Exhibit
10.4
REVOLVING
CREDIT NOTE
(the
“Note”)
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$5,000,000.00
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Dated: October
, 2009
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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 , a Michigan banking corporation (the
“Lender”), at 201 E. Kennedy Boulevard, 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 of
even date herewith (the “Credit Agreement”), the
principal sum not to exceed $5,000,000.00, or so much thereof as
has been disbursed for advances hereunder.
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 October 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.
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 two (2) years from the 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.
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 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 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.
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