THIRD AMENDMENT TO WAREHOUSING CREDIT AND SECURITY AGREEMENT
THIRD
AMENDMENT TO WAREHOUSING
CREDIT
AND SECURITY
AGREEMENT
This
Third Amendment to Warehousing Credit and Security Agreement (this "Amendment"),
is entered into effective as of the 27th day of December, 2007 by and among
CENTERLINE MORTGAGE CAPITAL
INC., a Delaware corporation and CENTERLINE MORTGAGE
PARTNERS
INC., a Delaware corporation (individually and collectively, the "Borrower"), the lenders
party
to the Credit Agreement, as defined hereafter (individually, a "Lender" and collectively,
the
"Lenders"), and
BANK OF AMERICA, N.A. (“BofA”, and as successor
to
Citicorp USA, Inc. (“CUSA”) as agent for the
Lenders, "Agent").
Section
1. Recitals. Borrower,
Agent, and Lenders are parties to that certain Warehousing Credit and Security
Agreement dated May 31, 2007 (as amended from time to time, the "Credit
Agreement") for the purposes and consideration therein
expressed. Pursuant to the Assignment and Acceptance of even date
herewith (the “Assignment”), CUSA has assigned all of its rights and obligations
as a Lender and as agent for the Lenders under the Credit Agreement, the other
Loan Documents, the Collateral Documents, the Custodial Agreement and any other
documents or instruments delivered pursuant to the foregoing documents and
agreements (collectively, the “Credit Documents”) to
BofA. The Borrower and the Lenders desire to acknowledge such
assignment, and the Borrower, the Lenders and the Agent desire to make certain
amendments to the Credit Agreement and the other Credit Documents as more
particularly set forth herein. Therefore, the Borrower, Agent, and
the Lenders hereby agree as follows, intending to be legally bound:
Section
2. Definitions
and
References. Unless the context otherwise requires or unless
otherwise expressly defined herein, the terms in the Credit Agreement shall
have
the same meanings whenever used in this Amendment.
Section
3. Amendments Regarding
Bank of
America, N.A. The Credit Agreement is hereby amended, as
follows:
(a)
The definition of Agent in Section 1.1 of the Credit Agreement is hereby
replaced in its entirety with the following:
“‘Agent’
means,
at any
time, Bank of America, N.A., or its successors acting as agent for Lenders
under
the Loan Documents.”
(b)
Section 9 to the Credit Agreement is hereby amended by replacing the references
to CUSA as agent and a Lender with the following:
“If
to
Bank of America, N.A.,
as
Agent:
Bank
of
America, N.A.
Attn.:
Xxxx X. Xxxxx, Senior Vice President
Xxx
Xxxxxxx Xxxxxx
XX0-000-00-00
Xxxxxx,
XX 00000
Fax
No.:
000-000-0000
Page
1
E-mail:
xxxx.x.xxxxx@xxxxxxxxxxxxx.xxx
with
a
copy to:
Xxxxxx,
XxXxxxxxx & Fish, LLP
Attn.:
Xxxxxx X. Xxxxxxxxxx, Esq.
000
Xxxxxxx Xxxxxxxxx
Xxxxxx,
XX 00000
Fax
No.:
000-000-0000
E-mail:
xxxxxxxxxxx@xxxxxx.xxx
If
to
Bank of America, N.A.,
as
Lender:
Bank
of
America, N.A.
Attn.:
Xxxx X. Xxxxx, Senior Vice President
Xxx
Xxxxxxx Xxxxxx
XX0-000-00-00
Xxxxxx,
XX 00000
Fax
No.:
000-000-0000
E-mail:
xxxx.x.xxxxx@xxxxxxxxxxxxx.xxx
with
a
copy to:
Xxxxxx,
XxXxxxxxx & Fish, LLP
Attn.:
Xxxxxx X. Xxxxxxxxxx, Esq.
000
Xxxxxxx Xxxxxxxxx
Xxxxxx,
XX 00000
Fax
No.:
000-000-0000
E-mail:
xxxxxxxxxxx@xxxxxx.xxx”
(c)
Schedule
1 to the Credit Agreement is deleted in its entirety and Schedule
1 to this Amendment is given in substitution and replacement
thereof.
(d)
All references to Citicorp USA, Inc., as a Lender, as agent for the Lenders
or
otherwise, in any of the Credit Documents are hereby deleted and replaced with
a
reference to Bank of America, N.A.
Section
4. Amendments Regarding
Unused
Fee. The Credit Agreement is hereby amended, as
follows:
(a)
The Credit Agreement is hereby amended by adding the following as new Section
2.12 of the Credit Agreement:
“Section
2.12 Unused
Fee. The Borrower shall pay to the Agent, for the pro rata
benefit of the Lenders in accordance with their respective Commitment Amounts,
a
fee (the “Unused Fee”) calculated as follows:
(a)
Each day prior to the Maturity Date that the “Daily Unused Amount” (as defined
below) equals or exceeds 50% of the Commitment then in effect, the Unused Fee
will accrue at the rate of 0.0625% per annum (based on a 360 day year) times
the
Adjusted Daily Unused Amount.
Page
2
(b)
The Unused Fee as calculated under this Section for each day shall be payable
monthly in arrears on the first Business Day of each month (or part thereof)
for
the immediately preceding month commencing on the first such date following
the
date hereof, with a final payment on the Maturity Date.
(c)
For purposes of this Section, the “Daily Unused Amount” shall mean (i) the
Commitment then in effect, minus (ii) the aggregate principal balance of
outstanding Advances, determined on a daily basis.
(d)
For purposes of this Section, the “Adjusted Daily Unused Amount” shall mean (i)
50% of the Commitment then in effect, minus (ii) the aggregate principal balance
of outstanding Advances, determined on a daily basis.
(b) Section
1.1 of the Credit Agreement is hereby amended to insert the following therein,
in appropriate alphabetical order:
“’Adjusted
Daily Unused Amount’ has the meaning set forth in Section 2.12(d)
hereof.”
“’Daily
Unused Amount’ has the meaning set forth in Section 2.12(c)
hereof.”
“’Unused
Fee’ has the meaning set forth in Section 2.12 hereof.”
Section
5. Acknowledgments.
(a)
Bank of America,
as
Agent. The Lenders and the Borrower hereby acknowledge and
agree that, pursuant to the Assignment, the Agent has accepted the assignment
of, and has assumed, CUSA’s Commitment Amount and CUSA’s rights and obligations
as agent, under the Credit Agreement.
(b)
Custodial
Agreement. The Agent, the Lenders, and the Borrower hereby
acknowledge and agree that the Agent can terminate the Custodial Agreement
at
any time without the prior written consent of the Lenders or the
Borrower. Following any such termination, the Agent will perform the
duties of the Collateral Custodian under the Custodial Agreement.
Section
6. Representations
and Other
Agreements. Borrower represents and warrants that all of the
representations and warranties contained in the Credit Agreement and all
instruments and documents executed pursuant thereto or contemplated thereby
are
true and correct in all material respects on and as of this date
(except to the extent of changes resulting from transactions contemplated and
permitted by the Credit Agreement and the other Loan Documents and changes
occurring in the ordinary course of business that singly or in the aggregate
are
not materially adverse, and except to the extent that such representations
and
warranties relate expressly to an earlier date).
Section
7. Representations. Except
as otherwise specified herein, the terms and provisions hereof shall in no
manner impair, limit, restrict or otherwise affect the Obligations of Borrower
as evidenced by the Loan Documents. Borrower hereby acknowledges,
agrees, and represents that (i) Borrower is indebted to Lenders pursuant to
the
terms of the Credit Agreement
Page
3
and
the
Notes, as modified hereby; (ii) the liens, security interests and assignments
created and evidenced by the Loan Documents are, respectively, first, prior,
valid and subsisting liens, security interests and assignments against the
Collateral and secure all indebtedness and obligations of Borrower to Lenders
under the Notes, the Credit Agreement, all other Loan Documents, as modified
herein; (iii) there are no claims or offsets against, or defenses or
counterclaims to, the terms or provisions of the Loan Documents, and the other
obligations created or evidenced by the Loan Documents; (iv) Borrower has no
claims, offsets, defenses or counterclaims arising from any of the Agent's
or
Lenders' acts or omissions with respect to the Loan Documents, or the Agent's
or
Lenders' performance under the Loan Documents; and (v) Borrower is not in
default and no event has occurred which, with the passage of time, giving of
notice, or both, would constitute a default by Borrower of Borrower’s
obligations under the terms and provisions of the Loan Documents.
Section
8. Severability. In
the event any one or more provisions contained in the Credit Agreement or this
Amendment should be held to be invalid, illegal or unenforceable in any respect,
the validity, enforceability and legality of the remaining provisions contained
herein and therein shall not be affected in any way or impaired thereby and
shall be enforceable in accordance with their respective terms.
Section
9. Ratification of
Agreements.
(a) Except
as amended hereby, Borrower ratifies and confirms that the Credit Agreement,
the
Notes, and all other Loan Documents are and remain in full force and effect
in
accordance with their respective terms and that all Collateral is unimpaired
by
this Amendment and secures the payment and performance of all indebtedness
and
obligations of Borrower under the Notes, the Credit Agreement, and all other
Loan Documents, as modified hereby.
(b) The
undersigned officer of the Borrower executing this Amendment represents and
warrants that he has full power and authority to execute and deliver this
Amendment on behalf of the Borrower, that such execution and delivery has been
duly authorized by all necessary corporate action of Borrower, and represents
and warrants that the resolutions and affidavits previously delivered to Agent,
in connection with the execution and delivery of the Credit Agreement, are
and
remain in full force and effect and have not been altered, amended or repealed
in anyway.
(c) Any
reference to the Credit Agreement in any Loan Document shall be deemed to be
references to the Credit Agreement as amended hereby.
Section
10. No
Waiver. Borrower agrees that no Event of Default and no
Default has been waived or remedied by the execution of this Amendment by Agent
and Lenders, and any such Default or Event of Default heretofore arising and
currently continuing shall continue after the execution and delivery
hereof.
Section
11. Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York and, to the extent applicable,
by federal law.
Section
12. Counterparts and
Gender. This Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute
Page
4
one
and
the same instrument. Each gender used herein shall include and apply
to all genders, including the neuter.
Section
13. NO
ORAL
AGREEMENTS. THIS AMENDMENT, THE CREDIT AGREEMENT, THE NOTES,
AND THE OTHER LOAN DOCUMENTS, AS MODIFIED AND AMENDED HEREBY, REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE
PARTIES.
THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURE
PAGES FOLLOW]
Page
5
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the date
first written above.
| BORROWER: | |||
| CENTERLINE MORTGAGE CAPITAL INC., | |||
| a Delaware corporation | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxx | |
|
Name:
|
Xxxxxx
X. Xxxx
|
||
| Title: |
Chief
Executive
Officer
|
||
| CENTERLINE MORTGAGE PARTNERS INC., | |||
| a Delaware corporation | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxx | |
|
Name:
|
Xxxxxx
X. Xxxx
|
||
| Title: |
Chief
Executive
Officer
|
||
Signature
Page to Third
Amendment
| BANK OF AMERICA, N.A., as Agent | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxx | |
|
Name:
|
Xxxxxx
X. Xxxxx
|
||
| Title: |
Senior
Vice President
|
||
| BANK OF AMERICA, N.A., as a Lender | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxx | |
|
Name:
|
Xxxxxx
X. Xxxxx
|
||
| Title: |
Senior
Vice President
|
||
Signature
Page to Third Amendment
| SUNTRUST BANK, | |||
| a Georgia banking corporation, as a Lender | |||
|
|
By:
|
/s/ Xxxx X. Xxxxxxxxx | |
|
Name:
|
Xxxx
X. Xxxxxxxxx
|
||
| Title: |
Senior
Vice President
|
||
Signature
Page to Third Amendment
| WACHOVIA BANK, N.A., | |||
| a national banking association., as a Lender | |||
|
|
By:
|
/s/ Xxxxxxxx X. Xxxxxxxxx | |
|
Name:
|
Xxxxxxxx
X. Xxxxxxxxx
|
||
| Title: |
Vice
President
|
||
Signature
Page to Third Amendment
Schedule
1 –
Lenders and Commitments
|
Lender
|
Commitment
Amount
|
Commitment
Percentage
|
|
Bank
of America, N.A.
|
$70,000,000
|
46.666667%
|
|
SunTrust
Bank
|
$50,000,000
|
33.333333%
|
|
Wachovia
Bank, N.A.
|
$30,000,000
|
20%
|
