exv10w36






EXHIBIT 10.36




EXECUTION VERSION




FIRST AMENDMENT TO

FIRST AMENDED AND RESTATED CREDIT AGREEMENT AND OTHER CREDIT DOCUMENTS 

(Wachovia/Arbor)




     THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT AND OTHER CREDIT
DOCUMENTS, dated as of December 16, 2009 (this “Amendment No. 1”), 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”). 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 by this Amendment No. 1, the “Credit Agreement”);



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



     WHEREAS, the Administrative Agent and the Lenders are willing to modify the Credit Agreement
and the other Credit Documents 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



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     WHEREAS, the Pledgor is a party to other Credit Documents and related agreements that may
be affected, directly or indirectly, by this Amendment No. 1 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. 1” means that certain First Amendment to First Amended and Restated
Credit Agreement, dated as of December 16, 2009, by and among the Borrowers, the Guarantors, the
Administrative Agent and the lenders party thereto, as consented to by the Pledgor and Custodian.”



     ““Golf Terrace Mortgage Asset” means the Mezzanine Loan known as Golf Terrace in the
original face amount of $5,921,700, as amended, modified, waived, supplemented, extended, restated
or replaced from time to time.”



     ““Golf Terrace Intercreditor Agreement” means the Intercreditor Agreement, dated as of
November 30, 2005, by and among Arbor Commercial Funding, LLC, Arbor Realty Funding, Park at Laurel
Oaks Associates LLC, Laurel Oaks, LLC, TTF VI REIT, Randy Ferreira and Reuven Odel, as amended,
modified, waived, supplemented, extended, restated or replaced from time to time.”



     ““Lake Shore Mortgage Asset” means the Junior Interest (Participation A-1 Interest)
known as Lake Shore in the original face amount of $17,000,000, as amended, modified, waived,
supplemented, extended, restated or replaced from time to time.”



     ““Lexford Mortgage Asset” means the Mortgage Asset known as Lexford in the original
face amount of $30,000,000, as amended, modified, waived, supplemented, extended, restated or
replaced from time to time.”



     ““Substituted Assets” means the Golf Terrace Mortgage Asset and the Lake Shore
Mortgage Asset, as such Mortgage Assets are substituted in accordance with Section 2.2(e) of the
Credit Agreement.”



     (b) Section 2.2(e) of the Credit Agreement is hereby amended and restated in its
entirety as follows:



     “(e) Notwithstanding anything set forth in the Credit Documents to the contrary, on the date
of Amendment No. 1., each Term Loan Lender and the Administrative Agent shall permit the Borrowers
to substitute the Lexford Mortgage Asset with the Substituted Assets. In connection therewith, the
Borrowers shall execute and deliver a Confirmation with respect to each such Substituted Asset and
otherwise satisfy the requirements of Section 2.2 and the Credit Documents in connection with the
making of a Term Loan. Upon satisfaction of such conditions, the Substituted Assets shall be
“Pledged
Mortgage Assets” for all purposes of this Agreement and the other Credit Documents. Following
the satisfaction of such conditions and such other conditions as the Administrative Agent may
require in its discretion, the Administrative Agent shall release the Lexford Mortgage Asset from
the Lien created by



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the Security Documents. For the avoidance of doubt, the Borrowers have no right to
substitute any Pledged Mortgage Asset without the prior written consent of the Administrative
Agent, which consent may be withheld in the discretion of the Administrative Agent.”




     (c) A new Section 2.4(b)(ix) is hereby added to the Credit Agreement as follows:



     “Notwithstanding anything set forth in the Credit Documents to the contrary, if the Lake Shore
Mortgage Asset is subject to a Collateral Default prior to the occurrence of an Asset Valuation
Period, the Borrowers shall pay to the Administrative Agent, within one (1) Business Day of the
occurrence of such Collateral Default, fifty percent (50%) of the Allocated Term Loan Amount for
the Lake Shore Mortgage Asset and, if either (A) such Collateral Default is not resolved to the
Administrative Agent’s satisfaction in its discretion within ninety (90) calendar days of the
occurrence of such Collateral Default or (B) (1) the Administrative Agent makes any recommendations
(regardless of whether the Administrative Agent or the Borrowers have the right to make such
recommendations) regarding the matters set forth in Sections 3(e) or 3(g) of the Amended and
Restated Participation and Servicing Agreement, dated as of February 15, 2008 (the “Lake Shore
Participation Agreement”), among Arbor Realty Participation, LLC, as the seller, Arbor Realty
SR, Inc., as the participant A, and Arbor Realty Participation, LLC, as the participant B (as such
agreement is modified or amended from time to time), which are not followed or (2) the
Administrative Agent does not approve of an action taken by the “Seller” or any “Qualified
Servicer” (in each case, as defined in the Lake Shore Participation Agreement) with respect to the
Lake Shore Mortgage Asset (the actions referred to in clauses (A) and (B) hereinafter referred to
as “Non-Approved Actions”), the Borrowers shall, within one (1) Business Day of the
occurrence of any Non-Approved Actions, pay to the Administrative Agent the balance of the
Allocated Term Loan Amount for the Lake Shore Mortgage Asset plus accrued and unpaid interest and
other amounts owed with respect to the Lake Shore Mortgage Asset. If the Lake Shore Mortgage Asset
is subject to a Collateral Default during an Asset Valuation Period, then the provisions of Section
2.5(b)(v) of this Agreement shall apply.”



     (d) A new Section 5.30 is hereby added to the Credit Agreement as follows:



     “Section 5.30 Golf Terrace. Within ninety (90) days of the date of Amendment No. 1,
the Borrowers shall obtain the written consent from the “Senior Lender” (as defined in the Golf
Terrace Intercreditor Agreement) with respect to the applicable Borrower’s pledge of the Golf
Terrace Mortgage Asset to the Administrative Agent and its successors and assigns in accordance
with the terms of this Agreement and the other Credit Documents, which consent shall also include
confirmation that the Administrative Agent (together with its successors and assigns) is a “Loan
Pledgee” under paragraph 15 of the Golf Terrace Intercreditor Agreement, as such consent is
required by the terms of the Golf Terrace Intercreditor Agreement.”



     Section 2. Amendments to the Fee Letter.



     Schedule 1-B to the Fee Letter is amended and restated in its entirety with Exhibit A
attached hereto.



     Section 3. Credit Documents in Full Force and Effect as Modified.



     Except as specifically modified hereby, 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. 1. This Amendment No. 1 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. 1, as



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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. 1 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 4. Representations.



     Each of the Borrowers, the Guarantors and the Pledgor represents and warrants, as of the date
of this Amendment No. 1, as follows:



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



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



     (d) this Amendment No. 1 has been duly executed and delivered by it;



     (e) this Amendment No. 1 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;



     (g) no Default or Event of Default exists or will exist after giving effect to this Amendment
No. 1;



     (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. 1, 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



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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. 1, the Obligations are not reduced
or modified by this Amendment No. 1.



     Section 5. Conditions Precedent.



     The effectiveness of this Amendment No. 1 is subject to the following conditions precedent:
(i) delivery to the Administrative Agent of this Amendment No. 1 duly executed by each of the
parties hereto; (ii) the payment of all 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; (iii)
execution and delivery of Confirmations with respect to the Substituted Assets; and (iv) delivery
to the Administrative Agent of such other documents, agreements or certifications as the
Administrative Agent may reasonably require.



     Section 6. Miscellaneous.



     (a) This Amendment No. 1 may be executed in any number of counterparts (including by
facsimile), and by the different parties hereto on the same or separate counterparts, each of which
shall be deemed to be an original instrument but all of which together shall constitute one and the
same agreement.



     (b) The descriptive headings of the various sections of this Amendment No. 1 are inserted for
convenience of reference only and shall not be deemed to affect the meaning or construction of any
of the provisions hereof.



     (c) This Amendment No. 1 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. 1 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.



     (f) THIS AMENDMENT NO. 1 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT
NO. 1 SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.



     (g) Each provision of this Amendment No. 1 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. 1 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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     (h) In consideration of the Lenders and the Administrative Agent entering into this
Amendment No. 1, 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. 1, (ii) acknowledges and confirms that the Guaranty remains in full force and effect
notwithstanding this Amendment No. 1, and (iii) reaffirms its obligations under the Guaranty.



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     IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be executed by their
respective officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 
	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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Exhibit A




Schedule 1–B




ESH
Release Amounts




	 	 	 
	ASSET	 	ESH RELEASE AMOUNT
	26 Broadway
	 	$2,000,000
	5 Times Square
	 	$953,343.53
	1760 Third Avenue
	 	$750,000
	James Hotel Chicago
	 	$500,000
	DRA
	 	$375,000
	Alpine Asset
	 	$9,000,000
	Water Street
	 	$500,000






First Amendment to Credit Agreement

(Wachovia/Arbor)