EXHIBIT 10.1
FORBEARANCE AGREEMENT
THIS FORBEARANCE
AGREEMENT (“ Agreement ”), dated to be
effective as of July 1, 2008 (“ Effective Date
”), is executed and delivered by and between American
Mortgage Acceptance Company (“ Borrower
”) and Centerline Holding Company (“
Lender ”).
BACKGROUND
WHEREAS, Borrower
and Lender are parties to a First Amended and Restated Loan
Agreement dated September 17, 2007, as amended by an Amendment to
the First Amended and Restated Loan Agreement dated as of July 1,
2008 (as amended, and modified, restated and/or supplemented from
time to time, the “ Loan Agreement ”)
(capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to such terms in the Loan
Agreement); and
WHEREAS, Borrower
has defaulted on its obligations under the Loan Agreement as set
forth herein, and Lender has agreed to forbear from exercising its
rights and remedies under the Loan Agreement and the other Loan
Documents upon the terms and conditions set forth in this
Agreement; and
NOW THEREFORE, in
consideration of the foregoing premises and the promises and the
agreements hereinafter set forth, the parties hereto hereby agree
as follows:
A
G R E E M E N T:
1.
Defaults . Borrower hereby acknowledges that
certain Events of Default under Sections 7.1, 7.3, 7.4 and 7.5 of
the Loan Agreement have occurred and are continuing.
2.
Acknowledgment of Obligations . Borrower
hereby acknowledges that it is unconditionally liable to Lender for
the immediate and full payment of its Obligations under the Loan
Documents, and that as of the Effective Date, Borrower has no
defenses, counterclaims or setoffs with respect to the full and
immediate payment of any or all of the Obligations.
3.
Forbearance . During the Forbearance Period
(as defined below), Lender agrees to forbear from instituting any
remedies under the Loan Documents provided, (i) Borrower pays the
base rate of interest due under the Loan Agreement on a current
basis, and (ii) no lender under any other credit facility under
which Borrower is obligated accelerates the maturity of such
facility upon default or otherwise exercises its remedies as a
lender under such facility (each a “Forbearance Termination
Event”). Notwithstanding the foregoing, (i) any
forbearance granted by Lender shall not constitute and shall not be
construed or interpreted to constitute a waiver of any Default or
Event of Default which may now or hereafter exist under the Loan
Documents, and (ii) this Agreement and the forbearance granted by
Lender hereunder shall not constitute an amendment or modification
of any of the Loan Documents. All other rights of Lender
contained in the Loan Documents shall remain in full force and
effect. Upon the termination of the Forbearance Period (as
defined below), or earlier, upon the occurrence of a Forbearance
Termination Event, Lender shall have the right to immediately cease
or terminate Lender’s forbearance hereunder, without further
notice, demand, presentment, notice of dishonor, notice of
acceleration, notice of intent to replevy, protest or other
formalities of any kind, all of which are hereby expressly waived
by Borrower, whereupon Lender shall be entitled to exercise all
rights and remedies available to Lender under the Loan Documents or
at law, in equity or otherwise, including, without limitation,
institution of collection actions against the Borrower. All
periods of limitation specified by statute and all defenses of
laches or waiver as to any Default or Event of Default existing on
the Effective Date or arising during the Forbearance Period (as
defined below) will be tolled and otherwise suspended during the
Forbearance Period. During the Forbearance Period, no payment of
preferred or common dividends (“Dividends”) shall be
made by Borrower to its shareholders as long as any Default or
Event of Default exists, provided that the Borrower shall not be
prohibited from paying any Dividends necessary in order to maintain
Borrower’s tax status as a real estate investment trust
(REIT).
4.
Forbearance Period . The Forbearance Period
(herein so called) shall commence on the Effective Date of this
Agreement, and shall automatically terminate or expire, without
notice,
