Exhibit
10.2
PROMISSORY
NOTE
$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, 2nd 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 (5th) 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 (5th) 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 defined
below) to the fullest extent permitted by applicable Law. Accrued and
unpaid interest on past due amounts (including interest on past due interest)
shall be due and payable on demand, at a fluctuating rate per annum (the “Past Due Rate”) equal
to the Note Rate plus four hundred (400) basis points.
Section
4 Prepayment. Borrower
may prepay the principal balance of this Note, in full at any time or in part
from time to time, without fee, premium or penalty, provided that: (a) Lender
shall have actually received from Borrower 30 days prior written notice of (i)
Borrower’s intent to prepay, (ii) the amount of principal which will be prepaid
(the “Prepaid
Principal”), and (iii) the date on which the prepayment will be made; (b)
subject to Section 3.10 of the Loan Agreement, each prepayment shall be in the
amount of $1,000 or a larger integral multiple of $1,000 (unless the prepayment
retires the outstanding balance of this Note in full); and (c) each prepayment
shall be in the amount of 100% of the Prepaid Principal, plus accrued unpaid
interest thereon to the date of prepayment, plus any other sums which have
become due to Lender under the Loan Documents on or before the date of
prepayment but have not been paid. The provisions of this Section 4
shall not be construed to limit Borrower’s obligations under Section 3.10 of the
Loan Agreement.
Section
5. Late
Charges. If Borrower shall fail to make any payment under the
terms of this Note (other than the payment due at maturity) within fifteen (15)
days after the date such payment is due, Borrower shall pay to Lender on demand
a late charge equal to four percent (4%) of the amount of such
payment. Such fifteen (15) day period shall not be construed as in
any way extending the due date of any payment. The late charge is
imposed for the purpose of defraying the expenses of Lender incident to handling
such delinquent payment. This charge shall be in addition to, and not
in lieu of, any other amount that Lender may be entitled to receive or action
that Lender may be authorized to take as a result of such late
payment.
Section
6. Certain Provisions Regarding
Payments. Subject to Section 3.10 of the Loan Agreement, all
payments made under this Note shall be applied, to the extent thereof, to late
charges, to accrued but unpaid interest, to unpaid principal, and to any other
sums due and unpaid to Lender under the Loan Documents, in such manner and order
as Lender may elect in its sole discretion, any instructions from Borrower or
anyone else to the contrary notwithstanding. Remittances shall be
made without offset, demand, counterclaim, deduction, or recoupment (each of
which is hereby waived) and shall be accepted subject to the condition that any
check or draft may be handled for collection in accordance with the practice of
the collecting bank or banks. Acceptance by Lender of any payment in
an amount less than the amount then due on any indebtedness shall be deemed an
acceptance on account only, notwithstanding any notation on or accompanying such
partial payment to the contrary, and shall not in any way (a) waive or excuse
the existence of an Event of Default (as hereinafter defined), (b) waive, impair
or extinguish any right or remedy available to Lender hereunder or under the
other Loan Documents, or (c) waive the requirement of punctual payment and
performance or constitute a novation in any respect. Payments
received after 2:00 p.m. shall be deemed to be received on, and shall be posted
as of, the following Business Day. Whenever any payment under this
Note or any other Loan Document falls due on a day which is not a Business Day,
such payment may be made on the next succeeding Business Day.
Section
7. Events of
Default. The occurrence of any one or more of the following
shall constitute an “Event of Default”
under this Note:
(a) Borrower
fails to pay within ten (10) Business Days of when due and payable any amounts
payable by Borrower to Lender under the terms of this Note.
(b) Any
other covenant, agreement or condition in this Note is not fully and timely
performed, observed or kept in any material respects, subject to any applicable
grace or cure period.
(c) An
Event of Default (as therein defined) occurs under any of the Loan Documents
other than this Note (subject to any applicable grace or cure
period).
Section
8. Remedies. Upon
the occurrence of an Event of Default, Lender may at any time thereafter
exercise any one or more of the following rights, powers and
remedies:
(a) Lender
may accelerate the Maturity Date and declare the unpaid principal balance and
accrued but unpaid interest on this Note, and all other amounts payable
hereunder and under the other Loan Documents, at once due and payable, and upon
such declaration the same shall at once be due and payable.
(b) Lender
may set off the amount due against any and all accounts, credits, money,
securities or other property now or hereafter on deposit with, held by or in the
possession of Lender to the credit or for the account of Borrower, without
notice to or the consent of Borrower.
(c) Lender
may exercise, and may direct the Collateral Agent to exercise, any of its or
their other rights, powers and remedies under the Loan Documents or at law or in
equity.
Section
9. Remedies
Cumulative. All of the rights and remedies of Lender and the
Collateral Agent under this Note and the other Loan Documents are cumulative of
each other and of any and all other rights at law or in equity, and the exercise
by Lender and/or the Collateral Agent of any one or more of such rights and
remedies shall not preclude the simultaneous or later exercise by Lender and/or
the Collateral Agent of any or all such other rights and remedies. No
single or partial exercise of any right or remedy shall exhaust it or preclude
any other or further exercise thereof, and every right and remedy may be
exercised at any time and from time to time. No failure by Lender or
the Collateral Agent to exercise, nor delay in exercising, any right or remedy
shall operate as a waiver of such right or remedy or as a waiver of any Event of
Default.
Section
10. Costs and Expenses of
Enforcement. Borrower agrees to pay to Lender on demand all
costs and expenses incurred by Lender and/or the Collateral Agent in seeking to
collect this Note or to enforce any of Lender’s rights and remedies under the
Loan Documents, including court costs and reasonable attorneys’ fees and
expenses, whether or not suit is filed hereon, or whether in connection with
bankruptcy, insolvency or appeal.
Section
11. Service of
Process. Borrower hereby irrevocably designates and appoints
Thomas McLeay, 1004 Farnam Street, Suite 400, Omaha, Nebraska 68102, as
Borrower’s authorized agent to accept and acknowledge on Borrower’s behalf
service of any and all process that may be served in any suit, action, or
proceeding instituted in connection with this Note in any state or federal court
sitting in the State of Maryland. If such agent shall cease so to
act, Borrower shall irrevocably designate and appoint without delay another such
agent in the State of Maryland satisfactory to Lender and shall promptly deliver
to Lender evidence in writing of such agent’s acceptance of such appointment and
its agreement that such appointment shall be irrevocable.
Borrower
hereby consents to process being served in any suit, action, or proceeding
instituted in connection with this Note by (a) the mailing of a copy thereof by
certified mail, postage prepaid, return receipt requested, to Borrower and (b)
serving a copy thereof upon the agent hereinabove designated and appointed by
Borrower as Borrower’s agent for service of process. Borrower
irrevocably agrees that such service shall be deemed to be service of process
upon Borrower in any such suit, action, or proceeding. Nothing in
this Note shall affect the right of Lender to serve process in any manner
otherwise permitted by law and nothing in this Note will limit the right of
Lender otherwise to bring proceedings against Borrower in the courts of any
jurisdiction or jurisdictions, subject to any provision or agreement for
arbitration or dispute resolution set forth in the Loan Agreement.
Section
12. Heirs, Successors and
Assigns. The terms of this Note and of the other Loan
Documents shall bind and inure to the benefit of the heirs, devisees,
representatives, successors and assigns of the parties. The foregoing
sentence shall not be construed to permit Borrower to assign the Loan except as
otherwise permitted under the Loan Documents.
Section
13. General
Provisions. Time is of the essence with respect to Borrower’s
obligations under this Note. If more than one person or entity
executes this Note as Borrower, all of said parties shall be jointly and
severally liable for payment of the indebtedness evidenced
hereby. Borrower and each party executing this Note as Borrower
hereby severally (a) waive demand, presentment for payment, notice of dishonor
and of nonpayment, protest, notice of protest, notice of intent to accelerate,
notice of acceleration and all other notices (except any notices which are
specifically required by this Note or any other Loan Document), filing of suit
and diligence in collecting this Note or enforcing any of the security herefor;
(b) agree to any substitution, subordination, exchange or release of any such
security or the release of any party primarily or secondarily liable hereon; (c)
agree that neither the Lender nor the Collateral Agent shall be required first
to institute suit or exhaust its remedies hereon against Borrower or others
liable or to become liable hereon or to perfect or enforce its rights against
them or any security herefor; (d) consent to any extensions or postponements of
time of payment of this Note for any period or periods of time and to any
partial payments, before or after maturity, and to any other indulgences with
respect hereto, without notice thereof to any of them; and (e) submit (and waive
all rights to object) to non-exclusive personal jurisdiction of any state or
federal court sitting in the State of Maryland for the enforcement of any and
all obligations under this Note and the other Loan Documents; (f) waive the
benefit of all homestead and similar exemptions as to this Note; (g) agree that
their liability under this Note shall not be affected or impaired by any
determination that any title, security interest or lien taken by Lender to
secure this Note is invalid or unperfected; and (h) hereby subordinate to the
Loan and the Loan Documents any and all rights against each other obligor
hereunder, if any, and any security for the payment of this Note, whether by
subrogation, agreement or otherwise, until this Note is paid in
full. A determination that any provision of this Note is
unenforceable or invalid shall not affect the enforceability or validity of any
other provision and the determination that the application of any provision of
this Note to any person or circumstance is illegal or unenforceable shall not
affect the enforceability or validity of such provision as it may apply to other
persons or circumstances. This Note may not be amended except in a
writing specifically intended for such purpose and executed by the party against
whom enforcement of the amendment is sought. Captions and headings in
this Note are for convenience only and shall be disregarded in construing
it. This Note and its validity, enforcement and interpretation shall
be governed by the laws of the State of Maryland (without regard to any
principles of conflicts of laws) and applicable United States federal
law. Whenever a time of day is referred to herein, unless otherwise
specified such time shall be the local time of the place where payment of this
Note is to be made. The term “Business Day” shall
mean a day on which Lender is open for the conduct of substantially all of its
banking business at its office in the city in which this Note is payable
(excluding Saturdays and Sundays). Capitalized terms used herein
without definition shall have the meanings ascribed to such terms in the Loan
Agreement. The words “include” and “including” shall be interpreted
as if followed by the words “without limitation.”
Section
14. Notices. Any
notice, request, or demand to or upon Borrower or Lender shall be deemed to have
been properly given or made when delivered in accordance with the terms of the
Loan Agreement regarding notices.
Section
15. No
Usury. It is expressly stipulated and agreed to be the intent
of Borrower and Lender at all times to comply with applicable state law or
applicable United States federal law (to the extent that it permits Lender to
contract for, charge, take, reserve, or receive a greater amount of interest
than under state law) and that this Section shall control every other covenant
and agreement in this Note and the other Loan Documents. If
applicable state or federal law should at any time be judicially interpreted so
as to render usurious any amount called for under this Note or under any of the
other Loan Documents, or contracted for, charged, taken, reserved, or received
with respect to the Loan, or if Lender’s exercise of the option to accelerate
the Maturity Date or Extended Maturity Date, if applicable, or if any prepayment
by Borrower results in Borrower having paid any interest in excess of that
permitted by applicable law, then it is Lender’s express intent that all excess
amounts theretofore collected by Lender shall be credited on the principal
balance of this Note and all other indebtedness secured by the Loan Agreement,
and the provisions of this Note and the other Loan Documents shall immediately
be deemed reformed and the amounts thereafter collectible hereunder and
thereunder reduced, without the necessity of the execution of any new documents,
so as to comply with the applicable law, but so as to permit the recovery of the
fullest amount otherwise called for hereunder or thereunder. All sums
paid or agreed to be paid to Lender for the use or forbearance of the Loan
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term of the Loan.
[Signature
Follows on Next Page]
IN WITNESS WHEREOF, Borrower has duly
executed this Note under seal as of the date first above written.
BORROWER:
AMERICA
FIRST TAX EXEMPT INVESTORS, L.P.,
a
Delaware limited partnership
By: America
First Capital Associates
Limited Partnership
Two,
a
Delaware limited partnership,
its
General Partner
|
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By:
|
The
Burlington Capital Group LLC,
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|
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a
Delaware limited liability company,
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By: /s/
Michael J. Draper
_____________________________ [SEAL]
Michael
J. Draper
Chief
Financial Officer
STATE OF
Nebraska, COUNTY OF Douglas, TO WIT:
I HEREBY CERTIFY, that on this 15th day
of June, 2009, before me, the undersigned Notary Public of said State,
personally appeared Michael J. Draper, who acknowledged himself to be the Chief
Financial Officer of The Burlington Capital Group LLC, a Delaware limited
liability company, the general partner of America First Capital Associates
Limited Partnership Two, a Delaware limited partnership, the general partner of
America First Tax Exempt Investors, L.P., a Delaware limited partnership, known
to me (or satisfactorily proven) to be the person whose name is subscribed to
the within instrument, and acknowledged that he executed the same for the
purposes therein contained as the duly authorized Chief Financial Officer of
said limited liability company, as general partner of said limited partnership
by signing the name of the limited liability company by himself as Chief
Financial Officer.
WITNESS my hand and Notarial
Seal.
/s/ Michelle N. Leas
_______________________[SEAL]
Notary Public
My
Commission Expires: 3/12/2013
Schedule
1(b)
(Quarterly
Principal Payments)
|
Payment Date
|
Payment Amount
|
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October
5, 2009
|
$136,667.00
|
|
January
5, 2010
|
$154,333.00
|
|
April
5, 2010
|
$220,000.00
|
|
July
5, 2010, if applicable
|
$192,000.00
|
|
October
5, 2010, if applicable
|
$180,000.00
|
|
|
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