exv10w41






EXHIBIT 10.41




EXECUTION VERSION




SECOND AMENDMENT AND WAIVER TO

FIRST AMENDED AND RESTATED REVOLVING LOAN AGREEMENT

(Wachovia/Arbor)




     THIS SECOND AMENDMENT AND WAIVER TO FIRST AMENDED AND RESTATED REVOLVING LOAN AGREEMENT, dated
as of February 2, 2010 (this “Amendment No. 2”), 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,
modified, restated, replaced, waived, substituted, supplemented or extended from time to time,
including pursuant to that certain First Amendment to First Amended and Restated Revolving Loan
Agreement, dated as of December 24, 2009, that certain Waiver to First Amended and Restated
Revolving Loan Agreement, dated as of January 20, 2010 and this Amendment No. 2, the “Loan
Agreement);



     WHEREAS, the Borrowers desire to make certain modifications to the Loan Agreement;



     WHEREAS, the Borrowers have requested that the Administrative Agent and the Lenders waive
certain provisions in the Loan Agreement; and



     WHEREAS, the Administrative Agent and the Lenders are willing to waive certain provisions of
and modify the Loan Agreement as requested by the Borrowers 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:


Second Amendment and Waiver to Loan Agreement

(Wachovia/Arbor)














 





     Section 1. Waiver.



     The Borrowers and the Guarantors acknowledge and agree that ART may not comply with the
Financial Covenant related to the ratio of its Net Total Liabilities to Adjusted Tangible Net Worth
contained in Section 5.1(w)(iii) 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 Section
5.1(w)(iii) 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 Amendment No. 2, (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. Amendments to Loan Agreement.



     (a) The following new definition is added to Section 1.1 of the Loan Agreement (to be
inserted in the correct alphabetical order):




““Payoff Date” shall have the meaning set forth in Section 2.18 of the Arbor Credit
Agreement Agreement.”



     (b) Sections 5.w(ii) and (iii) of the Loan Agreement are hereby amended and
restated in their entirety as follows:




     “(ii) Maintenance of Tangible Net Worth. (i) For any Test Period other than
the Test Periods ending on September 30, 2010 and December 31, 2010, ART shall not permit
Tangible Net Worth at any time to be less than $150,000,000, and, (ii) for the Tests Periods
ending on September 30, 2010 and December 31, 2010, ART shall not permit Tangible Net Worth
at any time to be less than $50,000,000.




     (iii) Maintenance of Ratio of Net Total Liabilities to Adjusted Tangible Net
Worth. (i) For any Test Period other than the Test Periods ending on September 30, 2010
and December 31, 2010, ART shall not permit the ratio of its Net Total Liabilities to
Adjusted Tangible Net Worth at any time to be greater than 4.5 to 1.0, and, (ii) for the
Tests Periods ending on September 30, 2010 and December 31, 2010, ART shall not permit the
ratio of its Net Total Liabilities to Adjusted Tangible Net Worth at any time to be greater
than 5.8 to 1.0.”


 Second Amendment and Waiver to Loan Agreement

(Wachovia/Arbor)




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     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 Amendment No. 2. This Amendment No. 2 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 Amendment
No. 2, 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 Amendment
No. 2 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 Amendment No. 2, 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. 2 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 Amendment No.
2;



     (d) this Amendment No. 2 has been duly executed and delivered by it;



     (e) this Amendment No. 2, as well as each of the Loan Documents as modified by this Amendment
No. 2, 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. 2; 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. 2, 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,


Second Amendment and Waiver to Loan Agreement

(Wachovia/Arbor)




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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. 2 is subject to the following conditions precedent:
(i) delivery to the Administrative Agent of this Amendment No. 2 duly executed by each of the
parties hereto; (ii) the payment of all legal fees and expenses of Moore & Van Allen 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. 2 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. 2 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 Amendment No. 2 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.



     (e) This Amendment No. 2 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 AMENDMENT NO. 2 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT
NO. 2 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 Amendment
No. 2, 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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Second Amendment and Waiver to Loan Agreement

(Wachovia/Arbor)




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     IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 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

 	 
	 	By:  	/s/ John Natalone
 	 
	 	 	Name:  	John Natalone 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	ARBOR REALTY GPOP, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ John Natalone
 	 
	 	 	Name:  	John Natalone 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	ARBOR REALTY LPOP, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ John Natalone
 	 
	 	 	Name:  	John Natalone 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	ARBOR REALTY LIMITED PARTNERSHIP,

a Delaware limited partnership

 	 
	 	By:  	Arbor Realty GPOP, Inc.,
 	 
	 	 	its General Partner 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	                                              /s/ John Natalone
 	 
	 	 	Name:  	John Natalone 	 
	 	 	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/ John Natalone
 	 
	 	 	Name:  	John Natalone 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	ARBOR REALTY COLLATERAL
MANAGEMENT, LLC, 

a Delaware limited liability company

 	 
	 	By:  	/s/ John Natalone
 	 
	 	 	Name:  	John Natalone 	 
	 	 	Title:  	Executive Vice President 	 
	 



[Signatures Continued on the Following Page]




Second Amendment and Waiver to Loan Agreement

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	THE LENDER:	 WACHOVIA BANK, NATIONAL ASSOCIATION,


a national banking association

 	 
	 	By:  	/s/ John Nelson
 	 
	 	 	Name:  	John Nelson 	 
	 	 	Title:  	Managing Director 	 
	 
	THE ADMINISTRATIVE AGENT:	 WACHOVIA BANK, NATIONAL ASSOCIATION,

a national banking association

 	 
	 	By:  	/s/ John Nelson
 	 
	 	 	Name:  	John Nelson 	 
	 	 	Title:  	Managing Director 	 
	 



Second Amendment and Waiver to Loan Agreement

(Wachovia/Arbor)





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