$50,000,000 June 18, 2009
FOR VALUE RECEIVED, AMERICA FIRST TAX EXEMPT
INVESTORS, L.P., a publicly traded Delaware limited partnership
(“ Borrower ”), hereby promises to pay to the
order of BANK OF AMERICA, N.A., a national banking association
(together with any and all of its successors and assigns and/or any
other holder of this Note, “ Lender ”), without
offset, in immediately available funds in lawful money of the
United States of America, at DC9-909-02-02, 1801 K Street NW,
2 nd
Floor, Washington, DC 20006, the
principal sum of Fifty Million and No/100 Dollars ($50,000,000) (or
the unpaid balance of all principal advanced against this Note, if
that amount is less), together with interest on the unpaid
principal balance of this Note from day to day outstanding as
hereinafter provided.
Section
1.
Payment Schedule and Maturity Date .
(a)
Interest Payments . Prior to maturity, accrued
and unpaid interest shall be due and payable in arrears on the
fifth (5 th
) day of each month commencing on
July 5, 2009. Borrower shall use the interest payments
made with respect to the underlying Bonds (as defined in the Loan
Agreement) to pay interest coming due under this Note; provided,
however, that Borrower’s obligation to make monthly interest
payments is absolute, and Borrower shall not be relieved of such
obligation if interest payments are not received by the Collateral
Agent (as defined in the Loan Agreement) with respect to the
Bonds. Subject to the terms and conditions of the Loan
Agreement and Borrower’s payment obligations under this Note,
Borrower may use interest payments made with respect to the
underlying Bonds that are in excess of the interest coming due
under this Note for any other uses that Borrower may
elect.
(b)
Principal Payments . Prior to maturity, Borrower
shall make principal payments on the fifth (5
th ) day of each October, January, April and July,
commencing on October 5, 2009, in the amounts set forth on
Schedule 1(b) attached hereto and incorporated herein, which
amounts are intended to equal the aggregate amount of sinking fund
payments received by the Collateral Agent during the preceding
quarter with respect to certain of the underlying Bonds.
(c)
Maturity . The entire principal balance of this
Note then unpaid, together with all accrued and unpaid interest and
all other amounts payable hereunder and under the other Loan
Documents (as hereinafter defined), shall be due and payable in
full on June 30, 2010 (the “ Maturity Date ”),
the final maturity of this Note.
Section
1A
Extension Option . Lender shall grant a request
by Borrower to extend the Maturity Date of this Note to December
31, 2010 (the “ Extended Maturity Date ”), upon
and subject to the following terms and conditions:
(a) Unless
otherwise agreed by Lender in writing:
(i) Borrower
shall request the extension, if at all, by written notice to the
Lender not more than ninety (90) days, and not less than forty-five
(45) days, prior to the Maturity Date.
(ii) At
the time of the request, and at the time of the extension, there
shall not exist any Event of Default, nor any condition or state of
facts which after notice and/or lapse of time would constitute an
Event of Default.
(iii) Current
financial statements (dated not earlier than thirty (30) days prior
to the request for extension) regarding the Borrower, the General
Partner, the Project Owners (as defined in the Loan Agreement) and
the Projects (as defined in the Loan Agreement) and all other
financial statements and other information as may be required under
the Loan Agreement, shall have been submitted to the Lender within
15 Business Days of the request for extension, and there shall not
have occurred, in the reasonable opinion of the Lender, any
material adverse change in the business or financial condition of
the Borrower or its General Partner.
(iv) Whether
or not the extension becomes effective, Borrower shall pay all
out-of-pocket costs and expenses incurred by Lender in connection
with the proposed extension (pre- and post-closing), including
appraisal fees, environmental audit and reasonable attorneys’
fees actually incurred by Lender; all such costs and expenses
incurred up to the time of Lender’s written agreement to the
extension shall be due and payable prior to Lender’s
execution of that agreement (or if the proposed extension does not
become effective, then upon demand by Lender), and any future
failure to pay such amounts shall constitute a default under the
Loan Documents.
(v) The
Loan-to-Value Ratio of the Bond Portfolio, determined by Lender in
accordance with the provisions of the Loan Agreement, shall be not
greater than 75% at the time of the extension.
(vi) At
the time of the request and the time of the extension, the Projects
shall then be performing in accordance with pro forma operating
statements provided to Lender by Borrower, and the Bond Portfolio
shall then satisfy a Debt Service Coverage Ratio of 1.1 to 1.0,
determined by Lender in accordance with the provisions of the Loan
Agreement, or the Borrower may then deposit additional cash
collateral with the Lender to cause the Bond Portfolio to be
compliance with the Debt Service Coverage Ratio, as determined by
the Lender in accordance with the Loan Agreement or may rescind the
request for extension (in which case the Loan will mature on the
Maturity Date).
(vii) Without
limiting the requirements of subsection (iv) above, Borrower shall
pay an extension fee to the Lender in an amount equal to fifty (50)
basis points of the then-outstanding principal balance of this
Note.
If all of the foregoing conditions are not
satisfied strictly in accordance with their terms, the extension
shall not be or become effective.
(b) All
terms and conditions of the Loan Documents shall continue to apply
to the extended term except to the extent that the definition of
“Maturity Date” shall mean the “Extended Maturity
Date”.
Section
2.
Security; Loan Documents . The security for this
Note includes the Loan and Security Agreement of even date herewith
(as the same may from time to time be amended, restated, modified
or supplemented, the “ Loan Agreement ”) by and
among Borrower, Lender and Deutsche Bank Trust Company Americas, as
Collateral Agent, pursuant to which, among other things, Borrower
has pledged all of its rights, title and interest in and to the
Bonds and related collateral to the Lender. This Note,
the Loan Agreement and all other documents now or hereafter
securing, guaranteeing or executed in connection with the loan
evidenced by this Note (the “ Loan ”), as the
same may from time to time be amended, restated, modified or
supplemented, are herein sometimes called individually a “
Loan Document ” and together the “ Loan
Documents .”
Section
3.
Interest Rate .
(a)
BBA LIBOR Daily Floating Rate . The unpaid
principal balance of this Note from day to day outstanding which is
not past due, shall bear interest at a fluctuating rate of interest
per annum equal to the BBA LIBOR Daily Floating Rate for that day
plus three hundred ninety (390) basis points per annum (the “
Note Rate ”). The “ 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 reserve requirements, deposit
insurance assessment rates and other regulatory costs. A
“ London Banking Day ” is a day on which banks
in London are open for business and dealing in offshore
dollars. Interest shall be computed for the actual
number of days which have elapsed, on the basis of a 360-day
year.
(b)
Alternative Rates . Lender may notify Borrower if
the BBA LIBOR Daily Floating Rate is not available for any reason,
or if Lender determines that no adequate basis exists for
determining the BBA LIBOR Daily Floating Rate, or that the BBA
LIBOR Daily Floating Rate will not adequately and fairly reflect
the cost to Lender of funding the Loan, 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. If Lender so notifies
Borrower, then interest shall accrue and be payable on the unpaid
principal balance of this Note at a fluctuating rate of interest
equal to the Prime Rate of Lender plus one hundred (100) basis
points per annum, from the date of such notification by Lender
until Lender notifies Borrower that the circumstances giving rise
to such suspension no longer exist, or until the Maturity Date of
this Note (whether by acceleration, declaration, extension or
otherwise), whichever is earlier to occur. 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 Lender may make various
business or other loans at rates of interest having no relationship
to such rate. Any change in the Prime Rate shall take
effect at the opening of business on the day specified in the
public announcement of a change in Lender’s 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.
(c)
Past Due Rate . If any amount payable by Borrower
under any Loan Document is not paid when due (without regard to any
applicable grace periods), such amount shall thereafter bear
interest at the Past Due Rate (as define
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