FOURTH AMENDMENT TO LOAN AGREEMENT - REAL ESTATE LOAN
Exhibit 10.3
FOURTH AMENDMENT TO LOAN AGREEMENT - REAL ESTATE LOAN
This Fourth Amendment to Loan Agreement (the “Fourth Amendment”) is executed on this 18th day of April, 2012, by and among FIFTH THIRD BANK, an Ohio banking corporation, having a mailing address of 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 (the “Bank”), DEER VALLEY HOMEBUILDERS, INC., an Alabama corporation authorized to do business in the State of Florida, having its principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxx, Xxxxxxx 00000 (the “Borrower”), DEER VALLEY CORPORATION, a Florida corporation, as successor by merger with CYTATION CORP., a Delaware corporation, having a mailing address of 0000 Xxxx Xx. XXX Xxxxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 and DEER VALLEY FINANCIAL CORP., a Florida corporation, having a mailing address of 000 Xxxxxxxx Xxxxxx, Xxxx, Xxxxxxx 00000, jointly and severally (collectively, the “Guarantors”), and amends and modifies that certain Loan Agreement dated effective May 26, 2006, as previously amended by Amendments dated April 7, 2010 and July 8, 2011, and October 24, 2011 (collectively the “Loan Agreement”) as follows:
1. Terms. All of the capitalized terms in this Fourth Amendment shall have the meanings as defined in the Loan Agreement.
2. Modification of Financial Covenant. The Financial Covenant set forth in Section 3.p.(iii) of the Loan Agreement, as previously amended by Amendment to Loan Agreement dated July 8, 2011, is deleted in its entirety and the following section 3.p.(iii) is substituted in its place and stead:
“(iii) Minimum Liquidity. Maintain a global, unencumbered liquidity of not less than $1,500,000.00, to be measured on a quarterly basis, commencing March 31, 2012.”
3. Modification of Negative Covenant. The covenant set forth in Section 3.f. of the Loan Agreement regarding changes in the ownership of Borrower is hereby modified to recognize and approve the following stock re-purchase transactions by the Borrower from Vicis Capital:
| (a) | 22,463 Shares of Series C Preferred Stock |
| (b) | 1,000,000 Shares of Series E Preferred Stock |
| (c) | 1,096,291 Shares of Common Stock |
| (d) | Cash purchase price of $3,200,000 for Redeemed Shares |
The Bank’s approval of this stock re-purchase transaction is limited strictly to the referenced transaction and is not be interpreted as a waiver for continued compliance with this covenant hereafter.
4. Warranties. Borrower hereby affirms and warrants 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 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 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.
5. Consent and Waiver. Borrower hereby consents to the foregoing and agree that the execution of this Fourth Amendment shall in no manner or way whatsoever impair or otherwise adversely affect Borrower’s liability to the Bank under the Loan Documents or any other instrument set forth in the Recitals or herein, all as modified by this Fourth Amendment.
6. Cross Document Default. Any default under the terms and conditions of this Fourth Amendment or of any instrument set forth herein or contemplated by this Fourth Amendment shall be and is a default under every other instrument set forth herein or contemplated by this Fourth Amendment.
7. Ratification. Except as modified by this Fourth 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 executed in connection with this Fourth Amendment, all as modified by this Fourth Amendment.
8. Severability. Whenever possible, each provision of this Fourth 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 Fourth Amendment.
9. Florida Contract. This Fourth Amendment shall be deemed a Florida contract and shall be construed according to the laws of the State of Florida, regardless of whether this Fourth Amendment is executed by certain of the parties hereto in other states.
10. Time. Time is of the essence of this Fourth Amendment.
11. Binding Effect and Modification. This Fourth 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 Fourth Amendment.
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12. Conflict. As to any conflict between the terms of the Loan Agreement and the terms of this Fourth Amendment, the terms of this Fourth Amendment shall supersede and control over such other terms.
13. Execution in Counterparts. This Fourth Amendment may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument, and in making proof of this Fourth Amendment it shall not be necessary to produce or account for more than one such counterpart.
14. Other Terms. Except as specifically modified and amended by the terms set forth in this Fourth Amendment, all of the other terms, covenants, obligations and conditions of the Loan Agreement shall remain in full force and effect.
15. Guarantors’ Reaffirmation. Guarantors execute this Fourth Amendment to re-affirm their joint and several liability for the obligations of the Borrower and Guarantors under the Loan Agreement as modified by this Fourth Amendment.
16. Waiver of Jury Trial. BANK, BORROWER AND GUARANTORS HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS FOURTH AMENDMENT TO LOAN AGREEMENT AND ANY OTHER DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK ENTERING INTO THIS LOAN AGREEMENT.
Entered into as of the day and year first above written.
| WITNESSES: | “BORROWER” | |||||
| DEER VALLEY HOMEBUILDERS, INC., | ||||||
| an Alabama corporation | ||||||
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By: | /s/ Xxxxx Xxxxxx | ||||
| Signature of Witness | Xxxx Xxxxxx Xxxxxx, | |||||
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as its Chief Financial Officer | |||||
| 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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STATE OF ALABAMA
COUNTY OF
The foregoing instrument was acknowledged before me this day of April, 2012, by Xxxx Xxxxxx Xxxxxx, as Chief Financial Officer of DEER VALLEY HOMEBUILDERS, INC., an Alabama corporation, on behalf of the corporation.
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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) | ||||||||
| “GUARANTORS” | ||||||||
| DEER VALLEY CORPORATION, | ||||||||
| a Florida corporation | ||||||||
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By: | /s/ Xxxxx Xxxxxx | ||||||
| Signature of Witness | Xxxx Xxxxxx Xxxxxx, | |||||||
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as its Chief Financial Officer | |||||||
| 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 FINANCIAL CORP., | ||||||||
| a Florida corporation | ||||||||
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By: | /s/ Xxxxx Xxxxxx | ||||||
| Signature of Witness | Xxxx Xxxxxx Xxxxxx, | |||||||
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as its Chief Financial Officer | |||||||
| 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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STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of April, 2012, by Xxxx Xxxxxx Xxxxxx, as Chief Financial Officer of DEER VALLEY CORPORATION, a Florida corporation, on behalf of the corporation.
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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) | ||||||||
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of April, 2012, by Xxxx Xxxxxx Xxxxxx, as Chief Financial Officer of DEER VALLEY FINANCIAL CORP., a Florida corporation, a Florida corporation, on behalf of the corporation.
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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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| “BANK” | ||||||||
| FIFTH THIRD BANK, an Ohio banking corporation | ||||||||
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By: | /s/ Xxxxxx Xxx | ||||||
| Signature of Witness | Xxxxxx Xxxxx, | |||||||
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as its Vice President | |||||||
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(CORPORATE SEAL) | |||||||
| Signature of Witness | ||||||||
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STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this day of April, 2012, by Xxxxxx Xxxxx, 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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(SEAL) |
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