Third Amendment To Amended and Restated Revolving Credit and Term Loan Agreement (Term Loan Extension)
Exhibit
10-1
This
THIRD AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
(this “Amendment”) is entered into as of December __, 2009, 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”); Bank of America,
N.A., as the Administrative Agent (the “Administrative Agent”) and, pursuant to
Section 23.1 of
the Loan Agreement (as defined below), those Lenders constituting the Required
Lenders and, pursuant to Section 23.1.1(c) of
the Loan Agreement, each of the Term Loan Lenders, each as set forth on a
counterpart signature page hereto, substantially in the form of Schedule 2 hereto
(collectively, with the Required Lenders, the “Consenting
Lenders”).
RECITALS
Reference
is made to the following facts that constitute the background of this
Amendment:
A. The
parties hereto, among others, have entered into that certain Amended and
Restated Revolving Credit and Term Loan Agreement, dated as of December 19, 2008
(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. As
a result of their direct and indirect equity ownership of Centerline GP Holdings
LLC (“GP Holdings”), Centerline GP Dispositions LLC (“Dispo”), CCL Dispositions
II LLC (“Dispo II”) and CCL Acquisitions II LLC (“Acquis II” and, along with GP
Holdings, Dispo and Dispo II, the “Management-Owned Entities”), each a Delaware
limited liability company, which in turn own (i) 100% of the equity interest in
the general partners of low income housing tax credit investment funds sponsored
by any Affiliate of CHC or a predecessor in interest of CHC (the “Fund GPs”)
and, (ii) directly or indirectly, more than 50% of the equity interests in
entities created to acquire, hold and dispose of equity interests of general
partners or managing members in low income housing tax credit projects (the
“Lower-Tier GPs”), certain members of the Centerline Group’s senior management
(“Management”) are entitled to receive certain amounts, including, without
limitation, (y) amounts out of the proceeds payable to the Fund GPs and
Lower-Tier GPs in connection with the sale, refinance, transfer or other
disposal of low income housing tax credit projects, and (z) amounts upon
disposition of the equity interests in the Lower-Tier GPs (collectively,
“Management Proceeds”).
C. The
Borrowers and the Guarantors have requested that the Term Loan Maturity Date be
extended from December 31, 2009 until January 15, 2010.
D. In
addition, the Borrowers have notified the Administrative Agent that they have
received a notice of default letter from 101 ▇▇▇▇▇▇ Leasing Associates (the
“Landlord”) informing them that CMC, as tenant, and CHC, as guarantor, are in
default under a certain lease of property located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (the “New Jersey Lease”) as more fully described on Exhibit A attached
hereto. In connection with such default, the Borrowers have notified
the Administrative Agent that they desire to cause CMC to enter into a certain
termination agreement with the Landlord (the “Termination Agreement”) upon terms
and conditions more fully described on Exhibit A attached
hereto, and the Borrowers and the Guarantors have requested that the Required
Lenders consent to the execution, delivery and performance of such Termination
Agreement.
E. The
Administrative Agent, the Required Lenders and, where indicated, the Consenting
Lenders are willing to grant such requests upon the terms and conditions set
forth in this Amendment, including, without limitation, (i) the amendment of the
Loan Agreement as set forth herein, (ii) the Borrowers and Guarantors
covenanting that Management will not receive any Management Proceeds, and (iii)
the execution and delivery of each of the other documents, or the performance of
each obligation, referenced on, or contemplated by, the closing checklist
attached hereto as Exhibit B, including
the execution and delivery of the other pledges and security interests
contemplated therein.
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. Amendment to Definition of
“Term Loan Maturity Date.” In accordance with Section 23.1 of the
Loan Agreement, the Administrative Agent and the Consenting Lenders agree that
the definition of “Term Loan Maturity Date” set forth in Section 1.1.2 of the
Loan Agreement is hereby amended by deleting the phrase “December 31, 2009”
appearing therein and replacing it with “January 15, 2010.”
Section
2. Waiver of Net Worth
Covenant. In accordance with Section 23.1 of the
Loan Agreement, and notwithstanding anything in the Loan Agreement to the
contrary, the Administrative Agent and the Required Lenders hereby agree to
waive (i) CHC’s compliance with the Net Worth covenant set forth in Section 10.14 until
January 15, 2010, (ii) [Subject
to verification by Required Lenders before execution and delivery of this
Amendment] CHC’s compliance with the Funded Debt to Consolidated EBITDA
Ratio covenant set forth in Section 10.16 at
December 31, 2009, and (iii) any Default or Event of Default under any Loan
Document which may have resulted or may result solely from CHC’s failure to
comply with such covenants prior to January 15, 2010 or at December 31, 2009,
respectively.
Section
3. Payment of Retention
Bonuses. In accordance with Section 23.1 of the
Loan Agreement, and notwithstanding anything in the Loan Agreement to the
contrary, the Administrative Agent and the Required Lenders hereby agree to
waive compliance with Section 10.19 of the
Loan Agreement, solely to the extent necessary to permit the Borrowers to pay
those retention bonuses to the key employees of the Centerline Group listed on
Exhibit C
attached hereto (the “Retention Bonuses”). Promptly upon the
declaration or payment of any Retention Bonus, the Borrowers will provide to the
Administrative Agent a complete list of the recipient and amount of such
Retention Bonus. The Borrowers hereby acknowledge and agree that,
notwithstanding anything in the Loan Agreement or the Budget to the contrary,
except for the Retention Bonuses contemplated hereby, any other bonus payments
of any kind to any of the Borrowers’ employees shall be made solely with the
prior written consent of the Required Lenders in the Required Lenders’
unrestricted discretion.
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Section
4. Termination of New Jersey
Lease. In accordance with Section 23.1 of the
Loan Agreement and notwithstanding anything in the Loan Agreement to the
contrary, the Administrative Agent and the Required Lenders hereby agree to
waive the terms of Section 10.19 of the
Loan Agreement, solely with respect to, and hereby consent to, the payment of
the “Termination Payment” (as defined in Exhibit A hereto) by
CMC pursuant to a Termination Agreement containing terms and conditions
reasonably acceptable to the Administrative Agent, it being understood that the
Termination Payment will be made in settlement and full satisfaction of all of
CMC’s and the Borrowers’ obligations under the “Lease Documents” (as defined in
Exhibit A
hereto), and that such Lease Documents, including all rights, interests,
obligations, liabilities, claims and benefits set forth therein, shall not be
assigned or transferred to, or otherwise assumed by, a third party, but rather
immediately terminated, and all related obligations shall be fully released and
extinguished, upon the receipt of the Termination Payment by the
Landlord.
Section
5. Use of Revolving
Portion. Until such time as the Borrowers shall deliver a
Budget for calendar year 2010 in form and substance reasonably satisfactory to
the Administrative Agent, the Borrowers may borrow Revolving Loans under the
Revolving Portion only with the consent of the Required Lenders, which consent
may be given or withheld in the Required Lenders’ sole discretion.
Section
6. Further Amendments to the
Loan Agreement. In connection with Section 23.1 of the
Loan Agreement, the Required Lenders agree that the Loan Agreement is hereby
amended as follows:
(a) Amendment to Section
1.1.2. Section 1.1.2 of the
Loan Agreement is hereby amended by adding the following definitions thereto in
the correct alphabetical position as follows:
“Acquis
II. Such term shall have the meaning ascribed thereto in
Section B of the Recitals to the Third Amendment to the Loan
Agreement.
Centerline-Sponsored
Funds. All low income housing tax credit funds sponsored by
any Affiliate of CHC, or a predecessor in interest thereof.
CHC’s Executive
Committee. CHC’s Executive Committee, as of December 30, 2009,
consists of the following individuals: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇▇▇ ▇’▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇.
Contribution
Agreement. That certain Contribution Agreement, dated as of
December 17, 2002, among CharterMac Capital Company, LLC (now known as
Centerline Capital Company LLC), and all of the Persons included in the
Contributor.
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Contributor. That
group of Persons, all of whom are signatories to the Contribution Agreement,
which group is comprised of (i) the partners of Related Capital Company (i.e.
APH Associates, L.P., DLK Associates, L.P., Marc Associates, L.P., SJB
Associates, L.P., The Related Companies, L.P. and Related General II, L.P.), and
(ii) the following individuals: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
Dispo
II. Such term shall have the meaning ascribed thereto in
Section B of the Recitals to the Third Amendment to the Loan
Agreement.
Disposition
Proceeds. All amounts payable to any member of the Centerline
Group (other than Supplemental Loans and Expense Reimbursements), any employee
of the Centerline Group or to any Employee-Owned Entity from either (i) the
sale, assignment or any other disposition of equity interests in partnerships
and limited liability companies owning low income housing tax credit projects,
or (ii) the proceeds of any sale, refinancing, transfer or other disposal of
such low income housing tax credit projects.
Employee-Owned
Entity. The Management-Owned Entities and any other Person as
to which one or more employees of the Centerline Group own, directly or
indirectly, any equity interest.
Expense
Reimbursements. All amounts received, or to be received, by
any member of the Centerline Group, any employee of the Centerline Group or by
any Employee-Owned Entity from any Centerline-Sponsored Fund as repayment of any
liabilities owed by the Centerline-Sponsored Fund to such Person, other than
amounts representing Supplemental Loans.
Fund Deferred
Fees. Those certain Asset Management Fees and Disposition Fees
(as such terms are defined in the Fund Documents) or such other fees payable to
the Fund GPs of the Centerline-Sponsored Funds, or their assignees, to the
extent any of such fees are intended under the Fund Documents to be paid (i)
from the operations of the Centerline-Sponsored Funds (including, without
limitation, from Sale or Refinancing Proceeds (as defined in the Fund
Documents)) and not from the proceeds of the capital contributions of the
limited partners or members of such Centerline-Sponsored Funds, or (ii) upon
liquidation of the Centerline-Sponsored Fund.
Fund
Documents. With respect to each Fund GP, the partnership
agreement or limited liability company agreement of the Centerline-Sponsored
Fund for which such Fund GP serves as general partner or managing
member.
Fund
GPs. The general partners and managing members of the
Centerline-Sponsored Funds.
Management. Such
term shall have the meaning ascribed thereto in Section B of the Recitals to the
Third Amendment to the Loan Agreement.
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Management-Owned
Entities. Such term shall have the meaning ascribed thereto in
Section B of the Recitals to the Third Amendment to the Loan
Agreement.
Management
Proceeds. Such term shall have the meaning ascribed thereto in
Section B of the Recitals to the Third Amendment to the Loan
Agreement.”
In
connection with the addition of the foregoing definitions to the Loan Agreement,
each reference in the Loan Agreement to (i) “Centerline-sponsored low income
housing tax credit funds” is hereby replaced with “Centerline-Sponsored Funds,”
(ii) “expense reimbursements” is hereby replaced with “Expense Reimbursements”
and (iii) “deferred asset management fees” is hereby replaced with “Fund
Deferred Fees,” respectively.
(b) Amendment to Section
9.5.1. Section 9.5.1 of the
Loan Agreement is hereby amended by (1) deleting the word “and” at the end of
subsection (n) thereof in its entirety, (2) replacing the period at the end of
subsection (o) thereof with a semi-colon and (3) adding new subsections (p) and
(q) thereto as follows:
“(p) beginning
on January 4, 2010, weekly cash flow analysis schedules providing rolling
thirteen (13) week forecasts of the cash activity of the Centerline Group,
including, without limitation, operating cash activity, investment activity and
financing activity of each of the Centerline Group’s core business units and
corporate operations; and
(q) from
time to time as the Administrative Agent may request in its unrestricted
discretion, reports of all revenue or other amounts of any kind received or
accrued by any of the Management-Owned Entities during the time period specified
in such request, including, without limitation, Management Proceeds, such
reports to include the amount, source and disposition, if any, of such revenues
and other amounts. ”
(c) Amendment to Add Section
9.29. Section 9 of the Loan
Agreement is hereby amended by adding the following Section 9.29 thereto
as follows:
“9.29 Distributions
to CAHA. The Borrowers and Guarantors shall cause each
Employee-Owned Entity, and each Management-Owned Entity hereby covenants and
agrees, to promptly distribute a portion of all funds in its possession to any
member of the Centerline Group holding any equity interest in such
Employee-Owned Entity, in an amount equal to the total amount of such funds
multiplied by such member’s percentage ownership of the equity in such
Employee-Owned Entity. In furtherance of the foregoing, and by way of
example, in the event that Acquis II or Dispo II receives any Disposition
Proceeds, such Management-Owned Entity shall promptly pay to CAHA 49% of such
Disposition Proceeds.”
(d) Amendment to Add Section
9.30. Section 9 of the Loan
Agreement is hereby amended by adding the following Section 9.30 thereto
as follows:
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“9.30 Reports
from Management-Owned Entities. In the event that
the Administrative Agent requests a report pursuant to Section 9.5.1(q), the
Management-Owned Entity with respect to which such report is requested will
immediately verify and confirm such report, and provide all assistance
reasonably required in order for such report to be prepared.”
(e) Amendment to Add Section
10.20. Section 10 of the
Loan Agreement is hereby amended by adding the following Section 10.20 thereto
as follows:
“10.20 Restrictions
on Management Proceeds. The Borrowers, the Guarantors and the
Management-Owned Entities shall not make, permit, suffer to occur, or cause any
payment of Management Proceeds to Management or to any Management-Owned Entity,
without the prior written consent of the Required Lenders, which consent may be
withheld in the Required Lenders’ unrestricted discretion.”
Section
7. Reservation of
Rights. The Administrative Agent and the Lenders have informed
the Borrowers and the Guarantors that there may be currently outstanding certain
Defaults with respect to certain covenants and obligations of the Borrowers and
the Guarantors under the Loan Agreement, including, without limitation: (i)
compliance with the prohibitions on incurring Indebtedness contained in Section 10.3 of the
Loan Agreement and (ii) compliance with the prohibition on mergers,
consolidations and asset sales contained in Section 10.4 of the
Loan Agreement, each as a result of CHC’s entering into that certain
Authorization Agreement, dated as of July 4, 2009, with Island C-III Holding
LLC, an affiliate of Island Capital Group LLC, or any amendment, modification,
replacement or restatement thereof. In connection with the foregoing,
the Administrative Agent and the Lenders have reserved all of their rights and
remedies with respect to, and the execution of this Amendment shall in no way be
deemed to be a waiver of, any Default, or any of the rights or remedies of the
Administrative Agent or the Lenders under the Loan Agreement or any of the other
Loan Documents, the terms and conditions of which remain in full force and
effect, except as specifically provided for in this
Amendment. Moreover, without limiting the foregoing, the
Administrative Agent and the Lenders hereby specifically reserve all of their
rights and remedies with respect to any Default that may arise under the Loan
Agreement or any of the Loan Documents in connection with the payment by any
member of the Centerline Group of a fee of any kind, either immediately or upon
the occurrence of any future contingency, to any party in connection with, or
arising out of, the settlement of the New Jersey Lease or the Termination
Payment, other than the making of the Termination Payment to the
Landlord. The Borrowers and the Guarantors do not hereby acknowledge
that any Default exists by reason of the items referenced in (i) and (ii) above,
or in the immediately preceding sentence.
Section
8. Representations and
Warranties. The Borrowers and Guarantors, jointly and
severally, represent and warrant to the Lenders, the Issuing Bank and the
Administrative Agent as of the date of this Amendment that: (a) other than on
account of certain accounts payable advances made on behalf of various funds and
the protective advances made to a property that does not support the Bond
Transaction, each as more fully described in that certain email, dated as of
March 18, 2009, from ▇▇▇▇▇ ▇▇▇▇▇, no Default is in existence on the date hereof,
or will result from the execution and delivery of this 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 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); (c) this 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; and (d) the Termination Payment to the Landlord
shall not exceed $355,000 in the aggregate.
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Section
9. 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 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 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 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
10. Conditions.
(a) Conditions
Precedent. The agreements and waivers set forth in this
Amendment are conditional and this Amendment shall not be effective until (i)
receipt by the Administrative Agent of a fully-executed counterpart of this
Amendment, (ii) the execution and delivery of each document, agreement or
instrument, or the performance of each obligation referenced on or contemplated
by the closing checklist attached hereto as Exhibit B, and (iii)
payment by the Borrowers of all of the Administrative Agent’s and each Lender’s
reasonable fees associated with the preparation, negotiation, execution,
delivery and administration of this Amendment and the Loan Agreement accrued
through the date hereof, including without limitation, the Administrative
Agent’s and each Lender’s reasonable attorneys’ fees. To the extent
practicable and authorized to do so on the date hereof, the attorneys for the
Administrative Agent and each Lender shall submit invoices via the Borrowers’
Serengeti e-billing system.
(b) Conditions
Subsequent. Within two (2) Business Days of the effective date
of the Termination Agreement, and in any event, prior to the making of any
Termination Payment thereunder, the Borrowers shall deliver, or cause to be
delivered, to the Administrative Agent a fully executed and delivered copy of
the Termination Agreement and all exhibits and ancillary agreements related
thereto upon terms no more onerous to the Borrowers and CMC then those terms
described on Exhibit
A hereto.
Section
11. Counterparts. This
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
12. Amendment as Loan
Document. Each party hereto agrees and acknowledges that this
Amendment constitutes a “Loan Document” under and as defined in the Loan
Agreement.
Section
13. GOVERNING
LAW. THIS 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
14. Successors and
Assigns. This Amendment shall be binding upon each of the
Borrowers, the Guarantors, the Lenders, 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
15. Headings. Section
headings in this Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other
purpose.
Section
16. 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 Amendment and all other instruments, documents and agreements executed
and delivered in connection with this Amendment.
Section
17. Integration. This
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 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 Amendment, all of which have become merged and finally integrated
into this 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 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 Amendment
not included or referred to herein and not reflected by a writing included or
referred to herein.
Section
18. Waiver and
Release.
(a) The
Borrowers and the Guarantors acknowledge and agree that, as of the date
hereof: (i) none of the Borrowers or Guarantors have any claim or
cause of action against the Administrative Agent or the Lenders arising out of,
under or in any way relating to the Loan Agreement or the Loan Documents
(including this Amendment), any documents, instruments, agreements, dealings or
other matters in connection with the Loan Documents, the transactions
contemplated by the Loan Documents, or any actions taken or not taken by the
Administrative Agent or the Lenders in connection therewith; (ii) none of the
Borrowers or the Guarantors have any offset rights, counterclaims or defenses of
any kind against payment and performance of the obligations under the Loan
Documents; and (iii) the Administrative Agent and the Lenders have heretofore
properly performed and satisfied in a timely manner all of their obligations to
the Borrowers and the Guarantors under the Loan Documents.
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(b) In
consideration of the amendments and consents provided by and the covenants of
the Administrative Agent and the Lenders herein, the Borrowers and the
Guarantors agree to eliminate any possibility that any past conditions, acts,
omission, events, circumstances or matters would impair or otherwise adversely
affect any of the rights, interests, contracts, collateral security or rights
and remedies of the Administrative Agent or the Lenders under the Loan
Documents. Therefore, each of the Borrowers and the Guarantors, on
their own behalf and on behalf of each of their respective successors and
assigns, hereby waives, releases and discharges the Administrative Agent and the
Lenders, from any and all claims, demands, actions or causes of action on or
before the date hereof and arising out of, under or in any way relating to the
Loan Documents (including this Amendment), any documents instruments,
agreements, dealings or other matters connected with the Loan Documents, the
transactions contemplated by the Loan Documents or any actions taken or not
taken by the Administrative Agent or the Lenders in connection therewith,
including, without limitation, all matters, claims, transactions or things
occurring on or prior to the date hereof of which any of the Borrowers or
Guarantors have knowledge. The waivers, releases and discharges in
this paragraph shall be effective regardless of any other event that may occur
or not occur prior to, or on or after the date hereof.
Section
19. Jury Trial
Waiver. THE BORROWERS, GUARANTORS, ADMINISTRATIVE AGENT AND
LENDERS BY ACCEPTANCE OF THIS 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
AMENDMENT, 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, 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 Amendment 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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By:
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/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: President
& Chief Executive Officer
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CENTERLINE
CAPITAL GROUP INC.
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By:
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/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Chief
Executive Officer
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(Signatures
continued on next page)
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GUARANTORS:
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CENTERLINE
CAPITAL COMPANY LLC
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By:
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/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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Chief
Executive Officer and President
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CENTERLINE
AFFORDABLE HOUSING ADVISORS LLC
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By:
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/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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Chief
Executive Officer
|
|||
|
CENTERLINE/AC
INVESTORS LLC
|
||||
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|||
|
Title:
|
Chief
Executive Officer
|
|||
|
CENTERLINE
HOLDING TRUST
|
||||
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|||
|
Title:
|
Chief
Executive Officer
|
|||
|
CENTERLINE
INVESTORS I LLC
|
||||
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|||
|
Title:
|
Chief
Executive Officer
|
|||
|
CENTERLINE
MANAGER LLC
|
||||
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|||
|
Title:
|
Chief
Executive Officer
|
|||
(Signatures
continued on next page)
|
GUARANTORS
(CONT.):
|
CENTERLINE
GUARANTEED MANAGER LLC
|
|||
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|||
|
Title:
|
Chief
Executive Officer
|
|||
|
|
CENTERLINE
REIT INC.
|
|||
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|||
|
Title:
|
Chairman
|
|||
|
CENTERLINE
SERVICING INC.
|
||||
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|||
|
Title:
|
Chairman
|
|||
|
CENTERLINE
FINANCE CORPORATION
|
||||
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|||
|
Title:
|
Chairman
|
|||
|
CENTERLINE
INVESTOR LP LLC
|
||||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇
|
|||
|
Title:
|
Vice
President
|
|||
|
CENTERLINE
INVESTOR ▇▇ ▇▇ LLC
|
||||
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|||
|
Title:
|
Executive
Managing Director
|
|||
(Signatures
continued on next page)
|
GUARANTORS
(CONT.):
|
CENTERLINE
CREDIT MANAGEMENT LLC
|
|||
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|||
|
Title:
|
Chief
Executive Officer and President
|
|||
|
|
CM
INVESTOR LLC
|
|||
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|||
|
Title:
|
Chief
Executive Officer
|
|||
|
CENTERLINE
SERIES M INVESTOR LLC
|
||||
| By: |
Centerline
Affordable Housing Advisors LLC,
|
|||
| its sole member | ||||
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|||
|
Title:
|
Chairman
|
|||
MANAGEMENT-OWNED
ENTITIES (solely to evidence their agreement to the terms of Clauses (d), (e)
and (f) of Section 7 of this Amendment):
|
CENTERLINE
GP HOLDINGS LLC
|
||||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇
|
|||
|
Title:
|
Executive
Managing Director
|
|||
|
CENTERLINE
GP DISPOSITIONS LLC
|
||||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇
|
|||
|
Title:
|
Executive
Managing Director
|
|||
|
CCL
DISPOSITIONS II LLC
|
||||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇
|
|||
|
Title:
|
Executive
Managing Director
|
|||
|
CCL
ACQUISITIONS II LLC
|
||||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇
|
|||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇
|
|||
|
Title:
|
Executive
Managing Director
|
|||
Schedule
1
Guarantors
1. Centerline
Investor LP
2. Centerline
Investor ▇▇ ▇▇,
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
12. CM
Investor LLC
13. Centerline
Manager LLC
14. Centerline
Guaranteed Manager LLC
15. Centerline
Series M Investor LLC
Schedule
2
(Term
Loan Extension)
Form of Signature Page for
Lenders included in Consenting Lenders for purposes of approving THIRD AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT:
The
undersigned hereby evidences its agreement to the terms of the THIRD AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT, and the
consummation of the transactions contemplated thereby, amending that certain
Amended and Restated Revolving Credit and Term Loan Agreement, dated as of
December 19, 2008, 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 and Issuing Bank, as such agreement is amended, restated,
supplemented or otherwise modified from time to time.
BANK
OF AMERICA, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Senior Vice President
Representing
40.492% of all Term Loans outstanding, all Revolving Exposure, unused Revolving
Loan Commitments and unused Term Loan Commitments
Schedule
2
(Term
Loan Extension)
Form of Signature Page for
Lenders included in Consenting Lenders for purposes of approving THIRD AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT:
The
undersigned hereby evidences its agreement to the terms of the THIRD AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT, and the
consummation of the transactions contemplated thereby, amending that certain
Amended and Restated Revolving Credit and Term Loan Agreement, dated as of
December 19, 2008, 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 and Issuing Bank, as such agreement is amended, restated,
supplemented or otherwise modified from time to time.
CITICORP,
USA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice
President
Representing
31.69% of all Term Loans outstanding, all Revolving Exposure, unused Revolving
Loan Commitments and unused Term Loan Commitments
Schedule
2
(Term
Loan Extension)
Form of Signature Page for
Lenders included in Consenting Lenders for purposes of approving THIRD AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT:
The
undersigned hereby evidences its agreement to the terms of the THIRD AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT, and the
consummation of the transactions contemplated thereby, amending that certain
Amended and Restated Revolving Credit and Term Loan Agreement, dated as of
December 19, 2008, 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 and Issuing Bank, as such agreement is amended, restated,
supplemented or otherwise modified from time to time.
MLBUSA
COMMUNITY DEVELOPMENT CORP., a
Delaware Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Authorized Signatory
Representing
9.762% of all Term Loans outstanding, all Revolving Exposure, unused Revolving
Loan Commitments and unused Term Loan Commitments
Schedule
2
(Term
Loan Extension)
Form of Signature Page for
Lenders included in Consenting Lenders for purposes of approving THIRD AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT:
The
undersigned hereby evidences its agreement to the terms of the THIRD AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT, and the
consummation of the transactions contemplated thereby, amending that certain
Amended and Restated Revolving Credit and Term Loan Agreement, dated as of
December 19, 2008, 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 and Issuing Bank, as such agreement is amended, restated,
supplemented or otherwise modified from time to time.
CIBC
INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Authorized Signatory
Representing
8.09% of all Term Loans outstanding, all Revolving Exposure, unused Revolving
Loan Commitments and unused Term Loan Commitments
Schedule
2
(Term
Loan Extension)
Form of Signature Page for
Lenders included in Consenting Lenders for purposes of approving THIRD AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT:
The
undersigned hereby evidences its agreement to the terms of the THIRD AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT, and the
consummation of the transactions contemplated thereby, amending that certain
Amended and Restated Revolving Credit and Term Loan Agreement, dated as of
December 19, 2008, 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 and Issuing Bank, as such agreement is amended, restated,
supplemented or otherwise modified from time to time.
Taberna
Preferred Funding VIII, Ltd.
By:
Taberna Capital Management, LLC,
as Collateral
Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Chief Financial Officer
Representing
0.43% of all Term Loans outstanding, all Revolving Exposure, unused Revolving
Loan Commitments and unused Term Loan Commitments