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AMENDED AND RESTATED PROMISSORY NOTE

Revolving Credit Agreement

AMENDED AND RESTATED PROMISSORY NOTE | Document Parties: Comstock Homebuilding Companies, Inc | INCLUDING BANK | Loan Documents Advances Bank | Wachovia Bank, National Association You are currently viewing:
This Revolving Credit Agreement involves

Comstock Homebuilding Companies, Inc | INCLUDING BANK | Loan Documents Advances Bank | Wachovia Bank, National Association

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Title: AMENDED AND RESTATED PROMISSORY NOTE
Date: 3/31/2009
Industry: Construction Services     Sector: Capital Goods

AMENDED AND RESTATED PROMISSORY NOTE, Parties: comstock homebuilding companies  inc , including bank , loan documents advances bank , wachovia bank  national association
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Exhibit 10.67

AMENDED AND RESTATED PROMISSORY NOTE

(REVOLVING LINE OF CREDIT)

 

$8,000,000.00

  

  

December 10, 2008

  

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


 
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