FIRST AMENDMENT TO REVOLVING LOAN AGREEMENT (Wachovia/Arbor)
EXHIBIT 10.38
EXECUTION VERSION
FIRST AMENDMENT TO REVOLVING LOAN AGREEMENT
(Wachovia/Arbor)
(Wachovia/Arbor)
THIS FIRST AMENDMENT TO REVOLVING LOAN AGREEMENT, dated as of December 24, 2009 (this
“Amendment No. 1”), 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 this
Amendment No. 1, the “Loan Agreement”;
WHEREAS, the Borrower desires to make certain modifications to the Loan Documents; and
WHEREAS, the Lender and the Administrative Agent are willing to modify the Loan Documents as
requested by the Borrower on the terms and conditions specified 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. Amendment to Loan Agreement.
(a) The following definition of “Credit Obligations” is hereby added to Subsection 1.1
of the Loan Agreement:
““Credit Obligations”: Defined in the Arbor Credit Agreement.”
(b) The following definition of “Discounted Payoff Amount” is hereby added to Subsection
1.1 of the Loan Agreement:
““Discounted Payoff Amount”: Defined in the Arbor Credit Agreement.”
(c)The
following new Section 2.16 is hereby added to the Credit Agreement:
“Section 2.16
Discounted Payoff Amount.
(a) Notwithstanding anything set forth in the Loan Documents to the contrary, subject to the
terms of this Section 2.16, Lender will accept the Discounted Payoff Amount in full satisfaction of
the Credit Obligations provided, that (i) no Event of Default has occurred and is
continuing, (ii) the Lender has received the Discounted Payoff Amount in immediately available
funds on or before May 31, 2010 (as such date may be extended as set forth in Section 2.18(b) of
the Arbor Credit Agreement, the “Payoff Date”), (iii) the Borrowers and the Guarantors
deliver to the Lender and the Administrative Agent on or before the Payoff Date an executed
agreement terminating the Loan Documents (subject to any provisions which by the terms expressly
survive termination) in the form of Exhibit A attached hereto, and (iv) the conditions set
forth in Section 2.18(a) of the Arbor Credit Agreement have been satisfied.
(b) In the event that any of the conditions set forth in this Section 2.16 are not satisfied
on or before Payoff Date (as the same may be extended in accordance with the terms hereof), the
Lender shall have no obligation whatsoever under this Section 2.16 or otherwise to accept the
Discounted Payoff Amount in satisfaction of the outstanding Credit Obligations. For the avoidance
of doubt, until the conditions precedent set forth in this Section 2.16 are satisfied, the Lender
and the Administrative Agent shall have the right to exercise all of its rights and remedies under
the Arbor Loan Documents, the Loan Documents and Requirements of Law. For the avoidance of doubt,
until the Borrowers pay the Discounted Payoff Amount and comply with the other provisions of this
Section 2.16, all obligations, duties and agreements of the Borrowers and Guarantors continue to
remain in full force and effect.”
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. All references to any Loan Document shall be deemed to mean each Loan Document as modified
by this Amendment No. 1. This Amendment No. 1 shall not constitute a novation of the Loan
Documents, but shall constitute a modification thereof. The parties hereto agree to be bound by
the terms and conditions of the Loan Documents, as modified by this Amendment No. 1, as though such
terms and conditions were set forth herein.
Section 4. Representations.
Each Borrower represents and warrants, as of the date of this Amendment No. 1, 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 Amendment No. 1 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;
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(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 Amendment No.
1;
(d) this Amendment No. 1 has been duly executed and delivered by it;
(e) this Amendment No. 1, as well as each of the Loan Documents as modified by this Amendment
No. 1, 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 Amendment
No. 1; 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 Amendment No. 1, 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 Amendment No. 1 is subject to the following conditions precedent:
(i) delivery to the Administrative Agent of this Amendment No. 1 duly executed by each of the
parties hereto; (ii) the payment of all reasonable legal fees and expenses of Xxxxx & Xxx Xxxxx
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 Amendment No. 1 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 Amendment No. 1 are inserted for
convenience of reference only and shall not be deemed to affect the meaning or construction of any
of the provisions hereof.
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(c) This Amendment No. 1 may not be amended or otherwise modified, waived or supplemented
except as provided in the Loan Agreement.
(d) The interpretive provisions of Sections 1.2, 1.3 and 1.4 of the
Loan Agreement are incorporated herein mutatis mutandis.
(e) This Amendment No. 1 represents 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 AMENDMENT NO. 1 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT
NO. 1 SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 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/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Executive Vice President | |||
| ARBOR REALTY GPOP, INC., a Delaware corporation |
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| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Executive Vice President | |||
| ARBOR REALTY LPOP, INC., a Delaware corporation |
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| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Executive Vice President | |||
| ARBOR REALTY LIMITED PARTNERSHIP, a Delaware limited partnership |
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| By: | Arbor Realty GPOP, Inc., | |||
| its General Partner | ||||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Executive Vice President | |||
[Signatures Continued on the Following Page]
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| THE BORROWERS (cont.): | ARBOR REALTY SR, INC., a Maryland corporation |
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| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Executive Vice President |
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| ARBOR REALTY COLLATERAL MANAGEMENT, LLC, a Delaware limited liability company |
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| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Executive Vice President | |||
[Signatures Continued on the Following Page]
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| THE LENDER: |
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association |
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| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Managing Director | |||
| THE ADMINISTRATIVE AGENT: | WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association |
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| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Managing Director | |||
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Form of Release Agreement
TERMINATION AND RELEASE AGREEMENT
(Wachovia/Arbor Working Capital Facility)
(Wachovia/Arbor Working Capital Facility)
THIS
TERMINATION AND RELEASE AGREEMENT, dated as of [__________],
2010 (this
“Release Agreement”), 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”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association (together with its successors and permitted assigns, “Custodian”), as the
custodian. 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,
modified, restated, replaced, waived, substituted, supplemented or extended from time to time,
including, but not limited to, pursuant to that First Amendment to First Amended and Restated
Revolving Loan Agreement dated as of December 24, 2009 (the “First Amendment”), the
“Loan Agreement”);
WHEREAS, the Borrower has requested, and the Lender and the Administrative Agent have agreed,
subject to all covenants, terms and conditions provided for in the First Amendment, to accept the
Discounted Payoff Amount, which amount is less than the outstanding principal amount of the Loan,
in full satisfaction of the Credit Obligations, provided that the Borrowers pay to the
Lender such Discounted Payoff Amount and the other amounts required under the First Amendment in a
timely manner, the Borrowers execute this Release Agreement and the other requirements of the First
Amendment are satisfied;
WHEREAS, the Custodian is party to a Loan Document and desires to evidence its agreement to
the termination set forth herein; and
WHEREAS, the Borrowers, the Lender, the Administrative Agent and the Custodian desire to
terminate their rights, duties and obligations under the Loan Agreement and the other Loan
Documents (such terminated documents hereinafter referred to as the “Terminated Documents”;
for the avoidance of doubt, agreements evidencing or relating to Borrower-Related Obligations which
are unrelated to the
Termination and Release Agreement
(Wachovia/Arbor)
(Wachovia/Arbor)
Loan Agreement and/or Loan Documents are not being terminated hereby and are not part of the
Terminated Documents).
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. Release of Lender and Administrative Agent.
Each Borrower hereby waives, releases and discharges the Lender, the Administrative Agent and
the Lender’s and the Administrative Agent’s successors, assigns, affiliates, officers, employees,
representatives, agents, counsel and directors from any and all actions, causes of action, claims,
demands, damages, liabilities, controversies, duties, covenants, responsibilities, obligations,
costs, losses and /or expenses of whatever kind or nature, in law or in equity, now known or
unknown, suspected or unsuspected, whether existing now or hereafter, arising out of, from or in
any way relating to or in connection with, directly or indirectly, the Loan Agreement or the other
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.
Section 2. Termination of Loan Documents.
(a) Subject to Section 4 of this Release Agreement, the rights, duties and obligations
(except those rights, duties and obligations that expressly survive termination, as set forth in
the Terminated Documents) of each party under the Loan Agreement and the other Terminated
Documents, are hereby terminated, and each of the parties hereto agrees that all duties and
obligations (except such duties and obligations that expressly survive termination, as set forth in
the Loan Agreement and the other Terminated Documents) of each party shall be released hereby.
(b) On and after the effective date of this Release Agreement, the Borrowers and the Custodian
shall execute and/or deliver such other certifications, documents and agreements as the
Administrative Agent shall from time to time reasonably require to give effect to this Release
Agreement.
Section 3. Representations.
Each Borrower represents and warrants, as of the date of this Release Agreement, 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 Release Agreement 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 Requirements of 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 Release
Agreement;
(d) this Release Agreement has been duly executed and delivered by it;
Termination and Release Agreement
(Wachovia/Arbor)
(Wachovia/Arbor)
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(e) this Release Agreement 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 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 any Borrower or any other Person with respect to (i)
this Release Agreement, the Loan Agreement, the Loan Documents or any other instrument, document
and/or agreement described herein or therein, as modified and amended hereby, or (ii) 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; and
(g) the Recitals set forth herein are true and correct.
Section 4.
Conditions Precedent.
The effectiveness of this Release Agreement is subject to the following conditions precedent:
(i) delivery to the Administrative Agent of this Release Agreement duly executed by each of the
parties hereto and the Termination and Release Agreement, dated as of the date hereof (the
“Credit Agreement Release”), by and among Arbor Realty Funding LLC, as a borrower, ARSR
Tahoe, LLC, as a borrower, ARLP, as a borrower and guarantor , ART 450 LLC, as a borrower, ARSR, as
a borrower, pledgor and guarantor, Arbor ESH II LLC, as a borrower, ART, as a gurantor, Wachovia
Bank, National Association, as a lender and the administrative agent, and Xxxxx Fargo Bank,
National Association, as custodian, which agreements shall be held in escrow by the Administrative
Agent’s counsel pending satisfaction of the other conditions set forth in this Section 4; (ii)
payment to the Lender and the Administrative Agent of the Discounted Payoff Amount in a timely
manner and the Borrowers’ satisfaction of all other conditions contained in the First Amendment;
(iii) the representations and warranties set forth in Section 3 are true and correct in all
material respects; (iv) the payment of all legal fees and expenses of Xxxxx & Xxx Xxxxx PLLC, as
counsel to the Administrative Agent, in the amount to be set forth on a separate invoice; and (v)
delivery to the Administrative Agent of such other documents, agreements or certifications as the
Administrative Agent may reasonably require. Upon satisfaction of the foregoing conditions, which
satisfaction must be confirmed in writing by the Administrative Agent and the Administrative
Agent’s release from escrow to all parties copies of this Release Agreement and the Credit
Agreement Release executed by all parties, the Borrowers are authorized (at the Borrowers’ expense)
to terminate the relevant UCC financing statements filed against the Borrowers in connection with
the Terminated Documents and
the Custodian is authorized to release to the Borrowers all Mortgage Asset Files and other
documents held pursuant to the Custodial Agreement.
Section 5. Miscellaneous.
(a) This Release Agreement 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.
Termination and Release Agreement
(Wachovia/Arbor)
(Wachovia/Arbor)
3
(b) The descriptive headings of the various sections of this Release Agreement 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 Release Agreement may not be amended or otherwise modified, waived or supplemented
except as provided in the Loan Agreement.
(d) The interpretive provisions of Sections 1.2, 1.3 and 1.4 of the
Loan Agreement are incorporated herein mutatis mutandis.
(e) This Release Agreement represents 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 RELEASE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS RELEASE
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
(g) Each provision of this Release Agreement shall be valid, binding and enforceable to the
fullest extent permitted by Requirements of Law. In case any provision in or obligation under this
Release Agreement shall be invalid, illegal or unenforceable in any jurisdiction (either in its
entirety or as applied to any Person, fact, circumstance, action or inaction), the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction or as applied to any Person, fact, circumstance, action or
inaction, shall not in any way be affected or impaired thereby.
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Termination and Release Agreement
(Wachovia/Arbor)
(Wachovia/Arbor)
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IN WITNESS WHEREOF, the parties have caused this Release Agreement 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: | ||||
| Name: | ||||
| Title: | ||||
| ARBOR REALTY GPOP, INC., a Delaware corporation |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| ARBOR REALTY LPOP, INC., a Delaware corporation |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| ARBOR REALTY LIMITED PARTNERSHIP, a Delaware limited partnership |
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| By: | Arbor Realty GPOP, Inc., | |||
| its General Partner | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Signatures Continued on the Following Page]
Termination and Release Agreement
(Wachovia/Arbor)
(Wachovia/Arbor)
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| THE BORROWERS (cont.): | ARBOR REALTY SR, INC., a Maryland corporation |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| ARBOR REALTY COLLATERAL MANAGEMENT, LLC, a Delaware limited liability company |
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| By: | ||||
| Name: | ||||
| Title: | ||||
[Signatures Continued on the Following Page]
Termination and Release Agreement
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(Wachovia/Arbor)
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| THE LENDER: |
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association |
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| By: | ||||
| Name: | Xxxx Xxxxxx | |||
| Title: | Managing Director | |||
| THE ADMINISTRATIVE AGENT: | WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association |
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| By: | ||||
| Name: | Xxxx Xxxxxx | |||
| Title: | Managing Director | |||
[Signatures Continued on the Following Page]
Termination and Release Agreement
(Wachovia/Arbor)
(Wachovia/Arbor)
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| THE CUSTODIAN: |
XXXXX FARGO BANK, NATIONAL ASSOCIATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Address for Notices: |
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| Xxxxx Fargo Bank, National Association | ||||
| 0000 00xx Xxxxxx XX | ||||
| Xxxxxxxxxxx, Xxxxxxxxx 00000 | ||||
| Attention: | Xxxxxxx Xxxxxxxxxxxx | |||
| Trust Officer | ||||
| Facsimile No: | (612) 466—5416 | |||
| Confirmation No: | (612) 466—5895 | |||
Termination and Release Agreement
(Wachovia/Arbor)
(Wachovia/Arbor)
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