WAIVER TO FIRST AMENDED AND RESTATED REVOLVING LOAN AGREEMENT (Wachovia/Arbor)
EXHIBIT 10.40
EXECUTION VERSION
WAIVER TO FIRST AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
(Wachovia/Arbor)
(Wachovia/Arbor)
THIS WAIVER TO FIRST AMENDED AND RESTATED REVOLVING LOAN AGREEMENT, dated as of January 20,
2010 (this “Waiver”), “), is entered into by and among ARBOR REALTY TRUST, INC., a Maryland
corporation, as a borrower (together with its successors and permitted assigns, “ART”),
ARBOR REALTY GPOP, INC., a Delaware corporation, as a borrower (together with its successors and
permitted assigns, “GPOP”), ARBOR REALTY LPOP, INC., a Delaware corporation, as a borrower
(together with its successors and permitted assigns, “LPOP”), ARBOR REALTY LIMITED
PARTNERSHIP, a Delaware limited partnership, as a borrower (together with its successors and
permitted assigns, “ARLP”), ARBOR REALTY SR, INC., a Maryland corporation, as a borrower
(together with its successors and permitted assigns, “ARSR”), ARBOR REALTY COLLATERAL
MANAGEMENT, LLC, a Delaware limited liability company, as a borrower (together with its successors
and permitted assigns, “ARCM”, and, together with ART, GPOP, LPOP, ARLP and ARSR, each as
the “Borrower”), WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association
(together with its successors and assigns, “Wachovia”), in its capacity as initial lender
(together with its successors and assigns in such capacity, the “Lender”) and in its
capacity as administrative agent (together with its successors and assigns in such capacity, the
“Administrative Agent”). Capitalized terms used and not otherwise defined herein shall
have the meanings given to such terms in the Loan Agreement (as defined below).
R E C I T A L S
WHEREAS, the Borrower, the Lender and the Administrative Agent are parties to that certain
First Amended and Restated Revolving Loan Agreement, dated as of July 23, 2009, as amended by that
certain First Amendment to First Amended and Restated Revolving Loan Agreement, dated as of
December 24, 2009, the “Loan Agreement”;
WHEREAS, the Borrowers have requested that the Administrative Agent and the Lenders waive
certain provisions in the Loan Agreement;
WHEREAS, the Administrative Agent and the Lenders have agreed to do so, pursuant to the terms
and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing recitals, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
Section 1. Waiver.
The Borrowers and the Guarantors acknowledge and agree that ART has not complied with the
Financial Covenant related to Tangible Net Worth contained in Subsection 5.1(w)(ii) of the
Loan Agreement for the Test Period ending December 31, 2009 and may not comply with such Financial
Covenant in 2010 (the “Acknowledged Non-Compliance”). Notwithstanding such Acknowledged
Non-Compliance, the Administrative Agent and the Lenders hereby agree to waive, solely through the
Payoff Date, the Acknowledged Non-Compliance. All parties acknowledge and agree that the
Administrative
Agent’s and the Lenders’ one-time waiver of the Acknowledged Non-Compliance as set forth
herein shall not be deemed to be a waiver of any other term, provision, duty, obligation,
liability, right, power, remedy or covenant of any party to the Loan Documents or a waiver of any
other non-compliance with Subsection 5.1(w)(ii) of the Loan Agreement or any other
Financial Covenant for any other period of time. The waiver set forth herein shall be effective
only to the extent specifically set forth herein and shall not (a) be construed as a waiver of any
breach or default other than as specifically waived herein nor as a waiver of any breach or default
of which the Administrative Agent or the Lenders have not been informed by the Borrowers, the
Guarantors or the Pledgor, (b) affect the right of the Administrative Agent and/or the Lenders to
demand compliance by the Borrowers, the Guarantors and the Pledgor with all terms and conditions of
the Loan Documents, except as specifically modified or waived by this Waiver, (c) be deemed a
waiver of any transaction or future action on the part of the Borrowers, the Guarantors or the
Pledgor requiring the Administrative Agent’s, the Lenders’ or the Required Lenders’ consent or
approval under the Loan Documents, or (d) except as waived hereby, be deemed or construed to be a
waiver or release of, or a limitation upon, the Administrative Agent’s or the Lenders’ exercise of
any rights or remedies under the Loan Agreement or any other Loan Document, whether arising as a
consequence of any Event of Default which may now exist or otherwise, all such rights and remedies
hereby being expressly reserved.
Section 2. [Reserved].
Section 3. Loan Documents in Full Force and Effect as Modified.
Except as specifically modified hereby, the Loan Documents shall remain in full force and
effect in accordance with their terms. All references to any Loan Document shall be deemed to mean
each Loan Document as modified by this Waiver. This Waiver shall not constitute a novation of the
Loan Documents, but shall constitute modifications thereof. The parties hereto agree to be bound
by the terms and conditions of the Loan Documents, as modified by this Waiver, as though such terms
and conditions were set forth herein. Each Borrower hereby ratifies the Loan Agreement and the
other Loan Documents and acknowledges and reaffirms (a) that it is bound by all terms of the Loan
Agreement and the other Loan Documents applicable to it and (b) that it is responsible for the
observance and full performance of its respective Obligations. This Waiver is a Loan Document
executed pursuant to the Loan Agreement and shall be construed, administered and applied in
accordance with the terms and provisions of the Loan Agreement.
Section 4. Representations.
Each Borrower represents and warrants, as of the date of this Waiver, as follows:
(a) it is duly incorporated or organized, validly existing and in good standing under the laws
of its jurisdiction of organization and each jurisdiction where it conducts business;
(b) the execution, delivery and performance by it of this Waiver is within its corporate,
company or partnership powers, has been duly authorized and does not contravene (1) its Authority
Documents or its applicable resolutions, (2) any Applicable Law or (3) any Contractual Obligation,
Indebtedness or Guarantee Obligation;
(c) no consent, license, permit, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority or other Person is required in connection with the
execution, delivery, performance, validity or enforceability by or against it of this Waiver;
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(d) this Waiver has been duly executed and delivered by it;
(e) this Waiver, as well as each of the Loan Documents as modified by this Waiver, constitutes
its legal, valid and binding obligation, enforceable against it in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally or by general
principles of equity;
(f) no Default or Event of Default exists or will exist after giving effect to this Waiver;
and
(g) each of the Loan Documents is in full force and effect and no Borrower has any defense,
offset, counterclaim, abatement, right of rescission or other claims, actions, causes of action,
demands, damages or liabilities of any kind or nature, in all cases whether legal or equitable,
available to the Borrower or any other Person with respect to (i) this Waiver, the Loan Agreement,
the Loan Documents or any other instrument, document and/or agreement described herein or therein,
as modified and amended hereby, (ii) the obligation of the Borrowers to repay the Obligations and
other amounts due under the Loan Documents or (iii) the Administrative Agent, the Lenders or the
Administrative Agent’s or the Lenders’ respective officers, employees, representatives, agents,
counsel or directors arising out of or from or in any way related to or in connection with the Loan
Agreement or the Loan Documents, including, without limitation, any action by such Persons, or
failure of such Persons to act, under the Loan Agreement or the other Loan Documents on or prior to
the date hereof.
Section 5. Conditions Precedent.
The effectiveness of this Waiver is subject to the following conditions precedent: (i)
delivery to the Administrative Agent of this Waiver duly executed by each of the parties hereto;
(ii) the payment of all reasonable legal fees and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC, as counsel to
the Administrative Agent, in the amount to be set forth on a separate invoice; and (iii) delivery
to the Administrative Agent of such other documents, agreements or certifications as the
Administrative Agent may reasonably require.
Section 6. Miscellaneous.
(a) This Waiver may be executed in any number of counterparts (including by facsimile), and by
the different parties hereto on the same or separate counterparts, each of which shall be deemed to
be an original instrument but all of which together shall constitute one and the same agreement.
(b) The descriptive headings of the various sections of this Waiver are inserted for
convenience of reference only and shall not be deemed to affect the meaning or construction of any
of the provisions hereof.
(c) This Waiver may not be amended or otherwise modified, waived or supplemented except as
provided in the Loan Agreement.
(d) The interpretive provisions of Section 1.2, 1.3 and 1.4 of the
Loan Agreement are incorporated herein mutatis mutandis.
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(e) This Waiver and the other Loan Documents represent the final agreement among the parties
and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements
between the parties. There are no unwritten oral agreements between the parties.
(f) THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS WAIVER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) In consideration of the Administrative Agent and the Lender entering into this Waiver,
each Borrower hereby waives, releases and discharges the Administrative Agent and the Lender and
the Administrative Agent’s and the Lender’s respective officers, employees, representatives,
agents, counsel and directors from any and all actions, causes of action, claims, demands, damages
and liabilities of whatever kind or nature, in law or in equity, now known or unknown, suspected or
unsuspected to the extent that any of the foregoing arises out of or from or in any way relating to
or in connection with the Loan Agreement or the Loan Documents, including but not limited to, any
action or failure to act under the Loan Agreement or the other Loan Documents on or prior to the
date hereof, except, with respect to any such Person being released hereby, any actions, causes of
action, claims, demands, damage and liabilities arising out of such Person’s gross negligence or
willful misconduct in connection with the Loan Agreement or the other Loan Documents.
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IN WITNESS WHEREOF, the parties have caused this Waiver to be executed by their respective
officers thereunto duly authorized, as of the date first above written.
| THE BORROWERS: |
ARBOR REALTY TRUST, INC., a Maryland corporation |
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| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Executive Vice President | |||
| ARBOR REALTY GPOP, INC., a Delaware corporation |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Executive Vice President | |||
| ARBOR REALTY LPOP, INC., a Delaware corporation |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Executive Vice President | |||
| ARBOR REALTY LIMITED PARTNERSHIP, a Delaware limited partnership |
||||
| By: | Arbor Realty GPOP, Inc., | |||
| its General Partner | ||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Executive Vice President | |||
[Signatures Continued on the Following Page]
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| THE BORROWERS (cont.): | ARBOR REALTY SR, INC., a Maryland corporation |
|||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Executive Vice President | |||
| ARBOR REALTY COLLATERAL MANAGEMENT, LLC, a Delaware limited liability company |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Executive Vice President | |||
[Signatures Continued on the Following Page]
S-2
| THE LENDER: |
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association |
|||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
| THE ADMINISTRATIVE AGENT: | WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association |
|||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
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