Fifth Amendment To Amended and Restated Revolving Credit and Term Loan Agreement (Term Loan Extension)
To
Amended and Restated Revolving
Credit
and Term Loan Agreement
(Term
Loan Extension)
This
FIFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
(this “Amendment”) is entered into as of February 4, 2010, 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. Pursuant
to the terms of that certain Fourth Amendment to Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of January 15, 2010 (the “Fourth
Amendment”), the Administrative Agent and the Consenting Lenders agreed to
extend the Term Loan Maturity Date until February 5, 2010.
C. The
Borrowers and the Guarantors have requested that the Term Loan Maturity Date be
further extended from February 5, 2010 until February 26, 2010.
D. The
Administrative Agent, the Required Lenders and, where indicated, the Consenting
Lenders are willing to grant such request upon 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. 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 “February 5, 2010”
appearing therein and replacing it with “February 26, 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 of the
Loan Agreement until February 26, 2010 and (ii) 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 covenant prior to February 26, 2010.
Section
3. 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. 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
4. 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 Xxxxx Xxxxx, 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
5. 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
6. 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 and (ii) 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.
Section
7. 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
8. 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
9. 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
10. 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
11. 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
12. 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
13. 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
14. 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.
(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
15. 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]
IN
WITNESS WHEREOF, the parties have caused this Fifth 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/ Xxxxxx X. Xxxx
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Name:
Xxxxxx X. Xxxx
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Title: Chief
Financial Officer
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CENTERLINE
CAPITAL GROUP INC.
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By:
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/s/ Xxxxxx X.
Xxxx
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Name:
Xxxxxx X. Xxxx
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Title: Chief
Financial 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/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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CENTERLINE
AFFORDABLE HOUSING ADVISORS LLC
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Executive
Managing Director
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CENTERLINE/AC
INVESTORS LLC
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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CENTERLINE
HOLDING TRUST
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Trustee
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CENTERLINE
INVESTORS I LLC
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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CENTERLINE
MANAGER LLC
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Executive
Managing Director
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CENTERLINE
GUARANTEED MANAGER LLC
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Executive
Managing Director
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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/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Executive
Managing Director
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CENTERLINE
SERVICING INC.
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Executive
Managing Director
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CENTERLINE
FINANCE CORPORATION
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Executive
Managing Director
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CENTERLINE
INVESTOR LP LLC
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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CENTERLINE
INVESTOR XX XX LLC
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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CENTERLINE
CREDIT MANAGEMENT LLC
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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CM
INVESTOR LLC
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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(Signatures
continued on next page)
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GUARANTORS
(CONT.):
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CENTERLINE
SERIES M INVESTOR LLC
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By:
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Centerline
Affordable Housing Advisors LLC,
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its
sole member
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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Schedule
1
Guarantors
1. Centerline
Investor LP
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
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 FIFTH AMENDMENT
TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT:
The
undersigned hereby evidences its agreement to the terms of the FIFTH 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// Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
SVP
Representing
40.65% of all Term Loans outstanding, all Revolving Exposure, unused Revolving
Loan Commitments and unused Term Loan Commitments
