FIRST AMENDMENT TO WAREHOUSING CREDIT AND SECURITY AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO WAREHOUSING
CREDIT
AND SECURITY AGREEMENT
This
First Amendment to Warehousing Credit and Security Agreement (this "Amendment"),
is entered into effective as of the 29th day of August, 2007 by and among
CENTERLINE MORTGAGE CAPITAL INC., a Delaware corporation and
CENTERLINE MORTGAGE PARTNERS INC., a Delaware corporation
(individually and collectively, the "Borrower"),
CITICORP USA, INC., as the lender under the Credit Agreement,
as defined hereafter ("Existing Lender") and SUNTRUST
BANK ("SunTrust") and WACHOVIA BANK, N.A.
("Wachovia", together
with SunTrust,
individually, an "Additional Lender" and collectively, the
"Additional Lenders" together with the Existing Lender,
individually, a "Lender" and collectively, the
"Lenders"), and CITICORP USA, INC., as agent
for the Lenders ("Agent").
Section
1. Recitals. Borrower,
Agent, and Existing Lender entered into 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
Existing Lender desire to reduce the Commitment, add SunTrust and Wachovia
as
"Lenders" under the Credit Agreement, 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 definitions are hereby amended and restated in or added to, as
applicable, Section 1.1 of the Credit Agreement as follows:
"Advance
Rate" has the meaning set forth in Section 2.2(a) hereof.
"Collateral
Value" means, as of any date of determination, (a) with respect to any
Eligible Loan, the lesser of (1) the amount of the Advance permitted
against such Eligible Loan under Section 2.1(c) hereof or (2) the Fair
Market Value of such Eligible Loan; and (b) if Eligible Loans have been
exchanged for Agency Securities, the lesser of (1) the amount of any
Advances outstanding against the Eligible Loans backing the Agency Securities
or
(2) the Fair Market Value of the Agency Securities.
"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 TWO HUNDRED FIFTY MILLION AND NO/100 DOLLARS ($250,000,000.00), 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.
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"FHA
Construction Draw" means an advance made under an FHA Construction Mortgage
Loan to the Mortgagor or its designee for the payment of construction-related
expenses incident to the construction of improvements upon a Multi-family
Property or acquisition of the real property upon which such improvements are
to
be constructed.
"FHA
Project Mortgage Loan" means an FHA fully insured Multi-family Mortgage
Loan, which Mortgage Loan is covered by a Purchase Commitment for the Mortgage
Loan or the Mortgage-backed Securities to be created on the basis of such
Mortgage Loan.
"Mortgage"
means a mortgage, deed of trust, deed to secure debt or other form of mortgage
instrument, appropriate and effective for the U.S. jurisdiction where the real
estate is located to create, perfect and maintain in full force and effect
a
first or second (or third as permitted by any Agency in connection with its
Purchase Commitment of any Eligible Loan) priority mortgage lien against it,
securing a Mortgage Note and granting a perfected first or second (or third
as
permitted by any Agency in connection with its Purchase Commitment of any
Eligible Loan) priority lien on real, personal, or mixed property consisting
of
land, improvements and other property more particularly described
therein.
"Mortgagor"
means a borrower under a Mortgage Loan.
"Par
Value" means, with respect to any FHA Construction Draw, at the time of any
determination, the unpaid principal balance of such FHA Construction Draw on
such date.
(b) Section
2.1(c)of the Credit Agreement is hereby amended and restated to read as
follows:
(c) In
addition to the limitations set forth in this Agreement, each Advance to fund
an
Eligible Loan shall be limited to an amount equal to one hundred percent (100%)
(the "Advance Rate") of the following:
(i)
with respect to an Eligible
Mortgage Loan that is not a FHA Construction Mortgage Loan, the lesser of
(x) the Mortgage Note Amount, or (y) the Committed Purchase Price
amount.
(ii)
with respect to an Eligible
Mortgage Loan that is a FHA Construction Mortgage Loan, the lesser of
(x) the Par Value of related FHA Construction Draw to be funded from such
Advance; or (y) the Committed Purchase Price amount for such FHA
Construction Draw to be funded from such Advance.
(c) Section
2.8 Commitment Fee. of the Credit Agreement is hereby amended
and restated to read as follows:
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2.8 Commitment
Fee. In consideration of Lenders' agreement to make Advances
available to Borrower under the Commitment, subject to the terms of this
Agreement, Borrower shall pay to Agent for the ratable account of each Lender
in
accordance with their respective Commitment Percentage, a commitment fee equal
to 0.05% of the Commitment (the "Commitment Fee"). The Commitment Fee
shall be deemed fully earned, non refundable and payable upon the execution
and
delivery of this Agreement by the parties, notwithstanding the Commitment is
never fully funded during the term of this Agreement.
(d) Section
5.12(h) of the Credit Agreement is hereby amended and restated to read as
follows:
(h) Each
Pledged Loan is secured by a first or second Lien (or third as permitted by
any
Agency in connection with its Purchase Commitment of any Eligible Loan) on
the
premises described in that Mortgage. Each Pledged Loan has or will
have a title insurance policy, in ALTA form or equivalent, from a recognized
title insurance company, insuring the priority of the Lien of the Mortgage
and
meeting the usual requirements of Investors purchasing those Mortgage
Loans.
(e) Section
7.11 of the Credit Agreement is hereby amended and restated to read as
follows:
7.11 Minimum
Servicing Portfolio (CMC). Permit the Servicing Portfolio of CMC
(and its Subsidiaries, on a consolidated basis) to be less than SIX BILLION
AND
NO/100 DOLLARS ($6,000,000,000.00), computed as of the end of each calendar
quarter.
(f) The
notification information of SunTrust and Wachovia as set forth below its
respective signature is hereby added to Article 9 of the Credit Agreement for
all purposes.
(g) All
references to Free Delivery in Schedule I to Exhibit C/Xxxxxxx Mac,
Schedule I to Exhibit C-Xxxxxx Mae, and Schedule I to Exhibit C/FHA
are hereby deleted in their entirety for all
purposes.
(h) Schedule
1 to the Credit Agreement is deleted in its entirety and
Schedule 1 to this Amendment is given in substitution
and replacement thereof.
Section
4. Addition
of New Lender. In accordance with Section 13.1 of the Credit
Agreement, each of the Additional Lenders hereby acknowledges and agrees, with
the consent of the Borrower, Agent, and the Existing Lender, that, from and
after the effective date hereof, it shall be a party to the Credit Agreement
and
shall have the rights and obligations of a Lender under the Loan Documents
as
set forth therein and as modified hereby. Each of the Additional
Lenders (a) represents and warrants to Borrower, Agent, and the Existing
Lender that it is legally authorized to enter into this Amendment,
(b) confirms that it has received a copy of the Credit Agreement, copies of
the current financials, and such other documents and information as it
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deems
appropriate to make its own credit analysis and decision to enter into this
Agreement, (c) agrees
with Borrower, Agent, and the Existing Lender that it shall independently and
without reliance upon Agent, or any other Lender and based on such documents
and
information as it deems appropriate at the time continue to make its own credit
decisions in taking or not taking action under the Loan Documents,
(d) appoints and authorizes Agent to take such action as agent on its
behalf and to exercise such powers under the Loan Documents as are delegated
to
Agent by the terms of the Loan Documents and all other reasonably incidental
powers, (e) confirms, acknowledges, and agrees its Commitment Amount and
Commitment Percentage is as set forth in Schedule 1 to
the Credit Agreement, as modified hereby and from time to time hereafter, and
(f) agrees with Borrower, Agent, and the other Lenders that it shall
perform and comply with all provisions of the Loan Documents applicable to
Lenders in accordance with their respective terms.
Section
5. 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.
Section
6. 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; (v) the
representations and warranties contained in the Loan Documents are true and
correct representations and warranties of Borrower, as of the date hereof;
(vi)
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
7. 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
8. 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
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Loan
Documents, as modified hereby. Borrower shall execute and deliver a
new Note to each Lender in the amount of its 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 this Amendment, 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. Any reference
in this Amendment and the other Loan Documents to the Notes shall be deemed
to
be references to the new Notes executed and delivered by the Borrower in
connection herewith.
Section
9.
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
10. Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas and, to the extent applicable,
by
federal law.
Section
11. 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
12. 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 29th day of August, 2007 to be effective as of the date first written
above.
[SIGNATURE
PAGES FOLLOW]
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| BORROWER: | |
| CENTERLINE MORTGAGE CAPITAL INC., | |
| a Delaware corporation | |
| By: /s/ Xxxxxxx Stern__________________________ | |
| Name:_Matthew Stern__________________________ | |
| Title: __Managing Director_______________________ | |
| CENTERLINE MORTGAGE PARTNERS INC., | |
| a Delaware corporation |
| By: /s/ Xxxxxxx Stern__________________________ | |
| Name:_Matthew Stern__________________________ | |
| Title: __Managing Director_______________________ |
| CITICORP USA, INC., as Agent | |
| By: /s/ Xxxx X. Xxxxxxxx | |
| Name:_Amir X. Xxxxxxxx | |
| Title: __Vice President | |
| CITICORP USA, INC., as a Lender |
| By: /s/ Xxxx X. Xxxxxxxx | |
| Name:_Amir X. Xxxxxxxx | |
| Title: __Vice President |
- 8
-
| SUNTRUST BANK, | |
| a Georgia banking corporation., as a Lender | |
| By: __/s/ Xxxxxxx X. Xxxxx | |
| Name:__Derrick X. Xxxxx | |
| Title:___First Vice President | |
| Notice Address: | |
| SunTrust Bank | |
| Attn: Xxxxxxx X. Xxxxx, First Vice President | |
| 00 Xxxx Xxxxx, 00xx Xxxxx | |
| Xxxxxxx, XX 00000 | |
| Fax: 000.000.0000 | |
| Email: Xxxxxxx.Xxxxx@XxxXxxxx.xxx | |
- 9
-
| WACHOVIA BANK, N.A., | |
| a national banking association., as a Lender | |
| By: ___/s/ Xxxxxxxx X. Xxxxxxxxx | |
| Name:___Filomena X. Xxxxxxxxx | |
| Title:____Vice President | |
| Notice Address: | |
| WACHOVIA BANK, N.A. | |
| Attn: Xxxxxxxx X. Xxxxxxxxx, Vice President | |
| Xxx Xxxxxx Xxxxx, XX0000 | |
| 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx | |
| Xxxxxx, XX 00000 | |
| Fax: 000.000.0000 | |
| Email: xxxxxxxx.xxxxxxxxx@xxxxxxxx.xxx | |
Schedule
1 – Lenders and Commitments
|
Lender
|
Commitment
Amount
|
Commitment
Percentage
|
|
Citicorp
USA., Inc.
|
$170,000,000
|
68%
|
|
SunTrust
Bank
|
$
50,000,000
|
20%
|
|
Wachovia
Bank, N.A.
|
$
30,000,000
|
12%
|
|
Houston_1\929593\1
47644-1
8/22/2007
|
