AMENDED AND RESTATED PROMISSORY NOTE� J
� ' .
AMENDED AND RESTATED PROMISSORY NOTE
U.S. ($1,209,062.00)
Clearwater, Florida
May �, 2012
BEING INDEBTED, FOR VALUE RECEIVED, the undersigned, Greenwood
Apartments, LLC, a Florida limited liability company, (the "Borrower"), having an
address of 100 N. Tryon Street, 11 th Floor, Charlotte, NC 28255-0001, promises to pay
to the order of the City of Clearwater (the "Lender"), or order, its successors or
assigns, at its offices at P.O. Box 4748, Clearwater, Florida 33758-4748, the sum of
One Million Two Hundred and Nine Thousand Sixty Two and 00/00 Dollars
($1,209,062.00), together with interest accrued on the unpaid balance, calculated in the
manner hereinafter stated, from the dates of disbursements until maturity, both principal
and interest being payable in lawful money of the United States of America. This
Amended and Restated Promissory Note is a modification and restatement of the
original Promissory Note in the amount of Seven Hundred Thousand Dollars ($700,000)
dated on April 1, 2002, (the "Original Note"), as modified pursuant to that certain
Modified Promissory Note ("Modified Note" and collectively with the Original Note, the
"Note"), dated May 27, 2005, which increased the original loan amount to One Million
Dollars ($1,000,000) (the "Loan") which is secured by that certain Mortgage and
Security Agreement, dated April 3, 2002, and recorded on April 4, 2002, in Official
Records Book 11928, Page 2494 of the Public Records of Pinellas County, Florida (the
"Mortgage").
FUNDS HAVING BEEN DISBURSED: $1,000,000.00 disbursed under this note were
advanced in accordance with the following schedule:
a) $250,000 at 25% of completion as evidenced by certification of the architect;
b) $250,000 at 50% of completion as evidenced by certification of the architect;
c) $250,000 at 75% of completion as evidenced by certification of the architect;
d) $125,000 at final as evidenced by certification of the architect;
e) $125,000 at stabilization as evidenced by certification of a CPA.
PAYMENT AND TAXES:
1. This Note has a term of thirty (30) years. This Note is due and payable, full
principal sum plus interest accrued, on or before the maturity date, which is May 1,
2042.
2. No payment of interest or principal were required under the Note during
the initial three (3) year term of the Note, or until May 1, 2005.
#1784191 v4 Greenwood Am & Restated Promissory Note 40545-0001
1 '
� � ♦
3. Thereafter, commencing on May 1, 2005 principal and interest payments,
with interest computed at three percent (3%) per annum on the unpaid balance, were
due and payable on the 1 st day of May for each subsequent year in the amount of
Eighty-Three Thousand Seven Hundred Sixty-Sixty Dollars and Fifty-Eight Cents
($83,766.58), which amounts were unpaid and are now due and owing. Accrued interest
shall be added to and included in principal amounts now due, resulting in the increased
principal amount now due as set forth on page one of this Note. The interest rate, as
stated above, remains unchanged through the term of the Note.
4. Borrower acknowledges that the amount of the increase in the principal
amount due, in the amount of Two Hundred and Nine Thousand Sixty Two and 00/00
Dollars ($209,062.00) (the "Increase") constitutes a future advance under the Mortgage,
and that the total mortgage loan by Lender to Borrower consisting of the indebtedness
evidenced by this Amended and Restated Note is secured by the Mortgage as a first
lien upon the Property, as described below, to the same extent and effect as though it
were advanced the date of first recording of the Mortgage.
5. Payments due under this Note shall be contingent upon Cash Flow (as
hereinafter defined) of the Borrower and shall be subject and subordinate in priority to
certain fees and expenses of Borrower described on Exhibit A, attached hereto.
"Cash Flow" shall mean the amount, determined for any fiscal year of the
Borrower or portion thereof, equal to the excess, if any, of
(i) All gross revenue coltected directly or indirectly from the operations of the
Project (excluding proceeds of the sale or refinancing of the Project or any
portion thereof) and the Borrower plus any amounts no longer deemed
necessary for the efficient operations of the Borrower by Class A Member,
or its successor in interest, if any, in the reasonable exercise of its
discretion (with the consent of the Investor Member), released from
Borrower reserves which are deposited into the Borrower's general
accounts, over
(ii) Project Expenses and required deposits to the Borrower's reserves,
including any additional reserves established from time to time.
Cash Flow shall not be reduced by payments of any items described in the
preceding clause (ii) made from the proceeds of any loans, from condemnation or
insurance proceeds or directly from any reserve, or by depreciation and amortization
taken into account for federal income tax purposes.
Capitalized terms in this Section 5, not otherwise defined herein, shall have the
meanings as defined in Exhibit "A".
If Greenwood Apartments is unable to make the annual mortgage payments to
the Lender, Greenwood Apartments, LLC, must provide the Lender with an audited
#1784191 v4 Greenwood Am & Restated Promissory Note 40545-0001
2
, ;
financial statement, from an independent third party, substantiating that there is
insufficient cash-flow to make the annual payment due under the Note. In those years
where there is sufficient cash-flow to pay the annual loan payment, the payment should
be made to Lender and Pinellas County as a pro-rata share of each jurisdiction's
investment. In the years where the Pinellas County loan is deferred, payment shall be
made solely to the Lender.
PARITY/PARI-PASSU NOTE:
This Note is issued along with a companion promissory note in the face amount
of $300,000 payable to The Housing Finance Authority of Pinellas County. This Lender
agrees that the rights, powers, privileges and remedies granted hereunder are on parity
and pari-passu with The Housing Finance Authority of Pinellas County under its
$300,000 promissory note and relative mortgage, both of which are being amended
simultaneously herewith. The Lender shall not take any action which would cause its
interests in the Premises to be superior to that of The Housing Finance Authority of
Pinellas County.
EXCESS INTEREST:
In no event shall the amount of interest due or payments made in the nature of
interest payable hereunder exceed the maximum rate of interest allowed by applicable
law, as amended from time to time, and in the event any such payment is paid by the
Borrower or received by the Lender, then such excess sums shall be credited as a
payment of principal, unless the Borrower shall notify the Lender, in writing, that the
Borrower elects to have such excess sum returned to it forthwith.
PREPAYMENT:
This Note may be prepaid in whole or in part at any time without payment of
premium or penalty. Any prepayments shall be applied to the last installments due
hereunder.
SECURED NOTE:
This Note is secured by a Mortgage, a Mortgage Modification Agreement and
Receipt for Future Advance, executed simultaneously herewith, and such other security
or supporting documents as are executed in conjunction with it (the "Loan Documents")
between the Borrower and Lender on real and/or personal property, improvements,
furnishings, fixtures, appurtenances, and hereditaments (the "Premises"). This Note
and the Lender are entitled to all of the benefits provided for in the Loan Documents or
referred to within them, to which �oan Documents reference is hereby specifically made
and they are hereby incorporated herein by reference for a statement of the terms and
conditions under which the due date of this Note may be accelerated.
#1784191 v4 Greenwood Am & Restated Promissory Note 40545-0001
3
TIME OF THE ESSENCE, LATE CHARGES:
Time is of the essence of this obligation. If any installment or payment is not
received on or before the 15th day following the installment due date, the Borrower
agrees to pay a delinquency and collection charge of five cents ($.05) per dollar of the
installment then due, in addition to the amount of said installment.
In the event this Note is accelerated pursuant to a failure to timely pay or
perform, then the entire unpaid principal shall bear interest at the maximum rate
permitted by applicable law as changed from time to time from the time that payment or
performance should have occurred. In the event a judgment is obtained, the judgment
amount shall bear interest at the default rate recited herein or the rate of interest
established by Section 55.03 Florida Statutes, which ever is the greater, until the full
amount of the judgment is collected.
COSTS, FEES AND NOTICE:
In the event of either a failure to pay any monetary sum when due, or an
occurrence of any default as defined under the Loan Documents, the principal sum
above mentioned or any balance remaining unpaid shall be immediately due and
payable from the Borrower to the Lender without further notice, together with all interest,
all just and reasonable expenses, costs and disbursements, including a reasonable
attorney's fee, whether incurred for suit enforcement, protection of the collateral or
collection, whether or not suit be brought, such attorney's fees to include those incurred
in appellate and Bankruptcy proceedings, if any. Notice, when required, shall be
deemed to have been made upon deposit in the United States mails by the Lender to
the Borrower, at the address shown beneath the signatures undersigned.
REMEDIES AND WAIVER:
The remedies of the Lender, as provided herein or in the Mortgage or any other
Loan Documents, shall be cumulative and concurrent, and may be pursued singularly,
successively or together, at the sole discretion of the Lender, and may be exercised as
often as occasion therefor shall arise. No act of omission or commission of the Lender,
including specifically any failure to exercise any right, remedy or recourse, shall be
deemed to be a waiver or release of the same, such waiver or release to be effected
only through a written document executed by the Lender and then only to the extent
specifically recited therein. A waiver or release with reference to any one event shall
not be construed as continuing, as a bar to, or as to a subsequent event.
MISCELLANEOUS:
Where applicable, the term Lender shall include any subsequent or successor
holder of this Note and the Loan Documents.
#1784191 v4 Greenwood Am & Restated Promissory Note 40545-0001
4
� ' , i
For and in consideration of the funding of this Note by the Lender or any renewal
or extension thereof, should any occur, the undersigned Borrower hereby agrees to
cooperate or to reexecute any and all Loan Documents deemed necessary or desirable
in the Lender's discretion, in order to correct or to adjust for any clerical errors or
omissions contained in any document executed in connection with the loan.
WAIVER OF JURY TRIAL. BY THE EXECUTION HEREOF, BORROWER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY AGREES THAT:
(A) NEITHER THE BORROWER NOR ANY ASSIGNEE, SUCCESSOR,
HEIR, OR LEGAL REPRESENTATIVE OF THE SAME SHALL SEEK A JURY TRIAL IN
ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION OR
PROCEDURE ARISING FROM OR BASED UPON THIS PROMISSORY NOTE, ANY
OTHER LOAN AGREEMENT OR ANY LOAN DOCUMENT EVIDENCING, SECURING
OR RELATING TO THE OBLIGATIONS OR TO THE DEALINGS OR RELATIONSHIP
BETWEEN OR AMONG THE PARTIES THERETO;
(B) NEITHER THE BORROWER NOR THE LENDER WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED,
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN OR CANNOT
BE WAIVED;
(C) THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY
NEGOTIATED BY THE PARTIES HERETO AND THESE PROVISIONS SHALL BE
SUBJECT TO NO EXCEPTIONS;
(D) NEITHER THE BORROWER NOR THE LENDER HAS IN ANY WAY
AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE
PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES; AND
(E) THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER
TO ENTER INTO THIS TRANSACTION.
THE UNDERSIGNED ACKNOWLEDGE THAT THE LOAN EVIDENCED
HEREBY IS FOR COMMERCIAL PURPOSES ONLY AND NOT FOR PERSONAL
FAMILY OR HOUSEHOLD PURPOSE.
(signatures appear on the following page)
#1784191 v4 Greenwood Am & Res[ated Promissory Note 40545-0001
5
� �
Florida Documentary stamps in the amount of $� ��.�� have been paid
and the proper stamps affixed to the Mortgage Modification and Receipt of Future
Advance.
GREENWOOD APARTMENTS, LLC,
a Florida limited liability company.
By: BANC OF AMERICA COMMUNITY
DEVELOPMENT CORPORATION; its
managing member.
Y�
Name: �`�� �i - ��`�
Title: Y� ���C
# 1784191 v2 Greenwood Am & Restated Promissory Note 4Q545-0001
0
EXHIBIT "A"
PAYMENT SCHEDULE
Payment of fees, other expenses and subordinate loan payments contingent on
Cash Flow shall be made in the following order of priority:
(a) First, to the Investor Member, in an amount equal to the Credit Deficiency (as
defined below).
(b) Second, to the Investor Member, the Investor Services Fee payable in
accordance with the Investor Services Agreement, dated April 3, 2002, as the
same may be amended from time to time.
(c) Third, pari passu, to the payment of accrued interest and principal on (i) the
HFA Loan (as defined below) and (ii) the SHIP Loan (as defined below), a
combined amount equal to the lesser of: (i) 75% of Cash Flow remaining after
payments pursuant to clauses (a) and (b) above; or (ii) an amount sufficient to
reduce the balance of each of the HFA Loan and the SHIP Loan to the amount
shown in the applicable column labeled "End Balance" for the applicable year
as indicated on the Pinellas HFA and City of Clearwater SHIP Loans new 30
Year Amortization Schedule attached hereto as Exhibit A-1 and incorporated
herein by reference.
(d) Fourth, to the payment of accrued interest and principal on the Sponsor Fee
Note (as defined below), in accordance with its terms, until paid in full.
(e) Fifth, forty percent (40%) of the Cash Flow remaining after payments pursuant
to Clauses (a) —(d) above to the payment of accrued interest and principal on
the CNHS Loan (as defined below) until paid in full.
(f) Sixth, to the Class A Member in accordance with the Company Administration
Agreement (as those terms are defined in Borrower's Operating Agreement, as
the same may be amended from time to time, until paid in full).
(g) Seventh, any remaining Cash Flow will be paid to Class A Member and the
Investor Member in accordance with the Borrower's Operating Agreement.
No cash flow payments will be required to service the Pinellas HOME Loan (as
defined below).
As used herein:
"Class A Member" shall mean the Class A Member of the Borrower as currently
identified in the organizational documents of the Borrower.
"CNHS Loan" shall mean that certain loan evidenced by that certain Promissory Note
between Borrower and Clearwater Neighborhood Housing Services, Inc., dated
#1784191 v4 Greenwood Am & Restated Promissory Note 40545-0001
effective as of February 21, 2002, as amended by that certain Note Modification
Agreement dated May 14, 2012, as the same may be amended from time to tir�e.
"Credit Deficiency" shall mean the amount by which the Credits received by the
Investor Member are less than the Projected Credits as adjusted by any reductions
in Capital Contributions and any Credit Adjuster Advances pursuant to 9ections
3.03(b), (c) and (d); provided, however, that such a deficit shall not be a
"Credit Deficiency" if the Credit Deficiency is based on acts, omissions or
circumstances first occurring prior to the HK Closing Date, except to the extent
such obligation is funded by the HK Guarantor. For this purpose, the Investor
Member shall be considered to have received Credits in the amount allocated to
the Investor Member on the Company's federal income tax returns reduced by: (i)
any adjustment of the Credits reported on the Company's tax return that is made by
the IRS or a court in a Final Determination; and (ii) the amount of any recapture or
claimed recapture of such Credits other than recapture caused by the action of the
Investor Member. Nothing contained in this definition of "Credit Deficiency" limits or is
intended to limit the obligations of the HK Guarantor under the Tax Credit Deficiency
Guaranty that is part of the Borrower's Operating Agreement. For the purposes of this
definition, capitalized terms and section references described herein, which are not
otherwise defined in this exhibit, shall refer to and have the meanings as set forth in the
Borrower's Operating Agreement.
"HFA Loan" shall mean that certain loan evidenced by that certain Promiss�ory Note
between Borrower and the Housing Finance Authority of Pinellas County, Florida dated
April 3, 2002, as modified by that certain Mortgage and Promissory Note Modification
Agreement dated July 15, 2005, and as further modified by that certain Second
Mortgage and Note Modification Agreement dated May 14, 2012, as the same may be
amended from time to time.
"Investar Member" shall mean the Investor Member of the Borrower as currently
identified in the organizational documents of the Borrower.
"Pinellas HOME Loan" shall mean that certain loan evidenced by that certain
Promissory Note between Borrower and Pinellas County, Florida dated August 25,
2005, as amended by that certain Mortgage and Promissory Note Modification
Agreement dated May 14, 2012 , as the same may be amended from time to tinhe.
"Project" shall mean the land and improvements comprising a project commonly known
as Palmetto Park Apartments and Greenwood Apartments located at 1003 Martin
Luther King Jr. Avenue in Clearwater, Florida, together with such additions or
improvements thereto as may hereafter be performed or acquired by the Borrov�er.
"Project Expenses" shall mean all costs and expenses of any type incurred on an
accrual basis incident to the equipping, financing, ownership and operation of the
Project, including payments of fees to the members or their affiliates (other than fees
#1784191 v4 Greenwood Am & Restated Promissory Note 40545-0001
g
the payment of which is contingent on the amount of Cash Flow), taxes, required
payments of principal and interest on any loans and any other Borrower loans or
obligations (including loans from members), and costs of capital improvements to the
Project not funded from the Borrower replacement reserve.
"SHIP Loan" shall mean that certain loan evidenced by that certain Promissory Note
between Borrower and the City of Clearwater dated April 1, 2002, as modified by that
certain Modified Promissory Note dated May 27, 2005, and as further modified by this
Note and the Mortgage Modification and Receipt of Future Advance dated May 14,
2012, as the same may be amended from time to time.
"Sponsor Fee Note" shall mean that certain Promissory Note dated May 14, 2012, as
the same may be amended from time to time.
#1784191 v4 Greenwood Am & Restated Promissory Note 40545-0001
9
EXHIBIT "A-1"
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#1784191 v4 Greenwood Am & Restated Promissory Note 40545-0001
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