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EXHIBIT
10.2
RENEWAL AND
CONSOLIDATION REVOLVING CREDIT NOTE
(the
“Note”)
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| $7,500,000.00 |
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Effective Date: April 12, 2008 |
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 $7,500,000.00, or so much thereof as
has been disbursed for advances hereunder. This Note
consolidates the renewal of that certain Renewal Revolving Credit
Note dated effective April 12, 2006, in the amount of
$2,500,000.00 with an advance loan of even date herewith in the
principal amount of $5,000,000.00.
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, 2008, 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
$7,500,000.00.
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
364 days from the Effective Date hereof. 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.
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 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 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 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
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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.
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
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