exh10-1.htm


  
    Exhibit 10.1

    


    


    Fifth
Amendment To Revolving

    Credit
and Term Loan Agreement

    


    This
FIFTH AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT (this “Amendment”)
is entered into as of November 21, 2008, by and among:  Centerline
Holding Company and Centerline Capital Group Inc. (collectively, the
“Borrowers”); those Persons listed as Guarantors on Schedule 1 hereto
(each, a “Guarantor,” and, collectively, the “Guarantors”); and, pursuant to
Section 23.1 of
the Loan Agreement (as defined below), those Lenders constituting the Required
Lenders, including, pursuant to Section 23.1.1(c),
the Term Loan Lenders directly affected by the execution of this Amendment, 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 Revolving Credit
and Term Loan Agreement, dated as of December 27, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “Loan
Agreement”).  Capitalized terms used herein and not otherwise defined
herein shall have the same meanings herein as ascribed to them in the Loan
Agreement;

     

    B.       The
scheduled amortization payment of the Term Loan described in Section 4.2.1(iv) of
the Loan Agreement has previously been extended until November 21, 2008,
pursuant to the terms of that certain Fourth Amendment to Revolving Credit and
Term Loan Agreement, executed and delivered on October 31, 2008;

     

    C.       The
Borrowers and the Guarantors now request that the scheduled amortization payment
of the Term Loan described in Section 4.2.1(iv) be
further extended until December 5, 2008; and

     

    D.       The
Required Lenders are willing to grant such request 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.          Amendment to Section
4.2.1(iv).  Section 4.2.1(iv) of
the Loan Agreement is hereby amended by deleting the phrase “on or before
November 21, 2008” and replacing it with “on or before December 5,
2008.”

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    Section
2.          Representations and
Warranties.  The Borrowers and Guarantors, jointly and
severally, represent and warrant to the Lenders, the Swingline Lender, the
Issuing Bank and the Administrative Agent as of the date of this 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 (other than Defaults or potential Defaults arising under
Section 8.17(i)
of the Loan Agreement arising out of events and circumstances disclosed by the
Borrowers to the Lenders prior to the date hereof); (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: (i) 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 (ii) set forth in Section 8.2 of the
Loan Agreement with respect to shareholder litigation disclosed to the Lenders
prior to the date hereof); 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.  Notwithstanding the foregoing, and in furtherance of the terms
of Section 3 of
this Amendment, the Borrowers and the Guarantors hereby acknowledge and agree
that the Administrative Agent and the Lenders reserve 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.

     

    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 Swingline Lender, the Issuing Bank,
the Administrative Agent, the Agents and their respective successors and
assigns, and shall inure to the benefit of each such Person and their permitted
successors and assigns.

     

    Section
9.           Headings.  Section
headings in this 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.

    
 

    
      


      


      
        	
                BORROWERS:

              	
                CENTERLINE
      HOLDING COMPANY

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Marc D.
      Schnitzer

              
	 
      	 
      	
                Name:
      Marc D. Schnitzer

                Title:  President
      & Chief Executive Officer

              
	 
      	 
      	 
      
	 
      	
                CENTERLINE
      CAPITAL GROUP INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Marc D.
      Schnitzer

              
	 
      	 
      	
                Name:
      Marc D. Schnitzer

                Title:  Chief
      Executive Officer

              


      

      


      




     

    


     

    (Signatures
continued on next page)

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


    
      


      
        	
                GUARANTORS:

              	
                CENTERLINE
      CAPITAL COMPANY LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Marc D.
      Schnitzer

              
	 
      	 
      	
                Name:
      Marc D. Schnitzer

                Title:  President

              
	 
      	 
      	 
      
	 
      	
                CENTERLINE
      AFFORDABLE HOUSING ADVISORS LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Marc D.
      Schnitzer

              
	 
      	 
      	
                Name:
      Marc D. Schnitzer

                Title:  Chief
      Executive Officer

              
	 
      	 
      	 
      
	 
      	
                CENTERLINE/AC
      INVESTORS LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Marc D.
      Schnitzer

              
	 
      	 
      	
                Name:
      Marc D. Schnitzer

                Title:  Chief
      Executive Officer

              
	 
      	 
      	 
      
	 
      	
                CENTERLINE
      HOLDING TRUST

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Marc D.
      Schnitzer

              
	 
      	 
      	
                Name:
      Marc D. Schnitzer

                Title:  Chief
      Executive Officer

              
	 
      	 
      	 
      
	 
      	
                CENTERLINE
      INVESTORS I LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Marc D.
      Schnitzer

              
	 
      	 
      	
                Name:
      Marc D. Schnitzer

                Title:  Chief
      Executive Officer

              


      

      


       

      (Signatures
continued on next page)

       

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

    

    
      


      
        	
                GUARANTORS
      (CONT.):

              	
                CENTERLINE
      REIT INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Bryan
      Carr

              
	 
      	 
      	
                Name:
      Bryan Carr

                Title:  Chief
      Financial Officer

              
	 
      	 
      	 
      
	 
      	
                CENTERLINE
      SERVICING INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Bryan
      Carr

              
	 
      	 
      	
                Name:
      Bryan Carr

                Title:  Chief
      Financial Officer

              
	 
      	 
      	 
      
	 
      	
                CENTERLINE
      FINANCE CORPORATION

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Bryan
      Carr

              
	 
      	 
      	
                Name:
      Bryan Carr

                Title:  Treasurer

              
	 
      	 
      	 
      
	 
      	
                CENTERLINE
      INVESTOR LP LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Andrew J.
      Weil

              
	 
      	 
      	
                Name:
      Andrew J. Weil

                Title:  Chief
      Executive Officer

              
	 
      	 
      	 
      
	 
      	
                CENTERLINE
      INVESTOR LP II LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Andrew J.
      Weil

              
	 
      	 
      	
                Name:
      Andrew J. Weil

                Title:  Chief
      Executive Officer

              
	 
      	 
      	 
      
	 
      	
                CENTERLINE
      CREDIT MANAGEMENT LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Nicholas A.C.
      Mumford

              
	 
      	 
      	
                Name:
      Nicholas A.C. Mumford

                Title:  Executive
      Managing Director

              
	 
      	 
      	 
      
	 
      	
                CM
      INVESTOR LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Marc D.
      Schnitzer

              
	 
      	 
      	
                Name:
      Marc D. Schnitzer

                Title:  Chief
      Executive Officer

              


      

      


       

      (Signatures
continued on next page)

    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    Schedule
1

     

    


    Guarantors

     

    1.           Centerline
Investor LP,

    2.           Centerline
Investor LP II,

    3.           CCC,

    4.           CAHA,

    5.           Centerline/AC,

    6.           Holding
Trust,

    7.           Centerline
Investors,

    8.           Centerline
REIT Inc.,

    9.           Centerline
Servicing Inc.,

    10.         Centerline
Finance Corporation,

    11.         Credit
Management, and

    12.         CM
Investor LLC.

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    Schedule
2

     

    


    Form of Signature Page for
Lenders included in Required Lenders for purposes of approving FIFTH AMENDMENT
TO REVOLVING CREDIT AND TERM LOAN AGREEMENT:

    


    The
undersigned hereby evidences its agreement to the terms of the FIFTH AMENDMENT
TO REVOLVING CREDIT AND TERM LOAN AGREEMENT, and the consummation of the
transactions contemplated thereby, amending that certain Revolving Credit and
Term Loan Agreement dated as of December 27, 2007 by and among Centerline
Holding Company and Centerline Capital Group Inc. as the Borrowers, the
Guarantors described therein, the Lenders described therein, and Bank of
America, N.A., as Administrative Agent, Swingline Lender and Issuing Bank, as
such agreement is amended, restated, supplemented or otherwise modified from
time to time.

    


    


    [Name
of Lender]

    


    


    By:
________________________________

    Name:

    Title:

    


    


    Representing _____% of all Term Loans
outstanding, all Revolving Exposure, unused Revolving Loan Commitments and
unused Term Loan Commitments