Exhibit 10.67
AMENDED AND RESTATED PROMISSORY
NOTE
(REVOLVING LINE OF
CREDIT)
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$8,000,000.00
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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 Eight Million and No/100 Dollars
(8,000,000.00) or such sum as may be advanced and outstanding
from time to time, 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 (Term Loan) of even date herewith, and an Amended
and Restated Promissory Note (Tribble Road 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.
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”), Borrower shall use the
proceeds of the loan(s) evidenced by this Note for the commercial
purposes of Borrower as follows: to fund completion of partially
constructed “Units” (as defined in the Forbearance
Agreement) and construction of new Units on the “Lots”
(as defined in the Forbearance Agreement).
LINE OF CREDIT.
Approval for advances under this
Note will be given on a Unit by Unit basis, subject to
Borrower’s strict compliance with the requirements of the
Forbearance Agreement. Subject to the foregoing, Borrower may
borrow, repay and reborrow, and Bank may advance and readvance
under this Note from time to time until the maturity hereof (each
an “Advance” and together the “Advances”),
so long as the total principal balance outstanding under this Note
at any one time does not exceed the principal amount stated on the
face of this Note. As of the date of each proposed Advance,
Borrower shall be deemed to represent that each representation made
in the Loan Documents is true as of such date.
If Borrower subscribes to
Bank’s cash management services and such services are
applicable to this line of credit, the terms of such service shall
control the manner in which funds are transferred between the
applicable demand deposit account and the line of credit for credit
or debit to the line of credit.
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
2
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.
This Note shall be due and payable
as follows:
1) by consecutive
monthly payments of accrued interest only, commencing on
January 10, 2009 and continuing on the 10
th
day of each month
thereafter until January 15, 2010;
2) by periodic
payments of principal and accrued interest
(“Installments”) due upon the sale of each Unit, with
each such Installment being an amount equal to the sum of
(a) the total amount advanced by Bank for the Unit and the Lot
upon which the Unit is built (including all amounts advanced by
Bank prior to the date hereof for presently existing Units, as
reflected in Schedule 1 , plus all amounts advanced by Bank
after the date hereof pursuant to this Note), together with all
accrued but unpaid interest thereon (the “Base Unit Release
Payment”), plus (b) an additional $10,000.00 for each of
the ten spec Units remaining in the Summerland project as of the
date hereof (which is included in the amounts shown for the
Summerland spec Units in the column headed “1
st
Draw” in
Schedule 1 ), together with all accrued interest thereon
from and after the date of the Initial Advance (as defined in the
Forbearance Agreement) hereunder (the “Additional Summerland
Release Payment”), plus (c) 25% of any net sale proceeds
after payment of the Base Unit Release Payment, the Additional
Summerland Release Payment (if applicable), any unfunded
construction costs approved by Bank in writing on not less than
five (5) business days notice, and all reasonable and
customary sales expenses and closing costs properly charged to
Borrower as reflected in a HUD-1 settlement statement delivered to
Bank not less than three (3) business days in advance of the
closing of the sale of the Unit (the “Excess Unit Release
Payment”); and
3) a final payment of all principal
and accrued interest shall be due and payable on January 15,
2010.
Borrower may prepay this Note in
whole or in part at any time without penalty or premium.
APPLICATION OF
PAYMENTS. Monies received
by Bank from the sale of Units shall be applied as set forth above
and in the Forbearance Agreement. Monies received by Bank from any
other 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.
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