Exhibit
10.01
THIRD AMENDMENT TO LOAN
AGREEMENT
This Third Amendment to Loan
Agreement (the “Third Amendment”) is entered into this
day of April,
2009, effective as of April 12, 2009 (the “Effective
Date”), by and between DEER VALLEY HOMEBUILDERS, INC.
, an Alabama corporation (the “Borrower”) and FIFTH
THIRD BANK , a Michigan banking corporation (the
“Bank”), and amends and modifies that certain Revolving
Credit Loan and Security Agreement dated April 12, 2006, as
previously amended by Amendment to Loan Agreement dated effective
April 12, 2007, and by Second Amendment to Loan Agreement
dated effective April 12, 2008 (collectively the “Loan
Agreement”). All of the capitalized terms used herein shall
have the same identification and defined meanings as set forth in
the Loan Agreement unless otherwise specifically indicated or
defined herein.
RECITALS:
A. The Bank currently has a
$7,500,000.00 revolving credit loan facility to Borrower (the
“RLOC Loan”) as evidenced by a Renewal and
Consolidation Revolving Credit Note dated effective April 12,
2008 (the “RLOC Note”), secured under the Loan
Agreement.
B. The Borrower has requested and
the Lender has agreed to renew the RLOC Loan facility in the
modified maximum principal amount of $5,000,000.00 (the
“Renewal RLOC Loan”) as evidenced by a Renewal
Revolving Credit Note of even date herewith, effective as of
April 12, 2009 (the “Renewal RLOC Note”) pursuant
to the terms of this Third Amendment and the other loan documents
herein referred.
NOW, THEREFORE
, in consideration of the premises
and for other good and valuable consideration, the parties agree as
follows:
1. Recitals . The
above Recitals are true and correct and by this reference are
incorporated herein.
2. Loan and Note Terms
. The Lender has made the Renewal RLOC Loan in the amount of
$5,000,000.00 effective as of the date stated herein. The term
“Loan” as defined in the Loan Agreement shall
henceforth be defined as to include the Renewal RLOC Loan. The term
“Note” in the Loan Agreement shall henceforth be
defined to include the Renewal RLOC Note. The Loan shall mature on
April 11, 2010.
3. Borrowing Base and
Borrowing Base Certificate . The Borrowing Base definition
in the Loan Agreement and the Borrowing Base Certificate are hereby
modified to provide that total advances under the Loan shall not
exceed $5,000,000.00, or such lesser amount as permitted by the
Borrowing Base.
4. Financial Statements and
Reports . Section 6.4 (b) is modified to provide
that the monthly financial statements required under subsections
(1), (2) and (3) shall henceforth be required quarterly
within 30 days of the end of each calendar quarter.
5. Warranties .
Borrower hereby affirms and warrants that all of the warranties
made in the Renewal RLOC Note, Loan Agreement and the other 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 Borrower is not in default
of any of the foregoing nor aware of any default with respect
thereto, and that Borrower has no defenses or rights of offset with
respect to any indebtedness to the Bank. Borrower hereby releases
and indemnifies the Bank from any cause of action against it
existing as of the date of execution hereof. The rights and
defenses being waived, released and indemnified 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.
6. Ratification .
Except as modified by this Third Amendment, Borrower hereby
ratifies and confirms 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 Third
Amendment.
7. Severability .
Whenever possible, each provision of this Third 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 Third Amendment.
8. Florida Contract .
This Third Amendment shall be deemed a Florida contract and shall
be construed according to the laws of the State of Florida,
regardless of whether this Third Amendment
