THIRD AMENDMENT TO THE LOAN AGREEMENT
Exhibit
10.1
THIRD
AMENDMENT TO THE LOAN AGREEMENT
THIRD
AMENDMENT TO THE LOAN AGREEMENT (this “Amendment”) dated as of June 29,
2007, between AMERICAN MORTGAGE ACCEPTANCE COMPANY (the “Borrower”) and
CENTERLINE HOLDING COMPANY (the “Lender”).
WHEREAS,
the Borrower and the Lender are parties to a Loan Agreement dated as of June
30,
2004, as amended by the First Amendment to the Loan Agreement dated as of June
30, 2005, as amended by the Second Amendment to the Loan Agreement dated as
of
April 19, 2006 (as amended, and modified, restated and/or supplemented from
time
to time, the “Loan Agreement”) (capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to such terms in
the
Loan Agreement); and
WHEREAS,
the Borrower has requested, and the Lender has agreed to, the amendments
provided herein on the terms and conditions set forth herein;
NOW,
THEREFORE, in consideration of the mutual promises contained herein, the parties
agree that effective as of the date hereof, the Loan Agreement is hereby amended
as follows:
Section
1. Amendments.
1.1 The
first recital of the Loan Agreement is hereby amended and restated in its
entirety as follows:
“By
means
of a loan facility to be established under and subject to this Agreement (the
“Line of Credit”), Borrower desires to secure from the Lender up to $80,000,000
for use by Borrower for financing the Borrower’s investments and for general
corporate purposes and Lender has agreed to provide such
financing.”
1.2 The
definition of the term “Loan Amount” in Section 1.1 of the Loan Agreement is
hereby amended and restated in its entirety as follows:
“Loan
Amount means the principal amount of EIGHTY MILLION AND NO/100 DOLLARS
($80,000,000.00), or such lesser amount as may from time to time be in effect
following exercise of the reduction procedure set forth in Section
2.3.”
1.3 Section
2.4 of the Loan Agreement is hereby amended by deleting the text “June 30, 2007”
therein and inserting the text “June 30, 2008” in lieu thereof.
1.4 The
Financial Covenants set forth in Section 7 are hereby amended and restated
in
their entirety as set forth on Exhibit A hereto.
Section
2. Representations
and Warranties.
The
Borrower hereby represents and
warrants to the Lender that:
2.1 Authorization. The
Borrower is duly authorized to execute and deliver this Amendment and is and
will continue to be duly authorized to perform its obligations under the Loan
Agreement, as amended hereby.
2.2 No
Conflicts. The execution and delivery of this Amendment and
the performance by the Borrower of its obligations under the Loan Agreement,
as
amended hereby, do not and will not (i) require any consent or authorization
of,
filing with, notice to or other act by or in respect of, any governmental
authority or any other Person or (ii) violate any law, rule or regulation or
any
material agreement or contract to which the Borrower is a party or is otherwise
bound and will not result in, or require, the creation or imposition of any
lien
or encumbrance on any of its properties or revenues pursuant to any law, rule
or
regulation or any such material agreement or contract.
2.3 Validity
and Binding Effect. The Loan Agreement, as amended hereby,
constitutes a legal, valid and binding obligation of the Borrower, enforceable
against it in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws
affecting the enforcement of creditors’ rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity
or
at law).
2.4 Loan
Agreement Representations and Warranties. The representations and
warranties set forth in Section 4 of the Loan Agreement are true and correct,
in
all material respects, with the same effect as if such representations and
warranties had been made on the date hereof (except to the extent such
representations and warranties are made as of some other date(s), in which
case
such representations and warranties shall be true and correct in all material
respects as of such other date(s)).
2.5 No
Event of Default. As of the date hereof, no Default or Event of
Default has occurred or is continuing.
Section
3. Effectiveness
of Amendment.
Except
as specifically amended hereby,
the Loan Agreement is and shall remain in full force and effect. This
Amendment shall become effective upon the first date on which the Borrower
and
the Lender shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the other party.
Section
4. No
Further Amendments.
Except
for the amendments set forth
herein, the text of the Loan Agreement and all other Loan Documents shall remain
unchanged and in full force and effect. No waiver by the Lenders
under the Loan Agreement or any other Loan Document is granted or intended
except as expressly set forth herein, and the Lenders expressly reserve the
right to require strict compliance with the terms of each of the Loan Agreement,
as amended hereby, and the other Loan Documents in all respects. The
waivers, extensions, consents and amendments agreed to herein shall not
constitute a modification of, or a course of dealing at variance with, the
Loan
Agreement, as amended hereby, such as to require further notice by the Lender
to
require strict compliance with the terms of the Loan Agreement, as amended
hereby, and the other Loan Documents in the future.
Section
5. Legal
Fees.
The
Borrower shall pay all reasonable expenses incurred by the Lender in the
drafting, negotiation and closing of the documents and transactions contemplated
hereby, including the reasonable fees and disbursements of the Lender’s special
counsel.
Section
6. Miscellaneous.
6.1 Governing
Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
6.2 Counterparts. This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute
but one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document.
6.3 Headings. Section
and subsection headings in this Amendment are included herein for convenience
of
reference only and shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.
6.4 Severability. In
case any provision in or obligation under this Amendment shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.
* * *
IN
WITNESS WHEREOF, the parties have
executed and delivered this Amendment as of the date first written
above.
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THE
BORROWER:
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AMERICAN
MORTGAGE ACCEPTANCE COMPANY
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(Registrant)
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By:
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/s/
J.
Xxxxx Xxxxxxx
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Name:
J. Xxxxx Xxxxxxx
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Title:
Chief Executive Officer
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THE
LENDER:
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(Registrant)
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By:
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/s/
Xxxx X. Xxxxxxxxx
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Name:
Xxxx X. Xxxxxxxxx
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Title:
Chief Executive Officer
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EXHIBIT
A
FINANCIAL
COVENANTS
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Quarterly
Covenant
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Proposed
Covenants
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Minimum
Adjusted Net Worth (GAAP Net Worth without impact of Accumulated
Other
Comprehensive Income or loss)
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$75MM
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Maximum
Indebtedness to FMV of Total Assets
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Eliminate
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Maximum
Recourse Debt to Adjusted Net Worth
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4.0X
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Adjusted
AFFO to Recourse Debt Service
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1.35X
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Minimum
Quarterly Adj. AFFO
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$1.5MM
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Cross-default
to other recourse indebtedness (event of default)
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$5MM
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