First Accordion Increase To Amended And Restated Revolving Credit and Term Loan Agreement
Exhibit
10.1
First
Accordion Increase To
Amended
And Restated Revolving Credit and Term Loan Agreement
This
FIRST ACCORDION INCREASE TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM
LOAN
AGREEMENT (this “Accordion Exercise”) is entered into as of June 29, 2007,
among: Centerline Holding Company (f/k/a CharterMac), Centerline
Capital Group Inc. (f/k/a Charter Mac Corporation) (collectively, the
“Borrowers”); those Persons listed as Guarantors on Exhibit 1 hereto
(each, a “Guarantor,” and, collectively, the “Guarantors”), Bank of America,
N.A. (“Bank of America”), as Swingline Lender, Issuing Bank, and Administrative
Agent for the Lenders (in such capacity, the “Administrative Agent”), Bank of
America and UBS Securities LLC (“UBS”), as the Agents, and Banc of America
Securities, LLC and UBS, as the Arrangers.
RECITALS
Reference
is made to the following facts that constitute the background of this Accordion
Exercise:
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A.
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The
parties hereto, among others, have entered into that certain Amended
and
Restated Revolving Credit and Term Loan Agreement, dated as of August
24,
2006 (as further amended and/or restated from time to time, the “Loan
Agreement”). Capitalized terms used herein and not otherwise
defined herein shall have the same meanings herein as ascribed to
them in
the Loan Agreement;
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B.
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The
Borrowers have informed the Administrative Agent and the Arrangers
by
written notice that the Borrowers wish to exercise their Accordion
Option,
pursuant to Section 2.5 and 2.5.1 of the Loan Agreement, to increase
the
Revolving Credit Limit from $250,000,000 to
$375,000,000.
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C.
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The
Administrative Agent, the Agents and the Arrangers, in accordance
with the
terms of Section 2.5.1 of the Loan Agreement, are willing to grant
such
request to increase the Revolving Credit Limit, solely upon the terms
and
conditions set forth in this Accordion
Exercise.
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NOW,
THEREFORE, in consideration of the foregoing recitals and of the
representations, warranties, covenants and conditions set forth herein and
in
the Loan Agreement, and for other valuable consideration the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as
follows:
Section
1. Increases
in Revolving Credit Limit and Total Credit Limit
1.1 Pursuant
to the exercise by the Borrowers of the Accordion Option referenced in Section
2.5 and 2.5.1 of the Loan Agreement, and subject to the phasing set forth in
Section 2.1 of this Accordion Exercise, the Revolving Credit Limit set forth
in
Section 1.1 of the Loan Agreement is hereby increased from $250,000,000 to
$375,000,000. Such increase in the Revolving Credit Limit, and the
increase in the Total Credit Limit pursuant to Section 1.2 of this Accordion
Exercise, shall be accomplished, from time to time as contemplated by the
phasing set forth in Section 2.1 hereof, by the execution and delivery of
Instruments of Joinder substantially
in
the in
the form of Exhibit 2 hereto (each, a “Joinder”) by existing Revolving Credit
Lenders, or Persons becoming new Revolving Credit Lenders in accordance with
the
terms of Section 2.5 of the Loan Agreement, increasing or undertaking,
respectively, the Revolving Loan Commitments reflected in such
Joinders.
1.2 Pursuant
to the exercise by the Borrowers of the Accordion Option referenced in Section
2.5 and 2.5.1 of the Loan Agreement, and subject to the phasing set forth in
Section 2.1 of this Accordion Exercise, the Total Credit Amount set forth in
Section 1.1 of the Loan Agreement is hereby increased from $500,000,000 to
$625,000,000.
Section
2. Phased
Increased and New Revolving Loan Commitments.
2.1
Notwithstanding the terms of Section 1 of this Accordion Exercise, as of the
date of this Accordion Exercise existing Revolving Credit Lenders have increased
their respective Revolving Loan Commitments so that the aggregate of all
Revolving Loan Commitments equals $320,000,000, as reflected on Exhibit 3
attached hereto. From time to time from and after the date hereof, in
accordance with Section 2.5 of the Loan Agreement, the Arrangers will use
commercially reasonable efforts to cause Lenders, or additional Persons becoming
Lenders in accordance with the terms of Sections 2.5 and 2.5.1 of the Loan
Agreement, to increase their respective Revolving Loan Commitments or to
undertake new Revolving Loan Commitments, respectively, so as to cause the
aggregate of all Lenders’ Revolving Loan Commitments to increase from
$320,000,000 to up to $375,000,000. Accordingly, for purposes of the
Loan Agreement, as amended hereby, the Revolving Credit Limit shall equal the
aggregate of all Revolving Loan Commitments until, and including at such time
as, such aggregate reaches a maximum of $375,000,000. In furtherance
of the foregoing, as of the date of this Accordion Exercise, the Revolving
Credit Limit shall equal $320,000,000 and the aggregate Total Credit Amount
shall equal $570,000,000, until such time or times as new or existing Lenders
execute and deliver additional Joinders. Promptly upon the execution
and delivery of such additional Joinders, the Administrative Agent will provide
written notice to the Borrowers, the Guarantors and the Lenders of the increases
in the Revolving Credit Limit and the Total Credit Amount evidenced by such
Joinders until such time as the Revolving Credit Limit reaches a maximum of
$375,000,000 and the Total Credit Amount reaches a maximum of
$625,000,000.
2.2 In
furtherance of the foregoing, and pursuant to Section 17.3 of the Loan Agreement
(whereby the Administrative Agent may unilaterally, from time to time, revise
Schedule 2 of the Loan Agreement to update the information set forth thereon,
including, without limitation, as a result of any exercise of the Accordion
Option pursuant to Section 2.5), that portion of Schedule 2 of the Loan
Agreement, as it specifically relates to the Revolving Loan Commitment
Percentages and Revolving Loan Commitments in Section III thereof, is hereby
replaced with that portion of Schedule 2 as attached hereto as Exhibit
3. From time to time as the Administrative Agent provides notice
of an existing or new Lender undertaking an additional or new Revolving Loan
Commitment, the Administrative Agent will also provide a revised Exhibit
3 reflecting the updated Revolving Loan Commitments and the then applicable
Revolving Credit Limit and Total Credit Amount.
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Section
3.
Representations and Warranties. The Borrowers and Guarantors,
jointly and severally, represent and warrant to the Lenders, the Swingline
Lender, the Issuing Bank and the Administrative Agent as of the effective
date
of this Accordion Exercise that, assuming the due execution and delivery
of this
Accordion Exercise: (a) no Default is in existence, from and after, or will
result from, the execution and delivery of this Accordion Exercise, or any
Joinders hereunder, or the consummation of any transactions contemplated
hereby;
(b) each of the representations and warranties of the Borrowers and the
Guarantors in the Loan Agreement and the other Loan Documents is true and
correct in all material respects on the effective date of this Accordion
Exercise (except for representations and warranties limited as to time or
with
respect to a specific event, which representations and warranties shall continue
to be limited to such time or event) and (c) this Accordion Exercise and
the
Loan Agreement are legal, valid and binding agreements of the Borrowers and
the
Guarantors and are enforceable against them in accordance with their
terms.
Section
4.
Ratification. Except as hereby amended or waived, the Loan
Agreement, all other Loan Documents and each provision thereof are hereby
ratified and confirmed in every respect and shall continue in full force and
effect, and this Accordion Exercise shall not be, and shall not be deemed to
be,
a waiver of any Default or of any covenant, term or provision of the Loan
Agreement or the other Loan Documents. In furtherance of the
foregoing ratification, by executing this Accordion Exercise in the spaces
provided below, each of the Guarantors, on a joint and several basis, hereby
absolutely and unconditionally (a) reaffirms its obligations under the
Guaranties, and (b) absolutely and unconditionally consents to (i) the execution
and delivery by the Borrowers of this Accordion Exercise and the Joinders
contemplated hereunder, (ii) the continued implementation and consummation
of
arrangements and transactions contemplated by the Loan Agreement (including,
without limitation, incorporating the terms and provisions of this Accordion
Exercise and any Joinder contemplated hereby) and the other Loan Documents,
and
(iii) the performance and observance by each Borrower and each Guarantor of
all
of its respective agreements, covenants, duties and obligations under the Loan
Agreement (including, without limitation, incorporating the terms and provisions
of this Accordion Exercise and any Joinder contemplated hereby) and the other
Loan Documents.
Section
5. Conditions
Precedent. The agreements set forth in this Accordion Exercise
are conditional and this Accordion Exercise shall not be effective until receipt
by the Administrative Agent of a fully-executed counterpart original of this
Accordion Exercise and receipt by the Administrative Agent of the
other items set forth on the closing checklist attached hereto as Exhibit
4.
Section
6. Counterparts. This
Accordion Exercise may be executed and delivered in any number of counterparts
with the same effect as if the signatures on each counterpart were upon the
same
instrument.
Section
7. Accordion
Exercise as Credit Document. Each party hereto agrees and
acknowledges that this Accordion Exercise constitutes a “Loan Document” under
and as defined in the Loan Agreement.
SECTION
8. GOVERNING LAW. THIS
ACCORDION EXERCISE SHALL BE DEEMED TO CONSTITUTE A CONTRACT MADE UNDER THE
LAWS
OF THE STATE
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OF
NEW
YORK, INCLUDING ARTICLE 5 OF THE UCC, AND SHALL BE GOVERNED BY AND CONSTRUED
IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REGARD
TO ITS CONFLICTS OF LAW RULES).
Section
9. Successors
and Assigns. This Accordion Exercise shall be binding upon each
of the Borrowers, the Guarantors, the Lenders, the Swingline Lender, the Issuing
Bank, the Administrative Agent, the Agents and their respective successors
and
assigns, and shall inure to the benefit of each such Person and their permitted
successors and assigns.
Section
10.
Headings. Section headings in this Accordion Exercise are
included herein for convenience of reference only and shall not constitute
a
part of this Accordion Exercise for any other purpose.
Section
11.
Expenses. Each Borrower jointly and severally agrees to
promptly reimburse the Administrative Agent and the Arrangers for all expenses,
including, without limitation, reasonable fees and expenses of outside legal
counsel, such Person has heretofore or hereafter incurred or incurs in
connection with the preparation, negotiation and execution of this Accordion
Exercise and all other instruments, documents and agreements executed and
delivered in connection with this Accordion Exercise.
Section
12.
Integration. This Accordion Exercise contains the entire
understanding of the parties hereto and with any other Lenders and parties
to
the Loan Agreement with regard to the subject matter contained
herein. This Accordion Exercise supersedes all prior or
contemporaneous negotiations, promises, covenants, agreements and
representations of every nature whatsoever with respect to the matters referred
to in this Accordion Exercise, all of which have become merged and finally
integrated into this Accordion Exercise. Each of the parties hereto
understands that in the event of any subsequent litigation, controversy or
dispute concerning any of the terms, conditions or provisions of this Accordion
Exercise, no party shall be entitled to offer or introduce into evidence any
oral promises or oral agreements between the parties relating to the subject
matter of this Accordion Exercise not included or referred to herein and not
reflected by a writing included or referred to herein.
Section
13. No Course of
Dealing. The Administrative Agent, the Agents and the Required
Lenders have entered into this Accordion Exercise on the express understanding
with each Borrower and Guarantor that in entering into this Accordion Exercise
the Administrative Agent, the Agents and the Lenders are not establishing any
course of dealing with the Borrowers or the Guarantors. The
Administrative Agent’s, the Agents’ and the Lenders’ rights to require strict
performance with all of the terms and conditions of the Loan Agreement and
the
other Loan Documents shall not in any way be impaired by the execution of this
Accordion Exercise. Each of the Borrowers and the Guarantors agrees
that none of the ratifications and reaffirmations set forth herein, nor the
Administrative Agent’s, the Agents’ nor any Lender’s solicitation of such
ratifications and reaffirmations, constitutes a course of dealing giving rise
to
any obligation or condition requiring a similar or any other ratification or
reaffirmation from the Borrowers or the Guarantors with respect to any
subsequent modification, consent or waiver with respect to the Loan Agreement
or
any other Loan Document.
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Section
14. Jury Trial
Waiver. THE BORROWERS, GUARANTORS, ADMINISTRATIVE AGENT, AGENTS
AND LENDERS BY ACCEPTANCE OF THIS ACCORDION EXERCISE MUTUALLY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT
OF
ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
ACCORDION EXERCISE, THE LOAN AGREEMENT, OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED
TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY,
ARISING UNDER TORT, CONTRACT OR OTHER LAW, INCLUDING, WITHOUT LIMITATION, ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF ANY AGENT OR
ANY
LENDER RELATING TO THE ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THE LOAN
DOCUMENTS, AND AGREE THAT NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION
WITH
ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED.
[Remainder
of page intentionally left blank; signature pages
follow]
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IN
WITNESS WHEREOF, the parties have caused this Accordion Exercise to be duly
executed by their duly authorized officers or representatives, all as of the
date first above written.
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BORROWERS:
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CENTERLINE HOLDING COMPANY | ||
| By: | /s/ Xxxx Xxxxxxxxx | ||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
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CENTERLINE CAPITAL GROUP INC. | ||
| By: | /s/ Xxxx Xxxxxxxxx | ||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
(Signatures
continued on next page)
S-Borrowers
Signature
page to First Accordion Increase to Amended and Restated Revolving Credit
and
Term Loan Agreement
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GUARANTORS:
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CENTERLINE CAPITAL COMPANY LLC | ||
| By: | /s/ Xxxx Xxxxxxxxx | ||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | President | |||
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CENTERLINE AFFORDABLE HOUSING ADVISORS LLC | ||
| By: | /s/ Xxxx Xxxxxxxxx | ||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
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CENTERLINE /AC INVESTORS LLC | ||
| By: | /s/ Xxxx Xxxxxxxxx | ||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
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CENTERLINE HOLDING TRUST | ||
| By: | /s/ Xxxx Xxxxxxxxx | ||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Managing Trustee | |||
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CENTERLINE HOLDING TRUST II | ||
| By: | /s/ Xxxx Xxxxxxxxx | ||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Managing Trustee | |||
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CENTERLINE INVESTORS I LLC | ||
| By: | /s/ Xxxx Xxxxxxxxx | ||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
(Signatures
continued on next page)
S-Guarantors
Signature
page to First Accordion Increase to Amended and Restated Revolving Credit
and
Term Loan Agreement
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GUARANTORS
(CONT.):
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CENTERLINE REIT INC. | ||
| By: | /s/ Xxxxx X. Xxxxxxx | ||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | CEO | |||
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CENTERLINE SERVICING INC. | ||
| By: | /s/ Xxxxx X. Xxxxxxx | ||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | CEO | |||
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CENTERLINE FINANCE CORPORATION | ||
| By: | /s/ Xxxxx X. Xxxxxxx | ||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | CEO | |||
(Signatures
continued on next page)
S-Guarantors
Signature
page to First Accordion Increase to Amended and Restated Revolving Credit
and
Term Loan Agreement
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ADMINISTRATIVE
AGENT, SWINGLINE LENDER, ISSUING BANK AND AGENT:
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BANK OF AMERICA, N.A. | ||
| By: | /s/ Xxxx X. Xxxxx | ||
| Name: | Xxxx X. Xxxxx | |||
| Title: | SVP | |||
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AGENT:
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UBS SECURITIES LLC | ||
| By: | /s/ Xxxx X. Xxxxx | ||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Associate Director | |||
| By: | /s/ Xxxx X. Xxxx |
| Name: | Xxxx X. Xxxx | |||
| Title: | Associate Director | |||
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ARRANGERS:
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BANC OF AMERICA SECURITIES LLC | ||
| By: | /s/ Xxxx X. Xxxxxxxxxxx | ||
| Name: | Xxxx X. Xxxxxxxxxxx | |||
| Title: | Principal | |||
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UBS SECURITIES LLC | ||
| By: | /s/ Xxxx X. Xxxxx | ||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Associate Director | |||
| By: | /s/ Xxxx X. Xxxx |
| Name: | Xxxx X. Xxxx | |||
| Title: | Associate Director | |||
S-Agents/Swingline
Lender/Issuing Bank/Arrangers
Signature
page to First Accordion Increase to Amended and Restated Revolving
Credit and
Term Loan Agreement
Exhibit
1
Guarantors
Centerline
Capital Company LLC (f/k/a CharterMac Capital Company, LLC)
Centerline
Affordable Housing Advisors LLC (f/k/a CharterMac Capital LLC)
Centerline/AC
Investors LLC (f/k/a CM ARCap Investors LLC)
Centerline
Holding Trust (f/k/a CM Holding Trust)
Centerline
Holding Trust II (f/k/a CM Holding Trust II)
Centerline
Investors I LLC (f/k/a ARCap Investors, L.L.C.)
Centerline
REIT Inc. (f/k/a ARCap REIT, Inc.)
Centerline
Servicing Inc. (f/k/a ARCap Servicing, Inc.)
Centerline
Finance Corporation (f/k/a ARCap Finance Corporation)
Exhibit
2
INSTRUMENT
OF JOINDER
Reference
is hereby made to the FIRST
ACCORDION INCREASE TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT (the “Accordion Exercise”) entered into as of ________, 2007,
among: Centerline Holding Company (f/k/a CharterMac), Centerline
Capital Group Inc. (f/k/a Charter Mac Corporation) (collectively, the
“Borrowers”); those Persons listed as Guarantors on Exhibit 1 thereto
(each, a “Guarantor,” and, collectively, the “Guarantors”), Bank of America,
N.A. (“Bank of America”), as Swingline Lender, Issuing Bank, and Administrative
Agent for the Lenders (in such capacity, the “Administrative Agent”), Bank of
America and UBS Securities LLC (“UBS”), as the Agents, and Banc of America
Securities, LLC and UBS, as the Arrangers.
As
contemplated by Sections 1.1 and 2.1
of the Accordion Exercise, by executing and delivering this Instrument, the
undersigned, with an address of __________________________________, hereby
joins
in the Accordion Exercise as a Revolving Lender that has increased its, or
undertaken a new, Revolving Loan Commitment in the amount of $_______________,
and has, upon the execution and delivery hereof, an aggregate Revolving Loan
Commitment equal to $_______________, with the intention that by executing
and
delivering this Instrument it shall be deemed for all purposes to have accepted
the terms of the Accordion Exercise, and further that the undersigned shall
have
all of the rights and obligations as a Revolving Lender under the Loan
Agreement.
IN
WITNESS WHEREOF, the undersigned has signed this Instrument as a document under
seal as of the ______ day of _____________________, 2007.
_______________________________
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By:
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Its:
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Exhibit
3
III. COMMITMENTS:
1. Revolving
Loan Commitments:
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Name of Lender
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Revolving Loan
Commitment
Percentage
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Revolving Loan
Commitment
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Bank of America
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31.2500%
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$100,000,000
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UBS
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7.8125%
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$25,000,000
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State Bank of India
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3.1250%
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$10,000,000
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Citicorp USA, Inc.
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35.9375%
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$115,000,000
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Comerica
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3.1250%
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$10,000,000
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Emigrant Bank
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3.1250%
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$10,000,000
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Xxxxxxx Xxxxx
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7.8125%
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$25,000,000
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Xxxxxx Xxxxxxx
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7.8125%
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$25,000,000
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TOTAL
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100%
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$320,000,000
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Revolving
Credit Limit as of the date of the First Accordion Increase:
$320,000,000
Total
Credit Limit as of the date of the First Accordion Increase:
$570,000,000
Exhibit
4
CLOSING
CHECKLIST
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DOCUMENT
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RESPONSIBLE
PARTY
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STATUS
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First
Accordion Increase to Amended and Restated Revolving Credit and Term
Loan
Agreement (this “Accordion Exercise”), dated June __, 2007, among the
Borrowers, the Guarantors, the Required Lenders, the Administrative
Agent,
the Agents, and the Arrangers
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Xxxxxx
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Finalized
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Exhibits
to Accordion Exercise
a.
Exhibit 1: Guarantors
b.
Exhibit 2: Form of Instrument of Joinder
c.
Exhibit 3: Revolving Loan Commitments
d.
Exhibit 4:Closing Checklist
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Xxxxxx
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Finalized
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BofA
Joinder
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Xxxxxx
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Finalized
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Citi
Joinder
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Xxxxxx
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Finalized
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Secretary’s
Certificates for Centerline Holding Company (f/k/a
CharterMac):
(a)
Certificate of Incorporation/Trust;
(b)
By-laws/Trust Agreement;
(c)
Resolutions authorizing the execution, delivery and performance of
Amendment;
(d)
Incumbency of officers executing Amendment on each entity’s behalf;
and
(e)
Legal Existence and Good Standing Certificates
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Borrowers
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Received
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Secretary’s
Certificates for Centerline Capital Group Inc. (f/k/a Charter Mac
Corporation):
(a)
Certificate of Incorporation/Trust;
(b)
By-laws/Trust Agreement;
(c)
Resolutions authorizing the execution, delivery and performance of
Amendment;
(d)
Incumbency of officers executing Amendment on each entity’s behalf;
and
(e)
Legal Existence and Good Standing Certificates
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Borrowers
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Received
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DOCUMENT
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RESPONSIBLE
PARTY
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STATUS
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Opinion
Letter from Borrowers’ counsel regarding Accordion
Exercise
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Borrower’s
Counsel
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Received
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Delaware
counsel opinion with respect to Borrowers regarding authority and
due
execution and delivery of the Accordion Exercise
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Borrower
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Received
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UCC-11,
tax lien, bankruptcy and litigation search reports for the
Borrowers
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Borrower
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Received
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