Borrower hereby grants to Lender a security interest in the
Account and all monies held from time to time therein (in the event of a
default in the Loan, Lender shall have the right to apply all monies in the
Account against the indebtedness then owing under the Loan. On each payment
date, Lender shall apply the sums then held in the Account to the amount owing
from Borrower to Lender under the Loan. Borrower acknowledges and agrees that,
notwithstanding such arrangement, Borrower is obligated to pay Lender all sums
payable under the Loan strictly in accordance with the terms of the Note and
the other Loan Documents. In the event that the sums in the Account are
insufficient to make any payment due to Lender under the Loan on a Loan
payment date, Borrower shall be obligated to pay such deficiency from
Borrower's own funds on such dates. Lender shall furnish to Borrower a copy of
all rental checks received by Lender deposited in the Account.
7. Releases of Model Units. Provided that the Loan is then in good standing
and not in default, Lender, upon request of Borrower, shall release individual
Model Homes from the lien of the applicable Mortgage upon receipt by Lender,
in cleared funds, of a principal payment for each Model Home equal to 85% of
the purchase price paid by Borrower for the applicable Model Home.
8. Representations and Warranties. In order to induce Lender to make the Loan,
Borrower represents and warrants (and the following representations and
warranties shall apply to each Model Home as and when Borrower acquires same)
that:
(a) No default exists under this Agreement or any other Loan Document, and no
act has been committed or event has occurred or is occurring which, with the
passage of time and/or the giving of notice, would constitute such a default;
and
(b) Borrower is in full compliance with all of the provisions and requirements
of the Commitment, and all of the statements, reports and other makers
presented or delivered to Lender pursuant to the Commitment are true, correct
and complete.
9. Covenants of Borrower. Borrower covenants and agrees with Lender for
Lender's benefit as follows:
(a) Borrower shall pay all costs incurred or required in connection with the
Loan, including without limitation any and all documentary stamps, intangible
taxes, recording costs, title insurance premiums (and charges for abstracting,
title continuations, endorsements and disbursement services), fees and costs
of Lender's Counsel (including all fees and costs for all work performed after
the closing of the Loan), surveyor's charges, appraisal fees (including all
review fees) and credit report fees.
(b) Borrower shall pay and all fees and commissions owing to any brokers in
connection with the Loan, and shall indemnify and hold Lender harmless from
any and all claims and demands therefor and any costs, expenses and attorney's
fees in connection therewith.
(c) Borrower shall not sell, transfer, convey, assign, encumber, pledge nor
hypothecate all or any part of any Model Home or any interest therein or in
Borrower,
nor modify nor terminate any Model Unit lease, nor permit any of the foregoing
to occur, either voluntarily or by operation of law, without the prior written
consent of Lender, which Lender may grant or withhold in its sole discretion.
(d) If Lender is named as a party to any lawsuit brought at any time against
Borrower or with respect to the collateral for the Loan, then Borrower shall
defend, indemnify and hold Lender harmless from any and all claims, demands,
damages, liabilities, judgments, losses, costs, expenses and attorneys' fees
arising out of or resulting from any such lawsuit or any related appeal.
(e) Borrower shall comply at all times with the terms and conditions of this
Agreement and all other Loan Documents, with all restrictive covenants
affecting the Property, and with all applicable laws, rules, regulations,
ordinances and other requirements of any federal, state, county, municipal or
other governmental authorities.
10. Default and Remedies. Borrower shall be in default under this Agreement
and all other Loan Documents in the event of (a) any failure by Borrower to
observe or perform any agreement or covenant of Borrower in any Loan
Documents, or (b) any breach or violation of any term or condition or
provision of any Loan Document, or (c) any incorrect or misleading
representation or warranty made by or on behalf of Borrower in any Loan
Document or in connection with the Loan and deemed material by Lender, or (d)
the occurrence of any event prohibited by any Loan Document, or (e) any
default under any other Loan Document. In the event of any such default under
this Agreement or any other Loan Document, Lender shall be entitled, at its
option and at any time, to exercise any and all rights and remedies provided
in any Loan Document or under applicable law, and all such remedies shall be
deemed cumulative and not mutually exclusive. Borrower hereby waives any
obligation on Lender to marshall the assets of Borrower or the collateral for
the Loan. No waiver by Lender of any such default, nor of any term or
condition in any Loan Document, shall be deemed a waiver of any subsequent
default of the same or any other kind nor a waiver of any other term or
condition in any Loan Document. No such waiver shall be effective or deemed to
exist unless evidenced by a writing duly executed by Lender, and then only to
the extent expressly stated in such writing. Lender may proceed against the
various collateral for the Loan in whichever order of priority Lender elects
in its sole discretion from time to time. Each Model Home shall secure all
sums outstanding under the Loan and not merely the Loan funds advanced with
respect to the particular Model Home.
11. lndemnitv. Borrower shall indemnify Lender and hold Lender harmless of and
from any and all (a) claims of brokers arising by reason of the execution
hereof or the consummation of the transaction contemplated herein, (b)
documentary stamp taxes or intangible taxes, and any interest or penalties in
connection therewith, which may be assessed against or deemed applicable to
the Loan or any Loan Documents whatsoever, (c) claims or demand of any parties
whatsoever (including without limitation any persons rendering labor, services
and/or materials in connection with the Improvements arising from or growing
out of, in any manner, this Agreement and/or Lender's relationship to
Borrower, (d) litigation related to any of the foregoing, and (e) costs or
expenses incurred by Lender in connection with any such claims, demands,
taxes, interest, penalties or litigation (including attorney's fees and
appellate attorney's fees). In the event Lender is made a party to any suit at
law or equity or made to defend any counterclaim or any administrative
proceeding, Borrower shall provide Lender with counsel of Lender's choosing at
Borrower's sole cost and expense.
12. General Conditions and Other Covenants. Borrower and Lender further
covenant and agree as follows:
(a) Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated except by the written agreement of the party against
whom is sought enforcement of the change, waiver, discharge or termination.
(b) Any determination by a court of competent jurisdiction that any provision
of this Agreement is not valid or enforceable as specifically set forth shall
not result in such provision being declared invalid, but the same shall be
deemed modified, if possible, in such a manner so as to result in the same
being valid and enforceable to the maximum extent permitted by law; if such
modification is not possible, then such provision shall be deemed stricken and
severed from this Agreement, and the remaining provisions shall remain in full
force and effect.
(c) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
but one instrument.
(d) Whenever the context of any provisions hereof shall require it, words in
the singular shall include the plural, words in the plural shall include the
singular, and pronouns of any gender shall include the other genders. Captions
and headings in this Agreement are for convenience only and shall not affect
its construction. All references in this Agreement to Schedules, Exhibits,
paragraphs and subparagraphs refer to the respective subdivisions of this
Agreement, unless such reference specifically identifies another document.
(e) All of the covenants, agreements, provisions and conditions in this
Agreement shall be binding upon the parties hereto and their respective
successors and assigns, and shall inure only to the benefit of Lender and its
successors and assigns and Borrower and Borrower's permitted successors and
assigns; no other person shall be deemed a benefited party hereunder under any
circumstances.
(f) In the event of any conflict between the terms of this Agreement and the
terms of any other Loan Document, the terms of this Agreement shall govern.
(g) This Agreement is governed by, and shall be construed and enforced in
accordance with, the laws of the State of Florida.
IN WITNESS WHEREOF, the parties have executed this Agreement as of on th_ day
and year first above written.
Signed, sealed and delivered in the presence of:
CAPITAL BANK, a Florida banking corporation
By.,
DAVID H. PROMOFF
Senior Vice-President
Record and return to:
Universal Lane Title, Inc.
1555 Pal Beach Lakes Blvd.
Suit e100
West Palm Beach, FL 33401
FUTURE ADVANCE RECEIPT AND
CONSOLIDATION AGREEMENT
1' / WC #68 RECORD & RETURN TO: UNIVERSAL LAND TITLE, INC. 1555 Palm Beach
Lakes Blvd. Suite 100 West Palm Beach, FL 33401 ECE96025047F i-~-1,99[ 9.,~m
(' 7-~ t5 , ~ 51 cH'8. ~,0~ pu '2 i ll.~' {~If I! If.~!
B~ l'nn ,(. Still. [illil, iM O'nc f il' -~10~ iM Of 6.
ili ii !, '`31 THIS RECEIPT AND AGREEMENT is made and entered into as of the
21st day of May, 1997 by and between JJFN SERVICES, INC., a Delaware
corporation (the "Borrower") and CAPITAL BANK, a Florida banking corporation
(the "Lender").
WITNESSETH:
WHEREAS, Lender is the owner and holder of that certain master promissory note
executed by Borrower in favor of Lender dated July 31, 1996 in the original
principal amount of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) (the
"Note"),which is secured by that certain Florida Real Estate Mortgage,
Assignment of Leases and Rents and Security Agreement from Borrower in favor
of Lender dated July 31, 1996 and recorded August 1, 1996, in Official Records
Book 9377, at Page 1255, of the Public Records of Palm Beach County, Florida,
and which Mortgage was modified by that certain Mortgage Spreader Agreement
dated August 9, 1996 and recorded August 13, 1996, in Official Records Book
9394, at Page 1478, as further modified by that certain Mortgage Spreader
Agreement dated December 10, 1996, and recorded December 13, 1996, in Official
Records Book 9569, at Page 186, and as further modified by that certain
Mortgage Spreader Agreement dated January 27, 1997, and recorded January 29,
1997, in Official Records Book 9632, at Page 394, all of the Public Records of
Palm Beach County, Florida; which Mortgage was recorded August 9, 1996, in
Official Records Book 1030, at Page 37, of the Public Records of St. Lucie
County, Florida; which Mortgage was recorded October 3, 1996, under Clerks
File No. 96-490799, of the public records of Broward County, Florida, as
modified by that certain Mortgage Spreader Agreement, dated December 10, 1996,
and recorded December 12, 1996, in Official Record Book 3769, at Page 1745, of
the Public Records of Polk County, Florida; which Mortgage was recorded
October 28, 1996, in Official Records Book 1501, at Page 1735, of the Public
Records of Manatee County, Florida, as modified by that certain Mortgage
Spreader Agreement dated December 10, 1996 and recorded December 16, 1996, in
Official Records Book 1505, Page at 1577, of the Public Records of Manatee
County, Florida; which Mortgage was recorded December 16, 1996, in Official
Records Book 9554, at Page 29, of the Public Records of Pinellas County,
Florida, as modified by that certain Mortgage Spreader Agreement dated
December 20, 1996, and recorded December 27, 1996, in Official Records Book
9565, at Page 207, and as further modified by that certain Mortgage Spreader
Agreement dated December 31, 1996, and recorded January 2, 1997, in Official
Records Book 9570, at Page 912, both of the Public Records of Pinellas County,
Florida; which Mortgage was recorded August 13, 1996, under Clerk's File No.
01189922, of the Public Records of Martin County, Florida, as modified by that
certain Mortgage Spreader Agreement dated August 9, 1996 and recorded August
13, 1996, in Official Records 1191, at Page 2211, of the Public Records of
Martin County, Florida; which Mortgage was recorded December 19, 1996, in
Official Records Book 8394, at Page 1737, of the Public Records of
Hillsborough County, Florida, as modified by that certain Mortgage Spreader
Agreement dated December 20, 1996, and recorded December 27, 1996, in Official
Records Book 8404, at Page 1073,of the Public Records of Hillsborough County,
Florida; which Mortgage was recorded October 28, 1996, in Official Records
Book 3149, at Page 0366, of the Public Records of Seminole County, Florida, as
modified by that certain Mortgage Spreader Agreement date December 10, 1996,
and recorded Deember 16, 1996, in Official Records Book 3171 at Page 0991, and
as further modified by that certain Mortgage Spreader Agreement dated January
27, 1997, and recorded January 29, 1997, in Official Records Books 3189, at
Page 0802, both of the Public Records of Seminole County, Florida; which
Mortgage was recorded October 30, 1996, in Official Records Book 8470, at Page
336, of the Public Records of Duval County, Florida, as modified by that
certain Mortgage Spreader Agreement dated December 10, 1996, and recorded
December 18, 1996, in Official Records Book 8506, at Page 2004, of the Public
Records of Duval County, Florida; which Mortgage was recorded December 16,
1996, in Official Records Book 1367, at Page 2714, of the Public Records of
Osceola County, Florida, as modified by that certain Mortgage Spreader
Agreement dated December 30, 1996 and recorded December 31, 1996, in Official
Records Book 1371, at Page 0248, of the Public Records of Osceola County,
Florida; which Mortgage was recorded December 16, 1996, under Clerk's File No.
4081080, of the Public Records of Lee County, Florida, as modified by that
certain Mortgage Spreader Agreement dated December 30, 1996 and recorded in
Official Records of 2778, at Page 1952, of the Public Records of Lee County,
Florida; and which Mortgage was recorded October 23, 1996, in Official Records
Book 5142, at Page 3178, of the Public Records of Orange County, Florida, as
modified by that certain Mortgage Spreader Agreement dated December 10, 1996
and recorded December 20, 1996, in Official Records Book 5173, at Page 2164,
as modified by that certain Mortgage Spreader Agreement dated January 27, 1997
and recorded January 29, 1997, in Official Records Book 5192, at Page 70, both
of the Public Records of Orange County, Florida, upon which all documentary
stamp tax and intangible tax has been paid and affixed thereto;
WHEREAS, Borrower and Lender have entered into that certain Loan Agreement
dated July 31, 1996, which was modified by that certain letter agreement
between Borrower and Lender dated January 27, 1997 (as modified, the "Loan
Agreement") which Loan Agreement sets forth the terms and conditions of the
disbursements under the Note;
WHEREAS, Borrower has requested and received from Lender a future advance
pursuant to the provisions for future advances in the Mortgage in the
principal amount of THREE MILLION AND NO/100 DOLLARS ($3,000,000.00);
WHERERAS, Borrower has requested that the payments due under the Note
be consolidated with this future advance into one obligation and
indebtedness at law, and
WHEREAS, Lender has agreed to consolidate the indebtedness due under
the Note with this future advance into one obligation and indebtedness
at law, subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties intending to be legally bound, hereby agree to and
acknowledge the following:
Borrower acknowledges and agrees that as of the date hereof, Borrower
is indebted to Lender under the Note in the principal amount of TEN
MILLION AND NO/100 DOLLARS ($10,000,000.00), together with all accrued and
unpaid interest thereon. Borrower acknowledges and agrees that it has
no claims, defenses or set offs against said indebtedness, any claims
of any nature whatsoever against Lender.
2. Borrower hereby acknowledges the receipt from the Lender of THREE MILLION
and NO/100 DOLLARS ($3,000,000.00) as a future advance under the provisions
for future advances in the Mortgage, which shall be secured by the Mortgage
and which is to be repaid to Lender according to the terms of one certain
master promissory note payable to Lender bearing the date of this instrument,
the final payment of which is due and payable on demand (the "Future Advance
Note) (the Note and the Future Advance Note are sometimes hereinafter
collectively referred to as the "Notes"). The term "Note" in the Mortgage an
Loan Agreement shall hereinafter also refer to the Future Advance Note. The
Future Advance Note is a master promissory note which evidences a revolving
line of credit and therefore the principal balance thereof may fluctuate from
time to time as reborrowings and repayments of principal are made.
3. Borrower acknowledges and agrees that as of the date hereof, Borrower is
indebted to Lender under the Notes in the aggregate principal amount of
THIRTEEN MILLION AND NO/100 DOLLARS ($13,000,000.00). Borrower acknowledges
and agrees that it has no claims, defenses or set-offs against said
indebtedness, nor does it have any claims of any nature whatsoever against
Lender.
4. The indebtedness under the Note and the Future Advance Note is hereby
consolidated for all purposes into one indebtedness and obligation at law in
the principal amount of THIRTEEN MILLION AND NO/100 DOLLARS ($ 13,000,000.00)
which shall be evidenced by and payable pursuant to the terms of a
consolidated master promissory note dated the date hereof from Borrower in
favor of Lender which shall be secured by the Mortgage, the final payment of
which is due and payable on demand (the "Consolidated Note"). The term "Note"
In the Mortgage and the Loan Agreement shall hereinafter also refer to the
Consolidated Note. The Consolidated Note is a master promissory note which
evidences a revolving line of credit and therefore the principal balance
thereof may fluctuate from time to time as reborrowings and repayments of
principal are made.
5. The parties agree that except for the documents explicitly referred to
herein and all other documents previously executed and delivered at the
closing of the subject loan transaction, this Agreement constitutes the entire
understanding and agreement among them, and that there are no other agreements
or promises among the parties concerning the subject loan transaction. Except
as specifically modified herein, all of the terms and provisions of the
Mortgage the Loan Agreement, the Notes, the Consolidated Note and all other
loan documents executed in connection with the loan transaction described
herein are ratified, reaffirmed, and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this instrument as of the date
first above written in several counterparts, and one of which shall be deemed
an original, but all constituting only one instrument. Signed, sealed and
delivered in the presence of:
JJFN SERVICES, INC., a Delaware corporation ion
By:/
Don B. Lederman, Vice President
By
Donald F. Smiley, Vice President
Address: 1221 Brickell Avenue
Miami, Florida 33131
CAPITAL BANK, a Florida banking corporation
EXHIBIT 10.12
David Emply agree
EXHIBIT 10.13
JJFN SERVICBS, INC.
EQUITY INCENTIVE PLAN
Section 1. Purpose
The purpose of the JJFN Services, Inc. Equity Incentive Plan (the ~Plann)is to
attract and retain key employees, to provide an incentive for them to achieve
long-range performance goals and to enable them to participate in the
long-term growth of the Company.
Section 2. Definitions
UAffiliate" means any business entity in which the Company owns directly or
indirectly 50% or more of the total combined voting power or has a significant
financial interest as determined by the Committee.
UAward" means any Option, Stock Appreciation Right, Performance Share,
Restricted Stock, Stock, Stock Unit or Other Stock-Based Award awarded under
the Plan.
"Board" means the Board of Directors of the Company.
"Codes means the Internal Revenue Code of 1986, as amended from time to time,
and any successor to such Code.
UCommittee" means a committee of not less than two members of the Board,
appointed by the Board to administer the Plan, each of whom shall be a
Unon-employee director", as that term is defined in Rule 16b-3 promulgated
under the Securities Exchange Act of 1934.
UCommon Stock" or UStock" means the Common Stock, $.001 par value of the
Company.
UCompanyn means JJFN Services, Inc.
UDesignated Beneficiary" means the beneficiary designated by a Participant, in
a manner determined by the Committee, to receive amounts due or exercise
rights of the Participant in the event of the Participant's death. In the
absence of an effective designation by a Participant, UDesignated Beneficiary"
shall mean the Participant's estate.
UEffective Date" means
.
UFair Market Value" means, with respect to Common Stock or any other property,
the fair market value of such property as determined by the Committee in good
faith or in the manner established by the Committee from time to time.
UIncentive Stock Option" means an option to purchase shares of Common Stock
awarded to a Participant under Section 6 that is intended to meet the
requirements of Section 422 of the Code or any successor provision.
UNonstatutory Stock Option" means an option to purchase shares of Common Stock
awarded to a Participant under Section 6 that is not intended to be an
Incentive Stock Option.
"Option" means an Incentive Stock Option or a Nonstatutory Stock Option.
UOther Stock-Based Award" means an Award, other than an Option, Stock
Appreciation Right, Performance Share, Restricted Stock or Stock Unit, having
a Common Stock element and awarded to a Participant under Section 11.
"Participant" means a person selected by the Committee to receive an Award
under the Plan.
"Performance Cycle" or UCycle" means the period of time selected by the
Committee during which performance is measured for the purpose of determining
the extent to which an award of Performance Shares has been earned.
"Performance Shares" mean shares of Common Stock which may be earned by the
achievement of performance goals, awarded to a Participant under Section 8.
"Reporting Person" means a person subject to Section 16 of the Securities
Exchange Act of 1934, or any successor provision.
"Restricted Period" means the period of time during which an award may be
forfeited to the Company pursuant to the terms and conditions of such Award.
URestricted Stock" means shares of Common Stock subject to forfeiture awarded
to a Participant under Section 9.
"Stock Appreciation Right" or "SAR" means a right to receive any excess in
value of shares of Common Stock over the exercise price awarded to a
Participant under Section 7.
UStock Unit" means an award of Common Stock or units that are valued in whole
or in part by reference to, or otherwise based on, the value of Common Stock,
awarded to a Participant under Section 10.
Section 3. Administration
The Plan shall be administered by the Committee. The Committee shall have
authority to adopt, alter and repeal such ad
- -2-
ministrative rules, guidelines and practices governing the operation of the
Plan as it shall from time to time consider advisable, and to interpret the
provisions of the Plan. The Committee's decisions shall be final and binding.
To the extent permitted by applicable law, the Committee may delegate to one
or more executive officers of the Company the power to make Awards to
Participants who are not Reporting Persons and all determinations under the
Plan with respect thereto, provided that the Committee shall fix the maximum
amount of such Awards for the group and a maximum for any one Participant.
Section 4. Eligibility
All employees, consultants and non-employee directors of the Company or any
Affiliate capable of contributing significantly to the successful performance
of the Company, other than a person who has irrevocably elected not to be
eligible, are eligible to be Participants in the Plan. Incentive Stock Options
may be awarded only to persons eligible to receive such Options under the Code.
Section 5. Stock Available for Awards
(a) Subject to adjustment under subsection (b), Awards may be made under the
Plan for up to shares of Common Stock. If any Award in respect of shares of
Common Stock expires or is terminated unexercised or is forfeited without the
Participant having had such benefits otherwise ownership (other than voting
rights), the shares subject to such Award, to the extent of such expiration,
termination or forfeiture, shall again be available for award under the Plan.
Common Stock issued through the assumption or substitution of outstanding
grants from and acquired company shall not reduce the shares available for
Awards under the Plan. Shares issued under the Plan may consist in whole or in
part of authorized but unissued shares or treasury shares.
(b) Notwithstanding any other provision of the Plan, no more than shares of
Common Stock shall be cumulatively available for the award of Incentive Stock
Options; provided that, to the extent an Incentive Stock Option expires or is
terminated unexercised or is forfeited for any reason, the shares that were
subject to such option may again be awarded as Inventive Stock Options.
(c) In the event that the Committee determines that any stock dividend,
extraordinary cash dividend, creation of a class of equity securities,
recapitalization, reorganization, merger, consolidation, split-up, spin-off,
combination, exchange of shares, warrants or rights offering to purchase
Common Stock at a price substantially below fair market value, or other
similar transaction affects the Common Stock such that an adjustment is
required in order to preserve the benefits or potential benefits
- -3-
intended to be made available under the Plan, then the Committee (subject, in
the case of Incentive Stock Options, to any limitations required under the
Code) shall equitably adjust any or all of (i) the number and kind of shares
in respect of which Awards may be made under the Plan, (ii) the number and
kind of shares subject to outstanding Awards, and (iii) the award, exercise or
conversion price with respect to any of the foregoing, and if considered
appropriate, the Committee may make provision for a cash payment with respect
to an outstanding Award, provided that the number of shares subject to any
Award shall always be a whole number.
Section 6. Stock Options
(a) Subject to the provisions of the Plan, the Committee may award Incentive
Stock Options and Nonstatutory Stock Options and determine the number of
shares to be covered by each Option, the option price therefor and the
conditions and limitations applicable to the exercise of the Option. The terms
and conditions of Incentive Stock Options shall be subject to and comply with
Section 422 of the Code, or any successor provision, and any regulations
thereunder, and no Incentive Stock Option may be granted hereunder more than
ten years after the Effective Date.
(b) The Committee shall establish the option exercise price at the time each
Option is awarded, which price shall not be less than 100% of the Fair Market
Value of the Common Stock on the date of award with respect to Incentive Stock
Options. Nonstatutory Stock Options may be granted at such option exercise
prices as the Committee may determine.
(c) Each Option shall be exercisable at such times and subject to such terms
and conditions as the Committee may specify in the applicable Award or
thereafter. The Committee may impose such conditions with respect to the
exercise of Options, including conditions relating to applicable federal or
state securities laws, as it considers necessary or advisable.
(d) No shares shall be delivered pursuant to any exercise of an Option until
payment in full of the option price therefor is received by the Company. Such
payment may be made in whole or in part in cash or, to the extent permitted by
the Committee at or after the award of the Option, by delivery of a note or
shares of Common Stock owned by the optionee, including Restricted Stock,
valued at their Fair Market Value on the date of delivery, or such other
lawful consideration as the Committee may determine. In addition to the method
of payment set forth above, and in lieu of any cash payment required
thereunder, the option price for the shares for which an Option is exercised
may be paid by surrendering the right to purchase that number of shares
covered by the Option whose Fair Market Value on the date of exercise is equal
to the product of the number of shares as to which the option is being
exercised, multiplied by the option price.
- -4-
(e) The Committee may provide that, subject to such conditions as it considers
appropriate, upon the delivery of shares to the Company in payment of an
Option, the Participant automatically be awarded an Option for up to the
number of shares so delivered.
Section 7. Stock Appreciation Right.
(a) Subject to the provisions of the Plan, the Committee may award SARs in
tandem with an Option (at or after the award of the Option), or alone and
unrelated to an Option. SARs in tandem with an option shall terminate to the
extent that the related Option is exercised, and the related Option shall
terminate to the extent that the tandem SARs are exercised. SARs granted in
tandem with Options shall have an exercise price not less than the exercise
price of the related Option. SARs granted alone and unrelated to an Option may
be granted at such exercise prices as the Committee may determine.
(b) An SAR related to an Option that can only be exercised during limited
periods following a change in control of the Company may entitle the
Participant to receive an amount based upon the highest price paid or offered
for Common Stock in any transaction relating to the change in control or paid
during the thirty-day period immediately preceding the occurrence of the
change in control in any transaction reported in the stock market in which the
Common Stock is normally traded.
Section S. Performance Shares
(a) Subject to the provisions of the Plan, the Committee may award Performance
Shares and determine the number of such shares for each Performance Cycle and
the duration of each Performance Cycle. There may be more than one Performance
Cycle in existence at any one time, and the duration of Performance Cycles may
differ from each other. The payment value of Performance Shares shall be equal
to the Fair Market Value of the Common Stock on the date the Performance
Shares are earned or, in the discretion of the Committee, on the date the
Committee determines that the Performance Shares have been earned.
(b) The Committee shall establish performance goals for each Performance
Cycle, for the purpose of determining the extent to which Performance Shares
awarded for such Cycle are earned, on the basis of such criteria and to
accomplish such objectives as the Committee may from time to time select.
During any Performance Cycle, the Committee may adjust the performance goals
for such Cycle as it deems suitable in recognition of usual or non-recurring
events affecting the Company, changes in applicable tax laws or accounting
principles, or such other factors as the Committee may determine.
(c) As soon as practicable after the end of a Performance
- -5-
Cycle, the Committee shall determine the number of Performance Shares that
have been earned on the basis of performance in relation to the established
performance goals. The payment value of earned Performance Shares shall be
distributed to the Participant or, if the Participant has died, to the
Participant's Designated Beneficiary, as soon as practicable thereafter. The
Committee shall determine, at or after the time of award, whether the
distribution of payment value will be settled in whole or in part in cash or
other property, including Common Stock or Awards.
Section 9. Restricted Stock
(a) Subject to the provisions of the Plan, the Committee may award shares of
Restricted Stock and determine the duration of the Restricted Period during
which, and the conditions under which, the Restricted Stock may be forfeited
to the Company and the other terms and conditions of such Awards. Shares of
Restricted Stock shall be issued for no cash consideration or such minimum
consideration as may be required by applicable law.
(b) Shares of Restricted Stock may not be sold, assigned, transferred, pledged
or otherwise encumbered, except as permitted by the Committee, during the
Restricted Period. Shares of Restricted Stock shall be evidenced in such
manner as the Committee may determine. Any certificates issued in respect of
shares of Restricted Stock shall be registered in the name of the Participant
and, unless otherwise determined by the Committee, deposited by the
Participant, together with a stock power endorsed in blank, with the Company.
At the expiration of the Restricted Period, the Company shall deliver such
certificates to the Participant or if the Participant has died, to the
Participant's Designated Beneficiary.
Section 10. Stock Units
(a) Subject to the provisions of the Plan, the Committee may award Stock Units
subject to such terms, restrictions, conditions, performance criteria, vesting
requirements and payment rules as the Committee shall determine.
(b) Shares of Common Stock awarded in connection with a Stock Unit Award shall
be issued for no cash consideration or such minimum consideration as may be
required by applicable law.
Section 11. Other Stock Based Awards
(a) Subject to the provisions of the Plan, the Committee may make other awards
of Common Stock and other awards that are valued in whole or in part by
reference to, or are otherwise based on, Common Stock, including without
limitation convertible preferred stock, convertible debentures and securities
exchangeable for Common Stock. Other Stock Based Awards may be granted either
alone or in tandem with other Awards granted under the
- -6-
Plan and/or cash awards made outside of the Plan.
(b) The Committee may establish performance goals, which may be based on
performance goals related to book value, subsidiary performance or such other
criteria as the Committee may determine, Restricted Periods, Performance
Cycles, conversion prices, maturities and security, if any, for any Other
Stock Based Award. Other Stock Based Awards may be sold to Participants at the
face value thereof or any discount therefrom or awarded for no consideration
or such minimum consideration as may be required by applicable law.
Section 12. General Provisions Applicable to Award.
(a) Notwithstanding any other provision of the Plan, to the extent required to
qualify for the exemption provided by Rule 16b-3 under the Securities Exchange
Act of 1934, and any successor provision, Awards made to a Reporting Person
shall not be transferable by such person other than by will or the laws of
descent and distribution or pursuant to a qualified domestic relations order,
as defined in the Code or Title I of the Employee Retirement Income Security
Act, or the rules thereunder.
(b) Each Award under the Plan shall be evidenced by a writing delivered to the
Participant specifying the terms and conditions thereof and containing such
other terms and conditions not inconsistent with the provision of the Plan as
the Committee considers necessary or advisable to achieve the purposes of the
Plan or comply with applicable tax and regulatory laws and accounting
principles.
(c) Each type of Award may be made alone, in addition to or in relation to any
other type of Award. The terms of each type of Award need not be identical,
and the Committee need not treat Participants uniformly. Except as otherwise
provided by the Plan or a particular Award, any determination with respect to
an Award may be made by the Committee at the time of award or at any time
thereafter.
(d) The Committee shall determine whether Awards are settled in whole or in
part in cash, Common Stock, other securities of the Company, Awards or other
property. The Committee may permit a Participant to defer all or any portion
of a payment under the Plan, including the crediting of interest on deferred
amounts denominated in cash and dividend equivalents on amounts denominated in
Common Stock.
(e) In the discretion of the Committee, any Award under the Plan may provide
the Participant with (i) dividends or dividend equivalents payable currently
or deferred with or without interest, and (ii) cash payments in lieu of or in
addition to an Award.
- -7-
(f) The Committee shall determine the effect on an Award of the disability,
death, retirement or other termination of employment of a Participant and the
extent to which, and the period during which, the Participant's legal
representative, guardian or Designated Beneficiary may receive payment of an
Award or exercise rights thereunder.
(g) In order to preserve a Participant's rights under an Award in the event of
a change in control of the Company, the Committee in its discretion may, at
the time an Award is made or at any time thereafter, take one or more of the
following actions: (i) provide for the acceleration of any time period
relating to the exercise or realization of the Award, (ii) provide for the
purchase of the Award upon the Participant's request for an amount of cash or
other property that could have been received upon the exercise or realization
of the Award had the Award been currently exercisable or payable, (iii) adjust
the terms of the Award in the manner determined by the Committee to reflect
the change in control, (iv) cause the Award to be assumed, or new rights
substituted therefor, by another entity, or (v) make such other provision as
the Committee may consider suitable and in the best interests of the Company.
(h) The Committee may authorize the making of a loan or cash payment to a
Participant in connection with any Award under the Plan, which loans may be
secured by any security, including Common Stock, underlying or related to such
Award (provided that no such loan shall exceed the Fair Market Value of the
security subject to such Award), and which may be forgiven upon such terms and
conditions as the Committee may establish at the time of such loan or at any
time thereafter.
(i) Each Participant shall pay to the Company, or make provision satisfactory
to the Committee for payment of, any taxes required by law to be withheld in
respect of an Award granted to that Participant under the Plan, no later than
the date of the event creating the tax liability. In the Committee's
discretion, any such tax payment obligation may be paid in whole or in part in
shares of Common Stock, including shares retained from the Award creating the
tax obligation, valued at their Fair Market Value on the date of delivery. The
Company and its Affiliates may, to the extent permitted by law, deduct any
such tax obligations from any payment of any kind otherwise due to the
Participant.
(k) The Committee may amend, modify or terminate any outstanding Award,
including substituting therefor another Award of the same or a different type,
changing the date of exercise or converting an Incentive Stock Option to a
Nonstatutory Stock Option, provided that the Participant's consent to such
action shall be required unless the Committee determines that the action,
taking into account any related action, would not materially and adversely
affect the Participant.
- -8-
Section 13. Miscellaneous
(a) No person shall have any claim or right to be granted an Award, and the
grant of an Award shall not be construed as giving a Participant the right to
continued employment. The Company expressly reserves the right at any time to
terminate a Participant and thereupon to be free from any liability or claim
of such Participant under the Plan, except as expressly provided in the Award
theretofore granted to him or her.
(b) Subject to the provisions of any applicable Award, no Participant or
Designated Beneficiary shall have any rights as a shareholder with respect to
any shares of Common Stock to be distributed under the Plan until he or she
becomes the registered owner thereof. A Participant to whom Common Stock is
awarded shall be considered the owner of the Stock at the time of the Award
except as otherwise provided in the applicable Award.
(c) Subject to the approval of the shareholders of the Company, the Plan shall
be effective on the Effective Date. Prior to such approval, Awards may be made
under the Plan expressly subject to such approval.
(d) The Board may amend, suspend or terminate the Plan or any portion thereof
at any time, subject to any shareholder approval that the Board determines to
be necessary or advisable.
(e) The Plan shall be governed by and interpreted in accordance with the laws
of Delaware.
C:\WP\19515\EQUINCTV.416
_9_
JJFN SERVICES t INC.
INCENTIVE STOCK OPTION PLAN
JJFN SERVICES, INC. (the "Company"), in order to retain and attract personnel
for positions of responsibility with the Company and its subsidiaries and to
provide additional incentive to such personnel by offering them an opportunity
to obtain a proprietary interest in the Company, hereby authorizes options to
be granted to employees of the Company ~ ~ ~ purchase Stock"),
and its subsidiaries to shares of the Common Stock of the Company (the "Common
upon the following terms and conditions:
1. Administration of the Plan. This Plan shall be administered, and the
options hereunder shall be granted, by a Committee called the "Incentive Stock
Option Plan Committee". The Committee shall consist of two members of the
Board of Directors of the Company who are "Non-Employee Directors as _.. term
is defined in Rule 16b-3 promulgated under the Securities Exchange Act of
1934. Such members shall serve without compensation at the pleasure of the
Board. Any decision of the Committee shall be final and conclusive in all
matters relating to the Plan. The Committee may act only by unanimous vote of
its members, except that such members may authorize any one or more of their
number to execute and deliver options and other documents on behalf of the
Committee. No member of the Committee shall be liable for anything done or
omitted to be done by him or by any other member of the Committee in
connection with this Plan, except for his own willful misconduct or as
expressly provided by statute.
2. Robber of Shares Subject to Option. The aggregate number of shares which
may be issued under the Plan is shares of Common Stock of the Company. Such
shares may be either authorized but unissued or treasury shares. If the
Company shall effect one or more stock splits, stock dividends, combinations,
exchanges of shares or similar capital adjustments, the Committee shall
proportionately adjust the aggregate number and kind of shares with respect to
which options may be granted under the Plan. If any option granted hereunder,
or any portion thereof, shall expire or terminate for any reason without
having been exercised in full, the shares with respect to which it has not
been exercised shall be available for further options.
3. Eligible Employees. Options may only be granted to key employees of the
Company or a parent corporation or subsidiary corporation of the Company. The
Committee is hereby given the authority to select the particular employees to
whom options are to be granted and to determine the number of shares to be
optioned to each such employee.
`.P ~ ~ __
~ ~ iA 1 4 ~-~ -
4. Terms of Options. Each option granted under the Plan shall comply with the
following terms and conditions:
(a) The option price shall not be less than the fair market value of the stock
subject to such option at the time the option is granted, as determined in
good faith by the Committee, or less than the par value of such stock;
(b) The option shall not be exercisable after the expiration of ten years from
the date it is granted;
(c) The option shall not be exercisable unless either the stock subject to the
option has been registered under the Securities Act of 1933 and any applicable
securities law of any state or other jurisdiction, or the issuance of shares
on exercise of the option is exempt from registration under said Act and laws;
(d) The option shall exercisable only upon receipt by the Company, at the time
of exercise, of full payment for the shares of stock being acquired thereby,
in accordance with the terms of payment specified by the Committee; and
(e) The option shall not be transferable by the optionee otherwise than by
will or the laws of descent and distribution, and shall be exercisable during
his lifetime only by him.
Each option granted under the Plan shall be subject to such additional terms
and conditions as the Committee shall prescribe from time to time in
accordance with this Plan and Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
Each option shall be evidenced by an instrument in the form annexed, which
shall set forth all terms and conditions of the option and shall incorporate
this Plan by reference.
5. Qualification. It is intended that all options issued under this Plan shall
be incentive stock options within the meaning of Section 422 of the Code. The
words "employee", "outstanding", "disposition", parent corporations,
"subsidiary corporation" and any other words or terms used herein or in the
options granted hereunder which are defined or used in Section 422 or 424 of
the Code shall, unless the context clearly requires otherwise, have the
meanings assigned to them therein.
6. Date of Grant. Each option granted hereunder shall constitute an offer of
stock for sale to the optionee subject to the terms of the option, at such
time as an option instrument (i) has been completed by the Committee with the
date, name of optionee, number of shares to which it relates, option price per
share, terms of payment for the option shares and name of optionee's employing
company and (ii) has been signed by a member of the Committee. The Committee
shall see to it that there is no
2
unreasonable delay in having the instrument executed and delivered to the
optionee.
7. Reports and Returns. The appropriate officers of the Company shall cause to
be filed any reports, returns or other information regarding the options
granted hereunder or any stock issued pursuant to the exercise thereof as may
be required by Section 6039 of the Code, or any other applicable statute, rule
or regulation.
8. Amendment. This Plan may be amended at any time and from time to time by
the Board of Directors of the Company, but no such amendment affecting the
aggregate number of shares which may be issued under options granted pursuant
to this Plan, the class of employees eligible to receive such options, the
terms of the options required by this Plan or this sentence shall be effective
unless the same be approved by the stockholders of the Company within 12
months before or after the Board adopts such amendment, in accordance with the
same procedure that is required by Paragraph 10 for them to indicate their
approval of its adoption. No amendment shall alter or impair any of the rights
or obligations of any person, without his consent, under any option
theretofore granted under this Plan.
9. Termination. This Plan shall terminate upon the first of the following
dates or events to occur:
a) at the close of business of , 1998 tONB YEAR FOLLOWING THB DATB THB PLAN I8
ADOPTBD BY THE BOARD OF DIRBCTOR8], unless prior thereto the Plan has been
approved by the stockholders of the Company in accordance with Paragraph 10;
(b) upon the adoption of a resolution of the Board of Directors of the company
terminating the Plan; or
(c) on CURB A DATB NOT MORE THAN TEN YEARS FOLLOWING THE DATB THB PLAN I8
ADOPTBD BY THB BOARD OF DIRBCTOR8].
No termination of this Plan shall alter or impair any of the rights or
obligations of any person, without his consent, under any option theretofore
granted under the Plan.
11. Stockholder Approval. The Plan shall be submitted to the stockholders of
the Company for their approval on or before , 1998 tONB YEAR FOLLOWING THB
DATB THB PLAN I8 ADOPTBD BY THB BOARD OF DIRBCTOR8]. The stockholders shall be
deemed to have approved this Plan only if it is approved at a meeting of the
stockholders duly held on or before such date by such vote taken in such
manner as is required by the Company's certificate of incorporation, its
by-laws and the laws of Delaware at the time such vote is taken, by the
affirmative votes of the holders
3
of a maj ority of the Common Stock of the Company.
EXHIBIT 11.1
JJFN Services, Inc. and Subsidiaries
Computation of Per Share Earnings
Exhibit 11
Year
Ended
June 30
1997
------------
Primary
Income (loss) from
Continuing operations $ (272,974)
Discontinued operations 230,432
------------
Net loss applicable to common stock $ (42,542)
============
Weighted average number of common 16,551,091
shares outstanding
Income(loss) per common share
Continuing operations $ (0.01)
Discontinued operations 0.01
------------
Net loss $ 0.00
============
Primary loss per common share does not include the effect of common stock
equivalents because the effect of such inclusion would be to reduce loss per
common share.
EXHIBIT 21.1
List of Registrants' subsidiaries
List of Subsidiaries
Name State of Incorporation
- ------------------- ----------------------
JJFN Holdings, Inc. Delaware