First Amendment To Amended and Restated Revolving
First
Amendment To Amended and Restated Revolving
Credit
and Term Loan Agreement
This
FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
(this “Amendment”) is entered into as of January 30, 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”); and, pursuant to
Section 23.1 of
the Loan Agreement (as defined below), 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
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. The
Borrowers have notified the Administrative Agent that (i) Centerline Investor LP
intends to sell certain LIHTC Investments to an investor generating proceeds in
excess of $4,658,740, but that some or all of such sales will not close as
originally planned prior to January 30, 2009 as contemplated by Section 10.5.2
of the Loan Agreement, (ii) the existing LIHTC Investments may not generate
$29,658,740 in proceeds as originally projected, and (iii) Centerline Investor
LP intends to make new LIHTC Investments totaling [$1,433,660] on or before
January 30, 2009;
C. As
a result of these developments, the Borrowers, the Guarantors, the
Administrative Agent and the Required Lenders agree that Section 10.5.2 of the
Loan Agreement should be amended on the terms and conditions set forth in this
Amendment.
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. Amendments
(a) Amendment to Section
1.1.2. Section 1.1.2 of the
Loan Agreement is hereby amended by inserting the following definition in the
proper alphabetical sequence:
“’LIHTC Advanced
Amount’ means the total amount borrowed hereunder with respect to a
particular LIHTC Investment.”
(b) Amendment to Section
10.5.2. Section 10.5.2 of the
Loan Agreement is hereby deleted in its entirety and replaced with the
following:
“10.5.2 Further
Exception to Limitations on LIHTC Investments. Notwithstanding
any other provision of this Credit Agreement, the parties hereto (a) acknowledge
that (1) as of the Closing Date the aggregate amount invested by Centerline
Investor LP in LIHTC Investments as set forth on Schedule 8.23 and the project
known as San Remo Hesperia II is $29,658,740.00 (such investments collectively
referred to as the “Outstanding LIHTC Investments”), and (2) notwithstanding
Section 10.19 hereof, on or prior to January 30, 2009, the Borrowers may cause
Centerline Investor LP to make additional LIHTC Investments from available cash
in an amount not greater than $1,433,660.00 in the projects known as Desert
Palms and Mountain View (collectively, the “V Deals”); (b) agree that any
proceeds from the sale of any portion of the V Deals up to the LIHTC Advanced
Amounts with respect to the V Deals shall be applied to reduce the outstanding
principal balance of the Revolving Portion in order to create additional
availability under the Revolving Portion, and any such proceeds in excess of the
LIHTC Advanced Amounts with respect to the V Deals may be used by CHC or its
Subsidiaries for Working Capital Purposes; (c) agree that from the Closing Date
through the close of business on June 30, 2009, the proceeds from the sale of
each Outstanding LIHTC Investment, (i) up to the LIHTC Advanced Amount with
respect to such Outstanding LIHTC Investment, and in the aggregate with respect
to all of the Outstanding LIHTC Investments not more than $25,000,000, shall be
applied to reduce the outstanding principal balance of the Revolving Portion in
order to create additional availability under the Revolving Portion, and (ii) to
the extent such proceeds with respect to such Outstanding LIHTC Investment
exceed the LIHTC Advanced Amount with respect to such Outstanding LIHTC
Investment, or such aggregate proceeds with respect to all Outstanding LIHTC
Investments exceed $25,000,000, any such excess proceeds may be used by
Centerline Investor LP in order to make additional LIHTC Investments or by CHC
or its Subsidiaries for Working Capital Purposes; (d) agree that after the close
of business on June 30, 2009, (i) proceeds from any sale of any portion of the
Outstanding LIHTC Investments, but not in excess of the LIHTC Advanced Amount
with respect to any individual Outstanding LIHTC Investment, of up to an amount
equal to $25,000,000.00 minus proceeds previously applied to reduce the
outstanding principal balance of the Revolving Portion pursuant to subsection
(c) (the “Post June 30 Limit”) shall be applied to reduce the outstanding
principal balance of the Revolving Portion in order to create additional
availability under the Revolving Portion, (ii) proceeds in excess of the LIHTC
Advanced Amount with respect to any individual Outstanding LIHTC Investment may
be used by Centerline Investor LP in order to make additional LIHTC Investments
or by CHC or its Subsidiaries for Working Capital Purposes, and (iii) any
remaining proceeds shall be applied to reduce the outstanding principal balance
of the Termed Out Revolver and the Revolving Credit Limit; (e) agree that
proceeds from the sale of LIHTC Investments not included among the Outstanding
LIHTC Investments or the V Deals, but not in excess of the LIHTC Advanced Amount
with respect to any individual LIHTC Investment, shall be applied to reduce the
outstanding principal balance of the Revolving Portion in order to create
additional availability under the Revolving Portion, and any additional proceeds
may be used by CHC or its Subsidiaries for Working Capital Purposes; (f) agree
that to the extent proceeds to be applied in this section to reduce the
outstanding principal balance of the Revolving Portion exceed such balance, the
excess shall be available to the Borrowers for Working Capital Purposes; and (g)
agree, for the avoidance of doubt, that the Agent will release its liens on
LIHTC Investments in accordance with the Security Documents.”
(c) Amendment to Section
10.19. Section 10.19 of the
Loan Agreement is hereby amended by adding the following after the last sentence
of such section: “All investments by CHC and its Subsidiaries in properties
providing low income housing tax credits shall be made solely by Centerline
Investor LP solely with funds borrowed hereunder that are available to be
borrowed as part of the Revolving Portion.”
Section
2. 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) 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; and (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.
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 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
4. Conditions
Precedent. The agreements set forth in this Amendment are
conditional and this Amendment shall not be effective until receipt by the
Administrative Agent of a fully-executed counterpart of this
Amendment.
Section
5. 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.
Section
6. 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
7. 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
8. 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
9. 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
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 Amendment and all other instruments, documents and agreements executed
and delivered in connection with this Amendment.
Section
11. 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
12. 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 FIRST
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]
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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▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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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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▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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Title:
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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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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
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CENTERLINE/AC
INVESTORS 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
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CENTERLINE
HOLDING TRUST
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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
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CENTERLINE
INVESTORS I 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
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CENTERLINE
MANAGER 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
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CENTERLINE
GUARANTEED MANAGER 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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Executive
Vice President
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(Signatures
continued on next page)
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GUARANTORS
(CONT.):
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CENTERLINE
REIT INC.
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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
Financial Officer
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CENTERLINE
SERVICING INC.
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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
Financial Officer
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CENTERLINE
FINANCE CORPORATION
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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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Treasurer
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CENTERLINE
INVESTOR LP 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
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CENTERLINE
INVESTOR ▇▇ ▇▇ 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
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CENTERLINE
CREDIT MANAGEMENT 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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Executive
Managing Director
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CM
INVESTOR 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
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(Signatures
continued on next page)
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
Schedule
2
Form of Signature Page for
Lenders included in Required Lenders for purposes of approving FIRST AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT:
The
undersigned hereby evidences its agreement to the terms of the FIRST 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.
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BANK
OF AMERICA, N.A.
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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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Senior
Vice President
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Representing 39.503604519% of all Term
Loans outstanding, all Revolving Exposure, unused Revolving Loan Commitments and
unused Term Loan Commitments
Schedule
2
Form of Signature Page for
Lenders included in Required Lenders for purposes of approving FIRST AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT:
The
undersigned hereby evidences its agreement to the terms of the FIRST 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.
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MLBUSA
Community Development Corp.
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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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Director
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Representing _____% of all Term Loans outstanding, all
Revolving Exposure, unused Revolving Loan Commitments and unused Term Loan
Commitments
Schedule
2
Form of Signature Page for
Lenders included in Required Lenders for purposes of approving FIRST AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT:
The
undersigned hereby evidences its agreement to the terms of the FIRST 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.
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MORTGAN
▇▇▇▇▇▇▇ BANK, N.A.
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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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Authorized
Signatory
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Representing 16.33% of all Term Loans
outstanding, all Revolving Exposure, unused Revolving Loan Commitments and
unused Term Loan Commitments
Schedule
2
Form of Signature Page for
Lenders included in Required Lenders for purposes of approving FIRST AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT:
The
undersigned hereby evidences its agreement to the terms of the FIRST 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.
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CIBC,Inc.
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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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Authorized
Signatory
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Representing _____% of all Term Loans outstanding, all
Revolving Exposure, unused Revolving Loan Commitments and unused Term Loan
Commitments
Schedule
2
Form of Signature Page for
Lenders included in Required Lenders for purposes of approving FIRST AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT:
The
undersigned hereby evidences its agreement to the terms of the FIRST 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.
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Citicorp
USA
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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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Vice-President
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Representing _____% of all Term Loans outstanding, all
Revolving Exposure, unused Revolving Loan Commitments and unused Term Loan
Commitments
Schedule
2
Form of Signature Page for
Lenders included in Required Lenders for purposes of approving FIRST AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT:
The
undersigned hereby evidences its agreement to the terms of the FIRST 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.
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[Comerica
Bank]
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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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Vice
President
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Representing 3.37% of all Term Loans outstanding, all
Revolving Exposure, unused Revolving Loan Commitments and unused Term Loan
Commitments