EXCHANGE AGREEMENT

Exhibit 10.35

EXECUTION VERSION

EXCHANGE AGREEMENT

among

ARBOR REALTY TRUST, INC.,

ARBOR REALTY SR, INC.

and

KODIAK CDO II, LTD.,

ATTENTUS CDO I, LTD.,

and

ATTENTUS CDO III, LTD.

Dated as of May 6, 2009

EXCHANGE AGREEMENT

     THIS EXCHANGE AGREEMENT, dated as of May 6, 2009 (this “ Agreement ”), is entered into by and among ARBOR REALTY SR, INC., a Maryland corporation (the “ Company ”), ARBOR REALTY TRUST, INC., a Maryland corporation (the “ Guarantor ”), and KODIAK CDO II, LTD. (“ Kodiak II ”), ATTENTUS CDO I, LTD. (“ Attentus I ”) and ATTENTUS CDO III, LTD. (“ Attentus III, ” together with Kodiak II and Attentus I, “ Kodiak ”).

RECITAL

     A. Reference is made to (i) that certain Junior Subordinated Indenture dated as of April 6, 2005 (the “ Indenture I ”); (ii) that certain Junior Subordinated Indenture dated as of June 2, 2006 (the “ Indenture II ”); (iii) that certain Junior Subordinated Indenture dated as of April 11, 2007 (the “ Indenture III ”); and (iv) that certain Junior Subordinated Indenture dated as of April 13, 2007 (the “ Indenture IV, ” together with Indenture I, Indenture II and Indenture III, “ Existing Indentures ”) each by and between the Company, the Guarantor and Wilmington Trust Company (“ Wilmington ”), as trustee (the “ Existing Indenture Trustee ”).

     B. Reference is made to (i) that certain Amended and Restated Trust Agreement dated as of April 6, 2005 (the “ Trust Agreement I ”); (ii) that certain Amended and Restated Trust Agreement dated as of June 2, 2006 (the “ Trust Agreement II ”); (iii) that certain Amended and Restated Trust Agreement dated as of April 11, 2007 (the “ Trust Agreement III ”); and iv) that certain Amended and Restated Trust Agreement dated as of April 13, 2007 (the “ Trust Agreement IV ,” together with Trust Agreement I, Trust Agreement II and Trust Agreement III, the “ Trust Agreements ”); each by and among the Company, as depositor, the Guarantor, as guarantor, Wilmington, as property trustee (the “ Property Trustee ”), Wilmington, as Delaware trustee (the “ Delaware Trustee ”), and the respective administrative trustees named therein.

     C. Arbor Realty Trust III (“ Trust III ”) is the holder of the Junior Subordinated Note due 2035 in the original principal amount of $25,774,000 issued by the Company pursuant to Indenture I (“ Subordinated Note I ”).

     D. Arbor Capital Trust VII (“ Trust VII ”) is the holder of the Junior Subordinated Note due 2036 in the original principal amount of $15,464,000 issued by the Company pursuant to Indenture II (“ Subordinated Note II ”).

     E. Arbor Capital Trust VIII (“ Trust VIII ”) is the holder of the Junior Subordinated Note due 2037 in the original principal amount of $14,433,000 issued by the Company pursuant to Indenture III (“ Subordinated Note III ”).

     F. Arbor Capital Trust IX (“ Trust IX ”) is the holder of the Junior Subordinated Note due 2037 in the original principal amount of $38,660,000 issued by the Company pursuant to Indenture IV (“ Subordinated Note IV, ” together with Subordinated Note I, Subordinated Note II, Subordinated Note III, the “ Existing Subordinated Notes ”).

     G. Pursuant to Trust Agreement I, Trust III issued a certain Preferred Security Certificate (as such term is defined in Trust Agreement I) in the amount of Twenty Five Million Dollars ($25,000,000) (the “ Original Security I ”), which Original Security I is a global security.

     H. Pursuant to Trust Agreement II, Trust VII issued a certain Preferred Security Certificate (as such term is defined in Trust Agreement II) in the amount of Fifteen Million Dollars ($15,000,000) (the “ Original Security II ”), which Original Security II is a global security.

     I. Pursuant to Trust Agreement III, Trust VIII issued a certain Preferred Security Certificate (as such term is defined in Trust Agreement III) in the amount of Fourteen Million Dollars ($14,000,000) (the “ Original Security III ”), which Original Security III is a global security.

     J. Pursuant to Trust Agreement IV, Trust IX issued a certain Preferred Security Certificate (as such term is defined in Trust Agreement IV) in the amount of Thirty Seven Million Five Hundred Thousand Dollars ($37,500,000) (the “ Original Security IV ,” together with Original Security I, Original Security II and Original Security III, the “ Original Securities ”), which Original Security IV is a global security.

     K. Attentus I is the holder of $18,950,000 in principal amount of a beneficial interest in Original Security I (the “ Holding I ”).

     L. Attentus III is the holder of $2,350,000 in principal amount of a beneficial interest in Original Security II (the “ Holding II ”).

     M. Attentus III is the holder of $14,000,000 in principal amount of a beneficial interest in Original Security III (the “ Holding III ”).

     N. Kodiak II is the holder of $28,125,000 in principal amount of a beneficial interest in Original Security IV (the “ Holding IV, ” together with the Holding I, Holding II and Holding II, the “ Kodiak Holdings ”).

     O. Simultaneously herewith, the Company, the Guarantor and Wilmington, as trustee (the “ New Indenture Trustee ”) have entered into (a) that certain Junior Subordinated Indenture I (the “ New Indenture I ”) pursuant to which Company proposes to issue Twenty One Million Two Hundred Twenty Four Thousand Dollars ($21,224,000) in original aggregate principal amount of the Junior Subordinated Notes due 2035; (b) that certain Junior Subordinated Indenture II (the “ New Indenture II ”) pursuant to which Company proposes to issue Two Million Six Hundred Thirty Two Thousand Dollars ($2,632,000) in original aggregate principal amount of the Junior Subordinated Notes due 2036; and (c) that certain Junior Subordinated Indenture III (the “ New Indenture III ,” together with New Indenture I and New Indenture II, the “New Indentures" ) pursuant to which Company proposes to issue Forty Seven Million One Hundred Eighty Thousand Dollars ($47,180,000) in original aggregate principal amount of the Junior Subordinated Notes due 2037. Pursuant to the New Indentures, such Junior Subordinated Notes will be issued by the Company as follows (collectively, the “ Securities ”):

     P. On the terms and subject to the conditions set forth in this Agreement, the Company and Kodiak have agreed to exchange the Kodiak Holdings for the Securities.

     NOW, THEREFORE, in consideration of the mutual agreements and subject to the terms and conditions herein set forth, the parties hereto agree as follows:

      Definitions . This Agreement, the New Indentures, the Parent Guarantees and the Securities are collectively referred to herein as the “ Operative Documents .” All other capitalized terms used but not defined in this Agreement shall have the respective meanings ascribed thereto in the New Indentures.

     “ Attentus I ” has the meaning set forth in the introductory paragraph hereof.

     “ Attentus III ” has the meaning set forth in the introductory paragraph hereof.

     “ Bankruptcy Code ” means the Bankruptcy Reform Act of 1978, 11 U.S.C. §§101 et seq., as amended.

     “ Benefit Plan ” means an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, a “plan” as defined in Section 4975 of the Code or any entity whose assets include (for purposes of U.S. Department of Labor Regulations Section 2510.3-101 or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan.”

     “ CDO Trustee ” has the meaning set forth in Section 2(b)(i) .

     “ Code ” means the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated under it.

     “ Closing Date ” has the meaning set forth in Section 2(b).

     “ Closing Room ” has the meaning set forth in Section 2(b).

     “ Company ” has the meaning set forth in the introductory paragraph hereof.

     “ Company Counsel ” has the meaning set forth in Section 3(b).

     “ Commission ” has the meaning set forth in Section 4(v)

     “ Delaware Trustee ” has the meaning set forth in the Recitals.

     “ Environmental Law ” has the meaning set forth in Section 4(jj).

     “ Environmental Laws ” shall have the correlative meaning.

     “ Equity Interests ” means with respect to any Person (a) if such a Person is a partnership, the partnership interests (general or limited) in a partnership, (b) if such Person is a limited liability company, the membership interests in a limited liability company and (c) if such Person is a corporation, the shares or stick interests (both common stock and preferred stock) in a corporation.

     “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated under it.

     “ Exchange ” has the meaning set forth in Section 2(b).

     “ Exchange Act ” has the meaning set forth in Section 4(j).

     “ Existing Indentures ” has the meaning set forth in the Recitals.

     “ Existing Subordinated Notes ” has the meaning set forth in the Recitals.

     “ Financial Statements ” has the meaning set forth in Section 4(w).

     “ GAAP ” has the meaning set forth in Section 4(w).

     “ Governmental Entities ” has the meaning set forth in Section 4(o).

     “ Governmental Licenses ” has the meaning set forth in Section 4(r).

     “ Hazardous Materials ” has the meaning set forth in Section 4(jj).

     “ Holder ” has the meaning set forth in the New Indentures.

     “ Holding I ” has the meaning set forth in the Recitals.

     “ Holding II ” has the meaning set forth in the Recitals.

     “ Holding III ” has the meaning set forth in the Recitals.

     “ Holding IV ” has the meaning set forth in the Recitals.

     “ Impairment ” means any claim, counterclaim, setoff, defense, action, demand, litigation (including administrative proceedings or derivative actions), encumbrance, right (including expungement, avoidance, reduction, contractual or equitable subordination, or otherwise) or defect.

     “ Indemnified Party ” has the meaning set forth in Section 8(a). “ Indemnified Parties ” shall have the correlative meaning.

     “ Indenture I ” has the meaning set forth in the Recitals.

     “ Indenture II ” has the meaning set forth in the Recitals.

     “ Indenture III ” has the meaning set forth in the Recitals.

     “ Indenture IV ” has the meaning set forth in the Recitals.

     “ Investment Company Act ” has the meaning set forth in Section 4(j).

     “ Kodiak ” has the meaning set forth in the introductory paragraph hereof.

     “ Kodiak CDO Management, LLC ” means Kodiak CDO Management, LLC and its successors and/or assigns as collateral manager of the Holders, as applicable.

     “ Kodiak Holdings ” has the meaning set forth in the Recitals.

     “ Kodiak Transferred Rights ” means any and all of each Kodiak entity’s right, title, and interest in, to and under the Original Securities, together with the following:

          (i) the applicable Existing Indentures and the Trust Agreements;

          (ii) all amounts payable to such Kodiak entity under the applicable Original Securities, the applicable Kodiak Holdings, the applicable Existing Indentures and/or the applicable Trust Agreements;

          (iii) all claims (including “claims” as defined in Bankruptcy Code §101(5)), suits, causes of action, and any other right of such Kodiak entity, whether known or unknown, against the Company or any of its affiliates (including the applicable Trusts), agents, representatives, contractors, advisors, or any other entity that in any way is based upon, arises out of or is related to any of the foregoing, including all claims (including contract claims, tort claims, malpractice claims, and claims under any law governing the exchange of, purchase and sale of, or indentures for, securities), suits, causes of action, and any other right of Kodiak against any attorney, accountant, financial advisor, or other entity arising under or in connection with the applicable Original Securities, the applicable Kodiak Holdings, the applicable Existing Indentures, the applicable Trust Agreements, or the transactions related thereto;

          (iv) all guarantees and all collateral and security of any kind for or in respect of the foregoing;

          (v) all cash, securities, or other property, and all setoffs and recoupments, to be received, applied, or effected by or for the account of such Kodiak entity under the applicable Original Securities and Kodiak Holdings, other than fees, costs and expenses payable to such Kodiak entity hereunder and all cash, securities, interest, dividends, and other property that may be exchanged for, or distributed or collected with respect to, any of the foregoing; and

          (vi) all proceeds of the foregoing.

     “ Kodiak II ” has the meaning set forth in the introductory paragraph hereof.

     “ Lien ” has the meaning set forth in Section 4(o).

     “ Material Adverse Effect ” means a material adverse effect on the condition (financial or otherwise), earnings, business, liabilities or assets of the Company and its Significant Subsidiaries taken as a whole.

     “ Material Adverse Change ” has the meaning set forth in Section 3(e)(ii).

     “ New Indenture I ” has the meaning set forth in the Recitals.

     “ New Indenture II ” has the meaning set forth in the Recitals.

     “ New Indenture III ” has the meaning set forth in the Recitals.

     “ New Indentures ” has the meaning set forth in the Recitals.

     “ New Indenture Trustee ” has the meaning set forth in the Recitals..

     “ Note 1 ” has the meaning set forth in the Recitals.

     “ Note 2 ” has the meaning set forth in the Recitals.

     “ Note 3 ” has the meaning set forth in the Recitals.

     “ Note 4 ” has the meaning set forth in the Recitals.

     “ Original Kodiak Indentures ” has the meaning set forth in the New Indentures.

     “ Original Securities ” has the meaning set forth in the Recitals.

     “ Original Security I ” has the meaning set forth in the Recitals.

     “ Original Security II ” has the meaning set forth in the Recitals.

     “ Original Security III ” has the meaning set forth in the Recitals.

     “ Original Security IV ” has the meaning set forth in the Recitals.

     “ Properties ” has the meaning set forth in Section 4(kk).

     “ Property Trustees ” means, collectively, the Wilmington Property Trustee and the Wells Property Trustee.

     “ Regulation D ” has the meaning set forth in Section 4(h).

     “ Repayment Event ” has the meaning set forth in Section 4(o).

     “ Rule 144A(d)(3) ” has the meaning set forth in Section 4(j).

     “ Securities ” has the meaning set forth in the Recitals.

     “ Securities Act ” means the Securities Act of 1933, 15 U.S.C. §§77a et seq. , as amended, and the rules and regulations promulgated under it.

     “ Significant Subsidiary ” has the meaning set forth in Section 4(q).

     “ Subordinated Note I ” has the meaning set forth in the Recitals.

     “ Subordinated Note II ” has the meaning set forth in the Recitals.

     “ Subordinated Note III” has the meaning set forth in the Recitals.

     “ Subordinated Note IV ” has the meaning set forth in the Recitals.

     “ Taberna Exchange Agreement” means that certain Exchange Agreement, dated the date hereof by and among Arbor Realty Trust, Inc., Arbor Realty SR, Inc. and 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.

     “ Trust III ” has the meaning set forth in the Recitals.

     “ Trust VII ” has the meaning set forth in the Recitals.

     “ Trust VIII ” has the meaning set forth in the Recitals.

     “ Trust IX ” has the meaning set forth in the Recitals.

     “ Trust Agreement I ” has the meaning set forth in the Recitals.

     “ Trust Agreement II ” has the meaning set forth in the Recitals.

     “ Trust Agreement III ” has the meaning set forth in the Recitals.

     “ Trust Agreement IV ” has the meaning set forth in the Recitals.

     “ Trust Agreements ” has the meaning set forth in the Recitals.

     “ Wilmington ” has the meaning set forth in the Recitals.

     2.  Exchange of Original Preferred Securities for Securities .

          (a) The Company agrees to issue the Securities in accordance with the New Indentures and has requested that the Kodiak entities accept such Securities in exchange for the applicable Kodiak Holdings, and each of the Kodiak entities hereby accepts the applicable Securities in exchange for the Kodiak Holdings upon the terms and conditions set forth herein.

          (b) The closing of the exchange contemplated herein shall occur at the offices of Nixon Peabody, LLP in New York, New York (the “Closing Room”), or such other place as the parties hereto and Wilmington shall agree, at 11:00 a.m. New York time, on May 6, 2009 or such later date as the parties may agree (such date and time of delivery the “Closing Date”). The Company and Kodiak hereby agree that the exchange (the “Exchange”) will occur in accordance with the following requirements:

          (i) Kodiak CDO Management, LLC (as collateral manager for each of the Kodiak entities) shall have delivered an issuer order instructing each trustee (in each such capacity, a “CDO Trustee”) under the applicable indenture pursuant to which such CDO Trustee serves as trustee for the holders of the Kodiak Holdings to: (A) as to Attentus I, exchange Holding I for Note I, and transfer Attentus I’s interest in Holding I to the Company; (B) as to Attentus III, exchange Holding II for Note 2, and transfer Attentus III’s interest in Holding II to the Company; (C) as to Attentus III, exchange Holding III for Note 3, and transfer Attentus III’s interest in Holding III to the Company, , and (D) as to Kodiak II, exchange Holding IV for Note 4, and transfer Kodiak II’s interest in Holding IV to the Company.

          (ii) The Securities shall have been delivered to the Closing Room, copies of which shall have previously been made available for inspection, if so requested.

          (iii) Company shall have directed the New Indenture Trustee to authenticate the Securities and deliver them to the applicable CDO Trustee, as follows: (i) Note 1 to Attentus I, (ii) Note 2 to Attentus III, (iii) Note 3 to Attentus III, and (iv) Note 4 to Kodiak II.

          (iv) New Indenture Trustee shall have authenticated the applicable Securities in accordance with the terms of the applicable New Indenture and delivered them as provided above.

          (v) Simultaneously with the occurrence of the events described in subsections (iii) and (iv) hereof, (A) each Kodiak entity holding the applicable Kodiak Holdings irrevocably transfers, assigns, grants and conveys the related Kodiak Transferred Rights to the Company and the Company assumes all rights and obligations of Kodiak with respect to the Original Securities, the Kodiak Holdings and the Kodiak Transferred Rights and (B) each Holder shall be entitled to all of the rights, title and

interest of a Holder of the Securities under the terms of the applicable Securities, the applicable New Indenture and any related Operative Documents.

          (vi) The Company shall have paid to Wilmington all of such party’s legal fees, costs and other expenses in connection with the Exchange, as well as all other accrued and unpaid fees, costs and expenses under the Existing Indentures, the Trust Agreements and the New Indentures, if any.

     3.  Conditions Precedent . The obligations of the parties under this Agreement are subject to the following conditions precedent:

          (a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Securities.

          (b) Cooley, Godward, Kronish LLP, counsel for the Company and the Guarantor (the “ Company Counsel ”), shall have delivered opinions with respect to each New Indenture and the related Operative Documents, dated the Closing Date, addressed to each Holder and its successors and assigns and to the New Indenture Trustee, in substantially the form set out in Annex A-1 hereto; the Company shall have delivered opinions of the Company’s and Guarantor’s General Counsel addressed to each Holder and its successors and assigns and to the New Indenture Trustee, in substantially the form set out in Annex A-2 , hereto and if required by Kodiak CDO Management, LLC the Company shall have furnished to the Kodiak Holders a certificate signed by the Company’s Chief Executive Officer, President, an Executive Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Kodiak Holders, in substantially the form set out in Annex D hereto. In rendering its opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company and by government officials; provided , however , that copies of any such certificates or documents are delivered to the Holders) and by and upon such other documents as such counsel may, in its reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which it is admitted to practice and that it is not admitted to practice in any other jurisdiction and is not an expert in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).

          (c) Kodiak shall have been furnished opinions of the Company Counsel, dated as of the Closing Date, addressed to the Kodiak Holders and their respective successors and assigns and the applicable New Indenture Trustee, in substantially the form set out in Annex B hereto.

          (d) The Kodiak Holders shall have received, with respect to each New Indenture and the related Operative Documents, the opinion of special counsel for New Indenture Trustee, dated as of the Closing Date, addressed to the Kodiak Holders and their successors and assigns, in substantially the form set out in Annex C hereto.

          (e) Each of the Guarantor and the Company shall have furnished to the Kodiak Holders under each of the New Indentures a certificate of the Company, signed by the Chief Executive Officer, President or an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, dated as of the Closing Date, as to (i) and (ii) below:

          (i) the representations and warranties in this Agreement and the New Indentures are true and correct on and as of the Closing Date, and Company and the Guarantor have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and

          (ii) since the date of the latest Financial Statements, there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company, the Guarantor and their respective Significant Subsidiaries, taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “ Material Adverse Change ”).

          (f) The Company shall pay on or prior to the Closing Date, to the applicable Kodiak entities a fee as set forth on Schedule 2 , calculated as the amount of interest accrued upon the Kodiak Holdings, based upon (i) a principal balance equal to one hundred twelve percent (112%) of the outstanding principal balance of the Kodiak Holdings, (ii) an interest rate of one half of one percent (0.5%) per annum, and (iii) a period commencing on and including the most recent Interest Payment Date under the Existing Indenture for which interest was actually paid under the Kodiak Holdings, as applicable, and continuing through and including the Closing Date, plus any additional interest as set forth on Schedule 2.

          (g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Kodiak Holders and their counsel such further information, certificates and documents as the Kodiak Holders or such counsel may reasonably request.

     If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Kodiak Holders or their counsel, this Agreement and any obligations of Kodiak hereunder, whether as holders of the Kodiak Holdings, as applicable, or as prospective Kodiak Holders, may be canceled at, or at any time prior to, the Closing Date by Kodiak. Notice of such cancellation shall be given to the Company or the Guarantor in writing or by telephone and confirmed in writing, or by e-mail or facsimile.

     Each certificate signed by any officer of the Company and the Guarantor and delivered to the Kodiak Holders or the Holders’ counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Company and the Guarantor, as applicable, and not by such officer in any individual capacity.

     4.  Representations and Warranties of the Company and the Guarantor . The Company and the Guarantor jointly and severally represent and warrant to, and agree with

Kodiak, as holders of the Original Preferred Securities and the Kodiak V Holding and with the Kodiak Holders, as follows:

          (a) Each of the Company and the Guarantor (i) is duly organized and validly existing under the laws of its jurisdiction of organization or incorporation, (ii) is in good standing under such laws and (iii) has full power and authority to execute, deliver and perform its obligations under this Agreement and the other Operative Documents.

          (b) Each of the Company and the Guarantor is an “accredited investor” as defined in Rule 501 under the Securities Act. Without characterizing the Kodiak holdings or any of the Kodiak Transferred Rights as a “security” within the meaning of applicable securities laws, the Company is not acquiring the Kodiak Holdings or the Kodiak Transferred Rights with a view towards the sale or distribution thereof in violation of the Securities Act.

          (c) The Company has offered in writing to the collateral manager for all of the Holders under the Original Kodiak Indentures (as defined in the New Indentures) the opportunity to exchange all securities, certificates, notes and/or beneficial interests held by such parties upon substantially similar terms and conditions to those set forth in this Agreement.

          (d) None of the Securities, the New Indentures, or the Exchange, is or may be (i) void or voidable as an actual or constructive fraudulent transfer or as a preferential transfer or (ii) subject to any Impairment.

          (e) Each of the Company and the Guarantor (i) is a sophisticated entity with respect to the Exchange and the transactions contemplated thereby, (ii) has such knowledge and experience, and has made investments of a similar nature, so as to be aware of the risks and uncertainties inherent in the Exchange and the transactions contemplated thereby and (iii) has independently and without reliance upon any Kodiak entity, any Holder of the Securities, Kodiak CDO Management, LLC, Wilmington, or any of their affiliates, and based on such information as it has deemed appropriate, made its own analysis and decision to enter into this Agreement, except that it has relied upon each Kodiak entity’s express representations, warranties, covenants and agreements in this Agreement. The Company and the Guarantor acknowledge that none of Kodiak, any Kodiak Holders, Kodiak CDO Management, LLC, Wilmington, or any of their affiliates has given them any investment advice, credit information or opinion on whether the Exchange is prudent.

          (f) Neither the Company nor the Guarantor has engaged any broker, finder or other entity acting under the authority of it or any of its affiliates that is entitled to any broker’s commission or other fee in connection with the transaction for which Kodiak, any Holder, Trustee or any of their affiliates could be responsible.

          (g) No interest in the Kodiak Transferred Rights is being acquired by or on behalf of an entity that is, or at any time while the Kodiak Transferred Rights are held thereby will be, one or more Benefit Plans.

          (h) Neither the Company, the Guarantor nor any of their respective “Affiliates” (as defined in Rule 501(b) of Regulation D (“ Regulation D ”) under the Securities Act (as defined below)), nor any person acting on its or their behalf, has, directly or indirectly,

made offers or sales of any security, or solicited offers to buy any security, under circumstances that would require the registration of any of the Securities under the Securities Act.

          (i) Neither the Company the Guarantor nor any of their respective Affiliates, nor any person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of any of the Securities.

          (j) The Securities (i) are not and have not been listed on a national securities exchange registered under Section 6 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), or quoted on a U.S. automated inter-dealer quotation system and (ii) are not of an open-end investment company, unit investment trust or face-amount certificate company that are, or are required to be, registered under Section 8 of the Investment Company Act of 1940, as amended (the “ Investment Company Act ”), and the Securities otherwise satisfy the eligibility requirements of Rule 144A(d)(3) promulgated pursuant to the Securities Act (“ Rule 144A(d)(3) ”).

          (k) Neither the Company, the Guarantor nor any of their respective Affiliates, nor any person acting on its or their behalf, has engaged, or will engage, in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the Securities.

          (l) Neither the Company nor the Guarantor is, and immediately following consummation of the transactions contemplated hereby, will be, an “investment company” or an entity “controlled” by an “investment company,” in each case within the meaning of Section 3(a) of the Investment Company Act.

          (m) Each of this Agreement, the New Indentures and the other Operative Documents and the consummation of the transactions contemplated herein and therein have been duly authorized by the Company and the Guarantor and, on the Closing Date, will have been duly executed and delivered by the Company and the Guarantor and, assuming due authorization, execution and delivery by Kodiak and/or the Trustee, as applicable, will be a legal, valid and binding obligations of the Company and the Guarantor enforceable against them in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.

          (n) The Securities have been duly authorized by the Company and, on the Closing Date, will have been duly executed and delivered to the Trustee for authentication in accordance with the New Indentures and, when authenticated in the manner provided for in the New Indentures and delivered to the Holders, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the New Indentures, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.

          (o) Neither the issue of the Securities and exchange of the Securities for the Kodiak Holdings, as applicable, nor the execution and delivery of and compliance with the Operative Documents by the Company or the Guarantor, nor the consummation of the

transactions contemplated herein or therein, (i) will conflict with or constitute a violation or breach of (x) the charter or bylaws or similar organizational documents of the Company, the Guarantor or any subsidiary of the Company or the Guarantor or (y) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, governmental entity, agency or instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantor or any of their respective subsidiaries or their respective properties or assets (collectively, the “ Governmental Entities ”), (ii) will conflict with or constitute a violation or breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any pledge, security interest, claim, lien or other encumbrance of any kind (each, a “ Lien ”) upon any property or assets of the Company, the Guarantor or any if their respective subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which (A) the Company, the Guarantor or any of their respective subsidiaries is a party or by which it or any of them may be bound, or (B) to which any of the property or assets of any of them is subject, or any judgment, order or decree of any court, Governmental Entity or arbitrator, except, in the case of clause (i)(y) or this clause (ii), for such conflicts, breaches, violations, defaults, Repayment Events (as defined below) or Liens which (X) would not, singly or in the aggregate, adversely affect the consummation of the transactions contemplated by the Operative Documents and (Y) would not, singly or in the aggregate, have a Material