FIFTH AMENDMENT TO REVOLVING CREDIT LOAN AND SECURITY AGREEMENT - WORKING CAPITAL REVOLVING CREDIT LOAN
Exhibit 10.03
FIFTH AMENDMENT TO REVOLVING CREDIT LOAN AND SECURITY AGREEMENT
- WORKING CAPITAL REVOLVING CREDIT LOAN
This Fifth Amendment to Revolving Credit Loan and Security Agreement (the “Fifth Amendment”) is entered into effective the 30th day of June, 2015, by and among FIFTH THIRD BANK, an Ohio banking corporation, having a mailing address of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Bank”), DEER VALLEY FINANCIAL CORP., a Florida corporation, having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (“DVFC”), DEER VALLEY CORPORATION, a Florida corporation, having a mailing address of ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (“DVC”), and DEER VALLEY HOMEBUILDERS, INC., an Alabama corporation authorized to do business in the State of Florida, having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (“DVHI”), jointly and severally (collectively the “Borrowers”), and DEER VALLEY HOME REPAIR SERVICES, INC., a Florida corporation, having its mailing address at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Guarantor”) and amends and modifies that certain Revolving Credit Loan and Security Agreement dated October 14, 2009, as amended by Amendment dated April 7, 2010, by Second Amendment dated October 14, 2011, by Third Amendment dated April 18, 2012, and by Fourth Amendment dated September 11, 2013 (collectively “Loan Agreement”), as follows:
1. Terms. All of the capitalized terms in this Fifth Amendment shall have the meanings as defined in the Loan Agreement.
2. Loan Renewal. The Bank has renewed the Loan in the amount of $3,000,000.00 (the “Renewal Loan”) as evidenced by a Renewal Revolving Credit Note dated effective June 30, 2015 (the “Renewal Note”).
3. Loan and Note. The term “Loan” under the Loan Agreement is hereby modified to include the Renewal Loan, and the term “Note” under the Loan Agreement is hereby modified to reference the Renewal Note.
4. Borrowing Base. The definition of “Borrowing Base” in the Loan Agreement is hereby deleted in its entirety and the following definition of Borrowing Base is substituted in its place and stead:
“Borrowing Base” shall mean, at any date of determination thereof (which date of determination shall be in the Bank’s sole discretion) an amount equal to the sum of (a) 80% of Eligible Accounts Receivable, plus (b) 50% of Eligible Inventory (based upon the lower of actual cost or market value with a maximum Inventory Borrowing Base of $1,500,000.00) for DVHI only. The Bank has bargained for and Borrower agrees and acknowledges that the Collateral not included in the Borrowing Base is a cushion of collateral value in excess of the secured advances under the Loan.
5. Borrowing Base Certificate. The Borrowing Base Certificate is hereby revised and restated as set forth in Exhibit “A” attached hereto.
6. Eligible Accounts Receivable. The definition of “Eligible Accounts Receivable” in the Loan Agreement is hereby deleted in its entirety and the following definition of Eligible Accounts Receivable is substituted in its place and stead:
“Eligible Accounts Receivable” shall mean, at any date of determination thereof, all Accounts Receivable of DVHI and DVFC: (a) which are bona fide, valid and legally enforceable obligations of the account debtors in respect thereof, which are unconditionally owing by such account debtors, and which do not represent sales on consignment, sales on return or other similar understandings; (b) which, except for the security interest in the Accounts Receivable granted to the Bank, are solely owned by the Borrower, free and clear of any and all mortgages, liens, security interests, encumbrances, claims or rights of others, except sellers’ rights (if any) to reclaim goods under Uniform Commercial Code Section 2-702; (c) which are not the subject of any defense, offset, counterclaim or claim; (d) as to which no more than 90 days (or are 30 days past due) shall have elapsed from the original date of the relevant invoice; (e) those account debtors that do not have more than 25% of their respective Accounts Receivable aged more than 90 days; (f) Accounts Receivable with respect to a single account debtor whose total obligations owing does not exceed 20% of all Eligible Accounts Receivable (not including Government Backed Agency receivables); (g) as to which the account debtors are (1) solvent, going concerns unaffiliated with any Borrower, and (2) reasonably satisfactory to the Bank from a credit standpoint (the Bank’s satisfaction may be assumed unless the Bank shall at any time advise the Borrower to the contrary).
7. Letter of Credit Fees. Section 2.2(h) of the Loan Agreement is hereby deleted in its entirety and the following Section 2.2(h) is hereby substituted in its place and stead:
“(h) Letter of Credit Fees. For each Letter of Credit issued by Bank hereunder, Borrower shall pay to Bank, upon issuance, a fee equal to 250 basis points (2.50%) multiplied by the face amount of such Letter of Credit, together with Bank’s standard fees in effect during the issuance term of such Letter of Credit (including, without limitation, any renewal or drawing fees).”
8. Consent and Waiver. Borrowers hereby consent to the foregoing and agrees that the execution of this Fifth Amendment shall in no manner or way whatsoever impair or otherwise adversely affect Borrowers’ liability to the Lender under the Loan Documents or any other instrument set forth in the Recitals or herein, all as modified by this Fifth Amendment.
9. Warranties. Borrowers hereby affirm and warrant that all of the warranties made in the Loan Documents, and any other documents or instruments recited herein or executed with respect thereto directly or indirectly, are true and correct as of the date hereof and that Borrowers are not in default of any of the foregoing nor aware of any
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default with respect thereto, and that Borrowers have no defenses or rights of offset with respect to any indebtedness to the Bank. Borrowers hereby release the Bank from any cause of action against it existing as of the date of execution hereof. The rights and defenses being waived and released hereunder include without limitation any claim or defense based on the Bank having charged or collected interest at a rate greater than that allowed to be contracted for by applicable law as changed from time to time, provided, however, in no event shall such waiver and release be deemed to change or modify the terms of the Loan Documents which provide that sums paid or received in excess of the maximum rate of interest allowed to be contracted for by applicable law, as changed from time to time, reduce the principal sum due, said provision to be in full force and effect.
10. Cross Document Default. Any default under the terms and conditions of this Fifth Amendment or of any instrument set forth herein or contemplated by this Fifth Amendment shall be and is a default under every other instrument set forth herein or contemplated by this Fifth Amendment.
11. Ratification. Except as modified by this Fifth Amendment, Borrowers hereby ratify and confirm the continued validity and viability of all terms, conditions and obligations set forth in the Loan Documents and all other instruments as modified by this Fifth Amendment.
12. Severability. Whenever possible, each provision of this Fifth Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision hereof shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity only, without invalidating the remainder of such provision or of the remaining provisions of this Fifth Amendment.
13. Florida Contract. This Fifth Amendment shall be deemed a Florida contract and shall be construed according to the laws of the State of Florida, regardless of whether this Fifth Amendment is executed by certain of the parties hereto in other states.
14. Time. Time is of the essence of this Fifth Amendment.
15. Cross-Default and Cross-Collateralization of Rate Management Agreements and Rate Management Obligations. “Rate Management Agreement” means any agreement, device or arrangement providing for payments which are related to fluctuations of interest rates, exchange rates, forward rates, or equity prices, including, but not limited to, dollar-denominated or cross-currency interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, forward rate currency or interest rate options, puts and warrants, and any agreement pertaining to equity derivative transactions (e.g., equity or equity index swaps, options, caps, floors, collars and forwards), including without limitation any ISDA Master Agreement between Borrower and Lender or any affiliate of Fifth Third Bancorp, and any schedules, confirmations and documents and other confirming evidence between the parties confirming transactions thereunder, all whether now existing or hereafter arising, and in each case as amended, modified or supplemented
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from time to time. “Rate Management Obligations” means any and all obligations of Borrower to Lender or any affiliate of Fifth Third Bancorp, whether absolute, contingent or otherwise and howsoever and whensoever (whether now or hereafter) created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefore), under or in connection with (i) any and all Rate Management Agreements, and (ii) any and all cancellations, buy-backs, reversals, terminations or assignments of any Rate Management Agreement but not including those Excluded Rate Management Obligations. If Borrower enters into a Rate Management Agreement, Borrower promises to promptly pay all Rate Management Obligations, and perform all of the covenants and obligations under the Rate Management Agreements. Any default under the Rate Management Agreements or failure to pay the Rate Management Obligations when due shall be a default under the Loan. The payment and performance of the Loan Documents, the Rate Management Agreements and Rate Management Obligations are all secured under the terms of the Loan Agreement, as amended by this Fifth Amendment.
16. Binding Effect and Modification. This Fifth Amendment shall bind the successors and assigns to the parties hereto and constitutes the entire understanding of the parties, which may not be modified except in writing, executed by all parties hereto in the same form as this Fifth Amendment.
17. Other Terms. Except as specifically modified and amended by the terms set forth in this Fifth Amendment, all of the other terms, covenants, obligations and conditions of the Loan Agreement shall remain in full force and effect.
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[FIFTH AMENDMENT TO REVOLVING CREDIT LOAN AND SECURITY AGREEMENT CONTINUED]
Entered into as of the day and year first above written.
| WITNESSES: | BORROWERS: | |||||
| DEER VALLEY HOMEBUILDERS, INC., | ||||||
| an Alabama corporation | ||||||
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By: | s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| Signature of Witness | ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, | |||||
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as its Chief Financial Officer and Secretary | |||||
| Print or type name of Witness | ||||||
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(CORPORATE SEAL) | |||||
| Signature of Witness | ||||||
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| Print or type name of Witness | ||||||
| DEER VALLEY CORPORATION, | ||||||
| a Florida corporation | ||||||
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By: | s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| Signature of Witness | ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, | |||||
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as its Chief Financial Officer and Secretary | |||||
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(CORPORATE SEAL) | |||||
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| DEER VALLEY FINANCIAL CORP., | ||||||
| a Florida corporation | ||||||
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By: | s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| Signature of Witness | ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, | |||||
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as its Chief Financial Officer and Secretary | |||||
| Print or type name of Witness | ||||||
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(CORPORATE SEAL) | |||||
| Signature of Witness | ||||||
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| Print or type name of Witness | ||||||
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[FIFTH AMENDMENT TO REVOLVING CREDIT LOAN AND SECURITY AGREEMENT CONTINUED]
| WITNESSES: | GUARANTOR: | |||||
| DEER VALLEY HOME REPAIR SERVICES, INC., a Florida corporation | ||||||
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By: | s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| Signature of Witness | ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, | |||||
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as its Chief Financial Officer and Secretary | |||||
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(CORPORATE SEAL) | |||||
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STATE OF ALABAMA
COUNTY OF
The foregoing instrument was acknowledged before me this day of August, 2015, by ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, as Chief Financial Officer and Secretary of DEER VALLEY HOMEBUILDERS, INC., an Alabama corporation, DEER VALLEY CORPORATION, a Florida corporation, DEER VALLEY FINANCIAL CORP., a Florida corporation, and DEER VALLEY HOME REPAIR SERVICES, INC., a Florida corporation, on behalf of the corporations.
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Personally known |
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Driver’s License (St: ) | Notary Public | ||||||
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Other Identification Produced | |||||||
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Print or type name of Notary | |||||||
| (SEAL) | ||||||||
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[FIFTH AMENDMENT TO REVOLVING CREDIT LOAN AND SECURITY AGREEMENT CONTINUED]
| WITNESSES: | BANK: | |||||
| FIFTH THIRD BANK, | ||||||
| an Ohio banking corporation | ||||||
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By: | s/ ▇▇▇ ▇▇▇▇▇▇▇ | ||||
| Signature of Witness | ▇▇▇ ▇▇▇▇▇▇▇, | |||||
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as its Senior Vice President | |||||
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(CORPORATE SEAL) | |||||
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STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this day of August, 2015, by ▇▇▇ ▇▇▇▇▇▇▇, as Vice President of FIFTH THIRD BANK, an Ohio banking corporation, on behalf of the Bank.
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Personally known |
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Florida Driver’s License | Notary Public | ||||||
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Other Identification Produced | |||||||
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Print or type name of Notary | |||||||
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ATTACHMENTS:
Exhibit “A” - Revised Borrowing Base Certificate
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EXHIBIT “A”
BORROWING BASE CERTIFICATE
$3,000,000.00 RLOC
FIFTH THIRD BANK
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Pursuant to the Loan and Security Agreement as amended, Borrower hereby certifies, as of the above date, the following:
| (A) | Current Value of DVHI Inventory |
$ | ||||||||
| (B) | Less: Ineligibles |
$ | ||||||||
| (C) | Net Amount of DVHI Inventory (A) Less (B) |
$ | ||||||||
| (D) | 50% of (C) Not To Exceed $1,500,000.00 |
$ | ||||||||
| (E) | Aggregate Amount of DVHI and DVFC Accounts Receivable |
$ | ||||||||
| (F) | Less: Ineligibles |
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| Accounts over 90 days (30 days past due) |
$ | |||||||||
| Accounts with Account Debtors (other than government agencies) having in excess of 20% of total Eligible A/R (only enter amounts over 20% of total A/R threshold) |
$ | |||||||||
| Other (if applicable) |
$ | |||||||||
| Total Ineligible |
$ | |||||||||
| (G) | Net Amount of Eligible Accounts Receivable (E) Less (F) |
$ | ||||||||
| (H) | 80% of (G) |
$ | ||||||||
| (I) | CURRENT BORROWING BASE: |
$ | ||||||||
| (D) Plus (H) |
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| (J) | The aggregate unpaid principal owed to Bank is: |
$ | ||||||||
| Not to exceed maximum loan limit or (I) above |
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| (K) | Availability (I) Less (J), Less all issued and outstanding Letters of Credit: |
$ | ||||||||
| Not to exceed the maximum loan limit of $3,000,000.00 |
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The undersigned hereby certifies, represents, and warrants to FIFTH THIRD BANK (the “Bank”) as follows:
1. All the representations and warranties contained in the Loan and Security Agreement or in any other related loan document are true and correct on the date hereof.
2. No event of default has occurred, or would result from the advance made in connection herewith, that constitutes an Event of Default under the Loan and Security Agreement or any other related document.
3. The description of Eligible Inventory and Eligible Accounts and the values assigned thereto are true and correct in all material respects (see attached inventory declaration and accounts receivable aging). DVHI is legal owner of the inventory and the accounts receivable as identified above. We further certify that the inventory is in good condition and that storage conditions are safe and satisfactory for this type of inventory and does not include work in progress.
4. The aggregate unpaid principal balance of the Loan does not exceed the lesser of the $3,000,000.00 (after taking into account issued and outstanding Letters of Credit) Commitment or Borrowing Base.
This shall also certify that, for the month ending , 20 , the Borrower was in compliance with the following covenants contained in the Revolving Credit Loan and Security Agreement between Bank and Borrower dated October 14, 2009, as amended.
| COVENANT |
ACTUAL |
COMPLIANCE | ||||
| 1. | Minimum Fixed Charge Coverage Ratio of not less than 1.20 to 1.00 | |||||
“Minimum Fixed Charge Coverage Ratio” is defined as Borrowers EBITDA plus rent and operating lease payments, less cash taxes paid, distributions, dividends and capital expenditures (other than Capital Expenditures financed with the proceeds of purchase money Indebtedness or Capital Leases to the extent permitted hereunder) and other extraordinary income for the twelve month period then ending, to: (b) the consolidated sum of: (i) Borrowers interest expense; and, (ii) all principal payments with respect to Indebtedness, including capital leases and subordinated debt, that were paid or were due and payable by Borrowers during the period, plus rent and operating lease expense incurred in the same such period.
| 2. | Maintain a Debt to Tangible Net Worth Ratio of Not More than 3.00 to 1.00 |
“Debt to Tangible Net Worth Ratio” is defined as (1) (A) Total Liabilities of Borrower, minus (B) Subordinated Debt, divided by (2) (A) Net Worth, plus (B) Subordinated Debt, plus (C) Intangibles, minus (D) Related Party Receivables.
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| 3. | Maintained minimum, unencumbered | |||||
| Liquidity of $1,500,000. |
[BORROWING BASE CERTIFICATE SIGNATURE PAGE]
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By: |
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| Its: |
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Its: |
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| Date: | , 20 | Date: | , 20 | |||||
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RENEWAL REVOLVING CREDIT NOTE
(the “Note”)
| $3,000,000.00 | Execution Date: August 5, 2015 | |
| Effective Date: June 30, 2015 |
FOR VALUE RECEIVED, the undersigned borrowers, DEER VALLEY FINANCIAL CORP., a Florida corporation, DEER VALLEY CORPORATION, a Florida corporation and DEER VALLEY HOMEBUILDERS, INC., an Alabama corporation, jointly and severally (collectively the “Borrower”) promise to pay to the order of FIFTH THIRD BANK, an Ohio banking corporation (the “Lender”), at ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as Lender may from time to time designate in writing, with payment due as provided herein and in the Revolving Credit Loan and Security Agreement dated October 14, 2009, as amended by Amendment dated April 7, 2010, by Second Amendment dated effective October 14, 2011, by Third Amendment dated April 18, 2012, by Fourth Amendment dated September 11, 2013, and further amended by that certain Fifth Amendment to Revolving Credit Loan and Security Agreement of even date herewith (collectively the “Credit Agreement”), the principal sum not to exceed $3,000,000.00, or so much thereof as has been disbursed for advances hereunder. This Note renews and supersedes in its entirety that certain Renewal Revolving Credit Note dated effective September 11, 2013, in the maximum principal amount of $3,000,000.00.
Interest.
(A) The principal sum outstanding shall bear interest at a floating rate per annum equal to 2.50% in excess of the LIBOR Rate (the “Interest Rate”). “LIBOR” shall mean a rate per annum (adjusted for the current maximum reserve rate required to be maintained by Lender) effective on any Interest Rate Determination Date, which is equal to the offered rate for deposits in U.S. dollars for a one (1) month period, which rate appears on that page of Bloomberg reporting service, or such similar service as determined by Lender, that displays ICE Benchmark Administration Limited interest settlement rates for deposits in U.S. Dollars, as of 11:00 a.m. (London, England time) on the Interest Rate Determination Date; provided, that if no such offered rate appears on such page, the rate used for such Interest Period will be the per annum rate of interest determined by Lender to be the rate at which U.S. dollar deposits for the Interest Period are offered to Lender in the London Inter-Bank market as of 11:00 a.m. (London, England time), on the day that is two (2) business days prior to the Interest Rate Determination Date. The term “Interest Rate Determination Date” means the date this Note is closed and initially funded, and the same day (or next Business Day thereafter) of each calendar month thereafter. “Interest Period” shall mean a period of one (1) month, provided, that (i) the initial Interest Period may be less than one month, depending on the initial funding date, and (ii) no Interest Period shall extend beyond the Maturity Date.
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(B) In addition, notwithstanding anything herein contained to the contrary, if, prior to or during any period with respect to the LIBOR Rate, any change in law, regulation or official directive, or in the interpretation thereof, by any governmental body charged with the administration thereof, shall make it unlawful for Lender to fund or maintain its funding in eurodollars of any portion of the advance subject to the LIBOR Rate or otherwise to give effect to Lender’s obligations as contemplated hereby: (i) Lender may, by written notice to Borrower, declare Lender’s obligations in respect of the LIBOR Rate to be terminated forthwith, and (ii) the LIBOR Rate with respect to Lender shall forthwith cease to be in effect, and interest shall from and after such date be calculated at the Prime Rate, and interest shall be paid on the first day of each calendar month. Borrowers hereby agree to reimburse and indemnify Lender from all increased costs or fees incurred by Lender subsequent to the date hereof relating to the offering of rates of interest based upon the LIBOR Rate. Borrower’s right to utilize LIBOR Rates as set forth in this Note shall be terminated automatically if Lender, by telephonic notice, shall notify Borrowers that 30-day LIBOR Rates are not readily available in the London InterBank Offered Rate Market, or that, by reason of circumstances affecting such Market, adequate and reasonable methods do not exist for ascertaining the rate of interest applicable to such deposits. In such event, amounts outstanding hereunder shall bear interest at a rate equal to Lender’s Prime Rate or such other rate of interest as may be agreed to between Lender and Borrower.
(C) Notwithstanding any provision to the contrary in this Note, in no event shall the interest rate charged on this Note exceed the maximum rate of interest permitted under applicable state and/or federal usury law. Any payment of interest that would be deemed unlawful under applicable law for any reason shall be deemed received on account of, and will automatically be applied to reduce, the principal sum outstanding and any other sums (other than interest) due and payable to Lender under this Note, and the provisions hereof shall be deemed amended to provide for the highest rate of interest permitted under applicable law. All interest shall be computed on the basis of the actual number of days elapsed over a year composed of 360 days. Interest shall accrue from the first date that funds are advanced to Borrower until all sums due hereunder are paid in full.
Payments. Principal and interest shall be due and payable as follows:
(A) To the extent accrued, interest only, as stated above, shall be payable monthly commencing September 1, 2015, and continuing on the same day of each month thereafter on the principal outstanding from time to time until the loan maturity date at which time the outstanding indebtedness, whether principal, accrued interest or otherwise, shall be due and payable in full.
(B) The principal amount evidenced hereby may be borrowed (and to the extent any principal amount advanced hereunder is repaid by Borrower, such sum may be borrowed again) until this Note is terminated. At no time, however, shall the principal balance outstanding hereunder exceed $3,000,000.00.
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If any payment on this Note becomes due and payable on a Saturday, Sunday or legal holiday under the laws of the State of Florida, the maturity thereof shall be extended to the next succeeding business day and interest thereon shall be payable at contract rate of interest during such extension.
As provided in the Credit Agreement, the Note is to be utilized by Borrower on a revolving credit basis for acquisition of complimentary businesses, short-term working capital needs, short term financing for the sale of retail units, as well as a Letter of Credit facility utilized to support letters of credit issued by Lender for the benefit of Borrower.
This Loan facility matures on July 1, 2017. If any letters of credit supported by this Loan facility are redeemed, the amount so redeemed is due on demand in accordance with the Credit Agreement. Upon the occurrence of any one or more of the Events of Default specified in the Credit Agreement or in any other document or instrument delivered in connection therewith and following notice and the expiration of all cure periods (if any), all amounts then remaining unpaid on this Note may be declared to be immediately due and payable. Advances under this Note shall be requested by Borrower and evidenced as a debit to Borrower’s loan account.
Borrower may repay all or part of the principal balance at any time without penalty. Such prepayment shall be accompanied by payment of any unpaid interest accrued to the time of such prepayment. All payments made hereunder shall at Lender’s option first be applied to late charges, then to accrued interest, then to principal. Permitted partial prepayments shall not affect or vary the duty of Borrower to pay all obligations when due, and they shall not affect or impair the right of Lender to pursue all remedies available to it hereunder, under the security instruments securing this indebtedness, or under any other loan documents or guaranty executed in connection herewith. Notwithstanding the foregoing, any and all obligations of the Borrower to Lender under any Rate Management Agreement must also be fully satisfied by the Borrower, prior to release of any security pledged in support of the loan evidenced by this Note.
In the event that any payment of principal or interest is not made within ten (10) days after the date when due hereunder, it is hereby agreed that the Lender shall have the option of collecting five percent (5%) of the amount of each such delinquent payment; provided, however, such late fee shall not apply to the lump sum payment of the principal on the Maturity Date or the lump sum payment of principal upon acceleration. Said late charge and/or interest shall be immediately due and payable in full on demand by the Lender.
The “Default Interest Rate” shall be five percent (5%) per annum above the contract interest rate set forth above, but not exceeding 18% per annum. Upon default, the Default Interest Rate shall commence upon written notice to Borrower. Upon a failure by Borrower to repay principal upon demand by Lender made not less than ten (10) days after the date due hereunder, Lender may declare the entire principal and interest then remaining unpaid to be immediately due and payable without further notice
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or demand, and the entire unpaid principal balance shall bear interest at the “Default Interest Rate”. In addition to the rights described in this paragraph, Lender shall have the right to exercise all other rights or remedies provided by law or at equity and shall specifically have the right to recover all damages resulting from such default including, without limitation, the right to recover the payment of all amounts owing to Lender. Exercise of any of these options shall be without notice to Borrower, notice of such exercise being hereby expressly waived.
The terms and provisions of this Note are to be governed by and construed under the laws of the State of Florida and of the United States of America, and the rules and regulations promulgated under the authority thereof. It is the intent of this Note that such laws shall be interpreted in such a manner that after default the maximum rate of interest charged under this Note not exceed the rate allowed to be contracted for by applicable law as changed from time to time which is applicable to this Note (hereinafter called the “Maximum Rate”).
In no event shall Lender have the right to charge or collect, nor shall Borrower be required or obligated to pay, interest or payments in the nature of interest, which would result in interest being charged or collected at a rate in excess of the Maximum Rate. In the event that any payment which is interest or in the nature of interest is made by Borrower or received by Lender which would result in the rate of interest being charged or collected by the Lender being in excess of the Maximum Rate, then the portion of any such payment which causes the rate of interest being charged or collected by Lender exceed the Maximum Rate (hereinafter called the “excess sum”) shall be credited as a payment of principal. If Borrower notifies Lender in writing that Borrower elects to have such excess sum returned to Borrower, such excess sum shall be returned to Borrower. In the event that any such overcharge is discovered after this Note has been paid in full, then the amount of such excess sum shall be returned to Borrower together with interest thereon from the date such excess sum was paid or collected at the same rate as was due Lender during such period under the terms of this Note. All excess sums credited to principal shall be credited as of the date paid to Lender.
Time is of the essence hereunder. In the event that this Note is collected by law or through attorneys at law, or under advice therefrom, Borrower and any other person liable for payment hereof, to the extent of such liability, hereby agree to pay all costs of collection, including reasonable attorneys’ fees and costs (including charges for paralegals and others working under the direction or supervision of Lender’s attorneys) and all sales or use taxes thereon, whether or not suit is brought, and whether incurred in connection with collection, trial, appeal, bankruptcy or other creditor’s proceedings or otherwise.
Borrower authorizes Lender, from time to time, to debit any account that Borrower may have with Lender in the name of Borrower, for any payment of principal or interest past due hereunder for the amount of such payment of principal or interest. Exercise of this right shall be optional with Lender and the provisions of this paragraph shall not be construed as releasing Borrower from the obligation to make payments of principal or interest according to the terms hereof. Borrower shall have no right of setoff against the Lender under this Note or any instrument securing this Note.
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The remedies of Lender as provided herein shall be cumulative and concurrent, and may be pursued singularly, successively, or together, at the sole discretion of Lender. No act of omission or commission of Lender, including specifically any failure to exercise any right, remedy or recourse, shall be deemed to be a waiver or release of the same, such waiver or release to be effected only through a written document executed by Lender and then only to the extent specifically recited therein. A waiver or release with reference to any one event shall not be construed as continuing, as a bar to, or as a waiver of release of, any subsequent right, remedy or recourse as to a subsequent event.
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Borrower, for itself and its successors and assigns, hereby: (a) expressly waives any presentment, demand for payment, notice of dishonor, protest, notice of nonpayment or protest, all other forms of notice whatsoever, and diligence in collection; (b) agrees that Lender, in order to enforce payment of this Note against them shall not be required first to institute any suit or to exhaust any of its remedies against any Borrower or any other person or party or to attempt to realize on the collateral for this Note.
BORROWER AND ANY OTHER PERSON LIABLE FOR PAYMENT HEREOF, BY EXECUTING THIS NOTE OR ANY OTHER DOCUMENT CREATING SUCH LIABILITY, WAIVE THEIR RIGHTS TO A TRIAL BY JURY IN ANY ACTION WHETHER ARISING IN CONTRACT OR TORT, BY STATUTE OR OTHERWISE, IN ANY WAY RELATED TO THIS NOTE. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER’S EXTENDING CREDIT TO BORROWER AND NO WAIVER OR LIMITATION OF LENDER’S RIGHTS HEREUNDER SHALL BE EFFECTIVE UNLESS IN WRITING AND MANUALLY SIGNED ON LENDER’S BEHALF.
Borrower acknowledges that the above paragraph has been expressly bargained for by Lender as part of the loan evidenced hereby and that, but for Borrower’s agreement and the agreement of any other person liable for payment hereof, Lender would not have extended the loan for the term and with the interest rate provided herein.
If more than one party shall execute this Note, the term “Borrower”, as used herein, shall mean all parties signing this Note and each of them, who shall be jointly and severally obligated hereunder. In this Note, whenever the context so requires, the neuter gender includes the feminine and/or masculine, as the case may be, and the singular number includes the plural.
Cross-Default and Cross-Collateralization of Rate Management Agreements and Rate Management Obligations. “Rate Management Agreement” means any agreement, device or arrangement providing for payments which are related to fluctuations of interest rates, exchange rates, forward rates, or equity prices, including, but not limited to, dollar-denominated or cross-currency interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, forward rate currency or interest rate options, puts and warrants, and any agreement pertaining to equity derivative transactions (e.g., equity or equity index swaps, options, caps, floors, collars and forwards), including without limitation any ISDA Master Agreement between Borrower and Lender or any affiliate of Fifth Third Bancorp, and any schedules, confirmations and documents and other confirming evidence between the parties confirming transactions thereunder, all whether now existing or hereafter arising, and in each case as amended, modified or supplemented from time to time. “Rate Management Obligations” means any and all obligations of Borrower to Lender or any affiliate of Fifth Third Bancorp, whether absolute, contingent or otherwise and howsoever and whensoever (whether now or hereafter) created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefore), under or in connection with (i) any and all Rate Management Agreements,
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and (ii) any and all cancellations, buy-backs, reversals, terminations or assignments of any Rate Management Agreement. If Borrower enters into a Rate Management Agreement, Borrower promises to promptly pay all Rate Management Obligations, and perform all of the covenants and obligations under the Rate Management Agreements. Any default under the Rate Management Agreements or failure to pay the Rate Management Obligations when due shall be a default under this Note. The payment and performance of this Note, the Rate Management Agreements and Rate Management Obligations are all secured by the Credit Agreement and other security agreements.
IN WITNESS WHEREOF, Borrower has caused this Note to be executed in its name on the day and year first above written.
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[RENEWAL REVOLVING CREDIT NOTE CONTINUED
THE UNDERSIGNED ACKNOWLEDGES THAT THE LOAN EVIDENCED HEREBY IS FOR COMMERCIAL PURPOSES ONLY AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.
| “BORROWER” | ||
| DEER VALLEY FINANCIAL CORP., a Florida corporation | ||
| By: |
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| ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, as its | ||
| Chief Financial Officer and Secretary | ||
| (CORPORATE SEAL) | ||
| DEER VALLEY CORPORATION, a Florida corporation | ||
| By: |
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| ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, as its | ||
| Chief Financial Officer and Secretary | ||
| (CORPORATE SEAL) | ||
| DEER VALLEY HOMEBUILDERS, INC., an Alabama corporation | ||
| By: |
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| ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, as its | ||
| Chief Financial Officer and Secretary | ||
| (CORPORATE SEAL) | ||
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[RENEWAL REVOLVING CREDIT NOTE CONTINUED
STATE OF ALABAMA
COUNTY OF
The foregoing instrument was acknowledged before me this day of August, 2015, by ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ as Chief Financial Officer and Secretary of DEER VALLEY HOMEBUILDERS, INC., an Alabama corporation, DEER VALLEY CORPORATION, a Florida corporation and DEER VALLEY FINANCIAL CORP., a Florida corporation, on behalf of the corporations.
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Personally known |
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Driver’s License (St: ) | Notary Public | ||||||
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| (SEAL) | ||||||||
This instrument was made, executed and delivered outside the State of Florida and no Florida Documentary Stamp Tax is due hereon in accordance with F.A.C. 12B-4.053(35)
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