Exhibit
10.02
RENEWAL REVOLVING CREDIT
NOTE
(the “Note”)
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$5,000,000.00
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Effective Date: April 12,
2009
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FOR VALUE RECEIVED, the undersigned
borrower, DEER VALLEY HOMEBUILDERS, INC. , an Alabama
corporation (the “Borrower”) promises to pay to the
order of FIFTH THIRD BANK , a Michigan banking corporation
(the “Lender”), at 201 E. Kennedy Blvd., Suite
1800, Tampa, Florida 33602, 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, as amended (the “Credit Agreement”), the
principal sum not to exceed $5,000,000.00, or so much thereof as
has been disbursed for advances hereunder. This Note the renews
in its entirety and supersedes that certain Renewal and
Consolidation Revolving Credit Note dated effective April 12,
2008, in the original principal amount of
$7,500,000.00.
The Interest Rate shall be a
variable rate at 250 basis points (2.50%) above the One-Month
“LIBOR-Index Rate”, and shall be adjusted every month
on each Interest Rate Determination Date with all such interest
rate terms defined as set forth in “ADDENDUM A”
attached hereto and made a part hereof.
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
May 1, 2009, 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
$5,000,000.00.
At the mutual agreement of Borrower
and Lender, Borrower may enter into one or more interest rate hedge
agreements, interest rate swap agreements, interest rate caps or
collars, or similar agreements with Lender, or an affiliate of
Lender, in order to fix the interest payable hereunder. The
principal due under the swap agreement shall be in the amounts set
forth therein, but such agreement shall not vary the dates of
payments under this Note.
Initials:
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 working capital requirements and a Letter of Credit facility
utilized to support letters of credit issued by Lender for the
benefit of Borrower.
This Loan facility matures on
April 10, 2010. 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.
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 Prime Rate plus 500 basis points (5.00%), but
not exceeding 18% per annum. The term “Prime Rate”
is defined as the rate of interest published in the Wall Street
Journal as the current “U.S. Prime Rate”. In the
event the Wall Street Journal ceases or fails to publish a
U.S. Prime Rate, regardless of the reason therefor, then the Lender
may utilize the U.S. Prime Rate announced or published by any other
nationally reputable financial institution. Upon a failure
by
Initial:
2
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 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 available to
Lender at any time after written notice to Borrower.
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 charged under
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 Borrowe
