First Amendment To Revolving Credit and Term Loan Agreement
Exhibit
10.1
Execution
Version
First
Amendment To Revolving
Credit
and Term Loan Agreement
This
FIRST AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT (this “First
Amendment”) is entered into as of January 22, 2008, by and
among: Centerline Holding Company and Centerline Capital Group Inc.
(collectively, the “Borrowers”); those Persons listed as Guarantors on Schedule 1 hereto
(each, a “Guarantor,” and, collectively, the “Guarantors”); and those Lenders
constituting the Required Lenders, each as set forth on a counterpart signature
page hereto, substantially in the form of Schedule 2 hereto
(the “Required Lenders”).
RECITALS
Reference
is made to the following facts that constitute the background of this First
Amendment:
A.
The parties hereto, among others, have entered into that certain Revolving
Credit and Term Loan Agreement, dated as of December 27, 2007 (as amended,
restated, supplemented or otherwise modified 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;
B.
The Borrowers, the Guarantors and the Required Lenders desire to amend Section
4.2.3 of the Loan Agreement to correct a scrivener’s error and to conform to the
understanding of the parties with respect to such provision.
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. The
Loan Agreement is hereby amended as follows:
(a)
Section 4.2.3(b) is hereby deleted and replaced in its entirety with the
following:
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(b) All
payments made pursuant to subclause (ii) of Section 1) of Schedule
4.2.2,
pursuant to clause (c) of Section 4.2.2, shall be applied (a) first,
to
fund the Unfunded Escrow until the remaining balance of the Unfunded
Escrow equals zero Dollars, and (b) second, to repay the outstanding
principal amount of the Term Loan (to be applied to installments
of the
Term Loan in direct order of maturity) pro rata among the Lenders
in
accordance with their respective Term Loan Commitment Percentages.
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(b)
Section 4.2.3(c) is hereby deleted and replaced in its entirety with the
following:
| (c) All payments made pursuant to subclauses (i) and (iii) of Section 1), Section 2) and Section 3) of Schedule 4.2.2, pursuant to clause (c) of Section 4.2.2, and all payments made pursuant to clauses (d) and (e) of Section 4.2.2, shall be applied to repay the outstanding principal amount of the Term Loan (to be applied to installments of the Term Loan in direct order of maturity) pro rata among the Lenders in accordance with their respective Term Loan Commitment Percentages. |
Section
2. 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 date of this First Amendment
that: (a) no Default is in
existence from and after, or will result from, the execution and delivery of
this First Amendment, 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 First Amendment (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 First Amendment 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
3. Ratification. Except
as hereby amended, 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 First Amendment 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 First Amendment 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 First Amendment, (ii) the
continued implementation and consummation of arrangements and transactions
contemplated by the Loan Agreement (including, without limitation, as amended
or
waived 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, as amended hereby) and the other Loan
Documents.
Section
4. Conditions
Precedent. The agreements set forth in this First Amendment are conditional
and this First Amendment
shall not be effective until receipt by the Administrative Agent of a
fully-executed counterpart of this First Amendment.
Section
5.
Counterparts. This
First Amendment 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. Any
counterpart delivered by facsimile or by other electronic method of transmission
shall be deemed an original signature thereto.
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Section
6. First
Amendment as
Loan Document. Each party hereto agrees and acknowledges that
this First Amendment
constitutes a “Loan Document” under and as defined in the Loan
Agreement.
Section7.
GOVERNING
LAW. THIS FIRST
AMENDMENT SHALL BE DEEMED TO CONSTITUTE A CONTRACT MADE UNDER THE LAWS OF
THE STATE 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
8.
Successors
and
Assigns. This First Amendment 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
9. Headings. Section
headings in this First Amendment are included herein for convenience of
reference only and shall not constitute a part of this First Amendment for
any
other purpose.
Section
10.
Expenses. Each
Borrower jointly and severally agrees to promptly reimburse the Administrative
Agent 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 First Amendment and all other instruments, documents and agreements
executed and delivered in connection with this First Amendment.
Section
11. Integration. This
First Amendment 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 First Amendment supersedes all prior or
contemporaneous negotiations, promises, covenants, agreements and
representations of every nature whatsoever with respect to the matters referred
to in this First Amendment, all of which have become merged and finally
integrated into this First Amendment. 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 First
Amendment, 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 First Amendment not included or referred to herein and not
reflected by a writing included or referred to herein.
Section
12. Jury Trial
Waiver. THE BORROWERS, GUARANTORS,
ADMINISTRATIVE
AGENT AND LENDERS BY ACCEPTANCE OF THIS FIRST AMENDMENT 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 FIRST AMENDMENT, THE LOAN AGREEMENT, OR ANY OTHER LOAN DOCUMENTS
CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR
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ANY
COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY,
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, ARISING OUT OF TORT, STRICT LIABILITY, CONTRACT OR ANY OTHER LAW,
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 First Amendment to be duly
executed by their duly authorized officers or representatives, all as of the
date first above written.
| BORROWERS: | CENTERLINE HOLDING COMPANY | ||
| By: __________________________ | |||
| Name: _____________________ | |||
| Title: ______________________ | |||
| CENTERLINE CAPITAL GROUP INC. | ||||
| By: __________________________ | ||||
| Name: _____________________ | ||||
| Title: ______________________ | ||||
(Signatures
continued on next page)
| GUARANTORS: | CENTERLINE CAPITAL COMPANY LLC | ||
| By: __________________________ | |||
| Name: _____________________ | |||
| Title: ______________________ | |||
| CENTERLINE AFFORDABLE HOUSING ADVISORS LLC | ||||
| By: __________________________ | ||||
| Name: _____________________ | ||||
| Title: ______________________ | ||||
| CENTERLINE/AC INVESTORS LLC | ||||
| By: __________________________ | ||||
| Name: _____________________ | ||||
| Title: ______________________ | ||||
| CENTERLINE HOLDING TRUST | ||||
| By: __________________________ | ||||
| Name: _____________________ | ||||
| Title: ______________________ | ||||
| CENTERLINE INVESTORS I LLC | ||||
| By: __________________________ | ||||
| Name: _____________________ | ||||
| Title: ______________________ | ||||
(Signatures
continued on next page)
| GUARANTORS (CONT.): | CENTERLINE REIT INC. | ||
| By: __________________________ | |||
| Name: _____________________ | |||
| Title: ______________________ | |||
| CENTERLINE SERVICING INC. | |||
| By: __________________________ | |||
| Name: _____________________ | |||
| Title: ______________________ | |||
| CENTERLINE FINANCE CORPORATION | |||
| By: __________________________ | |||
| Name: _____________________ | |||
| Title: ______________________ | |||
| CENTERLINE INVESTOR LP LLC | |||
| By: __________________________ | |||
| Name: _____________________ | |||
| Title: ______________________ | |||
| CENTERLINE INVESTOR XX XX LLC | |||
| By: __________________________ | |||
| Name: _____________________ | |||
| Title: ______________________ | |||
| CENTERLINE CREDIT MANAGEMENT LLC | |||
| By: __________________________ | |||
| Name: _____________________ | |||
| Title: ______________________ | |||
| CM INVESTOR LLC | |||
| By: __________________________ | |||
| Name: _____________________ | |||
| Title: ______________________ | |||
(Signatures
continued on next page)
Schedule1
Guarantors
|
1.
|
Centerline
Investor LP,
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| 2. | Centerline Investor XX XX, |
| 3. | CCC, |
| 4. | CAHA, |
| 5. | Centerline/AC, |
| 6. | Holding Trust, |
| 7. | Centerline Investors, |
| 8. | Centerline REIT Inc., |
| 9. | Centerline Servicing Inc., |
| 10. | Centerline Finance Corporation, |
| 11. | Credit Management, and |
| 12. | CM Investor LLC. |
Schedule
2
Form
of Signature Page for
Lenders included in Required Lenders for purposes of approving
FIRST
AMENDMENT TO REVOLVING
CREDIT AND TERM LOAN AGREEMENT:
The
undersigned hereby evidences its agreement to the terms of the FIRST AMENDMENT
TO REVOLVING CREDIT AND TERM LOAN AGREEMENT, and the consummation of the
transactions contemplated thereby, amending that certain Revolving Credit and
Term Loan Agreement dated as of December 27, 2007 by and among Centerline
Holding Company and Centerline Capital Group Inc. as the Borrowers, the
Guarantors described therein, the Lenders described therein, and Bank of
America, N.A., as Administrative Agent, Swingline Lender and Issuing
Bank.
[Name
of Lender]
By:
________________________________
Name:
Title:
Representing
_____% of all Term Loans outstanding, all Revolving Exposure, unused Revolving
Loan Commitments and unused Term Loan Commitments
