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Exhibit 5.1
July 9, 2004
Arbor Realty Trust, Inc.
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Re: Arbor Realty Trust, Inc.
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Ladies and Gentlemen:
We have served as special Maryland counsel to Arbor Realty Trust, Inc., a
Maryland corporation (the "Company"), in connection with certain matters of
Maryland law relating to the registration by the Company of up to 9,594,498
shares (the "Shares") of common stock, par value $.01 per share (the "Common
Stock"), of the Company consisting of up to (a) 7,991,665 Shares (the "Unit
Shares") issued as part of the Units (as defined below) and (b) 1,602,833 Shares
(the "Warrant Shares") issuable upon exercise of the Warrants (as defined
below), each covered by the Registration Statement on Form S-11 ( Registration
No. 333-116223) (the "Registration Statement") filed with the United States
Securities and Exchange Commission (the "Commission") by the Company under the
Securities Act of 1933, as amended (the "1933 Act"). The Unit Shares and
Warrants were issued on July 1, 2003 as part of 1,610,000 Units issued by the
Company, each Unit consisting of five Unit Shares and a warrant to purchase a
Warrant Share at an initial exercise price of $15 per Warrant Share (each, a
"Warrant"), pursuant to (a) the Purchase/Placement Agreement, dated as of June
26, 2003 (the "Purchase Agreement"), by and among the Company, Arbor Commercial
Mortgage, LLC, a New York limited liability company, Arbor Realty Limited
Partnership, a Delaware limited partnership, and JMP Securities LLC ("JMP"), as
initial purchaser of 1,327,989 of the Units and the placement agent for 282,011
of the Units, and (b) the Subscription Agreements, each accepted by the Company
as of July 1, 2003 (the "Subscription Agreements"), each between an individual
subscriber of a certain number of the 282,011 Units and the Company.
In connection with our representation of the Company, and as a basis for
the opinions hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (collectively, the "Documents"):
1. The Registration Statement and the related form of prospectus included
therein in the form in which it was filed with the Commission under the 1933
Act;
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July 9, 2004
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2. The charter of the Company (the "Charter"), certified as of a recent
date by the State Department of Assessments and Taxation of Maryland (the
"SDAT");
3. The Bylaws of the Company, certified as of the date hereof by an
officer of the Company;
4. Resolutions (the "Resolutions") adopted by the Board of Directors of
the Company and a duly authorized committee thereof, relating to the issuance
and sale of the Shares, certified as of the date hereof by an officer of the
Company;
5. A certificate of the SDAT as to the good standing of the Company, dated
as of a recent date;
6. A certificate executed by an officer of the Company, dated as of the
date hereof;
7. The Purchase Agreement, certified as of the date hereof by an officer
of the Company;
8. The Subscription Agreements, each certified as of the date hereof by an
officer of the Company;
9. The Warrant Agreement, dated as of July 1, 2003 (the "Warrant
Agreement"), between the Company and American Stock Transfer & Trust Company, as
warrant agent, certified as of the date hereof by an officer of the Company;
10. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth in this letter, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of
such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party
(other than the Company) is duly authorized to do so.
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July 9, 2004
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3. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and the obligations of such party set forth
therein are legal, valid and binding and are enforceable in accordance with all
stated terms.
4. All Documents submitted to us as originals are authentic. The form and
content of all Documents submitted to us as unexecuted drafts do not differ in
any respect relevant to this opinion from the form and content of such Documents
as executed and delivered. All Documents submitted to us as certified or
photostatic copies conform to the original documents. All signatures on all
Documents are genuine. All public records reviewed or relied upon by us or on
our behalf are true and complete. All representations, warranties, statements
and information contained in the Documents are true and complete. There has been
no oral or written modification of or amendment to any of the Documents, and
there has been no waiver of any provision of any of the Documents, by action or
omission of the parties or otherwise.
5. The Unit Shares have not been, and the Warrant Shares will not be,
issued in violation of the restrictions on transfer and ownership contained in
Article VII of the Charter.
Based upon the foregoing, and subject to the assumptions, limitations
and qualifications stated herein, it is our opinion that:
1. The Company has been duly incorporated and is validly existing under
the laws of the State of Maryland and is in good standing with the State
Department of Assessments and Taxation of Maryland.
2. The Unit Shares have been duly authorized and are validly issued,
fully paid and non-assessable.
3. The Warrant Shares have been duly authorized and, when issued and
delivered by the Company upon exercise of the Warrants in accordance with the
terms thereof, pursuant to the Charter, the Resolutions, the Purchase Agreement,
the Subscription Agreements and the Warrant Agreement, will be validly issued,
fully paid and non-assessable.
The foregoing opinion is limited to the laws of the State of Maryland
and we do not express any opinion herein concerning any other law. We express no
opinion in connection with the securities (or "blue sky") laws or the real
estate syndication laws of the State of Maryland or as to federal or state laws
regarding fraudulent transfers. We note that the Purchase Agreement and the
Warrant Agreement each provide that it shall be governed by the laws of the
State of New York. To the extent that any matter as to which our opinion is
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July 9, 2004
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expressed herein would be governed by the laws of any jurisdiction other than
the State of Maryland, we do not express any opinion on such matter. The opinion
expressed herein is subject to the effect of judicial decisions which may permit
the introduction of parol evidence to modify the terms or the interpretation of
agreements.
We assume no obligation to supplement this opinion if any applicable
law changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission
as an exhibit to the Registration Statement. We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement and to the use of the
name of our firm therein. In giving this consent, we do not admit that we are
within the category of persons whose consent is required by Section 7 of the
1933 Act.
Very truly yours,
/s/ Xxxxxxx LLP
