e10vq
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
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þ |
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 |
For the quarterly period ended June 30, 2009
Or
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o |
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number: 001-32136
Arbor Realty Trust, Inc.
(Exact name of registrant as specified in its charter)
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Maryland
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20-0057959 |
(State or other jurisdiction of
incorporation)
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(I.R.S. Employer
Identification No.) |
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333 Earle Ovington Boulevard, Suite 900 |
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Uniondale, NY
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11553 |
(Address of principal executive offices)
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(Zip Code) |
(516) 506-4200
(Registrants telephone number, including area code)
(Former name, former address and former fiscal year, if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files). Yes
o No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer o
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Accelerated filer þ
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes o No þ
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuers classes of common stock, as
of the latest practicable date. Common stock, $0.01 par value per share: 25,387,410 outstanding
(excluding 279,400 shares held in the treasury) as of August 7, 2009.
ARBOR REALTY TRUST, INC.
FORM 10-Q
INDEX
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PART I. FINANCIAL INFORMATION |
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2 |
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Item 1. Financial Statements |
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2 |
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Consolidated Balance Sheets at June 30, 2009 (Unaudited) and December 31, 2008 |
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2 |
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Consolidated Statements of Operations (Unaudited) for the Three and Six Months Ended June 30, 2009 and 2008 |
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3 |
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Consolidated Statement of Changes in Equity (Unaudited) for the Six Months Ended June 30, 2009 |
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4 |
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Consolidated Statements of Cash Flows (Unaudited) for the Six Months Ended June 30, 2009 and 2008 |
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5 |
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Notes to the Consolidated Financial Statements (Unaudited) |
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7 |
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Item 2. Managements Discussion and Analysis of Financial Condition and Results of Operations |
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43 |
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Item 3. Quantitative and Qualitative Disclosures about Market Risk |
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68 |
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Item 4. Controls and Procedures |
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71 |
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PART II. OTHER INFORMATION |
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71 |
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Item 1. Legal Proceedings |
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71 |
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Item 1A. Risk Factors |
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71 |
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Item 2. Unregistered Sale of Equity Securities and Use of Proceeds |
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71 |
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Item 3. Defaults Upon Senior Securities |
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71 |
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Item 4. Submission of Matters to a Vote of Security Holders |
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71 |
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Item 5. Other Information |
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72 |
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Item 6. Exhibits |
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73 |
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Signatures |
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77 |
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CAUTIONARY STATEMENTS
The information contained in this quarterly report on Form 10-Q is not a complete description
of our business or the risks associated with an investment in Arbor Realty Trust, Inc. We urge you
to carefully review and consider the various disclosures made by us in this report.
This report contains certain forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Such forward-looking statements relate to, among other
things, the operating performance of our investments and financing needs. Forward-looking
statements are generally identifiable by use of forward-looking terminology such as may, will,
should, potential, intend, expect, endeavor, seek, anticipate, estimate,
overestimate, underestimate, believe, could, project, predict, continue or other
similar words or expressions. Forward-looking statements are based on certain assumptions, discuss
future expectations, describe future plans and strategies, contain projections of results of
operations or of financial condition or state other forward-looking information. Our ability to
predict results or the actual effect of future plans or strategies is inherently uncertain.
Although we believe that the expectations reflected in such forward-looking statements are based on
reasonable assumptions, our actual results and performance could differ materially from those set
forth in the forward-looking statements. These forward-looking statements involve risks,
uncertainties and other factors that may cause our actual results in future periods to differ
materially from forecasted results. Factors that could have a material adverse effect on our
operations and future prospects include, but are not limited to, changes in economic conditions
generally and the real estate market specifically; adverse changes in the financing markets we
access affecting our ability to finance our loan and investment portfolio; changes in interest
rates; the quality and size of the investment pipeline and the rate at which we can invest our
cash; impairments in the value of the collateral underlying our loans and investments; changes in
the markets; legislative/regulatory changes; completion of pending investments; the availability
and cost of capital for future investments; competition within the finance and real estate
industries; and other risks detailed in our Annual Report on Form 10-K for the year ending December
31, 2008. Readers are cautioned not to place undue reliance on any of these forward-looking
statements, which reflect our managements views as of the date of this report. The factors noted
above could cause our actual results to differ significantly from those contained in any
forward-looking statement. For a discussion of our critical accounting policies, see Managements
Discussion and Analysis of Financial Condition and Results of Operations of Arbor Realty Trust,
Inc. and Subsidiaries Significant Accounting Estimates and Critical Accounting Policies in our
Annual Report on Form 10-K for the year ending December 31, 2008.
Although we believe that the expectations reflected in the forward-looking statements are
reasonable, we cannot guarantee future results, levels of activity, performance or achievements. We
are under no duty to update any of the forward-looking statements after the date of this report to
conform these statements to actual results.
i
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
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June 30, |
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December 31, |
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2009 |
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2008 |
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(Unaudited) |
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Assets: |
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Cash and cash equivalents |
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$ |
29,517,467 |
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$ |
832,041 |
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Restricted cash |
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66,605,006 |
|
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|
93,219,133 |
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Loans and investments, net |
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1,925,689,370 |
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2,181,683,619 |
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Available-for-sale securities, at fair value |
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146,973 |
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529,104 |
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Securities held-to-maturity, net |
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68,884,086 |
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58,244,348 |
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Investment in equity affiliates |
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66,264,744 |
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29,310,953 |
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Real estate owned, net |
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48,267,318 |
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46,478,994 |
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Due from related party |
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2,933,344 |
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Prepaid management fee related party |
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26,340,397 |
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26,340,397 |
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Other assets |
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71,054,687 |
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139,664,556 |
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Total assets |
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$ |
2,302,770,048 |
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$ |
2,579,236,489 |
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Liabilities and Equity: |
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Repurchase agreements |
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$ |
4,388,250 |
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$ |
60,727,789 |
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Collateralized debt obligations |
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1,113,600,316 |
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1,152,289,000 |
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Junior subordinated notes to subsidiary trust issuing preferred securities |
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259,173,610 |
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276,055,000 |
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Notes payable |
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442,186,353 |
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518,435,437 |
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Note payable related party |
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4,200,000 |
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Mortgage note payable |
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41,440,000 |
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41,440,000 |
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Due to related party |
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4,745,351 |
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993,192 |
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Due to borrowers |
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5,983,548 |
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32,330,603 |
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Deferred revenue |
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77,123,133 |
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77,123,133 |
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Other liabilities |
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82,187,665 |
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134,647,667 |
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Total liabilities |
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2,030,828,226 |
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2,298,241,821 |
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Commitments and
contingencies |
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Equity: |
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Arbor Realty Trust, Inc. stockholders equity: |
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Preferred stock, $0.01 par value: 100,000,000 shares authorized;
no shares issued or outstanding |
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Common stock, $0.01 par value: 500,000,000 shares authorized;
25,666,810 shares issued, 25,387,410 shares outstanding at
June 30, 2009 and 25,421,810 shares issued, 25,142,410 shares
outstanding at December 31, 2008 |
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256,668 |
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254,218 |
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Additional paid-in capital |
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449,733,531 |
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447,321,186 |
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Treasury stock, at cost - 279,400 shares |
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(7,023,361 |
) |
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(7,023,361 |
) |
Accumulated deficit |
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(115,754,033 |
) |
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(62,939,722 |
) |
Accumulated other comprehensive loss |
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(57,210,449 |
) |
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(96,606,672 |
) |
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Total Arbor Realty Trust, Inc. stockholders equity |
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270,002,356 |
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281,005,649 |
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Noncontrolling interest in consolidated entity |
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1,939,466 |
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(10,981 |
) |
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Total equity |
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271,941,822 |
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280,994,668 |
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Total liabilities and equity |
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$ |
2,302,770,048 |
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$ |
2,579,236,489 |
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See notes to consolidated financial statements.
2
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Three and Six Months Ended June 30, 2009 and 2008
(Unaudited)
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Three Months Ended June 30, |
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Six Months Ended June 30, |
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2009 |
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2008 |
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2009 |
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2008 |
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Revenue: |
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Interest income |
|
$ |
31,687,984 |
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$ |
51,869,164 |
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$ |
62,188,007 |
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$ |
107,285,494 |
|
Property operating income |
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1,587,692 |
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|
|
|
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3,058,488 |
|
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|
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Other income |
|
|
782,410 |
|
|
|
28,629 |
|
|
|
798,660 |
|
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|
49,322 |
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Total revenue |
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34,058,086 |
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|
51,897,793 |
|
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|
66,045,155 |
|
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|
107,334,816 |
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Expenses: |
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|
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Interest expense |
|
|
21,091,121 |
|
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|
27,857,322 |
|
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|
40,241,937 |
|
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|
59,161,421 |
|
Employee compensation and benefits |
|
|
3,509,911 |
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|
2,686,002 |
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|
5,901,895 |
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|
4,663,345 |
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Selling and administrative |
|
|
2,681,579 |
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|
2,793,161 |
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|
|
4,763,921 |
|
|
|
4,331,227 |
|
Property operating expenses |
|
|
1,612,965 |
|
|
|
|
|
|
|
2,944,110 |
|
|
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|
Depreciation and amortization |
|
|
283,022 |
|
|
|
|
|
|
|
566,044 |
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|
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Other-than-temporary impairment |
|
|
382,130 |
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|
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|
|
|
|
382,130 |
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|
|
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|
Provision for loan losses |
|
|
23,000,000 |
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|
2,000,000 |
|
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|
90,500,000 |
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|
|
5,000,000 |
|
Loss on restructured loans |
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|
23,790,835 |
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|
|
|
|
|
|
32,827,749 |
|
|
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Management fee related party |
|
|
6,277,623 |
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|
|
2,153,838 |
|
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|
7,000,000 |
|
|
|
4,733,272 |
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|
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|
|
|
|
|
|
|
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Total expenses |
|
|
82,629,186 |
|
|
|
37,490,323 |
|
|
|
185,127,786 |
|
|
|
77,889,265 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss) income before gain on exchange of
profits interest, gain on extinguishment of
debt, loss on termination of swaps and
loss from equity affiliates |
|
|
(48,571,100 |
) |
|
|
14,407,470 |
|
|
|
(119,082,631 |
) |
|
|
29,445,551 |
|
Gain on exchange of profits interest |
|
|
|
|
|
|
|
|
|
|
55,988,411 |
|
|
|
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|
Gain on extinguishment of debt |
|
|
21,464,957 |
|
|
|
|
|
|
|
47,731,990 |
|
|
|
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|
Loss on termination of swaps |
|
|
(8,729,408 |
) |
|
|
|
|
|
|
(8,729,408 |
) |
|
|
|
|
Loss from equity affiliates |
|
|
(12,664,152 |
) |
|
|
(562,000 |
) |
|
|
(10,157,018 |
) |
|
|
(562,000 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income |
|
|
(48,499,703 |
) |
|
|
13,845,470 |
|
|
|
(34,248,656 |
) |
|
|
28,883,551 |
|
Net income attributable to noncontrolling
interest |
|
|
57,292 |
|
|
|
2,117,464 |
|
|
|
18,562,077 |
|
|
|
4,450,754 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income attributable to Arbor Realty
Trust, Inc. |
|
$ |
(48,556,995 |
) |
|
$ |
11,728,006 |
|
|
$ |
(52,810,733 |
) |
|
$ |
24,432,797 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic (loss) earnings per common share |
|
$ |
(1.92 |
) |
|
$ |
0.56 |
|
|
$ |
(2.09 |
) |
|
$ |
1.18 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted (loss) earnings per common share |
|
$ |
(1.92 |
) |
|
$ |
0.56 |
|
|
$ |
(2.09 |
) |
|
$ |
1.18 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividends declared per common share |
|
$ |
|
|
|
$ |
0.62 |
|
|
$ |
|
|
|
$ |
1.24 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of shares
of common stock outstanding: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic |
|
|
25,333,564 |
|
|
|
20,906,383 |
|
|
|
25,238,515 |
|
|
|
20,739,081 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted |
|
|
25,333,564 |
|
|
|
24,721,660 |
|
|
|
25,238,515 |
|
|
|
24,562,520 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See notes to consolidated financial statements.
3
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CHANGES IN EQUITY
For the Six Months Ended June 30, 2009
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
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|
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|
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|
|
|
|
|
|
|
|
|
|
|
Total Arbor |
|
Non- |
|
|
|
|
|
|
|
|
|
|
|
|
Common |
|
|
|
|
|
|
|
|
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|
|
|
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|
|
|
|
Accumulated |
|
Realty Trust, |
|
controlling |
|
|
|
|
|
|
|
|
Common |
|
Stock |
|
Additional |
|
Treasury |
|
|
|
|
|
|
|
|
|
Other |
|
Inc. |
|
Interest in |
|
|
|
|
Comprehensive |
|
Stock |
|
Par |
|
Paid-in |
|
Stock |
|
Treasury |
|
Accumulated |
|
Comprehensive |
|
Stockholders |
|
Consolidated |
|
|
|
|
Income (1) |
|
Shares |
|
Value |
|
Capital |
|
Shares |
|
Stock |
|
Deficit |
|
Loss |
|
Equity |
|
Entity |
|
Total |
Balance January 1,
2009 |
|
|
|
|
|
|
25,421,810 |
|
|
$ |
254,218 |
|
|
$ |
447,321,186 |
|
|
|
(279,400 |
) |
|
$ |
(7,023,361 |
) |
|
$ |
(62,939,722 |
) |
|
$ |
(96,606,672 |
) |
|
$ |
281,005,649 |
|
|
$ |
(10,981 |
) |
|
$ |
280,994,668 |
|
Stock-based
compensation |
|
|
|
|
|
|
245,000 |
|
|
|
2,450 |
|
|
|
2,412,345 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,414,795 |
|
|
|
|
|
|
|
2,414,795 |
|
Distributions -
preferred stock of
private REIT |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,578 |
) |
|
|
|
|
|
|
(3,578 |
) |
|
|
|
|
|
|
(3,578 |
) |
Net (loss)
income |
|
$ |
(34,248,656 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(52,810,733 |
) |
|
|
|
|
|
|
(52,810,733 |
) |
|
|
18,562,077 |
|
|
|
(34,248,656 |
) |
Distribution to
non-controlling
interest |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(16,611,630 |
) |
|
|
(16,611,630 |
) |
Unrealized gain on
derivative financial
instrument |
|
|
16,622,907 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,622,907 |
|
|
|
16,622,907 |
|
|
|
|
|
|
|
16,622,907 |
|
Reclassification of
net realized loss on
derivatives designated
as cash flow hedges
into
earnings |
|
|
22,773,316 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
22,773,316 |
|
|
|
22,773,316 |
|
|
|
|
|
|
|
22,773,316 |
|
|
|
|
Balance
June 30, 2009 |
|
$ |
5,147,567 |
|
|
|
25,666,810 |
|
|
$ |
256,668 |
|
|
$ |
449,733,531 |
|
|
|
(279,400 |
) |
|
$ |
(7,023,361 |
) |
|
$ |
(115,754,033 |
) |
|
$ |
(57,210,449 |
) |
|
$ |
270,002,356 |
|
|
$ |
1,939,466 |
|
|
$ |
271,941,822 |
|
|
|
|
|
|
|
(1) |
|
Comprehensive income for the six months ended June 30, 2008 was $26,881,924. |
See notes to consolidated financial statements.
4
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Six Months Ended June 30, 2009 and 2008
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30, |
|
|
|
2009 |
|
|
2008 |
|
Operating activities: |
|
|
|
|
|
|
|
|
Net (loss) income |
|
$ |
(34,248,656 |
) |
|
$ |
28,883,551 |
|
Adjustments to reconcile net (loss) income to cash provided by operating activities: |
|
|
|
|
|
|
|
|
Depreciation and amortization |
|
|
566,044 |
|
|
|
170,913 |
|
Stock-based compensation |
|
|
2,414,795 |
|
|
|
2,055,922 |
|
Other-than-temporary impairment |
|
|
382,130 |
|
|
|
|
|
Gain on exchange of profits interest |
|
|
(55,988,411 |
) |
|
|
|
|
Gain on extinguishment of debt |
|
|
(47,731,990 |
) |
|
|
|
|
Provision for loan losses |
|
|
90,500,000 |
|
|
|
5,000,000 |
|
Loss on restructured loans |
|
|
32,827,749 |
|
|
|
|
|
Loss on termination of
swaps |
|
|
8,729,408 |
|
|
|
|
|
Amortization and accretion of interest and fees |
|
|
1,890,442 |
|
|
|
(766,404 |
) |
Change in fair value of non-qualifying
swaps |
|
|
3,349,773 |
|
|
|
(674,397 |
) |
Non-cash incentive compensation to manager related party |
|
|
|
|
|
|
1,385,918 |
|
Loss from equity affiliates |
|
|
10,157,018 |
|
|
|
562,000 |
|
Changes in operating assets and liabilities: |
|
|
|
|
|
|
|
|
Other assets |
|
|
15,186,786 |
|
|
|
(11,797,584 |
) |
Other liabilities |
|
|
(5,871,052 |
) |
|
|
(13,394,474 |
) |
Deferred fees |
|
|
2,467,808 |
|
|
|
1,014,315 |
|
Due to (from) related party |
|
|
7,738,692 |
|
|
|
(957,704 |
) |
|
|
|
|
|
|
|
Net cash provided by operating activities |
|
$ |
32,370,536 |
|
|
$ |
11,482,056 |
|
|
|
|
|
|
|
|
Investing activities: |
|
|
|
|
|
|
|
|
Loans and investments funded, originated and purchased, net |
|
|
(4,169,262 |
) |
|
|
(287,005,064 |
) |
Payoffs and paydowns of loans and investments |
|
|
90,719,093 |
|
|
|
427,986,599 |
|
Proceeds from sale of
loans |
|
|
23,250,000 |
|
|
|
|
|
Due to borrowers |
|
|
(6,141,287 |
) |
|
|
(9,873,294 |
) |
Principal collection on securities held-to-maturity |
|
|
1,377,569 |
|
|
|
|
|
Purchase of securities held-to-maturity |
|
|
(10,670,000 |
) |
|
|
(58,062,500 |
) |
Investment in real estate,
net |
|
|
(59,986 |
) |
|
|
(1,073,153 |
) |
Distributions from equity affiliates |
|
|
1,151,217 |
|
|
|
177,499 |
|
|
|
|
|
|
|
|
Net cash provided by investing activities |
|
$ |
95,457,344 |
|
|
$ |
72,150,087 |
|
|
|
|
|
|
|
|
Financing activities: |
|
|
|
|
|
|
|
|
Proceeds from notes payable and repurchase agreements |
|
|
10,680,633 |
|
|
|
212,693,265 |
|
Payoffs and paydowns of notes payable and repurchase agreements |
|
|
(123,478,929 |
) |
|
|
(219,647,463 |
) |
Payoff of junior subordinated notes to subsidiary trust issuing preferred securities |
|
|
(1,265,625 |
) |
|
|
|
|
Payoff of notes payable related party |
|
|
(4,200,000 |
) |
|
|
|
|
Proceeds from collateralized debt obligations |
|
|
500,000 |
|
|
|
27,000,000 |
|
Payoffs and paydowns of collateralized debt obligations |
|
|
(14,570,938 |
) |
|
|
(48,360,000 |
) |
Change in restricted cash |
|
|
26,614,127 |
|
|
|
(4,963,532 |
) |
Payments on swaps to hedge counterparties |
|
|
(46,420,588 |
) |
|
|
(79,770,000 |
) |
Receipts on swaps from hedge counterparties |
|
|
56,105,000 |
|
|
|
83,810,000 |
|
Distributions paid to noncontrolling interest |
|
|
(111,630 |
) |
|
|
(4,682,326 |
) |
Distributions paid on stock
|
|
|
(3,578 |
) |
|
|
(25,736,290 |
) |
Payment of deferred financing costs |
|
|
(2,990,926 |
) |
|
|
|
|
|
|
|
|
|
|
|
Net cash used in financing activities |
|
$ |
(99,142,454 |
) |
|
$ |
(59,656,346 |
) |
|
|
|
|
|
|
|
Net increase in cash and cash
equivalents |
|
$ |
28,685,426 |
|
|
$ |
23,975,797 |
|
Cash and cash equivalents at beginning of period |
|
|
832,041 |
|
|
|
22,219,541 |
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period |
|
$ |
29,517,467 |
|
|
$ |
46,195,338 |
|
|
|
|
|
|
|
|
5
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOW (Continued)
For the Six Months Ended June 30, 2009 and 2008
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30, |
|
|
|
2009 |
|
|
2008 |
|
Supplemental cash flow information: |
|
|
|
|
|
|
|
|
Cash used to pay interest |
|
$ |
32,868,099 |
|
|
$ |
60,253,699 |
|
|
|
|
|
|
|
|
Cash (received) used for taxes |
|
$ |
(78,943 |
) |
|
$ |
57,160 |
|
|
|
|
|
|
|
|
Supplemental schedule of non-cash financing activities: |
|
|
|
|
|
|
|
|
Investment in real estate,
net |
|
$ |
2,925,428 |
|
|
$ |
|
|
|
|
|
|
|
|
|
Margin calls applied to repurchase agreements |
|
$ |
4,845,810 |
|
|
$ |
|
|
|
|
|
|
|
|
|
Termination of
swaps |
|
$ |
17,034,929 |
|
|
$ |
|
|
|
|
|
|
|
|
|
Retirement of common equity in trust preferred securities |
|
$ |
7,726,385 |
|
|
$ |
|
|
|
|
|
|
|
|
|
Collateral on swaps to hedge counterparties |
|
$ |
|
|
|
$ |
3,500,000 |
|
|
|
|
|
|
|
|
Assumption of mortgage note
payable
|
|
$ |
|
|
|
$ |
41,440,000 |
|
|
|
|
|
|
|
|
Redemption of operating partnership units for common
stock |
|
$ |
|
|
|
$ |
67,306,291 |
|
|
|
|
|
|
|
|
Issuance of common stock for management incentive fee |
|
$ |
|
|
|
$ |
2,235,313 |
|
|
|
|
|
|
|
|
See notes to consolidated financial statements.
6
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Note 1 Description of Business/Form of Ownership
Arbor Realty Trust, Inc. (the Company) is a Maryland corporation that was formed in June
2003 to invest in a diversified portfolio of multi-family and commercial real estate related
assets, primarily consisting of bridge loans, mezzanine loans, junior participating interests in
first mortgage loans, and preferred and direct equity. The Company may also directly acquire real
property and invest in real estate-related notes and certain mortgage-related securities. The
Company conducts substantially all of its operations through its operating partnership, Arbor
Realty Limited Partnership (ARLP), and ARLPs wholly-owned subsidiaries. The Company is
externally managed and advised by Arbor Commercial Mortgage, LLC (ACM).
The Company is organized and conducts its operations to qualify as a real estate investment
trust (REIT) for federal income tax purposes. A REIT is generally not subject to federal income
tax on its REITtaxable income that it distributes to its stockholders, provided that it
distributes at least 90% of its REITtaxable income and meets certain other requirements. Certain
assets of the Company that produce non-qualifying income are owned by its taxable REIT
subsidiaries, the income of which is subject to federal and state income taxes.
The Companys charter provides for the issuance of up to 500 million shares of common stock,
par value $0.01 per share, and 100 million shares of preferred stock, par value $0.01 per share.
The Company was incorporated in June 2003 and was initially capitalized through the sale of 67
shares of common stock for $1,005.
On July 1, 2003, Arbor Commercial Mortgage, LLC (ACM) contributed $213.1 million of
structured finance assets and $169.2 million of borrowings supported by $43.9 million of equity in
exchange for a commensurate equity ownership in ARLP. In addition, certain employees of ACM were
transferred to ARLP. These assets, liabilities and employees represent a substantial portion of
ACMs structured finance business (the SF Business). The Company is externally managed and
advised by ACM and pays ACM a management fee in accordance with a management agreement. ACM also
sources originations, provides underwriting services and services all structured finance assets on
behalf of ARLP, and its wholly owned subsidiaries.
On July 1, 2003, the Company completed a private equity offering of 1,610,000 units (including
an overallotment option), each consisting of five shares of common stock and one warrant to
purchase one share of common stock at $75.00 per unit. The Company sold 8,050,000 shares of common
stock in the offering. Gross proceeds from the private equity offering totaled $120.2 million.
Gross proceeds from the private equity offering combined with the concurrent equity contribution by
ACM totaled approximately $164.1 million in equity capital. The Company paid and accrued offering
expenses of $10.1 million resulting in Arbor Realty Trust, Inc. stockholders equity and
noncontrolling interest of $154.0 million as a result of the private placement.
In April 2004, the Company sold 6,750,000 shares of its common stock in a public offering at a
price of $20.00 per share, for net proceeds of approximately $124.4 million after deducting the
underwriting discount and other estimated offering expenses. The Company used the proceeds to pay
down indebtedness. In May 2004, the underwriters exercised a portion of their over-allotment
option, which resulted in the issuance of 524,200 additional shares. The Company received net
proceeds of approximately $9.8 million after deducting the underwriting discount. In October 2004,
ARLP received proceeds of approximately $9.4 million from the exercise of warrants for 629,345
operating partnership units. Additionally, in 2004 and 2005, the Company issued 973,354 and
282,776 shares of common stock, respectively, from the exercise of warrants under its Warrant
Agreement dated July 1, 2003, the (Warrant Agreement) and received net proceeds of $12.9 million
and $4.2 million, respectively.
On March 2, 2007, the Company filed a shelf registration statement on Form S-3 with the SEC
under the Securities Act of 1933, as amended (the 1933 Act) with respect to an aggregate of
$500.0 million of debt securities, common stock, preferred stock, depositary shares and warrants,
that may be sold by the Company from time to time pursuant to Rule 415 of the 1933 Act. On April
19, 2007, the Commission declared this shelf registration statement effective.
In June 2007, the Company completed a public offering in which it sold 2,700,000 shares of its
common stock registered for $27.65 per share, and received net proceeds of approximately $73.6
million after deducting the
7
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
underwriting discount and the other estimated offering expenses. The
Company used the proceeds to pay down debt and finance its loan and investment portfolio. The underwriters did not exercise their over
allotment option for additional shares. At June 30, 2009, the Company had $425.3 million remaining
under the previously mentioned shelf registration.
In June 2008, the Companys external manager exercised its right to redeem its approximate 3.8
million operating partnership units in the Companys operating partnership for shares of the
Companys common stock on a one-for-one basis. In addition, the special voting preferred shares
paired with each operating partnership unit, pursuant to a pairing agreement, were redeemed
simultaneously and cancelled by the Company.
The Company had 25,387,410 shares of common stock outstanding at June 30, 2009 and 25,142,410
shares of common stock outstanding at December 31, 2008.
Note 2 Summary of Significant Accounting Policies
Basis of Presentation and Principles of Consolidation
The accompanying unaudited consolidated interim financial statements have been prepared in
accordance with accounting principles generally accepted in the United States for interim financial
statements and with the instructions to Form 10-Q and Rule 10-01 of Regulation S-X. Accordingly,
they do not include all of the information and footnotes required by accounting principles
generally accepted in the United States for complete financial statements, although management
believes that the disclosures presented herein are adequate to make the accompanying unaudited
consolidated interim financial statements presented not misleading.
The accompanying unaudited consolidated financial statements include the financial statements
of the Company, its wholly owned subsidiaries, and partnerships or other joint ventures which the
Company controls. Entities which the Company does not control and entities which are variable
interest entities in which the Company is not the primary beneficiary, are accounted for under the
equity method. In the opinion of management, all adjustments (consisting only of normal recurring
accruals) considered necessary for a fair presentation have been included. All significant
inter-company transactions and balances have been eliminated in consolidation. Certain prior year
amounts have been reclassified to conform to current period presentation. Upon adoption of SFAS
No. 160 Noncontrolling Interest in Consolidated Financial Statements an Amendment of ARB No.
51, noncontrolling interest in consolidated entity is classified in the Companys Consolidated
Balance Sheet in the Equity section of the current quarters presentation and was disclosed as a
separate mezzanine section in prior quarters presentation and net (loss) income is split out
between noncontrolling interest and Arbor Realty Trust, Inc. and was disclosed as one line in prior
quarters presentation.
The preparation of consolidated interim financial statements in conformity with Generally
Accepted Accounting Principals in the United States (GAAP) requires management to make estimates
and assumptions in determining the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the consolidated interim financial statements and
the reported amounts of revenue and expenses during the reporting period. Actual results could
differ from those estimates. Further, in connection with preparation of the consolidated interim
financial statements and in accordance with the recently issued Statement of Financial Accounting
Standards No. 165 Subsequent Events (SFAS 165), the Company evaluated subsequent events after
the balance sheet date of June 30, 2009 through August 7, 2009.
The results of operations for the six months ended June 30, 2009 are not necessarily
indicative of results that may be expected for the entire year ending December 31, 2009. The
accompanying unaudited consolidated interim financial statements should be read in conjunction with
the Companys audited consolidated annual financial statements and the related Managements
Discussion and Analysis of Financial Condition and Results of Operations included in the Companys
Annual Report on Form 10-K for the year ended December 31, 2008.
8
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Cash and Cash Equivalents
All highly liquid investments with original maturities of three months or less are considered
to be cash equivalents. The Company places its cash and cash equivalents in high quality financial
institutions. The consolidated account balances at each institution periodically exceeds FDIC
insurance coverage and the Company believes that this risk is not significant.
Restricted Cash
At June 30, 2009 and December 31, 2008, the Company had restricted cash of $66.6 million and
$93.2 million, respectively, most of which was on deposit with the trustees for the Companys
collateralized debt obligations (CDOs), see Note 8 Debt Obligations. Restricted cash
primarily represents proceeds from loan repayments which will be used to purchase replacement loans
as collateral for the CDOs and interest payments received from loans in the CDOs which are remitted
to the Company quarterly in the month following the quarter.
Loans and Investments
Statement of Financial Accounting Standards (SFAS) No. 115 Accounting for Certain
Investments in Debt and Equity Securities, (SFAS 115) requires that at the time of purchase, the
Company designate a security as held-to-maturity, available-for-sale, or trading depending on
ability and intent. The Company does not have any securities designated as trading at this time.
Securities available-for-sale are reported at fair value with the net unrealized gains or losses
reported as a component of accumulated other comprehensive loss, while securities and investments
held to maturity are reported at amortized cost. Unrealized losses that are determined to be
other-than-temporary are recognized in earnings in accordance with SFAS 115. The determination of
other-than-temporary impairment is a subjective process requiring judgments and assumptions. The
process may include, but is not limited to, assessment of recent market events and prospects for
near term recovery, assessment of cash flows, internal review of the underlying assets securing the
investments, credit of the issuer and the rating of the security, as well as the Companys ability
and intent to hold the investment. Management closely monitors market conditions on which it bases
such decisions.
In April 2009, the FASB issued FASB Staff Position No. FAS 115-2 and FAS 124-2 (FSP
FAS 115-2 and FAS 124-2), Recognition and Presentation of Other-Than-Temporary Impairments. FSP
FAS 115-2 and FAS 124-2 provides greater clarity about the credit and noncredit component of an
other-than-temporary impairment event and more effectively communicates when it has occurred. FSP
FAS 115-2 and FAS 124-2 requires the recording of a cumulative-effect adjustment as of the
beginning of the period of adoption to reclassify the noncredit component of a previously
recognized other-than-temporary impairment on debt securities from retained earnings to accumulated
other comprehensive income. The adoption of FSP FAS 115-2 and FAS 124-2 did not have a material
effect on the Companys Consolidated Financial Statements and no such reclassification was
necessary in the second quarter of 2009.
In April 2009, the Securities and Exchange Commissions (SEC) Office of the Chief Accountant
and Division of Corporation Finance issued SEC Staff Accounting Bulletin 111 (SAB 111). SAB 111
amends and replaces SAB Topic 5M, Miscellaneous AccountingOther Than Temporary Impairment of
Certain Investments in Equity Securities to reflect FSP FAS 115-2 and FAS 124-2. The amended SAB
Topic 5M maintains the prior staff views related to equity securities but has been amended to
exclude debt securities from its scope. SAB 111 became effective upon the adoption of FSP FAS
115-2 and FAS 124-2. The adoption of SAB 111 did not have a material effect on the Companys
Consolidated Financial Statements.
In accordance with Emerging Issues Task Force (EITF) 99-20, Recognition of Interest Income
and Impairment on Purchased and Retained Beneficial Interests in Securitized Financial Assets as
amended by FSP EITF 99-20-1 Amendments to the Impairment Guidance of EITF Issue No. 99-20 the
Company also assesses certain of its held-to-maturity securities, other than those of high credit
quality, to determine whether significant changes in estimated cash flows or unrealized losses on
these securities, if any, reflect a decline in value which is other-than-temporary and,
accordingly, written down to its fair value against earnings. On a quarterly basis, the
9
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Company
reviews these changes in estimated cash flows, which could occur due to actual prepayment and
credit loss experience, to determine if an other-than-temporary impairment is deemed to have
occurred. The determination of other-than-temporary impairment is a subjective process requiring
judgments and assumptions. The Company calculates a revised yield based on the current amortized cost of the investment, including
any other-than-temporary impairments recognized to date, and the revised yield is then applied
prospectively to recognize interest income.
In January 2009, the FASB issued FASB Staff Position No. EITF 99-20-1 (FSP EITF 99-20-1),
Amendments to the Impairment Guidance of EITF Issue No. 99-20. FSP EITF 99-20-1 amends the
impairment guidance in EITF Issue No. 99-20, Recognition of Interest Income and Impairment on
Purchased Beneficial Interests and Beneficial Interests That Continue to Be Held by a Transferor in
Securitized Financial Assets, to achieve a more consistent determination of whether an
other-than-temporary impairment has occurred. It also retains and emphasizes the objective of an
other-than-temporary impairment assessment and related disclosure in SFAS No. 115 Accounting for
Certain Investments in Debt and Equity Securities and requires judgment in assessing the
probability of collecting future cash flows. FSP EITF 99-20-1 is effective for interim and annual
reporting periods ending after December 15, 2008, and shall be applied prospectively. The adoption
of FSP EITF 99-20-1 did not have a material effect on the Companys Consolidated Financial
Statements.
Loans held for investment are intended to be held to maturity and, accordingly, are carried at
cost, net of unamortized loan origination costs and fees, loan purchase discounts, and net of the
allowance for loan losses when such loan or investment is deemed to be impaired. The Company
invests in preferred equity interests that, in some cases, allow the Company to participate in a
percentage of the underlying propertys cash flows from operations and proceeds from a sale or
refinancing. At the inception of each such investment, management must determine whether such
investment should be accounted for as a loan, joint venture or as real estate. To date, management
has determined that all such investments are properly accounted for and reported as loans.
Impaired Loans and Allowance for Loan Losses
The Company considers a loan impaired when, based upon current information and events, it is
probable that it will be unable to collect all amounts due for both principal and interest
according to the contractual terms of the loan agreement. Specific valuation allowances are
established for impaired loans based on the fair value of collateral on an individual loan basis.
The fair value of the collateral is determined by selecting the most appropriate valuation
methodology, or methodologies, among several generally available and accepted in the commercial
real estate industry. The determination of the most appropriate valuation methodology is based on
the key characteristics of the collateral type. These methodologies include the evaluation of
operating cash flow from the property during the projected holding period, and the estimated sales
value of the collateral computed by applying an expected capitalization rate to the stabilized net
operating income of the specific property, less selling costs, discounted at market discount rates.
If upon completion of the valuation, the fair value of the underlying collateral securing the
impaired loan is less than the net carrying value of the loan, an allowance is created with a
corresponding charge to the provision for loan losses. The allowance for each loan is maintained
at a level believed adequate by management to absorb probable losses. The Company had an allowance
for loan losses of $221.0 million relating to 22 loans with an aggregate carrying value, before
reserves, of approximately $605.7 million at June 30, 2009 and $130.5 million in allowance for loan
losses relating to ten loans with an aggregate carrying value, before reserves, of approximately
$443.2 million at December 31, 2008.
Revenue Recognition
Interest Income Interest income is recognized on the accrual basis as it is earned from
loans, investments, and securities. In many instances, the borrower pays an additional amount of
interest at the time the loan is closed, an origination fee, and deferred interest upon maturity.
In some cases interest income may also include the amortization or accretion of premiums and
discounts arising from the purchase or origination of the loan or security. This additional
income, net of any direct loan origination costs incurred, is deferred and accreted into interest
income on an effective yield or interest method adjusted for actual prepayment activity over the
life of the related
10
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
loan or security as a yield adjustment. Income recognition is suspended for
loans when in the opinion of management a full recovery of income and principal becomes doubtful.
Income recognition is resumed when the loan becomes contractually current and performance is
demonstrated to be resumed. Several of the loans provide for accrual of interest at specified
rates, which differ from current payment terms. Interest is recognized on such loans at the
accrual rate subject to managements determination that accrued interest and outstanding principal
are ultimately collectible, based on the underlying collateral and operations of the borrower. If
management cannot make this determination regarding collectibility, interest income above the
current pay rate is recognized only upon actual receipt. Additionally, interest income is recorded
when earned from equity participation interests, referred to as equity kickers. These equity
kickers have the potential to generate additional revenues to the Company as a result of excess
cash flows being distributed and/or as appreciated properties are sold or refinanced. The Company
did not record interest income on such investments for the three and six month periods ended June
30, 2009 as compared to $0.3 million for the six months ended June 30, 2008. No such income had
been recognized for the three months ended June 30, 2008. These amounts represent profits interest
received in accordance with the contractual agreement with the borrower.
Property operating income Property operating income represents operating income associated
with the operations of two commercial real estate properties recorded as real estate owned, net.
See Note 7 Real Estate Owned, Net for further details. For the three and six month periods
ended June 30, 2009, the Company recorded approximately $1.6 million and $3.1 million,
respectively, of property operating income relating to the Companys real estate owned. There was
no property operating income for the three and six months ended June 30, 2008.
Other income Other income represents fees received for loan structuring and defeasance fees,
and miscellaneous asset management fees associated with the Companys loans and investments
portfolio.
Income or Losses from Equity Affiliates
The Company invests in joint ventures that are formed to acquire, develop, and/or sell real
estate assets. These joint ventures are not majority owned or controlled by the Company, and are
not consolidated in its financial statements. These investments are recorded under either the
equity or cost method of accounting as appropriate. The Company records its share of the net
income and losses from the underlying properties and any other-than-temporary impairment on these
investments on a single line item in the Consolidated Statements of Operations as income or losses
from equity affiliates.
Stock Based Compensation
The Company records stock-based compensation expense at the grant date fair value of the
related stock-based award in accordance with SFAS No. 123R, Accounting for Stock-Based
Compensation (SFAS 123R). The Company measures the compensation costs for these shares as of
the date of the grant, with subsequent remeasurement for any unvested shares granted to
non-employees of the Company with such amounts expensed against earnings, at the grant date (for
the portion that vest immediately) or ratably over the respective vesting periods. The cost of
these grants is amortized over the vesting term using an accelerated method in accordance with
Financial Accounting Standards Board (FASB) Interpretation No. 28 Accounting for Stock
Appreciation Rights and Other Variable Stock Options or Award Plans (FIN 28), and SFAS 123R.
Dividends are paid on the restricted shares as dividends are paid on shares of the Companys common
stock whether or not they are vested. Stock based compensation was disclosed in the Companys
Consolidated Statements of Operations under employee compensation and benefits for employees and
under selling and administrative expense for non-employees.
Income Taxes
The Company is organized and conducts its operations to qualify as a REIT for federal income
tax purposes. A REIT is generally not subject to federal income tax on its REITtaxable income
that it distributes to its stockholders, provided that it distributes at least 90% of its
REITtaxable income and meets certain other requirements. Certain assets of the Company that
produce non-qualifying income are owned by its taxable REIT subsidiaries, the income of which are
subject to federal and state income taxes. The Company did not record a
11
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
provision for income taxes
related to the assets that are held in taxable REIT subsidiaries for the three and six months ended
June 30, 2009 and 2008. The Companys accounting policy with respect to interest and penalties
related to tax uncertainties is to classify these amounts as provision for income taxes. The
Company has not recognized any interest and penalties related to tax uncertainties for the three
and six months ended June 30, 2009 and 2008.
In July 2006, the FASB issued Interpretation No. 48, Accounting for Uncertainty in Income
Taxes an interpretation of FASB Statement No. 109 (FIN 48). This interpretation clarifies the
accounting for uncertainty in income taxes recognized in an enterprises financial statements in
accordance with FAS 109 Accounting for Income Taxes. This interpretation prescribes a recognition
threshold and measurement attribute for the financial statement recognition and measurement of a
tax position taken or expected to be taken in a tax return. FIN 48 also provides guidance on
derecognition, classification, interest and penalties, accounting in interim periods, disclosure,
and transition. This interpretation was effective January 1, 2007.
Other Comprehensive Income / (Loss)
SFAS No. 130 Reporting Comprehensive Income, divides comprehensive income or loss into net
income (loss) and other comprehensive income (loss), which includes unrealized gains and losses on
available for sale securities. In addition, to the extent the Companys derivative instruments
qualify as hedges under SFAS No. 133, Accounting for Derivative Instruments and Hedging
Activities, net unrealized gains or losses are reported as a component of accumulated other
comprehensive income/(loss), see Derivatives and Hedging Activities below. At June 30, 2009 and
December 31, 2008, accumulated other comprehensive loss was $57.2 million and $96.6 million,
respectively, and consisted of net unrealized losses on derivatives designated as cash flow hedges.
Derivatives and Hedging Activities
The Company accounts for derivative financial instruments in accordance with SFAS No. 133,
Accounting for Derivative Instruments and Hedging Activities (SFAS 133), as amended by SFAS
No. 138, Accounting for Certain Derivative Instruments and Certain Hedging Activities (SFAS
138). SFAS 133, as amended by SFAS 138, requires an entity to recognize all derivatives as either
assets or liabilities in the consolidated balance sheets and to measure those instruments at fair
value. Additionally, the fair value adjustments will affect either accumulated other comprehensive
loss in Arbor Realty Trust, Inc. Stockholders Equity until the hedged item is recognized in
earnings or net income depending on whether the derivative instrument qualifies as a hedge for
accounting purposes and, if so, the nature of the hedging activity. The Company relies on
quotations from a third party to determine these fair values.
As required by SFAS 133, the Company records all derivatives on the balance sheet at fair
value. The accounting for changes in the fair value of derivatives depends on the intended use of
the derivative, whether a company has elected to designate a derivative in a hedging relationship
and apply hedge accounting and whether the hedging relationship has satisfied the criteria
necessary to apply hedge accounting. Derivatives designated and qualifying as a hedge of the
exposure to changes in the fair value of an asset, liability, or firm commitment attributable to a
particular risk, such as interest rate risk, are considered fair value hedges. Derivatives
designated and qualifying as a hedge of the exposure to variability in expected future cash flows,
or other types of forecasted transactions, are considered cash flow hedges. Hedge accounting
generally provides for the matching of the timing of gain or loss recognition on the hedging
instrument with the recognition of the changes in the fair value of the hedged asset or liability
that are attributable to the hedged risk in a fair value hedge or the earnings effect of the hedged
forecasted transactions in a cash flow hedge. The Company may enter into derivative contracts that
are intended to economically hedge certain of its risk, even though hedge accounting does not apply
or the Company elects not to apply hedge accounting under SFAS 133.
SFAS No. 161, Disclosures about Derivative Instruments and Hedging Activities, an amendment
of SFAS No. 133 (SFAS 161), amends and expands the disclosure requirements of SFAS 133 with the
intent to provide users of financial statements with an enhanced understanding of: (a) how and why
an entity uses derivative instruments, (b) how derivative instruments and related hedged items are
accounted for under SFAS 133 and its
12
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
related interpretations, and (c) how derivative instruments
and related hedged items affect an entitys financial position, financial performance, and cash
flows. SFAS 161 requires qualitative disclosures about objectives and strategies for using
derivatives, quantitative disclosures about the fair value of and gains and losses on derivative
instruments, and disclosures about credit-risk-related contingent features in derivative
instruments.
In the normal course of business, the Company may use a variety of derivative financial
instruments to manage, or hedge, interest rate risk. These derivative financial instruments must
be effective in reducing its interest rate risk exposure in order to qualify for hedge accounting.
When the terms of an underlying transaction are modified, or when the underlying hedged item ceases to exist, all changes in the fair value of
the instrument are marked-to-market with changes in value included in net income for each period
until the derivative instrument matures or is settled. Any derivative instrument used for risk
management that does not meet the hedging criteria is marked-to-market with the changes in value
included in net income. Derivatives are used for hedging purposes rather than speculation. See
Note 9 Derivative Financial Instruments for further details.
Variable Interest Entities
FASB issued Interpretation No. 46(R), Consolidation of Variable Interest Entities (FIN
46), which requires a variable interest entity (VIE) to be consolidated by its primary
beneficiary (PB). The PB is the party that absorbs a majority of the VIEs anticipated losses
and/or a majority of the expected returns.
The Company has evaluated its loans and investments and investments in equity affiliates to
determine whether they are VIEs. This evaluation resulted in the Company determining that its
bridge loans, junior participation loans, mezzanine loans, preferred equity investments and
investments in equity affiliates were potential variable interests. For each of these investments,
the Company has evaluated (1) the sufficiency of the fair value of the entities equity investments
at risk to absorb losses, (2) that as a group the holders of the equity investments at risk have
(a) the direct or indirect ability through voting rights to make decisions about the entities
significant activities, (b) the obligation to absorb the expected losses of the entity and their
obligations are not protected directly or indirectly, (c) the right to receive the expected
residual return of the entity and their rights are not capped, (3) substantially all of the
entities activities do not involve or are not conducted on behalf of an investor that has
disproportionately fewer voting rights in terms of its obligation to absorb the expected losses or
its right to receive expected residual returns of the entity, or both. In addition, the Company
has evaluated its investments in collateralized debt obligation securities and has determined that
the issuing entities are considered VIEs under the provisions of FIN 46, but has determined that
the Company is not the primary beneficiary. As of June 30, 2009, the Company has identified 40
loans and investments which were made to entities determined to be VIEs with an aggregate carrying
amount of $864.5 million. These VIE entities had exposure to real estate debt of approximately
$3.4 billion at June 30, 2009.
For the 40 VIEs identified, the Company has determined that it is not the primary beneficiary,
and as such the VIEs should not be consolidated in the Companys financial statements. The
Companys maximum exposure to loss would not exceed the carrying amount of such investments. For
all other investments, the Company has determined they are not VIEs. As such, the Company has
continued to account for these loans and investments as a loan or investment, as appropriate.
Entities that issue junior subordinated notes are considered VIEs. However, it is not
appropriate to consolidate these entities under the provisions of FIN 46 as equity interests are
variable interests only to the extent that the investment is considered to be at risk. Since the
Companys investments were funded by the entities that issued the junior subordinated notes, they
are not considered to be at risk.
Recently Issued Accounting Pronouncements
SFAS No. 168 In July 2009, the FASB issued Statement of Financial Accounting
Standards No. 168 (SFAS 168), The FASB Accounting Standards Codification and the Hierarchy of
Generally Accepted Accounting Principles a replacement of FASB Statement No. 162. SFAS 168
replaces SFAS No. 162 The Hierarchy of Generally Accepted Accounting Principles by establishing
the FASB Accounting Standards
13
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Codification as the source of authoritative accounting principles
recognized by the FASB to be applied to nongovernmental entities in the preparation of financial
statements in conformity with GAAP. Rules and interpretive releases of the Securities and Exchange
Commission under authority of federal securities laws are also sources of authoritative GAAP for
SEC registrants. Accounting Standards Updates will serve to update the Codification. SFAS 168 is
effective for reporting periods that end on or after September 15, 2009. The adoption of SFAS 168
is not expected to have a material effect on the Companys Consolidated Financial Statements.
SFAS No. 167 In June 2009, the FASB issued Statement of Financial Accounting
Standards No. 167 (SFAS 167), Amendments to FASB Interpretation No. 46(R). SFAS 167 amends FIN
No. 46(R) Consolidation of Variable Interest Entities an interpretation of ARB No. 51 by
prescribing an ongoing qualitative rather than quantitative assessment of the Companys ability to direct the activities of a variable
interest entity that most significantly impact the entitys economic performance and the Companys
rights or obligations to receive benefits or absorb losses in order to determine whether those
entities will be required to be consolidated in the Companys Consolidated Financial Statements.
SFAS 167 is effective for fiscal years beginning after November 15, 2009. The Company is currently
evaluating the potential effect of adopting SFAS 167 on the Companys Consolidated Financial
Statements.
SFAS No. 166 In June 2009, the FASB issued Statement of Financial Accounting
Standards No. 166 (SFAS 166), Accounting for Transfers of Financial Assets an amendment of
Statement No. 140. SFAS 166 amends the de-recognition guidance in FASB Statement No. 140
Accounting for Transfers and Servicing of Financial Assets and Extinguishment of Liabilities a
replacement of FASB Statement No. 125, eliminating the exemption from consolidation for
qualifying special-purpose entities, and requires more disclosure about the transfer and the
transfers continuing involvement in the assets. SFAS 166 is effective for fiscal years beginning
after November 15, 2009. The adoption of SFAS 166 is not expected to have a material effect on the
Companys Consolidated Financial Statements.
SFAS No. 165 In May 2009, the FASB issued Statement of Financial Accounting
Standards No. 165 (SFAS 165), Subsequent Events. SFAS 165 establishes general standards of
accounting and disclosure for events that occur after the balance sheet date but before financial
statements are available to be issued, including disclosure of the date through which subsequent
events have been evaluated and whether the date corresponds with the release of the financial
statements. SFAS 165 is effective for interim and annual periods ending after June 15, 2009. The
adoption of SFAS 165 did not have a material effect on the Companys Consolidated Financial
Statements.
FSP FAS 141(R)-1 In April 2009, the FASB issued FASB Staff Position No. FAS 141(R)-1
(FSP FAS 141(R)-1), Accounting for Assets Acquired and Liabilities Assumed in a Business
Combination That Arise from Contingencies. FSP FAS 141(R)-1 provides guidance on accounting for
business combinations. It addresses issues raised by preparers, auditors, and members of the legal
profession on initial recognition and measurement, subsequent measurement and accounting, and
disclosure of assets and liabilities arising from contingencies in a business combination. FSP FAS
141(R)-1 applies to all assets or liabilities arising from contingencies in business combinations
for which the acquisition date is on or after the beginning of the first annual reporting period
beginning on or after December 15, 2008. The adoption of FSP FAS 141(R)-1 did not have a material
effect on the Companys Consolidated Financial Statements.
FSP FAS 157-4 In April 2009, the FASB issued FASB Staff Position No. FSP 157-4 (FSP
FAS 157-4), Determining Fair Value When the Volume and Level of Activity for the Asset or
Liability Have Significantly Decreased and Identifying Transactions That Are Not Orderly. FSP FAS
157-4 provides additional guidance on determining whether a market for a financial asset is not
active and a transaction is not distressed for fair value measurement under SFAS 157, Fair Value
Measurement. FSP FAS 157-4 applies to all fair value measurements prospectively and is effective
for interim and annual periods ending after June 15, 2009. The adoption of FSP FAS 157-4 did not
have a material effect on the Companys Consolidated Financial Statements.
14
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Note 3 Loans and Investments
The following table sets forth the composition of the Companys loan and investment portfolio
at the dates indicated.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At June 30, 2009 |
|
|
At December 31, 2008 |
|
|
|
June 30, |
|
|
Percent |
|
|
December 31, |
|
|
Percent |
|
|
Loan |
|
|
Wtd. Avg. |
|
|
Loan |
|
|
Wtd. Avg. |
|
|
|
2009 |
|
|
of Total |
|
|
2008 |
|
|
of Total |
|
|
Count |
|
|
Pay Rate |
|
|
Count |
|
|
Pay Rate |
|
|
|
(Unaudited) |
|
|
|
|
|
|
|
|
|
|
(Unaudited) |
|
|
|
|
|
|
|
|
|
Bridge loans |
|
$ |
1,318,849,841 |
|
|
|
61 |
% |
|
$ |
1,441,846,251 |
|
|
|
62 |
% |
|
|
58 |
|
|
|
5.52 |
% |
|
|
58 |
|
|
|
6.22 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mezzanine loans |
|
|
343,430,781 |
|
|
|
16 |
% |
|
|
364,937,818 |
|
|
|
16 |
% |
|
|
37 |
|
|
|
5.82 |
% |
|
|
42 |
|
|
|
7.03 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Junior participation
loans |
|
|
298,227,590 |
|
|
|
14 |
% |
|
|
298,278,363 |
|
|
|
13 |
% |
|
|
16 |
|
|
|
4.79 |
% |
|
|
16 |
|
|
|
6.60 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred equity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Investments |
|
|
195,407,490 |
|
|
|
9 |
% |
|
|
205,247,126 |
|
|
|
9 |
% |
|
|
18 |
|
|
|
2.87 |
% |
|
|
18 |
|
|
|
4.05 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other |
|
|
|
|
|
|
|
|
12,418,110 |
|
|
nm |
|
|
|
|
|
|
|
|
|
|
2 |
|
|
|
8.73 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,155,915,702 |
|
|
|
100 |
% |
|
|
2,322,727,668 |
|
|
|
100 |
% |
|
|
129 |
|
|
|
5.23 |
% |
|
|
136 |
|
|
|
6.22 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unearned revenue |
|
|
(9,226,332 |
) |
|
|
|
|
|
|
(10,544,049 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allowance for
loan losses |
|
|
(221,000,000 |
) |
|
|
|
|
|
|
(130,500,000 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loans and
investments, net |
|
$ |
1,925,689,370 |
|
|
|
|
|
|
$ |
2,181,683,619 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Concentration of Borrower Risk
The Company is subject to concentration risk in that, as of June 30, 2009, the unpaid
principal balance related to 31 loans with five unrelated borrowers represented approximately 29%
of total assets. At December 31, 2008 the unpaid principal balance related to 34 loans with five
unrelated borrowers represented approximately 28% of total assets. As of June 30, 2009 and
December 31, 2008, the Company had 129 and 136 loans and investments, respectively. As of June 30,
2009, 37.7%, 13.1%, and 10.6% of the outstanding balance of the Companys loans and investments
portfolio had underlying properties in New York, California, and Florida, respectively. As of
December 31, 2008, 39.8%, 12.1%, and 9.8% of the outstanding balance of the Companys loans and
investments portfolio had underlying properties in New York, California, and Florida, respectively.
Impaired Loans and Allowance for Loan Losses
The Company considers a loan impaired when, based upon current information and events, it is
probable that it will be unable to collect all amounts due for both principal and interest
according to the contractual terms of the loan agreement. As a result of the Companys normal
quarterly loan review at June 30, 2009, it was determined that 22 loans with an aggregate carrying
value, before reserves, of $605.7 million were impaired. The $605.7 million of impaired loans
included five loans which were modified during the second quarter 2009 with an aggregate carrying
value of $117.5 million, reserves of $25.0 million and
unfunded loan commitments of $1.6 million as
of June 30, 2009. At December 31, 2008, it was determined that ten loans with an aggregate
carrying value, before reserves, of $443.2 million were impaired.
The Company performed an evaluation of the loans and determined that the fair value of the
underlying collateral securing the impaired loans was less than the net carrying value of the
loans, resulting in the Company recording a $23.0 million and $90.5 million provision for loan
losses for the three and six months ended June 30, 2009, respectively. Of the $23.0 million of
loan loss reserves recorded during the three months ended June 30, 2009, $19.2 million was on loans
that previously had reserves while $3.8 million of reserves related to other loans in
15
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
the Companys
portfolio. Of the $90.5 million of loan loss reserves recorded during the six months ended June
30, 2009, $29.7 million was on loans that previously had reserves while $60.8 million of reserves
related to other loans in the Companys portfolio. The Company recorded a $2.0 million and $5.0
million provision for loan losses for the three and six months ended June 30, 2008, respectively.
A summary of the changes in the allowance for loan losses is as follows:
|
|
|
|
|
|
|
For the Six |
|
|
|
Months Ended |
|
|
|
June 30, 2009 |
|
Allowance at beginning of the period |
|
$ |
130,500,000 |
|
Provision for loan losses |
|
|
90,500,000 |
|
Charge-offs |
|
|
|
|
|
|
|
|
Allowance at end of the period |
|
$ |
221,000,000 |
|
|
|
|
|
As of June 30, 2009, nine loans with a net carrying value of approximately $188.4
million, net of related loan loss reserves of $97.2 million, were classified as non-performing.
Income is recognized on a cash basis only to the extent it is received. Full income recognition
will resume when the loan becomes contractually current and performance has recommenced. As of
December 31, 2008, four loans with a net carrying value of approximately $113.0 million, net of
related loan loss reserves of $20.5 million, were classified as non-performing for which income
recognition had been suspended.
During the quarter ended June 30, 2009, the Company sold a bridge loan with a carrying value
of $47.0 million, at a discount, for approximately $23.2 million and recorded a loss on
restructuring of $23.8 million. In connection with this transaction, the Company used the proceeds
to settle a $37.0 million repurchase facility in which this asset was financed for a cash payment
of approximately $22.0 million, resulting in a gain on extinguishment of debt of approximately
$15.0 million. See Note 8 Debt Obligations for further information relating to this
transaction.
During the quarter ended March 31, 2009, the Company received $11.8 million in principal
paydowns on two loans with a carrying value of $22.9 million and recorded a loss on the
restructuring of these loans of approximately $9.0 million.
Note 4 Available-For-Sale Securities
The following is a summary of the Companys available-for-sale securities at June 30, 2009.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other-Than- |
|
|
|
|
|
|
|
|
|
Carrying |
|
|
Temporary |
|
|
Unrealized |
|
|
Estimated |
|
|
|
Value |
|
|
Impairment |
|
|
Loss |
|
|
Fair Value |
|
Common equity securities |
|
$ |
529,104 |
|
|
$ |
(382,131 |
) |
|
$ |
|
|
|
$ |
146,973 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total available-for-sale securities |
|
$ |
529,104 |
|
|
$ |
(382,131 |
) |
|
$ |
|
|
|
$ |
146,973 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
The following is a summary of the Companys available-for-sale securities at December 31,
2008.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other-Than- |
|
|
|
|
|
|
|
|
|
Carrying |
|
|
Temporary |
|
|
Unrealized |
|
|
Estimated |
|
|
|
Value |
|
|
Impairment |
|
|
Loss |
|
|
Fair Value |
|
Common equity securities |
|
$ |
16,715,584 |
|
|
$ |
(16,186,480 |
) |
|
$ |
|
|
|
$ |
529,104 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total available-for-sale securities |
|
$ |
16,715,584 |
|
|
$ |
(16,186,480 |
) |
|
$ |
|
|
|
$ |
529,104 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
During 2007, the Company purchased 2,939,465 shares of common stock of Realty Finance
Corporation, formerly CBRE Realty Finance, Inc., a commercial real estate specialty finance
company, for $16.7 million, which had a fair value of $0.1 million at June 30, 2009 and a fair
value of $0.5 million at December 31, 2008. In 2008, the Company concluded that these securities
were other-than-temporarily impaired under GAAP and recorded $16.2 million of impairment charges to
the Consolidated Statements of Operations.
As of June 30, 2009, these securities have been in an unrealized loss position for more than
twelve months. GAAP requires that these securities are evaluated periodically to determine whether
a decline in their value is other-than-temporary, though it is not intended to indicate a permanent
decline in value. Management closely monitors market conditions on which it bases such decisions.
At June 30, 2009, the Company believed that based on market events and the unfavorable prospects
for near term recovery of value, that there was a lack of evidence to support the conclusion that
the fair value decline was temporary. Therefore, at June 30, 2009, the Company concluded that
these securities were other-than-temporarily impaired under GAAP and recorded a $0.4 million
impairment charge to the Consolidated Statements of Operations.
These securities are carried at their estimated fair value with unrealized gains and losses
reported in accumulated other comprehensive loss. At June 30, 2009 and December 31, 2008, all
losses in fair value to date were recorded as other-than-temporary impairments, and therefore have
been recognized in earnings.
Note 5 Securities Held-To-Maturity
The following is a summary of the Companys securities held-to-maturity at June 30, 2009.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other-Than- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Face |
|
|
Amortized |
|
|
Temporary |
|
|
Carrying |
|
|
Unrealized |
|
|
Unrealized |
|
|
Estimated |
|
|
|
Value |
|
|
Cost |
|
|
Impairment (1) |
|
|
Value |
|
|
Gain |
|
|
Loss |
|
|
Fair
Value (2) |
|
Collateralized debt
obligation bonds |
|
$ |
81,322,431 |
|
|
$ |
59,466,017 |
|
|
$ |
(1,387,500 |
) |
|
$ |
58,078,517 |
|
|
$ |
100,000 |
|
|
$ |
(42,043,517 |
) |
|
$ |
16,135,000 |
|
Commercial
mortgage-backed
securities |
|
$ |
15,000,000 |
|
|
$ |
10,805,569 |
|
|
$ |
|
|
|
$ |
10,805,569 |
|
|
$ |
3,627,401 |
|
|
$ |
|
|
|
$ |
14,432,970 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total securities
held-to-maturity |
|
$ |
96,322,431 |
|
|
$ |
70,271,586 |
|
|
$ |
(1,387,500 |
) |
|
$ |
68,884,086 |
|
|
$ |
3,727,401 |
|
|
$ |
(42,043,517 |
) |
|
$ |
30,567,970 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Cumulative total. |
|
|
(2) |
|
The aggregate estimated fair value of the five collateralized
debt obligation bonds in an unrealized loss position at June 30, 2009
was $16,035,000. |
17
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
The following is a summary of the Companys securities held-to-maturity at December 31,
2008.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other-Than- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Face |
|
|
Amortized |
|
|
Temporary |
|
|
Carrying |
|
|
Unrealized |
|
|
Unrealized |
|
|
Estimated |
|
|
|
Value |
|
|
Cost |
|
|
Impairment |
|
|
Value |
|
|
Gain |
|
|
Loss |
|
|
Fair
Value (1) |
|
Collateralized debt
obligation
bonds |
|
$ |
82,700,000 |
|
|
$ |
59,631,848 |
|
|
$ |
(1,387,500 |
) |
|
$ |
58,244,348 |
|
|
$ |
175,000 |
|
|
$ |
(39,684,348 |
) |
|
$ |
18,735,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total securities
held-to-maturity |
|
$ |
82,700,000 |
|
|
$ |
59,631,848 |
|
|
$ |
(1,387,500 |
) |
|
$ |
58,244,348 |
|
|
$ |
175,000 |
|
|
$ |
(39,684,348 |
) |
|
$ |
18,735,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The aggregate estimated fair value of the five collateralized
debt obligation bonds in an unrealized loss position at December 31,
2008 was $18,560,000. |
The following is a summary of the underlying credit rating of the Companys securities
held-to-maturity at June 30, 2009 and December 31, 2008.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At June 30, 2009 |
|
|
At December 31, 2008 |
|
|
|
|
|
|
|
Amortized |
|
|
Percent |
|
|
|
|
|
|
Amortized |
|
|
Percent |
|
Rating (2) |
|
# |
|
|
Cost |
|
|
of Total |
|
|
# |
|
|
Cost |
|
|
of Total |
|
AAA |
|
|
5 |
|
|
$ |
51,264,373 |
|
|
|
73 |
% |
|
|
3 |
|
|
$ |
41,097,282 |
|
|
|
69 |
% |
AA+ |
|
|
1 |
|
|
|
7,781,503 |
|
|
|
11 |
% |
|
|
1 |
|
|
|
7,659,013 |
|
|
|
13 |
% |
AA- |
|
|
1 |
|
|
|
9,838,210 |
|
|
|
14 |
% |
|
|
1 |
|
|
|
9,488,053 |
|
|
|
16 |
% |
BB+ |
|
|
1 |
|
|
|
1,387,500 |
|
|
|
2 |
% |
|
|
1 |
|
|
|
1,387,500 |
|
|
|
2 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8 |
|
|
$ |
70,271,586 |
|
|
|
100 |
% |
|
|
6 |
|
|
$ |
59,631,848 |
|
|
|
100 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2) |
|
Based on the rating published by Standard & Poors for each security. |
During the second quarter of 2009, the Company purchased $15.0 million of investment
grade commercial mortgage-backed securities (CMBS) for $10.7 million plus accrued interest,
representing a $4.3 million discount to their face value. This discount is accreted into interest
income on an effective yield adjusted for actual prepayment activity over the average life of the
related security as a yield adjustment. For the three months ended June 30, 2009, the Company
accreted approximately $0.1 million of this discount into interest income. These securities bear
interest at a weighted average coupon rate of 5.79%, have a weighted average stated maturity of
30.2 years but have an estimated average remaining life of 5.2 years due to the maturities of the
underlying assets.
During the second quarter of 2008, the Company purchased $82.7 million of investment grade
commercial real estate (CRE) collateralized debt obligation bonds for $58.1 million, representing
a $24.6 million discount to their face value. This discount is accreted into interest income on an
effective yield adjusted for actual prepayment activity over the average life of the related
security as a yield adjustment. For the three and six months ended June 30, 2009, the Company
accreted approximately $0.6 million and $1.2 million, respectively, of this discount into interest
income, representing accretion on approximately $21.0 million of the total discount. These
securities bear interest at a weighted average spread of 40 basis points over LIBOR, have a
weighted average stated maturity of 37.2 years but have an estimated average remaining life of 5.3
years due to the maturities of the underlying assets. During the three and six months ended June
30, 2009, the Company received repayments of principal of $0.4 million and $1.4 million,
respectively on one of the Companys CDO bond securities held-to-maturity.
For the three and six months ended June 30, 2009, the average yield on the Companys
held-to-maturity securities based on their face values was 4.93% and 4.66%, respectively, including
the accretion of discount. For the three months ended June 30, 2008, the average yield on the
Companys CDO bond securities held-to-maturity based on their face values was 7.52%, including the
accretion of discount.
Securities held to maturity are carried at cost, net of unamortized premiums and discounts,
which are recognized in interest income using an effective yield or interest method. GAAP
accounting standards require that
18
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
held to maturity securities are evaluated periodically to
determine whether a decline in their value is other-than-temporary, though it is not intended to
indicate a permanent decline in value. The Companys evaluation is based on its assessment of cash flows which is
supplemented by third-party research reports, internal
review of the underlying assets securing the investments, levels of subordination and the ratings
of the securities and the underlying collateral. In addition, as of June 30, 2009, the Company does
not intend to sell these investments, nor does the Company believe it is more likely than not that
the Company will be required to sell the investments before recovery of their amortized cost bases,
which may be at maturity. As of June 30, 2009, the Companys CDO bond investments were in an
unrealized loss position for more than twelve months, as the Companys carrying value was in excess
of their market value. However, based on its analysis as of June 30, 2009, the Company expects to
fully recover the carrying value of these investments and has concluded that with exception of one
$1.4 million bond, these investments are not other-than-temporarily impaired. During the fourth
quarter of 2008, the Company determined that one BB+ rated CDO bond, with an amortized cost of
approximately $1.4 million, was other-than-temporarily impaired, resulting in a $1.4 million
impairment charge to the Companys financial statements. In addition, the Companys CMBS
investments were not in an unrealized loss position for more than twelve months and were not
determined to be other-than-temporarily impaired. The Companys estimation of cash flows expected to be generated
by the securities portfolio is based upon an internal review of the
underlying mortgage loans securing the investments both on an
absolute basis and compared to the Companys initial
underwriting for each investment. The Companys efforts are
supplemented by third party research reports, third party market
assessments and dialogue with market participants. As of June 30,
2009 the Company does not intend to sell the securities, nor does the
Company believe it is more likely than not that the Company will be
required to sell the securities before recovery of the amortized cost
bases, which may be at maturity. This combined with the
Companys assessment of cash flows, is the basis for the
conclusion that these investments are not impaired despite the
differences between estimated fair value and book value. The
Company attributes the difference between book value and estimated
fair value to the current market dislocation and a general negative bias against structured financial products such as
CMBS and CDOs.
In 2008, the Company entered into a repurchase agreement with a financial institution for the
purpose of financing a portion of the Companys CDO bond securities. During the six months ended
June 30, 2009, the Company paid down approximately $1.3 million of this facility as a result of a
decrease in values associated with a change in market interest rate spreads. At June 30, 2009 and
December 31, 2008, current borrowings totaled approximately $1.6 million and $8.2 million,
respectively.
Note 6 Investment in Equity Affiliates
The following is a summary of the Companys investment in equity affiliates at June 30, 2009
and December 31, 2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding |
|
|
|
|
|
|
|
|
|
|
|
Loan Balance |
|
|
|
|
|
|
|
|
|
|
|
to Equity |
|
|
|
Investment in Equity Affiliates at |
|
|
Affiliates at |
|
|
|
June 30, |
|
|
December 31, |
|
|
June 30, |
|
Equity Affiliates |
|
2009 |
|
|
2008 |
|
|
2009 |
|
930 Flushing & 80
Evergreen |
|
$ |
491,975 |
|
|
$ |
491,975 |
|
|
$ |
24,515,849 |
|
450 West 33rd
Street |
|
|
1,136,960 |
|
|
|
1,136,960 |
|
|
|
50,000,000 |
|
1107 Broadway |
|
|
5,720,000 |
|
|
|
5,720,000 |
|
|
|
|
|
Alpine Meadows |
|
|
|
|
|
|
10,157,018 |
|
|
|
30,500,000 |
|
St. Johns
Development |
|
|
2,348,783 |
|
|
|
3,500,000 |
|
|
|
25,000,000 |
|
Lightstone Value Plus REIT
L.P |
|
|
55,988,411 |
|
|
|
|
|
|
|
|
|
Issuers of Junior
Subordinated Notes |
|
|
578,615 |
|
|
|
8,305,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
66,264,744 |
|
|
$ |
29,310,953 |
|
|
$ |
130,015,849 |
|
|
|
|
|
|
|
|
|
|
|
The Company accounts for the 450 West 33rd Street and Lightstone Value Plus
REIT L.P. investments under the cost method of accounting and the remaining investments under the
equity method in accordance with Accounting Principles Board (APB) Opinion No. 18, The Equity
Method of Accounting for Investments in Common Stock.
19
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Alpine Meadows
In July 2007, the Company invested $13.2 million in exchange for a 39% profits interest with
an 18% preferred return in the Alpine Meadows ski resort, which consists of approximately 2,163
total acres in northwestern Lake Tahoe, California. The Companys invested capital represents 65%
of the total equity of the transaction and the Company will be allocated 65% of the losses. The Company also provided a $30.5 million
first mortgage loan that matures in August 2009 and bears interest at pricing over one month LIBOR.
The outstanding balance on this loan was $30.5 million at June 30, 2009. For the three and six
months ended June 30, 2009, the Company recorded a loss of $0.9 million and income of $1.6 million,
respectively from this equity investment. This amount reflects Arbors portion of the joint
ventures income, net of depreciation expense, and was recorded in income from equity affiliates
and as an increase to the Companys investment in equity affiliates on the balance sheet. In the
second quarter of 2009, the Company recorded an other-than-temporary impairment of $11.7 million
for the remaining amount of this investment in loss from equity affiliates in the Companys
Consolidated Statements of Operations. APB 18 requires that these investments are evaluated
periodically to determine whether a decline in their value is other-than-temporary, though it is
not intended to indicate a permanent decline in value.
St. Johns Development
In December 2006, the Company originated a $25.0 million bridge loan with a maturity date in
September 2007 with two, three month extensions that bore interest at a fixed rate of 12%. The
loan is secured by 20.5 acres of usable land and 2.3 acres of submerged land located on the banks
of the St. Johns River in downtown Jacksonville, Florida and is currently zoned for the
development of up to 60 dwellings per acre. In October 2007, the borrower sold the property to an
investor group, in which the Company has a 50% non-controlling interest, for $25.0 million, and
assumed the $25.0 million mortgage with a new maturity date of October 2009, and a change in the
interest rate to LIBOR plus 6.48%. The Company also contributed $0.5 million to cover other
operational costs of acquiring and maintaining the property.
The managing member of the investor group is an experienced real estate developer who retains
a 50% interest in the partnership and funded a $2.9 million interest reserve for the first year.
The Company was required to contribute $2.9 million to fund the interest reserve for the second
year and made an additional capital contribution of $0.1 million during 2008. Interest received on
the $25.0 million loan will be recorded as a return of capital and reduction of the Companys
equity investment. For the three and six months ended June 30, 2009, the Company recorded $0.5
million and $1.2 million, respectively of such interest, and as a result, has a $2.3 million
investment as of June 30, 2009. The Company retains a non-controlling 50% equity interest in the
property and accounts for this investment under the equity method. No income from this equity
interest has been recognized for the three and six months ended June 30, 2009 and 2008.
Lightstone Value Plus REIT L.P. / Prime Outlets
In December 2003, the Company invested approximately $2.1 million in exchange for a 50%
non-controlling interest in Prime Outlets Member, LLC (POM), which owns 15% of a real estate
holding company that owns and operates a portfolio of factory outlet shopping centers. The Company
accounts for this investment under the equity method. Additionally, the Company owned a 16.67%
carried profits interest through a consolidated entity which had a 25% interest in POM with a third
party member owning the remaining 8.33%.
In June 2008, the Company entered into an agreement (the agreement) to transfer its 16.67%
interest in POM, at a value of approximately $37.2 million, in exchange for preferred and common
operating partnership units of Lightstone Value Plus REIT L.P.
In connection with the agreement, the Company borrowed from Lightstone Value Plus Real Estate
Investment Trust, Inc. approximately $33 million, which was initially secured by its 16.67%
interest in POM, has an eight year term, and bears interest at a fixed rate of 4% with payment of
the interest deferred until the closing of the transaction. In addition, the Company paid an
incentive management fee to its manager of approximately $7.3 million related to this transaction
during the third quarter of 2008. As a result, during the second quarter of 2008, the Company
recorded approximately $33.0 million of cash, $49.5 million of debt related to the proceeds
received from
20
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
the loan secured by the consolidated entitys 25% interest in POM which was recorded
in notes payable, a $16.5 million receivable from the third party member share of the consolidated
entitys 25% interest which was recorded in other assets and a deferred expense related to the
incentive management fee of approximately $7.3 million.
In the fourth quarter of 2008, the Company received a $1.0 million distribution from POM
related to its 24.17% equity and profits interest, the result of excess proceeds from the
operations of the business. Of the distribution received by the Company, $1.0 million was recorded as interest income,
representing the distribution received from the 25% profits interest, $0.3 million was recorded as
net income attributable to noncontrolling interest relating to a third party members 8.33%
noncontrolling interest share of the profits interest and $0.3 million was recorded as income
netted in loss from equity affiliates, representing the portion received from the Companys 7.5%
equity interest. In accordance with the agreement, $0.7 million of the distribution relating to
the 16.67% profits interest was used to pay down a portion of the $33 million of debt and will
reduce the value of the Companys interest when exchanged for preferred and common operating
partnership units at closing, thereby reducing the Companys future gain.
In March 2009, the Company exchanged its 16.67% interest in Prime Outlets for approximately
$37.3 million of preferred and common operating partnership units in Lightstone Value Plus REIT
L.P. and the $33.4 million loan is now secured by Arbors preferred and common operating
partnership units. The Company accounts for this investment under the cost method. In June 2013,
the preferred units may be redeemed by Lightstone Value Plus REIT L.P. for cash and the loan would
become due upon such redemption. The preferred operating partnership units yield 4.63% and the loan
bears interest at a rate of 4%. The Company retained its 7.5% equity interest in POM. During the
quarter ended June 30, 2009, the Company recorded $0.7 million of dividends from the preferred and
common operating partnership units which were reflected in interest income in the Companys
Consolidated Statement of Operations.
Through the consolidated entity that owned the 16.67%, the Company recorded in its first
quarter 2009 financial statements an investment of approximately $56.0 million for the preferred
and common operating partnership units, gain on exchange of profits interest of approximately $56.0
million, net income attributable to noncontrolling interest of approximately $18.7 million related
to the third party members portion of income recorded, noncontrolling interest due to the third
party member of approximately $2.1 million and a reduction of a $16.5 million receivable from the
third party member which was previously recorded in other assets. In accordance with APB 29,
Accounting for Nonmonetary Transactions, as amended by FAS No. 153, Exchanges of Nonmonetary
Assets an Amendment of APB Opinion No. 29, the gain of $56.0 million reflects the fair value of
the investment in preferred and operating partnership units received in exchange for the 16.67%
profits interest. The Companys profits interest had no cost basis at the time of the exchange.
In addition, the Company prepaid approximately $7.3 million in incentive management fees to
its manager in 2008 related to this transaction. In accordance with the management agreement,
installments of the annual incentive fee are subject to potential reconciliation at the end of the
2009 fiscal year.
Issuers of Junior Subordinated Notes
As of December 31, 2008, the Company invested $8.3 million for 100% of the common shares of
nine affiliate entities of the Company which were formed to facilitate the issuance of
$276.1 million of junior subordinated notes. These entities pay dividends on both the common shares
and preferred securities on a quarterly basis at a variable rate based on three-month LIBOR.
In May 2009, the Company exchanged $247.1 million of its outstanding trust preferred
securities, consisting of $239.7 million of junior subordinated notes issued to third party
investors and $7.4 million of common equity issued to the Company, which was recorded in investment
in equity affiliates, in exchange for $268.4 million of newly issued unsecured junior subordinated
notes. As a result of this transaction, the Company retired its $7.4 million of common equity and
corresponding trust preferred securities reducing its investment in these entities to $0.6 million
as of June 30, 2009. In addition, in March 2009, the Company purchased from its manager, ACM,
approximately $9.4 million of junior subordinated notes originally issued by a wholly-owned
subsidiary of the
21
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Companys operating partnership for $1.3 million. In connection with this
transaction, during the second quarter of 2009, the Company retired approximately $0.3 million of
common equity related to these junior subordinated notes. See Note 8
Debt Obligations for
further information relating to these transactions.
Note 7 Real Estate Owned, Net
The Company had a $4.0 million bridge loan secured by a hotel located in St. Louis, Missouri
that matured in 2009 and bore interest at a variable rate of LIBOR plus 5.00%. In April 2009, the Company
foreclosed on the property secured by the loan. As a result, during the second quarter of 2009 the Company recorded this
investment on its balance sheet as real estate owned, net at a fair value of $2.9 million. For the
three months ended June 30, 2009, the Company recorded property operating income of $0.2 million
and property operating expenses of $0.3 million.
The Company had a $5.0 million mezzanine loan secured by an office building located in
Indianapolis, Indiana that was scheduled to mature in June 2012 and bore interest at a fixed rate
of 10.72%. During the first quarter of 2008, the Company established a $1.5 million provision for
loan loss related to this property reducing the carrying value to $3.5 million at March 31, 2008.
In April 2008, the Company was the winning bidder at a UCC foreclosure sale of the entity which
owns the equity interest in the property securing this loan and a $41.4 million first mortgage on
the property. As a result, during the second quarter of 2008, the Company recorded this investment
on its balance sheet as real estate owned, net at fair value which included the Companys $3.5
million carrying value of the loan and $41.4 million first lien in mortgage notes payable. For the
three and six months ended June 30, 2009, the Company recorded property operating income of $1.4
million and $2.9 million, property operating expenses of $1.3 million and $2.6 million and
depreciation and amortization of $0.3 million and $0.6 million, respectively, to earnings. At June
30, 2009, this investments balance sheet was comprised of land of $6.2 million, building and
leasehold improvements net of depreciation and allowances totaling $39.1 million, cash of $0.1
million, other assets of $1.6 million, mortgage note payable of $41.4 million, and other
liabilities of $1.5 million.
The Company had a $9.9 million bridge loan secured by a motel located in Long Beach,
California that matured in 2008 and bore interest at a variable rate of LIBOR plus 4.00%. During 2008, the
Company established a $2.5 million provision for loan loss related to this property reducing the
carrying value to $7.4 million as of June 30, 2009. In August 2009, the Company was the winning bidder at a UCC
foreclosure sale of the property securing this loan which will be recorded as real estate owned,
net in the Companys third quarter 2009 Consolidated Financial Statements.
Note 8 Debt Obligations
The Company utilizes repurchase agreements, term and revolving credit agreements, warehouse
lines of credit, working capital lines, loan participations, collateralized debt obligations and
junior subordinated notes to finance certain of its loans and investments. Borrowings underlying
these arrangements are primarily secured by a significant amount of the Companys loans and
investments.
Repurchase Agreements
The following table outlines borrowings under the Companys repurchase agreements as of June
30, 2009 and December 31, 2008:
22
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2009 |
|
|
December 31, 2008 |
|
|
|
Debt |
|
|
Collateral |
|
|
Debt |
|
|
Collateral |
|
|
|
Carrying |
|
|
Carrying |
|
|
Carrying |
|
|
Carrying |
|
|
|
Value |
|
|
Value |
|
|
Value |
|
|
Value |
|
Repurchase agreement, financial institution,
$200 million committed line, terminated in June 2009,
interest was variable based on
one-month LIBOR, the
weighted average note rate was
1.50% |
|
$ |
|
|
|
$ |
|
|
|
$ |
36,961,289 |
|
|
$ |
49,547,947 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Repurchase agreement, financial institution, $2.8 million
committed line at June 30, 2009, expiration June 2010,
interest is variable based on one-month LIBOR; the weighted
average note rate was 2.34% and 3.07%,
respectively |
|
|
2,810,000 |
|
|
|
4,123,938 |
|
|
|
15,554,000 |
|
|
|
19,240,188 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Repurchase agreement, financial institution, an uncommitted
line, expiration May 2010, interest is variable based on
one and
three-month LIBOR; the weighted average note rate
was 1.78% and 2.48%, respectively |
|
|
1,578,250 |
|
|
|
11,159,065 |
|
|
|
8,212,500 |
|
|
|
12,089,904 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total repurchase agreements |
|
$ |
4,388,250 |
|
|
$ |
15,283,003 |
|
|
$ |
60,727,789 |
|
|
$ |
80,878,039 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At June 30, 2009, the aggregate weighted average note rate for the Companys repurchase
agreements was 2.14%. There were no interest rate swaps on these repurchase agreements at June 30,
2009.
The Company had a $200.0 million repurchase agreement with a financial institution which had a
term expiring in October 2009 and bore interest at pricing over LIBOR, varying on the type of asset
financed. In June 2009, this facility, with approximately $37.0 million outstanding, was satisfied
at a discount for $22.0 million resulting in a $15.0 million gain on extinguishment of debt. In
connection with this transaction, the Company sold a bridge loan financed in this facility with a
carrying value of $47.0 million, at a discount, for approximately $23.2 million and recorded a loss
on restructuring of $23.8 million. The proceeds were used to satisfy the $22.0 million cash
payment.
The Company has a $100.0 million repurchase agreement that bears interest at 250 basis points
over LIBOR and had a maturity date of June 2009. In June 2009, the Company amended this facility
extending the maturity to June 2010, with a one year extension option. In addition, the amendment
includes the removal of all financial covenants and a reduction of the committed amount to $2.8
million reflecting the one asset currently financed in this facility. During the six months ended
June 30, 2009, the Company paid down approximately $12.7 million of this facility. At June 30,
2009, the aggregate outstanding balance under this facility was $2.8 million.
In April 2008, the Company entered into an uncommitted master repurchase agreement with a
financial institution for the purpose of financing its CRE CDO bond securities. The facility has a
term expiring in May 2010 and bears interest at pricing over LIBOR, varying on the type of asset
financed. During 2009, the Company paid down approximately $1.3 million of this debt, due to a
decrease in values associated with a change in the market interest rate spreads. At June 30, 2009,
the aggregate outstanding balance in this facility was approximately $1.6 million.
In certain circumstances, the Company has financed the purchase of investments from a
counterparty through a repurchase agreement with that same counterparty. The Company currently
records these investments in the same manner as other investments financed with repurchase
agreements, with the investment recorded as an asset and the related borrowing under the repurchase
agreement as a liability on the Companys consolidated balance sheet. Interest income earned on
the investments and interest expense incurred on the repurchase obligations are reported separately
on the consolidated statements of operations. These transactions may not qualify as a purchase by
the Company under FSP FAS 140-3 which is effective for fiscal years beginning after November 15,
2008. The Company would be required to present the net investment on the balance sheet as a
derivative with the corresponding change in fair value of the derivative being recorded in the
statements of operations when certain criteria to treat these transactions not as part of the same
arrangements (linked transactions) are not met. The value of the derivative would reflect not only
changes in the value of the underlying investment, but also changes in the value of the underlying
credit provided by the counterparty. However, FSP FAS 140-3 applies to prospective transactions
occurring on or after the adoption date.
Junior Subordinated Notes
The following table outlines borrowings under the Companys junior subordinated notes as of
June 30, 2009 and December 31, 2008:
23
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
June 30, 2009 |
|
|
December 31, 2008 |
|
|
|
Debt |
|
|
Debt |
|
|
|
Carrying |
|
|
Carrying |
|
|
|
Value |
|
|
Value |
|
Junior subordinated notes, maturity March 2034, unsecured, face amount of $29.4 million and
$27.1 million, respectively, interest rate fixed until 2012 then variable based on three-month
LIBOR, the weighted average note rate was 0.50% and 5.25%,
respectively |
|
$ |
26,263,144 |
|
|
$ |
27,070,000 |
|
|
|
|
|
|
|
|
|
|
Junior subordinated notes, maturity March 2034, unsecured, face amount of $28.0 million and
$25.8 million, respectively, interest rate fixed until 2012 then variable based on three-month
LIBOR, the weighted average note rate was 0.50% and 8.32%,
respectively |
|
|
25,025,187 |
|
|
|
25,780,000 |
|
|
|
|
|
|
|
|
|
|
Junior subordinated notes, maturity April 2035, unsecured, face amount of $6.2 million and
$25.8 million, respectively, interest rate variable based on three-month LIBOR, the weighted average
note rate was 3.85% and 7.42%,
respectively |
|
|
6,237,308 |
|
|
|
25,774,000 |
|
|
|
|
|
|
|
|
|
|
Junior subordinated notes, maturity March 2034, unsecured, face amount of $28.0 million and
$25.8 million, respectively, interest rate fixed until 2012 then variable based on three-month
LIBOR, the weighted average note rate was 0.50% and 6.85%,
respectively |
|
|
25,025,187 |
|
|
|
25,774,000 |
|
|
|
|
|
|
|
|
|
|
Junior subordinated notes, maturity March 2034, unsecured, face amount of $27.3 million and
$51.6 million, respectively, interest rate fixed until 2012 then variable based on three-month
LIBOR, the weighted average note rate was 0.50% and 6.85%,
respectively |
|
|
24,399,557 |
|
|
|
51,550,000 |
|
|
|
|
|
|
|
|
|
|
Junior subordinated notes, maturity March 2034, unsecured, face amount of $28.0 million and
$51.6 million, respectively, interest rate fixed until 2012 then variable based on three-month
LIBOR, the weighted average note rate was 0.50% and 7.93%, respectively |
|
|
25,025,187 |
|
|
|
51,550,000 |
|
|
|
|
|
|
|
|
|
|
Junior subordinated notes, maturity June 2036, unsecured, face amount of $13.0 million and
$15.5 million, respectively, interest rate variable based on three-month LIBOR, the weighted average
note rate was 3.16% and 7.86%,
respectively |
|
|
13,041,307 |
|
|
|
15,464,000 |
|
|
|
|
|
|
|
|
|
|
Junior subordinated notes, maturity April 2037, unsecured, face amount of $15.7 million and
$14.4 million, respectively, interest rate fixed until 2012 then variable based on three-month
LIBOR, the weighted average note rate was 0.50% and 7.22%, respectively |
|
|
14,012,613 |
|
|
|
14,433,000 |
|
|
|
|
|
|
|
|
|
|
Junior subordinated notes, maturity April 2037, unsecured, face amount of $31.5 million and
$38.7 million, respectively, interest rate fixed until 2012 then variable based on three-month
LIBOR, the weighted average note rate was 0.50% and 7.22%, respectively |
|
|
28,150,338 |
|
|
|
38,660,000 |
|
|
|
|
|
|
|
|
|
|
Junior subordinated notes, maturity March 2034, unsecured, face amount of $28.0 million, interest
rate fixed until 2012 then variable based on three-month LIBOR, the weighted average note rate was
0.50% |
|
|
25,025,187 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Junior subordinated notes, maturity March 2034, unsecured, face amount of $28.7 million,
interest rate fixed until 2012 then variable based on three-month LIBOR, the weighted average note
rate was 0.50% |
|
|
25,650,817 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Junior subordinated notes, maturity April 2035, unsecured, face amount of $21.2 million,
interest rate fixed until 2012 then variable based on three-month LIBOR, the weighted average note
rate was 0.50% |
|
|
18,966,463 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Junior subordinated notes, maturity June 2035, unsecured, face amount of $2.6 million, interest
rate fixed until 2012 then variable based on three-month LIBOR, the weighted average note rate was
0.50% |
|
|
2,351,315 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total junior subordinated notes |
|
$ |
259,173,610 |
|
|
$ |
276,055,000 |
|
|
|
|
|
|
|
|
24
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
At June 30, 2009, the aggregate weighted average pay rate for the Companys junior
subordinated notes was 0.70%, however, based upon the accounting treatment for the restructure, the
effective rate was 3.93%. There were no interest rate swaps on these junior subordinated notes at
June 30, 2009.
In May 2009, the Company exchanged $247.1 million of its outstanding trust preferred
securities, consisting of $239.7 million of junior subordinated notes issued to third party
investors and $7.4 million of common equity issued to the Company in exchange for $268.4 million of
newly issued unsecured junior subordinated notes, representing 112% of the original face amount.
The new notes bear a fixed interest rate of 0.50% per annum until April 30, 2012 (the Modification
Period), and then interest is to be paid at the rates set forth in the existing trust agreements
until maturity, equal to three month LIBOR plus a weighted average spread of 2.90%. The Company
paid transaction fees of approximately $1.2 million to the issuers of the junior subordinated notes
related to this restructuring which will be amortized on an effective yield over the life of the
notes. Furthermore, the 12% increase to the face amount due upon maturity will be amortized into
expense over the life of the notes.
In July 2009, the Company restructured its remaining $18.7 million of trust preferred
securities that were not exchanged from the May 2009 restructuring transaction previously
disclosed. The Company amended the $18.7 million of junior subordinated notes to $20.9 million of
unsecured junior subordinated notes, representing 112% of the original face amount. The amended
notes bear a fixed interest rate of 0.50% per annum for a period of approximately three years, the
modification period. Thereafter, interest is to be paid at the rates set forth in the existing
trust agreements until maturity, equal to three month LIBOR plus a weighted average spread of
2.74%. The Company paid a transaction fee of approximately $0.1 million to the issuers of the
junior subordinated notes related to this restructuring.
During the Modification Periods, the Company will be permitted to make distributions of up to
100% of taxable income to common shareholders. The Company has agreed that such distributions will
be paid in the form of the Companys stock to the maximum extent permissible under the Internal
Revenue Service rules and regulations in effect at the time of such distribution, with the balance
payable in cash. This requirement regarding distributions in stock can be terminated by the
Company at any time, provided that the Company pays the note holders the original rate of interest
from the time of such termination.
The junior subordinated notes are unsecured, have a maturity of 25 to 28 years, pay interest
quarterly at a fixed rate or floating rate of interest based on three-month LIBOR and, absent the
occurrence of special events, are not redeemable during the first two years. In connection with
the issuance of the original variable rate junior subordinated notes, the Company had entered into
various interest rate swap agreements which were subsequently terminated upon the exchange
discussed above, resulting in a loss on termination of swaps of $8.7 million in the Companys
second quarter 2009 Financial Statements. See Note 9 Derivative Financial Instruments for
further information relating to these derivatives.
In March 2009, the Company purchased from its manager, ACM, approximately $9.4 million of
junior subordinated notes originally issued by a wholly-owned subsidiary of the Companys operating
partnership for $1.3 million. In 2009, ACM purchased these notes from third party investors for
$1.3 million. The Company recorded a net gain on extinguishment of debt of $8.1 million and a
reduction of outstanding debt totaling $9.4 million from this transaction in the Companys first
quarter 2009 Financial Statements. In connection with this transaction, during the second quarter
of 2009, the Company retired approximately $0.3 million of common equity related to these junior
subordinated notes.
The carrying value under these facilities was $259.2 million at June 30, 2009 and $276.1
million at December 31, 2008. The current weighted average note rate was 0.70% at June 30, 2009
and 7.21% at December 31, 2008, however, based upon the accounting treatment for the restructure,
the effective rate was 3.93% at June 30, 2009. The impact of these entities in accordance with
FIN 46R Consolidation of Variable Interest Entities is discussed in Note 2.
25
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Notes Payable
The following table outlines borrowings under the Companys notes payable as of June 30, 2009
and December 31, 2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2009 |
|
|
December 31, 2008 |
|
|
|
Debt |
|
|
Collateral |
|
|
Debt |
|
|
Collateral |
|
|
|
Carrying |
|
|
Carrying |
|
|
Carrying |
|
|
Carrying |
|
|
|
Value |
|
|
Value |
|
|
Value |
|
|
Value |
|
Term credit agreement, Wachovia Bank, National Association, $473 million
committed line, expiration November 2009, interest is variable based on
one-month LIBOR; the weighted average note rate was 2.97% and 3.34%,
respectively (1) |
|
$ |
237,680,634 |
|
|
$ |
362,016,619 |
|
|
$ |
280,182,244 |
|
|
$ |
476,593,594 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revolving credit agreement, Wachovia Bank, National Association, $100 million
committed line, expiration November 2009, interest is variable based on
one-month LIBOR; the weighted average note rate was 2.96% and 3.08%,
respectively (1) |
|
|
64,048,369 |
|
|
|
93,646,694 |
|
|
|
64,834,510 |
|
|
|
101,260,891 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Term credit agreement, Wachovia Bank, National Association, $69 million
committed line, expiration November 2009, interest is variable based on
one-month LIBOR; the weighted average note rate was 2.85% and 2.98%,
respectively (1) |
|
|
30,256,263 |
|
|
|
16,264,516 |
|
|
|
32,948,717 |
|
|
|
29,604,167 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bridge loan warehouse, financial institution, $13.5 million committed line,
expiration May 2010, interest rate variable based on LIBOR or Prime, the
weighted average note rate was 3.86% and 5.15%, respectively |
|
|
11,835,414 |
|
|
|
12,793,046 |
|
|
|
43,762,001 |
|
|
|
53,828,592 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Working capital facility, Wachovia Bank, National Association; $45 million
committed line, expiration July 2009, interest is variable based on one-month
LIBOR, the weighted average note rate was 5.38% and 5.51%,
respectively (1) |
|
|
41,907,965 |
|
|
|
|
|
|
|
41,907,965 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Note payable relating to investment in equity affiliates, $50.2 million,
expiration July 2016, interest is fixed, the weighted average note rate was
4.06%, respectively |
|
|
50,157,708 |
|
|
|
55,988,411 |
|
|
|
48,500,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Junior loan participations, maturity of July 2011, secured by the Companys
interest in first mortgage loans with principal balances totaling $5.0 million,
participation interest based on a portion of the interest received from the
loans which have fixed rates of 16.00% |
|
|
5,000,000 |
|
|
|
5,000,000 |
|
|
|
5,000,000 |
|
|
|
5,000,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Junior loan participation, maturity May 2010, secured by the Companys interest
in a first mortgage loan with a principal balance of $1.3 million, participation
interest was based on a portion of the interest received from the loan which has
a fixed rate of 9.57% |
|
|
1,300,000 |
|
|
|
1,300,000 |
|
|
|
1,300,000 |
|
|
|
1,300,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total notes payable |
|
$ |
442,186,353 |
|
|
$ |
547,009,286 |
|
|
$ |
518,435,437 |
|
|
$ |
667,587,244 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
In July 2009, the Company amended and restructured its term credit agreements, revolving
credit agreement and working capital facility with Wachovia Bank, National Association (Wachovia)
as discussed below. |
At June 30, 2009, the aggregate weighted average note rate for the Companys notes payable,
including the cost of interest rate swaps on assets financed in these facilities, was 3.48%.
Excluding the effect of swaps, the weighted average note rate at June 30, 2009 was 3.14%.
The Company had two credit agreements with Wachovia at June 30, 2009. The first credit
agreement consisted of a $473.0 million term loan and a $100.0 million revolving commitment. The
facility had a commitment period of two years with a one year auto extension feature, subject to
certain criteria, to November 2010, bore
26
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
interest at pricing over LIBOR, and eliminated the mark to
market risk as it relates to interest rate spreads that existed under the terms of the previous repurchase
agreements. The advance rates for this term facility were similar to the advance rates that existed under the previous repurchase agreements. The $473.0 million term
loan component had repayment provisions which included reducing the outstanding balance to $300.0
million by December 31, 2008. The outstanding balance under the term component of this facility
was $237.7 million at June 30, 2009. In July 2009, the Company restructured this credit agreement
as discussed below. The $100.0 million revolving commitment was used to finance new investments
and could have been increased with lender approval to $200.0 million when the term loan was paid
down to $400.0 million. The term loan was paid down to $400.0 million on February 15, 2008. The
outstanding balance under the revolving component of this facility was $64.0 million at June 30,
2009. In July 2009, the Company restructured this revolving commitment as discussed below.
The second credit agreement was a $69.0 million term loan which had a commitment period of two
years with a one year extension option to November 2010 and bore interest at pricing over LIBOR.
This agreement included $10.0 million of annual repayment provisions in quarterly installments.
The advance rate on this term facility was higher than the advance rate for the collateral that was
in the repurchase agreement and the facility eliminated the mark to market risk as it relates to
interest rate spreads that existed under the terms of the previous repurchase agreement. The
Company had also pledged its 7.5% equity interest in POM as part of this agreement. In the second
and third year of this term facility, the Company was required to paydown this facility by an
additional amount equal to distributions in excess of $10.0 million per year received by the
Company from its investment in POM, if any. See Note 6 Investment in Equity Affiliates for
further details. The outstanding balance under the term component of this facility was $30.3
million at June 30, 2009. In July 2009, the Company restructured this term loan as discussed
below.
The Company had a $70.0 million bridge loan warehouse agreement which had a maturity date of
October 2009. In May 2009, the Company amended this facility, extending the maturity to May 2010,
with a one year extension option, and reducing the committed amount to $13.5 million. This
agreement bears a rate of interest, payable monthly, based on LIBOR plus 3.75%. Pricing is
available at Prime or over 1, 2, 3 or 6-month LIBOR, at our option. At June 30, 2009, the
aggregate outstanding balance under this facility was $11.8 million. In July 2009, this facility
was paid off.
The Company had a $45.0 million working capital facility with Wachovia with a maturity of June
2009. In June 2009, the maturity was amended to July 2009. The facility required quarterly
paydowns of $3.0 million and interest rate pricing over LIBOR of 500 basis points. At June 30,
2009, the aggregate outstanding balance under this facility was $41.9 million. In July 2009, the
Company restructured this working capital facility as discussed below.
During the second quarter of 2008, the Company recorded a $49.5 million note payable related
to the POM exchange of profits interest transaction. The note was initially secured by the
Companys interest in POM, matures in July 2016 and bore interest at a fixed rate of 4% with
payment deferred until the closing of the transaction. Upon the closing of the POM transaction in
March 2009, the note balance was increased to $50.2 million, bears interest at a fixed rate of 4%
and is secured by the Companys investment in common and preferred operating partnership units in
Lightstone Value Plus REIT, L.P. See Note 6 Investment in Equity Affiliates for further
details. At June 30, 2009, the outstanding balance of this note was $50.2 million.
The Company had three junior loan participations with a total outstanding balance at June 30,
2009 of $6.3 million. These participation borrowings have a maturity date equal to the
corresponding mortgage loan and are secured by the participants interest in the mortgage loan.
Interest expense is based on a portion of the interest received from the loans.
In July 2009, the Company amended and restructured its term credit agreements, revolving
credit agreement and working capital facility with Wachovia Bank, National Association as follows:
|
|
|
The term revolving credit agreement, with an outstanding balance of $64.0 million at
June 30, 2009 was combined into the term debt facility with an outstanding balance of
$237.7 million at June 30, 2009, along with a portion of the term debt facility with an
outstanding balance of $30.3 million at June 30, 2009, and |
27
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
|
|
|
$15.0 million of this term debt facility was combined into the working capital line with an outstanding balance of $41.9 at
June 30, 2009. This debt restructuring resulted in the consolidation of these four
facilities into one term debt facility with an outstanding balance of $317.0 million, which
contains a revolving component with $35.0 million of availability, and one working capital
facility with an outstanding balance of $56.9 million at July 2009. |
|
|
|
|
The maturity dates of the facilities were extended for three years, with a working
capital facility maturity of June 8, 2012 and a term debt facility maturity of July 23,
2012. |
|
|
|
|
The term debt facility requires a $48.0 million reduction over the three year term, with
approximately $8.0 million in reductions due every six months beginning in December 2009. |
|
|
|
|
Margin call provisions relating to collateral value of the underlying assets have been
eliminated, as long as the term loan reductions are met, with the exception of limited
margin call capability related to foreclosed or real estate-owned assets. |
|
|
|
|
The working capital facility requires quarterly amortization of up to $3.0 million per
quarter, $1.0 million per CDO, only if both (a) the CDO is cash flowing to the Company and
(b) the Company has a minimum quarterly liquidity level of $27.5 million. |
|
|
|
|
Interest rate of LIBOR plus 350 basis points for the term loan facility, compared to
LIBOR plus approximately 200 basis points previously and LIBOR plus 800 basis points for
the working capital facility, compared to LIBOR plus 500 basis points previously. The
Company has also agreed to pay a commitment fee of 1.00% payable over 3 years. |
|
|
|
|
The Company issued Wachovia 1.0 million warrants at an average strike price of $4.00.
500,000 warrants are exercisable immediately at a price of $3.50, 250,000 warrants are
exercisable after July 23, 2010 at a price of $4.00 and 250,000 warrants are exercisable
after July 23, 2011 at a price of $5.00. All warrants expire on July 23, 2015. |
|
|
|
|
Annual dividends are limited to 100% of taxable income to common shareholders and are
required to be paid in the form of the Companys stock to the maximum extent permissible
(currently 90%), with the balance payable in cash. The Company will be permitted to pay
100% of taxable income in cash if the term loan facility balance is reduced to $210.0
million, the working capital facility is reduced to $30.0 million and the Company maintains
$35.0 million of minimum liquidity. |
|
|
|
|
The Companys CEO and Chairman, Ivan Kaufman, is required to remain an officer or
director of the Company for the term of the facilities. |
In addition, the financial covenants have been reduced to the following:
|
|
|
Minimum quarterly liquidity of $7.5 million in cash and cash equivalents. |
|
|
|
|
Minimum quarterly GAAP net worth of $150.0 million. |
|
|
|
|
Ratio of total liabilities to tangible net worth shall not exceed 4.5 to 1 quarterly. |
The Company is currently evaluating the effect of this transaction on its Consolidated
Financial Statements.
Mortgage Note Payable
During the second quarter of 2008, the Company recorded a $41.4 million first lien mortgage
related to the foreclosure of an entity in which the Company had a $5.0 million mezzanine loan.
The mortgage bears interest at a fixed rate, has a maturity date of June 2012 and was recorded in
mortgage note payable. The outstanding balance of this mortgage was $41.4 million at June 30,
2009.
Note Payable Related Party
During the fourth quarter of 2008, the Company borrowed $4.2 million from the Companys
manager, ACM. At December 31, 2008, the Company had outstanding borrowings due to ACM totaling
$4.2 million, which was recorded in notes payable related party. In January 2009, the loan was
repaid in full.
28
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Collateralized Debt Obligations
The following table outlines borrowings under the Companys collateralized debt obligations as
of June 30, 2009 and December 31, 2008:
|
|
|
|
|
|
|
|
|
|
|
June 30, 2009 |
|
|
December 31, 2008 |
|
|
|
Debt |
|
|
Debt |
|
|
|
Carrying |
|
|
Carrying |
|
|
|
Value |
|
|
Value |
|
CDO I Issued four investment grade tranches January 19, 2005. Reinvestment period through
April 2009. Interest is variable based on three-month LIBOR; the weighted average note rate was
3.91% and 2.41%, respectively |
|
$ |
261,807,428 |
|
|
$ |
275,319,000 |
|
|
|
|
|
|
|
|
|
|
CDO II Issued nine investment grade tranches January 11, 2006. Reinvestment period through
April 2011. Interest is variable based on three-month LIBOR; the weighted average note rate was
3.21% and 3.03%, respectively |
|
|
331,642,888 |
|
|
|
343,270,000 |
|
|
|
|
|
|
|
|
|
|
CDO III Issued 10 investment grade tranches December 14, 2006. Reinvestment period through
January 2012. Interest is variable based on three-month LIBOR; the weighted average note rate was
1.73% and 1.65%, respectively |
|
|
520,150,000 |
|
|
|
533,700,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total CDOs |
|
$ |
1,113,600,316 |
|
|
$ |
1,152,289,000 |
|
|
|
|
|
|
|
|
At June 30, 2009, the aggregate weighted average note rate for the Companys
collateralized debt obligations, including the cost of interest rate swaps on assets financed in
these facilities, was 2.68%. Excluding the effect of swaps, the weighted average note rate at June
30, 2009 was 1.15%.
As of April 15, 2009, CDO I has reached the end of its replenishment date and will no longer
make the $2.0 million amortization payments to investors. Investor capital will be repaid quarterly
from proceeds received from loan repayments held as collateral in accordance with the terms of the
CDO. Proceeds distributed will be recorded as a reduction of the CDO liability. Amortization
proceeds from CDO II are distributed quarterly with approximately $1.1 million being paid to
investors as a reduction of the CDO liability.
CDO III has a $100.0 million revolving note class that provides a revolving note facility.
The outstanding note balance for CDO III was $520.2 million at June 30, 2009 which included $86.7
million outstanding under the revolving note facility. The outstanding note balance for CDO III
was $533.7 million at December 31, 2008 which included $86.2 million outstanding under the
revolving note facility.
The Company intends to own these portfolios of real estate-related assets until their
maturities and accounts for these transactions on its balance sheet as financing facilities. For
accounting purposes, CDOs are consolidated in the Companys financial statements. The investment
grade tranches are treated as secured financings, and are non-recourse to the Company.
During the quarter ended June 30, 2009, the Company purchased, at a discount, approximately
$4.2 million of investment grade rated notes originally issued by the Companys CDO II issuing
entity for a price of $2.0 million and $7.0 million of investment grade rated notes originally
issued by the Companys CDO III issuing entity for a price of $2.7 million. These notes were
purchased from the Companys manager, ACM. In 2008, ACM purchased the notes from third party
investors for $5.0 million. The Company recorded a net gain on extinguishment of debt of $6.5
million from these transactions in its Consolidated Statements of Operations.
29
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
During the quarter ended March 31, 2009, the Company purchased, at a discount, approximately
$11.5 million of investment grade rated notes originally issued by the Companys CDO I issuing
entity for a price of $2.1 million, $5.1 million of investment grade rated notes originally issued
by the Companys CDO II issuing entity for a price of $1.2 million and $7.1 million of investment
grade rated notes originally issued by the Companys CDO III issuing entity for a price of $2.3
million. Approximately $8.8 million of the investment grade rated CDO notes were purchased from
the Companys manager, ACM for a price of $3.2 million. In 2008, ACM purchased these notes from
third party investors for $3.2 million. The Company recorded a net gain on extinguishment of debt
of $18.2 million from this transaction in its Consolidated Statements of Operations.
Debt Covenants
Each of the credit facilities contains various financial covenants and restrictions, including
minimum net worth, minimum liquidity, debt-to-equity ratios and fixed and senior fixed charge
coverage ratios. The Company was in compliance with all financial covenants and restrictions for
the periods presented with the exception of a minimum tangible net worth requirement with Wachovia
at June 30, 2009. The Companys tangible net worth was $307.2 million at June 30, 2009 and the
Company was required to maintain a minimum tangible net worth of $350.0 million with this financial
institution. The Company has obtained a waiver of this covenant for June 30, 2009 from this
financial institution and the covenant was subsequently amended in conjunction with the debt
restructuring with this financial institution as previously disclosed.
The Companys CDO bonds contain interest coverage and asset over collateralization covenants
that must be met as of the waterfall distribution date in order for the Company to receive such
payments. If the Company fails these covenants in any of its CDOs, all cash flows from the
applicable CDO would be diverted to repay principal and interest on the outstanding CDO bonds and
the Company would not receive any residual payments until that CDO regained compliance with such
tests. The Company was in compliance with all such covenants as of June 30, 2009. In the event of a
breach of the CDO covenants that could not be cured in the near-term, the Company would be required
to fund its non-CDO expenses, including management fees and employee costs, distributions required
to maintain REIT status, debt costs, and other expenses with (i) cash on hand, (ii) income from any
CDO not in breach of a CDO covenant test, (iii) income from real property and unencumbered loan
assets, (iv) sale of assets, (v) or accessing the equity or debt capital markets, if available.
The Company has the right to cure covenant breaches which would resume normal residual payments to
the Company by purchasing non-performing loans out of the CDOs.
Note 9 Derivative Financial Instruments
The Company accounts for derivative financial instruments in accordance with SFAS No. 133
which requires an entity to recognize all derivatives as either assets or liabilities in the
consolidated balance sheets and to measure those instruments at fair value. Additionally, the fair
value adjustments will affect either accumulated other comprehensive loss in Arbor Realty Trust,
Inc. Stockholders Equity until the hedged item is recognized earnings or in net (loss) income
attributable to Arbor Realty Trust, Inc., depending on whether the derivative instrument qualifies
as a hedge for accounting purposes and, if so, the nature of the hedging activity.
In connection with the Companys interest rate risk management, the Company periodically
hedges a portion of its interest rate risk by entering into derivative financial instrument
contracts. Specifically, the Companys derivative financial instruments are used to manage
differences in the amount, timing, and duration of its expected cash receipts and its expected cash
payments principally related to its investments and borrowings. The Companys objectives in using
interest rate derivatives are to add stability to interest income and to manage its exposure to
interest rate movements. To accomplish this objective, the Company primarily uses interest rate
swaps as part of its interest rate risk management strategy. Interest rate swaps designated as
cash flow hedges involve the receipt of variable-rate amounts from a counterparty in exchange for
the Company making fixed-rate payments over the life of the agreements without exchange of the
underlying notional amount. The Company has entered into various interest rate swap agreements to
hedge its exposure to interest rate risk on (i) variable rate borrowings as it relates to fixed
rate loans; and (ii) the difference between the CDO investor return being based on the three-month
LIBOR index while the supporting assets of the CDO are based on the one-month LIBOR index.
30
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Derivative financial instruments must be effective in reducing the Companys interest rate
risk exposure in order to qualify for hedge accounting. When the terms of an underlying
transaction are modified, or when the underlying hedged item ceases to exist, all changes in the
fair value of the instrument are marked-to-market with changes in value included in net income for
each period until the derivative instrument matures or is settled. Any derivative instrument used
for risk management that does not meet the hedging criteria is marked-to-market with the changes in
value included in net income. The Company does not use derivatives for trading or speculative
purposes.
The following is a summary of the derivative financial instruments held by the Company as of
June 30, 2009 and December 31, 2008: (Dollars in Thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notional Value |
|
|
|
|
|
|
Fair Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance |
|
|
|
|
|
|
Designation\ |
|
|
|
|
|
June 30, |
|
|
December 31, |
|
|
Expiration |
|
Sheet |
|
June 30, |
|
December 31, |
Cash Flow |
|
Derivative |
|
Count |
|
2009 |
|
|
2008 |
|
|
Date |
|
Location |
|
2009 |
|
2008 |
Non-Qualifying |
|
Basis Swaps |
|
10 |
|
$ |
1,208,144 |
|
|
$ |
1,303,631 |
|
|
2009 2015 |
|
Other
Assets |
|
$ |
3,843 |
|
|
$ |
7,193 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Qualifying |
|
Interest Rate Swaps |
|
2 |
|
$ |
53,518 |
|
|
$ |
|
|
|
2012 2016 |
|
Other
Assets |
|
$ |
873 |
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Qualifying |
|
Interest Rate Swaps |
|
32 |
|
$ |
668,786 |
|
|
$ |
926,428 |
|
|
2010 2017 |
|
Other
Liabilities |
|
$ |
(51,429 |
) |
|
$ |
(98,162 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The fair value of Non-Qualifying Hedges was $3.8 million and $7.2 million as of June 30,
2009 and December 31, 2008, respectively, and is recorded in other assets in the Consolidated
Balance Sheet. These basis swaps are used to manage the Companys exposure to interest rate
movements and other identified risks but do not meet the strict hedge accounting requirements of
SFAS No. 133. The Company is exposed to changes in the fair value of certain of its fixed rate
obligations due to changes in benchmark interest rates and uses interest rate swaps to manage its
exposure to changes in fair value on these instruments attributable to changes in the benchmark
interest rate. These interest rate swaps designated as fair value hedges involve the receipt of
fixed-rate amounts from a counterparty in exchange for the Company making variable rate payments
over the life of the agreements without the exchange of the underlying notional amount. In June
2009, $95.5 million of these basis swaps matured and the notional values were settled. For the six
months ended June 30, 2009 and 2008, the change in fair value of the Non-Qualifying Swaps was
$(3.3) million and $0.7 million, respectively and is recorded in interest expense on the
Consolidated Statements of Operations.
The fair value of Qualifying Cash Flow Hedges as of June 30, 2009 and December 31, 2008 was
$(50.6) million and $(98.2) million, respectively, and was recorded in other assets in the amount
of $0.9 million and other liabilities in the amount of $(51.4) million at June 30, 2009 and other
liabilities at December 31, 2008 and the change in accumulated other comprehensive loss in the
Consolidated Balance Sheet. These interest rate swaps are used to hedge the variable cash flows
associated with existing variable-rate debt, and amounts reported in accumulated other
comprehensive loss related to derivatives will be reclassified to interest expense as interest
payments are made on the Companys variable-rate debt. During the six months ended June 30, 2009,
the Company entered into one new interest rate swap that qualifies as a cash flow hedge with a
notional value of approximately $45.1 million and paid $1.7 million, which will be amortized into
interest expense over the life of the swap. During the six months ended June 30, 2009, the Company
terminated seven interest rate swaps related to the Companys restructured trust preferred
securities, with a combined notional value of $185.0 million, an interest rate swap with a notional
value of approximately $33.1 million and a $33.5 million portion of an interest rate swap with a
total notional value of approximately $67.0 million. As of June 30, 2009, the Company expects to
reclassify approximately $(27.7) million of other comprehensive loss from Qualifying Cash Flow
Hedges to interest expense over the next twelve months assuming interest rates on that date are
held constant.
31
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Gains and losses on terminated swaps are being recognized in earnings over the original life
of the hedging instruments as the hedged item was designated as current and future outstanding
LIBOR based debt, which has an indeterminate life, and the hedged transaction is still more likely
than not to occur. The Company deferred through accumulated other comprehensive loss approximately
$3.3 million of such loss on the termination of an interest rate swap agreement in the second
quarter of 2009 and $5.0 million of such loss on the termination of an interest rate swap agreement
in the first quarter of 2009. As of June 30, 2009, the Company has a net loss of $6.7 million in
accumulated other comprehensive loss. As of December 31, 2008, the Company had a net gain of $1.6
million in accumulated other comprehensive loss. The Company recorded $0.3 million as additional
interest expense related to the amortization of the loss for the six months ended June 30, 2009 and $0.2 million as a
reduction to interest expense related to the accretion of the net gains for both the six months
ended June 30, 2009 and 2008. The Company expects to record approximately $1.4 million of net
deferred loss to interest expense over the next twelve months. The Company also recorded a loss of
$8.7 million on the termination of the interest rate swaps related to the restructured trust preferred
securities directly to loss on terminated swaps in the second quarter of 2009 as interest rate
swaps were determined to no longer be effective or necessary due to the modified interest payment
structure of the newly issued unsecured junior subordinated notes.
The following table presents the effect of the Companys derivative financial instruments on
the Statements of Operations as of June 30, 2009 and December 31, 2008: (Dollars in Thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount of Gain or (Loss) |
|
|
Amount of Gain or (Loss) |
|
|
|
|
|
|
|
|
Amount of Gain or (Loss) |
|
|
Reclassified from |
|
|
Reclassified from |
|
|
|
|
|
|
|
|
Recognized in |
|
|
Accumulated Other |
|
|
Accumulated Other |
|
|
Amount of Gain or (Loss) |
|
|
|
|
|
Other Comprehensive |
|
|
Comprehensive Loss into |
|
|
Comprehensive Loss into |
|
|
Recognized |
|
|
|
|
|
Loss |
|
|
Interest Expense |
|
|
Loss on Terminated Swaps |
|
|
in Interest Expense |
|
|
|
|
|
(Effective Portion) |
|
|
(Effective Portion) |
|
|
(Ineffective Portion) |
|
|
(Ineffective Portion) |
|
|
|
|
|
For the Six Months Ended |
|
|
For the Six Months Ended |
|
|
For the Six Months Ended |
|
|
For the Six Months Ended |
|
Designation |
|
|
|
June 30, |
|
|
June 30, |
|
|
June 30, |
|
|
June 30, |
|
|
June 30, |
|
|
June 30, |
|
|
June 30, |
|
|
June 30, |
|
\Cash Flow |
|
Derivative |
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-Qualifying |
|
Basis Swaps |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
3,078 |
|
|
$ |
2,993 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Qualifying |
|
Rate
Swaps
|
|
$ |
39,396 |
|
|
$ |
3,583 |
|
|
$ |
(14,043 |
) |
|
$ |
(5,749 |
) |
|
$ |
(8,730 |
) |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The cumulative amount of other comprehensive loss related to net unrealized losses on
derivatives designated as Cash Flow Hedges as of June 30, 2009 and December 31, 2008 of $(57.2)
million and $(96.6) million, respectively, is a combination of the fair value of qualifying cash
flow hedges of $(50.6) million and $(98.2) million, respectively, deferred losses on terminated
interest swaps of $(8.0) million as of June 30, 2009, and deferred net gains on termination of
interest swaps of $1.4 million and $1.6 million as of June 30, 2009 and December 31, 2008,
respectively.
The Company has agreements with certain of its derivative counterparties that contain a
provision where if the Company defaults on any of its indebtedness, including default where
repayment of the indebtedness has not been accelerated by the lender, then the Company could also
be declared in default on its derivative obligations. The Company also has an agreement with one
of its derivative counterparties that contains a provision where if Arbor Realty Trust, Inc.
stockholders equity declines by more than 50%, then the Company could be declared in default on
its derivative obligation. As of June 30, 2009, the fair value of derivatives in a net liability
position, which includes accrued interest but excludes any adjustment for nonperformance risk,
related to these agreements was $(19.1) million. As of June 30, 2009, the Company has minimum
collateral posting thresholds with certain of its derivative counterparties and has posted
collateral of $19.2 million. If the Company had breached any of these provisions as of June 30,
2009, it could have been required to settle its obligations under the agreements at their
termination value of $(19.1) million, which is $0.1 million less than the posted collateral.
32
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Note 10 Fair Value
Fair Value of Financial Instruments
SFAS No. 107 requires disclosure of the estimated fair value of an entitys assets and
liabilities considered to be financial instruments. In April 2009, the FASB issued FASB Staff
Position No. FAS 107-1 and APB 28-1 (FSP FAS 107-1 and APB 28-1), Interim Disclosures about Fair
Value of Financial Instruments. FSP FAS 107-1 and APB 28-1 requires the Company to disclose in
the notes of its interim financial statements as well as its annual financial statements, the fair
value of all financial instruments as required by SFAS 107, Disclosures about Fair Value of
Financial Instruments. FSP FAS 107-1 and APB 28-1 applies to all financial instruments within the
scope of SFAS 107.
The following table summarizes the carrying values and the estimated fair values of financial
instruments as of June 30, 2009 and December 31, 2008. Fair value estimates are dependent upon
subjective assumptions and involve significant uncertainties resulting in variability in estimates
with changes in assumptions.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2009 |
|
December 31, 2008 |
|
|
|
|
|
|
Estimated |
|
|
|
|
|
Estimated |
|
|
Carrying Value |
|
Fair Value |
|
Carrying Value |
|
Fair Value |
Financial assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loans and investments,
net |
|
$ |
1,925,689,370 |
|
|
$ |
1,618,129,241 |
|
|
$ |
2,181,683,619 |
|
|
$ |
1,886,787,988 |
|
Available-for-sale
securities |
|
|
146,973 |
|
|
|
146,973 |
|
|
|
529,104 |
|
|
|
529,104 |
|
Securities
held-to-maturity |
|
|
68,884,086 |
|
|
|
30,567,970 |
|
|
|
58,244,348 |
|
|
|
18,735,000 |
|
Derivative financial
instruments |
|
|
4,716,333 |
|
|
|
4,716,333 |
|
|
|
7,192,967 |
|
|
|
7,192,967 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financial liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Repurchase
agreements |
|
$ |
4,388,250 |
|
|
$ |
4,224,706 |
|
|
$ |
60,727,789 |
|
|
$ |
58,390,888 |
|
Collateralized debt
obligations |
|
|
1,113,600,316 |
|
|
|
307,720,100 |
|
|
|
1,152,289,000 |
|
|
|
324,796,811 |
|
Junior subordinated notes |
|
|
259,173,610 |
|
|
|
68,684,452 |
|
|
|
276,055,000 |
|
|
|
66,061,690 |
|
Notes
payable |
|
|
442,186,353 |
|
|
|
430,459,211 |
|
|
|
518,435,437 |
|
|
|
499,254,876 |
|
Note payable related
party |
|
|
|
|
|
|
|
|
|
|
4,200,000 |
|
|
|
4,177,373 |
|
Mortgage note payable |
|
|
41,440,000 |
|
|
|
40,393,093 |
|
|
|
41,440,000 |
|
|
|
40,893,904 |
|
Derivative financial
instruments |
|
|
51,428,653 |
|
|
|
51,428,653 |
|
|
|
98,161,523 |
|
|
|
98,161,523 |
|
The following methods and assumptions were used by the Company in estimating the fair
value of each class of financial instrument:
Loans and investments, net: Fair values of loans and investments are estimated using
discounted cash flow methodology, using discount rates, which, in the opinion of management, best
reflect current market interest rates that would be offered for loans with similar characteristics
and credit quality.
Available-for-sale securities: Fair values are approximated based on current observed prices
received from markets that trade such securities.
Securities held-to-maturity: Fair values are approximated on current market quotes received
from financial sources that trade such securities and are based on prevailing market data and
derived from third party proprietary models based on well recognized financial principles and
reasonable estimates about relevant future market conditions.
Derivative financial instruments: Fair values are approximated on current market data received
from financial sources that trade such instruments and are based on prevailing market data and
derived from third party proprietary models based on well recognized financial principles and
reasonable estimates about relevant future market conditions. These items are included in other
assets and other liabilities on the consolidated balance sheet.
33
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
In accordance with SFAS 157, the Company incorporates credit valuation adjustments in the fair values of its derivative financial
instruments to reflect counterparty nonperformance risk.
Repurchase agreements, notes
payable and mortgage note payable: Fair values are estimated using discounted cash flow
methodology, using discount rates, which, in the opinion of management, best reflect current market
interest rates for financings with similar characteristics and credit quality. Due to their
reasonably short-term nature, the differences between fair values and carrying values were
relatively small.
Collateralized debt obligations: Fair values are estimated based on broker quotations,
representing the discounted expected future cash flows at a yield which reflects current market
interest rates and credit spreads.
Junior subordinated notes: Fair values are estimated based on broker quotations, representing
the discounted expected future cash flows at a yield which reflects current market interest rates
and credit spreads.
Fair Value Measurement
SFAS No. 157, Fair Value Measurements for financial assets and liabilities defines fair
value, provides guidance for measuring fair value and requires certain disclosures. This standard
does not require any new fair value measurements, but rather applies to all other accounting
pronouncements that require or permit fair value measurements.
Fair value is defined as the price at which an asset could be exchanged in a current
transaction between knowledgeable, willing parties. A liabilitys fair value is defined as the
amount that would be paid to transfer the liability to a new obligor, not the amount that would be
paid to settle the liability with the creditor. Where available, fair value is based on observable
market prices or parameters or derived from such prices or parameters. Where observable prices or
inputs are not available, valuation models are applied. These valuation techniques involve some
level of management estimation and judgment, the degree of which is dependent on the price
transparency for the instruments or market and the instruments complexity.
Assets and liabilities disclosed at fair value are categorized based upon the level of
judgment associated with the inputs used to measure their fair value. Hierarchical levels, defined
by SFAS 157 and directly related to the amount of subjectivity associated with the inputs to fair
valuation of these assets and liabilities, are as follows:
|
|
|
Level 1 Inputs are unadjusted, quoted prices in active markets for identical
assets or liabilities at the measurement date. The types of assets and liabilities
carried at Level 1 fair value generally are government and agency securities, equities
listed in active markets, investments in publicly traded mutual funds with quoted
market prices and listed derivatives. |
|
|
|
|
Level 2 Inputs (other than quoted prices included in Level 1) are either directly
or indirectly observable for the asset or liability through correlation with market
data at the measurement date and for the duration of the instruments anticipated life.
Level 2 inputs include quoted market prices in markets that are not active for an
identical or similar asset or liability, and quoted market prices in active markets for
a similar asset or liability. Fair valued assets and liabilities that are generally
included in this category are non-government securities, municipal bonds, certain
hybrid financial instruments, certain mortgage and asset backed securities including
CDO bonds, certain corporate debt, certain commitments and guarantees, certain private
equity investments and certain derivatives. |
|
|
|
|
Level 3 Inputs reflect managements best estimate of what market participants
would use in pricing the asset or liability at the measurement date. These valuations
are based on significant unobservable inputs that require a considerable amount of
judgment and assumptions. Consideration is given to the risk inherent in the valuation
technique and the risk inherent in the inputs to the model. Generally, assets and
liabilities carried at fair value and included in this category are certain mortgage
and asset-backed securities, certain corporate debt, certain private equity
investments, certain municipal bonds, certain commitments and guarantees and certain
derivatives. |
34
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Determining which category as asset or liability falls within the hierarchy requires
significant judgment and the Company evaluates its hierarchy disclosures each quarter.
The Company measures certain financial assets and financial liabilities at fair value on a
recurring basis, including available-for-sale securities and derivative financial instruments. The
fair value of these financial assets and liabilities was determined using the following inputs as
of June 30, 2009.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value Measurements |
|
|
Carrying |
|
Fair |
|
Using Fair Value Hierarchy |
|
|
Value |
|
Value |
|
Level 1 |
|
Level 2 |
|
Level 3 |
Financial assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Available-for-sale
securities (1) |
|
$ |
146,973 |
|
|
$ |
146,973 |
|
|
$ |
146,973 |
|
|
$ |
|
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Derivative financial
instruments |
|
|
4,716,333 |
|
|
|
4,716,333 |
|
|
|
|
|
|
|
4,716,333 |
|
|
|
|
|
|
Financial liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Derivative financial
instruments |
|
|
51,428,653 |
|
|
|
51,428,653 |
|
|
|
|
|
|
|
51,428,653 |
|
|
|
|
|
|
|
|
(1) |
|
During the year ended December 31, 2008, the Companys available-for-sale securities
were written to their fair value of $0.5 million, resulting in the recognition of a $16.2 million
impairment that was considered other-than-temporary and included in operations for the period. An
additional impairment charge of $0.4 million was recorded to the Consolidated Statements of
Operations during the quarter ended June 30, 2009 to reflect the investment at its market value as
of June 30, 2009. |
Available-for-sale securities: Fair values are approximated on current market quotes
received from financial sources that trade such securities.
Derivative financial instruments: Fair values are approximated on current market data received
from financial sources that trade such instruments and are based on prevailing market data and
derived from third party proprietary models based on well recognized financial principles and
reasonable estimates about relevant future market conditions. These items are included in other
assets and other liabilities on the consolidated balance sheet. In accordance with SFAS 157, the
Company incorporates credit valuation adjustments in the fair values of its derivative financial
instruments to reflect counterparty nonperformance risk.
The Company measures certain financial assets and financial liabilities at fair value on a
nonrecurring basis, such as loans and securities held-to-maturity. The fair value of these
financial assets and liabilities was determined using the following inputs as of June 30, 2009.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value Measurements |
|
|
|
|
|
|
Carrying |
|
Fair |
|
Using Fair Value Hierarchy |
|
|
|
|
|
|
Value |
|
Value |
|
Level 1 |
|
Level 2 |
|
Level 3 |
Financial assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Impaired loans, net (1) |
|
|
|
|
|
$ |
384,667,048 |
|
|
$ |
362,362,488 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
362,362,488 |
|
|
Securities-held-to
maturity (2) |
|
|
|
|
|
|
|
|
|
|
100,000 |
|
|
|
|
|
|
|
|
|
|
|
100,000 |
|
|
|
|
(1) |
|
The Company had an allowance for loan losses of $221.0 million relating to 22 loans
with an aggregate carrying value, before reserves, of approximately $605.7 million at June 30,
2009. |
|
(2) |
|
During the year ended December 31, 2008, one of the Companys held-to-maturity
securities was written down resulting in the recognition of a $1.4 million impairment that was
considered other-than-temporary and included in earnings for the period. |
Loan impairment assessments: Fair values of loans are estimated using discounted cash
flow methodology, using discount rates, which, in the opinion of management, best reflect current
market interest rates that would be offered for loans with similar characteristics and credit
quality. Loans held for investment are intended to be held to maturity and, accordingly, are
carried at cost, net of unamortized loan origination costs and fees, loan purchase discounts, and
net of the allowance for loan losses when such loan or investment is deemed to be impaired. The
Company considers a loan impaired when, based upon current information and events, it is probable
35
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
that it will be unable to collect all amounts due for both principal and interest according to the
contractual terms of the loan agreement. The Company performs evaluations of its loans to
determine if the value of the underlying collateral securing the impaired loan is less than the net
carrying value of the loan, which may result in an allowance and corresponding charge to the
provision for loan losses.
Securities held-to-maturity: Fair values are approximated on current market quotes received
from financial sources that trade such securities.
Note 11 Commitments and Contingencies
Contractual Commitments
As of June 30, 2009, the Company had the following material contractual obligations (payments
in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments Due by Period (1) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contractual Obligations |
|
2009 |
|
|
2010 |
|
|
2011 |
|
|
2012 |
|
|
2013 |
|
|
Thereafter |
|
|
Total |
|
Notes payable (2) |
|
$ |
22,756 |
|
|
$ |
29,135 |
|
|
$ |
21,000 |
|
|
$ |
319,137 |
|
|
$ |
|
|
|
$ |
50,158 |
|
|
$ |
442,186 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Collateralized debt
obligations (3) |
|
|
80,796 |
|
|
|
47,766 |
|
|
|
196,425 |
|
|
|
788,613 |
|
|
|
|
|
|
|
|
|
|
|
1,113,600 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Repurchase
agreements |
|
|
|
|
|
|
4,388 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,388 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trust preferred
Securities (4) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
259,174 |
|
|
|
259,174 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mortgage note
payable |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41,440 |
|
|
|
|
|
|
|
|
|
|
|
41,440 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding unfunded
commitments (5) |
|
|
22,735 |
|
|
|
31,622 |
|
|
|
12,599 |
|
|
|
1,201 |
|
|
|
401 |
|
|
|
723 |
|
|
|
69,281 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Totals |
|
$ |
126,287 |
|
|
$ |
112,911 |
|
|
$ |
230,024 |
|
|
$ |
1,150,391 |
|
|
$ |
401 |
|
|
$ |
310,055 |
|
|
$ |
1,930,069 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Represents amounts due based on contractual maturities. |
|
(2) |
|
In July 2009, the Company amended and restructured its term credit
agreements, revolving credit agreement and working capital facility
with Wachovia described in Note 8 Debt Obligations, extending the
maturity dates for three years, which is reflected in this table. |
|
(3) |
|
Comprised of $261.8 million of CDO I debt, $331.6 million of CDO II
debt and $520.2 million of CDO III debt with a weighted average
remaining maturity of 1.65, 2.62 and 3.04 years, respectively, as of
June 30, 2009. In the first and second quarter of 2009, the Company
repurchased, at a discount, approximately $34.9 million of investment
grade notes originally issued by the Companys CDO I, CDO II and CDO
III issuers and recorded a reduction of the outstanding debt balance
of $34.9 million. |
|
(4) |
|
In the first quarter of 2009, the Company repurchased, at a discount,
approximately $9.4 million of investment grade rated junior
subordinated notes originally issued by the Companys issuing entity
and recorded a reduction of the outstanding debt balance of $9.4
million. |
|
(5) |
|
In accordance with certain loans and investments, the Company has
outstanding unfunded commitments of $69.3 million as of June 30, 2009,
that the Company is obligated to fund as the borrowers meet certain
requirements. Specific requirements include, but are not limited to,
property renovations, building construction, and building conversions
based on criteria met by the borrower in accordance with the loan
agreements. In relation to the $69.3 million outstanding balance at
June 30, 2009, the Companys restricted cash balance contained
approximately $31.3 million of cash held to fund the portion of the
unfunded commitments for loans financed by the Companys CDO vehicles. |
Litigation
The Company currently is neither subject to any material litigation nor, to managements
knowledge, is any material litigation currently threatened against the company.
36
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Note 12 Equity
Common Stock
The Companys charter provides for the issuance of up to 500 million shares of common stock,
par value $0.01 per share, and 100 million shares of preferred stock, par value $0.01 per share.
The Company was incorporated in June 2003 and was initially capitalized through the sale of
67 shares of common stock for $1,005.
In 2007, the Company filed a shelf registration statement on Form S-3 with the SEC under the
1933 Act with respect to an aggregate of $500.0 million of debt securities, common stock, preferred
stock, depositary shares and warrants that may be sold by the Company from time to time pursuant to
Rule 415 of the 1933 Act. On April 19, 2007, the Commission declared this shelf registration
statement effective. At June 30, 2009, the Company had $425.3 million available under this shelf
registration.
In June 2008, the Company issued 3,776,069 common shares upon the exchange of OP units by ACM
on a one-for-one basis. As a result, the special voting preferred shares paired with each OP unit,
pursuant to a pairing agreement, were simultaneously redeemed and cancelled by the Company. In
connection with this transaction, the Companys Board of Directors approved a resolution of the
Companys charter allowing ACM and Ivan Kaufman to own more than the 7% ownership limitation of the
Companys outstanding common stock.
In August 2008, the Company entered into an equity placement program sales agreement with a
securities agent whereby the Company may issue and sell up to 3 million shares of its common stock
through the agent who agrees to use its commercially reasonable efforts to sell such shares during
the term of the agreement and under the terms set forth therein. To date, the Company has not
utilized this equity placement program.
The Company had 25,387,410 and 25,142,410 shares of common stock outstanding at June 30, 2009
and December 31, 2008, respectively.
Deferred Compensation
On April 21, 2009, the Company issued an aggregate of 245,000 shares of restricted common
stock under the 2003 Stock Incentive Plan, as amended in 2005 (the Plan), of which 155,000 shares
were awarded to certain employees of the Company and ACM and 90,000 shares were issued to members
of the board of directors. As a means of emphasizing retention at a critical time for the Company
and due to their relatively low value, the 245,000 common shares underlying the restricted stock
awards granted were fully vested as of the date of grant. In addition, on April 8, 2009, the
Company accelerated the vesting of all unvested shares underlying restricted stock awards totaling
243,091 shares previously granted to certain employees of the Company and ACM and non-management
members of the board. As a result of these transactions, the Company recorded approximately $2.1
million of expense in the Companys Consolidated Statements of Operations during the second quarter
of 2009 of which, $1.7 million was recorded in employee compensation and benefits and $0.4 million was recorded in selling and administrative.
Noncontrolling Interest
At December 31, 2007, noncontrolling interest in the Companys operating partnership was $72.9
million reflecting ACMs 15.5% limited partnership interest in ARLP, the Companys operating
partnership. In June 2008, ACM exercised its right to redeem its 3,776,069 operating partnership
units (OP units) in the Companys operating partnership for shares of the Companys common stock
on a one-for-one basis. As a result, ACMs operating partnership ownership interest in the Company
and the balance of noncontrolling interest in the operating partnership were reduced to zero as of
June 30, 2008. In accordance with EITF 95-7, Implementation Issues Related to the Treatment of
Minority Interests in Certain Real Estate Investment Trusts, the redemption of the noncontrolling
interest in operating partnership in exchange for the Companys common stock was recorded at book
value and recorded directly to equity in additional paid-in capital. In addition, the special
voting preferred shares paired with each OP unit, pursuant to a pairing agreement, were redeemed
simultaneously and cancelled by the Company. In connection with this transaction, the Companys
Board of Directors approved a resolution of the
37
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
Companys charter allowing ACM and Ivan Kaufman to own more than the 7% ownership limitation, up to 21.9% of the Companys outstanding common stock.
In December 2007, the FASB issued SFAS 160, effective for years beginning after December 15,
2008. SFAS 160 clarifies the classification of noncontrolling interests in consolidated statements
of financial position and the accounting for and reporting of transactions between the Company and
holders of such noncontrolling interests. Under SFAS 160, noncontrolling interests are considered
equity and should be reported as an element of consolidated equity. Also under SFAS 160, net
income encompasses the total income of all consolidated subsidiaries and requires separate
disclosure on the face of the statements of operations of income attributable to the controlling
and noncontrolling interests. When a subsidiary is deconsolidated, any retained, noncontrolling
equity investment in the former subsidiary and the gain or loss on the deconsolidation of the
subsidiary must be measured at fair value. The presentation and disclosure requirements have been
applied retrospectively for all periods presented.
Noncontrolling interest in a consolidated entity on the Companys consolidated balance sheet
as of June 30, 2009 was $1.9 million, representing a third partys interest in the equity of a
consolidated subsidiary that owns an investment and carries a note payable related to the POM
transaction discussed in Note 6 Investment in Equity Affiliates. As a result of the POM
transaction in March 2009, the Company recorded $18.5 million of net income attributable to the
noncontrolling interest holder and a distribution to the noncontrolling interest of $16.6 million
during the quarter ended March 2009. For the three and six months ended June 30, 2008, $2.1 million
and $4.5 million, respectively, of net income attributable to the noncontrolling interest on the
Companys consolidated statements of operations represented income allocated to ACMs
noncontrolling interest in the operating partnership.
Note 13 Earnings Per Share
Earnings per share (EPS) is computed in accordance with SFAS No. 128, Earnings Per Share.
Basic earnings per share is calculated by dividing net income attributable to Arbor Realty Trust,
Inc. by the weighted average number of shares of common stock outstanding during each period
inclusive of unvested restricted stock which participate fully in dividends. Diluted EPS is
calculated by dividing income adjusted for noncontrolling interest in the operating partnership by
the weighted average number of shares of common stock outstanding plus the additional dilutive
effect of common stock equivalents during each period. The Companys common stock equivalents are
the potential settlement of incentive management fees in common stock and ARLPs operating
partnership units, prior to the redemption for common stock in June 2008.
The following is a reconciliation of the numerator and denominator of the basic and diluted
earnings per share computations for the three months ended June 30, 2009 and 2008.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
For the Three Months Ended |
|
|
|
June 30, 2009 |
|
|
June 30, 2008 |
|
|
|
Basic |
|
|
Diluted |
|
|
Basic |
|
|
Diluted |
|
Net (loss) income attributable to Arbor Realty
Trust, Inc. |
|
$ |
(48,556,995 |
) |
|
$ |
(48,556,995 |
) |
|
$ |
11,728,006 |
|
|
$ |
11,728,006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Add: net income attributable to noncontrolling
interest in operating partnership |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,117,464 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss) earnings allocable to common stock |
|
$ |
(48,556,995 |
) |
|
$ |
(48,556,995 |
) |
|
$ |
11,728,006 |
|
|
$ |
13,845,470 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares
outstanding |
|
|
25,333,564 |
|
|
|
25,333,564 |
|
|
|
20,906,383 |
|
|
|
20,906,383 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of operating
partnership units |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,734,574 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dilutive effect of incentive management fee shares |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
80,703 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total weighted average common shares
outstanding |
|
|
25,333,564 |
|
|
|
25,333,564 |
|
|
|
20,906,383 |
|
|
|
24,721,660 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss) earnings per common share |
|
$ |
(1.92 |
) |
|
$ |
(1.92 |
) |
|
$ |
0.56 |
|
|
$ |
0.56 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
38
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
The following is a reconciliation of the numerator and denominator of the basic and
diluted earnings per share computations for the six months ended June 30, 2009 and 2008.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Six Months Ended |
|
|
For the Six Months Ended |
|
|
|
June 30, 2009 |
|
|
June 30, 2008 |
|
|
|
Basic |
|
|
Diluted |
|
|
Basic |
|
|
Diluted |
|
Net (loss) income attributable to Arbor Realty
Trust, Inc. |
|
$ |
(52,810,733 |
) |
|
$ |
(52,810,733 |
) |
|
$ |
24,432,797 |
|
|
$ |
24,432,797 |
|
|
Add: net income attributable to noncontrolling
interest in operating partnership |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,450,754 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss) earnings allocable to common stock |
|
$ |
(52,810,733 |
) |
|
$ |
(52,810,733 |
) |
|
$ |
24,432,797 |
|
|
$ |
28,883,551 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares
outstanding |
|
|
25,238,515 |
|
|
|
25,238,515 |
|
|
|
20,739,081 |
|
|
|
20,739,081 |
|
|
Weighted average number of operating
partnership units |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,755,321 |
|
|
Dilutive effect of incentive management fee shares |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
68,118 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total weighted average common shares
outstanding |
|
|
25,238,515 |
|
|
|
25,238,515 |
|
|
|
20,739,081 |
|
|
|
24,562,520 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss) earnings per common share |
|
$ |
(2.09 |
) |
|
$ |
(2.09 |
) |
|
$ |
1.18 |
|
|
$ |
1.18 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Note 14 Related Party Transactions
At June 30, 2009, due to related party was $4.7 million and consisted primarily of $5.8
million of base management fees that were due to ACM and remitted by the Company in the subsequent
quarter. The balance also included $1.1 million of escrows due from ACM related to a second
quarter 2009 foreclosed real estate asset. At December 31, 2008, due to related party was $1.0
million and consisted of $0.8 million of base management fees and $0.2 million of unearned fees due
to ACM that were remitted by the Company in February 2009.
At December 31, 2008, due from related party was $2.9 million as a result of an overpayment of
incentive management compensation based on the results of the twelve months ended December 31,
2008. During the quarter ended June 30, 2009, ACM repaid the $2.9 million overpayment in full. See
Note 16 Management Agreement for further details.
During the first quarter of 2009, the Company purchased from ACM, approximately $8.8 million
of investment grade rated bonds originally issued by two of the Companys three CDO issuing
entities and approximately $9.4 million of junior subordinated notes originally issued by a
wholly-owned subsidiary of the Companys operating partnership for a net gain on early
extinguishment of debt of $13.8 million. At March 31, 2009, ACM owned $11.3 million of CDO notes
originally issued by the Companys CDOs that were purchased for $5.0 million from third party
investors in 2008. During the second quarter of 2009, the Company purchased from ACM the remaining
$11.2 million of CDO bonds, at a discount and net of a principal payment, and recorded a gain on
early extinguishment of debt of $6.5 million. See Note 8 Debt Obligations for further details.
At December 31, 2008, the Company had outstanding borrowings from ACM totaling $4.2 million.
In January 2009, the loan was repaid in full. See Note 8 Debt Obligations for further details.
39
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
The Company is dependent upon its manager (ACM), with whom it has a conflict of interest, to
provide services to the Company that are vital to its operations. The Companys chairman, chief
executive officer and president, Mr. Ivan Kaufman, is also the chief executive officer and
president of ACM, and, the Companys chief financial officer, Mr. Paul Elenio, is the chief
financial officer of ACM. In addition, Mr. Kaufman and the Kaufman entities together beneficially
own approximately 92% of the outstanding membership interests of ACM and certain of the Companys
employees and directors, also hold an ownership interest in ACM. Furthermore, one of the Companys
directors also serves as the trustee of one of the Kaufman entities that holds a majority of the
outstanding membership interests in ACM and co-trustee of another Kaufman entity that owns an
equity interest in ACM. ACM currently holds approximately 5.4 million common shares, representing
21.2% of the voting power of the Companys outstanding stock as of June 30, 2009.
Note 15 Distributions
The Board of Directors has announced that the Company has elected not to pay a common stock
dividend for the quarter ended June 30, 2009. The Company decided, based on the continued difficult
economic environment, to retain capital for working capital purposes.
In January 2009, the Board of Directors elected not to pay a common stock distribution with
respect to the quarter ended December 31, 2008. The Company believes the dividends paid in 2008
fully satisfy its 2008 REIT distribution requirements.
Note 16 Management Agreement
The Company, ARLP and Arbor Realty SR, Inc. have entered into a management agreement with ACM,
which provides that for performing services under the management agreement, the Company will pay
ACM an incentive compensation fee and base management fee.
For performing services under the management agreement, the Company paid ACM an annual base
management fee payable monthly in cash as a percentage of ARLPs equity and equal to 0.75% per
annum of the equity up to $400 million, 0.625% per annum of the equity from $400 million to $800
million and 0.50% per annum of the equity in excess of $800 million. For purposes of calculating
the base management fee, equity equaled the month end value computed in accordance with GAAP of (1)
total partners equity in ARLP, plus or minus (2) any unrealized gains, losses or other items that
do not affect realized net income. With respect to all loans and investments originated during the
term of the management agreement, the Company had also agreed with ACM that the Company pay ACM an
amount equal to 100% of the origination fees paid by the borrower up to 1% of the loans principal
amount.
The Company also paid ACM incentive compensation on a quarterly basis, calculated as (1) 25%
of the amount by which (a) ARLPs funds from operations per unit of partnership interest in ARLP,
adjusted for certain gains and losses, exceeds (b) the product of (x) 9.5% per annum or the Ten
Year U.S. Treasury Rate plus 3.5%, whichever is greater, and (y) the weighted average of book value
of the net assets contributed by ACM to ARLP per ARLP partnership unit, the offering price per
share of the Companys common equity in the private offering on July 1, 2003 and subsequent
offerings and the issue price per ARLP partnership unit for subsequent contributions to ARLP,
multiplied by (2) the weighted average of ARLPs outstanding partnership units.
On August 6, 2009, the Company amended its management agreement with ACM. The amendment was
negotiated by a special committee of the Companys Board of Directors, consisting solely of
independent directors and approved unanimously by all of the independent directors. JMP Securities
LLC served as financial advisor to the special committee and Skadden, Arps, Slate, Meagher & Flom
LLP served as its special counsel. The significant components of the amendment were as follows:
|
|
|
The existing base management fee structure, which was calculated as a
percentage of the Companys equity, will be replaced with an arrangement whereby the
Company will reimburse ACM for its actual costs incurred in managing the Companys business
based on the parties agreement in advance on an |
40
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
|
|
|
annual budget with subsequent quarterly true-ups to actual costs. This change will be adopted retroactively to January 1, 2009 and
the Company estimates the 2009 base management fee will be in the range of $8.0 million to
$9.0 million. Concurrent with this change, all future origination fees on investments will
be retained by the Company as opposed to the manager earning up to the first one percent of
all originations fees in the existing agreement. In addition, the Company will make a $3.0
million payment to the manager in consideration of expenses incurred by the manager in 2008
in managing the Companys business and certain other services. These changes were
accounted for prospectively as a change in accounting estimate and a
recognized subsequent event.
|
|
|
|
|
The percentage hurdle for the incentive fee will be applied on a per share
basis to the greater of $10.00 and the average gross proceeds per share, whereas the
existing management agreement provides for such percentage hurdle to be applied only to the
average gross proceeds per share. In addition, only 60% of any loan loss and other reserve
recoveries will be eligible to be included in the incentive fee calculation, which will be
spread over a three year period, whereas the existing management agreement does not limit
the inclusion of such recoveries in the incentive fee calculation. |
|
|
|
|
The amended management agreement will allow the Company to consider, from time
to time, the payment of additional incentive fees to the manager for accomplishing certain
specified corporate objectives. |
|
|
|
|
The amended management agreement will modify and simplify the provisions
related to the termination of the agreement and any related fees payable in such instances,
including for internalization, with a termination fee of $10.0 million, rather than a
multiple of base and incentive fees as currently exists. |
|
|
|
|
The amended management agreement will remain in effect until December 31,
2010, and will be renewed automatically for successive one-year terms thereafter. |
The following table sets forth the Companys base and incentive compensation management fees
for the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended |
|
|
For the Six Months Ended |
|
|
|
June 30, |
|
|
June 30, |
|
Management Fees: |
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
Base |
|
$ |
6,277,623 |
|
|
$ |
900,924 |
|
|
$ |
7,000,000 |
|
|
$ |
1,799,928 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive |
|
|
|
|
|
|
1,252,914 |
|
|
|
|
|
|
|
2,933,344 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total expensed |
|
$ |
6,277,623 |
|
|
$ |
2,153,838 |
|
|
$ |
7,000,000 |
|
|
$ |
4,733,272 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive
compensation deferred |
|
|
|
|
|
|
7,292,448 |
|
|
|
|
|
|
|
7,292,448 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total management fee |
|
$ |
6,277,623 |
|
|
$ |
9,446,286 |
|
|
$ |
7,000,000 |
|
|
$ |
12,025,720 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the three months ended June 30, 2009 and 2008, the Company recorded $6.3 million and
$0.9 million, respectively, of base management fees due to ACM of which $5.8 million and $0.3
million, respectively, were included in due to related party. For the
three and six months ended June 30, 2009, as a result of the amended
management agreement the Company recorded an additional $5.6 million
of base management fees, or $0.22 per basic and diluted common share. For the six months ended June 30, 2009 and 2008, the Company recorded
$7.0 million and $1.8 million, respectively, of base management fees.
For the three and six months ended June 30, 2009, ACM did not earn an incentive compensation
installment. For the three and six months ended June 30, 2008, ACM earned incentive compensation
installments totaling $8.5 million and $10.2 million, respectively. The $10.2 million included a
$7.3 million deferred management fee recorded in the second quarter of 2008 related to the
incentive compensation fee recognized from the monetization of the POM transaction in June 2008,
which subsequently closed in the second quarter of 2009. In 2008, the $7.3 million deferred
incentive compensation fee was paid in 355,903 shares of common stock and $4.1 million paid in
41
ARBOR REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009
(Unaudited)
cash, and was reclassified to prepaid management fees. In accordance with the management agreement,
installments of the annual incentive compensation are subject to quarterly recalculation and
potential reconciliation at the end of the 2009 fiscal year and any overpayments are required to be
repaid in accordance with the amended management agreement.
In addition, during the six months ended June 30, 2008, ACM received incentive compensation
installments totaling $2.9 million, of which $1.4 million was paid in 116,680 shares of common
stock and $1.5 million paid in cash. For the year ended December 31, 2008, ACM did not earn an
incentive compensation fee and an overpayment of the incentive fee was recorded and included in due
from related party in the amount of $2.9 million. In June, 2009, ACM repaid the $2.9 million in
accordance with the amended management agreement described above. Additionally, in 2007, ACM
received an incentive compensation installment totaling $19.0 million which was recorded as prepaid
management fees related to the incentive compensation management fee on $77.1 million of deferred
revenue recognized on the transfer of control of the 450 West 33rd Street property, of
one of the Companys equity affiliates.
Note 17 Due to Borrowers
Due to borrowers represents borrowers funds held by the Company to fund certain expenditures
or to be released at the Companys discretion upon the occurrence of certain pre-specified events,
and to serve as additional collateral for borrowers loans. While retained, these balances earn
interest in accordance with the specific loan terms they are associated with.
42
|
|
|
Item 2. |
|
MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS |
You should read the following discussion in conjunction with the unaudited consolidated
interim financial statements, and related notes included herein.
Overview
We are a Maryland corporation that was formed in June 2003 to invest in multi-family and
commercial real estate-related bridge loans, junior participating interests in first mortgages,
mezzanine loans, preferred and direct equity and, in limited cases, discounted mortgage notes and
other real estate-related assets, which we refer to collectively as structured finance investments.
We have also invested in mortgage-related securities. We conduct substantially all of our
operations through our operating partnership and its wholly-owned subsidiaries.
Our operating performance is primarily driven by the following factors:
|
|
|
Net interest income earned on our investments Net interest income
represents the amount by which the interest income earned on our
assets exceeds the interest expense incurred on our borrowings. If
the yield earned on our assets decreases or the cost of borrowings
increases, this will have a negative impact on earnings. However, if
the yield earned on our assets increases or the cost of borrowings
decreases, this will have a positive impact on earnings. Net interest
income is also directly impacted by the size of our asset portfolio. |
|
|
|
|
Credit quality of our assets Effective asset and portfolio
management is essential to maximizing the performance and value of a
real estate/mortgage investment. Maintaining the credit quality of our
loans and investments is of critical importance. Loans that do not
perform in accordance with their terms may have a negative impact on
earnings and liquidity. |
|
|
|
|
Cost control We seek to minimize our operating costs, which consist
primarily of employee compensation and related costs, management fees
and other general and administrative expenses. If there are increases
in foreclosures and non-performing loans and investments, certain of
these expenses, particularly employee compensation expenses and asset
management related expenses, may increase. |
We are organized and conduct our operations to qualify as a real estate investment trust
(REIT) for federal income tax purposes. A REIT is generally not subject to federal income tax on
its REIT-taxable income that it distributes to its stockholders, provided that it distributes at
least 90% of its REIT-taxable income and meets certain other requirements. Certain of our assets
that produce non-qualifying income are owned by our taxable REIT subsidiaries, the income of which
are subject to federal and state income taxes. We did not record a provision for income taxes
related to the assets that are held in taxable REIT subsidiaries during the six months ended June
30, 2009 and 2008.
Sources of Operating Revenues
We derive our operating revenues primarily through interest received from making real
estate-related bridge, mezzanine and junior participation loans and preferred equity investments.
For the three and six months ended June 30, 2009, interest income earned on these loans and
investments represented approximately 90% and 91% of our total revenues, respectively. For the
three and six months ended June 30, 2008, interest income earned on these loans and investments
represented approximately 98% and 99% of our total revenues, respectively.
Interest income may also be derived from profits of equity participation interests. No such
interest income had been recognized for the three and six months ended June 30, 2009. For the six
months ended June 30, 2008, interest earned on these equity participation interests represented
approximately 1% of our total revenues. No such interest income had been recognized for the three
months ended June 30, 2008.
43
We derived interest income from our investments in commercial real estate (CRE)
collateralized debt obligation bond securities and commercial mortgage-backed securities (CMBS).
For the three and six months ended June 30, 2009, interest on these investments represented
approximately 3% of our total revenues, respectively. For the six months ended June 30, 2008,
interest on these investments represented approximately 1% of our total revenues. No such income
was recognized for the three months ended March 31, 2008.
Property operating income is derived from our real estate owned. For the three and six months
ended June 30, 2009, property operating income represented approximately 5% of our total revenues,
respectively. No such income was recognized for the three and six months ended June 30, 2008.
Additionally, we derive operating revenues from other income that represents loan structuring
and defeasance fees, and miscellaneous asset management fees associated with our loans and
investments portfolio. For the three and six months ended June 30, 2009, revenue from other income
represented approximately 2% and 1% of our total revenues, respectively. For the three and six
months ended June 30, 2008, revenue from other income represented less than 1% of our total
revenues.
Loss from Equity Affiliates and Gain on Sale of Loans and Real Estate
We derive income or losses from equity affiliates relating to joint ventures that were formed
with equity partners to acquire, develop and/or sell real estate assets. These joint ventures are
not majority owned or controlled by us, and are not consolidated in our financial statements.
These investments are recorded under either the equity or cost method of accounting as appropriate.
We record our share of net income and losses from the underlying properties and any
other-than-temporary impairment of these investments on a single line item in the consolidated
statements of operations as income or loss from equity affiliates. For the three months ended June
30, 2009, loss from equity affiliates was approximately $(12.7) million and for the six months
ended June 30, 2009, loss from equity affiliates totaled approximately $(10.2) million. For the
three and six months ended June 30, 2008, loss from equity affiliates totaled approximately $(0.6) million.
We also may derive income from the gain on sale of loans and real estate. We may acquire
(1) real estate for our own investment and, upon stabilization, disposition at an anticipated
return and (2) real estate notes generally at a discount from lenders in situations where the
borrower wishes to restructure and reposition its short term debt and the lender wishes to divest
certain assets from its portfolio. No such income has been recorded to date.
Critical Accounting Policies
Please refer to the section of our Annual Report on Form 10-K for the year ended December 31,
2008 entitled Managements Discussion and Analysis of Financial Condition and Results of
Operations Significant Accounting Estimates and Critical Accounting Policies for a discussion
of our critical accounting policies. During the six months ended June 30, 2009, there were no
material changes to these policies, except for the updates discussed below.
Revenue Recognition
Interest Income. Interest income is recognized on the accrual basis as it is earned from
loans, investments and securities. In many instances, the borrower pays an additional amount of
interest at the time the loan is closed, an origination fee, and deferred interest upon maturity.
In some cases, interest income may also include the amortization or accretion of premiums and
discounts arising from the purchase or origination of the loan or security. This additional
income, net of any direct loan origination costs incurred, is deferred and accreted into interest
income on an effective yield or interest method adjusted for actual prepayment activity over the
life of the related loan or security as a yield adjustment. Income recognition is suspended for
loans when, in the opinion of management, a full recovery of income and principal becomes doubtful.
Income recognition is resumed when the loan becomes contractually current and performance is
demonstrated to be resumed. Several of the loans provide for accrual of interest at specified
rates, which differ from current payment terms. Interest is recognized on such loans at the
accrual rate subject to managements determination that accrued interest and outstanding principal
are ultimately collectible, based on the underlying collateral and operations of the borrower. If
management cannot
44
make this determination regarding collectibility, interest income above the current pay rate
is recognized only upon actual receipt. Additionally, interest income is recorded when earned from
equity participation interests, referred to as equity kickers. These equity kickers have the
potential to generate additional revenues to us as a result of excess cash flows being distributed
and/or as appreciated properties are sold or refinanced. We did not record interest income on such
investments for the three and six months ended June 30, 2009 as compared to $0.3 million for the
six months ended June 30, 2008. No such income had been recognized for the three months ended June
30, 2008.
Property operating income. Property operating income represents operating income associated
with the operations of two commercial real estate properties presented as real estate owned, net.
For the three and six months ended June 30, 2009, we recorded approximately $1.6 million and $3.1
million of property operating income relating to real estate owned. There was no property
operating income for the three and six months ended June 30, 2008.
Derivatives and Hedging Activities
In accordance with SFAS No. 133, the carrying values of interest rate swaps and the underlying
hedged liabilities are reflected at their fair value. As of December 31, 2007 we retained the
services of Chatham Financial Corporation, a Statement on Auditing Standards No. 70 (SAS 70),
Service Organizations compliant, third party financial services company to determine these fair
values. Changes in the fair value of these derivatives are either offset against the change in the
fair value of the hedged liability through earnings or recognized in other comprehensive income
(loss) until the hedged item is recognized in earnings. The ineffective portion of a derivatives
change in fair value is immediately recognized in earnings. Derivatives that do not qualify for
cash flow hedge accounting treatment are adjusted to fair value through earnings.
SFAS 161, Disclosures about Derivative Instruments and Hedging Activities, an amendment of
FASB Statement No. 133, amends and expands the disclosure requirements of SFAS 133 with the intent
to provide users of financial statements with an enhanced understanding of: (a) how and why an
entity uses derivative instruments, (b) how derivative instruments and related hedged items are
accounted for under SFAS 133 and its related interpretations, and (c) how derivative instruments
and related hedged items affect an entitys financial position, financial performance, and cash
flows. SFAS 161 requires qualitative disclosures about objectives and strategies for using
derivatives, quantitative disclosures about the fair value of and gains and losses on derivative
instruments, and disclosures about credit-risk-related contingent features in derivative
instruments.
As required by SFAS 133, we record all derivatives on the balance sheet at fair value. The
accounting for changes in the fair value of derivatives depends on the intended use of the
derivative, whether a company has elected to designate a derivative in a hedging relationship and
apply hedge accounting and whether the hedging relationship has satisfied the criteria necessary to
apply hedge accounting. Derivatives designated and qualifying as a hedge of the exposure to
changes in the fair value of an asset, liability, or firm commitment attributable to a particular
risk, such as interest rate risk, are considered fair value hedges. Derivatives designated and
qualifying as a hedge of the exposure to variability in expected future cash flows, or other types
of forecasted transactions, are considered cash flow hedges. Hedge accounting generally provides
for the matching of the timing of gain or loss recognition on the hedging instrument with the
recognition of the changes in the fair value of the hedged asset or liability that are attributable
to the hedged risk in a fair value hedge or the earnings effect of the hedged forecasted
transactions in a cash flow hedge. We may enter into derivative contracts that are intended to
economically hedge certain of our risk, even though hedge accounting does not apply or we elect not
to apply hedge accounting under SFAS 133.
During the six months ended June 30, 2009 we entered into one new interest rate swap that
qualifies as a cash flow hedge with a notional value of approximately $45.1 million and paid $1.7
million, which will be amortized into interest expense over the life of the swap. During the six
months ended June 30, 2008, we entered into six additional interest rate swaps, that qualify as
cash flow hedges, having a total combined notional value of approximately $121.6 million. No such
swaps had been entered into for the three months ended June 30, 2008. During the six months ended
June 30, 2009, we terminated seven interest rate swaps related to our restructured trust preferred securities, with a combined notional value of $185.0 million, for a loss of $8.7
million recorded to loss on termination of swaps. Refer to the section titled Liquidity and
Capital Resources Junior Subordinated Notes below. During the six months ended June 30, 2009,
we also terminated an interest rate swap
45
with a notional value of approximately $33.1 million and a $33.5 million portion of an
interest rate swap with a total notional value of approximately $67.0 million. Additionally, during
the six months ended June 30, 2009, two basis swaps had partially amortizing maturities totaling
approximately $95.5 million. Losses on termination will be amortized to interest expense over the
original life of the hedging instruments. The fair value of our qualifying hedge portfolio has
increased by approximately $47.6 million from December 31, 2008 as a result of the terminated
swaps, combined with a change in the projected LIBOR rates and credit spreads of both parties.
Because the valuations of our hedging activities are based on estimates, the fair value may
change if our estimates are inaccurate. For the effect of hypothetical changes in market interest
rates on our interest rate swaps, see Interest Rate Risk in Quantitative and Qualitative
Disclosures About Market Risk, set forth in Item 3 hereof.
Recently Issued Accounting Pronouncements
For a discussion of the impact of new accounting pronouncements on our financial condition or
results of operations, see Note 2 of the Notes to the Consolidated Financial Statements set forth
in Item 1 hereof.
Changes in Financial Condition
Our loan and investment portfolio balance, including our held-to-maturity securities, at June
30, 2009 was $2.0 billion, with a weighted average current interest pay rate of 5.17% as compared
to $2.2 billion, with a weighted average current interest pay rate of 6.13% at December 31, 2008.
At June 30, 2009, advances on financing facilities totaled $1.8 billion, with a weighted average
funding cost of 3.45% as compared to $2.0 billion, with a weighted average funding cost of 3.51% at
December 31, 2008.
During the quarter ended June 30, 2009, two loans paid off on properties with an outstanding
balance of $84.0 million, five loans partially repaid totaling $33.3 million and 12 loans were
refinanced and or modified during the quarter totaling $374.8 million. These totals included a
$23.8 million loss on the restructuring of a loan during the quarter. In addition, four loans
totaling approximately $181.8 million were extended during the quarter in accordance with the
extension options of the corresponding loan agreements.
Cash and cash equivalents increased $28.7 million, to $29.5 million at June 30, 2009 compared
to $0.8 million at December 31, 2008. All highly liquid investments with original maturities of
three months or less are considered to be cash equivalents. The increase was primarily due to
payoffs and paydowns of our loan investments as well as cash received from an increase in the value
of our interest rate swaps for which we had previously posted as collateral against these swaps.
Restricted cash decreased $26.6 million, or 29% to $66.6 million at June 30, 2009 compared to
$93.2 million at December 31, 2008. The majority of restricted cash is kept on deposit with the
trustees for our collateralized debt obligations (CDOs), and primarily represents proceeds from
loan repayments which will be used to purchase replacement loans as collateral for the CDOs. The
decrease was primarily due to the redeployment of funds during the six months ended June 2009 from
proceeds received from the full satisfaction of loans held in the CDO and the transfer of loans
from other financing facilities to the CDOs. This was partially offset by a $2.5 million cash
reserve due to one our borrowers classified as restricted cash during the quarter ended June 30,
2009.
Securities held-to-maturity increased $10.6 million, to $68.9 million at June 30, 2009
compared to $58.2 million at December 31, 2008 as a result of purchasing $15.0 million of
investment grade CMBS for $10.7 million during the second quarter of 2009. The $4.3 million
discount received on the purchases of these securities will be accreted into interest income on an
effective yield adjusted for actual prepayment activity over the estimated life remaining of the
securities as a yield adjustment. See Note 5 of the Notes to the Consolidated Financial
Statements set forth in Item 1 hereof for a further description of these transactions.
Investment in equity affiliates increased $37.0 million to $66.3 million at June 30, 2009
compared to $29.3 million at December 31, 2008. In June 2008, we entered into an agreement to
transfer our 16.67% interest in POM, in exchange for preferred and common operating partnership
units of Lightstone Value Plus REIT L.P. Upon closing this transaction in March 2009, we recorded
an investment of approximately $56.0 million for the preferred and common operating partnership
units. This was partially offset by a $11.7 million other-than-temporary
46
impairment on an equity investment in an unconsolidated joint venture, a seasonal ski resort
operation, for the remaining amount of the investment recorded in loss from equity affiliates in
our Consolidated Statements of Operations in the second quarter of 2009. In addition, in May 2009,
we exchanged $247.4 million of our outstanding trust preferred securities, consisting of $239.7
million of junior subordinated notes issued to third party investors and $7.7 million of common
equity issued to us, including $0.3 million already purchased, which was previously recorded as an
investment in equity affiliates, in exchange for $268.4 million of newly issued unsecured junior
subordinated notes. As a result of this transaction, we retired our $7.7 million of common equity
and corresponding trust preferred securities reducing our investment in these entities to $0.6
million at June 30, 2009. See Note 6 of the Notes to the Consolidated Financial Statements set
forth in Item 1 hereof for further details.
Real estate owned, net increased $1.8 million to $48.3 million at June 30, 2009 compared to
$46.5 million at December 31, 2008. In the second quarter of 2009, we foreclosed on a property
secured by our $4.0 million bridge loan and as a result, we recorded $2.9 million on our balance
sheet as real estate owned, net at a fair value. See Note 7 of the Notes to the Consolidated
Financial Statements set forth in Item 1 hereof for further details.
Due from related party was fully settled at June 30, 2009, compared to $2.9 million at
December 31, 2008, due to a payment by ACM, our manager, of $2.9 million in June 2009 for prior
year overpaid incentive management fees. Refer to Management Agreement below for further details.
Other assets decreased $68.6 million, or 49% to $71.1 million at June 30, 2009 compared to
$139.7 million at December 31, 2008. The decrease was primarily due to a $27.3 million decrease in
collateral posted for a portion of our interest rate swaps whose value had increased and which
includes $17.6 million in funded cash collateral from the termination of seven swaps related to our
restructured trust preferred securities which was restructured and two other terminated interest rate swaps.
The decrease was also due to a reduction of a $16.5 million third party member receivable in March
2009 in connection with the closing of the POM transaction, a $15.9 million decrease in interest
receivable as a result of non-performing loans, lower rates on refinanced and modified loans, lower
LIBOR rates, and the effect of a decrease in LIBOR rates on a portion of our interest rate swaps, a
$4.8 million reduction of margin calls related to other financing in 2008 and a $3.3 million
decrease in the fair value of non-qualifying CDO basis swaps. See Item 3 Quantitative and
Qualitative Disclosures About Market Risk for further information relating to our derivatives.
Other liabilities decreased $52.4 million, or 39%, to $82.2 million at June 30, 2009 compared
to $134.6 million at December 31, 2008. The decrease was primarily due to a $44.3 million decrease
in accrued interest payable primarily due to the increase in value of our interest rate swaps, as
well as the termination of interest rate swaps, a reduction in LIBOR rates, the timing of reset
dates and a decline in the outstanding balance of our financing facilities.
During the second quarter of 2009, we settled a $37.0 million repurchase financing facility
for a cash payment of approximately $22.0 million, resulting in a gain on extinguishment of debt of
approximately $15.0 million. In connection with this transaction, we sold a loan financed in this
facility with a carrying value of $47.0 million, at a discount, for approximately $23.2 million and
recorded a loss on restructuring of $23.8 million. The proceeds were used to satisfy the $22.0
million cash payment.
On April 21, 2009, we issued an aggregate of 245,000 shares of restricted common stock under
the 2003 Stock Incentive Plan, as amended in 2005 (the Plan), of which 155,000 shares were
awarded to certain of our and ACM employees and 90,000 shares were issued to members of the board
of directors. As a means of emphasizing retention at a critical time for Arbor and due to their
relatively low value, the 245,000 common shares underlying the restricted stock awards granted were
fully vested as of the date of grant. In addition, on April 8, 2009, we accelerated the vesting of
all unvested shares underlying restricted stock awards totaling 243,091 shares previously granted
to certain of our and ACM employees and non-management members of the board. As a result of these
transactions, we recorded approximately $2.1 million of expense in our Consolidated Statements of
Operations during the second quarter of 2009 of which, $1.7 million was recorded in employee compensation and benefits and $0.4 million was recorded in selling and administrative.
In March 2009, we exchanged our 16.67% interest in Prime Outlets Member, LLC (POM) for
preferred and common operating partnership units of Lightstone Value Plus REIT L.P. at a value of
approximately $37.3 million. As a result, during the first quarter of 2009, we recorded a gain on
exchange of profits interest of
47
approximately $56.0 million and income attributable to noncontrolling interest of
approximately $18.7 million related to the third party members portion of income recorded. See
Note 6 of the Notes to the Consolidated Financial Statements set forth in Item 1 hereof for
further details.
In March 2009, we purchased from our manager, ACM, approximately $9.4 million of junior
subordinated notes originally issued by a wholly-owned subsidiary of our operating partnership for
$1.3 million. In 2009, ACM purchased these notes from third party investors for $1.3 million. We
recorded a net gain on extinguishment of debt of $8.1 million and a reduction of outstanding debt
totaling $9.4 million from this transaction. In addition, during the three months ended March 31,
2009, we purchased approximately $23.7 million of investment grade rated notes originally issued by
our CDO issuing entities for a price of $5.6 million. Of the $23.7 million purchased, $8.8 million
of the CDO notes were purchased from ACM for a price of $3.2 million. In 2008, ACM purchased these
notes from third party investors for $3.2 million. During the three months ended June 30, 2009, we
purchased the remaining CDO notes from ACM for a price of $4.7 million. In 2008, ACM purchased
these notes from third party investors for $5.0 million. We recorded a net gain on extinguishment
of debt of $18.2 million and a reduction of outstanding debt totaling $23.7 million from these
transactions in our first quarter 2009 financial statements and a gain on extinguishment of debt of
$6.5 million and a reduction of outstanding debt totaling $11.2 million in our second quarter 2009
financial statements.
Comparison of Results of Operations for the Three Months Ended June 30, 2009 and 2008
The following table sets forth our results of operations for the three months ended June 30,
2009 and 2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
|
|
|
|
|
June 30, |
|
|
Increase/(Decrease) |
|
|
|
2009 |
|
|
2008 |
|
|
Amount |
|
|
Percent |
|
|
|
(Unaudited) |
|
|
|
|
|
|
|
|
|
Revenue: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income |
|
$ |
31,687,984 |
|
|
$ |
51,869,164 |
|
|
$ |
(20,181,180 |
) |
|
|
(39 |
)% |
Property operating income |
|
|
1,587,692 |
|
|
|
|
|
|
|
1,587,692 |
|
|
nm |
Other income |
|
|
782,410 |
|
|
|
28,629 |
|
|
|
753,781 |
|
|
nm |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue |
|
|
34,058,086 |
|
|
|
51,897,793 |
|
|
|
(17,839,707 |
) |
|
|
(34 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense |
|
|
21,091,121 |
|
|
|
27,857,322 |
|
|
|
(6,766,201 |
) |
|
|
(24 |
)% |
Employee compensation and benefits |
|
|
3,509,911 |
|
|
|
2,686,002 |
|
|
|
823,909 |
|
|
|
31 |
% |
Selling and administrative |
|
|
2,681,579 |
|
|
|
2,793,161 |
|
|
|
(111,582 |
) |
|
|
(4 |
)% |
Property operating expenses |
|
|
1,612,965 |
|
|
|
|
|
|
|
1,612,965 |
|
|
nm |
Depreciation and amortization |
|
|
283,022 |
|
|
|
|
|
|
|
283,022 |
|
|
nm |
Other-than-temporary impairment |
|
|
382,130 |
|
|
|
|
|
|
|
382,130 |
|
|
nm |
Provision for loan losses |
|
|
23,000,000 |
|
|
|
2,000,000 |
|
|
|
21,000,000 |
|
|
nm |
Loss on restructured loans |
|
|
23,790,835 |
|
|
|
|
|
|
|
23,790,835 |
|
|
nm |
Management fee related party |
|
|
6,277,623 |
|
|
|
2,153,838 |
|
|
|
4,123,785 |
|
|
|
191 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total expenses |
|
|
82,629,186 |
|
|
|
37,490,323 |
|
|
|
45,138,863 |
|
|
|
120 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss) income before gain on exchange of
profits interest, gain on extinguishment of
debt, loss on termination of swaps and loss
from equity affiliates |
|
|
(48,571,100 |
) |
|
|
14,407,470 |
|
|
|
(62,978,570 |
) |
|
nm |
Gain on exchange of profits interest |
|
|
|
|
|
|
|
|
|
|
|
|
|
nm |
Gain on extinguishment of debt |
|
|
21,464,957 |
|
|
|
|
|
|
|
21,464,957 |
|
|
nm |
Loss on termination of swaps |
|
|
(8,729,408 |
) |
|
|
|
|
|
|
(8,729,408 |
) |
|
nm |
Loss from equity affiliates |
|
|
(12,664,152 |
) |
|
|
(562,000 |
) |
|
|
(12,102,152 |
) |
|
nm |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income |
|
|
(48,499,703 |
) |
|
|
13,845,470 |
|
|
|
(62,345,173 |
) |
|
nm |
Net income attributable to noncontrolling
interest |
|
|
57,292 |
|
|
|
2,117,464 |
|
|
|
(2,060,172 |
) |
|
|
(97 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income attributable to Abor Realty
Trust, Inc. |
|
$ |
(48,556,995 |
) |
|
$ |
11,728,006 |
|
|
$ |
(60,285,001 |
) |
|
nm |
|
|
|
|
|
|
|
|
|
|
|
|
|
48
Revenue
Interest income decreased $20.2 million, or 39%, to $31.7 million for the three months ended
June 30, 2009 from $51.9 million for the three months ended June 30, 2008. This decrease was
primarily due to a 32% decrease in the average yield on assets from 7.91% for the three months
ended June 30, 2008 to 5.41% for the three months ended June 30, 2009. This decrease in yield was
the result of a decrease in average LIBOR over the same period, along with the suspension of
interest on our non-performing loans, lower rates on refinanced and modified loans and a decrease
in loans and investments due to payoffs and paydowns. In addition, interest income from cash
equivalents decreased $1.1 million to $0.1 million for the three months ended June 30, 2009
compared to $1.2 million for the three months ended June 30, 2008 as a result of decreased average
cash balances, as well as decreases in interest rates from 2008 to 2009.
Property operating income of $1.6 million for the three months ended June 30, 2009 represents
operating income associated with the operations of two commercial real estate properties recorded
as real estate owned, net. There was no property operating income for the three months ended June
30, 2008.
Other income increased $0.8 million for the three months ended June 30, 2009 from $28,629 for
the three months ended June 30, 2008. This is primarily due the sale of the securities used as
collateral in association with the defeasance of one of our loans in the second quarter of 2009,
which had a value in excess of the principal of the loan outstanding.
Expenses
Interest expense decreased $6.8 million, or 24%, to $21.1 million for the three months ended
June 30, 2009 from $27.9 million for the three months ended June 30, 2008. This decrease was
primarily due to a 12% decrease in the average cost of these borrowings from 5.06% for the three
months ended June 30, 2008 to 4.45% for the three months ended June 30, 2009 due to a reduction in
average LIBOR on the portion of our debt that was floating over the same period. In addition,
there was a 14% decrease in the average balance of our debt facilities from $2.2 billion for the
three months ended June 30, 2008 to $1.9 billion for the three months ended June 30, 2009. This
decrease in average balance was related to decreased leverage on our portfolio due to the repayment
of certain debt resulting from loan payoffs and paydowns, along with the transfer of assets into
our CDO vehicles.
Employee compensation and benefits expense increased $0.8 million, or 31%, to $3.5 million for
the three months ended March 31, 2009 from $2.7 million for the three months ended June 30, 2008.
This increase was primarily due to grants of restricted stock awards to employees and the
acceleration of all previously unvested restricted stock in the second quarter of 2009. These
expenses represent salaries, benefits, stock-based compensation related to employees, and incentive
compensation for those employed by us during these periods.
Selling and administrative expense decreased $0.1 million, or 4%, to $2.7 million for the
three months ended June 30, 2009 from $2.8 million for the three months ended June 30, 2008. These
costs include, but are not limited to, professional and consulting fees, marketing costs, insurance
expense, directors fees, licensing fees, travel and placement fees, and stock-based compensation
relating to the cost of restricted stock granted to our directors and certain employees of our
manager. This decrease was primarily due to expenses related to the POM transaction in the second
quarter of 2008 netted by an increase in general corporate legal expenses associated with the
exchange of our junior subordinated notes as well as debt restructuring in the first and second
quarters of 2009, as well as grants of restricted stock awards to directors and certain employees
of our manager, ACM, and the acceleration of all previously unvested restricted stock in the second
quarter of 2009.
49
Property operating expenses of $1.6 million for the three months ended June 30, 2009
represents all expenses related to the operations of two commercial real estate properties recorded
as real estate owned, net. There were no property operating expenses for the three months ended
June 30, 2008.
Depreciation and amortization expense of $0.3 million for the three months ended June 30, 2009
represents depreciation on property, leasehold improvements, and equipment associated with the
consolidation of an office building as real estate owned, net. There were no depreciation and
amortization expenses for the three months ended June 30, 2008.
Other-than-temporary impairment charges of $0.4 million for the three months ended June 30,
2009 represents the recognition of an additional impairment to the fair market value of our
available-for-sale securities at June 30, 2009, that was considered other-than-temporary. GAAP
accounting standards require that investments are evaluated periodically to determine whether a
decline in their value is other-than-temporary, though it is not intended to indicate a permanent
decline in value. There were no other-than-temporary impairment charges for the three months ended
June 30, 2008. See Note 6 and Note 4 of the Notes to the Consolidated Financial Statements set
forth in Item 1 hereof for further details.
Provision for loan losses totaled $23.0 million for the three months ended June 30, 2009, and
$2.0 million for the three months ended June 30, 2008. The provision recorded for the three months
ended June 30, 2009 was based on our normal quarterly loan review at June 30, 2009, where it was
determined that 22 loans with a aggregate carrying value of $605.7 million, before reserves, were
impaired. We performed an evaluation of the loans and determined that the fair value of the
underlying collateral securing the impaired loans was less than the net carrying value of the
loans, resulting in us recording an additional $23.0 million provision for loan losses. The
provision recorded for the three months ended June 30, 2008 was based on one loan with a carrying
value of $9.9 million, before reserves, that was determined to be impaired.
Loss on restructured loans of $23.8 million for the three months ended June 30, 2009
represents the settlement of a bridge loan with a carrying value of $47.0 million at a discount,
for $23.2 million. There were no losses on restructured loans for the three months ended June 30,
2008.
Management fees increased $4.1 million to $6.3 million for the three months ended June 30,
2009 from $2.2 million for the three months ended June 30, 2008. These amounts represent
compensation in the form of base management fees and estimated incentive management fees as
provided for in the management agreement with our manager. The incentive management fee expense
for the three months ended June 30, 2008 was $1.3 million. No incentive management fee was earned
for the three months ended June 30, 2009 as a result of a cumulative loss for the trailing 12-month
period. The base management fee expense was $6.3 million for the three months ended June 30, 2009
as compared to $0.9 million for the three months ended June 30, 2008 due to the newly amended
management agreement with ACM, our manager, in July 2009 which was retroactive. Refer to
Management Agreement below for further details.
Gain on extinguishment of debt totaled $21.5 million for the three months ended June 30, 2009.
During the second quarter of 2009, we settled a $37.0 million repurchase facility with a financial
institution for a cash payment of approximately $22.0 million, resulting in a gain on
extinguishment of debt of approximately $15.0 million. In connection with this transaction, we
sold a bridge loan financed in this facility at a discount, and recorded a loss on restructured
loans of $23.8 million. Also during the second quarter of 2009, we purchased, at a discount,
approximately $11.2 million of investment grade rated bonds originally issued by two of our three
CDO issuing entities and recorded a net gain on early extinguishment of debt of $6.5 million
related to these transactions.
Loss on termination of swaps of $8.7 million for the three months ended June 30, 2009 resulted
from the exchange of our outstanding trust preferred securities for newly issued unsecured junior
subordinated notes in May 2009. Refer to Junior Subordinated Notes below for further details.
In connection with the original issuance of the trust preferred securities, we had entered into
various interest rate swap agreements. Due to the modified interest payment structure of the newly
issued unsecured junior subordinated notes, the swaps were determined to no longer be effective or
necessary and were subsequently terminated, resulting in a loss of $8.7 million.
50
Loss from equity affiliates of $12.7 million for the three months ended June 30, 2009 included
an $11.7 million impairment charge on an investment in an equity affiliate that was considered
other-than-temporary. GAAP accounting standards require that investments are evaluated
periodically to determine whether a decline in their value is other-than-temporary, though it is
not intended to indicate a permanent decline in value. There were no other-than-temporary
impairment charges for the three months ended June 30, 2008. Loss from equity affiliates also
included $0.9 million and $0.6 million of loss recorded during the three months ended June 30, 2009
and June 30 2008, respectively, which reflect a portion of the joint ventures losses from our
Alpine Meadows equity investment. See Note 6 of the Notes to the Consolidated Financial
Statements set forth in Item 1 hereof for further details.
Net Income Attributable to Noncontrolling Interest
Net income attributable to noncontrolling interest totaled $0.1 million for the three months
ended June 30, 2009 representing the portion of income allocated to a third partys interest in a
consolidated subsidiary, which holds a note payable that is accruing interest expense.
Net income attributable to noncontrolling interest in our operating partnership totaled $2.1
million for the three months ended June 30, 2008 representing the portion of our income allocated
to our manager. There was no net income attributable to noncontrolling interest in our operating
partnership for the three months ended June 30, 2009. Our manager had a weighted average limited
partnership interest of 15.2% during the three months ended June 30, 2008. In June 2008, our
manager exercised its right to redeem its 3,776,069 operating partnership units in our operating
partnership for shares of our common stock on a one-for-one basis. As a result, our managers
operating partnership ownership interest percentage was reduced to zero.
In December 2007, the FASB issued SFAS No. 160 Noncontrolling Interests in Consolidated
Financial Statements an amendment of Accounting Research Bulletin No. 51 (SFAS 160), effective
for years beginning after December 15, 2008. SFAS 160 clarifies the classification of
noncontrolling interests in consolidated statements of financial position and the accounting for
and reporting of transactions between us and holders of such noncontrolling interests. Under SFAS
160, noncontrolling interests are considered equity and should be reported as an element of
consolidated equity. Also under SFAS 160, net income encompasses the total income of all
consolidated subsidiaries and requires separate disclosure on the face of the statements of
operations of income attributable to the controlling and noncontrolling interests. When a
subsidiary is deconsolidated, any retained, noncontrolling equity investment in the former
subsidiary and the gain or loss on the deconsolidation of the subsidiary must be measured at fair
value. The presentation and disclosure requirements have been applied retrospectively for all
periods presented.
Provision for Income Taxes
We are organized and conduct our operations to qualify as a REIT for federal income tax
purposes. As a REIT, we are generally not subject to federal income tax on our REIT-taxable income
that we distribute to our stockholders, provided that we distribute at least 90% of our
REIT-taxable income and meet certain other requirements. As of June 30, 2009 and 2008, we were in
compliance with all REIT requirements and, therefore, have not provided for income tax expense on
our REIT- taxable income for the three months ended June 30, 2009 and 2008.
Certain of our assets that produce non-qualifying income are owned by our taxable REIT
subsidiaries, the income of which is subject to federal and state income taxes. During the three
months ended June 30, 2009 and 2008, we did not record any provision on income from these taxable
REIT subsidiaries.
51
Comparison of Results of Operations for the Six Months Ended June 30, 2009 and 2008
The following table sets forth our results of operations for the six months ended June 30,
2009 and 2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended |
|
|
|
|
|
|
June 30, |
|
|
Increase/(Decrease) |
|
|
|
2009 |
|
|
2008 |
|
|
Amount |
|
|
Percent |
|
|
|
(Unaudited) |
|
|
|
|
|
|
|
|
|
Revenue: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income |
|
$ |
62,188,007 |
|
|
$ |
107,285,494 |
|
|
$ |
(45,097,487 |
) |
|
|
(42 |
)% |
Property operating income |
|
|
3,058,488 |
|
|
|
|
|
|
|
3,058,488 |
|
|
nm |
Other income |
|
|
798,660 |
|
|
|
49,322 |
|
|
|
749,338 |
|
|
nm |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenue |
|
|
66,045,155 |
|
|
|
107,334,816 |
|
|
|
(41,289,661 |
) |
|
|
(38 |
)% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense |
|
|
40,241,937 |
|
|
|
59,161,421 |
|
|
|
(18,919,484 |
) |
|
|
(32 |
)% |
Employee compensation and benefits |
|
|
5,901,895 |
|
|
|
4,663,345 |
|
|
|
1,238,550 |
|
|
|
27 |
% |
Selling and administrative |
|
|
4,763,921 |
|
|
|
4,331,227 |
|
|
|
432,694 |
|
|
|
10 |
% |
Property operating expenses |
|
|
2,944,110 |
|
|
|
|
|
|
|
2,944,110 |
|
|
nm |
Depreciation and amortization |
|
|
566,044 |
|
|
|
|
|
|
|
566,044 |
|
|
nm |
Other-than-temporary impairment |
|
|
382,130 |
|
|
|
|
|
|
|
382,130 |
|
|
nm |
Provision for loan losses |
|
|
90,500,000 |
|
|
|
5,000,000 |
|
|
|
85,500,000 |
|
|
nm |
Loss on restructured loans |
|
|
32,827,749 |
|
|
|
|
|
|
|
32,827,749 |
|
|
nm |
Management fee related party |
|
|
7,000,000 |
|
|
|
4,733,272 |
|
|
|
2,266,728 |
|
|
|
48 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total expenses |
|
|
185,127,786 |
|
|
|
77,889,265 |
|
|
|
107,238,521 |
|
|
|
138 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss) income before gain on exchange of
profits interest, gain on extinguishment of
debt, loss on termination of swaps and
loss from equity affiliates |
|
|
(119,082,631 |
) |
|
|
29,445,551 |
|
|
|
(148,528,182 |
) |
|
nm |
Gain on exchange of profits interest |
|
|
55,988,411 |
|
|
|
|
|
|
|
55,988,411 |
|
|
nm |
Gain on extinguishment of debt |
|
|
47,731,990 |
|
|
|
|
|
|
|
47,731,990 |
|
|
nm |
Loss on termination of swaps |
|
|
(8,729,408 |
) |
|
|
|
|
|
|
(8,729,408 |
) |
|
nm |
Loss from equity affiliates |
|
|
(10,157,018 |
) |
|
|
(562,000 |
) |
|
|
(9,595,018 |
) |
|
nm |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income |
|
|
(34,248,656 |
) |
|
|
28,883,551 |
|
|
|
(63,132,207 |
) |
|
nm |
Net income attributable to noncontrolling
interest |
|
|
18,562,077 |
|
|
|
4,450,754 |
|
|
|
14,111,323 |
|
|
nm |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income attributable to Abor Realty
Trust, Inc. |
|
$ |
(52,810,733 |
) |
|
$ |
24,432,797 |
|
|
$ |
(77,243,530 |
) |
|
nm |
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue
Interest income decreased $45.1 million, or 42%, to $62.2 million for the six months ended
June 30, 2009 from $107.3 million for the six months ended June 30, 2008. This decrease was
primarily due to a 35% decrease in the average yield on assets from 8.13% for the six months ended
June 30, 2008 to 5.26% for the six months ended June 30, 2009. This decrease in yield was the
result of a decrease in average LIBOR over the same period, along with the suspension of interest
on our non-performing loans, lower rates on refinanced and modified loans and a decrease in loans
and investments due to payoffs and paydowns. In addition, interest income from cash equivalents
decreased $2.6 million to $0.4 million for the six months ended June 30, 2009 compared to $3.0
million for the six
52
months ended June 30, 2008 as a result of decreased average cash balances, as well as
decreases in interest rates from 2008 to 2009. Interest income for the six months ended June 30,
2008 also included the recognition of $0.3 million from a 25.0% carried profits interest in a $0.3
million preferred equity investment.
Property operating income of $3.1 million for the six months ended June 30, 2009 represents
operating income associated with the operations of two commercial real estate properties recorded
as real estate owned, net. There was no property operating income for the six months ended June 30,
2008.
Other income increased $0.8 million for the six months ended June 30, 2009 from $49,322 for
the six months ended June 30, 2008. This is primarily due to the sale of the securities used as
collateral in association with the defeasance of one of our loans in the second quarter of 2009,
which had a value in excess of the principal of the loan outstanding.
Expenses
Interest expense decreased $18.9 million, or 32%, to $40.2 million for the six months ended
June 30, 2009 from $59.2 million for the six months ended June 30, 2008. This decrease was
primarily due to a 22% decrease in the average cost of these borrowings from 5.35% for the six
months ended June 30, 2008 to 4.19% for the six months ended June 30, 2009 due to a reduction in
average LIBOR on the portion of our debt that was floating over the same period. In addition,
there was a 14% decrease in the average balance of our debt facilities from $2.2 billion for the
six months ended June 30, 2008 to $1.9 billion for the six months ended June 30, 2009 as a result
of decreased leverage on our portfolio due to the paying down of certain outstanding indebtedness
by repayment of loans, the transfer of assets to our CDO vehicles which carry a lower cost of funds
and from available capital.
Employee compensation and benefits expense increased $1.2 million, or 27%, to $5.9 million for
the six months ended June 30, 2009 from $4.7 million for the six months ended June 30, 2008. This
increase was primarily due to grants of restricted stock awards to employees and the acceleration
of all previously unvested restricted stock in the second quarter of 2009. These expenses
represent salaries, benefits, stock-based compensation related to employees, and incentive
compensation for those employed by us during these periods.
Selling and administrative expense increased $0.4 million, or 10%, to $4.8 million for the six
months ended June 30, 2009 from $4.3 million for the six months ended June 30, 2008. These costs
include, but are not limited to, professional and consulting fees, marketing costs, insurance
expense, directors fees, licensing fees, travel and placement fees, and stock-based compensation
relating to the cost of restricted stock granted to our directors and certain employees of our
manager. This increase was primarily due to an increase in general corporate legal expenses
associated with the exchange of our junior subordinated notes as well as debt restructuring in the
first and second quarters of 2009, as well as grants of restricted stock awards to directors and
certain employees of our manager, ACM, and the acceleration of all previously unvested restricted
stock in the second quarter of 2009.
Property operating expenses of $2.9 million for the six months ended June 30, 2009 represents
all expenses related to the operations of two commercial real estate properties recorded as real
estate owned, net. There were no property operating expenses for the six months ended June 30,
2008.
Depreciation and amortization expense of $0.6 million for the six months ended June 30, 2009
represents depreciation on property, leasehold improvements, and equipment associated with the
consolidation of an office building as real estate owned, net. There were no depreciation and
amortization expenses for the six months ended June 30, 2008.
Other-than-temporary impairment charges of $0.4 million for the six months ended June 30, 2009
represents the recognition of an additional impairment to the fair market value of our
available-for-sale securities at June 30, 2009, that was considered other-than-temporary. GAAP
accounting standards require that investments are evaluated periodically to determine whether a
decline in their value is other-than-temporary, though it is not intended to indicate a permanent
decline in value. There were no other-than-temporary impairment charges for the three months ended
June 30, 2008. See Note 6 and Note 4 of the Notes to the Consolidated Financial Statements set
forth in Item 1 hereof for further details.
53
Provision for loan losses totaled $90.5 million for the six months ended June 30, 2009, and
$5.0 million for the six months ended June 30, 2008. The provision recorded for the six months
ended June 30, 2009 was based on our normal quarterly loan review at June 30, 2009, where it was
determined that 22 loans with a aggregate carrying value of $605.7 million, before reserves, were
impaired. We performed an evaluation of the loans and determined that the fair value of the
underlying collateral securing the impaired loans was less than the net carrying value of the
loans, resulting in us recording an additional $90.5 million provision for loan losses. The
provision recorded for the six months ended June 30, 2008 was based on four loans with an aggregate
carrying value of $80.3 million, before reserves, that were determined to be impaired.
Loss on restructured loans of $32.8 million for the six months ended June 30, 2009 represents
$9.0 million in losses incurred as a result of restructuring certain of our loans primarily due to
the unfavorable changes in market conditions in the first quarter of 2009 and the settlement of a
bridge loan with a carrying value of $47.0 million at a discount, for $23.2 million in the second
quarter of 2009. There were no losses on restructured loans for the six months ended June 30,
2008.
Management fees increased $2.3 million to $7.0 million for the six months ended June 30, 2009
from $4.7 million for the six months ended June 30, 2008. These amounts represent compensation in
the form of base management fees and estimated incentive management fees as provided for in the
management agreement with our manager. The incentive management fee expense for the six months
ended June 30, 2008 was $2.9 million. No incentive management fee was earned for the six months
ended June 30, 2009 as a result of a cumulative loss for the trailing 12-month period. The base
management fee expense was $7.0 million for the six months ended June 30, 2009 as compared to $1.8
million for the six months ended June 30, 2008 due to the newly amended management agreement with
ACM, our manager, in July 2009 which was retroactive. Refer to Management Agreement below for
further details.
Gain on exchange of profits interest of $56.0 million was due to the recognition of income
attributable to the POM exchange of profits interest transaction recognized in the six months ended
June 30, 2009. See Note 6 of the Notes to the Consolidated Financial Statements set forth in
Item 1 hereof for further details on the POM transaction recorded in the quarter ended March 2009.
Gain on extinguishment of debt totaled $47.7 million for the six months ended June 30, 2009.
During the first quarter of 2009, we purchased, at a discount, approximately $23.7 million of
investment grade rated bonds originally issued by our three CDO issuing entities. In addition, we
purchased, at a discount, approximately $9.4 million of junior subordinated notes originally issued
by a wholly-owned subsidiary of our operating partnership. We recorded a net gain on early
extinguishment of debt of $26.3 million related to these transactions. During the second quarter
of 2009, we purchased, at a discount, approximately $11.2 million of investment grade rated bonds
originally issued by two of our three CDO issuing entities and recorded a net gain on early
extinguishment of debt of $6.5 million related to these transactions. Also, during the second
quarter of 2009, we settled a bridge loan secured by a condominium project in New York City, as
well as our debt for the loan resulting in a gain on early extinguishment of the debt of $15.0
million.
Loss on termination of swaps of $8.7 million for the six months ended June 30, 2009 resulted
from the exchange of our outstanding trust preferred securities for newly issued unsecured junior
subordinated notes in the second quarter of 2009. Refer to Junior Subordinated Notes below. In
connection with the original issuance of the trust preferred securities, we had entered into
various interest rate swap agreements. Due to the modified interest payment structure of the newly
issued unsecured junior subordinated notes, the swaps were determined to no longer be effective or
necessary and were subsequently terminated, resulting in a loss of $8.7 million.
Loss from equity affiliates of $10.2 million for the six months ended June 30, 2009 included a
$11.7 million impairment charge on an investment in an equity affiliate that was considered
other-than-temporary. GAAP accounting standards require that investments are evaluated
periodically to determine whether a decline in their value is other-than-temporary, though it is
not intended to indicate a permanent decline in value. There were no other-than-temporary
impairment charges for the six months ended June 30, 2008. Loss from equity affiliates also
included $1.6 million of income and $0.6 million of loss recorded during the six months ended June
30, 2009 and June 30 2008, respectively, which reflect a portion of the joint ventures losses from
our Alpine Meadows equity
investment. See Note 6 of the Notes to the Consolidated Financial Statements set forth in
Item 1 hereof for further details.
54
Net Income Attributable to Noncontrolling Interest
Net income attributable to noncontrolling interest totaled $18.6 million for the six months
ended June 30, 2009 representing the portion of income allocated to the third partys interest in a
consolidated subsidiary, primarily the result of the $56.0 million gain recorded from the exchange
of our profits interest in POM during the first quarter of 2009. This is related to the POM
transaction discussed in Note 6 of the Notes to the Consolidated Financial Statements set forth
in Item 1 hereof.
Net income attributable to noncontrolling interest in our operating partnership totaled $4.5
million for the six months ended June 30, 2008 representing the portion of our income allocated to
our manager. There was no net income attributable to noncontrolling interest in our operating
partnership for the six months ended June 30, 2009. Our manager had a weighted average limited
partnership interest of 15.3% for the six months ended June 30, 2008. In June 2008, our manager,
exercised its right to redeem its 3,776,069 operating partnership units in our operating
partnership for shares of our common stock on a one-for-one basis. As a result, our managers
operating partnership ownership interest percentage was reduced to zero.
Provision for Income Taxes
We are organized and conduct our operations to qualify as a REIT for federal income tax
purposes. As a REIT, we are generally not subject to federal income tax on our REIT-taxable income
that we distribute to our stockholders, provided that we distribute at least 90% of our
REIT-taxable income and meet certain other requirements. As of June 30, 2009 and 2008, we were in
compliance with all REIT requirements and, therefore, have not provided for income tax expense on
our REIT- taxable income for the six months ended June 30, 2009 and 2008.
Certain of our assets that produce non-qualifying income are owned by our taxable REIT
subsidiaries, the income of which is subject to federal and state income taxes. During the six
months ended June 30, 2009 and 2008, we did not record any provision on income from these taxable
REIT subsidiaries.
Liquidity and Capital Resources
Sources of Liquidity
Liquidity is a measurement of the ability to meet potential cash requirements. Our short-term
and long-term liquidity needs include ongoing commitments to repay borrowings, fund future loans
and investments, fund additional cash collateral from potential declines in the value of a portion
of our interest rate swaps, fund operating costs and distributions to our stockholders as well as
other general business needs. Our primary sources of funds for liquidity consist of proceeds from
equity offerings, debt facilities and cash flows from operations. Our equity sources consist of
funds raised from our private equity offering in July 2003, net proceeds from our initial public
offering of our common stock in April 2004, net proceeds from our public offering of our common
stock in June 2007 and depending on market conditions, proceeds from capital market transactions
including the future issuance of common, convertible and/or preferred equity securities. Our debt
facilities include the issuance of floating rate notes resulting from our CDOs, the issuance of
junior subordinated notes and borrowings under credit agreements. Net cash provided by operating
activities include interest income from our loan and investment portfolio reduced by interest
expense on our debt facilities, cash from equity participation interests, repayments of outstanding
loans and investments and funds from junior loan participation arrangements.
We believe our existing sources of funds will be adequate for purposes of meeting our
short-term and long-term liquidity needs. Our loans and investments are financed under existing
credit facilities and their credit status is continuously monitored; therefore, these loans and
investments are expected to generate a generally stable return. Our ability to meet our long-term
liquidity and capital resource requirements is subject to obtaining additional debt and equity
financing. If we are unable to renew our sources of financing on substantially similar terms or at
all, it would have an adverse effect on our business and results of operations. Any decision by
our lenders and investors to
55
enter into such transactions with us will depend upon a number of factors, such as our
financial performance, compliance with the terms of our existing credit arrangements, industry or
market trends, the general availability of and rates applicable to financing transactions, such
lenders and investors resources and policies concerning the terms under which they make such
capital commitments and the relative attractiveness of alternative investment or lending
opportunities.
Current conditions in capital and credit markets have made certain forms of financing less
attractive, and in certain cases less available, therefore we will continue to rely on cash flows
provided by operating and investing activities for working capital.
To maintain our status as a REIT under the Internal Revenue Code, we must distribute annually
at least 90% of our REIT-taxable income. These distribution requirements limit our ability to
retain earnings and thereby replenish or increase capital for operations. However, we believe that
our capital resources and access to financing will provide us with financial flexibility and market
responsiveness at levels sufficient to meet current and anticipated capital requirements. In
December 2008, the IRS issued Revenue Procedure 2008-68 that allows listed REITs to offer
shareholders elective stock dividends, which are paid in a combination of cash and common stock
with at least 10% of the total distribution paid in cash, to satisfy the dividend requirement
through 2009.
Equity Offerings
Our authorized capital provides for the issuance of up to 500 million shares of common stock,
par value $0.01 per share, and 100 million shares of preferred stock, par value $0.01 per share.
In March 2007, we filed a shelf registration statement on Form S-3 with the SEC under the 1933
Act with respect to an aggregate of $500.0 million of debt securities, common stock, preferred
stock, depositary shares and warrants, that may be sold by us from time to time pursuant to Rule
415 of the 1933 Act. On April 19, 2007, the Commission declared this shelf registration statement
effective.
In June 2007, we sold 2,700,000 shares of our common stock registered on the shelf
registration statement in a public offering at a price of $27.65 per share, for net proceeds of
approximately $73.6 million after deducting the underwriting discount and the other estimated
offering expenses. We used the proceeds to pay down debt and finance our loan and investment
portfolio. The underwriters did not exercise their over allotment option for additional shares.
In August 2008, we entered into an equity placement program sales agreement with a securities
agent whereby we may issue and sell up to three million shares of our common stock through the
agent who agrees to use its commercially reasonable efforts to sell such shares during the term of
the agreement and under the terms set forth therein. To date, we have not utilized this equity
placement program.
At June 30, 2009, we had $425.3 million available under the shelf registration described above
and 25,387,410 shares outstanding.
Debt Facilities
We also currently maintain liquidity through a term credit agreement, two master repurchase
agreements, one working capital facility, one note payable, three junior loan participations and
one bridge loan warehousing credit agreement with six different financial institutions or
companies. In addition, we have issued three collateralized debt obligations or CDOs and 13
separate junior subordinated notes. London inter-bank offered rate, or LIBOR, refers to one-month
LIBOR unless specifically stated. As of June 30, 2009, these facilities had aggregate borrowings
of approximately $1.8 billion.
56
The following is a summary of our debt facilities as of June 30, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At June 30, 2009 |
|
|
|
|
|
|
|
Debt Carrying |
|
|
|
|
|
|
Maturity |
|
Debt Facilities |
|
Commitment |
|
|
Value |
|
|
Available |
|
|
Dates |
|
Repurchase agreements.
Interest is variable
based on pricing over
LIBOR |
|
$ |
4,388,250 |
|
|
$ |
4,388,250 |
|
|
$ |
|
|
|
|
2010 |
|
Collateralized debt
obligations. Interest
is variable based on
pricing over
three-month
LIBOR |
|
|
1,126,900,316 |
|
|
|
1,113,600,316 |
|
|
|
13,300,000 |
|
|
|
2011 - 2013 |
|
Junior subordinated
notes. Interest is
variable based on
pricing over
three-month
LIBOR |
|
|
259,173,610 |
|
|
|
259,173,610 |
|
|
|
|
|
|
|
2034 - 2037 |
|
Notes payable.
Interest is variable
based on pricing over
Prime or LIBOR
(1) |
|
|
479,809,934 |
|
|
|
442,186,353 |
|
|
|
37,623,581 |
|
|
|
2009 - 2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
1,870,272,110 |
|
|
$ |
1,819,348,529 |
|
|
$ |
50,923,581 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
In July 2009, we amended and restructured our term credit agreements, revolving credit
agreement and working capital facility with Wachovia Bank, National Association as discussed below. |
These debt facilities are discussed in further detail in Note 8 of the Notes to the
Consolidated Financial Statements set forth in Item 1 hereof.
Repurchase Agreements
Repurchase obligation financings provide us with a revolving component to our debt structure.
Repurchase agreements provide stand alone financing for certain assets and interim, or warehouse
financing, for assets that we plan to contribute to our CDOs. At June 30, 2009, the aggregate
outstanding balance under these facilities was $4.4 million.
We had a $200.0 million repurchase agreement with a financial institution which had a term
expiring in October 2009 and had interest at pricing over LIBOR, varying on the type of asset
financed. In June 2009, this facility, with approximately $37.0 million outstanding, was satisfied
at a discount for $22.0 million resulting in a $15.0 million gain on extinguishment of debt. In
connection with this transaction, we sold a bridge loan financed in this facility with a carrying
value of $47.0 million, at a discount, for approximately $23.2 million and recorded a loss on
restructuring of $23.8 million. The proceeds were used to satisfy the $22.0 million cash payment.
We have a $100 million repurchase agreement with a second financial institution that bears
interest at 250 basis points over LIBOR and had a term expiring in June 2009. In June 2009, we
amended this facility extending the maturity to June 2010, with a one year extension option. In
addition, the amendment includes the removal of all financial covenants and a reduction of the
committed amount to $2.8 million reflecting the one asset currently financed in this facility.
During the six months ended June 30, 2009, we paid down approximately $12.7 million of this
facility. At June 30, 2009, the outstanding balance under this facility was $2.8 million with a
current weighted average note rate of 2.34%.
We have an uncommitted master repurchase agreement with a third financial institution,
effective April 2008, entered into for the purpose of financing a portion of our CRE CDO bond
securities. The agreement has a term expiring in May 2010 and bears interest at pricing over
LIBOR, varying on the type of asset financed. During the first and second quarters of 2009, we
paid down approximately $1.3 million of this facility, due to a decrease in values associated with
a change in market interest rate spreads. At June 30, 2009, the outstanding balance under this
facility was $1.6 million with a current weighted average note rate of 1.78%.
57
CDOs
We completed three separate CDOs since 2005 by issuing to third party investors, tranches of
investment grade collateralized debt obligations through newly-formed wholly-owned subsidiaries
(the Issuers). The Issuers hold assets, consisting primarily of real-estate related assets and
cash which serve as collateral for the CDOs. The assets pledged as collateral for the CDOs were
contributed from our existing portfolio of assets. By contributing these real estate assets to the
various CDOs, these transactions resulted in a decreased cost of funds relating to the
corresponding CDO assets and created capacity in our existing credit facilities.
The Issuers issued tranches of investment grade floating-rate notes of approximately
$305.0 million, $356.0 million and $447.5 million for CDO I, CDO II and CDO III, respectively. CDO
III also has a $100.0 million revolving note which was not drawn upon at the time of issuance. The
revolving note facility has a commitment fee of 0.22% per annum on the undrawn portion of the
facility. The tranches were issued with floating rate coupons based on three-month LIBOR plus
pricing of 0.44% 0.77%. Proceeds from the sale of the investment grade tranches issued in CDO I,
CDO II and CDO III of $267.0 million, $301.0 million and $317.1 million, respectively, were used to
repay higher costing outstanding debt under our repurchase agreements and notes payable. The CDOs
may be replenished with substitute collateral for loans that are repaid during the first four years
for CDO I and the first five years for CDO II and CDO III, subject to certain customary provisions.
Thereafter, the outstanding debt balance will be reduced as loans are repaid. Proceeds from the
repayment of assets which serve as collateral for the CDOs must be retained in its structure as
restricted cash until such collateral can be replaced and therefore not available to fund current
cash needs. If such cash is not used to replenish collateral, it could have a negative impact on
our anticipated returns. Proceeds from CDO II are distributed quarterly with approximately $1.1
million being paid to investors as a reduction of the CDO liability. As of April 15, 2009, CDO I
reached the end of its replenishment date and will no longer make quarterly amortization payments
to investors. Investor capital will be repaid quarterly from proceeds received from loan
repayments held as collateral in accordance with the terms of the CDO. Proceeds distributed will
be recorded as a reduction of the CDO liability. For accounting purposes, CDOs are consolidated in
our financial statements.
During the quarter ended June 30, 2009, we purchased, at a discount, approximately $11.2
million of investment grade rated notes originally issued by our CDO issuing entities for a price
of $4.7 million. We recorded a net gain on extinguishment of debt of $6.5 million and a reduction
of outstanding debt totaling $11.2 million from these transactions in our second quarter 2009
financial statements.
During the quarter ended March 31, 2009, we purchased, at a discount, approximately $23.7
million of investment grade rated notes originally issued by our CDO issuing entities for a price
of $5.6 million. We recorded a net gain on extinguishment of debt of $18.2 million and a reduction
of outstanding debt totaling $23.7 million from these transactions in our first quarter 2009
financial statements.
At June 30, 2009, the outstanding note balance under CDO I, CDO II and CDO III was $261.8
million, $331.6 million and $520.2 million, respectively.
The continued turmoil in the structured finance markets, in particular the sub-prime
residential loan market, has negatively impacted the credit markets generally, and, as a result,
investor demand for commercial real estate collateralized debt obligations has been substantially
curtailed. In recent years, we have relied to a substantial extent on CDO financings to obtain
match funded financing for our investments. Until the market for commercial real estate CDOs
recovers, we may be unable to utilize CDOs to finance our investments and we may need to utilize
less favorable sources of financing to finance our investments on a long-term basis. There can be
no assurance as to when demand for commercial real estate CDOs will return or the terms of such
securities investors will demand or whether we will be able to issue CDOs to finance our
investments on terms beneficial to us.
Our CDO bonds contain interest coverage and asset over collateralization covenants that must
be met as of the waterfall distribution date in order for us to receive such payments. If we fail
these covenants in any of our CDOs, all cash flows from the applicable CDO would be diverted to
repay principal and interest on the outstanding CDO bonds and we would not receive any residual
payments until that CDO regained compliance with such tests. We were in compliance with all such
covenants with the exception of the over collateralization test of CDO I as of
58
March 31, 2009. In April 2009, this covenant was cured prior to the waterfall distribution
date and, as a result, we are currently in compliance with all CDO covenants. In the event of a
breach of the CDO covenants that could not be cured in the near-term, we would be required to fund
our non-CDO expenses, including management fees and employee costs, distributions required to
maintain REIT status, debt costs, and other expenses with (i) cash on hand, (ii) income from any
CDO not in breach of a covenant test, (iii) income from real property and unencumbered loan assets,
(iv) sale of assets, (v) or accessing the equity or debt capital markets, if available. We have
the right to cure covenant breaches which would resume normal residual payments to us by
purchasing non-performing loans out of the CDOs. However, we may not have sufficient liquidity
available to do so at such time.
Junior Subordinated Notes
In May 2009, we exchanged $247.1 million of our outstanding trust preferred securities,
consisting of $239.7 million of junior subordinated notes issued to third party investors and $7.4
million of common equity issued to us in exchange for $268.4 million of newly issued unsecured
junior subordinated notes, representing 112% of the original face amount. The new notes bear a
fixed interest rate of 0.50% per annum until April 30, 2012 (the Modification Period), and then
interest is to be paid at the rates set forth in the existing trust agreements until maturity,
equal to a weighted average three month LIBOR plus 2.90%. We paid a transaction fee of
approximately $1.2 million to the issuers of the junior subordinated notes related to this
restructuring.
In July 2009, we restructured the remaining $18.7 million of trust preferred securities that
were not exchanged from the May 2009 restructuring transaction previously disclosed. We amended
the $18.7 million of junior subordinated notes to $20.9 million of unsecured junior subordinated
notes, representing 112% of the original face amount. The amended notes bear a fixed interest rate
of 0.50% per annum for a period of approximately three years, the modification period. Thereafter,
interest is to be paid at the rates set forth in the existing trust agreements until maturity,
equal to a weighted average three month LIBOR plus 2.74%. We paid a transaction fee of
approximately $0.1 million to the issuers of the junior subordinated notes related to this
restructuring.
During the Modification Period, we will be permitted to make distributions of up to 100% of
taxable income to common shareholders. We have agreed that such distributions will be paid in the
form of our stock to the maximum extent permissible under the Internal Revenue Service rules and
regulations in effect at the time of such distribution, with the balance payable in cash. This
requirement regarding distributions in stock can be terminated by us at any time, provided that we
pay the note holders the original rate of interest from the time of such termination.
The junior subordinated notes are unsecured, have a maturity of 25 to 28 years, pay interest
quarterly at a fixed rate or floating rate of interest based on three-month LIBOR and, absent the
occurrence of special events, are not redeemable during the first two years. In connection with
the issuance of the original variable rate junior subordinated notes, we had entered into various
interest rate swap agreements which were subsequently terminated upon the exchange discussed
above. See Item 3 Quantitative and Qualitative Disclosures About Market Risk for further
information relating to our derivatives.
In March 2009, we purchased, at a discount, approximately $9.4 million of investment grade
rated junior subordinated notes originally issued by a wholly-owned subsidiary of our operating
partnership for $1.3 million. We recorded a net gain on extinguishment of debt of $8.1 million and
a reduction of outstanding debt totaling $9.4 million from this transaction in our first quarter
2009 financial statements. In connection with this transaction, during the second quarter of 2009,
we retired approximately $0.3 million of common equity related to these junior subordinated notes.
At June 30, 2009, the aggregate carrying value under these facilities was $259.2 million with
a current weighted average pay rate of 0.70%, however, based upon the accounting treatment for the
restructure, the effective rate was 3.93% at June 30, 2009.
59
Notes Payable
At June 30, 2009, notes payable consisted of two term credit agreements, a revolving credit
line, a working capital facility, a bridge loan warehousing credit agreement, a note payable and
three junior loan participations, and the aggregate outstanding balance under these facilities was
$442.2 million.
In November 2007, we had entered into two credit agreements with Wachovia which replaced two
previously existing repurchase agreements with Wachovia and an affiliate of Wachovia. The first
credit agreement consisted of a $473.0 million term loan and a $100.0 million revolving commitment
which has a commitment period of two years with a one year auto extension feature, subject to
certain criteria, to November 2010. The second credit agreement was a $69.0 million term loan
which has a commitment period of two years with a one year extension period to November 2010.
These two credit agreements each had interest at pricing over LIBOR, and eliminated the mark to
market risk as it relates to interest rate spreads that existed under the terms of the previous
repurchase agreements.
The $473.0 million term loan had repayment provisions which required a reduction of the
outstanding balance to $300.0 million by December 31, 2008. At December 31, 2008, the outstanding
balance under this facility was $280.2 million. At June 30, 2009, the outstanding balance under
this facility was $237.7 million with a weighted average note rate of 2.97%. In July 2009, we
restructured this credit agreement as discussed below. The $100.0 million revolving commitment was
used to finance new investments and could have been increased with lender approval to $200.0
million when the term loan was paid down to $400.0 million in February 2008. At June 30, 2009, the
outstanding balance under this revolving facility was $64.0 million with a weighted average note
rate of 2.96%. In July 2009, we restructured this revolving commitment as discussed below.
The $69.0 million term loan included $10.0 million of annual repayment provisions in quarterly
installments. We had also pledged our 24% equity interest in POM as part of the agreement. In the
second and third year of this term facility, we were required to paydown this facility by an
additional amount equal to distributions in excess of $10.0 million per year received by us from
our investment in POM, if any. In connection with the POM transaction in July 2008, we agreed to
pay down approximately $11.6 million of this facility from proceeds received from this transaction.
In addition, 16.7% of our 24.2% equity interest in POM was released as collateral in conjunction
with this paydown. At June 30, 2009, the outstanding balance under this facility was $30.3 million
with a current weighted average note rate of 2.85%. In July 2009, we restructured this term loan
as discussed below.
We had a $70.0 million bridge loan warehousing credit agreement with a financial
institution, with a maturity date of October 2009, to provide financing for bridge loans. In May
2009, we amended this facility, extending the maturity to May 2010 with a one year extension option
and reducing the committed amount to $13.5 million. This agreement bears a rate of interest,
payable monthly, based on one month LIBOR plus 3.75%. Pricing is available at Prime or over 1, 2,
3 or 6-month LIBOR, at our option. At June 30, 2009, the outstanding balance under this facility
was $11.8 million with a current weighted average note rate of 3.86%. Subsequently, in July 2009,
the facility was repaid in full.
We had a $45.0 million working capital facility with Wachovia that had a term expiring in June
2009. In June 2009, the maturity was amended to July 2009. The facility required quarterly
paydowns of $3.0 million and an interest rate of 500 bps over LIBOR. At June 30, 2009, the
aggregate outstanding balance under this facility was $41.9 million with a current weighted average
note rate of 5.38%. In July 2009, we restructured this working capital facility as discussed
below.
We have a $50.2 million note payable related to the POM transaction. During the second
quarter of 2008, we recorded a $49.5 million note payable related to the POM exchange of profits
interest transaction. The note was initially secured by our interest in POM, matures in July 2016
and bore interest at a fixed rate of 4% with payment deferred until the closing of the transaction.
Upon the closing of the POM transaction in March 2009, the note balance was increased to $50.2
million, bears interest at a fixed rate of 4% and is secured by our investment in common and
preferred operating partnership units in Lightstone Value Plus REIT, L.P.
We have three junior loan participations with a total outstanding balance at June 30, 2009 of
$6.3 million. These participation borrowings have a maturity date equal to the corresponding
mortgage loan and are secured by
the participants interest in the mortgage loans. Interest expense is based on a portion of
the interest received from the loans.
60
In July 2009, we amended and restructured our term credit agreements, revolving credit
agreement and working capital facility with Wachovia Bank, National Association as follows:
|
|
|
The term revolving credit agreement with an outstanding balance of $64.0 million at June
30, 2009 was combined into the term debt facility with an outstanding balance of $237.7
million at June 30, 2009, along with a portion of the term debt facility with an
outstanding balance of $30.3 million at June 30, 2009, and $15.0 million of this term debt
facility was combined into the working capital line with an outstanding balance of $41.9 at
June 30, 2009. This debt restructuring resulted in the consolidation of these four
facilities into one term debt facility with an outstanding balance of $317.0 million, which
contains a revolving component with $35.0 million of availability, and one working capital
facility with an outstanding balance of $56.9 million at July 2009. |
|
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|
|
The maturity dates of the facilities were extended for three years, with a working
capital facility maturity of June 8, 2012 and a term debt facility maturity of July 23,
2012. |
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|
The term loan facility requires a $48.0 million reduction over the three year term, with
approximately $8.0 million in reductions due every six months beginning in December 2009. |
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|
Margin call provisions relating to collateral value of the underlying assets have been
eliminated, as long as the term loan reductions are met, with the exception of limited
margin call capability related to foreclosed or real estate-owned assets. |
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|
The working capital facility requires quarterly amortization of up to $3.0 million per
quarter, $1.0 million per CDO, only if both (a) the CDO is cash flowing to us and (b) we
have a minimum quarterly liquidity level of $27.5 million. |
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|
Interest rate of LIBOR plus 350 basis points for the term loan facility, compared to
LIBOR plus approximately 200 basis points previously and LIBOR plus 800 basis points for
the working capital facility, compared to LIBOR plus 500 basis points previously. We have
also agreed to pay a commitment fee of 1.00% payable over 3 years. |
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|
We issued Wachovia 1.0 million warrants at an average strike price of $4.00. 500,000
warrants are exercisable immediately at a price of $3.50, 250,000 warrants are exercisable
after July 23, 2010 at a price of $4.00 and 250,000 warrants are exercisable after July 23,
2011 at a price of $5.00. All warrants expire on July 23, 2015. |
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Annual dividends are limited to 100% of taxable income to common shareholders and are
required to be paid in the form of our stock to the maximum extent permissible (currently
90%), with the balance payable in cash. We will be permitted to pay 100% of taxable income
in cash if the term loan facility balance is reduced to $210.0 million, the working capital
facility is reduced to $30.0 million and we maintain $35.0 million of minimum liquidity. |
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|
Our CEO and Chairman, Ivan Kaufman, is required to remain an officer or director of the
Company for the term of the facilities. |
In addition, the financial covenants have been reduced to the following:
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Minimum quarterly liquidity of $7.5 million in cash and cash equivalents. |
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|
Minimum quarterly GAAP net worth of $150.0 million. |
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Ratio of total liabilities to tangible net worth shall not exceed 4.5 to 1 quarterly. |
We are currently evaluating the effect of this transaction on our Consolidated Financial
Statements.
Mortgage Note Payable
During the second quarter of 2008, we recorded a $41.4 million first lien mortgage related to
the foreclosure of an entity in which we had a $5.0 million mezzanine loan. The mortgage bears
interest at a fixed rate, has a maturity date of June 2012 and the outstanding balance of this
mortgage was $41.4 million at June 30, 2009.
61
Note Payable Related Party
During the fourth quarter of 2008, we borrowed $4.2 million from our manager,
ACM. At December 31, 2008, we had outstanding borrowings due to ACM totaling $4.2 million, which
was recorded in notes payable related party. In January 2009, the loan was repaid in full.
The working capital facility, bridge loan warehousing credit agreement, term and revolving
credit agreements, and the master repurchase agreements require that we pay interest monthly, based
on pricing over LIBOR. The amount of our pricing over these rates varies depending upon the
structure of the loan or investment financed pursuant to the specific agreement.
The working capital facility, term and revolving credit agreements, bridge loan warehousing
credit agreement, and the master repurchase agreements require that we pay down borrowings under
these facilities pro-rata as principal payments on our loans and investments are received. In
addition, if upon maturity of a loan or investment we decide to grant the borrower an extension
option, the financial institutions have the option to extend the borrowings or request payment in
full on the outstanding borrowings of the loan or investment extended.
Cash Flow From Operations
We continually monitor our cash position to determine the best use of funds to both maximize
our return on funds and maintain an appropriate level of liquidity. Historically, in order to
maximize the return on our funds, cash generated from operations has generally been used to
temporarily pay down borrowings under credit facilities whose primary purpose is to fund our new
loans and investments. Consequently, when making distributions in the past, we have borrowed the
required funds by drawing on credit capacity available under our credit facilities. However, given
current market conditions, we may have to maintain adequate liquidity from operations to make any
future distributions.
Restrictive Covenants
Each of the credit facilities contains various financial covenants and restrictions, including
minimum net worth and debt-to-equity ratios. In addition to the financial terms and capacities
described above, our credit facilities generally contain covenants that prohibit us from effecting
a change in control, disposing of or encumbering assets being financed and restrict us from making
any material amendment to our underwriting guidelines without approval of the lender. If we
violate these covenants in any of our credit facilities, we could be required to pledge more
collateral, or repay all or a portion of our indebtedness before maturity at a time when we might
be unable to arrange financing for such repayment on attractive terms, if at all. If we are unable
to retire our borrowings in such a situation, (i) we may need to prematurely sell the assets
securing such debt, (ii) the lenders could accelerate the debt and foreclose on the assets that are
pledged as collateral to such lenders, (iii) such lenders could force us into bankruptcy, (iv) such
lenders could force us to take other actions to protect the value of their collateral and (v) our
other debt financings could become immediately due and payable. Any such event would have a
material adverse effect on our liquidity, the value of our common stock, our ability to make
distributions to our stockholders and our ability to continue as a going concern. Violations of
these covenants may also result in our being unable to borrow unused amounts under our credit
facilities, even if repayment of some or all borrowings is not required. Additionally, to the
extent that we were to realize additional losses relating to our loans and investments, it would
put additional pressure on our ability to continue to meet these covenants.
We were in compliance with all financial covenants and restrictions for the periods presented
with the exception of a minimum tangible net worth requirement with one financial institution at
June 30, 2009. Our tangible net worth was $307.2 million at June 30, 2009 and we were required to
maintain a minimum net worth of $350.0 million for this financial institution. We have obtained a
waiver of this covenant for June 30, 2009 from this financial institution and the covenant was
subsequently amended in conjunction with the debt restructuring with this financial institution as
previously disclosed.
62
Contractual Commitments
As of June 30, 2009, we had the following material contractual obligations (payments in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contractual |
|
Payments Due by Period (1) |
|
Obligations |
|
2009 |
|
|
2010 |
|
|
2011 |
|
|
2012 |
|
|
2013 |
|
|
Thereafter |
|
|
Total |
|
Notes payable
(2) |
|
$ |
22,756 |
|
|
$ |
29,135 |
|
|
$ |
21,000 |
|
|
$ |
319,137 |
|
|
$ |
|
|
|
$ |
50,158 |
|
|
$ |
442,186 |
|
Collateralized debt
obligations
(3) |
|
|
80,796 |
|
|
|
47,766 |
|
|
|
196,425 |
|
|
|
788,613 |
|
|
|
|
|
|
|
|
|
|
|
1,113,600 |
|
Repurchase
agreements |
|
|
|
|
|
|
4,388 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,388 |
|
Trust preferred
Securities (4) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
259,174 |
|
|
|
259,174 |
|
Mortgage note
payable |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41,440 |
|
|
|
|
|
|
|
|
|
|
|
41,440 |
|
Outstanding unfunded
commitments (5) |
|
|
22,735 |
|
|
|
31,622 |
|
|
|
12,599 |
|
|
|
1,201 |
|
|
|
401 |
|
|
|
723 |
|
|
|
69,281 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Totals |
|
$ |
126,287 |
|
|
$ |
112,911 |
|
|
$ |
230,024 |
|
|
$ |
1,150,391 |
|
|
$ |
401 |
|
|
$ |
310,055 |
|
|
$ |
1,930,069 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Represents amounts due based on contractual maturities. |
|
(2) |
|
In July 2009, we amended and restructured our term credit agreements,
revolving credit agreement and working capital facility with Wachovia
Bank, National Association described above in Debt Facilities,
extending the maturity dates for three years, which is reflected in
this table. |
|
(3) |
|
Comprised of $261.8 million of CDO I debt, $331.6 million of CDO II
debt and $520.2 million of CDO III debt with a weighted average
remaining maturity of 1.65, 2.62 and 3.04 years, respectively, as of
June 30, 2009. In the first and second quarters of 2009, we
repurchased, at a discount, approximately $34.9 million of investment
grade notes originally issued by our CDO I, CDO II and CDO III issuers
and recorded a reduction of the outstanding debt balance of $34.9
million. |
|
(4) |
|
In the first quarter of 2009, we repurchased, at a discount,
approximately $9.4 million of investment grade rated junior
subordinated notes originally issued by our issuing entity and
recorded a reduction of the outstanding debt balance of $9.4 million. |
|
(5) |
|
In accordance with certain loans and investments, we have outstanding
unfunded commitments of $69.3 million as of June 30, 2009, that we are
obligated to fund as the borrowers meet certain requirements.
Specific requirements include, but are not limited to, property
renovations, building construction, and building conversions based on
criteria met by the borrower in accordance with the loan agreements.
In relation to the $69.3 million outstanding balance at June 30, 2009,
our restricted cash balance contained approximately $31.3 million of
cash held to fund the portion of the unfunded commitments for loans
financed by our CDO vehicles. |
Management Agreement
Base Management Fees. In exchange for the services that ACM provides us pursuant to the
management agreement, we historically paid our manager a monthly base management fee in an amount
equal to:
|
(1) |
|
0.75% per annum of the first $400 million of our operating partnerships
equity (equal to the month-end value computed in accordance with GAAP of total
partners equity in our operating partnership, plus or minus any unrealized gains,
losses or other items that do not affect realized net income), |
|
|
(2) |
|
0.625% per annum of our operating partnerships equity between $400 million
and $800 million, and |
|
|
(3) |
|
0.50% per annum of our operating partnerships equity in excess of
$800 million. |
The base management fee was not calculated based on the managers performance or the types of
assets it selects for investment on our behalf, but it was affected by the performance of these
assets because it is based on the value of our operating partnerships equity.
Incentive Compensation. Pursuant to the management agreement, our manager is also entitled to
receive incentive compensation in an amount equal to:
63
|
(1) |
|
25% of the amount by which: |
|
(a) |
|
our operating partnerships funds from operations per
operating partnership unit, adjusted for certain
gains and losses, exceeds |
|
|
(b) |
|
the product of (x) the greater of 9.5% per annum or
the Ten Year U.S. Treasury Rate plus 3.5%, and (y)
the weighted average of (i) $15.00, (ii) the offering
price per share of our common stock (including any
shares of common stock issued upon exercise of
warrants or options) in any subsequent offerings
(adjusted for any prior capital dividends or
distributions), and (iii) the issue price per
operating partnership unit for subsequent
contributions to our operating partnership,
multiplied by |
|
(2) |
|
the weighted average of our operating partnerships outstanding operating
partnership units. |
Origination Fees. Our manager was entitled to 100% of the origination fees paid by borrowers
under each of our bridge loan and mezzanine loans that do not exceed 1% of the loans principal
amount. We retain 100% of the origination fee that exceeds 1% of the loans principal amount.
Term and Termination. The management agreement had an initial term of two years and was
renewable automatically for an additional one year period every year thereafter, unless terminated
with six months prior written notice. If we terminated or elected not to renew the management
agreement in order to manage our portfolio internally, we were required to pay a termination fee
equal to the base management fee and incentive compensation for the 12-month period preceding the
termination. If, without cause, we terminated or elected not to renew the management agreement for
any other reason, including a change of control of us, we were required to pay a termination fee
equal to two times the base management fee and incentive compensation paid for the 12-month period
preceding the termination.
On August 6, 2009, we amended our management agreement with ACM. The amendment was negotiated
by a special committee of our Board of Directors, consisting solely of independent directors and
approved unanimously by all of the independent directors. JMP Securities LLC served as financial
advisor to the special committee and Skadden, Arps, Slate, Meagher & Flom LLP served as its special
counsel. The agreement includes the following new terms:
|
|
|
The existing base management fee structure, which is calculated as a
percentage of our equity, will be replaced with an arrangement whereby we will reimburse
the manager for its actual costs incurred in managing our business based on the parties
agreement in advance on an annual budget with subsequent quarterly true-ups to actual
costs. This change was adopted retroactively to January 1, 2009 and we estimate the 2009
base management fee will be in the range of $8.0 million to $9.0 million. Concurrent with
this change, all future origination fees on investments will be retained by us as opposed
to the manager earning up to the first one percent of all originations fees previously. In
addition, we will make a $3.0 million payment to the manager in consideration of expenses
incurred by the manager in 2008 in managing our business and certain other services. These
changes were accounted for prospectively as a change in accounting estimate and a
recognized subsequent event. |
|
|
|
|
The percentage hurdle for the incentive fee will be applied on a per share
basis to the greater of $10.00 and the average gross proceeds per share, whereas the
existing management agreement provides for such percentage hurdle to be applied only to the
average gross proceeds per share. In addition, only 60% of any loan loss and other
reserve recoveries will be eligible to be included in the incentive fee calculation, which
will be spread over a three year period, whereas the existing management agreement does not
limit the inclusion of such recoveries in the incentive fee calculation. |
|
|
|
|
The amended management agreement allows us to consider, from time to time, the
payment of additional incentive fees to the manager for accomplishing certain specified
corporate objectives. |
|
|
|
|
The amended management agreement modifies and simplifies the provisions
related to the termination of the agreement and any related fees payable in such instances,
including for internalization, with a termination fee of $10.0 million, rather than a
multiple of base and incentive fees as previously existed. |
|
|
|
|
The amended management agreement will remain in effect until December 31,
2010, and will be renewed automatically for successive one-year terms thereafter. |
64
We incurred $6.3 million and $7.0 million of base management fees for services rendered in the
three and six months ended June 30, 2009, respectively. We incurred $0.9 million and $1.8 million
of base management fees for services rendered in the three and six months ended June 30, 2008,
respectively.
For the three and six months ended June 30, 2009, ACM did not earn an incentive compensation
installment. For the three and six months ended June 30, 2008, ACM received incentive compensation
installments of $8.5 million and $10.2 million, respectively. The $10.2 million included a $7.3
million deferred management fee recorded in the second quarter of 2008 related to the incentive
compensation fee recognized from the monetization of the POM transaction in June 2008, which
subsequently closed in the second quarter of 2009. In 2008, the $7.3 million deferred incentive
compensation fee was paid in 355,903 shares of common stock and $4.1 million paid in cash, and was
reclassified to prepaid management fees. In accordance with the amended management agreement,
installments of the annual incentive compensation are subject to quarterly recalculation and
potential reconciliation at the end of the 2009 fiscal year and any overpayments are required to be
repaid in accordance with the management agreement. See Note 6 of the Notes to the Consolidated
Financial Statements set forth in Item 1 hereof for further details.
In addition, during the six months ended June 30, 2008, ACM received incentive compensation
installments totaling $2.9 million, of which $1.4 million was paid in 116,680 shares of common
stock and $1.5 million paid in cash. For the year ended December 31, 2008, ACM did not earn an
incentive compensation fee and an overpayment of the incentive fee was recorded and included in due
from related party in the amount of $2.9 million. In June, 2009, ACM repaid the $2.9 million in
accordance with the amended management agreement described above. Additionally, in 2007, ACM
received an incentive compensation installment totaling $19.0 million which was recorded as prepaid
management fees related to the incentive compensation management fee on $77.1 million of deferred
revenue recognized on the transfer of control of the 450 West 33rd Street property, of
one of our equity affiliates.
We pay the annual incentive compensation in four installments, each within 60 days of the end
of each fiscal quarter. The calculation of each installment is based on results for the 12 months
ending on the last day of the fiscal quarter for which the installment is payable. These
installments of the annual incentive compensation are subject to recalculation and potential
reconciliation at the end of such fiscal year, and any overpayments are required to be repaid in
accordance with the amended management agreement. Subject to the ownership limitations in our charter, at
least 25% of this incentive compensation is payable to our manager in shares of our common stock
having a value equal to the average closing price per share for the last 20 days of the fiscal
quarter for which the incentive compensation is being paid.
The incentive compensation is accrued as it is earned. In accordance with Issue 4(b) of EITF
96-18, Accounting for Equity Instruments That Are Issued to Other Than Employees for Acquiring, or
in Conjunction with Selling, Goods or Services, the expense incurred for incentive compensation
paid in common stock is determined using the valuation method described above and the quoted market price of our
common stock on the last day of each quarter. At December 31 of each year, we remeasure the
incentive compensation paid to our manager in the form of common stock in accordance with Issue
4(a) of EITF 96-18 which discusses how to measure at the measurement date when certain terms are
not known prior to the measurement date. Accordingly, the expense recorded for such common stock
is adjusted to reflect the fair value of the common stock on the measurement date when the final
calculation of the annual incentive compensation is determined. In the event that the annual
incentive compensation calculated as of the measurement date is less than the four quarterly
installments of the annual incentive compensation paid in advance, our manager will refund the
amount of such overpayment in cash and we would record a negative incentive compensation expense in
the quarter when such overpayment is determined.
Related Party Transactions
Due to related party was $4.7 million at June 30, 2009 and consisted primarily of $5.8 million
of base management fees. The balance also included $1.1 million of escrows due from ACM related to
a second quarter 2009 foreclosed real estate asset. At December 31, 2008, due to related party was
$1.0 million and consisted of $0.8 million of base management fees and $0.2 million of unearned
fees.
65
At June 30, 2009, due from related party was reduced to zero due to the repayment by ACM of a
$2.9 million overpayment of incentive management compensation from 2008. At December 31, 2008, due
from related party was $2.9 million as a result of this overpayment of incentive management
compensation based on the results of the twelve months ended December 31, 2008. Refer to the
section Management Agreement above for further details.
During the first quarter of 2009, we purchased from ACM, approximately $8.8 million of
investment grade rated bonds originally issued by two of our three CDO issuing entities and
approximately $9.4 million of junior subordinated notes originally issued by a wholly-owned
subsidiary of our operating partnership for a net gain on early extinguishment of debt of $13.8
million. At March 31, 2009, ACM owned $11.3 million of CDO notes originally issued by our CDOs that
were purchased for $5.0 million from third party investors in 2008. During the second quarter of
2009, we purchased from ACM the remaining $11.2 million of CDO bonds, at a discount and net of a
principal payment, and recorded a gain on early extinguishment of debt of $6.5 million.
During the fourth quarter of 2008, we borrowed $4.2 million from our manager, ACM. At
December 31, 2008, we had outstanding borrowings due to ACM totaling $4.2 million, which was
recorded in notes payable related party. In January 2009, the loan was repaid in full.
We are dependent upon our manager (ACM), with whom we have a conflict of interest, to provide
services to us that are vital to our operations. Our chairman, chief executive officer and
president, Mr. Ivan Kaufman, is also the chief executive officer and president of our manager, and,
our chief financial officer, Mr. Paul Elenio, is the chief financial officer of our manager. In
addition, Mr. Kaufman and the Kaufman entities together beneficially own approximately 92% of the
outstanding membership interests of ACM, and certain of our employees and directors also hold an
ownership interest in ACM. Furthermore, one of our directors also serves as the trustee of one of
the Kaufman entities that holds a majority of the outstanding membership interests in ACM and
co-trustee of another Kaufman entity that owns an equity interest in our manager. ACM currently
holds approximately 5.4 million common shares, representing 21.2% of the voting power of its
outstanding stock as of June 30, 2009.
Funds from Operations
We are presenting funds from operations (FFO) because we believe it to be an important
supplemental measure of our operating performance in that it is frequently used by analysts,
investors and other parties in the evaluation of real estate investment trusts (REITs). We also
use FFO for the calculation of the incentive management fee for our management company (ACM). The
revised White Paper on FFO approved by the Board of Governors of the National Association of Real
Estate Investment Trusts, or NAREIT, in April 2002 defines FFO as net income (loss) attributable to
Arbor Realty Trust, Inc. (computed in accordance with generally accepted
accounting principles in the United States (GAAP)), excluding gains (losses) from sales of
depreciated real properties, plus real estate related depreciation and amortization and after
adjustments for unconsolidated partnerships and joint ventures. We consider gains and losses on
the sales of real estate investments to be a normal part of our recurring operating activities in
accordance with GAAP and should not be excluded when calculating FFO.
FFO is not intended to be an indication of our cash flow from operating activities (determined
in accordance with GAAP) or a measure of our liquidity, nor is it entirely indicative of funding
our cash needs, including our ability to make cash distributions. Our calculation of FFO may be
different from the calculation used by other companies and, therefore, comparability may be
limited.
66
FFO for the three and six months ended June 30, 2009 and 2008 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30, |
|
|
Six Months Ended June 30, |
|
(Unaudited) |
|
2009 |
|
|
2008 |
|
|
2009 |
|
|
2008 |
|
Net (loss) income attributable to Arbor Realty
Trust Inc., GAAP basis |
|
$ |
(48,556,995 |
) |
|
$ |
11,728,006 |
|
|
$ |
(52,810,733 |
) |
|
$ |
24,432,797 |
|
Add: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Noncontrolling interest in operating
partnership |
|
|
|
|
|
|
2,117,464 |
|
|
|
|
|
|
|
4,450,754 |
|
Depreciation real estate owned |
|
|
283,022 |
|
|
|
170,913 |
|
|
|
566,044 |
|
|
|
170,913 |
|
Depreciation investment in equity affiliates |
|
|
214,599 |
|
|
|
750,532 |
|
|
|
419,923 |
|
|
|
750,532 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Funds from operations (FFO) |
|
$ |
(48,059,374 |
) |
|
$ |
14,766,915 |
|
|
$ |
(51,824,766 |
) |
|
$ |
29,804,996 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted FFO per common share |
|
$ |
(1.90 |
) |
|
$ |
0.60 |
|
|
$ |
(2.05 |
) |
|
$ |
1.21 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted weighted average shares outstanding |
|
|
25,333,564 |
|
|
|
24,721,660 |
|
|
|
25,238,515 |
|
|
|
24,562,520 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
67
|
|
|
Item 3. |
|
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
Market risk is the exposure to loss resulting from changes in interest rates, foreign currency
exchange rates, commodity prices, equity prices and real estate values. The primary market risks
that we are exposed to are real estate risk and interest rate risk.
Market Conditions
We are subject to market changes in the debt and secondary mortgage markets. These markets
are currently experiencing disruptions, which could have a short-term adverse impact on our
earnings and financial condition.
Current conditions in the debt markets include reduced liquidity and increased risk adjusted
premiums. These conditions may increase the cost and reduce the availability of debt. We attempt
to mitigate the impact of debt market disruptions by obtaining adequate debt facilities from a
variety of financing sources. There can be no assurance, however, that we will be successful in
these efforts, that such debt facilities will be adequate or that the cost of such debt facilities
will be at similar terms.
The secondary mortgage markets are also currently experiencing disruptions resulting from
reduced investor demand for collateralized debt obligations and increased investor yield
requirements for these obligations. In light of these conditions, we currently expect to finance
our loan and investment portfolio with our current capital and debt facilities.
Real Estate Risk
Commercial mortgage assets may be viewed as exposing an investor to greater risk of loss than
residential mortgage assets since such assets are typically secured by larger loans to fewer
obligors than residential mortgage assets. Multi-family and commercial property values and net
operating income derived from such properties are subject to volatility and may be affected
adversely by a number of factors, including, but not limited to, events such as natural disasters
including hurricanes and earthquakes, acts of war and/or terrorism (such as the events of September
11, 2001) and others that may cause unanticipated and uninsured performance declines and/or losses
to us or the owners and operators of the real estate securing our investment; national, regional
and local economic conditions (which may be adversely affected by industry slowdowns and other
factors); local real estate conditions (such as an oversupply of housing, retail, industrial,
office or other commercial space); changes or continued weakness in specific industry segments;
construction quality, construction delays, construction cost, age and design; demographic factors;
retroactive changes to building or similar codes; and increases in operating expenses (such as
energy costs). In the event net operating income decreases, a borrower may have difficulty
repaying our loans, which could result in losses to us. In addition, decreases in property values
reducing the value of collateral, and a lack of liquidity in the market, could reduce the potential
proceeds available to a borrower to repay our loans, which could also cause us to suffer losses.
Even when the net operating income is sufficient to cover the related propertys debt service,
there can be no assurance that this will continue to be the case in the future.
Interest Rate Risk
Interest rate risk is highly sensitive to many factors, including governmental monetary and
tax policies, domestic and international economic and political considerations and other factors
beyond our control.
Our operating results will depend in large part on differences between the income from our
loans and our borrowing costs. Most of our loans and borrowings are variable-rate instruments,
based on LIBOR. The objective of this strategy is to minimize the impact of interest rate changes
on our net interest income. In addition, we have various fixed rate loans in our portfolio, which
are financed with variable rate LIBOR borrowings. We have entered into various interest swaps (as
discussed below) to hedge our exposure to interest rate risk on our variable rate LIBOR borrowings
as it relates to our fixed rate loans. Many of our loans and borrowings are subject to various
interest rate floors. As a result, the impact of a change in interest rates may be different on
our interest income than it is on our interest expense.
68
Based on our loans, securities held-to-maturity and liabilities as of June 30, 2009, and
assuming the balances of these loans, securities and liabilities remain unchanged for the
subsequent twelve months, a 0.25% increase in LIBOR would decrease our annual net income and cash
flows by approximately $0.3 million. This is primarily due to various interest rate floors that
are in effect at a rate that is above a 0.25% increase in LIBOR which would limit the effect of a
0.25% increase, and increased expense on variable rate debt, partially offset by our interest rate
swaps that effectively convert a portion of the variable rate LIBOR based debt, as it relates to
certain fixed rate assets, to a fixed basis that is not subject to a 0.25% increase. Based on the
loans, securities held-to-maturity and liabilities as of June 30, 2009, and assuming the balances
of these loans, securities and liabilities remain unchanged for the subsequent twelve months, a
0.25% decrease in LIBOR would increase our annual net income and cash flows by approximately $0.5
million. This is primarily due to various interest rate floors which limit the effect of a
decrease on interest income and decreased expense on variable rate debt, partially offset by our
interest rate swaps that effectively converted a portion of the variable rate LIBOR based debt, as
it relates to certain fixed rate assets, to a fixed basis that is not subject to a 0.25% decrease.
Based on the loans, securities held-to-maturity and liabilities as of December 31, 2008, and
assuming the balances of these loans, securities and liabilities remain unchanged for the
subsequent twelve months, a 0.5% increase in LIBOR would decrease our annual net income and cash
flows by approximately $2.6 million. This is primarily due to various interest rate floors that
are in effect at a rate that is above a 0.5% increase in LIBOR which would limit the effect of a
0.5% increase, and increased expense on variable rate debt, partially offset by our interest rate
swaps that effectively convert a portion of the variable rate LIBOR based debt, as it relates to
certain fixed rate assets, to a fixed basis that is not subject to a 0.5% increase. Based on the
loans, securities held-to-maturity and liabilities as of December 31, 2008, and assuming the
balances of these loans, securities and liabilities remain unchanged for the subsequent twelve
months, a 0.5% decrease in LIBOR would increase our annual net income and cash flows by
approximately $1.8 million. This is primarily due to various interest rate floors which limit the
effect of a decrease on interest income and decreased expense on variable rate debt, partially
offset by our interest rate swaps that effectively converted a portion of the variable rate LIBOR
based debt, as it relates to certain fixed rate assets, to a fixed basis that is not subject to a
decrease.
In the event of a significant rising interest rate environment and/or economic downturn,
defaults could increase and result in credit losses to us, which could adversely affect our
liquidity and operating results. Further, such delinquencies or defaults could have an adverse
effect on the spreads between interest-earning assets and interest-bearing liabilities.
In connection with our CDOs described in Managements Discussion and Analysis of Financial
Condition and Results of Operations, we entered into interest rate swap agreements to hedge the
exposure to the risk of changes in the difference between three-month LIBOR and one-month LIBOR
interest rates. These interest rate swaps became necessary due to the investors return being paid
based on a three-month LIBOR index while the assets contributed to the CDOs are yielding interest
based on a one-month LIBOR index.
We had ten of these interest rate swap agreements outstanding that had combined notional
values of $1.2 billion and $1.3 billion at June 30, 2009 and December 31, 2008, respectively. The
market value of these interest rate swaps is dependent upon existing market interest rates and swap
spreads, which change over time. If there were a 25 basis point and 50 basis point increase in
forward interest rates as of June 30, 2009 and December 31, 2008, respectively, the value of these
interest rate swaps would have decreased by approximately $0.1 million for both periods. If there
were a 25 basis point and 50 basis point decrease in forward interest rates as of June 30, 2009 and
December 31, 2008, respectively, the value of these interest rate swaps would have increased by
approximately $0.1 million for both periods.
We also have interest rate swap agreements outstanding to hedge current and outstanding LIBOR
based debt relating to certain fixed rate loans within our portfolio. We had 34 of these interest
rate swap agreements outstanding that had a combined notional value of $722.3 million as of June
30, 2009 compared to 33 interest rate swap agreements outstanding with combined notional values of
$689.9 million as of December 31, 2008. The fair market value of these interest rate swaps is
dependent upon existing market interest rates and swap spreads, which change over time. If there
had been a 25 basis point and 50 basis point increase in forward interest rates as of June 30, 2009
and December 31, 2008, respectively, the fair market value of these interest rate swaps would have
increased by approximately $6.9 million and $15.7 million, respectively. If there were a 25 basis
point and 50 basis
69
point decrease in forward interest rates as of June 30, 2009 and December 31, 2008,
respectively, the fair market value of these interest rate swaps would have decreased by
approximately $7.0 million and $16.2 million, respectively.
We have, in the past, entered into various interest rate swap agreements in connection with
the issuance of variable rate junior subordinated notes. These swaps had total notional values of
$236.5 million as of December 31, 2008. We no longer utilize interest rate swaps for the
newly issued junior subordinated notes exchanged for the aforementioned junior subordinated notes
due to the modified interest payment structure. If there had been a 50 basis point increase in
forward interest rates as of December 31, 2008, the fair market value of these interest rate swaps
would have increased by approximately $3.3 million. If there were a 50 basis point decrease in
forward interest rates as of December 31, 2008, the fair market value of these interest rate swaps
would have decreased by approximately $3.4 million.
Certain of our interest rate swaps, which are designed to hedge interest rate risk associated
with a portion of our loans and investments, could require the funding of additional cash
collateral for changes in the market value of these swaps. Due to the prolonged volatility in the
financial markets that began in 2007, the value of these interest rate swaps have declined
substantially. As a result, at June 30, 2009 and December 31, 2008, we funded approximately $19.2
million and $46.5 million, respectively, in cash related to these swaps. If we continue to
experience significant changes in the outlook of interest rates, these contracts could continue to
decline in value, which would require additional cash to be funded. However, at maturity the value
of these contracts return to par and all cash will be recovered. If we do not have available cash
to meet these requirements, this could result in the early termination of these interest rate
swaps, leaving us exposed to interest rate risk associated with these loans and investments, which
could adversely impact our financial condition.
Our hedging transactions using derivative instruments also involve certain additional risks
such as counterparty credit risk, the enforceability of hedging contracts and the risk that
unanticipated and significant changes in interest rates will cause a significant loss of basis in
the contract. The counterparties to our derivative arrangements are major financial institutions
with high credit ratings with which we and our affiliates may also have other financial
relationships. As a result, we do not anticipate that any of these counterparties will fail to
meet their obligations. There can be no assurance that we will be able to adequately protect
against the foregoing risks and will ultimately realize an economic benefit that exceeds the
related amounts incurred in connection with engaging in such hedging strategies.
We utilize interest rate swaps to limit interest rate risk. Derivatives are used for hedging
purposes rather than speculation. We do not enter into financial
instruments for trading purposes.
70
|
|
|
Item 4. |
|
CONTROLS AND PROCEDURES |
Our management, with the participation of our chief executive officer and chief financial
officer, has evaluated the effectiveness of our disclosure controls and procedures (as such term
is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended
(the Exchange Act)) as of the end of the period covered by this report. Based upon such
evaluation, our chief executive officer and chief financial officer have concluded that, as of the
end of such period, our disclosure controls and procedures are effective in recording, processing,
summarizing and reporting, on a timely basis, information required to be disclosed by us in the
reports we file or submit under the Exchange Act and are effective in ensuring that information
required to be disclosed by us in the reports that we file or submit under the Exchange Act of 1934
is accumulated and communicated to our management, including our chief executive officer and chief
financial officer, as appropriate to allow timely decisions regarding required disclosure.
There have not been any changes in our internal controls over financial reporting (as such
term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during our most recent
fiscal quarter that have materially affected, or are reasonably likely to materially affect, our
internal control over financial reporting.
PART II. OTHER INFORMATION
|
|
|
Item 1. |
|
LEGAL PROCEEDINGS |
None.
There have been no material changes to the risk factors set forth in Item 1A of our Annual
Report on Form 10-K for the year ended December 31, 2008.
|
|
|
Item 2. |
|
UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS |
None.
|
|
|
Item 3. |
|
DEFAULTS UPON SENIOR SECURITIES |
None.
|
|
|
Item 4. |
|
SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS |
The annual meeting of stockholders of the Company was held on June 18, 2009, for the purpose
of considering and acting upon the following:
(1) Election of Directors. Three Class III directors were elected and the votes
cast for or against/withheld were as follows:
|
|
|
|
|
|
|
|
|
|
|
Aggregate Votes |
Nominees |
|
For |
|
Withheld |
|
Walter K. Horn |
|
|
21,832,968 |
|
|
|
1,450,733 |
|
William Helmreich |
|
|
21,490,908 |
|
|
|
1,792,793 |
|
Karen K. Edwards |
|
|
21,854,373 |
|
|
|
1,429,328 |
|
The continuing directors of the Company are John J. Bishar, Jr., Archie R. Dykes, Joseph
Martello, Kyle A. Permut, Ivan Kaufman, C. Michael Kojaian and Melvin F. Lazar.
71
(2) Approval of Amendment and Restatement of 2003 Omnibus Stock Incentive Plan.
Amendment and restatement was approved. The votes cast for, against and abstentions were as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate Votes |
Proposal |
|
For |
|
Against |
|
Abstained |
|
Approval of amendment and
restatement of the Companys 2003
Omnibus Stock Incentive Plan, as
amended and restated |
|
|
10,673,481 |
|
|
|
2,504,159 |
|
|
|
138,566 |
|
(3) Ratification of Auditors. Ernst & Young LLP was ratified as the Companys
independent registered public accounting firm for fiscal year 2009. The votes cast for,
against and abstentions were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate Votes |
Proposal |
|
For |
|
Against |
|
Abstained |
|
Ratification of Ernst & Young LLP
as the Companys independent
registered public accounting firm
for fiscal year 2009 |
|
|
22,641,548 |
|
|
|
478,840 |
|
|
|
163,313 |
|
|
|
|
Item 5. |
|
OTHER INFORMATION |
On August 6, 2009, the Company, ALRP and Arbor Realty SR, Inc. entered into an amended and
restated management agreement with ACM, as manager, which amends and replaces the existing
management agreement with ACM.
Pursuant to the amended management agreement, the Company will no longer pay ACM a base
management fee, which was calculated as a percentage of the Companys equity, but instead the
Company will reimburse ACM for its actual costs incurred in managing the Companys business based
on the parties agreement in advance on an annual budget with subsequent quarterly true-ups to
actual costs. This change will be adopted retroactively to January 1, 2009 and the Company
estimates the 2009 base management fee will be in the range of $8.0 million to $9.0 million.
Concurrent with this change, all future origination fees on investments will be retained by the
Company as opposed to the manager earning up to the first one percent of all originations fees in
the existing agreement. In addition, the Company will make a $3.0 million payment to the manager in
consideration of expenses incurred by the manager in 2008 in managing the Companys business and
certain other services.
Pursuant to the amended management agreement, the Company will continue to pay ACM an
incentive compensation fee, but the percentage hurdle for the incentive fee will be applied on a
per share basis to the greater of $10.00 and the average gross proceeds per share, whereas the
existing management agreement provided for such percentage hurdle to be applied only to the average
gross proceeds per share. In addition, only 60% of any loan loss and other reserve recoveries will
be eligible to be included in the incentive fee calculation, which will be spread over a three year
period, whereas the existing management agreement did not limit the inclusion of such recoveries in
the incentive fee calculation. The amended management agreement will allow the Company to
consider, from time to time, the payment of additional incentive fees to the manager for
accomplishing certain specified corporate objectives.
The amended management agreement modifies and simplifies the provisions related to the
termination of the agreement and any related fees payable in such instances, including for
internalization, with a termination fee of $10.0 million, rather than a multiple of base and
incentive fees as previously existed.
The amended management agreement will remain in effect until December 31, 2010, and will be
renewed automatically for successive one-year terms thereafter.
72
In reviewing the agreements included as exhibits to this Quarterly Report on Form 10-Q, please
remember they are included to provide you with information regarding their terms and are not
intended to provide any other factual or disclosure information about Arbor or the other parties to
the agreements. The agreements contain representations and warranties by each of the parties to
the applicable agreement. These representations and warranties have been made solely for the
benefit of the other parties to the applicable agreement and:
should not in all instances be treated as categorical statements of fact, but rather as a
way of allocating the risk to one of the parties if those statements prove to be inaccurate;
have been qualified by disclosures that were made to the other party in connection with the
negotiation of the applicable agreement, which disclosures are not necessarily reflected in
the agreement;
may apply standards of materiality in a way that is different from what may be viewed as
material to you or other investors; and
were made only as of the date of the applicable agreement or such other date or dates as may
be specified in the agreement and are subject to more recent developments.
Accordingly, these representations and warranties may not describe the actual state of affairs
as of the date they were made or at any other time. Additional information about Arbor may be
found elsewhere in this report and Arbors other public filings, which are available without charge
through the SECs website at http://www.sec.gov.
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.1
|
|
Articles of Incorporation of Arbor Realty Trust, Inc. * |
|
|
|
3.2
|
|
Articles of Amendment to Articles of Incorporation of Arbor Realty Trust, Inc. 5 |
|
|
|
3.3
|
|
Articles Supplementary of Arbor Realty Trust, Inc. * |
|
|
|
3.4
|
|
Amended and Restated Bylaws of Arbor Realty Trust, Inc. 55 |
|
|
|
4.1
|
|
Form of Certificate for Common Stock. * |
|
|
|
10.1
|
|
Second and Restated Management Agreement, dated August 6, 2009, by and among Arbor
Realty Trust, Inc., Arbor Commercial Mortgage, LLC, Arbor Realty Limited Partnership and
Arbor Realty SR, Inc. |
|
|
|
10.2
|
|
Services Agreement, dated July 1, 2003, by and among Arbor Realty Trust, Inc., Arbor
Commercial Mortgage, LLC and Arbor Realty Limited Partnership. * |
|
|
|
10.3
|
|
Non-Competition Agreement, dated July 1, 2003, by and among Arbor Realty Trust, Inc., Arbor
Realty Limited Partnership and Ivan Kaufman. * |
|
|
|
10.4
|
|
Second Amended and Restated Agreement of Limited Partnership of Arbor Realty Limited
Partnership, dated January 18, 2005, by and among Arbor Commercial Mortgage, LLC, Arbor
Realty Limited Partnership, Arbor Realty LPOP, Inc. and Arbor Realty GPOP, Inc. |
|
|
|
10.5
|
|
Registration Rights Agreement, dated July 1, 2003, between Arbor Realty Trust, Inc. and
Arbor Commercial Mortgage, LLC. * |
|
|
|
10.6
|
|
Pairing Agreement, dated July 1, 2003, by and among Arbor Realty Trust, Inc., Arbor
Commercial Mortgage, LLC, Arbor Realty Limited Partnership, Arbor Realty LPOP, Inc. and
Arbor Realty GPOP, Inc. * |
|
|
|
10.7
|
|
2003 Omnibus Stock Incentive Plan, (as amended and restated on June 18, 2009). |
|
|
|
10.8
|
|
Form of Restricted Stock Agreement. * |
|
|
|
10.9
|
|
Benefits Participation Agreement, dated July 1, 2003, between Arbor Realty Trust, Inc. and
Arbor Management, LLC. * |
|
|
|
10.10
|
|
Form of Indemnification Agreement. * |
|
|
|
10.11
|
|
Structured Facility Warehousing Credit and Security Agreement, dated July 1, 2003, between
Arbor Realty Limited Partnership and Residential Funding Corporation. * |
|
|
|
10.12
|
|
Amended and Restated Loan Purchase and Repurchase Agreement, dated July 12, 2004, by and
among Arbor Realty Funding LLC, as seller, Wachovia Bank, National Association, as
purchaser, and Arbor Realty Trust, Inc., as guarantor. ** |
73
|
|
|
Exhibit |
|
|
Number |
|
Description |
10.13
|
|
Master Repurchase Agreement, dated as of November 18, 2002, by and between Nomura Credit
and Capital, Inc. and Arbor Commercial Mortgage, LLC. * |
|
|
|
10.14
|
|
Revolving Credit Facility Agreement, dated as of December 7, 2004, by and between Arbor
Realty Trust, Inc., Arbor Realty Limited Partnership and Watershed Administrative LLC and
the lenders named therein. |
|
|
|
10.15
|
|
Indenture, dated January 19, 2005, by and between Arbor Realty Mortgage Securities Series
2004-1, Ltd., Arbor Realty Mortgage Securities Series 2004-1 LLC, Arbor Realty SR, Inc. and
LaSalle Bank National Association. |
|
|
|
10.16
|
|
Indenture, dated January 11, 2006, by and between Arbor Realty Mortgage Securities Series
2005-1, Ltd., Arbor Realty Mortgage Securities Series 2005-1 LLC, Arbor Realty SR, Inc. and
LaSalle Bank National Association. |
|
|
|
10.17
|
|
Master Repurchase Agreement, dated as of October 26, 2006, by and between Column Financial,
Inc. and Arbor Realty SR, Inc. and Arbor TRS Holding Company Inc., as sellers, Arbor Realty
Trust, Inc., Arbor Realty Limited Partnership, as guarantors, and Arbor Realty Mezzanine
LLC. |
|
|
|
10.18
|
|
Note Purchase Agreement, dated January 19, 2005, by and between Arbor Realty Mortgage
Securities Series 2004-1, Ltd., Arbor Realty Mortgage Securities Series 2004-1 LLC and
Wachovia Capital Markets, LLC. |
|
|
|
10.19
|
|
Note Purchase Agreement, dated January 11, 2006, by and between Arbor Realty Mortgage
Securities Series 2005-1, Ltd., Arbor Realty Mortgage Securities Series 2005-1 LLC and
Wachovia Capital Markets, LLC. |
|
|
|
10.20
|
|
Indenture, dated December 14, 2006, by and between Arbor Realty Mortgage Securities Series
2006-1, Ltd., Arbor Realty Mortgage Securities Series 2006-1 LLC, Arbor Realty SR, Inc. and
Wells Fargo Bank, National Association. w |
|
|
|
10.21
|
|
Note Purchase and Placement Agreement, dated December 14, 2006, by and between Arbor Realty
Mortgage Securities Series 2006-1, Ltd., Arbor Realty Mortgage Securities Series 2006-1 LLC
and Wachovia Capital Markets, LLC and Credit Suisse Securities (USA) LLC. w |
|
|
|
10.22
|
|
Note Purchase Agreement, dated December 14, 2006, by and between Arbor Realty Mortgage
Securities Series 2006-1, Ltd., Arbor Realty Mortgage Securities Series 2006-1 LLC and
Wells Fargo Bank, National Association. w |
|
|
|
10.23
|
|
Master Repurchase Agreement, dated as of March 30, 2007, by and between Variable Funding
Capital Company LLC, as purchaser, Wachovia Bank, National Association, as swingline
purchaser, Wachovia Capital Markets, LLC, as deal agent, Arbor Realty Funding LLC, Arbor
Realty Limited Partnership and ARSR Tahoe, LLC, as sellers, Arbor Realty Trust, Inc., Arbor
Realty Limited Partnership and Arbor Realty SR, Inc., as guarantors. ww |
|
|
|
10.24
|
|
Credit Agreement, dated November 6, 2007, by and between Arbor Realty Funding, LLC, ARSR
Tahoe, LLC, Arbor Realty Limited Partnership, and ART 450 LLC, as Borrowers, Arbor Realty
Trust, Inc., Arbor Realty Limited Partnership, and Arbor Realty SR, Inc., as Guarantors,
and Wachovia Bank, National Association, as Administrative Agent. www |
|
|
|
10.25
|
|
Equity Placement Program Sales Agreement, dated August 15, 2008, between Arbor Realty
Trust, Inc. and JMP
Securities LLC. vv |
|
|
|
10.26
|
|
Junior Subordinated Indenture, dated May 6, 2009, between Arbor Realty SR, Inc. and The
Bank of New York Mellon Trust Company, National Association, as Trustee relating to
$29,400,000 aggregate principal amount of Junior Subordinated Notes due 2034.
vvv |
|
|
|
10.27
|
|
Junior Subordinated Indenture, dated May 6, 2009, between Arbor Realty SR, Inc. and The
Bank of New York Mellon Trust Company, National Association, as Trustee relating to
$168,000,000 aggregate principal amount of Junior Subordinated Notes due 2034.
vvv |
74
|
|
|
Exhibit |
|
|
Number |
|
Description |
10.28 |
|
Junior Subordinated Indenture, dated May 6, 2009, among Arbor Realty SR, Inc. Arbor Realty
Trust, Inc., as Guarantor, and Wilmington Trust Company, as Trustee, relating to
$21,224,000 aggregate principal amount of Junior Subordinated Notes due 2035.
vvv |
|
|
|
10.29 |
|
Junior Subordinated Indenture, dated May 6, 2009, among Arbor Realty SR, Inc. Arbor Realty
Trust, Inc., as Guarantor, and Wilmington Trust Company, as Trustee, relating to $2,632,000
aggregate principal amount of Junior Subordinated Notes due
2036. vvv |
|
|
|
10.30 |
|
Junior Subordinated Indenture, dated May 6, 2009, among Arbor Realty SR, Inc. Arbor Realty
Trust, Inc., as Guarantor, and Wilmington Trust Company, as Trustee, relating to
$47,180,000 aggregate principal amount of Junior Subordinated Notes due 2037.
vvv |
|
|
|
10.31 |
|
Exchange Agreement, dated May 6, 2009, among Arbor Realty Trust, Inc., Arbor Realty SR,
Inc., Kodiak CDO II, Ltd., Attentus CDO I, Ltd. and Attentus CDO III, Ltd.
vvv |
|
|
|
10.32 |
|
Exchange Agreement, dated May 6, 2009, among Arbor Realty SR, Inc., Arbor Realty Trust,
Inc., Taberna Preferred Funding I, Ltd., Taberna Preferred Funding II, Ltd., Taberna
Preferred Funding III, Ltd., Taberna Preferred Funding IV, Ltd., Taberna Preferred Funding
V, Ltd., Taberna Preferred Funding VII, Ltd. and Taberna Preferred Funding VIII, Ltd.
vvv |
|
|
|
10.33 |
|
First Amended and Restated Credit Agreement, dated as of July 23, 2009, among Arbor Realty
Funding, LLC, a Delaware limited liability company, as a Borrower, ARSR Tahoe, LLC, a
Delaware limited liability company, as a Borrower, Arbor ESH II LLC, a Delaware limited
liability company, as a Borrower, Arbor Realty Limited Partnership, a Delaware limited
partnership, as a Borrower and a Guarantor, ART 450 LLC, a Delaware limited liability
company, as a Borrower, Arbor Realty Trust, Inc., a Maryland corporation, as a Guarantor,
Arbor Realty SR, Inc., a Maryland corporation, as a Borrower and a Guarantor, the several
Lenders from time to time a party thereto, and Wachovia Bank, National Association, a
national banking association, as administrative agent for the Lenders thereunder. |
|
|
|
10.34 |
|
First Amended and Restated Revolving Loan Agreement, dated as of July 23, 2009, among Arbor
Realty Trust, Inc., a Maryland corporation, Arbor Realty GPOP, Inc., a Delaware
corporation, Arbor Realty LPOP, Inc., a Delaware corporation, Arbor Realty Limited
Partnership, a Delaware limited partnership, Arbor Realty SR, Inc., a Maryland corporation,
Arbor Realty Collateral Management, LLC, as Borrowers, the several Lenders from time to
time a party thereto, and Wachovia Bank, National Association, a national banking
association, as administrative agent for the Lenders thereunder and initial lender. |
|
|
|
31.1 |
|
Certification of Chief Executive Officer pursuant to Exchange Act Rule 13a-14. |
|
|
|
31.2 |
|
Certification of Chief Financial Officer pursuant to Exchange Act Rule 13a-14. |
|
|
|
32.1 |
|
Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
|
|
|
32.2 |
|
Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
Exhibit Index
|
|
|
5 |
|
Incorporated by reference to the Registrants
Quarterly Report on Form 10-Q for the quarter ended
June 30, 2007. |
|
55 |
|
Incorporated by reference to Exhibit 99.2 of
the Registrants Current Report on Form 8-K (No.
001-32136) which was filed with the Securities and
Exchange Commission on December 11, 2007. |
|
* |
|
Incorporated by reference to the Registrants
Registration Statement on Form S-11 (Registration
No. 333-110472), as amended. Such registration
statement was originally filed with the Securities
and Exchange Commission on November 13, 2003. |
|
** |
|
Incorporated by reference to the Registrants
Quarterly Report of Form 10-Q for the quarter ended
September 30, 2004. |
75
|
|
|
|
|
Incorporated by reference to the Registrants Annual
Report of Form 10-K for the year ended December 31,
2004. |
|
|
|
Incorporated by reference to the Registrants Annual
Report of Form 10-K for the year ended December 31,
2005. |
|
|
|
Incorporated by reference to the Registrants
Quarterly Report of Form 10-Q for the quarter ended
June 30, 2005. |
|
|
|
Incorporated by reference to the Registrants
Quarterly Report of Form 10-Q for the quarter ended
September 30, 2006. |
|
w |
|
Incorporated by reference to the Registrants Annual
Report of Form 10-K for the year ended December 31,
2006. |
|
ww |
|
Incorporated by reference to the Registrants
Quarterly Report on Form 10-Q for the quarter ended
March 31, 2007. |
|
www |
|
Incorporated by reference to the Registrants
Quarterly Report on Form 10-Q for the quarter ended
September 30, 2007. |
|
v |
|
Incorporated by reference to the Registrants
Quarterly Report of Form 10-Q for the quarter ended
June 30, 2008. |
|
vv |
|
Incorporated by reference to Exhibit 1.1 of the
Registrants Current Report on Form 8-K (No.
001-32136) which was filed with the Securities and
Exchange Commission on August 15, 2008. |
|
vvv |
|
Incorporated by reference to the Registrants
Quarterly Report of Form 10-Q for the quarter ended
March 31, 2009. |
In reviewing the agreements included as exhibits to this Quarterly Report on Form 10-Q, please
remember they are included to provide you with information regarding their terms and are not
intended to provide any other factual or disclosure information about Arbor or the other parties to
the agreements. The agreements contain representations and warranties by each of the parties to
the applicable agreement. These representations and warranties have been made solely for the
benefit of the other parties to the applicable agreement and:
should not in all instances be treated as categorical statements of fact, but rather as a
way of allocating the risk to one of the parties if those statements prove to be inaccurate;
have been qualified by disclosures that were made to the other party in connection with the
negotiation of the applicable agreement, which disclosures are not necessarily reflected in
the agreement;
may apply standards of materiality in a way that is different from what may be viewed as
material to you or other investors; and
were made only as of the date of the applicable agreement or such other date or dates as may
be specified in the agreement and are subject to more recent developments.
Accordingly, these representations and warranties may not describe the actual state of affairs as
of the date they were made or at any other time. Additional information about Arbor may be found
elsewhere in this report and Arbors other public filings, which are available without charge
through the SECs website at http://www.sec.gov.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly authorized:
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ARBOR REALTY TRUST, INC.
(Registrant)
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By: |
/s/ Ivan Kaufman
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Name: |
Ivan Kaufman |
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Title: |
Chief Executive Officer |
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By: |
/s/ Paul Elenio
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Name: |
Paul Elenio |
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Title: |
Chief Financial Officer |
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Date: August 7, 2009
77
exv10w1
Exhibit
10.1
SECOND AMENDED AND RESTATED
MANAGEMENT AND ADVISORY AGREEMENT
THIS SECOND AMENDED AND RESTATED MANAGEMENT AND ADVISORY AGREEMENT is made as of August 6,
2009 (the Agreement) by and among ARBOR REALTY TRUST, INC., a Maryland corporation
(Parent REIT), ARBOR REALTY LIMITED PARTNERSHIP, a Delaware limited partnership
(Operating Partnership), ARBOR REALTY SR, INC., a Maryland corporation
(Sub-REIT and together with the Parent REIT and the Operating Partnership, the
Company), and ARBOR COMMERCIAL MORTGAGE, LLC, a New York limited liability company
(together with its permitted assigns, Manager).
W I T N E S S E T H :
WHEREAS, Parent REIT, Manager and the Operating Partnership have entered into the Management
and Advisory Agreement, dated as of July 1, 2003 (the Original Management Agreement);
WHEREAS, Parent REIT, Manager, the Operating Partnership and the Sub-REIT agreed to amend and
restate the Original Management Agreement by entering into the Amended and Restated Management and
Advisory Agreement, dated as of January 18, 2005, as amended on February 17, 2007, and as further
amended on June 18, 2008 (as amended, the First Amended Management Agreement).
WHEREAS, Parent REIT, Manager, Operating Partnership and Sub-REIT desire to amend and restate
the First Amended Management Agreement in its entirety on the terms and conditions hereinafter set
forth.
NOW THEREFORE, in consideration of the mutual agreements herein set forth, the parties hereto
agree as follows:
1. Definitions. The following terms have the meanings assigned them:
(a) 2009 Incentive Fee has the meaning assigned in Section 8(c)(v)(A).
(b) 450 West 33rd Street Incentive Fee means the Companys payment of
$19,047,949 to the Manager in August 2007 in accordance with the terms of the amendment, dated
February 17, 2007, to the First Amended Management Agreement.
(c) 450 West 33rd Street Guaranty means, collectively, (1) the guaranty
by Sub-REIT pursuant to that certain Guaranty, dated as of June 12, 2007, by the parties identified
as Guarantors on Exhibit A thereto to 450 Holding LLC and for the benefit of Wachovia Bank,
National Association, a true and correct copy of which is attached hereto as Annex I, and
(2) [Sub-REIT]s obligations as a member of 450 Holding LLC pursuant to that certain Guaranty,
dated as of June 12, 2007, by 450 Holding LLC to Wachovia Bank, National Association, a true and
correct copy of which is attached hereto as Annex II.
(d) Agreement has the meaning assigned in the first paragraph.
(e) Agreed-Upon Manager Budget has the meaning assigned in Section 8(a)(i)(A).
(f) Approved Bonus Amount has the meaning assigned in Section 8(a)(iv)(B).
(g) Board of Directors means the Board of Directors of Parent REIT.
(h) Calculation Delivery Date has the meaning assigned in Section 8(c)(iv).
(i) CDO Special Servicing Fees means any fees and other compensation payable to any
servicer or special servicer of any collateralized debt obligation of any Subsidiary.
(j) Code means the Internal Revenue Code of 1986, as amended.
(k) Common Share means a share of capital stock of Parent REIT now or hereafter
authorized and issued as common voting stock of Parent REIT.
(l) Company has the meaning assigned in the first paragraph.
(m) Company Account has the meaning assigned in Section 5.
(n) Company Cause means any reason for termination of this Agreement set forth in
Section 13(c).
(o) Company Target Investments means multifamily and commercial mortgage loans,
customized financing transactions, including bridge loans, mezzanine loans, preferred equity
investments, note acquisitions and participation interests in owners of real properties, and
commercial mortgage-backed securities.
(p) Company Termination Notice has the meaning assigned in Section 13(b).
(q) Compensation Committee means the Compensation Committee of the Board of
Directors.
(r) Cost Reimbursement Installment has the meaning assigned in Section 8(a)(ii).
(s) Covered Manager Employee has the meaning assigned in Section 8(a)(i)(A).
(t) Credit Committee means the Companys Credit Committee consisting of the
Companys Chief Financial Officer and Chief Credit Officer and certain other officers of the
Company and the Manager.
(u) Cure Period has the meaning assigned in Section 13(e).
2
(v) Discretionary Bonus Recipients has the meaning assigned in Section 8(a)(iv)(A).
(w) Effective Company Termination Date has the meaning assigned in Section 13(b).
(x) Effective Manager Termination Date has the meaning assigned in Section 13(d).
(y) Excess Funds has the meaning assigned in Section 2(g).
(z) Excess Quarterly Costs has the meaning assigned in Section 8(a)(i)(C).
(aa) Exchange Act means the Securities Exchange Act of 1934, as amended.
(bb) Funds from Operations has the meaning assigned by the National Association of
Real Estate Investment Trusts and means net income (computed in accordance with GAAP) excluding
gains (or losses) from debt restructuring and sales of property, plus depreciation and amortization
on real estate assets, and after adjustments for unconsolidated partnerships and joint ventures;
provided, however, that:
(i) for the calendar quarter and corresponding fiscal year in which Parent REIT records
a book gain on the 450 West 33rd Street Investment, the amount of such book gain will be
excluded from Funds from Operations in such calendar quarter and corresponding fiscal year,
and
(ii) if an allowance for a loss or an impairment of an Investment that is a Company
Target Investment is recognized in the Companys income statement prepared in accordance
with GAAP, any subsequent recovery of such loss or impairment that is recorded in the
Companys income statement prepared in accordance with GAAP shall be excluded from Funds
from Operations, except as follows: (A) 20% of the amount of such subsequent recovery will
be included in Funds from Operations for the remainder of the fiscal year in which such
subsequent recovery occurs, applied proportionally for each remaining quarter in such fiscal
year, (B) an additional 20% of such amount shall be included in Funds from Operations for
the next succeeding year at the rate of one-fourth per calendar quarter, and (C) an
additional 20% of such amount shall be included in Funds from Operations for the second
succeeding year at the rate of one-fourth per calendar quarter.
(cc) GAAP means generally accepted accounting principles in effect in the U.S. on
the date such principles are applied, consistently applied.
(dd) Governing Instruments means, with respect to any Person, the articles of
incorporation and bylaws in the case of a corporation, the certificate of limited partnership (if
applicable) and partnership agreement in the case of a general or limited partnership or the
articles of formation and operating agreement in the case of a limited liability company.
(ee) Guidelines has the meaning assigned in Section 2(b)(i).
3
(ff) Incentive Fee has the meaning assigned in Section 8(c)(i).
(gg) Incentive Fee Payment has the meaning assigned in Section 8(c)(ii).
(hh) Includable Gains means gains from debt restructurings and sales of properties,
subject to the limitation on the inclusion of certain gains in Funds From Operations set forth in
Section 1(bb)(ii) with respect to any subsequent recovery of prior recognized losses and
impairments of any such applicable debt restructurings and sales of properties.
(ii) Independent Directors means the members of the Board of Directors who are not
officers or employees of Manager or the Company and who are otherwise independent in accordance
with Parent REITs Governing Instruments.
(jj) Investment Company Act means the Investment Company Act of 1940, as amended.
(kk) Investments means the investments of the Company.
(ll) Management Fee means the Cost Reimbursement plus the Incentive Fee.
(mm) Manager has the meaning assigned in the first paragraph.
(nn) Manager Cause means any reason for termination of this Agreement set forth in
Section 13(e).
(oo) Manager Change of Control means a change in the direct or indirect (i)
beneficial ownership of more than fifty percent (50%) of the combined voting power (of any Person
together with any affiliates of such Person or Persons otherwise associated or acting in concert
with such Person) of Managers then outstanding equity interests, or (ii) power to direct or
control the management policies of Manager, whether through the ownership of beneficial equity
interests, common directors or officers, by contract or otherwise. Manager Change of Control shall
not include (A) transfer by the Principal of equity interests in the Manager or Arbor Management,
LLC, the managing member of the Manager pursuant to the Operating Agreement of the Manager, to any
immediate family member of the Principal as of the date of this Agreement, or to any estate or
trust of which any immediate family member of the Principal as of the date of this Agreement is the
beneficiary, (B) public offerings of the capital stock of Manager, or (C) any assignment of this
Agreement by Manager as permitted hereby and in accordance with the terms hereof.
(pp) Manager Indemnified Party has the meaning assigned in Section 11(b).
(qq) Manager Multifamily Bridge Loans means any bridge loan with respect to a
multifamily property made by the Manager to a borrower seeking to obtain a longer term mortgage or
other loan from the Manager pursuant to the Managers Fannie Mae loan program.
(rr) Manager Parties has the meaning assigned in Section 3(b).
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(ss) Manager Target Investments has the meaning assigned in Section 3(c).
(tt) Manager Termination Notice has the meaning assigned in Section 13(d).
(uu) Non-Competition Agreement means that certain Non-Competition Agreement, dated
as of July 1, 2003, among Parent REIT, Operating Partnership and Principal.
(vv) OP Unit means a unit of partnership interest in the Operating Partnership now
or hereafter authorized and issued as a unit of partnership interest in the Operating Partnership.
(ww) Operating Partnership has the meaning assigned in the first paragraph.
(xx) Parent REIT has the meaning assigned in the first paragraph.
(yy) Person means any individual, corporation, partnership, joint venture, limited
liability company, estate, trust, unincorporated association, any federal, state, county or
municipal government or any bureau, department or agency thereof and any fiduciary acting in such
capacity on behalf of any of the foregoing.
(zz) Prime Outlets Excess has the meaning assigned in Section 8(c)(v)(A)(3).
(aaa) Prime Outlets Incentive Fee means the Companys payment of $7,292,448 to the
Manager in August 2008 in accordance with the terms of the amendment, dated June 18, 2008, to the
First Amended Management Agreement.
(bbb) Principal means Ivan Kaufman, an individual.
(ccc) Proposed Manager Budget has the meaning assigned in Section 8(a)(i)(A).
(ddd) Reimbursable Expenses has the meaning assigned in Section 9.
(eee) REIT means a corporation or trust which qualifies as a real estate investment
trust in accordance with Sections 856 through 860 of the Code.
(fff) Services Agreement means that certain Services Agreement, dated as of July 1,
2003, among Parent REIT, the Operating Partnership and Manager.
(ggg) Subsidiary means any entity of which Parent REIT directly or indirectly owns
the majority of the outstanding voting equity interests, any partnership, the general partner of
which is Parent REIT or any subsidiary of Parent REIT and any limited liability company, the
managing member of which is Parent REIT or any subsidiary of Parent REIT.
(hhh) Supervisory Certification has the meaning assigned in Section 8(a)(i)(C).
(iii) Ten Year U.S. Treasury Rate means the arithmetic average of the weekly average
yield to maturity for actively traded current coupon U.S. Treasury fixed interest
5
rate securities (adjusted to constant maturities of ten (10) years) published by the Federal Reserve Board during a
fiscal year, or, if such rate is not published by the Federal Reserve Board, any Federal Reserve
Bank or agency or department of the federal government selected by the Company. If the Company
determines in good faith that the Ten Year U.S. Treasury Rate cannot be calculated as provided
above, then the rate will be the arithmetic average of the per annum average yields to maturities,
based upon closing asked prices on each business day during a quarter, for each actively traded
marketable U.S. Treasury fixed interest rate security with a final maturity date not less than
eight (8) and not more than twelve (12) years from the date of the closing asked prices as chosen
and quoted for each business day in each such quarter in New York City by at least three (3)
recognized dealers in U.S. government securities selected by the Company.
(jjj) Termination Fee means an amount equal to ten million U.S. dollars
($10,000,000.00).
(kkk) U.S. means United States of America.
2. Appointment and Duties of Manager.
(a) Appointment. The Company hereby appoints Manager to manage the Investments of the
Company subject to the further terms and conditions set forth in this Agreement, and Manager hereby
agrees to use its commercially reasonable efforts to perform each of the duties set forth herein.
The appointment of Manager shall be exclusive to Manager except to the extent that Manager
otherwise agrees, in its sole and absolute discretion, and except to the extent that Manager elects
pursuant to the terms of this Agreement to cause the duties of Manager hereunder to be provided by
third parties.
(b) Duties. Manager, in its capacity as manager of the Investments and the day-to-day
operations of the Company, at all times will be subject to the supervision of the Board of
Directors and the board of directors of the Sub-REIT and will have only such functions and
authority as the Company may delegate to it, including, without limitation, the functions and
authority identified herein and delegated to Manager hereby. Manager will be responsible for the
day-to-day operations of the Company and will perform (or cause to be performed) such services and
activities relating to the Investments and operations of the Company as may be appropriate,
including, without limitation:
(i) serving as the Companys consultant with respect to the periodic review of the
investment criteria and parameters for Investments, borrowings and operations, any
modifications to which shall be approved by a majority of the Independent Directors (such
policy guidelines as are in effect on the date hereof, as the same may be modified with such
approval, the Guidelines), and other policies for approval by the Board of
Directors;
(ii) investigation, analysis and selection of investment opportunities;
(iii) with respect to prospective investments by the Company and dispositions of
Investments, conducting negotiations with real estate brokers, sellers and
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purchasers, and
their respective agents and representatives, investment bankers, mortgage bankers and owners
of privately and publicly held real estate companies;
(iv) coordinating and managing operations of any joint venture or co-investment
interests held by the Company and conducting all matters with the joint venture or
co-investment partners;
(v) providing executive and administrative personnel, office space and office services
required in rendering services to the Company;
(vi) administering the day to day operations of the Company and performing and
supervising the performance of such other administrative functions necessary in the
management of the Company as may be agreed upon by Manager and the Board of Directors,
including, without limitation, collection of interest, fee and other income, payment of the
Companys debts and obligations, payment of dividends or distributions to the holders of the
Common Shares and maintenance of appropriate back-office infrastructure to perform such
administrative functions;
(vii) communicating on behalf of the Company with the holders of any equity or debt
securities of the Parent REIT, Sub-REIT or their respective Subsidiaries as required to
satisfy the reporting and other requirements of any governmental entities or agencies or
trading markets and to maintain effective relations with such holders;
(viii) counseling the Company in connection with policy decisions to be made by the
Board of Directors or the board of directors or similar governing bodies of the
Subsidiaries;
(ix) evaluating and recommending to the Board of Directors hedging strategies and, as
the Board of Directors shall request or Manager shall deem appropriate, engaging in hedging
activities on behalf of the Company, in a manner consistent with such strategies, as so
modified from time to time, Parent REITs status as a REIT, Sub-REITs status as a REIT and
the Guidelines;
(x) counseling Parent REIT and Sub-REIT regarding the maintenance of their status as
REITs and monitoring compliance with the various REIT qualification tests and other rules
set out in the Code and the Treasury Regulations promulgated thereunder;
(xi) counseling the Company regarding the maintenance of its exemption from the
Investment Company Act and monitoring compliance with the requirements for maintaining such
exemption;
(xii) assisting the Company in developing criteria for debt and equity financing that
is specifically tailored to the Companys investment objectives, making available to the
Company its knowledge and experience with respect to Company Target
Investments and other real estate and real estate-related transactions and serving as
the originating lender of such investments comprising Company Target Investments;
7
(xiii) representing and making recommendations to the Company in connection with its
investment in a diversified portfolio of Company Target Investments and other real estate
transactions with select borrowers and principals;
(xiv) investing and re-investing any moneys and securities of the Company (including
investing in short-term investments pending investment in Investments, payment of fees,
costs and expenses or payments of dividends or distributions to stockholders and partners of
the Company) and advising the Company with respect to its capital structure and capital
raising;
(xv) causing the Company to retain qualified accountants and legal counsel, as
applicable, to assist in developing appropriate accounting and compliance procedures and
testing systems with respect to financial reporting obligations, as applicable, and Parent
REIT and Sub-REITs compliance with the provisions of the Code applicable to REITs and the
Treasury Regulations promulgated thereunder and to conduct quarterly compliance reviews with
respect thereto;
(xvi) causing the Company to qualify to do business in all applicable jurisdictions and
to obtain and maintain all appropriate licenses;
(xvii) assisting the Company in complying with all regulatory requirements applicable
to the Company in respect of its business activities, including preparing or causing to be
prepared all financial statements required under applicable regulations and contractual
undertakings and all reports and documents required under the Exchange Act;
(xviii) taking all necessary actions to enable the Company to make required tax filings
and reports, including, with respect to Parent REIT and Sub-REIT, soliciting stockholders
for required information to the extent provided by the provisions of the Code applicable to
REITs and the Treasury Regulations promulgated thereunder;
(xix) handling and resolving all claims, disputes or controversies (including all
litigation, arbitration, settlement or other proceedings or negotiations) in which the
Company may be involved or to which the Company may be subject arising out of the Companys
day-to-day operations, subject to such limitations or parameters as may be imposed from time
to time by the Board of Directors;
(xx) using commercially reasonable efforts to cause expenses incurred by or on behalf
of the Company to be reasonable, customary and within any budgeted parameters or expense
guidelines set by the Board of Directors from time to time;
(xxi) using commercially reasonable efforts to cause the Company to comply with all
applicable laws; and
(xxii) performing such other services as may be required from time to time for
management and other activities relating to the Investments of the Company as the Board of
Directors shall reasonably request or Manager shall deem appropriate under particular
circumstances.
8
(c) Subcontracts. Manager may enter into agreements with other parties, including its
affiliates, for the purpose of engaging one or more property and/or asset managers for and on
behalf, and at the sole cost and expense, of the Company to provide property management, asset
management, leasing, development and/or similar services to the Company with respect to the
Investments, pursuant to property management agreement(s) and/or asset management agreement(s) with
terms which are then customary for agreements regarding the management of assets similar in type,
quality and value to the assets of the Company; provided, that any such agreements entered into
with affiliates of Manager shall be (i) on terms no more favorable to such affiliate then would be
obtained from a third party on an arms-length basis, and (ii) to the extent the same do not fall
within the provisions of the Guidelines, approved by a majority of the Independent Directors.
(d) Service Providers. Manager may retain for and on behalf of the Company such
services of accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars,
developers, investment banks, financial advisors, banks, other lenders and other Persons, including
Managers affiliates, as Manager deems necessary or advisable in connection with the management and
operations of the Company; provided, that any agreements entered into with affiliates of Manager to
perform any such services shall be (i) on terms no more favorable to such affiliate then would be
obtained from a third party on an arms-length basis, and (ii) to the extent the same do not fall
within the provisions of the Guidelines, approved by a majority of the Independent Directors. The
Company shall pay all expenses, and reimburse Manager for Managers expenses incurred on its
behalf, in connection with any such services to the extent such expenses are reimbursable by the
Company to Manager pursuant to Section 9.
(e) Reporting Requirements.
(i) As frequently as Manager may deem necessary or advisable, or at the direction of
the Board of Directors, Manager shall prepare, or cause to be prepared, with respect to any
Investment (i) at the Companys sole cost and expense, an appraisal prepared by an
independent real estate appraiser, (ii) reports and information on the Companys operations
and Investment performance, and (iii) such other information reasonably requested by the
Company. The Company shall pay all expenses, and reimburse Manager for Managers expenses
incurred on its behalf, in connection with the foregoing clauses (ii) and (iii) to the
extent such expenses are reimbursable by the Company to Manager pursuant to Section 9.
(f) Manager shall prepare, or cause to be prepared, at the sole cost and expense of the
Company, all reports, financial or otherwise, with respect to Parent REIT, the Operating
Partnership, Sub-REIT and the other Subsidiaries reasonably required by the Board of Directors in
order for Parent REIT, the Operating Partnership, Sub-REIT and the other Subsidiaries to comply
with their Governing Instruments or any other materials required to be filed with any governmental
entity or agency, and shall prepare, or cause to be prepared, all
materials and data necessary to complete such reports and other materials including, without
limitation, an annual audit of the Companys books of account by a nationally recognized
independent accounting firm of good reputation.
9
(i) Manager shall prepare regular reports for the Board of Directors to enable the
Board of Directors to review the Companys acquisitions, portfolio composition and
characteristics, credit quality, performance and compliance with the Guidelines and policies
approved by the Board of Directors.
(g) Excess Funds. Notwithstanding anything contained in this Agreement to the
contrary, except to the extent that the payment of additional moneys is proven by the Company to
have been required as a direct result of Managers acts or omissions which result in the right of
the Company to terminate this Agreement pursuant to Section 13(c) and except as expressly provided
in Section 11(c), Manager shall not be required to expend money (Excess Funds) in excess
of that contained in any applicable Company Account or otherwise made available by the Company to
be expended by Manager hereunder.
(h) Reliance by Manager. In performing its duties under this Section 2, Manager shall
be entitled to rely reasonably on qualified experts and professionals (including, without
limitation, accountants, legal counsel and other professional service providers) hired by Manager.
3. Dedication; Right of First Refusal; Exclusivity..
(a) Devotion of Time. Manager will provide the Company with a management team,
including the Chief Executive Officer and the Chief Financial Officer of the Manager, to provide
the management services to be provided by Manager to the Company hereunder, the members of which
team shall devote such of their time to the management of the Company as the Independent Directors
determine is necessary and appropriate, commensurate with the level of activity of the Company from
time to time. The portion of the compensation of such officers payable by the Company pursuant to
the Agreed-Upon Budget, as such Agreed Upon-Budget may be adjusted pursuant to the quarterly review
contemplated in Section 8(a)(i)(C), shall reflect such determination. The Company shall have the
benefit of Managers best judgment and effort in rendering services and, in furtherance of the
foregoing, Manager shall not undertake activities which, in its reasonable judgment, will
substantially adversely affect the performance of its obligations under this Agreement.
(b) Additional Activities; Right of First Refusal. Except to the extent set forth in
Section 3(a) and subject to the provisions of this Section 3(b), Manager and any of its affiliates,
and any of the officers and employees of any of the foregoing (the Manager Parties), may
engage in other businesses and render services of any kind to any other Person, including
investment in, or advisory service to others investing in, Company Target Investments and other
real estate and real estate-related transactions; provided, however, prior to any Manager Party
engaging in transactions involving or rendering services relating to Company Target Investments
other than on behalf of or to the Company, if (i) such transaction is consistent with the
Companys investment objectives and within the Guidelines, and (ii) the parameters of the
transaction are of a character which would not adversely affect the status of Parent REIT or
Sub-REIT as REITs, Manager shall offer such investment opportunity to the Company by delivering to
the Credit Committee a written description thereof containing the economic and other material terms
of the transaction. The Credit Committee shall have five (5) days to accept or reject the offer by
a majority vote of the members of the Credit Committee. If the Credit Committee
10
rejects the offer
or does not respond to the offer within such five-day period, Manager shall present the investment
opportunity to the Independent Directors who shall have five (5) days to accept or reject the offer
by majority vote. If the Independent Directors reject the offer and allow Manager to pursue the
investment opportunity or do not respond to the offer within such five-day period, any Manager
Party may pursue the same provided the economic and other material terms thereof are not materially
more beneficial to the applicable Manager Party than the economic and other material terms to the
Company would have been under the transaction described in the original offer. If the economic and
other material terms of the transaction to be engaged in by the applicable Manager Party are
modified so that the benefits thereof to the applicable Manager Party are materially more
beneficial to the applicable Manager Party than such terms to the Company would have been under the
transaction described in the original offer, then Manager must offer the revised transaction
opportunity to the Company and the provisions of this Section 3(b) shall apply to the revised offer
as though it were an original offer. If the Company accepts, either by majority vote of the Credit
Committee or the Independent Directors, an investment opportunity offered by Manager hereunder, the
Company must reimburse Manager for its expenses relating thereto to the extent the same would be
reimbursable by the Company to Manager pursuant to Section 9. Notwithstanding the foregoing,
Manager may pursue investments in Manager Multifamily Bridge Loans, subject to the following: (i)
the Manager obtains the prior approval of the Independent Directors to make Manager Multifamily
Bridge Loans, and (ii) within 20 business days following each calendar quarter in which the Manger
has made investments in any Manager Multifamily Bridge Loans, Manager provides the Independent
Directors with a written report describing the type and amount of such Manager Multifamily Bridge
Loans.
(c) Manager Exclusivity Rights. Manager and any other Manager Party may, and the
Company agrees not to, pursue any investment opportunities consisting of multifamily and commercial
mortgage loans that meet the underwriting and approval guidelines of (i) Fannie Mae, (ii) the
Federal Housing Administration, and (iii) conduit commercial lending programs secured by first
liens on real property (collectively, Manager Target Investments).
(d) Officers, Employees, Etc. Manager, members, partners, officers, employees and
agents of Manager or affiliates of Manager may serve as directors, officers, employees, agents,
nominees or signatories for Parent REIT, the Operating Partnership, Sub-REIT or any other
Subsidiary, to the extent permitted by their Governing Instruments, as may be amended from time to
time, or by any resolutions duly adopted by the Board of Directors pursuant to Parent REITs
Governing Instruments. When executing documents or otherwise acting in such capacities for Parent
REIT, the Operating Partnership, Sub-REIT or such other Subsidiary, such Persons shall use their
respective titles with respect to Parent REIT, the Operating Partnership, Sub-REIT or such other
Subsidiary.
4. Agency. Manager shall act as agent of the Company in making, acquiring, financing and disposing of
Investments, disbursing and collecting the Companys funds, paying the debts and fulfilling the
obligations of the Company, supervising the performance of professionals engaged by or on behalf of
the Company and handling, prosecuting and settling any claims of or against the Company, the Board
of Directors, holders of Parent REIT, the Operating Partnership, Sub-REIT or any other Subsidiarys
securities or the Companys representatives or properties.
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5. Bank Accounts. At the direction of the Board of Directors, Manager may establish and
maintain one or more bank accounts in the name of Parent REIT, the Operating Partnership, Sub-REIT
or any other Subsidiary (any such account, a Company Account), collect and deposit funds
into any such Company Account or Company Accounts and disburse funds from any such Company Account
or Company Accounts, under such terms and conditions as the Board of Directors may approve.
Manager shall from time-to-time render appropriate accountings of such collections and payments to
the Board of Directors and, upon request, to the auditors of Parent REIT.
6. Records; Confidentiality.
(a) Records. Manager shall maintain appropriate books of account and records relating
to services performed under this Agreement, and such books of account and records shall be
accessible for inspection by representatives of Parent REIT, the Operating Partnership, Sub-REIT or
any other Subsidiary at any time during normal business hours upon one (1) business days advance
written notice.
(b) Confidentiality. Manager shall keep confidential any nonpublic information
obtained in connection with the services rendered under this Agreement and shall not disclose any
such information (or use the same except in furtherance of its duties under this Agreement),
except: (i) with the prior written consent of the Board of Directors; (ii) to legal counsel,
accountants and other professional advisors, so long as Manager informs such Persons of the
confidential nature of such information and directs them to treat such information confidentially;
(iii) to appraisers in the ordinary course of business; (iv) to governmental officials having
jurisdiction over Manager; (v) as required by law or legal process to which Manager or any Person
to whom disclosure is permitted hereunder is a party or in connection with Managers assertion in
any judicial or nonjudicial proceeding of any claim, counterclaim or defense against the Company;
or (vi) information which has previously become available through the actions of a Person other
than Manager not resulting from Managers violation of this Section 6(b).
7. Obligations of Manager; Restrictions.
(a) Asset Representations and Warranties. Manager shall require each seller or
transferor of investment assets to the Company to make such representations and warranties
regarding such assets as may, in the judgment of Manager, be necessary and appropriate. In
addition, Manager shall take such other action as it deems necessary or appropriate with
regard to the protection of the Investments.
(b) Restrictions. Manager shall refrain from any action that, in its sole judgment
made in good faith, (i) is not in compliance with the Guidelines, (ii) would adversely affect the
status of Parent REIT or Sub-REIT as REITs, or (iii) would violate any law, rule or regulation of
any governmental body or agency having jurisdiction over Parent REIT, the Operating Partnership,
Sub-REIT or any other Subsidiary or that would otherwise not be permitted by such Persons
Governing Instruments. If Manager is ordered to take any such action by the Board of Directors,
Manager shall promptly notify the Board of Directors of Managers judgment that such action would
adversely affect such status or violate any such law, rule or regulation or Governing Instruments.
Notwithstanding the foregoing, Manager, its
12
directors, officers, stockholders and employees shall
not be liable to Parent REIT, the Operating Partnership, Sub-REIT or any other Subsidiary, the
Board of Directors, Parent REIT or Sub-REITs stockholders or the Operating Partnerships partners
for any act or omission by Manager, its directors, officers, stockholders or employees except as
provided in Section 11.
(c) Interested Party Transaction. Manager shall not (i) consummate any transaction
which would involve the acquisition by the Company of property in which Manager or any of its
affiliates has an ownership interest or the sale by the Company of property to Manager or any of
its affiliates, or (ii) under circumstances where Manager is subject to an actual or potential
conflict of interest because it manages both the Company and another Person (not an affiliate of
the Company) with which the Company has a contractual relationship, take any action constituting
the granting to such other Person of a waiver, forebearance or other relief, or the enforcement
against such other Person of remedies, under or with respect to the applicable contract, unless
such transaction or action, as the case may be and in each case, is approved by a majority of the
Independent Directors.
(d) Joint Ventures. The Company shall not invest in joint ventures with Manager or
any of its affiliates, unless such Investment is (i) made in accordance with the Guidelines, and
(ii) approved in advance by a majority of the Independent Directors.
(e) Board of Director Review. The Board of Directors periodically reviews the
Guidelines and the Companys portfolio of Investments. If a majority of the Independent Directors
determine in their periodic review of transactions that a particular transaction does not comply
with the Guidelines, then a majority of the Independent Directors will consider what corrective
action, if any, can be taken.
(f) Insurance. Manager shall at all times during the term of this Agreement
(including the initial term and any renewal term) maintain a tangible net worth equal to or greater
than $3,000,000. In addition, Manager shall maintain errors and omissions insurance coverage and
such other insurance coverage which is customarily carried by property, asset and investment
managers performing functions similar to those of Manager under this Agreement with respect to
assets similar to the Investments of the Company, in an amount which is comparable to that
customarily maintained by other managers or servicers of similar assets.
8. Compensation.
(a) Cost Reimbursement.
(i) General. Subject to the provisions of this Section 8(a), the Company shall
reimburse the Manager for the costs incurred by the Manager in performing the duties set
forth in Section 2 (other than any Expenses incurred on behalf of the Company which shall be
reimbursed pursuant to Section 9) pursuant to the following procedures and guidelines.
(A) On or prior to December 1st of each fiscal year (beginning on December 1,
2009), Manager shall submit to the Independent Directors a proposed annual budget of
Manager to perform the duties set forth in Section 2 in the immediately following
fiscal year (the Proposed Manager Budget). The
13
Proposed Manager Budget
should include a reasonably detailed description of each type and amount of cost
expected to be incurred by Manager in performing such duties. Such costs may
include pro rata allocations of Managers costs for (1) the property and services of
Manager expected to be utilized by the Company and (2) the base salaries and annual
bonus potential, if any, of each employee of the Manager expected to perform
services on behalf of both the Company and Manager (a Covered Manager
Employee). As soon as practicable after the Proposed Manager Budget is
provided to the Independent Directors, the Independent Directors shall review the
amount and type of costs included in the Proposed Manager Budget.
(B) On or prior to December 31st of each fiscal year (beginning on December 31,
2009), Manager and the Company each agree to use commercially reasonable efforts to
agree upon the amount and type of each cost expected to be incurred by Manager in
performing the duties set forth in Section 2 in the immediately following year that
will be reimbursed by the Company (the Agreed-Upon Manager Budget).
(C) Within forty-five (45) days after the last day of each calendar quarter
beginning with the quarter ending March 31, 2010, Manager shall submit a report to
the Independent Directors setting forth (1) Managers actual costs to perform the
duties set forth in Section 2 in such quarter, and (2) the amounts set forth in the
Agreed-Upon Manager Budget allocable to such quarter. In addition, the Manager
shall cause each supervisor of a Covered Manager Employee to certify to the Company
whether or not there have been any material changes in the amount of time dedicated
to the Companys business in such quarter (a Supervisor Certification).
(1) If the total cost incurred by Manager to perform the duties set
forth in Section 2 in any given quarter exceeds 110% of the amount set forth
in the Agreed-Upon Manager Budget allocable to such quarter, excluding any
annual bonus potential amounts for any Covered Manager Employee (the
Excess Quarterly Costs), Manager may request
that the Independent Directors reimburse the Manager for such Excess
Quarterly Costs if Manager submits a written request to the Independent
Directors describing the type and amount of such excess costs and Managers
business reasons for such excess costs. The Company may reimburse Manager
for such Excess Quarterly Costs if (i) such Excess Quarterly Costs represent
types of costs contemplated in the Agreed-Upon Manager Budget, and (ii) the
Independent Directors determine, in their reasonable discretion, that
Managers business reason for the incurrence of the Excess Quarterly Costs
is reasonable in the context of the performance of Managers duties set
forth in Section 2.
(2) If the total cost incurred by Manager to perform the duties set
forth in Section 2 in any given quarter does not exceed 90% of the amount
set forth in the Agreed-Upon Manager Budget allocable to
14
such quarter,
excluding any annual bonus potential amounts for any Covered Manager
Employee, Manager shall refund to the Company the difference between the
actual amount incurred by Manager to perform the duties set forth in Section
2 in such quarter and the amount set forth in the Agreed-Upon Manager Budget
allocable to such quarter, subject to an annual reconciliation of the actual
costs incurred by the Manager to perform the duties set forth in Section 2
for each year.
(3) If the total cost incurred by Manager to perform the duties set
forth in Section 2 in any given quarter is equal to an amount between 90%
and 110% of the amount set forth in the Agreed-Upon Manager Budget allocable
to such quarter, excluding any annual bonus potential amounts for any
Covered Manager Employee, the Company shall continue to pay Manager 100% of
the amount set forth in the Agreed-Upon Manager Budget allocable to such
quarter, subject to an annual reconciliation of the actual costs incurred by
the Manager to perform the duties set forth in Section 2 for each year.
(4) At the end of each fiscal year, the sum of the quarterly payments
made to Manager pursuant to this Section 8(a)(i)(C) will be reconciled with
the actual costs incurred by Manager for such fiscal year, excluding any
annual bonus potential amounts for any Covered Manager Employees. If the
sum of such quarterly payments is less than the lesser of (A) 100% of the
Agreed-Upon Manager Budget for such fiscal year or the actual costs incurred
by Manager, excluding any annual bonus potential amounts for any Covered
Manager Employees, the Company shall pay such amount to Manager within three
(3) business days of such reconciliation. If, as result of this
reconciliation, the sum of such quarterly payments exceeds the lesser of
100% of the Agreed-Upon Manager Budget for such fiscal year or the actual
costs incurred by Manager, excluding any annual bonus potential amounts for
any Covered Manager Employees, Manager shall pay such amount to the Company
within three (3) business days of such reconciliation.
(5) At the end of each fiscal year, the Company and Manager shall
reconcile the Agreed-Upon Manager Budget with the actual costs incurred by
the Manager, excluding any annual bonus potential amounts for any Covered
Manager Employees. If, as a result of such annual reconciliation, it is
determined that Managers costs for such fiscal year exceed the Agreed-Upon
Budget for such fiscal year, Manager may request that the Company reimburse
Manager for such excess costs if Manager submits a written request to the
Independent Directors describing the type and amount of such excess costs
and Managers business reasons for such excess costs. The Company may
reimburse Manager for such excess costs if (i) such excess costs represent
types of costs contemplated in the Agreed-Upon Manager Budget, and (ii) the
Independent Directors determine, in their reasonable discretion, that
Managers business reason
15
for the incurrence of such excess costs is
reasonable in the context of the performance of Managers duties set forth
in Section 2.
(ii) Cost Reimbursement Installments. Subject to clauses (i)(C) and (iii) of
this Section 8(a), the Company shall pay the Manager one-twelfth (1/12) of the Agreed-Upon
Manager Budget (other than any amounts identified as the annual bonus potential of any
Covered Manager Employee) in cash on a monthly basis in arrears (each, a Cost
Reimbursement Installment) within twenty (20) days of the last day of the calendar
month with respect to which such Cost Reimbursement Installment is payable.
(A) If the Company agrees to reimburse Manager for any Excess Quarterly Costs
pursuant to Section 8(a)(i)(C), the Company shall pay Manager the agreed-upon amount
for any prior periods within three (3) business days of such determination and the
Company shall include the agreed-upon amount for any subsequent periods in the
monthly Cost Reimbursement Installments payable to Manager immediately following
such determination.
(B) The Cost Reimbursement Installment payable to Manager for any given
calendar month shall be reduced by the dollar amount representing the aggregate of
the amounts set forth in clauses (A), (B), (C) and (D) of Section 8(a)(iii)
applicable to such month. If the aggregate of such amounts applicable to any month
exceeds the amount of the Cost Reimbursement Installment otherwise payable for such
month, the Company shall not pay Manager any Cost Reimbursement Installment for such
month and shall retain the excess and apply it to reduce the Cost Reimbursement
Installment otherwise payable to Manager for the next calendar month or months until
fully applied. Upon the expiration or earlier termination of this Agreement, if any
such excess amounts remain to be applied against a succeeding monthly Cost
Reimbursement Installment, Manager shall pay to the Company the amount of such
excess unapplied amounts.
(iii) Cost Reimbursement Credits.
(A) CDO Special Servicing Fees. Any CDO Special Servicing Fees payable
to, or received by, Manager with respect to any period beginning on
or after January 1, 2009 shall be retained by the Manager and the Cost
Reimbursement Installment due to Manager for the month in which such fees were paid
to Manager shall be reduced by an amount equal to one hundred percent (100%) of the
amount of any such fees.
(B) Asset Management Services. The cost of services provided by the
Companys Asset Management Group to Manager for which Manager is required to
reimburse the Company pursuant to Section 1(c) of the Services Agreement shall be
retained by the Manager and the Cost Reimbursement Installment due to Manager for
the month in which such costs were incurred by the Company shall be reduced by an
amount equal to one hundred percent (100%) of the amount of any such costs.
16
(C) Origination Fees. Any origination fees paid by borrowers with
respect to any Investments, after deducting (i) any fees or commissions paid by the
Company to any brokers who are not affiliates of the Company, and (ii) any other
costs of third parties who are not affiliates of the Company that are related to the
origination of such Investments, shall be retained by the Manager and the Cost
Reimbursement Installment due to Manager for the month in which such origination fee
is paid by the borrower shall be reduced by an amount equal to one hundred percent
(100%) of the amount of any such origination fee.
(D) Exit Fee Waivers. To the extent that the Company agrees to waive
the requirement of any borrower under an Investment to pay an exit fee as a result
of such borrowers refinancing of such Investment with permanent financing by
Manager as contemplated in Section 8(b), the Cost Reimbursement Installment due to
Manager for the month in which such waiver is made shall be reduced by an amount
equal to fifty percent (50%) of the amount of any such exit fee.
(iv) Covered Manager Employee Bonuses. The Company shall reimburse Manager for
a portion of the annual bonus amounts proposed to be paid to each Covered Manager Employee
by the Manager, subject the following procedures and guidelines:
(A) Prior to the Compensation Committees consideration of the annual bonus
amounts to be paid to (1) the Covered Manager Employees who are expected to be the
seven (7) most highly compensated Covered Manager Employees for such year, (2) any
Covered Manager Employee whose proposed annual bonus amount exceeds 50% of his or
her base salary for such year, and (3) any Covered Manager Employee whose proposed
annual bonus amount is in excess of $200,000 (collectively, the Discretionary
Bonus Recipients), Manager shall provide the Compensation Committee with (i)
the total bonus amounts proposed to be paid by Manager to each Discretionary Bonus
Recipient, and (ii) the portion of such total bonus amounts proposed to be paid by
the Company to Manager, accompanied by a Supervisor Certification for each Covered
Manager Employee with respect to the applicable year or bonus period.
(B) The Compensation Committee and the Independent Directors shall have the
sole discretion to approve the amount of annual bonus of each Discretionary Bonus
Recipient to be paid by the Company to Manager (the Approved Bonus
Amount). If the proposed bonus amount for the Discretionary Bonus Recipient is
less than or equal to such persons annual bonus potential as set forth in the
Agreed-Upon Manager Budget for such year, and the Compensation Committee does not
approve such proposed bonus amount, the Company shall give Manager a commercially
reasonable reason for its decision.
(C) Within fifteen (15) days after the approval contemplated in clause (B)
above, the Company shall pay Manager (1) the Approved Bonus Amount for each
Discretionary Bonus Recipient, and (2) the Companys allocable
17
portion of the total
bonus amount to be paid by the Manager to each other Covered Manager Employee,
subject to such amounts not exceeding the Covered Manager Employees aggregate
annual bonus potential set forth in the Agreed-Upon Manager Budget for the
applicable year.
(v) 2009 Cost Reimbursement. The Agreed-Upon Manager Budget for fiscal year
2009 is attached hereto as Annex III. In consideration of Managers performance of
the duties set forth in Section 2 in the first six (6) months of fiscal year 2009, the
Company shall pay Manager the difference between the aggregate of the monthly Cost
Reimbursement Installments that would have been paid to Manager for such months based on
such Agreed-Upon Budget, less (A) any amounts set forth in Section 8(a)(ii)(B) applicable to
such months, and (B) all Management Fees (as defined in the First Amended Management
Agreement) paid by the Company to Manager for such months, equal to $1,201,461 in the
aggregate. With respect to the subsequent six months of 2009, the Company shall pay Manager
pursuant to the Agreed-Upon Manager Budget for 2009 in accordance, and subject to, all terms
and provisions of this Agreement.
(b) Characterization and Waiver of Exit Fees. With respect to any Investments
providing for the payment of any exit fees by the borrowers thereunder, (i) Manager shall use
commercially reasonable efforts to structure the applicable loan and other documents in such a
manner that it is reasonably likely that any such exit fees may be characterized as interest or
deferred interest for U.S. federal income tax purposes, and (ii) the Company agrees to waive any
such exit fees if such borrowers refinance their Investments with permanent financing provided by
Manager.
(c) Incentive Fee.
(i) In addition to the Cost Reimbursement, the Company shall pay Manager an annual
incentive fee (the Incentive Fee) on a cumulative, but not compounding, basis,
equal to the product of (A) twenty-five percent (25%) of the dollar amount by which (1)(a)
the Operating Partnerships Funds from Operations (before giving effect to payment of the
Incentive Fee) per OP Unit (based on the weighted average number of OP Units outstanding,
including OP Units issued to Parent REIT corresponding to outstanding Common Shares), plus
(b) Includable Gains or losses from
debt restructuring and sales of property per OP Unit (based on the weighted average
number of OP Units outstanding, including OP Units issued to Parent REIT corresponding to
outstanding Common Shares), exceed (2) the product of (a) the greater of (x) $10.00 and (y)
the weighted average (based on Common Shares and OP Units) of (i) the book value per OP Unit
of the net assets contributed by Manager to the Operating Partnership on July 1, 2003, (ii)
$15, (iii) the offering price per Common Share (including Common Shares issued upon the
exercise of warrants or options) at any secondary Common Share offerings by Parent REIT
(adjusted for any prior capital dividends or distributions), and (iv) the issue price per OP
Unit for subsequent contributions to the Operating Partnership, and (b) the greater of (i)
nine and one-half percent (9.5%) per annum, and (ii) the Ten Year U.S. Treasury Rate plus
three and one-half percent (3.5%) per annum, and (B) the weighted average number of OP Units
18
outstanding, including OP Units issued to Parent REIT corresponding to outstanding Common
Shares.
(ii) The Incentive Fee shall be payable annually in arrears; provided, however, Manager
shall receive quarterly installments thereof in advance, and Manager shall calculate each
such installment based on the period of twelve (12) months ending on the last day of the
fiscal quarter with respect to which such installment is payable (provided, for calendar
year 2003, such calculations shall be based on the period of three (3) or six (6) months, as
applicable, ending on the last day of the fiscal quarter with respect to which such
installment is payable), and deliver such calculation to the Board of Directors, within
forty-five (45) days following the last day of each fiscal quarter. The Company shall pay
Manager each installment of the Incentive Fee (each, an Incentive Fee Payment)
within sixty (60) days following the last day of the fiscal quarter with respect to which
such Incentive Fee Payment is payable.
(iii) Twenty-five percent (25%) of the Incentive Fee shall (subject to the remaining
provisions of this Section 8(c)(iii)) be payable to Manager in Common Shares, and the
remainder thereof shall be paid in cash; provided, Manager may (subject to the remaining
provisions of this Section 8(c)(iii)) elect, by so indicating in the installment calculation
delivered to Board of Directors, to receive more than twenty-five percent (25%) of the
Incentive Fee in the form of Common Shares; provided, however, Manager may not receive
payment of any portion of the Incentive Fee in the form of Common Shares, either
automatically or by election, if such payment would result a violation of the Common Share
ownership restrictions set forth in Parent REITs Governing Instruments. For purposes of
determining the Common Share equivalent of the amount of the Incentive Fee payable in Common
Shares, (A) prior to the date the Common Shares are publicly traded, each Common Share shall
have a value equal to the book value per Common Share on the last day of the fiscal quarter
with respect to which the Incentive Fee is being paid, and (B) from and after the date the
Common Shares are publicly traded, each Common Share shall have a value equal to the average
of the closing price per Common Share of the last (20) trading days of the fiscal quarter
with respect to which the Incentive Fee is being paid. Managers receipt of Common Shares
in accordance herewith shall be subject to all applicable securities exchange rules and
securities laws (including, without limitation, prohibitions on insider trading).
(iv) Each Incentive Fee Payment shall be deemed to be an advance of a portion of the
Incentive Fee payable for the subject fiscal year. The Manager shall calculate the
Incentive Fee payable during the immediately preceding fiscal year (or partial fiscal year,
if applicable, following the expiration or earlier termination of this Agreement), and
deliver such calculation to the Board of Directors, within seventy-five (75) days following
(A) the last day of each fiscal year during the term, and (B) the date of expiration or
earlier termination of this Agreement (such date, the Calculation Delivery Date). If the
amount of the Incentive Fee for such fiscal year (or partial fiscal year, if applicable)
exceeds the sum of the Incentive Fee Payments made during such fiscal year (or partial
fiscal year, if applicable), the Company shall pay Manager the amount of such underpayment,
subject to the provisions of Section 8(c)(iii), within fifteen (15) days after the date
Manager delivers such calculation to the Board of Directors. If
19
the amount of the Incentive
Fee due and payable for any fiscal year (or partial fiscal year, if applicable) is less than
the sum of the Incentive Fee Payments made with respect to such fiscal year (or partial
fiscal year, if applicable), Manager shall refund to the Company the portion of Incentive
Fee Payments received with respect to such fiscal year that exceeds the Incentive Fee due
for such fiscal year, in cash, within fifteen (15) days of the Calculation Delivery Date.
(v) Prime Outlets Incentive Fee.
(A) 2009 Reconciliation. Notwithstanding that the Manager may earn an
Incentive Fee pursuant to the formula set forth in Section 8(c)(i) for the twelve
months ending December 31, 2009 (the 2009 Incentive Fee), the Company and
Manager agree as follows:
(1) If the amount of the 2009 Incentive Fee exceeds the amount of the Prime
Outlets Incentive Fee, the Company shall only pay Manager the portion of the 2009
Incentive Fee that exceeds the amount of the Prime Outlets Incentive Fee shall and
the Manager shall retain the Prime Outlets Incentive Fee in satisfaction of the
Companys obligation to pay Manager the remainder of such Incentive Fee;
(2) If the 2009 Incentive Fee equals the Prime Outlets Incentive Fee, no
Incentive Fee shall be payable to the Manager with respect to the twelve months
ended December 31, 2009 in satisfaction of the Companys obligation to pay Manager
such Incentive Fee; and
(3) If the Prime Outlets Incentive Fee exceeds the 2009 Incentive Fee, no
Incentive Fee shall be payable to Manager with respect to the twelve months ended
December 31, 2009, and Manager shall refund to the Company the portion of the Prime
Outlets Incentive Fee that exceeds the amount of the 2009 Incentive Fee (the
Prime Outlets Excess) as follows: (a) 25% of the Prime Outlets Excess
shall be due and payable by December 31, 2010, and (b) 75% of the Prime Outlets
Excess shall be due and payable by June 30, 2012. Either installment of the Prime
Outlets Excess may be paid earlier than such due dates. In the event that the
Manager terminates this Agreement, any unpaid
portion of the Prime Outlets Excess shall become due and payable as of the
earlier of (a) the effective date of such termination and (b) the due dates set
forth above.
(B) Payment of Prime Outlets Excess in Shares. All or any portion of
either installment of the Prime Outlet Excess may be paid by surrendering Common
Shares to the Company as long as (x) at least 50% of the Prime Outlets Excess in the
aggregate is repaid in cash, and (y) Manager gives the Company five (5) business
days irrevocable written notice of its intent to surrender Common Shares in lieu of
paying cash. Notwithstanding the foregoing, the Independent Directors may, in their
sole discretion, permit the Manager to pay up to 100% of the Prime Outlets Excess in
Common Shares. Any surrender of
20
Common Shares by the Manager shall be valued at the
closing price for the Common Shares on the day the Manager surrenders the Common
Shares.
(C) Set-off. At any time after the Prime Outlets Incentive Fee is
determined to exceed the 2009 Incentive Fee and prior to the time that the Prime
Outlets Excess has been repaid in full, all compensation otherwise payable to the
Manager pursuant to this Section 8(c) will be retained by the Company to the extent
of the unpaid dollar amount of the Prime Outlets Excess and will be applied to
reduce the Managers obligation to repay the Prime Outlets Excess in cash and shares
of Common Stock.
(vi) 450 West 33rd Street Incentive Fee. The Company and Manager
agree that Managers right to retain the 450 West 33rd Street Incentive Fee is
subject the Companys obligation to pay any amounts pursuant to the 450 West 33rd
Street Guaranty. To the extent that the Company is required to pay any amounts pursuant to
the 450 West 33rd Street Guaranty, Manager shall be responsible for paying 25% of
any such amount by surrendering the applicable portion of the 450 West 33rd
Street Incentive Fee.
(vii) Special Incentive Fees. The Independent Directors may from time to time
in their sole discretion consider and approve the payment of special incentive fees to
Manager in consideration of the accomplishment of certain specified corporate objectives.
(d) 2008 Special Fee. The Company shall pay Manager a special fee equal to three
million dollars ($3,000,000.00) in consideration of (i) expenses incurred by Manager in fiscal year
2008 in connection with the management of the Companys business and Investments, (ii) the imputed
value of the $4.2 million loan made by Manager to the Company in December 2008, and (iii) special
services provided by Manager in 2008 in addition to the services contemplated in the First Amended
Management Agreement.
9. Expenses. Subject to Section 8(a), the Company shall be responsible for all expenses
incurred on its behalf in accordance with this Agreement. The Company shall reimburse Manager
pursuant to Section 10 for all third party expenses incurred by Manager on behalf of the Company,
which expenses may include the following:
(a) expenses in connection with the issuance and transaction costs incident to the
acquisition, disposition and financing of Investments;
(b) legal, accounting, tax and auditing fees and expenses of third parties for services
rendered for the Company by providers retained by Manager;
(c) compensation, benefits and expenses of the Independent Directors and the Companys
employees;
(d) travel and other out-of-pocket expenses incurred by the Companys employees in connection
with the purchase, financing, refinancing, sale or other disposition of Investments;
21
(e) compensation and expenses of the Companys custodian and transfer agent, if any;
(f) the cost of liability insurance to indemnify (i) the Companys directors and officers, and
(ii) the underwriters in connection with any securities offerings of Parent REIT, the Operating
Partnership, Sub-REIT or any other Subsidiary;
(g) any litigation, arbitration or similar costs incurred by Manager on behalf of the Company
relating to or arising from any claim, dispute or action brought by or against the Company;
(h) costs associated with the establishment and maintenance of any credit facilities or other
indebtedness of the Company (including, without limitation, commitment and origination fees, legal
fees, closing and other costs) or any securities offerings of Parent REIT, the Operating
Partnership, Sub-REIT or any other Subsidiary;
(i) costs incurred in raising capital for the Company, including fees and expenses of
investment banks, financial advisors, banks and other lenders;
(j) expenses relating to interest payments, dividends or distributions in cash or any other
form made or caused to be made by the Board of Directors to or on account of the holders of
securities or units of Parent REIT, the Operating Partnership, Sub-REIT or any other Subsidiary,
including, without limitation, in connection with any dividend reinvestment plan;
(k) expenses relating to the production and distribution of communications to holders of
securities or units of Parent REIT, the Operating Partnership, Sub-REIT or any other Subsidiary and
other bookkeeping and clerical work necessary to maintain relations with the holders of such
securities or units and to comply with the continuous reporting and other requirements of
governmental entities or agencies, including, without limitation, (i) costs of preparing and filing
required reports with the Securities and Exchange Commission, (ii) costs payable by Parent REIT to
any transfer agent or registrar in connection with the listing and/or trading of the Common Shares
on any exchange, (iii) fees payable by Parent REIT to any such exchange in connection with its
listing, and (iv) costs of preparing, printing and mailing Parent REITs annual report to its
shareholders and proxy materials with respect to any meeting of Parent REITs shareholders;
(l) other costs and expenses relating to the Companys business and investment operations,
including, without limitation, the costs and expenses of acquiring, owning, protecting,
maintaining, developing and disposing of Investments, including taxes, license fees and appraisal,
reporting, audit and legal fees; and
(m) such other extraordinary or non-recurring expenses incurred by Manager in connection with
the performance of its services hereunder, provided, to the extent the same are incurred with
respect to matters that do not fall within the provisions of the Guidelines, such expenses are
approved by a majority of the Independent Directors.
The types of expenses referred to in clauses (a) through (m) of this Section 9 are
collectively referred to as the Reimbursable Expenses. For the avoidance of doubt, Manager
22
shall not be entitled to reimbursement of the following types of expenses pursuant to this Section 9: (i)
any expenses that the Company is required to reimburse Manager for pursuant to Section 8(a), (ii)
any item included in a Proposed Manager Budget for any given fiscal year and subsequently excluded
from the Agreed-Upon Manager Budget for such year, and (iii) any Excess Quarterly Cost which the
Independent Directors has determined shall not be reimbursed pursuant to Section 8(a)(i)(C).
Except as set forth in Section 8(a), Manager shall bear the following expenses: (i) the wages
and salaries of Managers officers and employees; (ii) rent attributable to the offices occupied by
Manager separate from the office maintained for the Company; and (iii) all other overhead
expenses of Manager.
10. Reimbursable Expense Reports and Reimbursements. Manager shall prepare a statement
documenting the Reimbursable Expenses incurred during, and deliver the same to the Company within
forty-five (45) days following, each fiscal quarter. Reimbursable Expenses incurred by Manager on
behalf of the Company shall be reimbursed by the Company within sixty (60) days following each
fiscal quarter.
11. Limits of Manager Responsibility; Indemnification.
(a) Limits of Manager Responsibility. Manager assumes no responsibility under this
Agreement other than to render the services set forth herein in good faith and shall not be
responsible for any action of the Board of Directors in following or declining to follow any advice
or recommendations of Manager, including as set forth in Section 7(b). Manager, its members,
managers, officers and employees will not be liable to Parent REIT, Sub-REIT, the Operating
Partnership, any other Subsidiary, the Board of Directors, Parent REIT or the Sub-REITs
stockholders, the Operating Partnerships partners or any other Subsidiarys stockholders or
partners for any acts or omissions by Manager, its members, managers, officers or employees
pursuant to or in accordance with this Agreement, except as otherwise expressly provided in Section
11(c).
(b) Indemnification by Company. Parent REIT, Sub-REIT and/or the Operating
Partnership shall, to the full extent lawful, reimburse, indemnify and hold Manager, its
members, managers, officers and employees and each other Person, if any, controlling Manager
(each, a Manager Indemnified Party) harmless for and from any and all expenses, losses,
damages, liabilities, demands, charges and claims of any nature whatsoever (including reasonable
attorneys fees and disbursements), excluding any claims by Managers employees relating to the
terms and conditions of their employment by Manager, in respect of or arising out of (i) any acts
or omissions of such Manager Indemnified Party made in good faith in the performance of Managers
duties hereunder and not constituting such Manager Indemnified Partys bad faith, willful
misconduct, gross negligence or material breach (beyond any applicable cure period) of Managers
duties under this Agreement, and (ii) the Companys or any of its shareholders, directors,
officers or employees bad faith, willful misconduct, gross negligence or material breach (beyond
any applicable cure period) of the Companys obligations under this Agreement.
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(c) Indemnification by Manager. Manager shall, to the full extent lawful, reimburse,
indemnify and hold each of Parent REIT, Sub-REIT and the Operating Partnership, its shareholders,
directors, officers and employees and each other Person, if any, controlling Parent REIT, Sub-REIT
or the Operating Partnership harmless for and from any and all expenses, losses, damages,
liabilities, demands, charges and claims of any nature whatsoever (including reasonable attorneys
fees and disbursements) in respect of or arising out of (i) Managers or any of its members,
managers, officers or employees bad faith, willful misconduct, gross negligence or material
breach (beyond any applicable cure period) of Managers duties under this Agreement, and (ii) any
claims by Managers employees relating to the terms and conditions of their employment by Manager.
12. No Joint Venture. Nothing in this Agreement shall be construed to make the Company
and Manager partners or joint venturers or impose any liability as such on either of them.
13. Term; Termination.
(a) Term. This Agreement shall remain in full force and effect until December 31,
2010 unless earlier terminated by the Company or Manager as set forth below. This Agreement shall
be renewed automatically for successive one (1) year periods after December 31, 2010, until this
Agreement is terminated in accordance with the terms hereof.
(b) Non-Renewal/Termination Without Company Cause by Company. The Company may (i)
elect not to renew this Agreement at the expiration of any one-year term described in Section
13(a), or (ii) terminate this Agreement at any time without Company Cause, subject to the
provisions of Section 13(c). If the Company elects not to renew this Agreement, or to terminate
this Agreement without Company Cause, the Company shall (i) deliver to Manager a written notice
(the Company Termination Notice) specifying the date, which may not be less than six (6)
months from the date of the Company Termination Notice, on which this Agreement shall terminate
(the Effective Company Termination Date), and (ii) pay to Manager the Termination Fee no
later than the Effective Company Termination Date. Such termination by
the Company will be effective upon Effective Company Termination Date. For the avoidance of
doubt, any internalization of the Companys management shall be deemed a termination of this
Agreement pursuant to which the Company shall pay the Manager the Termination Fee unless the
Company shall have exercised its right to terminate this Agreement pursuant to Section 13(c) prior
to such internalization.
(c) Termination With Company Cause by Company. The Company may terminate this
Agreement, by a majority vote of the Independent Directors and without payment of the Termination
Fee, if:
(i) Manager commits fraud or acts or fails to act in a manner that constitutes gross
negligence in the performance of its duties hereunder;
(ii) Manager misappropriates or embezzles Company funds;
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(iii) Manager commits some other willful violation of this Agreement in its corporate
capacity (as distinguished from the acts of any employees of Manager which are taken without
the complicity of Principal);
(iv) Parent REIT removes Principal from the position of Chief Executive Officer of
Parent REIT for cause as such term is defined in and interpreted in accordance with the
Non-Competition Agreement;
(v) a Manager Change of Control occurs;
(vi) Principal is no longer Chief Executive Officer of Manager (provided such condition
is not a result of Principals death, disability or incapacity); or
(vii) Manager defaults in the performance or observance of any material term, condition
or covenant contained in this Agreement to be performed or observed on its part, and such
default continues for a period of thirty (30) days after written notice thereof from the
Company specifying such default and requesting that the same be remedied within such thirty
(30) day period; provided, however, Manager shall have an additional sixty (60) days to cure
such default if (A) such default cannot reasonably be cured with in thirty (30) days but can
be cured within ninety (90) days, and (B) Manager shall have commenced to cure such default
within the initial thirty (30) day period and thereafter diligently proceeds to cure the
same within ninety (90) days of the date of the Companys original notice of the default.
Termination of this Agreement pursuant to this Section 13(c) shall become effective, in case
of the foregoing (A) clauses (i) through (iv), upon seven (7) days prior written notice to
Manager, (B) clauses (v) and (vi), upon thirty (30) days prior written notice to Manager, and (C)
clause (vii), in the event of Managers failure to cure and provided the Company has delivered to
Manager a termination notice, upon the expiration of the applicable cure period.
(d) Non-Renewal/Termination Without Manager Cause by Manager. Manager may, without
payment of the Termination Fee, (i) elect not to renew this Agreement at the expiration of any
one-year term described in Section 13(a), or (ii) terminate this Agreement
at any time without Manager Cause. If Manager elects not to renew this Agreement, or to
terminate this Agreement without Manager Cause, the Manager shall (i) deliver to the Company a
written notice (the Manager Termination Notice) specifying the date, which may not be
less than six (6) months from the date of the Manager Termination Notice, on which this Agreement
shall terminate (the Effective Manager Termination Date). Such termination by the
Company will be effective upon Effective Manager Termination Date.
(e) Termination With Manager Cause by Manager. Manager may terminate this Agreement
if the Company defaults in the performance or observance of any material term, condition or
covenant contained in this Agreement to be performed or observed on its part, and such default
continues for a period of thirty (30) days after written notice thereof from Manager specifying
such default and requesting that the same be remedied within such thirty (30) day period (the
Cure Period). In the event of the Companys failure to cure such default within the Cure
Period, this Agreement shall terminate upon the expiration of the Cure Period provided
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Manager has
delivered to the Company a written notice of such termination upon the expiration of the Cure
Period.
14. Assignment.
(a) Manager Assignment. Except as set forth in Section 14(c), this Agreement shall
terminate at the Companys election and without payment of any Termination Fee, and any such
assignment shall be null and void, in the event of its assignment, in whole or in part, by Manager,
unless Manager obtains the prior written consent of Parent REIT and a majority of the Independent
Directors; provided, however, no such consent shall be required in the case of an assignment by
Manager to any affiliate whose day-to-day business and operations are managed and supervised by
Principal. Any permitted assignment by Manager shall bind the assignee in the same manner as
Manager is bound by the terms of this Agreement, and Manager shall be liable to the Company for all
errors or omissions of the assignee under any such assignment. In addition, the assignee shall
execute and deliver to the Company a counterpart of this Agreement naming such assignee as Manager.
For purposes of this Section 14(a) and Section 14(c), affiliate means any Person controlling,
controlled by or under common control with Manager, and control means the direct or indirect
ownership of at least fifty-one percent (51%) of the beneficial equity interests in and voting
power of such Person (and controlling and under common control with have meanings correlative
to the foregoing).
(b) Parent REIT Assignment. This Agreement shall not be assigned by Parent REIT
without Managers prior written consent; provided, however, no such consent shall be required in
the case of an assignment by Parent REIT to (i) a Subsidiary to which Parent REIT is also assigning
its general partnership interest in the Operating Partnership, or (ii) a REIT or other organization
which is a successor (by merger, consolidation or purchase of assets) to Parent REIT, in which case
such successor organization shall be bound under this Agreement and by the terms of such assignment
in the same manner as Parent REIT is bound by the terms of this Agreement.
(c) Manager Affiliate Subcontract and Partial Assignment. Notwithstanding any
provision of this Agreement, Manager may subcontract and assign any or all of its responsibilities
under Sections 2(b), (c) and (d) to any of its affiliates whose day-to-day business and operations
are managed and supervised by Principal in accordance with the terms of this Agreement applicable
to any such subcontract or assignment, and the Company hereby consents to any such subcontract and
assignment. In addition, provided that Manager provides prior written notice to the Company for
informational purposes only, nothing contained in this Agreement shall preclude any pledge,
hypothecation or other transfer of any amounts payable to Manager under this Agreement.
15. Action Upon Termination. From and after the effective date of termination of this
Agreement pursuant to Sections 13 or 14, Manager shall not be entitled to compensation for further
services under this Agreement but shall be paid all compensation accruing to the date of such
termination and the Termination Fee, if applicable. Upon such termination, Manager shall
forthwith:
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(a) after deducting any accrued compensation and reimbursement for Reimbursable Expenses to
which it is then entitled, pay over to the Company all money collected and held for the account of
the Company pursuant to this Agreement;
(b) deliver to the Board of Directors a full accounting, including a statement showing all
payments collected and all money held by it, covering the period following the date of the last
accounting furnished to the Board of Directors with respect to the Company; and
(c) deliver to the Board of Directors all property and documents of the Company provided to or
obtained by Manager pursuant to or in connection with this Agreement, including all copies and
extracts thereof in whatever form, then in Managers possession or under its control.
16. Survival
Sections 6(b), 10 and 11 shall survive termination or expiration of this Agreement. The
Companys obligation to pay the Termination Fee as contemplated in Section 13(b) shall survive any
such termination or expiration. The obligation of the Company to pay any of the amounts set forth
in Section 8 with respect to any period prior to the effective date of any termination or
expiration of this Agreement shall survive such termination or expiration. The obligation of the
Manager to pay the Prime Outlets Excess shall survive any termination or expiration of this
Agreement.
17. Release of Money or other Property Upon Written Request. Manager agrees that any
money or other property of the Company held by Manager under this Agreement shall be held by
Manager as custodian for the Company, and Managers records shall be clearly and appropriately
marked to reflect the ownership of such money or other property by the Company. Upon the receipt
by Manager of a written request signed by a duly authorized officer of the Company requesting
Manager to release to the Company any money or other property then held by Manager for the account
of the Company under this
Agreement, Manager shall release such money or other property to the Company within a
reasonable period of time, but in no event later than sixty (60) days following such request.
Manager shall not be liable to the Company, the Independent Directors, Parent REIT or Sub-REITs
stockholders or the Operating Partnerships partners for any acts or omissions by the Company in
connection with the money or other property released to the Company in accordance with the terms
hereof. The Company shall indemnify Manager and its members, managers, officers and employees
against any and all expenses, losses, damages, liabilities, demands, charges and claims of any
nature whatsoever which arise in connection with Managers release of such money or other property
to the Company in accordance with the terms of this Section 17. Indemnification pursuant to this
Section 17 shall be in addition to any right of Manager to indemnification under Section 11.
18. Notices. Unless expressly provided otherwise in this Agreement, all notices,
requests, demands and other communications required or permitted under this Agreement shall be in
writing and shall be deemed to have been duly given, made and received when delivered against
receipt or upon actual receipt of (a) personal delivery, (b) delivery by a reputable overnight
courier, (c) delivery by facsimile transmission against answerback, or (d) delivery by
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registered
or certified mail, postage prepaid, return receipt requested, addressed as set forth below:
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If to Parent REIT, Sub-REIT |
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or the Operating Partnership:
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Arbor Realty Trust, Inc. |
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333 Earle Ovington Boulevard, Suite 900 |
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Uniondale, New York 11553 |
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Attention: |
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Facsimile: |
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If to Manager:
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Arbor Commercial Mortgage, LLC |
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333 Earle Ovington Boulevard |
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Uniondale, New York 11553 |
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Attention: |
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Any party may alter the address to which communications or copies are to be sent by giving
notice of such change of address in conformity with the provisions of this Section 18 for the
giving of notice.
19. Binding Nature of Agreement; Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns as provided in this Agreement.
20. Entire Agreement. This Agreement contains the entire agreement and understanding
among the parties hereto with respect to the subject matter hereof and supersedes all prior and
contemporaneous
agreements, understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter of this Agreement. The express terms
of this Agreement control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms of this Agreement. This Agreement may not be modified or
amended other than by an agreement in writing signed by the parties hereto.
21. Governing Law. This Agreement and all questions relating to its validity,
interpretation, performance and enforcement shall be governed by and construed, interpreted and
enforced in accordance with the laws of the State of New York, notwithstanding any New York or
other conflict-of-law provisions to the contrary.
22. Indulgences, Not Waivers. Neither the failure nor any delay on the part of a party to
exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude
any other or further exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
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23. Titles Not to Affect Interpretation. The titles of sections, paragraphs and
subparagraphs contained in this Agreement are for convenience only, and they neither form a part of
this Agreement nor are they to be used in the construction or interpretation of this Agreement.
24. Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any party whose signature
appears thereon, and all of which shall together constitute one and the same instrument. This
Agreement shall become binding when one or more counterparts of this Agreement, individually or
taken together, shall bear the signatures of all of the parties reflected hereon as the
signatories.
25. Provisions Separable. The provisions of this Agreement are independent of and
separable from each other, and no provision shall be affected or rendered invalid or unenforceable
by virtue of the fact that for any reason any other or others of them may be invalid or
unenforceable in whole or in part.
26. Principles of Construction. Words used herein regardless of the number and gender
specifically used, shall be deemed and construed to include any other number, singular or plural,
and any other gender, masculine, feminine or neuter, as the context requires. All references to
recitals, sections,
paragraphs and schedules are to the recitals, sections, paragraphs and schedules in or to this
Agreement unless otherwise specified.
27. Amendments. This Agreement may be amended only in a writing signed by the parties
hereto; provided the same has been approved by a majority of the Independent Directors. The
approval of the holders of the Common Shares shall not be required for any amendments to this
Agreement.
28. References to Original Management Agreement and First Amended Management Agreement
Any reference to the Original Management Agreement or First Amended Management Agreement in
any other document executed in connection with the Original Management Agreement, the First Amended
Management Agreement or this Agreement shall be deemed to refer to this Agreement.
[NO FURTHER TEXT ON THIS PAGE]
29
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
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Manager: |
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ARBOR COMMERCIAL MORTGAGE, LLC,
a New York limited liability company |
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By: |
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/s/ Ivan Kaufman |
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Name: |
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Ivan Kaufman |
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Chief Executive Officer |
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Parent REIT: |
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ARBOR REALTY TRUST, INC.,
a Maryland corporation |
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By: |
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/s/ Paul Elenio |
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Name: |
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Paul Elenio |
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Title: |
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Chief Financial Officer |
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and Executive Vice President |
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Operating Partnership: |
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ARBOR REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership |
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By: Arbor Realty GPOP, Inc.,
a Delaware corporation,
its general partner |
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By:
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/s/ Paul Elenio |
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Name:
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Paul Elenio |
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Title:
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Chief Financial Officer |
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and Executive Vice President |
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Sub-REIT: |
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ARBOR REALTY SR, INC.,
a Maryland corporation |
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By: |
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/s/ Paul Elenio |
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Name: |
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Paul Elenio |
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Chief Financial Officer |
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and Executive Vice President |
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exv10w7
Exhibit 10.7
AMENDED AND RESTATED
ARBOR REALTY TRUST, INC.
2003 OMNIBUS STOCK INCENTIVE PLAN
Approved by the Companys Stockholders on June 18, 2009
Section 1. General Purpose of Plan; Definitions.
The name of this plan is the Arbor Realty Trust, Inc. 2003 Omnibus Stock Incentive Plan, as
amended and restated (the Plan).
The purpose of the Plan is to enable the Company to attract and retain highly qualified
personnel who will contribute to the Companys success and to provide incentives to Participants
(defined below) that are linked directly to stockholder value and will therefore inure to the
benefit of all stockholders of the Company.
For purposes of the Plan, the following terms shall be defined as set forth below:
(a) Administrator means the Board, or if and to the extent the Board does not
administer the Plan, the Committee in accordance with Section 2 below.
(b) Award means any award under the Plan.
(c) Award Agreement means, with respect to each Award, the signed written agreement
between the Company and the Participant setting forth the terms and conditions of the Award.
(d) Board means the Board of Directors of the Company.
(e) Code means the Internal Revenue Code of 1986, as amended from time to time, or
any successor thereto.
(f) Committee means any committee the Board may appoint to administer the Plan. If
at any time or to any extent the Board shall not administer the Plan, then the functions of the
Board specified in the Plan shall be exercised by the Committee.
(g) Common Stock means the common stock, par value $.01 per share, of the Company.
(h) Company means Arbor Realty Trust, Inc., a Maryland corporation (or any successor
corporation).
(i) Disability means the inability of a Participant to perform substantially his or
her duties and responsibilities to the Company or to any Parent or Subsidiary by reason of a
physical or mental disability or infirmity (i) for a continuous period of six months, or (ii) at
such earlier time as the Participant submits medical evidence satisfactory to the Administrator
that the Participant has a physical or mental disability or infirmity that will likely prevent the
Participant from returning to the performance of the Participants work duties for six months or
longer. The date of such Disability shall be the last day of such six-month period or the day on
which the Participant submits such satisfactory medical evidence, as the case may be.
(j) Eligible Recipient means an officer, director, employee, consultant (including
employees of the Manager who provide services to the Company) or advisor of the Company or of any
Parent or Subsidiary.
(k) Exercise Price means the per share price, if any, at which a holder of an Option
may purchase the Shares issuable upon exercise of the Option.
(l) Fair Market Value as of a particular date shall mean the fair market value of a
share of Common Stock as determined by the Administrator in its sole discretion; provided,
however, that (i) if the Common Stock is admitted to trading on a national securities
exchange, fair market value of a share of Common Stock on any date shall be the closing sale price
reported for such share on such exchange on such date or, if no sale was reported on such date, on
the last date preceding such date on which a sale was reported, (ii) if the Common Stock is
admitted to quotation on the National Association of Securities Dealers Automated Quotation
(Nasdaq) System or other comparable quotation system and has been designated as a National Market
System (NMS) security, fair market value of a share of Common Stock on any date shall be the
closing sale price reported for such share on such system on such date or, if no sale was reported
on such date, on the last date preceding such date on which a sale was reported, or (iii) if the
Common Stock is admitted to quotation on the Nasdaq System but has not been designated as an NMS
security, fair market value of a share of Common Stock on any date shall be the average of the
highest bid and lowest asked prices of such share on such system on such date or, if no bid and ask
prices were reported on such date, on the last date preceding such date on which both bid and ask
prices were reported.
(m) Incentive Stock Option means any Option intended to be designated as an
incentive stock option within the meaning of Section 422 of the Code.
(n) Manager means Arbor Commercial Mortgage, LLC, a New York limited liability
company.
(o) Nonqualified Stock Option means any Option that is not an Incentive Stock
Option, including any Option that provides (as of the time such Option is granted) that it will not
be treated as an Incentive Stock Option.
(p) Option means an option to purchase Shares granted pursuant to Section 6 below.
2
(q) Parent means any corporation (other than the Company) in an unbroken chain of
corporations ending with the Company, if each of the corporations in the chain (other than the
Company) owns stock possessing 50% or more of the combined voting power of all classes of stock in
one of the other corporations in the chain.
(r) Participant means any Eligible Recipient selected by the Administrator, pursuant
to the Administrators authority in Section 2 below, to receive grants of Options and/or awards of
Restricted Stock.
(s) Restricted Stock means Shares subject to certain restrictions granted pursuant
to Section 6 below.
(t) Shares means shares of Common Stock reserved for issuance under the Plan, as
adjusted pursuant to Sections 3 and 4, and any successor security.
(u) Subsidiary means any corporation (other than the Company) in an unbroken chain
of corporations beginning with the Company, if each of the corporations (other than the last
corporation) in the unbroken chain owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in the chain.
Section 2. Administration.
The Plan shall be administered by the Board or, at the Boards sole discretion, by the
Committee, which shall be appointed by the Board, and which shall serve at the pleasure of the
Board. Pursuant to the terms of the Plan, the Administrator shall have the power and authority:
(a) to select those Eligible Recipients who shall be Participants;
(b) to determine whether and to what extent Options or awards of Restricted Stock are to be
granted hereunder to Participants;
(c) to determine the number of Shares to be covered by each Award granted hereunder;
(d) to determine the terms and conditions, not inconsistent with the terms of the Plan, of
each Award granted hereunder; and
(e) to determine the terms and conditions, not inconsistent with the terms of the Plan, which
shall govern all written instruments evidencing Options or awards of Restricted Stock granted
hereunder.
3
The Administrator shall have the authority, in its sole discretion, to adopt, alter and repeal
such administrative rules, guidelines and practices governing the Plan as it shall from time to
time deem advisable; to interpret the terms and provisions of the Plan and any Award issued under
the Plan (and any Award Agreement relating thereto); and to otherwise supervise the administration
of the Plan.
All decisions made by the Administrator pursuant to the provisions of the Plan shall be final,
conclusive and binding on all persons, including the Company and the Participants.
Section 3. Shares Subject to Plan.
The total number of shares of Common Stock reserved and available for issuance under the Plan
shall be 2,385,000 shares. Such shares may consist, in whole or in part, of authorized and
unissued shares or treasury shares.
To the extent that (i) an Option expires or is otherwise terminated without being exercised,
or (ii) any Shares subject to any award of Restricted Stock are forfeited, such Shares shall again
be available for issuance in connection with future Awards granted under the Plan.
Section 4. Corporate Transactions.
In the event of any merger, reorganization, consolidation, recapitalization, stock dividend or
other change in corporate structure affecting the Common Stock, an equitable substitution or
proportionate adjustment shall be made in (i) the aggregate number of Shares reserved for issuance
under the Plan, (ii) the kind, number and Exercise Price of Shares subject to outstanding Options
granted under the Plan, and (iii) the kind, number and purchase price of Shares subject to
outstanding awards of Restricted Stock granted under the Plan, in each case as may be determined by
the Administrator, in its sole discretion. Such other substitutions or adjustments shall be made
as may be determined by the Administrator, in its sole discretion. In connection with any event
described in this paragraph, the Administrator may provide, in its sole discretion, for the
cancellation of any outstanding awards and payment in cash or other property therefor.
Section 5. Eligibility.
Eligible Recipients may be granted Options and/or awards of Restricted Stock.
4
The Participants under the Plan shall be selected from time to time by the Administrator, in
its sole discretion, from among the Eligible Recipients.
The Administrator shall have the authority to grant to any Eligible Recipient who is an
employee of the Company or of any Parent or Subsidiary (including directors who are also officers
of the Company) Incentive Stock Options, Nonqualified Stock Options, or both types of Options,
and/or Restricted Stock. Non-employee Directors of the Company or of any Parent or Subsidiary,
consultants (including employees of the Manager who provide services to the Company) or advisors
who are not also employees of the Company or of any Parent or Subsidiary may only be granted
Options that are Nonqualified Stock Options and/or Restricted Stock.
Section 6. Options.
Options may be granted alone or in addition to other awards of Restricted Stock granted under
the Plan. Any Option granted under the Plan shall be in such form as the Administrator may from
time to time approve, and the provisions of each Option need not be the same with respect to each
Participant. Participants who are granted Options shall enter into an Award Agreement with the
Company, in such form as the Administrator shall determine, which Award Agreement shall set forth,
among other things, the Exercise Price of the Option, the term of the Option and provisions
regarding exercisability of the Option granted thereunder.
The Options granted under the Plan may be of two types: (i) Incentive Stock Options and (ii)
Nonqualified Stock Options. To the extent that any Option does not qualify as an Incentive Stock
Option, it shall constitute a separate Nonqualified Stock Option. More than one Option may be
granted to the same Participant and be outstanding concurrently hereunder.
Options granted under the Plan shall be subject to the following terms and conditions and
shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as
the Administrator shall deem desirable:
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Option Exercise Price. The per share Exercise Price of Shares
purchasable under an Option shall be determined by the Administrator in its sole
discretion at the time of grant but shall not, (i) in the case of Incentive Stock
Options, be less than 100% of the Fair Market Value of the Common Stock on such date
(110% of the Fair Market Value per Share on such date if, on such date, the Eligible
Recipient owns (or is deemed to own under Section 424(d) of the Code) stock possessing
more than ten percent of the total combined voting power of all classes of stock of the
Company, or any Parent or Subsidiary), and (ii) in the case of Nonqualified Stock
Options, be less than 100% of the Fair Market Value of the Common Stock on such date. |
5
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(b) |
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Option Term. The term of each Option shall be fixed by the
Administrator, but no Option shall be exercisable more than ten years after the date
such Option is granted; provided, however, that if an employee owns or
is deemed to own (by reason of the attribution rules of Section 424(d) of the Code)
more than 10% of the combined voting power of all classes of stock of the Company or of
any Parent or Subsidiary and an Incentive Stock Option is granted to such employee, the
term of such Incentive Stock Option (to the extent required by the Code at the time of
grant) shall be no more than five years from the date of grant. |
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(c) |
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Exercisability. Options shall be exercisable at such time or times and
subject to such terms and conditions as shall be determined by the Administrator at or
after the time of grant. The Administrator may also provide that any Option shall be
exercisable only in installments, and the Administrator may waive such installment
exercise provisions at any time, in whole or in part, based on such factors as the
Administrator may determine, in its sole discretion. |
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(d) |
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Method of Exercise. Subject to Section 6(c), Options may be exercised
in whole or in part at any time during the Option period, by giving written notice of
exercise to the Company specifying the number of Shares to be purchased, accompanied by
(i) payment in full of the aggregate Exercise Price of the Shares so purchased in cash,
(ii) delivery of outstanding shares of Common Stock with a Fair Market Value on the
date of exercise equal to the aggregate Exercise Price payable with respect to the
Options exercise or (iii) simultaneous sale through a broker reasonably acceptable to
the Administrator of Shares acquired on exercise, as permitted under Regulation T of
the Federal Reserve Board. |
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In the event a grantee elects to pay the Exercise Price payable with respect to an
Option pursuant to clause (ii) above: (A) only a whole number of share(s) of Common
Stock (and not fractional shares of Common Stock) may be tendered in payment, (B)
such grantee must present evidence acceptable to the Company that he or she has
owned any such shares of Common Stock tendered in payment of the Exercise Price (and
that such tendered shares of Common Stock have not been subject to any substantial
risk of forfeiture) for at least six months prior to the date of exercise, and (C)
Common Stock must be delivered to the Company. Delivery for this purpose may, at
the election of the grantee, be made either by (i) physical delivery of the
certificate(s) for all such shares of Common Stock tendered in payment of the
Exercise Price, accompanied by duly executed instruments of transfer in a form
acceptable to the Company, or (ii) direction to the grantees broker to transfer, by
book entry, of such shares of Common Stock from a brokerage account of the grantee
to a brokerage account specified by the Company. When payment of the Exercise Price
is made by delivery of Common Stock, the difference, if any, between the aggregate
Exercise Price payable with respect to the Option being exercised and the Fair
Market Value of the shares of Common Stock tendered in payment (plus any applicable
taxes) shall be paid in |
6
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cash. No grantee may tender shares of Common Stock having a Fair Market Value
exceeding the aggregate Exercise Price payable with respect to the Option being
exercised (plus any applicable taxes). |
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(e) |
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Non-Transferability of Options. Except as otherwise provided by the
Administrator or in the Award Agreement, Options may not be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner other than by will or by the
laws of descent or distribution. |
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(f) |
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Termination of Employment or Service. The rights of Participants
granted Options upon termination of employment or service as a director, consultant or
advisor to the Company or to any Parent or Subsidiary for any reason prior to the
exercise of such Options shall be set forth in the Award Agreement governing such
Options. |
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(g) |
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Annual Limit on Incentive Stock Options. To the extent that the
aggregate Fair Market Value (determined as of the date the Incentive Stock Option is
granted) of Shares with respect to which Incentive Stock Options granted to a
Participant under this Plan and all other option plans of the Company or of any Parent
or Subsidiary become exercisable for the first time by the Participant during any
calendar year exceeds $100,000 (as determined in accordance with Section 422(d) of the
Code), the portion of such Incentive Stock Options in excess of $100,000 shall be
treated as Nonqualified Stock Options. |
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(h) |
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Rights as Stockholder. An Optionee shall have no rights to dividends
or any other rights of a stockholder with respect to the Shares subject to the Option
until the Optionee has given written notice of exercise, has paid in full for such
Shares, has satisfied the requirements of Section 10(d) hereof and, if requested, has
given the representation described in Section 10(b) hereof. |
Section 7. Restricted Stock.
Awards of Restricted Stock may be issued either alone or in addition to Options granted under
the Plan. The Administrator shall determine the Eligible Recipients to whom, and the time or times
at which, awards of Restricted Stock shall be made; the number of Shares to be awarded; the price,
if any, to be paid by the Participant for the acquisition of Restricted Stock; the Restricted
Period (as defined in Section 7(b)) applicable to awards of Restricted Stock. The Administrator
may also condition the grant of the award of Restricted Stock upon the exercise of Options or upon
such other criteria as the Administrator may determine, in its sole discretion. The provisions of
the awards of Restricted Stock need not be the same with respect to each Participant.
7
(a) Awards and Certificates. The prospective recipient of awards of Restricted Stock
shall not have any rights with respect to any such Award, unless and until such recipient has
executed an Award Agreement evidencing the Award (a Restricted Stock Award Agreement) and
delivered a fully executed copy thereof to the Company, within a period of sixty days (or such
other period as the Administrator may specify) after the award date. Except as otherwise provided
below in Section 7(b), each Participant who is granted an award of Restricted Stock shall be issued
a stock certificate in respect of such shares of Restricted Stock, which certificate shall be
registered in the name of the Participant and shall bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to any such Award.
The Company may require that the stock certificates evidencing Restricted Stock granted
hereunder be held in the custody of the Company until the restrictions thereon shall have lapsed,
and that, as a condition of any award of Restricted Stock, the Participant shall have delivered a
stock power, endorsed in blank, relating to the Shares covered by such Award.
(b) Restrictions and Conditions. The awards of Restricted Stock granted pursuant to
this Section 7 shall be subject to the following restrictions and conditions:
(i) Subject to the provisions of the Plan and the Restricted Stock Award
Agreement governing any such Award, during such period as may be set by the
Administrator commencing on the date of grant (the Restricted Period), the
Participant shall not be permitted to sell, transfer, pledge or assign shares of
Restricted Stock awarded under the Plan; provided, however, that the
Administrator may, in its sole discretion, provide for the lapse of such
restrictions in installments and may accelerate or waive such restrictions in whole
or in part based on such factors and such circumstances as the Administrator may
determine, in its sole discretion.
(ii) Except as provided in Section 7(b)(i), the Participant shall generally
have the rights of a stockholder of the Company with respect to Restricted Stock
during the Restricted Period. Certificates for unrestricted Shares shall be
delivered to the Participant promptly after, and only after, the Restricted Period
shall expire without forfeiture in respect of such awards of Restricted Stock
except as the Administrator, in its sole discretion, shall otherwise determine.
(iii) The rights of Participants granted awards of Restricted Stock upon
termination of employment or service as a director, consultant or advisor to the
Company or to any Parent or Subsidiary for any reason during the Restricted Period
shall be set forth in the Restricted Stock Award Agreement governing such Awards.
Section 8. Amendment and Termination.
8
The Board may amend, alter or discontinue the Plan, but no amendment, alteration, or
discontinuation shall be made that would impair the rights of a Participant under any Award
theretofore granted without such Participants consent. To the extent necessary and desirable, the
Board shall obtain approval of the stockholders (as described below), for any amendment that would:
(a) except as provided in Sections 3 or 4 of the Plan, increase the total number of Shares
reserved for issuance under the Plan;
(b) change the class of officers, directors, employees, consultants and advisors eligible to
participate in the Plan; or
(c) extend the maximum Option term under Section 6(b) of the Plan.
The Administrator may amend the terms of any Award theretofore granted, prospectively or
retroactively, but, subject to Section 4 of the Plan, no such amendment shall impair the rights of
any Participant without his or her consent.
Section 9. Unfunded Status of Plan.
The Plan is intended to constitute an unfunded plan for incentive compensation. With
respect to any payments not yet made to a Participant by the Company, nothing contained herein
shall give any such Participant any rights that are greater than those of a general creditor of the
Company.
Section 10. General Provisions.
(a) Shares shall not be issued pursuant to any Award granted hereunder unless such Award and
the issuance and delivery of such Shares pursuant thereto shall comply with all relevant provisions
of law, including, without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, and the requirements of any stock exchange upon which the Common
Stock may then be listed, and shall be further subject to the approval of counsel for the Company
with respect to such compliance.
(b) The Administrator may require each person acquiring Shares to represent to and agree with
the Company in writing that such person is acquiring the Shares without a view to distribution
thereof. The certificates for such Shares may include any legend which the Administrator deems
appropriate to reflect any restrictions on transfer.
9
All certificates for Shares delivered under the Plan shall be subject to such stock-transfer
orders and other restrictions as the Administrator may deem advisable under the rules, regulations,
and other requirements of the Securities and Exchange Commission, any stock exchange upon which the
Common Stock is then listed, and any applicable Federal or state securities law, and the
Administrator may cause a legend or legends to be placed on any such certificates to make
appropriate reference to such restrictions.
(c) Nothing contained in the Plan shall prevent the Board from adopting other or additional
compensation arrangements, subject to stockholder approval, if such approval is required; and such
arrangements may be either generally applicable or applicable only in specific cases. The adoption
of the Plan shall not confer upon any Eligible Recipient any right to continued employment or
service with the Company or any Parent or Subsidiary, as the case may be, nor shall it interfere in
any way with the right of the Company or any Parent or Subsidiary to terminate the employment or
service of any of its Eligible Recipients at any time.
(d) Unless otherwise determined by the Administrator, a Participant may elect to deliver
shares of Common Stock (or have the Company withhold shares) to satisfy, in whole or in part, the
amount the Company is required to withhold for taxes in connection with the exercise of an Option
or the delivery of Restricted Stock upon grant or vesting, as the case may be. Such election must
be made on or before the date the amount of tax to be withheld is determined. Once made, the
election shall be irrevocable. The fair market value of the Shares to be withheld or delivered
will be the Fair Market Value as of the date the amount of tax to be withheld is determined. In
the event a Participant elects to deliver or have the Company withhold Shares of Common Stock
pursuant to this Section 10(d), such delivery or withholding must be made subject to the conditions
and pursuant to the procedures set forth in Section 6(d) with respect to the delivery or
withholding of Common Stock in payment of the Exercise Price of Options.
(e) No member of the Board or the Administrator, nor any officer or employee of the Company
acting on behalf of the Board or the Administrator, shall be personally liable for any action,
determination, or interpretation taken or made in good faith with respect to the Plan, and all
members of the Board or the Administrator and each and any officer or employee of the Company
acting on their behalf shall, to the extent permitted by law, be fully indemnified and protected by
the Company in respect of any such action, determination or interpretation.
Section 11. Effective Date of Plan.
(a) The Plan was originally adopted by the Board on June 25, 2003 (the Effective Date).
10
(b) The Plan is amended and restated effective upon the Boards approval on April 30, 2009,
subject to the approval by the stockholders of the Company.
Section 12. Term of Plan.
No Award shall be granted pursuant to the Plan on or after the tenth anniversary of the
Effective Date, but Awards theretofore granted may extend beyond that date.
Section 13. Governing Law.
This Plan and all questions relating to its validity, interpretation, performance and
enforcement shall be governed by and construed, interpreted and enforced in accordance with the
laws of the State of New York, notwithstanding any New York or other conflict-of-law provisions to
the contrary.
11
exv10w33
Exhibit 10.33
$352,000,000
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
among
ARBOR REALTY FUNDING, LLC,
ARSR TAHOE, LLC,
ARBOR REALTY LIMITED PARTNERSHIP,
ART 450 LLC,
ARBOR REALTY SR, INC., and
ARBOR ESH II LLC
as Borrowers,
ARBOR REALTY TRUST, INC.
ARBOR REALTY LIMITED PARTNERSHIP, and
ARBOR REALTY SR, INC.,
as Guarantors,
THE LENDERS PARTY HERETO,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
Dated as of July 23, 2009
WELLS FARGO SECURITIES, LLC
(formerly known as Wachovia Capital Markets, LLC),
as Sole Lead Arranger and Sole Bookrunner
Prepared by:
TABLE OF CONTENTS
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Page |
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ARTICLE I DEFINITIONS |
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1 |
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Section 1.1 Defined Terms |
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1 |
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Section 1.2 Other Definitional Provisions |
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40 |
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Section 1.3 Accounting Terms |
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40 |
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Section 1.4 Time References |
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40 |
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Section 1.5 Execution of Documents |
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41 |
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Section 1.6 UCC Terms |
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41 |
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Section 1.7 References to Discretion |
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41 |
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Section 1.8 References to Payment |
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41 |
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ARTICLE II THE LOANS; AMOUNT AND TERMS |
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41 |
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Section 2.1 Future Funding Loans |
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41 |
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Section 2.2 Term Loan |
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46 |
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Section 2.3 Fees |
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47 |
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Section 2.4 Commitment Reductions |
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47 |
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Section 2.5 Prepayments |
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48 |
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Section 2.6 Default Rate and Payment Dates |
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50 |
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Section 2.7 Conversion Options |
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51 |
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Section 2.8 Computation of Interest and Fees; Usury |
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51 |
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Section 2.9 Pro Rata Treatment and Payments |
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52 |
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Section 2.10 Non-Receipt of Funds by the Administrative Agent |
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55 |
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Section 2.11 Inability to Determine Interest Rate |
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57 |
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Section 2.12 Yield Protection |
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57 |
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Section 2.13 Indemnity; Eurocurrency Liabilities |
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58 |
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Section 2.14 Taxes |
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59 |
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Section 2.15 Illegality |
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60 |
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Section 2.16 Obligations Absolute |
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61 |
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Section 2.17 Additional Collateral |
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61 |
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ARTICLE III REPRESENTATIONS AND WARRANTIES |
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62 |
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Section 3.1 Financial Condition |
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62 |
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Section 3.2 No Material Adverse Effect; Internal Control Event |
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63 |
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Section 3.3 Corporate Existence; Compliance with Law |
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63 |
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Section 3.4 Corporate Power; Authorization; Enforceable Obligations |
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63 |
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Section 3.5 No Legal Bar; No Default |
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63 |
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Section 3.6 No Material Litigation |
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64 |
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Section 3.7 Investment Company Act; Federal Power Act;
Interstate Commerce Act; and Federal and State Statutes and Regulations |
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64 |
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Section 3.8 Margin Regulations |
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64 |
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Section 3.9 ERISA |
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64 |
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Section 3.10 Environmental Matters |
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65 |
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Section 3.11 Use of Proceeds |
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65 |
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Section 3.12 Subsidiaries; Joint Ventures; Partnerships |
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65 |
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Section 3.13 Ownership |
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66 |
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Section 3.14 Indebtedness |
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66 |
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Page |
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Section 3.15 Taxes |
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66 |
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Section 3.16 Solvency |
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66 |
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Section 3.17 Repurchase of Debt |
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66 |
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Section 3.18 Location |
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66 |
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Section 3.19 No Burdensome Restrictions |
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67 |
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Section 3.20 Brokers Fees |
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67 |
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Section 3.21 Labor Matters |
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67 |
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Section 3.22 Accuracy and Completeness of Information |
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67 |
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Section 3.23 Material Contracts |
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67 |
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Section 3.24 Insurance |
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68 |
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Section 3.25 Security Documents |
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68 |
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Section 3.26 Anti-Terrorism Laws |
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68 |
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Section 3.27 Compliance with OFAC Rules and Regulations |
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68 |
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Section 3.28 Compliance with FCPA |
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69 |
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Section 3.29 Consent; Governmental Authorizations |
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69 |
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Section 3.30 Bulk Sales |
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69 |
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Section 3.31 Income and Required Payments |
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69 |
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Section 3.32 Full Payment |
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69 |
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Section 3.33 Irrevocable Instructions |
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69 |
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Section 3.34 Compliance with Covenants |
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70 |
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Section 3.35 Collateral Agreements |
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70 |
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Section 3.36 No Reliance |
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70 |
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Section 3.37 Collateral |
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70 |
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Section 3.38 REIT Status |
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70 |
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Section 3.39 Insider |
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70 |
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Section 3.40 No Defenses |
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71 |
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Section 3.41 Eligible Subordinated Debt |
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71 |
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Section 3.42 Selection Procedures |
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71 |
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Section 3.43 Value Given |
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71 |
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Section 3.44 Separateness |
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71 |
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Section 3.45 Qualified Transferees |
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71 |
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Section 3.46 Eligibility of Mortgage Assets |
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72 |
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Section 3.47 Ability to Perform |
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72 |
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Section 3.48 Certain Tax Matters |
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72 |
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Section 3.49 Set-Off, etc. |
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72 |
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Section 3.50 Warrant Agreements, Etc. |
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72 |
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Section 3.51 Representations and Warranties |
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73 |
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ARTICLE IV CONDITIONS PRECEDENT |
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73 |
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Section 4.1 Conditions to Restatement Date |
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73 |
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Section 4.2 Conditions to All Extensions of Credit |
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76 |
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ARTICLE V AFFIRMATIVE COVENANTS |
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80 |
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Section 5.1 Financial Statements |
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80 |
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Section 5.2 Certificates; Other Information |
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82 |
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Section 5.3 Payment of Taxes and Other Obligations |
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84 |
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Section 5.4 Conduct of Business and Maintenance of Existence |
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84 |
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Section 5.5 Maintenance of Property; Insurance |
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84 |
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Page |
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Section 5.6 Inspection of Property; Books and Records; Discussions |
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84 |
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Section 5.7 Notices |
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85 |
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Section 5.8 Environmental Laws |
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87 |
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Section 5.9 Financial Covenants |
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87 |
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Section 5.10 Additional Credit Parties |
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88 |
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Section 5.11 Compliance with Law |
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88 |
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Section 5.12 Pledged Assets |
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88 |
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Section 5.13 Interest Rate Protection Agreements |
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89 |
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Section 5.14 Account Control Agreement |
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89 |
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Section 5.15 Further Assurances |
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89 |
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Section 5.16 Performance and Compliance with Collateral |
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89 |
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Section 5.17 Delivery of Income and Required Payments |
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90 |
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Section 5.18 Exceptions |
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90 |
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Section 5.19 Distributions in Respect of Collateral |
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90 |
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Section 5.20 REIT Status |
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90 |
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Section 5.21 Equity Issuances |
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91 |
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Section 5.22 Remittance of Prepayments |
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91 |
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Section 5.23 Escrow Imbalance |
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91 |
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Section 5.24 Separateness |
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91 |
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Section 5.25 Preferred Equity Interests and Equity Assets |
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92 |
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Section 5.26 Pledge of Repurchased Debt |
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92 |
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Section 5.27 REO Property |
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92 |
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Section 5.28 Warrant Opinion |
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93 |
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Section 5.29 Independence of Covenants |
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93 |
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ARTICLE VI NEGATIVE COVENANTS |
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93 |
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Section 6.1 Indebtedness |
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93 |
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Section 6.2 Liens |
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93 |
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Section 6.3 Nature of Business |
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94 |
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Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc. |
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94 |
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Section 6.5 Repurchase of Debt |
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94 |
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Section 6.6 Transactions with Affiliates |
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94 |
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Section 6.7 Ownership of Subsidiaries; Restrictions |
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95 |
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Section 6.8 Corporate Changes; Material Contracts |
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95 |
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Section 6.9 Limitation on Restricted Actions |
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95 |
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Section 6.10 Restricted Payments |
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95 |
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Section 6.11 [Reserved] |
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96 |
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Section 6.12 No Further Negative Pledges |
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96 |
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Section 6.13 Collateral Not to be Evidenced by Instruments |
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96 |
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Section 6.14 Deposits |
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96 |
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Section 6.15 Servicing Agreements |
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96 |
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Section 6.16 Extension or Amendment of Collateral |
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96 |
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Section 6.17 Stock Repurchase |
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97 |
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Section 6.18 No Future Liens |
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97 |
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Section 6.19 Eligible Subordinated Debt |
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97 |
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Section 6.20 Senior and Pari Passu Interests |
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97 |
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Section 6.21 [Reserved] |
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97 |
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Page |
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Section 6.22 Inconsistent Agreements |
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97 |
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Section 6.23 Margin Regulations |
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98 |
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ARTICLE VII EVENTS OF DEFAULT |
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98 |
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Section 7.1 Events of Default |
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98 |
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Section 7.2 Acceleration; Remedies |
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102 |
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ARTICLE VIII THE ADMINISTRATIVE AGENT |
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103 |
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Section 8.1 Appointment and Authority |
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103 |
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Section 8.2 Nature of Duties |
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103 |
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Section 8.3 Exculpatory Provisions |
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103 |
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Section 8.4 Reliance by Administrative Agent |
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104 |
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Section 8.5 Notice of Default |
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104 |
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Section 8.6 Non-Reliance on Administrative Agent and Other Lenders |
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105 |
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Section 8.7 Indemnification |
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105 |
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Section 8.8 Administrative Agent in Its Individual Capacity |
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105 |
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Section 8.9 Successor Administrative Agent |
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106 |
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Section 8.10 Collateral and Guaranty Matters |
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106 |
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ARTICLE IX ADMINISTRATION AND SERVICING |
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107 |
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Section 9.1 Servicing |
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107 |
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Section 9.2 Borrowers as Servicer |
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107 |
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Section 9.3 Third Party Servicer |
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108 |
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Section 9.4 Duties of the Borrowers |
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108 |
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Section 9.5 Authorization of the Borrowers |
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108 |
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Section 9.6 Event of Default |
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109 |
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Section 9.7 Modification |
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109 |
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Section 9.8 Inspection |
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110 |
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Section 9.9 Servicing Compensation |
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110 |
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Section 9.10 Payment of Certain Expenses by Servicer |
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110 |
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Section 9.11 Pooling and Servicing Agreements |
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110 |
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Section 9.12 Servicer Default |
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111 |
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ARTICLE X MISCELLANEOUS |
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111 |
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Section 10.1 Amendments, Waivers and Release of Collateral |
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111 |
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Section 10.2 Notices |
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113 |
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Section 10.3 No Waiver; Cumulative Remedies |
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114 |
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Section 10.4 Survival of Representations and Warranties |
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115 |
|
Section 10.5 Payment of Expenses and Taxes; Indemnity |
|
|
115 |
|
Section 10.6 Successors and Assigns; Participations |
|
|
118 |
|
Section 10.7 Right of Set-off; Sharing of Payments |
|
|
121 |
|
Section 10.8 Table of Contents and Section Headings |
|
|
122 |
|
Section 10.9 Counterparts; Integration; Effectiveness; Electronic Execution |
|
|
. 122 |
|
Section 10.10 Severability |
|
|
122 |
|
Section 10.11 Integration |
|
|
123 |
|
Section 10.12 Governing Law |
|
|
123 |
|
Section 10.13 Consent to Jurisdiction; Service of Process and Venue |
|
|
123 |
|
Section 10.14 Confidentiality |
|
|
124 |
|
Section 10.15 Acknowledgments |
|
|
124 |
|
iv
|
|
|
|
|
|
|
Page |
|
Section 10.16 Waivers of Jury Trial |
|
|
125 |
|
Section 10.17 Patriot Act Notice |
|
|
125 |
|
Section 10.18 Resolution of Drafting Ambiguities |
|
|
125 |
|
Section 10.19 Continuing Agreement |
|
|
125 |
|
Section 10.20 Lender Consent |
|
|
126 |
|
Section 10.21 Appointment of the Administrative Borrower |
|
|
126 |
|
Section 10.22 Counterclaims |
|
|
126 |
|
Section 10.23 Legal Matters |
|
|
126 |
|
Section 10.24 Recourse Against Certain Parties |
|
|
126 |
|
Section 10.25 Protection of Right, Title and Interest in the Collateral;
Further Action Evidencing Loans |
|
|
127 |
|
Section 10.26 Credit Parties Waiver of Setoff |
|
|
128 |
|
Section 10.27 Periodic Due Diligence Review |
|
|
128 |
|
Section 10.28 Character of Loans for Income Tax Purposes |
|
|
129 |
|
Section 10.29 Joint and Several Liability; Full Recourse Obligations |
|
|
129 |
|
Section 10.30 Amendment and Restatement |
|
|
130 |
|
Section 10.31 Modification of Other Credit Documents |
|
|
131 |
|
v
|
|
|
Schedules |
|
|
Schedule 1.1(b)
|
|
Collection Account |
Schedule 1.1(c)
|
|
Asset Representations |
Schedule 1.1(d)
|
|
Mixed Collateral |
Schedule 1.1(f)
|
|
Construction Draw Deliveries |
Schedule 2.1(a)
|
|
Mixed Collateral with Future Funding Obligation |
Schedule 3.3
|
|
Jurisdictions of Organization and Qualification |
Schedule 3.12
|
|
Subsidiaries |
Schedule 3.18
|
|
Location |
Schedule 3.21
|
|
Labor Matters |
Schedule 3.23
|
|
Material Contracts |
Schedule 3.50
|
|
Outstanding Warrants, Etc. |
Schedule 6.1(b)
|
|
Indebtedness |
Schedule 9.3
|
|
Servicers |
|
|
|
Exhibits |
|
|
Exhibit 1.1(a)
|
|
Form of Account Designation Notice |
Exhibit 1.1(b)
|
|
Form of Assignment and Assumption |
Exhibit 1.1(c)
|
|
Form of Account Control Agreement |
Exhibit 1.1(d)(i)
|
|
Form of Borrower Joinder Agreement |
Exhibit 1.1(d)(ii)
|
|
Form of Guarantor Joinder Agreement |
Exhibit 1.1(e)
|
|
Form of Notice of Borrowing |
Exhibit 1.1(f)
|
|
Form of Notice of Conversion/Extension |
Exhibit 1.1(g)
|
|
Form of Assignment |
Exhibit 1.1(h)
|
|
Form of Borrower Release Letter |
Exhibit 1.1(i)
|
|
Form of Compliance Certificate |
Exhibit 1.1(j)
|
|
Form of Irrevocable Instruction |
Exhibit 1.1(k)
|
|
Form of Servicer Redirection Notice |
Exhibit 1.1(l)
|
|
Form of Warehouse Lenders Release Letter |
Exhibit 1.1(m)
|
|
Form of Homewood Account Control Agreement |
Exhibit 2.1(a)
|
|
Form of Funding Indemnity Letter |
Exhibit 2.1(b)
|
|
Form of Confirmation |
Exhibit 2.1(f)
|
|
Form of Revolving Note |
Exhibit 2.2(d)
|
|
Form of Term Loan Note |
Exhibit 4.1(a)
|
|
Form of Lender Consent |
Exhibit 4.1(n)
|
|
Form of Closing Officers Certificate |
Exhibit 4.1(o)
|
|
Form of Patriot Act Certificate |
Exhibit 4.1(q)(i)
|
|
Form of Power of Attorney for Borrower |
Exhibit 4.1(q)(ii)
|
|
Form of Power of Attorney for Pledgor |
Exhibit 5.2(h)
|
|
Form of Mortgage Asset Data Summary |
vi
THIS FIRST AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 23, 2009, among ARBOR
REALTY FUNDING, LLC, a Delaware limited liability company (together with its successors and
permitted assigns, Arbor Realty Funding), as a Borrower, ARSR TAHOE, LLC, a Delaware
limited liability company (together with its successors and permitted assigns, ARSR
Tahoe), as a Borrower, ARBOR ESH II LLC, a Delaware limited liability company (together with
its successors and permitted assigns, Arbor ESH), as a Borrower, ARBOR REALTY LIMITED
PARTNERSHIP, a Delaware limited partnership (together with its successors and permitted assigns,
Arbor Realty), as a Borrower and a Guarantor, ART 450 LLC, a Delaware limited liability
company (together with its successors and assigns, ART 450), as a Borrower, ARBOR REALTY
TRUST, INC., a Maryland corporation (together with its successors and permitted assigns,
ART), as a Guarantor, ARBOR REALTY SR, INC., a Maryland corporation (together with its
successors and permitted assigns, ARSR), as a Borrower and a Guarantor, the other
entities from time to time party hereto pursuant to Section 5.10, the several banks and other
financial institutions as are, or may from time to time become parties to this Agreement (each,
together with its successors and assigns, a Lender and, collectively, the
Lenders), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as
administrative agent for the Lenders hereunder (in such capacity, the Administrative
Agent).
W I T N E S S E T H:
WHEREAS, the Credit Parties (as hereinafter defined), the Lenders and the Administrative Agent
are parties to that certain Credit Agreement, dated as of November 6, 2007, as amended by the First
Amendment to Credit Agreement, dated as of February 15, 2008, the Second Amendment to Credit
Agreement, dated as of April 23, 2008, the Third Amendment to Credit Agreement, dated as of June
26, 2008, the Fourth Amendment to Credit Agreement, dated as of September 30, 2008, the Fifth
Amendment to Credit Agreement, dated as of December 31, 2008, the Sixth Amendment to Credit
Agreement, dated as of December 31, 2008, and the Seventh Amendment to Credit Agreement, dated as
of April 16, 2009 (the Original Agreement);
WHEREAS, the Credit Parties, the Lenders and the Administrative Agent desire to amend and
restate the Original Agreement in several respects.
NOW, THEREFORE, based upon the foregoing Recitals, the mutual premises and agreements
contained herein, and other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms.
As used in this Agreement, terms defined in the preamble to this Agreement have the meanings
therein indicated, and the following terms have the following meanings:
40 Act shall mean the Investment Company Act of 1940, as amended, restated or
modified from time to time.
450 Income shall mean cash income received by ART and/or one or more of its
Consolidated Subsidiaries with respect to the 450 Transaction, which is not recognized per GAAP,
net of related expenses.
450 Transaction shall mean the Preferred Equity Interests of ART and/or one or more
of its Consolidated Subsidiaries in AT 450 I LLC and AT 450 II LLC.
ABR Default Rate shall have the meaning set forth in Section 2.6.
Accepted Servicing Practices shall mean, with respect to each item of Collateral,
those mortgage, mezzanine loan and/or secured lending servicing practices, as applicable, of
prudent lending institutions that service Collateral of the same type, size and structure as such
Collateral in the jurisdiction where the related Underlying Mortgaged Property is located, as
applicable, but in any event, (a) in accordance with the terms of the Credit Documents and
Requirements of Law, (b) without prejudice to the interests of the Administrative Agent or any
Lender, (c) with a view to the maximization of the recovery on such Collateral on a net present
value basis and (d) without regard to (i) any relationship that any Credit Party or any Affiliate
or any Subsidiary of the foregoing may have with the related Obligor, mortgagor, any Servicer, any
PSA Servicer, any Credit Party or any Affiliate or any Subsidiary of any of the foregoing; (ii) the
right of any Credit Party or any Subsidiary or Affiliate of the foregoing to receive compensation
or other fees for its services rendered pursuant to this Agreement, the other Credit Documents, the
Mortgage Loan Documents or any other document or agreement; (iii) the ownership, servicing or
management by any Credit Party or any Affiliate or any Subsidiary of the foregoing for others of
any other mortgage loans, assets or mortgaged property; (iv) any obligation of any Credit Party or
any Affiliate or any Subsidiary of the foregoing to repurchase, repay or substitute any item of
Collateral; (v) any obligation of any Credit Party or any Affiliate or any Subsidiary of the
foregoing to cure a breach of a representation and warranty with respect to any Collateral and
(vi) any debt any Credit Party or any Affiliate or any Subsidiary of the foregoing has extended to
any Obligor, mortgagor or any Affiliate of such Obligor or mortgagor.
Account Control Agreement shall mean that certain first amended and restated letter
agreement, dated as of the Restatement Date, among the Borrowers, the Administrative Agent and
Wachovia substantially in the form of Exhibit 1.1(c) attached hereto, as amended, restated,
modified or supplemented from time to time.
Account Designation Notice shall mean the Account Designation Notice, dated as of
the Closing Date, from the Borrowers to the Administrative Agent in substantially the form attached
hereto as Exhibit 1.1(a), as amended, restated, modified or supplemented from time to time.
Additional Credit Party shall mean each Person that becomes a Borrower or Guarantor
by execution of a Joinder Agreement in accordance with Section 5.10.
Additional Term Loan Collateral shall mean the Alpine Asset and the Pledged Mortgage
Assets referred to as Woodgate at Jordan and Homewood/Lake Tahoe 4th mortgage loan, each
as more specifically described in the related Confirmations.
Additional Term Loan Collateral Release Amount shall mean, (i) for each item of
Additional Term Loan Collateral other than the Alpine Asset, the Additional Term Loan Collateral
Release Amount set forth on Schedule 3 to the Fee Letter, as increased from time to time or
reduced from time to time by the amount of any principal payments, prepayments or reductions
applied against such Additional Term Loan Collateral pursuant to the terms of this Agreement or the
Fee Letter, and (ii) for the Alpine Asset, the sum of (a) the Alpine ESH Release Amount and (b) the
Additional Term Loan Collateral Release
2
Amount for the Alpine Asset, as set forth on Schedule 3 to the Fee Letter, as such amounts may
be increased or reduced from time to time by the amount of any principal payments, prepayments or
reductions applied against the Alpine Asset pursuant to the terms of this Agreement or the Fee
Letter.
Adjusted Tangible Net Worth shall mean Tangible Net Worth plus the
aggregate principal amount outstanding under the Eligible Subordinated Debt plus deferred
revenues relating to the 450 Transaction to the extent classified as a liability according to GAAP.
Administrative Agent or Agent shall have the meaning set forth in the
first paragraph of this Agreement and shall include any successors in such capacity.
Administrative Borrower shall mean Arbor Realty Funding.
Administrative Questionnaire shall mean an Administrative Questionnaire in a form
supplied by the Administrative Agent, as amended, restated, modified or supplemented from time to
time.
Affiliate shall mean, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is
under common Control with the Person specified.
Agreement or Credit Agreement shall mean this Agreement, as amended,
modified, extended, restated, replaced, or supplemented from time to time in accordance with its
terms.
Allocated Revolving Loan Amount shall mean, for each item of Revolving Loan
Collateral, the outstanding principal amount of the Revolving Loans allocated by the Administrative
Agent, in its discretion, to the related Revolving Loan Collateral, which Allocated Revolving Loan
Amount shall be set forth in the related Confirmation, as increased from time to time by additional
Revolving Loans or reduced from time to time by the amount of any principal payments, prepayments
or reductions applied against such Revolving Loans pursuant to the terms of this Agreement or the
Fee Letter.
Allocated Term Loan Amount shall mean, for each item of Term Loan Collateral, the
outstanding principal amount of the Term Loan allocated by the Administrative Agent, in its
discretion, to the related Term Loan Collateral, which Allocated Term Loan Amount shall be set
forth in the related Confirmation and which amount shall include, for ESH Allocated Assets, the ESH
Release Amount allocated to such Pledged Mortgage Asset, in each case, as increased from time to
time (if at all) or reduced from time to time by the amount of any principal payments, prepayments
or reductions applied against such Term Loans pursuant to the terms of this Agreement or the Fee
Letter.
Alpine Asset shall mean the Pledged Mortgage Asset referred to Alpine Meadows Ski
Resort (including the equity investment of $13,219,802), as more specifically described in the
related Confirmation.
Alpine ESH Release Amount shall mean the amount specified as the ESH Release
Amount for the Alpine Asset on Schedule 1-B to the Fee Letter.
Alternate Base Rate shall mean, for any day, a rate per annum equal to the greater
of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof: Prime Rate shall mean, at any
time, the rate of interest per annum publicly announced or otherwise identified from time to time
by Wachovia at its principal office in Charlotte, North Carolina as its prime rate. Each change in
the Prime Rate shall be effective as of the opening of business on the day such change in the Prime
Rate occurs. The parties hereto acknowledge
3
that the rate announced publicly by Wachovia as its Prime Rate is an index or base rate and
shall not necessarily be its lowest or best rate charged to its customers or other banks; and
Federal Funds Effective Rate shall mean, for any day, the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank
of New York, or, if such rate is not so published on the next succeeding Business Day, the average
of the quotations for the day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it. If for any reason the Administrative
Agent shall have determined (which determination shall be conclusive in the absence of manifest
error) that it is unable to ascertain the Federal Funds Effective Rate, for any reason, including
the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance
with the terms above, the Alternate Base Rate shall be determined without regard to clause (b) of
the first sentence of this definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective on the opening of business on the date of
such change.
Alternate Base Rate Loans shall mean Loans that bear interest at an interest rate
based on the Alternate Base Rate.
Applicable Advance Rate shall mean, with respect to each Mortgage Asset, (a) with
respect to Term Loan Collateral under the Term Loans, the Applicable Advance Rate set forth on
Schedule 1-A to the Fee Letter and (b) in the case of Revolving Loan Collateral (including
Mixed Collateral) under the Revolving Loans, the Applicable Advance Rate determined by the
Administrative Agent in its discretion and set forth in the related Confirmation, which shall be no
greater than the Applicable Advance Rate set forth in Schedule 1-B to the Fee Letter (as
applicable).
Applicable Percentage shall have the meaning set forth in the Fee Letter.
Approved Bank shall have the meaning set forth in the definition of Cash
Equivalents.
Approved Fund shall mean any Fund that is administered, managed or underwritten by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
Arbor ESH shall have the meaning set forth in the first paragraph of this Agreement.
Arbor Realty shall have the meaning set forth in the first paragraph of this
Agreement.
Arbor Realty Funding shall have the meaning set forth in the first paragraph of this
Agreement.
Arranger shall mean Wells Fargo Securities, LLC (formerly known as Wachovia Capital
Markets, LLC), together with its successors and assigns.
ARSR shall have the meaning set forth in the first paragraph of this Agreement.
ARSR Tahoe shall have the meaning set forth in the first paragraph of this
Agreement.
ART shall have the meaning set forth in the first paragraph of this Agreement.
ART 450 shall have the meaning set forth in the first paragraph of this Agreement.
4
Asset Schedule and Exception Report shall have the meaning set forth in the
Custodial Agreement.
Asset Valuation Period shall have the meaning set forth in the Fee Letter.
Asset Value shall have the meaning set forth in the Fee Letter.
Assignment and Assumption shall mean an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by the
definition of Eligible Assignee and Section 10.6), and accepted by the Administrative Agent, in
substantially the form of Exhibit 1.1(b) or any other form approved by the Administrative
Agent.
Assignment of Leases shall mean, with respect to any Mortgage, an assignment of
leases thereunder, notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the Underlying Mortgaged Property is located to reflect the
assignment of leases to the holder of the Mortgage or any secured party, as applicable, as any such
Assignment of Leases may be amended, restated, modified or supplemented from time to time.
Assignment of Mortgage shall mean, with respect to any Mortgage, an assignment of
the Mortgage, notice of transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to reflect the
assignment of the Mortgage to the holder of the Mortgage or any secured party, as applicable, as
any such Assignment of Mortgage may be amended, restated, modified or supplemented from time to
time.
Assignments shall mean the transfer of all of the Borrowers rights and interests
under an Eligible Asset pursuant to an assignment executed by the Borrowers in blank, which
assignment shall be in the form of Exhibit 1.1(g) and shall be otherwise satisfactory to
the Administrative Agent in its discretion, as any such Assignments may be amended, restated,
modified or supplemented from time to time.
Authority Documents shall mean, as to any Person, the articles or certificate of
incorporation or formation, by-laws, limited liability company agreement, general partnership
agreement, limited partnership agreement, trust agreement, joint venture agreement or other
applicable organizational or governing documents and the applicable resolutions of such Person.
Availability shall mean at any time, an amount equal to the positive excess (if any)
of (a) the lesser of (i) the Revolving Committed Amount, and (ii) the Asset Value of all Revolving
Loan Collateral, minus (b) the aggregate outstanding principal amount for all Revolving
Loans on such day made on or after the Restatement Date; provided, however, for so
long as and to the extent that the Administrative Agent does not have a first priority perfected
security interest in any item of Collateral, then such Collateral shall be disregarded for the
purposes of calculating Availability; provided, further, however, on and
after the occurrence of the Maturity Date or an Event of Default, the Availability shall be
zero (0).
Availability Correction Deadline shall have the meaning set forth in Section 2.5.
Bailee shall mean, with respect to each Table Funded Mortgage Asset, the related
title company or other settlement agent, in each case, approved in writing by the Administrative
Agent in its discretion.
Bailee Agreement shall mean, the Bailee Agreement among the applicable Borrower, the
Administrative Agent and the Bailee in the form of Annex 13 to the Custodial Agreement.
5
Bailees Trust Receipt shall have the meaning set forth in the Custodial Agreement.
Bankruptcy Code shall mean the Bankruptcy Code in Title 11 of the United States
Code, as amended, modified, succeeded or replaced from time to time.
Bankruptcy Event shall mean any of the events described in Section 7.1(f).
Bankruptcy Event of Default shall mean an Event of Default specified in
Section 7.1(f).
Basic Mortgage Asset Documents shall have the meaning set forth in the Custodial
Agreement.
Book Value shall mean, with respect to any Mortgage Asset at any time, an amount as
certified by the applicable Borrower, equal to the lesser of (a) face or par value and (b) the
price that the applicable Borrower initially paid or advanced in respect thereof plus any
additional amounts advanced by the applicable Borrower for or in respect of such Mortgage Asset, as
such Book Value may be marked down by the applicable Borrower from time to time, including, as
applicable, any loss/loss reserve/price adjustments, less an amount equal to the sum of all
principal payments, prepayments or paydowns paid and realized losses and other writedowns
recognized relating to such Mortgage Asset.
Borrower or Borrowers shall mean, individually and/or collectively, Arbor
Realty Funding, ARSR Tahoe, Arbor Realty, ART 450, ARSR, Arbor ESH and any other entity that
becomes a party to this Agreement pursuant to Section 5.10 from time to time, in each case together
with their successors and permitted assigns.
Borrower Joinder Agreement shall mean a Borrower Joinder Agreement in substantially
the form of Exhibit 1.1(d)(i), executed and delivered by an Additional Credit Party in
accordance with the provisions of Section 5.10, as amended, restated, supplemented or modified from
time to time.
Borrower Asset Schedule shall have the meaning set forth in the Custodial Agreement.
Borrower Release Letter shall mean a letter in the form of Exhibit 1.1(h),
duly executed by the applicable Borrower.
Borrowing Date shall mean, the date any Loan is made or any item of Collateral is
pledged to the Administrative Agent pursuant to the terms hereof and the other Credit Documents.
Bridge Loan shall mean, a Whole Loan, Junior Interest or Mezzanine Loan that is
otherwise an Eligible Asset except that the Underlying Mortgaged Property is not stabilized, or is
otherwise considered to be in a transitional state, which exceptions shall be disclosed to and be
acceptable to the Administrative Agent in its discretion. A Bridge Loan may not include an
interest in a Preferred Equity Interest. Unless waived in writing by the Administrative Agent in
its discretion, a Bridge Loan must satisfy all of the terms and conditions contained in this
Agreement (other than those eligibility criteria waived in accordance with the first sentence of
this definition) that are applicable to Whole Loans, Junior Interests and Mezzanine Loans, as
applicable.
Business Day shall mean any day other than a Saturday, Sunday or other day on which
commercial banks in North Carolina, New York or Minnesota are authorized or required by
Requirements of Law to close; provided, however, that when used in connection with
a rate determination, borrowing or payment in respect of a LIBOR Rate Loan, the term Business Day
shall also exclude any day on which banks in London, England are not open for dealings in Dollar
deposits in the London interbank market.
6
Capital Lease shall mean any lease of (or other agreement conveying the right to
use) Property, real or personal, the obligations with respect to which are required to be
capitalized on a balance sheet of the lessee in accordance with GAAP.
Capital Lease Obligations shall mean, for any Person and its Consolidated
Subsidiaries, all obligations of such Person to pay rent or other amounts under a Capital Lease,
and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
Cash Collateral shall mean the cash or payments received by the Administrative Agent
pursuant to Section 2.5 of this Agreement or as Income on any Collateral.
Cash Equivalents shall mean any of the following: (a) securities issued or directly
and fully guaranteed or insured by the United States or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is pledged in support thereof) having
maturities of not more than one (1) year from the date of acquisition, (b) time deposits or
certificates of deposit of any commercial bank incorporated under the laws of the United States or
any state thereof, of recognized standing having capital and unimpaired surplus in excess of
$1,000,000,000 and whose short-term commercial paper rating at the time of acquisition is at least
A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moodys (any such
bank, an Approved Bank), with such deposits or certificates having maturities of not more
than one (1) year from the date of acquisition, (c) repurchase obligations with a term of not more
than seven (7) days for underlying securities of the types described in clauses (a) and (b) above
entered into with any Approved Bank, (d) commercial paper or finance company paper issued by any
Person incorporated under the laws of the United States or any state thereof and rated at least A-1
or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moodys, and in each
case maturing not more than one (1) year after the date of acquisition, and (e) investments in
money market funds that are registered under the 40 Act, which have net assets of at least
$1,000,000,000 and at least 85% of whose assets consist of securities and other obligations of the
type described in clauses (a) through (e) above. All such Cash Equivalents must be denominated
solely for payment in Dollars.
CDO Issuance shall mean any securitization transaction involving the issuance of
collateralized debt obligations.
CDO Issuer shall mean the issuer of securities in a CDO Issuance.
Change in Law shall mean the occurrence, after the date of this Agreement, of any of
the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any Governmental Authority.
Change of Control shall mean, unless approved by the Administrative Agent in
advance, with respect to any Borrower or any Guarantor, a change of control shall be deemed to have
occurred upon the occurrence of any of the following: (a) a Person or two or more Persons acting
in concert shall have acquired beneficial ownership, directly or indirectly, of, or shall have
acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of, or control over, Voting Interests of such
Borrower or such Guarantor (or other securities convertible into such Voting Interests)
representing more than 50% of the combined voting power of all Voting Interests of any Borrower or
any Guarantor, (b) Continuing Directors shall cease for any reason to constitute a majority of the
members of the board of directors of any Borrower or any Guarantor then in office, (c) the sale,
lease, transfer, conveyance or other disposition (other than by way of merger or
7
consolidation), in one or a series of related transactions, of all or substantially all of the
assets of any Borrower (together with its Subsidiaries), or any Guarantor (together with its
Subsidiaries) taken as a whole to any person (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) or (d) the adoption by the equity holders of any Borrower or any Guarantor of a
plan or proposal for the liquidation or dissolution of any Borrower or any Guarantor. As used
herein, beneficial ownership shall have the meaning provided in Rule 13d-3 and 13d-5 of the
Exchange Act. Notwithstanding the foregoing, neither the Administrative Agent nor any Lender shall
be deemed to approve or have approved any internalization of management as a result of this
definition or any other provision.
Class shall mean with respect to a Mortgage Asset, such Mortgage Assets
classification as a Whole Loan, a Junior Interest, a Mezzanine Loan, a Preferred Equity Interest, a
Bridge Loan, an Equity Asset, a Condominium Loan or a Land Loan (and, with respect to each Bridge
Loan, Condominium Loan or Land Loan, its subclassification as a Whole Loan, Junior Interest Loan
or Mezzanine Loan, as applicable).
Closing Date shall mean November 6, 2007.
Closing Officers Certificate shall mean a certificate substantially in the form of
Exhibit 4.1(n), duly executed by each of the Credit Parties.
Code shall mean the Internal Revenue Code of 1986, as amended from time to time.
Collateral shall mean the collective reference to the collateral described in the
Security Documents that secures all Obligations (including, without limitation, the Term Loan and
the Revolving Loan).
Collateral Default shall mean any Mortgage Asset included or proposed to be included
in the Collateral (a) that is thirty (30) or more days delinquent under the terms of the related
Mortgage Loan Documents (including any Preferred Equity Interest or Equity Asset that has not been
paid during such period), (b) for which there is a non-monetary default (beyond any applicable
notice and cure period) under the terms of the related Mortgage Loan Documents, (c) for which there
is any breach or a representation or warranty under Schedule 1.1(c) or (d) with respect to
which the related Obligor is the subject of an Insolvency Proceeding or Insolvency Event.
Collection Account shall mean the account set forth on Schedule 1.1(b),
which is established in the name of one or more Borrowers and subject to the Account Control
Agreement and into which all Income and Cash Collateral shall be deposited. Funds in the
Collection Account may be invested at the direction of the Administrative Agent in Cash
Equivalents.
Commercial Real Estate shall mean any real estate included in the definition of
Property Type.
Commercial Real Estate Loan shall mean any loan secured directly or indirectly by
Commercial Real Estate or, as applicable, Equity Interests in an entity that owns directly or
indirectly Commercial Real Estate.
Commitment shall mean the Revolving Commitments and the Term Loan Commitments,
individually or collectively, as appropriate.
Commitment Fee shall mean the Commitment Fee payable under the Fee Letter.
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Commitment Percentage shall mean the Revolving Commitment Percentage and/or the Term
Loan Commitment Percentage, as appropriate.
Commitment Period shall mean the period from and including the Restatement Date to
but excluding the Maturity Date.
Commonly Controlled Entity shall mean an entity, whether or not incorporated, which
is under common control with a Borrower or any other Credit Party within the meaning of
Section 4001(b)(1) of ERISA or is part of a group which includes any Borrower or any other Credit
Party and which is treated as a single employer under Section 414(b) or 414(c) of the Code or,
solely for purposes of Section 412 of the Code to the extent required by such section,
Section 414(m) or 414(o) of the Code.
Compliance Certificate shall mean a certificate in the form of Exhibit
1.1(i) attached hereto, duly executed by the Credit Parties.
Condominium Loan shall mean Mortgage Asset (other than a Bridge Loan, a Preferred
Equity Interest or an Equity Asset) the Underlying Mortgaged Property for which is owned, is in the
process of being converted to be owned or is otherwise expected to be owned, in whole or in part,
by a condominium form of ownership. Condominium Loans are not Eligible Assets unless deemed so by
the Administrative Agent on a casebycase basis.
Confirmation shall have the meaning set forth in Section 2.1.
Consolidated shall mean, when used with reference to financial statements or
financial statement items of the Borrowers, the Guarantors and their Subsidiaries or any other
Person, such statements or items on a consolidated basis in accordance with the consolidation
principles of GAAP.
Construction Costs shall mean with respect to a Mortgage Asset that is a Bridge
Loan, as of any date of determination, the reasonable hard and soft costs of proposed construction
of the improvements on the Underlying Mortgaged Property, which reasonable costs shall be disclosed
to and approved by the Administrative in its discretion, plus the market value of the
related Underlying Mortgaged Property at such time, as determined by the Administrative Agent in
its discretion based on such sources of information as the Administrative Agent may determine to
rely on in its discretion.
Construction Draw Deliveries shall mean the deliveries required under Schedule
1.1(f) to this Agreement.
Contingent Liabilities shall mean, with respect to any Person and its Consolidated
Subsidiaries (without duplication): (a) liabilities and obligations (including any Guarantee
Obligations) of such Person or any Consolidated Subsidiary of such Person in respect of
off-balance sheet arrangements (as defined in the SEC Off-Balance Sheet Rules), (b) any
obligation, including, without limitation, any Guarantee Obligation, whether or not required to be
disclosed in the footnotes to such Persons and its Consolidated Subsidiaries financial
statements, guaranteeing partially or in whole any Non-Recourse Indebtedness, lease, dividend or
other obligation, exclusive of (i) contractual indemnities (including, without limitation, any
indemnity or price-adjustment provision relating to the purchase or sale of securities or other
assets) and (ii) guarantees of non-monetary obligations (other than guarantees of completion,
environmental indemnities and guarantees of customary carve-out matters made in connection with
Non-Recourse Indebtedness, such as (but not limited to) fraud, misappropriation, bankruptcy and
misapplication) which have not yet been called on or quantified, of such Person or of any other
Person, and (c) any forward commitment or obligation to fund or provide proceeds with respect to
any loan or other financing which is obligatory and non-discretionary on the part of the lender.
The amount of any Contingent Liabilities
9
described in clause (b) shall be deemed to be, (i) with respect to a guarantee of interest or
interest and principal, or operating income guarantee, the sum of all payments required to be made
thereunder (which, in the case of an operating income guarantee, shall be deemed to be equal to the
debt service for the note secured thereby), through, (x) in the case of an interest or interest and
principal guarantee, the stated date of maturity of the obligation (and commencing on the date
interest could first be payable thereunder), or (y) in the case of an operating income guarantee,
the date through which such guarantee will remain in effect, and (ii) with respect to all
guarantees not covered by the preceding clause (i), an amount equal to the stated or determinable
amount of the primary obligation in respect of which such guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person
is required to perform thereunder) as recorded on the balance sheet and on the footnotes to the
most recent financial statements of such Person. As used in this definition, the term SEC
Off-Balance Sheet Rules means the Disclosure in Managements Discussion and Analysis About
Off-Balance Sheet Arrangements and Aggregate Contractual Obligations, Securities Act Release
No. 33-8182, 34-47264; FR-67 International Series Release No. 1266 File No. S7-42-02, 68 Fed. Reg.
5982 (Feb. 5, 2003) (codified at 17 CFR pts. 228, 229 and 249).
Continuing Director shall mean (a) an individual who is a member of any Persons
board of directors (or the equivalent thereof) on the date hereof or (b) any new director (or the
equivalent thereof) whose appointment was approved by a majority of the individuals who were
already Continuing Directors at the time of such appointment, election or approval.
Contractual Obligation shall mean, as to any Person, any provision of any security
issued by such Person or of any contract, agreement, instrument or undertaking to which such Person
is a party or by which it or any of its Property is bound.
Control shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. Controlling and Controlled
have meanings correlative thereto.
Correction Amount shall have the meaning set forth in Section 2.5.
Credit Documents shall mean this Agreement, each of the Notes, any Joinder
Agreement, the Fee Letter, the Guaranty, each Notice of Borrowing, each Confirmation, the Warrant
Agreements, the Registration Rights Agreement, the Custodial Fee Letter and the Security Documents
and all other agreements, documents, certificates and instruments delivered to the Administrative
Agent or any Lender by any Credit Party in connection therewith (other than any agreement,
document, certificate or instrument relating to any Derivatives Contract), as each such agreement,
document, certificate or instrument is amended, restated, modified or supplemented from time to
time.
Credit Party shall mean any of the Borrowers, the Guarantors, the Pledgor, any
Additional Credit Party or any pledgor or obligor under the Security Documents.
Credit PartyRelated Obligations shall mean any obligations, liabilities and/or
Indebtedness of the Credit Parties under each Credit Document and under any other arrangement
between any Credit Party or any Affiliate or Subsidiary of any Credit Party, on the one hand, and
the Administrative Agent, any Affiliate or Subsidiary of the Administrative Agent and/or any
commercial paper conduit for which Wachovia or an Affiliate or Subsidiary of Wachovia acts as a
liquidity provider, administrator or agent, on the other hand, including, without limitation, such
obligations, liabilities and/or Indebtedness under the Working Capital Facility, as any such Credit
Party-Related Obligations are amended, restated or modified from time to time.
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Custodial Agreement shall mean that certain First Amended and Restated Custodial
Agreement, dated as of the Restatement Date, by and among the Borrowers, the Administrative Agent
and the Custodian, as the same shall be amended, modified, waived, supplemented, extended, replaced
or restated from time to time.
Custodial Fee Letter shall mean that certain Custodial Fee Letter between the
Borrowers and the Custodian, as such letter may be amended, modified, waived, supplemented,
extended, restated or replaced from time to time.
Custodial Identification Certificate shall have the meaning set forth in the
Custodial Agreement.
Custodian shall mean Wells Fargo Bank, National Association, and its successor in
interest as the custodian under the Custodial Agreement, and any successor Custodian under the
Custodial Agreement.
DSCR shall mean with respect to any Mortgage Asset, as of any date of determination,
for the period of time to be determined in the Administrative Agents discretion (it being
understood that it is the Administrative Agents intent to make the determination based on the
period of twelve (12) consecutive complete calendar months preceding such date (or, if such
Mortgage Asset was originated less than twelve (12) months from the date of determination, the
number of months from the date of origination)), the ratio of (a) the aggregate Net Cash Flow in
respect of the Underlying Mortgaged Properties relating to such Mortgage Asset for such period
(including, in the case of Bridge Loans and, as applicable, Condominium Loans and Land Loans,
interest reserves held by a Borrower or a Servicer with respect to such asset, to (b) the
sum of (i) the aggregate of all amounts due for such period in respect of all Indebtedness that was
outstanding from time to time during such period that is secured, directly or indirectly, by such
Underlying Mortgaged Properties (including, without limitation, by way of a pledge of the equity of
the owner(s) of such Underlying Mortgaged Properties) or that is otherwise owing by the owner(s) of
such Underlying Mortgaged Properties, including, without limitation, all scheduled principal and/or
interest payments due for such period in respect of each Mortgage Asset that is secured or
supported by such Underlying Mortgaged Properties plus (ii) the amount of all Ground Lease
payments to be made in respect of such Underlying Mortgaged Properties during such period, as any
of the foregoing elements of DSCR may be adjusted by the Administrative Agent as determined by the
Administrative Agent in its discretion; provided, however, that all such
calculations shall be made taking into account any senior or pari passu debt or other senior or
pari passu obligations, including senior or pari passu debt or other senior or pari passu
obligations secured directly or indirectly by the applicable Underlying Mortgaged Property.
Default shall mean any of the events specified in Section 7.1, whether or not any
requirement for the giving of notice or the lapse of time, or both, or any other condition, has
been satisfied.
Defaulting Lender shall mean, at any time, any Lender that, at such time (a) has
failed to make a Loan required pursuant to the terms of this Agreement, (b) has failed to pay to
the Administrative Agent or any Lender an amount owed by such Lender pursuant to the terms of this
Agreement and such default remains uncured, or (c) has been deemed insolvent or has become subject
to an Insolvency Proceeding, Insolvency Event or to a receiver, trustee or similar official.
Deficit shall have the meaning set forth in Section 2.5(b)(iv).
Derivatives Contract shall mean any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps, commodity options,
forward
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commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement. Not in limitation of the foregoing, the term
Derivatives Contract includes any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or
liabilities under any such master agreement.
Derivatives Contract Provider shall mean Wachovia, together with its successors
and assigns.
Derivatives Termination Value shall mean, in respect of any one or more Derivatives
Contracts, after taking into account the effect of any legally enforceable netting agreement
relating to such Derivatives Contracts, (a) for any date on or after the date such Derivatives
Contracts have been closed out and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced in clause (a), the
amount(s) determined as the mark-to-market value(s) for such Derivatives Contracts, as determined
based upon one or more mid-market or other readily available quotations provided by any recognized
dealer in such Derivatives Contracts (which may include the Administrative Agent).
Dollars and $ shall mean dollars in lawful currency of the United States
of America.
Domestic Lending Office shall mean, initially, the office of each Lender designated
as such Lenders Domestic Lending Office shown in such Lenders Administrative Questionnaire; and
thereafter, such other office of such Lender as such Lender may from time to time specify to the
Administrative Agent and the Borrowers as the office of such Lender at which Alternate Base Rate
Loans of such Lender are to be made.
Domestic Subsidiary shall mean any Subsidiary that is organized and existing under
the laws of the United States or any state or commonwealth thereof or under the laws of the
District of Columbia.
Due Diligence Costs shall have the meaning set forth in Section 10.27.
Due Diligence Review shall mean the performance by the Administrative Agent of any
or all of the reviews permitted under Section 10.27 with respect to any or all of the Collateral,
as desired by the Administrative Agent from time to time.
Electronic Transmission shall mean the delivery of information and executed
documents in an electronic format acceptable to the applicable recipient thereof.
Eligible Asset shall mean a Mortgage Asset that as of any date of determination:
(a) is not subject to a Collateral Default;
(b) with respect to the portion of such Mortgage Asset to be pledged to the Administrative
Agent, the funding obligations have been satisfied in full and there is no unfunded commitment with
respect thereto;
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(c) has been approved in writing by the Administrative Agent in its discretion;
(d) has an LTV not in excess of the Maximum LTV, and, with respect to Bridge Loans, an LTC not
in excess of the Maximum LTC;
(e) has a DSCR equal to or greater than the Minimum DSCR;
(f) is not a construction loan; provided, however, the Administrative Agent
may, in its discretion, waive this restriction on a casebycase basis and permit the pledge of one
(1) or more Condominium Loans or Land Loans that are construction loans provided each such Mortgage
Asset otherwise satisfies the definition of Eligible Asset and the other requirements of the Credit
Documents, such assets shall be treated like Bridge Loans for the purpose of determining Asset
Value and LTC and such Mortgage Asset and the applicable Borrower satisfies such other terms,
conditions or requirements as the Administrative Agent may require in its discretion, such
requirements to be set forth in the related Confirmation;
(g) is not a loan to an operating business (other than a hotel);
(h) [reserved];
(i) satisfies each of the applicable representations and warranties set forth in Article III
of this Agreement and the Security Documents (to the extent any such representations or warranties
relate to the Mortgage Assets or the Administrative Agents rights or remedies with respect
thereto), in Schedule 1.1(c) hereto, the Mortgage Loan Documents and in any statement, affirmation
or certification made or information, document, agreement, notice or report provided to
the Administrative Agent with respect to such Mortgage Asset;
(j) in the case a Ground Lease, the Ground Lease has a remaining term of no less than
twenty (20) years from the maturity date of the Mortgage Asset;
(k) the Underlying Mortgaged Property is located, and the Obligor is domiciled, in the United
States of America;
(l) such Mortgage Asset is denominated and payable in Dollars;
(m) the Obligor is not a Sanctioned Person or Sanctioned Entity; and
(n) does not involve an equity or similar interest by any Credit Party that would result in
(i) a conflict of interest or a potential conflict of interest or (ii) an affiliation with
an Obligor under the terms of the Mortgage Loan Documents which results or could result in the loss
or impairment of any material rights of the holder of the Mortgage Asset; provided,
however, the Borrowers must disclose to the Administrative Agent prior to the related
Borrowing Date all equity or similar interests held or to be held by any Credit Party regardless of
whether it satisfies any of the foregoing clauses (i) or (ii).
provided, however, notwithstanding a Mortgage Assets failure to conform to the
criteria set forth above, the Administrative Agent may, in its discretion, designate in writing any
such noncompliant Mortgage Asset as an Eligible Asset, which may include a temporary or permanent
waiver of one (1) or more Eligible Asset requirements.
Eligible Assignee shall mean (a) a Lender, (b) an Affiliate of a Lender, (c) an
Approved Fund, and (d) any other Person (other than a natural person) approved by the
Administrative Agent; provided
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that notwithstanding the foregoing, Eligible Assignee shall not include the Borrowers,
Guarantors or any Borrowers or Guarantors Affiliates or Subsidiaries.
Eligible Subordinated Debt shall mean (a) the debt securities of ARSR issued under
(i) the Junior Subordinated Indenture, dated as of May 6, 2009, between ARSR, as issuer, and The
Bank of New York Mellon Trust Company, National Association (BONY), as trustee, pursuant
to which ARSR issued $29,400,000 in original aggregate principal amount of Junior Subordinated
Notes, (ii) the Junior Subordinated Indenture, dated as of May 6, 2009, between ARSR, as issuer,
and BONY, as trustee, pursuant to which ARSR issued $168,000,000 in original aggregate principal
amount of Junior Subordinated Notes, (iii) the Junior Subordinated Indenture, dated as of May 6,
2009, between ARSR, as issuer, ART, as guarantor, and Wilmington Trust Company, as trustee,
pursuant to which ARSR issued $21,224,000 in original aggregate principal amount of Junior
Subordinated Notes, (iv) the Junior Subordinated Indenture, dated as of May 6, 2009, between ARSR,
as issuer, ART, as guarantor, and Wilmington Trust Company, as trustee, pursuant to which ARSR
issued $2,632,000 in original aggregate principal amount of Junior Subordinated Notes, (v) the
Junior Subordinated Indenture, dated as of May 6, 2009, between ARSR, as issuer, ART, as guarantor,
and Wilmington Trust Company, as trustee, pursuant to which ARSR issued $47,180,000 in original
aggregate principal amount of Junior Subordinated Notes, (vi) Junior Subordinated Indenture, dated
April 6, 2005 (as amended), between ARSR, as issuer, ART, as guarantor, and Wilmington Trust
Company, as trustee, and (vii) Junior Subordinated Indenture, dated June 2, 2006, between ARSR, as
issuer, ART, as guarantor, and Wilmington Trust Company, as trustee (the indentures described in
(vi) and (vii), collectively, the Original Kodiak Indentures), (b) any future debt
securities of ARSR issued in exchange for the securities held under the Original Kodiak Indentures
that (i) have express subordination provisions substantially the same as those contained in the
indentures for the transactions listed in clause (a) of this definition of Eligible Subordinated
Debt, (ii) has enforceable subordination provisions, (iii) has a maturity date no earlier than the
date that is six (6) months following the Maturity Date, (iv) the Administrative Agent is in
receipt of an Opinion of Counsel acceptable to the Administrative Agent in its discretion
addressing the enforceability of the subordination provisions contained in the documents governing
the proposed Eligible Subordinated Debt, and (c) any future debt securities of ART and its
Consolidated Subsidiaries that (i) has express subordination provisions substantially the same as
those contained in the indentures for the transactions listed in clause (i) of this definition of
Eligible Subordinated Debt, (ii) has enforceable subordination provisions, (iii) has a maturity
date no earlier than the date that is six (6) months following the Maturity Date, (iv) the
Administrative Agent is in receipt of an Opinion of Counsel acceptable to the Administrative Agent
in its discretion addressing the enforceability of the subordination provisions contained in the
documents governing the proposed Eligible Subordinated Debt and (v) has been specifically approved
in writing by the Administrative Agent in its discretion.
Environmental Laws shall mean any and all applicable foreign, federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements
of any Governmental Authority or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning protection of human health or
the environment, as now or may at any time be in effect during the term of this Agreement.
Equity Asset shall mean an equity investment in an amount as approved by the
Administrative Agent in its discretion represented by Equity Interests in an entity that owns
directly or indirectly Commercial Real Estate, including, but not limited to, all Equity Interests
representing a dividend on any of the Equity Interests of the Equity Asset Grantor or representing
a distribution or return of capital upon or in respect of the Equity Interests of the Equity Asset
Grantor, in each case as it relates to an Equity Asset; provided, however, (a) the
funding of the Equity Asset is subject to regulatory and compliance criteria applicable to banks
generally with respect to this type of asset, and (b) the Administrative Agent reserves the right
to require, as a condition to such financing, that each Equity Asset be acquired by and pledged to
14
the Administrative Agent by a bankruptcy remote, special purpose entity, which entity shall
join the Credit Documents as a co-Borrower pursuant to a Borrower Joinder Agreement as a condition
to the pledge of such Equity Asset and for the Equity Interests in such Borrower to be pledged to
the Administrative Agent as additional Collateral for the Obligations.
Equity Asset Documents shall mean the related Authority Documents of the Equity
Asset Grantor, together with a certificate, instrument or other tangible evidence of the Equity
Interests in the Equity Asset Grantor.
Equity Asset Grantor shall mean the entity in which an Equity Asset represents
an Investment.
Equity Interests shall mean with respect to any Person, any share, interest,
participation and other equivalent (however denominated) of capital stock of (or other ownership,
equity or profit interests in) such Person, any warrant, option or other right for the purchase or
other acquisition from such Person of any share of capital stock of (or other ownership, equity or
profit interests in) such Person, any security convertible into or exchangeable for any share of
capital stock of (or other ownership or profit interests in) such Person or warrant, right or
option for the purchase or other acquisition from such Person of such shares (or such other
interests), and any other ownership or profit interest in such Person (including, without
limitation, partnership, member or trust interests therein), whether voting or nonvoting, and
whether or not such share, warrant, option, right or other interest is authorized or otherwise
existing on any date of determination.
Equity Issuance shall mean any issuance by any Borrower, Guarantor or any
Consolidated Subsidiary or Affiliate of any Borrower or any Guarantor to any Person that is not a
Borrower, Guarantor or Consolidated Subsidiary or Affiliate of a Borrower or Guarantor of
(a) shares or interests of its Equity Interests, (b) any shares or interests of its Equity
Interests pursuant to the exercise of options, warrants or similar rights (other than shares issued
upon the exercise of options or warrants that were issued to officers, directors or employees of a
Credit Party), (c) any shares or interests of its Equity Interests pursuant to the conversion of
any debt securities to equity or (d) (other than warrants issued by any Borrower, Guarantor or any
Consolidated Subsidiary or Affiliate of any Borrower or any Guarantor for which no cash is paid to
the applicable Borrower, Guarantor or Consolidated Subsidiary or Affiliate of any Borrower or any
Guarantor or options or warrants issued to officers, directors or employees of a Borrower or any
Guarantor) warrants, options or similar rights that are exercisable or convertible into shares or
interests of its Equity Interests; provided, however, Equity Issuance shall not
include an Equity Issuance in connection with an issuance of shares (i) in ART to Arbor Commercial
Mortgage, LLC, a New York limited liability company, as compensation for acting as servicer or (ii)
in any Guarantor or Consolidated Subsidiary or Affiliate of any Guarantor (other than a Borrower)
in connection with the acquisition of a company.
Equity/Preferred Equity Pledge and Security Agreement shall mean the First Amended
and Restated Equity/Preferred Equity Pledge and Security Agreement, dated as of the Restatement
Date, by the Borrowers for the benefit of the Administrative Agent and each Lender, as such
agreement may be amended, modified, waived, supplemented, extended, restated or replaced from time
to time.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time.
ESH Allocated Assets shall mean the Pledged Mortgage Assets to which allocated loan
amounts relating to the ESH Pledged Mortgage Assets were allocated on the Restatement Date.
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ESH Pledged Mortgage Assets shall mean the Equity Assets and Preferred Equity
Interests pledged to the Administrative Agent that relate to the Underlying Mortgaged Properties
involving the Extended Stay Hotel chain and more specifically described in the related Underwriting
Package and Confirmation.
ESH Release Amount shall mean, with respect to each ESH Allocated Asset, the amount
specified as the ESH Release Amount on Schedule 1-B to the Fee Letter.
Event of Default shall mean any of the events specified in Section 7.1;
provided, however, that any requirement for the giving of notice or the lapse of
time, or both, or any other condition, has been satisfied.
Exception Report shall have the meaning set forth in the Custodial Agreement.
Exceptions shall have the meaning set forth in the Custodial Agreement.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
Excluded Accounts shall mean all accounts established to hold Obligor Reserve
Payments and all accounts holding funds that are required to be disbursed to an Obligor under the
terms of the related Mortgage Loan Documents.
Excluded Taxes shall mean, with respect to the Administrative Agent, any Lender, or
any other recipient of any payment to be made by or on account of any obligation of the Borrowers
hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable lending office is located,
(b) any branch profits taxes imposed by the United States of America or any similar tax imposed by
any other jurisdiction in which a Borrower is located and (c) in the case of a Foreign Lender, any
withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party hereto (or designates a new lending office) or is attributable to such
Foreign Lenders failure or inability (other than as a result of a Change in Law) to comply with
Section 2.14, except to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive additional amounts
from the Borrowers with respect to such withholding tax pursuant to Section 2.14.
Existing Agreement shall mean, collectively, the Original Agreement and that certain
Credit Agreement, dated as of November 6, 2007, as amended by the First Amendment to Credit
Agreement, dated as of April 23, 2008, the Second Amendment to Credit Agreement, dated as of June
26, 2008, the Third Amendment to Credit Agreement, dated as of September 30, 2008, the Fourth
Amendment to Credit Agreement, dated as of December 31, 2008 and the Fifth Amendment to Credit
Agreement, dated as of December 31, 2008, among ARSR, Arbor ESH, ART, Arbor Realty, each lender
party thereto, and Wachovia Bank, National Association, as the administrative agent.
Existing Borrower shall mean, collectively, the Credit Parties who were Borrowers
under the Existing Agreement.
Extension of Credit shall mean, as to any Lender, the making of a Loan by such
Lender, any conversion of a Loan from one Type to another Type, any extension of any Loan and any
pledge of a Mortgage Asset to the Administrative Agent.
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Extraordinary Receipt shall mean any Income received by or paid to or for the
account of any Credit Party relating to any item of Collateral and not in the ordinary course of
business, including tax refunds, pension plan reversions, proceeds of insurance (other than
proceeds of business interruption insurance to the extent such proceeds constitute compensation for
lost earnings), condemnation awards (and payments in lieu thereof), indemnity payments and any
purchase price adjustments.
Fair Market Value shall mean, with respect to (a) a security listed on a national
securities exchange or recognized automated quotation system, the price of such security as
reported on such exchange by any widely recognized reporting method customarily relied upon by
financial institutions, and (b) with respect to any other assets or Property, including realty, the
price that could be negotiated in an arms-length free market transaction, for cash, between a
willing seller and a willing buyer, neither of which is under pressure or compulsion to complete
the transaction.
Federal Funds Effective Rate shall have the meaning set forth in the definition of
Alternate Base Rate.
Fee Letter shall mean the First Amended and Restated Fee Letter, dated as of the
Restatement Date, among the Borrowers, the Guarantors and the Administrative Agent, as amended,
modified, extended, restated, replaced, or supplemented from time to time.
Financial Covenants shall mean the covenants set forth in Section 5.9 of this
Agreement.
Fitch shall mean Fitch Ratings, Inc.
Foreclosed Mortgage Asset shall mean a Mortgage Asset for which a foreclosure
proceeding has been commenced and completed.
Foreign Lender shall mean any Lender that is organized under the laws of a
jurisdiction other than that in which a Borrower is resident for tax purposes. For purposes of
this definition, the United States of America, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.
Fund shall mean any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.
Funding Date shall mean the date upon which all conditions set forth in Sections 4.1
and 4.2 have been satisfied.
GAAP shall mean generally accepted accounting principles in effect in the United
States of America applied on a consistent basis, subject, however, in the case of
determination of compliance with the financial covenants set out in Section 5.9, to the provisions
of Section 1.3.
Governmental Authority shall mean the government of the United States of America or
any other nation, or of any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the
European Central Bank).
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Ground Lease shall mean with respect to any Underlying Mortgaged Property for which
the Obligor has a leasehold interest in the related Underlying Mortgaged Property or space lease
within such Underlying Mortgaged Property, the lease agreement creating such leasehold interest.
Guarantee Obligation shall mean, as to any Person (the guaranteeing
person), without duplication, any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of credit) to induce the creation
of the obligations for which the guaranteeing person has issued a reimbursement, counterindemnity
or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends, Contractual Obligation, Derivatives Contract or other obligations (the
primary obligations) of any other third Person (the primary obligor) in any
manner, whether directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any
Property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for
the purchase or payment of any such primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase Property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the maximum stated amount of the primary obligation relating to such
Guarantee Obligation (or, if less, the maximum stated liability set forth in the instrument
embodying such Guarantee Obligation); provided, however, that in the absence of any
such stated amount or stated liability, the amount of such Guarantee Obligation shall be such
guaranteeing persons maximum reasonably anticipated liability in respect thereof as reasonably
determined by such Person in good faith.
Guarantor shall mean, individually and/or collectively, ART, Arbor Realty, ARSR and
any other entity that becomes party to this Agreement pursuant to Section 5.10 from time to time,
in each case together with their successors and permitted assigns.
Guarantor Joinder Agreement shall mean a Guarantor Joinder Agreement in
substantially the form of Exhibit 1.1(d)(ii), executed and delivered by an Additional
Credit Party in accordance with the provisions of Section 5.10, as amended, restated, supplemented
or modified from time to time.
Guaranty shall mean the guaranty of the Guarantors set forth in that certain First
Amended and Restated Guaranty Agreement, dated as of the Restatement Date, by and among the
Guarantors and the Administrative Agent, as amended, restated, supplemented or modified from time
to time.
Homewood Account Control Agreement shall mean that certain executed first amended
and restated account control agreement, dated as of the Restatement Date, among the Borrowers, the
Administrative Agent and Wachovia granting control over the Homewood Interest Reserve identified
therein to the Administrative Agent as agent for the Secured Parties, in the form of Exhibit
1.1(m), as amended, modified, restated, replaced, waived, substituted, supplemented or extended
from time to time.
Homewood Interest Reserve shall mean the account maintained at Wachovia identified
in the Homewood Account Control Agreement into which the interest reserve for the second, third and
fourth mortgage loans under the Homewood Mortgage Asset shall be held. Subject to the terms of
this Agreement, on each Payment Date, the monthly debt service amount for the Homewood Mortgage
Asset will be withdrawn from the Homewood Interest Reserve by the Administrative Agent and
deposited into the Collection Account to be applied under Section 2.9 of this Agreement;
provided, however, (i) no
18
amounts withdrawn from the Homewood Interest Reserve shall be paid to the Borrowers after an
Event of Default and (ii) after an event of default under the Mortgage Loan Documents for the
Homewood Mortgage Asset, and subject to the terms of the Mortgage Loan Documents for the Homewood
Mortgage Asset, the Administrative Agent shall be entitled to withdraw all of the funds in the
Homewood Interest Reserve and apply such funds to the Allocated Term Loan Amount and/or the
Allocated Revolving Loan Amount, as applicable, for the Homewood Mortgage Asset and any other
Obligations.
Homewood Mortgage Asset shall mean the second, third and fourth mortgage Whole Loans
referred to as Homewood Village Resorts in Placer County, California, which are pledged to the
Administrative Agent, as Collateral, under the Security Documents.
Income shall mean with respect to the Collateral and to the extent of a Borrowers
or the holders interest therein, at any time, all of the following: all payments, collections,
prepayments, recoveries, proceeds (including, without limitation, insurance and condemnation
proceeds), Extraordinary Receipts and all other payments or amounts of any kind or nature
whatsoever paid, received, collected, recovered or distributed on, in connection with or in respect
of the Collateral or any other collateral for the Obligations, including, without limitation,
principal payments, interest payments, principal and interest payments, prepayment fees, extension
fees, exit fees, defeasance fees, transfer fees, late charges, late fees and all other fees or
charges of any kind or nature, premiums, yield maintenance charges, penalties, default interest,
dividends, gains, receipts, allocations, rents, interests, profits, payments in kind, returns or
repayment of contributions and all other distributions, payments and other amounts of any kind or
nature whatsoever payable thereon, in connection therewith, or with respect thereto, together with
amounts received from any Interest Rate Protection Agreement and amounts withdrawn from the
Homewood Interest Reserve by the Administrative Agent; provided, however, (i) prior
to an Event of Default, the Borrowers may net the Servicing Fee from Income and (ii) Income shall
not include any Obligor Reserve Payments unless a Borrower, a Servicer or a PSA Servicer has
exercised rights with respect to such payments under the terms of the related Mortgage Loan
Documents, the Servicing Agreements or the Pooling and Servicing Agreements, as applicable.
Indebtedness shall mean, with respect to any Person, including such Persons
Consolidated Subsidiaries determined on a consolidated basis, at the time of computation thereof,
all indebtedness of any kind including, without limitation (without duplication): (a) all
obligations of such Person in respect of money borrowed (including, without limitation, principal,
interest, assumption fees, prepayment fees, yield maintenance charges, penalties, exit fees,
contingent interest and other monetary obligations whether choate or inchoate and whether by loan,
the issuance and sale of debt securities or the sale of Property or assets to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase such Property or
assets, or otherwise); (b) all obligations of such Person, whether or not for money borrowed
(i) represented by notes payable, letters of credit or drafts accepted, in each case representing
extensions of credit, (ii) evidenced by bonds, debentures, notes or similar instruments,
(iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt
instruments or other similar instruments, upon which interest charges are customarily paid or that
are issued or assumed as full or partial payment for property or services rendered, or (iv) in
connection with the issuance of preferred equity or trust preferred securities; (c) Capital Lease
Obligations of such Person; (d) all reimbursement obligations of such Person under any letters of
credit or acceptances (whether or not the same have been presented for payment); (e) all
OffBalance Sheet Obligations of such Person; (f) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect of any Mandatory Redeemable Stock
issued by such Person or any other Person (inclusive of forward equity contracts), valued at the
greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends;
(g) as applicable, all obligations of such Person (but not the obligation of others) in respect of
any keep well arrangements, credit enhancements, contingent or future funding obligations under any
Mortgage Asset or any obligation senior to the Mortgage Asset, unfunded interest reserve
19
amount under any Mortgage Asset or any obligation that is senior to the Mortgage Asset,
purchase obligation, repurchase obligation, sale/buyback agreement, takeout commitment or forward
equity commitment, in each case evidenced by a binding agreement (excluding any such obligation to
the extent the obligation can be satisfied by the issuance of Equity Interests (other than
Mandatory Redeemable Stock)); (h) net obligations under any Derivatives Contract not entered into
as a hedge against existing indebtedness, in an amount equal to the Derivatives Termination Value
thereof; (i) all NonRecourse Indebtedness, recourse indebtedness and all indebtedness of other
Persons which such Person has guaranteed or is otherwise recourse to such Person; (j) all
indebtedness of another Person secured by (or for which the holder of such indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien (other than certain Permitted
Liens) on Property or assets owned by such Person, even though such Person has not assumed or
become liable for the payment of such indebtedness or other payment obligation; provided,
however, if such Person has not assumed or become liable for the payment of such
indebtedness, then for the purposes of this definition the amount of such indebtedness shall not
exceed the market value of the property subject to such Lien; (k) all Contingent Liabilities;
(l) all obligations of such Person incurred in connection with the acquisition or carrying of fixed
assets by such Person or obligations of such Person to pay the deferred purchase or acquisition
price of Property or assets, including contracts for the deferred purchase price of Property or
assets that include the procurement of services; (m) indebtedness of general partnerships of which
such Person is liable as a general partner (whether secondarily or contingently liable or
otherwise); and (n) obligations of such Person to fund capital commitments under any Authority
Document, subscription agreement or otherwise.
Indemnified Amounts shall have the meaning set forth in Section 10.5(b).
Indemnified Taxes shall mean Taxes other than Excluded Taxes.
Indemnitee shall have the meaning set forth in Section 10.5(b).
Independent Director shall mean natural Person who (a) is not at the time of initial
appointment as Independent Director, and may not have been at any time during the five (5) years
preceding such initial appointment or at any time while serving as Independent Director, (i) a
stockholder, partner, member or direct or indirect legal or beneficial owner of a Borrower, a
Guarantor or any Subsidiary or Affiliate of any Credit Party; (ii) a contractor, creditor,
customer, supplier, director (with the exception of serving as the Independent Director of a
Borrower), officer, employee, attorney, manager or other Person who derives any of its purchases or
revenues from its activities with a Borrower, a Guarantor or any Affiliate or Subsidiary of any
Credit Party; (iii) a natural Person who controls (directly or indirectly or otherwise) a Borrower,
a Guarantor or any Affiliate or Subsidiary of any Credit Party or who controls or is under common
control with any Person that would be excluded from serving as an Independent Director under (i) or
(ii), above; or (iv) a member of the immediate family of a natural Person excluded from servicing
as an Independent Director under clauses (i) or (ii) above and (b) otherwise satisfies the then
current requirements of the Rating Agencies. A Person who is an employee of a nationally
recognized organization that supplies independent directors and who otherwise satisfies the
criteria in clause (a) but for the fact that such organization receives payment from a Borrower or
a Guarantor for providing such independent director shall not be disqualified from serving as an
Independent Director hereunder.
Information Materials shall have the meaning set forth in Section 5.15.
Insolvency shall mean, with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of such term as used in Section 4245 of ERISA.
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Insolvency Event shall mean, with respect to a specified Person, (a) the filing of a
decree or order for relief by a court having jurisdiction in the premises in respect of such Person
or any substantial part of its Property in an involuntary case under any applicable Insolvency Law
now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of its Property, or
ordering the winding-up or liquidation of such Persons affairs, and such decree or order shall
remain unstayed and in effect for a period of sixty (60) consecutive days; or (b) the commencement
by such Person of a voluntary case under any applicable Insolvency Law now or hereafter in effect,
or the consent by such Person to the entry of an order for relief in an involuntary case under any
such law, or the consent by such Person to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for
any substantial part of its Property, or the making by such Person of any general assignment for
the benefit of creditors, or the failure by such Person generally to pay its debts as such debts
become due, or the taking of action by such Person in furtherance of any of the foregoing.
Insolvency Laws shall mean the Bankruptcy Code and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization,
suspension of payments or similar debtor relief laws from time to time in effect affecting the
rights of creditors generally.
Insolvency Proceeding shall mean any case, action or proceeding before any court or
other Governmental Authority relating to any Insolvency Event.
Instrument shall mean any instrument (as defined in Article 9 of the UCC), other
than an instrument that constitutes part of chattel paper.
Intercreditor Agreement shall mean that certain Intercreditor Agreement to be
entered into by and among the Administrative Agent and Wachovia, as administrative agent under the
Working Capital Facility, as amended, restated, modified or supplemented from time to time.
Interest Expense shall mean, for ART and its Consolidated Subsidiaries, the total
interest expense incurred (in accordance with GAAP), including capitalized or accruing interest
(but excluding interest funded under a construction loan), by ART and its Consolidated
Subsidiaries, without duplication for the most recent period.
Interest Period shall mean, with respect to any LIBOR Rate Loan,
(a) initially, the period commencing on the Borrowing Date or conversion date, as the
case may be, with respect to such LIBOR Rate Loan and ending one, two, three or six months
thereafter, subject to availability to all applicable Lenders, as selected by Borrowers in
the Notice of Borrowing or Notice of Conversion given with respect thereto; and
(b) thereafter, each period commencing on the last day of the immediately preceding
Interest Period applicable to such LIBOR Rate Loan and ending one, two, three or six months
thereafter, subject to availability to all applicable Lenders, as selected by the Borrowers
by irrevocable notice to the Administrative Agent not less than three Business Days prior to
the last day of the then current Interest Period with respect thereto; provided that
the foregoing provisions are subject to the following:
(i) if any Interest Period pertaining to a LIBOR Rate Loan would otherwise end
on a day that is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would be to carry
such
21
Interest Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(ii) any Interest Period pertaining to a LIBOR Rate Loan that begins on the
last Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall
end on the last Business Day of the relevant calendar month;
(iii) if the Borrowers shall fail to give notice of the applicable Interest
Period, in any Notice of Borrower or otherwise, the applicable Borrower shall be
deemed to have selected a one-month LIBOR Rate Loan;
(iv) no Interest Period in respect of any Loan shall extend beyond the
applicable Maturity Date and, further with regard to the Term Loan, no Interest
Period shall extend beyond any principal amortization payment date with respect to
such Term Loan unless the portion of such Term Loan consisting of Alternate Base
Rate Loans together with the portion of such Term Loan consisting of LIBOR Rate
Loans with Interest Periods expiring prior to or concurrently with the date such
principal amortization payment date is due, is at least equal to the amount of such
principal amortization payment due on such date; and
(v) no more than six (6) LIBOR Rate Loans may be in effect at any time. For
purposes hereof, LIBOR Rate Loans with different Interest Periods shall be
considered as separate LIBOR Rate Loans, even if they shall begin on the same date
and have the same duration, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of existing Interest
Periods to constitute a new LIBOR Rate Loan with a single Interest Period.
Interest Rate Protection Agreement shall mean with respect to any or all of the
Mortgage Assets, (a) any Derivatives Contract required under the terms of the related Mortgage Loan
Documents providing for protection against fluctuations in interest rates or the exchange of
nominal interest obligations, either generally or under specific contingencies, and acceptable to
the Administrative Agent in its discretion and (b) any Derivatives Contract put in place by any
Borrower, any Guarantor or any Subsidiary or Affiliate of the foregoing with respect to any
Mortgage Asset.
Internal Control Event shall mean a material weakness in, or fraud that involves
management or other employees who have a significant role in, any Credit Partys internal controls
over financial reporting, in each case as described in the Securities Laws.
Investment shall mean, with respect to any Person, any acquisition or investment
(whether or not of a controlling interest) by such Person, whether by means of (a) the purchase or
other acquisition of any Equity Interests in another Person, (b) a loan, advance or extension of
credit to, capital contribution to, guaranty or credit enhancement of Indebtedness of, or purchase
or other acquisition of any Indebtedness of, another Person, including any partnership or joint
venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction
or a series of transactions) of assets of another Person that constitute the business or a division
or operating unit of another Person. Any binding commitment or option to make an Investment in any
other Person shall constitute an Investment. Except as expressly provided otherwise, for purposes
of determining compliance with any covenant contained in the Credit Documents, the amount of any
Investment shall be the amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
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Irrevocable Instruction shall mean an irrevocable instruction letter in the form of
Exhibit 1.1(j) hereto duly executed by the applicable Credit Party, as amended, restated,
modified or supplemented from time to time.
Joinder Agreement shall mean a Borrower Joinder Agreement and/or a Guarantor Joinder
Agreement, as applicable, as each may be amended, restated, supplemented or modified from time to
time.
Junior Interest shall mean (a) a senior, pari passu or junior participation interest
in a performing Commercial Real Estate Loan or (b) a senior, pari passu or junior note or
certificate in an A/B or similar structure in a performing Commercial Real Estate Loan, in each
case where the Underlying Mortgaged Property is stabilized and non-transitional.
Junior Interest Document shall mean the original executed promissory note,
Participation Certificate, Participation Agreement and any other evidence of a Junior Interest, as
applicable.
Land Loan shall mean a Commercial Real Estate Loan secured by entitled land intended
for construction, which loan is acceptable to the Administrative Agent in its discretion. Land
Loans are not Eligible Assets unless deemed so on a case by case basis in the Administrative
Agents discretion.
Lender shall have the meaning set forth in the first paragraph of this Agreement and
shall include the Revolving Lenders and the Term Loan Lenders.
Lender Commitment Letter shall mean, with respect to any Lender, the letter (or
other correspondence) to such Lender from the Administrative Agent notifying such Lender of its
Revolving Commitment Percentage and its portion of the Commitment Fee and/or Term Loan Commitment
Percentage, as applicable.
Lender Consent shall mean any lender consent delivered by a Lender on the
Restatement Date in the form of Exhibit 4.1(a).
LIBOR shall mean, for any LIBOR Rate Loan for any Interest Period therefor, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBOR01 Page (or any successor page) as the London interbank offered rate for deposits in Dollars
at approximately 11:00 A.M. (London time) two (2) Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for any reason such rate is not
available, then LIBOR shall mean the rate per annum at which, as determined by the Administrative
Agent in accordance with its customary practices, Dollars in an amount comparable to the Loans then
requested are being offered to leading banks at approximately 11:00 a.m. London time, two (2)
Business Days prior to the commencement of the applicable Interest Period for settlement in
immediately available funds by leading banks in the London interbank market for a period equal to
the Interest Period selected.
LIBOR Lending Office shall mean, initially, the office(s) of each Lender designated
as such Lenders LIBOR Lending Office in such Lenders Administrative Questionnaire; and
thereafter, such other office of such Lender as such Lender may from time to time specify to the
Administrative Agent and the Borrowers as the office of such Lender at which the LIBOR Rate Loans
of such Lender are to be made.
LIBOR Rate shall mean a LIBOR rate per annum (rounded upwards, if necessary, to the
next higher 1/100th of 1%) determined by the Administrative Agent in accordance with the definition
of LIBOR.
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LIBOR Rate Loan shall mean Loans the rate of interest applicable to which is based
on the LIBOR Rate.
Lien shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security interest or any
preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title retention agreement
and any Capital Lease having substantially the same economic effect as any of the foregoing).
Liquidity shall mean an amount equal to the (a) sum of (without duplication) (i) the
amount of unrestricted cash and unrestricted Cash Equivalents, plus (ii) the borrowing
availability (if any) under the Working Capital Facility, in each case in clauses (i) and (ii),
solely to the extent that such amounts exceed the amounts necessary to satisfy at such time all of
the Financial Covenants (other than Subsection 5.9(a) hereunder and all financial covenants (other
than any liquidity covenants) under the Working Capital Facility and, in each case, to the extent
ART continues to be in compliance thereof, less, (b) amounts necessary to satisfy margin
deficits or other prepayment obligations under the Working Capital Facility.
Loan shall mean a Revolving Loan and/or the Term Loan, as appropriate.
LoantoValue Ratio or LTV shall mean with respect to any Mortgage Asset,
as of any date of determination, the ratio of the outstanding principal amount of such Mortgage
Asset to the market value of the related Underlying Mortgaged Property at such time, as determined
by the Administrative Agent in its discretion, as such LTV may be adjusted by the Administrative
Agent as the Administrative Agent determines in its discretion; provided, however,
that all such calculations shall be made taking into account any senior or pari passu debt or other
senior or pari passu obligations, including senior or pari passu debt or other senior or pari passu
obligations secured directly or indirectly by the applicable Underlying Mortgaged Property.
LTC shall mean, with respect to any Mortgage Asset, that is a Bridge Loan, as of any
date of determination, the ratio of the outstanding principal amount of such Mortgage Asset to the
Construction Costs for such Mortgage Asset, as determined by the Administrative Agent in its
discretion, as such LTC may be adjusted by the Administrative Agent as the Administrative Agent
determines in its discretion; provided, however, that all such calculations shall
be made taking into account any senior or pari passu debt or other senior or pari passu
obligations, including senior or pari passu debt or other senior or pari passu obligations secured
directly or indirectly by the applicable Underlying Mortgaged Property.
Mandatory Redeemable Stock shall mean, with respect to any Person and any Subsidiary
thereof, any Equity Interests of such Person which by the terms of such Equity Interests (or by the
terms of any security into which it is convertible or for which it is exchangeable or exercisable),
upon the happening of any event or otherwise (a) matures or is required to be redeemed, pursuant to
a sinking fund obligation or otherwise (other than an Equity Interest to the extent redeemable in
exchange for common stock or other equivalent common Equity Interests), (b) is convertible into or
exchangeable or exercisable for Indebtedness or Mandatory Redeemable Stock, or (c) is redeemable at
the option of the holder thereof, in whole or in part (other than an Equity Interest which is
redeemable solely in exchange for common stock or other equivalent common Equity Interests); in the
case of each clause (a) through (c), on or prior to the Maturity Date.
Market Value shall mean, as of any date of determination in respect of any Mortgage
Asset, the price at which such Mortgage Asset could readily be sold, as determined by
the Administrative Agent in its discretion based on such sources and information (if any) as the
Administrative Agent may determine
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to rely on in its discretion (which value may be determined to be zero (0)), as such Market
Value may be adjusted at any time by the Administrative Agent as the Administrative
Agent determines in its discretion (subject to the last sentence of the definition of Asset Value).
Material Adverse Effect shall mean, any material adverse effect on or change in or
to (a) the Properties, assets, business, operations, financial condition, credit quality or
prospects of any Borrower or any Guarantor, (b) the ability of any Borrower, any Guarantor or any
other Credit Party to perform its obligations under any of the Credit Documents or any of the
Mortgage Loan Documents to which it is a party, (c) the validity, enforceability, legality or
binding effect of any of the Credit Documents or any Loan granted thereunder, (d) the rights and
remedies of the Administrative Agent or any Lender under any of the Credit Documents or the
Collateral, (e) the timely payment of any amounts payable under the Credit Documents, or (f) any
Collateral, the perfection or priority of any Loan granted with respect to the Collateral or the
value or Asset Value of any Collateral.
Material Contract shall mean (a) any contract or other agreement listed on
Schedule 3.23, (b) any contract or other agreement, written or oral, of the Credit Parties
or any of their Subsidiaries involving monetary liability of or to any such Person in an amount in
excess of $3,000,000 per annum, (c) any contract or other agreement, written or oral, of the Credit
Parties or any of their Subsidiaries representing at least $3,000,000 of the total Consolidated
revenues of the Credit Parties and their Subsidiaries for any fiscal year and (d) any other
contract, agreement, permit or license, written or oral, of the Credit Parties or any of their
Subsidiaries as to which the breach, nonperformance, cancellation or failure to renew by any party
thereto, individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
Materials of Environmental Concern shall mean any gasoline or petroleum (including
crude oil or any extraction thereof) or petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or under any Environmental Law, including,
without limitation, asbestos, perchlorate, polychlorinated biphenyls and urea-formaldehyde
insulation.
Maturity Date shall mean the earlier of (a) the date that is three (3) years
following the Restatement Date, and (b) the date on which this Agreement shall terminate in
accordance with the provisions hereof or by operation of Requirements of Law. For the avoidance of
doubt, the Borrowers may not extend the Maturity Date without the Lenders and the Administrative
Agents consent in their discretion.
Maximum LTC shall mean with respect to any Mortgage Asset that is a Bridge Loan, at
any time the Maximum LTC for related Underlying Mortgaged Property (a) in the case of Term Loan
Collateral for the Term Loans, as set forth on Schedule 1-A to the Fee Letter and (b) in
the case of Revolving Loan Collateral (including Mixed Collateral) for the Revolving Loans, the
Maximum LTC, determined by the Administrative Agent in its discretion and set forth in the related
Confirmation, which shall be no greater than the Maximum LTC set forth in Schedule 1-B to
the Fee Letter; provided, however, that all such calculations shall be made taking
into account any senior or pari passu debt or other senior or pari passu obligations, including
senior or pari passu debt or other senior or pari passu obligations secured directly or indirectly
by the applicable Underlying Mortgaged Property.
Maximum LTV shall mean with respect to any Mortgage Asset, at any time, the Maximum
LTV for the related Underlying Mortgaged Property (a) in the case of Term Loan Collateral for the
Term Loans, as set forth on Schedule 1-A to the Fee Letter and (b) in the case of
Revolving Loan Collateral (including Mixed Collateral) for the Revolving Loans, the Maximum LTV set
forth in the related Confirmation, which shall be no greater than the Maximum LTV set forth in
Schedule 1-B to the Fee Letter; provided, however, that all such
calculations shall be made taking into account any senior or pari
25
passu debt or other senior or pari passu obligations, including senior or pari passu debt or
other senior or pari passu obligations secured directly or indirectly by the applicable Underlying
Mortgaged Property.
Mezzanine Loan shall mean a performing mezzanine loan secured by pledges of all (or,
in the Administrative Agents discretion, less than all) the Equity Interest of the Person that
owns, directly or indirectly, income producing Underlying Mortgaged Property that is stabilized and
non-transitional.
Mezzanine Note shall mean the original executed promissory note or other evidence of
Mezzanine Loan Indebtedness.
Minimum DSCR shall mean with respect to any Mortgage Asset, at any time, the Minimum
DSCR for the related Underlying Mortgaged Property (a) in the case of Term Loan Collateral for the
Term Loans, as set forth on Schedule 1-A to the Fee Letter and (b) in the case of Revolving
Loan Collateral (including Mixed Collateral) for the Revolving Loans, the Minimum DSCR, determined
by the Administrative Agent in its discretion and set forth in the related Confirmation, which
shall be no less than the Minimum DSCR set forth in Schedule 1-B to the Fee Letter;
provided, however, that all such calculations shall be made taking into account any
senior or pari passu debt or other senior or pari passu obligations, including senior or pari passu
debt or other senior or pari passu obligations secured directly or indirectly by the applicable
Underlying Mortgaged Property.
Mixed Collateral shall mean the portion of the Pledged Mortgage Assets included in
the Collateral with respect to which advances under the Term Loan (if any) are calculated and
determined and, with respect to any future advances under such Collateral that the Administrative
Agent determines to make in its discretion under the Revolving Loan Commitments, with respect to
which Revolving Loans (if any) are determined and calculated; provided, however,
Mixed Collateral shall be limited to the Mortgage Assets identified on Schedule 1.1(d).
Moodys shall mean Moodys Investors Service, Inc.
Mortgage shall mean each mortgage, assignment of rents, security agreement and
fixture filing, or deed of trust, assignment of rents, security agreement and fixture filing, or
similar instrument creating and evidencing a Lien on real property, fixtures and other Property and
rights incidental thereto.
Mortgage Asset shall mean a Whole Loan, a Junior Interest, a Mezzanine Loan, a
Bridge Loan, a Preferred Equity Interest, an Equity Asset or, as applicable, a Condominium Loan or
Land Loan, in each case, the Underlying Mortgaged Property for which is included in the categories
for Property Types of Mortgage Assets; provided, however, the portion of any
Mortgage Asset to be pledged to the Administrative Agent shall not include any Retained Interest
(if any).
Mortgage Asset Data Summary shall have the meaning set forth in Section 5.2(h).
Mortgage Asset File shall have the meaning set forth in the Custodial Agreement.
Mortgage Asset File Checklist shall have the meaning set forth in the Custodial
Agreement.
Mortgage Asset Security Agreement shall mean, with respect to any Mortgage Asset,
any contract, instrument or other document related to security for repayment thereof (other than
the related Mortgage, Mortgage Note, Mezzanine Note or any other note, certificate or instrument)
executed by an Obligor and/or others in connection with such Mortgage Asset, including, without
limitation, any security agreement, UCC financing statement, Liens, warranties, guaranty, title
insurance policy, hazard insurance
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policy, chattel mortgage, letter of credit, accounts, bank accounts or certificates of deposit
or other pledged accounts, and any other documents and records relating to any of the foregoing.
Mortgage Loan Documents shall have the meaning set forth in the Custodial Agreement.
Mortgage Note shall mean, that certain original executed promissory note or other
evidence of the Indebtedness of an Obligor under a Whole Loan that is secured by a Mortgage on the
related Underlying Mortgaged Property.
Mortgaged Property shall mean the Commercial Real Estate (including all
improvements, buildings, fixtures, building equipment and personal property thereon and all
additions, alterations and replacements made at any time with respect to the foregoing) and all
other collateral securing repayment of the related debt evidenced by the Mortgage Loan Documents.
Mortgagee shall mean the record holder of a Mortgage Note secured by a Mortgage.
Multiemployer Plan shall mean a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
Net Cash Flow shall mean, with respect to any Underlying Mortgaged Property, for any
period, the net income (or deficit) attributable to such Property for such period, determined in
accordance with GAAP, less the amount of all (a) capital expenditures incurred,
(b) reserves established, (c) leasing commissions paid (other than commissions paid from reserves
held under the Mortgage Loan Documents) and (d) tenant improvements paid during such period (other
than tenant improvements paid from reserves held under the Mortgage Loan Documents) in each case
attributable to such Underlying Mortgaged Property, plus all noncash charges deducted in
the calculation of such net income.
Net Cash Proceeds shall mean the aggregate cash proceeds, Cash Equivalents and the
Fair Market Value of all other Property and assets received by, or payable to, any Credit Party or
any Subsidiary or Affiliate in respect of any sale or other disposition of any Collateral, net of
(a) direct costs (including, without limitation, legal, accounting and investment banking fees, and
sales commissions) associated therewith, and (b) taxes paid or payable as a result thereof; it
being understood that Net Cash Proceeds shall include, without limitation, any cash received upon
the sale or other disposition of any non-cash consideration received by any Credit Party, any
Subsidiary or any Affiliate in any sale or other disposition of any Collateral.
Net Income shall mean, with respect to ART and its Consolidated Subsidiaries for any
period, the net income of ART and its Consolidated Subsidiaries for such period as determined in
accordance with GAAP.
Net Total Liabilities shall mean Total Liabilities minus the sum of (a)
aggregate principal amount outstanding under the Eligible Subordinated Debt and (b) deferred
revenues relating to the 450 Transaction to the extent classified as a liability according to GAAP.
New Stock Class shall have the meaning set forth in the Fee Letter.
Non-Recourse Indebtedness shall mean, with respect to any Person, Indebtedness for
borrowed money in respect of which recourse for payment (except for customary exceptions for fraud,
misapplication of funds, environmental indemnities, and other similar exceptions to non-recourse
provisions (including exceptions relating to bankruptcy, insolvency, receivership, non-approved
transfers
27
or other customary or similar events)) is contractually limited to specific assets of such
Person encumbered by a Lien securing such Indebtedness.
NonTable Funded Mortgage Asset shall mean a Mortgage Asset that is not a Table
Funded Mortgage Asset.
NonWachovia Assets shall mean any Mortgage Asset issued, extended or originated by
a Person other than Wachovia Corporation or an Affiliate of Wachovia Corporation.
Note or Notes shall mean the Revolving Notes and/or the Term Loan Notes,
collectively, separately or individually, as appropriate, as any shall be amended, restated,
modified or supplemented from time to time.
Notice of Borrowing shall mean a request for a Revolving Loan borrowing pursuant to
Section 2.1(b)(i), as amended, restated, modified or supplemented from time to time. A Form of
Notice of Borrowing is attached as Exhibit 1.1(e).
Notice of Conversion/Extension shall mean the written notice of conversion of a
LIBOR Rate Loan to an Alternate Base Rate Loan or an Alternate Base Rate Loan to a LIBOR Rate Loan,
or extension of a LIBOR Rate Loan, in each case substantially in the form of
Exhibit 1.1(f).
Obligations shall mean, without duplication, all of the obligations, indebtedness
and liabilities of the Credit Parties to the Lenders and the Administrative Agent, whenever
arising, under the Loans, this Agreement, the Notes, any of the other Credit Documents and all of
the other Credit Party-Related Obligations, including principal, interest, fees, reimbursements and
indemnification obligations and other amounts (including, but not limited to, any interest accruing
after the occurrence of a filing of a petition of bankruptcy under the Bankruptcy Code with respect
to any Credit Party, regardless of whether such interest is an allowed claim under the Bankruptcy
Code).
Obligor shall mean, individually and collectively, as the context may expressly
provide or require, the borrowers, mortgagors, obligors or debtors under a Mortgage Asset,
including, but not limited to, any guarantor, any pledgor, any subordinator, any credit support
party, any indemnitor and any Person that is directly or indirectly obligated in respect thereof,
the borrowers, mortgagors, obligors or debtors of any debt, including any guarantor, any pledgor,
any subordinator, any credit support party, any indemnitor and any Person that is directly or
indirectly obligated in respect thereof, senior to the Mortgage Asset, including any of the
foregoing such Persons with respect to the debt secured by any Underlying Mortgaged Property, and
any Person that has not signed the related Mortgage Note, Junior Interest Documents, Mezzanine Note
or other note, certificate or instrument but owns an interest in the related Underlying Mortgaged
Property, which interest has been encumbered to secure such Mortgage Asset.
Obligor Reserve Payments shall mean any payments made by an Obligor under the
applicable Mortgage Loan Documents which, pursuant to the terms of such Mortgage Loan Documents,
are required to be deposited into escrow or into a reserve to be used for a specific purpose (e.g.,
tax and insurance escrows), excluding, however, the Homewood Interest Reserve.
OFAC shall mean The Office of Foreign Assets Control of the U.S. Department of the
Treasury.
Off-Balance Sheet Obligations shall mean, with respect to any Person and its
Consolidated Subsidiaries, as of any date of determination thereof, without duplication and to the
extent not included as
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a liability on the consolidated balance sheet of such Person and its Consolidated Subsidiaries
in accordance with GAAP: (a) the monetary obligations under any financing lease or so-called
synthetic, tax retention or off-balance sheet lease transaction which, upon the application of
any Insolvency Laws to such Person or any of its Consolidated Subsidiaries, would be characterized
as indebtedness; (b) the monetary obligations under any sale and leaseback transaction which does
not create a liability on the consolidated balance sheet of such Person and its Consolidated
Subsidiaries; or (c) any other monetary obligation arising with respect to any other transaction
which (i) is characterized as indebtedness for tax purposes but not for accounting purposes in
accordance with GAAP or (ii) is the functional equivalent of or takes the place of borrowing but
which does not constitute a liability on the consolidated balance sheet of such Person and its
Consolidated Subsidiaries (for purposes of this clause (c), any transaction structured to provide
tax deductibility as interest expense of any dividend, coupon or other periodic payment will be
deemed to be the functional equivalent of a borrowing).
Officers Certificate shall mean, a certificate signed by a Responsible Officer of a
Borrower or a Guarantor, as applicable.
Operating Lease shall mean, as applied to any Person, any lease (including, without
limitation, leases which may be terminated by the lessee at any time) of any Property (whether
real, personal or mixed) which is not a Capital Lease other than any such lease in which that
Person is the lessor.
Opinion of Counsel shall mean, a written opinion of counsel, which opinion and
counsel are acceptable to the Administrative Agent in its discretion.
Original Agreement shall have the meaning set forth in the Recitals of this
Agreement.
Original Kodiak Indenture shall have the meaning set forth in the definition of
Eligible Subordinated Debt.
Originator shall mean, with respect to each Mortgage Asset, the Person who
originated such Mortgage Asset.
Other Taxes shall mean all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Credit Document or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement or any other Credit Document.
Participant has the meaning assigned to such term in clause (d) of Section 10.6.
Participation Agreement shall mean, with respect to any Junior Interest, any
executed participation agreement, subparticipation agreement, intercreditor, servicing, loan or
administrative agreement or any agreement that is similar to any of the foregoing agreements under
which the Junior Interest is created, evidenced, issued, serviced, administered and/or guaranteed.
Participation Certificate shall mean, with respect to any Junior Interest, an
executed certificate, note, instrument or other document representing the interest, participation
interest or subparticipation interest granted under a Participation Agreement.
Patriot Act shall mean The Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L.
No. 107-56 (signed into law October 26, 2001)), as amended, restated modified or supplemented from
time to time.
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paying Borrower shall have the meaning set forth in Section 10.29(b).
Payment Date shall mean (a) the 28th day of each calendar month;
provided, however, if such day is not a Business Day (i) if the next Business Day
occurs during the succeeding month, the previous Business Day and (ii) if the next Business Day
does not occur during the succeeding month, the next succeeding Business Day and (b) as to any Loan
which is the subject of a mandatory prepayment required pursuant to Section 2.5(b), the date on
which such mandatory prepayment is due.
PBGC shall mean the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
Permitted Indebtedness shall mean, with respect to Preferred Equity Interests or
Equity Assets, as applicable, Indebtedness that is permitted under the related Mortgage Loan
Documents and disclosed in writing to the Administrative Agent in a Confirmation.
Permitted Liens shall mean any of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for
state, municipal or other local Taxes if such Taxes shall not at the time be due and payable,
(b) Liens imposed by Requirements of Law, such as materialmens, mechanics, carriers, workmens
and repairmens Liens and other similar Liens, arising in the ordinary course of business securing
obligations that are not overdue for a period of more than thirty (30) days, (c) Liens granted
pursuant to or by the Security Documents and (d) in the case of the Mortgage Assets only and not
any Borrowers interest therein, with respect to any Underlying Mortgaged Property, Liens which are
permitted pursuant to the terms of the Mortgage Loan Documents.
Person shall mean any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
Plan shall mean, as of any date of determination, any employee benefit plan which is
covered by Title IV of ERISA and in respect of which any Credit Party or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an employer as defined in Section 3(5) of ERISA.
Pledge Agreements shall mean each Pledge and Security Agreement and the
Equity/Preferred Equity Pledge and Security Agreement, as each such agreement may be amended,
modified, restated or supplemented from time to time.
Pledge and Security Agreement shall mean, individually or collectively, as the
context may require, (a) the First Amended and Restated Pledge and Security Agreement, dated as of
the Restatement Date, by ARSR for the benefit of the Lenders and the Administrative Agent, and (b)
the First Amended and Restated Pledge and Security Agreement, dated as of the Restatement Date, by
Arbor ESH Holdings LLC for the benefit of the Lenders and the Administrative Agent, as each such
agreement may be amended, modified, waived, supplemented, extended, restated or replaced from time
to time.
Pledged Collateral shall have the meaning given to such term in the Pledge and
Security Agreement.
Pledged Mortgage Asset shall mean the Mortgage Assets that have been pledged to the
Administrative Agent as Collateral under the Security Documents.
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Pledgor shall mean Arbor Realty SR, Inc., a Maryland corporation, and Arbor ESH
Holdings LLC, a Delaware limited liability company, together with each of their successors and
assigns.
Pooling and Servicing Agreements shall mean any and all pooling and servicing
agreements governing servicing and other matters entered into in connection with a securitization
of one (1) or more interests that are senior, junior or pari passu with a Mortgage Asset.
Preferred Equity Grantor shall mean the entity in which a Preferred Equity Interest
represents an Investment.
Preferred Equity Interest shall mean all (or, if approved by the Administrative
Agent in its discretion, less than all) of the Equity Interests representing the preferred equity
interest in an entity that owns, directly or indirectly, stabilized and non-transitional Commercial
Real Estate, including, but not limited to, all equity interests representing a dividend on any of
the Equity Interests of the Preferred Equity Grantor or representing a distribution or return of
capital upon or in respect of the Equity Interests of the Preferred Equity Grantor, in each case as
it relates to a Preferred Equity Interest; provided, however, (a) such Preferred
Equity Interest must contain a synthetic maturity feature acceptable to the Administrative Agent in
its discretion, (b) the funding of the Preferred Equity Interest is subject to regulatory and
compliance criteria, and (c) the Administrative Agent reserves the right to require that each
Preferred Equity Interest be acquired by and pledged to the Administrative Agent by a bankruptcy
remote special purpose entity, which entity shall join the Credit Documents as a coBorrower
pursuant to a Borrower Joinder Agreement as a condition to the pledge of the Preferred Equity
Interest, and for the Equity Interests in such Borrower to be pledged to the Administrative Agent
as additional Collateral for the Obligations. All references to, and calculations required to be
made in respect of, any principal and/or interest associated with any Mortgage Asset, shall, with
respect to Mortgage Assets consisting of Preferred Equity Interests, be deemed to refer,
respectively, to the face amount of such Preferred Equity Interest and the preferred return or
yield (however such terms are denominated, as set forth in the related Mortgage Loan Documents),
whether payable or accrued.
Preferred Equity Interest Documents shall mean the Authority Documents of the
Preferred Equity Grantor, together with a certificate, instrument or other tangible evidence of the
Equity Interests in the Preferred Equity Grantor.
Prime Pledged Mortgage Asset shall mean the Equity Asset pledged to the
Administrative Agent that relates to the Underlying Mortgaged Properties involving the Prime Retail
Outlets and more specifically described in the related Underwriting Package and Confirmation.
Prime Rate shall have the meaning set forth in the definition of Alternate Base
Rate.
Principal Reduction Date shall have the meaning set forth in Section 2.2(b).
Private Information shall have the meaning set forth in Section 5.15.
Property shall mean any right or interest in or to property of any kind whatsoever,
whether real, personal or mixed, and whether tangible or intangible; provided that the term
Property or Properties as used in Section 3.10 shall include only the right or interest in or
to property of any kind whatsoever, whether real, personal or mixed, and whether tangible or
intangible of any Credit Party.
Property Type shall mean, with respect to a Mortgage Asset, such Mortgaged
Propertys classification as one of the following: multifamily, retail, office, industrial, hotel
or selfstorage facility.
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PSA Servicer shall mean a third party servicer (other than a Borrower) servicing all
or a portion of the Collateral under a Pooling and Servicing Agreement.
Public Information shall have the meaning set forth in Section 5.15.
Rating Agencies shall mean each of S&P, Moodys, Fitch and any other nationally
recognized statistical rating agency that has been requested to issue a rating with respect to the
matter at issue, including successors of the foregoing.
Register shall have the meaning set forth in Section 10.6(c).
Registration Rights Agreement means that certain Arbor Realty Trust, Inc.
Registration Rights Agreement, dated as of the Restatement Date, by and between ART and Wachovia,
as amended, restated, modified or supplemented from time to time.
REIT shall mean a real estate investment trust within the meaning of the Code.
Related Parties shall mean, with respect to any Person, such Persons Subsidiaries
and Affiliates and the partners, directors, officers, employees, agents and advisors of such Person
and of such Persons Subsidiaries and Affiliates.
Related Party Loan shall mean any loan, Indebtedness or preferred equity investment
identified or presented as a related party loan in ARTs consolidated financial statements or in
the notes to the consolidated financial statements, in accordance with GAAP; provided,
however, Related Party Loan shall not include any loan or preferred equity investment
(i) which is held as collateral in a CDO Issuance involving ART or any Consolidated Subsidiary of
ART or (ii) to which the Administrative Agent in its discretion has consented in writing to its
exclusion from the definition of Related Party Loan.
Release shall mean any generation, treatment, use, storage, transportation,
manufacture, refinement, handling, production, removal, remediation, disposal, presence or
migration of Materials of Environmental Concern on, about, under or within all or any portion of
any Property or Underlying Mortgaged Property.
Release Amount shall mean, (i) with respect to any Collateral other than the ESH
Pledged Mortgage Assets or the Additional Term Loan Collateral, the Allocated Term Loan Amount for
such Collateral, plus, if applicable, the Allocated Revolving Loan Amount allocated to such
Collateral, (ii) with respect to the ESH Pledged Mortgage Assets, the Total ESH Release Amount,
(iii) with respect to the Additional Term Loan Collateral other than the Alpine Asset, the
Additional Term Loan Collateral Release Amount applicable to such Pledged Mortgage Asset, and (iv)
with respect to the Alpine Asset, the Additional Term Loan Collateral Release Amount applicable to
the Alpine Asset plus the ESH Release Amount applicable to the Alpine Asset.
Remedial Work shall mean any investigation, inspection, site monitoring,
containment, cleanup, removal, response, corrective action, mitigation, restoration or other
remedial work of any kind or nature because of, or in connection with, the current or future
presence, suspected presence, Release or threatened Release in or about the air, soil, ground
water, surface water or soil vapor at, on, about, under or within all or any portion of any
Property or Underlying Mortgaged Property of any Materials of Environmental Concern, including any
action to comply with any applicable Environmental Laws or directives of any Governmental Authority
with regard to any Environmental Laws.
REMIC shall mean a real estate mortgage investment conduit.
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REO Property shall mean an Underlying Mortgaged Property acquired by a Credit Party
or a nominee thereof through foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise
in accordance with Requirements of Law.
Reorganization shall mean, with respect to any Multiemployer Plan, the condition
that such Plan is in reorganization within the meaning of such term as used in Section 4241 of
ERISA.
Reportable Event shall mean any of the events set forth in Section 4043(c) of ERISA,
other than those events as to which the thirty-day notice period is waived under PBGC Reg. §4043.
Required Lenders shall mean, as of any date of determination, Lenders holding at
least a majority of (a) the outstanding Revolving Commitments and Term Loan or (b) if the Revolving
Commitments have been terminated, the outstanding Loans; provided, however, that if
any Lender shall be a Defaulting Lender at such time, then there shall be excluded from the
determination of Required Lenders the Obligations owing to such Defaulting Lender and such
Defaulting Lenders Commitments.
Required Payments shall mean all payments required under Section 2.5(b)(iii) of this
Agreement or subject to or required to be subject to an Irrevocable Instruction, which amounts
shall be free of any deductions for or on account of any setoff, counterclaim or defense and shall
be deposited into the Collection Account for application in accordance with the terms of this
Agreement.
Requirement of Law shall mean, as to any Person, (a) the Authority Documents of such
Person, and (b) all international, foreign, Federal, state and local statutes, treaties, rules,
guidelines, regulations, ordinances, codes, executive orders, and administrative or judicial
precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority (in each case whether or not having the
force of law); in each case applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
Responsible Officer shall mean, for any Credit Party, any duly authorized officer
thereof with direct responsibility for the administration of the Credit Documents, and also, with
respect to any particular matter, any other duly authorized officer with knowledge of or
familiarity with the particular subject matter and, in each case, the Administrative Agent has an
incumbency certificate indicating such officer is a duly authorized officer thereof.
Restatement Date shall mean the date of this Agreement.
Restricted Payment shall mean (a) any dividend or other distribution, direct or
indirect, on account of any Equity Interests of any Credit Party or any Consolidated Subsidiary of
any Credit Party now or hereafter outstanding, except a dividend payable solely in Equity Interests
of identical class to the holders of that class; (b) any redemption, conversion, exchange,
retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any Equity Interests of any Credit Party or any Consolidated Subsidiary of any Credit
Party now or hereafter outstanding; and (c) any payment made to retire, or to obtain the surrender
of, any outstanding warrants, options or other rights to acquire any Equity Interests of any Credit
Party or any Consolidated Subsidiary of any Credit Party now or hereafter outstanding.
Retained Interest shall mean (a) with respect to any Mortgage Asset with an unfunded
commitment on the part of a Borrower, all of the obligations, if any, to provide additional
funding,
33
contributions, payments or credits with respect to such Mortgage Asset, (b) all duties,
obligations and liabilities of a Borrower under any Mortgage Asset or any related Interest Rate
Protection Agreement, including but not limited to any payment or indemnity obligations and
(c) with respect to any Mortgage Asset that is pledged or to be pledged to the Administrative
Agent, (i) all of the obligations, if any, of the agent(s), trustee(s), servicer(s), administrators
or other similar Persons under the documentation evidencing such Mortgage Asset and (ii) the
applicable portion of the interests, rights and obligations under the documentation evidencing such
Mortgage Asset that relate to such portion(s) of the Indebtedness that is owned by another lender
or is being retained by a Borrower pursuant to clause (a) of this definition.
Revolving Commitment shall mean, with respect to each Revolving Lender, the
commitment of such Revolving Lender to make Revolving Loans in an aggregate principal amount at any
time outstanding up to an amount equal to such Revolving Lenders Revolving Commitment Percentage
of the Revolving Committed Amount.
Revolving Commitment Percentage shall mean, for each Lender, the percentage
identified as its Revolving Commitment Percentage in its Lender Commitment Letter or in the
Assignment and Assumption pursuant to which such Lender became a Lender hereunder, as such
percentage may be modified in connection with any assignment made in accordance with the provisions
of Section 10.6(c).
Revolving Committed Amount shall have the meaning set forth in Section 2.1(a).
Revolving Lender shall mean, as of any date of determination, a Lender holding a
Revolving Commitment or a Revolving Loan on such date.
Revolving Loan shall have the meaning set forth in Section 2.1(a).
Revolving Loan Collateral shall mean the portion of the Pledged Mortgage Assets
included in the Collateral (including, without limitation, the portion of any Mixed Collateral with
respect to which Revolving Loan advances, if any, are calculated and determined) with respect to
which Revolving Loans (if any) are calculated and determined.
Revolving Note or Revolving Notes shall mean the first amended and
restated promissory notes of the Borrowers provided pursuant to Section 2.1(f) in favor of any of
the Revolving Lenders evidencing the Revolving Loans provided by any such Revolving Lender pursuant
to Section 2.1(a), individually or collectively, as appropriate, as such promissory notes may be
amended, modified, extended, restated, replaced, or supplemented from time to time.
S&P shall mean Standard & Poors Ratings Services, a division of The McGraw Hill
Companies, Inc.
Sale shall have the meaning set forth in Section 5.7(j).
Sanctioned Entity shall mean (a) a country or a government of a country, (b) an
agency of the government of a country, (c) an organization directly or indirectly controlled by a
country or its government, or (d) a person or entity resident in or determined to be resident in a
country, that is subject to a country sanctions program administered and enforced by OFAC described
or referenced at http://www.ustreas.gov/offices/enforcement/ofac/ or as otherwise published
from time to time.
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Sanctioned Person shall mean a person named on the list of Specially Designated
Nationals maintained by OFAC available at or through
http://www.ustreas.gov/offices/enforcement/ofac/ or as otherwise published from time to
time.
Sarbanes-Oxley shall mean the Sarbanes-Oxley Act of 2002, as amended or modified
from time to time.
SEC shall mean the Securities and Exchange Commission or any successor Governmental
Authority.
Secured Parties shall mean the Administrative Agent and the Lenders.
Securities Act shall mean the Securities Act of 1933, together with any amendment
thereto or replacement thereof and any rules or regulations promulgated thereunder.
Securities Laws shall mean the Securities Act, the Exchange Act, Sarbanes-Oxley, the
applicable accounting and auditing principles, rules, standards and practices promulgated, approved
or incorporated by the SEC or the Public Company Accounting Oversight Board, and applicable blue
sky and state securities laws and regulations, as each of the foregoing may be amended and in
effect on any applicable date hereunder.
Security Agreement shall mean the First Amended and Restated Security Agreement,
dated as of the Restatement Date, executed by Borrowers in favor of the Administrative Agent, for
the benefit of the Secured Parties, as amended, modified, extended, restated, replaced, or
supplemented from time to time in accordance with its terms.
Security Documents shall mean the Security Agreement, the Account Control Agreement,
the Custodial Agreement, all Assignments, all Irrevocable Instructions, the Homewood Account
Control Agreement, the Intercreditor Agreement, the Pledge Agreements and all other agreements,
documents and instruments relating to, arising out of, or in any way connected with any of the
foregoing documents or granting to the Administrative Agent Liens or security interests to secure,
inter alia, the Obligations whether now or hereafter executed and/or filed, each as may be amended
from time to time in accordance with the terms hereof, executed and delivered in connection with
the granting, attachment and perfection of the Administrative Agents security interests and Liens
arising thereunder, including, without limitation, UCC financing statements, as such agreements or
instruments are amended, restated, modified or supplemented from time to time.
Servicer shall mean a Person (other than a Borrower) servicing all or a portion of a
Mortgage Asset under a Servicing Agreement, which Servicer shall be acceptable to the
Administrative Agent in its reasonable discretion.
Servicer Account shall mean any account established by a Servicer or a PSA Servicer
in connection with the servicing of the Mortgage Asset.
Servicer Default shall have the meaning set forth in Section 9.12.
Servicer Redirection Notice shall mean a notice from a Borrower to a Servicer,
substantially in the form of Exhibit 1.1(k) attached hereto, duly executed by the parties
thereto.
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Servicing Agreement shall mean an agreement entered into by the applicable Borrower
and a third party for the servicing of a Mortgage Asset, the form and substance of which has been
approved in writing by the Administrative Agent in its reasonable discretion.
Servicing Fee shall have the meaning set forth in Section 9.9.
Servicing File shall mean, with respect to each Mortgage Asset, the file retained by
a Borrower consisting of the originals of all documents in the Mortgage Asset File that are not
delivered to the Custodian and copies of all documents in the Mortgage Asset File set forth in
Section 3.1 of the Custodial Agreement.
Servicing Records shall have the meaning set forth in Section 9.2.
Single Employer Plan shall mean any Plan that is not a Multiemployer Plan.
Solvent shall mean, as to any Person at any time, having a state of affairs such
that all of the following conditions are met: (a) the fair value of the Property of such Person is
greater than the amount of such Persons liabilities (including disputed, contingent and
unliquidated liabilities) as such value is established and liabilities evaluated for purposes of
Section 101(32) of the Bankruptcy Code; (b) the present fair salable value of the Property of such
Person in an orderly liquidation of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured;
(c) such Person is able to realize upon its Property and pay its debts and other liabilities
(including disputed, contingent and unliquidated liabilities) as they mature in the normal course
of business; (d) such Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Persons ability to pay as such debts and liabilities mature; and (e) such
Person is not engaged in a business or a transaction, and is not about to engage in a business or a
transaction, for which such Persons Property would constitute unreasonably small capital.
Stock Exchange shall have the meaning set forth in Section 3.38.
Subsidiary shall mean, as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the board of directors or other
managers of such corporation, limited liability company, partnership or other entity are at the
time owned, or the management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a
Subsidiary or to Subsidiaries in this Agreement shall refer to a Subsidiary or Subsidiaries of
any Credit Party.
Table Funded Mortgage Asset shall mean a Mortgage Asset which is pledged to the
Administrative Agent simultaneously with the origination or acquisition thereof, which origination
or acquisition, pursuant to a Borrowers request, is financed with the proceeds of a Revolving Loan
and paid directly to a title company or other settlement agent, in each case, approved in writing
by the Administrative Agent in its discretion, for disbursement to the parties entitled thereto in
connection with such origination or acquisition. A Mortgage Asset shall cease to be a Table Funded
Mortgage Asset after the Custodian has delivered a Trust Receipt (along with a completed Mortgage
Asset File Checklist attached thereto) to the Administrative Agent certifying its receipt of the
Mortgage Asset File therefor.
Table Funded Trust Receipt shall mean a Trust Receipt in the form of
Annex 2B to the Custodial Agreement.
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Tangible Net Worth shall mean net worth as determined in accordance with GAAP.
Target Reduced Principal Amount shall have the meaning set forth in Section 2.2(b)
(as set forth in the Fee Letter).
Taxes shall mean all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.
Term Loan shall have the meaning set forth in Section 2.2(a).
Term Loan Collateral shall mean the portion of the Pledged Mortgage Assets included
in the Collateral (including, without limitation, the portion of any Mixed Collateral with respect
to which Term Loan advances, if any, are calculated and determined) with respect to which advances
under the Term Loan (if any) are calculated and determined.
Term Loan Commitment shall mean, with respect to each Term Loan Lender, the
commitment of such Term Loan Lender to make its portion of the Term Loan in a principal amount
equal to such Term Loan Lenders Term Loan Commitment Percentage of the Term Loan Committed Amount.
Term Loan Commitment Percentage shall mean, for any Term Loan Lender, the percentage
identified as its Term Loan Commitment Percentage in its Lender Commitment Letter, or in the
Assignment and Assumption pursuant to which such Lender became a Lender hereunder, as such
percentage may be modified in connection with any assignment made in accordance with the provisions
of Section 10.6(c).
Term Loan Committed Amount shall have the meaning set forth in Section 2.2(a).
Term Loan Lender shall mean a Lender holding a Term Loan Commitment or a portion of
the outstanding Term Loan.
Term Loan Note or Term Loan Notes shall mean the first amended and
restated promissory notes of the Borrowers (if any) in favor of any of the Term Loan Lenders
evidencing the portion of the Term Loan provided by any such Term Loan Lender pursuant to
Section 2.2(a), individually or collectively, as appropriate, as such promissory notes may be
amended, modified, extended, restated, replaced, or supplemented from time to time.
Test Period shall mean the immediately preceding calendar quarter.
Total Assets shall mean Total assets of ART and its Consolidated Subsidiaries,
determined in accordance with GAAP.
Total ESH Release Amount: The aggregate ESH Release Amounts for all ESH Allocated
Assets, which cumulative amount is equal to $15,000,000. For purposes hereof, so long as (a) no
Underlying Mortgaged Properties for the related Pledged Mortgage Asset are being released in
connection with the related payment, prepayment or reduction, (b) the related Pledged Mortgage
Asset is not a Foreclosed Mortgage Asset or REO Property and (c) no Default or Event of Default has
occurred and is continuing, the first dollars received on or after the Restatement Date with
respect to an ESH Allocated Asset will be applied to the ESH Release Amount, or, if (x) any
Underlying Mortgaged Properties for the related Pledged Mortgage Asset are being released in
connection with the related payment, prepayment or reduction, (y) the related Pledged Mortgage
Asset is not a Foreclosed Mortgage
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Asset or REO Property and (z) no Default or Event of Default has occurred and is continuing, the
dollars received on or after the Restatement Date with respect to an ESH Allocated Asset will be
applied, on a pro rata basis, to (i) the Allocated Term Loan Amount that is unrelated to the ESH
Release Amount and (ii) that portion of the Allocated Term Loan Amount that is ESH Release Amount;
provided, that with respect to an ESH Allocated Asset that becomes REO Property, any
amounts received in addition to payments required pursuant to Section 2.5(b)(viii) hereof shall be
applied toward the ESH Release Amount for such ESH Allocated Asset. In all other circumstances,
dollars received on or after the Restatement Date with respect to an ESH Allocated Asset will be
applied to the ESH Release Amount last.
Total Liabilities shall mean all Indebtedness of any Person (without duplication)
and all of such Persons Consolidated Subsidiaries determined on a consolidated basis.
Tranche shall mean the collective reference to (a) LIBOR Rate Loans whose Interest
Periods begin and end on the same day and (b) Alternate Base Rate Loans made on the same day.
Transactions shall mean the closing of this Agreement, the other Credit Documents
and the other transactions contemplated hereby to occur in connection with such closing (including,
without limitation, the initial borrowings under the Credit Documents and the payment of fees and
expenses in connection with all of the foregoing).
Transfer Effective Date shall have the meaning set forth in each Assignment and
Assumption.
Trust Preferred Debt shall mean (a) the existing indebtedness of ART and its
Consolidated Subsidiaries under any securities and guarantees issued by them in any debt securities
transaction related to any of the indentures identified in clause (a) of the definition of
Eligible Subordinated Debt and (b) any future indebtedness of ART and its Consolidated
Subsidiaries in connection with any debt securities transaction for which the related indenture (i)
has subordination provisions substantially the same as those in the indentures identified in
clause (a) of the definition of Eligible Subordinated Debt, (ii) has enforceable subordination
provisions, and (iii) has a maturity date no earlier than the date that is six (6) months following
the Maturity Date.
Trust Receipt shall have the meaning set forth in the Custodial Agreement.
Type shall mean, as to any Loan, its nature as an Alternate Base Rate Loan or LIBOR
Rate Loan, as the case may be.
UCC shall mean the Uniform Commercial Code from time to time in effect in any
applicable jurisdiction.
Underlying Mortgaged Property shall mean (a) in the case of a Whole Loan, the
Mortgaged Property securing the Whole Loan, (b) in the case of a Junior Interest, the Mortgaged
Property securing such Junior Interest (if the Junior Interest is of the type described in
clause (b) of the definition thereof), or the Mortgaged Property securing the mortgage loan in
which such Junior Interest represents a participation (if the Junior Interest is of the type
described in clause (a) of the definition thereof), (c) in the case of a Mezzanine Loan or a Junior
Interest in a Mezzanine Loan, the Mortgaged Property that is owned directly or indirectly by the
Person the Equity Interests of which are pledged as collateral security for such Mezzanine Loan,
(d) in the case of a Bridge Loan, a Condominium Loan or a Land Loan, depending on such Bridge
Loans, a Condominium Loans or a Land Loans classification as a Whole Loan, Junior Interest or
Mezzanine Loan, the Underlying Mortgaged Property for the Whole Loan, Junior Loan or Mezzanine
Loan, as applicable, (e) in the case of a Preferred Equity Interest, the Mortgaged
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Property that is owned directly or indirectly by the Preferred Equity Grantor and (f) in the
case of an Equity Asset, the Mortgaged Property that is owned directly or indirectly by the Equity
Asset Grantor.
Underwriting Package shall mean, any internal document prepared by the applicable
Borrower for its evaluation of a Mortgage Asset, to include at a minimum the data required in the
relevant Confirmation. In addition, with respect to each Mortgage Asset, the Underwriting Package
shall include, to the extent applicable, (a) a copy of the appraisal, (b) the current rent roll,
(c) a minimum of two (2) years of property level financial statements to the extent available, (d)
the current financial statement of the Obligor on the Commercial Real Estate Loan, (e) the complete
Mortgage Asset File, (f) any financial analysis, site inspection, market studies and any other
diligence conducted by a Borrower, and (g) such further documents or information as the
Administrative Agent may request. With respect to Bridge Loans and any other Mortgage Asset with
construction, the Underwriting Package shall also include the Construction Draw Deliveries for each
Extension of Credit.
Voting Interests shall mean, with respect to any Person, Equity Interests issued by
such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote
for the election of directors (or persons performing similar functions) of such Person, even though
the right so to vote has been suspended by the happening of such a contingency.
Wachovia shall mean Wachovia Bank, National Association, a national banking
association, together with its successors and/or assigns.
Wachovia Assets shall mean, any Mortgage Asset issued, extended or originated by
Wachovia Corporation or an Affiliate of Wachovia Corporation.
Wachovia Derivatives Contract shall mean any Derivatives Contract between a Credit
Party and a Derivatives Contract Provider, as amended, modified, extended, restated, replaced, or
supplemented from time to time.
Warrant Agreements shall mean the three (3) separate Common Stock Purchase Warrants,
issued on the Restatement Date, by ART for the benefit of Wachovia, as amended, restated, modified
or supplemented from time to time.
Warehouse Lenders Release Letter shall mean a letter in the form of Exhibit
1.1(l) hereto, duly executed by the applicable warehouse lender, as such agreement is amended,
modified, restated, replaced, waived, substituted, supplemented or extended from time to time.
Whole Loan shall mean a performing Commercial Real Estate whole loan secured by a
first priority security interest in stabilized and non-transitional Underlying Mortgaged Property.
Working Capital Facility shall mean that certain facility entered into and evidenced
by, among other agreements, the Working Capital Facility Loan Agreement, as such agreements are
amended, modified, restated, replaced, waived, substituted, supplemented or extended from time to
time.
Working Capital Facility Loan Agreement shall mean that certain First Amended and
Restated Revolving Loan Agreement, dated as of June 8, 2009, among Wachovia, Arbor Realty Trust,
Inc., Arbor Realty GPOP, Inc., Arbor Realty LPOP, Inc., Arbor Realty Limited Partnership, Arbor
Realty SR, Inc., Arbor Realty Collateral Management, LLC, each other party that becomes a party
thereto, each of the guarantors that becomes a party thereto, and each other lender that becomes a
party thereto, as such agreement is amended, modified, restated, replaced, waived, substituted,
supplemented or extended from time to time.
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Section 1.2 Other Definitional Provisions.
The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words include, includes and including shall be
deemed to be followed by the phrase without limitation. The word will shall be construed to
have the same meaning and effect as the word shall. Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any reference herein to any Person shall be
construed to include such Persons successors and assigns, (c) the words herein, hereof and
hereunder, and words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement, (e) any reference to any law or regulation herein shall,
unless otherwise specified, refer to such law or regulation as amended, modified or supplemented
from time to time and (f) the word asset shall be construed to have the same meaning and effect
as Property.
Section 1.3 Accounting Terms.
Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP applied on a basis consistent with
the most recent audited Consolidated financial statements of the Borrowers and the Guarantors
delivered to the Lenders; provided that, if the Borrowers or the Guarantors shall notify
the Administrative Agent that they wish to amend any definitions or covenant incorporated in
Section 5.9 to eliminate the effect of any change in GAAP on the operation of any such definition
or provision and the Required Lenders consent to such amendment, then the Borrowers and the
Guarantors compliance with such provisions shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either such notice is
withdrawn or such definition or provision is amended in a manner satisfactory to the Borrowers, the
Guarantors, the Administrative Agent and the Required Lenders.
The Borrowers and the Guarantors shall deliver to the Administrative Agent and each Lender at
the same time as the delivery of any annual or quarterly financial statements given in accordance
with the provisions of Section 5.1, (a) a description in reasonable detail of any material change
in the application of accounting principles employed in the preparation of such financial
statements from those applied in the most recently preceding quarterly or annual financial
statements as to which no objection shall have been made in accordance with the provisions above
and (b) a reasonable estimate of the effect on the financial statements on account of such changes
in application.
Section 1.4 Time References.
Unless otherwise specified, all references herein to times of day shall be references to
Eastern time (daylight or standard, as applicable). Reference to day or days without further
qualification means calendar days. Unless otherwise stated in this Agreement, in the computation
of a period of time from a specified date to a later specified date, the word from means from
and including and the words to and until each mean to but excluding.
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Section 1.5 Execution of Documents.
Unless otherwise specified, all Credit Documents and all other certificates executed in
connection therewith must be signed by a Responsible Officer. Unless otherwise expressly provided
in this Agreement, reference to any notice, request, approval, consent or determination provided
for, permitted or required under the terms of the Credit Documents with respect to the Credit
Parties, the Administrative Agent and the Lenders means, in order for such notice, request,
approval, consent or determination to be effective hereunder, such notice, request, approval or
consent must be in writing.
Section 1.6 UCC Terms.
All terms used in Articles 8 and 9 of the UCC in the State of New York, and used but not
specifically defined herein, are used herein as defined in such Article 8 and 9.
Section 1.7 References to Discretion.
Reference herein or in any Credit Document to the Administrative Agents or a Lenders
discretion shall mean, unless otherwise stated herein or therein, the Administrative Agents or a
Lenders (as the case may be) sole and absolute discretion, and the exercise of such discretion
shall be final and conclusive. In addition, whenever the Administrative Agent or a Lender has a
decision or right of determination or request, exercises any right given to it to agree, disagree,
accept, consent, grant waivers, take action or no action or to approve or disapprove, or any
arrangement or term is to be satisfactory or acceptable to or approved by (or any similar language
or terms) the Administrative Agent or a Lender (as the case may be), the decision of the
Administrative Agent or a Lender with respect thereto shall be in the sole and absolute discretion
of the Administrative Agent or the Lender (as the case may be), and such decision shall be final
and conclusive, except as may be otherwise specifically provided herein.
Section 1.8 References to Payment.
Unless otherwise specifically provided herein, all payments due by any Credit Party to the
Administrative Agent or the Lenders shall be due by 3:00 p.m. on the date due.
ARTICLE II
THE LOANS; AMOUNT AND TERMS
Section 2.1 Future Funding Loans.
(a) Revolving Commitment. During the Commitment Period, subject to the terms
and conditions hereof, each Revolving Lender severally, but not jointly, agrees to make
credit loans in Dollars (Revolving Loans) to the Borrowers from time to time in an
aggregate principal amount of up to THIRTY FIVE MILLION TWO HUNDRED SEVENTY THOUSAND NINE
HUNDRED NINETY FIVE DOLLARS ($35,270,995.00) (as such aggregate maximum amount may
be reduced from time to time as provided in Section 2.4, the Revolving Committed
Amount); provided, however, that (i) with regard to each Revolving
Lender individually, the sum of such Revolving Lenders Revolving Commitment Percentage of
the aggregate principal amount of outstanding Revolving Loans shall not exceed such
Revolving Lenders Revolving Commitment and (ii) with regard to the Revolving Lenders
collectively, the sum of the aggregate principal amount of outstanding Revolving Loans shall
not exceed the Revolving Committed Amount then in effect. No Revolving Loan shall be made
by any Revolving Lender if (i) such
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Revolving Loan and the Revolving Loan Collateral therefor are not approved by the
Administrative Agent in its discretion, (ii) before or after giving effect to such Revolving
Loan, the Availability is or would be negative and (iii) the conditions to Extensions of
Credit in Section 4.2 are not satisfied. Revolving Loans may consist of Alternate Base Rate
Loans or LIBOR Rate Loans, or a combination thereof, as the Borrowers may request, and may
be repaid in accordance with the provisions hereof; provided, however, the
Revolving Loans made on the Restatement Date or any of the three (3) Business Days following
the Restatement Date, may only consist of Alternate Base Rate Loans unless the Borrowers
deliver a funding indemnity letter, substantially in the form of Exhibit 2.1(a),
reasonably acceptable to the Administrative Agent not less than three (3) Business Days
prior to the Restatement Date. LIBOR Rate Loans shall be made by each Revolving Lender at
its LIBOR Lending Office and Alternate Base Rate Loans at its Domestic Lending Office.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing.
(1) The Borrowers may request Revolving Loans for the purpose of
financing unfunded future funding obligations under Mixed Collateral set
forth on Schedule 2.1(a) that are Eligible Assets and for no other
purpose. The Borrowers shall request a Revolving Loan borrowing by
delivering a written Notice of Borrowing (or telephone notice promptly
confirmed in writing by delivery of a written Notice of Borrowing, which
delivery may be by Electronic Transmission) to the Administrative Agent
along with a Compliance Certificate, Borrower Asset Schedule and
Underwriting Package for the related Eligible Asset(s) to be financed not
later than (A) twelve (12) Business Days for Non-Wachovia Assets and (B)
seven (7) Business Days for Wachovia Assets from the delivery of the
applicable Notice of Borrowing. Each such Notice of Borrowing shall be
irrevocable and shall specify (A) that a Revolving Loan is requested,
(B) the date of the requested borrowing (which shall be a Business Day),
(C) the aggregate principal amount to be borrowed, (D) whether the borrowing
shall be comprised of Alternate Base Rate Loans, LIBOR Rate Loans or a
combination thereof, and if LIBOR Rate Loans are requested, the Interest
Period(s) therefor, (E) the applicable Borrower and the Eligible Asset to be
financed and (F) a calculation of Availability. If the Borrowers shall fail
to specify in any such Notice of Borrowing (1) an applicable Interest Period
in the case of a LIBOR Rate Loan, then such notice shall be deemed to be a
request for an Interest Period of one month, or (2) the Type of Revolving
Loan requested, then such notice shall be deemed to be a request for a
one-month LIBOR Rate Loan hereunder.
(2) The Administrative Agent shall notify the applicable Borrower in
writing of the Administrative Agents tentative approval (and the proposed
Allocated Revolving Loan Amount for each Eligible Asset) or final
disapproval of each proposed Eligible Asset within, (i) in the case of
NonWachovia Assets, ten (10) Business Days (or such greater time as the
Administrative Agent determines in its discretion for multiple assets or
assets with multiple Mortgaged Properties) and, (ii) in the case of Wachovia
Assets, five (5) Business Days (or such greater time as the Administrative
Agent determines in its discretion for multiple assets or assets with
multiple Mortgaged Properties) after its receipt of the Notice of Borrowing,
the Borrower Asset Schedule, the Compliance Certificate, the complete
Underwriting Package and any supplemental requests
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(requested orally or in writing) relating to such proposed Eligible
Asset. Unless the Administrative Agent notifies the Borrowers in writing of
the Administrative Agents approval of such proposed Eligible Asset within
the applicable period, the Administrative Agent shall be deemed not to have
approved such proposed Eligible Asset. The Administrative Agent in its
discretion may waive, shorten or increase any of the applicable time periods
for the review of proposed Eligible Assets or the delivery of documents.
(3) Provided that the Administrative Agent on behalf of the Secured
Parties has tentatively agreed to finance the Eligible Asset described in
the Notice of Borrowing and the proposed Allocated Revolving Loan Amount is
acceptable to the applicable Borrower, the applicable Borrower shall forward
to the Administrative Agent, via Electronic Transmission, at least two (2)
Business Days prior to the requested Borrowing Date (which must be received
by the Administrative Agent no later than 10:00 a.m. two (2) Business Days
prior to the requested Borrowing Date) an executed confirmation for each
Eligible Asset, substantially in the form of Exhibit 2.1(b) attached
hereto (a Confirmation). The Confirmation shall specify the
Allocated Revolving Loan Amount for the related Eligible Asset and any
additional terms or conditions of the related Revolving Loan not
inconsistent with this Agreement. The Confirmation shall be irrevocable.
The delivery of the Confirmation to the Administrative Agent shall be deemed
to be a certification by the applicable Borrower that, among other things,
all conditions precedent to such Revolving Loan set forth in Articles II and
IV have been satisfied (except the Administrative Agents consent). Unless
otherwise agreed in writing, upon receipt of the Confirmation, the
Administrative Agent, on behalf of the Secured Parties, may, in the
Administrative Agents discretion, agree to enter into the requested
Revolving Loan with respect to an Eligible Asset, and such agreement shall
be evidenced by the Administrative Agents signature on the Confirmation.
Any Confirmation executed by the Administrative Agent shall be deemed to
have been received by the applicable Borrower on the date actually received
by the applicable Borrower.
(4) Upon receipt of the Confirmation executed by the Administrative
Agent, (i) the applicable Borrower shall release or cause to be released to
the Custodian in accordance with the Custodial Agreement (1) in the case of
a NonTable Funded Mortgage Asset, no later than 3:00 p.m. two (2) Business
Days prior to the requested Borrowing Date, and (2) in the case of a Table
Funded Mortgage Asset, no later than 1:00 p.m. three (3) Business Days
following the applicable Borrowing Date, the Mortgage Asset File pertaining
to each Eligible Asset to be financed by the Revolving Lenders, and (ii) the
applicable Borrower shall deliver to the Custodian, in connection with the
applicable delivery under clause (i) above, a Custodial Identification
Certificate and a Mortgage Asset File Checklist required under Section 3.2
of the Custodial Agreement.
(5) Each Confirmation, together with this Agreement, shall constitute
conclusive evidence of the terms agreed between the Administrative Agent and
the applicable Borrower with respect to the Revolving Loan to which the
Confirmation relates, and the applicable Borrowers acceptance of the
related proceeds shall constitute the applicable Borrowers agreement to the
terms of such Confirmation. It is the intention of the parties that each
Confirmation shall not be separate from this Agreement but shall be made a
part of this Agreement.
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To the extent of a conflict between this Agreement and the related
Confirmation, the Confirmation shall control.
(6) Pursuant to the Custodial Agreement, the Custodian shall deliver to
the Administrative Agent and the applicable Borrower by 11:00 a.m. on the
Borrowing Date for each NonTable Funded Mortgage Asset a Trust Receipt
(along with a completed Mortgage Asset File Checklist attached thereto) and
an Asset Schedule and Exception Report relating to the Basic Mortgage Asset
Documents with respect to the Eligible Assets that the applicable Borrower
has requested the Revolving Lenders to finance on such Borrowing Date. With
respect to each Table Funded Mortgage Asset, the applicable Borrower shall
cause the Bailee to deliver to the Custodian with a copy to the
Administrative Agent no later than 10:00 a.m. on the Borrowing Date by
facsimile the related Basic Mortgage Asset Documents, the insured closing
letter (if any), the escrow instructions (if any), a fully executed Bailee
Agreement, a Bailees Trust Receipt issued by the Bailee thereunder and such
other evidence satisfactory to the Administrative Agent in its discretion
that all documents necessary to effect a pledge of the related Eligible
Asset and the related Collateral to the Administrative Agent on behalf of
the Secured Parties have been delivered to Bailee. With respect to each
Table Funded Mortgage Asset, the Custodian shall deliver to the
Administrative Agent a Table Funded Trust Receipt no later than 1:00 p.m. on
the Borrowing Date, which documents shall be acceptable to the
Administrative Agent in its discretion. In the case of a Table Funded
Mortgage Asset, on the second (2nd) Business Day following the Custodians
receipt of the related Mortgage Loan Documents comprising the Mortgage Asset
File, the Custodian shall deliver to the Administrative Agent a Trust
Receipt (along with a completed Mortgage Asset File Checklist attached
thereto) certifying its receipt of the documents required to be delivered
pursuant to the Custodial Agreement, together with an Asset Schedule and
Exception Report relating to the Basic Mortgage Asset Documents, with any
Exceptions identified by the Custodian as of the date and time of delivery
of such Asset Schedule and Exception Report. The Custodian shall deliver to
the Administrative Agent an Asset Schedule and Exception Report relating to
all of the Mortgage Loan Documents within five (5) Business Days of its
receipt of the related Mortgage Asset Files.
(7) Once the Confirmation is executed by the Administrative Agent, the
Administrative Agent shall give notice to each Revolving Lender at least one
(1) Business Day prior to the Borrowing Date of each such Revolving Lenders
share thereof.
(ii) Minimum Amounts. Each Revolving Loan that is made as an Alternate
Base Rate Loan shall be in a minimum aggregate amount of $500,000 and in integral
multiples of $10,000 in excess thereof (or the remaining amount of the Revolving
Committed Amount, if less). Each Revolving Loan that is made as a LIBOR Rate Loan
shall be in a minimum aggregate amount of $500,000 and in integral multiples of
$10,000 in excess thereof (or the remaining amount of the Revolving Committed
Amount, if less).
(iii) Advances. Each Revolving Lender will make its Revolving
Commitment Percentage of each Revolving Loan borrowing available to the
Administrative Agent for the account of the applicable Borrower at the office of the
Administrative Agent specified in Section 10.2, or at such other office as the
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Administrative Agent may designate in writing, by 1:00 p.m. on the Borrowing
Date, in Dollars and in funds immediately available to the Administrative Agent.
The Administrative Agent shall use reasonable best efforts to make such borrowing
available to the applicable Borrower by 3:30 p.m., but in any case, no later than
5:00 p.m. on the Borrowing Date by the Administrative Agent by crediting the account
of the applicable Borrower on the books of such office (or such other account that
the Borrowers may designate in writing to the Administrative Agent) with the
aggregate of the amounts made available to the Administrative Agent by the Revolving
Lenders and in like funds as received by the Administrative Agent.
(c) Repayment The credit facility evidenced by this Section 2.1 is solely for
the purpose of funding future fundings under Mixed Collateral. Accordingly, notwithstanding
anything contained in any of the Credit Documents to the contrary, the Borrowers will not
have the right to reborrow any amounts repaid to the Lenders under this Agreement and the
other Credit Documents. The principal amount of all Revolving Loans shall be due and
payable in full on the Maturity Date, unless accelerated sooner pursuant to Section 7.2.
The Borrowers shall have the right to repay Revolving Loans in whole or in part from time to
time; provided, however; that each partial repayment of a Revolving Loan
shall be in a minimum principal amount of $1,000,000 and integral multiples of $100,000 in
excess thereof (or the remaining outstanding principal amount). Such repayment will be
applied to the outstanding Revolving Loans and Revolving Loan Collateral in such manner as
the Borrowers shall direct.
(d) Interest. Subject to the provisions of Section 2.6, Revolving Loans shall
bear interest as follows:
(i) Alternate Base Rate Loans. During such periods as any Revolving
Loans shall be comprised of Alternate Base Rate Loans, each such Alternate Base Rate
Loan shall bear interest at a per annum rate equal to the sum of the Alternate Base
Rate plus the Applicable Percentage; and
(ii) LIBOR Rate Loans. During such periods as Revolving Loans shall be
comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a
per annum rate equal to the sum of the LIBOR Rate plus the Applicable
Percentage.
Interest on Revolving Loans shall be payable in arrears on each Payment Date.
(e) [Reserved].
(f) Revolving Notes; Covenant to Pay. The Borrowers obligation to pay each
Revolving Lender shall be evidenced by this Agreement and, upon such Revolving Lenders
request, by a duly executed promissory note of the Borrowers to such Revolving Lender in
substantially the form of Exhibit 2.1(f). The Borrowers covenant and agree to pay
the Revolving Loans in accordance with the terms of this Agreement.
(g) [Reserved].
(h) Confirmations. Notwithstanding anything to the contrary in this Section
2.1 and notwithstanding any oral or verbal approval of an Extension of Credit by the
Administrative Agent, no Extension of Credit shall be deemed approved until a Confirmation
or revised Confirmation, as applicable, has been executed by the Administrative Agent. Each
pledge of a Mortgage Asset, regardless of whether a Loan is made to the Borrowers in
connection therewith,
45
shall be evidenced by a Confirmation. Each Confirmation, together with this Agreement,
shall constitute conclusive evidence of the terms agreed between the Administrative Agent
and the applicable Borrower with respect to the Revolving Loan to which the Confirmation
relates, and the applicable Borrowers acceptance of the related proceeds shall constitute
the applicable Borrowers agreement to the terms of such Confirmation. It is the intention
of the parties that each Confirmation shall not be separate from this Agreement but shall be
made a part of this Agreement. To the extent of a conflict between this Agreement and the
related Confirmation, the Confirmation shall control.
Section 2.2 Term Loan.
(a) Term Loan. Subject to the terms and conditions hereof (including, without
limitation, Sections 4.1 and 4.2 of this Agreement) and in reliance upon the representations
and warranties set forth herein, each Term Loan Lender severally, but not jointly, agrees to
make available to the Borrowers (through the Administrative Agent) on the Funding Date such
Term Loan Lenders Term Loan Commitment Percentage of a term loan in Dollars (the Term
Loan) in the aggregate principal amount of THREE HUNDRED SIXTEEN MILLION SEVEN HUNDRED
TWENTY NINE THOUSAND FIVE DOLLARS ($316,729,005.00), which amount shall equal the aggregate
Allocated Term Loan Amounts approved by the Administrative Agent in its discretion for the
Eligible Assets approved by the Administrative Agent in its discretion and included in the
Term Loan Collateral (the Term Loan Committed Amount) for the purposes hereinafter
set forth. The Term Loan Collateral and the Allocated Term Loan Amount for each item of
Term Loan Collateral shall be evidenced by Confirmations executed by the applicable Borrower
and the Administrative Agent. Upon receipt by the Administrative Agent of the proceeds of
the Term Loan, such proceeds will then be made available to the Borrowers by the
Administrative Agent by crediting the account of the Borrowers on the books of the office of
the Administrative Agent specified in Section 10.2, or at such other office as the
Administrative Agent may designate in writing, with the aggregate of such proceeds made
available to the Administrative Agent by the Term Loan Lenders and in like funds as received
by the Administrative Agent (or by crediting such other account(s) as directed by the
Borrowers). The Term Loan may consist of Alternate Base Rate Loans or LIBOR Rate Loans, or
a combination thereof, as the Borrowers may request; provided, however,
that the Term Loan made on the Restatement Date or any of the three (3) Business Days
following the Restatement Date may only consist of Alternate Base Rate Loans unless the
Borrowers deliver a funding indemnity letter, substantially in the form of
Exhibit 2.1(a), reasonably acceptable to the Administrative Agent not less than
three (3) Business Days prior to the Restatement Date. LIBOR Rate Loans shall be made by
each Term Loan Lender at its LIBOR Lending Office and Alternate Base Rate Loans at its
Domestic Lending Office.
(b) Repayment of Term Loan. The terms and provisions governing repayment of
the Term Loan are set forth in the Fee Letter and are hereby incorporated by reference. All
outstandings under the Term Loan shall be due and payable in full on the Maturity Date
unless accelerated sooner pursuant to Section 7.2. Amounts repaid or prepaid on the Term
Loan may not be reborrowed. Any repayment hereunder will be applied to the outstanding Term
Loans in accordance with Section 2.5(c)(i)(A) until the outstanding principal amount of the
Term Loans has been paid in full.
(c) Interest on the Term Loan. Subject to the provisions of Section 2.6, the
Term Loan shall bear interest as follows:
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(i) Alternate Base Rate Loans. During such periods as the Term Loan
shall be comprised of Alternate Base Rate Loans, each such Alternate Base Rate Loan
shall bear interest at a per annum rate equal to the sum of the Alternate Base Rate
plus the Applicable Percentage; and
(ii) LIBOR Rate Loans. During such periods as the Term Loan shall be
comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a
per annum rate equal to the sum of the LIBOR Rate plus the Applicable
Percentage.
Interest on the Term Loan shall be payable in arrears on each Payment Date.
(d) Term Loan Notes; Covenant to Pay. The Borrowers obligation to pay each
Term Loan Lender shall be evidenced by this Agreement and, upon such Term Loan Lenders
request, by a duly executed promissory note of the Borrowers to such Term Loan Lender in
substantially the form of Exhibit 2.2(d). The Borrowers covenant and agree to pay
the Term Loan in accordance with the terms of this Agreement.
(e) [Reserved].
(f) Confirmations. Notwithstanding anything to the contrary in this Section 2.2
and notwithstanding any oral or verbal approval of an Extension of Credit by the
Administrative Agent, no Extension of Credit shall be deemed approved until a Confirmation
or revised Confirmation, as applicable, has been executed by the Administrative Agent.
Each pledge of a Mortgage Asset, regardless of whether a Loan is made to the Borrowers in
connection therewith, shall be evidenced by a Confirmation. Each Confirmation, together
with this Agreement, shall constitute conclusive evidence of the terms agreed between the
Administrative Agent and the applicable Borrower with respect to the Term Loan to which the
Confirmation relates, and the applicable Borrowers acceptance of the related proceeds shall
constitute the applicable Borrowers agreement to the terms of such Confirmation. It is the
intention of the parties that each Confirmation shall not be separate from this Agreement
but shall be made a part of this Agreement. To the extent of a conflict between this
Agreement and the related Confirmation, the Confirmation shall control.
Section 2.3 Fees.
The Borrowers shall pay all fees provided for in the Fee Letter to the Administrative Agent
for distribution to the Lenders and the Administrative Agent in accordance therewith.
Section 2.4 Commitment Reductions.
(a) Voluntary Reductions. The Borrowers shall have the right to terminate or
permanently reduce the unused portion of the Revolving Committed Amount at any time or from
time to time upon not less than five (5) Business Days prior written notice to the
Administrative Agent (which shall notify the Lenders thereof as soon as practicable) of each
such termination or reduction, which notice shall specify the effective date thereof and the
amount of any such reduction which shall be in a minimum amount of $1,000,000 or a whole
multiple of $1,000,000 in excess thereof and shall be irrevocable and effective upon receipt
by the Administrative Agent; provided that no such reduction or termination shall be
permitted if after giving effect thereto, and to any prepayments of the Revolving Loans made
on the effective date thereof, (i) the sum of the aggregate principal amount of outstanding
Revolving Loans would exceed the Revolving Committed Amount then in effect or (ii) the
Availability would be negative.
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(b) Maturity Date. The Commitments shall automatically terminate on the
Maturity Date unless accelerated sooner pursuant to Section 7.2 hereof.
Section 2.5 Prepayments.
(a) Optional Prepayments. The Borrowers shall have the right to prepay the
Term Loans and the Revolving Loans in whole or in part from time to time; provided,
however, that each partial prepayment of a Term Loan shall be in a minimum principal
amount of $500,000 (or the remaining outstanding principal amount). The Borrowers shall
give three Business Days irrevocable notice of prepayment in the case of LIBOR Rate Loans
and same-day irrevocable notice on any Business Day in the case of Alternate Base Rate
Loans, to the Administrative Agent (which shall notify the Lenders thereof as soon as
practicable). To the extent that the Borrowers elect to prepay the Term Loans, amounts
prepaid under this Section shall be applied (i) to the extent the outstanding principal
amount under the Term Loans, both before and after giving effect to such optional
prepayment, is greater than $150,000,000 and there are more than eight (8) Pledged Mortgage
Assets, as the Borrowers may direct and (ii) to the extent the outstanding principal amount
under the Term Loans, either before or after giving effect to such optional prepayment, is
less than or equal to $150,000,000 or there are less than or equal to eight (8) Pledged
Mortgage Assets, as the Administrative Agent may elect in its reasonable discretion. Within
the foregoing parameters, prepayments under this Section shall be applied first to Alternate
Base Rate Loans and then to LIBOR Rate Loans in direct order of Interest Period maturities.
All prepayments under this Section shall be subject to Section 2.13, but otherwise without
premium or penalty. Interest on the principal amount prepaid shall be payable on the next
occurring Payment Date that would have occurred had such loan not been prepaid or, at the
request of the Administrative Agent, interest on the principal amount prepaid shall be
payable on any date that a prepayment is made hereunder through the date of prepayment.
Revolving Loans may be prepaid in accordance with the terms of Section 2.1(c) of this
Agreement. Prepayments of the Loans are subject to the requirements of Section 2.5(b)(vi)
of this Agreement and the Fee Letter.
(b) Mandatory Prepayments.
(i) Availability and Revolving Committed Amount.
(A) Availability. The terms and provisions governing mandatory
prepayments in connection with Availability are set forth in the Fee Letter
and are hereby incorporated by reference.
(B) Revolving Loan Committed Amount. If at any time after the
Restatement Date, the sum of the aggregate principal amount of outstanding
Revolving Loans shall exceed the Revolving Committed Amount, the Borrowers
shall immediately prepay the Revolving Loans in an amount sufficient to
eliminate such excess.
(ii) Equity Issuance. The terms and provisions governing mandatory
prepayments in connection with Equity Issuances are set forth in the Fee Letter and
are hereby incorporated by reference.
(iii) Extraordinary Receipts. Immediately, and in any event, within
one (1) Business Day upon receipt by any Credit Party or any of its Subsidiaries of
proceeds
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from any Extraordinary Receipt, the Borrowers shall prepay the Term Loans
and/or the Revolving Loans, as applicable, in an aggregate principal amount equal to
one hundred percent (100%) of such Extraordinary Receipt to be applied to the Term
Loan and/or the Revolving Loans depending on whether the Extraordinary Receipt is
from Term Loan Collateral or Revolving Loan Collateral, or both.
(iv) Reduction of Asset Value Prepayment. The terms and provisions
governing mandatory prepayments in connection with a reduction of Asset Value are
set forth in the Fee Letter and are hereby incorporated by reference.
(v) Defaulted Collateral Prepayment. The terms and provisions
governing mandatory prepayments in connection with a Defaulted Collateral Prepayment
are set forth in the Fee Letter and are hereby incorporated by reference.
(vi) Collateral Release Prepayment. The terms and provisions governing
mandatory prepayments in connection with repayments, prepayments and/or reductions
of the Loans and/or under the Collateral and the releases of Collateral are set
forth in the Fee Letter and are hereby incorporated by reference.
(vii) Prime Distribution Prepayment. To the extent there are annual
dividends or distributions in excess of $10,000,000 from the Prime Pledged Mortgage
Asset, the Borrowers shall prepay the Term Loans in an aggregate principal amount
equal to one hundred percent (100%) of all such excess dividends or distributions.
Such amounts shall be applied first to the Working Capital Facility in accordance
with Section 2.2(a)(viii) thereof and then to the Obligations under this Agreement
in such manner as the Administrative Agent may determine in its discretion.
(viii) REO Property and Foreclosed Mortgage Asset Prepayments. The
terms and provisions governing mandatory prepayments in connection with REO Property
and Foreclosed Mortgage Assets are set forth in the Fee Letter and are hereby
incorporated by reference.
(c) Application of Mandatory Prepayments.
(i) Unless otherwise set forth above or in the Fee Letter, all amounts
required to be paid pursuant to this Section shall be applied as follows:
(A) first, to the outstanding Term Loans and Term Loan Collateral, as the
Administrative Agent may elect in its discretion, until the outstanding
principal amount of the Term Loans has been paid and full; and (B) second,
to the outstanding Revolving Loans and Revolving Loan Collateral in such
manner as the Administrative Agent may elect in its discretion until the
outstanding principal amount of the Revolving Loans has been paid in full.
Within the parameters of the applications set forth above, prepayments shall
be applied first to Alternate Base Rate Loans and then to LIBOR Rate Loans
in direct order of Interest Period maturities. All prepayments under this
Section shall be subject to Section 2.13 and be accompanied by interest on
the principal amount prepaid through the date of prepayment, but otherwise
without premium or penalty; and
(ii) All amounts required to be paid pursuant to this Section shall be
deposited in the Collection Account and shall be accompanied by any
applicable
49
costs incurred pursuant to Section 2.13 (if any) and any applicable interest
payments.
(d) Junior/Senior Positions. Notwithstanding anything contained in this
Agreement to the contrary, in the event the Borrowers pledge to the Administrative Agent
(whether simultaneously or on separate occasions) the senior and junior positions with
respect to certain Commercial Real Estate and the Loans with respect to the Eligible
Asset(s) that are senior in priority have been repaid or prepaid by the Borrowers or the
related Obligors, (i) the Asset Value of the juniormost Eligible Asset(s) shall be reduced
to zero (0) and (ii) the Administrative Agent shall not release its Lien on the Eligible
Asset(s) (including any Income related thereto) that are senior in priority to the
juniormost Eligible Asset(s) that the Administrative Agent continues to have a Lien on
(regardless of whether the outstanding Allocated Revolving Loan Amount or Allocated Term
Loan Amount, as applicable, and related amounts due have been paid in full) until the
juniormost Eligible Asset(s) is repaid or prepaid and the outstanding Allocated Revolving
Loan Amount or Allocated Term Loan Amount, as applicable, for the junior-most Eligible
Asset plus any accrued and unpaid interest and any related breakage costs under Section 2.3
are paid in full; provided, however, if (A) the Loans with respect to the
senior position are repaid due to repayments or prepayments by the related Obligor, (B) the
Administrative Agent has reevaluated the remaining juniormost Eligible Asset(s), including,
without limitation, a reassessment and possible redetermination of the Asset Value of such
Eligible Asset, and, based on the reevaluation, the Administrative Agent is satisfied in its
discretion with continuing to hold the juniormost Eligible Asset(s) as Collateral as is or
upon certain specified conditions, including, without limitation, assigning a new Asset
Value to such Eligible Asset, which approval shall be in writing to be effective, and
(C) there are no Events of Default or Defaults outstanding (each to be evidenced by an
Officers Certificate), then the Administrative Agent will consent in writing to and effect
the release of the senior Eligible Asset from the Collateral.
Section 2.6 Default Rate and Payment Dates.
(a) If all or a portion of the principal amount of any Loan which is a LIBOR Rate Loan
shall not be paid when due or continued as a LIBOR Rate Loan in accordance with the
provisions of Section 2.7 (whether at the stated maturity, by acceleration or otherwise),
such overdue principal amount of such Loan shall be converted to an Alternate Base Rate Loan
at the end of the Interest Period applicable thereto.
(b) (i) If all or a portion of the principal amount of any LIBOR Rate Loan shall not be
paid when due, such overdue amount shall bear interest at a rate per annum which is equal to
the rate that would otherwise be applicable thereto plus 2%, until the end of the
Interest Period applicable thereto, and thereafter at a rate per annum which is equal to the
Alternate Base Rate plus the sum of the Applicable Percentage then in effect for
Alternate Base Rate Loans and 2% (the ABR Default Rate) or (ii) if any interest
payable on the principal amount of any Loan or any fee or other amount, including the
principal amount of any Alternate Base Rate Loan, payable hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise), such overdue amount
shall bear interest at a rate per annum which is equal to the ABR Default Rate, in each case
from the date of such non-payment until such amount is paid in full (after as well as before
judgment). Upon the occurrence, and during the continuance, of any other Event of Default
hereunder, at the option of the Required Lenders, the principal of and, to the extent
permitted by Requirements of Law, interest on the Loans and any other amounts owing
hereunder or under the other Credit Documents shall bear interest, payable on demand, at a
per annum rate which is (A) in the case of principal, the rate that would otherwise be
applicable
50
thereto plus 2% or (B) in the case of interest, fees or other amounts, the ABR
Default Rate (after as well as before judgment).
(c) Interest on each Loan shall be payable in arrears on each Payment Date;
provided that interest accruing pursuant to paragraph (b) of this Section shall be
payable from time to time on demand.
Section 2.7 Conversion Options.
(a) The Borrowers may, in the case of Revolving Loans and the Term Loan, elect from
time to time to convert Alternate Base Rate Loans to LIBOR Rate Loans or to continue LIBOR
Rate Loans by delivering a Notice of Conversion/Extension to the Administrative Agent at
least three Business Days prior to the proposed date of conversion or extension, as
applicable. In addition, the Borrowers may elect from time to time to convert all or any
portion of a LIBOR Rate Loan to an Alternate Base Rate Loan by giving the Administrative
Agent irrevocable written notice thereof by 11:00 a.m. one (1) Business Day prior to the
proposed date of conversion. If the date upon which an Alternate Base Rate Loan is to be
converted to a LIBOR Rate Loan is not a Business Day, then such conversion shall be made on
the next succeeding Business Day and during the period from such last day of an Interest
Period to such succeeding Business Day such Loan shall bear interest as if it were an
Alternate Base Rate Loan. LIBOR Rate Loans may only be converted to Alternate Base Rate
Loans on the last day of the applicable Interest Period. If the date upon which a LIBOR
Rate Loan is to be converted to an Alternate Base Rate Loan is not a Business Day, then such
conversion shall be made on the next succeeding Business Day and during the period from such
last day of an Interest Period to such succeeding Business Day such Loan shall bear interest
as if it were an Alternate Base Rate Loan. All or any part of outstanding Alternate Base
Rate Loans may be converted as provided herein; provided that (i) no Loan may be
converted into a LIBOR Rate Loan when any Default or Event of Default has occurred and is
continuing and (ii) partial conversions shall be in an aggregate principal amount of
$1,000,000 or a whole multiple of $100,000 in excess thereof. All or any part of
outstanding LIBOR Rate Loans may be converted as provided herein; provided that
partial conversions shall be in an aggregate principal amount of $1,000,000 or a whole
multiple of $100,000 in excess thereof.
(b) Any LIBOR Rate Loans may be continued as such upon the expiration of an Interest
Period with respect thereto by compliance by the Borrowers with the notice provisions
contained in Section 2.7(a); provided, that no LIBOR Rate Loan may be continued as
such when any Default or Event of Default has occurred and is continuing, in which case such
Loan shall be automatically converted to an Alternate Base Rate Loan at the end of the
applicable Interest Period with respect thereto. So long as no Default or Event of Default
has occurred and is continuing and all conditions set forth in Section 4.2 have been
satisfied and the Borrowers shall fail to give timely notice of an election to continue a
LIBOR Rate Loan, such LIBOR Rate Loans shall be automatically converted to a one-month LIBOR
Rate Loan at the end of the applicable Interest Period with respect thereto. To the extent
a Default or Event of Default has occurred and is continuing and the Borrowers shall fail to
give timely notice of an election to continue a LIBOR Rate Loan or the continuation of LIBOR
Rate Loans is not permitted hereunder, such LIBOR Rate Loans shall automatically be
converted to Alternate Base Rate Loans at the end of the applicable Interest Period with
respect thereto.
Section 2.8 Computation of Interest and Fees; Usury.
(a) Interest payable hereunder with respect to any Alternate Base Rate Loan based on
the Prime Rate shall be calculated on the basis of a year of 365 days (or 366 days, as
51
applicable) for the actual days elapsed. All other fees, interest and all other
amounts payable hereunder shall be calculated on the basis of a 360-day year for the actual
days elapsed. The Administrative Agent shall as soon as practicable notify the Borrowers
and the Lenders of each determination of a LIBOR Rate on the Business Day of the
determination thereof. Any change in the interest rate on a Loan resulting from a change in
the Alternate Base Rate shall become effective as of the opening of business on the day on
which such change in the Alternate Base Rate shall become effective. The Administrative
Agent shall as soon as practicable notify the Borrowers and the Lenders of the effective
date and the amount of each such change.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrowers and the Lenders
in the absence of manifest error. The Administrative Agent shall, at the request of the
Borrowers, deliver to the Borrowers a statement showing the computations used by the
Administrative Agent in determining any interest rate.
(c) It is the intent of the Lenders and the Credit Parties to conform to and contract
in strict compliance with applicable usury law from time to time in effect. All agreements
between the Lenders and the Credit Parties are hereby limited by the provisions of this
subsection which shall override and control all such agreements, whether now existing or
hereafter arising and whether written or oral. In no way, nor in any event or contingency
(including, but not limited to, prepayment or acceleration of the maturity of any
Obligation), shall the interest taken, reserved, contracted for, charged, or received under
this Agreement, under the Notes or otherwise, exceed the maximum nonusurious amount
permissible under Requirements of Law. If, from any possible construction of any of the
Credit Documents or any other document, interest would otherwise be payable in excess of the
maximum nonusurious amount, any such construction shall be subject to the provisions of this
paragraph and such interest shall be automatically reduced to the maximum nonusurious amount
permitted under Requirements of Law, without the necessity of execution of any amendment or
new document. If any Lender shall ever receive anything of value which is characterized as
interest on the Loans under Requirements of Law and which would, apart from this provision,
be in excess of the maximum nonusurious amount, an amount equal to the amount which would
have been excessive interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans and not to the payment of interest, or refunded to the
Borrowers or the other payor thereof if and to the extent such amount which would have been
excessive exceeds such unpaid principal amount of the Loans. The right to demand payment of
the Loans or any other Indebtedness evidenced by any of the Credit Documents does not
include the right to receive any interest that has not otherwise accrued on the date of such
demand, and the Lenders do not intend to charge or receive any unearned interest in the
event of such demand. All interest paid or agreed to be paid to the Lenders with respect to
the Loans shall, to the extent permitted by Requirements of Law, be amortized, prorated,
allocated, and spread throughout the full stated term (including any renewal or extension)
of the Loans so that the amount of interest on account of such Indebtedness does not exceed
the maximum nonusurious amount permitted by Requirements of Law.
Section 2.9 Pro Rata Treatment and Payments.
(a) Allocation of Payments Prior to Exercise of Remedies.
(i) Each borrowing of Revolving Loans and any reduction of the Revolving
Commitments shall be made pro rata according to the respective Revolving Commitment
Percentages of the Revolving Lenders. Each payment on account of any fees pursuant
to Section 2.3 shall be made pro rata in accordance with the respective amounts due
and
52
owing. Each payment (other than prepayments) by the Borrowers on account of
principal of and interest on the Revolving Loans and on the Term Loan, as
applicable, shall be applied to such Loans, as applicable, on a pro rata basis in
accordance with the terms of Section 2.5(a) hereof. Each optional prepayment on
account of principal of the Loans shall be applied in accordance with
Section 2.5(a). Each mandatory prepayment on account of principal of the Loans
shall be applied in accordance with Sections 2.2(b) and 2.5(b). Unless payments are
specifically payable to Revolving Loans or Term Loans, all payments are shared pari
passu and pro rata (based on the amounts of such Loans) between Revolving Loans and
Term Loans. All payments (including prepayments) to be made by the Borrowers on
account of principal, interest and fees shall be made without defense, set-off or
counterclaim and shall be made to the Administrative Agent for the account of the
Lenders at the Administrative Agents office specified on Section 10.2 in Dollars
and in immediately available funds not later than 1:00 p.m. on the date when due.
The Administrative Agent shall distribute such payments to the Lenders entitled
thereto promptly upon receipt in like funds as received. If any payment hereunder
(other than payments on the LIBOR Rate Loans) becomes due and payable on a day other
than a Business Day, such payment shall be extended to the next succeeding Business
Day, and, with respect to payments of principal, interest thereon shall be payable
at the then applicable rate during such extension. If any payment on a LIBOR Rate
Loan becomes due and payable on a day other than a Business Day, such payment date
shall be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day.
(ii) The Administrative Agent as agent for the Secured Parties shall be
entitled to receive an amount equal to all Income paid or distributed on or in
respect of the Collateral, which amount shall be deposited by the Borrowers, the
Credit Parties and any Servicer or PSA Servicer under a Pooling and Servicing
Agreement into the Collection Account. The Borrowers hereby agree to instruct each
applicable Servicer to transfer within two (2) Business Days of receipt thereof, and
each applicable PSA Servicer under a Pooling and Servicing Agreement to deposit
within two (2) Business Days of the date on which such Person is obligated under the
applicable Pooling and Servicing Agreement to disburse such funds, all Income with
respect to the Collateral directly into the Collection Account. On each Payment
Date, any Cash Collateral and any amounts on deposit in the Collection Account and
amounts permitted to be withdrawn from the Homewood Interest Reserve shall be
withdrawn by the Administrative Agent and shall be applied as follows:
FIRST, pari passu and pro rata (based on the amounts owed to such Persons under
this clause) to the payment of all fees, expenses, and other obligations then due to
the Administrative Agent and the Lenders pursuant to this Agreement and/or the Fee
Letter, other than the interest and principal on the Loans;
SECOND, to the extent not paid by the Borrowers, to the payment of fees and
expenses owed to the Custodian under the Custodial Agreement or Custodial Fee
Letter;
THIRD, pari passu and pro rata (based on the amounts owed to such Persons under
this clause) to the Lenders for the payment of accrued and unpaid interest on the
Loans outstanding;
53
FOURTH, without limiting the Borrowers obligations to make mandatory
prepayments under Sections 2.2(b) and 2.5(b) in a timely manner as provided in this
Article II, pari passu and pro rata (based on the amounts owed to such Persons under
this clause) for the payment of the amounts and Loans provided for in Sections
2.2(b) and 2.5(b);
FIFTH, pari passu and pro rata (based on the amounts owed to such Persons under
this clause) to the extent any Income or Cash Collateral includes payments or
prepayments of principal on or from any Collateral (including, without limitation,
insurance or condemnation proceeds or recoveries from any foreclosures not otherwise
applied under Section 2.5(b) or clause FOURTH above), such payments shall be applied
to reduce the Allocated Term Loan Amount and Allocated Revolving Loan Amount for the
related Term Loan Collateral or Revolving Loan Collateral, as applicable;
SIXTH, pari passu and pro rata (based on the amounts owed to such Persons under
this clause) to the extent not previously paid pursuant to Article II, to the
Lenders to pay any other principal payments then due or required to be paid
(including principal payments required with respect to the Homewood Mortgage Asset
under the terms of the definition of Homewood Interest Reserve);
SEVENTH, pari passu and pro rata (based on the amounts owed to such Persons
under this clause) to the payment of all other amounts then due and owing to the
Administrative Agent, the Lenders or any other Person pursuant to this Agreement and
the other Credit Documents; and
EIGHTH, to the Borrowers, for such purposes as the Borrowers shall determine in
their sole discretion;
provided, however, that if a Default or Event of Default has occurred and is
continuing or a mandatory prepayment under Section 2.5 is due but the applicable time period for
payment of such amount has not expired, such amounts under clause EIGHTH shall not be transferred
to the Borrowers but shall remain in the Collection Account and applied (i) in the case of a
mandatory prepayment under Sections 2.2 or 2.5, in reduction of such mandatory prepayments when due
and payable, with the balance being remitted to the Borrowers and (ii) in the case of a Default or
Event of Default, in reduction of the Obligations in accordance with Section 2.9(b).
Notwithstanding anything to the contrary contained herein, in the event any Obligor Reserve
Payments are deposited into the Collection Account, such Obligor Reserve Payments shall, upon
written request of the Borrowers, be promptly transferred from the Collection Account to the
Borrowers for the Borrowers to transfer into the appropriate escrow or reserve accounts.
In carrying out the foregoing, amounts received shall be applied in the numerical order
provided until exhausted prior to application of the next succeeding category.
(b) Allocation of Payments After Exercise of Remedies. Notwithstanding any
other provisions of this Agreement to the contrary, after the exercise of remedies (other
than the invocation of default interest pursuant to Section 2.6) by the Administrative Agent
or the Lenders pursuant to Section 7.2 (or after the Commitments shall automatically
terminate and the Loans (with accrued interest thereon) and all other amounts under the
Credit Documents shall automatically become due and payable in accordance with the terms of
such Section), all amounts collected or received by the Administrative Agent or any Lender
on account of the Obligations or
54
any other amounts outstanding under any of the Credit Documents or in respect of the
Collateral and all amounts on deposit in the Collection Account and the Homewood Reserve
Account shall be paid over or delivered to the Administrative Agent and applied as follows
(irrespective of whether the following costs, expenses, fees, interest, premiums, scheduled
periodic payments or Obligations are allowed, permitted or recognized as a claim in any
proceeding resulting from the occurrence of a Bankruptcy Event):
FIRST, to the payment of all reasonable out-of-pocket costs and expenses
(including without limitation reasonable attorneys fees) of the Administrative
Agent in connection with enforcing the rights of the Lenders under the Credit
Documents and any protective advances made by the Administrative Agent with respect
to the Collateral under or pursuant to the terms of the Security Documents;
SECOND, to the payment of any fees owed to the Administrative Agent;
THIRD, pari passu and pro rata (based on the amounts owed to such Persons under
this clause) to the payment of all reasonable out-of-pocket costs and expenses
(including without limitation, reasonable attorneys fees) of each of the Lenders in
connection with enforcing its rights under the Credit Documents or otherwise with
respect to the Obligations owing to such Lender;
FOURTH, pari passu and pro rata (based on the amounts owed to such Persons
under this clause) to the payment of all of the Obligations consisting of accrued
fees and interest;
FIFTH, pari passu and pro rata (based on the amounts owed to such Persons under this
clause) to the Lenders and the Administrative Agent for the payment of the outstanding
principal amount of the Obligations;
SIXTH, pari passu and pro rata (based on the amounts owed to such Persons under
this clause) to all other Obligations and other obligations which shall have become
due and payable under the Credit Documents or otherwise and not repaid pursuant to
clauses FIRST through FIFTH above; and
SEVENTH, pari passu and pro rata (based on the amounts owed to such Persons
under this clause) to the payment of the surplus, if any, to whoever may be lawfully
entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the numerical
order provided until exhausted prior to application to the next succeeding category; and
(b) each of the Lenders shall receive an amount equal to its pro rata share (based on the
proportion of the then outstanding Loans held by such Lender) of amounts available to be
applied pursuant to clauses THIRD, FOURTH, FIFTH and SIXTH above.
Section 2.10 Non-Receipt of Funds by the Administrative Agent.
(a) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received written notice from a Lender prior to the proposed
date of any Extension of Credit that such Lender will not make available to the
Administrative Agent such Lenders share of such Extension of Credit, the Administrative
Agent may assume that such Lender has made such share available on such date in accordance
with this Agreement and may,
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in reliance upon such assumption, make available to the Borrowers a corresponding
amount. In such event, if a Lender has not in fact made its share of the applicable
Extension of Credit available to the Administrative Agent, then the applicable Lender and
the Borrowers severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the date such
amount is made available to the Borrowers to but excluding the date of payment to the
Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater
of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation and (ii) in the case of a
payment to be made by the Borrowers, the interest rate applicable to Alternate Base Rate
Loans. If the Borrowers and such Lender shall pay such interest to the Administrative Agent
for the same or an overlapping period, the Administrative Agent shall promptly remit to the
Borrowers the amount of such interest paid by the Borrowers for such period. If such Lender
pays its share of the applicable Extension of Credit to the Administrative Agent, then the
amount so paid shall constitute such Lenders Loan included in such Extension of Credit.
Any payment by the Borrowers shall be without prejudice to any claim the Borrowers may have
against a Lender that shall have failed to make such payment to the Administrative Agent.
(b) Payments by Borrowers; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrowers prior to the date on
which any payment is due to the Administrative Agent for the account of the Lenders
hereunder that the Borrowers will not make such payment, the Administrative Agent may assume
that the Borrowers have made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In such event, if
the Borrowers have not in fact made such payment, then each of the Lenders severally agrees
to repay to the Administrative Agent forthwith on demand the amount so distributed to such
Lender, with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrowers with respect to any
amount owing under subsections (a) and (b) of this Section shall be conclusive, absent
manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to
the Administrative Agent funds for any Loan to be made by such Lender as provided in the
foregoing provisions of this Article II, and such funds are not made available to the
Borrowers by the Administrative Agent because the conditions to the applicable Extension of
Credit set forth in Article IV are not satisfied or waived in accordance with the terms
thereof, the Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder
to make Term Loans and Revolving Loans, and to make payments pursuant to Section 10.5(c) are
several and not joint. The failure of any Lender to make any Loan, to fund any such
participation or to make any such payment under Sections 8.7 and 10.5(c) on any date
required hereunder shall not relieve any other Lender of its corresponding obligation to do
so on such date, and no Lender shall be responsible for the failure of any other Lender to
so make its Loan, to purchase its participation or to make its payment under Sections 8.7
and 10.5(c).
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(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to
obtain the funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for any Loan in
any particular place or manner.
Section 2.11 Inability to Determine Interest Rate.
Notwithstanding any other provision of this Agreement, if (a) the Administrative Agent shall
reasonably determine (which determination shall be conclusive and binding absent manifest error)
that, by reason of circumstances affecting the relevant market, reasonable and adequate means do
not exist for ascertaining the LIBOR Rate for such Interest Period, or (b) the Required Lenders
shall reasonably determine (which determination shall be conclusive and binding absent manifest
error) that the LIBOR Rate does not adequately and fairly reflect the cost to such Lenders of
funding LIBOR Rate Loans that the Borrowers have requested be outstanding as a LIBOR Tranche during
such Interest Period, the Administrative Agent shall forthwith give telephone notice of such
determination, confirmed in writing, to the Borrowers and the Lenders at least two (2) Business
Days prior to the first day of such Interest Period. Unless the Borrowers shall have notified the
Administrative Agent upon receipt of such telephone notice that it wishes to rescind or modify its
request regarding such LIBOR Rate Loans, any Loans that were requested to be made as LIBOR Rate
Loans shall be made as Alternate Base Rate Loans and any Loans that were requested to be converted
into or continued as LIBOR Rate Loans shall remain as or be converted into Alternate Base Rate
Loans. Until any such notice has been withdrawn by the Administrative Agent, no further Loans
shall be made as, continued as, or converted into, LIBOR Rate Loans for the Interest Periods so
affected.
Section 2.12 Yield Protection.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or
for the account of, or credit extended or participated in by, any Lender (except any
reserve requirement reflected in the LIBOR Rate);
(ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any LIBOR Rate Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Indemnified Taxes or Other
Taxes covered by Section 2.14 and the imposition of, or any change in the rate of,
any Excluded Tax payable by such Lender); or
(iii) impose on any Lender or the London interbank market any other condition,
cost or expense affecting this Agreement or LIBOR Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any LIBOR Rate Loan (or of maintaining its obligation to make any such Loan), or to
reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal,
interest or any other amount), then, upon request of such Lender, the Borrowers will pay to such
Lender, such additional amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.
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(b) Capital Requirements. If any Lender determines that any Change in Law
affecting such Lender or any lending office of such Lender or such Lenders holding company,
if any, regarding capital requirements has or would have the effect of reducing the rate of
return on such Lenders capital or on the capital of such Lenders holding company, if any,
as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such
Lender, to a level below that which such Lender or such Lenders holding company could have
achieved but for such Change in Law (taking into consideration such Lenders policies and
the policies of such Lenders holding company with respect to capital adequacy), then from
time to time the Borrowers will pay to such Lender such additional amount or amounts as will
compensate such Lender or such Lenders holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender setting forth
the amount or amounts necessary to compensate such Lender or its holding company, as the
case may be, as specified in paragraph (a) or (b) of this Section and delivered to the
Borrowers shall be conclusive absent manifest error. The Borrowers shall pay such Lender
the amount shown as due on any such certificate within ten (10) days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such Lenders right
to demand such compensation.
The provisions of this Section shall survive the termination of this Agreement and the payment
in full of the Obligations.
Section 2.13 Indemnity; Eurocurrency Liabilities.
(a) The Credit Parties hereby agree to indemnify each Lender and to hold such Lender
harmless from any funding loss or expense which each Lender may sustain or incur as a
consequence of (a) the failure by the Borrowers to pay the principal amount of or interest
on any Loan by any Lender in accordance with the terms hereof, (b) the failure by the
Borrowers to accept a borrowing after the Borrowers have given a notice in accordance with
the terms hereof, (c) default by the Borrowers in making any prepayment after the Borrowers
have given a notice in accordance with the terms hereof, and/or (d) the making by the
Borrowers of a prepayment of a Loan, or the conversion thereof, on a day which is not the
last day of the Interest Period with respect thereto, in each case including, but not
limited to, any such loss or expense arising from interest or fees payable by any Lender to
lenders of funds obtained by it in order to maintain its Loans hereunder. A certificate
setting forth in reasonable detail as to any additional amounts payable pursuant to this
Section submitted by any Lender, through the Administrative Agent, to the Borrowers shall be
conclusive in the absence of manifest error. The agreements in this Section shall survive
termination of this Agreement and payment of the Obligations.
(b) The Borrowers shall pay to each Lender, as long as such Lender shall be required to
maintain reserves under Regulation D with respect to Eurocurrency liabilities within the
meaning of Regulation D, or under any similar or successor regulation with respect to
Eurocurrency liabilities or Eurocurrency funding, additional interest on the unpaid
principal amount of each LIBOR Loan equal to the actual costs of such reserves allocated to
such LIBOR Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each date on which
interest is payable on such LIBOR Loan, provided the Borrowers shall have received at least
fifteen (15) days prior notice (with a copy to the Administrative Agent) of such additional
interest from such Lender. If a
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Lender fails to give notice fifteen (15) days prior to the relevant Payment Date, such
additional interest shall be due and payable fifteen (15) days from receipt of such notice.
Section 2.14 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of any Credit Party hereunder or under any other Credit Document shall be made
free and clear of and without reduction or withholding for any Indemnified Taxes or Other
Taxes, provided that if any Credit Party shall be required by Requirements of Law to
deduct any Indemnified Taxes (including any Other Taxes) from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section) the
Administrative Agent or any Lender receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Credit Party shall make such deductions
and (iii) such Credit Party shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with Requirements of Law.
(b) Payment of Other Taxes by the Borrowers. Without limiting the provisions
of paragraph (a) above, the Credit Parties shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with Requirements of Law.
(c) Indemnification by the Borrowers. The Credit Parties shall indemnify the
Administrative Agent and each Lender, within ten (10) days after demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by
the Administrative Agent or such Lender and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the Borrowers by a
Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own
behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Credit Party to a Governmental Authority, the
Borrowers shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which any Credit
Party is a resident for tax purposes, or any treaty to which such jurisdiction is a party,
with respect to payments hereunder or under any other Credit Document shall deliver to the
Borrowers (with a copy to the Administrative Agent), at the time or times prescribed by
Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent,
such properly completed and executed documentation prescribed by Requirements of Law as will
permit such payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrowers or the Administrative Agent, shall
deliver such other documentation prescribed by Requirements of Law or reasonably requested
by the Borrowers or the Administrative Agent as will enable the Borrowers or the
Administrative Agent to determine whether or not such Lender is subject to backup
withholding or information reporting requirements.
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(f) Foreign Lenders. Without limiting the generality of the foregoing, in the
event that any Credit Party is resident for tax purposes in the United States of America,
any Foreign Lender shall deliver to the Borrowers and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the request of the Borrowers or the Administrative Agent, but only if such Foreign
Lender is legally entitled to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States of
America is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under section 881(c) of the Code, (i) a certificate to the
effect that such Foreign Lender is not (A) a bank within the meaning of
section 881(c)(3)(A) of the Code, (B) a 10 percent shareholder of any Borrower
within the meaning of section 881(c)(3)(B) of the Code, or (C) a controlled foreign
corporation described in section 881(c)(3)(C) of the Code and (ii) duly completed
copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by Requirements of Law as a basis for claiming
exemption from or a reduction in United States Federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by
Requirements of Law to permit the Credit Parties to determine the withholding or
deduction required to be made.
(g) Treatment of Certain Refunds. If the Administrative Agent or a Lender
determines, in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrowers or with respect to which the
Credit Parties have paid additional amounts pursuant to this Section, it shall pay to the
Credit Parties an amount equal to such refund (but only to the extent of indemnity payments
made, or additional amounts paid, by the Credit Parties under this Section with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
the Administrative Agent or such Lender, as the case may be, and without interest (other
than any interest paid by the relevant Governmental Authority with respect to such refund),
provided that the Credit Parties, upon the request of the Administrative Agent or
such Lender agrees to repay the amount paid over to the Credit Parties (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender, in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This paragraph shall not be
construed to require the Administrative Agent, or any Lender to make available its tax
returns (or any other information relating to its taxes that it deems confidential) to the
Credit Parties or any other Person.
The provisions of this Section shall survive the termination of this Agreement and the payment
in full of the Obligations.
Section 2.15 Illegality.
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Notwithstanding any other provision of this Credit Agreement, if any Change in Law shall make
it unlawful for such Lender or its LIBOR Lending Office to make or maintain LIBOR Rate Loans as
contemplated by this Credit Agreement or to obtain in the interbank eurodollar market through its
LIBOR Lending Office the funds with which to make such Loans, (a) such Lender shall promptly notify
the Administrative Agent and the Borrowers thereof, (b) the commitment of such Lender hereunder to
make LIBOR Rate Loans or continue LIBOR Rate Loans as such shall forthwith be suspended until the
Administrative Agent shall give notice that the condition or situation which gave rise to the
suspension shall no longer exist, and (c) such Lenders Loans then outstanding as LIBOR Rate Loans,
if any, shall be converted on the last day of the Interest Period for such Loans or within such
earlier period as required by Requirements of Law as Alternate Base Rate Loans. The Borrowers
hereby agree to promptly pay any Lender, upon its demand, any additional amounts necessary to
compensate such Lender for actual and direct costs (but not including anticipated profits)
reasonably incurred by such Lender in making any repayment in accordance with this
Section including, but not limited to, any interest or fees payable by such Lender to lenders of
funds obtained by it in order to make or maintain its LIBOR Rate Loans hereunder. A certificate
(which certificate shall include a description of the basis for the computation) as to any
additional amounts payable pursuant to this Section submitted by such Lender, through the
Administrative Agent, to the Borrowers shall be conclusive in the absence of manifest error. Each
Lender agrees to use reasonable efforts (including reasonable efforts to change its LIBOR Lending
Office) to avoid or to minimize any amounts which may otherwise be payable pursuant to this
Section; provided, however, that such efforts shall not cause the imposition on
such Lender of any additional costs or legal or regulatory burdens deemed by such Lender in its
sole discretion to be material.
Section 2.16 Obligations Absolute.
Except as set forth to the contrary in the Credit Documents, all sums payable by the Credit
Parties hereunder or under the Credit Documents shall be paid without notice, demand, counterclaim,
setoff, deduction or defense (as to any Person or any reason whatsoever) and without abatement,
suspension, deferment, diminution or reduction (as to any Person or any reason whatsoever), and the
obligations and liabilities of each Credit Party hereunder shall in no way be released, discharged
or otherwise affected (except as expressly provided herein) by reason of: (a) any damage to or
destruction of or any taking of any asset, any Property, any Collateral or any portion of the
foregoing; (b) any restriction or prevention of or interference with any use of any asset, any
Property, any Collateral or any portion of the foregoing; (c) any title defect or encumbrance or
any eviction from any Property, by title paramount or otherwise; (d) any Insolvency Proceeding
relating to any Credit Party, any Affiliate or Subsidiary of the foregoing or any Obligor, account
debtor or indemnitor under the Collateral, or any action taken with respect to this Agreement or
any other Credit Document by any trustee or receiver of any Credit Party, any Affiliate or
Subsidiary of the foregoing or any Obligor, account debtor or indemnitor under the Collateral, or
by any court, in any such proceeding; (e) any claim that any Credit Party has or might have against
the Administrative Agent, any Lender and/or any Indemnitee; (f) any default or failure on the part
of the Administrative Agent, any Lender and/or any Indemnitee to perform or comply with any of the
terms hereof, the Credit Documents or of any other agreement with any Credit Party, any Subsidiary
or Affiliate of the foregoing and/or any other Person; (g) the invalidity or unenforceability of
any Collateral or Loan; (h) anything related to or arising out of any Credit-Party-Related
Obligation; or (i) any other occurrence whatsoever, whether similar or dissimilar to the foregoing,
whether or not any Credit Party or any Affiliate or Subsidiary of the foregoing shall have notice
or knowledge of any of the foregoing.
Section 2.17 Additional Collateral.
Notwithstanding anything contained in the Credit Documents to the contrary, to the extent a
Pledged Mortgage Asset does not have an Allocated Revolving Loan Amount, Allocated Term Loan
Amount, Release Amount and/or any particular Loan advanced against such Collateral (including,
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without limitation, the Prime Pledged Mortgage Asset and the A-1 common units for the ESH
Pledged Mortgage Asset), such Pledged Mortgage Assets shall not be released from the Administrative
Agents Lien unless (i) consented to in the Administrative Agents discretion or (ii) this
Agreement is no longer in effect, all Commitments have terminated, no Note remains outstanding and
unpaid and the Obligations and all other amounts owing to the Administrative Agent or any Lender
hereunder have been paid in full; provided, however, if the Administrative Agent has consented, in
its discretion, to the release of all or any portion of the Series A-1 Preferred Equity Interests
for the ESH Pledged Mortgage Asset, the Administrative Agent will consent to the release of the
corresponding amount of the A-1 common units for the ESH Pledged Mortgage Asset. Notwithstanding
the foregoing, upon payment of the Total ESH Release Amount, and provided no Defaults or Events of
Defaults have occurred and are continuing, and that payments have been made in reduction of the
Working Capital Facility from and after the Restatement Date in the aggregate amount of
$15,256,263, the ESH Pledged Mortgage Asset (including the A-1 common units) shall be released from
the Administrative Agents Lien.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the Extensions of Credit herein
provided for, the Credit Parties hereby represent and warrant, as of the date of this Agreement and
on any date a Loan is made hereunder and at all times while any Credit Document or any Loan is in
full force and effect, to the Administrative Agent and to each Lender that:
Section 3.1 Financial Condition.
(a) The consolidated balance sheet of ART and its Consolidated Subsidiaries provided to
the Administrative Agent and the related consolidated statements of income and retained
earnings and of cash flows, copies of which have heretofore been furnished to the
Administrative Agent, are complete and correct and present fairly the consolidated financial
condition of ART and its Consolidated Subsidiaries as at such date, and the consolidated
results of their operations and their consolidated cash flows as of the date of such
financial statements and other information. All such financial statements, including the
related schedules and notes thereto (if any), have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as disclosed therein). Except
as disclosed in writing, neither ART nor any of its Consolidated Subsidiaries had, at the
date of the most recent balance sheet referred to above, any material contingent liability
or liability for taxes, or any long term lease or unusual forward or long term commitment,
including, without limitation, any interest rate or foreign currency swap or exchange
transaction or other financial derivative, that is not reflected in the foregoing statements
or in the notes thereto. During the period from the date of the financial statements and
other financial information delivered to the Administrative Agent, to and including the date
hereof, there has been no sale, transfer or other disposition by ART or any of its
Consolidated Subsidiaries of any material part of its business or Property and no purchase
or other acquisition of any business or Property (including any Equity Interests of any
other Person) material in relation to the consolidated financial condition of ART and its
Consolidated Subsidiaries on the date hereof.
(b) The operating forecast and cash flow projections of ART and its Consolidated
Subsidiaries, copies of which have heretofore been furnished to the Administrative Agent,
have been prepared in good faith under the direction of a Responsible Officer of ART and in
accordance with GAAP. ART has no reason to believe that as of the date of delivery thereof
such
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operating forecast and cash flow projections are materially incorrect or misleading in
any material respect or omit to state any material fact which would render them misleading
in any material respect. ART shall not be required to provide information in its
projections if the disclosure of such information would violate any Requirement of Law
relating to insider trading.
Section 3.2 No Material Adverse Effect; Internal Control Event.
Since December 31, 2006 (a) (and, in addition, after delivery of annual audited financial
statements in accordance with Section 5.1(a), from the date of the most recently delivered annual
audited financial statements), there has been no development or event which has had or could
reasonably be expected to have a Material Adverse Effect and (b) no Internal Control Event has
occurred.
Section 3.3 Corporate Existence; Compliance with Law.
Each of the Credit Parties (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, organization or formation, (b) has the requisite
power and authority and the legal right to own, operate and pledge all its Property, to lease the
Property it operates as lessee and to conduct the business in which it is currently engaged and has
taken all actions necessary to maintain all rights, privileges, licenses and franchises necessary
or required in the normal conduct of its business, (c) is duly qualified to conduct business and in
good standing under the laws of (i) the jurisdiction of its organization or formation and (ii) each
other jurisdiction where its ownership, lease or operation of Property or the conduct of its
business requires such qualification and (d) is in compliance with all Requirements of Law
(including, without limitation, all government permit and licensing requirements), Authority
Documents, government permits and government licenses. The jurisdictions in which the Credit
Parties are organized and qualified to do business are described on Schedule 3.3. The
Borrowers shall update Schedule 3.3 from time to time, in accordance with Section 5.2, to
update information and to add Additional Credit Parties.
Section 3.4 Corporate Power; Authorization; Enforceable Obligations.
Each of the Credit Parties has full power and authority and the legal right to make, deliver
and perform the Credit Documents to which it is party and has taken all necessary limited liability
company, partnership or corporate action to authorize the execution, delivery and performance by it
of the Credit Documents to which it is party. Each Credit Document to which it is a party has been
duly executed and delivered on behalf of each Credit Party. Each Credit Document to which it is a
party constitutes a legal, valid and binding obligation of each Credit Party, enforceable against
such Credit Party in accordance with its terms, except as enforceability may be limited by
applicable Insolvency Laws and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
Section 3.5 No Legal Bar; No Default.
The execution, delivery and performance by each Credit Party of the Credit Documents to which
such Credit Party is a party, the borrowing of Loans hereunder, pledge of Collateral under the
Credit Documents and the use of the proceeds of the Loans (a) will not violate any Requirement of
Law, (b) will not conflict with, result in a breach of or constitute a default under Authority
Documents of the Credit Parties or any Contractual Obligation, Indebtedness or Guarantee
Obligations of any Credit Party (except those as to which waivers or consents were obtained) or any
material approval or material consent from any Governmental Authority relating to such Credit
Party, and (c) will not result in, or require, the creation or imposition of any Lien on any Credit
Partys Properties or revenues pursuant to any Requirement of Law, Contractual Obligations,
Indebtedness or Guarantee Obligations other than the Liens arising under or contemplated in
connection with the Credit Documents or Permitted Liens. No
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Credit Party is in default under or with respect to any of its Contractual Obligation,
Indebtedness or Guarantee Obligations in any material respect. No Default or Event of Default has
occurred and is continuing.
Section 3.6 No Material Litigation.
No litigation, investigation, claim, criminal prosecution, civil investigative demand,
imposition of criminal or civil fines and penalties, or any other proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best knowledge of the Credit Parties,
threatened by or against any Credit Party or any of its Subsidiaries or Affiliates or against any
of its or their respective Properties or revenues (a) with respect to the Credit Documents, any
Extension of Credit, any Collateral or any of the transactions contemplated hereby, or (b) which
could reasonably be expected to have a Material Adverse Effect. No permanent injunction, temporary
restraining order or similar decree has been issued against any Credit Party or any of its
Subsidiaries or Affiliates, which could reasonably be expected to have a Material Adverse Effect.
Section 3.7 Investment Company Act; Federal Power Act; Interstate Commerce Act; and
Federal and State Statutes and Regulations.
No Credit Party is an investment company, or a company controlled by an investment
company, within the meaning of the 40 Act. No Credit Party is subject to regulation under the
Federal Power Act, the Interstate Commerce Act, or any federal or state statute or regulation
limiting its ability to incur the Obligations.
Section 3.8 Margin Regulations.
No part of the proceeds of any Extension of Credit hereunder will be used directly or
indirectly for any purpose that violates, or that would require any Lender to make any filings in
accordance with, the provisions of Regulation T, U or X of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect. The Credit Parties and their
Subsidiaries and Affiliates (a) are not engaged, principally or as one of their important
activities, in the business of extending credit for the purpose of purchasing or carrying
margin stock within the respective meanings of each of such terms under Regulation U and
(b) taken as a group do not own margin stock. No Borrower is subject to any Requirement of Law
that purports to restrict or regulate its ability to borrow money. No portion of the proceeds of
any Extension of Credit will be used to repurchase any Equity Interests in, or to fund dividends or
distributions by, any Credit Party or any Subsidiary or Affiliate.
Section 3.9 ERISA.
Neither a Reportable Event nor an accumulated funding deficiency (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the five-year period prior to
the date on which this representation is made or deemed made with respect to any Plan, and each
Plan has complied in all material respects with the applicable provisions of ERISA and the Code.
No termination of a Single Employer Plan has occurred resulting in any liability that has remained
underfunded, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period.
The present value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the
date on which this representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits. Neither any Credit Party nor any Commonly Controlled
Entity is currently subject to any liability for a complete or partial withdrawal from a
Multiemployer Plan.
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Section 3.10 Environmental Matters.
Except as could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect:
(a) The Properties owned, leased or operated by the Credit Parties or any of their
Subsidiaries do not contain any Materials of Environmental Concern in amounts or
concentrations which (i) constitute a violation of, or (ii) could give rise to liability on
behalf of any Credit Party under, any Environmental Law.
(b) The Properties and all operations of the Credit Parties and/or their Subsidiaries
at the Properties are in compliance, and have in the last five years been in compliance, in
all material respects with all applicable Environmental Laws, and there is no contamination
at, under or about the Properties or violation of any Environmental Law with respect to the
Properties.
(c) Neither the Credit Parties nor their Subsidiaries have received any written or
actual notice of violation, alleged violation, non-compliance, liability or potential
liability on behalf of any Credit Party with respect to environmental matters or
Environmental Laws regarding any of the Properties, nor do the Credit Parties or their
Subsidiaries have knowledge or reason to believe that any such notice will be received or is
being threatened.
(d) Materials of Environmental Concern have not been transported or disposed of from
the Properties in violation of, or in a manner or to a location that could give rise to
liability on behalf of any Credit Party under any Environmental Law, and no Materials of
Environmental Concern have been generated, treated, stored or disposed of at, on or under
any of the Properties in violation of, or in a manner that could give rise to liability on
behalf of any Credit Party under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is pending or, to
the knowledge of the Credit Parties and their Subsidiaries, threatened, under any
Environmental Law to which any Credit Party or any Subsidiary is or will be named as a party
with respect to the Properties, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the Properties.
(f) There has been no release or threat of release of Materials of Environmental
Concern at or from the Properties, or arising from or related to the operations of any
Credit Party or any Subsidiary in connection with the Properties, in violation of or in
amounts or in a manner that could give rise to liability on behalf of any Credit Party under
Environmental Laws.
Section 3.11 Use of Proceeds.
The proceeds of the Extensions of Credit shall be used by the Borrowers solely to acquire or
finance Eligible Assets.
Section 3.12 Subsidiaries; Joint Ventures; Partnerships.
The organizational chart attached as Schedule 3.12 sets forth the name of each
Consolidated Subsidiary of each Credit Party.
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Section 3.13 Ownership.
Each of the Credit Parties and its Subsidiaries is the owner of, and has good and marketable
title to or a valid leasehold interest in, all of its respective Properties, which, together with
Properties leased or licensed by the Credit Parties and their Subsidiaries, represents all
Properties in the aggregate material to the conduct of the business of the Credit Parties and their
Subsidiaries and, after giving effect to the Transactions, none of such Properties included in the
Collateral is subject to any Lien other than Permitted Liens. Each Credit Party and its
Subsidiaries enjoys peaceful and undisturbed possession under all of its leases and all such leases
are valid and subsisting and in full force and effect.
Section 3.14 Indebtedness.
Except as otherwise permitted under Section 6.1, the Borrowers (other than Arbor Realty and
ARSR) have no Indebtedness or Guarantee Obligations. To each Credit Partys knowledge, no material
defaults or events of default exist under the Indebtedness and Guarantee Obligations permitted
under Section 6.1.
Section 3.15 Taxes.
Each of the Credit Parties and its Subsidiaries has filed, or caused to be filed, all income
tax returns and all other material tax returns (federal, state, local and foreign) required to be
filed and paid (a) all amounts of taxes shown thereon to be due (including interest and penalties)
and (b) all other taxes, fees, assessments and other governmental charges (including mortgage
recording taxes, documentary stamp taxes and intangibles taxes) owing by it, except for such taxes
(i) that are not yet delinquent or (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in accordance with GAAP.
None of the Credit Parties or their Subsidiaries is aware of any proposed tax assessments against
it or any of its Subsidiaries.
Section 3.16 Solvency.
No Credit Party is the subject of any Insolvency Proceeding or Insolvency Event. The Loans
under this Agreement and any other Credit Document do not and will not render any Credit Party not
Solvent. The Credit Parties are not entering into the Credit Documents or any Extension of Credit
with the intent to hinder, delay or defraud any creditor of the Credit Parties or any Subsidiary
and the Credit Parties have received or will receive reasonably equivalent value for the Credit
Documents and each Extension of Credit.
Section 3.17 Repurchase of Debt.
The Borrowers and the Guarantors are in full compliance with the covenants set forth in
Subsections 5.26 and 6.5 of this Agreement.
Section 3.18 Location.
Each Credit Parties location (within the meaning of Article 9 of the UCC) is set forth on
Schedule 3.18. The office where each Credit Party keeps all the records (within the
meaning of Article 9 of the UCC) is at the address set forth on Schedule 3.18 to this
Agreement (or at such other locations as to which the notice and other requirements specified in
Section 10.2 shall have been satisfied). Each Credit Partys organizational identification number
and tax identification number is set forth in the Closing Officers Certificate.
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Section 3.19 No Burdensome Restrictions.
None of the Credit Parties or their Subsidiaries or Affiliates is a party to any agreement or
instrument or subject to any other obligation or any charter or corporate restriction or any
provision of any Requirement of Law, which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
Section 3.20 Brokers Fees.
None of the Credit Parties or their Subsidiaries or Affiliates has any obligation to any
Person in respect of any finders, brokers, investment banking or other similar fee in connection
with any of the transactions contemplated under the Credit Documents other than the closing and
other fees payable pursuant to this Agreement and as set forth in the Fee Letter.
Section 3.21 Labor Matters.
There are no collective bargaining agreements or Multiemployer Plans covering the employees of
the Credit Parties or any of their Subsidiaries, other than as set forth in Schedule 3.21
hereto, and none of the Credit Parties or their Subsidiaries (a) has suffered any strikes,
walkouts, work stoppages or other material labor difficulty within the last five years, other than
as set forth in Schedule 3.21 hereto, or (b) has knowledge of any potential or pending
strike, walkout or work stoppage. Other than as set forth on Schedule 3.21, no unfair
labor practice complaint is pending against any Credit Party or any of its Subsidiaries. There
are no strikes, walkouts, work stoppages or other material labor difficulty pending or threatened
against any Credit Party or their Subsidiaries or Affiliates.
Section 3.22 Accuracy and Completeness of Information.
To each Credit Parties actual knowledge, the information, reports, certificates, documents,
financial statements, books, records, files, exhibits and schedules furnished in writing by or on
behalf of each Credit Party to the Administrative Agent in connection with the negotiation,
preparation or delivery of this Agreement and the other Credit Documents or included herein or
therein or delivered pursuant hereto or thereto, when taken as a whole, do not contain any untrue
statement of material fact or omit to state any material fact necessary to make the statements
herein or therein, in light of the circumstances under which they were made, not misleading. All
written information furnished after the date hereof by or on behalf of each Credit Party to the
Administrative Agent and the Lenders in connection with this Agreement and the other Credit
Documents and the transactions contemplated hereby and thereby will be true, complete and accurate
in every material respect, or (in the case of projections) based on reasonable estimates, on the
date as of which such information is stated or certified. There is no fact known to a Responsible
Officer of any Credit Party, after due inquiry, that could reasonably be expected to have a
Material Adverse Effect that has not been disclosed to the Administrative Agent. All projections
furnished on behalf of each Credit Party to the Administrative Agent were prepared and presented in
good faith by or on behalf of each Credit Party.
Section 3.23 Material Contracts.
Schedule 3.23 sets forth a complete and accurate list of all Material Contracts of the
Credit Parties and their Subsidiaries. Each Material Contract is, and after giving effect to the
Transactions will be, in full force and effect in accordance with the terms thereof. To the extent
requested by the Administrative Agent, the Credit Parties have delivered to the Administrative
Agent a true and complete copy of each requested Material Contract. Schedule 3.23 shall be
updated from time to time, in
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accordance with Section 5.2 by the Borrowers to include new Material Contracts by giving
written notice thereof to the Administrative Agent.
Section 3.24 Insurance.
Each Credit Party has and maintains, with respect to its Properties and business, insurance
that meets the requirements of Section 5.5.
Section 3.25 Security Documents.
The Security Documents create valid security interests in, and Liens on, the Collateral
purported to be covered thereby. Except as set forth in the Security Documents, such security
interests and Liens are currently (or will be, upon (a) the filing of appropriate financing
statements with the Secretary of State of the state of incorporation or organization for each
Credit Party, in each case in favor of the Administrative Agent, on behalf of the Secured Parties,
and (b) the Administrative Agent obtaining control or possession over those items of Collateral in
which a security interest is perfected through control or possession) perfected security interests
and Liens, prior to all other Liens other than Permitted Liens. None of the Collateral is subject
to any Lien other than Permitted Liens. None of the Credit Parties nor any Person claiming through
or under any Credit Party shall have any claim to or interest in the Collection Account or the
Homewood Interest Reserve, except for the interest of the Borrowers in such property as a debtor
for purposes of the UCC.
Section 3.26 Anti-Terrorism Laws.
Neither any Credit Party nor any of its Subsidiaries or Affiliates is an enemy or an ally
of the enemy within the meaning of Section 2 of the Trading with the Enemy Act of the United
States of America (50 U.S.C. App. §§ 1 et seq.), as amended. None of the Credit Parties nor any of
their Subsidiaries or Affiliates is in violation of (a) the Trading with the Enemy Act, as amended,
(b) any of the foreign assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto
or (c) the Patriot Act. None of the Credit Parties nor any Subsidiary or Affiliate of any Credit
Party (i) is a blocked person described in Section 1 of the Anti-Terrorism Order or (ii) to the
best of its knowledge, engages in any dealings or transactions, or is otherwise associated, with
any such blocked person.
Section 3.27 Compliance with OFAC Rules and Regulations.
(a) None of the Credit Parties or their Subsidiaries or their respective Affiliates is
in violation of and shall not violate any of the country or list based economic and trade
sanctions administered and enforced by OFAC that are described or referenced at
http://www.ustreas.gov/offices/enforcement/ofac/ or as otherwise published from time to
time.
(b) None of the Credit Parties or their Subsidiaries or their respective Affiliates
(i) is a Sanctioned Person or a Sanctioned Entity, (ii) has a more than 10% of its assets
located in Sanctioned Entities, or (iii) derives more than 10% of its operating income from
investments in, or transactions with Sanctioned Persons or Sanctioned Entities. The
proceeds of any Loan will not be used and have not been used to fund any operations in,
finance any investments or activities in or make any payments to, a Sanctioned Person or a
Sanctioned Entity.
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Section 3.28 Compliance with FCPA.
Each of the Credit Parties and their Subsidiaries and Affiliates is in compliance with the
Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq., and any foreign counterpart thereto.
None of the Credit Parties or their Subsidiaries or Affiliates has made a payment, offering, or
promise to pay, or authorized the payment of, money or anything of value (a) in order to assist in
obtaining or retaining business for or with, or directing business to, any foreign official,
foreign political party, party official or candidate for foreign political office, (b) to a foreign
official, foreign political party or party official or any candidate for foreign political office,
and (c) with the intent to induce the recipient to misuse his or her official position to direct
business wrongfully to such Credit Party or its Subsidiary, its Affiliates or to any other Person,
in violation of the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq.
Section 3.29 Consent; Governmental Authorizations.
No approval, consent or authorization of, filing with, notice to or other act by or in respect
of, any Governmental Authority or any other Person is required in connection with acceptance of
Extensions of Credit by the Borrowers or the making of the Guaranty or with the execution, delivery
or performance of any Credit Document by the Credit Parties (other than those which have been
obtained) or with the validity or enforceability of any Credit Document against the Credit Parties
(except such filings as are necessary in connection with the perfection of the Liens created by
such Credit Documents).
Section 3.30 Bulk Sales.
The execution, delivery and performance of this Agreement, the Credit Documents and the
transactions contemplated hereby do not require compliance with any bulk sales act or similar law
by any Credit Party.
Section 3.31 Income and Required Payments.
Each Credit Party acknowledges that all Income and Required Payments received, after the
Closing Date, by it or its Affiliates or its Subsidiaries or any Person acting on its behalf with
respect to the Collateral shall be held for the benefit of the Administrative Agent until deposited
into the Collection Account as required herein.
Section 3.32 Full Payment.
No Credit Party has any knowledge of any fact that should lead it to expect that each Loan
will not be paid in full.
Section 3.33 Irrevocable Instructions.
The Borrowers have delivered each Irrevocable Instruction required to be delivered by the
terms of this Agreement. The Credit Parties are not aware of any Required Payment that has been
made after the date of this Agreement but has not been deposited into the Collection Account. No
Irrevocable Instruction violates any Requirement of Law, any Contractual Obligation or other
prohibition and such Irrevocable Instructions are the valid and binding obligations of the parties
thereto.
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Section 3.34 Compliance with Covenants.
ART and its Consolidated Subsidiaries are in full compliance with the Financial Covenants and
all Credit Parties are in full compliance with all other applicable covenants, duties and
agreements contained in the Credit Documents.
Section 3.35 Collateral Agreements.
The Credit Parties have delivered to the Administrative Agent or the Custodian all documents
and agreements related to, governing or affecting the Collateral, including, without limitation,
the Mortgage Loan Documents, the Servicer Agreements and the Pooling and Servicing Agreements, and,
to the best of the Borrowers knowledge, no material default or event of default exists thereunder.
Section 3.36 No Reliance.
Each Credit Party has made its own independent decisions to enter into the Credit Documents
and each Loan and as to whether such Loan is appropriate and proper for it based upon its own
judgment and upon advice from such advisors (including, without limitation, legal counsel and
accountants) as it has deemed necessary. No Credit Party is relying upon any advice from the
Administrative Agent or any Lender as to any aspect of the Loans, including, without limitation,
the legal, accounting or tax treatment of such Loans.
Section 3.37 Collateral.
(a) There are no outstanding rights, options, warrants or agreements for the purchase, sale or
issuance of the Collateral created by, through, or as a result of any Credit Partys actions or
inactions; (b) there are no agreements on the part of any Credit Party to issue, sell or distribute
the Collateral, other than this Agreement and the Credit Documents; and (c) no Credit Party has any
obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any securities or any
interest therein or to pay any dividend or make any distribution in respect of the Collateral,
except, in the case of (a) and (b), for purchase rights that may be contained in any applicable
intercreditor agreement included in the Mortgage Asset File.
Section 3.38 REIT Status.
ART is a REIT, a publicly traded company that is listed, quoted or traded on and is in good
standing in respect of the New York Stock Exchange, NASDAQ or any other nationally recognized stock
exchanges (each, a Stock Exchange) and is not subject to any ratings downgrade by any
Rating Agency. ARSR is a REIT. ART has not engaged in any material prohibited transactions as
defined in Section 857(b)(6)(B)(iii) and (C) of the Code. ART for its current tax year (as
defined in the Code) is and for all prior tax years subsequent to its election to be a REIT has
been entitled to a dividends paid deduction under the requirements of Section 857 of the Code with
respect to any dividends paid by it with respect to each such year for which it claims a deduction
in its Form 1120-REIT filed with the United States Internal Revenue Service for such year.
Section 3.39 Insider.
No Credit Party is an executive officer, director, or person who directly or indirectly
or acting through or in concert with one or more persons owns, controls, or has the power to vote
more than 10% of any class of voting securities (as those terms are defined in 12 U.S.C. § 375(b)
or in regulations
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promulgated pursuant thereto) of any Lender, of a bank holding company of which any Lender is
a Subsidiary, or of any Subsidiary, of a bank holding company of which any Lender is a Subsidiary,
of any bank at which any Lender maintains a correspondent account or of any Lender which maintains
a correspondent account with any Lender.
Section 3.40 No Defenses.
There are no defenses, offsets, counterclaims, abatements, rights of rescission or other
claims, legal or equitable, available to any Credit Party with respect to this Agreement, the
Credit Documents, the Collateral or any other instrument, document and/or agreement described
herein or in the other Credit Documents, or with respect to the obligation of the Credit Parties to
repay the Obligations or any other obligation under the Credit Documents.
Section 3.41 Eligible Subordinated Debt.
All of the Trust Preferred Debt (a) has subordination provisions substantially the same as
those contained in the indentures for other transactions listed in clause (a) of the definition of
Eligible Subordinated Debt, (b) has enforceable subordination provisions, and (c) has a maturity
no earlier than the date that is six (6) months following the Maturity Date. To the extent any
Eligible Subordinated Debt was issued after the Closing Date, it has been specifically approved in
writing by the Administrative Agent.
Section 3.42 Selection Procedures.
No procedures believed by any Credit Party to be adverse to the interests of the
Administrative Agent or the Lenders were utilized by any Credit Party in identifying and/or
selecting the Collateral. In addition, each Mortgage Asset shall have been underwritten in
accordance with and satisfy any applicable standards that have been established by the Credit
Parties and any of their Subsidiaries or Affiliates and are then in effect.
Section 3.43 Value Given.
To the extent a Borrower acquired Mortgage Assets, such Borrower shall have given reasonably
equivalent value to each transferor in consideration for such transfer to such Borrower, no such
transfer shall have been made for or on account of an antecedent debt owed by the transferor
thereunder to such Borrower, and no such transfer is or may be voidable or subject to avoidance
under any section of the Bankruptcy Code.
Section 3.44 Separateness.
Each Borrower (other than Arbor Realty and ARSR) is in compliance with the requirements of
Section 5.24.
Section 3.45 Qualified Transferees.
With respect to each Mortgage Asset, each Borrower and the Administrative Agent are qualified
transferees, qualified institutional lenders or qualified lenders (however such terms are
phrased or denominated) under the terms of the applicable Mortgage Loan Documents with respect to
each partys ability to hold and/or to be a pledgee and/or transferee of each such Mortgage Asset.
The Assignments and the pledge of the Mortgage Assets to the Administrative Agent, on behalf of the
Secured Parties, do not violate any provisions of the underlying Mortgage Loan Documents.
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Section 3.46 Eligibility of Mortgage Assets.
With respect to each Mortgage Asset, each representation and warranty set forth in
Schedule 1.1(c) applicable thereto is true and correct. Each of the representations and
warranties contained in the Mortgage Loan Documents and in any statement, affirmation or
certification made or any information, document, report, notice or agreement provided to the
Administrative Agent relating to any Mortgage Asset is true and correct in all material respects.
Section 3.47 Ability to Perform.
None of the Credit Parties believes, or has any reason or cause to believe, that it cannot
perform each and every agreement, duty, obligation and covenant contained in the Credit Documents
applicable to it and to which it is a party. None of the Credit Parties is subject to any
restriction that would unduly burden its ability to timely and fully perform each and every
applicable covenant, duty, obligation and agreement contained in the Credit Documents and/or the
Mortgage Loan Documents. None of the Credit Parties is a party to any agreement or instrument or
subject to any restriction, which could reasonably be expected to have a Material Adverse Effect.
Section 3.48 Certain Tax Matters.
Each Borrower represents and warrants, and acknowledges and agrees, that it does not intend to
treat the Loans and the related transactions hereunder as being a reportable transaction (within
the meaning of United States Treasury Department Regulation Section 1.60114). In the event a
Borrower determines to take any action inconsistent with such intention, it will promptly notify
the Administrative Agent and the Lenders. If a Borrower so notifies the Administrative Agent and
the Lenders, the Borrowers acknowledge and agree that the Administrative Agent and the Lenders may
treat the Loans as part of a transaction that is subject to United States Treasury Department
Regulation Section 301.61121, and the Administrative Agent and the Lenders will maintain the lists
and other records required by such Treasury Regulation.
Section 3.49 Set-Off, etc.
No Collateral has been compromised, adjusted, extended, satisfied, subordinated, rescinded,
set-off or modified by the Credit Parties or any obligor thereof, and no Collateral is subject to
compromise, adjustment, extension (except as set forth in the related documents provided to the
Administrative Agent), satisfaction, subordination, rescission, set-off, counterclaim, defense,
abatement, suspension, deferment, deduction, reduction, termination or modification, whether
arising out of transactions concerning the Collateral or otherwise, by the Credit Parties or any
obligor with respect thereto.
Section 3.50 Warrant Agreements, Etc.
ART hereby represents and warrants that (a) the issued and outstanding common equity
securities of ART, as well as the total authorized options under ARTs stock option plan and the
issued and outstanding preferred equity securities are set forth on Schedule 3.50 to this
Agreement; (b) except as set forth on Schedule 3.50, ART has not issued any other shares of its
common stock and there are no further subscriptions, contracts or agreements for the issuance or
purchase of any other or additional common equity securities in ART, either in the form of options,
agreements, warrants, calls, convertible securities or other similar rights, other than the Warrant
Agreements; (c) the Warrant Agreements and all of the outstanding shares of common stock under the
Warrant Agreements, when issued and paid for upon exercise of the Warrant Agreements in accordance
with the terms thereof, will have been duly and validly
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authorized and issued and will be fully paid and nonassessable and will have been offered, issued,
sold and delivered to the holder in compliance with applicable Securities Laws; (d) the number of
shares of ARTs common stock reserved for issuance as set forth on Schedule 3.50 is not subject to
adjustment by reason of the issuance of the Warrant Agreements or the common stock issuable upon
the exercise thereof; (e) the offer and sale of the Warrant Agreements and the common stock to be
issued to the holder upon exercise of the Warrant Agreements in accordance with the terms thereof,
are not required to be registered pursuant to Section 5 of the Securities Act or any other
Securities Laws; (f) neither ART nor any agent on its behalf has solicited or will solicit any
offers to sell or has offered to sell or will offer to sell all or any part of the Warrant
Agreements (or the common stock to be issued upon exercise of the Warrant Agreements) so as to
bring the issuance of the Warrant Agreements within the registration provisions of the Securities
Act or any other Securities Laws; and (g) all prior offerings and sales of securities of ART were
in compliance with all applicable Securities Laws.
Section 3.51 Representations and Warranties.
The representations and warranties contained herein, required by or identified in this
Agreement and the other Credit Documents and the review and inquiries made on behalf of the Credit
Parties in connection therewith have all been made by Persons having the requisite expertise,
knowledge and background to provide such representations and warranties. On the Borrowing Date for
each Extension of Credit and on each day that Collateral remains subject to this Agreement and the
Credit Documents, the Credit Parties shall be deemed to restate and make each of the
representations and warranties made by it in this Article III and in Schedule 1.1(c) of
this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions to Restatement Date.
This Agreement shall become effective upon, and the obligation of each Lender to make the Term
Loans and the initial Revolving Loans (if any) on the Restatement Date, is subject to, the
satisfaction of the following conditions precedent:
(a) Execution of Credit Agreement; Credit Documents and Lender Consents. The
Administrative Agent shall have received (i) counterparts of this Agreement, executed by a
duly authorized officer of each party hereto, (ii) for the account of each Revolving Lender
requesting a promissory note, a Revolving Note, (iii) for the account of each Term Loan
Lender requesting a promissory note, a Term Loan Note, (iv) counterparts of the Security
Documents, in each case conforming to the requirements of this Agreement and executed by
duly authorized officers of the Credit Parties or other Person, as applicable,
(vi) counterparts of any other Credit Document, executed by the duly authorized officers of
the parties thereto and (vii) executed consents, in the form of Exhibit 4.1(a), from
each Lender authorizing the Administrative Agent to enter this Credit Agreement on their
behalf.
(b) Authority Documents. The Administrative Agent shall have received the
following:
(i) Authority Documents. Original certified Authority Documents of
each Credit Party certified (A) by a Responsible Officer of such Credit Party
(pursuant to the Closing Officers Certificate) as of the Restatement Date to be
true and correct and in
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force and effect as of such date, and (B) in the case of the articles of
incorporation, certificates of formation or other Authority Documents filed with a
Governmental Authority, to be true and complete as of a recent date by the
appropriate Governmental Authority of the state of its incorporation or
organization, as applicable.
(ii) Resolutions. Copies of resolutions of the board of directors or
comparable managing body of each Credit Party approving and adopting the Credit
Documents, the transactions contemplated therein and authorizing execution and
delivery thereof, certified by a Responsible Officer of such Credit Party (pursuant
to the Closing Officers Certificate) as of the Restatement Date to be true and
correct and in force and effect as of such date.
(iii) Good Standing. Original certificates of good standing, existence
or its equivalent with respect to each Credit Party certified as of a recent date by
the appropriate Governmental Authorities of the state of incorporation or
organization.
(iv) Incumbency. An incumbency certificate of each Credit Party
certified by a Responsible Officer (pursuant to the Closing Officers Certificate)
to be true and correct as of the Restatement Date.
(c) Legal Opinion of Counsel. The Administrative Agent shall have received one
(1) or more Opinions of Counsel (including, if requested by the Administrative Agent, local
counsel opinions) of counsel for the Credit Parties, dated the Restatement Date and
addressed to the Administrative Agent and the Lenders, in form and substance acceptable to
the Administrative Agent (which shall include, without limitation, opinions with respect to
the due organization and valid existence of each Credit Party, opinions as to perfection of
the Liens granted to the Administrative Agent pursuant to the Security Documents and
opinions as to the non-contravention of the Credit Parties organizational documents and
Material Contracts).
(d) Personal Property Collateral. The Administrative Agent shall have
received, in form and substance satisfactory to the Administrative Agent:
(i) (A) searches of UCC filings in the jurisdiction of incorporation or
formation, as applicable, of each Credit Party, copies of the financing statements
on file in such jurisdictions and evidence that no Liens exist (or the same have
been appropriately terminated) other than Permitted Liens and (B) tax lien,
bankruptcy, judgment and pending litigation searches, the results of which shall be
acceptable to the Administrative Agent in its discretion;
(ii) completed UCC financing statements for each appropriate jurisdiction as is
necessary, in the Administrative Agents discretion, to perfect the Administrative
Agents security interest in the Collateral;
(iii) stock or membership certificates, if any, evidencing the Equity Interests
pledged to the Administrative Agent pursuant to the Pledge Agreements and duly
executed in blank undated stock or transfer powers;
(iv) duly executed consents as are necessary, in the Administrative Agents
discretion, to perfect the Lenders security interest in the Collateral;
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(v) all Instruments and chattel paper in the possession of any of the Credit
Parties, together with allonges or assignments as may be necessary or appropriate to
perfect the Administrative Agents and the Lenders security interest in the
Collateral;
(vi) the Account Control Agreement and the Homewood Account Control Agreement;
and
(vii) if applicable, executed control agreements necessary to perfect any
Collateral where the perfection thereof is by control.
(e) Liability, Casualty, Property and Business Interruption Insurance. The
Administrative Agent shall have received, to the extent requested, copies of insurance
policies or certificates and endorsements of insurance evidencing liability, casualty,
property and business interruption insurance meeting the requirements set forth herein or in
the Security Documents.
(f) Account Designation Notice. The Administrative Agent shall have received
the executed Account Designation Notice in the form of Exhibit 1.1(a) hereto.
(g) Notice of Borrowing. The Administrative Agent shall have received a Notice
of Borrowing with respect to the Loans to be made on the Restatement Date, together with all
other documents, agreements or instruments required by Section 4.2.
(h) Consents. The Administrative Agent shall have received evidence that all
boards of directors, governmental, shareholder and material third party consents and
approvals necessary in connection with the Transactions have been obtained and all
applicable waiting periods have expired without any action being taken by any authority that
could restrain, prevent or impose any material adverse conditions on such transactions or
that could seek or threaten any of the foregoing.
(i) Compliance with Laws. The financings and other Transactions contemplated
hereby shall be in compliance with all Requirements of Law (including all applicable
Securities Laws and banking laws, rules and regulations).
(j) Bankruptcy. There shall be no Insolvency Proceedings pending with respect
to any Credit Party or any Affiliate or Subsidiary thereof.
(k) [Reserved].
(l) Financial Statements. The Administrative Agent and the Lenders shall have
received copies of the financial statements referred to in Section 3.1, each in form and
substance satisfactory to it.
(m) No Material Adverse Change. No Material Adverse Effect shall have
occurred.
(n) Closing Officers Certificate. The Administrative Agent shall have
received a Closing Officers Certificate executed by a Responsible Officer of each of the
Credit Parties as of the Restatement Date, substantially in the form of
Exhibit 4.1(n) stating, among other things, that (i) there does not exist any
pending or ongoing, action, suit, investigation, litigation or proceeding in any court or
before any other Governmental Authority (A) affecting this Agreement or the other Credit
Documents, that has not been settled, dismissed, vacated, discharged or terminated prior to
the Restatement Date or (B) that purports to affect any Credit Party or any of its
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Subsidiaries or Affiliates, or any transaction contemplated by the Credit Documents,
which action, suit, investigation, litigation or proceeding could reasonably be expected to
have a Material Adverse Effect, that has not been settled, dismissed, vacated, discharged or
terminated prior to the Restatement Date, (ii) immediately after giving effect to this
Agreement, the other Credit Documents, and all the Transactions contemplated to occur on
such date, (A) no Default or Event of Default exists, (B) all representations and warranties
contained herein and in the other Credit Documents and in any other document, agreement,
statement, affirmation, certificate, notice, report or financial or other statement
delivered in connection therewith are true and correct, and (C) ART is in compliance with
each of the Financial Covenants set forth in Section 5.9, (iii) each of the other conditions
precedent in Sections 4.1 and 4.2 have been satisfied, except to the extent the satisfaction
of any such condition is subject to the judgment or discretion of the Administrative Agent
or any Lender and (iv) each of the Borrowers is Solvent before and after giving effect to
the initial borrowings under the Credit Documents.
(o) Patriot Act Certificate. At least five (5) Business Days prior to the
Restatement Date, the Administrative Agent shall have received a certificate satisfactory
thereto, substantially in the form of Exhibit 4.1(o), for benefit of itself and the
Lenders, provided by the Credit Parties that sets forth information required by the Patriot
Act including, without limitation, the identity of the Credit Parties, the name and address
of the Credit Parties and other information that will allow the Administrative Agent or any
Lender, as applicable, to identify the Credit Parties in accordance with the Patriot Act.
(p) Material Contracts. To the extent requested by the Administrative Agent,
the Administrative Agent shall have received true and complete copies, certified, in the
Closing Officers Certificate, as true and complete, of all requested Material Contracts,
together with all exhibits and schedules.
(q) Power of Attorney. The Administrative Agent shall have received duly
executed powers of attorney in the form attached as Exhibit 4.1(q)(i) and
Exhibit 4.1(q)(ii), as applicable, from each Borrower and each pledgor under a
Pledge Agreement.
(r) Fees and Expenses. The Administrative Agent and the Lenders shall have
received all fees and expenses, if any, owing pursuant to the Fee Letter and Section 2.3.
(s) Additional Matters. All other documents and legal matters in connection
with the transactions contemplated by this Agreement and the other Credit Documents shall be
reasonably satisfactory in form and substance to the Administrative Agent and its counsel.
Section 4.2 Conditions to All Extensions of Credit.
The obligation of each Lender to make any Extension of Credit hereunder, including the
obligation of each Lender to make the Term Loan on the Funding Date and the pledge by any Borrower
of any Collateral, in each case is subject to the following conditions:
(a) Representations and Warranties. The representations and warranties made by
the Credit Parties herein, in the Credit Documents, in any schedule to the Credit Documents,
in the Mortgage Documents and which are contained in any certificate, document, report or
notice furnished at any time under or in connection herewith or the other Credit Documents
shall (i) with respect to representations and warranties that contain a materiality
qualification, be true and correct and (ii) with respect to representations and warranties
that do not contain a materiality
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qualification, be true and correct in all material respects, in each case on and as of
the date of such Extension of Credit as if made on and as of such date.
(b) No Default or Event of Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the Extension of Credit to
be made on such date unless such Default or Event of Default shall have been waived in
accordance with this Agreement.
(c) Compliance with Commitments. Before and immediately after giving effect to
the making of any such Extension of Credit (and the application of the proceeds thereof),
(i) the sum of the aggregate principal amount of outstanding Revolving Loans shall not
exceed the Revolving Committed Amount then in effect and (ii) the Availability shall not be
negative.
(d) Additional Conditions to Revolving Loans. If a Revolving Loan is
requested, all requirements and conditions set forth in Section 2.1 or other applicable
Sections of this Agreement shall have been satisfied.
(e) Requirement of Law. No Requirement of Law shall prohibit or render it
unlawful, and no order, judgment or decree of Governmental Authority shall prohibit, enjoin
or render it unlawful, to enter into such Extension of Credit in accordance with the
provisions hereof or any other transaction contemplated herein.
(f) Confirmation. The Borrowers shall have delivered a Confirmation, via
Electronic Transmission, in accordance with the procedures set forth in Sections 2.1 and
2.2, and the Administrative Agent shall have determined that the Mortgage Asset described in
such Confirmation is an Eligible Asset, shall have approved in writing in its discretion the
pledge of the related Eligible Asset and the related Loan, if applicable (which approvals
shall be evidenced by the Administrative Agents execution of the related Confirmation), and
shall have obtained all necessary internal credit and other approvals for such Extension of
Credit. With respect to requirements for additional Revolving Loans on existing Revolving
Loan Collateral under Section 2.1(b)(iv), all requirements and conditions of such Section
are satisfied.
(g) Compliance Certificate. The Administrative Agent shall have received a
Compliance Certificate in the form of Exhibit 1.1(i) from a Responsible Officer of
the Credit Parties.
(h) Due Diligence. Subject to the Administrative Agents right to perform one
or more Due Diligence Reviews pursuant to Section 10.27, the Administrative Agent shall have
completed its due diligence review of the Mortgage Asset File and the Underwriting Package
for each Mortgage Asset and such other documents, records, agreements, instruments,
mortgaged properties or information relating to such Mortgage Asset as the Administrative
Agent in its discretion deems appropriate to review and such review shall be satisfactory to
the Administrative Agent in its discretion.
(i) Servicing Agreements. With respect to any Eligible Asset to be pledged
hereunder on the related Borrowing Date that is not serviced by a Borrower, the applicable
Borrower shall have provided to the Administrative Agent copies of the related Servicing
Agreements and the Pooling and Servicing Agreements, certified as true, correct and complete
copies of the originals, together with Servicer Redirection Notices fully executed by the
applicable Borrower and the Servicer or PSA Servicer, as applicable, or such other evidence
satisfactory to the Administrative Agent in its discretion that the applicable Servicer or
PSA
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Servicer has been instructed to deliver all Income with respect to the Collateral to
the Collection Account, which instructions may not be modified without the Administrative
Agents prior written consent.
(j) Fees and Expenses. The Administrative Agent shall have received all fees
and expenses of the Administrative Agent, the Lenders and counsel to the Administrative
Agent due hereunder and under the Fee Letter and, to the extent the Borrowers are required
hereunder to reimburse the Administrative Agent for such amounts, the Administrative Agent
shall have received the reasonable costs and expenses incurred by them in connection with
the entering into of any Extension of Credit hereunder, including, without limitation, costs
associated with due diligence recording or other administrative expenses necessary or
incidental to the execution of any transaction hereunder, which amounts, at the
Administrative Agents option, may be withheld from the sale proceeds of any Extension of
Credit hereunder.
(k) Material Adverse Change. There shall not have occurred a material adverse
change in the financial condition of the Administrative Agent or any Lender that affects (or
can reasonably be expected to affect) materially and adversely the ability of the
Administrative Agent or any Lender to fund its obligations under this Agreement and no
Material Adverse Effect shall have occurred.
(l) Trust Receipt. For each NonTable Funded Mortgage Asset, the Administrative
Agent shall have received from the Custodian on or before each Borrowing Date a Trust
Receipt (along with a completed Mortgage Asset File Checklist attached thereto) and an Asset
Schedule and Exception Report with respect to the Basic Mortgage Asset Documents for each
Eligible Asset, in each case dated the Borrowing Date, duly completed and, in the case of
the Asset Schedule and Exception Report, with exceptions acceptable to the Administrative
Agent in its discretion in respect of Eligible Assets to be pledged hereunder on such
Business Day. In the case of a Table Funded Mortgage Asset, the Administrative Agent shall
have received on the related Borrowing Date the Table Funded Trust Receipt and all other
items described in the second (2nd) sentence of Subsection 2.1(b)(6), each in form and
substance satisfactory to the Administrative Agent in its discretion, provided that the
Administrative Agent subsequently receives the items described in Subsections 2.1(b)(4) and
(6) and the other delivery requirements under the Custodial Agreement on or before the date
and time specified herein and therein, which items shall be in form and substance
satisfactory to the Administrative Agent in its discretion. In the case of Term Loans, the
Custodian shall have possession of all Mortgage Loan Documents for the Term Loan Collateral
and the Administrative Agent shall be in receipt of Trust Receipts for the Term Loan
Collateral and all other conditions under the Custodial Agreement are satisfied with respect
to such Term Loan Collateral.
(m) Release Letters. The Administrative Agent shall have received from the
applicable Borrower a Warehouse Lenders Release Letter (or such other form acceptable to
the Administrative Agent), if applicable, or a Borrowers Release Letter (or such other form
acceptable to the Administrative Agent) covering each Eligible Asset to be pledged to the
Administrative Agent.
(n) Covenants and Agreements. On and as of such day, the Credit Parties and
the Custodian shall have performed all of the covenants and agreements and satisfied all
other conditions contained in the Credit Documents to be performed or satisfied by such
Person on or prior to such day.
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(o) Irrevocable Instruction. The Administrative Agent shall have received
evidence satisfactory to the Administrative Agent that, in connection with any Required
Payment, the payor thereof has been instructed to deliver the Net Cash Proceeds to the
Collection Account, which instructions may not be modified without the prior written consent
of the Administrative Agent.
(p) Certificates of Good Standing. If applicable and to the extent required
for the Administrative Agent or any Lender to assert its rights with respect to an Eligible
Asset, a certification of good standing for the Borrowers in each jurisdiction where the
Underlying Mortgaged Property is located.
(q) Power of Attorney. To the extent there are additional Borrowers other than
the initial Borrowers, the additional Borrowers shall each deliver to the Administrative
Agent a duly executed power of attorney in the form attached as Exhibit 4.1(q), a
Joinder Agreement in form and substance satisfactory to the Administrative Agent in its
discretion and all other agreements, documents, certifications, UCC financing statements and
Opinions of Counsel required of the Borrowers hereunder at the Restatement Date or under the
Joinder Agreement.
(r) Control Agreements. With respect to any Mortgage Asset or collateral for a
Mortgage Asset that is an uncertificated security (as defined in the UCC), securities
entitlement (as defined in the UCC) or is held in a securities account (as defined in the
UCC), the Borrower shall provide to the Administrative Agent a control agreement, which
shall be acceptable to the Administrative Agent in its discretion and shall be delivered to
the Custodian under the Custodial Agreement, executed by the issuer of the Mortgage Asset or
the collateral for the Mortgage Asset or the related securities intermediary (as defined in
the UCC), as applicable, granting control (as defined in the UCC) of such Mortgage Asset or
collateral for such Mortgage Asset to the Administrative Agent and providing that, after an
Event of Default, the Administrative agent shall be entitled to notify the issuer or
securities intermediary, as applicable, that such issuer or securities intermediary shall
comply exclusively with the instructions or entitlement orders (as defined in the UCC), as
applicable, of the Administrative Agent without the consent of the Borrower or any other
Person and no longer follow the instructions or entitlement orders, as applicable, of the
Borrower or any other Person (other than the Administrative Agent).
(s) Consents. Any and all consents, approvals and waivers applicable to the
Collateral shall have been obtained.
(t) Custodial Agreement Insurance. The Administrative Agent shall be in
receipt of the evidence of insurance (if any) required by Section 9.1 of the Custodial
Agreement.
(u) Pledge Provisions. To the extent the Mortgage Loan Documents for the
related Eligible Asset contain notice, cure and other provisions in favor of a pledgee of
the Eligible Asset under a repurchase or warehouse facility, the applicable Borrower shall
provide evidence to the Administrative Agent that the applicable Borrower has given notice
to the applicable Persons of the Administrative Agents interest in such Eligible Asset and
otherwise satisfied any other applicable requirements under such pledgee provisions so that
the Administrative Agent is entitled to receive the benefits and exercise the rights of a
pledgee under the terms of such pledgee provisions contained in the related Mortgage Loan
Documents.
(v) Existing Indebtedness of the Borrowers. All of the existing Indebtedness
for borrowed money of the Borrowers (other than Arbor Realty and ARSR) (other than
Indebtedness
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permitted to exist pursuant to Section 6.1 and the Working Capital Facility) shall be
repaid in full and all security interests related thereto shall be terminated on or prior to
the Restatement Date.
(w) Notice of Borrowing. The Administrative Agent shall have received a Notice
of Borrowing with respect to the Loans to be made on each Borrowing Date, together with all
other documents, agreements or instruments required by this Section.
(x) Documents, Reports, Certifications, Etc. The Administrative Agent shall
have received all such other and further documents, reports, certifications, approvals and
opinions of Counsel as the Administrative Agent in its discretion shall reasonably require.
The failure of any Credit Party, as applicable, to satisfy any of the foregoing conditions
precedent in respect of any Extension of Credit shall, unless such failure was expressly waived in
writing by the Administrative Agent on or prior to the related Borrowing Date, give rise to a right
of the Administrative Agent, which right may be exercised at any time on the demand of the
Administrative Agent, to rescind the related Extension of Credit and direct the Borrowers to pay to
the Administrative Agent as agent for the Secured Parties an amount equal to the outstanding
principal amount of such Extension of Credit, accrued interest and other amounts due in connection
therewith during any such time that any of the foregoing conditions precedent were not satisfied.
Each request for an Extension of Credit and each acceptance by the Borrowers of any such
Extension of Credit shall be deemed to constitute representations and warranties by the Credit
Parties as of the date of the request and as of the date of such Extension of Credit that the
conditions set forth in Sections 4.1 and 4.2 have been satisfied.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of the Credit Parties hereby covenants and agrees that on the Restatement Date, and
thereafter (a) for so long as this Agreement is in effect, (b) until the Commitments have
terminated, and (c) until no Note remains outstanding and unpaid and the Obligations and all other
amounts owing to the Administrative Agent or any Lender hereunder are paid in full, such Credit
Party shall, and shall cause each of their Subsidiaries (other than in the case of Sections 5.1 or
5.2 hereof), to:
Section 5.1 Financial Statements.
Furnish to the Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any event within
one hundred twenty (120) calendar days after the end of each fiscal year of ART, the audited
consolidated balance sheets of ART and its Consolidated Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income and retained earnings and of
cash flows for ART and its Consolidated Subsidiaries for such year, setting forth in each
case in comparative form the figures for the previous year, accompanied by an opinion
thereon of independent certified public accountants of recognized national standing, which
opinion shall not be qualified as to scope of audit or going concern and shall state that
said consolidated financial statements fairly present the consolidated financial condition
and results of operations of ART and its Consolidated Subsidiaries as at the end of, and
for, such fiscal year in accordance with GAAP;
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(b) Quarterly Financial Statements. As soon as available, and in any event
within forty-five (45) calendar days after the end of each fiscal quarter of ART, the
unaudited consolidated and consolidating balance sheets of ART and its Consolidated
Subsidiaries as at the end of such period and the related unaudited consolidated statements
of income and retained earnings and of cash flows for ART and its Consolidated Subsidiaries
for such period and the portion of the fiscal year through the end of such period,
accompanied by a certificate of a Responsible Officer of ART, which certificate shall state
that said consolidated financial statements fairly present in all material respects the
consolidated financial condition and results of operations of ART and its Consolidated
Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, such
period (subject to normal year-end adjustments);
(c) Annual Operating Budget and Cash Flow. As soon as available, but in any
event not later than one hundred twenty (120) calendar days after the end of each fiscal
year of the Credit Parties, and provided that the disclosure does not violate any
Requirement of Law relating to insider trading, a copy of the projections of the Credit
Parties of the consolidated operating budget and cash flow budget of the Credit Parties, for
the succeeding fiscal year, such projections to be accompanied by a certificate of a
Responsible Officer certifying that such projections have been prepared in good faith based
upon reasonable assumptions;
(d) Obligor Operating Statement and Rent Rolls. With respect to each Mortgage
Asset, if provided to any Borrower or any Servicer or PSA Servicer by the Obligor under any
Mortgage Asset, as soon as available, but in any event not later than forty-five (45)
calendar days after the end of each fiscal quarter of the Borrowers, the operating statement
and rent roll for each Underlying Mortgaged Property; provided, however, the
Administrative Agent reserves the right in its reasonable discretion to request such
information on a monthly basis (to be provided no later than thirty (30) calendar days after
the end of each month);
(e) Obligor Balance Sheet. With respect to each Mortgage Asset, if provided to
any Borrower, Servicer or PSA Servicer by the Obligor under any Mortgage Asset, as soon as
available, but in any event not later than thirty (30) calendar days after receipt thereof,
the annual balance sheet with respect to such Obligor; and
(f) Securitization Report. With respect to each Mortgage Asset, as soon as
available but in any event not later than thirty (30) calendar days after receipt thereof,
(A) the related monthly securitization report, if any, and any other reports delivered under
any Servicing Agreement or any Pooling and Servicing Agreements to any Credit Party, if any,
and, (B) within thirty (30) calendar days after the end of each quarter, a copy of the
standard monthly exception report prepared by any Credit Party in the ordinary course of
business in respect of the related Mortgage Assets or Underlying Mortgaged Property;
all such financial statements to be complete and correct in all material respects (subject, in the
case of interim statements, to normal recurring year-end audit adjustments) and to be prepared in
reasonable detail and, in the case of the annual and quarterly financial statements provided in
accordance with subsections (a) and (b) above, in accordance with GAAP applied consistently
throughout the periods reflected therein and further accompanied by a description of, and an
estimation of the effect on the financial statements on account of, a change, if any, in the
application of accounting principles as provided in Section 1.3, provided that any
financial statements delivered with respect to an Obligor under any Mortgage Asset may be delivered
to the Administrative Agent in the form received.
Notwithstanding the foregoing, financial statements and reports required to be delivered
pursuant to the foregoing provisions of this Section may be delivered by Electronic Transmission
and if so, shall be
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deemed to have been delivered on the date on which the Administrative Agent receives such
reports from the Borrowers through electronic mail; provided that, upon the Administrative
Agents request, the Borrowers shall provide paper copies of any documents required hereby to the
Administrative Agent.
Section 5.2 Certificates; Other Information.
Furnish to the Administrative Agent and each of the Lenders:
(a) Accountants Certificate. Concurrently with the delivery of the financial
statements referred to in Section 5.1(a) above, a certificate of the independent certified
public accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Default or Event of Default,
except as specified in such certificate.
(b) Compliance Certificate. Concurrently with the delivery of the financial
statements referred to in Sections 5.1(a) and (b) and in connection with the delivery of
each Notice of Borrowing and each Extension of Credit, a Compliance Certificate from a
Responsible Officer of each Credit Party, which Compliance Certificate shall, among other
things, on a quarterly basis describe in detail the calculations supporting the Responsible
Officers certification of ARTs compliance with the Financial Covenants.
(c) Updated Schedules. Concurrently with or prior to the delivery of the
financial statements referred to in Sections 5.1(a) and 5.1(b) above, (i) an updated copy of
Schedule 3.3 and Schedule 3.12 if the Borrowers or any of their Subsidiaries
have formed or acquired a new Subsidiary since the Restatement Date or since such Schedule
was last updated, as applicable, (ii) an updated copy of Schedule 3.23 if any new
Material Contract has been entered into since the Restatement Date or since
Schedule 3.23 was last updated, as applicable, together with a copy of each new
Material Contract to the extent as requested by the Administrative Agent.
(d) Calculations. (i) Within ninety (90) days after the end of each fiscal
year of the Credit Parties, a certificate containing information including the amount of all
dividends paid and Equity Issuances that were made or engaged in during the prior fiscal
year and amounts received in connection with any Extraordinary Receipt during the prior
fiscal year, (ii) at such time as the Administrative Agent shall request and, in any event,
within five (5) Business Days of the end of each calendar month, a Compliance Certificate
regarding compliance with the Availability and the calculation thereof and/or any update
that the Administrative Agent may request with respect to the Compliance Certificate, and
(iii) promptly upon entering into an engagement letter or commitment or otherwise
documenting any proposed Equity Issuance, a notice containing information regarding any
proposed Equity Issuance, including, without limitation, the parties involved, the expected
closing date, the amount to be received in connection therewith and such other information
as the Administrative Agent may request in its discretion.
(e) Proposed Transactions. (i) Upon request, any and all information,
documents and reports regarding any proposed Trust Preferred Debt as the Administrative
Agent may require in its reasonable discretion, and (ii) as soon as possible and in any
event within thirty (30) days after the closing of any proposed Trust Preferred Debt, fully
executed copies of all loan documentation for any such Permitted Repurchase Facility or
proposed Trust Preferred Debt.
(f) Collateral. With respect to the Collateral, any future Collateral and the
Required Payments, any and all material documents, certificates, agreements, instruments,
reports or notices received by or available to any Credit Party or any Subsidiary or
Affiliate within three (3)
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Business Days of the receipt or availability thereof, and any information, documents
and reports as the Administrative Agent may require in its discretion.
(g) Reports. (i) Within forty-five (45) days of the end of each calendar
quarter, the Borrowers shall provide the Administrative Agent with a quarterly report, which
report shall include, among other items, a summary of the Borrowers delinquency and loss
experience with respect to Mortgage Assets serviced by any Borrower or any Servicer or PSA
Servicer or any designee of the foregoing, the Borrowers internal risk rating, the
borrowers, any Servicers or any PSA Servicers surveillance reports on the Mortgage
Assets, and, to the extent provided to any Borrower or any Servicer or PSA Servicer by the
Obligors under any Mortgage Assets, operating statements, the occupancy status of such
Underlying Mortgaged Property and other property level information, and (ii) on a monthly
basis, within ten (10) days of receipt or preparation thereof by any Borrower, any Servicer
or PSA Servicer, any remittance, servicing and/or exception reports with respect to the
servicing of any Mortgage Assets or the Underlying Mortgaged Properties and any other report
delivered under any Servicing Agreement or Pooling and Servicing Agreement, plus any
such additional reports as the Administrative Agent may reasonably request with respect to
any Borrower or any Servicer or PSA Servicer servicing portfolio or pending originations of
Mortgage Assets.
(h) Mortgage Asset Data Summary. No later than the fifteenth (15th) day of
each month, with respect to each Mortgage Asset, a Mortgage Asset Data Summary,
substantially in the form of Exhibit 5.2(h) (Mortgage Asset Data Summary),
shall be properly completed by the Borrowers and delivered to the Administrative Agent.
(i) Mortgage Assets. The Borrowers shall promptly deliver or cause to be
delivered to the Administrative Agent (i) any report or material notice received by any
Borrower, any Servicer or any PSA Servicer from any Obligor under Collateral promptly
following receipt thereof and (ii) any other such document or information relating to the
Collateral as the Administrative Agent may reasonably request in writing from time to time.
(j) Underwriting Package. Promptly, any modifications or additions to the
items contained in the Underwriting Package.
(k) Reports; SEC Filings; Regulatory Reports; Press Releases; Etc. Promptly
upon their becoming available, (i) copies of all reports (other than those provided pursuant
to Section 5.1 and those which are of a promotional nature) and other financial information
which any Credit Party or any Subsidiary or Affiliate sends to its shareholders, (ii) copies
of all reports and all registration statements and prospectuses, if any, which any Credit
Party or any Subsidiary or Affiliate may make to, or file with, the SEC (or any successor or
analogous Governmental Authority) or any securities exchange or other private regulatory
authority, (iii) all material regulatory reports, (iv) all press releases and other
statements made available by any of the Credit Parties or any Subsidiary or Affiliate to the
public concerning material developments in the business of any of the Credit Parties, (v) to
the extent not prohibited by Requirements of Law, copies of all documents that the Credit
Parties or any Subsidiary or Affiliate thereof are required to file with any regulatory body
in accordance with its regulations, and (vi) any non-routine correspondence or official
notices received by any Credit Party or any Subsidiary or Affiliate of a Credit Party from
any Governmental Authority which regulates the operations of any Credit Party or any
Subsidiary or Affiliate of a Credit Party which is likely to have a Material Adverse Effect.
(l) Management Letters; Etc. Promptly upon receipt thereof, a copy or summary
of any other report, management letter or similar report submitted by independent
accountants to
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any Credit Party or any of their Subsidiaries in connection with any annual, interim or
special audit of the books of such Person.
(m) Pledged Mortgage Asset Certificate. Within ten (10) days of the end of
each calendar month, the Borrowers shall provide the Administrative Agent with a monthly
report, which report shall include, among other items, all proposed repayments, prepayments
and sales of the Pledged Mortgage Assets, which schedule shall be acceptable to the
Administrative Agent in its discretion.
(n) General Information. Promptly, such additional financial and other
information as the Administrative Agent or any Lender may from time to time reasonably
request.
Section 5.3 Payment of Taxes and Other Obligations.
Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as
the case may be, subject, where applicable, to specified grace periods, (a) all of its taxes
(Federal, state, local and any other Taxes) and (b) all of its other obligations and liabilities of
whatever nature in accordance with industry practice and (c) any additional costs that are imposed
as a result of any failure to so pay, discharge or otherwise satisfy such Taxes, obligations and
liabilities, except when the amount or validity of any such Taxes, obligations and liabilities is
currently being contested in good faith by appropriate proceedings and reserves, if applicable, in
conformity with GAAP with respect thereto have been provided on the books of the Credit Parties.
Section 5.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now conducted by it on the Closing
Date and preserve, renew and keep in full force and effect its corporate or other formative
existence and good standing, take all action to maintain all rights, privileges, licenses and
franchises necessary, required or desirable in the normal conduct of its business and to maintain
its goodwill and comply with all Contractual Obligations and Requirements of Law.
Section 5.5 Maintenance of Property; Insurance.
(a) Keep all material Property useful and necessary in its business in good working
order and condition (ordinary wear and tear and obsolescence excepted).
(b) Maintain with financially sound and reputable insurance companies liability,
casualty, property and business interruption in at least such amounts and against at least
such risks as are usually insured against in the same general area by companies engaged in
the same or a similar business; and furnish to the Administrative Agent, upon the request of
the Administrative Agent, full information as to the insurance carried.
Section 5.6 Inspection of Property; Books and Records; Discussions.
Keep proper books, records and accounts in which full, true and correct entries in conformity
with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to
its businesses and activities; and permit, during regular business hours and upon reasonable notice
by the Administrative Agent or any Lender, the Administrative Agent or any Lender to visit and
inspect any of its properties and examine and make abstracts from any of its books and records at
any reasonable time and as often as may reasonably be desired, and to discuss the business,
operations, properties, financial conditions and other conditions of the Credit Parties and their
Subsidiaries and Affiliates with officers and
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employees of the Credit Parties and their Subsidiaries and Affiliates and with its independent
certified public accountants.
Section 5.7 Notices.
Give notice in writing to the Administrative Agent (which shall promptly transmit such notice
to each Lender):
(a) promptly, but in any event within two (2) Business Days after any Credit Party
knows thereof, the occurrence of any Default or Event of Default;
(b) promptly, (i) any default or event of default under any Contractual Obligation,
Indebtedness or Guarantee Obligation of any Credit Party or any of its Subsidiaries which,
individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect or involve a monetary claim in excess of $5,000,000, (ii) any material default or
event of default (beyond any applicable notice and cure period) related to any Collateral or
Required Payment or (iii) any default or event of default under any Credit Party-Related
Obligations.
(c) promptly, any litigation, or any investigation or proceeding known or threatened to
any Credit Party (i) affecting any Credit Party or any of its Subsidiaries which,
individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect or involve a monetary claim in excess of $750,000 or involving injunctions or
requesting injunctive relief by or against any Credit Party or any Subsidiary of any Credit
Party, (ii) affecting or with respect to this Agreement, any other Credit Document, any
security interest or Lien created under any Security Document, any Collateral or any
Required Payment, (iii) involving an environmental claim or potential liability under
Environmental Laws which could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, or (iv) by any Governmental Authority relating to the
Credit Parties or any Subsidiary thereof and alleging fraud, deception or willful misconduct
by such Person;
(d) of any labor controversy that has resulted in, or threatens to result in, a strike
or other work action against any Credit Party that could reasonably be expected to have a
Material Adverse Effect;
(e) of any attachment, judgment, levy or order exceeding $750,000 that may be assessed
against or threatened against any Credit Party, or of any Lien or claim asserted against any
Collateral, other than Permitted Liens;
(f) as soon as possible and in any event within thirty (30) days after any Credit Party
knows or has reason to know thereof: (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC (other than a Permitted Lien) or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any other action
by the PBGC or any Credit Party, any Commonly Controlled Entity or any Multiemployer Plan,
with respect to the withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan;
(g) promptly after becoming aware of the occurrence of any Internal Control Event;
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(h) promptly, any notice of any violation received by any Credit Party from any
Governmental Authority including, without limitation, any notice of violation of
Environmental Laws; and
(i) promptly upon notice or knowledge thereof, notice of any change in ARTs or ARSRs
status as a REIT or ARTs membership or good standing on any recognized securities exchange;
(j) promptly upon notice or knowledge thereof, notice of the conveyance, sale, lease,
assignment, transfer or other disposition (any such transaction, or related series of
transactions, a Sale) of any Property, business or assets of any Credit Party or
any Subsidiary whether now owned or hereafter acquired, with the exception of (A) this
Agreement, (B) any Sale of Property by any Credit Party or any Subsidiary that is not
material to the conduct of its business and is effected in the ordinary course of business,
(C) any sale to a Consolidated Subsidiary, and (D) sales by ARSR or any special purpose
entity Subsidiary of ARSR of loans, participations and/or preferred or common equity
interests (including, without limitation, any sale under any other repurchase facility or
pledge or collateral assignment under any warehouse facility);
(k) promptly upon notice or knowledge thereof, notice of the establishment of a rating
assigned to the long-term unsecured debt issued by any Credit Party by Moodys or S&P (or
other rating agency acceptable to the Administrative Agent) and of any downgrade in such
rating once established;
(l) with respect to any Collateral hereunder, promptly upon receipt of notice or
knowledge that the Underlying Mortgaged Property has been damaged by waste, fire, earthquake
or earth movement, flood, tornado or other casualty, or otherwise damaged so as to affect
adversely the Asset Value of such Collateral;
(m) promptly upon notice or knowledge thereof, provide written notice to the
Administrative Agent of any loss, expected loss or material change in the value of any
Collateral, any Required Payment, any Property or asset of any Credit Party or a Subsidiary
(to the extent that such loss with respect to any such Property or asset could reasonably be
expected to have a Material Adverse Effect), or any other event or change in circumstances
or expected event or change in circumstances that could reasonably be expected to result (A)
in a default with respect to any Mortgage Asset included in the Collateral, or (B) in a
material decline in value or cash flow of any Collateral, any Underlying Mortgaged Property
for any Collateral, any Required Payment or any Property or asset of a Credit Party or a
Subsidiary (to the extent that such event or change with respect to any such Property or
asset could reasonably be expected to have a Material Adverse Effect);
(n) the Borrowers shall provide written notice to the Administrative Agent at least
ten (10) days prior to any Credit Party or any Affiliate or Subsidiary thereof acquiring any
interest that would be senior in priority to any existing Mortgage Asset that is included in
the Collateral; and
(o) promptly, any other development or event which could reasonably be expected to have
a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer
setting forth details of the occurrence referred to therein and stating what action the Credit
Parties propose to take
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with respect thereto. In the case of any notice of a Default or Event of Default, the Borrowers
shall specify that such notice is a Default or Event of Default notice on the face thereof.
Section 5.8 Environmental Laws.
(a) Except as could not reasonably be expected, either individually or in the
aggregate, to have a Material Adverse Effect, comply with, and ensure compliance in all
material respects by all tenants and subtenants, if any, with, all applicable Environmental
Laws and obtain and comply with and maintain, and ensure that all tenants and subtenants
obtain and comply with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws;
(b) Except as could not reasonably be expected, either individually or in the
aggregate, to have a Material Adverse Effect, conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings; and
(c) Defend, indemnify and hold harmless the Administrative Agent and the Lenders, and
their respective employees, agents, officers and directors and affiliates, from and against
any and all claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or otherwise, arising out
of, or in any way relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Credit Parties or any of their
Subsidiaries or the Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable attorneys and
consultants fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification therefor. The
provisions of this Section shall survive the termination of this Agreement and the payment
in full of the Obligations.
Section 5.9 Financial Covenants.
ART shall comply with the following Financial Covenants:
(a) Maintenance of Liquidity. ART shall not permit, for any calendar quarter,
Liquidity for such Test Period to be less than $7,500,000, all of which shall consist of
cash or Cash Equivalents; provided, however, that such $7,500,000 shall be reduced for each
dollar of cash collateral in excess of $25,000,000 posted as collateral for a Wachovia
Derivatives Contract.
(b) Maintenance of Tangible Net Worth. ART shall not permit, for any Test
Period, Tangible Net Worth at any time to be less than $150,000,000.
(c) Maintenance of Ratio of Net Total Liabilities to Adjusted Tangible Net
Worth. ART shall not permit, for any Test Period, the ratio of its Net Total
Liabilities to Adjusted Tangible Net Worth at any time to be greater than 4:5 to 1:0.
(d) Payout Restrictions. For any calendar year, ART shall not make dividend or
distribution payments in excess of 100% of taxable income; provided, that, except as set
forth in clause (o) of the Fee Letter with respect to any New Stock Class, for so long as
(x) the
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Obligations outstanding under this Agreement exceed $210,000,000, (y) the Obligations
outstanding under the Working Capital Facility exceed $30,000,000 and (y) the Liquidity of
ART is less than $35,000,000, all dividend or distribution payments shall be paid as Equity
Interests up to the highest percentage permitted by the Code to be paid in Equity Interests;
provided, however, nothing in this Section 5.9(d) shall prohibit ART from declaring and
paying dividends in an amount necessary to maintain its status as a REIT. Notwithstanding
the foregoing, in the event that ART mistakenly makes distributions in excess of 100% of
taxable income during any calendar year, then, so long as such distributions did not exceed
110% of taxable income, such excess distributions shall not constitute a Default or Event of
Default hereunder but shall be deemed distributions related to the following calendar year.
Section 5.10 Additional Credit Parties.
(a) Additional Borrowers. To the extent any new Borrower is approved by the
Administrative Agent, in its discretion, the Credit Parties shall deliver to the
Administrative Agent, with respect to each new Borrower to the extent applicable,
substantially the same documentation required pursuant to Sections 4.1 and 5.12 and such
other documents or agreements as the Administrative Agent may reasonably request, including
without limitation a Borrower Joinder Agreement.
(b) Additional Guarantors. To the extent any new Guarantor is approved by the
Administrative Agent, in its discretion, the Credit Parties shall deliver to the
Administrative Agent, with respect to each new Guarantor to the extent applicable,
substantially the same documentation required pursuant to Sections 4.1 and 5.12 and such
other documents or agreements as the Administrative Agent may reasonably request, including
without limitation a Guarantor Joinder Agreement.
Section 5.11 Compliance with Law.
(a) Comply with all Requirements of Law (including Environmental Laws and Securities
Laws) and all applicable restrictions imposed by all Governmental Authorities, applicable to
it and the Collateral.
(b) Comply in all material respects with all Contractual Obligations, all Indebtedness
and all Guarantee Obligations.
Section 5.12 Pledged Assets.
With respect to the Collateral, the Credit Parties shall (a) take all action necessary to
perfect, protect and more fully evidence the Administrative Agents first priority perfected
security interest in the Collateral, including, without limitation, (i) filing and maintaining
effective financing statements against the Borrowers and other Credit Parties, as applicable in all
necessary or appropriate filing offices, and filing continuation statements, amendments or
assignments with respect thereto in such filing offices, (ii) executing or causing to be executed
such other instruments, notices or control agreements as may be necessary or appropriate, and
(iii) to the extent that anyone other than Wachovia is the Administrative Agent, entering into a
new Account Control Agreement and Homewood Account Control Agreement, and (b) taking all additional
action that the Administrative Agent may reasonably request to perfect, protect and more fully
evidence the respective interests of the parties to this Agreement and the Credit Documents in such
Collateral. To the extent any Collateral is created or comes into existence after the Closing
Date, the Credit Parties shall take such actions as the Administrative Agent shall require to
obtain a first priority perfected security interest in such Collateral.
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Section 5.13 Interest Rate Protection Agreements.
Each Credit Party shall perform its duties and obligations under and shall otherwise maintain
any existing Interest Rate Protection Agreements to which it is a party.
Section 5.14 Account Control Agreement.
The Borrowers shall maintain the Account Control Agreement and the Homewood Interest Reserve
in full force and effect and shall not amend or modify the Account Control Agreement or the
Homewood Interest Reserve or waive compliance with any provisions thereunder without the prior
written consent of the Administrative Agent.
Section 5.15 Further Assurances.
(a) Public/Private Designation. The Credit Parties will cooperate with the
Administrative Agent in connection with the publication of certain materials and/or
information provided by or on behalf of the Credit Parties to the Administrative Agent and
Lenders (collectively, Information Materials) pursuant to this Article V or the
other Credit Documents and will designate Information Materials (i) that are either
available to the public or not material with respect to the Credit Parties and their
Subsidiaries or any of their respective securities for purposes of applicable Securities
Laws as Public Information and (ii) that are not Public Information as
Private Information.
(b) Additional Information. The Credit Parties shall provide such information
regarding the operations, business affairs and financial condition of the Credit Parties or
any of their Subsidiaries or Affiliates as the Administrative Agent or any Lender may
reasonably request.
(c) Visits and Inspections. The Credit Parties shall permit representatives of
the Administrative Agent or any Lender, from time to time upon prior reasonable notice and
at such times during normal business hours, to visit and inspect its Properties; inspect,
audit and make extracts from its books, records and files, including, but not limited to,
management letters prepared by independent accountants; and discuss with its principal
officers, and its independent accountants, its business, assets, liabilities, financial
condition, results of operations and business prospects. Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent or any Lender may do any of the
foregoing at any time without advance notice.
(d) Intercreditor Agreement. The Credit Parties shall acknowledge and agree to
the Intercreditor Agreement to the extent the Administrative Agent deems that such
Intercreditor Agreement is necessary.
Section 5.16 Performance and Compliance with Collateral.
The Credit Parties shall, at their expense, timely and fully perform and comply (and shall
cause their Consolidated Subsidiaries, the Servicers and the PSA Servicers to timely and fully
perform and comply) with all provisions, covenants and other promises required to be observed by
them under the Collateral and all other agreements related to such Collateral.
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Section 5.17 Delivery of Income and Required Payments.
The Credit Parties shall deposit, and shall cause the other Credit Parties, each of their
Subsidiaries and all other Persons to deposit, all Income, Required Payments and other amounts
payable to the Borrowers in respect of the Collateral or payable to any Credit Party or Subsidiary
or Affiliate in respect of any Required Payment into the Collection Account within two (2) Business
Days of such Persons receipt thereof. The Borrowers shall deposit, or cause to be deposited, into
the Collection Account, on or before the date required by the Credit Documents, all other amounts
required by the terms of the Credit Documents. The Credit Parties shall provide the Administrative
Agent with fully executed copies of all Irrevocable Instructions required by this Agreement. The
Credit Parties shall take steps necessary to enforce such Irrevocable Instructions and shall
immediately inform the Administrative Agent of, and rectify any default, breach, failure or
unwillingness to perform thereunder, any dispute or controversy in connection therewith or any
other matter that may, could or will result in payments not being made as contemplated under the
terms of such Irrevocable Instructions. The Credit Parties shall not, and shall not permit any
Credit Party or any Subsidiary or Affiliate to, modify or revoke or permit any modifications or
revocations of the Irrevocable Instructions without the Administrative Agents prior written
consent in its discretion. The Borrowers shall deliver such other Irrevocable Instructions as the
Administrative Agent may require in its discretion. All distributions from the Collection Account
and the Homewood Interest Reserve shall be made solely in accordance with the terms, provisions and
conditions of this Agreement, the Account Control Agreement and the Homewood Account Control
Agreement.
Section 5.18 Exceptions.
The Borrowers shall promptly correct any and all Exceptions set forth on any Asset Schedule
and Exception Report.
Section 5.19 Distributions in Respect of Collateral.
If the Credit Parties or any Subsidiary or Affiliate shall receive any rights, whether in
addition to, in substitution of, as a conversion of, or in exchange for any Collateral, or
otherwise in respect thereof, the Credit Parties shall accept the same as the Administrative
Agents agent, hold the same in trust for the Administrative Agent and deliver the same forthwith
to the Administrative Agent (or its designee) in the exact form received, together with duly
executed instruments of transfer, assignments in blank, executed and undated stock powers in blank
and such other documentation as the Administrative Agent shall reasonably request. If any sums of
money or property are paid or distributed in respect of the Collateral (other than the Obligor
Reserve Payments) and received by any Credit Party or any Subsidiary or Affiliate, the Credit
Parties shall promptly pay or deliver, or caused to be paid or delivered, such money or property to
the Administrative Agent and, until such money or property is so paid or delivered to the
Administrative Agent, hold such money or property in trust for the Administrative Agent, segregated
from other funds of the Credit Parties, their Subsidiaries and Affiliates and other Persons.
Section 5.20 REIT Status.
(a) ART shall at all times continue to be (i) qualified as a REIT as defined in Section 856 of
the Code without giving any effect to any cure or corrective periods or allowances, (ii) entitled
to a dividends paid deduction under Section 857 of the Code with respect to dividends paid by it
with respect to each taxable year for which it claims a deduction on its Form 1120-REIT filed with
the United States Internal Revenue Service for such year, or the entering into by it of any
material prohibited transactions as defined in Sections 857(b) and 856(c) of the Code, and
(iii) a publicly traded company listed, quoted or traded on and in good standing in respect of any
Stock Exchange and (b) ARSR shall at all times continue
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to be qualified as a REIT, in each case without giving any effect to any cure or corrective
periods or allowances.
Section 5.21 Equity Issuances.
The terms and provisions governing Equity Issuances are set forth in the Fee Letter and are
hereby incorporated by reference.
Section 5.22 Remittance of Prepayments.
The Borrowers shall remit or cause to be remitted to the Administrative Agent, with sufficient
detail, via Electronic Transmission, to enable the Administrative Agent to appropriately identify
the Collateral to which any amount remitted applies, all full or partial principal prepayments
(regardless of the source of repayment) on any Collateral that a Borrower, a Servicer or a PSA
Servicer has received or that have been deposited into the Collection Account no later than two (2)
Business Days following the date such prepayment was received or deposited.
Section 5.23 Escrow Imbalance.
The Borrowers shall (to the extent it is acting as a servicer) or shall cause the Servicer to,
no later than five (5) Business Days after learning (from any source) of any material imbalance in
any reserve or escrow account related to any Collateral, fully and completely correct and eliminate
such imbalance, including, without limitation, depositing its own funds into such account to
eliminate any overdraw or deficit, to the extent required by the applicable Servicing Agreement (in
the case of a Servicer).
Section 5.24 Separateness.
Notwithstanding any term contained in this Agreement or the other Credit Documents to the
contrary, each Borrower (other than Arbor Realty and ARSR) shall (a) own no assets, and shall not
engage in any business, other than the assets and transactions specifically contemplated by this
Agreement and the Credit Documents; (b) not incur any Indebtedness or obligation, secured or
unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation),
other than (i) pursuant hereto and under the agreements and documents evidencing, securing or in
any other way related to the Mortgage Assets and the related Collateral, (ii) customary
representations, warranties, indemnities and other agreements in connection with the origination,
acquisition, servicing, collection, enforcement, financing, participation, securitization, sale or
other disposition of the Mortgage Assets, and (iii) obligations under zoning and other governmental
regulations, rules, prohibitions and ordinances and proposed restrictions, covenants, conditions,
limitations, easements, rightsofway and other matters existing of public record or proposed to be
recorded or filed in the future governing or affecting mortgaged real Property or that may
otherwise require the consent of or joinder by a mortgagee; (c) not make any loans or advances to
any Affiliate other than loans to a Guarantor which are disclosed in writing to and approved in
writing by the Administrative Agent, and shall not acquire obligations or securities of its
Affiliates; (iv) pay its debts and liabilities (including, as applicable, shared personnel and
overhead expenses) only from its own assets; (d) comply with the provisions of its Authority
Documents; (vi) do all things necessary to observe organizational formalities and to preserve its
existence, and will not amend, modify or otherwise change its Authority Documents without the
consent of the Administrative Agent; (e) maintain all of its books, records, financial statements
and bank accounts separate from those of its Affiliates (except that such financial statements may
be consolidated to the extent consolidation is required under the GAAP consistently applied or as a
matter of the Requirements of Law) and file its own tax returns (except to the extent consolidation
is required or permitted under Requirements of Law); (f) be, and at all times will hold itself out
to the public as, a legal entity separate and distinct from any other
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entity (including any Affiliate), shall correct any known misunderstanding regarding its
status as a separate entity, shall conduct business in its own name, and shall not identify itself
or any of its Affiliates as a division of the other; (g) maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its size and character and in light of its
contemplated business operations; (h) not engage in or suffer any change of ownership, dissolution,
winding up, liquidation, consolidation or merger in whole or in part; (i) not commingle its funds
or other assets with those of any Affiliate or any other Person; (j) maintain its accounts separate
from those of any Affiliate or any other Person; (k) shall not hold itself out to be responsible
for the debts or obligations of any other Person; (l) shall not, without the vote of its
Independent Director, (i) file or consent to the filing of any Insolvency Proceeding with respect
to itself, institute any proceedings under any applicable Insolvency Law or otherwise seek any
relief under any Requirements of Law relating to the relief from debts or the protection of debtors
generally with respect to itself, (ii) seek or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator, custodian or any similar official for itself or a
substantial portion of its properties, or (iii) make any assignment for the benefit of its
creditors; (m) shall have at all times at least one (1) Independent Director (or such greater
number as required by the Administrative Agent or the Rating Agencies); (n) shall maintain an arms
length relationship with its Affiliates; (o) maintain a sufficient number of employees in light of
contemplated business operations; (p) use separate stationary, invoices and checks; and (q)
allocate fairly and reasonably any overhead for shared office space.
Section 5.25 Preferred Equity Interests and Equity Assets.
The Borrowers shall or shall cause each Preferred Equity Grantor and Equity Asset Grantor to
preserve and maintain its legal and valid existence, rights, franchises, privileges and good
standing in the jurisdiction of its formation and will qualify and remain qualified in good
standing in each other jurisdiction where, due to the nature of its business or Property, such
qualification is necessary. The Borrowers shall provide evidence to the Administrative Agent, upon
request, of the Preferred Equity Grantors and Equity Asset Grantors compliance with the
requirements of this subsection.
Section 5.26 Pledge of Repurchased Debt.
To the extent that any Credit Party or any Affiliate of a Credit Party repurchases any
Indebtedness of any Credit Party or an Affiliate of any Credit Party using Liquidity or other cash,
Cash Equivalents or other funds of any Credit Party or an Affiliate of any Credit Party (other than
proceeds of an Equity Issuance), the Borrowers shall notify the Administrative Agent at least
fifteen (15) Business Days in advance thereof, pledge such repurchased Indebtedness to the
Administrative Agent on behalf of the Secured Parties and, to the extent necessary, execute and
deliver any documentation (including, without limitation, amendments to the Credit Documents and
opinions of counsel) as the Administrative Agent may reasonably request in order to perfect the
Administrative Agents interest in such additional collateral. Amounts payable under such pledged
repurchased debt shall constitute Income hereunder and shall be applied in accordance with Section
2.9 hereof. The Administrative Agent and the Lenders acknowledge that the Borrowers intend to
modify (or replace) the Original Kodiak Indentures and, in connection therewith, exchange the debt
securities issued thereunder for new debt securities of ARSR. The Administrative Agent and the
Lenders agree that such exchange shall not constitute a repurchase of Indebtedness by ARSR.
Section 5.27 REO Property.
The terms and provisions governing REO Property are set forth in the Fee Letter and are hereby
incorporated by reference.
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Section 5.28 Warrant Opinion.
No later than August 7, 2009, the Borrowers shall deliver an Opinion of Counsel, addressed to
the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative
Agent, which includes opinions addressing the Warrants and the Warrant Shares (each as defined in
the Warrant Agreements) and which shall be substantially of the substance set forth in the e-mail
received from Paul Elenio on July 23, 2009 at 4:32 p.m., with no additional material assumptions or
qualifications.
Section 5.29 Independence of Covenants.
All covenants hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant shall not avoid the
occurrence of an Default or Event of Default if such action is taken or condition exists.
ARTICLE VI
NEGATIVE COVENANTS
Each of the Credit Parties hereby covenants and agrees that on the Restatement Date, and
thereafter (a) for so long as this Agreement is in effect, (b) until the Commitments have
terminated, (c) until no Note remains outstanding and unpaid and the Obligations and all other
amounts owing to the Administrative Agent or any Lender hereunder are paid in full, that:
Section 6.1 Indebtedness.
No Borrower (other than Arbor Realty and ARSR) will, nor will it permit any Subsidiary to,
contract, create, incur, assume or permit to exist any Indebtedness or Guarantee Obligations,
except:
(a) Indebtedness arising or existing under this Agreement and the other Credit
Documents;
(b) Indebtedness of the Borrowers (other than Arbor Realty and ARSR) existing as of the
Restatement Date as referenced in the financial statements referenced in Section 3.1 (and
set out more specifically in Schedule 6.1(b) hereto) and any renewals, refinancings
or extensions thereof in a principal amount not in excess of that outstanding as of the date
of such renewal, refinancing or extension; and
(c) Indebtedness and obligations owing under Interest Rate Protection Agreements or
Derivatives Contract entered into in order to manage existing or anticipated interest rate,
exchange rate or commodity price risks related to the Mortgage Assets and not for
speculative purposes.
Section 6.2 Liens.
The Credit Parties and the Subsidiaries and Affiliates shall not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume, suffer or permit to exist any Lien
on all or any portion of the Collateral or the Required Payments, other than Permitted Liens,
whether now existing or hereafter transferred hereunder, or any interest therein, and the Credit
Parties and the Subsidiaries and Affiliates shall not sell, pledge, assign or suffer to exist any
Lien, or any circumstance which, if adversely
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determined, would be reasonably likely to give rise to a Lien, on its interest, if any,
hereunder or under the other Credit Documents. Immediately upon notice to any Credit Party of a
Lien or any circumstance which, if adversely determined would be reasonably likely to give rise to
a Lien (other than in favor of the Administrative Agent or created by or through the Administrative
Agent), on all or any portion of the Collateral or the Required Payments, the Borrowers shall
notify the Administrative Agent and the Borrowers shall further defend the Collateral and the
Required Payments against, and will take such other action as is necessary to remove, any Lien or
claim on or to the Collateral or the Required Payments (other than any Permitted Liens created
under this Agreement and the Credit Documents), and the Borrowers shall defend the right, title and
interest of the Credit Parties and their Subsidiaries and Affiliates in and to any of the
Collateral and the Required Payments against the claims and demands of all Persons whomsoever.
Notwithstanding the foregoing, if a Credit Party or any Subsidiary or Affiliate shall grant a Lien
on any of the Collateral or Required Payments in violation of this Section, then it shall be deemed
to have simultaneously granted an equal and ratable Lien on any such Collateral or Required
Payments in favor of the Administrative Agent for the ratable benefit of the Secured Parties to the
extent such Lien has not already been granted to the Administrative Agent.
Section 6.3 Nature of Business.
No Credit Party will, nor will it permit any Subsidiary to, alter the character of its
business in any material respect from that conducted as of the Closing Date. The Borrowers shall
not engage in any activity other than activities specifically permitted by this Agreement,
including, but not limited to, investment in mortgage loans, mezzanine loans, participations,
preferred equity and other real estate related assets and the purchasing, financing and holding of
commercial mortgage-backed securities and activities incident thereto.
Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc.
No Credit Party shall enter into any transaction of merger or consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution) or
sell all or substantially all of its assets (other than in connection with a CDO Issuance);
provided, however, that any Credit Party may merge or consolidate with (i) any
wholly owned Subsidiary of such Credit Party, or (ii) any other Person if a Credit Party is the
surviving entity; and provided, further, that, if after giving effect thereto, no
Default or Event of Default would exist hereunder.
Section 6.5 Repurchase of Debt.
For any given calendar quarter, no Credit Party and no Affiliate of a Credit Party shall use
any Liquidity, cash, Cash Equivalents or other funds to repurchase any outstanding Indebtedness of
any Credit Party or any Affiliate of a Credit Party (other than proceeds of an Equity Issuance) in
an amount greater than the lesser of (a) $7,500,000 in the aggregate for such calendar quarter and
(b) 50% of the CDO Equity Distributions (as defined in the Working Capital Facility Loan Agreement)
received by the Credit Parties or their Affiliates in connection with any CDO Issuance for the
previous calendar quarter.
Section 6.6 Transactions with Affiliates.
The Credit Parties will not, nor will they permit any Subsidiary to, enter into any
transaction or series of transactions, whether or not in the ordinary course of business, with any
officer, director, shareholder or Affiliate other than on terms and conditions substantially as
favorable as would be obtainable in a comparable arms-length transaction with a Person that is not
an officer, director, shareholder or Affiliate.
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Section 6.7 Ownership of Subsidiaries; Restrictions.
The Borrowers (other than Arbor Realty and ARSR) shall not create or own Subsidiaries without
the Administrative Agents consent in its discretion. The Borrowers (other than Arbor Realty and
ARSR) will not sell, transfer, pledge or otherwise dispose of any Equity Interest or other equity
interests in any of their Subsidiaries, nor will they permit any of their Subsidiaries to issue,
sell, transfer, pledge or otherwise dispose of any of their Equity Interest or other equity
interests, except in a transaction permitted by Section 6.4.
Section 6.8 Corporate Changes; Material Contracts.
No Credit Party will, nor will it permit any of its Subsidiaries to, (a) change its fiscal
year, (b) amend, modify or change its Authority Documents in any respect that would impact, impair
or affect the Collateral or any Required Payment or is otherwise adverse to the interests of the
Lenders without the prior written consent of the Administrative Agent; provided that no
Credit Party shall (i) to the extent permitted under this Agreement, alter its legal existence or,
in one transaction or a series of transactions, merge into or consolidate with any other entity, or
sell all or substantially all of its assets, (ii) change its state of incorporation or
organization, or (iii) change its registered legal name, without providing thirty (30) days prior
written notice to the Administrative Agent and without filing (or confirming that the
Administrative Agent has filed) such financing statements and amendments to any previously filed
financing statements as the Administrative Agent may require, (c) except as provided in Section
6.15, amend, modify, cancel or terminate or fail to renew or extend or permit the amendment,
modification, cancellation or termination of any of its Material Contracts in any respect adverse
to the interests of the Lenders without the prior written consent of the Required Lenders,
(d) change its state of incorporation, organization or formation without the consent of the
Administrative Agent or have more than one state of incorporation, organization or formation or
(e) change its accounting method (except in accordance with GAAP) in any manner adverse to the
interests of the Lenders without the prior written consent of the Required Lenders.
Section 6.9 Limitation on Restricted Actions.
The Borrowers (other than Arbor Realty and ARSR) will not, nor will they permit any Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any
Lien or restriction on the ability of any such Person to (a) pay dividends or make any other
distributions to any Credit Party on its Equity Interest or with respect to any other interest or
participation in, or measured by, its profits, (b) pay any Indebtedness or other obligation owed to
any Credit Party, (c) make loans or advances to any Credit Party, (d) sell, lease or transfer any
of its Properties to any Credit Party, or (e) act as a Borrower or Guarantor, to obtain loans or to
pledge its assets pursuant to the Credit Documents or any renewals, refinancings, exchanges,
refundings or extension thereof, except (in respect of any of the matters referred to in
clauses (a)-(d) above) for such Liens or restrictions existing under or by reason of (i) this
Agreement and the other Credit Documents, (ii) Requirements of Law, or (iii) the Working Capital
Facility.
Section 6.10 Restricted Payments.
Except as otherwise required or permitted by the Credit Documents, no Credit Party shall
declare or make any payment on account of, or set apart assets for, a sinking or other analogous
fund for the purchase, redemption, defeasance, retirement or other acquisition of any Equity
Interest of any Credit Party whether now or hereafter outstanding, or make any other distribution
in respect thereof, either directly or indirectly, whether in cash or Property or in obligations of
any Credit Party, except that a Credit Party may (i) declare and pay dividends in an amount
necessary to maintain its status as a REIT
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and, (ii) so long as no Default or Event of Default shall have occurred and the Financial
Covenants are satisfied, (a) in the case of ART only, ART may declare and pay dividends in the
amounts permitted by but subject to the terms and conditions of Section 5.9(d), (b) the Credit
Parties may distribute funds among the Credit Parties and their Consolidated Subsidiaries, (c) in
the case of Arbor Realty only, Arbor Realty may make distributions, in the ordinary course of
business, to Arbor Commercial Mortgage, LLC in respect of the limited partnership interest of Arbor
Realty which Arbor Commercial Mortgage, LLC holds, and (d) ART may redeem Equity Interests held by
Arbor Commercial Mortgage, LLC for stock in ART (but not for cash), and (e) the Credit Parties may
declare and pay dividends with respect to Equity Issuances as permitted in the Fee Letter.
Section 6.11 [Reserved].
Section 6.12 No Further Negative Pledges.
None of the Borrowers (other than Arbor Realty and ARSR) or any of their Subsidiaries shall
grant, allow or enter into any agreement or arrangement with any Person that prohibits or
restricts, or purports to prohibit or restrict, the granting of any Lien or other encumbrance on
any of the assets or Properties of the Borrowers (other than Arbor Realty and ARSR) or their
Consolidated Subsidiaries; provided, however, that the foregoing shall not apply to
(i) the negative pledge contained in Section 6.18, (ii) Indebtedness identified on Schedule
6.1(b) or (iii) any other negative pledge or grant of any Lien or other encumbrance approved by
the Administrative Agent in its discretion.
Section 6.13 Collateral Not to be Evidenced by Instruments.
No Credit Party shall take any action to cause all or any portion of the Collateral that is
not, as of the applicable Borrowing Date, evidenced by an Instrument to be so evidenced except,
with the Administrative Agents consent, in connection with the enforcement or collection of such
Collateral.
Section 6.14 Deposits.
The Credit Parties will not deposit or otherwise credit, or cause or permit to be so deposited
or credited, to the Collection Account or Homewood Interest Reserve cash or cash proceeds other
than (i) in the case of the Collection Account, Income in respect of Collateral, Cash Collateral
and other payments required to be deposited therein under the Credit Documents, and (ii) in the
case of the Homewood Interest Reserve, the interest reserve amounts for the Homewood Mortgage
Asset.
Section 6.15 Servicing Agreements.
The Credit Parties will not materially amend, modify, waive or terminate any provision of any
Servicing Agreement or Pooling and Servicing Agreement without the prior written consent of the
Administrative Agent. Notwithstanding the foregoing, but subject to the Administrative Agents
rights under Article IX, the Borrowers shall have the right to terminate any of the foregoing upon
the occurrence of a material default (beyond any applicable notice and cure period) of the other
party thereto.
Section 6.16 Extension or Amendment of Collateral.
Except as provided in Section 9.7, the Borrowers will not extend, amend, waive or otherwise
modify, or permit any Servicer or PSA Servicer (except as provided in a Pooling and Servicing
Agreement) to extend, amend, waive or otherwise modify the material terms of any Collateral or the
Mortgage Loan Documents related thereto or to exercise the material rights of a holder of said
Collateral, provided that the foregoing shall not prohibit the Borrowers, a Servicer or a PSA
Servicer from
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permitting, prior to a default thereunder, any Obligor to exercise an extension option
contained in any Mortgage Loan Documents. Unless otherwise agreed to by the Administrative Agent
in its discretion, the Borrowers, the Servicers and the PSA Servicers (except as provided in a
Pooling and Servicing Agreement) shall have no right to waive, amend, modify or alter the material
terms of any Collateral or the related Mortgage Loan Documents thereto or otherwise exercise any
material right of the holder of any Collateral.
Section 6.17 Stock Repurchase.
Except as set forth in the Fee Letter, no Credit Party shall repurchase any outstanding common
stock or operating partnership units of any Credit Party prior to the later of (a) the Maturity
Date and (b) the payment in full of the Obligations.
Section 6.18 No Future Liens.
No Borrower shall grant or permit, or suffer to be granted or permitted, any Lien on, or any
encumbrances upon, any of the assets or Properties of any Borrower, whether owned now or hereafter
acquired, which shall include, without limitation, but, in the case of Arbor Realty, shall be
limited to, any Collateral and any Required Payment, in favor of any Person, other than Liens in
favor of the Administrative Agent as agent for the Secured Parties.
Section 6.19 Eligible Subordinated Debt.
The Credit Parties shall not, nor shall they permit any Subsidiary to, issue any Trust
Preferred Debt that (a) does not have subordination provisions substantially the same as those in
the indentures for the transactions listed in clause (a) of the definition of Eligible
Subordinated Debt, (b) does not have enforceable subordination provisions, (c) has a maturity date
earlier than the date that is six (6) months following the Maturity Date or (d) that is not
approved by the Administrative Agent in its discretion. The Credit Parties shall deliver an
Opinion of Counsel from the counsel to the applicable Credit Party or the applicable Subsidiary of
a Credit Party in connection with the creation of such Eligible Subordinated Debt as to the
enforceability of the subordination provisions contained in all Eligible Subordinated Debt, each in
form and substance satisfactory to the Administrative Agent in its discretion.
Section 6.20 Senior and Pari Passu Interests.
No Credit Party shall acquire or maintain any right or interest in any Mortgage Asset (or,
directly or indirectly, the Underlying Mortgaged Property with respect thereto) that is senior to
or pari passu with the rights and interests of the Administrative Agent therein under this
Agreement and the Credit Documents unless such interest is also part of the Collateral.
Section 6.21 [Reserved].
Section 6.22 Inconsistent Agreements.
The Credit Parties shall not directly or indirectly, enter into any agreement containing any
provision that would be violated or breached by any transaction, Loan or pledge of Collateral under
the Credit Documents or by the performance by any Credit Party of its duties, covenants or
obligations under any Credit Document.
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Section 6.23 Margin Regulations.
No part of the proceeds of any Loan shall be used for any purpose that violates or would be
inconsistent with the provisions of Regulation T, U or X.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the following specified events
(each an Event of Default):
(a) Payment. (i) The Borrowers shall fail to pay any principal or interest on
any Loan or Note when due (whether at maturity, by reason of mandatory or optional
prepayment, by reason of acceleration or otherwise) in accordance with the terms hereof or
thereof; or (ii) the Borrowers shall fail to pay any fee or other amount payable hereunder
or under the Credit Documents when due (whether at maturity, by reason of mandatory or
optional prepayment, by reason of acceleration or otherwise) in accordance with the terms
hereof and such failure shall continue unremedied for two (2) Business Days after written
notice from the Administrative Agent; or (iii) or any Guarantor shall fail to pay on the
Guaranty in respect of any of the foregoing or in respect of any other Obligations under the
Credit Documents (after giving effect to the grace period in clause (ii) above; or (iv) any
other Credit Party shall fail to pay any amounts owed by it under the Credit Documents to
which it is a party (after giving effect to the grace period in clause (ii) above); or
(b) Misrepresentation. Any representation or warranty made or deemed made
herein, in the Security Documents or in any of the other Credit Documents or which is
contained in any certificate, document or financial or other statement furnished at any time
under or in connection with this Agreement or the Credit Documents (in each case other than
the representations and warranties contained in Schedule 1.1(c) to this Agreement
unless any Borrower shall have affirmed or confirmed any such eligibility criteria with
actual knowledge that it was not satisfied in any material respect) shall prove to have been
incorrect, false or misleading on or as of the date made or deemed made and continues to be
unremedied for a period of twenty (20) Business Days after the earlier to occur of (i) the
date on which written notice of such incorrectness requiring the same to be remedied shall
have been given to the Credit Parties by the Administrative Agent, and (ii) the date on
which the Credit Parties become aware thereof; or
(c) Covenant Default. (i) Any Credit Party shall fail to perform, comply with
or observe any term, covenant or agreement applicable to it contained in Section 5.9 hereof;
or (ii) any Credit Party shall fail to comply with any other covenant contained in this
Agreement or the other Credit Documents or any other agreement, document or instrument among
any Credit Party, the Administrative Agent and the Lenders or executed by any Credit Party
in favor of the Administrative Agent or the Lenders (other than as described in
Sections 7.1(a) or 7.1(b) above), and such breach or failure to comply is not cured within
twenty (20) days after the earlier to occur of (i) the date on which written notice of such
failure requiring the same to be remedied shall have been given to the Credit Parties by the
Administrative Agent, and (ii) the date on which the Credit Parties become aware thereof
(provided, however, in the case of a failure which is capable
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of cure but cannot reasonably be cured within such twenty (20) day period (other than
the payment of money), and provided the Credit Parties shall have timely commenced to cure
such failure within such twenty (20) day period (with evidence of same delivered to the
Administrative Agent) and thereafter diligently and expeditiously proceeds to cure the same,
such twenty (20) day period shall be extended for an additional twenty (20) day period); or
(d) Indebtedness Cross-Default. (i) Any Credit Party or any Affiliate or
Subsidiary of a Credit Party shall default in any payment of principal of or interest on any
Indebtedness (other than the Loans and the Guaranty) in a principal amount outstanding of at
least $5,000,000 in the aggregate beyond any applicable grace period (not to exceed
thirty (30) days), if any, provided in the instrument or agreement under which such
Indebtedness was created, in each case regardless of whether the default has been or is
waived; or (ii) any Credit Party or any Affiliate or Subsidiary of a Credit Party shall
default in the observance or performance of any other agreement or condition relating to any
Indebtedness (other than the Loans and the Guaranty) in a principal amount outstanding of at
least $5,000,000 in the aggregate or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to become due prior to its stated
maturity or to be repurchased, prepaid, deferred or redeemed (automatically or otherwise),
in each case regardless of whether such default has been or is waived; or (iii) shall fail
to make a payment due with respect to, be in default under or an event or condition that
exists or has occurred that would permit the acceleration of (regardless of whether any of
the foregoing have been or are waived) any Credit Party-Related Obligation; or
(e) Other Cross-Defaults. Other than as described in Section 7.1(d), the
Credit Parties or any of their Subsidiaries or Affiliate shall default in (i) the payment
when due under any Material Contract or (ii) the performance or observance, of any
obligation or condition of any Material Contract and such failure to perform or observe such
other obligation or condition continues unremedied for a period of thirty (30) days after
notice of the occurrence of such default unless, but only as long as, the existence of any
such default is being contested by the Credit Parties in good faith by appropriate
proceedings and adequate reserves in respect thereof have been established on the books of
the Credit Parties to the extent required by GAAP; or
(f) Bankruptcy Default. (i) A Credit Party or any of its Subsidiaries or
Affiliates shall commence any case, proceeding or other action (A) under any existing or
future Requirements of Law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or a Credit Party or any of its Subsidiaries or Affiliates
shall make a general assignment for the benefit of its creditors; or (ii) there shall be
commenced against a Credit Party or any of its Subsidiaries or Affiliates any case,
proceeding or other action of a nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall
be commenced against a Credit Party or any of its Subsidiaries or Affiliates any case,
proceeding or other action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of their assets which results in the
entry of an order for any such relief which
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shall not have been vacated, discharged, or stayed or bonded pending appeal within
sixty (60) days from the entry thereof; or (iv) a Credit Party or any of its Subsidiaries or
Affiliates shall take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or
(v) a Credit Party or any of its Subsidiaries or Affiliates shall generally not, or shall be
unable to, or shall admit in writing their inability to, pay its debts as they become due;
or
(g) Judgment Default. One or more final judgments or decrees shall be entered
against a Credit Party or any of its Subsidiaries or Affiliates involving in the aggregate a
liability (to the extent not covered by insurance) of $1,000,000 or more and all such
judgments or decrees shall not have been paid and satisfied, vacated, discharged, stayed or
bonded pending appeal within ten (10) Business Days from the entry thereof or any
injunction, temporary restraining order or similar decree shall be issued against a Credit
Party or any of its Subsidiaries or Affiliates that, individually or in the aggregate, could
result in a Material Adverse Effect; or
(h) ERISA Default. (i) Any Person shall engage in any prohibited transaction
(as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any accumulated funding deficiency (as defined in Section 302 of ERISA), whether or
not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan
(other than a Permitted Lien) shall arise on the assets of the Credit Parties or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable Event or commencement
of proceedings or appointment of a trustee is, in the reasonable opinion of the
Administrative Agent, likely to result in the termination of such Plan for purposes of
Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) a Credit Party, any of its Subsidiaries or any Commonly Controlled Entity shall,
or in the reasonable opinion of the Administrative Agent is likely to, incur any liability
in connection with a withdrawal from, or the Insolvency or Reorganization of, any
Multiemployer Plan or (vi) any other similar event or condition shall occur or exist with
respect to a Plan; or
(i) Change of Control. There shall occur a Change of Control, unless waived by
the Administrative Agent in its discretion; or
(j) Invalidity of Credit Documents. (i) Any Credit Document, or any Lien or
security interest granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be effective, be declared null and void, cease to be in full
force and effect or cease to be the legally valid, binding and/or enforceable obligation of
any Credit Party, as applicable, (ii) any Credit Party or any other Person shall, directly
or indirectly, contest in any manner the effectiveness, validity, binding nature or
enforceability of any Credit Document or any Lien or security interest thereunder or deny or
disaffirm such Persons obligations under any Credit Document, (iii) the Liens contemplated
under the Credit Documents shall cease or fail to be first priority perfected Liens on any
Collateral in favor of the Administrative Agent or shall be Liens in favor of any Person
other than the Administrative Agent, (iv) any Credit Party shall grant, or permit or suffer
to exist, any Lien on any Collateral except Permitted Liens, or (v) any Credit Party or any
Subsidiary or Affiliate of the foregoing shall grant, or permit or suffer to exist, any Lien
on any Required Payment; or
(k) Key Manager. Ivan Kaufman resigns, is removed or otherwise no longer
serves as an officer or director of ART; or
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(l) Equity Ownership. (i) ARSR shall cease to own 100% of the issued and
outstanding Equity Interests of Arbor Realty Funding, (ii) ART shall cease to indirectly own
not less than 80% of the issued and outstanding Equity Interests of Arbor Realty, (iii) ARSR
TRS Holding LLC shall cease to own 100% of the Class A membership interest in ARSR Tahoe,
LLC, (iv) Arbor Realty and/or ARSR shall cease to own 100% of the issued and outstanding
Capital Stock of ART 450, (v) Arbor Realty shall cease to own 99% of the issued and
outstanding Equity Interests of ARSR, and/or (vi) Arbor ESH Holdings LLC shall cease to own
100% of the membership interests in Arbor ESH; or
(m) 40 Act. Any Credit Party shall become required to register as an
investment company within the meaning of the 40 Act or the arrangements contemplated by
the Credit Documents shall require registration as an investment company within the
meaning of the 40 Act; or
(n) Material Adverse Effect. There shall exist any event or occurrence that
has caused a Material Adverse Effect; or
(o) IRS Lien. The Internal Revenue Service shall file notice of a Lien
pursuant to Section 6323 of the Code with regard to any assets or Property of any Credit
Party, and such Lien shall not have been released within five (5) Business Days; or
(p) Cooperation. Any Credit Party fails, within three (3) Business Days, to
pledge Collateral required to be pledged under this Agreement or the other Credit Documents
or fails, within three (3) Business Days, to cooperate with the Administrative Agent as
required by this Agreement or the other Credit Documents to ensure that the Administrative
Agent has or obtains a perfected first priority security interest in all existing and future
Collateral; or
(q) Irrevocable Instructions. Any Credit Partys failure to deliver any
Irrevocable Instruction required under this Agreement or any Persons attempt to disavow,
revoke or act contrary to, the failure of any Person to abide by or perform, or any Credit
Partys failure to enforce, the terms of any Irrevocable Instruction; or
(r) Solvency. Any Credit Party is not Solvent or shall admit its inability to,
or its intentions not to, perform its obligations, covenants, duties or agreements under any
Credit Document, any Obligation or any Credit Party-Related Document; or
(s) REIT. Unless waived by the Administrative Agent in its discretion, ART
ceases to qualify as a REIT (without giving any effect to any cure or corrective periods or
allowances), is subject to a ratings downgrade by any Rating Agency or ceases to be a
publicly traded company listed, quoted or traded on or in good standing in respect of any
Stock Exchange, or ARSR fails to qualify as a REIT (without giving any effect to any cure or
corrective periods or allowances); or
(t) Commitment. The aggregate principal amount of all Revolving Loans
outstanding on any day exceeds the Revolving Commitment and the same continues unremedied
for two (2) Business Days after notice from the Administrative Agent; provided,
however, during the period of time that such event remains unremedied, no additional
Revolving Loans will be made under this Agreement; or
(u) Servicer Default. A Servicer Default occurs and is continuing; or
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(v) Income. Any Credit Partys, any Subsidiary or Affiliate thereof, any
Servicers or any PSA Servicers failure to deposit to the Collection Account all Income and
other Cash Collateral as required by this Agreement; or
(w) Working Capital Facility. The discovery by the Administrative Agent of a
breach of any representation made in any Officers Certificate delivered pursuant to Section
8.2(a)(i) of the Working Capital Facility Loan Agreement; or
(x) Consent. Any Credit Party engages in any conduct or action where the
Administrative Agents and/or any Lenders prior written consent is required by the terms of
this Agreement or the other Credit Documents and any Credit Party fails to obtain such
consent; or
(y) Merger. Unless waived by the Administrative Agent, to the extent merger or
consolidation is permitted under the Credit Documents, any Credit Party shall merge or
consolidate into any entity and such entity is, in the Administrative Agents determination
in its discretion, materially weaker in its financial condition (in the aggregate) than such
Person pre-merger or consolidation; or
(z) Other Defaults. Any event or occurrence under this Agreement or any of the
other Credit Documents that, by the express terms of this Agreement or the other Credit
Documents, is deemed to constitute an Event of Default; or
(aa) Instructions; Notices. Any Credit Party shall have failed to give
instructions (including, without limitation, Irrevocable Instructions) or any notice to the
Administrative Agent or any Lender as required by this Agreement or the other Credit
Documents, or to deliver any required reports hereunder, on or before the date such
instruction, notice or report is required to be made or given, as the case may be, under the
terms of this Agreement or the other Credit Documents and any such failure continues
unremedied for a period of two (2) Business Days after the earlier to occur of (i) the date
on which written notice of such failure requiring the same to be remedied shall have been
given to any Credit Party by the Administrative Agent and (ii) the date on which any Credit
Party becomes aware thereof.
In making a determination as to whether an Event of Default has occurred, the Administrative
Agent and the Lenders shall be entitled to rely on reports published or broadcast by media sources
believed by the Administrative Agent and/or any Lender to be generally reliable and on information
provided to it by any other sources believed by it to be generally reliable, provided that the
Administrative Agent and/or the Lender reasonably and in good faith believes such information to be
accurate and has taken such steps as may be reasonable in the circumstances to attempt to verify
such information. Notwithstanding anything contained in the Credit Documents to the contrary,
unless waived by the Administrative Agent in its discretion, neither the Credit Parties nor any
other Person shall be permitted to cure an Event of Default after the acceleration of any of the
Obligations.
Section 7.2 Acceleration; Remedies.
Upon the occurrence and during the continuance of an Event of Default, then, and in any such
event, (a) if such event is a Bankruptcy Event of Default, automatically the Commitments shall
immediately terminate and the Loans (with accrued interest thereon), and all Obligations and other
amounts under the Credit Documents shall immediately become due and payable, and (b) if such event
is any other Event of Default, any or all of the following actions may be taken: (i) with the
written consent of the Required Lenders, the Administrative Agent may, or upon the written request
of the Required Lenders, the Administrative Agent shall, declare the Commitments to be terminated
forthwith, whereupon
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the Commitments shall immediately terminate; (ii) the Administrative Agent may, or upon the
written request of the Required Lenders, the Administrative Agent shall, declare the Loans (with
accrued interest thereon) and all Obligations and other amounts owing under this the Credit
Documents to be due and payable forthwith, whereupon the same shall immediately become due and
payable; and/or (iii) with the written consent of the Required Lenders, the Administrative Agent
may, or upon the written request of the Required Lenders, the Administrative Agent shall, exercise
such other rights and remedies as provided under the Credit Documents and under Requirements of
Law.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.1 Appointment and Authority.
Each of the Lenders hereby irrevocably appoints Wachovia to act on its behalf as the
Administrative Agent hereunder and under the other Credit Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent and the Lenders, and neither the Borrowers nor any other Credit
Party shall have rights as a third party beneficiary of any of such provisions.
Section 8.2 Nature of Duties.
Anything herein to the contrary notwithstanding, none of the bookrunners, Arrangers or other
agents listed on the cover page hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Credit Documents, except in its capacity, as applicable, as the
Administrative Agent or a Lender. Without limiting the foregoing, none of the Lenders or other
Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender.
Each Lender acknowledges that it has not relied, and will not rely, on any of the other Lenders or
other Persons so identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Credit Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.
Section 8.3 Exculpatory Provisions.
The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Credit Documents. Without limiting the generality of the foregoing,
the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;
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(b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Credit Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Credit Documents),
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Credit Document or Requirements of Law; and
(c) shall not, except as expressly set forth herein and in the other Credit Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrowers or any of their Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.1 and 7.2) or (ii) in the absence of
its own gross negligence or willful misconduct.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Credit Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Credit Document or any other agreement, instrument or
document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the Administrative
Agent.
Section 8.4 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, which by its terms must be fulfilled to the satisfaction of a Lender, the
Administrative Agent may presume that such condition is satisfactory to such Lender unless the
Administrative Agent shall have received notice to the contrary from such Lender prior to the
making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel
for the Borrowers), independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
Section 8.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default hereunder unless the Administrative Agent has received written
notice from a Lender or one of the Borrowers referring to this Agreement, describing such Default
or Event of
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Default and stating that such notice is a notice of default. In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required Lenders;
provided, however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders except to the extent that this Agreement
expressly requires that such action be taken, or not taken, only with the consent or upon the
authorization of the Required Lenders, or all of the Lenders, as the case may be.
Section 8.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates has made any representation
or warranty to it and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of any Credit Party, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, any other Lender or any of the
Related Parties of the foregoing and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the Administrative Agent,
any other Lender or any of the Related Parties of the foregoing and based on such documents and
information as it shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Credit Document or any
related agreement or any document furnished hereunder or thereunder.
Section 8.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its capacity hereunder and its
Affiliates and its respective officers, directors, agents and employees (to the extent not
reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so), pro
rata based on the portion of the Obligations owed to each Lender on the date on which
indemnification is sought under this Section, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Obligations) be imposed on, incurred by or asserted against any
such indemnitee in any way relating to or arising out of any Credit Document or any documents
contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by any such indemnitee under or in connection with any of the
foregoing; provided, however, that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent resulting from such indemnitees gross negligence or
willful misconduct, as determined by a court of competent jurisdiction. The provisions of this
Section shall survive the termination of this Agreement and the payment in full of the Obligations.
Section 8.8 Administrative Agent in Its Individual Capacity.
The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender and may exercise the same as though it were not the Administrative
Agent and the term Lender and Lenders shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act
as the financial advisor or in any other advisory capacity for and generally engage in any kind of
business with the
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Borrowers or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the Lenders.
Section 8.9 Successor Administrative Agent.
The Administrative Agent may at any time give notice of its resignation to the Lenders and the
Borrowers. Upon receipt of any such notice of resignation, the Required Lenders shall have the
right, in consultation with the Borrowers, to appoint a successor, or an Affiliate of any such
bank. If no such successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within thirty (30) days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may on behalf of the Secured
Parties, appoint a successor Administrative Agent meeting the qualifications set forth above
provided that if the Administrative Agent shall notify the Borrowers and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (a) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Credit Documents (except
that in the case of any Collateral held by the Administrative Agent on behalf of the Secured
Parties under any of the Credit Documents, the retiring Administrative Agent shall continue to hold
such Collateral until such time as a successor Administrative Agent is appointed) and (b) all
payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this paragraph.
Upon the acceptance of a successors appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Credit Documents (if
not already discharged therefrom as provided above in this paragraph). The fees payable by the
Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrowers and such successor. After the retiring
Administrative Agents resignation hereunder and under the other Credit Documents, the provisions
of this Article and Section 10.5 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.
Section 8.10 Collateral and Guaranty Matters.
(a) The Lenders irrevocably authorize and direct the Administrative Agent:
(i) to release any Lien on any Collateral granted to or held by the
Administrative Agent under any Credit Document (A) upon termination of the Revolving
Commitments and payment in full of all Obligations (other than contingent
indemnification obligations for which no claim has been made or cannot be reasonably
identified by an Indemnitee based on the then-known facts and circumstances), (B)
subject to Section 10.1, if approved, authorized or ratified in writing by the
Required Lenders or (C) subject to Sections 2.5(b), 2.5(d) and 2.17, and other
restrictions on releases of Collateral, upon a prepayment in full of all amounts
owed under the Credit Documents with respect to a Pledged Mortgage Asset by the
Borrowers pursuant to Section 2.5(b); provided there is no Default, no Event
of Default and no mandatory prepayment is due or will become due upon such release
or upon the expiration of the applicable time period under Section 2.5.
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(ii) to subordinate any Lien on any Collateral granted to or held by the
Administrative Agent under any Credit Document to the holder of any Lien on such
Collateral that is permitted by Section 6.2; and
(iii) to release any Guarantor from its obligations under the applicable
Guaranty if such Person ceases to be a Guarantor because of a transaction permitted
hereunder.
(d) In connection with a termination or release pursuant to this Section, the
Administrative Agent shall promptly execute and deliver to the applicable Credit Party, at
the Borrowers expense, all documents that the applicable Credit Party shall reasonably
request to evidence such termination or release. Upon request by the Administrative Agent
at any time, the Required Lenders will confirm in writing the Administrative Agents
authority to release or subordinate its interest in particular types or items of Collateral,
or to release any Guarantor from its obligations under the Guaranty pursuant to this
Section.
ARTICLE IX
ADMINISTRATION AND SERVICING
Section 9.1 Servicing.
(a) The Administrative Agent hereby appoints each of the Borrowers as its agent to
service the Collateral and enforce its rights in and under such Collateral. The Borrowers
hereby accept such appointment and agree to perform the duties and obligations with respect
thereto as set forth herein.
(b) The Borrowers covenants to maintain or cause the servicing of the Collateral to be
maintained in conformity with Accepted Servicing Practices and in a manner at least equal in
quality to the servicing Borrowers provides for Mortgage Assets that it owns. In the event
that the preceding language is interpreted as constituting one or more servicing contracts,
each such servicing contract shall terminate automatically upon the earliest of (i) an Event
of Default, (ii) the date on which this Agreement terminates or the Administrative Agent
releases its Lien with respect to the related item of Collateral or (iii) the transfer of
servicing approved in writing by the Administrative Agent.
Section 9.2 Borrowers as Servicer.
If the Collateral is serviced by the Borrowers, the Borrowers agree that, until the item of
Collateral is released from the Administrative Agents Lien, the Administrative Agent is the owner
of all servicing records for the period that the Administrative Agent has a Lien on the Collateral,
including, but not limited to, any and all servicing agreements, files, documents, records, data
bases, computer tapes, copies of computer tapes, computer programs, proof of insurance coverage,
insurance policies, appraisals, other closing documentation, payment history records, and any other
records relating to or evidencing the servicing of such Collateral (the Servicing
Records). The Borrowers covenant to safeguard such Servicing Records and to deliver them
promptly to Administrative Agent or its designee (including the Custodian) at the Administrative
Agents request.
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Section 9.3 Third Party Servicer.
The Borrowers shall not cause the Collateral to be serviced by a third party other than
pursuant to the Servicing Agreements or the Pooling and Servicing Agreements or, if not serviced
thereunder, by any Servicer other than a Servicer expressly approved in writing by the
Administrative Agent, which approval shall be deemed granted by the Administrative Agent with
respect to each Servicer listed on Schedule 9.3 attached hereto, as such schedule may be
amended or supplemented from time to time, after the execution of this Agreement. If the
Collateral is serviced by a Servicer or a PSA Servicer pursuant to a Servicing Agreement or Pooling
and Servicing Agreement, as applicable, the Borrowers (i) shall, in accordance with Section 4.2,
provide to the Administrative Agent (subject to the last sentence of this Section) a copy of each
Servicing Agreement and Pooling and Servicing Agreement, which agreements shall be in form and
substance acceptable to the Administrative Agent, and a Servicer Redirection Notice, fully executed
by the Borrowers and the related Servicer or PSA Servicer, and (ii) hereby irrevocably assigns to
the Administrative Agent and the Administrative Agents successors and assigns all right, title and
interest of the Borrowers in, to and under, and the benefits of (but not the obligations of), each
Servicing Agreement and each Pooling and Servicing Agreement with respect to the Collateral.
Notwithstanding the fact that the Borrowers have contracted with the Servicers or PSA Servicers to
service the Collateral, the Borrowers shall remain liable to the Administrative Agent for the acts
of the Servicers and PSA Servicers and for the performance of the duties and obligations set forth
herein. The Borrowers agree that no Person shall assume the servicing obligations with respect to
the Collateral as successor to a Servicer or PSA Servicer unless such successor is approved in
writing by the Administrative Agent prior to such assumption of servicing obligations. The
Administrative Agent hereby approves Arbor Commercial Mortgage LLC as a Servicer. Unless otherwise
approved in writing by the Administrative Agent, if the Collateral is serviced by a Servicer or PSA
Servicer, such servicing shall be performed pursuant to a written Servicing Agreement or Pooling
and Servicing Agreement approved by the Administrative Agent.
Section 9.4 Duties of the Borrowers.
(a) Duties. The Borrowers shall take or cause to be taken all such actions as
may be necessary or advisable to collect all Income and other amounts due or recoverable
with respect to the Collateral from time to time, all in accordance with Requirements of
Laws, with reasonable care and diligence, and in accordance with the standard set forth in
Section 9.1(b).
(b) Administrative Agents Rights. Notwithstanding anything to the contrary
contained herein, the exercise by the Administrative Agent of its rights hereunder shall not
release the Borrowers from any of its duties or responsibilities with respect to the
Collateral. The Administrative Agent shall not have any obligation or liability with
respect to any Collateral, nor shall any of them be obligated to perform any of the
obligations of the Borrowers hereunder.
(c) Servicing Programs. In the event that the Borrowers or the Servicers use
any software program in servicing the Collateral that is licensed from a third party, the
Borrowers shall use their best reasonable efforts to obtain, either before the Restatement
Date or as soon as possible thereafter, whatever licenses or approvals are necessary to
allow the Administrative Agent to use such programs.
Section 9.5 Authorization of the Borrowers.
(a) The Administrative Agent hereby authorizes the Borrowers (including any successor
thereto) to take any and all reasonable steps in its name and on its behalf necessary or
desirable and not inconsistent with the pledge of the Collateral to the Administrative Agent
to collect all amounts due under any and all Collateral, including, without limitation,
endorsing any
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checks and other instruments representing Income, executing and delivering any and all
instruments of satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Collateral and, after the delinquency
of any Collateral and to the extent permitted under and in compliance with Requirements of
Law, to commence proceedings with respect to enforcing payment thereof, to the same extent
as the Borrowers could have done if it had continued to own such Collateral free of the Lien
of the Administrative Agent. The Administrative Agent shall furnish the Borrowers (and any
successors thereto) with any powers of attorney and other documents necessary or appropriate
to enable the Borrowers to carry out their servicing and administrative duties hereunder and
shall cooperate with the Borrowers to the fullest extent in order to ensure the
collectability of the Collateral. In no event shall the Borrowers be entitled to make the
Administrative Agent a party to any litigation without the Administrative Agents express
prior written consent.
(b) Subject to all other rights of the Administrative Agent contained herein, after an
Event of Default has occurred and is continuing, at the direction of the Administrative
Agent, the Borrowers shall take such action as the Administrative Agent may deem necessary
or advisable to enforce collection of the Collateral; provided, however,
subject to all other rights of the Administrative Agent contained herein, the Administrative
Agent may, at any time that an Event of Default or Default has occurred and is continuing,
notify any Obligor with respect to any Collateral of the assignment of such Collateral to
the Administrative Agent and direct that payments of all amounts due or to become due be
made directly to the Administrative Agent or any servicer, collection agent or lockbox or
other account designated by the Administrative Agent and, upon such notification and at the
expense of the Borrowers, the Administrative Agent may enforce collection of any such
Collateral and adjust, settle or compromise the amount or payment thereof.
Section 9.6 Event of Default.
If the servicer of the Collateral is any Borrower, upon the occurrence of an Event of Default,
the Administrative Agent shall have the right to terminate the Borrowers as the servicer of the
Collateral and transfer servicing to its designee, at no cost or expense to the Administrative
Agent, at any time thereafter. If the servicer of the Collateral is not any of the Borrowers, the
Administrative Agent shall have the right, as contemplated in the applicable Servicer Redirection
Notice, upon the occurrence of an Event of Default, to terminate any Servicer and any applicable
Servicing Agreement and any PSA Servicer and any applicable Pooling and Servicing Agreement to the
extent a PSA Servicer signed a Servicer Redirection Notice and, in each case, to transfer servicing
to its designee, at no cost or expense to the Administrative Agent, it being agreed that the
Borrowers will pay any and all fees required to terminate each such Servicer, PSA Servicer,
Servicing Agreement and Pooling and Servicing Agreement and to effectuate the transfer of servicing
to the designee of the Administrative Agent. The Borrowers shall cooperate fully and shall cause
all Servicers and applicable PSA Servicers to cooperate fully with the Administrative Agent in
transferring the servicing of the Collateral to the Administrative Agents designee.
Section 9.7 Modification.
Unless otherwise agreed to by the Administrative Agent in its discretion until the
Administrative Agent releases its Lien on any item of Collateral, neither the Borrowers, the
Servicers, PSA Servicer (unless otherwise provided in a Pooling and Servicing Agreement) nor any
other Person acting on behalf of the foregoing shall have any right without the Administrative
Agents prior written consent in its discretion to (i) waive, amend, modify or alter the material
terms of any item or Collateral (including, without limitation, the related Mortgage Loan
Documents), the Servicing Agreements or the Pooling and
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Servicing Agreements or (ii) exercise any material rights of a holder of any item of
Collateral under any document or agreement governing or relating to such Collateral.
Section 9.8 Inspection.
In the event the Borrowers or their Affiliates are servicing the Collateral, the Borrowers
shall permit the Administrative Agent to inspect the Borrowers and any of their Affiliates
servicing facilities, books and records and related documents and information, as the case may be,
for the purpose of satisfying the Administrative Agent that that Borrowers or their Affiliates, as
the case may be, have the ability to service and are servicing the Collateral as provided in this
Agreement. If a Servicer or PSA Servicer is servicing any Collateral, the Borrowers shall
cooperate with the Administrative Agent in causing each Servicer and PSA Servicer to permit
inspections of the Servicers and PSA Servicers facilities, books and records and related
documents and information relating to the Collateral.
Section 9.9 Servicing Compensation.
As compensation for their servicing activities hereunder and reimbursement for its expenses,
the Borrowers shall be entitled to receive a servicing fee to the extent of funds available
therefor in the aggregate amount of 25 basis points per annum calculated on the outstanding
principal amount of the Loans (the Servicing Fee), which, prior to an Event of Default,
may be netted from the Income prior to the same being deposited into the Collection Account.
Section 9.10 Payment of Certain Expenses by Servicer.
The Borrowers and any Servicer will be required to pay all expenses incurred by them in
connection with their activities under this Agreement and the other Credit Documents, including
fees and disbursements of independent accountants, Taxes imposed on the Borrowers or the Servicers,
expenses incurred in connection with payments and reports pursuant to this Agreement and the other
Credit Documents, and all other fees and expenses under this Agreement and the other Credit
Documents for the account of the Borrowers. The Borrowers shall be required to pay all reasonable
fees and expenses owing to any bank or trust company in connection with the maintenance of the
Collection Account and all other collection, reserve or lockbox accounts related to the
Collateral. The Borrowers shall be required to pay such expenses for their own account and shall
not be entitled to any payment therefor other than the Servicing Fee.
Section 9.11 Pooling and Servicing Agreements.
Notwithstanding the provisions of this Article IX, to the extent the Collateral (or portions
thereof) are serviced by a PSA Servicer (other than the Borrowers or any Servicer) under a Pooling
and Servicing Agreement, (a) the standards for servicing such items of Collateral shall be those
set forth in the applicable Pooling and Servicing Agreement, to the extent of the items covered
therein, and otherwise as provided in this Agreement, (b) the Borrowers shall enforce its rights
and interests under such agreements for and on behalf of the Administrative Agent, (c) the
Borrowers shall instruct the applicable PSA Servicer to deposit all Income received in respect of
the Collateral into the Collection Account in accordance with Section 5.17 of this Agreement,
(d) the Borrowers shall not take any action or fail to take any action or consent to any action or
inaction under any Pooling and Servicing Agreement where the effect of such action or inaction
would prejudice or adversely affect the interests of the Administrative Agent, (e) the
Administrative Agent shall be entitled to exercise any and all rights of the Borrowers or the
holder of any such item of Collateral under such Pooling and Servicing Agreements as such rights
relate to the Collateral, and (f) the Borrowers shall not consent to any amendment or modification
to any
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Pooling and Servicing Agreement without the prior written consent of the Administrative Agent
in its discretion.
Section 9.12 Servicer Default.
Any material breach by the Borrowers, any of their Servicers or any of the PSA Servicers of
the obligations contained in this Article IX or in Sections 2.9(a) and 5.17 shall constitute a
Servicer Default.
ARTICLE X
MISCELLANEOUS
Section 10.1 Amendments, Waivers and Release of Collateral.
Neither this Agreement nor any of the other Credit Documents, nor any terms hereof or thereof
may be amended, modified, waived, extended, restated, replaced, or supplemented (by amendment,
waiver, consent or otherwise) except in accordance with the provisions of this Section nor may
Collateral be released except as specifically provided herein or in the Security Documents or in
accordance with the provisions of this Section. The Required Lenders may or, with the written
consent of the Required Lenders, the Administrative Agent may, from time to time, (a) enter into
with the Borrowers written amendments, supplements or modifications hereto and to the other Credit
Documents for the purpose of adding any provisions to this Agreement or the other Credit Documents
or changing in any manner the rights of the Lenders or of the Borrowers hereunder or thereunder or
(b) waive or consent to the departure from, on such terms and conditions as the Required Lenders
may specify in such instrument, any of the requirements of this Agreement or the other Credit
Documents or any Default or Event of Default and its consequences; provided,
however, that no such amendment, supplement, modification, release, waiver or consent
shall:
(i) reduce the amount or extend the scheduled date of maturity of any Loan or
Note or any installment thereon (except in accordance with Section 2.1(g) or Section
2.2(e)), or reduce the stated rate of any interest or fee payable hereunder (except
in connection with a waiver of interest at the increased post-default rate set forth
in Section 2.6 which shall be determined by a vote of the Required Lenders) or
extend the scheduled date of any payment thereof or increase the amount or extend
the expiration date of any Lenders Commitment, in each case without the written
consent of each Lender directly affected thereby; provided that, it is
understood and agreed that (A) no waiver, reduction or deferral of a mandatory
prepayment required pursuant to Section 2.5(b), nor any amendment of Section 2.5(b)
or the definitions of Asset Value or Extraordinary Receipt, shall constitute a
reduction of the amount of, or an extension of the scheduled date of, the scheduled
date of maturity of, or any installment of, any Loan or Note, (B) any reduction in
the stated rate of interest on Revolving Loans shall only require the written
consent of each Lender holding a Revolving Commitment and (C) any reduction in the
stated rate of interest on the Term Loan shall only require the written consent of
each Lender holding a portion of the outstanding Term Loan; or
(ii) amend, modify or waive any provision of this Section or reduce the
percentage specified in the definition of Required Lenders, without the written
consent of all the Lenders; or
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(iii) release any Borrower or all or substantially all of the Guarantors from
obligations under the Guaranty, without the written consent of all of the Lenders;
or
(iv) release all or substantially all of the Collateral without the written
consent of all of the Lenders; or
(v) subordinate the Loans to any other Indebtedness without the written consent
of all of the Lenders; or
(vi) permit any Borrower to assign or transfer any of its rights or obligations
under this Agreement or other Credit Documents without the written consent of all of
the Lenders; or
(vii) amend, modify or waive any provision of the Credit Documents requiring
consent, approval or request of the Required Lenders or all Lenders without the
written consent of the Required Lenders or all the Lenders as appropriate; or
(viii) without the consent of Revolving Lenders holding in the aggregate more
than 50% of the outstanding Revolving Commitments (or if the Revolving Commitments
have been terminated, the aggregate principal amount of outstanding Revolving
Loans), amend, modify or waive any provision in Section 4.2 or waive any Default or
Event of Default (or amend any Credit Document to effectively waive any Default or
Event of Default) if the effect of such amendment, modification or waiver is that
the Revolving Lenders shall be required to fund Revolving Loans when such Lenders
would otherwise not be required to do so; or
(ix) amend, modify or waive the order in which Obligations are paid or in a
manner that would alter the pro rata sharing of payments by and among the Lenders in
Section 2.9 without the written consent of each Lender directly affected thereby; or
(x) amend, modify or waive any provision of Article VIII without the written
consent of the then Administrative Agent; or
(xi) amend, modify or waive any provision in Sections 3.3 through 3.6 without
the written consent of the Custodian; or
(xii) amend or modify the definition of Obligations to delete or exclude any
obligation or liability described therein without the written consent of each Lender
directly affected thereby;
provided, further, that no amendment, waiver or consent affecting the rights or
duties of the Administrative Agent under any Credit Document shall in any event be effective,
unless in writing and signed by the Administrative Agent, in addition to the Lenders required
hereinabove to take such action. Unless otherwise expressly provided herein, waivers shall be
effective only in the specific instance and for the specific purpose for which given.
Any such waiver, any such amendment, supplement or modification and any such release shall
apply equally to each of the Lenders and shall be binding upon the Borrowers, the other Credit
Parties, the Lenders, the Administrative Agent and all future holders of the Notes. In the case of
any waiver, the Borrowers, the other Credit Parties, the Lenders and the Administrative Agent shall
be restored to their former position and rights hereunder and under the outstanding Loans and Notes
and other Credit
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Documents, and any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon.
Notwithstanding any of the foregoing to the contrary, the consent of the Borrowers and the
other Credit Parties shall not be required for any amendment, modification or waiver of the
provisions of Article VIII (other than the provisions of Section 8.9).
Notwithstanding the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (a) each Lender is entitled to vote as such Lender sees fit on
any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the
provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions
set forth herein and (b) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
For the avoidance of doubt and notwithstanding any provision to the contrary contained in this
Section 10.1, this Agreement may be amended (or amended and restated) with the written consent of
the Credit Parties and the Required Lenders (i) to increase the aggregate Commitments of the
Lenders (provided that no Lender shall be required to increase its commitment without its consent),
(ii) to add one or more additional borrowing Tranches to this Agreement and to provide for the
ratable sharing of the benefits of this Agreement and the other Credit Documents with the other
then outstanding Obligations in respect of the extensions of credit from time to time outstanding
under such additional borrowing Tranche(s) and the accrued interest and fees in respect thereof and
(iii) to include appropriately the lenders under such additional borrowing Tranches in any
determination of the Required Lenders and/or to provide consent rights to such lenders under
subsections (ix) and/or (x) of Section 10.1 corresponding to the consent rights of the other
Lenders thereunder.
Section 10.2 Notices.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in paragraph (b)
below), all notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or registered
mail or sent by telecopier as follows:
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If to the Borrowers or any other Credit Party: |
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c/o Arbor Commercial Mortgage LLC |
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333 Earle Ovington Boulevard |
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Uniondale, New York 11553 |
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Attention:
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Guy Milone, Esq. |
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Phone No.:
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(516) 8327431 |
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Facsimile No.:
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(516) 8326431 |
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With a copy to: |
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Arbor Commercial Mortgage LLC |
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333 Earle Ovington Boulevard |
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Uniondale, New York 11553 |
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Attention:
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John Natalone |
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Phone No.:
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(516) 8327409 |
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Facsimile No.:
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(516) 832-6409 |
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(ii) |
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If to the Administrative Agent: |
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Wachovia Bank, National Association |
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One Wachovia Center, NC0166 |
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301 South College Street |
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Charlotte, North Carolina 28288 |
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Attention:
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John Nelson |
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Phone No.:
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(704) 3838238 |
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Facsimile No.:
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(704) 7150066 |
(iii) if to a Lender, to it at its address (or telecopier number) set forth in
its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next Business Day
for the recipient). Notices delivered through electronic communications to the extent provided in
paragraph (b) below, shall be effective as provided in said paragraph (b).
(b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and
internet or intranet websites) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender pursuant to
Article II if such Lender has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The Administrative Agent
or the Borrowers may, in its discretion, agree to accept notices and other communications to
it hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices or
communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgement
from the intended recipient (such as by the return receipt requested function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next Business Day
for the recipient, and (ii) notices or communications posted to an internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Any party hereto may change its address or
telecopier number for notices and other communications hereunder by notice to the other
parties hereto.
Section 10.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies,
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powers and privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by Requirements of Law.
Section 10.4 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any document, certificate or
statement delivered pursuant hereto or in connection herewith shall survive the execution and
delivery of this Agreement and the Notes and the making of the Loans; provided that all
such representations and warranties shall terminate on the date upon which the Commitments have
been terminated and all Obligations owing under any Notes or the other Credit Documents have been
paid in full.
Section 10.5 Payment of Expenses and Taxes; Indemnity.
(a) Costs and Expenses. The Borrowers shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including
the reasonable fees, charges and disbursements of counsel for the Administrative Agent) in
connection with the preparation, negotiation, execution, delivery and administration of this
Agreement and the other Credit Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby
shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent or any Lender, (including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender) in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the other Credit
Documents, including its rights under this Section, or (B) in connection with the Loans
made, including all such reasonable out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans, (iii) the Borrowers shall pay on
demand any and all stamp, sales, excise and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording of this Agreement,
the Credit Documents or the other documents to be delivered hereunder or thereunder or the
funding or maintenance of Loans hereunder and (iv) all reasonable due diligence, inspection,
audit, testing, review, recording, travel, lodging or other administrative expenses and
costs incurred by the Administrative Agent or any Lender in connection with the review,
consideration, pledge or proposed pledge of any Mortgage Asset or other Collateral or
proposed Collateral (including any costs necessary or incidental to the pledge of the
Mortgage Assets or other Collateral or the making of any Loan in connection therewith). The
provisions of this Section shall survive the termination of this Agreement and the payment
in full of the Obligations.
(b) Indemnification by the Borrowers.
(i) The Borrowers shall indemnify the Administrative Agent (and any sub-agent
thereof), each Lender and each Related Party of any of the foregoing Persons (each
such Person being called an Indemnitee) against, and hold each Indemnitee
harmless from, any and all losses, claims, penalties, fines, damages, liabilities
and related reasonable expenses (including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the Borrowers or any other
Credit Party (collectively, the Indemnified Amounts) arising out of, in
connection with, or as a result of (A) this Agreement, the Credit Documents, any
Loan, any Collateral, the Mortgage Loan Documents, any transaction or Extension of
Credit contemplated hereby or thereby, or any amendment, supplement, extension or
modification of, or any waiver or consent under or in respect of this Agreement, the
Credit Documents, any Loan, any Collateral,
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the Mortgage Loan Documents or any transaction or Extension of Credit
contemplated hereby or thereby, (B) any Mortgage Asset or any other Collateral under
the Credit Documents, (C) any violation or alleged violation of, noncompliance with
or liability under any Requirement of Law (including, without limitation, violation
of Securities Laws and Environmental Laws), (D) ownership of, Liens on, security
interests in or the exercise of rights and/or remedies under the Credit Documents,
the Mortgage Loan Documents, the Collateral, any other collateral under the Credit
Documents, the Underlying Mortgaged Property, any other related Property or
collateral or any part thereof or any interest therein or receipt of any Income or
rents, (E) any accident, injury to or death of any person or loss of or damage to
Property occurring in, on or about any Underlying Mortgaged Property, any other
related Property or collateral or any part thereof, the related Collateral or on the
adjoining sidewalks, curbs, parking areas, streets or ways, (F) any use, nonuse or
condition in, on or about, or possession, alteration, repair, operation, maintenance
or management of, any Underlying Mortgaged Property, any other related Property or
collateral or any part thereof or on the adjoining sidewalks, curbs, parking areas,
streets or ways, (G) any failure on the part of the Credit Parties to perform or
comply with any of the terms of the Mortgage Loan Documents, the Credit Documents,
the Collateral or any other collateral under the Credit Documents, (H) performance
of any labor or services or the furnishing of any materials or other Property in
respect of the Underlying Mortgaged Property, any other related Property or
collateral, the Collateral or any part thereof, (I) any claim by brokers, finders or
similar Persons claiming to be entitled to a commission in connection with any lease
or other transaction involving any Underlying Mortgaged Property, any other related
Property or collateral, the Collateral or any part thereof or the Credit Documents,
(J) any Taxes including, without limitation, any Taxes attributable to the
execution, delivery, filing or recording of any Credit Document, any Mortgage Loan
Document or any memorandum of any of the foregoing, (K) any Lien or claim arising on
or against the Underlying Mortgaged Property, any other related Property or
collateral, the Collateral or any part thereof under any Requirement of Law or any
liability asserted against the Administrative Agent or any Lender with respect
thereto, (L) the claims of any lessee or any Person acting through or under any
lessee or otherwise arising under or as a consequence of any leases with respect to
any Underlying Mortgaged Property, related Property or collateral, or any claims of
an Obligor, (M) any civil penalty or fine assessed by OFAC against, and all
reasonable costs and expenses (including counsel fees and disbursements) incurred in
connection with the defense thereof, by any Indemnitee as a result of conduct of any
Credit Party that violates any sanction enforced by OFAC, (N) any and all
Indemnified Amounts arising out of, attributable or relating to, accruing out of, or
resulting from (1) a past, present or future violation or alleged violation of any
Environmental Laws in connection with any Property or Underlying Mortgaged Property
by any Person or other source, whether related or unrelated to any other Credit
Party or any Obligor, (2) any presence of any Materials of Environmental Concern in,
on, within, above, under, near, affecting or emanating from any Property or
Underlying Mortgaged Property, (3) the failure to timely perform any Remedial Work,
(4) any past, present or future activity by any Person or other source, whether
related or unrelated to any Credit Party or any Obligor in connection with any
actual, proposed or threatened use, treatment, storage, holding, existence,
disposition or other release, generation, production, manufacturing, processing,
refining, control, management, abatement, removal, handling, transfer or
transportation to or from any Property or Underlying Mortgaged Property of any
Materials of Environmental Concern at any time located in, under, on, above or
affecting any Property or Underlying Mortgaged Property, (5) any past, present or
future actual Release (whether intentional or unintentional, direct or indirect,
foreseeable or
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unforeseeable) to, from, on, within, in, under, near or affecting any Property
or Underlying Mortgaged Property by any Person or other source, whether related or
unrelated to any Credit Party or any Obligor, (6) the imposition, recording or
filing or the threatened imposition, recording or filing of any Lien on any Property
or Underlying Mortgaged Property with regard to, or as a result of, any Materials of
Environmental Concern or pursuant to any Environmental Law, or (7) any
misrepresentation or inaccuracy in any representation or warranty in any material
respect or material breach or failure to perform any covenants or other obligations
pursuant to this Agreement, the other Credit Documents or any of the Mortgage Loan
Documents or relating to environmental matters in any way including, without
limitation, under any of the Mortgage Loan Documents or (O) any Credit Partys
conduct, activities, actions and/or inactions in connection with, relating to or
arising out of any of the foregoing clauses of this Section that, in each case,
results from anything other than any Indemnitees gross negligence or willful
misconduct. In any suit, proceeding or action brought by an Indemnitee in
connection with any Collateral or any other collateral under the Credit Documents
for any sum owing thereunder, or to enforce any provisions of any Collateral or any
other collateral under the Credit Documents, the Credit Parties shall save,
indemnify and hold such Indemnitee harmless from and against all expense, loss or
damage suffered by reason of any defense, setoff, counterclaim, recoupment or
reduction of liability whatsoever of the account debtor, obligor or Obligor
thereunder arising out of a breach by any Credit Party of any obligation thereunder
or arising out of any other agreement, indebtedness or liability at any time owing
to or in favor of such account debtor, obligor or Obligor or its successors from any
Credit Party. Each of the Credit Parties also agrees to reimburse an Indemnitee as
and when billed by such Indemnitee for all such Indemnitees costs, expenses and
fees incurred in connection with the enforcement or the preservation of such
Indemnitees rights under this Agreement, the Credit Documents, the Mortgage Loan
Documents and any transaction or Extension of Credit contemplated hereby or thereby,
including, without limitation, the reasonable fees and disbursements of its counsel.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by any Credit Party and/or
any of their officers, directors, shareholders, employees or creditors, an
Indemnitee or any other Person or any Indemnitee is otherwise a party thereto and
whether or not any transaction contemplated hereby is consummated.
(ii) Any amounts subject to the indemnification provisions of this Section
shall be paid by the Credit Parties to the Indemnitee within five (5) Business Days
following such Persons demand therefor. For the avoidance of doubt, an Indemnitee
may seek payment of any Indemnified Amount at any time and regardless of whether a
Default or an Event of Default then exists or is continuing.
(iii) If for any reason the indemnification provided in this Section is
unavailable to the Indemnitee or is insufficient to hold an Indemnitee harmless,
then the Credit Parties shall contribute to the amount paid or payable by such
Indemnitee as a result of such loss, claim, damage or liability in such proportion
as is appropriate to reflect not only the relative benefits received by such
Indemnitee on the one hand and the Credit Parties on the other hand but also the
relative fault of such Indemnitee as well as any other relevant equitable
considerations.
(iv) The obligations of the Credit Parties under this Article X are joint and
several and shall survive the termination of this Agreement.
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(v) Indemnification under this Section shall be in an amount necessary to make
the Indemnitee whole after taking into account any tax consequences to the
Indemnitee of the receipt of the indemnity provided hereunder, including the effect
of such tax or refund on the amount of tax measured by net income or profits that is
or was payable by the Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrowers for any reason
fail to indefeasibly pay any amount required under paragraph (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), or any Related Party
of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), or such Related Party, as the case may be, such Lenders Commitment
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent (or any such sub-agent) in its
capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) in connection with such capacity.
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
Requirements of Law, the Credit Parties shall not assert, and hereby waive, any claim
against any Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement, any other Credit Document or any agreement or
instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or
the use of the proceeds thereof. No Indemnitee referred to in paragraph (b) above shall be
liable for any damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other Credit
Documents or the transactions contemplated hereby or thereby. The provisions of this
Section shall survive the termination of this Agreement and the payment in full of the
Obligations.
Section 10.6 Successors and Assigns; Participations.
(a) Successors and Assigns Generally. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that neither the Borrowers nor any other
Credit Party may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender and no Lender
may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an
assignee in accordance with the provisions of paragraph (b) of this Section, (ii) by way of
participation in accordance with the provisions of paragraph (d) of this Section or (iii) by
way of pledge or assignment of a security interest subject to the restrictions of
paragraph (f) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in paragraph
(d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of
each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
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(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans at the time owing to it); provided that
any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lenders Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in paragraph (b)(i)(A) of this Section,
the aggregate principal amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the applicable Commitment is
not then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment (determined as of the date
the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent or, if Trade Date is specified in the
Assignment and Assumption, as of the Trade Date) shall not be less than
$1,000,000, in the case of any assignment in respect of a revolving
facility, or $1,000,000, in the case of any assignment in respect of a term
facility (provided, however, that simultaneous assignments
shall be aggregated in respect of a Lender and its Approved Funds) unless
the Administrative Agent consents.
(ii) Proportionate Amounts. Each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lenders rights and
obligations under this Agreement with respect to the Loan or the Commitment
assigned, except that this clause (ii) shall not prohibit any Lender from assigning
all or a portion of its rights and obligations among separate Tranches on a non-pro
rata basis.
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by paragraph (b)(i)(B) of this Section and,
in addition:
(A) the consent of the Borrowers (such consent not to be unreasonably
conditioned, withheld or delayed) shall be required unless (x) a Default or
an Event of Default has occurred and is continuing at the time of such
assignment or (y) such assignment is to an Eligible Assignee; and
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld, conditioned or delayed) shall be required for
assignments in respect of (i) a Revolving Commitment if such assignment is
to a Person that is not a Lender with a Commitment in respect of such
facility, an Affiliate of such Lender or an Approved Fund with respect to
such Lender or (ii) a Term Loan Commitment to a Person who is not an
Eligible Assignee.
(iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500 and the assignee, if it is
not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
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(v) No Assignment to Credit Parties. No such assignment shall be made
to any Credit Party or any of the Credit Parties Affiliates or Subsidiaries of a
Credit Party.
(vi) No Assignment to Natural Persons. No such assignment shall be
made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and Assumption, have the rights
and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,
to the extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lenders rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits
of Sections 2.12 and 10.5 with respect to facts and circumstances occurring prior to the
effective date of such assignment. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers, shall maintain at one of its offices in Charlotte, North Carolina a
copy of each Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal amounts of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
Register). The entries in the Register shall be conclusive, and the Borrowers,
the Administrative Agent and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrowers and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(d) Participations. With the consent of the Administrative Agent, any Lender
may at any time, without the consent of, or notice to, the Borrowers, sell participations to
any Person (other than a natural person or the Credit Parties or any of the Credit Parties
Affiliates or Subsidiaries of a Credit Party) (each, a Participant) in all or a
portion of such Lenders rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lenders obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrowers, the Administrative Agent and the Lenders, shall
continue to deal solely and directly with such Lender in connection with such Lenders
rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or waiver that
affects such Participant. Subject to paragraph (e) of this Section, the Borrowers agree
that each Participant shall be entitled to the benefits of Sections 2.12 and 2.13 to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by Requirements of Law, each
Participant also shall be entitled to the benefits of
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Section 10.7 as though it were a Lender, provided such Participant agrees to be subject
to Section 2.9 as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be entitled
to receive any greater payment under Sections 2.12 and 2.14 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrowers prior
written consent. A Participant that would be a Foreign Lender if it were a Lender shall not
be entitled to the benefits of Section 2.14 unless the Borrowers are notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 2.14 as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a
party hereto.
Section 10.7 Right of Set-off; Sharing of Payments.
(a) If an Event of Default shall have occurred and be continuing, each Lender, and each
of their respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by Requirements of Law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever currency) at
any time held and other obligations (in whatever currency) at any time owing by such Lender
or any such Affiliate to or for the credit or the account of the Borrowers or any other
Credit Party against any and all of the obligations of the Borrowers or such Credit Party
now or hereafter existing under this Agreement or any other Credit Document to such Lender,
irrespective of whether or not such Lender shall have made any demand under this Agreement
or any other Credit Document and although such obligations of the Borrowers or such Credit
Party may be contingent or unmatured or are owed to a branch or office of such Lender
different from the branch or office holding such deposit or obligated on such indebtedness.
The foregoing right shall not apply to Excluded Accounts. The rights of each Lender and its
respective Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender or its respective Affiliates may have.
Each Lender agrees to notify the Borrowers and the Administrative Agent promptly after any
such setoff and application, provided that the failure to give such notice shall not
affect the validity of such setoff and application.
(b) If any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of its Loans or
other obligations hereunder resulting in such Lenders receiving payment of a proportion of
the aggregate principal amount of its Loans and accrued interest thereon or other such
obligations greater than its pro rata share thereof as provided herein, then
the Lender receiving such greater proportion shall (i) notify the Administrative Agent of
such fact, and (ii) purchase (for cash at face value) participations in the Loans and such
other obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of principal of and accrued interest on their
respective Loans and other amounts owing them, provided that:
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(i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this paragraph shall not be construed to apply to
(A) any payment made by the Borrowers pursuant to and in accordance with the express
terms of this Agreement or (B) any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Credit Parties or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply).
(c) Each Credit Party consents to the foregoing and agrees, to the extent it may
effectively do so under Requirements of Law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against each Credit Party rights of
setoff and counterclaim with respect to such participation as fully as if such Lender were a
direct creditor of each Credit Party in the amount of such participation.
Section 10.8 Table of Contents and Section Headings.
The table of contents and the Section and subsection headings herein are intended for
convenience only and shall be ignored in construing this Agreement.
Section 10.9 Counterparts; Integration; Effectiveness; Electronic Execution.
(a) Counterparts; Integration; Effectiveness. This Agreement may be executed
in counterparts (and by different parties hereto in different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement and the other Credit Documents, and any separate letter agreements
with respect to fees payable to the Administrative Agent, constitute the entire contract
among the parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 4.1, this Agreement shall become effective when it shall have
been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the
other parties hereto. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy or email shall be effective as delivery of a manually executed
counterpart of this Agreement.
(b) Electronic Execution of Assignments. The words execution, signed,
signature, and words of like import in any Assignment and Assumption shall be deemed to
include electronic signatures or the keeping of records in electronic form, each of which
shall be of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any Requirement of Law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic Transactions
Act.
Section 10.10 Severability.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without
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invalidating the remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.
Section 10.11 Integration.
This Agreement and the other Credit Documents represent the agreement of the Borrowers, the
other Credit Parties, the Administrative Agent and the Lenders with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties by the
Administrative Agent, the Borrowers, the other Credit Parties, or any Lender relative to the
subject matter hereof not expressly set forth or referred to herein or therein.
Section 10.12 Governing Law.
This Agreement shall be governed by, and construed in accordance with, the law of the State of
New York.
Section 10.13 Consent to Jurisdiction; Service of Process and Venue.
(a) Consent to Jurisdiction. Each of the Borrowers and each other Credit Party
irrevocably and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the courts of the State of New York and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this Agreement or any
other Credit Document, or for recognition or enforcement of any judgment, and each of the
parties hereto irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York sitting State court or, to
the fullest extent permitted by Requirements of Law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by Requirements of Law. Nothing in this Agreement or in any other
Credit Document shall affect any right that the Administrative Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or any other
Credit Document against the Borrowers or any other Credit Party or its properties in the
courts of any jurisdiction.
(b) Service of Process. Each party hereto irrevocably consents to service of
process in the manner provided for notices in Section 10.2. Nothing in this Agreement will
affect the right of any party hereto to serve process in any other manner permitted by
Requirements of Law.
(c) Venue. The Borrowers and each other Credit Party irrevocably and
unconditionally waives, to the fullest extent permitted by Requirements of Law, any
objection that it may now or hereafter have to the laying of venue of any action or
proceeding arising out of or relating to this Agreement or any other Credit Document in any
court referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by Requirements of Law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in any such court.
The provisions of this Section shall survive the termination of this Agreement and the payment
in full of the Obligations.
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Section 10.14 Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to its Affiliates and
to its and its Affiliates respective partners, directors, officers, employees, agents, advisors
and other representatives (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory authority purporting to
have jurisdiction over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by Requirements of Law or by
any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder, under any other Credit Document or any action or proceeding
relating to this Agreement, any other Credit Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement and/or the other Credit Documents,
(g) (i) any actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Credit Parties and their obligations, (ii) an investor or prospective
investor in securities issued by an Approved Fund that also agrees that Information shall be used
solely for the purpose of evaluating an investment in such securities issued by the Approved Fund,
(iii) a trustee, collateral manager, custodian, servicer, backup servicer, noteholder or secured
party in connection with the administration, servicing and reporting on the assets serving as
collateral for securities issued by an Approved Fund, or (iv) a nationally recognized rating agency
that requires access to information regarding the Credit Parties, the Loans and Credit Documents in
connection with ratings issued in respect of securities issued by an Approved Fund (in each case,
it being understood that the Persons to whom such disclosure is made will be informed of the
confidential nature of such information and instructed to keep such information confidential),
(h) with the consent of the applicable Credit Parties or (i) to the extent such Information
(x) becomes publicly available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any Lender or any of their respective Affiliates on a
nonconfidential basis from a source other than the Credit Parties.
For purposes of this Section, Information means all information received from the
Credit Parties or any of their Subsidiaries relating to the Credit Parties or any of their
Subsidiaries or any of their respective businesses, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure
by the Credit Parties or any of their Subsidiaries, provided that, in the case of
information received from the Credit Parties or any of their Subsidiaries after the date hereof,
such information is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
The provisions of this Section shall survive the termination of this Agreement and the payment
in full of the Obligations.
Section 10.15 Acknowledgments.
The Borrowers and the other Credit Parties each hereby acknowledge that:
(a) it has been advised by counsel in the negotiation, execution and delivery of each
Credit Document;
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(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with
or duty to the Borrowers or any other Credit Party arising out of or in connection with this
Agreement and the relationship between the Administrative Agent and the Lenders, on one
hand, and the Borrowers and the other Credit Parties, on the other hand, in connection
herewith is solely that of debtor and creditor; and
(c) no joint venture exists among the Lenders or among the Borrowers or the other
Credit Parties, the Lenders and the Administrative Agent.
Section 10.16 Waivers of Jury Trial.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY REQUIREMENTS
OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
The provisions of this Section shall survive the termination of this Agreement and the payment
in full of the Obligations.
Section 10.17 Patriot Act Notice.
Each Lender and the Administrative Agent (for itself and not on behalf of any other party)
hereby notifies the Borrowers that, pursuant to the requirements of the Patriot Act, it is required
to obtain, verify and record information that identifies the Borrowers and the other Credit
Parties, which information includes the name and address of the Borrowers and the other Credit
Parties and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrowers and the other Credit Parties in accordance with the Patriot
Act.
Section 10.18 Resolution of Drafting Ambiguities.
Each Credit Party acknowledges and agrees that it was represented by counsel in connection
with the execution and delivery of this Agreement and the other Credit Documents to which it is a
party, that it and its counsel reviewed and participated in the preparation and negotiation hereof
and thereof and that any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation hereof or thereof.
Section 10.19 Continuing Agreement.
This Credit Agreement shall be a continuing agreement and shall remain in full force and
effect until all Loans, interest, fees and other Obligations (other than those obligations that
expressly survive the termination of this Credit Agreement) have been paid in full and all
Commitments have been terminated. Upon termination, the Credit Parties shall have no further
obligations (other than those obligations that expressly survive the termination of this Credit
Agreement) under the Credit Documents and the
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Administrative Agent shall, at the request and expense of the Borrowers, deliver all the
Collateral in its possession to the Borrowers and release all Liens on the Collateral;
provided that should any payment, in whole or in part, of the Obligations be rescinded or
otherwise required to be restored or returned by the Administrative Agent or any Lender, whether as
a result of any proceedings in bankruptcy or reorganization or otherwise, then the Credit Documents
shall automatically be reinstated and all Liens of the Administrative Agent shall reattach to the
Collateral and all amounts required to be restored or returned and all costs and expenses incurred
by the Administrative Agent or any Lender in connection therewith shall be deemed included as part
of the Obligations.
Section 10.20 Lender Consent.
Each Person signing a Lender Consent (a) approves of this Agreement and the other Credit
Documents, (b) authorizes and appoints the Administrative Agent as its agent in accordance with the
terms of Article VIII, (c) authorizes the Administrative Agent to execute and deliver this
Agreement on its behalf, and (d) is a Lender hereunder and therefore shall have all the rights and
obligations of a Lender under this Agreement as if such Person had directly executed and delivered
a signature page to this Agreement.
Section 10.21 Appointment of the Administrative Borrower.
Each of the Borrowers hereby appoint the Administrative Borrower to act as its agent for all
purposes under this Agreement (including, without limitation, with respect to all matters related
to the borrowing and repayment of Loans) and agree that (a) the Administrative Borrower may execute
such documents on behalf of such Borrower as the Administrative Borrower deems appropriate in its
sole discretion and each Borrower shall be obligated by all of the terms of any such document
executed on its behalf, (b) any notice or communication delivered by the Administrative Agent or
the Lender to the Administrative Borrower shall be deemed delivered to each Borrower and (c) the
Administrative Agent or the Lenders may accept, and be permitted to rely on, any document,
instrument or agreement executed by the Administrative Borrower on behalf of each Borrower.
Section 10.22 Counterclaims.
The Credit Parties each hereby knowingly, voluntarily and intentionally waives any right to
assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought
against it by the Administrative Agent, the Lenders or any of the Affiliates or agents of the
foregoing. The provisions of this Section shall survive the termination of this Agreement and the
payment in full of the Obligations.
Section 10.23 Legal Matters.
In the event of any conflict between the terms of this Agreement, any other Credit Document or
any Confirmation with respect to any Collateral, the documents shall control in the following order
of priority: first, the terms of the related Confirmation shall prevail, then the terms of this
Agreement shall prevail, and then the terms of the other Credit Documents shall prevail.
Section 10.24 Recourse Against Certain Parties.
No recourse under or with respect to any obligation, covenant or agreement (including, without
limitation, the payment of any fees or any other obligations) of the Administrative Agent, the
Lenders, or the Credit Parties, as contained in this Agreement, the Credit Documents or any other
agreement, instrument or document entered into by the Administrative Agent, the Lenders, the Credit
Parties or any such party pursuant hereto or thereto or in connection herewith or therewith shall
be had against any
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administrator of the Administrative Agent, the Lenders, or the Credit Parties or any
incorporator, Affiliate (direct or indirect), owner, member, partner, stockholder, officer,
director, employee, agent or attorney of the Administrative Agent, the Lenders, or the Credit
Parties or of any such administrator, as such, by the enforcement of any assessment or by any legal
or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and
understood that the agreements of the Administrative Agent, the Lenders or the Credit Parties
contained in this Agreement, the Credit Documents and all of the other agreements, instruments and
documents entered into by it pursuant hereto or thereto or in connection herewith or therewith are,
in each case, solely the corporate obligations of the Administrative Agent, the Lenders or the
Credit Parties and that no personal liability whatsoever shall attach to or be incurred by any
administrator of the Administrative Agent, the Lenders or the Credit Parties or any incorporator,
owner, member, partner, stockholder, Affiliate (direct or indirect), officer, director, employee,
agent or attorney of the Administrative Agent, the Lenders or the Credit Parties or of any such
administrator, as such, or any other of them, under or by reason of any of the obligations,
covenants or agreements of the Administrative Agent, the Lenders or the Credit Parties contained in
this Agreement, the Credit Documents or in any other such instruments, documents or agreements, or
that are implied therefrom, and that any and all personal liability of every such administrator of
the Administrative Agent, the Lenders or the Credit Parties and each incorporator, owner, member,
partner, stockholder, Affiliate (direct or indirect), officer, director, employee, agent or
attorney of the Administrative Agent, the Lenders, the Credit Parties or of any such administrator,
or any of them, for breaches by the Administrative Agent, the Lenders, or the Credit Parties of any
such obligations, covenants or agreements, which liability may arise either at common law or at
equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and
in consideration for the execution of this Agreement. The provisions of this Section shall survive
the termination of this Agreement and the payment in full of the Obligations.
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Section 10.25 Protection of Right, Title and Interest in the Collateral; Further Action
Evidencing Loans. |
(a) The Credit Parties shall cause all financing statements and continuation statements
and any other necessary documents covering the right, title and interest of the
Administrative Agent to the Collateral to be promptly recorded, registered and filed, and at
all times to be kept recorded, registered and filed, all in such manner and in such places
as may be required by Requirements of Law fully to preserve and protect the right, title and
interest of the Administrative Agent (on behalf of the Secured Parties) hereunder to all
Property comprising the Collateral. The Credit Parties shall deliver to the Administrative
Agent file-stamped copies of, or filing receipts for, any document recorded, registered or
filed as provided above, as soon as available following such recording, registration or
filing. The Credit Parties shall execute any and all documents reasonably required to
fulfill the intent of this Section.
(b) The Credit Parties agree that from time to time, at their expense, they will
promptly execute and deliver all instruments and documents, and take all actions, that the
Administrative Agent or any Lender may reasonably request in order to perfect, protect or
more fully evidence the Loans hereunder and the security interest granted in the Collateral,
or to enable the Administrative Agent to exercise and enforce their rights and remedies
hereunder or under any Credit Document.
(c) If the Credit Parties fail to perform any of their obligations hereunder, the
Administrative Agent may (but shall not be required to) perform, or cause performance of,
such obligation; and the Administrative Agents costs and expenses incurred in connection
therewith shall be payable by the Borrowers. The Credit Parties irrevocably appoint the
Administrative Agent as their attorney-in-fact and authorize the Administrative Agent to act
on behalf of the Credit Parties (i) to execute on behalf of the Credit Parties as debtor and
to file financing
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statements necessary or desirable in the Administrative Agents discretion to perfect
and to maintain the perfection and priority of the interest in the Collateral, and (ii) to
file a carbon, photographic or other reproduction of this Agreement or any financing
statement with respect to the Collateral as a financing statement in such offices as the
Administrative Agent in its discretion deems necessary or desirable to perfect and to
maintain the perfection and priority of the interests in the Collateral. This appointment
is coupled with an interest and is irrevocable.
(d) Without limiting the generality of the foregoing, the Credit Parties will not
earlier than six (6) months and not later than three (3) months prior to the fifth
anniversary of the date of filing of the financing statement referred to in Section 4.1(d)
or any other financing statement filed pursuant to this Agreement, the Credit Documents or
in connection with any Loan hereunder, unless this Agreement has terminated in accordance
with the provisions hereof:
(i) execute and deliver and file or cause to be filed an appropriate continuation
statement with respect to such financing statement; and
(ii) deliver or cause to be delivered to the Administrative Agent an Opinion of Counsel
for the Credit Parties, confirming and updating the opinion delivered pursuant to Section
4.1(c) with respect to perfection and otherwise to the effect that the security interest
hereunder continues to be an enforceable and perfected security interest, subject to no
other Liens of record except as provided herein or otherwise permitted hereunder, which
opinion may contain usual and customary assumptions, limitations and exceptions.
Section 10.26 Credit Parties Waiver of Setoff.
Each Credit Party hereby waives any right of setoff it may have or to which it may be entitled
under this Agreement, the other Credit Documents or otherwise from time to time against the
Administrative Agent, any Lender, or any Property or assets, or any of the foregoing.
Section 10.27 Periodic Due Diligence Review.
Each Credit Party acknowledges that the Administrative Agent and each Lender has the right to
perform continuing due diligence reviews with respect to the Collateral (including, but not limited
to, appraisals of the Underlying Mortgaged Property) and the Credit Parties and Consolidated
Subsidiaries of the foregoing for purposes of verifying compliance with the representations,
warranties, covenants, agreements and specifications made hereunder, or otherwise, and each Credit
Party agrees that upon reasonable (but no less than three (3) Business Day) prior notice, unless an
Event of Default shall have occurred, in which case no notice is required, to the Credit Parties,
as applicable, the Administrative Agent, the Lenders or their authorized representatives shall be
permitted during normal business hours to examine, inspect, and make copies and extracts of, the
Collateral and any and all documents, records, agreements, instruments or information relating to
such Collateral, the Credit Parties and the Consolidated Subsidiaries of the foregoing in the
possession or under the control of any Credit Party. Each Credit Party also shall make available
to the Administrative Agent a knowledgeable financial or accounting officer for the purpose of
answering questions respecting the Collateral, the Credit Parties and the Consolidated Subsidiaries
of the foregoing. Each Credit Party shall also make available to the Administrative Agent and the
Lenders any accountants or auditors of any Credit Party to answer any questions or provide any
documents as the Administrative Agent or the Lenders may require. The Borrowers shall pay all
reasonable out-of-pocket costs and expenses incurred by the Administrative Agent and/or the Lenders
in connection with the Administrative Agents and the Lenders activities pursuant to this Section
(Due Diligence Costs); provided however, that the Borrowers obligations to pay for any
appraisals of the Underlying Mortgaged Property shall be limited to the cost of two appraisals per
Underlying Property in
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any three year period. The Credit Parties acknowledge that the Administrative Agent has the
right at any time to review all aspects of the Collateral and the Asset Value thereof, which review
shall occur no less than quarterly and such reviews may result in mandatory prepayments under
Section 2.5.
Section 10.28 Character of Loans for Income Tax Purposes.
The Lenders and the Borrowers shall treat all Loans hereunder as indebtedness of the Borrowers
for United States federal income tax purposes.
Section 10.29 Joint and Several Liability; Full Recourse Obligations.
(a) At all times during which there is more than one (1) Borrower under this Agreement,
each Borrower hereby acknowledges and agrees that (i) such Borrower shall be jointly and
severally liable to the Administrative Agent and the Lenders to the maximum extent permitted
by the Requirements of Law for all representations, warranties, covenants, duties and
indemnities of the Borrowers, arising under this Agreement and the other Credit Documents,
as applicable, and the Obligations, (ii) such Borrower has consented to the Administrative
Borrower delivering all Notices of Borrowing on behalf of all Borrowers and any such Notice
of Borrowing delivered by the Administrative Borrower on behalf of the Borrowers is binding
upon and enforceable against each Borrower, (iii) the liability of each Borrower (A) shall
be absolute and unconditional and shall remain in full force and effect (or be reinstated)
until all the Obligations shall have been paid in full and the expiration of any applicable
preference or similar period pursuant to any bankruptcy, insolvency, reorganization,
moratorium or similar law, or at law or in equity, without any claim having been made before
the expiration of such period asserting an interest in all or any part of any payment(s)
received by the Administrative Agent, and (B) until such payment has been made, shall not be
discharged, affected, modified or impaired on the happening from time to time of any event,
including, without limitation, any of the following, whether or not with notice to or the
consent of the Credit Parties or any other Person, (1) the waiver, compromise, settlement,
release, termination or amendment (including, without limitation, any extension or
postponement of the time for payment or performance or renewal or refinancing) of any or all
of the obligations or agreements of any Credit Party under this Agreement or any Credit
Document, (2) the failure to give notice to the Credit Parties of the occurrence of an Event
of Default under any of the Credit Documents, (3) the release, substitution or exchange by
the Administrative Agent of any or all of the Collateral (whether with or without
consideration) or the acceptance by the Administrative Agent of any additional collateral or
the availability or claimed availability of any other collateral or source of repayment or
any nonperfection or other impairment of collateral, (4) the release of any Person primarily
or secondarily liable for all or any part of the Obligations, whether by the Administrative
Agent or in connection with any voluntary or involuntary liquidation, dissolution,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors or similar
event or proceeding affecting any or all of the Credit Parties or any other Person who, or
any of whose Property, shall at the time in question be obligated in respect of the
Obligations or any part thereof, or (5) to the extent permitted by Requirements of Law, any
other event, occurrence, action or circumstance that would, in the absence of this Section,
result in the release or discharge of any or all of the Borrowers from the performance or
observance of any obligation, covenant or agreement contained in this Agreement or the
Credit Documents, (iv) the Administrative Agent shall not be required first to initiate any
suit or to exhaust its remedies against the Credit Parties or any other Person to become
liable, or against any of the Collateral, in order to enforce this Agreement or the Credit
Documents and the Credit Parties expressly agree that, notwithstanding the occurrence of any
of the foregoing, each Borrower shall be and remain directly and primarily liable for all
sums due under this Agreement or any of the other Credit Documents, (v) when making any
demand hereunder against any Borrower, the Administrative Agent or the Lenders may, but
shall be under no obligation to, make a similar
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demand on the other Borrowers, and any failure by the Administrative Agent or Lenders
to make any such demand or to collect any payments from the other Borrowers, or any release
of such other Borrowers, shall not relieve any Borrower in respect of which a demand or
collection is not made or the Borrowers not so released of their obligations or liabilities
hereunder, and shall not impair or affect the rights and remedies, express or implied, or as
a matter of law, of the Administrative Agent or the Lenders against the Borrowers and
(vi) on disposition by the Administrative Agent of any Property encumbered by any
Collateral, each Borrower shall be and shall remain jointly and severally liable for any
deficiency.
(b) Each Borrower hereby agrees that, to the extent another Borrower shall have paid
more than its proportionate share of any payment made hereunder, the Borrowers shall be
entitled to seek and receive contribution from and against any other Borrowers which have
not paid their proportionate share of such payment; provided however, that
the provisions of this Section shall in no respect limit the obligations and liabilities of
each Borrower to the Administrative Agent and the Lenders and, notwithstanding any payment
or payments made by a Borrower (the paying Borrower) hereunder or any set-off or
application of funds of the paying Borrower by the Administrative Agent or the Lenders, the
paying Borrower shall not be entitled to be subrogated to any of the rights of the
Administrative Agent or the Lenders against any other Borrowers or any collateral security
or guarantee or right of offset held by the Administrative Agent or the Lenders, nor shall
the paying Borrower seek or be entitled to seek any contribution or reimbursement from the
other Borrowers in respect of payments made by the paying Borrower hereunder, until all
amounts owing to the Administrative Agent and the Lenders by the Borrowers under the Credit
Documents and the Obligations (but only to the extent that an event of default, an event
that, with the notice or the lapse of time, would become an event of default, or any
acceleration has occurred with respect to such other Obligations) are paid in full. If any
amount shall be paid to the paying Borrower on account of such subrogation rights at any
time when all such amounts shall not have been paid in full, such amount shall be held by
the paying Borrower in trust for the Administrative Agent, segregated from other funds of
the paying Borrower, and shall, forthwith upon receipt by the paying Borrower, be turned
over to the Administrative Agent in the exact form received by the paying Borrower (duly
indorsed by the paying Borrower to the Administrative Agent, if required), to be applied
against amounts owing to the Administrative Agent and the Lenders by the Borrowers under the
Credit Documents and the Obligations (but only to the extent that an event of default, an
event that, with the notice or the lapse of time, would become an event of default, or any
acceleration has occurred with respect to such other Obligations) in such order as the
Administrative Agent may determine in its discretion.
(c) The obligations of the Borrowers and the Guarantors under the Credit Documents are
full recourse obligations to each Borrower and each Guarantor and the Borrowers and the
Guarantors hereby forever waive, demise, acquit and discharge any and all defenses, and
shall at no time assert or allege any defense, to the contrary.
Section 10.30 Amendment and Restatement.
This Agreement amends, restates and supersedes in its entirety the Existing Agreement.
Notwithstanding the amendment and restatement of the Existing Agreement by this Agreement:
(a) unless modified by the express terms of this Agreement, the other Credit Documents or the
Confirmations delivered in connection with this Agreement, each Loan outstanding on the date hereof
under the Existing Agreement shall continue in effect as a Loan hereunder, without any transfer,
conveyance, diminution, forbearance, forgiveness or other modification thereto or effect thereon
occurring or being deemed to occur by reason of the amendment and restatement of the Existing
Agreement hereby and (b) the Existing Borrower shall continue to be liable to the Lenders for
(i) all
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Obligations (under and as defined in the Existing Agreement) accrued to the date hereof
under the Existing Agreement and (ii) all agreements on the part of the Existing Borrower under the
Existing Agreement to indemnify the Lenders or any Secured Party in connection with events or
conditions arising or existing prior to the effective date of this Agreement, including, but not
limited to, those events and conditions set forth in Section 10.5 thereof. This Agreement is given
in substitution for the Existing Agreement and not as payment of any of the obligations of the
Existing Borrower thereunder, and is in no way intended to constitute a novation of the Existing
Agreement. Nothing contained herein is intended to amend, modify or otherwise affect any
obligation of the Existing Borrower, the Guarantor or the Pledgor existing prior to the date
hereof. Upon the effectiveness of this Agreement, each reference to the Existing Agreement in any
other Credit Document, or document, instrument or agreement executed and/or delivered in connection
therewith, shall mean and be a reference to this Agreement unless the context otherwise requires.
Upon the effectiveness of this Agreement, the terms of this Agreement shall govern all aspects of
the facility represented by the Existing Agreement, including, without limitation, the eligibility
of Collateral financed under the Existing Agreement and any settlements to be made with respect
thereto.
Section 10.31 Modification of Other Credit Documents.
The amendments and modifications to this Agreement shall amend and modify the other Credit
Documents to the extent such other Credit Documents are not separately amended or modified on the
Restatement Date. The Credit Parties agree that all other Credit Documents that are not separately
amended or modified on the Restatement Date are binding and enforceable obligations and are in full
force and effect, as modified and amended by this Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by its proper and duly authorized officers as of the day and year first above written.
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BORROWERS: |
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ARBOR REALTY FUNDING, LLC, a Delaware limited liability company |
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By:
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/s/ John Natalone, Executive Vice President |
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Name:
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John Natalone |
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Title:
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Executive Vice President |
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ARSR TAHOE, LLC, a Delaware limited liability company |
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By:
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/s/ John Natalone, Executive Vice President |
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Name:
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John Natalone |
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Title:
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Executive Vice President |
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ARBOR REALTY LIMITED PARTNERSHIP, a Delaware limited
partnership |
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By:
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/s/ John Natalone, Executive Vice President |
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Name:
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John Natalone |
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Title:
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Executive Vice President |
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ART 450 LLC, a Delaware limited liability company |
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By:
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/s/ John Natalone, Executive Vice President |
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Name:
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John Natalone |
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Title:
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Executive Vice President |
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ARBOR REALTY SR, INC., a Maryland corporation |
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By:
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/s/ John Natalone, Executive Vice President |
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Name:
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John Natalone |
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Title:
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Executive Vice President |
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ARBOR ESH II LLC, a Delaware limited liability
company |
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By:
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/s/ John Natalone, Executive Vice President |
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Name:
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John Natalone |
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Title:
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Executive Vice President |
[Signatures Continued on the Following Page]
First Amended and Restated Credit Agreement
S-1
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GUARANTORS: |
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ARBOR REALTY TRUST, INC,
a Maryland corporation |
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By:
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/s/ John Natalone, Executive Vice President |
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Name:
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John Natalone |
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Title:
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Executive Vice President |
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ARBOR REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership |
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By:
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/s/ John Natalone, Executive Vice President |
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Name:
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John Natalone |
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Title:
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Executive Vice President |
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ARBOR REALTY SR, INC.,
a Maryland corporation |
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By:
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/s/ John Natalone, Executive Vice President |
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Name:
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John Natalone |
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Title:
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Executive Vice President |
[Signatures Continued on the Following Page]
First Amended and Restated Credit Agreement
S-2
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ADMINISTRATIVE AGENT: |
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WACHOVIA BANK, NATIONAL |
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ASSOCIATION, as Administrative Agent on behalf of the
Secured Parties |
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By:
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/s/ John Nelson, Managing Director |
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Name:
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John Nelson |
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Title:
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Managing Director |
[Signatures Continued on the Following Page]
First Amended and Restated Credit Agreement
S-3
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LENDER: |
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WACHOVIA BANK, NATIONAL |
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ASSOCIATION, as Lender |
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By:
Name:
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/s/ John Nelson, Managing Director
John Nelson
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Title:
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Managing Director |
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First Amended and Restated Credit Agreement
S-4
exv10w34
Exhibit 10.34
U.S. $57,164,228.00
FIRST AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
by and among
ARBOR REALTY TRUST, INC.,
as a Borrower
ARBOR REALTY GPOP, INC.,
as a Borrower
ARBOR REALTY LPOP, INC.,
as a Borrower
ARBOR REALTY LIMITED PARTNERSHIP,
as a Borrower
ARBOR REALTY SR, INC.,
as a Borrower
ARBOR REALTY COLLATERAL MANAGEMENT, LLC,
as a Borrower
EACH OTHER BORROWER THAT BECOMES A PARTY HERETO,
each as a Borrower
EACH OF THE GUARANTORS THAT BECOMES A PARTY HERETO,
each as a Guarantor
WACHOVIA BANK, NATIONAL ASSOCIATION,
in its capacity as Initial Lender and in its capacity as Administrative Agent
and
EACH OF THE OTHER LENDERS THAT BECOMES A PARTY HERETO,
each as a Lender
Dated as of July 23, 2009
TABLE OF CONTENTS
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Page |
ARTICLE I DEFINITIONS |
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2 |
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Section 1.1 Certain Defined Terms |
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2 |
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Section 1.2 Other Terms |
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28 |
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Section 1.3 Computation of Time Periods |
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28 |
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Section 1.4 Interpretation |
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29 |
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ARTICLE II THE LOANS |
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30 |
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Section 2.1 Loans |
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30 |
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Section 2.2 Mandatory Prepayments |
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33 |
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Section 2.3 Optional Prepayments |
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35 |
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Section 2.4 [Reserved] |
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35 |
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Section 2.5 Payment of Interest |
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35 |
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Section 2.6 Pro Rata Treatment and Payments |
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36 |
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Section 2.7 Accounts; Payments |
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36 |
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Section 2.8 Non-Receipt of Funds by the Administrative Agent |
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37 |
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Section 2.9 Payments by Borrowers |
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38 |
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Section 2.10 Fees |
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39 |
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Section 2.11 Increased Costs; Capital Adequacy; Illegality |
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40 |
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Section 2.12 Taxes |
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41 |
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Section 2.13 Designation of a Different Lending Office |
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42 |
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Section 2.14 Usury |
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42 |
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ARTICLE III CONDITIONS TO TRANSACTIONS |
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43 |
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Section 3.1 Conditions to Restatement Date |
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43 |
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Section 3.2 Conditions Precedent to all Loans |
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46 |
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ARTICLE IV REPRESENTATIONS AND WARRANTIES |
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48 |
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Section 4.1 Representations and Warranties |
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48 |
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ARTICLE V COVENANTS |
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57 |
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Section 5.1 Covenants |
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57 |
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ARTICLE VI [RESERVED] |
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71 |
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ARTICLE VII JOINT AND SEVERAL LIABILITY |
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71 |
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Section 7.1 Joint and Several Liability; Full Recourse Obligations |
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71 |
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ARTICLE VIII SECURITY INTEREST |
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73 |
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Section 8.1 Security Interest |
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73 |
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Section 8.2 Release of Lien on Collateral |
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74 |
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Section 8.3 Further Assurances |
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75 |
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Section 8.4 Remedies |
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75 |
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Section 8.5 Waiver of Certain Laws |
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75 |
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Section 8.6 Administrative Agents Duty of Care |
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76 |
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ARTICLE IX POWER OF ATTORNEY |
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76 |
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Section 9.1 Administrative Agents Appointment as Attorney-in-Fact |
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76 |
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ARTICLE X EVENTS OF DEFAULT |
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77 |
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Section 10.1 Events of Default |
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78 |
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Section 10.2 Remedies |
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81 |
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Section 10.3 Waiver |
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84 |
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Section 10.4 Determination of Events of Default |
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84 |
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Page |
ARTICLE XI INDEMNIFICATION |
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84 |
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Section 11.1 Indemnities by the Borrowers |
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84 |
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Section 11.2 AfterTax Basis |
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86 |
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ARTICLE XII THE ADMINISTRATIVE AGENT |
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86 |
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Section 12.1 Appointment |
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86 |
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Section 12.2 Delegation of Duties |
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86 |
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Section 12.3 Exculpatory Provisions |
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87 |
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Section 12.4 Reliance by Administrative Agent |
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87 |
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Section 12.5 Notice of Default |
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87 |
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Section 12.6 Non-Reliance on Administrative Agent and Other Lenders |
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88 |
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Section 12.7 Indemnification |
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88 |
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Section 12.8 The Administrative Agent in Its Individual Capacity |
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89 |
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Section 12.9 Successor Administrative Agent |
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89 |
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Section 12.10 Other Administrative Agents |
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89 |
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ARTICLE XIII MISCELLANEOUS |
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90 |
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Section 13.1 Amendments, Waivers and Release of Collateral |
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90 |
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Section 13.2 Notices, Etc. |
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92 |
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Section 13.3 Set-offs |
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92 |
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Section 13.4 No Waiver; Remedies |
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93 |
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Section 13.5 Binding Effect |
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93 |
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Section 13.6 Term of this Agreement |
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93 |
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Section 13.7 Governing Law |
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93 |
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Section 13.8 Waivers |
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93 |
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Section 13.9 Costs, Expenses and Taxes |
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95 |
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Section 13.10 Legal Matters |
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96 |
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Section 13.11 Recourse Against Certain Parties |
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96 |
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Section 13.12 Protection of Right, Title and Interest in the Collateral; Further
Action Evidencing Loans |
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97 |
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Section 13.13 Confidentiality |
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98 |
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Section 13.14 Execution in Counterparts; Severability; Integration |
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99 |
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Section 13.15 Borrowers Waiver of Setoff |
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99 |
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Section 13.16 Assignments and Participations |
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99 |
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Section 13.17 Heading and Exhibits |
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101 |
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Section 13.18 Single Agreements |
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101 |
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Section 13.19 Periodic Due Diligence Review |
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102 |
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Section 13.20 Use of Employee Plan Assets |
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102 |
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Section 13.21 Adjustments |
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102 |
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Section 13.22 Filings, Recordation, etc. |
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103 |
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Section 13.23 Resolution of Drafting Ambiguities |
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103 |
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Section 13.24 Character of Loans for Income Tax Purposes |
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103 |
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Section 13.25 Amendment and Restatement |
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103 |
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Section 13.26 Modification of Other Loan Documents |
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104 |
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ii
SCHEDULES
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Schedule 1
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-
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Accounts |
Schedule 2
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-
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Commitments |
Schedule 3
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-
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Addresses |
Schedule 4.1(cc)
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-
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List of Contingent Liabilities |
Schedule 4.1(ff)
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-
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List of Existing Financing Facilities |
Schedule 4.1(ll)
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-
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Organizational Chart of the Borrowers |
EXHIBITS
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Exhibit I
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-
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Revolving Note |
Exhibit II
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-
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Form of Notice of Borrowing |
Exhibit III
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-
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Form of Confirmation |
Exhibit IV
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-
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Form of Closing Certificate of Borrower/Guarantor |
Exhibit V
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-
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Compliance Certificate |
Exhibit VI1
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-
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Form of Irrevocable Instruction |
Exhibit VI2
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Form of Irrevocable Instruction |
Exhibit VII
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-
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Form of Servicer Redirection Notice |
Exhibit VIII
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-
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Power of Attorney |
Exhibit IX
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-
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Form of Commitment Transfer Supplement |
Exhibit X
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-
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Form of Joinder Agreement |
Exhibit XI
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-
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Form of Account Control Agreement |
iii
FIRST AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
THIS FIRST AMENDED AND RESTATED REVOLVING LOAN AGREEMENT (as amended, modified, waived,
supplemented, extended, restated or replaced from time to time, this Agreement) is made
as of this 23rd day of July, 2009, by and among:
(1) ARBOR REALTY TRUST, INC., a Maryland corporation, as a borrower (together with its
successors and permitted assigns, ART);
(2) ARBOR REALTY GPOP, INC., a Delaware corporation, as a borrower (together with its
successors and permitted assigns, GPOP);
(3) ARBOR REALTY LPOP, INC., a Delaware corporation, as a borrower (together with its
successors and permitted assigns, LPOP);
(4) ARBOR REALTY LIMITED PARTNERSHIP, a Delaware limited partnership, as a borrower (together
with its successors and permitted assigns, ARLP);
(5) ARBOR REALTY SR, INC., a Maryland corporation, as a borrower (together with its successors
and permitted assigns, ARSR);
(6) ARBOR REALTY COLLATERAL MANAGEMENT, LLC, a Delaware limited liability company, as a
borrower (together with its successors and permitted assigns, ARCM);
(7) EACH OTHER BORROWER THAT BECOMES A PARTY HERETO, each as a Borrower;
(8) EACH OF THE GUARANTORS THAT BECOMES A PARTY HERETO, each as a guarantor (in such capacity,
together with its successors and permitted assigns, each a Guarantor);
(9) 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 Initial Lender), and in its capacity as
administrative agent (together with its successors and assigns in such capacity, the
Administrative Agent); and
(10) EACH OF THE LENDERS THAT BECOMES A PARTY HERETO, each as a lender (together with their
successors and assigns, each a Lender and collectively with the Initial Lender, the
Lenders).
R E C I T A L S
WHEREAS, the Borrowers, the Lender, the Administrative Agent and the Guarantors that become a
party thereto are parties to that certain Revolving Loan Agreement, dated as of June 11, 2007, as
amended by the First Amendment to the Revolving Loan Agreement, dated as of November 6, 2007, the
Second Amendment to the Revolving Loan Agreement, dated as of June 9, 2008, the Third Amendment to
the Revolving Loan Agreement, dated as of June 26, 2008, the Fourth Amendment to the Revolving Loan
Agreement, dated as of July 9, 2008, the Fifth Amendment to the Revolving Loan Agreement, dated as
of September 30, 2008, the Sixth Amendment to the Revolving Loan Agreement,
dated as of December 31, 2008, the Seventh Amendment to the Revolving Loan Agreement, dated as
of December 31, 2008 and the Eighth Amendment to the Revolving Loan Agreement, dated as of June 8,
2009 (the Original Agreement);
WHEREAS, the Borrowers, the Guarantors, the Lenders and the Administrative Agent desire to
amend and restate the Original Agreement in several respects.
NOW, THEREFORE, based upon the foregoing Recitals, the mutual premises and agreements
contained herein, and other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms.
(a) Certain capitalized terms used throughout this Agreement are defined above or in this
Article I.
(b) As used in this Agreement and the schedules, exhibits and other attachments hereto, unless
the context requires a different meaning, the following terms shall have the following meanings:
40 Act: The Investment Company Act of 1940, as amended from time to time.
450 Transaction: The Preferred Equity Interests of ART and/or one or more of its
Consolidated Subsidiaries in AT 450 I LLC and AT 450 II LLC.
Account Beneficiaries: The Lenders and the Borrowers (but, in the case of the Borrowers,
solely to the extent any such Borrower shall have a right to receive amounts from the Collection
Account in accordance with Subsection 2.7(b) hereof).
Account Control Agreement: An amended and restated letter agreement, dated as of the
Restatement Date, among the Borrowers, the Administrative Agent and Wachovia, substantially in the
form of Exhibit XI attached hereto, regarding the Administrative Agents control over the
Collection Account and the CDO Management Fee Account.
Accrual Period: With respect to the first Payment Date, the period from and including
the applicable Borrowing Date to but excluding such first Payment Date, and, with respect to any
subsequent Payment Date, the period from and including the previous Payment Date to but excluding
such subsequent Payment Date.
ACM: Arbor Commercial Mortgage, LLC, a New York limited liability company.
Additional Amount: Defined in Subsection 2.12(a) of this Agreement.
Additional Collateral: Eligible Assets that are from time to time pledged to the
Administrative Agent, on behalf of the Lenders, as Collateral for the Loans and the other
Obligations (in each case excluding any Retained Interests).
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
2
Additional Term Loan Collateral Has the meaning set forth in the Arbor Credit Agreement.
Adjusted Eurodollar Rate: For any Eurodollar Period, a rate per annum equal to a
fraction, expressed as a percentage and rounded upwards (if necessary) to the nearest 1/100 of 1%,
(i) the numerator of which is equal to the Eurodollar Rate for such Eurodollar Period and (ii) the
denominator of which is equal to 100% minus the Eurodollar Reserve Percentage for such
Eurodollar Period.
Adjusted Tangible Net Worth: Tangible Net Worth plus the aggregate principal
amount outstanding under the Eligible Subordinated Debt plus deferred revenues relating to
the 450 Transaction to the extent classified as a liability according to GAAP.
Administrative Agent: Defined in the Preamble to this Agreement.
Administrative Agents Account: An account of the Administrative Agent disclosed to the
Borrower from time to time.
Advance Rate: The applicable advance rate set forth in Schedule 1-B to the Fee
Letter or such other advance rate set forth in the related Confirmation, provided that any advance
rate set forth in the Confirmation shall control over any applicable advance rate set forth in the
Fee Letter.
Affected Party: The Administrative Agent, each Lender, each Indemnified Party and the
transferees, pledgees, participants, successors and assigns of each of the foregoing, as
applicable.
Affiliate: With respect to a Person, means any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such Person, or is a
director of such Person. For purposes of this definition, control (including the terms
controlling, controlled by and under common control with) when used with respect to any
specified Person means the possession, direct or indirect, of the power to vote 20% or more of the
voting securities of such Person or to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by contract or otherwise.
Aggregate Outstanding Principal: As of any day, the aggregate principal amount then
outstanding under the Revolving Notes.
Aggregate Unpaids: At any time, an amount equal to the sum of the Aggregate Outstanding
Principal, the aggregate unpaid and accrued Interest, Breakage Costs, Due Diligence Costs,
Increased Costs, Other Costs, Taxes, Additional Amounts, Late Payment Fees, Upfront Fee, Unused
Fees, Extension Fees and all other fees and other amounts owed by the Borrowers or the Guarantors
to the Administrative Agent, the Lenders or the Affected Parties under this Agreement, the Loan
Documents and any other document or agreement delivered in connection with the transactions
contemplated by this Agreement or the other Loan Documents and all interest and/or fees that accrue
after the commencement by or against any Borrower, any Guarantor or any Affiliate of the foregoing
of any proceeding under any Insolvency Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding (whether due or
accrued).
Agreement: Defined in the Preamble.
Alpine Asset: Defined in the Arbor Credit Agreement.
Alpine ESH Release Amount: Defined in the Arbor Credit Agreement.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
3
Anti-Terrorism Laws: Any Applicable Law relating to money laundering or terrorism,
including, but not limited to, Executive Order 13224, the OFAC Regulations and the USA Patriot Act.
Applicable Law: For any Person or Property of such Person, all existing and future
applicable laws, rules, regulations (including temporary and final income tax regulations),
statutes, treaties, codes, ordinances, permits, certificates, orders and licenses of and
interpretations by any Governmental Authority (including, without limitation, usury laws, the
Federal Truth in Lending Act, and Regulation Z and Regulation B of the Board of Governors of the
Federal Reserve System), applicable judgments, decrees, injunctions, writs, awards or orders of any
court, arbitrator or other administrative, judicial or quasi-judicial tribunal or agency of
competent jurisdiction and, as applicable, all Authority Documents applicable to such Person.
Approved Fund: With respect to any Lender that is a fund that invests in bank loans, any
other fund that invests in bank loans and is managed by the same investment advisor as such Lender
or by an Affiliate of such investment advisor.
Arbor Credit Agreement: That certain First Amended and Restated Credit Agreement, dated
as of July 23, 2009, among Arbor Realty Funding, LLC, a Delaware limited liability company, as a
borrower, ARSR Tahoe, LLC, a Delaware limited liability company, as a borrower, Arbor ESH II LLC, a
Delaware limited liability company, as a borrower, ARLP, as a borrower and a guarantor, ART 450
LLC, a Delaware limited liability company, as a borrower, ART, as a guarantor, ARSR, as a borrower
and a guarantor, the lenders from time to time party thereto and Wachovia, as administrative agent,
as such agreement is amended, modified, restated, replaced, waived, substituted, supplemented or
extended from time to time.
Arbor Credit Documents: Has the meaning given to the term Credit Documents in the
Arbor Credit Agreement.
Arbor Credit Facility: That certain facility evidenced by the Arbor Credit Agreement and
the other Arbor Credit Documents, as such agreements are amended, modified, restated, replaced,
waived, substituted, supplemented or extended from time to time.
Arbor Credit Facility Fee Letter: Has the meaning given to the term Fee Letter in the
Arbor Credit Agreement, as such agreement is amended, modified, restated, replaced, waived,
substituted, supplemented or extended from time to time.
Arbor Entity: Each of the Borrowers and any Affiliate or Subsidiary of the Borrowers.
ARCM: Defined in the Preamble to this Agreement.
ARLP: Defined in the Preamble to this Agreement.
ARSR: Defined in the Preamble to this Agreement.
ART: Defined in the Preamble to this Agreement.
Asset Valuation Period: Has the meaning set forth in the Arbor Credit Facility Fee
Letter.
Asset Value: As of any date of determination for any Mortgage Asset included or to be
included as a part of the Additional Collateral, the lesser of (a) the product of the Advance Rate
times the Book Value
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
4
of the such Mortgage Asset, as determined by the Administrative Agent in its discretion and (b) the
product of the Advance Rate times the Market Value of such Mortgage Asset, as determined by
the Administrative Agent in its discretion; provided, however, the Asset Value of
any Mortgage Asset shall not at any time exceed a last Dollar LTV of 85%, as determined by the
Administrative Agent in its discretion; provided, further, however, the
Asset Value of any Mortgage Asset may be reduced in the Administrative Agents discretion for any
reason by an amount determined by the Administrative Agent in its discretion (which amount may, in
the Administrative Agents discretion, be reduced to zero) with respect to any Mortgage
Asset, including, without limitation, (i) with respect to which the Administrative Agent does not
have a perfected, first priority security interest in such Mortgage Asset and the related
Collateral at any time and for any reason, (ii) in respect of which there is a breach of a
representation or warranty set forth in Article III of the Arbor Credit Agreement (to the
extent such representation or warranty relates to Mortgage Assets or the Administrative Agents
rights or remedies with respect thereto), Schedule 1.1(c) to the Arbor Credit Agreement or
the Mortgage Loan Documents (in each case, assuming each representation and warranty is made as of
the date the Asset Value is determined) without regard to (A) knowledge or lack of knowledge of a
breach, (B) any qualifications (if any) to such representations and warranties based on knowledge
(regardless of how such knowledge is qualified or phrased) and (C) representations or warranties
with respect to knowledge or lack of knowledge thereof, (iii) in respect of which any statement,
affirmation or certification made or information, document, agreement, report or notice provided
by any Borrower or the Guarantor to the Administrative Agent with respect to the related Mortgage
Asset is untrue in any material respect, (iv) in respect of which the complete Mortgage Asset File
has not been delivered to the Custodian within the time periods required by the Custodial
Agreement, the Custodial Agreement for the Arbor Credit Facility, (v) except as approved by the
Administrative Agent in writing, that is not or is no longer in any respect an Eligible Asset, (vi)
with respect to which any Retained Interest, funding commitment, funding obligation or any other
obligation of any kind shall have been transferred to the Administrative Agent, (vii) for which a
Mortgage Loan Document or Mortgage Asset File (y) has been released from the possession of the
Custodian under the Custodial Agreement to a Borrower or its designee and the same has not been
returned to the Custodian for a period in excess of twenty (20) calendar days or (z) is the subject
of Section 4.3 of the Custodial Agreement, (viii) any portion of which (including any
interest that is senior or pari passu to the Mortgage Asset) has been downgraded by any Rating
Agency, (ix) with respect to which there has occurred any Insolvency Proceeding with respect to
any Obligor or any co-participant or any Person having an interest in the Mortgage Asset or any
related Underlying Mortgaged Property which is pari passu with, in right of payment or priority,
the rights of the Administrative Agent in such Mortgage Asset, (x) in respect of which any Borrower
fails to comply with any covenant, duty, obligation or agreement set forth in the Arbor Credit
Documents as it relates to such Mortgage Asset or the Administrative Agents rights or remedies
with respect thereto, (xi) to the extent described in Subsection 2.5(c) to the Arbor Credit
Agreement, (xii) with respect to which any Preferred Equity Grantor or Equity Asset Grantor (or the
Borrowers on its behalf) fails to satisfy the requirements of Section 5.25 to the Arbor
Credit Agreement, (xiii) with respect to which any Borrower fails to deliver any reports, documents
or other information regarding any Mortgage Asset or Underlying Mortgaged Property and such failure
affects, impairs or interferes with the Administrative Agents rights or remedies with respect to
or the ability to determine the Asset Value of any Mortgage Asset and/or (xiv) with respect to any
Mortgage Asset (including the Underlying Mortgaged Property with respect thereto), the Underlying
Mortgaged Property has deteriorated materially in value or the Underlying Mortgaged Property and/or
any applicable asset or development plan are not performing as expected (whether related to
construction progress, re-leasing, zoning, reserve balances, servicing and any other similar
situations), including, without limitation, (A) the lease-up plan or lot or condo sales differ from
the original asset business plan, (B) the debt service reserve runs out with no replenishment
feature or guaranty of interest, (C) any construction timeline greater than six (6) months is off
the initial schedule, (D) cost overruns are greater than 15% to 20% or (E) required principal pay
downs are not met.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
5
Authority Documents: As to any Person, the articles or certificate of incorporation or
formation, by-laws, limited liability company agreement, general partnership agreement, limited
partnership agreement, trust agreement, joint venture agreement or other applicable organizational
or governing documents and the applicable resolutions of such Person.
Availability: At any time, an amount equal to the positive excess (if any) of (i) the
least of (a) the Maximum Amount, (b) four (4) times the Collateral Cash Flow for the
immediately preceding calendar quarter plus the Asset Value of all Additional Collateral,
(c) four (4) times the Projected Collateral Cash Flow for the immediately following
calendar quarter plus the Asset Value of all Additional Collateral, and (d) one (1)
times the Projected Collateral Cash Flow for the next four (4) quarters plus the
Asset Value of all Additional Collateral, minus (ii) the Aggregate Outstanding Principal
for all Loans on such day; provided, however, for so long as and to the extent that
either (i) the Administrative Agent does not have a first priority perfected security interest in
any item of Collateral or (ii) any Required Payment is not subject to an Irrevocable Instruction
that is in full force and effect, then such Collateral or Required Payment shall be disregarded for
the purposes of calculating Availability; provided, further, however, on
and after the occurrence of the Facility Maturity Date or an Event of Default, the Availability
shall be zero (0).
Availability Correction Deadline: Defined in Subsection 2.2(a)(i) of this
Agreement.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et
seq.), as amended from time to time.
Base Rate: On any date, a fluctuating rate per annum equal to the lower of (a) the Prime
Rate or (b) the Federal Funds Rate plus 0.5%.
Benefit Plan: Any employee benefit plan as defined in Section 3(3) of ERISA in respect
of which any Borrower, any Guarantor or any ERISA Affiliate of any Borrower or any Guarantor is, or
at any time during the immediately preceding six (6) years was, an employer as defined in
Section 3(5) of ERISA.
Benefited Lender: Defined in Section 13.21 of this Agreement.
Book Value: With respect to any Mortgage Asset at any time, an amount equal to the
lesser of (a) face or par value and (b) the price that the applicable Borrower initially paid or
advanced for or in respect of such Mortgage Asset, as such Book Value may be marked down by the
Borrowers from time to time, including, as applicable, any loss/loss reserve/price adjustments,
less an amount equal to the sum of all principal payments or paydowns paid and realized
losses recognized relating to such Mortgage Asset.
Borrower-Related Obligations: Any obligations, liabilities and/or indebtedness of the
Borrowers and/or the Guarantors under the Loan Documents and under any other arrangement between
any Borrower, any Guarantor or any Consolidated Subsidiary of any Borrower or any Guarantor
(including, without limitation, Arbor Realty Funding LLC) on the one hand and the Administrative
Agent, the Initial Lender, an Affiliate of the Administrative Agent or the Initial Lender or any
commercial paper conduit for which the Administrative Agent, the Initial Lender or an Affiliate of
the Administrative Agent or Initial Lender acts as a liquidity provider on the other hand,
including, without limitation, such obligations, liabilities and/or indebtedness under the Wachovia
Indebtedness.
Borrowers: Individually or collectively, as the context requires, ART, GPOP, LPOP, ARCM,
ARLP, ARSR and each other Arbor Entity that becomes a borrower hereunder by execution of a joinder
agreement in form and substance satisfactory to the Administrative Agent. Each Borrower is jointly
and severally liable as a Borrower under this Agreement and other Loan Documents.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
6
Borrowing Date: In respect of any Loan, the date on which such Loan is made under this
Agreement.
Breakage Costs: Defined in Subsection 2.5(b) of this Agreement.
Business Day: Any day other than a Saturday or a Sunday on which (a) banks are not
required or authorized to be closed in Minneapolis, Minnesota, New York, New York, Charlotte, North
Carolina or any other state in which the Administrative Agent or a Lender is located, and (b) if
the term Business Day is used in connection with the determination of the Eurodollar Rate,
dealings in United States dollar deposits are carried on in the London interbank market.
Capital Lease Obligations: For any Person and its Consolidated Subsidiaries, all
obligations of such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) Property to the extent such obligations are required to be classified
and accounted for as a capital lease on a balance sheet of such Person under GAAP, and, for
purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof,
determined in accordance with GAAP.
Cash Equivalents: Any of the following: (i) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support thereof) having maturities of
not more than one (1) year from the date of acquisition, (ii) time deposits or certificates of
deposit of any commercial bank incorporated under the laws of the United States or any state
thereof, of recognized standing having capital and unimpaired surplus in excess of $1,000,000,000
and whose short-term commercial paper rating at the time of acquisition is at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moodys (any such bank, an
Approved Bank), with such deposits or certificates having maturities of not more than
one (1) year from the date of acquisition, (iii) repurchase obligations with a term of not more
than seven (7) days for underlying securities of the types described in clauses (i) and
(ii) above entered into with any Approved Bank, (iv) commercial paper or finance company
paper issued by any Person incorporated under the laws of the United States or any state thereof
and rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof
by Moodys, and in each case maturing not more than one (1) year after the date of acquisition, and
(v) investments in money market funds that are registered under the 40 Act, which have net assets
of at least $1,000,000,000 and at least 85% of whose assets consist of securities and other
obligations of the type described in clauses (i) through (iv) above. All such Cash
Equivalents must be denominated solely for payment in Dollars.
CDO Collateral Manager Distributions: All dividends, distributions and other amounts
payable to ARSR as the holder of 100% of the Equity Interests in ARCM.
CDO Equity Distributions: All dividends, distributions and other amounts payable to ARSR
as holder of 100% of the Equity Interests in each Pledged CDO Subsidiary.
CDO Issuance: Any securitization transaction involving the issuance of collateralized
debt obligations.
CDO Issuer: The issuer of securities in a CDO Issuance.
CDO Management Fee Account: Defined in Subsection 2.7(a).
CDO Management Fees: Any and all fees and other amounts paid or to be paid to ARCM as
Collateral Manager under each Collateral Management Agreement.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
7
CDO Payment Trigger: Any calendar quarter in which ART satisfies the CDO Payment
Liquidity Threshold as of the last day of such quarter; provided, however, if (a)
ART does not satisfy the CDO Payment Liquidity Threshold for a calendar quarter but would have met
the CDO Payment Liquidity Threshold but for the fact that a Credit Party or an Affiliate of a
Credit Party repurchased debt securities during such calendar quarter and (b) ART does not satisfy
the CDO Payment Liquidity Threshold for the next calendar quarter but would have met the CDO
Payment Liquidity Threshold but for the fact that a Credit Party or an Affiliate of a Credit Party
repurchased debt securities during the immediately preceding calendar quarter and the current
calendar quarter, then ART will be deemed to have satisfied the CDO Payment Liquidity Threshold for
such second calendar quarter.
CDO Payment Liquidity Threshold: For any calendar quarter, ART has Liquidity in an amount
greater than or equal to TWENTY SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS ($27,500,000).
CDO Subsidiary: Each of ARMS 2006-1 Equity Holdings LLC, ARMS 2005-1 Equity Holdings
LLC, ARMS 2004-1 Equity Holdings LLC and, after the Restatement Date, any other Subsidiary of ARSR
that holds Equity Interests in a CDO Issuer in connection with a CDO Issuance and is otherwise
approved by the Administrative Agent in its discretion, provided that each such CDO Subsidiary is
or will be a Subsidiary of ARSR that holds Equity Interests in a CDO Issuer in connection with a
CDO Issuance and has a right to receive dividends, distributions and payments on or with respect to
such Equity Interests or from any notes, bonds or certificates or other Property or assets owned or
held by such CDO Subsidiary.
Change of Control: With respect to any Borrower or Guarantor, a change of control shall
be deemed to have occurred upon the occurrence of any of the following: (a) a Person or two or
more Persons acting in concert shall have acquired beneficial ownership, directly or indirectly,
of, or shall have acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of, or control over,
Voting Interests of such Borrower or such Guarantor (or other securities convertible into such
Voting Interests) representing more than 50% of the combined voting power of all Voting Interests
of any Borrower or any Guarantor, (b) Continuing Directors shall cease for any reason to constitute
a majority of the members of the board of directors of any Borrower or any Guarantor then in
office, (c) the sale, lease, transfer, conveyance or other disposition (other than by way of merger
or consolidation), in one or a series of related transactions, of all or substantially all of the
assets of any Borrower (together with its Subsidiaries), or any Guarantor (together with its
Subsidiaries) taken as a whole to any person (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) or (d) the adoption by the equity holders of any Borrower or any Guarantor of a
plan or proposal for the liquidation or dissolution of any Borrower or any Guarantor. As used
herein, beneficial ownership shall have the meaning provided in Rule 13d-3 and 13d-5 of the
Exchange Act. Notwithstanding the foregoing, neither the Administrative Agent nor any Lender shall
be deemed to approve or have approved any internalization of management as a result of this
definition or any other provision.
Closing Certificate: A Closing Certificate, substantially in the form attached hereto as
Exhibit IV, including all attachments and exhibits thereto.
Closing Date: June 11, 2007.
Code: The Internal Revenue Code of 1986, as amended from time to time.
Collateral: Defined in Subsection 8.1(a) of this Agreement.
Collateral Cash Flow: The aggregate Income from all CDO Management Fees and CDO Equity
Distributions deposited into the Collection Account or CDO Management Fee Account, as applicable.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
8
Collateral Management Agreements: Any and all existing and future agreements entered
into by ARCM, in its capacity as Collateral Manager, for the management of all or any portion of
the collateral in a CDO Issuance involving any Borrower, Guarantor or any Consolidated Subsidiary
of the Borrower or Guarantor.
Collateral Manager: Any Person that manages all or a portion of the collateral for a CDO
Issuance, in its capacity as collateral manager (or any equivalent term).
Collection Account: Defined in Subsection 2.7(a) of this Agreement.
Commitment Fee: Defined in the Fee Letter.
Commitment Period: The period from and including the Closing Date to but excluding June
9, 2009. For the avoidance of doubt, as of the Restatement Date, the Commitment Period has expired
and no further borrowings shall be permitted hereunder.
Commitment Transfer Supplement: A Commitment Transfer Supplement, substantially in the
form of Exhibit IX.
Commonly Controlled Entity: An entity, whether or not incorporated, that is under common
control with any Borrower or any Guarantor within the meaning of Section 4001 of ERISA or is part
of a group which includes any Borrower or any Guarantor and that is treated as a single employer
under Section 414 of the Code.
Compliance Certificate: A Compliance Certificate, substantially in the form of
Exhibit V, demonstrating as of the date thereof compliance by ART with the Financial
Covenants and such other matters as are required to be set forth therein, in each case for the
periods specified therein.
Confirmation: An executed confirmation with respect to each pledge of Additional
Collateral, substantially in the form of Exhibit III attached hereto.
Consolidated Subsidiaries: As of any date and any Person, any Subsidiaries or other
entities that are consolidated with such Person in accordance with GAAP.
Contingent Liabilities: Means, with respect to any Person and its Consolidated
Subsidiaries (without duplication): (i) liabilities and obligations (including any Guarantee
Obligations) of such Person or any Consolidated Subsidiary of such Person in respect of
off-balance sheet arrangements (as defined in the SEC Off-Balance Sheet Rules), (ii) any
obligation, including, without limitation, any Guarantee Obligation, whether or not required to be
disclosed in the footnotes to such Persons financial statements, guaranteeing partially or in
whole any Non-Recourse Indebtedness, lease, dividend or other obligation, exclusive of
(A) contractual indemnities (including, without limitation, any indemnity or price-adjustment
provision relating to the purchase or sale of securities or other assets) and (B) guarantees of
non-monetary obligations (other than guarantees of completion, environmental indemnities and
guarantees of customary carve-out matters made in connection with Non-Recourse Indebtedness, such
as (but not limited to) fraud, misappropriation, bankruptcy and misapplication) which have not yet
been called on or quantified, of such Person or of any other Person, and (iii) any forward
commitment or obligation to fund or provide proceeds with respect to any loan or other financing
which is obligatory and non-discretionary on the part of the lender. The amount of any Contingent
Liabilities described in clause (ii) shall be deemed to be, (a) with respect to a guarantee
of interest or interest and principal, or operating income guarantee, the sum of all payments
required to be made thereunder (which, in the case of an operating income guarantee,
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
9
shall be deemed to be equal to the debt service for the note secured thereby), through, (x) in the
case of an interest or interest and principal guarantee, the stated date of maturity of the
obligation (and commencing on the date interest could first be payable thereunder), or (y) in the
case of an operating income guarantee, the date through which such guarantee will remain in effect,
and (b) with respect to all guarantees not covered by the preceding clause (a), an amount
equal to the stated or determinable amount of the primary obligation in respect of which such
guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder) as recorded on the
balance sheet and on the footnotes to the most recent financial statements of such Person. As used
in this definition, the term SEC Off-Balance Sheet Rules means the Disclosure in Managements
Discussion and Analysis About Off-Balance Sheet Arrangements and Aggregate Contractual Obligations,
Securities Act Release No. 33-8182, 34-47264; FR-67 International Series Release No. 1266 File No.
S7-42-02, 68 Fed. Reg. 5982 (Feb. 5, 2003) (codified at 17 CFR pts. 228, 229 and 249).
Continuing Director: Means (i) an individual who is a member of any Persons board of
directors (or the equivalent thereof) on the date hereof or (ii) any new director (or the
equivalent thereof) whose appointment was approved by a majority of the individuals who were
already Continuing Directors at the time of such appointment, election or approval.
Contractual Obligation: With respect to any Person, any provision of any securities
issued by such Person or any indenture, mortgage, deed of trust, contract, undertaking, agreement,
instrument or other document to which such Person is a party or by which it or any of its Property
is bound or is subject.
Correction Amount: Defined in Subsection 2.2(a)(i) of this Agreement.
Credit Party: Any of the Borrowers, the Guarantors or the Pledgor.
Credit Risk Security: Has the meaning given to such term in the related CDO Issuance.
Custodial Agreement: The First Amended and Restated Custodial Agreement, dated as of the
Restatement Date, by and among the Borrowers, the Administrative Agent and the Custodian, as the
same shall be amended, modified, waived, supplemented, extended, replaced or restated from time to
time.
Custodial Fee Letter: The Custodial Fee Letter between the Borrowers and the Custodian,
as such letter may be amended, modified, waived, supplemented, extended, restated or replaced from
time to time.
Custodian: Wells Fargo Bank, National Association, and its successor in interest as the
custodian under the Custodial Agreement, and any successor Custodian under the Custodial Agreement.
Debt Issuance: Means the issuance of any indebtedness for borrowed money by any Borrower
or any Consolidated Subsidiary of ART, including, without limitation, (i) Preferred Securities to
the extent such Preferred Securities constitute Indebtedness and (ii) any such issuance in
accordance with Applicable Law relating to Taxes; provided, however, Debt
Issuance shall not include any CDO Issuance, the Arbor Credit Facility or any indebtedness under
any repurchase facility or any warehouse facility.
Default: Any event that, with the giving of notice or the lapse of time, or both, would
become an Event of Default.
Defaulted Mortgage Asset: Any Mortgage Asset (a) that is ninety (90) days or more
delinquent, (b) for which there is a breach of any of the representations and warranties set forth
on Schedule 1.1(c) to the Arbor Credit Facility (or, if not set forth therein, the related
Confirmation), or (c) for which there is a
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
10
non-monetary default (beyond any applicable notice and cure period) under the related Mortgage Loan
Documents, including, without limitation, any Preferred Equity Interest that has not been paid
current during such period.
Defaulted Security: Has the meaning given to such term in the related CDO Issuance.
Delinquent Mortgage Asset: A Mortgage Asset that is thirty (30) or more days, but less
than ninety (90) days, delinquent under the related Mortgage Loan Documents, including, without
limitation, any Preferred Equity Interest that has not been paid current during such period.
Derivatives Contract: Any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement. Not in limitation of the foregoing, the term
Derivatives Contract includes any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or
liabilities under any such master agreement.
Derivatives Termination Value: Means, in respect of any one or more Derivatives
Contracts, after taking into account the effect of any legally enforceable netting agreement
relating to such Derivatives Contracts, (a) for any date on or after the date such Derivatives
Contracts have been closed out and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced in clause (a), the
amount(s) determined as the mark-to-market value(s) for such Derivatives Contracts, as determined
based upon one or more mid-market or other readily available quotations provided by any recognized
dealer in such Derivatives Contracts (which may include the Administrative Agent).
Dollars and $: Lawful money of the United States of America.
Due Diligence Costs: Defined in Section 13.19 of this Agreement.
Due Diligence Review: The performance by the Administrative Agent or any of the Lenders
of any or all of the reviews permitted under Section 13.19 with respect to any or all of
the Collateral, the Borrowers or the Guarantors, as desired by the Administrative Agent from time
to time.
Eligible Asset: Any loan that satisfies the definition of Mortgage Asset (as defined in
the Arbor Credit Facility) (i) that is not a Defaulted Mortgage Asset, (ii) that is not a
Delinquent Mortgage Asset, (iii) with respect to which the funding obligations thereunder have been
satisfied in full and there is no unfunded commitment outstanding, (iv) that is owned by ARSR or
any other Borrower and (v) that has been approved in advance by the Administrative Agent in its
discretion for inclusion as Additional Collateral.
Eligible Subordinated Debt: Means (a) the debt securities of ARSR issued under (i) the
Junior Subordinated Indenture, dated as of May 6, 2009, between ARSR, as issuer, and The Bank of
New York Mellon Trust Company, National Association (BONY), as trustee, pursuant to which
ARSR issued $29,400,000 in original aggregate principal amount of Junior Subordinated Notes, (ii)
the Junior
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
11
Subordinated Indenture, dated as of May 6, 2009, between ARSR, as issuer, and BONY, as trustee,
pursuant to which ARSR issued $168,000,000 in original aggregate principal amount of Junior
Subordinated Notes, (iii) the Junior Subordinated Indenture, dated as of May 6, 2009, between ARSR,
as issuer, ART, as guarantor, and Wilmington Trust Company, as trustee, pursuant to which ARSR
issued $21,224,000 in original aggregate principal amount of Junior Subordinated Notes, (iv) the
Junior Subordinated Indenture, dated as of May 6, 2009, between ARSR, as issuer, ART, as guarantor,
and Wilmington Trust Company, as trustee, pursuant to which ARSR issued $2,632,000 in original
aggregate principal amount of Junior Subordinated Notes, (v) the Junior Subordinated Indenture,
dated as of May 6, 2009, between ARSR, as issuer, ART, as guarantor, and Wilmington Trust Company,
as trustee, pursuant to which ARSR issued $47,180,000 in original aggregate principal amount of
Junior Subordinated Notes, (vi) Junior Subordinated Indenture, dated April 6, 2005 (as amended),
between ARSR, as issuer, ART, as guarantor, and Wilmington Trust Company, as trustee, and (vii)
Junior Subordinated Indenture, dated June 2, 2006, between ARSR, as issuer, ART, as guarantor, and
Wilmington Trust Company, as trustee (the indentures described in (vi) and (vii), collectively, the
Original Kodiak Indentures), (b) any future debt securities of ARSR issued in exchange
for the securities held under the Original Kodiak Indentures that (i) have express subordination
provisions substantially the same as those contained in the indentures for the transactions listed
in clause (a) of this definition of Eligible Subordinated Debt, (ii) has enforceable subordination
provisions, (iii) has a maturity date no earlier than the date that is six (6) months following the
Facility Maturity Date, (iv) the Administrative Agent is in receipt of an Opinion of Counsel
acceptable to the Administrative Agent in its discretion addressing the enforceability of the
subordination provisions contained in the documents governing the proposed Eligible Subordinated
Debt, and (c) any future debt securities of ART and its Consolidated Subsidiaries that (i) has
express subordination provisions substantially the same as those contained in the indentures for
the transactions listed in clause (i) of this definition of Eligible Subordinated Debt, (ii) has
enforceable subordination provisions, (iii) has a maturity date no earlier than the date that is
six (6) months following the Facility Maturity Date, (iv) the Administrative Agent is in receipt of
an Opinion of Counsel acceptable to the Administrative Agent in its discretion addressing the
enforceability of the subordination provisions contained in the documents governing the proposed
Eligible Subordinated Debt and (v) has been specifically approved in writing by the Administrative
Agent in its discretion.
Encumbrance: Any Lien or any rights, options, warrants, conversion rights or similar
agreements or understandings.
Environmental Laws: Any and all Applicable Laws and all other foreign, federal, state
and local laws, statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to the protection of
human health or the environment, including, but not limited to, requirements pertaining to the
manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of hazardous materials.
Environmental Laws include, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. §9601 et seq., the Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous
and Solid Waste Amendments of 1984, 42 U.S.C. §6901 et seq., the Hazardous Material
Transportation Act, as amended, 49 U.S.C. § 1501 et seq., the Federal Water
Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C. §1251 et
seq., the Toxic Substances Control Act of 1976, 15 U.S.C. §2601 et seq.,
the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §1101 et
seq., the Clean Air Act of 1966, as amended, 42 U. S. C. §7401 et seq., the
National Environmental Policy Act of 1969, 42 U.S.C. §4321, the River and Harbor Act of 1899, 33
U.S.C. §401 et seq., the Endangered Species Act of 1973, as amended, 16 U.S.C.
§1531 et seq., the Occupational Safety and Health Act of 1970, as amended, 29
U.S.C. §651 et seq., the Safe Drinking Water Act of 1974, as amended, 42 U.S.C.
§201 et seq., and the Environmental Protection Agencys regulations relating to
underground storage
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
12
tanks, 40 C.F.R. Parts 280 and 281, and the rules and regulations under each of the foregoing, each
as amended, modified, waived, supplemented, extended, restated or replaced from time to time.
Equity Interests: With respect to any Person, any share, interest, participation and
other equivalent (however denominated) of capital stock of (or other ownership, equity or profit
interests in) such Person, any warrant, option or other right for the purchase or other acquisition
from such Person of any share of capital stock of (or other ownership, equity or profit interests
in) such Person, any security convertible into or exchangeable for any share of capital stock of
(or other ownership or profit interests in) such Person or warrant, right or option for the
purchase or other acquisition from such Person of such shares (or such other interests), and any
other ownership or profit interest in such Person (including, without limitation, partnership,
member or trust interests therein), whether voting or nonvoting, and whether or not such share,
warrant, option, right or other interest is authorized or otherwise existing on any date of
determination.
Equity Issuance: Any issuance by any Borrower or any Consolidated Subsidiary of ART to
any Person that is not a Borrower, Guarantor or Consolidated Subsidiary of a Borrower or Guarantor
of (a) shares or interests of its Equity Interests, (b) any shares or interests of its Equity
Interests pursuant to the exercise of options, warrants or similar rights (other than shares issued
upon the exercise of options or warrants that were issued to officers, directors or employees of a
Borrower), (c) any shares or interests of its Equity Interests pursuant to the conversion of any
debt securities to equity or (d) (other than warrants issued by any Borrower or any Consolidated
Subsidiary of ART for which no cash is paid to the applicable Borrower or Consolidated Subsidiary
or options or warrants issued to officers, directors or employees of a Borrower) warrants, options
or similar rights that are exercisable or convertible into shares or interests of its Equity
Interests; provided, however, Equity Issuance shall not include an Equity
Issuance in connection with a CDO Issuance engaged in by a Consolidated Subsidiary of ARSR or an
issuance of shares in ART to ACM as compensation for acting as servicer.
ERISA: The Employee Retirement Income Security Act of 1974, as amended from time to
time, and the regulations promulgated and rulings issued thereunder, as the same are amended from
time to time.
ERISA Affiliate: (a) Any corporation that is a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the Code) as any Borrower or any Guarantor,
(b) a trade or business (whether or not incorporated) under common control (within the meaning of
Section 414(c) of the Code) with any Borrower or any Guarantor, or (c) a member of the same
affiliated service group (within the meaning of Section 414(m) of the Code) as any Borrower or any
Guarantor, any corporation described in clause (a) above or any trade or business described
in clause (b) above.
ESH Allocated Assets: The Pledged Mortgage Assets (as defined in the Arbor Credit
Agreement) to which allocated loan amounts relating to the ESH Pledged Mortgage Assets were
allocated on the Restatement Date.
Eurocurrency Liabilities: Defined in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
Eurodollar Disruption Event: The occurrence of any of the following: (a) the
Administrative Agent, any Lender or any Affected Party has determined that it would be contrary to
law or to the directive of any central bank or other Governmental Authority (whether or not having
the force of law) to obtain United States dollars in the London interbank market to fund any Loan,
(b) the inability, for any reason, of the Administrative Agent, any Lender or any Affected Party to
determine the Adjusted Eurodollar Rate, (c) the Administrative Agent, any Lender or any Affected
Party have determined that the rate at which deposits of United States dollars are being offered to
the Administrative Agent, any Lender or any
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
13
Affected Party in the London interbank market does not accurately reflect the cost to the
Administrative Agent, any Lender or any Affected Party of making, funding or maintaining any Loan,
or (d) the inability of the Administrative Agent, any Lender or any Affected Party to obtain United
States dollars in the London interbank market to make, fund or maintain any Loan.
Eurodollar Period: With respect to any Loan, (i) initially, the period commencing on the
Borrowing Date with respect to such Loan and ending on the earlier of (x) the Facility Maturity
Date and (y) the first Payment Date following the Borrowing Date, and (ii) thereafter, each period
commencing on the day following the last day of the preceding Eurodollar Period applicable to such
Loan and ending on the earlier of (x) the date that is one-month thereafter or (y) the Facility
Maturity Date.
Eurodollar Rate: With respect to each Eurodollar Period, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the rate appearing at Reuters Screen
LIBOR01 Page (or any successor page) as the London interbank offered rate for deposits in Dollars,
at or about 9:00 a.m., Charlotte, North Carolina time, three (3) Business Days prior to the
beginning of such Eurodollar Period for a term comparable to such Eurodollar Period, or, if no such
rate appears on Reuters Screen LIBOR01 Page (or any successors page) at such time and day, then the
Eurodollar Rate shall be determined by the Administrative Agent at its principal office (so long as
the Initial Lender is the Administrative Agent, in Charlotte, North Carolina) as its rate (each
such determination, absent manifest error, to be conclusive and binding on all parties hereto and
their assignees) at which thirty (30) day deposits in United States Dollars are being, have been,
or would be offered or quoted by the Administrative Agent to major banks in the applicable
interbank market for Eurodollar deposits at or about 11:00 a.m. on such day. The Administrative
Agents determination of Eurodollar Rate shall be conclusive and binding upon the parties absent
manifest error on the part of the Administrative Agent.
Eurodollar Reserve Percentage: For any period means the percentage, if any, applicable
during such period (or, if more than one such percentage shall be so applicable, the daily average
of such percentages for those days in such period during which any such percentage shall be so
applicable) under regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve requirement (including,
without limitation, any basic, emergency, supplemental, marginal or other reserve requirements)
with respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a
term equal to the applicable Eurodollar Period.
Event of Default: Defined in Section 10.1 of this Agreement.
Excepted Persons: Defined in Subsection 13.13(a) of this Agreement.
Exchange Act: The Securities Exchange Act of 1934, as amended from time to time.
Excluded Accounts: All accounts established to hold Obligor Reserve Payments, all
accounts holding funds that are required to be disbursed to an Obligor under the terms of the
related Mortgage Loan Documents.
Existing Borrower: Collectively, the Credit Parties who were Borrowers under the Original
Agreement.
Existing Financing Facilities: The financing facilities identified on
Schedule 4.1(ff) hereto, as the same may be modified, amended, extended or renewed,
together with any additional facility entered into with the approval of the Administrative Agent in
its discretion. For the avoidance of doubt, Existing Financing Facilities shall not include any
Debt Issuance or any replacement of an Existing Financing Facility or any modification to an
Existing Financing Facility that is not in accordance with substantially the same terms (or terms
more favorable to Borrowers) unless approved by the Administrative Agent in its discretion,
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
14
provided that the amount of an Existing Financing Facility may be decreased or increased without
the approval of the Administrative Agent so long as such modification shall not result in a Default
or an Event of Default hereunder.
Facility Maturity Date: Subject to Article X, the earliest of (a) June 8, 2012,
(b) the termination of the Arbor Credit Facility, (c) the date on which this Agreement shall
terminate in accordance with the provisions hereof or by operation of Applicable Law and (d) one
hundred twenty (120) calendar days after the enactment date of a Tax Law Change. For the avoidance
of doubt, the Borrowers may not extend the Facility Maturity Date without the Lenders and the
Administrative Agents consent in their discretion.
Fair Market Value: With respect to (a) a security listed on a national securities
exchange or recognized automated quotation system, the price of such security as reported on such
exchange by any widely recognized reporting method customarily relied upon by financial
institutions, and (b) with respect to any other assets or Property, including realty, the price
which could be negotiated in an arms-length free market transaction, for cash, between a willing
seller and a willing buyer, neither of which is under pressure or compulsion to complete the
transaction.
Federal Funds Rate: For any period, a fluctuating interest rate per annum equal for each
day during such period to the weighted average of the overnight federal funds rates as in H.15 or
any successor or substitute publication selected by the Administrative Agent (or, if such day is
not a Business Day, for the next succeeding Business Day), or, if, for any reason, such rate is not
available on any day, the rate determined, in the sole opinion of the Administrative Agent, to be
the rate at which overnight federal funds are being offered in the national federal funds market at
9:00 a.m.
Fee Letter: The First Amended and Restated Fee Letter, dated as of the Restatement Date,
between the Borrowers and the Administrative Agent, as amended, modified, waived, supplemented,
extended, restated or replaced from time to time.
Final Termination: With respect to any Loan Document, the termination of this Agreement
in accordance with Subsection 13.6(a).
Financial Covenants: The covenants set forth in Subsection 5.1(w) of this
Agreement.
Financing Spread: The applicable spread set forth in Schedule 1 to the Fee
Letter or, with respect to Additional Collateral only, to the extent the Administrative Agent
requires a different applicable spread than is set forth in the Fee Letter or if the Fee Letter
does not address the applicable spread, the applicable spread set forth in the related
Confirmation.
Foreclosed Loans: A loan the security for which has been foreclosed upon by a Borrower.
GAAP: Generally accepted accounting principles as in effect from time to time in the
United States, consistently applied.
Governmental Authority: Any nation or government, any state or other political
subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any
body or entity exercising executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government, any court or arbitrator having jurisdiction over such Person, any
of its Subsidiaries or any of its Properties, and any accounting board or authority (whether or not
a part of government) that is responsible for the establishment or interpretation of national or
international accounting principles, in each case whether foreign or domestic.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
15
GPOP: Defined in the Preamble of this Agreement.
Guarantee Obligation: Means, as to any Person (the guaranteeing person),
without duplication, any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to induce the creation of the
obligations for which the guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends, Contractual Obligation, Derivatives Contract or other obligations (the primary
obligations) of any other third Person (the primary obligor) in any manner, whether
directly or indirectly, including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the maximum stated amount of the primary obligation relating to such Guarantee
Obligation (or, if less, the maximum stated liability set forth in the instrument embodying such
Guarantee Obligation); provided, however, that in the absence of any such stated
amount or stated liability, the amount of such Guarantee Obligation shall be such guaranteeing
persons maximum reasonably anticipated liability in respect thereof as reasonably determined by
such Person in good faith.
Guarantor: Each Arbor Entity that becomes a Guarantor hereunder.
Guaranty: Each Guaranty entered into by a Guarantor for the benefit of the
Administrative Agent, the Lenders and the other Affected Parties.
H.15: Federal Reserve Statistical Release H.15(519).
Initial Lender: Defined in the Preamble to this Agreement.
Income: With respect to the Collateral, all payments, collections, prepayments,
recoveries, insurance and condemnation proceeds (with respect to the Additional Collateral, other
than to the extent that an Obligor is or may be entitled to the same under the related Mortgage
Loan Documents), distributions, principal, interest, fees, dividends, gains, receipts, allocations,
profits, payments in kind, returns or repayment of contributions, Proceeds and all other amounts
payable to a Borrower on or with respect to the foregoing, less the Servicing Fee in the case of
Additional Collateral. Income shall not include any Obligor Reserve Payments.
Increased Costs: Any amounts required to be paid by the Borrowers to the Administrative
Agent, the Lenders and the other Affected Parties pursuant to Section 2.11 of this
Agreement.
Indebtedness: Means, with respect to any Person (in reference to ART and its
Subsidiaries, Person shall mean ART and its Consolidated Subsidiaries determined on a consolidated
basis), at the time of computation thereof, all of the following (without duplication): (a) all
obligations of such Person in respect of money borrowed (including, without limitation, principal,
interest, assumption fees (to the extent they are due during the period in question), prepayment
fees (to the extent they are due during the period in question), contingent interest (to the extent
it is due during the period in question), and other
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
16
monetary obligations whether choate or inchoate); (b) all obligations of such Person, whether or
not for money borrowed (i) represented by notes payable, letters of credit, or drafts accepted, in
each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes or similar
instruments, or (iii) constituting purchase money indebtedness, conditional sales contracts, title
retention debt instruments or other similar instruments, upon which interest charges are
customarily paid or that are issued or assumed as full or partial payment for property or services
rendered; (c) Capital Lease Obligations of such Person; (d) all reimbursement obligations of such
Person under any letters of credit or acceptances (whether or not the same have been presented for
payment); (e) all Off-Balance Sheet Obligations of such Person; (f) all obligations of such Person
to purchase, redeem, retire, defease or otherwise make any payment in respect of any Mandatory
Redeemable Stock issued by such Person or any other Person (inclusive of forward equity contracts),
valued at the greater of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends; (g) as applicable, all obligations of such Person (but not the obligation of
others) in respect of any keep well arrangements, credit enhancements, contingent or future funding
obligations, unfunded interest reserve amounts, purchase obligations, repurchase obligations,
takeout commitments or forward equity commitments, in each case evidenced by a binding agreement
(excluding any such obligation to the extent the obligation can be satisfied by the issuance of
Equity Interests (other than Mandatory Redeemable Stock)); (h) net obligations under any Derivative
Contract not entered into as a hedge against existing Indebtedness, in an amount equal to the
Derivatives Termination Value thereof; (i) all Indebtedness of other Persons which such Person has
guaranteed or is otherwise recourse to such Person (except for guaranties of customary exceptions
for fraud, misapplication of funds, environmental indemnities and other similar exceptions to
recourse liability (but not exceptions relating to bankruptcy, insolvency, receivership or other
similar events)); (j) all Indebtedness of another Person secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien (other
than certain Permitted Liens) on property or assets owned by such Person, even though such Person
has not assumed or become liable for the payment of such Indebtedness or other payment obligation;
provided, however, if such Person has not assumed or become liable for the payment
of such Indebtedness, then for the purposes of this definition the amount of such Indebtedness
shall not exceed the market value of the property subject to such Lien and (k) Contingent
Liabilities.
Indemnified Amounts: Defined in Subsection 11.1(a) of this Agreement.
Indemnified Parties: Defined in Subsection 11.1(a) of this Agreement.
Insolvency Event: With respect to a specified Person, (a) the filing of a decree or
order for relief by a court having jurisdiction in the premises in respect of such Person or any
substantial part of its Property in an involuntary case under any applicable Insolvency Law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of its Property, or
ordering the winding-up or liquidation of such Persons affairs, and such decree or order shall
remain unstayed and in effect for a period of ninety (90) consecutive days; or (b) the commencement
by such Person of a voluntary case under any applicable Insolvency Law now or hereafter in effect,
or the consent by such Person to the entry of an order for relief in an involuntary case under any
such law, or the consent by such Person to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for
any substantial part of its Property, or the making by such Person of any general assignment for
the benefit of creditors, or the failure by such Person generally to pay its debts as such debts
become due, or the taking of action by such Person in furtherance of any of the foregoing.
Insolvency Laws: The Bankruptcy Code and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization,
suspension of payments or similar debtor relief laws from time to time in effect affecting the
rights of creditors generally.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
17
Insolvency Proceeding: Any case, action or proceeding before any court or other
Governmental Authority relating to any Insolvency Event.
Instrument: Any instrument (as defined in Article 9 of the UCC), other than an
instrument that constitutes part of chattel paper.
Intercreditor Agreement: That certain Intercreditor Agreement to be entered into by and
among the Administrative Agent and Wachovia, as administrative agent under the Arbor Credit
Facility, as amended, restated, modified or supplemented from time to time.
Interest: For each Accrual Period and all Loans outstanding, the sum of the products
(for each day during such Accrual Period) of:
where:
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the Rate applicable on such day; |
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AOP
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=
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the Aggregate Outstanding Principal on such day; and |
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D
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360; |
provided, however, that (i) no provision of this Agreement shall require the
payment or permit the collection of any Interest in excess of the maximum permitted by Applicable
Law and (ii) the Interest shall not be considered paid by any distribution if at any time such
distribution is rescinded or must otherwise be returned for any reason.
Interest Expense: For ART and its Consolidated Subsidiaries, the total interest expense
incurred (in accordance with GAAP), including capitalized or accruing interest (but excluding
interest funded under a construction loan), by ART and its Consolidated Subsidiaries, without
duplication for the most recent period.
Interest Rate Protection Agreement: (i) Any Derivatives Contract required under the
terms of the related Mortgage Loan Documents providing for protection against fluctuations in
interest rates or the exchange of nominal interest obligations, either generally or under specific
contingencies, and acceptable to the Administrative Agent in its discretion and (ii) any
Derivatives Contract put in place by any Borrower or any Consolidated Subsidiary of a Borrower with
respect to any Collateral or any assets or other Property of such Person.
Investment: Means, with respect to any Person, any acquisition or investment (whether or
not of a controlling interest) by such Person, whether by means of (a) the purchase or other
acquisition of any Equity Interests in another Person, (b) a loan, advance or extension of credit
to, capital contribution to, guaranty or credit enhancement of Indebtedness of, or purchase or
other acquisition of any Indebtedness of, another Person, including any partnership or joint
venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction
or a series of transactions) of assets of another Person that constitute the business or a division
or operating unit of another Person. Any binding commitment or option to make an Investment in any
other Person shall constitute an Investment. Except as expressly provided otherwise, for purposes
of determining compliance with any covenant contained in the Loan Documents, the amount of any
Investment shall be the amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
18
Irrevocable Instruction: (a) An instruction letter in the form of Exhibit VI,
which (i) shall be executed by (A) (1) ARCM, with respect to the CDO Management Fees, (2) ARSR,
with respect to the CDO Equity Distributions and the CDO Collateral Manager Distributions and (3)
such other Persons as the Administrative Agent may require in its discretion with respect to the
Collateral, the Required Payments or any other payments required under the Loan Documents, and
(B) each Person obligated to pay or disburse any payments described above in
clauses (A)(1)-(3), respectively, (ii) shall provide that it is irrevocable, and
(iii) shall provide that such Irrevocable Instruction shall not be modified without the prior
written consent of the Administrative Agent and (b) any Servicer Redirection Notice required in
connection with the pledge of Additional Collateral.
Junior Interest: (a) A senior, pari passu or junior participation interest in a
performing Commercial Real Estate Loan or (b) a senior, pari passu or junior note or certificate in
an A/B or similar structure in a performing Commercial Real Estate Loan.
Late Payment Fee: Defined in Subsection 2.5(a) of this Agreement.
Lead Based Paint: Paint containing more than 0.5% lead by dry weight.
Lender: Defined in the Preamble to this Agreement.
Lien: Any mortgage, lien, pledge, charge, right, claim, security interest or encumbrance
of any kind of or on any Persons assets or Properties in favor of any other Person.
Liquidity: An amount equal to the (a) sum of (without duplication) (i) the amount of
unrestricted cash and unrestricted Cash Equivalents, plus (ii) the borrowing availability
(if any) under the Arbor Credit Facility, in each case in clauses (i) and (ii), solely to the
extent that such amounts exceed the amounts necessary to satisfy at such time all of the Financial
Covenants (other than Subsection 5.1(w)(i) hereunder and all financial covenants (other
than any liquidity covenants) under the Arbor Credit Facility and, in each case, to the extent ART
continues to be in compliance thereof, less, (b) amounts necessary to satisfy margin
deficits or other prepayment obligations under the Arbor Credit Facility.
Loan: Defined in Subsection 2.1(a) of this Agreement.
Loan Documents: This Agreement, the Revolving Notes, the Account Control Agreement, the
Fee Letter, the Custodial Agreement, the Pledge and Security Agreement, the Preferred Equity Pledge
Agreement, the Guaranties, the Irrevocable Instructions, any UCC financing statements (and
amendments thereto) filed pursuant to the terms of this Agreement or any other Loan Document, and
any additional document the execution of which is necessary or incidental to carrying out the terms
of the foregoing documents, as each of the foregoing is amended, modified, restated, replaced,
waived, substituted, supplemented or extended from time to time.
LPOP: Defined in the Preamble of this Agreement.
Mandatory Redeemable Stock: Means, with respect to any Person and any Subsidiary
thereof, any Equity Interests of such Person which by the terms of such Equity Interests (or by the
terms of any security into which it is convertible or for which it is exchangeable or exercisable),
upon the happening of any event or otherwise (a) matures or is required to be redeemed, pursuant to
a sinking fund obligation or otherwise (other than an Equity Interest to the extent redeemable in
exchange for common stock or other equivalent common Equity Interests), (b) is convertible into or
exchangeable or exercisable for Indebtedness or Mandatory Redeemable Stock, or (c) is redeemable at
the option of the holder thereof, in whole or in part (other than an Equity Interest which is
redeemable solely in exchange for common stock
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
19
or other equivalent common Equity Interests); in the case of each clause (a) through
(e), on or prior to the Facility Maturity Date.
Market Value: As of any date in respect of any Mortgage Asset, the price at which such
Mortgage Asset could readily be sold, as determined by the Administrative Agent in its discretion
(which price may be determined to be zero).
Material Adverse Effect: Any material adverse effect on (a) the Properties, assets,
business, operations, financial condition, credit quality or prospects of any Borrower or any
Guarantor, (b) the ability of any Borrower or any Guarantor to perform its obligations under any of
the Loan Documents to which it is a party, (c) the validity or enforceability of any of the Loan
Documents, (d) the rights and remedies of the Administrative Agent or any Lender under any of the
Loan Documents, (e) the timely payment of any amounts payable under the Loan Documents, or (f) any
Collateral or the value of any Collateral.
Materials of Environmental Concern: Any mold, petroleum (including, without limitation,
crude oil or any fraction thereof), petroleum products or by-products (including, without
limitation, gasoline), or any hazardous, toxic or harmful substances, materials, wastes, pollutants
or contaminants, defined as such in or regulated under any Environmental Law, including, without
limitation, asbestos, asbestos containing materials, polychlorinated biphenyls, urea-formaldehyde
insulation, radioactive materials, Lead Based Paint, Toxic Mold, flammable explosives and radon.
Maximum Amount: As of the Restatement Date, $57,164,228.00; at any time following the
Restatement Date, the Aggregate Outstanding Principal.
Moodys: Moodys Investors Service, Inc., and any successor thereto.
Multiemployer Plan: A multiemployer plan as defined in Section 4001(a)(3) of ERISA
that is or was at any time during the current year or the immediately preceding five (5) years
contributed to by any Borrower, a Guarantor or any ERISA Affiliate on behalf of its employees.
Net Income: With respect to ART and its Consolidated Subsidiaries for any period, the
net income of ART and its Consolidated Subsidiaries for such period as determined in accordance
with GAAP.
Net Proceeds: With respect to any Equity Issuance or Debt Issuance by a Person, the
aggregate amount of all cash, Cash Equivalents and the Fair Market Value of all other assets or
Property received by or payable to such Person in respect of such Equity Issuance or Debt Issuance
net of investment banking fees, legal fees, accountants fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred by such Person in connection
with such Equity Issuance or Debt Issuance. With respect to any Securitization, Net Proceeds shall
mean the proceeds received by a Person in connection with such Securitization after the payment of
all amounts required to be paid in order to obtain a release of all Liens related to the assets
contributed in such Securitization and the payment of all investment banking fees, legal fees,
accountants fees, underwriting discounts and commissions and other customary fees and expenses
actually incurred by such Person in connection with each such Securitization.
Net Total Liabilities: Total Liabilities minus the sum of (a) aggregate
principal amount outstanding under the Eligible Subordinated Debt and (b) deferred revenues
relating to the 450 Transaction to the extent classified as a liability according to GAAP.
New Stock Class: Defined in the Fee Letter.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
20
Non-Recourse Indebtedness: Means, with respect to any Person, Indebtedness for borrowed
money in respect of which recourse for payment (except for customary exceptions for fraud,
misapplication of funds, environmental indemnities, and other similar exceptions to non-recourse
provisions (but not exceptions relating to bankruptcy, insolvency, receivership or other similar
events)) is contractually limited to specific assets of such Person encumbered by a Lien securing
such Indebtedness.
Notice of Borrowing: A request for a Loan in the form of Exhibit II, attached
hereto.
Obligations: Without duplication, (i) the Aggregate Unpaids, and (ii) all
Borrower-Related Obligations.
Obligor: Individually and collectively, as the context may require, the obligor or
obligors under a Mortgage Asset, including, but not limited to, any guarantor thereof and any
Person that has not signed the related Mortgage Note, Junior Interest Note, a Mezzanine Note or any
other note, instrument or certificate, but owns an interest in the related Underlying Mortgaged
Property, which interest has been encumbered to secure such Mortgage Asset.
Obligor Reserve Payments: Any payments made by an Obligor under the applicable Mortgage
Loan Documents which, pursuant to the terms of such Mortgage Loan Documents, are required to be
deposited into escrow or into a reserve to be used for a specific purpose (e.g., tax and insurance
escrows), but not including such amounts that are entitled or permitted to be disbursed to the
holder of the Mortgage Asset.
OFAC: The U.S. Department of the Treasurys Office of Foreign Assets Control or any
successor thereto.
OFAC Regulations: The regulations promulgated by OFAC, as amended from time to time.
Off-Balance Sheet Obligations: With respect to any Person (in reference to ART and its
Subsidiaries, Person shall mean ART and its Consolidated Subsidiaries ) as of any date of
determination thereof, without duplication and to the extent not included as a liability on the
consolidated balance sheet of ART and its Consolidated Subsidiaries in accordance with GAAP:
(a) the monetary obligations under any financing lease or so-called synthetic, tax retention or
off-balance sheet lease transaction which, upon the application of any Insolvency Laws to such
Person or any of its Consolidated Subsidiaries, would be characterized as indebtedness; (b) the
monetary obligations under any sale and leaseback transaction which does not create a liability on
the consolidated balance sheet of such Person and its Consolidated Subsidiaries; or (c) any other
monetary obligation arising with respect to any other transaction which (i) is characterized as
indebtedness for tax purposes but not for accounting purposes in accordance with GAAP or (ii) is
the functional equivalent of or takes the place of borrowing but which does not constitute a
liability on the consolidated balance sheet of such Person and its Consolidated Subsidiaries (for
purposes of this clause (c), any transaction structured to provide tax deductibility as
interest expense of any dividend, coupon or other periodic payment will be deemed to be the
functional equivalent of a borrowing).
Officers Certificate: A certificate signed by a Responsible Officer of a Borrower.
Operating Account: The account designated by the Borrowers set forth on
Schedule 1 hereto.
Opinion of Counsel: A written opinion of counsel, which opinion and counsel are
acceptable to the Administrative Agent in its discretion.
Original Agreement: Defined in the Recitals of this Agreement.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
21
Original Kodiak Indenture: Defined in the definition of Eligible Subordinated Debt.
Other Costs: Defined in Subsection 13.9(d) of this Agreement.
Payment Date: The second to last Business Day of each calendar month.
PBGC: The Pension Benefit Guaranty Corporation or any entity succeeding to any or all of
its functions under ERISA.
Pension Plans: Defined in Subsection 4.1(r) of this Agreement.
Permitted Investments: Investments of any one or more of the following types:
(a) marketable obligations of the United States, the full and timely payment of which are
backed by the full faith and credit of the United States of America and that have a maturity of not
more than 270 days from the date of acquisition;
(b) marketable obligations, the full and timely payment of which are directly and fully
guaranteed by the full faith and credit of the United States and that have a maturity of not more
than 270 days from the date of acquisition;
(c) bankers acceptances and certificates of deposit and other interest-bearing obligations
(in each case having a maturity of not more than 270 days from the date of acquisition) denominated
in dollars and issued by any bank with capital, surplus and undivided profits aggregating at least
$100,000,000, the short-term obligations of which are rated of least A-1 by S&P and P-1 by Moodys;
(d) repurchase obligations with a term of not more than ten (10) days for underlying
securities of the types described in clauses (a), (b) and (c) above entered
into with any bank of the type described in clause (c) above;
(e) commercial paper rated at least A-1 by S&P and P-1 by Moodys;
(f) demand deposits, time deposits or certificates of deposit (having original maturities of
no more than 365 days) of depository institutions or trust companies incorporated under the laws of
the United States of America or any state thereof (or domestic branches of any foreign bank) and
subject to supervision and examination by federal or state banking or depository institution
authorities; provided, however, that at the time such investment, or the commitment
to make such investment, is entered into, the short-term debt rating of such depository institution
or trust company shall be at least A-1 by S&P and P-1 by Moodys; and
(g) money market mutual funds possessing the highest available rating from S&P and Moodys.
Permitted Liens: Any of the following as to which no enforcement, collection, execution,
levy or foreclosure proceeding shall have been commenced: (a) Liens for state, municipal or other
local taxes if such taxes shall not at the time be due and payable, (b) Liens imposed by Applicable
Law, such as materialmens, mechanics, carriers, workmens and repairmens Liens and other
similar Liens, arising in the ordinary course of business securing obligations that are not overdue
for a period of more than thirty (30) days, (c) Liens granted pursuant to or by the Loan Documents,
and (d) in the case of Additional Collateral only and not any Borrowers interest therein, with
respect to the Underlying
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(Wachovia and Arbor)
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Mortgaged Property applicable thereto, Liens which are permitted pursuant to the terms of the
related Mortgage Loan Documents.
Permitted Credit Facility: Any credit facility of ARSR or its Consolidated Subsidiaries
of which the Borrowers have given the Administrative Agent at least thirty (30) days advance notice
and that (a) has terms and conditions substantially the same as those in the Arbor Credit Facility,
(b) has financial covenants no more restrictive than those in the Arbor Credit Facility, (c) does
not permit collateral other than Whole Loans, Junior Interests, Mezzanine Loans, Preferred Equity
Interests, Condominium Loans, Land Loans and/or Bridge Loans and/or any equity interests in an
entity that acts as a borrower of such credit facility and (d) is otherwise acceptable to the
Administrative Agent in its reasonable discretion.
Person: An individual, partnership, corporation (including a business trust), limited
liability company, joint stock company, trust, unincorporated association, sole proprietorship,
joint venture, government (or any agency or political subdivision thereof) or other entity.
Plan: An employee benefit or other plan established or maintained by any Borrower, any
Guarantor or any ERISA Affiliate and covered by Title IV of ERISA, other than a Multiemployer Plan.
Plan Party: Defined in Subsection 13.20(a) of this Agreement.
Pledge and Security Agreement: That certain First Amended and Restated Pledge and
Security Agreement, dated as of the Restatement Date, by ARSR, in its capacity as pledgor of Equity
Interests in the Pledged CDO Subsidiaries, for the benefit of the Administrative Agent, as amended,
modified, restated, replaced, waived, substituted, supplemented or extended from time to time.
Pledge Date: Defined in Subsection 2.1(f)(i) of this Agreement.
Pledged CDO Subsidiary: (i) Each CDO Subsidiary existing on the Closing Date and (ii)
each additional CDO Subsidiary created after the Closing Date with respect to which the Equity
Interests are pledged, at the option of ARSR, to the Administrative Agent as Collateral.
Pledged Collateral: Defined in the Pledge and Security Agreement.
Pledged Preferred Equity Collateral: Defined in the Preferred Equity Pledge Agreement.
Pledgor Arbor Realty SR, Inc., a Maryland corporation, together with its successors and
assigns.
Post-Default Rate: In respect of any day a Loan is outstanding or any other amount under
this Agreement or any other Loan Document is not paid when due to the Administrative Agent, the
Lenders or the Affected Parties at the stated repayment date or otherwise when due (a
Post-Default Day), a rate per annum determined on a 360 day per year basis during the
period from and including the due date to but excluding the date on which such amount is paid in
full equal to the applicable Rate plus 500 basis points.
Pre-Approved Lender: A bank, financial institution, insurance company, Approved Fund,
any Person similar to any of the foregoing or any special purpose vehicle.
Preferred Equity Pledge Agreement: The First Amended and Restated Preferred Equity
Interests Pledge and Security Agreement, dated as of the Restatement Date, by the Borrowers, in
their capacity as pledgors, for the benefit of the Administrative Agent, as amended, modified,
restated, replaced, waived, substituted, supplemented or extended from time to time.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
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Preferred Securities: Means, with respect to any Person, Equity Interests in such Person
that are entitled to preference or priority over any other Equity Interests in such Person in
respect of the payment (or accrual) of dividends or distribution of assets upon liquidation, or
both.
Prime Rate: The rate announced by Wachovia from time to time as its prime rate in the
United States, such rate to change as and when such designated rate changes. The Prime Rate is not
intended to be the lowest rate of interest charged by Wachovia in connection with extensions of
credit to debtors.
Prohibited Person: Means (i) a Person that is listed in the annex to, or is otherwise
subject to the provisions of, Executive Order No. 13224, (ii) a Person owned or controlled by, or
acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to
the provisions of, Executive Order No. 13224, (iii) a Person with whom any Borrower or any
Guarantor is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism
Law, (iv) a Person who commits, threatens or conspires to commit or supports terrorism as defined
in Executive Order No. 13224, (v) an agency of the government of, an organization directly or
indirectly controlled by, or a Person resident in, a country that is subject to a sanctions program
identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise published from time
to time, as such program may be applicable to such agency, organization or Person, (vi) a Person
that is named as a specially designated national or blocked person on the most current list
maintained or published by OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sdn.index.html or at any replacement website or in any
other official publication of such list, and (vii) a Person who is affiliated with a Person
described in clauses (i)-(vi) above.
Projected Collateral Cash Flow: For any calendar quarter, future projections of
Collateral Cash Flow for the immediately following calendar quarter or for the immediately
following four (4) calendar quarters, as applicable, determined in reliance on an Officers
Certificate signed by a Responsible Officer of a Borrower after due inquiry, which Officers
Certificate shall provide future projections of Collateral Cash Flow, together with the relevant
facts supporting such projections, which Projected Collateral Cash Flow may be adjusted by the
Administrative Agent in its discretion.
Property: Any right or interest in or to property of any kind whatsoever, whether real,
personal or mixed, and whether tangible or intangible.
QRS: Means a qualified REIT subsidiary within the meaning of Section 856(i)(2) of the
Code.
Rate: For any Accrual Period and for all Loans outstanding and for each day during such
Accrual Period, the rate per annum equal to the Adjusted Eurodollar Rate plus the
applicable Financing Spread; provided, however, the Rate for any Accrual Period
shall be the Base Rate (plus the applicable Financing Spread) if a Eurodollar Disruption
Event has occurred and is continuing.
Rating Agency: Each of S&P, Moodys and any other statistical rating agency that has
been requested to issue a rating in connection with the matter at issue.
Real Property Assets: Means, as of any time, the real Property assets (including
interests in preferred equity and participating mortgages in which the lenders interest therein is
characterized as equity according to GAAP) owned directly or indirectly by ART or a Consolidated
Subsidiary of ART at such time.
Register: Defined in Subsection 13.16(f).
Registration Rights Agreement: Defined in the Arbor Credit Agreement.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
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Regulations T, U and X: Regulations T, U and X of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be amended from time to time.
REIT: A real estate investment trust within the meaning of the Code.
Related Party Loan: Any loan, Indebtedness or preferred equity investment identified or
presented as a related party loan in ARTs consolidated financial statements or in the notes to the
consolidated financial statements, in accordance with GAAP; provided, however,
Related Party Loan shall not include any loan or preferred equity investment (i) which is held as
collateral in a CDO Issuance involving ART or any Consolidated Subsidiary of ART or (ii) to which
the Administrative Agent in its discretion has consented in writing to its exclusion from the
definition of Related Party Loan.
Release: Any generation, treatment, use, storage, transportation, manufacture,
refinement, handling, production, removal, remediation, disposal, presence or migration of
Materials of Environmental Concern on, about, under or within all or any portion of any Property or
Underlying Mortgaged Property.
Remedial Work: Any investigation, inspection, site monitoring, containment, clean-up,
removal, response, corrective action, mitigation, restoration or other remedial work of any kind or
nature because of, or in connection with, the current or future presence, suspected presence,
Release or threatened Release in or about the air, soil, ground water, surface water or soil vapor
at, on, about, under or within all or any portion of any Property or Underlying Mortgaged Property
of any Materials of Environmental Concern, including any action to comply with any applicable
Environmental Laws or directives of any Governmental Authority with regard to any Environmental
Laws.
REO Property: Real property acquired by any Person by foreclosure or by deed in lieu of
such foreclosure.
Reportable Event: Any of the events set forth in Section 4043(c) of ERISA or a successor
provision thereof, other than those events as to which the notice requirement has been waived by
regulation.
Requested Borrowing Date: The date specified in Subsection 2.1(b)(i) of this
Agreement.
Required Payments: All payments required under Section 2.2 of this Agreement or
subject to or required to be subject to an Irrevocable Instruction, which amounts shall be free of
any deductions for or on account of any set-off, counterclaim or defense and shall be deposited
into the Collection Account for application in accordance with the terms of this Agreement.
Requisite Lenders: As of any date, Lenders holding Revolving Commitment Percentages
totaling at least 66-2/3%; provided, however, that any Lender that is in default
hereunder shall not be included in calculating such Revolving Commitment Percentages.
Responsible Officer: With respect to any Person, any duly authorized Senior Vice
President (or equivalent or higher office) of such Person with direct responsibility for the
administration of the Loan Documents and also, with respect to a particular matter, any other duly
authorized Senior Vice President (or equivalent or higher office) to whom such matter is referred
because of such officers knowledge of and familiarity with the particular subject.
Restatement Date: The date of this Agreement.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
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Restricted Payment: Means (a) any dividend or other distribution, direct or indirect, on
account of any Equity Interests of ART or any Consolidated Subsidiary now or hereafter outstanding,
except a dividend payable solely in Equity Interests of identical class to the holders of that
class; (b) any redemption, conversion, exchange, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any Equity Interests of ART or any
Consolidated Subsidiary now or hereafter outstanding; and (c) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights to acquire any Equity
Interests of ART or any Consolidated Subsidiary now or hereafter outstanding.
Retained Interest: (a) With respect to any Mortgage Asset with an unfunded commitment on
the part of a Borrower, all of the obligations, if any, to provide additional funding or
contributions with respect to such Mortgage Asset, and, (b) with respect to any Mortgage Asset that
is pledged by a Borrower to the Administrative Agent, (i) all of the obligations, if any, of the
agent(s) under the documentation evidencing such Mortgage Asset and (ii) the applicable portion of
the interests, rights and obligations under the documentation evidencing such Mortgage Asset that
relate to such portion(s) of the Indebtedness that is owned by another lender or is being retained
by a Borrower pursuant to clause (a) of this definition.
Revolving Commitment: With respect to each Lender, the commitment of such Lender to make
Loans in an aggregate principal amount at any time outstanding up to such Lenders Revolving
Commitment as specified in Schedule 2 of this Agreement, as such amount may be reduced or
increased from time to time in accordance with the provisions hereof. For the avoidance of doubt,
the Revolving Commitment shall terminate upon the expiration of the Commitment Period or upon the
request of the Borrower.
Revolving Commitment Percentage: For each Lender, the percentage identified as its
Revolving Commitment Percentage on Schedule 2 of this Agreement, as such percentage may be
modified in connection with any assignment made in accordance with the provisions of
Section 13.16 of this Agreement.
Revolving Notes: The Amended and Restated Revolving Notes, in the form attached hereto
as Exhibit I, issued in favor of the Lenders under this Agreement, as the same may be
amended, modified, waived, supplemented, extended, restated or replaced from time to time.
S&P: Standard & Poors, a division of The McGraw Hill Companies, Inc., and any successor
thereto.
Securitization: Defined in Subsection 2.2(a)(iv) of this Agreement.
Servicer Redirection Notice: An executed Servicer Redirection Notice with respect to
each pledge of Additional Collateral, substantially in the form of Exhibit VII attached
hereto.
Solvent: As to any Person at any time, having a state of affairs such that all of the
following conditions are met: (a) the fair value of the Property of such Person is greater than the
amount of such Persons liabilities (including disputed, contingent and unliquidated liabilities)
as such value is established and liabilities evaluated for purposes of Section 101(32) of the
Bankruptcy Code; (b) the present fair salable value of the Property of such Person in an orderly
liquidation of such Person is not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured; (c) such Person is able
to realize upon its Property and pay its debts and other liabilities (including disputed,
contingent and unliquidated liabilities) as they mature in the normal course of business; (d) such
Person does not intend to, and does not believe that it will, incur debts or liabilities beyond
such Persons ability to pay as such debts and liabilities mature; and (e) such Person is not
engaged in a business or a transaction, and is not about to engage in a business or a transaction,
for which such Persons Property would constitute unreasonably small capital.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
26
Stock Exchange: Defined in Subsection 4.1(nn) of this Agreement.
Subsidiary: With respect to any Person, any corporation, partnership, limited liability
company or other entity of which at least a majority of the securities or other ownership interests
having by the terms thereof ordinary voting power to elect a majority of the board of directors or
other Persons performing similar functions of such corporation, partnership, limited liability
company or other entity (irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or other entity shall have
or might have voting power by reason of the happening of any contingency) is at the time directly
or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person.
Tangible Net Worth: Net worth as determined in accordance with GAAP.
Tax Law Change: A change in the Applicable Law relating to Taxes that would cause a
transfer of the entire membership interests in a CDO Subsidiary to a REIT, a QRS or a disregarded
entity (for federal income tax purposes) that is wholly owned by a REIT to result in a loss of the
QRS status of the CDO Issuer owned by that CDO Subsidiary.
Taxes: Any present or future taxes, levies, imposts, duties, charges, assessments or
fees of any nature (including interest, penalties, and additions thereto) that are imposed by any
Governmental Authority.
Test Period: The immediately preceding calendar quarter.
Total Assets: Total assets of ART and its Consolidated Subsidiaries, determined in
accordance with GAAP.
Total ESH Release Amount: Defined in the Arbor Credit Agreement.
Total Liabilities: Means all Indebtedness of any Person (without duplication) and all of
such Persons Consolidated Subsidiaries determined on a consolidated basis.
Toxic Mold: Any mold or fungus at any Property which is a type that (i) might pose a
significant risk to human health or the environment or (ii) that would negatively impact any
Property.
Transfer Effective Date: The meaning set forth in each Commitment Transfer Supplement.
Transferee: Defined in Subsection 13.16(b) of this Agreement.
Trust Preferred Debt: Means (a) the existing indebtedness of ART and its Consolidated
Subsidiaries under any securities and guarantees issued by them in any debt securities transaction
related to any of the indentures identified in clause (a) of the definition of Eligible
Subordinated Debt and (b) any future indebtedness of ART and its Consolidated Subsidiaries in
connection with any debt securities transaction for which the related indenture (i) has
subordination provisions substantially the same as those in the indentures identified in
clause (a) of the definition of Eligible Subordinated Debt and (ii) has enforceable
subordination provisions, and (c) has a maturity date no earlier than the date that is six (6)
months following the Facility Maturity Date.
Uniform Commercial Code or UCC: The Uniform Commercial Code as in effect on
the date hereof in the State of New York; provided, that if by reason of mandatory
provisions of Applicable Law, the perfection, priority or the effect of perfection or
non-perfection or priority or lack of priority of the
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
27
security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than New York, Uniform Commercial Code shall mean the Uniform Commercial Code
as in effect in such other jurisdiction for purposes of the provisions hereof relating to such
perfection or effect of perfection or non-perfection or priority or lack of priority.
United States: The United States of America.
Unused Fee: The Unused Fee defined in and payable under the Fee Letter.
Upfront Fee: The Upfront Fee defined in and payable under the Fee Letter.
USA Patriot Act: The United and Strengthening America by providing Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56), as amended from time to time.
Voting Interests: With respect to any Person, Equity Interests issued by such Person the
holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even though the right so to
vote has been suspended by the happening of such a contingency.
Wachovia: Defined in the Preamble of this Agreement.
Wachovia Indebtedness: All indebtedness, obligations or liabilities of any Borrower, any
Guarantor or any Consolidated Subsidiary of any Borrower or any Guarantor to Wachovia or any of its
Affiliates, and shall include, without limitation, indebtedness, obligations and liabilities
arising under the Arbor Credit Facility and any Wachovia Interest Rate Protection Agreements.
Wachovia Interest Rate Protection Agreements: Any and all of a Borrowers, a Guarantors
or any of their Consolidated Subsidiarys obligations, liabilities and indebtedness arising under,
or in connection with, any Interest Rate Protection Agreements to which the Initial Lender or any
of its Affiliates is a counterparty thereto.
Warrant Agreements: Defined in the Arbor Credit Agreement.
WFS: Wells Fargo Securities, LLC (formerly known as Wachovia Capital Markets, LLC), a
Delaware limited liability company.
Section 1.2 Other Terms.
(a) All accounting terms used but not specifically defined herein shall be construed in
accordance with GAAP. All terms used in Article 9 of the UCC in the State of New York, and used
but not specifically defined herein, are used herein as defined in such Article 9.
(b) Capitalized terms used with respect to the Additional Collateral but not defined in this
Agreement shall have the meanings given to such terms in the Arbor Credit Documents,
mutatis mutandis.
Section 1.3 Computation of Time Periods.
Unless otherwise stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word from means from and including and the words
to and until each mean to but excluding.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
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Section 1.4 Interpretation.
In each Loan Document, unless a contrary intention appears:
(i) the singular number includes the plural number and vice versa;
(ii) reference to any Person includes such Persons successors and assigns but, if
applicable, only if such successors and assigns are permitted by the Loan Documents;
(iii) reference to any gender includes each other gender;
(iv) reference to day or days without further qualification means calendar days;
(v) reference to any time means Charlotte, North Carolina time;
(vi) the term including means including without limitation;
(vii) the term through means to and including;
(viii) unless the context clearly requires or the language provides otherwise,
reference to a section, subsection, paragraph, subparagraph, clause, exhibit, schedule,
annex, appendix, attachment, rider or other attachment means a section, subsection,
paragraph, subparagraph, clause, exhibit, schedule, annex, appendix, attachment, rider or
other attachment of or to this Agreement;
(ix) to the extent this Agreement uses or requires different limitations, tests or
measurements to regulate the same or similar matters, all such limitations, tests and
measurements are cumulative and shall each be performed in accordance with their terms;
(x) unless the context clearly requires or the language provides otherwise, the words
herein, hereof, hereunder or similar words refer to this Agreement as a whole and not
to any particular provision of this Agreement;
(xi) reference to any agreement (including any Loan Document), document or instrument
means such agreement, document or instrument as amended, modified, restated, replaced,
waived, substituted, supplemented or extended from time to time in accordance with the terms
thereof and, if applicable, the terms of the other Loan Documents, and reference to any
promissory note, certificate, instrument or trust receipt includes any promissory note,
certificate, instrument or trust receipt that is an extension or renewal thereof or a
substitute or replacement therefor;
(xii) reference to any Applicable Law, including any reference to any specific
provision of Applicable Law, means such Applicable Law as amended, modified, codified,
replaced or reenacted, in whole or in part, and in effect from time to time, including rules
and regulations promulgated thereunder and reference to any Section or other provision of
any Applicable Law means that provision of such Applicable Law from time to time in effect
and constituting the substantive amendment, modification, codification, replacement or
reenactment of such Section or other provision;
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
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(xiii) unless otherwise expressly provided in this Agreement, reference to any notice,
request, approval, consent or determination provided for, permitted or required under the
terms of this Agreement with respect to a Borrower, a Guarantor, the Administrative Agent or
a Lender means, in order for such notice, request, approval, consent or determination to be
effective hereunder, such notice, request, approval or consent must be in writing; and
(xiv) reference herein or in any Loan Documents to the Administrative Agents or any
Lenders discretion shall mean, unless otherwise stated herein or therein, the
Administrative Agents or Lenders sole and absolute discretion, and the exercise of such
discretion shall be final and conclusive. In addition, whenever the Administrative Agent or
a Lender has a decision or right of determination or request, exercises any right given to
it to agree, disagree, accept, consent, grant waivers, take action or no action or to
approve or disapprove, or any arrangement or term is to be satisfactory or acceptable (or
any similar language or terms) to the Administrative Agent or a Lender, the decision of the
Administrative Agent or a Lender with respect thereto shall be in the sole and absolute
discretion of the Administrative Agent or the Lender, and such decision shall be final and
conclusive, except as may be otherwise specifically provided herein.
ARTICLE II
THE LOANS
Section 2.1 Loans.
(a) Revolving Commitment. During the Commitment Period, and subject to the terms and
conditions of this Agreement, the Initial Lender agrees initially and, upon an assignment of any
portion of the Revolving Commitment to one or more Lenders, all Lenders, including, without
limitation, the Initial Lender, severally, agree to make revolving loans (each a Loan and
collectively the Loans) to the Borrowers from time to time for the purposes hereinafter
set forth; provided, however, (i) no Loans shall be made (A) when a Default or any
Event of Default has occurred and is continuing, (B) if, before or after giving effect to the
requested Loan, the Availability is or would be negative, and (C) after the Commitment Period, and
(ii) in the event of an assignment of any portion of the Maximum Amount to one or more Lenders,
with regard to each Lender individually, the sum of such Lenders share of the outstanding Loans
shall not exceed such Lenders Revolving Commitment Percentage of the Maximum Amount.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. ARSR, on behalf of the Borrowers, shall request a
Loan by giving written notice (or telephonic notice promptly confirmed in writing which
confirmation may be by fax) to the Administrative Agent in the form of a duly completed and
executed Notice of Borrowing, together with a duly completed and executed Compliance
Certificate, not later than 11:00 a.m. on or before two (2) Business Days prior to the date
of the requested borrowing (unless a shorter notice period is approved by the Administrative
Agent) (the Requested Borrowing Date). Each Notice of Borrowing shall be
irrevocable and shall specify (A) that a Loan is requested, (B) the date of the requested
borrowing (which shall be a Business Day), (C) the aggregate principal amount to be
borrowed, (D) the purpose for the Loan, which purpose must be approved by the Administrative
Agent in its discretion, (E) the proposed source of repayment of the Loan, (F) the
Borrowers calculation of the Availability and the Borrowers compliance therewith after
giving effect to the requested borrowing, and (G) such other information as the
Administrative Agent may require in its discretion. The Administrative Agent
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
30
shall give notice to each Lender promptly upon receipt of each Notice of Borrowing and
Compliance Certificate, the contents thereof and each such Lenders share thereof.
(ii) Loan Approval. The Administrative Agent shall notify the Borrowers on or
prior to the Requested Borrowing Date whether the Administrative Agent on behalf of the
Lenders has (A) rejected the proposed Loan based on the Administrative Agents review of the
Notice of Borrowing and/or the Compliance Certificate, (B) has agreed to the proposed Loan
or (C) has agreed to make the requested Loan subject to certain terms, conditions or
modifications. The Administrative Agents failure to timely respond to a Notice of
Borrowing shall be deemed to be a rejection of the proposed Loan. If the Administrative
Agent rejects the proposed Loan as provided in clause (A) above or the Borrowers
reject the terms, conditions or modifications required by the Administrative Agent under
clause (C) above, the Lenders shall not be obligated to make the proposed Loan
requested in the Notice of Borrowing, and the submitted Notice of Borrowing shall thereafter
become void automatically without further action by any party.
(iii) Minimum Amounts. Subject to the other provisions of this
Article II, each Loan shall be in a minimum aggregate amount of $1,000,000.
(iv) Advances. Provided that each condition precedent set forth in
Articles II and III of this Agreement and all other terms and conditions are
satisfied, as determined by the Administrative Agent in its discretion, each Lender will
make its Revolving Commitment Percentage of each approved Loan available to the
Administrative Agent for the account of the Borrowers at the office of the Administrative
Agent identified on Schedule 3, or at such other office as the Administrative Agent
may designate in writing, upon reasonable advance notice by 1:00 p.m. on the Requested
Borrowing Date specified in the applicable Notice of Borrowing, in Dollars and in funds
immediately available to the Administrative Agent. Such borrowing will then be made
available to the Borrowers by the Administrative Agent by crediting the Operating Account
with the amounts made available to the Administrative Agent by the Lenders and in like funds
as received by the Administrative Agent. The obligations of the Lenders hereunder are
several and not joint or joint and several. The failure of any Lender to fulfill its
obligations hereunder shall not result in any other Lender becoming obligated to advance
more than its Revolving Commitment Percentage of any Loan, nor shall such failure release or
diminish the obligations of any other Lender to fund its Revolving Commitment Percentage
provided for in this Agreement.
(v) Borrowers Use of Proceeds. The proceeds of all Loans shall be used solely
for the purpose requested and approved by the Administrative Agent. Neither the Lenders nor
the Administrative Agent shall have any liability, obligation or responsibility whatsoever
with respect to a Borrowers use of the proceeds of the Loans, and neither the Lenders nor
the Administrative Agent shall be obligated to determine whether or not a Borrowers use of
the proceeds of the Loans are for purposes permitted under a Borrowers Authority Documents,
Applicable Law, under any other applicable document or agreement or otherwise. Nothing,
including, without limitation, any borrowing or any acceptance of any other document or
instrument, shall be construed as a representation or warranty, express or implied, to any
party by the Lenders or the Administrative Agent as to whether any investment by a Borrower
qualifies under this Agreement or is otherwise permitted by the terms of the Borrowers
Authority Documents, Applicable Law, under any other applicable document or agreement or
otherwise.
(c) Revolving Loans. Loans may be repaid subject to and in accordance with the terms,
provisions and conditions of this Agreement and the other Loan Documents. Notwithstanding any
contained in the Loan Documents to the contrary, Loans may not be repaid and reborrowed.
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(d) Revolving Notes. The Borrowers obligation to pay each Lenders Loans shall be
evidenced by a Revolving Note made payable to each such Lender, if requested by such Lender.
(e) Repayment of Loans. Borrowers covenant and agree to repay the Loans in accordance
with the terms and conditions of this Agreement and the Revolving Notes. Subject to earlier
repayment under Article X and Subsection 2.1(g), the Aggregate Outstanding
Principal, accrued and unpaid Interest and all other Aggregate Unpaids shall be paid in full on or
before the Facility Maturity Date.
(f) Additional Collateral.
(i) In order to increase the Availability under this Agreement, the Administrative
Agent may, subject to the terms of this Subsection 2.1(f), approve certain Eligible
Assets to be included in the Additional Collateral included in the Collateral hereunder (the
date of any such approval and pledge hereunder, the Pledge Date). The addition of
any Additional Collateral to the Collateral pool shall be permitted in the Administrative
Agents discretion, in accordance with the terms of this Subsection 2.1(f).
(ii) Unless otherwise expressly provided herein and without duplication, all of the
terms, provisions, requirements, deliveries, representations, warranties, covenants, duties,
liabilities, defaults, rights, remedies and agreements that are contained in or required by
the Arbor Credit Documents and apply in any way to the Mortgage Assets and related Purchased
Items under the Arbor Credit Facility (as opposed to the Arbor Credit Facility generally)
shall, unless waived in writing by the Administrative Agent pursuant to a written request of
the Borrowers, be equally applicable to the Mortgage Assets and the related Collateral under
this Agreement, with all of the necessary changes having been or deemed to have been made to
such terms, provisions, requirements, deliveries, representations, warranties, covenants,
duties, liabilities, defaults, rights, remedies and agreements as necessary.
Notwithstanding the foregoing, however, (A) the terms Deficit, Notice of Borrowing, Table
Funded Mortgaged Asset and Table Funded Trust Receipt contained in the Arbor Credit
Facility, (B) the provisions of Sections 2.5 and 2.9 of the Arbor Credit
Agreement and Schedule 1-A to the Arbor Credit Facility Fee Letter shall be
inapplicable to this Agreement and the other Loan Documents. For the avoidance of doubt,
the terms Asset Value, Confirmation, Custodian, Custodial Agreement, Custodial Fee Letter,
Junior Interest and Servicer Redirection Notice shall have the meaning set forth in this
Agreement or the other Loan Documents and not as defined in the Arbor Credit Facility. With
respect to the Additional Collateral, the applicable Advance Rates, the Maximum LTV (or
Maximum LTC), Minimum DSCR and financing spreads shall be contained in the related
Confirmation. To the extent there is any question or dispute as to the applicability,
interpretation, implication, impact, effect or scope of any term, provision, requirement,
delivery, representation, warranty, covenant, duty, liability, default, right, remedy or
agreement from the Arbor Credit Facility, the Administrative Agent shall resolve all such
questions and disputes in its reasonable and good faith discretion. Notwithstanding
anything contained herein to the contrary, the terms of the financing of any Additional
Collateral may be set forth in the related Confirmation and such terms shall be controlling
over any contrary terms in this Agreement, the Fee Letter or any other Loan Document.
(iii) To the extent the Borrowers desire to include any Mortgage Asset as a part of the
Additional Collateral under this Agreement and the other Loan Documents, the Borrowers shall
make a written request to the Administrative Agent and, in connection therewith, provide the
Administrative Agent with the Underwriting Package and Seller-Asset Schedule for such
Mortgage Asset and such other information as the Administrative Agent may require in its
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(Wachovia and Arbor)
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discretion. Provided a Mortgage Asset is an Eligible Asset and the Administrative
Agent in its discretion approves of the inclusion of such Mortgage Asset as a part of the
Additional Collateral, the Administrative Agent shall provide written notice thereof to the
Borrowers and the Borrowers shall, with respect to the Mortgage Assets and related
Collateral under this Agreement, (A) take all actions and provide all deliveries to the same
extent as required for the transfer and pledge of Mortgage Assets under the Arbor Credit
Facility, (B) take all actions and provide all deliveries required for the grant to the
Administrative Agent of a first priority perfected security interest in the Mortgage Assets
and the related Collateral, (C) take all such other actions as the Administrative Agent may
require in its discretion, and (D) take all actions required with respect to such Additional
Collateral as set forth in Subsection 2.1(f)(ii). The Borrowers acknowledge and
agree that the Administrative Agent in its discretion may reject any Mortgage Asset for
inclusion as a part of the Additional Collateral for any reason or no reason whatsoever.
The Administrative Agents failure to respond to a request to include a Mortgage Asset as a
part of the Additional Collateral shall be deemed to be a denial of such a request and the
rejection of such Mortgage Asset. Upon the issuance of a Trust Receipt by the Custodian
under the Custodial Agreement with respect to a Mortgage Asset that is an Eligible Asset and
approved by the Administrative Agent in its discretion, a Mortgage Asset shall be deemed to
be included as a part of the Additional Collateral under this Agreement and the other Loan
Documents. With respect to any proposed Additional Collateral that is a Preferred Equity
Interest, the Administrative Agent may, as a condition to the pledge of such Additional
Collateral, require that such Additional Collateral be held and pledged by a special purpose
entity acceptable to the Administrative Agent and that such entity become a Borrower under
the Loan Documents.
(g) Tax Law Change. Notwithstanding anything to the contrary contained in this
Agreement or the other Loan Documents, if there is a Tax Law Change, the Commitment Period shall
automatically terminate, no further Loans shall be made, the Facility Maturity Date will be deemed
to occur one hundred twenty (120) calendar days from the enactment date of such Tax Law Change and
the Borrowers shall pay to the Administrative Agent on behalf of the Lenders all Aggregate Unpaids
and all other amounts owed hereunder or under the other Loan Documents within one hundred twenty
(120) calendar days of the enactment date of such Tax Law Change; provided,
however, the foregoing shall not affect or impair the Administrative Agents rights to
accelerate the Obligations and to exercise its rights and remedies under the Loan Documents (other
than with respect to a foreclosure on the impacted Pledged Collateral) upon the occurrence of an
Event of Default.
(h) Expiration of Commitment Period. Notwithstanding anything contained in the Loan
Documents to the contrary, the Commitment Period has expired on or prior to the Restatement Date.
As such, no additional Loans may be made to the Borrowers after the Restatement Date.
Notwithstanding the foregoing, each Loan made on or prior to the Restatement Date shall be a Loan
hereunder.
Section 2.2 Mandatory Prepayments.
(a) The Borrowers shall pay the following amounts upon the occurrence of any of the following
events:
(i) Availability. The Administrative Agent may calculate Availability on any day
during an Asset Valuation Period. If the Availability, as determined by the Administrative
Agent in its discretion, is negative on any day during an Asset Valuation Period the
Borrowers shall, immediately upon notice from the Administrative Agent and, in any event,
within two (2) Business Days (the Availability Correction Deadline), prepay the
Loans in cash in an amount determined by the Administrative Agent so that, after giving
effect to such payment, the Availability will not be negative (each such amount, a
Correction Amount); provided, however,
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to the extent the Administrative Agent has calculated the Availability based on either
clause (i)(b), (i)(c) or (i)(d) of the definition of Availability
and provided no Event of Default has occurred and the Facility Maturity Date has not
occurred, the Borrowers may, subject to the Administrative Agents right of approval
pursuant to Subsection 2.1(f), pledge Additional Collateral to the Administrative
Agent on or before the Availability Correction Deadline, provided that such Additional
Collateral is acceptable to the Administrative Agent in its discretion, and the Asset Value
of such Additional Collateral is equal to or greater than the Correction Amount.
(ii) Debt Issuances. The terms and provisions governing mandatory prepayments in
connection with Debt Issuances are set forth in the Fee Letter and are hereby incorporated
by reference.
(iii) Equity Issuances. The terms and provisions governing mandatory prepayments in
connection with Equity Issuances are set forth in the Fee Letter and are hereby incorporated
by reference.
(iv) Securitizations. The terms and provisions governing mandatory prepayments in
connection with the closing of any securitization of any assets (Securitization)
are set forth in the Fee Letter and are hereby incorporated by reference.
(v) Tax Law Change. In the event of a Tax Law Change, the Borrowers shall pay all
Aggregate Unpaids and all other amounts owed hereunder and under the other Loan Documents
within one hundred twenty (120) calendar days of the enactment date of the Tax Law Change.
(vi) Principal Payments. For each calendar quarter in which the CDO Payment Trigger
is satisfied (or deemed to be satisfied), the Borrowers shall repay the outstanding
principal balance of the Loans in an aggregate amount equal to ONE MILLION DOLLARS
($1,000,000) for each CDO Issuance that makes CDO Equity Distributions in such calendar
quarter, which amounts will be applied to the outstanding principal amounts of the Loans;
provided that the principal payment required pursuant to this clause (vi) shall be reduced
by any amounts previously received pursuant to clauses (vii) and (viii). Each such
repayment, to the extent required, shall be made on the first Business Day of the month
following the end of the applicable calendar quarter.
(vii) Additional Term Loan Collateral. The terms and provisions governing mandatory
prepayments in connection with repayments, prepayments and/or reductions of the Loans with
respect to Additional Term Loan Collateral are set forth in the Fee Letter and are hereby
incorporated by reference.
(viii) Prime Distribution Prepayment. To the extent there are annual dividends or
distributions in excess of $10,000,000 from the Prime Pledged Mortgage Asset, the Borrowers
shall prepay the Loans in an aggregate principal amount equal to one hundred percent (100%)
of all such excess dividends or distributions. Such amounts shall be applied in such manner
as the Administrative Agent may determine in its discretion.
(b) Application of Mandatory Prepayments. All amounts required to be paid pursuant to
this Section 2.2 shall be deposited into the Collection Account and shall be accompanied by
Breakage Costs (if any). All such amounts shall be applied in accordance with the payment
priorities set forth in Subsection 2.7(b) (i) on the Business Day received if received
prior to 3:00 pm or (ii) on the next Business Day if received after 3:00 pm.
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(Wachovia and Arbor)
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Section 2.3 Optional Prepayments.
(a) [Reserved].
(b) The Borrowers shall have the right to make optional prepayments hereunder from time to
time upon the delivery of one (1) Business Day prior written notice, which notice shall be
irrevocable; provided, however, each optional prepayment of Loans (other than an
optional prepayment resulting from the prepayment of any Eligible Asset included in Additional
Collateral by the Obligor under the related Mortgage Loan Documents) shall be in a minimum
principal amount of $1,000,000 and in integral multiples of $500,000. Amounts prepaid under this
Subsection 2.3(b) shall be accompanied by Breakage Costs (if any). All such prepayment
amounts shall be deposited into the Collection Account and shall be applied in accordance with the
payment priorities set forth in Subsection 2.7(b) (i) on the Business Day received if
received prior to 3:00 pm or (ii) on the next Business Day if received after 3:00 pm. For the
avoidance of doubt, all prepayments are subject to Section 8.2.
Section 2.4 [Reserved].
Section 2.5 Payment of Interest.
(a) The Borrowers shall pay to the Administrative Agent for the benefit of the Lenders the
accrued Interest on each Loan on each Payment Date. The Administrative Agent shall deliver to the
Borrowers notice of the amount of Interest due (along with the calculation of the Unused Fee, if
any, and other amounts owed and to be paid on the Payment Date) on or prior to the second (2nd)
Business Day preceding each Payment Date; provided, however, the Administrative
Agents failure to give notice to the Borrowers of any amount due shall not waive such amount or
relieve the Borrowers of their obligation to pay such amount but such failure shall extend the due
date of such amount until the Business Day after such notice is received by the Borrowers. If the
Borrowers fail to pay the Interest and the other amounts due by 3:00 p.m. on the Payment Date, the
Borrowers shall be obligated to pay to the Administrative Agent on behalf of the Lenders (in
addition to, and together with, the Interest and the other amounts due) interest on the unpaid
amounts at a rate per annum equal to the Post-Default Rate (the Late Payment Fee) until
the unpaid amounts are received in full by the Administrative Agent. If the Interest includes any
estimated Interest, the Administrative Agent shall recalculate such Interest after the Payment Date
and, if necessary, make adjustments to the Interest amount due on the following Payment Date.
(b) If the Borrowers pay or prepay any principal on any day that is not either the last day of
the Eurodollar Period or the maturity date for such Loan, the Borrowers shall indemnify the
Administrative Agent, the Lenders and the other Affected Parties and hold the Administrative Agent,
the Lenders and the other Affected Parties harmless from any losses, costs and/or expenses that the
Administrative Agent, the Lenders and the other Affected Parties may sustain or incur arising from
the reemployment of funds obtained by the Administrative Agent, the Lenders and the other Affected
Parties hereunder or from fees payable to terminate the deposits from which such funds were
obtained (Breakage Costs), in each case for the remainder of the Eurodollar Period. The
Administrative Agent shall deliver to the Borrowers a statement setting forth the amount and basis
of determination of any Breakage Costs in such detail as determined in good faith by the
Administrative Agent, the Lenders and the other Affected Parties to be adequate, it being agreed
that such statement and the method of its calculation shall be conclusive and binding upon the
Borrowers, absent manifest error. This Subsection 2.5(b) shall survive termination of this
Agreement and the payment in full of the Obligations.
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Section 2.6 Pro Rata Treatment and Payments.
Each borrowing of Loans shall be made pro rata by the Lenders according to the respective
Revolving Commitment Percentages of the Lenders. Each payment to the Lenders under this Agreement
or any Revolving Note shall be applied pro rata among the Lenders entitled thereto (based on the
respective Revolving Commitment Percentages).
Section 2.7 Accounts; Payments.
(a) On or before the Closing Date, the Borrowers shall establish and maintain with Wachovia an
account (as more specifically identified on Schedule 1 hereto, the Collection
Account) into which all Income, CDO Equity Distributions and other amounts required to be paid
pursuant to this Agreement shall be deposited and ARCM shall establish and maintain with Wachovia
an account into which all CDO Management Fees shall be deposited (as more specifically identified
on Schedule 1 hereto, the CDO Management Fee Account). The Collection Account
and the CDO Management Fee Account shall be established at Wachovias Charlotte, North Carolina
location. The Collection Account shall be in the name of one (1) or more Borrowers and the CDO
Management Fee Account shall be established in the name of ARCM. The Collection Account shall be
for the benefit of each beneficiary of the security interest in favor of the Administrative Agent
and for the benefit of each Borrower (but only to the extent any such Borrower is entitled to any
cash flow in accordance with Subsection 2.7(b) hereof). The Administrative Agent shall
invest any cash deposited in the Collection Account in such Permitted Investments as a Borrower
shall direct the Administrative Agent in writing. The CDO Management Fee Account shall be for the
benefit of each beneficiary of the security interest in favor of the Administrative Agent and for
the benefit of ARCM (but only to the extent ARCM is entitled to any cash flow in accordance with
Subsection 2.7(b) hereof).
(b) The Administrative Agent shall be entitled to receive on behalf of the Lenders and the
other Affected Parties an amount equal to all Income paid or distributed on or in respect of the
Collateral, the Required Payments and all other payments and amounts required or permitted
hereunder or under the other Loan Documents, which amounts shall be deposited by the Borrowers and
all other applicable Persons into the Collection Account or the CDO Management Fee Account, as
applicable. On or before each Payment Date and on such other dates as the Administrative Agent may
determine in its discretion, the Administrative Agent shall transfer all amounts on deposit in the
CDO Management Fee Account to the Collection Account. On each Payment Date, any amounts on deposit
in the Collection Account shall be withdrawn by the Administrative Agent and shall be applied as
follows:
FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including, without
limitation, reasonable attorneys fees) of the Administrative Agent in connection with enforcing
the rights of the Lenders under the Loan Documents and any protective advances made by the
Administrative Agent with respect to the Collateral under or pursuant to the terms of the Loan
Documents;
SECOND, pro rata to the Lenders to the payment of any expenses, costs, advances and other
obligations then due and owing by the Borrowers to the Lenders under the Loan Documents (including,
without limitation, reasonable attorneys fees and costs), other than amounts described in any
subsequent clause of this Section 2.7;
THIRD, pro rata to the Lenders to the payment of any fees then due and owing by the Borrowers
to the Lenders under the Loan Documents (including, without limitation, the Unused Fee and any
Extension Fee);
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(Wachovia and Arbor)
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FOURTH, pro rata to the Lenders to the payment of Late Payment Fees outstanding and any other
Interest at the Post-Default Rate;
FIFTH, pro rata to the Lenders to the payment of accrued and unpaid Interest then due;
SIXTH, pro rata to the Lenders to the payment of the Aggregate Outstanding Principal of the
Loans to the extent of any mandatory prepayment pursuant to Section 2.2 of this Agreement;
SEVENTH, pro rata to the Lenders to the payment of the Aggregate Outstanding Principal of the
Loans to the extent of any voluntary prepayment pursuant to Section 2.3 of this Agreement;
EIGHTH, on and after the Facility Maturity Date, pro rata to the Lenders to the payment of the
Aggregate Outstanding Principal of the Loans;
NINTH, pro rata to the Administrative Agent, the Lenders, the other Affected Parties and the
Indemnified Parties, to the payment of Breakage Costs, Indemnified Amounts, Increased Costs,
Additional Amounts, Due Diligence Costs and all other Aggregate Unpaids and other amounts then due
and owing to the Administrative Agent, the Lenders, the other Affected Parties and the Indemnified
Parties pursuant to this Agreement and the other Loan Documents;
TENTH, to the extent any mandatory or voluntary prepayments were made under
Sections 2.2 or 2.3 of this Agreement, to the extent of funds available therefor,
and to the extent the parties under the Arbor Credit Facility subsequently agree that any excess
proceeds under this clause TENTH shall be applied under either or both such facilities, to Wachovia
for application to such facilities in accordance with the terms of such facilities; and
ELEVENTH, to the extent of funds available therefor, to the Operating Account, for such
purposes as the Borrowers shall determine in their sole discretion;
provided, however, if a Default or Event of Default has occurred and is continuing
or a Tax Law Change has occurred, such amounts shall not be transferred to the Operating Account
but shall remain in the Collection Account and, (i) in the case of a Tax Law Change and no Default
or Event of Default has occurred, the Administrative Agent shall apply such amounts in reduction of
all Aggregate Unpaids or, upon request of the Borrowers, the Administrative Agent may in its
discretion determine whether and in what amounts it will release such funds, or (ii) in the case of
a Default or Event of Default, the Administrative Agent shall apply such amounts in reduction of
all Obligations.
Notwithstanding anything to the contrary contained herein, in the event any Obligor Reserve
Payments are deposited into the Collection Account, such Obligor Reserve Payments shall, upon
written request of a Borrower, be promptly transferred from the Collection Account to the Operating
Account for such Borrower to transfer into the appropriate escrow or reserve accounts.
Section 2.8 Non-Receipt of Funds by the Administrative Agent.
(a) Unless the Administrative Agent shall have been notified in writing by a Lender prior to
the date a Loan is to be made by such Lender (which notice shall be effective upon receipt) that
such Lender does not intend to make the proceeds of such Loan available to the Administrative
Agent, the Administrative Agent may assume that such Lender has made such proceeds available to the
Administrative Agent on such date, and the Administrative Agent may, in reliance upon such
assumption, make available to (but shall not be required to) make available to) the Borrowers a
corresponding amount. If such corresponding amount is not in fact made available to the
Administrative Agent, the
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Administrative Agent shall be able to recover such corresponding amount from such Lender. If
such Lender does not pay such corresponding amount forthwith upon the Administrative Agents demand
therefor, the Administrative Agent will promptly notify the Borrowers, and the Borrowers shall
immediately pay such corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover from the Lender or the Borrowers, as the case may be, interest on
such corresponding amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrowers to the date such corresponding amount is
recovered by the Administrative Agent at a per annum rate equal to, (i) if payable by the
Borrowers, the Rate, and (ii) if payable by a Lender, the Federal Funds Rate.
(b) Unless the Administrative Agent shall have been notified in writing by the Borrowers,
prior to the date on which any payment is due hereunder (which notice shall be effective upon
receipt) that the Borrowers do not intend to make such payment, the Administrative Agent may assume
that such Borrowers have made such payment when due, and the Administrative Agent may in reliance
upon such assumption (but shall not be required to) make available to each Lender on such payment
date an amount equal to the portion of such assumed payment to which such Lender is entitled
hereunder, and if the Borrowers have not in fact made such payment to the Administrative Agent,
such Lender shall, on demand, repay to the Administrative Agent the amount made available to such
Lender. If such amount is repaid to the Administrative Agent on a date after the date such amount
was made available to such Lender, such Lender shall pay to the Administrative Agent on demand
interest on such amount in respect of each day from the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is recovered by the Administrative
Agent at a per annum rate equal to the Rate.
(c) A certificate of the Administrative Agent submitted to the Borrowers or any Lender with
respect to any amount owing under this Section 2.8 shall be conclusive in the absence of
manifest error.
Section 2.9 Payments by Borrowers.
(a) Unless otherwise expressly provided herein, all amounts to be paid or deposited by the
Borrowers hereunder shall be paid or deposited in accordance with the terms hereof no later than
3:00 p.m. on the day when due in lawful money of the United States, in immediately available funds
to the Administrative Agents Account and, if not received before such time, shall be deemed to be
received on the next Business Day. The Borrowers shall, to the extent permitted by Applicable Law,
pay to the Administrative Agent interest on any amounts not paid when due hereunder or under the
Loan Documents at the Post-Default Rate, payable on demand; provided, however, that
such interest rate shall not at any time exceed the maximum rate permitted by Applicable Law. Such
interest shall be for the account of, and distributed to, the Lenders. All computations of
Interest and all computation of other interest and fees hereunder shall be made on the basis of a
year consisting of 360 days for the actual number of days (including the first but excluding the
last day) elapsed. The Borrowers acknowledge that they have no rights of withdrawal from the
Collection Account, the CDO Management Fee Account or from the Administrative Agents Account;
provided, however, the Borrowers may have a right to distributions from the
Collection Account in accordance with Subsection 2.7(b).
(b) Whenever any payment hereunder shall be stated to be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of the payment of the Interest, other interest or
any fee payable hereunder, as the case may be.
(c) If (i) any Loan requested by the Borrowers and approved in writing by the Administrative
Agent is not, for any reason, made or effectuated, as the case may be, on the date specified
therefor, (ii) the Borrowers fail to pay the principal amount of or any Interest on any Loan in
accordance with the
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terms hereof or (iii) the Borrowers fail to make any prepayment after receiving or giving
notice thereof, the Borrowers shall indemnify the Administrative Agent against any reasonable loss,
cost or expense incurred by the Administrative Agent and the Lenders, including, without
limitation, any loss (including loss of anticipated profits, net of anticipated profits, if any, in
the reemployment of any funds in the manner determined by the Administrative Agent or Lenders in
their discretion), any reasonable cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by the Administrative Agent or the Lenders to fund
or maintain such Loan and any Interest, other interest or fees payable by the Administrative Agent
or any Lender to lenders of funds obtained by it in order to maintain any Loan hereunder. A
certificate as to any such amounts payable under this Subsection 2.9(c) submitted by the
Administrative Agent to the Borrowers shall be conclusive absent manifest errors.
(d) Except as set forth to the contrary in the Loan Documents, all sums payable by the
Borrowers and the Guarantors hereunder or under the Loan Documents shall be paid without notice,
demand, counterclaim, setoff, deduction or defense (as to any Person or any reason whatsoever) and
without abatement, suspension, deferment, diminution or reduction (as to any Person or any reason
whatsoever), and the obligations and liabilities of each Borrower and each Guarantor hereunder
shall in no way be released, discharged or otherwise affected (except as expressly provided herein)
by reason of: (a) any damage to or destruction of or any taking of any asset, any Property, any
Collateral or any portion of the foregoing; (b) any restriction or prevention of or interference
with any use of any asset, any Property, any Collateral or any portion of the foregoing; (c) any
title defect or encumbrance or any eviction from any Property, by title paramount or otherwise;
(d) any Insolvency Proceeding relating to any Borrower, any Guarantor, any Affiliate or Subsidiary
of the foregoing or any obligor, account debtor or indemnitor under the Collateral, or any action
taken with respect to this Agreement or any other Loan Document by any trustee or receiver of any
Borrower, any Guarantor, any Affiliate or Subsidiary of the foregoing or any obligor, account
debtor or indemnitor under the Collateral, or by any court, in any such proceeding; (e) any claim
that any Borrower or any Guarantor has or might have against the Administrative Agent, any Lender,
any Affected Party and/or any Indemnified Party; (f) any default or failure on the part of the
Administrative Agent, any Lender, any Affected Party and/or any Indemnified Party to perform or
comply with any of the terms hereof, the Loan Documents or of any other agreement with any
Borrower, any Guarantor, any Consolidated Subsidiary of the foregoing and/or any other Person;
(g) the invalidity or unenforceability of any Collateral or Loan; (h) anything related to or
arising out of any Borrower-Related Obligation; or (i) any other occurrence whatsoever, whether
similar or dissimilar to the foregoing, whether or not any Borrower, any Guarantor or any Affiliate
or Subsidiary of the foregoing shall have notice or knowledge of any of the foregoing.
(e) This Section 2.9 shall survive the termination of this Agreement and the payment
in full of the Obligations.
Section 2.10 Fees.
(a) On or prior to the Restatement Date, the Borrowers shall pay to the Administrative Agent
the fees then due and payable, as agreed to by the Borrowers and the Administrative Agent in the
Fee Letter.
(b) To the extent not separately paid by the Borrowers under the Fee Letter or this Agreement,
and without waiving the Borrowers obligations to pay such amounts, the unpaid Interest, the
Commitment Fee and all other fees shall be paid to the Administrative Agent from the Collection
Account to the extent funds are available on each Payment Date pursuant to Section 2.7.
(c) The Borrowers shall pay to Moore & Van Allen PLLC, as counsel to the Administrative Agent,
on the Restatement Date, its reasonable estimated fees and out-of-pocket expenses in immediately
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
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available funds and shall pay all additional reasonable fees and out-of-pocket expenses of
Moore & Van Allen PLLC within ten (10) days after receiving an invoice for such amounts.
Section 2.11 Increased Costs; Capital Adequacy; Illegality.
(a) If either (i) the introduction of or any change (including, without limitation, any change
by way of imposition or increase of reserve requirements) in or in the interpretation of any law or
regulation, or (ii) the compliance by the Administrative Agent, any Lender or any Affected Party
with any guideline or request from any central bank or other Governmental Authority (whether or not
having the force of law) shall (A) subject the Administrative Agent, any Lender or any Affected
Party to any Tax (except for Taxes on, or Taxes one or more of the alternative bases for which are,
the overall net income of the Administrative Agent, any Lender or any Affected Party, and except
for franchise taxes imposed in lieu thereof), duty or other charge with respect to any ownership
interest in the Collateral, or any right to enter into Loans hereunder, or on any payment made
hereunder, (B) impose, modify or deem applicable any reserve requirement (including, without
limitation, any reserve requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding any reserve requirement, if any, included in the determination of Interest),
special deposit or similar requirement against assets of, deposits with or for the account of, or
credit extended by, the Administrative Agent, any Lender or any Affected Party or (C) impose any
other condition affecting the ownership interest in the Collateral conveyed to the Administrative
Agent hereunder or the Administrative Agents or any Lenders or Affected Partys rights hereunder,
the result of which is to increase the cost to the Administrative Agent, any Lender or any Affected
Party or to reduce the amount of any sum received or receivable by the Administrative Agent, any
Lender or any Affected Party under this Agreement or the other Loan Documents, then within ten (10)
days after demand by the Administrative Agent (which demand shall be accompanied by a statement
setting forth the basis for such demand), the Borrowers shall pay directly to the Administrative
Agent such additional amount or amounts as will compensate the Administrative Agent, any Lender or
any Affected Party for such additional or increased cost incurred or such reduction suffered.
(b) If either (i) the introduction of or any change in or in the interpretation of any law,
guideline, rule, regulation, directive or request or (ii) compliance by the Administrative Agent,
any Lender or any Affected Party with any law, guideline, rule, regulation, directive or request
from any central bank or other Governmental Authority or agency (whether or not having the force of
law), including, without limitation, compliance by the Administrative Agent, any Lender or any
Affected Party with any request or directive regarding capital adequacy, has or would have the
effect of reducing the rate of return on the capital of the Administrative Agent, any Lender or any
Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a
level below that which the Administrative Agent, any Lender or any Affected Party could have
achieved but for such introduction, change or compliance (taking into consideration the policies of
the Administrative Agent, any Lender or any Affected Party with respect to capital adequacy) by an
amount deemed by the Administrative Agent, any Lender or any Affected Party to be material, then
from time to time, within ten (10) days after demand by the Administrative Agent (which demand
shall be accompanied by a statement setting forth the basis for such demand), the Borrowers shall
pay directly to the Administrative Agent such additional amount or amounts as will compensate the
Administrative Agent, any Lender and any Affected Party for such reduction. For the avoidance of
doubt, any interpretation of Accounting Research Bulletin No. 51 by the Financial Accounting
Standards Board shall constitute an adaptation, change, request or directive subject to this
Subsection 2.11(b).
(c) If as a result of any event or circumstance similar to those described in
clause (a) or (b) of this Section 2.11, the Administrative Agent, any
Lender or any Affected Party is required to compensate a bank or other financial institution
providing liquidity support, credit enhancement or other similar support to the Administrative
Agent, any Lender or any Affected Party in connection with this Agreement, the
First Amended and Restated Revolving Loan Agreement
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other Loan Documents or the funding or maintenance of any Loan hereunder, then within ten (10)
days after demand by the Administrative Agent, the Borrowers shall pay to the Administrative Agent
such additional amount or amounts as may be necessary to reimburse the Administrative Agent, any
Lender or any Affected Party for any amounts payable or paid by it.
(d) In determining any amount provided for in this Section 2.11, the Administrative
Agent, any Lender or any Affected Party may use any reasonable averaging and attribution methods.
The Administrative Agent, any Lender or any Affected Party making a claim under this
Section 2.11 shall submit to the Borrowers a written description as to such additional or
increased cost or reduction and the calculation thereof, which written description shall be
conclusive absent demonstrable error.
(e) If any Lender shall notify the Administrative Agent that a Eurodollar Disruption Event as
described in clause (a) of the definition of Eurodollar Disruption Event has occurred,
the Administrative Agent shall in turn so notify the Borrowers, whereupon all Loans in respect of
which the Interest accrues at the Adjusted Eurodollar Rate shall immediately be converted into
Loans in respect of which the Interest accrues at the Base Rate.
(f) If, as a result of any event or circumstance described in clause (a), (b)
or (c) of this Section 2.11, the Borrowers are required to make payments to the
Administrative Agent, any Lender or any Affected Party, the Borrowers shall have the right to
elect, by written notice to the Administrative Agent, to convert the Rate at which the Interest
accrues to the Base Rate.
(g) Without prejudice to the survival of any other agreement of the Borrowers and the
Guarantors hereunder, the agreements and obligations of the Borrowers and the Guarantors contained
in this Section 2.11 shall survive the termination of this Agreement and the payment in
full of the Obligations.
Section 2.12 Taxes.
(a) All payments made by the Borrowers and the Guarantors under this Agreement and/or the
other Loan Documents will be made free and clear of and without deduction or withholding for or on
account of any Taxes. If any Taxes are required to be withheld from any amounts payable to the
Administrative Agent, the Lenders or any other Affected Party then the amount payable to such
Person will be increased (such increase, the Additional Amount) such that every net
payment made under this Agreement and/or the other Loan Documents after withholding for or on
account of any Taxes (including, without limitation, any Taxes on such increase) is not less than
the amount that would have been paid had no such deduction or withholding been deducted or
withheld. The foregoing obligation to pay Additional Amounts, however, will not apply with respect
to net income or franchise taxes imposed on the Administrative Agent, any Lender or any other
Affected Party, with respect to payments required to be made by the Borrowers and the Guarantors
under this Agreement and/or the other Loan Documents, by a taxing jurisdiction in which the
Administrative Agent, any Lender or any other Affected Party is organized, conducts business or is
paying taxes (as the case may be).
(b) The Borrowers and the Guarantors will indemnify the Administrative Agent, any Lender or
any other Affected Party for the full amount of Taxes payable by such Person in respect of
Additional Amounts and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto. All payments in respect of this indemnification shall be made within
ten (10) days from the date a written invoice therefor is delivered to the Borrowers or the
Guarantors.
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(c) Within thirty (30) days after the date of any payment by the Borrowers or the Guarantor of
any Taxes, the Borrowers and the Guarantors will furnish to the Administrative Agent, at its
address set forth under its name on Schedule 3, appropriate evidence of payment thereof.
(d) If the Administrative Agent, any Lender or any other Affected Party is created or
organized under the laws of the United States or a political subdivision thereof, the
Administrative Agent, any Lender or any other Affected Party shall deliver to the Borrowers, within
fifteen (15) days after the date hereof (or the date on which a Lender or Affected Party becomes a
party hereto), two (or such other number as may from time to time be prescribed by Applicable Laws)
duly completed copies of IRS Form W-9 (or any successor forms or other certificates or statements
that may be required from time to time by the relevant United States taxing authorities or
Applicable Laws). If the Administrative Agent, any Lender or any other Affected Party is not
created or organized under the laws of the United States or a political subdivision thereof, the
Administrative Agent, the Lenders or any other Affected Party shall deliver to the Borrowers,
(i) within fifteen (15) days after the date hereof (or the date on which a Lender or Affected Party
becomes a party hereto), two (or such other number as may from time to time be prescribed by
Applicable Laws) duly completed copies of IRS Form W-8BEN or Form W-8ECI (or any successor forms or
other certificates or statements that may be required from time to time by the relevant United
States taxing authorities or Applicable Laws), as appropriate, to permit the Borrowers and
Guarantors to make payments hereunder for the account of the Administrative Agent, the Lenders and
the Affected Parties without deduction or withholding of United States federal income or similar
Taxes, and (ii) upon the obsolescence of, or after the occurrence of any event requiring a change
in, any form or certificate previously delivered pursuant to this Section 2.12, copies (in
such numbers as may from time to time be prescribed by Applicable Laws or regulations) of such
additional, amended or successor forms, certificates or statements as may be required under
Applicable Laws or regulations to permit the Borrowers and Guarantor to make payments hereunder and
under the Loan Documents for the account of the Administrative Agent, the Lenders and the Affected
Parties without deduction or withholding of United States federal income or similar Taxes.
(e) Without prejudice to the survival of any other agreement of the Borrowers and the
Guarantors hereunder, the agreements and obligations of the Borrowers and the Guarantors contained
in this Section 2.12 shall survive the termination of this Agreement and the payment in
full of the Obligations.
Section 2.13 Designation of a Different Lending Office.
If any Lender requests compensation under Section 2.11, or requires any Borrower to
pay any additional amount to any Lender or any governmental authority for the account of any Lender
pursuant to Section 2.12, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of
such Lender, such designation or assignment (a) would eliminate or reduce amounts payable pursuant
to Section 2.11 or 2.12, as the case may be, in the future and (b) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender.
Section 2.14 Usury.
It is the intent of the Lenders and the Borrowers to conform to and contract in strict
compliance with applicable usury law from time to time in effect. All agreements between the
Lenders and the Borrowers are hereby limited by the provisions of this Section 2.14, which
shall override and control all such agreements, whether now existing or hereafter arising and
whether written or oral. In no way, nor in any event or contingency (including, but not limited
to, prepayment or acceleration of the maturity of any
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Obligation), shall the interest taken, reserved, contracted for, charged, or received under
this Agreement, under the Revolving Notes or otherwise, exceed the maximum nonusurious amount
permissible under Applicable Law. If, from any possible construction of any of the Loan Documents
or any other document, interest would otherwise be payable in excess of the maximum nonusurious
amount, any such construction shall be subject to the provisions of this Section 2.14 and
such interest shall be automatically reduced to the maximum nonusurious amount permitted under
Applicable Law, without the necessity of execution of any amendment or new document. If any Lender
shall ever receive anything of value which is characterized as interest on the Loans under
Applicable law and which would, apart from this provision, be in excess of the maximum nonusurious
amount, an amount equal to the amount which would have been excessive interest shall, without
penalty, be applied to the reduction of the principal amount owing on the Loans and not to the
payment of interest, or refunded to the Borrowers or the other payor thereof if and to the extent
such amount which would have been excessive exceeds such unpaid principal amount of the Loans. The
right to demand payment of the Loans or any other Obligations does not include the right to receive
any interest which has not otherwise accrued on the date of such demand, and the Lenders do not
intend to charge or receive any unearned interest in the event of such demand. All interest paid
or agreed to be paid to the Lenders with respect to the Loans shall, to the extent permitted by
Applicable Law, be amortized, prorated, allocated, and spread throughout the full stated term
(including any renewal or extension) of the Loans so that the amount of interest on account of such
indebtedness does not exceed the maximum nonusurious amount permitted by Applicable Law.
Section 2.15 No Additional Collateral. Notwithstanding anything contained in the
Agreement to the contrary (including, without limitation, Subsections 2.1(f) and
2.2(a)(i)), Additional Collateral (i) will not be considered by the Administrative Agent for
inclusion in the Collateral under Subsection 2.1(f) of the Agreement or any other provision
of the Agreement or the other Loan Documents, (ii) is not (as of the Restatement Date) and may not
be pledged as Collateral for the Loans, (iii) will not be included in the calculation of
Availability and (iv) may not be pledged to cure any negative Availability under Subsection
2.2(a)(i).
ARTICLE III
CONDITIONS TO TRANSACTIONS
Section 3.1 Conditions to Restatement Date.
This Agreement shall become effective upon, and the obligation of the Lender to make the Loans
on the Restatement Date, is subject to, the satisfaction of the following conditions precedent:
(a) Each Loan Document shall have been duly executed by, and delivered to, the parties
thereto, and the Administrative Agent shall have received such other documents, instruments and
agreements as the Administrative Agent shall reasonably request in connection with the Loans
contemplated by this Agreement, each in form and substance satisfactory to the Administrative
Agent;
(b) Each Borrower and each Guarantor has obtained all required consents and approvals of all
Persons, including, but not limited to, all requisite Governmental Authorities, to the execution,
delivery and performance of this Agreement and the other Loan Documents to which each is a party
and the consummation of the transactions contemplated hereby or thereby;
(c) The Borrowers and the Guarantors shall each be in compliance in all material respects with
all Applicable Laws, Contractual Obligations, all Indebtedness and all Guarantee Obligations;
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(d) The Borrowers and the Guarantors shall each have delivered to the Administrative Agent a
power of attorney in the form of Exhibit VIII;
(e) [Reserved];
(f) Any and all consents and waivers applicable to the Collateral shall have been obtained;
(g) The Administrative Agent shall be in receipt of (i) such Opinions of Counsel from the
counsel to each Borrower and each Guarantor as the Administrative Agent may require in its
discretion, each in form and substance satisfactory to the Administrative Agent in its discretion,
including, without limitation, corporate opinions and perfection opinions, (ii) an Opinion of
Counsel from a nationally recognized tax counsel experienced in such matters opining that, under
current Tax law, (x) the pledge of the Pledged Collateral under the Pledge and Security Agreement
will not cause each CDO Issuer owned by any Pledged CDO Subsidiary, solely as a result of such
transfer, to cease to be treated as a QRS and (y) a transfer of ownership (as determined by U.S.
federal income tax principles) of all of the Equity Interests in each Pledged CDO Subsidiary
directly to a REIT, a QRS or a disregarded entity (as determined by U.S. federal income tax
principles) that is wholly owned by a REIT will not cause any CDO Issuer owned by any Pledged CDO
Subsidiary to cease to be treated as a QRS or, after such transfer, the CDO Issuer will be treated
as a foreign corporation that is not engaged in a trade or business in the United States for United
States federal income tax purposes, and (iii) Opinions of Counsel from counsel to the applicable
Borrower or the applicable Consolidated Subsidiary of a Borrower opining as to the enforceability
of the subordination provisions contained in all Eligible Subordinated Debt, each in form and
substance satisfactory to the Administrative Agent in its discretion;
(h) The Administrative Agent shall be in receipt of good standing certificates with respect to
each Credit Party certified as of a recent date by the appropriate Governmental Authorities of the
state of incorporation or organization, a secretarys certificate (or the equivalent), certified
copies of the Authority Documents and certified copies of the applicable resolutions of each
Borrower and each Guarantor evidencing the corporate or other authority for each Borrower and each
Guarantor with respect to the execution, delivery and performance of the Loan Documents and each of
the other documents to be delivered by each Borrower and each Guarantor from time to time in
connection herewith;
(i) The Administrative Agent is in receipt of certified copies of the Authority Documents of
each Pledged CDO Subsidiary and such other Affiliates and Subsidiaries of the Borrowers and the
Guarantors as the Administrative Agent may request in its discretion and the Authority Documents
for each such Pledged CDO Subsidiary shall permit the pledge of Equity Interests in such entity as
contemplated by the Pledge and Security Agreement;
(j) The Administrative Agent shall have received fully executed Irrevocable Instructions
satisfactory to the Administrative Agent in its discretion;
(k) The Administrative Agent shall be in receipt of an Officers Certificate certifying that
there has been no change in the following since the date of delivery of the copies thereof in
connection with the Original Agreement: Collateral Management Agreements to which ARCM is a party,
all documents related to or governing the payment or the right to receive payment of the CDO
Management Fees, all documents relating to or governing the right of ARSR to receive payments,
dividends and distributions from ARCM, all documents relating to or governing the right of any
Pledged CDO Subsidiary to receive payments, dividends or distributions from a CDO Issuer in any CDO
Issuance, all documents relating to any CDO Equity Distributions and Authority Documents of any CDO
Issuer;
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(l) The Administrative Agent shall have received payment from the Borrowers of the fees
payable under the Fee Letter and the amount of actual costs and expenses, including, without
limitation, the fees and expenses of counsel to the Administrative Agent as contemplated by this
Agreement and the Fee Letter, incurred by the Administrative Agent in connection with the
development, preparation and execution of this Agreement, the other Loan Documents and any other
documents prepared in connection herewith or therewith;
(m) The Administrative Agent shall have received, in form and substance satisfactory to the
Administrative Agent:
(i) searches of Uniform Commercial Code filings in the jurisdiction of the state of
incorporation or formation of each Borrower, in and each jurisdiction where any Collateral
is located or where a filing would need to be made in order to perfect the Administrative
Agents security interest in the Collateral, copies of the financing statements on file in
such jurisdictions and evidence that no Liens exist on the Collateral other than Permitted
Liens;
(ii) UCC financing statements against each Borrower for each appropriate jurisdiction
as is necessary, in the Administrative Agents discretion, to perfect the Administrative
Agents security interest in the Collateral; and
(iii) duly executed consents as are necessary, in the Administrative Agents
discretion, to perfect the Lenders security interest in the Collateral;
(n) There shall not exist any pending or threatened litigation, investigation, injunction,
order or claim affecting or relating to any Borrower, any Guarantor or any of their Consolidated
Subsidiaries, this Agreement, the other Loan Documents or the Collateral that has not been settled,
dismissed, vacated, discharged or terminated prior to the Restatement Date which could reasonably
be expected to result in a Material Adverse Effect;
(o) The corporate capital and ownership structure of the Borrowers, the Guarantor and their
Consolidated Subsidiaries as of the Restatement Date shall be as reflected on
Schedule 4.1(ll);
(p) There shall be no Insolvency Proceedings commenced or threatened to be commenced against
any Borrower or any Guarantor, and, to the best knowledge of each Borrower and each Guarantor,
there shall be no Insolvency Proceedings commenced or threatened to be commenced against any
Affiliate or Subsidiary (other than a Consolidated Subsidiary) of a Borrower or a Guarantor;
(q) The Administrative Agent shall have received copies of such financial statements as the
Administrative Agent may require in its discretion;
(r) Since the date of the most recent financial information provided to the Administrative
Agent, there has been no material adverse change in the business, properties, prospects, operations
or condition (financial or otherwise) of the Borrowers, the Guarantors and their Consolidated
Subsidiaries taken as a whole;
(s) The Administrative Agent shall have received a Closing Certificate executed by a
Responsible Officer of each Borrower and each Guarantor as of the Restatement Date;
(t) The Borrowers and the Guarantors shall have provided to the Administrative Agent, for
benefit of the Administrative Agent and the Initial Lender, the necessary information required by
the Anti-Terrorism Laws, including, without limitation, the identity of the Borrowers, the
Guarantors and
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their Consolidated Subsidiaries, the name and address of the Borrowers, the Guarantors and
their Consolidated Subsidiaries and other information that will allow the Administrative Agent or
the Initial Lender, as applicable, to identify the Borrowers, the Guarantors and their Consolidated
Subsidiaries in accordance with the Anti-Terrorism Laws, together with such other information with
respect to any Arbor Entity that may be required in accordance with the Anti-Terrorism Laws;
(u) No Default, Event of Default or Material Adverse Effect shall exist;
(v) The Administrative Agent shall have completed to its satisfaction such due diligence as it
may require in its discretion; and
(w) The Administrative Agent shall have received all such other and further documents,
certifications, reports, approvals and legal opinions as the Administrative Agent may reasonably
require.
Section 3.2 Conditions Precedent to all Loans.
The obligation of the Initial Lender and any other Lenders to make any Loan hereunder is
subject to the satisfaction of the following further conditions precedent on the date of making
such Loan, both immediately prior to making the Loan and also after giving effect to the
consummation thereof and the intended use of the proceeds of the Loan:
(a) No Applicable Law shall prohibit or render it unlawful, and no order, judgment or decree
of Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into such Loan by
the Lenders in accordance with the provisions hereof or any other transaction contemplated herein;
(b) Each Borrower, each Guarantor and all other applicable Persons shall have delivered to the
Administrative Agent all documents, agreements, certificates, reports and other information
required to be delivered as of the date of such Loan;
(c) The Borrowers shall have delivered a Notice of Borrowing and such other information and
documents requested by the Administrative Agent in connection therewith, all conditions precedent
and other requirements set forth in Article II of this Agreement shall have been satisfied,
and the Administrative Agent shall have approved the Loan;
(d) No Default, Event of Default or Material Adverse Effect shall have occurred and be
continuing;
(e) The Administrative Agent shall have received a Compliance Certificate from a Responsible
Officer of ART and ARSR that, among other things: (i) shows in detail the calculations
demonstrating that, before and after giving effect to the requested Loan, the Availability shall
not be negative, (ii) states that each Borrower and each Guarantor has observed or performed all of
their covenants and other agreements, and satisfied every condition, contained in this Agreement,
the Loan Documents and the related documents to be observed, performed or satisfied by them,
(iii) states that such Responsible Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate, (iv) states that all representations and
warranties contained in this Agreement, the other Loan Documents and all other documents delivered
to the Administrative Agent are true and correct on and as of such day as though made on and as of
such day and shall be deemed to be made on such day, and (v) states that ART is in compliance with
the Financial Covenants;
(f) Before and after giving effect to the requested Loan, the Availability shall not be
negative;
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(g) The Borrowers shall have delivered to the Administrative Agent any and all documents and
agreements relating to the Collateral or the Required Payments entered into since the Restatement
Date, including, without limitation, Collateral Management Agreements, all documents and agreements
related to or governing the payment or the right to receive payment of the CDO Management Fees, all
documents relating to or governing ARSRs right to receive payments, dividends, or distributions
from ARCM, all documents relating to or governing any proposed CDO Issuance, all documents relating
to any CDO Equity Distributions, and all documents and agreements related to or governing the right
of a CDO Subsidiary to receive payments, dividends or distributions from a CDO Issuer in a CDO
Issuance;
(h) The Administrative Agent shall have received all fees and expenses of the Administrative
Agent and the Lenders and counsel to the Administrative Agent and the Lenders as contemplated by
this Agreement and the Fee Letter, and the Administrative Agent and the Lenders shall have received
the reasonable costs and expenses incurred by them in connection with the entering into of any Loan
hereunder, including, without limitation, costs associated with due diligence recording or other
administrative expenses necessary or incidental to any Loan hereunder, which amounts, at the
Administrative Agents option, may be withheld from proceeds of any Loan hereunder;
(i) None of the following shall have occurred and/or be continuing:
(i) an event or events shall have occurred in the good faith determination of the
Administrative Agent resulting in the effective absence of a repo market or related
lending market for purchasing (subject to repurchase) or financing debt obligations
secured by commercial mortgage loans or securities, or an event or events shall have
occurred resulting in the Administrative Agent not being able to finance mortgage assets
through the repo market or lending market with traditional counterparties at rates that
would have been reasonable prior to the occurrence of such event or events;
(ii) an event or events shall have occurred resulting in the effective absence of a
securities market for securities backed by mortgage assets, or an event or events shall
have occurred resulting in the Administrative Agent not being able to sell securities backed
by mortgage assets at prices that would have been reasonable prior to such event or events;
or
(iii) there shall have occurred a material adverse change in the financial condition of
the Administrative Agent or any Lender that affects (or can reasonably be expected to
affect) materially and adversely the ability of the Administrative Agent or any Lender to
fund its obligations under this Agreement.
(j) To the extent the same were not delivered or the Collateral did not exist on the
Restatement Date, the Administrative Agent shall have received with respect thereto fully executed
Irrevocable Instructions satisfactory to the Administrative Agent in its discretion;
(k) Both immediately prior to the requested Loan and also after giving effect thereto and to
the intended use thereof, the representations and warranties made by each Borrower and each
Guarantor shall be true, correct and complete on and as of such Borrowing Date in all material
respects with the same force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made only as of a specific date, as of
such specific date);
(l) The Borrowers and Guarantors shall have delivered any other opinion or closing item that
was, with the written consent of the Administrative Agent, not delivered on the Restatement Date;
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(m) Other conditions to such Loan set forth in this Agreement or the other Loan Documents are
satisfied;
(n) [Reserved];
(o) The Borrowers shall have satisfied, in all respects, all of the conditions precedent set
forth in the Arbor Credit Documents that are applicable to the Additional Collateral and the
related Collateral by virtue of Subsection 2.1(f) of this Agreement;
(p) To the extent the Equity Interests in any other CDO Subsidiary (other than the Pledged CDO
Subsidiaries) are pledged to the Administrative Agent after the Restatement Date, in addition to
all requirements of the Administrative Agent, including such requirements as are necessary for the
Administrative Agent to perfect its security interest in the Equity Interests in such CDO
Subsidiary, the Borrowers shall provide to the Administrative Agent prior to such pledge an Opinion
of Counsel in substantially the form of the Opinion of Counsel provided pursuant to
Subsection 3.1(g)(ii) of this Agreement.
(q) The Administrative Agent shall have received all such other and further documents,
reports, certifications, approvals and legal opinions as the Administrative Agent in its discretion
shall reasonably require.
Each request for a Loan and each acceptance by the Borrowers of any such Loan shall be deemed
to constitute a representation and warranty by the Borrowers as of the date of such Loan that the
applicable conditions contained in Sections 3.1 and 3.2 have been satisfied (as of
the date of the request for a Loan and the Borrowing Date).
The failure of any Borrower or any Guarantor, as applicable, to satisfy any of the foregoing
conditions precedent contained in Article III of this Agreement shall, unless such failure
was expressly waived in writing by the Administrative Agent on or prior to the related Borrowing
Date, give rise to a right of the Lenders, which right may be exercised at any time on the demand
of the Administrative Agent, to rescind the related Loan and direct the Borrowers to pay to the
Administrative Agent for the benefit of the Lenders an amount equal to the principal amount of the
Loan outstanding, the accrued Interest thereon, Breakage Costs and other amounts due in connection
therewith during any such time that any of the foregoing conditions precedent were not satisfied.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties.
Each Borrower and each Guarantor represents and warrants, as of the date of this Agreement and
any Loan hereunder and until the occurrence of a Final Termination, as follows:
(a) Organization and Good Standing. Each Borrowers and each Guarantors exact legal
name is set forth on Schedule 3. Each Borrower and each Guarantor has been duly organized,
and is validly existing as a corporation, partnership or limited liability company, as applicable,
in good standing, under the laws of the state of its corporation or formation, with all requisite,
corporate, partnership or limited liability company, as applicable, power and authority to own or
lease its Properties and conduct its
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business as such business is presently conducted, and had, at all relevant times, and now has,
all necessary power, authority and legal right to acquire, own and pledge the Collateral.
(b) Due Qualification. Each Borrower and each Guarantor is duly qualified to do
business and is in good standing as a corporation, limited partnership or limited liability
company, as applicable, and has obtained all necessary licenses and approvals, in all jurisdictions
in which the ownership or lease of Property or the conduct of its business requires such
qualification, licenses or approvals.
(c) Power and Authority; Due Authorization; Execution and Delivery. Each Borrower and
each Guarantor (i) has all necessary power, authority and legal right (A) to execute and deliver
the Loan Documents to which it is a party, (B) to carry out the terms of the Loan Documents to
which it is a party, and (C) to pledge the Collateral on the terms and conditions provided herein,
(ii) has duly authorized by all necessary corporate, partnership or limited liability company, as
applicable, action (A) the execution, delivery and performance of the Loan Documents to which it is
a party, and (B) the pledge of the Collateral on the terms and conditions herein provided, and
(iii) has duly executed and delivered each Loan Document to which it is a party.
(d) Binding Obligation. Each of the Loan Documents to which the Borrowers and the
Guarantors are a party constitutes the legal, valid and binding obligation of each Borrower and
each Guarantor enforceable against each Borrower and each Guarantor in accordance with its
respective terms, except as such enforceability may be limited by Insolvency Laws and by general
principles of equity (whether considered in a suit at law or in equity).
(e) No Violation. The consummation of the transactions contemplated by the Loan
Documents to which the Borrowers and the Guarantors are a party and the fulfillment of the terms
hereof and thereof will not (i) conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time or both) a default under, any
Borrowers or any Guarantors Authority Documents or any material Indebtedness, Guarantee
Obligation or Contractual Obligation of any Borrower or any Guarantor, (ii) result in the creation
or imposition of any Lien (other than Permitted Liens) upon any Borrowers or any Guarantors
Properties pursuant to the terms of any such Indebtedness, Guarantee Obligation or Contractual
Obligation, other than this Agreement, or (iii) violate any Applicable Law.
(f) No Proceedings. There is no material litigation, proceeding or investigation
pending or, to the best knowledge of each Borrower and each Guarantor, threatened against any
Borrower or any Guarantor, before any Governmental Authority (i) asserting the invalidity or
unenforceability of any of the Loan Documents to which any of the Borrowers or the Guarantors are a
party, (ii) seeking to prevent the consummation of any of the transactions contemplated by any Loan
Documents to which the Borrowers or the Guarantors are a party, or (iii) seeking any determination
or ruling that could reasonably be expected to have Material Adverse Effect.
(g) All Consents Required. All approvals, authorizations, consents, orders or other
actions of any Person or of any Governmental Authority (if any) required for the due execution,
delivery and performance by each Borrower and each Guarantor of the Loan Documents to which the
Borrowers and the Guarantors are a party (including the grant of a security interest in the
Collateral) have been obtained, effected or given and are in full force and effect.
(h) Bulk Sales. The execution, delivery and performance of this Agreement and the
transactions contemplated hereby do not require compliance with any bulk sales act or similar law
by any Borrower.
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(i) Solvency. None of the Borrowers or the Guarantors is the subject of any
Insolvency Proceedings or Insolvency Event. The Loans under this Agreement and any other Loan
Document do not and will not render any Borrower or any Guarantor not Solvent.
(j) Taxes. Each Borrower and each Guarantor has filed or caused to be filed all tax
returns that are required to be filed by it. Each Borrower and each Guarantor has paid or made
adequate provisions for the payment of all Taxes and all assessments made against it or any of its
Property (other than any amount of Tax the validity of which is currently being contested in good
faith by appropriate proceedings and with respect to which reserves in accordance with GAAP have
been provided on the books of a Borrower or a Guarantor), and no tax Lien has been filed and, to
each Borrowers and each Guarantors knowledge, no claim is being asserted, with respect to any
such Tax, fee or other charge.
(k) Exchange Act Compliance; Regulations T, U and X. None of the transactions
contemplated herein will violate or result in a violation of Section 7 of the Exchange Act, or any
regulations issued pursuant thereto, including, without limitation, Regulations T, U and X. No
Borrower owns or intends to carry or purchase, and no proceeds from the Loans will be used to carry
or purchase, any margin stock within the meaning of Regulation U or to extend purpose credit
within the meaning of Regulation U.
(l) Environmental Matters.
(i) No Properties owned or leased by any Borrower or any Consolidated Subsidiary
thereof and, to the knowledge of each Borrower, no Properties formerly owned or leased by
any Borrower or any Consolidated Subsidiary thereof, contain, or have previously contained,
any Materials of Environmental Concern in amounts or concentrations that constitute or
constituted a violation of, or reasonably could be expected to give rise to liability under,
Environmental Laws;
(ii) Each Borrower is in compliance, and has in the last five (5) years (or such
shorter period as each Borrower shall have been in existence) been in compliance, with all
applicable Environmental Laws, and, to the knowledge of each Borrower, there is no violation
of any Environmental Laws that reasonably could be expected to interfere with the continued
operations of each Borrower;
(iii) No Borrower has received any notice of violation, alleged violation,
non-compliance, liability or potential liability under any Environmental Law, nor does any
Borrower have any knowledge that any such notice will be received or is being threatened;
(iv) Materials of Environmental Concern have not been transported or disposed of by any
Borrower in violation of, or in a manner or to a location that reasonably could be expected
to give rise to liability under, any applicable Environmental Law, nor has any of them
generated, treated, stored or disposed of at, on or under any of the Properties in violation
of, or in a manner that reasonably could be expected to give rise to liability under, any
applicable Environmental Law;
(v) No judicial proceedings or governmental or administrative action is pending, or, to
the knowledge of each Borrower, threatened, under any Environmental Law to which any
Borrower is or will be named as a party, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other administrative or judicial
requirements arising out of judicial proceedings or governmental or administrative actions,
outstanding under any Environmental Law to which any Borrower is a party;
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(vi) There has been no release or, to the best knowledge of each of the Borrowers,
threat of release of Materials of Environmental Concern in violation of or in amounts or in
a manner that reasonably could be expected to give rise to liability under any Environmental
Law for which any Borrower may become liable; and
(vii) To the best knowledge of each of the Borrowers, each of the representations and
warranties set forth in the preceding clauses (i) through (vi) is true and
correct with respect to each parcel of real property owned or operated by each Borrower.
(m) Security Interest.
(i) This Agreement and the other Loan Documents constitute a grant of a security
interest in all Collateral to the Administrative Agent, that, upon delivery to the
Administrative Agent of any Collateral that requires possession to perfect (if any) and the
filing of the financing statements described in this Subsection 3.1(m)(ii) in the
jurisdictions and recording offices listed on the Closing Certificate delivered with respect
to the applicable Borrower, shall be a first priority perfected security interest in all
Collateral to the extent such Collateral can be perfected by possession or by filing,
subject only to Permitted Liens;
(ii) Neither the Borrowers nor any Person claiming through or under the Borrowers shall
have any claim to or interest in the Collection Account or the CDO Management Fee Account,
except for the interest of the Borrowers in such Property under this Agreement or as a
debtor for purposes of the UCC;
(iii) The Collateral constitute either a general intangible, an instrument, an
account, investment property, a security, a deposit account, a financial asset, an
uncertificated security, a securities account, a securities entitlement and/or
chattel paper within the meaning of the applicable UCC;
(iv) Other than Permitted Liens, neither the Borrowers nor the Guarantors have sold,
assigned, pledged, encumbered or otherwise conveyed any of the Collateral or any Required
Payment to any Person, and, immediately prior to the pledge to the Administrative Agent, the
Borrowers, as applicable, were the sole owners of such Collateral, and the Borrowers
directly own and have good and marketable title to the Collateral free and clear of any Lien
(other than Permitted Liens);
(v) The Borrowers have received all consents and approvals, if any, required by the
terms of any Collateral to the granting of a security interest in the Collateral hereunder
to the Administrative Agent;
(vi) The Administrative Agent (on behalf of the Account Beneficiaries) shall have
exclusive control of, and the sole right of withdrawal from, the Collection Account, the CDO
Management Fee Account and the deposits and investment property in the foregoing accounts;
(vii) None of the Borrowers have authorized the filing of and none is aware of any
financing statements against any Borrower that includes a description of collateral covering
the Collateral or the Required Payments other than any financing statement (A) that has been
terminated, or (B) filed or to be filed pursuant to the Loan Documents.
(viii) The Borrowers and Guarantors are not aware of the filing of any judgment or tax
Lien filings against any Borrower or any Guarantor; and
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(ix) None of the Collateral has any marks or notations indicating that it has been
pledged, assigned or otherwise conveyed to any Person other than the Administrative Agent.
(n) Location of Offices. Each Borrowers location (within the meaning of Article 9 of
the UCC) is set forth on Schedule 3. The office where each Borrower keep all the records
(within the meaning of Article 9 of the UCC) is at the address set forth on Schedule 3 to
this Agreement (or at such other locations as to which the notice and other requirements specified
in Subsection 5.1(l) shall have been satisfied). Each Borrowers organizational
identification number is set forth in the Closing Certificate.
(o) Tradenames. The Borrowers have no trade names, fictitious names, assumed names or
doing business as names or other names under which it has done or is doing business.
(p) Compliance with Anti-Terrorism Laws. No Borrower nor any Guarantor (i) is or will
be in violation of any Anti-Terrorism Law, (ii) is or will be a Prohibited Person, (iii) conducts
any business or engages in any transaction or dealing with any Prohibited Person, including the
making or receiving any contribution of funds, goods or services to or for the benefit of any
Prohibited Person, (iv) deals in, or otherwise engages in any transaction relating to, any property
or interests in property blocked pursuant to Executive Order No. 13224, (v) engages in or conspires
to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or
attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law, (vi) has more
than 10% of its assets in a Prohibited Person or derives more than 10% of its operating income from
direct or indirect investments in, or transactions with, any Prohibited Person, and (vii) engages
in or will engage in any of the foregoing activities in the future. To the extent applicable, each
Borrower and each Guarantor has established an adequate anti-money laundering compliance program as
required by the Anti-Terrorism Laws, has conducted the requisite due diligence in connection with
the Collateral and the Loans for purposes of the Anti-Terrorism Laws, and maintains, and will
maintain, sufficient information to identify the applicable obligors for purposes of the
Anti-Terrorism Laws. No Collateral is subject to nullification pursuant to any Anti-Terrorism Law,
and no Collateral is in violation of any Anti-Terrorism Law. The proceeds of any Loan have not
been used and shall not be used to fund any operations in, finance any investments or activities in
or make any payments to a Prohibited Person.
(q) Investment Company Act. None of the Borrowers nor the Guarantors is, and none is
controlled by, an investment company within the meaning of the 40 Act, as amended, or the
Borrowers and the Guarantors are exempt from the provisions of the 40 Act.
(r) ERISA. The Borrowers, the Guarantors and each ERISA Affiliate have made all
required contributions to each Benefit Plan subject to Section 412 of the Code, and no application
for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code
has been made with respect to any Benefit Plan. Neither the Borrowers, the Guarantors nor any
ERISA Affiliate have incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan, nor has there
been a complete or partial withdrawal by the Borrowers, the Guarantors or any ERISA Affiliate from
a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization. The present
value of all benefits vested under all employee pension benefit plans, as such term is defined in
Section 3(2) of ERISA, maintained by each Borrower and each Guarantor, or in which employees of any
Borrower or any Guarantor are entitled to participate, as from time to time in effect (herein
called the Pension Plans), does not exceed the value of the assets of the Pension Plan
allocable to such vested benefits (based on the value of such assets as of the last annual
valuation date). No prohibited transactions, accumulated funding deficiencies, withdrawals or
reportable
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events have occurred with respect to any Pension Plans that, in the aggregate, could subject
any Borrower or any Guarantor to any material tax, penalty or other liability. No Lien in favor of
the PBGC or a Pension Plan has arisen or is likely to arise on account of any Pension Plan. No
notice of intent to terminate a Pension Plan under Section 4041(b) of ERISA has been filed, nor has
any Pension Plan been terminated under Section 4041(c) of ERISA, nor has the PBGC instituted
proceedings to terminate or appoint a trustee to administer a Pension Plan, and no event has
occurred or condition exists that might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan.
(s) PUHCA. No Borrower and no Guarantor is a holding company or a subsidiary
holding company of a holding company within the meaning of the Public Utility Holding Company
Act of 1935, as amended, or any successor statute.
(t) Compliance with Law. Each Borrower and Guarantor has complied in all respects
with all Applicable Laws to which it may be subject, and no Collateral or Loan contravenes any
Applicable Laws (including, without limitation, laws, rules and regulations relating to licensing,
usury, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair
debt collection practices and privacy).
(u) Income and Required Payments. Each Borrower and Guarantor acknowledges that all
Income and Required Payments received, after the Restatement Date, by its Affiliates or its
Consolidated Subsidiaries and any Person acting on its behalf with respect to the Collateral shall
be held for the benefit of the Administrative Agent until deposited into the Collection Account as
required herein.
(v) Set-Off, etc. No Collateral has been compromised, adjusted, extended, satisfied,
subordinated, rescinded, set-off or modified by the Borrowers, the Guarantors or any obligor
thereof, and no Collateral is subject to compromise, adjustment, extension (except as set forth in
the related documents provided to the Administrative Agent), satisfaction, subordination,
rescission, set-off, counterclaim, defense, abatement, suspension, deferment, deduction, reduction,
termination or modification, whether arising out of transactions concerning the Collateral or
otherwise, by the Borrowers, the Guarantors or any obligor with respect thereto.
(w) Full Payment. No Borrower has any knowledge of any fact that should lead it to
expect that each Loan will not be paid in full.
(x) Collateral. (i) The security interests granted under the Loan Documents do not
violate any provision of the Collateral, (ii) other than the Governing Documents for ARMS 2004-1
Equity Holdings LLC, ARMS 2005-1 Equity Holdings LLC and ARMS 2006-1 Equity Holdings LLC, the
agreements governing the Collateral do not contain any express or implied prohibitions on pledges
of the Collateral, (iii) the only express or implied prohibitions on pledges of the Collateral
contained in the Governing Documents for ARMS 2004-1 Equity Holdings LLC, ARMS 2005-1 Equity
Holdings LLC and ARMS 2006-1 Equity Holdings LLC are the requirement that the transferor obtain an
Opinion of Counsel opining (x) that the pledge or transfer of the Pledged Collateral will not cause
the CDO Issuer owned by the related CDO Subsidiary to cease to be treated as a QRS or (y) that,
after such transfer, the CDO Issuer will be treated as a foreign corporation that is not engaged in
a trade or business in the United States for United State federal income tax purposes, and (iv) the
agreements governing the Collateral are valid, binding and enforceable against the Borrowers, as
applicable. No Irrevocable Instruction violates any Applicable Law, any Contractual Obligation or
other prohibition and such Irrevocable Instructions are the valid and binding obligations of the
parties thereto.
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(y) Irrevocable Instructions. The Borrowers have delivered each Irrevocable
Instruction required to be delivered by the terms of this Agreement. The Borrowers are not aware
of any Required Payment that has been made after the date of this Agreement but has not been
deposited into the Collection Account.
(z) No Broker. No Borrower or any Guarantor has dealt with any broker, investment
banker, agent or other Person, except for the Administrative Agent (or an Affiliate of the
Administrative Agent), who may be entitled to any commission or compensation in connection with
this Agreement.
(aa) Ability to Perform. No Borrower or Guarantor believes, nor does any Borrower or
any Guarantor have any reason or cause to believe, that it cannot perform each and every agreement
and covenant contained in the Loan Documents applicable to it to which it is a party.
(bb) No Default. No Default or Event of Default or any Material Adverse Effect has
occurred and is continuing hereunder.
(cc) Financial Condition.
(i) The consolidated balance sheet of ART and its Consolidated Subsidiaries provided to
the Administrative Agent and the related consolidated statements of income and retained
earnings and of cash flows, copies of which have heretofore been furnished to the
Administrative Agent, are complete and correct and present fairly the consolidated financial
condition of ART and its Consolidated Subsidiaries as at such date, and the consolidated
results of their operations and their consolidated cash flows as of the date of such
financial statements and other information. All such financial statements, including the
related schedules and notes thereto (if any), have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as disclosed therein). Except
as set forth on Schedule 4.1(cc) attached hereto, neither ART nor any of its
Consolidated Subsidiaries had, at the date of the most recent balance sheet referred to
above, any material contingent liability or liability for taxes, or any long term lease or
unusual forward or long term commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction or other financial derivative, that is not
reflected in the foregoing statements or in the notes thereto. During the period from the
date of the financial statements and other financial information delivered to the
Administrative Agent, to and including the date hereof, there has been no sale, transfer or
other disposition by ART or any of its Consolidated Subsidiaries of any material part of its
business or property and no purchase or other acquisition of any business or property
(including any Equity Interests of any other Person) material in relation to the
consolidated financial condition of ART and its Consolidated Subsidiaries on the date
hereof.
(ii) The operating forecast and cash flow projections of ART and its Consolidated
Subsidiaries, copies of which have heretofore been furnished to the Administrative Agent,
have been prepared in good faith under the direction of a Responsible Officer of ART and in
accordance with GAAP. ART has no reason to believe that as of the date of delivery thereof
such operating forecast and cash flow projections are materially incorrect or misleading in
any material respect or omit to state any material fact which would render them misleading
in any material respect. ART shall not be required to provide information in its
projections if the disclosure of such information would violate Applicable Laws relating to
insider trading.
(dd) Compliance with Covenants. ART is in full compliance with the Financial
Covenants and all other Borrowers and Guarantors are in full compliance with all other applicable
covenants, duties and agreements contained in the Loan Documents.
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(ee) Collateral Agreements. The Borrowers have delivered to the Administrative Agent
all documents and agreements related to, governing or affecting the Collateral, including, without
limitation, Collateral Management Agreements, all documents related to or governing the payment or
the right to receive payment of the CDO Management Fees, all documents relating to any CDO Issuance
or proposed CDO Issuance, all Authority Documents of any CDO Subsidiary, all documents and
agreements relating to any CDO Equity Distributions and all documents relating to a CDO
Subsidiarys right to receive payments or distributions from a CDO Issuer in any CDO Issuance, and,
to the best of the Borrowers knowledge, no material default or event of default exists thereunder.
(ff) Existing Financing Facilities. All credit facilities, repurchase facilities or
substantially similar facilities of each Borrower that are presently in effect are listed under the
definition of Existing Financing Facilities or are Trust Preferred Debt. To each Borrowers
knowledge, no material defaults or events of default exist thereunder. Other than the Wachovia
Indebtedness, other Indebtedness not prohibited under Section 5.1, Indebtedness under Existing
Financing Facilities, any Trust Preferred Debt and any other recourse Indebtedness approved by the
Administrative Agent after the Restatement Date (including, without limitation, any Permitted
Credit Facility), no Borrower has any Indebtedness that is recourse Indebtedness.
(gg) True and Complete Disclosure. To each Borrowers and each Guarantors actual
knowledge, the information, reports, certificates, documents, financial statements, books, records,
files, exhibits and schedules furnished in writing by or on behalf of each Borrower and each
Guarantor to the Administrative Agent in connection with the negotiation, preparation or delivery
of this Agreement and the other Loan Documents or included herein or therein or delivered pursuant
hereto or thereto, when taken as a whole, do not contain any untrue statement of material fact or
omit to state any material fact necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading. All written information furnished after
the date hereof by or on behalf of each Borrower and each Guarantor to the Administrative Agent and
the Lender in connection with this Agreement and the other Loan Documents and the transactions
contemplated hereby and thereby will be true, complete and accurate in every material respect, or
(in the case of projections) based on reasonable estimates, on the date as of which such
information is stated or certified. There is no fact known to a Responsible Officer of any
Borrower or any Guarantor, after due inquiry, that could reasonably be expected to have a Material
Adverse Effect that has not been disclosed to the Administrative Agent. All projections furnished
on behalf of each Borrower and each Guarantor to the Administrative Agent were prepared and
presented in good faith by or on behalf of each Borrower and each Guarantor.
(hh) No Reliance. Each Borrower has made its own independent decisions to enter into
the Loan Documents and each Loan and as to whether such Loan is appropriate and proper for it based
upon its own judgment and upon advice from such advisors (including, without limitation, legal
counsel and accountants) as it has deemed necessary. No Borrower is relying upon any advice from
the Administrative Agent or any Lender as to any aspect of the Loans, including, without
limitation, the legal, accounting or tax treatment of such Loans.
(ii) Insurance. Each Borrower has and maintains, with respect to its Properties and
business, insurance which meets the requirements of Subsection 5.1(bb).
(jj) Collateral. (i) There are no outstanding rights, options, warrants or agreements
for the purchase, sale or issuance of the Collateral created by, through, or as a result of any
Borrowers or Guarantors actions or inactions; and (ii) there are no agreements on the part of any
Borrower or any Guarantor to issue, sell or distribute the Collateral, other than this Agreement.
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(kk) No Change. Since December 31, 2006, there has been no development or event, nor
any prospective development or event, which has had or could reasonably be expected to have a
Material Adverse Effect.
(ll) Subsidiaries. The organizational chart attached as Schedule 4.1(ll) sets
forth the name of each Consolidated Subsidiary of each Borrower.
(mm) Labor Relations. No Borrower is engaged in any unfair labor practice which could
reasonably be expected to have a Material Adverse Effect. There is (i) no unfair labor practice
complaint pending or, to the best knowledge of each of the Borrowers, threatened against any
Borrower before the National Labor Relations Board which could reasonably be expected to have a
Material Adverse Effect and no grievance or arbitration proceeding arising out of or under a
collective bargaining agreement is so pending or, to the knowledge of any Borrower, threatened,
(ii) no strike, labor dispute, slowdown or stoppage pending or, to the best knowledge of each
Borrower, threatened against any Borrower, and (iii) no union representation question existing with
respect to the employees of a Borrower and to the knowledge of each Borrower, no union organizing
activities are taking place with respect to any thereof.
(nn) REIT Status. ART is a REIT, a publicly traded company that is listed, quoted or
traded on and is in good standing in respect of the New York Stock Exchange, NASDAQ or any other
nationally recognized stock exchanges (each, a Stock Exchange) and is not subject to any
ratings downgrade by any Rating Agency. ARSR is a REIT. ART has not engaged in any material
prohibited transactions as defined in Section 857(b)(6)(B)(iii) and (C) of the Code. ART for its
current tax year (as defined in the Code) is and for all prior tax years subsequent to its
election to be a REIT has been entitled to a dividends paid deduction under the requirements of
Section 857 of the Code with respect to any dividends paid by it with respect to each such year for
which it claims a deduction in its Form 1120-REIT filed with the United States Internal Revenue
Service for such year.
(oo) Certain Tax Matters. Each Borrower represents and warrants, and acknowledges and
agrees, that it does not intend to treat the Loans and the related transactions hereunder as being
a reportable transaction (within the meaning of United States Treasury Department Regulation
Section 1.6011-4). In the event a Borrower determines to take any action inconsistent with such
intention, it will promptly notify the Administrative Agent and the Lenders. If a Borrower so
notifies the Administrative Agent and the Lenders, the Borrower acknowledges and agrees that the
Administrative Agent and the Lenders may treat the Loans as part of a transaction that is subject
to United States Treasury Department Regulation Section 301.6112-1, and the Administrative Agent
and the Lenders will maintain the lists and other records required by such Treasury Regulation.
(pp) Insider. No Borrower is an executive officer, director, or person who
directly or indirectly or acting through or in concert with one or more persons owns, controls, or
has the power to vote more than 10% of any class of voting securities (as those terms are defined
in 12 U.S.C. § 375(b) or in regulations promulgated pursuant thereto) of any Lender, of a bank
holding company of which any Lender is a subsidiary, or of any subsidiary, of a bank holding
company of which any Lender is a subsidiary, of any bank at which any Lender maintains a
correspondent account or of any Lender which maintains a correspondent account with any Lender.
(qq) No Defenses. There are no defenses, offsets, counterclaims, abatements, rights
of rescission or other claims, legal or equitable, available to any Borrower or any Guarantor with
respect to this Agreement, the Loan Documents, the Collateral or any other instrument, document
and/or agreement described herein or in the other Loan Documents, or with respect to the obligation
of the Borrowers to repay the Aggregate Unpaids or any other obligation under the Loan Documents.
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(rr) Use of Proceeds. The proceeds of the Loans shall be used by the Borrowers solely
for the purpose requested and for no other purpose.
(ss) Compliance with FCPA. Each of the Borrowers and their Subsidiaries is in
compliance with the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq., and any foreign
counterpart thereto. None of the Borrowers or their Subsidiaries has made a payment, offering, or
promise to pay, or authorized the payment of, money or anything of value (a) in order to assist in
obtaining or retaining business for or with, or directing business to, any foreign official,
foreign political party, party official or candidate for foreign political office, (b) to a foreign
official, foreign political party or party official or any candidate for foreign political office,
and (c) with the intent to induce the recipient to misuse his or her official position to direct
business wrongfully to such Borrower or its Subsidiary or to any other Person, in violation of the
Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq.
(tt) Additional Collateral. All of the representations and warranties under the Arbor
Credit Facility that are applicable to the Additional Collateral and the related Collateral by
virtue of Subsection 2.1(f) of this Agreement, including, without limitation, the
representations and warranties in Article III and Schedule 1.1(c) to the Arbor
Credit Agreement, in any Security Document (as defined in the Arbor Credit Agreement) or in any
Confirmation for any Additional Collateral, are true and correct in all respects, except as may be
specified in the applicable Confirmation.
(uu) Eligible Subordinated Debt. All of the Trust Preferred Debt (i) has
subordination provisions substantially the same as those in the indentures for other transactions
listed in clause (i) of the definition of Eligible Subordinated Debt, (ii) has enforceable
subordination provisions, and (iii) has a maturity no earlier than the date that is six (6) months
following the Facility Maturity Date. To the extent any Eligible Subordinated Debt was issued
after the Closing Date, it has been specifically approved in writing by the Administrative Agent.
(vv) [Reserved].
(ww) Repurchase of Debt. The Borrowers and the Guarantors are in full compliance with
the covenants set forth in Subsection 5.1(uu) of this Agreement.
ARTICLE V
COVENANTS
Section 5.1 Covenants.
Each Borrower and each Guarantor hereby covenants and agrees that on the Restatement Date and
thereafter until the occurrence of a Final Termination, to the extent applicable:
(a) Compliance with Laws and Contracts. Each Borrower and each Guarantor shall comply
in all material respects with all Applicable Laws (including Environmental Laws), including,
without limitation, those with respect to the Collateral or any part thereof, and comply with and
perform in all material respects all of their Contractual Obligations, all Indebtedness, all
Guarantee Obligations and all Borrower-Related Obligations.
(b) Preservation of Company Existence. Each Borrower and each Guarantor shall
preserve and maintain its corporate, partnership or limited liability company, as applicable,
existence, rights, franchises and privileges in the jurisdiction of its formation and will qualify
and remain qualified in good
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standing as a corporation, limited partnership or limited liability company, as applicable, in
each jurisdiction where the failure to preserve and maintain such existence, rights, franchises,
privileges and qualification has had, or could reasonably be expected to have, a Material Adverse
Effect.
(c) Performance and Compliance with Collateral. The Borrowers and the Guarantors
shall, at their expense, timely and fully perform and comply (and shall cause their Consolidated
Subsidiaries to timely and fully perform and comply) with all provisions, covenants and other
promises required to be observed by them under the Collateral and all other agreements related to
such Collateral.
(d) Keeping of Records and Books of Account. Each Borrower and Guarantor shall
maintain and implement administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing the Collateral in the event of the destruction of the
originals thereof) and will keep and maintain all documents, books, records and other information
reasonably necessary or advisable in which complete entries are made in accordance with GAAP and
Applicable Laws.
(e) Delivery of Income and Required Payments. The Borrowers and the Guarantors shall
deposit, and shall cause each of their Consolidated Subsidiaries and all other Persons to deposit,
all Income, Required Payments and other amounts payable to the Borrowers in respect of the
Collateral into the Collection Account within two (2) Business Days of such Persons receipt
thereof; provided, however, the CDO Management Fees shall first be deposited into
the CDO Management Fee Account and then swept to the Collection Account. The Borrowers shall
deposit, or cause to be deposited, into the Collection Account, on or before the date required by
the Loan Documents, all other amounts required by the terms of the Loan Documents. The Borrowers
and Guarantors shall provide the Administrative Agent with fully executed copies of all Irrevocable
Instructions required by this Agreement. The Borrowers and the Guarantors shall take steps
necessary to enforce such Irrevocable Instructions and shall immediately inform the Administrative
Agent of, and rectify any default, breach, failure or unwillingness to perform thereunder, any
dispute or controversy in connection therewith or any other matter that may, could or will result
in payments not being made as contemplated under the terms of such Irrevocable Instructions. The
Borrowers and the Guarantors shall not, and shall not permit any Consolidated Subsidiary to, modify
or revoke or permit any modifications or revocations of the Irrevocable Instructions without the
Administrative Agents prior written consent in its discretion. The Borrowers shall deliver such
other Irrevocable Instructions as the Administrative Agent may require in its discretion. All
distributions from the Collection Account and the CDO Management Fee Account shall be made solely
in accordance with the terms, provisions and conditions of this Agreement and the Account Control
Agreement, if any.
(f) Events of Default. Each Borrower and each Guarantor shall provide the
Administrative Agent with immediate written notice of the occurrence of each Event of Default and
each Default of which any Borrower or any Guarantor has knowledge or have received notice. In
addition, no later than two (2) Business Days following any Borrowers or Guarantors knowledge or
notice of the occurrence of any Event of Default or Default, the Borrowers shall provide to the
Administrative Agent a written statement of a Responsible Officer of the Borrowers setting forth
the details of such event and the action that the Borrowers or Guarantors, as applicable, propose
to take with respect thereto.
(g) Perfection. With respect to the Collateral, the Borrowers shall (i) take all
action necessary to perfect, protect and more fully evidence the Administrative Agents first
priority perfected security interest in the Collateral, including, without limitation, (A) filing
and maintaining effective financing statements against the Borrowers in all necessary or
appropriate filing offices, and filing continuation statements, amendments or assignments with
respect thereto in such filing offices, (B) executing or causing to be executed such other
instruments, notices or control agreements as may be necessary or appropriate, and (C) to the
extent that anyone other than Wachovia Bank, National Association is the Administrative Agent,
entering into an Account Control Agreement, and (ii) taking all
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additional action that the Administrative Agent may reasonably request to perfect, protect and
more fully evidence the respective interests of the parties to this Agreement and the Loan
Documents in such Collateral. To the extent any Collateral is created or comes into existence
after the Restatement Date (including, without limitation, any CDO Issuance by a Consolidated
Subsidiary of a Borrower), the Borrowers shall take such actions as the Administrative Agent shall
require to obtain a first priority perfected security interest in such Collateral.
(h) Security Interests. The Borrowers and Guarantors shall not sell, pledge, assign
or transfer to any other Person, or grant, create, incur, assume, suffer or permit to exist any
Lien on all or any portion of the Collateral or the Required Payments, other than Permitted Liens,
whether now existing or hereafter transferred hereunder, or any interest therein, and the Borrowers
and Guarantors shall not sell, pledge, assign or suffer to exist any Lien, or any circumstance
which, if adversely determined, would be reasonably likely to give rise to a Lien, on its interest,
if any, hereunder or under the other Loan Documents. Immediately upon notice to any Borrower of a
Lien or any circumstance which, if adversely determined would be reasonably likely to give rise to
a Lien (other than in favor of the Administrative Agent or created by or through the Administrative
Agent), on all or any portion of the Collateral or the Required Payments, the Borrowers shall
notify the Administrative Agent and the Borrowers shall further defend the Collateral and the
Required Payments against, and will take such other action as is necessary to remove, any Lien or
claim on or to the Collateral or the Required Payments (other than any Permitted Liens created
under this Agreement), and the Borrowers shall defend the right, title and interest of such
Borrower in and to any of the Collateral and the Required Payments against the claims and demands
of all Persons whomsoever.
(i) Collateral Not to be Evidenced by Instruments. No Borrower nor any Guarantor
shall take any action to cause all or any portion of the Collateral that is not, as of the
applicable Borrowing Date, evidenced by an Instrument to be so evidenced except, with the
Administrative Agents consent, in connection with the enforcement or collection of such
Collateral.
(j) Notices. Each of the Borrowers shall furnish notice to the Administrative Agent
with respect to the following:
(i) Representations. Immediately upon notice or knowledge thereof, each
Borrower shall notify the Administrative Agent if any representation or warranty set forth
in Section 4.1 of this Agreement, any Loan Document or in any other document or
certificate delivered to the Administrative Agent or any asset level representation or
warranty with respect to the Additional Collateral was incorrect at the time it was given or
deemed to have been given;
(ii) Proceedings. As soon as possible and in any event within three (3)
Business Days after notice or knowledge thereof, notice of any settlement of, material
judgment (including a material judgment with respect to the liability phase of a bifurcated
trial) in or commencement of any labor controversy (of a material nature), litigation,
action, suit, arbitration or proceeding before any court or governmental department,
commission, board, bureau, agency, arbitrator, investigation or instrumentality, domestic or
foreign, affecting (A) the Collateral or any Required Payment, (B) the Loan Documents,
(C) the Administrative Agents interest in the Collateral or any Required Payment, or
(D) any Borrower, any Guarantor or any of their Consolidated Subsidiaries and, with respect
to this clause (D) only, the amount in controversy exceeds $250,000;
(iii) REIT Status. Promptly upon notice or knowledge thereof, notice of any
change in ARTs, ARSRs, or any CDO Issuers status as a REIT, private REIT, QRS or taxable
REIT subsidiary, as applicable, or ARTs membership or good standing on any Stock Exchange;
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(iv) Liens. Promptly upon receipt of notice or knowledge of any Lien on, or
claim asserted against, any Collateral or any Required Payments other than Permitted Liens;
(v) CDO Issuance. Promptly upon notice or knowledge thereof, notice of any
downgrade, or potential downgrade (including any placement on a watch list) by Moodys or
S&P of any CDO Issuance involving the Pledged Collateral.
(vi) Defaults. Promptly upon notice or knowledge thereof, notice of (A) any
material default (beyond any applicable notice and cure period) related to all or any
portion of the Collateral, (B) any default (beyond any applicable notice and cure period)
under any Contractual Obligation, Indebtedness or Guarantee Obligation of any Borrower, any
Guarantor or any of their Consolidated Subsidiaries, which, if not cured, could reasonably
be expected to have a Material Adverse Effect and (C) any default or event of default under
any Borrower-Related Obligation;
(vii) Collateral Managers. Immediately upon notice or knowledge thereof,
notice of the change in status, removal, resignation, termination or replacement of ARCM as
Collateral Manager under a Collateral Management Agreement or to the extent any Person other
than ARCM executes or is appointed as Collateral Manager under any Collateral Management
Agreement;
(viii) Sales. Promptly upon notice or knowledge thereof, notice of the
conveyance, sale, lease, assignment, transfer or other disposition (any such transaction, or
related series of transactions, a Sale) of any Property, business or assets of any
Borrower or any Guarantor whether now owned or hereafter acquired, with the exception of
(A) this Agreement, (B) any Sale of Property by any Borrower or any Guarantor that is not
material to the conduct of its business and is effected in the ordinary course of business,
(C) any sale to a Consolidated Subsidiary, and (D) sales by ARSR or any special purpose
entity Subsidiary of ARSR of loans, participations and/or preferred equity interests
(including, without limitation, any sale under any repurchase facility or pledge or
collateral assignment under any warehouse facility);
(ix) Ratings. Promptly upon notice or knowledge thereof, notice of the
establishment of a rating assigned to the long-term unsecured debt issued by any Borrower or
any Guarantor by Moodys or S&P (or other rating agency acceptable to the Administrative
Agent) and of any downgrade in such rating once established;
(x) Covenants. Promptly upon notice or knowledge thereof, notice of any
violation or breach of any covenant, duty or agreement contained in any Loan Document;
(xi) Losses. Promptly upon notice or knowledge thereof, notice of any loss,
expected loss or material change in the value of any Collateral, any Required Payment, any
Property or asset of any Borrower, any Guarantor or any Consolidated Subsidiary of a
Borrower (to the extent that such loss with respect to any such Property or asset could
reasonably be expected to have a Material Adverse Effect), any determination by the
Collateral Manager that any asset in a CDO Issuance related to the Collateral is a Defaulted
Security or a Credit Risk Security, or any other event or change in circumstances or
expected event or change in circumstances that could reasonably be expected to result (A) in
a default with respect to any underlying asset relating to the Collateral (other than any
asset in a CDO Issuance related to the Collateral), or (B) in a material decline in value or
cash flow of any Collateral (other than any asset in a CDO Issuance related to the
Collateral), any Required Payment, Property or asset (to the extent that such event
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or change with respect to any such Property or asset could reasonably be expected to
have a Material Adverse Effect); and
(xii) Material Events. Promptly upon notice or knowledge thereof, notice of
any other event or circumstances that, in the reasonable judgment of any Borrower, is likely
to have a Material Adverse Effect.
Each notice pursuant to this Subsection 5.1(j) shall be accompanied by a statement of a
Responsible Officer of the Borrowers setting forth details of the occurrence referred to therein
and stating what action the Borrowers have taken or proposes to take with respect thereto.
(k) Deposits to Accounts. The Borrowers will not deposit or otherwise credit, or
cause or permit to be so deposited or credited, to the Collection Account or the CDO Management Fee
Account cash or cash proceeds other than Income in respect of Collateral, Required Payments or any
other amounts authorized or required under this Agreement or the other Loan Documents to be
deposited therein.
(l) Change of Name or Location of Loan Files. No Borrower nor any Guarantor shall
(i) change its name, organizational number, identity, structure or jurisdiction of formation, move
the location of its principal place of business and chief executive office, or change the offices
where it keeps the records (as defined in the UCC) from the location referred to in
Subsection 4.1(n), or (ii) as applicable, move, or consent to any Person moving, the
Collateral from the location thereof on the Restatement Date, unless the Borrowers and Guarantors
have given at least thirty (30) days prior written notice to the Administrative Agent and have
taken all actions required under the UCC of each relevant jurisdiction in order to continue the
first priority perfected security interest of the Administrative Agent in the Collateral.
(m) ERISA Matters. No Borrower nor any Guarantor shall (i) engage or permit any ERISA
Affiliate to engage in any prohibited transaction for which an exemption is not available or has
not previously been obtained from the United States Department of Labor, (ii) permit to exist any
accumulated funding deficiency, as defined in Section 302(a) of ERISA and Section 412(a) of the
Code, or funding deficiency with respect to any Benefit Plan other than a Multiemployer Plan,
(iii) fail to make any payments to a Multiemployer Plan that any Borrower, any Guarantor or any
ERISA Affiliate may be required to make under the agreement relating to such Multiemployer Plan or
any law pertaining thereto, (iv) terminate any Benefit Plan so as to result in any liability,
(v) permit to exist any occurrence of any Reportable Event or (vi) otherwise violate the provisions
of ERISA or the Code with respect to any Benefit Plan.
(n) Compliance with Anti-Terrorism Laws. The Borrowers and the Guarantors shall
comply with all applicable Anti-Terrorism Laws. The Borrowers and the Guarantors shall conduct the
requisite due diligence in connection with the origination or acquisition of the Collateral and any
assets or Property for purposes of complying with the Anti-Terrorism Laws, including with respect
to the legitimacy of the applicable obligor or account debtor and the origin of the assets used by
the said obligor or account debtor to purchase the property in question, and will maintain
sufficient information to identify the applicable obligor or account debtor for purposes of the
Anti-Terrorism Laws. No Borrower, Guarantor nor any Consolidated Subsidiary thereof shall engage
in any conduct described in Subsection 4.1(p). The Borrowers and the Guarantors shall,
upon the request of the Administrative Agent from time to time, provide certification and other
evidence of the Borrowers, the Guarantors and their Consolidated Subsidiaries compliance with
this Subsection 5.1(n).
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(o) Financial Statements. The Borrowers and the Guarantors, as applicable, shall
deliver to the Administrative Agent:
(i) as soon as available, and in any event within forty-five (45) calendar days after
the end of each fiscal quarter of ART, the unaudited consolidated and consolidating balance
sheets of ART and its Consolidated Subsidiaries as at the end of such period and the related
unaudited consolidated statements of income and retained earnings and of cash flows for ART
and its Consolidated Subsidiaries for such period and the portion of the fiscal year through
the end of such period, accompanied by a certificate of a Responsible Officer of ART, which
certificate shall state that said consolidated financial statements fairly present in all
material respects the consolidated financial condition and results of operations of ART and
its Consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end
of, and for, such period (subject to normal year-end adjustments);
(ii) as soon as available, and in any event within one hundred twenty (120) days after
the end of each fiscal year of ART, the audited consolidated balance sheets of ART and its
Consolidated Subsidiaries as at the end of such fiscal year and the related consolidated
statements of income and retained earnings and of cash flows for ART and its Consolidated
Subsidiaries for such year, setting forth in each case in comparative form the figures for
the previous year, accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall not be qualified as to
scope of audit or going concern and shall state that said consolidated financial statements
fairly present the consolidated financial condition and results of operations of ART and its
Consolidated Subsidiaries as at the end of, and for, such fiscal year in accordance with
GAAP;
(iii) [Reserved];
(iv) from time to time such other information regarding the financial condition,
operations, business, Properties or assets of the Borrowers and the Guarantors as the
Administrative Agent may reasonably request;
(v) as soon as reasonably possible, and in any event within thirty (30) days after a
Responsible Officer of the Borrowers or Guarantors knows, or with respect to any Plan or
Multiemployer Plan to which the Borrowers, the Guarantors or any ERISA Affiliate makes
direct contributions, has reason to believe, that any of the events or conditions specified
below with respect to any Plan or Multiemployer Plan has occurred or exists, a statement
signed by a senior financial officer of the Borrowers or the Guarantors setting forth
details respecting such event or condition and the action, if any, that the Borrowers, the
Guarantors or their ERISA Affiliate proposes to take with respect thereto (and a copy of any
report or notice required to be filed with or given to the PBGC by the Borrowers, the
Guarantors or an ERISA Affiliate with respect to such event or condition):
(A) any Reportable Event (provided that a failure to meet the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA or any successor
provision thereof, including, without limitation, the failure to make on or before
its due date a required installment under Section 412(m) of the Code or
Section 302(e) of ERISA or any successor provision thereof, shall be a Reportable
Event regardless of the issuance of any waivers in accordance with Section 412(d)
of the Code or any successor provision thereof); and any request for a waiver under
Section 412(d) of the Code or any successor provision thereof for any Plan;
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(B) the distribution under Section 4041(c) of ERISA or any successor provision
thereof of a notice of intent to terminate any Plan or any action taken by any
Borrower, any Guarantor or an ERISA Affiliate to terminate any Plan;
(C) the institution by the PBGC of proceedings under Section 4042 of ERISA or
any successor provision thereof for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by any Borrower, any Guarantor or
any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been
taken by the PBGC with respect to such Multiemployer Plan;
(D) the complete or partial withdrawal from a Multiemployer Plan by any
Borrower, any Guarantor or any ERISA Affiliate that results in liability under
Section 4201 or 4204 of ERISA or any successor provision thereof (including the
obligation to satisfy secondary liability as a result of a purchaser default) that
would have a Material Adverse Effect or the receipt by any Borrower, any Guarantor
or any ERISA Affiliate of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or any
successor provision thereof or that it intends to terminate or has terminated under
Section 4041A of ERISA or any successor provision thereof;
(E) the institution of a proceeding by a fiduciary of any Multiemployer Plan
against any Borrower, any Guarantor or any ERISA Affiliate to enforce Section 515 of
ERISA or any successor provision thereof, which proceeding is not dismissed within
thirty (30) days; and
(F) the adoption of an amendment to any Plan that would result in the loss of
tax exempt status of the trust of which such Plan is a part if any Borrower, any
Guarantor or an ERISA Affiliate fails to provide timely security to such Plan in
accordance with the provisions of Section 401(a)(29) of the Code or Section 307 of
ERISA or any successor provision thereof; and
(vi) all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be, and disclosed therein).
(p) Certificates; Other Information. The Borrowers and the Guarantors, as applicable,
shall furnish to the Administrative Agent:
(i) concurrently with the delivery of the financial statements referred to in
Subsections 5.1(o)(i) and (ii) above and in connection with the delivery of
each Notice of Borrowing, a Compliance Certificate from a Responsible Officer of each of ART
and ARSR, which Compliance Certificate shall, among other things, on a quarterly basis
describe in detail the calculations supporting the Responsible Officers certification of
ARTs compliance with the Financial Covenants;
(ii) as soon as available, but in any event not later than one hundred twenty (120)
days after the end of each fiscal year of the Borrowers, and provided that the disclosure
does not violate Applicable Laws relating to insider trading, a copy of the projections of
the Borrowers (if any) of the operating budget and cash flow budget of Borrowers (if any),
for the succeeding fiscal
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year, such projections to be accompanied by a certificate of a Responsible Officer
certifying that such projections have been prepared in good faith based upon reasonable
assumptions;
(iii) promptly upon receipt thereof, copies of all reports submitted to any of the
Borrowers (if any) by independent certified public accountants in connection with each
annual, interim or special audit of the books and records of the Borrowers (if applicable)
made by such accountants, including, without limitation, any management letter commenting on
any Borrowers internal controls submitted by such accountants to management in connection
with their annual audit;
(iv) within thirty (30) days after the same are sent, copies of all financial
statements, reports, notices and other documents that any Borrower or any Guarantor sends to
its stockholders and, within thirty (30) days after the same are filed, copies of all
financial statements and reports that any Borrower and/or any Guarantor may make to, or file
with, the Securities and Exchange Commission or any successor or analogous Governmental
Authority;
(v) with respect to the Collateral, any and all documents, certificates, agreements,
instruments, reports or notices received by or available to any Borrower or any Guarantor
within three (3) Business Days of the receipt or availability thereof;
(vi) any and all information, documents and reports regarding the Collateral
(including, without limitation, information regarding the CDO Issuances relating to the
Collateral, including information relating to any ratings downgrade, any Credit Risk
Security, any Defaulted Security or other material events, actions or conditions affecting
such CDO Issuance), any future Collateral and the Required Payments as the Administrative
Agent may require in its discretion;
(vii) to the extent not prohibited by Applicable Law, the Borrowers shall promptly
provide the Administrative Agent with copies of all documents that the Borrowers, the
Guarantors or any Consolidated Subsidiary thereof are required to file with any regulatory
body in accordance with its regulations;
(viii) upon request, an update to the organizational chart attached hereto as
Schedule 4.1(ll);
(ix) promptly upon entering into an engagement letter or commitment or otherwise
documenting any proposed Debt Issuance or Equity Issuance, a notice containing information
regarding any proposed Debt Issuance or Equity Issuance, including, without limitation, the
parties involved, the expected closing date, the amount to be received in connection
therewith and such other information as the Administrative Agent may request in its
discretion;
(x) to the extent not previously delivered hereunder, within five (5) Business Days of
the end of each calendar quarter, an Officers Certificate regarding the Projected
Collateral Cash Flow for each of the next four (4) calendar quarters;
(xi) at such time as the Administrative Agent shall request and, in any event, within
five (5) Business Days of the end of each calendar month, an Officers Certificate regarding
compliance with the Availability and the calculation thereof and/or any update that the
Administrative Agent may request with respect to the Officers Certificate regarding the
Projected Collateral Cash Flow;
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(xii) promptly upon their becoming available, copies of (i) all press releases and
other statements made available generally by any Borrower to the public concerning material
developments in the business of any Borrower or any Consolidated Subsidiary of a Borrower
and (ii) any non-routine correspondence or official notices received by any Borrower or any
Consolidated Subsidiary of a Borrower from any Governmental Authority which regulates the
operations of any Borrower or any Consolidated Subsidiary of a Borrower which is likely to
have a Material Adverse Effect;
(xiii) notice of the passage of any bill by the United States Senate or United States
House of Representatives that any Borrower, Guarantor or any Affiliate of the foregoing
becomes aware of that would result in any Tax Law Change;
(xiv) upon request, any and all information, documents and reports regarding any
proposed Permitted Credit Facility as the Administrative Agent may require in its reasonable
discretion;
(xv) as soon as possible and in any event within thirty (30) days after the closing of
any Permitted Credit Facility, fully executed copies of all loan documentation for any such
Permitted Credit Facility; and
(xvi) promptly, such additional financial and other information (including, without
limitation, any watch lists, impairment reporting, concentration lists or investor reports)
as the Administrative Agent may from time to time reasonably request.
(q) Existence, etc. Each Borrower shall:
(i) continue to engage in business of the same general type as now conducted by it and
maintain and preserve its legal existence and all of its material rights, privileges,
licenses and franchises necessary for the operation of its business; provided,
however, that nothing in this Subsection 5.1(q) shall prohibit any
transaction expressly permitted under Subsection 5.1(r);
(ii) pay and discharge all taxes, assessments and governmental charges or levies
imposed on it or on its income or profits or on any of its Property prior to the date on
which penalties attach thereto, except for any such tax, assessment, charge or levy the
payment of which is being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained in accordance with GAAP; and
(iii) permit representatives of the Administrative Agent, upon reasonable notice
(unless a Default or Event of Default shall have occurred and is continuing, in which case,
no prior notice shall be required) during normal business hours and at the expense of the
Borrowers, to examine, copy and make extracts from any Borrower, the Guarantors or any of
their Subsidiarys books and records, to inspect any of their Properties, and to discuss its
business and affairs with their officers, employees and independent accountants, all to the
extent reasonably requested by the Administrative Agent.
(r) Prohibition of Fundamental Changes. No Borrower nor any Guarantor shall enter
into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation, winding up or dissolution) or sell all or substantially all of
its assets (other than in connection with a CDO Issuance); provided, however, that
any Borrower and any Guarantor may merge or consolidate with (i) any wholly owned Subsidiary of
such Borrower or such Guarantor, respectively, or
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(ii) any other Person if the Borrower or the Guarantor, as applicable, is the surviving
entity; and provided, further, that, if after giving effect thereto, no Default or
Event of Default would exist hereunder.
(s) Loans with Affiliates. Each Borrower and Guarantor may enter into any transaction
with an Affiliate; provided, that such transaction is upon fair and reasonable terms no
less favorable to the Borrowers or the Guarantors than it would obtain in a comparable arms length
transaction with a Person that is not an Affiliate.
(t) Limitations on Guarantees. The Borrowers shall not create, incur, assume or
suffer to exist any Guarantee Obligation in excess of $5,000,000 in the aggregate or $500,000 per
incurrence, except in connection with the Wachovia Indebtedness, other Existing Financing
Facilities, Permitted Credit Facilities, Trust Preferred Debt and such other Guarantee Obligations
approved by the Administrative Agent in its discretion.
(u) Limitation on Indebtedness. The Borrowers shall not create, incur, assume or
suffer to exist any Indebtedness, in each case, in excess of $5,000,000 in the aggregate or
$500,000 per incurrence, of the Borrowers, except Indebtedness of the Borrowers permitted under
this Agreement, the Wachovia Indebtedness, other Existing Financing Facilities, Permitted Credit
Facilities, Trust Preferred Debt and such other Indebtedness approved by the Administrative Agent
in its discretion.
(v) Limitation on Distributions. Except as otherwise required or permitted by the
Loan Documents, no Borrower nor any Guarantor shall declare or make any payment on account of, or
set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance,
retirement or other acquisition of any Equity Interest of any Borrower or any Guarantor whether now
or hereafter outstanding, or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of any Borrower or any Guarantor, except
that a Borrower or Guarantor (i) may declare and pay dividends in an amount necessary to maintain
its status as a REIT and, (ii) so long as no Default or Event of Default shall have occurred,
(a) in the case of ART, may declare and pay dividends in the amounts permitted by, but subject to
the terms and conditions of, Subsection 5.1(w)(iv), and (b) may distribute funds among the
Borrowers and their Consolidated Subsidiaries.
(w) Financial Covenants. ART shall comply with the following Financial Covenants:
(i) Maintenance of Liquidity. ART shall not permit, for any Test Period,
Liquidity for such Test Period to be less than $7,500,000, all of which shall consist of
cash or Cash Equivalents; provided, however, that such $7,500,000 shall be reduced for each
dollar of cash collateral in excess of $25,000,000 posted as collateral for a Wachovia
Derivatives Contract (as defined in the Arbor Credit Agreement).
(ii) Maintenance of Tangible Net Worth. ART shall not permit, for any Test
Period, Tangible Net Worth to be less than $150,000,000.
(iii) Maintenance of Ratio of Net Total Liabilities to Adjusted Tangible Net
Worth. ART shall not permit, for any Test Period, the ratio of its Net Total
Liabilities to Adjusted Tangible Net Worth to be greater than 4:5 to 1:0.
(iv) Payout Restrictions. For any calendar year, ART shall not make dividend
or distribution payments in excess of 100% of taxable income; provided, that, except as set
forth in clause (h) of the Fee Letter with respect to any New Stock Class, for so long as
(x) the Obligations outstanding under the Arbor Credit Facility exceed $210,000,000, (y) the
obligations outstanding under this Agreement exceed $30,000,000 and (y) the Liquidity of ART
is less than
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$35,000,000, all dividend or distribution payments shall be paid as Equity Interests up
to the highest percentage permitted by the Code to be paid in Equity Interests; provided,
however, nothing in this Section 5.1(w)(iv) shall prohibit ART from declaring and
paying dividends in an amount necessary to maintain its status as a REIT. Notwithstanding
the foregoing, in the event that ART mistakenly makes distributions in excess of 100% of
taxable income during any calendar year, then, so long as such distributions did not exceed
110% of taxable income, such excess distributions shall not constitute a Default or Event of
Default hereunder but shall be deemed distributions related to the following calendar year.
(x) Extension or Amendment of Collateral. The Borrowers will not, except as otherwise
permitted in by the last sentence of this Subsection 5.1(x), extend, amend, waive or
otherwise modify, or permit any Servicer to extend, amend, waive or otherwise modify, the material
terms of any Collateral, provided that the foregoing shall not prohibit the Borrower, a Servicer or
a PSA Servicer from permitting, prior to a default thereunder, any Obligor to exercise an extension
option contained in any Mortgage Loan Documents. Unless otherwise agreed to by the Administrative
Agent in its reasonable discretion, the Borrower and the Servicers shall have no right to waive,
amend, modify or alter the material terms of any Additional Collateral and the Borrowers shall have
no obligation or right to repossess any such Additional Collateral or substitute other Additional
Collateral, in each case except as provided in the Custodial Agreement.
(y) Collateral Documents. On and after the Restatement Date, the Borrowers shall,
within five (5) Business Days of receipt, provide to the Administrative Agent all documents and
agreements relating to the Collateral created, generated or received after the Restatement Date,
including, without limitation, each Collateral Management Agreement entered into after the
Restatement Date, including documents and agreements relating to or governing the payment or the
right to receive payment of any of the CDO Management Fees, all documents relating to or governing
the right to receive payments, dividends and distributions from ARCM, all documents relating to or
governing any CDO Issuance or proposed CDO Issuance after the Restatement Date, all documents
related to any CDO Equity Distributions, all documents and agreements related to or governing the
right of any CDO Subsidiary to receive payments, dividends or distributions from a CDO Issuer in a
CDO Issuance and all other documents requested by the Administrative Agent.
(z) Account Control Agreement. The Borrowers shall maintain the Account Control
Agreement in full force and effect and shall not amend or modify the Account Control Agreement or
waive compliance with any provisions thereunder without the prior written consent of the
Administrative Agent.
(aa) Inconsistent Agreements. No Borrower and no Guarantor shall, and neither shall
permit any of its Consolidated Subsidiaries to, directly or indirectly, enter into any agreement
containing any provision that would be violated or breached by any Loan hereunder or by the
performance by the Borrowers or the Guarantors of their obligations under any Loan Document.
(bb) Maintenance of Property; Insurance. Each Borrower shall keep all Property useful
and necessary in its business in good working order and condition, shall maintain with financially
sound and reputable insurance companies insurance on all its Property in at least such amounts and
against at least such risks as are usually insured against in the same general area by companies
engaged in the same or a similar business, and furnish to the Administrative Agent, upon written
request, full information as to the insurance carried.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
67
(cc) Interest Rate Protection Agreements. Each Borrower shall perform its duties and
obligations under and shall otherwise maintain any existing Interest Rate Protection Agreements to
which it is a party.
(dd) Payment of Obligations. Each Borrower and Guarantor shall pay, discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all
material obligations of whatever nature, except where the amount or validity thereof is currently
being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the Borrowers, Guarantors or any of their
Affiliates or Subsidiaries, as the case may be.
(ee) Distributions in Respect of Collateral. If the Borrowers or the Guarantors shall
receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange
for any Collateral, or otherwise in respect thereof, the Borrowers and the Guarantors shall accept
the same as the Administrative Agents agent, hold the same in trust for the Administrative Agent
and deliver the same forthwith to the Administrative Agent (or its designee) in the exact form
received, together with duly executed instruments of transfer, assignments in blank, executed and
undated stock powers in blank and such other documentation as the Administrative Agent shall
reasonably request. If any sums of money or property are paid or distributed in respect of the
Collateral and received by any Borrower, any Guarantor or any Consolidated Subsidiary of a Borrower
or a Guarantor, the Borrowers and the Guarantors shall promptly pay or deliver, or caused to be
paid or delivered, such money or property to the Administrative Agent and, until such money or
property is so paid or delivered to the Administrative Agent, hold such money or property in trust
for the Administrative Agent, segregated from other funds of the Borrowers and the Guarantors.
(ff) Unrelated Activities. The Borrowers shall not engage in any activity other than
activities specifically permitted by this Section 5.1, including, but not limited to,
investment in mortgage loans, mezzanine loans, participations, preferred equity and other real
estate related assets and the purchasing, financing and holding of commercial mortgage-backed
securities and activities incident thereto.
(gg) Authority Documents. The Borrowers shall not amend their Authority Documents in
a manner which would impact, impair or affect the Collateral or any Required Payment without the
prior written consent of the Administrative Agent. Without the Administrative Agents prior
written consent in its discretion, no Borrower shall amend or modify the Authority Documents for
any Pledged CDO Subsidiary, and no Borrower shall amend or modify any document governing a related
CDO Issuance, in any manner that would alter the provisions governing transfers of the Equity
Interests in such entities or would otherwise impair or limit the Administrative Agents ability to
foreclose on and transfer or to otherwise exercise rights or remedies with respect to the Pledged
Collateral.
(hh) [Reserved].
(ii) REIT Status. (i) ART shall at all times continue to be (A) qualified as a REIT
as defined in Section 856 of the Code without giving any effect to any cure or corrective periods
or allowances, (B) entitled to a dividends paid deduction under Section 857 of the Code with
respect to dividends paid by it with respect to each taxable year for which it claims a deduction
on its Form 1120-REIT filed with the United States Internal Revenue Service for such year, or the
entering into by it of any material prohibited transactions as defined in Sections 857(b) and
856(c) of the Code, and (C) a publicly traded company listed, quoted or traded on and in good
standing in respect of any Stock Exchange, (ii) ARSR shall at all times continue to be qualified as
a REIT and (iii) the Borrowers shall cause each CDO Issuer owned by a CDO Subsidiary to remain
qualified as a QRS, in each case without giving any effect to any cure or corrective periods or
allowances.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
68
(jj) Pledged Interests. Except as set forth in the Fee Letter, no Borrower nor any
Guarantor shall repurchase any outstanding common stock or operating partnership units of any
Borrower or any Guarantor prior to the later of (i) the Facility Maturity Date and (ii) the payment
in full of the Aggregate Unpaids.
(kk) Borrower Subsidiaries. The Borrowers shall give notice of any new Subsidiary
that, upon the formation thereof, would be a Consolidated Subsidiary.
(ll) Independence of Covenants. All covenants hereunder shall be given independent
effect so that if a particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or be otherwise within the limitations of,
another covenant shall not avoid the occurrence of an Default or Event of Default if such action is
taken or condition exists.
(mm) Negative Pledge. ART shall not grant or permit, or suffer to be granted or
permitted, any Lien on, or any Encumbrances upon, any of the assets or Properties of ART, which
shall include, without limitation, any Collateral and any Required Payment, in favor of any Person,
other than Liens in favor of the Administrative Agent and the Lenders.
(nn) No Other Negative Pledge. None of the Borrowers or any of their Consolidated
Subsidiaries shall grant, allow or enter into any agreement or arrangement with any Person that
prohibits or restricts, or purports to prohibit or restrict, the granting of any Lien or other
Encumbrance on any of the assets or Properties of the Borrowers or their Consolidated Subsidiaries;
provided, however, that the foregoing shall not apply to (i) the negative pledge
contained in Subsection 5.1(mm), (ii) Existing Financing Facilities or (iii) any other
negative pledge or grant of any Lien or other Encumbrance approved by the Administrative Agent in
its discretion.
(oo) ARSR. ARSR (i) shall be the direct owner of 100% of the Equity Interests in all
Pledged CDO Subsidiaries and ARCM, (ii) shall not transfer or grant any Lien or Encumbrance on any
such Equity Interests in a Pledged CDO Subsidiary (other than pursuant to the Pledge and Security
Agreement) or ARCM, (iii) shall not transfer or grant any Lien or Encumbrance on any Required
Payment, (iv) shall not permit any CDO Subsidiary or ARCM to transfer or grant any Lien or
Encumbrance on any assets of the CDO Subsidiary or ARCM (including, without limitation, any Equity
Interests in a CDO Issuer), (v) shall execute and comply and shall cause each CDO Subsidiary and
ARCM to execute and comply with an Irrevocable Instruction and shall cause each CDO Subsidiary and
ARCM to make all dividends, distributions and payments of the CDO Equity Distributions and the CDO
Collateral Manager Distributions, as applicable, to the Collection Account or the CDO Management
Fee Account, as applicable, as required in such Irrevocable Instructions, (vi) shall not amend or
modify any Authority Documents for any CDO Subsidiary or ARCM without the Administrative Agents
consent in its discretion, (vii) shall enforce its right to dividends, distributions and other
payments from each CDO Subsidiary and ARCM as the 100% owner for each said entity and (viii) shall
immediately inform the Administrative Agent in writing if any provision of this covenant is not
satisfied or is breached in any respect.
(pp) ARCM. ARCM (i) shall be the Collateral Manager under the Collateral Management
Agreements for each existing and future CDO Issuance and shall be the Person entitled to receive
the CDO Management Fees thereunder, (ii) shall not transfer or grant any Lien or Encumbrance on any
rights to the Collateral Management Agreements or the CDO Management Fees (other than Permitted
Liens), (iii) shall execute and comply and shall cause all other applicable Persons to execute and
comply with an Irrevocable Instruction, (iv) shall enforce all payments due to ARCM as Collateral
Manager, and cause same to be remitted by the payor thereof directly to the CDO Management Fee
Account (v) shall provide
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
69
the Administrative Agent with all Collateral Management Agreements in effect from time to
time, (vi) shall not amend any such Collateral Management Agreements or other related agreements in
any manner that would reduce or adversely affect the payments due thereunder to the Collateral
Manager without the Administrative Agents consent in its discretion, (vii) shall pay all
dividends, distributions and other amounts payable on or with respect to the Equity Interests in
ARCM to the Collection Account instead of to ARSR or any other Person that may hold the Equity
Interests in ARCM, (viii) shall not amend its Authority Documents without the Administrative
Agents consent, in its discretion, and (ix) shall immediately inform the Administrative Agent in
writing if any provision of this covenant is not satisfied or is breached in any respect.
(qq) CDO Issuances. With respect to each CDO Issuance engaged in by a Borrower, the
Guarantors or any Consolidated Subsidiaries, the Borrowers shall (i) not transfer or grant any Lien
or Encumbrance on its rights to the Net Proceeds (other than Permitted Liens), (ii) execute and
comply and cause all other Persons to execute and comply with Irrevocable Instructions to require
the Net Proceeds to be paid directly to the Collection Account and not to any Borrower, any
Guarantor or any other Person, (iii) provide the Administrative Agent with all documents related to
such CDO Issuance, (iv) enforce its rights to the Net Proceeds and (v) immediately notify the
Administrative Agent in writing of any provision of this covenant is not satisfied or is breached
in any respect. With respect to any CDO Issuance engaged in by a Consolidated Subsidiary of a
Borrower, the Borrowers shall (i) not transfer or grant any Lien or Encumbrance on any rights to
the dividends, distributions and payments from the Consolidated Subsidiary (other than Permitted
Liens), (ii) execute and comply and cause the Consolidated Subsidiary to execute and comply with
Irrevocable Instructions to cause the dividends, distributions and other payments from such
Consolidated Subsidiary to be paid directly to the Collection Account and not to the Borrowers, the
Guarantors or any other Person, (iii) provide the Administrative Agent with all documents related
to such CDO Issuance, (iv) enforce its rights to dividends, distributions and other payments from
the Consolidated Subsidiary, (v) not amend the Authority Documents for such Consolidated Subsidiary
without the Administrative Agents consent in its discretion and (vi) immediately notify the
Administrative Agent in writing if any provision of this covenant is not satisfied or is breached
in any respect.
(rr) Additional Collateral. The Borrowers shall perform each and every covenant, duty
and agreement set forth in the Arbor Credit Documents that are applicable to the Additional
Collateral by virtue of Subsection 2.1(f) of this Agreement, including, without limitation,
those set forth in the Security Agreement and Articles V, VI and IX of the
Arbor Credit Agreement.
(ss) Eligible Subordinated Debt. The Borrowers shall not, nor shall it permit any
Consolidated Subsidiary to, issue any Trust Preferred Debt that (i) does not have subordination
provisions substantially the same as those in the indentures for the transactions listed in clause
(i) of the definition of Eligible Subordinated Debt, (ii) does not have enforceable subordination
provisions, or (iii) has a maturity date earlier than the date that is six (6) months following the
Facility Maturity Date. The applicable Borrowers shall deliver an Opinion of Counsel from the
counsel to the applicable Borrower or the applicable Consolidated Subsidiary of a Borrower in
connection with the creation of such Eligible Subordinated Debt as to the enforceability of the
subordination provisions contained in all Eligible Subordinated Debt, each in form and substance
satisfactory to the Administrative Agent in its discretion.
(tt) Intercreditor Agreement. The Borrower and the Guarantor shall acknowledge and
agree to the Intercreditor Agreement to the extent the Administrative Agent deems that such
Intercreditor Agreement is necessary.
(uu) Repurchase of Debt. For any given calendar quarter, no Credit Party and no
Affiliate of a Credit Party shall use any Liquidity, cash, Cash Equivalents or other funds to
repurchase any outstanding
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
70
debt securities of any Credit Party or any Affiliate of a Credit Party (other than proceeds of
an Equity Issuance) in an amount greater than the lesser of (a) $7,500,000 in the aggregate for
such calendar quarter and (b) 50% of the CDO Equity Distributions received by the Credit Parties or
their Affiliates in connection with any CDO Issuance for the previous calendar quarter. The
Administrative Agent and the Lenders acknowledge that ARSR intends to modify (or replace) the
Original Kodiak Indentures and, in connection therewith, exchange the debt securities issued
thereunder for new debt securities of ARSR. The Administrative Agent and the Lenders agree that
such exchange shall not constitute a repurchase of debt securities by ARSR.
ARTICLE VI
[RESERVED]
ARTICLE VII
JOINT AND SEVERAL LIABILITY
Section 7.1 Joint and Several Liability; Full Recourse Obligations.
(a) At all times during which there is more than one (1) Borrower under this Agreement, each
Borrower hereby acknowledges and agrees that (i) such Borrower shall be jointly and severally
liable to the Administrative Agent, the Lenders and the Affected Parties to the maximum extent
permitted by Applicable Law for all representations, warranties, covenants, duties and indemnities
of the Borrowers, arising under this Agreement and the other Loan Documents, as applicable, and the
Aggregate Unpaids, (ii) such Borrower has consented to ARSR delivering all Notices of Borrowing on
behalf of all Borrowers and any such Notice of Borrowing delivered by ARSR on behalf of the
Borrowers is binding upon and enforceable against each Borrower, (iii) the liability of each
Borrower (A) shall be absolute and unconditional and shall remain in full force and effect (or be
reinstated) until all the Aggregate Unpaids shall have been paid in full and the expiration of any
applicable preference or similar period pursuant to any bankruptcy, insolvency, reorganization,
moratorium or similar law, or at law or in equity, without any claim having been made before the
expiration of such period asserting an interest in all or any part of any payment(s) received by
the Administrative Agent, and (B) until such payment has been made, shall not be discharged,
affected, modified or impaired on the happening from time to time of any event, including, without
limitation, any of the following, whether or not with notice to or the consent of the Borrowers or
the Guarantors or any other Person, (1) the waiver, compromise, settlement, release, termination or
amendment (including, without limitation, any extension or postponement of the time for payment or
performance or renewal or refinancing) of any or all of the obligations or agreements of any
Borrower or the Guarantors under this Agreement or any Loan Document, (2) the failure to give
notice to the Borrowers or the Guarantors of the occurrence of an Event of Default under any of the
Loan Documents, (3) the release, substitution or exchange by the Administrative Agent of any or all
of the Collateral (whether with or without consideration) or the acceptance by the Administrative
Agent of any additional collateral or the availability or claimed availability of any other
collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the
release of any Person primarily or secondarily liable for all or any part of the Obligations,
whether by the Administrative Agent or in connection with any voluntary or involuntary liquidation,
dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors or
similar event or proceeding affecting any or all of the Borrowers, the Guarantors or any other
Person who, or any of whose Property, shall at the time in question be obligated in respect of the
Obligations or any part thereof, or (5) to the extent permitted by Applicable Law, any other event,
occurrence, action or circumstance that would, in the absence of this Section 7.1, result
in the release or discharge of any or all of the Borrowers from the performance or observance of
any obligation,
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
71
covenant or agreement contained in this Agreement or the Loan Documents, (iv) the
Administrative Agent shall not be required first to initiate any suit or to exhaust its remedies
against the Borrowers, the Guarantors or any other Person to become liable, or against any of the
Collateral, in order to enforce this Agreement or the Loan Documents and the Borrowers, and the
Guarantors expressly agree that, notwithstanding the occurrence of any of the foregoing, each
Borrower shall be and remain directly and primarily liable for all sums due under this Agreement or
any of the other Loan Documents, (v) when making any demand hereunder against any Borrower, the
Administrative Agent or the Lenders may, but shall be under no obligation to, make a similar demand
on the other Borrowers, and any failure by the Administrative Agent or Lenders to make any such
demand or to collect any payments from the other Borrowers, or any release of such other Borrowers,
shall not relieve any Borrower in respect of which a demand or collection is not made or the
Borrowers not so released of their obligations or liabilities hereunder, and shall not impair or
affect the rights and remedies, express or implied, or as a matter of law, of the Administrative
Agent or the Lenders against the Borrowers and (vi) on disposition by the Administrative Agent of
any Property encumbered by any Collateral, each Borrower shall be and shall remain jointly and
severally liable for any deficiency.
(b) Each Borrower hereby agrees that, to the extent another Borrower shall have paid more than
its proportionate share of any payment made hereunder, the Borrowers shall be entitled to seek and
receive contribution from and against any other Borrowers which have not paid their proportionate
share of such payment; provided however, that the provisions of this
Subsection 7.1(b) shall in no respect limit the obligations and liabilities of each
Borrower to the Administrative Agent, the Lenders and the Affected Parties, and, notwithstanding
any payment or payments made by a Borrower (the paying Borrower) hereunder or any set-off
or application of funds of the paying Borrower by the Administrative Agent, the Lenders or the
Affected Parties, the paying Borrower shall not be entitled to be subrogated to any of the rights
of the Administrative Agent, the Lenders or the Affected Parties against any other Borrowers or any
collateral security or guarantee or right of offset held by the Administrative Agent, the Lenders
or the Affected Parties, nor shall the paying Borrower seek or be entitled to seek any contribution
or reimbursement from the other Borrowers in respect of payments made by the paying Borrower
hereunder, until all amounts owing to the Administrative Agent, the Lenders and the Affected
Parties by the Borrowers under the Loan Documents and the Aggregate Unpaids and the Obligations
(but only to the extent that an event of default, an event that, with the notice or the lapse of
time, would become an event of default, or any acceleration has occurred with respect to such other
Obligations) are paid in full. If any amount shall be paid to the paying Borrower on account of
such subrogation rights at any time when all such amounts shall not have been paid in full, such
amount shall be held by the paying Borrower in trust for the Administrative Agent, segregated from
other funds of the paying Borrower, and shall, forthwith upon receipt by the paying Borrower, be
turned over to the Administrative Agent in the exact form received by the paying Borrower (duly
indorsed by the paying Borrower to the Administrative Agent, if required), to be applied against
amounts owing to the Administrative Agent and the Lenders by the Borrowers under the Loan
Documents, the Aggregate Unpaids and the other Obligations (but only to the extent that an event of
default, an event that, with the notice or the lapse of time, would become an event of default, or
any acceleration has occurred with respect to such other Obligations) in such order as the
Administrative Agent may determine in its discretion.
(c) The obligations of the Borrower under the Loan Documents are full recourse obligations to
each Borrower and the Borrowers hereby forever waive, demise, acquit and discharge any and all
defenses, and shall at no time assert or allege any defense, to the contrary.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
72
ARTICLE VIII
SECURITY INTEREST
Section 8.1 Security Interest.
(a) Each of the following items or types of property, whether now owned or hereafter acquired,
now existing or hereafter created and wherever located, is hereinafter referred to as the
Collateral (the Collateral): (i) all Collateral Cash Flow, (ii) all rights to the CDO
Collateral Manager Distributions, (iii) all Additional Collateral, (iv) all Income with respect to
the Additional Collateral, (v) with respect to the Additional Collateral, all files, documents,
instruments, agreements, certificates, correspondence, appraisals, computer programs, computer
storage media, accounting records and other books and records relating to, governing or
constituting any of the foregoing, (vi) the Collection Account, the CDO Management Fee Account and
all monies, cash, deposits, securities or investment property from time to time on deposit in the
Collection Account and the CDO Management Fee Account, (vii) all Mortgage Loan Documents, all
Mortgage Asset Files, including, without limitation, all promissory notes, all Security Agreements
relating to the Additional Collateral and any other collateral pledged or otherwise, notes,
certificates, instruments, negotiable documents, chattel mortgages and all other loan, security or
other documents relating to such Additional Collateral and/or any collateral pledged or otherwise,
together with all files, documents, instruments, surveys, certificates, correspondence, appraisals,
licenses, contracts, computer programs, computer storage media, accounting records and other books
and records relating thereto, (viii) all collateral, security interests, rights and other interests
under or with respect to the Additional Collateral, (ix) all purchase agreements and the
collateral, security interests, rights and other interests thereunder, (x) all mortgage guaranties
and insurance (issued by governmental agencies or otherwise) and any mortgage insurance
certificate, policy or other document evidencing such mortgage guaranties or insurance relating to
any Additional Collateral and all claims, payments and proceeds thereunder, (xi) all servicing fees
to which a Borrower (or any Subsidiary of such Borrower) is entitled and servicing and other rights
relating to the Additional Collateral, (xii) all Servicing Agreements, Servicing Records, Servicing
Files and Servicer Accounts, to the extent related to the Additional Collateral, established
pursuant to any Servicing Agreement, Pooling and Servicing Agreement or otherwise and all amounts
on deposit therein, from time to time, (xiii) all rights of the Borrower under any Pooling and
Servicing Agreements relating to the Additional Collateral, (xiv) all other agreements or contracts
relating to, constituting, or otherwise governing, any or all of the foregoing to the extent they
relate to the Additional Collateral, including the right to receive principal and interest payments
and any related fees, breakage fees, late fees and penalties with respect to the Additional
Collateral and the right to enforce such payments, insurance policies, certificates of insurance,
insurance proceeds and the rights to any insurance proceeds, (xv) rights to any collection account,
escrow account, reserve account, collateral account or lock-box account related to the Additional
Collateral, including all monies, cash, deposits, securities or investment property from time to
time on deposit therein, (xvi) rights of any Borrower under any letter of credit, guarantee, or
other credit support or enhancement related to the Additional Collateral, (xvii) the rights of any
Borrower under any Interest Rate Protection Agreements relating to the foregoing, (xviii) the
Pledged Collateral and the Pledged Preferred Equity Collateral, (xix) all purchase or take-out
commitments relating to or constituting any of the Additional Collateral, (xx) all general
intangibles, accounts, chattel paper, deposit accounts, security accounts, instruments,
securities, financial assets, uncertified securities, securities entitlements and
investment property as defined in the Uniform Commercial Code as in effect from time to time
relating to the Additional Collateral or constituting any and all of the foregoing as they relate
to the Additional Collateral, and (xxi) any and all replacements, substitutions, conversions,
distributions on or proceeds of any and all of the foregoing; provided, however,
none of the foregoing Collateral shall include any obligations. Notwithstanding the foregoing
grant of a security interest, Collateral shall not include (i) any account, instrument, chattel
paper or other obligation or Property of any kind due from, owed by, or belonging to, a Person
described in the
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
73
definition of Prohibited Person or (ii) any lease in which the lessee is a Person described in
the definition of Prohibited Person.
(b) The Borrowers hereby assign, pledge and grant a security interest in all of their right,
title and interest in, to and under the Collateral to the Administrative Agent (for the benefit of
the Lenders) to secure the Obligations. The assignment, pledge and grant of security interest
contained herein shall be, and the Borrowers hereby represent and warrant to the Administrative
Agent that it is, a first priority perfected security interest. The Borrowers agree to mark their
computer records and tapes to evidence the interests granted to the Administrative Agent hereunder.
(c) The assignment, pledge and grant of a security interest under this Section 8.1
does not constitute and is not intended to result in a creation or an assumption by the
Administrative Agent or any Lender of any obligation of the Borrowers or any other Person in
connection with any or all of the Collateral or under any agreement or instrument relating thereto.
Anything herein to the contrary notwithstanding, (i) the Borrowers shall remain liable under the
Collateral to the extent set forth therein to perform all of their duties and obligations
thereunder to the same extent as if this Agreement or the other Loan Documents had not been
executed, (ii) the exercise by the Administrative Agent or any Lender of any of its rights in the
Collateral shall not release the Borrowers from any of their duties or obligations under the
Collateral, and (iii) the Administrative Agent and the Lenders shall not have any obligations or
liability under the Collateral by reason of this Agreement or the other Loan Documents, nor shall
the Administrative Agent or any Lender be obligated to perform any of the obligations or duties of
the Borrowers thereunder or to take any action to collect or enforce any claim for payment assigned
hereunder.
Section 8.2 Release of Lien on Collateral.
(a) (i) Notwithstanding anything provided in any other Loan Document, the Borrowers may
request that the Administrative Agent release its interest in the Collateral at such time as (A)
all Revolving Commitments have been terminated, (B) all Loans have been repaid in full and all
other Aggregate Unpaids have been paid in full, (C) either (x) no other Obligations are outstanding
or (y) no event of default, or an event that, with the notice or the lapse of time, would become an
event of default, or acceleration has occurred and is continuing with respect to the other
Obligations, and (D) the Total ESH Release Amount has been received by the Administrative Agent and
applied to the Arbor Credit Facility. Subject to the proviso to this sentence, the Administrative
Agents interest in the Collateral shall be released ten (10) Business Days after the delivery by
the Borrowers of an Officers Certificate, which certificate may be delivered not more than twenty
(20) Business Days nor less than ten (10) Business Days in advance of payment in full of the
Aggregate Unpaids so long as the Borrowers re-deliver such Officers Certificate in connection with
payment in full of the Aggregate Unpaids, certifying that (A) the Total ESH Release Amount has been
received by the Administrative Agent and applied to the Arbor Credit Facility and (B) either (1) no
other Obligations are outstanding or (2) no event of default, or an event that, with the notice or
the lapse of time, would become an event of default, or acceleration has occurred and is continuing
with respect to the other Obligations; provided that such release shall have no effect if the
Administrative Agent gives notice to the Borrowers, prior to the later of (x) expiration of the ten
(10) Business Day period and (y) the payment in full of the Aggregate Unpaids, of its knowledge of,
or belief that, an event of default, or an event that, with the notice or the lapse of time, would
become an event of default, or acceleration has occurred and is continuing with respect to the
other Obligations. In connection with the release of its interest in the Collateral, the
Administrative Agent will make no representation or warranty, express or implied, with respect to
any such Collateral in connection with such release, except that the Administrative Agent shall
represent and warrant that it has not assigned, conveyed, pledged or otherwise transferred such
Collateral to any other Person.
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
74
(ii) The discovery by the Administrative Agent of a breach of any representation made in any
Officers Certificate delivered pursuant to Section 8.2(a)(i) shall result in an automatic
event of default under the Arbor Credit Facility.
(b) The Administrative Agent shall consent to the release of its interest in any item of
Additional Collateral and any related Collateral so long as the related obligor has repaid such
Mortgage Asset in full and the Borrowers have delivered to the Administrative Agent all amounts the
Administrative Agent is entitled to with respect thereto, including, without limitation, all
amounts required in order to maintain the Availability hereunder; provided, that,
the Administrative Agent will make no representation or warranty, express or implied, with respect
to any such Additional Collateral or any related Collateral in connection with such release, except
that the Administrative Agent shall represent and warrant that it has not assigned, conveyed,
pledged or otherwise transferred such Additional Collateral or the related Collateral to any other
Person.
(c) Except as otherwise provided in any Loan Document, the Administrative Agent may, in its
discretion, consent to the release of its interest in any item of Additional Collateral and any
related Collateral (i) so long as no Default or Event of Default has occurred and is continuing
hereunder, and (ii) so long as any such release will not result in a mandatory prepayment pursuant
to Subsection 2.2(a) hereof; provided, that, the Administrative Agent will
make no representation or warranty, express or implied, with respect to any such Additional
Collateral or any related Collateral in connection with such release, except that the
Administrative Agent shall represent and warrant that it has not assigned, conveyed, pledged or
otherwise transferred such Additional Collateral or the related Collateral to any other Person.
(d) The Administrative Agent and the Lenders acknowledge that any releases of Additional Term
Loan Collateral, the ESH Allocated Assets and/or the ESH Pledged Mortgage Assets shall be governed
by the Arbor Credit Facility.
Section 8.3 Further Assurances.
The provisions of Section 13.12 shall apply to the security interest granted under
Section 8.1. To the extent that any Person owns or otherwise has an interest in any
Collateral that is not a party to this Agreement, the Borrowers shall provide immediate written
notice of same to the Administrative Agent, and the Borrowers shall cooperate with the
Administrative Agent in causing such Person to execute and permit the Administrative Agent to file
such documents, agreements and instruments as the Administrative Agent may require in its
discretion to obtain or maintain a perfected first priority security interest in the Collateral.
Section 8.4 Remedies.
Upon the occurrence and during the continuance of an Event of Default, the Administrative
Agent shall have, with respect to the security interest in the Collateral granted pursuant to
Section 8.1, and in addition to all other rights and remedies available to the
Administrative Agent under this Agreement or other Applicable Law, all rights and remedies of a
secured party upon default under the UCC.
Section 8.5 Waiver of Certain Laws.
Each Borrower agrees, to the full extent that it may lawfully so agree, that neither it nor
anyone claiming through or under it will set up, claim or seek to take advantage of any
appraisement, valuation, stay, extension or redemption law now or hereafter in force in any
locality where any Collateral may be situated in order to prevent, hinder or delay the enforcement
or foreclosure of this Agreement or the other
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Loan Documents, or the absolute sale of any of the Collateral or any part thereof, or the
final and absolute putting into possession thereof, immediately after such sale, of the purchasers
thereof, and each Borrower, for itself and all who may at any time claim through or under it,
hereby waives, to the full extent that it may be lawful so to do, the benefit of all such laws and
any and all right to have any of the Properties or assets constituting the Collateral marshaled
upon any such sale, and agrees that the Administrative Agent, the Lenders or any court having
jurisdiction to foreclose the security interests granted in this Agreement or the other Loan
Documents may sell the Collateral as an entirety or in such parcels as the Administrative Agent,
the Lenders or such court may determine.
Section 8.6 Administrative Agents Duty of Care.
Except as provided in the Loan Documents, the Administrative Agents sole duty with respect to
the Collateral shall be to use reasonable care in the custody, use, operation and preservation of
the Collateral in its possession or control. Neither the Administrative Agent nor any Lender shall
incur any liability to any Borrower or any other Person for any act of government, act of God or
other such destruction in whole or in part or negligence or wrongful act of custodians or agents
selected by and supervised by the Administrative Agent or any Lender with reasonable care, or the
Administrative Agents or any Lenders failure to provide adequate protection or insurance for the
Collateral. Neither the Administrative Agent nor any Lender shall have any obligation to take any
action to preserve any rights of any Borrower in any of the Collateral against prior parties, and
the Borrowers hereby agree to take such action. The Borrowers shall defend the Collateral against
all such claims and demands of all Persons (other than claims and demands resulting from interests
created by the Administrative Agent), at all times, as are adverse to the Administrative Agent and
the Lenders. The Administrative Agent and the Lenders shall not have any obligation to realize
upon any Collateral, except through proper application of any distributions with respect to the
Collateral made directly to the Administrative Agent or its agent(s). So long as the
Administrative Agent or any Lender shall act in good faith in its handling of the Collateral, each
Borrower waives or is deemed to have waived the defense of impairment of the Collateral by the
Administrative Agent or any Lender.
ARTICLE IX
POWER OF ATTORNEY
Section 9.1 Administrative Agents Appointment as Attorney-in-Fact.
(a) Following the occurrence and during the continuance of an Event of Default, each of the
Borrowers and the Guarantors hereby irrevocably constitutes and appoints the Administrative Agent
and any officer or agent thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and stead of the Borrowers
and the Guarantors and in the name of any of the Borrowers or any of the Guarantors or in its own
name, from time to time in the Administrative Agents discretion, for the purpose of carrying out
the terms of this Agreement and the other Loan Documents, to take any and all appropriate action
and to execute any and all documents and instruments that may be reasonably necessary or desirable
to accomplish the purposes of this Agreement and the other Loan Documents, and, without limiting
the generality of the foregoing, the Borrowers and the Guarantors hereby give the Administrative
Agent the power and right, on behalf of the Borrowers and the Guarantors, without assent by, but
with notice to, the Borrowers and the Guarantors, to do the following (in each case to the extent
the Borrowers and the Guarantors are not prohibited by Applicable Law or any applicable Contractual
Obligation):
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(i) in the name of any Borrower or any Guarantor, or in its own name, or otherwise, to
take possession of and endorse and collect any checks, drafts, notes, acceptances or other
instruments for the payment of moneys due under or with respect to any Collateral and to
file any claim or to take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Administrative Agent for the purpose of collecting any
and all such moneys due under or with respect to any Collateral whenever payable;
(ii) to pay or discharge taxes and Liens levied or placed on or threatened against the
Collateral;
(iii) (A) to direct any party liable for any payment under any Collateral to make
payment of any and all moneys due or to become due thereunder directly to the Administrative
Agent or as the Administrative Agent shall direct; (B) to ask or demand for, collect,
receive payment of and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral; (C) to sign and
endorse any invoices, assignments, verifications, notices and other documents in connection
with any Collateral; (D) to commence and prosecute any suits, actions or proceedings at law
or in equity in any court of competent jurisdiction to collect the Collateral or any
proceeds thereof and to enforce any other right in respect of any Collateral; (E) to defend
any suit, action or proceeding brought against any of the Borrowers or the Guarantors with
respect to any Collateral; (F) to settle, compromise or adjust any suit, action or
proceeding described in clause (E) above and, in connection therewith, to give such
discharges or releases as the Administrative Agent may deem appropriate, provided that same
does not impose any civil or criminal liability on the Borrowers or the Guarantors or any of
their Subsidiaries; and (G) generally, to sell, transfer, pledge, exercise rights and make
any agreement with respect to or otherwise deal with any Collateral as fully and completely
as though the Administrative Agent were the absolute owner thereof for all purposes, and to
do, at the Administrative Agents option and the Borrowers expense, at any time, and from
time to time, all acts and things that the Administrative Agent deems necessary to protect,
preserve or realize upon the Collateral and the Administrative Agents Liens thereon and to
effect the intent of this Agreement, all as fully and effectively as such Borrowers or the
Guarantors might do; and
(iv) to execute, from time to time, in connection with any sale provided for in
Section 10.2, any endorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral.
The Borrowers and the Guarantors hereby ratify all that said attorneys shall lawfully do or
cause to be done by virtue hereof. This power of attorney is a power coupled with an interest and
shall be irrevocable until the occurrence of a Final Termination.
(b) The powers conferred on the Administrative Agent hereunder are solely to protect the
Administrative Agents and Lenders interests in the Collateral and shall not impose any duty upon
the Administrative Agent to exercise any such powers. The Administrative Agent shall be
accountable only for amounts that it actually receives as a result of the exercise of such powers,
and neither the Administrative Agent, the Lenders nor any of their officers, directors, employees
or agents shall be responsible to the Borrowers or the Guarantors for any act or failure to act
hereunder.
ARTICLE X
EVENTS OF DEFAULT
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Section 10.1 Events of Default.
The following events shall be Events of Default (each, an Event of Default and,
collectively, Events of Default) hereunder:
(a) the Borrowers shall have failed to timely make a mandatory prepayment or pledge Additional
Collateral as required by Subsection 2.2(a) of this Agreement; or
(b) the Borrowers shall fail to pay any principal or Interest on any Loan or Revolving Note
when due (whether at maturity, by reason of acceleration, at optional or mandatory prepayment or
otherwise) in accordance with the terms thereof or the other Loan Documents, or the Borrowers or
any Guarantor shall fail to pay any fee, Late Payment Fee or Interest at the Post-Default Rate when
due (whether at maturity, by reason of acceleration, at optional or mandatory prepayment or
otherwise) in accordance with the terms of the Loan Documents; or
(c) the Borrowers or Guarantors shall default in the payment of any other Aggregate Unpaids or
other amount payable by it hereunder or under any other Loan Document after notification by the
Administrative Agent of such default, and such default shall have continued unremedied for two (2)
Business Days; or
(d) an Insolvency Event relating to any Borrower, any Guarantor or any Affiliate or
Consolidated Subsidiary of any Borrower or any Guarantor shall have occurred; or
(e) any Borrower or any Guarantor shall become required to register as an investment company
within the meaning of the 40 Act or the arrangements contemplated by the Loan Documents shall
require registration as an investment company within the meaning of the 40 Act; or
(f) a regulatory, tax or accounting body has ordered that the activities of any Borrower or
any Guarantor contemplated in the Loan Documents be terminated or, as a result of any other event
or circumstance, the activities of any Borrower or any Guarantor contemplated in the Loan Documents
may reasonably be expected to cause any Borrower or any Guarantor to suffer materially adverse
regulatory, accounting or tax consequences; or
(g) there shall exist any event or occurrence that has caused a Material Adverse Effect; or
(h) the Internal Revenue Service shall file notice of a Lien pursuant to Section 6323 of the
Code with regard to any assets or Property of any Borrower or any Guarantor, and such Lien shall
not have been released within five (5) Business Days; or
(i) any event of default which has not been cured within any applicable grace period occurs
under any Wachovia Indebtedness; or
(j) (i) any Loan Document, or any Lien or security interest granted thereunder, shall
(except in accordance with its terms), in whole or in part, terminate, cease to be
effective, cease to be in full force and effect or cease to be the legally valid, binding
and/or enforceable obligation of the Borrowers or the Guarantors, as applicable, or
(ii) any Borrower or any Guarantor or any other Person shall, directly or indirectly,
contest in any manner the effectiveness, validity, binding nature or enforceability of any
Loan Document or any Lien or security interest thereunder or deny or disaffirm such Persons
obligations under any Loan Document, or
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(iii) the Collateral shall not have been pledged to the Administrative Agent, or the
Liens contemplated under the Loan Documents shall cease or fail to be first priority
perfected Liens on any Collateral in favor of the Administrative Agent or shall be Liens in
favor of any Person other than the Administrative Agent, or
(iv) any Borrower shall grant, or permit or suffer to exist, any Lien on any Collateral
except Permitted Liens, or
(v) any Borrower shall grant, or permit or suffer to exist, any Lien on any Required
Payment; or
(k) the Borrowers fail to pledge Collateral required to be pledged under this Agreement or the
other Loan Documents or fail to cooperate with the Administrative Agent as required by this
Agreement or the other Loan Documents to ensure that the Administrative Agent has or obtains a
perfected first priority security interest in all existing and future Collateral, or the Borrowers
fail to deposit, or to cause to be deposited, any Required Payment or Income into the Collection
Account or ARCM fails to cause the CDO Management Fees to be deposited directly into the CDO
Management Fee Account; or
(l) any Borrower or any Guarantor shall have failed to observe or perform in any material
respect any of the covenants, duties or agreements of the Borrowers or the Guarantors set forth in
this Agreement or the other Loan Documents to which the Borrowers or the Guarantors are a party and
the same continues unremedied for a period of twenty (20) days after the earlier to occur of
(i) the date on which written notice of such failure requiring the same to be remedied shall have
been given to the Borrowers or the Guarantors by the Administrative Agent, and (ii) the date on
which a Borrower or a Guarantor becomes aware thereof (provided, however, in the
case of a failure which is capable of cure but cannot reasonably be cured within such twenty (20)
day period (other than the payment of money), and provided the Borrowers or the Guarantors shall
have timely commenced to cure such failure within such twenty (20) day period (with evidence of
same delivered to the Administrative Agent) and thereafter diligently and expeditiously proceeds to
cure the same, such twenty (20) day period shall be extended for an additional twenty (20) day
period); or
(m) any representation, warranty, certification or affirmation made by the Borrowers or the
Guarantors in this Agreement or any Loan Document or in any certificate or document delivered
pursuant to this Agreement or any Loan Document shall prove to have been incorrect in any material
respect when made or deemed made and that continues to be unremedied for a period of twenty (20)
Business Days after the earlier to occur of (i) the date on which written notice of such
incorrectness requiring the same to be remedied shall have been given to the Borrowers or the
Guarantors by the Administrative Agent, and (ii) the date on which a Borrower or a Guarantor
becomes aware thereof; or
(n) the Borrowers or the Guarantors shall have failed to give instructions (including, without
limitation, Irrevocable Instructions required by Sections 3.1, 3.2 or 5.1)
or any notice to the Administrative Agent or any Lender as required by this Agreement, or to
deliver any required reports hereunder, on or before the date such instruction, notice or report is
required to be made or given, as the case may be, under the terms of this Agreement and any such
failure continues unremedied for a period of two (2) Business Days after the earlier to occur of
(i) the date on which written notice of such failure requiring the same to be remedied shall have
been given to the Borrowers or the Guarantors by the Administrative Agent and (ii) the date on
which any Borrower or any Guarantor becomes aware thereof; or
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(o) any Persons attempt to disavow, revoke or act contrary to, the failure of any Person to
abide by or perform, or any Borrowers or any Guarantors failure to enforce, the terms of any
Irrevocable Instruction; or
(p) any Borrower or any Guarantor shall have failed to make any payment due with respect to
recourse debt, non-recourse debt or other obligations in excess of $1,500,000 or any default or any
event or condition shall have occurred that would permit acceleration of such recourse debt,
non-recourse debt or other obligations whether or not such event or condition has been waived; or
(q) Ivan Kaufman resigns, is removed or otherwise no longer serves as an officer or director
of ART; or
(r) a final judgment or judgments for the payment of money in excess of $1,500,000 in the
aggregate shall be rendered against any Borrower, any Guarantor or any of their Affiliates or
Consolidated Subsidiaries by one (1) or more courts, administrative tribunals or other bodies
having jurisdiction, and the same shall not be satisfied, discharged (or provision shall not be
made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within
thirty (30) days from the date of entry thereof; or
(s) any Borrower, any Guarantor or any of their Affiliates or Consolidated Subsidiaries shall
be in default (and shall not have cured such default within any applicable grace period) under
(i) any Indebtedness (including recourse Indebtedness and Non-Recourse Indebtedness) or Guarantee
Obligation of any Borrower, any Guarantor or of their Affiliates or Consolidated Subsidiaries,
which default (A) involves the failure to pay a matured obligation in excess of $1,500,000, or
(B) permits the acceleration of the maturity of obligations by any other party to or beneficiary
with respect to such Indebtedness or Guarantee Obligation in excess of $1,500,000, (ii) any other
material Contractual Obligation to which any Borrower, any Guarantor or any of their Affiliates or
Consolidated Subsidiaries is a party, which default (A) involves the failure to pay a matured
obligation, or (B) permits the acceleration of the maturity of obligations by any other party to or
beneficiary of such contract, or (iii) any Borrower-Related Obligation; or
(t) ART fails to comply with any Financial Covenant; or
(u) ART grants any pledge or Lien prohibited by Subsection 5.1(mm) of this Agreement;
or
(v) (i) any Borrower, any Guarantor or an ERISA Affiliate shall engage in any prohibited
transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Benefit
Plan, (ii) any material accumulated funding deficiency (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan, or any Lien in favor of the PBGC or a
Plan shall arise on the assets of any Borrower, any Guarantor or any ERISA Affiliate, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate, any Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable
opinion of the Administrative Agent, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Plan shall terminate for purposes of Title IV of ERISA, (v) any
Borrower, any Guarantor or any ERISA Affiliate shall, or in the reasonable opinion of the
Administrative Agent is likely to, incur any liability in connection with a withdrawal from, or the
insolvency or reorganization of, a Multiemployer Plan, or (vi) any other event or condition shall
occur or exist with respect to a Plan; and in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or conditions, if any, could
reasonably be expected to have a Material Adverse Effect; or
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(w) a Change of Control shall have occurred with respect to any Borrower or Guarantor; or
(x) the Borrowers fail to comply with the provisions of Subsections 5.1(e),
5.1(oo), 5.1(pp), 5.1(qq) or 5.1(rr) in any material respect; or
(y) ARSR shall cease to own directly 100% of the issued and outstanding Equity Interests of
the CDO Subsidiaries, ARCM, any Collateral Manager or any Consolidated Subsidiary that is the
issuer in a Debt Issuance; or
(z) any Borrower or any Guarantor is not Solvent or shall admit its inability to, or its
intentions not to, perform its obligations, covenants, duties or agreements under any Loan Document
or any Obligation; or
(aa) any event of default under any other Loan Document;
(bb) any Event of Default (as defined in the Arbor Credit Agreement), or any breach, default
or failure to comply or satisfy any term, provision, representation, warranty, covenant, duty,
liability or agreement contained in the Arbor Credit Documents, that applies to the Additional
Collateral and the related Collateral by virtue of Subsection 2.1(f) of this Agreement,
after any notice or opportunity to cure applicable thereto, if any, set forth in such Arbor Credit
Documents; or
(cc) ART ceases to qualify as a REIT (without giving any effect to any cure or corrective
periods or allowances), is subject to a ratings downgrade by any Rating Agency or ceases to be a
publicly traded company listed, quoted or traded on or in good standing in respect of any Stock
Exchange, or ARSR fails to qualify as a REIT (without giving any effect to any cure or corrective
periods or allowances); or
(dd) the Borrowers shall fail to deliver any documentation or information required to be
delivered pursuant to the terms of this Agreement or the other Loan Documents and the same
continues unremedied for a period of twenty (20) days after the earlier to occur of (i) the date on
which written notice of such failure requiring the same to be remedied shall have been given to the
Borrowers or the Guarantors by the Administrative Agent, and (ii) the date on which a Borrower or a
Guarantor becomes aware thereof.
For the purposes of Subsections 10.1(d), (r) and (s) and
10.2(a)(i) and the next sentence and not with respect to any other provision of this
Agreement or any other Loan Document, the percentage used in the term Affiliate shall be 50%
instead of 20%. Subject to the preceding sentence, upon the occurrence of any event described in
Subsections 10.1(d), (r) and (s) with respect to any Affiliate, including
any Person that becomes an Affiliate of any Borrower or any Guarantor as a result of an exercise by
any Borrower or any Guarantor of its remedies in connection with a pledge to a Borrower or a
Guarantor of interests in such Person, the Borrowers shall promptly notify the Administrative Agent
of same in writing and the Administrative Agent will make a determination in its reasonable
discretion and within a reasonable period of time as to whether such event shall constitute an
Event of Default.
Section 10.2 Remedies.
(a) If an Event of Default occurs, the following rights and remedies are available to the
Administrative Agent; provided, that an Event of Default shall be deemed to be continuing
unless expressly waived by the Administrative Agent in writing.
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(i) At the option of the Administrative Agent (which option the Administrative Agent
shall exercise at the written request of the Requisite Lenders), exercised by written notice
to the Borrowers (which option shall be deemed to have been automatically exercised, even if
no notice is given, immediately upon the occurrence of an Insolvency Event of any Borrower,
any Guarantor or any of their Affiliates or Consolidated Subsidiaries), the Revolving
Commitments shall be immediately terminated, the Facility Maturity Date and the maturity of
each Loan shall be deemed to have occurred (if it has not already occurred) (except that, in
the event that the Borrowing Date for any Loan has not yet occurred as of the date of such
exercise or deemed exercise, such Loan shall be deemed immediately cancelled) and the Loans
(together with accrued Interest), the Aggregate Unpaids shall be immediately due and
payable. The Administrative Agent shall (except upon the occurrence of an Insolvency Event
of any Borrower, any Guarantor or any of their Affiliates and Consolidated Subsidiaries)
give notice to the Borrowers of the exercise of such option as promptly as practicable.
(ii) If the Administrative Agent exercises or is deemed to have exercised the option
referred to in Subsection 10.2(a)(i),
(A) the Borrowers and the Guarantors shall immediately deliver to the
Administrative Agent any Collateral then in any Borrowers or Guarantors possession
or control; and
(B) all Income and other amounts actually received by the Administrative Agent
or on deposit in the Collection Account shall be applied to the Aggregate Unpaids
and any other Obligations in accordance with the priorities set forth in
Section 2.7.
(iii) Upon the occurrence of one or more Events of Default, the Administrative Agent
shall have the right to obtain physical possession of all files of the Borrowers and the
Guarantors relating to the Collateral and all documents relating to the Collateral which are
then or may thereafter come into the possession of the Borrowers, the Guarantors or any
third party acting for the Borrowers or the Guarantors, and the Borrowers shall deliver to
the Administrative Agent such assignments as the Administrative Agent shall request, and the
Administrative Agent shall have the right to appoint any Person to act as the servicer for
the Collateral.
(iv) At any time after the second (2nd) Business Day following notice to the Borrowers
(which notice may be the notice given under Subsection 10.2(a)(i)), in the event the
Borrowers have not paid all Aggregate Unpaids and other Obligations (but only to the extent
that an event of default, an event that, with the notice or the lapse of time, would become
an event of default, or any acceleration has occurred with respect to such other
Obligations), the Administrative Agent may (A) immediately sell, without demand or further
notice of any kind, at a public or private sale and at such price or prices as the
Administrative Agent may deem reasonably satisfactory any or all Collateral and apply the
proceeds thereof to the Aggregate Unpaids and the other Obligations (but only to the extent
that an event of default, an event that, with the notice or the lapse of time, would become
an event of default, or any acceleration has occurred with respect to such other
Obligations) in accordance with the priorities set forth in Section 2.7, or (B) in
its discretion, elect, in lieu of selling all or a portion of such Collateral, to give the
Borrowers credit for such Collateral in an amount equal to the market value of the
Collateral against the Aggregate Unpaids and any other Obligations (but only to the extent
that an event of default, an event that, with the notice or the lapse of time, would become
an event of default, or any acceleration has occurred with respect to such other
Obligations). The proceeds of any disposition of Collateral shall be applied first to the
costs and expenses incurred by the Administrative Agent in connection with the default;
second to the costs of related covering
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and/or related hedging transactions; third to the Aggregate Unpaids and other
Obligations (but only to the extent that an event of default, an event that, with the notice
or the lapse of time, would become an event of default, or any acceleration has occurred
with respect to such other Obligations) in accordance with the priorities set forth in
Section 2.7; and fourth to the Borrowers.
(v) The Borrowers and the Guarantors agree that the Administrative Agent may obtain an
injunction or an order of specific performance to compel the Borrowers and the Guarantors to
fulfill any of their obligations as set forth in this Agreement or the other Loan Documents
if the Borrowers or Guarantors fail or refuse to perform their obligations as set forth
herein or therein.
(vi) The Borrowers shall be liable to the Administrative Agent, payable as and when
incurred by the Administrative Agent, for (A) the amount of all reasonable actual
out-of-pocket expenses, including legal or other expenses, incurred by the Administrative
Agent in connection with or as a consequence of an Event of Default, and (B) all reasonable
costs incurred in connection with hedging or covering transactions.
(b) The Administrative Agent may exercise one or more of the remedies available to the
Administrative Agent immediately upon the occurrence of an Event of Default and, except to the
extent provided in Subsections 10.2(a)(i) and 10.2(a)(iv), at any time thereafter
without notice to the Borrowers or the Guarantors. All rights and remedies arising under this
Agreement, the other Loan Documents or any other agreement relating to the Borrower-Related
Obligations, as any of the foregoing are amended from time to time, are cumulative and not
exclusive of any other rights or remedies that the Administrative Agent may have.
(c) The Administrative Agent may enforce its rights and remedies hereunder without prior
judicial process or hearing, and the Borrowers and Guarantors hereby expressly waive any defenses
the Borrowers and Guarantors might otherwise have to require the Administrative Agent to enforce
its rights by judicial process. The Borrowers and the Guarantors also waive any defense (other
than a defense of payment or performance) any Borrower and/or any Guarantor might otherwise have
arising from the use of nonjudicial process, enforcement and sale of all or any portion of the
Collateral, or from any other election of remedies. The Borrowers and the Guarantors recognize
that nonjudicial remedies are consistent with the usages of the trade, are responsive to commercial
necessity and are the result of a bargain at arms-length.
(d) To the extent permitted by Applicable Law, the Borrowers shall be liable to the
Administrative Agent for interest on any amounts owing by the Borrowers hereunder, under the other
Loan Documents or otherwise, from the date the Borrowers become liable for such amounts hereunder
until such amounts are (i) paid in full by the Borrowers or (ii) satisfied in full by the exercise
of the Administrative Agents rights hereunder. Interest on any sum payable by the Borrowers to
the Administrative Agent under this Subsection 10.2(d) shall accrue interest from and after
the date of the Event of Default (but only during the continuance of that Event of Default) at a
rate equal to the Post-Default Rate.
(e) In addition to the rights under this Section 10.2, the Administrative Agent shall
have the following additional rights if an Event of Default occurs:
The Administrative Agent, the Borrowers and the Guarantors agree and acknowledge that
the Collateral includes collateral that may decline rapidly in value. Accordingly,
notwithstanding anything to the contrary in this Agreement, the other Loan Documents or
otherwise, the
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Administrative Agent shall not be required to give notice to the Borrowers or the
Guarantors prior to exercising any remedy in respect of an Event of Default. If no prior
notice is given, the Administrative Agent shall give notice to the Borrowers and the
Guarantors of the remedies effected by the Administrative Agent promptly thereafter. The
Administrative Agent shall act in good faith in exercising its rights pursuant to this
Section 10.2.
(f) The Administrative Agent shall have, in addition to its rights hereunder, any rights
otherwise available to it under any other agreement or Applicable Law (including, without
limitation, the UCC).
(g) Notwithstanding anything to the contrary in this Agreement or the other Loan Documents,
the Administrative Agent shall not foreclose on any Pledged Collateral or otherwise cause ownership
of any Equity Interests in any Pledged CDO Subsidiary to be transferred from the applicable
Borrower unless the Administrative Agent obtains an Opinion of Counsel opining (x) that a transfer
of the Pledged Collateral in connection with such foreclosure or other transfer will not cause the
CDO Issuer owned by the related CDO Subsidiary to cease to be treated as a QRS or (y) that, after
such transfer, the CDO Issuer will be treated as a foreign corporation that is not engaged in a
trade or business in the United States for United State federal income tax purposes.
Section 10.3 Waiver.
Except as expressly set forth in Section 10.2, presentment, demand, protest and all
other notices of any kind are hereby expressly waived by the Borrowers and the Guarantors.
Section 10.4 Determination of Events of Default.
In making a determination as to whether an Event of Default has occurred, the Administrative
Agent shall be entitled to rely on reports published or broadcast by media sources believed by the
Administrative Agent to be generally reliable and on information provided to it by any other
sources believed by it to be generally reliable; provided, that the Administrative Agent
reasonably and in good faith believes such information to be accurate and has taken such steps as
may be reasonable in the circumstances (including consulting with the Borrowers and the Guarantors)
to attempt to verify such information.
ARTICLE XI
INDEMNIFICATION
Section 11.1 Indemnities by the Borrowers.
(a) Each Borrower agrees to hold the Administrative Agent, the Lenders, the other Affected
Parties and each of their Affiliates and the Administrative Agent, the Lenders, the other Affected
Parties and their Affiliates officers, directors, shareholders, members, managers, partners,
owners, attorneys, employees, agents, Affiliates and advisors (each an Indemnified Party
and collectively the Indemnified Parties) harmless from and indemnify any Indemnified
Party against all liabilities, losses, damages, judgments, costs, expenses, penalties and fines of
any kind or nature whatsoever that may be imposed on, incurred by or asserted against such
Indemnified Party, including, without limitation, fees and expenses of counsel (collectively, the
Indemnified Amounts), relating to or arising out of (i) this Agreement, the other Loan
Documents, any Loan, any Collateral or any transaction contemplated hereby or thereby, or (ii) any
amendment, supplement or modification of, or any waiver or consent under or in respect of, this
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Agreement, the other Loan Documents, any Loan, any Collateral or any transaction contemplated
hereby or thereby, or (iii) any violation of Applicable Law related to any of the foregoing
(including, without limitation, violation of securities laws) and any civil penalties or fees
assessed by OFAC against, and the reasonable costs and expenses (including fees and expenses of
counsel) incurred in connection with the defense thereof by any Indemnified Party as a result of
the conduct of any Borrower, any Guarantor or any Consolidated Subsidiary thereof that violates any
sanctions enforced by the OFAC, or (iv) any and all Indemnified Amounts arising out of,
attributable or relating to, accruing out of, or resulting from (1) a past, present or future
violation or alleged violation of any Environmental Laws in connection with any Property or
Underlying Mortgaged Property by any Person or other source, whether related or unrelated to any
Borrower, any Guarantor or any obligor under a Mortgage Asset, (2) any presence of any Materials of
Environmental Concern in, on, within, above, under, near, affecting or emanating from any Property
or Underlying Mortgaged Property, (3) the failure to timely perform any Remedial Work, (4) any
past, present or future activity by any Person or other source, whether related or unrelated to any
Borrower, any Guarantor or any obligor under a Mortgage Asset in connection with any actual,
proposed or threatened use, treatment, storage, holding, existence, disposition or other release,
generation, production, manufacturing, processing, refining, control, management, abatement,
removal, handling, transfer or transportation to or from any Property or Underlying Mortgaged
Property of any Materials of Environmental Concern at any time located in, under, on, above or
affecting any Property or Underlying Mortgaged Property, (5) any past, present or future actual
Release (whether intentional or unintentional, direct or indirect, foreseeable or unforeseeable)
to, from, on, within, in, under, near or affecting any Property or Underlying Mortgaged Property by
any Person or other source, whether related or unrelated to any Borrower, any Guarantor or any
obligor under a Mortgage Asset, (6) the imposition, recording or filing or the threatened
imposition, recording or filing of any Lien on any Property or Underlying Mortgaged Property with
regard to, or as a result of, any Materials of Environmental Concern or pursuant to any
Environmental Law, or (7) any misrepresentation or inaccuracy in any representation or warranty in
any material respect or material breach or failure to perform any covenants or other obligations
pursuant to this Agreement, the other Loan Documents or any of the Mortgage Loan Documents or
relating to environmental matters in any way including, without limitation, under any of the
Mortgage Loan Documents, or (v) any matter or item covered by the indemnification provision
contained in Subsection 10.5(b) of the Arbor Credit Agreement, mutatis
mutandis, or (vi) any Borrowers, any Guarantors, or any Affiliates conduct, duties,
actions and/or inactions in connections with, related to or arising out of the foregoing clauses of
this Subsection 11.1(a), that, in each case, results from anything other than any
Indemnified Partys gross negligence or willful misconduct. Without limiting the generality of the
foregoing, the Borrowers agree to hold any Indemnified Party harmless from and indemnify such
Indemnified Party against all Indemnified Amounts relating to or arising out of any violation or
alleged violation of, noncompliance with or liability under any Applicable Law, rule or regulation
(including, without limitation, Environmental Laws) with respect to any Property of a Borrower or
Guarantor or any Collateral that, in each case, results from anything other than such Indemnified
Partys gross negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 11.1 applies, such indemnity shall
be effective whether or not such investigation, litigation or proceeding is brought by any
Borrower, any Guarantor or any of their directors, shareholders, owners, partners, members,
officers, managers, agents, Affiliates or creditors or an Indemnified Party or any other Person or
any Indemnified Party is otherwise a party thereto and whether any transaction contemplated hereby
is consummated. In any suit, proceeding or action brought by an Indemnified Party in connection
with any Collateral for any sum owing thereunder, or to enforce any provisions of any Collateral,
the Borrowers will save, indemnify and hold such Indemnified Party harmless from and against all
expense, loss or damage suffered by reason of any defense, set-off, counterclaim, recoupment or
reduction of liability whatsoever of the account debtor or obligor thereunder arising out of a
breach by any Borrower or any Guarantor of any obligation thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to or in favor of such account debtor or
obligor or its successors from any Borrower or any Guarantor. The Borrowers also
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agree to reimburse an Indemnified Party as and when billed by such Indemnified Party for all
such Indemnified Partys costs, expenses and fees incurred in connection with the enforcement or
the preservation of such Indemnified Partys rights under this Agreement, the other Loan Documents,
the Loan, the Collateral and any transaction contemplated hereby or thereby, including, without
limitation, the reasonable fees and disbursements of its counsel.
(b) Any amounts subject to the indemnification provisions of this Section 11.1 shall
be paid by the Borrowers to the Indemnified Party within five (5) Business Days following such
Persons demand therefor.
(c) The obligations of the Borrowers under this Section 11.1 shall survive the
resignation or removal of the Administrative Agent and the survive termination of this Agreement
and the payment in full of the Obligations.
Section 11.2 After-Tax Basis.
Indemnification under Section 11.1 shall be in an amount necessary to make the
Indemnified Party whole after taking into account any tax consequences to the Indemnified Party of
the receipt of the indemnity provided hereunder, including the effect of such tax or refund on the
amount of tax measured by net income or profits that is or was payable by the Indemnified Party.
ARTICLE XII
THE ADMINISTRATIVE AGENT
Section 12.1 Appointment.
Each Lender hereby irrevocably designates and appoints Initial Lender as the Administrative
Agent of such Lender under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes Initial Lender, as the Administrative Agent for such Lender, to take such
action on its behalf under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the Administrative Agent
by the terms of this Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or responsibilities except those
expressly set forth herein or in the other Loan Documents, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or the other Loan Documents or otherwise exist against the
Administrative Agent.
Section 12.2 Delegation of Duties.
The Administrative Agent may execute any of its duties under this Agreement by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable care. Without
limiting the foregoing, the Administrative Agent may appoint one of its Affiliates as its agent to
perform the functions of the Administrative Agent hereunder relating to the advancing of funds to
the Borrowers and distribution of funds to the Lenders and to perform such other related functions
of the Administrative Agent hereunder and under the other Loan Documents as are reasonably
incidental to such functions.
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Section 12.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this Agreement or the other
Loan Documents (except for its or such Persons own gross negligence or willful misconduct) or
(b) responsible in any manner to any of the Lenders for any recitals, statements, representations
or warranties made by the Borrowers, the Guarantors or any of their respective Affiliates or
Subsidiaries or any officer thereof contained in this Agreement or in any certificate, report,
statement or other document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or the other Loan Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any of the Loan Documents or for any
failure of the Borrowers, the Guarantors or any of their respective Affiliates or Subsidiaries to
perform any of their obligations hereunder or under the other Loan Documents. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance by the Borrowers, the Guarantors or any of their respective Affiliates or
Subsidiaries of any of the agreements contained in, or conditions of, this Agreement or the other
Loan Documents, or to inspect the Properties, books or records of the Borrowers, the Guarantors or
any of their respective Affiliates or Subsidiaries.
Section 12.4 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or other document or
conversation believed by it in good faith to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrowers and/or the Guarantors), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent may deem and treat
the payee of any Revolving Note as the owner thereof for all purposes unless an executed Commitment
Transfer Supplement has been filed with the Administrative Agent pursuant to Section 13.16
with respect to the Loans evidenced by such Revolving Note. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement or the other Loan
Documents unless it shall first receive such advice or concurrence of the Requisite Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under any of the Loan Documents in accordance with a request of the
Requisite Lenders or all of the Lenders, as may be required under this Agreement, and such request
and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and
all future holders of the Revolving Notes.
(b) For purposes of determining compliance with the conditions specified in
Section 3.1 of this Agreement, each Lender that has signed this Agreement shall be deemed
to have consented to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender.
Section 12.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default unless the Administrative Agent has received notice from a Lender,
the Borrowers or the Guarantors referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a notice of default. In the event that the
Administrative Agent receives such a
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notice, the Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Requisite Lenders; provided, however, that
unless and until the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in the best interests
of the Lenders except to the extent that this Agreement expressly requires that such action be
taken, or not taken, only with the consent or upon the authorization of the Requisite Lenders, or
all of the Lenders, as the case may be.
Section 12.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any of its
Affiliates has made any representation or warranty to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the Borrowers or the Guarantors,
shall be deemed to constitute any representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent that it has, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and investigation into the
business, operations, Property, financial and other condition and creditworthiness of the Borrowers
and Guarantors and made its own decision to make its Loans hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, operations, Property, financial and other condition
and creditworthiness of the Borrowers and the Guarantors. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder,
the Administrative Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, Property, condition (financial or
otherwise), prospects or creditworthiness of the Borrowers or the Guarantors which may come into
the possession of the Administrative Agent or any of its Affiliates.
Section 12.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its capacity hereunder (to the
extent not reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do
so), ratably according to their respective Revolving Commitment Percentages in effect on the date
on which indemnification is sought under this Section 12.7, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Revolving Notes) be imposed on, incurred by or asserted against
the Administrative Agent in any way relating to or arising out of any Loan Document or any
documents contemplated by or referred to herein or therein or the transactions contemplated hereby
or thereby or any action taken or omitted by the Administrative Agent under or in connection with
any of the foregoing; provided, however, that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent resulting from the Administrative
Agents gross negligence or willful misconduct, as determined by a court of competent jurisdiction.
The agreements in this Section 12.7 shall survive the termination of this Agreement and
the payment in full of the Obligations.
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Section 12.8 The Administrative Agent in Its Individual Capacity.
The Administrative Agent and its Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrowers and Guarantors as though the
Administrative Agent were not the Administrative Agent hereunder. With respect to the Loans made
or renewed by it and any Revolving Note issued to it, the Administrative Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise
the same as though it were not the Administrative Agent, and the terms Lender and Lenders shall
include the Administrative Agent in its individual capacity.
Section 12.9 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon thirty (30) days prior
written notice to the Borrowers and the Lenders provided there exists at such time Lenders other
than the Initial Lender. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Requisite Lenders shall appoint from among
the Lenders a successor administrative agent for the Lenders, whereupon such successor
administrative agent shall succeed to the rights, powers and duties of the Administrative Agent,
and the term Administrative Agent shall mean such successor administrative agent effective upon
such appointment and approval, and the former Administrative Agents rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any holders of the
Revolving Notes. If no successor Administrative Agent has accepted appointment as Administrative
Agent within thirty (30) days after the retiring Administrative Agents giving notice of
resignation, the retiring Administrative Agent shall have the right, on behalf of the Lenders, to
appoint a successor administrative agent; provided, that such successor administrative
agent has minimum capital and surplus of at least $50,000,000. If no successor administrative
agent has accepted appointment as Administrative Agent within sixty (60) days after the retiring
Administrative Agents giving notice of resignation, the retiring Administrative Agents
resignation shall nevertheless become effective and the Lenders shall perform all duties of the
Administrative Agent hereunder and under the other Loan Documents until such time, if any, as the
Requisite Lenders appoint a successor administrative agent as provided for above. After any
retiring Administrative Agents resignation as Administrative Agent, the indemnification provisions
of this Agreement and the other Loan Documents and the provisions of this Article XII shall
inure to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
Section 12.10 Other Administrative Agents.
None of the Lenders or other Persons identified on the facing page or signature pages of this
Agreement as a syndication agent, documentation agent, co-agent, book manager, book
runner, lead manager, arranger, lead arranger or co-arranger, if applicable, shall have
any right (except as expressly set forth herein), power, obligation, liability, responsibility or
duty under this Agreement or the other Loan Documents other than, in the case of such Lenders,
those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or
other Persons so identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders
or other Persons so identified in deciding to enter into this Agreement or the other Loan Documents
or in taking or not taking action hereunder.
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ARTICLE XIII
MISCELLANEOUS
Section 13.1 Amendments, Waivers and Release of Collateral.
(a) Neither this Agreement, nor any of the Revolving Notes, nor any of the other Loan
Documents, nor any terms hereof or thereof, may be amended, supplemented, waived or modified except
in accordance with the provisions of this Section 13.1 nor may any Borrower or any
Guarantor be released except in accordance with the provisions of this Section 13.1. The
Requisite Lenders may, or, with the written consent of the Requisite Lenders, the Administrative
Agent may, from time to time, (a) enter into with the Borrowers and Guarantors written amendments,
supplements or modifications hereto and to the other Loan Documents for the purpose of adding any
provisions to this Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Borrowers and Guarantors hereunder or thereunder or (b) waive, on such terms
and conditions as the Requisite Lenders may specify in such instrument, any of the requirements of
this Agreement or the other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, waiver, supplement,
modification or release shall:
(i) extend the Facility Maturity Date, reduce the amount or extend the scheduled date
of maturity of any Loan or Revolving Note or any installment thereon, or reduce the stated
rate of any interest or fee payable hereunder (except in connection with a waiver of
interest at the increased Post-Default Rate which shall be determined by a vote of the
Requisite Lenders) or extend the scheduled date of any payment thereof or increase the
amount or extend the expiration date of any Lenders Revolving Commitment, in each case
without the written consent of each Lender directly affected thereby; or
(ii) amend, modify, supplement or waive any provision of this Section 13.1 or
reduce the percentage specified in the definition of Requisite Lenders, without the written
consent of all the Lenders; or
(iii) amend, modify, supplement or waive any provision of Articles VII and
XII without the written consent of the Administrative Agent; or
(iv) release any Borrower or any Guarantor from its obligations hereunder or under the
other Loan Documents, without the written consent of all of the Lenders and, if applicable,
any counterparty to any Interest Rate Protection Agreement; or
(v) release all or substantially all of the Collateral without the written consent of
all of the Lenders and, if applicable, any counterparty to any Interest Rate Protection
Agreement; or
(vi) subordinate the Loans to any other Indebtedness without the written consent of all
of the Lenders; or
(vii) permit the Borrowers or Guarantors to assign or transfer any of their rights or
obligations under this Agreement or other Loan Documents without the written consent of all
of the Lenders; or
(viii) amend, modify, supplement or waive any provision of the Loan Documents requiring
consent, approval or request of the Requisite Lenders or all Lenders without the written
consent of the Requisite Lenders or all Lenders, as appropriate; or
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(ix) amend, modify, supplement or waive the order in which Obligations are paid in
Section 2.7 without the written consent of each Lender directly affected thereby; or
(x) without the consent of Lenders having Revolving Commitment Percentages in the
aggregate more than 50% amend, modify or waive Section 3.2 or any other provision of
this Agreement if the effect of such amendment or waiver is to require Lenders to make Loans
when such Lenders would not otherwise be required to do so; or
(xi) amend, modify or supplement the definition of Obligations to delete or exclude any
obligation or liability described therein without the written consent of each Lender and, if
applicable, each counterparty to any Interest Rate Protection Agreement directly affected
thereby;
provided, however, that no amendment, modification, supplement, waiver or
consent affecting the rights or duties of the Administrative Agent under any Loan Document shall in
any event be effective unless the same is in writing and signed by the Administrative Agent, in
addition to the Lenders required hereinabove to take such action.
(b) Any such waiver, any such amendment, supplement or modification and any such release shall
apply equally to each of the Lenders and shall be binding upon the Borrowers, the Guarantors, the
Lenders, the Administrative Agent and all future holders of the Revolving Notes. In the case of
any waiver, the Borrowers, the Guarantors, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the outstanding Loans and
Revolving Notes and other Loan Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing, but no such waiver shall extend to any subsequent or other
Default or Event of Default, or impair any right consequent thereon.
(c) Notwithstanding any of the foregoing to the contrary, the consent of the Borrowers or the
Guarantors shall not be required for any amendment, modification, supplement or waiver of the
provisions of Article XII except to the extent that any of the Borrowers or Guarantors
would be materially adversely affected thereby; provided, however, that the Administrative Agent
will provide written notice to the Borrowers of any such amendment, modification or waiver. In
addition, the Borrowers and the Lenders hereby authorize the Administrative Agent to modify this
Agreement by unilaterally amending or supplementing Schedule 2, which should contain a
listing of all Lenders and their respective Revolving Commitments from time to time in the manner
requested by the Borrowers, the Administrative Agent or any Lender in order to reflect any
assignments or transfers of the Loans as provided for hereunder; provided, however,
that the Administrative Agent shall promptly deliver a copy of any such modification to the
Borrowers and each Lender.
(d) Notwithstanding the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (x) each Lender is entitled to vote as such Lender sees fit on
any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the
provisions of Section 1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set
forth herein and (y) the Requisite Lenders may consent to allow the Borrowers to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
(e) Any waiver or consent shall be effective only if it is in writing and only in the specific
instance and for the specific purpose for which given.
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Section 13.2 Notices, Etc.
All notices and other communications provided for hereunder shall, unless otherwise stated
herein, be in writing (including communication by facsimile copy) and mailed, telexed, transmitted
or delivered, as to each party hereto, at its address set forth on Schedule 3 or at such
other address as shall be designated by such party in a written notice to the other parties hereto.
All such notices and communications shall be effective, upon receipt, or in the case of (a) notice
by mail, five (5) days after being deposited in the United States mail, first class postage
prepaid, or (b) notice by facsimile copy, when verbal communication of receipt is obtained.
Section 13.3 Set-offs.
(a) In addition to any rights now or hereafter granted under Applicable Law or otherwise, and
not by way of limitation of such rights, each Borrower and each Guarantor hereby grants to the
Administrative Agent and the Lenders a right of set-off, to secure repayment of all amounts owing
to the Administrative Agent and the Lenders by the Borrowers and the Guarantors under the Loan
Documents and the Obligations, upon any and all (regardless of any currency thereof) monies,
securities, collateral or other Property of any Borrower or any Guarantor (but specifically
excluding any Excluded Account) and any proceeds from the foregoing, now or hereafter held or
received by the Administrative Agent, the Lenders or any entity under the control of the
Administrative Agent or the Lenders and their respective successors and assigns (including, without
limitation, branches and agencies of the Administrative Agent or Lenders wherever located), for the
account of any Borrower or any Guarantor, whether for safekeeping, custody, pledge, transmission,
collection or otherwise, and also upon any and all deposits (general, specified, special, time,
demand, provisional or final) and credits, claims or Indebtedness of any Borrower or any Guarantor
at any time existing, in each case whether direct or indirect, absolute or contingent, matured or
unmatured, and in each case at any time held or owing by the Administrative Agent, any Lender or
any Affiliate of the foregoing to or for the credit of any Borrower or any Guarantor. The
Administrative Agent and each Lender is hereby authorized at any time and from time to time upon
any amount becoming due and payable by any Borrower to the Administrative Agent or the Lenders
under the Loan Documents, the Aggregate Unpaids, the Obligations (but only to the extent that an
event of default, an event that, with the notice or the lapse of time, would become an event of
default, or any acceleration has occurred with respect to such other Obligations) or otherwise
(whether at stated maturity, by acceleration, by mandatory or optional prepayment or otherwise) or
upon the occurrence of an Event of Default, without notice to any Borrower or any Guarantor, any
such notice being expressly waived by the Borrowers to the extent permitted by Applicable Law, to
set-off, appropriate, apply and enforce such right of set-off against any and all items hereinabove
referred to against any amounts owing to the Administrative Agent or Lenders by the Borrowers and
the Guarantors under the Loan Documents, the Aggregate Unpaids and the Obligations (but only to the
extent that an event of default, an event that, with the notice or the lapse of time, would become
an event of default, or any acceleration has occurred with respect to such other Obligations),
irrespective of whether the Administrative Agent or Lenders shall have made any demand hereunder
and regardless of any other collateral securing such amounts. Each Borrower and each Guarantor
shall be deemed directly indebted to the Administrative Agent and each Lender in the full amount of
all amounts owing to the Administrative Agent and the Lenders by the Borrowers and the Guarantors
under this Agreement, the Revolving Notes, the other Loan Documents and the Obligations, and the
Administrative Agent and Lenders shall be entitled to exercise the rights of set-off provided for
above. ANY AND ALL RIGHTS TO REQUIRE THE ADMINISTRATIVE AGENT OR LENDERS TO EXERCISE THEIR RIGHTS
OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE AMOUNTS OWING TO THE
ADMINISTRATIVE AGENT OR LENDERS BY THE BORROWERS AND THE GUARANTORS UNDER THE LOAN DOCUMENTS, PRIOR
TO EXERCISING ITS RIGHT OF SET-OFF WITH RESPECT TO SUCH MONIES, SECURITIES, COLLATERAL, DEPOSITS,
CREDITS OR
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OTHER PROPERTY OF THE BORROWERS, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY
EACH BORROWER.
(b) The Administrative Agent agrees promptly to notify the affected Borrower or Guarantor
after any such set-off and application made by the Administrative Agent; provided, that the
failure to give such notice shall not affect the validity of such set-off and application.
Section 13.4 No Waiver; Remedies.
No failure on the part of the Administrative Agent or any Lender to exercise, and no delay in
exercising, any right or remedy hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right or remedy hereunder preclude any further exercise thereof or the
exercise of any other right. The rights and remedies herein provided are cumulative and not
exclusive of any rights and remedies provided by Applicable Law.
Section 13.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Borrowers, the
Guarantors, the Administrative Agent, the Lenders and their respective successors and permitted
assigns.
Section 13.6 Term of this Agreement.
(a) This Agreement, including, without limitation, the Borrowers and the Guarantors
representations, warranties, covenants and duties set herein, create and constitute the continuing
obligation of the parties hereto in accordance with its terms and shall remain in full force and
effect until such time as (i) all Revolving Commitments have been terminated, (ii) all Loans have
been repaid in full and all other Aggregate Unpaids have been paid in full, and (iii) either (A) no
other Obligations are outstanding or (B) no event of default, or an event that, with the notice or
the lapse of time, would become an event of default, or acceleration has occurred and is continuing
with respect to the other Obligations; provided, however, that any provision that,
by its terms, expressly survives termination shall be continuing and shall survive any termination
of this Agreement and the payment in full of the Obligations.
(b) Subject to Subsection 13.6(a), this Agreement may be terminated by the Lenders or
the Borrowers upon giving thirty (30) days prior written notice to the other parties.
Section 13.7 Governing Law.
This Agreement shall be governed by, and construed in accordance with, the law of the State of
New York.
Section 13.8 Waivers.
(a) THE BORROWERS AND THE GUARANTORS EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT TO ASSERT A COUNTERCLAIM, OTHER THAN A COMPULSORY COUNTERCLAIM, IN ANY ACTION OR
PROCEEDING BROUGHT AGAINST IT BY THE ADMINISTRATIVE AGENT, THE LENDERS, THE AFFECTED PARTIES OR ANY
OF THE AFFILIATES OR AGENTS OF THE FOREGOING.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO AND THE GUARANTORS
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
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HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, BETWEEN THE PARTIES HERETO AND/OR THE GUARANTOR ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION
WITH THIS AGREEMENT, THE LOAN DOCUMENTS, THE TRANSACTIONS CONTEMPLATED HEREBY, THE OBLIGATIONS OR
ANY DEALINGS, COURSE OF DEALINGS, COURSE OF CONDUCT AMONG THEM OR ANY STATEMENTS (WRITTEN OR ORAL)
OR OTHER ACTIONS OF ANY PARTY, AND NONE OF THE PARTIES OR THE GUARANTOR WILL SEEK TO CONSOLIDATE
ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
(c) ANY LEGAL ACTION OR PROCEEDING AGAINST THE BORROWERS OR THE GUARANTORS WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT TO WHICH THE BORROWERS AND/OR THE GUARANTORS ARE A PARTY
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWERS AND
THE GUARANTORS HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE BORROWERS AND THE
GUARANTORS IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS
IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE BORROWERS OR THE GUARANTORS, AS APPLICABLE, AT THEIR ADDRESS SET FORTH ON
SCHEDULE 3, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR LENDERS TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY BORROWER
OR ANY GUARANTORS IN ANY OTHER JURISDICTION.
(d) EACH OF THE BORROWERS AND THE GUARANTORS HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT IN THE
COURTS REFERRED TO IN CLAUSE (c) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT
TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(e) EXCEPT AS PROHIBITED BY LAW, EACH OF THE BORROWERS AND THE GUARANTORS HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION WHATSOEVER INVOLVING THE ADMINISTRATIVE
AGENT, THE LENDERS, ANY AFFECTED PARTY OR ANY AFFILIATE OF THE FOREGOING ANY SPECIAL, EXEMPLARY,
PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH OF THE BORROWERS AND THE GUARANTORS
CERTIFY THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE ADMINISTRATIVE AGENT OR THE INITIAL LENDER
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR INITIAL LENDER WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
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FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING,
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS.
(f) EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A
BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT,
AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY
HERETO AND THE GUARANTOR FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS
LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL AND OTHER RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
(g) THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO ANY TRANSACTION ENTERED INTO HEREUNDER. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(h) EACH BORROWER COVENANTS AND AGREES THAT, UPON THE COMMENCEMENT OF A VOLUNTARY OR
INVOLUNTARY BANKRUPTCY PROCEEDING BY OR AGAINST A BORROWER, THE OTHER BORROWERS SHALL NOT SEEK A
SUPPLEMENTAL STAY OR OTHERWISE SEEK, PURSUANT TO 11 U.S.C. § 105 OR ANY OTHER PROVISION OF THE
BANKRUPTCY CODE OR ANY OTHER DEBTOR RELIEF LAW (WHETHER STATUTORY, COMMON LAW, CASE LAW OR
OTHERWISE) OF ANY JURISDICTION WHATSOEVER, NOW OR HEREAFTER IN EFFECT, WHICH MAY BE OR BECOME
APPLICABLE, TO STAY, INTERDICT, CONDITION, REDUCE OR INHIBIT THE ABILITY OF AN INDEMNIFIED PARTY TO
ENFORCE ANY RIGHTS OF SUCH INDEMNIFIED PARTY AGAINST SUCH BORROWER BY VIRTUE OF THIS AGREEMENT OR
OTHERWISE.
(i) IT IS EXPRESSLY AGREED AND UNDERSTOOD THAT THIS AGREEMENT INCLUDES INDEMNIFICATION
PROVISIONS WHICH, IN CERTAIN CIRCUMSTANCES, COULD INCLUDE AN INDEMNIFICATION BY A BORROWER OF AN
INDEMNIFIED PARTY FROM CLAIMS OR LOSSES ARISING AS A RESULT OF SUCH INDEMNIFIED PARTYS OWN
NEGLIGENCE.
Section 13.9 Costs, Expenses and Taxes.
(a) The Borrowers agree to pay as and when billed by the Administrative Agent or the Lenders
all of the reasonable out-of-pocket costs and expenses incurred by the Administrative Agent and the
Lenders in connection with the development, preparation and execution of, and any amendment,
supplement or modification to, or waiver of, this Agreement, the Loan Documents or any other
documents and agreements prepared in connection herewith or therewith. The Borrowers agree to pay
as and when billed by the Administrative Agent and the Lenders all of the out-of-pocket costs and
expenses incurred in connection with the consummation and administration of the transactions
contemplated hereby and thereby including, without limitation, (i) all the reasonable fees,
disbursements and expenses of counsel to the Administrative Agent and the Lenders (provided,
however, prior to the occurrence of an Event of Default, the Borrowers shall only be responsible
for the fees, disbursements and expenses of one law firm) and (ii) all the due diligence,
inspection, testing and review costs and expenses incurred by the
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Administrative Agent and the Lenders with respect to the Collateral under this Agreement,
including, but not limited to, those costs and expenses incurred by the Administrative Agent and
the Lenders and reimbursable by the Borrowers pursuant to Subsection 11.1(a) of this
Agreement.
(b) The Borrowers shall pay on demand any and all stamp, sales, excise and other taxes and
fees payable or determined to be payable in connection with the execution, delivery, filing and
recording of this Agreement, the Loan Documents or the other documents to be delivered hereunder or
thereunder or the funding or maintenance of Loans hereunder.
(c) The provision of this Section 13.9 shall survive the termination of this Agreement
and the payment in full of the Obligations.
(d) The Borrowers shall pay on demand all other reasonable costs, expenses and Taxes (except
for Taxes on, or Taxes one or more of the alternative bases for which are, the overall net income
of the Administrative Agent, any Lender or any Affected Party, and except for franchise taxes
imposed in lieu thereof) incurred by the Administrative Agent, the Lenders and the Affected Parties
(Other Costs), including without limitation, all costs and expenses incurred by the
Administrative Agent, the Lenders and the Affected Parties in connection with periodic audits of
any Borrowers, any Guarantors or any Servicers books and records.
Section 13.10 Legal Matters.
(a) In the event of any conflict between the terms of this Agreement, any other Loan Document
or any Confirmation with respect to any Additional Collateral, the documents shall control in the
following order of priority: first, the terms of the related Confirmation shall prevail,
then the terms of this Agreement shall prevail, and then the terms of the other Loan Documents
shall prevail.
(b) Each Borrower and Guarantor hereby acknowledges that:
(i) it has been advised by counsel in the negotiation, execution and delivery of the
Loan Documents;
(ii) it has no fiduciary relationship with the Administrative Agent or the Initial
Lender; and
(iii) no joint venture exists with the Administrative Agent or the Initial lender.
Section 13.11 Recourse Against Certain Parties.
No recourse under or with respect to any obligation, covenant or agreement (including, without
limitation, the payment of any fees or any other obligations) of the Administrative Agent, the
Lenders, the Borrowers or the Guarantors as contained in this Agreement, the Loan Documents or any
other agreement, instrument or document entered into by the Administrative Agent, the Lenders, the
Borrowers, the Guarantors or any such party pursuant hereto or thereto or in connection herewith or
therewith shall be had against any administrator of the Administrative Agent, the Lenders, the
Borrowers or the Guarantors or any incorporator, Affiliate (direct or indirect), owner, member,
partner, stockholder, officer, director, employee, agent or attorney of the Administrative Agent,
the Lenders, the Borrowers or the Guarantors or of any such administrator, as such, by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or
otherwise; it being expressly agreed and understood that the agreements of the Administrative
Agent, the Lenders, the Borrowers or the Guarantors contained in this Agreement, the Loan Documents
and all of the other agreements,
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instruments and documents entered into by it pursuant hereto or thereto or in connection
herewith or therewith are, in each case, solely the corporate obligations of the Administrative
Agent, the Lenders, the Borrowers or the Guarantors, and that no personal liability whatsoever
shall attach to or be incurred by any administrator of the Administrative Agent, the Lenders, the
Borrowers or the Guarantors or any incorporator, owner, member, partner, stockholder, Affiliate
(direct or indirect), officer, director, employee, agent or attorney of the Administrative Agent,
the Lenders, the Borrowers or the Guarantors, or of any such administrator, as such, or any other
of them, under or by reason of any of the obligations, covenants or agreements of the
Administrative Agent, the Lenders, the Borrowers or the Guarantors contained in this Agreement, the
Loan Documents or in any other such instruments, documents or agreements, or that are implied
therefrom, and that any and all personal liability of every such administrator of the
Administrative Agent, the Lenders, the Borrowers or the Guarantors and each incorporator, owner,
member, partner, stockholder, Affiliate (direct or indirect), officer, director, employee, agent or
attorney of the Administrative Agent, the Lenders, the Borrowers or the Guarantors, or of any such
administrator, or any of them, for breaches by the Administrative Agent, the Lenders, the Borrowers
or the Guarantors of any such obligations, covenants or agreements, which liability may arise
either at common law or at equity, by statute or constitution, or otherwise, is hereby expressly
waived as a condition of and in consideration for the execution of this Agreement. The provisions
of this Section 13.11 shall survive the termination of this Agreement and the payment in
full of the Obligations.
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Section 13.12 |
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Protection of Right, Title and Interest in the Collateral; Further
Action Evidencing Loans. |
(a) The Borrowers and the Guarantors shall cause all financing statements and continuation
statements and any other necessary documents covering the right, title and interest of the
Administrative Agent to the Collateral to be promptly recorded, registered and filed, and at all
times to be kept recorded, registered and filed, all in such manner and in such places as may be
required by law fully to preserve and protect the right, title and interest of the Administrative
Agent (on behalf of the Lenders) hereunder to all property comprising the Collateral. The
Borrowers and the Guarantors shall deliver to the Administrative Agent file-stamped copies of, or
filing receipts for, any document recorded, registered or filed as provided above, as soon as
available following such recording, registration or filing. The Borrowers and the Guarantors shall
execute any and all documents reasonably required to fulfill the intent of this
Subsection 13.12(a).
(b) The Borrowers and the Guarantors agree that from time to time, at their expense, they will
promptly execute and deliver all instruments and documents, and take all actions, that the
Administrative Agent or any Lender may reasonably request in order to perfect, protect or more
fully evidence the Loans hereunder and the security interest granted in the Collateral, or to
enable the Administrative Agent to exercise and enforce their rights and remedies hereunder or
under any Loan Document.
(c) If the Borrowers or the Guarantors fail to perform any of their obligations hereunder, the
Administrative Agent may (but shall not be required to) perform, or cause performance of, such
obligation; and the Administrative Agents costs and expenses incurred in connection therewith
shall be payable by the Borrowers. The Borrowers and the Guarantors irrevocably appoint the
Administrative Agent as their attorney-in-fact and authorize the Administrative Agent to act on
behalf of the Borrowers and the Guarantors (i) to execute on behalf of the Borrowers and the
Guarantors as debtor and to file financing statements necessary or desirable in the Administrative
Agents discretion to perfect and to maintain the perfection and priority of the interest in the
Collateral, and (ii) to file a carbon, photographic or other reproduction of this Agreement or any
financing statement with respect to the Collateral as a financing statement in such offices as the
Administrative Agent in its discretion deems necessary or
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desirable to perfect and to maintain the perfection and priority of the interests in the
Collateral. This appointment is coupled with an interest and is irrevocable.
(d) Without limiting the generality of the foregoing, the Borrowers and the Guarantors will
not earlier than six (6) months and not later than three (3) months prior to the fifth anniversary
of the date of filing of the financing statement referred to in Subsection 3.1(m)(ii) or
any other financing statement filed pursuant to this Agreement or in connection with any Loan
hereunder, unless this Agreement has terminated in accordance with Section 13.6:
(i) execute and deliver and file or cause to be filed an appropriate continuation
statement with respect to such financing statement; and
(ii) deliver or cause to be delivered to the Administrative Agent an opinion of the
counsel for the Borrowers and the Guarantors, in form and substance reasonably satisfactory
to the Administrative Agent, confirming and updating the opinion delivered pursuant to
Subsection 3.1(g) with respect to perfection and otherwise to the effect that the
security interest hereunder continues to be an enforceable and perfected security interest,
subject to no other Liens of record except as provided herein or otherwise permitted
hereunder, which opinion may contain usual and customary assumptions, limitations and
exceptions.
Section 13.13 Confidentiality.
(a) Each of the Administrative Agent, the Lenders, the Borrowers and the Guarantors shall
maintain and shall cause each of its employees and officers to maintain the confidentiality of this
Agreement and all information with respect to the other parties, including all information
regarding the Collateral and the Loans and each partys business obtained by it or them in
connection with the structuring, negotiating and execution of the transactions contemplated herein,
except that each such party and its officers and employees may (i) disclose such information to its
external accountants, attorneys, investors, potential investors, Affiliates and the agents of such
Persons (Excepted Persons); provided, however, that each Excepted Person
shall, as a condition to any such disclosure, agree for the benefit of the Administrative Agent,
the Lenders, the Borrowers and the Guarantors that such information shall be used solely in
connection with such Excepted Persons evaluation of, or relationship with, the Borrowers, the
Guarantors and their Affiliates or Subsidiaries, (ii) disclose the existence of the Agreement and
the Loan Documents, but not the financial terms thereof, (iii) disclose such information as is
required by Applicable Law, and (iv) disclose the Agreement, the Loan Documents and such other
information in any suit, action, proceeding or investigation (whether in law or in equity or
pursuant to arbitration) involving any of the Loan Documents for the purpose of defending itself,
reducing its liability, or protecting or exercising any of its claims, rights, remedies or
interests under or in connection with any of the Loan Documents and (v) disclose as set forth in
Section 13.22. It is understood that the financial terms that may not be disclosed except
in compliance with this Subsection 13.13(a) include, without limitation, all fees and other
pricing terms, all Events of Default and any priority of payment provisions.
(b) Anything herein to the contrary notwithstanding, each Borrower and Guarantor hereby
consents to the disclosure of any nonpublic information with respect to it by the Administrative
Agent or the Lenders to any prospective or actual assignee, participant or pledgee provided each
such Person is informed of the confidential nature of such information and such Person agrees to be
bound by the confidentiality provisions set forth herein.
(c) Notwithstanding anything herein to the contrary, the foregoing shall not be construed to
prohibit (i) disclosure of any and all information that is or becomes publicly known;
(ii) disclosure of any and all information (A) if required to do so by any Applicable Law, (B) to
any Governmental Authority
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having or claiming authority to regulate or oversee any respects of the Administrative
Agents, any Lenders, any Borrowers or any Guarantors business or that of their respective
Affiliates or Subsidiaries, (C) pursuant to any subpoena, civil investigative demand or similar
demand or request of any court, regulatory authority, arbitrator or arbitration to which the
Administrative Agent, any Lender, any Borrower or any Guarantor or an officer, director, employer,
shareholder, owner, member, partner, agent, employee, Affiliate or Subsidiary of any of the
foregoing is a party, or (D) in any preliminary or final offering circular, registration statement
or contract or other document approved in writing in advance by any Borrower or any Guarantor; or
(iii) any other disclosure authorized by the Administrative Agent, the Lenders, the Borrowers or
any Guarantor, as applicable.
(d) Notwithstanding anything to the contrary contained herein or in any related document, all
Persons may disclose to any and all Persons, without limitation of any kind, the federal income tax
treatment of any of the transactions contemplated by this Agreement, the other Loan Documents or
any other related document, any fact relevant to understanding the federal tax treatment of such
transactions and all materials of any kind (including opinions or other tax analyses) relating to
such federal income tax treatment.
Section 13.14 Execution in Counterparts; Severability; Integration.
This Agreement may be executed in any number of counterparts and by different parties hereto
in separate counterparts (including by facsimile), each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and the same agreement.
In case any provision in or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not
in any way be affected or impaired thereby. This Agreement and the other Loan Documents executed
in connection herewith contain the final and complete integration of all prior expressions by the
parties hereto and thereto with respect to the subject matter hereof and thereof and shall
constitute the entire agreement among the parties hereto and thereto with respect to the subject
matter hereof and thereof, superseding all prior and contemporaneous oral or written
understandings.
Section 13.15 Borrowers Waiver of Setoff.
Each Borrower and Guarantor hereby waives any right of setoff it may have or to which it may
be entitled under this Agreement, the other Loan Documents or otherwise from time to time against
the Administrative Agent, any Lender, any Affected Parties, or any Property or assets, or any of
the foregoing.
Section 13.16 Assignments and Participations.
(a) No Borrower or Guarantor may assign, delegate or otherwise transfer in any way any of its
rights or obligations under this Agreement or the other Loan Documents without the prior written
consent of all of the Lenders and any attempt by any Borrower or any Guarantor to assign, delegate
or otherwise transfer in any way any of its rights or obligations under this Agreement or the other
Loan Documents without the prior written consent of the Administrative Agent shall be null and
void.
(b) Each Lender may upon the consent of the Administrative Agent (other than in connection
with existing Lenders or Affiliates thereof) and notice to each Borrower, and (i) without the
consent of the Borrowers (A) in the case of a Pre-Approved Lender, (B) after an Event of Default,
or (C) any existing Lender or any Affiliate thereof, and (ii) with the prior written consent of
each Borrower (not to be unreasonably withheld, conditioned or delayed) in the case of a Person
that is not a Pre-Approved Lender
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or any existing Lender or Affiliate thereof, sell, transfer, assign, pledge or grant
participation interests to any Person (each, a Transferee), all or any part of its rights
and obligations under this Agreement, the Revolving Notes and its other rights and interests under
the Loan Documents in minimum amounts of $5,000,000 (or, if less, the entire amount of such
Lenders obligations), pursuant to, in the case of assignments only, a Commitment Transfer
Supplement, executed by such Transferee and such transferor Lender (and, in the case of a
Transferee that is not then a Lender or an Affiliate thereof, the Administrative Agent) and
delivered to the Administrative Agent for its acceptance and recording in the Register;
provided, however, that any transfer to an existing Lender or an Affiliate of an
existing Lender shall not be subject to the minimum transfer amounts specified herein.
(c) In the event of any such sale by a Lender of participating interests, such Lenders
obligations under this Agreement to the other parties to this Agreement shall remain unchanged,
such Lender shall remain solely responsible for the performance thereof, such Lender shall remain
the holder of any such Revolving Note for all purposes under this Agreement, and the Borrowers and
the Administrative Agent shall continue to deal solely and directly with such Lender in connection
with such Lenders rights and obligations under this Agreement. In the case of any such
participation, the participant shall not have any rights under this Agreement or any of the other
Loan Documents (the participants rights against such Lender in respect of such participation to be
those set forth in the agreement executed by such Lender in favor of the participant relating
thereto) and all amounts payable by the Borrowers hereunder shall be determined as if such Lender
had not sold such participation; provided, that each participant shall be entitled to the
benefits of Subsections 2.9(c), 2.11, 2.12 and 11.1 with respect to
its participation in the Revolving Commitments and the Loans outstanding from time to time;
provided, that no participant shall be entitled to receive any greater amount pursuant to
such Sections than the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such participant had no such
transfer occurred.
(d) In the case of assignments, upon such execution, delivery, acceptance and recording, from
and after the Transfer Effective Date specified in such Commitment Transfer Supplement, (x) the
Transferee thereunder shall be a party hereto and, to the extent provided in such Commitment
Transfer Supplement, have the rights and obligations of a Lender hereunder with a Revolving
Commitment as set forth therein, and (y) the transferor Lender thereunder shall, to the extent
provided in such Commitment Transfer Supplement, be released from its obligations under this
Agreement (and, in the case of a Commitment Transfer Supplement covering all or the remaining
portion of a transferor Lenders rights and obligations under this Agreement, such transferor
Lender shall cease to be a party hereto). Such Commitment Transfer Supplement shall be deemed to
amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of
such Transferee and the resulting adjustment of Revolving Commitment Percentages arising from the
purchase by such Transferee of all or a portion of the rights and obligations of such transferor
Lender under this Agreement and the Revolving Notes. On or prior to the Transfer Effective Date
specified in such Commitment Transfer Supplement, the Borrowers, at their own expense, shall
execute and deliver to the Administrative Agent in exchange for the Revolving Notes delivered to
the Administrative Agent pursuant to such Commitment Transfer Supplement new Revolving Notes to the
order of such Transferee in an amount equal to the Revolving Commitment assumed by it pursuant to
such Commitment Transfer Supplement and, unless the transferor Lender has not retained a Revolving
Commitment hereunder, new Revolving Notes to the order of the transferor Lender in an amount equal
to the Revolving Commitment retained by it hereunder. Such new Revolving Notes shall be dated the
Restatement Date and shall otherwise be in the form of the Revolving Notes replaced thereby. The
Revolving Notes surrendered by the transferor Lender shall be returned by the Administrative Agent
to the Borrower marked canceled.
(e) Each Borrower agrees to cooperate with the Administrative Agent and Lenders, at the
Borrowers expense, in connection with any such assignment, transfer, pledge, participation or
sale, and
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to enter into such restatements of, and amendments, supplements and other modifications to
this Agreement, in order to give effect to such assignment, transfer, pledge, participation or
sale.
(f) The Administrative Agent shall maintain at its principal office a copy of each Commitment
Transfer Supplement delivered to it and a register (the Register) for the recordation of
the names and addresses of the Lenders and the Revolving Commitment of, and principal amount of the
Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein
for all purposes of this Agreement. The Register shall be available for inspection by the
Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(g) Upon its receipt of a duly executed Commitment Transfer Supplement, together with payment
to the Administrative Agent by the transferor Lender or the Transferee (except for any assignment
by a Lender to an existing Lender or an Affiliate of an existing Lender), as agreed between them,
of a registration and processing fee of $3,500 for each Transferee listed in such Commitment
Transfer Supplement and the Revolving Notes subject to such Commitment Transfer Supplement, the
Administrative Agent shall (i) accept such Commitment Transfer Supplement and (ii) record the
information contained therein in the Register.
(h) Each Borrower and Guarantor authorizes each Lender to disclose to any Transferee and any
prospective Transferee any and all financial information in such Lenders possession concerning the
Borrowers, the Guarantors and their Affiliates and Subsidiaries which has been delivered to such
Lender by or on behalf of the Borrowers or the Guarantors pursuant to this Agreement or the other
Loan Documents or which has been delivered to such Lender by or on behalf of the Borrowers or the
Guarantors in connection with such Lenders credit evaluation of the Borrowers, the Guarantors and
their Affiliates and Subsidiaries prior to becoming a party to this Agreement, in each case subject
to Section 13.13.
(i) At the time of each assignment pursuant to this Section 13.16 to a Person which is
not already a Lender hereunder and which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for federal income tax purposes, the respective assignee Lender
shall provide to the Borrowers and the Administrative Agent the appropriate Internal Revenue
Service Forms described in Section 2.12.
(j) Nothing herein shall prohibit any Lender from pledging or assigning any of its rights
under this Agreement (including, without limitation, any right to payment of principal and interest
under any Revolving Note) to any Federal Reserve Bank in accordance with Applicable Laws.
Section 13.17 Heading and Exhibits.
The headings herein are for purposes of references only and shall not otherwise affect the
meaning or interpretation of any provision hereof. The schedules and exhibits attached hereto and
referred to herein shall constitute a part of this Agreement and are incorporated into this
Agreement for all purposes.
Section 13.18 Single Agreements.
The Administrative Agent, the Lenders and the Borrowers acknowledge that, and have entered
hereinto and will enter into each Loan hereunder in consideration of and in reliance upon the fact
that all Loans hereunder constitute a single business and contractual relationship and that each
has been entered
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
101
into in consideration of the other Loans. Accordingly, each Borrower agrees to perform all of
its obligations in respect of each Loan hereunder, and that a default in the performance of any
such obligations shall constitute a default by it in respect of all Loans hereunder.
Section 13.19 Periodic Due Diligence Review.
Each Borrower and Guarantor acknowledges that the Administrative Agent and each Lender has the
right to perform continuing due diligence reviews with respect to the Collateral and the Borrowers,
the Guarantors and Consolidated Subsidiaries of the foregoing for purposes of verifying compliance
with the representations, warranties, covenants, agreements and specifications made hereunder, or
otherwise, and each Borrower and Guarantor agrees that upon reasonable (but no less than one (1)
Business Day) prior notice, unless an Event of Default shall have occurred, in which case no notice
is required, to the Borrowers and/or the Guarantors, as applicable, the Administrative Agent, the
Lenders or their authorized representatives shall be permitted during normal business hours to
examine, inspect, and make copies and extracts of, the Collateral and any and all documents,
records, agreements, instruments or information relating to such Collateral, the Borrowers, the
Guarantors and their Consolidated Subsidiaries in the possession or under the control of the any
Borrower and/or any Guarantor. Each Borrower and Guarantor also shall make available to the
Administrative Agent a knowledgeable financial or accounting officer for the purpose of answering
questions respecting the Collateral, the Borrowers, the Guarantors and their Consolidated
Subsidiaries. Each Borrower and Guarantor shall also make available to the Administrative Agent
and the Lenders any accountants or auditors of any Borrower or any Guarantor to answer any
questions or provide any documents as the Administrative Agent or the Lenders may require. The
Borrowers shall pay all out-of-pocket costs and expenses incurred by the Administrative Agent
and/or the Lenders in connection with the Administrative Agents and the Lenders activities
pursuant to this Section 13.19 (Due Diligence Costs).
Section 13.20 Use of Employee Plan Assets.
(a) If assets of an employee benefit plan subject to any provision ERISA are intended to be
used by any party hereto (the Plan Party) in a Loan, the Plan Party shall so notify the
other parties prior to the Loan. The Plan Party shall represent in writing to the other parties
that the Loan does not constitute a prohibited transaction under ERISA or is otherwise exempt
therefrom, and the other party may proceed in reliance thereon but shall not be required so to
proceed.
(b) Subject to the last sentence of Subsection 13.20(a) above, any such Loan shall
proceed only if the Plan Party furnishes or has furnished to the other parties its most recent
available audited statement of its financial condition and its most recent subsequent unaudited
statement of its financial condition.
(c) By entering into a Loan pursuant to this Section 13.20, the Borrowers shall be
deemed (i) to represent to the Administrative Agent and the Lenders that since the date of the
applicable Borrowers latest such financial statements, there has been no material adverse change
in the Borrowers financial condition which such Borrower has not disclosed to the Administrative
Agent, and (ii) to agree to provide the Administrative Agent with future audited and unaudited
statements of its financial condition as they are issued, so long as it is a Borrower in any
outstanding Loan involving a Plan Party.
Section 13.21 Adjustments.
Each Lender agrees that if any Lender (a Benefited Lender) shall at any time receive
any payment of all or part of its Loans, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the
nature referred to in
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
102
Subsection 10.1(d), or otherwise) in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other Lenders Loans, or
interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lenders Loan, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral
or proceeds ratably with each of the Lenders in accordance with the respective Revolving Loan
Percentages; provided, however, that if all or any portion of such excess payment
or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded,
and the purchase price and benefits returned, to the extent of such recovery, but without interest.
The Borrowers agree that each Lender so purchasing a portion of another Lenders Loans may
exercise all rights of payment (including, without limitation, rights of set-off) with respect to
such portion as fully as if such Lender were the direct holder of such portion. The provisions of
this Section 13.21 shall survive the termination of this Agreement and the payment in full
of the Obligations.
Section 13.22 Filings, Recordation, etc.
Each Borrower and Guarantor hereby authorizes and expressly permits the Administrative Agent
to file and record this Agreement with each filing office located in the organizational
jurisdictions of the Borrowers and the Guarantors and in such other filing offices as
Administrative Agent may deem necessary and appropriate to inform and give notice to prospective
parties as to the existence of this Agreement, the other Loan Documents and the restrictions herein
and therein contained. Each Borrower and Guarantor hereby expressly waives and discharges any
obligations of confidentiality that Administrative Agent may owe to the Borrowers or the
Guarantors, whether in connection with this Agreement, the other Loan Documents or otherwise, to
preserve any information herein contained and the Borrowers and the Guarantors agree not to allege
or assert any claims or defenses based on breach of confidentiality obligations or any other
similar defenses or legal theories with respect to the public filing, recordation and disclosure of
this Agreement from and after the effective time hereof.
Section 13.23 Resolution of Drafting Ambiguities.
Each Arbor Entity that is a party hereto acknowledges and agrees that it was represented by
counsel in connection with the execution and delivery of this Agreement and the other Loan
Documents to which it is a party, that it and its counsel reviewed and participated in the
preparation and negotiation hereof and thereof and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation hereof or thereof.
Section 13.24 Character of Loans for Income Tax Purposes.
The Lenders and the Borrowers shall treat all Loans hereunder as indebtedness of the Borrowers
for United States federal income tax purposes.
Section 13.25 Amendment and Restatement.
This Agreement amends, restates and supersedes in its entirety the Original Agreement.
Notwithstanding the amendment and restatement of the Original Agreement by this Agreement:
(a) unless modified by the express terms of this Agreement or the other Loan Documents, each Loan
outstanding on the date hereof under the Original Agreement shall continue in effect as a Loan
hereunder, without any transfer, conveyance, diminution, forbearance, forgiveness or other
modification thereto or effect thereon occurring or being deemed to occur by reason of the
amendment and restatement of the Original Agreement hereby and (b) the Existing Borrower shall
continue to be liable to the Lenders for (i) all Obligations (under and as defined in the
Original Agreement) accrued to the date hereof under
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
103
the Original Agreement and (ii) all agreements on the part of the Existing Borrower under the
Original Agreement to indemnify the Lenders or the Administrative Agent in connection with events
or conditions arising or existing prior to the effective date of this Agreement, including, but not
limited to, those events and conditions set forth in Section 11.1 thereof. This Agreement
is given in substitution for the Original Agreement and not as payment of any of the obligations of
the Existing Borrower thereunder, and is in no way intended to constitute a novation of the
Original Agreement. Nothing contained herein is intended to amend, modify or otherwise affect any
obligation of the Existing Borrower, the Guarantor or the Pledgor existing prior to the date
hereof. Upon the effectiveness of this Agreement, each reference to the Original Agreement in any
other Loan Document, or document, instrument or agreement executed and/or delivered in connection
therewith, shall mean and be a reference to this Agreement unless the context otherwise requires.
Upon the effectiveness of this Agreement, the terms of this Agreement shall govern all aspects of
the facility represented by the Original Agreement, including, without limitation, the eligibility
of Collateral financed under the Original Agreement and any settlements to be made with respect
thereto.
Section 13.26 Modification of Other Loan Documents.
The amendments and modifications to this Agreement shall amend and modify the other Loan
Documents to the extent such other Loan Documents are not separately amended or modified on the
Restatement Date. The Credit Parties agree that all other Loan Documents that are not separately
amended or modified on the Restatement Date are binding and enforceable obligations and are in full
force and effect, as modified and amended by this Agreement.
[Remainder of Page Intentionally Left Blank.]
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
104
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective
officers thereunto duly authorized, as of the date first above written.
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THE BORROWERS: |
ARBOR REALTY TRUST, INC.,
a Maryland corporation
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By: |
/s/ Paul Elenio, Chief Financial Officer
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Name: |
Paul Elenio |
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Title: |
Chief Financial Officer |
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ARBOR REALTY GPOP, INC.,
a Delaware corporation
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By: |
/s/ Paul Elenio, Chief Financial Officer
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Name: |
Paul Elenio |
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Title: |
Chief Financial Officer |
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ARBOR REALTY LPOP, INC.,
a Delaware corporation
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By: |
/s/ Paul Elenio, Chief Financial Officer
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Name: |
Paul Elenio |
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Title: |
Chief Financial Officer |
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ARBOR REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
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By: |
Arbor Realty GPOP, Inc.,
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its General Partner |
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By: |
/s/ Paul Elenio, Chief Financial Officer
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Name: |
Paul Elenio |
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Title: |
Chief Financial Officer |
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[Signatures Continued on the Following Page]
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
S-1
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THE BORROWERS (cont.): |
ARBOR REALTY SR, INC.,
a Maryland corporation
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By: |
/s/ John Natalone, Executive Vice President
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Name: |
John Natalone |
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Title: |
Executive Vice President |
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ARBOR REALTY COLLATERAL MANAGEMENT, LLC, a Delaware
limited liability company
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By: |
/s/ John Natalone, Executive Vice President
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Name: |
John Natalone |
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Title: |
Executive Vice President |
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[Signatures Continued on the Following Page]
First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
S-2
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THE INITIAL LENDER: |
WACHOVIA BANK, NATIONAL ASSOCIATION,
a national banking association
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By: |
/s/ John Nelson, Managing Director
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Name: |
John Nelson |
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Title: |
Managing Director |
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THE ADMINISTRATIVE AGENT: |
WACHOVIA BANK, NATIONAL ASSOCIATION,
a national banking association
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By: |
/s/ John Nelson, Managing Director
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Name: |
John Nelson |
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Title: |
Managing Director |
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First Amended and Restated Revolving Loan Agreement
(Wachovia and Arbor)
S-3
exv31w1
EXHIBIT 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
I, Ivan Kaufman, certify that:
1. |
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I have reviewed this quarterly report on Form 10-Q of Arbor Realty Trust, Inc.; |
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2. |
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Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect to the period
covered by this report; |
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3. |
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Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this
report; |
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4. |
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The registrants other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a15(f) and 15d15(f)) for the registrant and have: |
a) Designed such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to ensure that material information
relating to the registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this report is being
prepared;
b) Designed such internal control over financial reporting, or caused such internal control
over financial reporting to be designed under our supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting
principles;
c) Evaluated the effectiveness of the registrants disclosure controls and procedures and
presented in this report our conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this report based on such evaluation;
and
d) Disclosed in this report any change in the registrants internal control over financial
reporting that occurred during the registrants most recent fiscal quarter (the registrants
fourth fiscal quarter in the case of an annual report) that has materially affected, or is
reasonably likely to materially affect, the registrants internal control over financial
reporting; and
5. |
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The registrants other certifying officer and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and the
audit committee of the registrants board of directors (or persons performing the equivalent
functions): |
a) All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to adversely affect
the registrants ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have
a significant role in the registrants internal control over financial reporting.
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Date: August 7, 2009 |
By: |
/s/ Ivan Kaufman
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Name: |
Ivan Kaufman |
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Title: |
Chief Executive Officer |
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exv31w2
EXHIBIT 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
I, Paul Elenio, certify that:
1. |
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I have reviewed this quarterly report on Form 10-Q of Arbor Realty Trust, Inc.; |
2. |
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Based on my knowledge, this report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect to the period
covered by this report; |
3. |
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Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in this
report; |
4. |
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The registrants other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a15(f) and 15d15(f)) for the registrant and have: |
a) Designed such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to ensure that material information
relating to the registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this report is being
prepared;
b) Designed such internal control over financial reporting, or caused such internal control
over financial reporting to be designed under our supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting
principles;
c) Evaluated the effectiveness of the registrants disclosure controls and procedures and
presented in this report our conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this report based on such evaluation;
and
d) Disclosed in this report any change in the registrants internal control over financial
reporting that occurred during the registrants most recent fiscal quarter (the registrants
fourth fiscal quarter in the case of an annual report) that has materially affected, or is
reasonably likely to materially affect, the registrants internal control over financial
reporting; and
5. |
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The registrants other certifying officer and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and the
audit committee of the registrants board of directors (or persons performing the equivalent
functions): |
a) All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to adversely affect
the registrants ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees
who have a significant role in the registrants internal control over financial
reporting.
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Date: August 7, 2009 |
By: |
/s/ Paul Elenio
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Name: |
Paul Elenio |
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Title: |
Chief Financial Officer |
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exv32w1
EXHIBIT 32.1
CERTIFICATION OF CEO PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report on Form 10-Q of Arbor Realty Trust, Inc. (the
Company) for the quarterly period ended June 30, 2009 as filed with the Securities and Exchange
Commission on the date hereof (the Report), Ivan Kaufman, as Chief Executive Officer of the
Company, hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906
of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge:
(1) The Report fully complies with the requirements of Section 13(a)
or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations
of the Company.
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By: |
/s/ Ivan Kaufman
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Name: |
Ivan Kaufman |
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Title: |
Chief Executive Officer |
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Date: August 7, 2009
This certification accompanies the Report pursuant to Section 906 of the Sarbanes-Oxley Act of
2002 and shall not, except to the extent required by the Sarbanes-Oxley Act of 2002, be deemed
filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended.
A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act
of 2002 has been provided to the Company and will be retained by the Company and furnished to the
Securities and Exchange Commission or its staff upon request.
exv32w2
EXHIBIT 32.2
CERTIFICATION OF CFO PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report on Form 10-Q of Arbor Realty Trust, Inc. (the
Company) for the quarterly period ended June 30, 2009 as filed with the Securities and Exchange
Commission on the date hereof (the Report), Paul Elenio, as Chief Financial Officer of the
Company, hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906
of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge:
(1) The Report fully complies with the requirements of
Section 13(a) or 15(d) of the Securities Exchange Act
of 1934; and
(2) The information contained in the Report fairly
presents, in all material respects, the financial
condition and results of operations of the Company.
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By: |
/s/ Paul Elenio
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Name: |
Paul Elenio |
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Title: |
Chief Financial Officer |
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Date: August 7, 2009
This certification accompanies the Report pursuant to Section 906 of the Sarbanes-Oxley Act of
2002 and shall not, except to the extent required by the Sarbanes-Oxley Act of 2002, be deemed
filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended.
A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act
of 2002 has been provided to the Company and will be retained by the Company and furnished to the
Securities and Exchange Commission or its staff upon request.