Exhibit 10.33


 


THIRD
AMENDMENT AND WAIVER AGREEMENT


 


THIS THIRD AMENDMENT AND WAIVER AGREEMENT
(this “Agreement”) is made as of March 22, 2010, with respect to
and as an amendment to that certain Amended and Restated Credit Agreement dated
as of January 30, 2009, by and among GPF Acquisition, LLC, Walker &
Dunlop Multifamily, Inc., Walker & Dunlop GP, LLC, Green Park
Financial Limited Partnership, Walker & Dunlop, Inc., Walker &
Dunlop, LLC, Bank of America, N.A., as Administrative Agent and Collateral Agent,
and the Lenders party thereto, as amended (the “Credit Agreement”).
Capitalized terms used herein without definition have the meanings specified
therefor in the Credit Agreement.


 


RECITALS


 


The Borrower and the Administrative Agent
have determined that Supplemental Distributions were made pursuant to Section 7.06(d) of
the Credit Agreement with respect to the Fiscal Quarter ending September 30,
2009, in an amount which exceeded the permitted Supplemental Distributions for
such Fiscal Quarter by approximately $83,428 (the “03/09 Over- Distribution”).


 


The Loan Parties and WDLLC (collectively, the
“Obligor Group”) have requested that the Administrative Agent and the
Lenders (a) waive the requirement of Section 7.06(d) of the
Credit Agreement that future quarterly distributions of any kind by the Loan
Parties be withheld in respect of, and in an amount equal to, the Q3/09
Over-Distribution (the “Waiver”), and (b) agree to amend the Credit
Agreement, and the Administrative Agent and the Lenders have agreed to do so,
on, and subject to, the terms and conditions set forth herein.


 


NOW, THEREFORE, in consideration of the
agreements of the parties set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


1.             Waiver. Subject to the terms
and conditions set forth in this Agreement, the Administrative Agent and the
Lenders hereby grant the Waiver. The Waiver granted herein is a one-time waiver
and relates solely to the Q3/09 Over-Distribution. Nothing contained herein
shall be deemed to constitute an agreement by the Administrative Agent and/or
the Lenders to waive any of the requirements of Section 7.06(d) of
the Credit Agreement (or any other provision of the Credit Agreement) in the
future.


 


2.             Amendment to Credit Agreement.
Effective as of the Effective Date (as hereafter defined), the Credit Agreement
is hereby amended by deleting in its entirety the proviso at the end of the second paragraph of Section 7.06(d) of
the Credit Agreement.


 


3.             Confirmation of Maturity Date.
The parties hereby confirm that, pursuant to the Borrower’s timely Notice to
Extend the Initial Maturity Date to the First Extended Maturity Date, and the
Borrower’s compliance with the related applicable requirements of Section 2.04
of the Credit Agreement, the Maturity Date has been extended to October 31,
2011.


 


4.             Obligor Group Acknowledgments.
Each member of the Obligor Group acknowledges, confirms and agrees that:


 

















 


(a)           Except as provided herein, the terms
and conditions of the Credit Agreement and the other Loan Documents (each as
previously amended to the date hereof) remain in full force and effect, and
each hereby (x) ratifies, confirms and reaffirms all and singular of the
terms and conditions of the Credit Agreement and the other Loan Documents
applicable to such Person, and (y) represents and warrants that:


 


(i)            After giving effect
to this Agreement, no Default or Event of Default exists as of the date such
Person executes this Agreement, nor will a Default or Event of Default exist as
of the Effective Date.


 


(ii)           The representations
and warranties made by, or with respect to, each such Person in the Credit
Agreement and the other Loan Documents are true and correct as of the date
hereof as if remade herein, and will be true and correct as of the Effective
Date, except as to (1) matters which speak to a specific date, and (2) changes
in the ordinary course to the extent permitted and contemplated by the Credit
Agreement.


 


(iii)          Each such Person
has the power and authority and legal right to execute, deliver and perform
this Agreement, has taken any necessary action to authorize the execution,
delivery, and performance of this Agreement, and the individual executing and
delivering this Agreement on behalf of such Person is duly authorized to do so.


 


(iv)          This Agreement has
been duly executed and delivered on behalf of such Person and constitutes the
legal, valid and binding obligation of such Person, enforceable against such
Person in accordance with its terms, subject to the effect of applicable
bankruptcy and other similar laws affecting the rights of creditors generally
and the effect of equitable principles whether applied in an action at law or a
suit in equity.


 


(b)           This
Agreement constitutes a Loan Document.


 


(c)           Such Person has no defenses, set offs
or counterclaims with respect to any of its obligations to the Administrative
Agent, the Collateral Agent, or the Lenders, and hereby releases, waives, and
forever relinquishes all claims, demands, obligations, liabilities, and causes
of action whatever kind or nature, whether known or unknown, which it has or
may have as of the date hereof and as of the Effective Date against the
Administrative Agent, the Collateral Agent, and/or any of the Lenders, or their
respective affiliates, officers, directors, employees, agents, attorneys,
independent contractors, and predecessors, together with their successors and
assigns, directly or indirectly arising out of or based upon any matter
connected with the Credit Agreement or the administration thereof or the
obligations created thereby.


 


5.             Conditions
Precedent. This Agreement shall be effective upon the satisfaction by the
Obligor Group of, or written waiver by the Administrative Agent of, the following
conditions and any other conditions set forth in this Agreement, by no later
than 5:00 p.m. on the date set forth above, as such date may be extended
in writing by the Administrative Agent, in its sole


 


2

















 


discretion (with the date, if at all, by
which such conditions have been satisfied or waived being referred to herein
as, the “Effective Date”), failing which this Agreement and all related
documents shall be null and void at the option of the Administrative Agent:


 


(a)           Delivery
to the Administrative Agent of the following:


 


(i)            This
Agreement, duly executed by each member of the Obligor Group, and by the
Administrative Agent and the Required Lenders, and


 


(ii)           Such
other documents as the Administrative Agent or Collateral Agent reasonably may
require, duly executed and delivered.


 


(b)           No
Default or Event of Default shall have occurred and be continuing.


 


(c)           In addition to all other expense
payment and reimbursement obligations of the Obligor Group under the Credit
Agreement and other Loan Documents, the Borrower will, promptly following its
receipt of an appropriate invoice therefor, pay or reimburse the Agents for all
of their reasonable out of pocket costs and expenses (including, without
limitation, reasonable attorneys’ fees and expenses and disbursements) incurred
in connection with the preparation of this Agreement and any other documents in
connection herewith and the matters addressed in and contemplated by, this
Agreement


 


6.             Miscellaneous.


 


(a)           Except as
specifically provided herein, nothing in this Agreement shall, or shall be
construed to (i) modify the Credit Agreement or any other Loan Document, (ii) modify,
waive, impair, or affect any of the covenants, agreements, terms, and/or
conditions thereof, or (iii) waive the due keeping, observance, and/or
performance thereof, each of which is hereby ratified and confirmed by each
member of the Obligor Group.


 


(b)           This Agreement shall
be governed in accordance with the internal laws of the Commonwealth of
Massachusetts (without regard to conflict of laws principles) as an instrument
under seal.


 


(c)           This
Agreement may be executed in one or more counterparts, each of which when so
executed shall be deemed to be an original, but all of which when taken
together shall constitute one and the same instrument. Signatures transmitted electronically
(including by fax or e-mail) shall have the same legal effect as originals, but
each party nevertheless shall deliver original signed counterparts of this
Agreement to each other party if so requested by such other party.


 


(d)           This Agreement
constitutes the complete agreement among the Obligor Group and the Credit
Parties with respect to the subject matter hereof and thereof and supersedes
all prior agreements and understanding relating to the subject matter of this
Agreement, and may not be modified, altered, or amended except in accordance
with the Credit Agreement.


 


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(e)           Time is of the
essence with respect to all aspects of this Agreement.


 


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left blank]


 


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Executed as a sealed instrument as of the
date first above written.


 


	
   

  	
  GPF ACQUISITION, LLC

  
	
   

  	
   

  
	
   

  	
  By: Walker & Dunlop GP, LLC, its Managing
  Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William M. Walker

  
	
   

  	
  Name:

  	
  William M. Walker

  
	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  
	
   

  	
  WALKER & DUNLOP MULTIFAMILY, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William M. Walker

  
	
   

  	
  Name:

  	
  William M. Walker

  
	
   

  	
  Title: 

  	
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  WALKER & DUNLOP GP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William M. Walker

  
	
   

  	
  Name:

  	
  William M. Walker

  
	
   

  	
  Title: 

  	
  Managing Member

  
	
   

  	
   

  
	
   

  	
  GREEN PARK FINANCIAL LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By: Walker & Dunlop GP, LLC, its
  Managing General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William M. Walker

  
	
   

  	
  Name:

  	
  William M. Walker

  
	
   

  	
  Title: 

  	
  Managing Member

  
	
   

  	
   

  
	
   

  	
  WALKER & DUNLOP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William M. Walker

  
	
   

  	
  Name:

  	
  William M. Walker

  
	
   

  	
  Title: 

  	
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  WALKER & DUNLOP, LLC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William M. Walker

  
	
   

  	
  Name:

  	
  William M. Walker

  
	
   

  	
  Title: 

  	
  President and Chief Executive Officer

  
				



 


Signature page to
Third Amendment and Waiver Agreement - 1


 

















 


	
   

  	
  BANK OF AMERICA, N.A., as Administrative
  Agent, 

  Collateral Agent, and a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jane E. Huntington

  
	
   

  	
  Name:

  	
  Jane E. Huntington

  
	
   

  	
  Title: 

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  PNC BANK, NATIONAL ASSOCIATION, successor
  to 

  NATIONAL CITY BANK, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael A. Johnson

  
	
   

  	
  Name:

  	
  Michael A. Johnson

  
	
   

  	
  Title: 

  	
  Vice President

  



 


Signature page to
Third Amendment and Waiver Agreement - 2