exv10w37






EXHIBIT 10.37




EXECUTION COPY




SECOND AMENDMENT TO

FIRST AMENDED AND RESTATED CREDIT AGREEMENT 

(Wachovia/Arbor)




     THIS SECOND AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 24,
2009 (this “Amendment No. 2”), is entered into by and 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
REALTY LIMITED PARTNERSHIP, a Delaware limited partnership (together with its successors and
permitted assigns, “Arbor Realty”), as a borrower, ART 450 LLC, a Delaware limited
liability company (together with its successors and permitted assigns, “ART 450”), as a
borrower, ARBOR REALTY SR, INC., a Maryland corporation (together with its successors and permitted
assigns, “ARSR”), as a borrower, ARBOR ESH II LLC (together with its successors and
permitted assigns, “Arbor ESH” and, together with Arbor Realty Funding, ARSR Tahoe, Arbor
Realty and ARSR, each individually referred to herein as a “Borrower” and collectively
referred to herein as the “Borrowers”), as a borrower, ARBOR REALTY TRUST, INC., a Maryland
corporation (together with its successors and permitted assigns, “ART”), as a guarantor,
Arbor Realty, as a guarantor, ARSR, as a guarantor (ARSR, together with ART and Arbor Realty, the
“Guarantors”), the several banks and other financial institutions party to the Credit
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 (together with its successors and assigns in such capacity,
the “Administrative Agent”), and consented to by ARSR, as the pledgor (together with its
successors and permitted assigns, the “Pledgor”), and WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association (together with its successors and permitted assigns,
“Custodian”), as the custodian. Capitalized terms used and not otherwise defined herein
shall have the meanings given to such terms in the Credit Agreement (as defined below and as
amended hereby).



R E C I T A L S




     WHEREAS, the Borrowers, the Guarantors, the Lenders and the Administrative Agent are parties
to that certain First Amended and Restated Credit Agreement, dated as of July 23, 2009 (as amended,
modified, restated, replaced, waived, substituted, supplemented or extended from time to time,
including pursuant to that First Amendment to First Amended and Restated Credit Agreement and Other
Credit Documents, dated as of December 16, 2009 and by this Amendment No. 2, the “Credit
Agreement”);



     WHEREAS, concurrently herewith, the Borrowers, the Guarantors and the Administrative Agent are
entering into that certain Second Amended and Restated Fee Letter, dated as of the date hereof;



     WHEREAS, the Borrowers and the Guarantors desire to make certain modifications to the Credit
Agreement;



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     WHEREAS, the Administrative Agent and the Lenders are willing to modify the Credit
Agreement as requested by the Borrowers and the Guarantors on the terms and conditions specified
herein;



     WHEREAS, each Guarantor desires to evidence its agreement to the amendments and modifications
set forth herein and to reaffirm its obligations under the Guaranty; and



     WHEREAS, the Pledgor is a party to other Credit Documents and related agreements that may be
affected, directly or indirectly, by this Amendment No. 2 and desires to evidence its agreement to
the amendments and modifications set forth herein.



     NOW THEREFORE, in consideration of the foregoing recitals, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:



     Section 1. Amendments to Credit Agreement.



     (a) The following new definitions are added to Section 1.1 of the Credit Agreement (to
be inserted in the correct alphabetical order):



     ““Amendment No. 2” means that certain Second Amendment to First Amended and Restated
Credit Agreement, dated as of December 24, 2009, by and among the Borrowers, the Guarantors, the
Administrative Agent and the lenders party thereto, as consented to by the Pledgor and Custodian.”



     “Credit Obligations” means the outstanding obligations under the Loans, the Credit
Agreement, the Notes and any other Credit Document and the Aggregate Unpaids (as defined in the
Working Capital Facility). For the avoidance of doubt, “Credit Obligations” does not include any
Credit Party-Related Obligation that does not arise under the Credit Agreement or the other Credit
Documents or under the Working Capital Facility.”




	 	 	““Discounted Payoff Amount” shall have the meaning set forth in the Fee Letter.”





     ““Excess Principal Amount” means the difference (if positive) between the amount of
any principal payment or prepayment received from an Obligor with respect to a Pledged Mortgage
Asset and the Release Amount for such Pledged Mortgage Asset.”




	 	 	““Payoff Extension Amount” shall have the meaning set forth in the Fee Letter.”





     (b) The definition of “Fee Letter” contained in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety as follows:



     “Fee Letter” shall mean the Second Amended and Restated Fee Letter, dated as of
December 24, 2009, by the Administrative Agent, as acknowledged and agreed by the Borrowers and the
Guarantors, as amended, modified, extended, restated, replaced, or supplemented from time to time.



     (c) Clause (EIGHTH) of Subsection 2.9(a)(ii) of the Credit Agreement is hereby amended
and restated in its entirety as follows, new clauses (NINTH) and (TENTH) are hereby added to
Subsection 2.9(a)(ii) of the Credit Agreement and the proviso appearing at the end of
Subsection 2.9(a)(ii) of the Credit Agreement is hereby amended and restated in its
entirety:



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     “EIGHTH, to the extent amounts owed pursuant to clauses FIRST through SEVENTH above have
been paid in full from all sources of Income (including, but not limited to, the application of
principal payments and prepayments received from Obligors) to the Borrowers, any remaining Excess
Principal Amount with respect to any Pledged Mortgage Asset deposited into the Collection Account
since the previous Payment Date;



     NINTH, pari passu and pro rata (based on the amounts owed to such Persons under this clause),
to the principal amount of the Loans outstanding and not repaid pursuant to clauses “FIRST” through
“SEVENTH” above and the Aggregate Outstanding Principal (as defined in the Working Capital
Facility), in each case, in such manner and order as the Administrative Agent shall determine in
its discretion; and



     TENTH, 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;



     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, amounts available pursuant to clause “EIGHTH” or “TENTH”
shall not be transferred to the Borrowers but shall remain in the Collection Account and be 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).”



     (d)The following new Section 2.18 is hereby added to the Credit Agreement:



     “Section 2.18 Discounted Payoff Amount.



     (a) Notwithstanding anything set forth in the Credit Documents to the contrary, subject to the
terms of this Section 2.18, Lender will accept the Discounted Payoff Amount in full satisfaction of
the Credit Obligations provided, that (i) no Event of Default has occurred and is
continuing, (ii) the Lender has received the Discounted Payoff Amount in immediately available
funds on or before May 31, 2010 (as such date may be extended as set forth in clause (b) below, the
“Payoff Date”), (iii) the Borrowers and the Guarantors deliver to the Lender and the
Administrative Agent on or before the Payoff Date an executed agreement terminating the Credit
Documents (subject to any provisions which by the terms expressly survive termination) other than
the Warrant Agreements and Registration Rights Agreement, which shall continue in full force and
effect, in the form of Exhibit A attached hereto, and (iv) the conditions set forth in
Section 2.16(a) of the Working Capital Facility Loan Agreement have been satisfied.



     (b) Upon written notice by the Borrowers to the Administrative Agent delivered to the
Administrative Agent no later than ten (10) calendar days prior to the Payoff Date, provided no
Event of Default has occurred and is continuing and the Borrowers pay the Payoff Extension Amount
before the effective date of the extension, the Borrowers shall be entitled to up to two 45 day
extensions of the Payoff Date. To the extent applicable, the first extension shall extend the
Payoff Date to July 15, 2010
and shall be effective, provided no Event of Default has occurred and is continuing, upon the
payment of the Payoff Extension Amount no later than May 28, 2010, which amount shall be applied to
the principal amount of the Loans outstanding and the Aggregate Outstanding Principal (as defined
in the Working Capital Facility) in such order and manner as the Administrative Agent determines in
its discretion and credited against the Discounted Payoff Amount. To the extent applicable, the
second extension shall



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extend the Payoff Date to August 27, 2010 and shall be effective, provided no Event of
Default has occurred and is continuing, upon the payment of the Payoff Extension Amount no later
than July 14, 2010, which amount shall be applied to the principal amount of the Loans outstanding
and the Aggregate Outstanding Principal (as defined in the Working Capital Facility) in such order
and manner as the Administrative Agent determines in its discretion and credited against the
Discounted Payoff Amount.




     (c) In the event that any of the conditions set forth in this Section 2.18 are not satisfied
on or before Payoff Date (as the same may be extended in accordance with the terms hereof), the
Lender shall have no obligation whatsoever under this Section 2.18 or otherwise to accept the
Discounted Payoff Amount in satisfaction of the outstanding Credit Obligations. For the avoidance
of doubt, until the conditions precedent set forth in this Section 2.18 are satisfied, the Lender
and the Administrative Agent shall have the right to exercise all of its rights and remedies under
the Credit Documents, the Loan Documents (as defined in the Working Capital Facility) and
Requirements of Law. Notwithstanding anything set forth in the Credit Documents, the
Administrative Agent shall apply any amounts received under this Section 2.18 to the principal
amount of the Loans outstanding and the Aggregate Outstanding Principal (as defined in the Working
Capital Facility) in such order and manner as the Administrative Agent determines in its
discretion. For the avoidance of doubt, until the Borrowers pay the Discounted Payoff Amount and
comply with the other provisions of this Section 2.18, all obligations, duties and agreements of
the Borrowers and Guarantors continue to remain in full force and effect.



     (d) All principal payments received and applied to the outstanding principal under the Credit
Documents or the Loan Documents (as defined in the Working Capital Facility) on and after December
11, 2009 shall be credited against the Discounted Payoff Amount.



     (e) The parties acknowledge that pursuant to Transactions on December 11, 2009 and December
16, 2009, the Borrowers have made principal payments in the net aggregate amount of $16,854,428,
which amount shall be credited against the Discounted Payoff Amount.



     (f) Promptly after application by the Administrative Agent of payments to reduce the Release
Amounts of any Collateral pursuant to the terms hereof, the Administrative Agent shall give the
Borrowers notice of the Pledged Mortgage Assets to which such payments have been applied.”



     (e) Section 10.2(a)(i) f the Credit Agreement is hereby amended and restated in its entirety
as follows:



               ”(i) If to the Borrowers or any other Credit Party:


c/o Arbor Commercial Mortgage LLC

333 Earle Ovington Boulevard

Uniondale, New York 11553

Attention: John Bishar, Esq.

Phone No.: (516) 506-4590

Facsimile No.: (516) 542-2561



With a copy to:



Arbor Commercial Mortgage LLC

333 Earle Ovington Boulevard

Uniondale, New York 11553

Attention: John Natalone

Phone No.: (516) 506-4409

Facsimile No.: (516) 832-6409”




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     Section 2. Credit Documents in Full Force and Effect as Modified.



     Except as specifically modified hereby or the Fee Letter, the Credit Documents shall remain in
full force and effect in accordance with their terms. All references to any Credit Document shall
be deemed to mean each Credit Document as modified by this Amendment No. 2 and the Fee Letter.
This Amendment No. 2 and the Fee Letter shall not constitute a novation of the Credit Documents,
but shall constitute modifications thereof. The parties hereto agree to be bound by the terms and
conditions of the Credit Documents, as modified by this Amendment No. 2 and the Fee Letter, as
though such terms and conditions were set forth herein. Each of the Borrowers, the Guarantors and
the Pledgor hereby ratifies the Credit Agreement and the other Credit Documents and acknowledges
and reaffirms (a) that it is bound by all terms of the Credit Agreement and the other Credit
Documents applicable to it and (b) that it is responsible for the observance and full performance
of its respective Obligations. This Amendment No. 2 is a Credit Document executed pursuant to the
Credit Agreement and shall be construed, administered and applied in accordance with the terms and
provisions of the Credit Agreement.



     Section 3. Representations.



     Each of the Borrowers, the Guarantors and the Pledgor represents and warrants, as of the date
of this Amendment No. 2, as follows:



     (a) it is duly incorporated or organized, validly existing and in good standing under the laws
of its jurisdiction of organization and each jurisdiction where it conducts business;



     (b) the execution, delivery and performance by it of this Amendment No. 2 and the Fee Letter
is within its corporate, company or partnership powers, has been duly authorized and does not
contravene (1) its Authority Documents or its applicable resolutions, (2) any Requirements of Law
or (3) any Contractual Obligation, Indebtedness or Guarantee Obligation;



     (c) no consent, license, permit, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority or other Person is required in connection with the
execution, delivery, performance, validity or enforceability by or against it of this Amendment No.
2 or the Fee Letter;



     (d) this Amendment No. 2 and the Fee Letter have been duly executed and delivered by it;



     (e) this Amendment No. 2, the Fee Letter and each of the Credit Documents as modified thereby
constitute its legal, valid and binding obligation, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
or by general principles of equity;



     (f) the Security Documents continue to create a valid security interest in, and Lien upon, the
Collateral, in favor of the Administrative Agent, for the benefit of the Secured Parties, which
security interests and Liens are perfected in accordance with the terms of the Security Documents
and prior to all Liens subject to Permitted Liens;



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     (g) no Default or Event of Default exists or will exist after giving effect to this
Amendment No. 2;



     (h) each of the Credit Documents is in full force and effect and neither the Borrowers, the
Guarantors nor the Pledgor has any defense, offset, counterclaim, abatement, right of rescission or
other claims, actions, causes of action, demands, damages or liabilities of any kind or nature, in
all cases whether legal or equitable, available to the Borrowers, the Guarantors, the Pledgor or
any other Person with respect to (i) this Amendment No. 2, the Credit Agreement, the Credit
Documents or any other instrument, document and/or agreement described herein or therein, as
modified and amended hereby, (ii) the obligation of the Borrowers and the Guarantors to repay the
Obligations and other amounts due under the Credit Documents or (iii) the Administrative Agent, the
Lenders or the Administrative Agent’s or the Lenders’ respective officers, employees,
representatives, agents, counsel or directors arising out of or from or in any way related to or in
connection with the Credit Agreement or the Credit Documents, including, without limitation, any
action by such Persons, or failure of such Persons to act, under the Credit Agreement or the other
Credit Documents on or prior to the date hereof; and



     (i) except as specifically provided in this Amendment No. 2, the Obligations are not reduced
or modified by this Amendment No. 2.



     Section 4. Conditions Precedent.



     The effectiveness of this Amendment No. 2 and the Fee Letter is subject to the following
conditions precedent: (i) delivery to the Administrative Agent of this Amendment No. 2 and the Fee
Letter duly executed by each of the parties hereto; (ii) the payment of all legal fees and expenses
of Moore & Van Allen PLLC, as counsel to the Administrative Agent, in the amount to be set forth on
a separate invoice; and (iii) delivery to the Administrative Agent of such other documents,
agreements or certifications as the Administrative Agent may reasonably require.



     Section 5. Miscellaneous.



     (a) This Amendment No. 2 may be executed in any number of counterparts (including by
facsimile), and by the different parties hereto on the same or separate counterparts, each of which
shall be deemed to be an original instrument but all of which together shall constitute one and the
same agreement.



     (b) The descriptive headings of the various sections of this Amendment No. 2 are inserted for
convenience of reference only and shall not be deemed to affect the meaning or construction of any
of the provisions hereof.



     (c) This Amendment No. 2 may not be amended or otherwise modified, waived or supplemented
except as provided in the Credit Agreement.



     (d) The interpretive provisions of Sections 1.2 through 1.8 of the Credit
Agreement are incorporated herein mutatis mutandis.



     (e) This Amendment No. 2 and the Fee Letter represents the final agreement among the parties
and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements
between the parties. There are no unwritten oral agreements between the parties.



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     (f) THIS AMENDMENT NO. 2 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AMENDMENT NO. 2 SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.



     (g) Each provision of this Amendment No. 2 shall be valid, binding and enforceable to the
fullest extent permitted by Requirements of Law. In case any provision in or obligation under this
Amendment No. 2 shall be invalid, illegal or unenforceable in any jurisdiction (either in its
entirety or as applied to any Person, fact, circumstance, action or inaction), the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction or as applied to any Person, fact, circumstance, action or
inaction, shall not in any way be affected or impaired thereby.



     (h) In consideration of the Lenders and the Administrative Agent entering into this Amendment
No. 2, each of the Borrowers, each of the Guarantors and the Pledgor hereby waives, releases and
discharges the Administrative Agent, the Lenders and the Administrative Agent’s and the Lenders’
respective officers, employees, representatives, agents, counsel and directors from any and all
actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in
law or in equity, now known or unknown, suspected or unsuspected to the extent that any of the
foregoing arises out of or from or in any way relating to or in connection with the Credit
Agreement or the Credit Documents, including but not limited to, any action or failure to act under
the Credit Agreement or the other Credit Documents on or prior to the date hereof, except, with
respect to any such Person being released hereby, any actions, causes of action, claims, demands,
damage and liabilities arising out of such Person’s gross negligence or willful misconduct in
connection with the Credit Agreement or the other Credit Documents.



     (i) Each Guarantor (i) agrees to and consents to the terms and provisions of this Amendment
No. 2, (ii) acknowledges and confirms that the Guaranty remains in full force and effect
notwithstanding this Amendment No. 2, and (iii) reaffirms its obligations under the Guaranty.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




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     IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be executed by their
respective officers thereunto duly authorized, as of the date first above written.



	 	 	 
	BORROWERS:

	 	ARBOR REALTY FUNDING, LLC, a Delaware
	 

	 	limited liability company






	 	 	 	 	 
	 	 	 
	 	By:  	/s/ John Natalone
 	 
	 	 	Name:  	John Natalone 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	ARSR TAHOE, LLC, a Delaware limited liability company 

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

partnership

 	 
	 	By:  	/s/ John Natalone
 	 
	 	 	Name:  	John Natalone 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	ART 450 LLC, a Delaware limited liability company 

 	 
	 	By:  	/s/ John Natalone
 	 
	 	 	Name:  	John Natalone 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	ARBOR REALTY SR, INC., a Maryland corporation 

 	 
	 	By:  	/s/ John Natalone
 	 
	 	 	Name:  	John Natalone 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	ARBOR ESH II LLC, a Delaware limited liability company 

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



[Signatures Continued on the Following Page]




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	GUARANTORS:

	 	ARBOR REALTY TRUST, INC.,
	 

	 	a Maryland corporation






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

a Delaware limited partnership

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

a Maryland corporation

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



[Signatures Continued on the Following Page]


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	ADMINISTRATIVE AGENT:

	 	WACHOVIA BANK, NATIONAL ASSOCIATION,
	 

	 	as Administrative Agent on behalf of the Lenders






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



	 	 	 
	LENDER:

	 	WACHOVIA BANK, NATIONAL ASSOCIATION,
	 

	 	as Lender






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



[Signatures Continued on the Following Page]




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CONSENTED TO BY:




	 	 	 
	PLEDGOR:

	 	ARBOR REALTY SR, INC.,
	 

	 	a Maryland corporation






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



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CONSENTED TO BY:




	 	 	 
	THE CUSTODIAN:

	 	WELLS FARGO BANK, NATIONAL ASSOCIATION






	 	 	 	 	 
	 	 	 
	 	By:  	                           /s/ Kathleen Marshall
 	 
	 	 	Name:  	Kathleen Marshall 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 	 	 
	 

	 	Address for Notices:	 	 	 	 
	 	 	Wells Fargo Bank, National Association
	 

	 	1055 10th Avenue SE	 	 	 	 
	 	 	Minneapolis, Minnesota 55414
	 

	 	Attention:
	 	Kathleen Marshall	 	 
	 

	 	 	 	Vice President	 	 
	 

	 	Facsimile No:
	 	(612) 466–5416	 	 
	 

	 	Confirmation No:
	 	(612) 667-8032	 	 






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Exhibit A




Form of Release Agreement



TERMINATION AND RELEASE AGREEMENT 

(Wachovia/Arbor)



     THIS TERMINATION AND RELEASE AGREEMENT, dated as of [                                         ], 2010 (this
“Release Agreement”), is entered into by and 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 REALTY LIMITED
PARTNERSHIP, a Delaware limited partnership (together with its successors and permitted assigns,
“Arbor Realty”), as a borrower, ART 450 LLC, a Delaware limited liability company (together
with its successors and permitted assigns, “ART 450”), as a borrower, ARBOR REALTY SR,
INC., a Maryland corporation (together with its successors and permitted assigns, “ARSR”),
as a borrower and as pledgor, ARBOR ESH II LLC (together with its successors and permitted assigns,
“Arbor ESH” and, together with Arbor Realty Funding, ARSR Tahoe, Arbor Realty and ARSR,
each individually referred to herein as a “Borrower” and collectively referred to herein as
the “Borrowers”), as a borrower, ARBOR REALTY TRUST, INC., a Maryland corporation (together
with its successors and permitted assigns, “ART”), as a guarantor, Arbor Realty, as a
guarantor, ARSR, as a guarantor (ARSR, together with ART and Arbor Realty, the
“Guarantors”), the several banks and other financial institutions party to the Credit
Agreement (each, together with its successors and assigns, a “Lender” and, collectively,
the “Lenders”), WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as
administrative agent for the Lenders (together with its successors and assigns in such capacity,
the “Administrative Agent”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking
association (together with its successors and permitted assigns, “Custodian”), as the
custodian. Capitalized terms used and not otherwise defined herein shall have the meanings given
to such terms in the Credit Agreement (as defined below).



R E C I T A L S




     WHEREAS, the Borrowers, the Guarantors, the Lenders and the Administrative Agent are parties
to that certain First Amended and Restated Credit Agreement, dated as of July 23, 2009 (as amended,
modified, restated, replaced, waived, substituted, supplemented or extended from time to time,
including, but not limited to, pursuant to that First Amendment to First Amended and Restated
Credit Agreement and Other Credit Documents, dated as of December 16, 2009, and that Second
Amendment to First Amended and Restated Credit Agreement, dated as of December 24, 2009 (the
“Second Amendment”), the “Credit Agreement”);



     WHEREAS, the Borrower has requested, and the Lender and the Administrative Agent have agreed,
subject to all covenants, terms and conditions provided for in the Second Amendment, to accept the
Discounted Payoff Amount, which amount is less than the outstanding principal amount of the Loan,
in full satisfaction of the Credit Obligations, provided that the Borrowers pay to the
Lender such Discounted Payoff Amount and the other amounts required under the Second Amendment in a
timely manner, the Borrowers, the Guarantors and the Pledgors execute this Release Agreement and
the other requirements of the Second Amendment are satisfied;




Termination
and Release Agreement

(Wachovia/Arbor)




 









 






     WHEREAS, the Custodian is party to a Credit Document and desires to evidence its agreement to
the termination set forth herein; and



     WHEREAS, the Borrowers, the Guarantors, the Pledgors, the Lender, the Administrative Agent and
the Custodian desire to terminate their rights, duties and obligations under the Credit Agreement
and the other Credit Documents (other than the Warrant Agreements and Registration Rights
Agreement, which shall continue in full force and effect) (such terminated documents hereinafter
referred to as the “Terminated Documents”; for the avoidance of doubt, agreements
evidencing or relating to Credit-Party-Related Obligations which are unrelated to the Credit
Agreement and/or Credit Documents are not being terminated hereby and are not part of the
Terminated Documents).



     NOW THEREFORE, in consideration of the foregoing recitals, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:



     Section 1. Release of Lender and Administrative Agent.



     Each of the Borrowers, the Guarantors and the Pledgor hereby waives, releases and discharges
the Lender, the Administrative Agent and the Lender’s and the Administrative Agent’s successors,
assigns, affiliates, officers, employees, representatives, agents, counsel and directors from any
and all actions, causes of action, claims, demands, damages, liabilities, controversies, duties,
covenants, responsibilities, obligations, costs, losses and /or expenses of whatever kind or
nature, in law or in equity, now known or unknown, suspected or unsuspected, whether existing now
or hereafter, arising out of, from or in any way relating to or in connection with, directly or
indirectly, the Credit Agreement or the other Credit Documents including, but not limited to, any
action or failure to act under the Credit Agreement or the other Credit Documents, on or prior to
the date hereof.



     Section 2. Termination of Credit Documents.



     (a) Subject to Section 4 of this Release Agreement, the rights, duties and obligations
(except those rights, duties and obligations that expressly survive termination, as set forth in
the Terminated Documents) of each party under the Credit Agreement and the other Terminated
Documents, are hereby terminated, and each of the parties hereto agrees that all duties and
obligations (except such duties and obligations that expressly survive termination, as set forth in
the Credit Agreement and the other Terminated Documents) of each party shall be released hereby.



     (b) On and after the effective date of this Release Agreement, the Borrowers and the Custodian
shall execute and/or deliver such other certifications, documents and agreements as the
Administrative Agent shall from time to time reasonably require to give effect to this Release
Agreement.



     Section 3. Representations.



     Each of the Borrowers, the Guarantors and the Pledgor represents and warrants, as of the date
of this Release Agreement, as follows:



     (a) it is duly incorporated or organized, validly existing and in good standing under the laws
of its jurisdiction of organization and each jurisdiction where it conducts business;



     (b) the execution, delivery and performance by it of this Release Agreement is within its
corporate, company or partnership powers, has been duly authorized and does not contravene (1) its



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Exh A - 2









 








Authority Documents or its applicable resolutions, (2) any Requirements of Law or (3) any
Contractual Obligation, Indebtedness or Guarantee Obligation;




     (c) no consent, license, permit, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority or other Person is required in connection with the
execution, delivery, performance, validity or enforceability by or against it of this Release
Agreement;



     (d) this Release Agreement has been duly executed and delivered by it;



     (e) this Release Agreement constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally or by general principles of equity;



     (f) neither the Borrowers, the Guarantors nor the Pledgor has any defense, offset,
counterclaim, abatement, right of rescission or other claims, actions, causes of action, demands,
damages or liabilities of any kind or nature, in all cases whether legal or equitable, available to
the Borrowers, the Guarantors, the Pledgor or any other Person with respect to (i) this Release
Agreement, the Credit Agreement, the Credit Documents or any other instrument, document and/or
agreement described herein or therein, as modified and amended hereby, or (ii) the Administrative
Agent, the Lenders or the Administrative Agent’s or the Lenders’ respective officers, employees,
representatives, agents, counsel or directors arising out of or from or in any way related to or in
connection with the Credit Agreement or the Credit Documents, including, without limitation, any
action by such Persons, or failure of such Persons to act, under the Credit Agreement or the other
Credit Documents on or prior to the date hereof; and



     (g) the Recitals set forth herein are true and correct.



     Section 4.
Conditions Precedent.



     The effectiveness of this Release Agreement is subject to the following conditions precedent:
(i) delivery to the Administrative Agent of this Release Agreement duly executed by each of the
parties hereto and the Termination and Release Agreement, dated as of the date hereof (the
“Working Capital Facility Release”), by and among ART, as a borrower, Arbor Realty GPOP,
Inc., as a borrower, Arbor Realty LPOP, Inc., as a borrower, Arbor Realty, as a borrower, ARSR, as
a borrower, Arbor Realty Collateral Management, LLC, as a borrower, Wachovia Bank, National
Association, as a lender and administrative agent, and Wells Fargo Bank, National Association, as
the custodian, which agreements shall be held in escrow by the Administrative Agent’s counsel
pending satisfaction of the other conditions set forth in this Section 4; (ii) payment to the
Lender and the Administrative Agent of the Discounted Payoff Amount in a timely manner and the
Borrowers’ satisfaction of all other conditions contained in the Second Amendment; (iii) the
representations and warranties set forth in Section 3 are true and correct in all material
respects; (iv) the payment of all legal fees and expenses of Moore & Van Allen PLLC, as counsel to
the Administrative Agent, in the amount to be set forth on a separate invoice; and (v) delivery to
the Administrative Agent of such other documents, agreements or certifications as the
Administrative Agent may reasonably require. Upon satisfaction of the foregoing conditions, which
satisfaction must be confirmed in writing by the Administrative Agent and the Administrative
Agent’s release from escrow to all parties copies of this Release Agreement and the Working Capital
Facility Release executed by all parties, the Borrowers are authorized (at the Borrowers’ expense)
to terminate the relevant UCC financing statements filed against the Borrowers and the Pledgor in
connection with the Terminated Documents and the Custodian is authorized to release to the
Borrowers all Mortgage Asset Files and other documents held pursuant to the Custodial Agreement.



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Exh A - 3









 







     Section 5. Miscellaneous.



     (a) This Release Agreement may be executed in any number of counterparts (including by
facsimile), and by the different parties hereto on the same or separate counterparts, each of which
shall be deemed to be an original instrument but all of which together shall constitute one and the
same agreement.



     (b) The descriptive headings of the various sections of this Release Agreement are inserted
for convenience of reference only and shall not be deemed to affect the meaning or construction of
any of the provisions hereof.



     (c) This Release Agreement may not be amended or otherwise modified, waived or supplemented
except as provided in the Credit Agreement.



     (d) The interpretive provisions of Sections 1.2 through 1.8 of the Credit
Agreement are incorporated herein mutatis mutandis.



     (e) This Release Agreement represents the final agreement among the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements between the
parties. There are no unwritten oral agreements between the parties.



     (f) THIS RELEASE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS RELEASE
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.



     (g) Each provision of this Release Agreement shall be valid, binding and enforceable to the
fullest extent permitted by Requirements of Law. In case any provision in or obligation under this
Release Agreement shall be invalid, illegal or unenforceable in any jurisdiction (either in its
entirety or as applied to any Person, fact, circumstance, action or inaction), the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction or as applied to any Person, fact, circumstance, action or
inaction, shall not in any way be affected or impaired thereby.



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Exh A - 4









 








     IN WITNESS WHEREOF, the parties have caused this Release Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.



	 	 	 
	BORROWERS:

	 	ARBOR REALTY FUNDING, LLC, a Delaware
	 

	 	limited liability company






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 
	 	 	Title:  	 
	 
	 	ARSR TAHOE, LLC, a Delaware limited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	 
	 	 	Title:  	 
	 
	 	ARBOR REALTY LIMITED PARTNERSHIP, a Delaware limited partnership

 	 
	 	By:  	 	 
	 	 	Name:  	 
	 	 	Title:  	 
	 
	 	ART 450 LLC, a Delaware limited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	 
	 	 	Title:  	 
	 
	 	ARBOR REALTY SR, INC., a Maryland corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 
	 	 	Title:  	 
	 
	 	ARBOR ESH II LLC, a Delaware limited liability company

 	 
	 	By:  	 	 
	 	 	Name:  	 
	 	 	Title:  	 
	 



[Signatures Continued on the Following Page]



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Exh A - 1









 






	 	 	 
	GUARANTORS:

	 	ARBOR REALTY TRUST, INC.,
	 

	 	a Maryland corporation






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 
	 	 	Title:  	 
	 
	 	ARBOR REALTY LIMITED PARTNERSHIP,

a Delaware limited partnership

 	 
	 	By:  	 	 
	 	 	Name:  	 
	 	 	Title:  	 
	 
	 	ARBOR REALTY SR, INC.,

a Maryland corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 
	 	 	Title:  	 
	 



	 	 	 
	PLEDGOR:

	 	ARBOR REALTY SR, INC.,
	 

	 	a Maryland corporation






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 
	 	 	Title:  	 
	 



[Signatures Continued on the Following Page]



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Exh A - 2









 






	 	 	 
	ADMINISTRATIVE AGENT:

	 	WACHOVIA BANK, NATIONAL ASSOCIATION,
	 

	 	as Administrative Agent on behalf of the Lenders






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	John Nelson 	 
	 	 	Title:  	Managing Director 	 
	 



	 	 	 
	LENDER:

	 	WACHOVIA BANK, NATIONAL ASSOCIATION,
	 

	 	as Lender






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	John Nelson 	 
	 	 	Title:  	Managing Director 	 
	 



[Signatures Continued on the Following Page]




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Exh A - 3









 







	 	 	 
	THE CUSTODIAN:

	 	WELLS FARGO BANK, NATIONAL ASSOCIATION






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 
	 	 	Title:  	 
	 



	 	 	 	 	 	 	 
	 

	 	Address for Notices:	 	 	 	 
	 
	 	 	Wells Fargo Bank, National Association
	 

	 	1055 10th Avenue SE	 	 	 	 
	 	 	Minneapolis, Minnesota 55414
	 

	 	Attention:
	 	Karolyn Kleingartner	 	 
	 

	 	 	 	Trust Officer	 	 
	 

	 	Facsimile No:
	 	(612) 466–5416	 	 
	 

	 	Confirmation No:
	 	(612) 466–5895	 	 





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and Release Agreement

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Exh A - 4