SECOND AMENDMENT TO WAREHOUSING CREDIT AND SECURITY AGREEMENT
Exhibit 10.1
SECOND
AMENDMENT TO WAREHOUSING
CREDIT
AND SECURITY
AGREEMENT
This
Second Amendment to Warehousing Credit and Security Agreement (this
"Amendment"), is entered into effective as of the 20th 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 CITICORP
USA, INC., 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, (the "Credit Agreement") for the purposes and
consideration therein expressed. Borrower, Agent, and the Lenders
desire to reduce the Commitment and make certain other amendments to the
Credit
Agreement as more particularly set forth herein. Therefore, 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. The
Credit Agreement is hereby amended, as follows:
(a)
The
following definition
is hereby amended and restated in or added to, as
applicable, Section 1.1 of the Credit Agreement as follows:
"Commitment"
means the commitment of the Lenders to make Advances hereunder in an aggregate
principal amount at any time outstanding that shall not exceed an amount
equal
to ONE HUNDRED FIFTY MILLION AND NO/100 DOLLARS ($150,000,000.00), subject
to
any increases or decreases of such amount pursuant to the terms of this
Agreement; provided, however,
that no
Lender's portion of such Advances may ever exceed its Commitment
Amount.
(b)
Section 2.4(a) of the
Credit Agreement is hereby amended and restated to read as follows:
"(a)
Except as provided in Section
2.4(c)
below, the unpaid amount of each Advance hereunder shall bear interest
from the
date of such Advance until paid in full, at a rate of interest (the "Basic
Rate") equal to a floating rate of interest which is equal to 70 basis
points
(0.70%) per annum over the LIBOR Rate."
(c) Schedule
1to the Credit Agreement
is
deleted in its entirety and Schedule
1to this Amendment
is given
in substitution and replacement thereof.
Section
4.
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).
Page
1
Section
5.
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 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
6.
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
7.
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. Borrower shall execute and deliver a new Note to CITICORP
USA, INC. in the amount of its new reduced Commitment Amount.
(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
8.
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.
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2
Section
9.
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
10. 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 one and the same instrument. Each gender used herein shall
include and apply to all genders, including the neuter.
Section
11. 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.
EXECUTED
this 20th day of December, 2007 to be effective as of the date first
written above.
[SIGNATURE
PAGES FOLLOW]
Page
3
| BORROWER: | |
| CENTERLINE MORTGAGE CAPITAL INC., | |
| a Delaware corporation | |
| By: __/s/ Xxxxx X. Xxxxxxx | |
| Name:___James X. Xxxxxxx | |
| Title:____Chief Executive Officer | |
| CENTERLINE MORTGAGE PARTNERS INC., | |
| a Delaware corporation | |
| By: __/s/ Xxxxx X. Xxxxxxx | |
| Name:___James X. Xxxxxxx | |
| Title:____Chief Executive Officer |
| CITICORP USA, INC., as Agent | |
| By: __/s/ Xxxx Xxxxxxxx | |
| Name:___Amir Kirkwood | |
| Title:____Vice President | |
| CITICORP USA, INC., as a Lender | |
| By: __/s/ Xxxx Xxxxxxxx | |
| Name:___Amir Kirkwood | |
| Title:____Vice President |
- 5 -
| SUNTRUST BANK, | |
| a Georgia banking corporation, as a Lender | |
| By: ___/s/ Xxxxxxx Xxxxx | |
| Name:_Derrick Xxxxx | |
| Title:__First Vice President |
- 6 -
| WACHOVIA BANK, N.A., | |
| a national banking association., as a Lender | |
| By: ____/s/ Xxxxxxxx X. Xxxxxxxxx | |
| Name:__Filomena X. Xxxxxxxxx | |
| Title:___Vice President |
Schedule
1 –
Lenders and Commitments
|
Lender
|
Commitment Amount
|
Commitment Percentage
|
|
Citicorp USA., Inc.
|
$70,000,000
|
46.666667%
|
|
SunTrust Bank
|
$50,000,000
|
33.333333%
|
|
Wachovia Bank, N.A.
|
$30,000,000
|
20%
|
