Exhibit 10.65
AMENDED AND RESTATED PROMISSORY
NOTE
(TRIBBLE ROAD
LOAN)
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$3,000,000.00
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December 10, 2008
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Comstock Homebuilding Companies,
Inc. (hereinafter referred to as “Borrower”)
11465 Sunset Hills Road
5th Floor
Reston, VA 20190
Attn: Christopher D. Clemente
Attn: Jubal R. Thompson
Wachovia Bank, National Association
(hereinafter referred to as “Bank”)
123 South Broad Street
Philadelphia, PA 19109
Borrower promises to pay to the
order of Bank, in lawful money of the United States of America by
mailing to the address specified hereinafter or wherever else Bank
may specify, the sum of Three Million and No/100 Dollars
($3,000,000.00), with interest on the unpaid principal balance at
the rate and on the terms provided in this Promissory Note
(including all renewals, extensions or modifications hereof, this
“Note”).
RENEWAL/MODIFICATION.
This Note, an Amended and Restated
Promissory Note (Revolving Line of Credit) of even date herewith,
and an Amended and Restated Promissory Note (Term Loan) of even
date herewith renew, extend and/or modify that certain Promissory
Note dated May 26, 2006 in the original principal amount of
$40,000,000.00 (as previously modified and amended, if applicable,
the “Original Note”). This Note is not a
novation.
USE OF PROCEEDS.
Borrower shall use the proceeds of
the loan(s) evidenced by this Note for the commercial purposes of
Borrower, as follows: debt renewal and extension pursuant to the
terms of that certain Loan Modification and Forbearance Agreement
of even date herewith entered into by Borrower, Bank, and other
parties (the “Forbearance Agreement”).
SECURITY. Borrower has granted or will grant Bank a
security interest in the collateral described in the Loan Documents
and such other security instruments as are executed from time to
time, including, but not limited to, real and personal property
collateral described in (i) that certain Deed of Trust,
Security Agreement and Financing Statement dated May 26, 2006
from Comstock Massey Preserve, L.L.C. (formerly Comstock Wesel,
L.L.C.) to TRSTE, Inc., a Virginia corporation
(“TRSTE”) and recorded in the Wake County Register of
Deeds in Book 11976, Page 1996; (ii) that certain Deed of
Trust, Security Agreement and Financing Statement dated
May 26, 2006 from Comstock Homes of Raleigh, L.L.C.
(“Comstock Raleigh”) (formerly Capitol Homes, Inc.) to
TRSTE and recorded in the Durham County Register of Deeds in Book
5222, Page 995; (iii) that certain Deed of Trust, Security
Agreement and Financing Statement dated May 26, 2006 from
Comstock Raleigh to TRSTE and recorded in the Johnston County
Register of Deeds in Book 3128, Page 783; (iv) that certain
Deed of Trust, Security Agreement and Financing Statement dated
May 26, 2006 from Comstock Raleigh to TRSTE and recorded in
the Wake County Register of Deeds in Book 11976, Page 1982;
(v) that certain Supplemental Deed of Trust, Security
Agreement and Financing Statement dated June 26, 2006 from
Comstock Raleigh to TRSTE and recorded in the Wake County Register
of Deeds in Book 12031, Page 441; (vi) that certain
Supplemental Deed of Trust, Security Agreement and Financing
Statement dated July 21, 2006 from Comstock Raleigh to TRSTE
and recorded in the Johnston County Register of Deeds in Book 3165,
Page 476; (vii) that certain Supplemental Deed of Trust,
Security Agreement and Financing Statement dated July 25, 2006
from Comstock Raleigh to TRSTE and recorded in the Wake County
Register of Deeds in Book 12079, Page 404; (viii) that certain
Deed of Trust, Security Agreement and Financing Statement dated
July 21, 2006 from Comstock Landing, LLC to TRSTE and recorded
in the Wake County Register of Deeds in Book 12080, Page 830;
(ix) that certain Supplemental Deed of Trust, Security
Agreement and Financing Statement dated July 27, 2006 from
Comstock Wakefield, LLC and Comstock Wakefield II, LLC to TRSTE and
recorded in the Wake County Register of Deeds in Book
12094, Page 1730; (x) that certain Deed to
Secure Debt, Security Agreement and Financing Statement dated
August 29, 2006 from Comstock Homes of Atlanta, LLC
(“Comstock Atlanta”) to Lender and recorded with
Cherokee County Clerk of Superior Court in Book 9018, Page 173;
(xi) that certain Deed to Secure Debt, Security Agreement and
Financing Statement dated August 29, 2006 from Comstock
Atlanta to Lender and recorded with Forsyth County Clerk of
Superior Court in Book 4428, Page 387; (xii) that certain Deed
to Secure Debt, Security Agreement and Financing Statement dated
August 29, 2006 from Comstock Atlanta to Lender and recorded
with Jackson County Clerk of Superior Court in Book 45I, Page 458;
(xiii) that certain Deed to Secure Debt, Security Agreement
and Financing Statement dated September 14, 2006 from Comstock
James Road, LLC to Lender and recorded with Forsyth County Clerk of
Superior Court in Book 4450, Page 620; (xiv) that certain Deed
to Secure Debt, Security Agreement and Financing Statement dated
September 27, 2006 from Tribble Road Development, LLC to
Lender and recorded with Forsyth County Clerk of Superior Court on
in Book 4469, Page 410; (xv) that certain Supplemental Deed of
Trust, Security Agreement and Financing Statement dated
October 18, 2006 from Comstock Raleigh to TRSTE and recorded
in the Wake County Register of Deeds in Book 12223, Page 2235;
(xvi) that certain Supplemental Deed of Trust, Security
Agreement and Financing Statement dated November 9, 2006 from
Comstock Raleigh to TRSTE and recorded in the Wake County Register
of Deeds in Book 12261, Page 489; (xvii) that certain Deed of
Trust, Security Agreement and Financing Statement dated
November 13, 2006 from Comstock Summerland, L.C. to TRSTE and
recorded in the Prince William County Register of Deeds as
instrument number 200611170162991; and (xviii) that certain
Supplemental Deed of Trust, Security Agreement and Financing
Statement dated December 13, 2006 from Comstock Raleigh to
TRSTE and recorded in the Wake County Register of Deeds in Book
12308, Page 2241.
INTEREST RATE.
Interest shall accrue on the
unpaid principal balance of this Note from the date hereof at the
LIBOR Market Index Rate plus 4.0%, as that rate may change from day
to day in accordance with changes in the LIBOR Market Index Rate
(“Interest Rate”). “LIBOR Market Index
Rate”, for any day, means the rate for 1 month U.S. dollar
deposits as reported on Telerate Successor Page 3750 as of 11:00
a.m., London time, on such day, or if such day is not a London
business day, then the immediately preceding London business day
(or if not so reported, then as determined by Bank from another
recognized source or interbank quotation).
DEFAULT RATE.
In addition to all other
rights contained in this Note, if a Default (as defined herein)
occurs and as long as a Default continues, all outstanding
Obligations, other than Obligations under any swap agreements (as
defined in 11 U.S.C. § 101, as in effect from time to time)
between Borrower and Bank or its affiliates, shall bear interest at
the Interest Rate plus 3% (“Default Rate”). The
Default Rate shall also apply from acceleration until the
Obligations or any judgment thereon is paid in full.
INTEREST AND FEE(S) COMPUTATION
(ACTUAL/360). Interest and fees, if any, shall be
computed on the basis of a 360-day year for the actual number of
days in the applicable period (“Actual/360
Computation”). The Actual/360 Computation determines the
annual effective interest yield by taking the stated (nominal) rate
for a year’s period and then dividing said rate by 360 to
determine the daily periodic rate to be applied for each day in the
applicable period. Application of the Actual/360 Computation
produces an annualized effective rate exceeding the nominal
rate.
REPAYMENT TERMS.
All principal and accrued
interest shall be due and payable on December 10,
2011.
APPLICATION OF
PAYMENTS. Monies
received by Bank from any source for application toward payment of
the Obligations shall be applied to accrued interest and then to
principal. If a Default occurs, monies may be applied to the
Obligations in any manner or order deemed appropriate by
Bank.
If any payment received by Bank
under this Note or other Loan Documents is rescinded, avoided or
for any reason returned by Bank because of any adverse claim or
threatened action, the returned payment shall remain payable as an
obligation of all persons liable under this Note or other Loan
Documents as though such payment had not been made.
2
DEFINITIONS. Loan Documents.
The term “Loan
Documents”, as used in this Note and the other Loan
Documents, refers to all documents executed in connection with or
related to the loan evidenced by this Note and any prior notes
which evidence all or any portion of the loan evidenced by this
Note, and any letters of credit issued pursuant to any loan
agreement to which this Note is subject, any applications for such
letters of credit and any other documents executed in connection
therewith or related thereto, and may include, without limitation,
a commitment letter that survives closing, a loan agreement, this
Note, forbearance agreements, guaranty agreements, security
agreements, security instruments, financing statements, mortgage
instruments, any renewals or modifications, whenever any of the
foregoing are executed, but does not include swap agreements (as
defined in 11 U.S.C. § 101, as in effect from time to
time). Obligations. The term
“Obligations”, as used in this Note and the other Loan
Documents, refers to any and all indebtedness and other obligations
under this Note, all other obligations under any other Loan
Document(s), and all obligations under any swap agreements (as
defined in 11 U.S.C. § 101, as in effect from time
to time) between Borrower and Bank, or its affiliates, whenever
executed. Certain Other Terms. All terms that
are used but not otherwise defined in any of the Loan Documents
shall have the definitions provided in the Uniform Commercial
Code.
LATE CHARGE.
If any payments are not timely
made, Borrower shall also pay to Bank a late charge equal to 5% of
each payment past due for 10 or more days. This late charge
shall not apply to payments due at maturity or by acceleration
hereof.
Acceptance by Bank of any late
payment without an accompanying late charge shall not be deemed a
waiver of Bank’s right to collect such late charge or to
collect a late charge for any subsequent late payment
received.
If this Note is secured by
owner-occupied residential real property located outside the state
in which the office of Bank first shown above is located, the late
charge laws of the state where the real property is located shall
apply to this Note and the late charge shall be the highest amount
allowable under such laws. If no amount is stated thereunder,
the lat
