Exhibit 10.64
Execution
Copy
SIXTH LOAN MODIFICATION
AGREEMENT
THIS SIXTH LOAN MODIFICATION
AGREEMENT (this “ Agreement ” or this “
Modification ”) is made as of the
day of November, 2008 but effective as of
the Effective Date (defined below), by and among: COMSTOCK
HOMEBUILDING COMPANIES, INC. , a Delaware corporation (the
“ Borrower ,” whether one or more) and BANK
OF AMERICA, N.A., a national banking association, its
successors and assigns (the “ Lender
”).
RECITALS:
WHEREAS, pursuant to the terms of
that certain Revolving Line of Credit Note dated as of
February 22, 2006, by and between Borrower and Lender (and as
the same may be further modified, renewed, supplemented or
restated, the “ Note ”), Lender made a loan (the
“ Loan ”) to Borrower in the original principal
amount of Fifteen Million and No/100 Dollars ($15,000,000.00), as
evidenced by the Note;
WHEREAS, pursuant to that certain
Loan Modification Agreement dated August 22, 2006 (the “
First Loan Modification ”), Borrower and Lender agreed
to modify the Loan to, among other things, (i) reduce the
maximum outstanding principal amount of the Loan to Ten Million and
No/100 Dollars ($10,000,000.00); (ii) extend the Maturity Date
of the Loan to November 22, 2006 and (iii) make certain
other changes in connection with the Loan;
WHEREAS, pursuant to the terms of
that certain Second Loan Modification Agreement dated as of
November 22, 2006 (the “ Second Loan Modification
”), Borrower and Lender agreed to, among other things,
(i) state that no further advances could be made under the
Loan; (ii) reduce the maximum outstanding principal amount of
the Loan to Five Million and No/100 Dollars ($5,000,000.00);
(iii) extend the Maturity Date of the Loan to
December 28, 2007; (iv) modify the payment terms of the
Loan; and (v) and make certain other changes in connection
with the Loan;
WHEREAS, pursuant to the terms of
that certain Third Loan Modification Agreement dated June 28,
2007 (the “Third Loan Modification”), Borrower and
Lender agreed to, among other things, (i) extend the Maturity
Date of the Loan and (ii) modify the payment terms of the Loan
(the “ Third Modification Agreement
”);
WHEREAS, in consideration of Lender
entering into, among other things, the Third Modification
Agreement, Highland Avenue (as hereinafter defined) and Homes of
Atlanta (as hereinafter defined) agreed, pursuant to the terms of
certain modification agreements dated June 28, 2007 to secure
the Loan with the Highland Property (as hereinafter defined) and
the Atlanta Property (as hereinafter defined);
WHEREAS, pursuant to the terms of
that certain Fourth Modification Agreement dated December 27,
2007 (the “ Fourth Loan Modification ”),
Borrower and Lender agreed to modify certain payment terms of the
Loan;
WHEREAS, pursuant to the terms of
that certain Fifth Modification Agreement dated February 27,
2008 (the “ Fifth Loan Modification ”), Borrower
and Lender agreed to modify certain payment terms of the
Loan;
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WHEREAS, the outstanding principal
balance under the Loan as of the date hereof is Three Million One
Hundred Twenty Thousand and No/100 Dollars
($3,120,000.00);
WHEREAS Lender last received a loan
payment from Borrower on May 28, 2008, and interest on the
Loan has continued to accrue from and after such date;
WHEREAS, in addition to being the
holder of the Loan, Lender is also currently the holder of:
(i) a certain loan made by Lender to Highland Avenue
Properties, LLC (“ Highland Avenue ”) in the
original principal amount of Four Million Eight Hundred Fifty One
Thousand Two Hundred Thirty-Five and No/100 Dollars ($4,851,235.00)
(as the same has been or may be amended, renewed, supplemented or
restated from time to time, the “ Highland Loan
”) which Highland Loan is secured by, among other things,
certain property located in Atlanta, Georgia (the “
Highland Property ”) and (ii) a certain loan made
by Lender to Comstock Homes of Atlanta, LLC (“ Homes of
Atlanta ”) in the original principal amount of Seven
Million Five Hundred Thousand and No/100 Dollars ($7,500,000.00))
(as the same has been or may be amended, renewed, supplemented or
restated from time to time, the “ Atlanta Loan
”) which Atlanta Loan is secured by, among other things,
certain property located in Jackson County and Paulding County,
Georgia (the “ Atlanta Property ”);
WHEREAS, Borrower, Highland Avenue,
Homes of Atlanta and Lender have all entered into that certain
Forbearance and Conditional Release Agreement (the “
Forbearance Agreement ”) dated as of the date hereof,
whereby Lender has agreed to release Borrower, Highland Avenue and
Homes of Atlanta from their obligations under the Highland Loan and
Atlanta Loan, and forbear from the exercise of its right and
remedies against Borrower, Highland Avenue and Homes of Atlanta
under such loans;
WHEREAS, at the request of the
Borrower, Lender has agreed to, among other things, modify certain
payment terms of the Loan and extend the Maturity Date of the
Loan;
WHEREAS, Borrower’s
obligations under the Note and the other Loan Documents
(hereinafter defined) are hereinafter collectively called the
“ Obligations ”; the Note and all other
documents and any modification agreement previously, now or
hereafter executed and delivered to evidence, secure, guarantee, or
in connection with, the Obligations, as the same has been or may be
amended, renewed, extended, amended, supplemented or restated, are
hereinafter collectively called the “ Loan Documents
”; and all liens, security interests, assignments, superior
titles, rights, remedies, powers, equities and priorities securing
the Note or providing recourse to Lender with respect thereto, are
hereinafter collectively called the “ Liens ”;
and
WHEREAS, Borrower and Lender agree
that this Agreement shall only become effective upon Lender’s
successful foreclosure of the Security Deeds (as defined in the
Forbearance Agreement) in accordance with the terms of the
Forbearance Agreement, including Borrower, Highland Avenue and
Homes of Atlanta (or any person acting directly or indirectly on
behalf thereof) refraining from taking any action that would
prevent or hinder Lender from carrying out and completing the
foreclosure of the Security Deeds in accordance therewith (the
“ Effective Date ”).
NOW, THEREFORE, in consideration of
the sum of Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by all parties, the parties agree as
follows:
1. Recitals .
The recitals set forth above are a
material part of this Agreement, and are incorporated herein as if
restated in full.
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2. Definitions
. All capitalized terms
herein, unless otherwise defined herein, shall have the same
meaning ascribed to such terms as in the Loan Documents.
3. Interest Rate
. Interest on the Loan
shall continue to accrue in accordance with the terms of the Note,
including and without limitation, the following
provisions:
The unpaid principal balance of this
Note from day to day outstanding which is not past due, shall bear
interest at a rate equal to the “Stated Rate”
(hereinafter defined) computed on the “Annual Basis”
(hereinafter defined). As used herein, the term “ Stated
Rate ” means a fluctuating rate of interest equal to the
BBA LIBOR Daily Floating Rate (hereinafter defined) plus Two
Hundred Twenty (220) basis points per annum. The Stated Rate
shall change with each change in the BBA LIBOR Daily Floating Rate
as of the date of any such change, without any requirement that the
Lender provide notice to the Borrower. As used herein (i) the
term “ Annual Basis ” means computation of
interest for the actual number of days elapsed and as if each year
were composed of 360 days, and (ii) the term “ BBA
LIBOR Daily Floating Rate ” shall mean a fluctuating rate
of interest per annum equal to the British Bankers Association
LIBOR Rate (“ BBA LIBOR ”), as published by
Reuters (or other commercially available source providing
quotations of BBA LIBOR as selected by Lender from time to time) as
determined for each Business Day at approximately 11:00 a.m. London
time two (2) London Banking Days prior to the date in
question, for U.S. Dollar deposits (for delivery on the first
day of such interest period) with a one month term, as adjusted
from time to time in Lender’s sole discretion for
governmental reserve requirements, deposit insurance assessment
rates and other regulatory costs. If such rate is not available at
such time for any reason, then a comparable rate will be reasonably
selected by Lender. “ Business Day ” shall mean
a day on which Lender is open for the conduct of substantially all
of its banking business at its office in the city in which this
Note is payable (excluding Saturdays and Sundays). A “
London Banking Day ” is a day on which banks in London
are open for business and dealing in offshore dollars.
If Lender determines that no
adequate basis exists for determining the BBA LIBOR Daily Floating
Rate, or that any applicable law or regulation or compliance
therewith by Lender prohibits or restricts or makes impossible the
charging of interest based on the BBA LIBOR Daily Floating Rate and
Lender so notifies Borrower, then until Lender notifies Borrower
that the circumstances giving rise to such suspension no longer
exist, interest shall accrue and be payable on the unpaid principal
balance of this Note from the date Lender so notifies Borrower
until the Maturity Date of this Note (whether by acceleration,
declaration, extension or otherwise) at a fluctuating rate of
interest equal to the Prime Rate of Lender computed on the Annual
Basis. As used herein, (i) the term “Annual Basis”
means computation of interest for the actual number of days elapsed
and as if each year were composed of 360 days and (ii) the
term “ Prime Rate ” means, on any day, the rate
of interest per annum then most recently established by Lender as
its “prime rate.” Any such rate is a general reference
rate of interest, may not be related to any other rate, and may not
be the lowest or best rate actually charged by Lender to any
customer or a favored rate and may not correspond with future
increases or decreases in interest rates charged by other lenders
or market rates in general, and that Lender may make various
business or other loans at rates of interest having no relationship
to such rate. Each time the Prime Rate changes, the
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per annum rate of interest on this
Note shall change immediately and contemporaneously with such
change in the Prime Rate. If Lender (including any subsequent
holder of this Note) ceases to exist or to establish or publish a
prime rate from which the Prime Rate is then determined, the
applicable variable rate from which the Prime Rate is determined
thereafter shall be instead the prime rate reported in The Wall
Street Journal (or the average prime rate if a high and a low
prime rate are therein reported), and the Prime Rate shall change
without notice with each change in such prime rate as of the date
such change is reported.
4. Maturity.
All of the Obligations, including
(without limitation) all outstanding principal, accrued and unpaid
interest, outstanding late charges, unpaid fees, and all other
amounts outstanding under the Note and the other Loan Documents,
shall be due and payable in full on December 28, 2018 (the
“ Maturity Date ”). The Maturity Date may not be
further extended by the Borrower. All amounts due under the Loan
are due in full on the Maturity Date. All references to the
Maturity Date contained in the Loan Documents shall refer to the
Maturity Date as defined in this Agreement.
5. Payments.
Payments of principal and interest
under the Loan shall be due and payable as follows:
(a) No payments of principal or
interest shall be due prior to January 28, 2010 (“
First Interest Payment Date ”).
(b) On the First Interest Payment
Date, Borrower shall make a payment of all then accrued and unpaid
interest on the Loan at the Stated Rate;
(c) On
February 28, 2010 and on the 28 th of each month thereafter (each
such date, a “ Payment Date ”) through and
including Maturity Date, Borrower shall make monthly payments of
all accrued and unpaid interest on the Loan at the Stated
Rate.
(d) Commencing
January 28, 2012 and continuing on each and every successive
Payment Date thereafter through November 28, 2018, in addition
to monthly payments of interest, Borrower shall make consecutive
monthly payments of principal in the amount of Thirty-Seven
Thousand One Hundred Forty Two and 86
/
100
Dollars ($37,142.86)
each.
(e) On the Maturity Date, Borrower
shall pay the entire outstanding principal balance of the Loan,
together with all accrued but unpaid interest thereon at the Stated
Rate, and all other amounts due under this Agreement or any other
Loan Document.
6. Modification Fees
. Borrower shall pay a
modification fee to the Lender in connection with this Modification
in the amount of Four Hundred Ninety-One Thousand Nine Hundred
Eighty-Eight and No/100 Dollars ($491,988.00) (the “ Sixth
Loan Modification Fee ”), which fee shall accrue interest
at the Stated Rate from the date hereof until paid in full. The
Sixth Loan Modification Fee shall be due and payable as
follows:
(a) On the First Interest Payment
Date, Borrower shall make a payment of all then accrued and unpaid
in
