Attached files
Exhibit 3.3
AMENDMENT TO THE
CERTIFICATE OF DESIGNATION
OF
4.40% CUMULATIVE PERPETUAL CONVERTIBLE COMMUNITY
REINVESTMENT ACT PREFERRED SHARES, SERIES A-1
OF
CENTERLINE HOLDING COMPANY
CERTIFICATE OF DESIGNATION
OF
4.40% CUMULATIVE PERPETUAL CONVERTIBLE COMMUNITY
REINVESTMENT ACT PREFERRED SHARES, SERIES A-1
OF
CENTERLINE HOLDING COMPANY
This Amendment (this Amendment) to the Certificate of Designation (the 4.40%
COD) of 4.40% Cumulative Perpetual Convertible Community Reinvestment Act Preferred Shares,
Series A-1 (the 4.40% Preferred Shares) of Centerline Holding Company, a Delaware
statutory trust (Centerline), was duly approved by the requisite holders of the 4.40%
Preferred Shares, and is hereby elected to be adopted by Centerline in accordance with the terms of
the Exchange and Consent Agreements (as defined below), effective as of March 5, 2010 (the
Effective Date). Unless otherwise defined herein, all capitalized terms used herein
shall have the meaning set forth in the Exchange and Consent Agreements.
RECITALS:
WHEREAS, Centerline (i) has entered into a purchase and sale agreement, by and among C-III
Capital Partners LLC (Newco), on the one hand, and Centerline and certain of its
subsidiaries, on the other hand, pursuant to which Newco will acquire (a) Centerlines assets
comprising the former ARCap Investors LLC business and certain other assets and (b) newly issued
Special Shares (as defined below); and (ii) has and/or will be entering into various agreements
with certain of its lenders, creditors and claimants to restructure certain of its other
outstanding debt obligations and a management agreement with an affiliate of Newco pursuant to
which it will provide executive management services to Centerline (the Transaction);
WHEREAS, as a condition to consummating the Transaction, Centerline must be recapitalized
pursuant to which it is contemplated that the outstanding 4.40% Preferred Shares, the Community
Reinvestment Act Preferred Shares of Centerline (the CRA Shares), the Series A
Convertible Community Reinvestment Act Preferred Shares of Centerline (the Series A CRA
Shares), and the 11.0% Cumulative Convertible Preferred Shares, Series A-1 of Centerline (the
11.0% Preferred Shares), will (i) be surrendered to Centerline and cancelled in exchange
for the issuance by Centerline of Special Series A Shares of Centerline (Special Shares),
with the rights and privileges set forth in the Certificate of Designation of the Special Shares
(the Special Share COD) attached hereto as Exhibit A, (ii) at Centerlines option
in its sole and absolute discretion, in the case of the 4.40% Preferred Shares, be reclassified
into Special Shares by means of an amendment and restatement of the 4.40% COD in its entirety as
provided in the Special Share COD, and/or (iii) in the case of the 11.0% Preferred Shares, be
reclassified into Special Shares by means of an amendment and restatement of the 11.0% COD as
provided in the Special Share COD;
WHEREAS, pursuant to the Exchange and Consent Agreements (each, an Exchange and Consent
Agreement and, collectively, the Exchange and Consent Agreements), entered into in
connection with the Transaction by Centerline and substantially all of the holders of the 4.40%
Preferred Shares, the CRA Shares and the Series A CRA Shares, Centerline, in its sole and absolute
discretion, with the approval of the holders of the 4.40%
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Preferred Shares required by the 4.40% COD to adopt an amendment to the 4.40% COD, may elect
to effect the Restructuring with respect to the 4.40% Preferred Shares by reclassifying the 4.40%
Preferred Shares into Special Shares pursuant to the adoption of this Amendment;
WHEREAS, Section 6.c. of the 4.40% COD requires the affirmative vote or consent of the holders
of at least two-thirds of the 4.40% Preferred Shares outstanding in order to amend the 4.40% COD;
WHEREAS, pursuant to Section 1.a.i.2. of each of the Exchange and Consent Agreements, the
holders of the 4.40% Preferred Shares that entered into the Exchange and Consent Agreements
consented to this Amendment and all such holders 4.40% Preferred Shares are deemed to have voted
in favor of this Amendment;
WHEREAS, the holders of at least two-thirds of the 4.40% Preferred Shares outstanding entered
into Exchange and Consent Agreements, consented to this Amendment and all such holders 4.40%
Preferred Shares are deemed to have voted in favor of this Amendment; and
WHEREAS, the Board of Trustees of Centerline has duly approved and adopted this Amendment and
the terms hereof and caused Centerline to elect (as evidenced by its execution hereof) to effect
the Restructuring with respect to the 4.40% Preferred Shares by reclassifying the 4.40% Preferred
Shares into Special Shares pursuant to, inter alia, the adoption of this Amendment.
NOW THEREFORE, in light of the foregoing facts and in consideration of the respective
undertakings contemplated herein, it is hereby agreed as follows:
A. | AMENDMENTS |
On and effective as of the Effective Date (i) the 4.40% COD is hereby amended and restated in its
entirety as provided in the Special Share COD attached hereto as Exhibit A; (ii) all of the
4.40% Preferred Shares issued and outstanding immediately prior to the Effective Date, are hereby
automatically governed by the Special Share COD; (iii) each holder of the 4.40% Preferred Shares
shall automatically be deemed to own a number of Special Shares equal to the product (rounded up to
the closest whole number, if a fractional share results) of the total original issuance price for
the 4.40% Preferred Shares held by such holder, divided by $354,164,807.96, multiplied by
14,590,237.40; and (iv) all of the certificates that, immediately prior to the Effective Date,
collectively represented the 4.40% Preferred Shares shall, from and after the Effective Date,
automatically and without the necessity of presenting the same for exchange, be deemed surrendered
and cancelled.
B. | MISCELLANEOUS |
1. Delivery of Special Share Certificates. As soon as practicable after the Effective
Date, Centerline shall deliver to each holder of the 4.40% Preferred Shares a certificate
evidencing the Special Shares owned by such holder.
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2. Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to principles of conflict of laws, all
rights and remedies being governed by such laws.
3. Successors and Assigns. This Amendment shall be binding upon and inure to the
benefit of the party hereto, the holders of the 4.40% Preferred Shares, the holders of the Special
Shares and all other parties to the Trust Agreement (as defined in the Special Share COD) and their
permitted successors, legal representatives and assigns.
4. Severability. Each provision of this Amendment is intended to be severable. If
any term or provision of this Amendment is illegal or invalid for any reason, such illegality or
invalidity will not affect the legality or invalidity of the remainder of this Amendment.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned has duly executed this Amendment as of the Effective Date.
CENTERLINE HOLDING COMPANY |
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By: | /s/ Marc D. Schnitzer | |||
Name: | Marc D. Schnitzer | |||
Title: | President & Chief Executive Officer | |||