ARBOR REALTY TRUST, INC. 2,700,000 Shares of Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
ARBOR REALTY TRUST, INC.
2,700,000 Shares of Common Stock
2,700,000 Shares of Common Stock
Dated June 7, 2007
Wachovia Capital Markets, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Arbor Realty Trust, Inc., a Maryland corporation (the “Company”), confirms its
agreement with Wachovia Capital Markets, LLC (the “Underwriter”), with respect to a total
of 2,700,000 shares (the “Initial Securities”) of the Company’s common stock, par value
$.01 per share (the “Common Stock”), and the purchase by the Underwriter of the Initial
Securities, and with respect to the grant by the Company to the Underwriter of the option described
in Section 2(b) hereof to purchase all or any part of 405,000 additional shares of Common Stock to
be issued and sold by the Company to the Underwriter to cover over-allotments, if any. The Initial
Securities to be purchased by the Underwriter and all or any part of the 405,000 shares of Common
Stock subject to the option described in Section 2(b) hereof (the “Option Securities”) are
hereinafter called, collectively, the “Securities.”
In addition to the Company, Arbor Realty Limited Partnership, a Delaware limited partnership
(the “Operating Partnership”) and Arbor Commercial Mortgage, LLC, a New York limited
liability company and the manager of the Company and the Operating Partnership (together with its
affiliates, the “Manager”), also confirm as follows their respective agreements with the
Underwriter.
The Company understands that the Underwriter proposes to make a public offering of the
Securities as soon as the Underwriter deems advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (No. 333-141044) covering the registration of the Securities and
certain other securities of the Company under the Securities Act of 1933, as amended (the “1933
Act”). Promptly after execution and delivery of this Agreement, the Company will prepare and
file a prospectus and the related prospectus supplement in accordance with the provisions of Rule
430B (“Rule 430B”) of the rules and regulations of the Commission under the 1933 Act (the
“1933 Act Regulations”) and paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933
Act Regulations. Any information included in such prospectus and the related prospectus supplement
that was omitted from such registration statement at the time it became effective but that is
deemed to be part of and included in such registration statement pursuant to Rule 430B is referred
to as “Rule 430B Information.” Each prospectus used in connection with
the offering of the Securities that omitted Rule 430B Information is herein called a
“preliminary prospectus.” Such registration statement, at any given time, together with
the amendments thereto to such time, the exhibits and any schedules thereto at such time, the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at
such time, the documents otherwise deemed to be a part thereof or included therein by 1933 Act
Regulations at such time and the Rule 430B Information, are herein called, collectively, the
“Registration Statement.” Any registration statement filed pursuant to Rule 462(b) of the
1933 Act Regulations is herein referred to as the “Rule 462(b) Registration Statement,” and
after such filing the term “Registration Statement” shall include the Rule 462(b) Registration
Statement. The final prospectus supplement relating to the Securities (the “Prospectus
Supplement”) and the related base prospectus dated April 19, 2007 (the “Base
Prospectus”) in the form first furnished (electronically or otherwise) to the Underwriter for
use in connection with the offering of the Securities (whether to meet the requests of purchasers
pursuant to Rule 173 under the 1933 Act Regulations or otherwise) or, if not furnished to the
Underwriter, in the form first filed by the Company pursuant to Rule 424(b), together with the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are
herein called, collectively, the “Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system
(“XXXXX”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus, the Disclosure Package (as hereinafter defined) or the Prospectus (or other references
of like import) shall be deemed to mean and include all such financial statements and schedules and
other information which is incorporated by reference in or otherwise deemed by the 1933 Act
Regulations to be a part of or included in the Registration Statement, any preliminary prospectus,
the Disclosure Package or the Prospectus, as the case may be; and all references in this Agreement
to amendments or supplements to the Registration Statement, any preliminary prospectus, the
Disclosure Package or the Prospectus shall be deemed to mean and include the filing of any document
under the Securities Exchange Act of 1934, as amended (the “1934 Act”), which is
incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be a part of or
included in the Registration Statement, such preliminary prospectus, the Disclosure Package or the
Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Operating Partnership. The Company
and the Operating Partnership each severally represents and warrants to the Underwriter as of the
date hereof, as of the Closing Date referred to in Section 2(c) hereof, and as of each Option
Closing Date (if any) referred to in Section 2(b) hereof, and agrees with the Underwriter, as
follows:
(1) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the Registration Statement and
any Rule 462(b) Registration Statement has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement or
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any Rule 462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with.
At the respective times the Registration Statement and any post-effective amendments
thereto became or become effective and at the Registration Statement’s “new effective date”
with respect to the Underwriter pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, the
Registration Statement and any amendments and supplements thereto complied and will comply
in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations
and did not and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading.
The Prospectus, and any amendments or supplements thereto, as of its date, at the date
hereof and at the Closing Date (and, if any Option Securities are purchased, at the
applicable Option Closing Date), complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not and will not include
an untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
Each preliminary prospectus and the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule
424 under the 1933 Act, complied when so filed in all material respects with the 1933 Act
and the 1933 Act Regulations and each preliminary prospectus and the Prospectus delivered to
the Underwriter for use in connection with this offering were identical to the
electronically transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
As of the Initial Sale Time (as defined below), the Base Prospectus, any Issuer Free
Writing Prospectus (as defined below) identified on Schedule I hereto, if any, and
the information included on Schedule II hereto, all considered together
(collectively, the “Disclosure Package”), did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
The representations and warranties in the preceding four paragraphs shall not apply to
statements in or omissions from the Registration Statement or any post-effective amendment
thereto, any preliminary prospectus, the Prospectus or any amendments or supplements
thereto, or the Disclosure Package made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriter expressly for use in the Registration
Statement or any post-effective amendment thereto, or the Prospectus, or any amendments or
supplements thereto, or the Disclosure Package (the “Underwriter’s Information”).
The parties acknowledge and agree that the Underwriter’s Information consists solely of the
material included in the twelfth and thirteenth paragraphs under the caption “Underwriting”
in the Prospectus.
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As used in this subsection and elsewhere in this Agreement:
“Initial Sale Time” means 8:30 a.m. (New York City time) on June 7, 2007 or
such other time as agreed by the Company and the Underwriter.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the
Securities that (i) is required to be filed with the Commission by the Company, (ii) is a
“road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether
or not required to be filed with the Commission or (iii) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering
that does not reflect the final terms, in each case in the form filed or required to be
filed with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
(2) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations or 1934 Act and the rules and regulations of the Commission thereunder (the
“1934 Act Regulations”), as applicable, and, when read together with the other
information in the Prospectus, (a) at the time the Registration Statement became effective,
(b) at the Registration Statement’s “new effective date” with respect to the Underwriter
pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and (c) at the Closing Time, did not
and will not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(3) Company Not Ineligible Issuer. As of the date of the execution and
delivery of this Agreement (with such date being used as the determination date for purposes
of this clause), the Company was not and is not an ineligible issuer (as defined in Rule 405
of the 1933 Act Regulations), without taking account of any determination by the Commission
pursuant to Rule 405 of the 1933 Act Regulations that it is not necessary that the Company
be considered an ineligible issuer (as defined in Rule 405 of the 1933 Act Regulations).
(4) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus
listed in Schedule I hereto, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until any earlier
date as of which the Company notified or notifies the Underwriter as described in Section
3(a)(5) of this Agreement, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration
Statement, including any document incorporated by reference therein that has not been
superseded or modified. The foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in conformity with the Underwriter’s
Information.
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(5) Company Authorization of Agreement. This Agreement and the transactions
contemplated herein have been duly and validly authorized by the Company and this Agreement
has been duly and validly executed and delivered by the Company.
(6) Operating Partnership Authorization of Agreement. This Agreement and the
transactions contemplated herein have been duly and validly authorized by the Operating
Partnership and this Agreement has been duly and validly executed and delivered by the
Operating Partnership.
(7) Authorization of Management Agreement and Services Agreement. The amended
and restated management and advisory agreement (the “Management Agreement”), dated
as of January 18, 2005, among the Company, the Operating Partnership, the Manager and Arbor
Realty SR, Inc., a Maryland corporation and a wholly-owned subsidiary of the Company, has
been duly authorized, executed and delivered by each of the Company and the Operating
Partnership and constitutes a valid and binding agreement of each of the Company and the
Operating Partnership enforceable in accordance with its terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws
affecting enforcement of creditors’ rights or by general equitable principles. The services
agreement (the “Services Agreement”), dated as of July 1, 2003, among the Company,
the Operating Partnership and the Manager has been duly authorized, executed and delivered
by each of the Company and the Operating Partnership and constitutes a valid and binding
agreement of each of the Company and the Operating Partnership enforceable in accordance
with its terms, except to the extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by
general equitable principles.
(8) Distribution of Offering Material by the Company. The Company and its
affiliates have not distributed and will not distribute, prior to the later of the Option
Closing Date (as defined below) and the completion of the Underwriter’s distribution of the
Securities, any written offering material in connection with the offering and sale of the
Securities other than the Prospectus, the Registration Statement or any Issuer Free Writing
Prospectus.
(9) Independent Accountants. Ernst & Young LLP, who certified the financial
statements and supporting schedules incorporated by reference in the Registration Statement,
the Disclosure Package and the Prospectus, is an independent registered public accounting
firm as required by the 1933 Act and the 1933 Act Regulations, the 1934 Act, 1934 Act
Regulations and the Public Company Accounting Oversight Board (United States).
(10) Financial Statements. The financial statements of the Company and its
subsidiaries, together with the related schedules (if any) and notes (the “Company
Financial Statements”), incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus, and any financial statements required by Rule 3-14 of
Regulation S-X (the “Acquisition Financial Statements”),
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incorporated by reference in the Registration Statement, the Disclosure Package and the
Prospectus present fairly the financial position of the Company and its consolidated
subsidiaries at the dates indicated, or, if applicable, with respect to the Acquisition
Financial Statements, the respective property or tenant; and all such financial statements
have been prepared in conformity with United States generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the periods involved and comply
with all applicable accounting requirements under the 1933 Act and the 1933 Act Regulations.
The supporting schedules, if any, incorporated by reference in the Registration Statement,
the Disclosure Package and the Prospectus present fairly, in accordance with GAAP, the
information required to be stated therein. There are no financial statements or schedules
required to be included in the Registration Statement, the Disclosure Package or the
Prospectus under the 1933 Act or the 1933 Act Regulations which are not so included. If
applicable, the unaudited pro forma financial information (including the related notes)
incorporated by reference in the Registration Statement, the Disclosure Package or the
Prospectus complies as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations, and management of the Company
believes that the assumptions underlying the pro forma adjustments are reasonable. If
applicable, such pro forma adjustments have been properly applied to the historical amounts
in the compilation of the information and such information fairly presents with respect to
the Company and its consolidated subsidiaries, the financial position, results of operations
and other information purported to be shown therein at the respective dates and for the
respective periods specified. No pro forma financial information is required to be included
in the Registration Statement, the Disclosure Package or the Prospectus which is not so
included.
(11) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement, the Disclosure Package and the
Prospectus (in each case exclusive of any amendments or supplements thereto subsequent to
the date of this Agreement), except as otherwise stated therein, (A) there has been no
material adverse change or any development involving a prospective material adverse change
in the operations, condition (financial or otherwise), or in the earnings, business affairs
or business prospects of the Company and its subsidiaries, including, without limitation,
the Operating Partnership, considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse Effect”), (B) there have been no
transactions entered into by the Company or any of its subsidiaries that are material with
respect to the Company and its subsidiaries considered as one enterprise, (C) since the date
of the latest balance sheet incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries has
incurred or undertaken any liabilities or obligations, direct or contingent, which are
material to the Company and its subsidiaries, including without limitation the Operating
Partnership, considered as one enterprise, except for liabilities or obligations which are
described in the Registration Statement, the Disclosure Package and the Prospectus, and (D)
there has been no dividend or distribution of any kind declared, paid or made by the Company
on any class of its stock.
(12) Good Standing of the Company and the Operating Partnership. The Company
has been duly organized and is validly existing as a
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corporation in good standing under the laws of the State of Maryland and has power and
authority to own, lease and operate its properties and to conduct its business as described
in the Registration Statement, the Disclosure Package and the Prospectus and to enter into
and perform its obligations under this Agreement; and the Operating Partnership has been
duly formed and is validly existing as a limited partnership in good standing under the laws
of the State of Delaware and has authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement, the Disclosure Package and
the Prospectus. Each of the Company and the Operating Partnership is duly qualified as a
foreign corporation to transact business and is in good standing in the State of New York
and in each other jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except (solely in the case
of jurisdictions other than the State of New York) where the failure so to qualify or to be
in good standing would not result in a Material Adverse Effect.
(13) The Partnership Agreement. The Second Amended and Restated Agreement of
Limited Partnership of the Operating Partnership (the “Partnership Agreement”),
dated as of January 18, 2005, among Arbor Realty GPOP, Inc., a Delaware corporation, Arbor
Realty LPOP, Inc., a Delaware corporation, the Manager and the Company, has been duly and
validly authorized, executed and delivered by the Company (through its direct subsidiaries)
and is a valid and binding agreement, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by
general equitable principles.
(14) Good Standing of Subsidiaries. Each subsidiary of the Company listed on
Schedule III hereto has been duly organized and is validly existing as a
corporation, limited or general partnership or limited liability company, as the case may
be, in good standing under the laws of the jurisdiction of its organization, has power and
authority to conduct its business as described in the Registration Statement, the Disclosure
Package and the Prospectus and is duly qualified as a foreign corporation, limited or
general partnership or limited liability company, as the case may be, to transact business
and is in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result in a Material
Adverse Effect; except as otherwise disclosed in the Registration Statement, the Disclosure
Package and the Prospectus, all of the issued and outstanding stock of each such subsidiary
that is a corporation, all of the issued and outstanding partnership interests of each such
subsidiary that is a limited or general partnership and all of the issued and outstanding
limited liability company interests, membership interests or other similar interests of each
such subsidiary that is a limited liability company have been duly authorized and validly
issued, and, in the case of each subsidiary that is a corporation, are fully paid and
nonassessable and are owned by the Company or the Operating Partnership, directly or
indirectly, free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity (each, a “Lien”); and none of the outstanding shares of stock,
partnership interests or limited liability company interests, membership interests or other
similar interests of any such subsidiary was issued in violation of any
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preemptive rights, rights of first refusal or other similar rights of any
securityholder of such subsidiary or any other person. The only subsidiaries of the Company
are the subsidiaries listed on Schedule III hereto and Schedule III
accurately sets forth whether each such subsidiary is a corporation, limited or general
partnership or limited liability company and the jurisdiction of organization of each such
subsidiary and, in the case of any subsidiary which is a partnership or limited liability
company, its general partners and managing members, respectively. Any subsidiaries of the
Company which are “significant subsidiaries” as defined by Rule 1-02 of Regulation S-X are
listed on Schedule III hereto under the caption “Significant Subsidiaries.”
(15) Capitalization. The authorized, issued and outstanding stock of the
Company is as set forth in the Company’s quarterly report on Form 10-Q for the three months
ended March 31, 2007. The issued and outstanding shares of stock of the Company have been
duly authorized and are validly issued, fully paid and nonassessable; and none of the
outstanding shares of stock of the Company was issued in violation of any preemptive rights,
rights of first refusal or other similar rights of any securityholder of the Company or any
other person. The authorized, issued and outstanding units of partnership interest in the
Operating Partnership (the “OP Units”), have been duly authorized and validly
issued; and all of such OP Units have been sold in compliance with applicable laws
(including, without limitation, federal and state securities laws).
(16) Authorization of Securities. The Securities have been duly authorized for
issuance and sale to the Underwriter pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued, fully paid and nonassessable; no holder of the
Securities is or will be subject to personal liability by reason of being such a holder; and
the issuance of the Securities is not subject to any preemptive right, right of first
refusal or other similar right of any securityholder of the Company or any other person.
(17) Description of Securities. The Common Stock conforms in all material
respects to the description thereof contained in the section of the Prospectus entitled
“Description of Capital Stock—Common Stock” and such description conforms to the rights set
forth in the Company’s Articles of Incorporation and Bylaws.
(18) Absence of Defaults and Conflicts. Neither the Company, the Operating
Partnership nor any of their respective subsidiaries is in violation of its Organizational
Documents or in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any Company Document (as defined below), except for such
defaults that would not result in a Material Adverse Effect. The execution, delivery and
performance of this Agreement and the consummation of the transactions contemplated herein
and in the Registration Statement, the Disclosure Package and the Prospectus (including the
issuance and sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Disclosure Package and the Prospectus under the caption “Use
of Proceeds”) and compliance by each of the Company and the Operating Partnership with its
obligations under this Agreement do not and will not, whether with or without the giving of
notice or
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passage of time or both, conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any Lien upon any property or assets of the Company,
the Operating Partnership or any of their respective subsidiaries pursuant to any Company
Documents, nor will such action result in any violation of the provisions of the
Organizational Documents of the Company, the Operating Partnership or any of their
respective subsidiaries or any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or any of their respective
assets, properties or operations. The term “Company Documents” as used herein means
any contracts, indentures, mortgages, deeds of trust, loan or credit agreements, bonds,
notes, debentures, evidences of indebtedness, leases or other instruments or agreements to
which the Company, the Operating Partnership, the Manager or any of their respective
subsidiaries is a party or by which the Company, the Operating Partnership, the Manager or
any of their respective subsidiaries is bound or to which any of the property or assets of
the Company, the Operating Partnership, the Manager or any of their respective subsidiaries
is subject. The term “Organizational Documents” as use herein means (a) in the case
of a corporation, its charter and by-laws; (b) in the case of a limited or general
partnership, its partnership certificate, certificate of formation or similar organizational
document and its partnership agreement; (c) in the case of a limited liability company, its
articles of organization, certificate of formation or similar organizational documents and
its operating agreement, limited liability company agreement, membership agreement or other
similar agreement; (d) in the case of a trust, its certificate of trust, certificate of
formation or similar organizational document and its trust agreement or other similar
agreement; and (e) in the case of any other entity, the organizational and governing
documents of such entity.
(19) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any subsidiary of the Company exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent labor disturbance by the
employees of any of the principal suppliers, manufacturers, customers or contractors of the
Company or any of its subsidiaries which, in any such case, may reasonably be expected to
result in a Material Adverse Effect.
(20) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, against or affecting the Company, the Operating Partnership or any of
their respective subsidiaries or which has as a subject thereof, any officer or director of
the Company in their capacity as such or as would otherwise be required to be disclosed in
the Prospectus. To the knowledge of the Company or the Operating Partnership, there is no
action, suit, proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, threatened, against or affecting the
Company, the Operating Partnership or any of their respective subsidiaries except as would
not have a Material Adverse Effect or which has as a subject thereof, any officer or
director of the Company in their capacity as such or as would otherwise be required to be
disclosed in the Prospectus.
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(21) Accuracy of Descriptions and Exhibits. The information in the Prospectus
under the captions “Description of Debt Securities,” “Description of Capital Stock,”
“Description of Depositary Shares,” “Description of Warrants” and “Federal Income Tax
Considerations” is correct in all material respects; all descriptions in the Registration
Statement, the Disclosure Package and the Prospectus of any Company Documents are accurate
in all material respects; and there are no franchises, contracts, indentures, mortgages,
deeds of trust, loan or credit agreements, bonds, notes, debentures, evidences of
indebtedness, leases or other instruments or agreements required to be described or referred
to in the Registration Statement, the Disclosure Package or the Prospectus or to be filed as
exhibits to the Registration Statement which have not been so described and filed as
required.
(22) Possession of Intellectual Property. The Company and its subsidiaries own
or possess or have the right to use on reasonable terms all patents, patent rights, patent
applications, licenses, inventions, copyrights, know how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names, service names and other intellectual
property (collectively, “Intellectual Property”) necessary to carry on their
respective businesses as described in the Disclosure Packages and the Prospectus and as
proposed to be conducted; and neither the Company nor any of its subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect the interests of the
Company or any of its subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy,
individually or in the aggregate, might result in a Material Adverse Effect.
(23) Absence of Further Requirements. (A) No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote
or other consent of any stockholder or creditor of the Company or the Operating Partnership,
(C) no waiver or consent under any Company Document, and (D) no authorization, approval,
vote or other consent of any other person or entity, is necessary or required for the
performance by the Company or the Operating Partnership of their respective obligations
under this Agreement, for the offering, issuance, sale or delivery of the Securities
hereunder, or for the consummation of any of the other transactions contemplated by this
Agreement, in each case on the terms contemplated by this Agreement and the Prospectus,
except such as have been already obtained under the 1933 Act or the 1933 Act Regulations,
such as may be required under state securities laws.
(24) Possession of Licenses and Permits. The Company, the Operating
Partnership and their respective subsidiaries possess such permits, licenses, approvals,
consents and other authorizations issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies (collectively, “Governmental Licenses”) as are
necessary to conduct the business now operated by them; the Company and its subsidiaries are
in compliance with the terms and conditions of all such Governmental
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Licenses, except where the failure so to comply would not, individually or in the
aggregate, have a Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company, the Operating Partnership nor any of their
respective subsidiaries has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(25) Investment Company Act. The Company is not, and upon the issuance and
sale of the Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Disclosure Package and the Prospectus, will not be, an
“investment company” or an entity “controlled” by an “investment company” as such terms are
defined the Investment Company Act of 1940, as amended (the “1940 Act”).
(26) Absence of Registration Rights. Except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, there are no persons with registration
rights or other similar rights to have any securities (debt or equity) (A) registered
pursuant to the Registration Statement or included in the offering contemplated by this
Agreement or (B) otherwise registered by the Company under the 1933 Act.
(27) Joint Ventures. All of the joint ventures in which the Company or any
subsidiary owns any interest (the “Joint Ventures”) are listed on Schedule
IV hereto. The Company’s or subsidiary’s ownership interest in such Joint Venture is
set forth in Schedule IV.
(28) Parties to Lock-Up Agreements. Each of the Manager, certain members of
the senior management of the Manager and the Company’s directors and officers have, as of
the Closing Date, executed and delivered to the Underwriter a lock-up agreement in the form
of Exhibit A hereto. Schedule V hereto contains a true, complete and
correct list of all directors and officers of the Company and certain members of the senior
management of the Manager. During such 60-day period, the Company will not cause or permit
any waiver, release, modification or amendment of any such restriction on transfer without
the prior written consent of the Underwriter. All stock options that may be issued by the
Company at any time during the Lock-Up Period (as defined in Exhibit A hereto) will
provide, in each case pursuant to written stock option agreements or similar agreements
executed and delivered by the holders of such stock options, that the holders of such stock
options will not effect any public sale or distribution (including sales pursuant to Rule
144 under the 0000 Xxx) of any equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the Lock-Up
Period; and, during the Lock-Up Period, the Company will not cause or permit any waiver,
release, modification or amendment of any such restriction on transfer without the prior
written consent of the Underwriter.
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(29) Stop Transfer Instructions. The Company has, with respect to all Common
Stock (other than Securities to be sold pursuant to this Agreement) and other Capital Stock
and all securities convertible into, or exercisable or exchangeable for, Common Stock or
other Capital Stock owned or held (of record or beneficially) by any of the persons who, as
described in the immediately preceding paragraph, have entered into lock-up agreements in
the form of Exhibit A hereto, provided written directions to the transfer agent or
other registrar to enter stop transfer instructions and implement stop transfer procedures
with respect to such securities during the Lock-Up Period; and, during the Lock-Up Period,
the Company will not cause or permit any waiver, release, modification or amendment of any
such stop transfer instructions or stop transfer procedures without the prior written
consent of the Underwriter.
(30) 1934 Act Registration; New York Stock Exchange. The Common Stock has been
registered pursuant to Section 12(b) of the 1934 Act. The outstanding shares of Common
Stock have been, and the Securities being sold hereunder will have been, approved for
listing, subject only to official notice of issuance, on the New York Stock Exchange (the
“NYSE”).
(31) NASD Matters. All of the information (including, but not limited to,
information regarding affiliations, security ownership and trading activity) provided to the
Underwriter or to counsel for the Underwriter by the Company, its officers and directors and
the holders of any securities (debt or equity) or options to acquire any securities of the
Company in connection with letters, filings or other supplemental information provided to
NASD Regulation Inc. pursuant to NASD Conduct Rule 2710 or 2720 is true, complete and
correct.
(32) Insurance. The Company, the Operating Partnership and each of their
respective subsidiaries are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; all policies of insurance and any fidelity or surety
bonds insuring the Company, the Operating Partnership or any of their respective
subsidiaries or their respective businesses, assets, employees, officers and directors are
in full force and effect; the Company, the Operating Partnership and their respective
subsidiaries are in compliance with the terms of such policies and instruments in all
material respects; there are no claims by the Company, the Operating Partnership or any of
their respective subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause; neither the
Company, the Operating Partnership nor any such subsidiary has been refused any insurance
coverage sought or applied for; and neither the Company, the Operating Partnership nor any
such subsidiary has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that would not have
a Material Adverse Effect. Without limitation to the foregoing provisions of this Section
(1)(a)(32), and such exceptions as would not, individually or in the aggregate, have a
Material Adverse Effect, the Company, the Operating Partnership and their respective
subsidiaries have title insurance on any real property currently leased or owned or
controlled by them or to be leased or owned or to be controlled by them
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(collectively, the “Real Property”), in each case in an amount at least equal
to the original cost of acquisition, and the Company, the Operating Partnership and their
respective subsidiaries are entitled to all benefits of the insured thereunder, and each
such Real Property is insured by extended coverage hazard and casualty insurance in amounts
and on such terms as are customarily carried by lessors of properties similar to those owned
by the Company, the Operating Partnership and their respective subsidiaries (in the markets
in which the Company’s and subsidiaries’ respective Real Properties are located), and the
Company, the Operating Partnership and their respective subsidiaries carry comprehensive
general liability insurance and such other insurance as is customarily carried by lessors of
properties similar to those owned by the Company, the Operating Partnership and their
respective subsidiaries in amounts and on such terms as are customarily carried by lessors
of properties similar to those owned by the Company, the Operating Partnership and their
respective subsidiaries (in the markets in which the Company’s, the Operating Partnership’s
and their respective subsidiaries’ respective Real Properties are located) and the Company,
the Operating Partnership or one of their respective subsidiaries is named as an additional
insured on all policies required under the leases for such properties. With respect to
mortgage loans extended by the Company and its subsidiaries, the Company or its subsidiary
has one or more lender’s title insurance policies insuring the lien of the mortgages
encumbering the real property underlying such loans with coverages, in the aggregate, equal
to at least the maximum aggregate principal amount of such loan.
(33) Disclosure Controls and Procedures. The Company and the Operating
Partnership have established and maintain disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) under the Exchange Act) that (i) are designed to ensure that
material information required to be disclosed by the Company in the reports that it files or
submits under the Exchange Act is accumulated and communicated to the Company’s management,
including the Company’s principal executive officer and principal financial officer,
particularly during the preparation of the reports that it files or submits under the
Exchange Act; and (ii) are effective to ensure that information required to be disclosed by
the Company in the reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the Commission’s
rules and forms.
(34) Accounting Controls. The Company, the Operating Partnership and each of
their respective subsidiaries maintain a system of internal control over financial reporting
sufficient to provide reasonable assurance that financial reporting is reliable and
financial statements for external purposes are prepared in accordance with GAAP and includes
policies and procedures that (i) pertain to the maintenance of records that in reasonable
detail accurately and fairly reflect the transactions and dispositions of the assets of the
Company; (ii) provide reasonable assurance that transactions are recorded as necessary to
permit preparation of financial statements in accordance with GAAP, and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. Except as described in the Registration Statement, the
Disclosure Package and the Prospectus, since the end of the
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Company’s most recent audited fiscal year, there has been (i) no material weakness in
the Company’s internal control over financial reporting (whether or not remediated) and (ii)
no change in the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over
financial reporting.
(35) Absence of Manipulation. Each of the Company and the Operating
Partnership has not taken and will not take, directly or indirectly, any action designed to
or that would constitute or that might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security to facilitate the sale or resale
of the Securities.
(36) Foreign Corrupt Practices Act. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee,
affiliate or other person acting on behalf of the Company or any of its subsidiaries is
aware of or has taken any action, directly or indirectly, that has resulted or would result
in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (collectively, the “FCPA”), including, without
limitation, making use of the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA)
or any foreign political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA, and the Company and its subsidiaries and, to the
knowledge of the Company, its other affiliates have conducted their businesses in compliance
with the FCPA and have instituted and maintain policies and procedures designed to ensure,
and which are reasonably expected to continue to ensure, continued compliance therewith.
(37) Money Laundering Laws. The operations of the Company and its subsidiaries
are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the
rules and regulations thereunder and any related or similar applicable rules, regulations or
guidelines, issued, administered or enforced by any governmental agency (collectively,
“Money Laundering Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of
the Company, threatened.
(38) OFAC. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee, affiliate or person acting
on behalf of the Company or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not directly or indirectly use any of the
proceeds received by the Company from the sale of Securities contemplated by this Agreement,
or lend, contribute or otherwise make available any such proceeds to any
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subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions administered
by OFAC.
(39) Lending Relationship. Except as disclosed in the Registration Statement
and the Prospectus, neither the Company nor any of its subsidiaries has any outstanding
borrowings from, or is a party to any line of credit, credit agreement or other credit
facility or otherwise has a borrowing relationship with, any bank or other lending
institution affiliated with the Underwriter, and the Company does not intend to use any of
the proceeds from the sale of the Securities to repay any debt owed to the Underwriter or
any affiliate of the Underwriter.
(40) Transfer Taxes. There are no stock or other transfer taxes, stamp duties,
capital duties or other similar duties, taxes or charges payable in connection with the
execution or delivery of this Agreement by the Company or the issuance or sale by the
Company of the Securities to be sold by the Company to the Underwriter hereunder.
(41) ERISA. Except as set forth in the Company’s financial statements, each of
the Company and the Operating Partnership does not have any material liabilities under the
Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal
Revenue Code of 1986, as amended from time to time.
(42) REIT Status. Commencing with the Company’s taxable year ended December
31, 2003, and the taxable year ended December 31, 2005 of Arbor Realty SR, Inc., a Maryland
real estate investment trust (the “Private REIT”), each of the Company and the
Private REIT has been organized and operated in conformity with the requirements for
qualification and taxation as a real estate investment trust (“REIT”) under the
Internal Revenue Code of 1986, as amended, and the regulations and published interpretations
thereunder (collectively, the “Code”), and each of the Company’s and the Private
REIT’s current and proposed method of operations as described in the Registration Statement,
the Disclosure Package and the Prospectus will enable it to continue to meet the
requirements for qualification and taxation as a REIT under the Code for its taxable year
ending December 31, 2007 and thereafter. The Company does not know of any event that would
cause or is likely to cause either the Company or the Private REIT to fail to qualify as a
REIT under the Code at any time.
(43) Tax Returns. All tax returns required to be filed as of the date hereof
by the Company and each of its subsidiaries have been timely filed (or valid extensions to
such filings have been obtained), all such tax returns are true, correct and complete in all
material respects, and all material taxes and other assessments of a similar nature (whether
imposed directly or through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due from such entities have been paid,
other than those being contested in good faith and for which adequate reserves have been
provided.
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(44) Related Party Transactions. There are no business relationships or
related-party transactions involving the Company, the Operating Partnership or the Manager
required to be described in the Registration Statement, the Disclosure Package and the
Prospectus which have not been so described as required.
(45) No Unlawful Contributions or Other Payments. Neither the Company, the
Operating Partnership nor any subsidiary nor, to the best of the Company’s knowledge, any
employee or agent of the Company, the Operating Partnership or any subsidiary, has made any
contribution or other payment to any official of, or candidate for, any federal, state or
foreign office in violation of any law or of the character required to be disclosed in the
Prospectus.
(46) Brokers and Finders. Neither the Company, the Operating Partnership nor
any subsidiary has incurred any liability for a fee, commission or other compensation on
account of the employment of a broker or finder in connection with the transactions
contemplated by this Agreement other than as contemplated hereby.
(47) No Prohibition on Subsidiaries from Paying Dividends or Making Other
Distributions. No subsidiary is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s
capital stock or other equity interests, from repaying to the Company any loans or advances
to such subsidiary from the Company or from transferring any of such subsidiary’s property
or assets to the Company or any other Subsidiary.
(48) Title to Real and Personal Property. (i) The Company and its
subsidiaries, including the Operating Partnership, have (or in the case of a Joint Venture,
such limited partnership, limited liability company or other joint venture entity has) good
and marketable title in fee simple to, or a valid leasehold interest in, the Real Property
and good and marketable title to any and all personal property owned by the Company or any
of its Subsidiaries that is material to the business of the Company or the Operating
Partnership, in each case free and clear of all Liens, except as described in the Prospectus
or such as would not reasonably be expected to result in a Material Adverse Effect; and any
real property, buildings and equipment held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable leases (the “Leases”) with
such exceptions as are disclosed in the Prospectus or such as would not reasonably be
expected to result in a Material Adverse Effect; (ii) neither the Company nor any of its
Subsidiaries has received notice of any claim that has been or may be asserted by anyone
adverse to the rights of the Company or any subsidiary with respect to any such Real
Properties, personal property or Leases or affecting or questioning the rights of the
Company to the continued ownership, lease, possession or occupancy of such Real Properties,
personal property or Leases, except for such claims that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; (iii) no person or
entity, including, without limitation, any tenant under the leases, if any, for the Real
Properties has an option or right of first refusal or any other right to purchase any of
such Real Properties, except as disclosed in the Prospectus; (iv) each of the Real
Properties has access to public rights of way, either directly or through insured easements,
except where the failure to have such access would not, individually or in the
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aggregate, have a Material Adverse Effect; (v) each of the Real Properties is served by
all public utilities necessary for the current operations on such property in sufficient
quantities for such operations, except where the failure to have such public utilities would
not, individually or in the aggregate, have a Material Adverse Effect; (vi) each of the Real
Properties complies with all applicable codes and zoning and subdivision laws and
regulations, except for such failure to comply which would not, either individually or in
the aggregate, have a Material Adverse Effect; (vii) all of the Leases are in full force and
effect, except where the failure to be in full force or effect would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect, and neither the
Company nor any of its subsidiaries is in default in the payment of any amounts due under
any such Leases or in any other default thereunder and neither the Company nor any of its
subsidiaries knows or an event which, with the passage of time or the giving of notice or
both, would constitute a default under any such Lease, except such defaults that would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
and (viii) there is no pending or, to the knowledge of the Company or its subsidiaries,
threatened condemnation, zoning change, or other proceeding or action that would in any
manner affect the size of, use of, improvements on, construction on or access to any Real
Property, except such proceedings or actions that, either individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
(49) Compliance with Environmental Laws. Except as otherwise disclosed in the
Registration Statement, and the Disclosure Package and the Prospectus: (i) neither the
Company nor any of its subsidiaries nor, to the knowledge of the Company, any other owners
of the Real Property at any time, or to the knowledge of the Company, any other party has at
any time, handled, stored, treated, transported, manufactured, spilled, leaked, or
discharged, dumped, transferred or otherwise disposed of or dealt with, Hazardous Materials
(as hereinafter defined) on, to or from any Real Property, other than by any such action
taken in material compliance with all applicable Environmental Statutes (as hereinafter
defined) or by the Company, any of its subsidiaries or any other party in connection with
the ordinary use of residential, retail or commercial properties owned by the Company or any
subsidiary; (ii) the Company and its subsidiaries do not intend to use the Real Property or
any subsequently acquired properties for the purpose of handling, storing, treating,
transporting, manufacturing, spilling, leaking, discharging, dumping, transferring or
otherwise disposing of or dealing with Hazardous Materials other than by any such action
taken in material compliance with all applicable Environmental Statues or by the Company,
any of its subsidiaries or, to the knowledge of the Company, any other party in connection
with the ordinary use of residential, retail or commercial properties owned by the Company
or any subsidiary; (iii) the Company and the Operating Partnership do not know of any
seepage, leak, discharge, release, emission, spill, or dumping of Hazardous Materials from
the Real Property into waters on or adjacent to the Real Property or from the Real Property
onto any real property owned or occupied by any other party, or onto lands from which
Hazardous Materials might seep, flow or drain into such waters other than in material
compliance with Environmental Statutes; (iv) neither the Company nor any of its subsidiaries
has received any notice of, or has knowledge of, any occurrence or circumstance which, with
notice or passage of time or both, would give rise to a claim under or pursuant to any U.S.
federal, state or local environmental statute or regulation or under common law,
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pertaining to Hazardous Materials on or originating from any of the Real Property or
arising out of the conduct of the Company or any of its subsidiaries, including without
limitation a claim under or pursuant to any Environmental Statute (as hereinafter defined);
and (v) neither the Real Property is included nor, to the Company’s or the Operating
Partnership’s knowledge, is proposed for inclusion on the National Priorities List issued
pursuant to CERCLA (as hereinafter defined) by United States Environmental Protection Agency
(the “EPA”) or, to the Company’s or to the Operating Partnership’s knowledge,
proposed for inclusion on any similar list or inventory issued pursuant to any other
Environmental Statute or issued by any other governmental authority.
As used herein, “Hazardous Materials” shall include, without limitation, any
flammable explosives, radioactive materials, hazardous materials, hazardous wastes, toxic
substances, or related materials, asbestos or any hazardous material as defined by any U.S.
federal, state or local environmental law, ordinance, rule or regulation including without
limitation the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended, 42 U.S.C. Sections 9601-9675 (“CERCLA”), the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Sections 1801-1819, the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Sections 6901-6992K, the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. Sections 11001-11050, the Toxic Substances
Control Act, 15 U.S.C. Sections 2601-2671, the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. Sections 136-136y, the Clean Air Act, 42 U.S.C. Sections
7401-7642, the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C. Sections
1251-1387, the Safe Drinking Water Act, 42 U.S.C. Sections 300f-330j-26, and the
Occupational Safety and Health Act, 29 U.S.C. Sections 651-678, as any of the above statutes
may be amended from time to time, and in the regulations promulgated pursuant to each of the
foregoing (individually, an “Environmental Statute”) or by any governmental
authority.
(50) Compliance with ADA. The Company and its subsidiaries and each Real
Property are currently in compliance with all presently applicable provisions of the
Americans with Disabilities Act, as amended, except for any such non-compliance that would
not, individually or in aggregate, reasonably be expected to have a Material Adverse Effect.
(51) No Breach or Default under Loans. To the Company’s knowledge, there is no
breach of, or default under (nor has any event occurred which with notice, lapse of time, or
both would constitute a breach of, or default under) the loan documents relating to the debt
instruments acquired or originated by the Company as described in the Incorporated Documents
(collectively, the “Loans”) which breach or default, if uncured, would result in a
Material Adverse Effect. To the Company’s knowledge without due inquiry, there is no breach
or default under (nor has any event occurred which with notice, lapse of time, or both would
constitute a breach of, or default under) the loan documents relating to any loans senior to
the Loans, which breach or default, if uncured, would result in a Material Adverse Effect.
(52) Compliance with Xxxxxxxx-Xxxxx Act. There is and has been no failure on
the part of the Company or any of the Company’s directors or officers,
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in their capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of
2002 and the rules and regulations promulgated in connection therewith (the
“Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and Sections 302 and
906 related to certifications.
(b) Representations and Warranties by the Manager. The Manager represents and warrants to the
Underwriter as of the date hereof, as of the Closing Date and as of each Option Closing Date (if
any), and agrees with each Underwriter, as follows:
(1) Accurate Disclosure. The information regarding the Manager in the
Registration Statement, the Disclosure Package and the Prospectus is true and correct in all
material respects.
(2) Good Standing of the Manager. The Manager has been duly formed and is
validly existing as a limited liability company in good standing under the laws of the State
of New York and has power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement, the Disclosure Package and
the Prospectus and to enter into and perform its obligations under this Agreement, the
Management Agreement and the Services Agreement and the Manager is duly qualified as a
foreign limited liability company to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a material adverse change or any development
involving a prospective material adverse change in the operations, condition (financial or
otherwise), or in the earnings, business affairs or business prospects of the Manager and
its subsidiaries, considered as one enterprise, whether or not arising in the ordinary
course of business (a “Manager Material Adverse Effect”).
(3) Authorization of Agreement, Management Agreement, Partnership Agreement and
Services Agreement. Each of this Agreement, the Management Agreement, the Partnership
Agreement and the Services Agreement (collectively, the “Manager Agreements”) has
been duly authorized, executed and delivered by the Manager and constitutes a valid and
binding agreement of the Manager enforceable in accordance with its terms, except to the
extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or
other laws affecting enforcement of creditors’ rights or by general equitable principles.
(4) Absence of Defaults and Conflicts. The Manager is not in violation of its
Organizational Documents or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any Company Document, Manager Agreement or
otherwise, except for such defaults that would not result in a Material Adverse Effect. The
execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Manager Agreements and compliance by the Manager
with its obligations under this Agreement do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a breach of, or
default under, or result in the
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creation or imposition of any Lien upon any property or assets of the Manager, nor will
such action result in any violation of the provisions of the Organizational Documents of the
Manager or any applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Manager or any of its subsidiaries or any of their respective assets,
properties or operations.
(5) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Manager, threatened, against or affecting
the Manager that would result in a Manager Material Adverse Effect.
(6) Absence of Further Requirements. (A) No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, (B) no authorization, approval, vote
or other consent of any stockholder or creditor of the Manager, (C) no waiver or consent
under any Company Document, and (D) no authorization, approval, vote or other consent of any
other person or entity, is necessary or required for the performance by the Manager of its
obligations under this Agreement or the Manager Agreements and the transactions contemplated
thereby, in each case on the terms contemplated by this Agreement and the Prospectus, except
such as have been already obtained.
(7) Possession of Licenses and Permits. The Manager possesses such
Governmental Licenses issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct its business as described in the Prospectus; the
Manager is in material compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, individually or in the aggregate,
have a Manager Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would not have a
Manager Material Adverse Effect; and the Manager has not received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses which,
individually or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Manager Material Adverse Effect.
(8) Investment Advisers Act. The Manager is not prohibited by the Investment
Advisers Act of 1940, as amended (the “Advisers Act”), or the rules and regulations
thereunder, from performing under the Management Agreement as contemplated by the Management
Agreement and as described in the Prospectus.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Initial Securities. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
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sell to the Underwriter, and the Underwriter agrees to purchase from the Company, at a price
of $27.40 per share (the “Purchase Price”), the Initial Securities.
(b) Option Securities. In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions set forth herein, the Company hereby grants an
option to the Underwriter to purchase up to 405,000 shares of Common Stock at a price per share
equal to the Purchase Price referred to in Section 2(a) above; provided that the price per share
for any Option Securities shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial Securities but not payable on such
Option Securities. The option hereby granted will expire at the close of business on the 30th day
after the date hereof and may be exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Underwriter to the Company setting forth
the number of Option Securities as to which the Underwriter is then exercising the option and the
time and date of payment and delivery for such Option Securities. Any such time and date of
delivery (an “Option Closing Date”) shall be determined by the Underwriter, and may be the
Closing Date (as hereinafter defined), but shall not be later than seven full business days after
the exercise of said option, nor in any event prior to the Closing Date.
(c) Payment. Payment of the purchase price for, and delivery of certificates for, the Initial
Securities shall be made at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as shall be agreed upon by the Underwriter
and the Company, at 9:00 a.m. (New York City time) on June 12, 2007 (unless postponed in accordance
with the provisions of Section 10 of this Agreement), or such other time not later than ten
business days after such date as shall be agreed upon by the Underwriter and the Company (such time
and date of payment and delivery being herein called the “Closing Date”).
In addition, in the event that any or all of the Option Securities are purchased by the
Underwriter, payment of the purchase price for, and delivery of certificates for, such Option
Securities shall be made at 9:00 a.m. at the above-mentioned offices, or at such other place as
shall be agreed upon by the Underwriter and the Company, on each Option Closing Date as specified
in the notice from the Underwriter to the Company.
SECTION 3. Covenants of the Company, the Operating Partnership and the Manager.
(a) Covenants of the Company and the Operating Partnership. Each of the Company and the
Operating Partnership, severally, covenants with the Underwriter as follows:
(1) Compliance with Securities Regulations and Commission Requests The
Company, subject to Section 3(a)(2) of this Agreement, will comply with the requirements of
Rule 430B and will notify the Underwriter immediately, and confirm the notice in writing,
(i) of the receipt of any comments from the Commission, (ii) of any request by the
Commission for any amendment to the Registration Statement or any
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amendment or supplement to the Prospectus or for additional information, and (iii) of
the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any preliminary
prospectus or preliminary prospectus supplement, any Issuer Free Writing Prospectus or the
Prospectus or of the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any proceedings for any of such
purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) in
the manner and within the time period required by Rule 424(b) (without reliance on Rule
424(b)(8)) and will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus and prospectus supplement transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that either or both of them was not,
will promptly file such prospectus and/or prospectus supplement. The Company will make
every reasonable effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible time.
(2) Filing of Amendments. During the period beginning on the Initial Sale Time
and ending on the later of the Closing Time or such date, as in the reasonable opinion of
counsel for the Underwriter, the Prospectus is no longer required under the 1933 Act or the
1934 Act to be delivered in connection with sales by the Underwriter or a dealer, including
in circumstances where such requirement may be satisfied pursuant to Rule 172 (the
“Prospectus Delivery Period”), prior to amending or supplementing the Registration
Statement, the Disclosure Package or the Prospectus (including any amendment or supplement
through incorporation by reference of any report filed under the 1934 Act), the Company will
furnish to the Underwriter for review a copy of each such proposed amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case may be, and will
not file or use any such document without the consent of the Underwriter.
(3) Delivery of Registration Statements. The Company has furnished or will
deliver to the Underwriter and its counsel, without charge, a signed copy of the
Registration Statement as originally filed and of each amendment thereto (including exhibits
filed therewith) and signed copies of all consents and certificates of experts). The copies
of the Registration Statement and each amendment thereto furnished to the Underwriter are
identical to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(4) Delivery of Prospectuses. The Company has delivered or will deliver to the
Underwriter, without charge, as many copies of the Prospectus as the Underwriter reasonably
requested and the Company hereby consents to the use of such copies for purposes permitted
by the 1933 Act. The Company will furnish to the Underwriter, without charge, during the
Prospectus Delivery Period, such number of copies of the Prospectus (as amended or
supplemented) as the Underwriter may reasonably request. The Prospectus and any amendments
or supplements thereto furnished to the Underwriter will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
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(5) Continued Compliance with Securities Laws. The Company will comply with
the 1933 Act and the 1933 Act Regulations so as to permit the completion of the distribution
of the Securities as contemplated in this Agreement, the Disclosure Package and the
Prospectus. If, during the Prospectus Delivery Period, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for the
Underwriter or for the Company, to amend the Registration Statement or amend or supplement
the Disclosure Package or the Prospectus in order that the Disclosure Package or the
Prospectus will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading in the light
of the circumstances existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Disclosure Package or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly
prepare and file with the Commission, subject to Section 3(a)(2) hereof, such amendment or
supplement as may be necessary to correct such statement or omission or to make the
Registration Statement or the Disclosure Package or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriter such number of copies of such
amendment or supplement as the Underwriter may reasonably request. If at any time following
issuance of an Issuer Free Writing Prospectus during the Prospectus Delivery Period there
occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the Registration
Statement or any other registration statement relating to the Securities or included or
would include an untrue statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading, the Company will promptly
notify the Underwriter and will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or
omission.
(6) Permitted Free Writing Prospectuses. The Company agrees that, unless it
obtains the prior written consent of the Underwriter, it will not make any offer relating to
the Securities that would constitute an Issuer Free Writing Prospectus or that would
otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the 1933 Act);
provided that the prior written consent of the Underwriter shall be deemed to have been
given in respect of any Free Writing Prospectuses listed in Schedule I hereto. Any
such free writing prospectus consented to by the Underwriter is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and
will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 of the 1933 Act applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending and record
keeping.
(7) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriter, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic or
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foreign) as the Underwriter may designate and to maintain such qualifications in effect
for a period of not less than one year from the date of this Agreement; provided, however,
that the Company shall not be obligated to file any general consent to service of process or
to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which
the Securities have been so qualified, the Company will file such statements and reports as
may be required by the laws of such jurisdiction to continue such qualification in effect
for a period of not less than one year from the date of this Agreement.
(8) Rule 158. The Company will timely file such reports pursuant to the 1934
Act as are necessary in order to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(9) Use of Proceeds. The Company will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Disclosure Package and the
Prospectus under “Use of Proceeds.”
(10) Listing. The Company will use its best efforts to effect the listing of
the Securities on the NYSE.
(11) Restriction on Sale of Securities. Each of the Company, the Operating
Partnership and the Manager will not, without the prior written consent of the Underwriter,
offer, sell, agree to offer or sell, solicit offers to purchase, grant any call option or
purchase any put option with respect to, pledge, borrow or otherwise dispose of, or
establish or increase a “put equivalent position” or liquidate or decrease a “call
equivalent position” within the meaning of Section 16 of the 1934 Act and the 1934 Act
Regulations, or otherwise enter into any swap, derivative or other transaction or
arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership, whether or not such transaction is to be settled by delivery of such
securities, other securities, cash or other consideration with respect to, the Company’s
Common Stock, preferred stock, par value $.01 per share (“Preferred Stock”), OP
Units or other stock of the Company or any other equity securities convertible into, or
exercisable or exchangeable for, shares of the Company’s Common Stock, Preferred Stock or
other stock, or publicly announce an intention to effect any such transaction, for a period
beginning on and including the date of this Agreement through and including the date which
is 60 days after the date of this Agreement; provided, however, that (A) the Company may
issue and sell Securities pursuant to this Agreement, (B) the Company may issue and sell
Common Stock and options to purchase Common Stock pursuant to any employee or director stock
option or stock purchase plans in effect on the date of this Agreement (so long as each such
plan and issuance is described in the Prospectus) provided that the holders of such Common
Stock or options to purchase Common Stock agree in writing to the foregoing restrictions set
forth in this Section 3(a)(11), (C) the Operating Partnership may issue OP Units in
consideration for acquisitions of assets and (D) the Company may issue Common Stock (i) upon
redemption of OP Units or upon exchange or conversion of any outstanding securities
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that have exchange or conversion rights or (ii) in payment of the incentive fee
pursuant to the Management Agreement. Notwithstanding the foregoing, in the event that
either (x) during the last 17 days of the 60-day period referred to above, the Company
issues an earnings release or (y) prior to the expiration of such 60-day period, the Company
announces that it will release earnings results during the 17-day period beginning on the
last day of such 60-day period, the restrictions described above shall continue to apply
until the expiration of the 17-day period beginning on the date of the earnings release.
(12) Reporting Requirements. The Company, during the Prospectus Delivery
Period, will file all documents required to be filed with the Commission pursuant to, and in
accordance with, the 1934 Act and the 1934 Regulations within the time periods required by
the 1934 Act and the 1934 Act Regulations.
(13) Preparation of Prospectus. Immediately following the execution of this
Agreement, the Company will, subject to Section 3(a)(2) hereof, prepare the Prospectus
containing the Rule 430B Information and other selling terms of the Securities, the plan of
distribution thereof and such other information as may be required by the 1933 Act or the
1933 Act Regulations or as the Underwriter and the Company may deem appropriate, and will
file or transmit for filing with the Commission, in accordance with Rule 424(b), copies of
the Prospectus.
(14) REIT Qualification. Each of the Company and the Private REIT will use its
best efforts to continue to meet the requirements to qualify as a “real estate investment
trust” under the Code.
(15) Transfer Agent. The Company shall engage and maintain, at its expense, a
registrar and transfer agent for the Common Stock.
(16) Company Not an “Investment Company.” The Company is familiar with the
Investment Company Act of 1940, as amended, and the rules and regulations thereunder, and
will in the future conduct its and the Operating Partnership’s affairs, in such a manner and
will use its commercially reasonable best efforts to ensure that the Company and the
Operating Partnership will not be an “investment company” within the meaning of the
Investment Company Act of 1940 and the rules and regulations thereunder.
(17) No Price Stabilization or Manipulation. The Company will not, and will
use its best efforts to cause its officers, directors and affiliates not to, prior to the
termination of the underwriting syndicate contemplated by this Agreement, (i) take, directly
or indirectly any action designed to stabilize or manipulate the price of any security of
the Company, or which may cause or result in, or which might in the future reasonably be
expected to cause or result in, the stabilization or manipulation of the price of any
security of the Company, to facilitate the sale or resale of any of the Securities, (ii)
sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the
Securities or (iii) pay or agree to pay to any person (other than the Underwriter) any
compensation for soliciting any order to purchase any other securities of the Company.
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(b) Covenants of the Manger. The Manager covenants with the Underwriter and with the Company
that, during the Prospectus Delivery Period, it shall notify you and the Company of the occurrence
of any material events respecting its activities, affairs or condition, financial or otherwise, and
the Manager will forthwith supply such information to the Company as shall be necessary in the
opinion of counsel to the Company and the Underwriter for the Company to prepare any necessary
amendment or supplement to the Disclosure Package or the Prospectus so that, as so amended or
supplemented, the Disclosure Package or Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing at the time it is delivered to a purchaser, not
misleading.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as originally filed and of
each amendment thereto, (ii) the word processing, printing and delivery to the Underwriter of this
Agreement, any Agreement among Underwriter and such other documents as may be required in
connection with the offering, purchase, sale, issuance and delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the Underwriter,
including any stock or other transfer taxes and any stamp or other duties payable, if any, upon the
sale, issuance or delivery of the Securities to the Underwriter, (iv) the fees and disbursements of
the counsel, accountants and other advisors to the Company, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(a)(6) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriter in connection
therewith and in connection with the preparation of the Blue Sky Survey and any supplements
thereto, (vi) all travel expenses of the Company’s officers and employees and any other expense of
the Company incurred in connection with attending or hosting meetings with prospective purchasers
of the Securities, (vii) the printing and delivery to the Underwriter of copies of the Prospectus
and any amendments or supplements thereto, (viii) the preparation, printing and delivery to the
Underwriter of copies of the Blue Sky Survey and any supplements thereto, (ix) the fees and
expenses of the transfer agent and registrar for the Securities, (x) the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Underwriter in connection with, the
review by the NASD of the terms of the sale of the Securities, (xi) the fees and expenses incurred
in connection with the listing of the Securities on the NYSE, and (xii) the costs and expenses
(including without limitation any damages or other amounts payable in connection with legal or
contractual liability) associated with reforming any contracts for sale of the Securities made by
the Underwriter where such reformation relates to any inaccuracy or breach of the representation
set forth in the third paragraph of Section 1(a)(1) of this Agreement.
(b) Termination of Agreement. If this Agreement is terminated by the Underwriter in
accordance with the provisions of Section 5 or Section 9(a)(i), the Company shall reimburse the
Underwriter for all of its reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriter.
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SECTION 5. Conditions of Underwriter’s Obligations. The obligations of the
Underwriter hereunder is subject to the accuracy of the representations and warranties of the
Company, the Operating Partnership and the Manager contained in this Agreement or in certificates
of any executive officer of the Company, the Operating Partnership, the Manager or any of their
respective subsidiaries delivered pursuant to the provisions hereof, to the performance by the
Company, the Operating Partnership and the Manager of their respective covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement has become effective
and at the Closing Date (or the applicable Option Closing Date, as the case may be) no stop order
suspending the effectiveness of the Registration Statement shall have been issued under the 1933
Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the
Commission, and any request on the part of the Commission for additional information shall have
been complied with to the satisfaction of counsel to the Underwriter. The Prospectus shall have
been filed with the Commission pursuant to Rule 424(b) within the time period prescribed by such
Rule, and prior to the Closing Date, the Company shall have provided evidence satisfactory to the
Underwriter of such timely filing and such number of copies of the Prospectus as the Underwriter
shall have reasonably requested.
(b) No Material Adverse Change. At the Closing Date or the applicable Option Closing Date, as
the case may be, there shall not have been, since the date hereof or since the respective dates as
of which information is given in the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), any material adverse change in the operations, condition
(financial or otherwise), or in the earnings, business affairs or business prospects of the Company
and its subsidiaries, including, without limitation, the Operating Partnership, considered as one
enterprise, whether or not arising in the ordinary course of business.
(c) Opinions of Counsel for Company. At the Closing Date, the Underwriter shall have received
an opinion, dated as of the Closing Date, of (i) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel
for the Company, the Operating Partnership and the Manager, (ii) Xxx Xxxxxx, Esq., the General
Counsel of the Manager, (iii) Xxxxxxx Xxxx & Xxxxxxxxx LLP, special counsel for the Company and the
Operating Partnership, and (iv) Xxxxxxx LLP, special counsel for the Company, each in form and
substance reasonably satisfactory to counsel for the Underwriter, together with signed or
reproduced copies of such letter for the Underwriter, to the effect set forth in Exhibit B,
Exhibit C, Exhibit D and Exhibit E hereto, respectively, and to such
further effect as counsel to the Underwriter may reasonably request.
(d) Opinion of Counsel for Underwriter. At the Closing Date, the Underwriter shall have
received an opinion, dated as of the Closing Date, of Hunton & Xxxxxxxx LLP, counsel for the
Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement
and the Prospectus and such other related matters as the Underwriter may reasonably request. In
giving such opinion, Hunton & Xxxxxxxx LLP may rely without investigation, as to all matters
arising under or governed by the laws of the State of Maryland, on the opinion of Xxxxxxx LLP
referred to in Section 5(c) above.
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(e) Officers’ Certificate. At the Closing Date, the Underwriter shall have received a
certificate of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as
of the Closing Date, to the effect that (i) there has been no material adverse change as described
in Section 5(b) hereof, (ii) the representations and warranties of the Company and the Operating
Partnership in this Agreement are true and correct with the same force and effect as though
expressly made at and as of the Closing Date, (iii) the obligations of the Company and the
Operating Partnership to be performed at or prior to the Closing Date under or pursuant to this
Agreement have been duly performed, (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have been instituted or
are pending or, to their knowledge, contemplated by the Commission and (v) none of the Registration
Statement, as of the date it first became effective, as of the Registration Statement’s “new
effective date” with respect to the Underwriter pursuant to Rule 430B(f)(2) of the 1933 Act
Regulations or as of the Closing Time, or the Disclosure Package, as of the Initial Sale Time, or
the Prospectus, as of the date of the Prospectus Supplement or as of the Closing Time, contained or
contains an untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(f) Manager’s Certificate. At the Closing Date, the Underwriter shall have received a
certificate of each of the Chief Executive Officer and Chief Financial Officer of the Manager,
dated as of the Closing Date, to the effect that (i) the representations and warranties of the
Manager in this Agreement are true and correct with the same force and effect as though expressly
made at and as of the Closing Date, and (ii) the obligations of the Manager to be performed at or
prior to the Closing Date under or pursuant to this Agreement have been duly performed.
(g) Accountant’s Comfort Letter. At the time of the execution of this Agreement, the
Underwriter shall have received from Ernst & Young LLP, a letter, dated the date of this Agreement
and in form and substance satisfactory to the Underwriter, containing statements and information of
the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information of the Company contained in the Registration
Statement, the Disclosure Package and the Prospectus.
(h) Bring-down Comfort Letter. At the Closing Date, the Underwriter shall have received from
Ernst & Young LLP, a letter, dated as of the Closing Date and in form and substance satisfactory to
the Underwriter, to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (g) of this Section 5, except that the specified date referred to for the
carrying out of procedures shall be a date not more than two business days prior to the Closing
Date.
(i) Approval of Listing. At the Closing Date and each Option Closing Date, if any, the
Securities to be purchased by the Underwriter at such time shall have been approved for listing on
the NYSE, subject only to official notice of issuance.
(j) Lock-up Agreements. Prior to the Closing Date, the Underwriter shall have received an
agreement substantially in the form of Exhibit A hereto signed by each director
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and officer of the Company listed in Schedule V hereto and by the Manager and certain
members of the senior management of the Manager.
(k) No Objection. Prior to the date of this Agreement, NASD Regulation Inc. shall have
confirmed in writing that it has no objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(l) Conditions to Purchase of Option Securities. In the event that the Underwriter exercises
its option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities
on any Option Closing Date that is after the Closing Date, the obligations of the Underwriter to
purchase the applicable Option Securities shall be subject to the conditions specified in the
introductory paragraph of this Section 5 and to the further condition that, at the applicable
Option Closing Date, the Underwriter shall have received:
(1) Officers’ Certificate. A certificate, dated such Option Closing Date, to
the effect set forth in, and signed by the Chief Executive Officer and the Chief Financial
Officer of the Company, as specified in Section 5(c) hereof, except that the references in
such certificate to the Closing Date shall be changed to refer to such Option Closing Date.
(2) Manager’s Certificate. A certificate, dated such Option Closing Date, to
the effect set forth in, and signed by the Chief Executive Officer and the Chief Financial
Officer of the Manager, except that the references in such certificate to the Closing Date
shall be changed to refer to such Option Closing Date.
(3) Opinions of Counsel for Company. The opinions of (i) Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, (ii) Xxx Xxxxxx, Esq., (iii) Xxxxxxx Xxxx & Xxxxxxxxx LLP and (iv)
Xxxxxxx LLP, in form and substance satisfactory to counsel for the Underwriter, dated such
Option Closing Date, relating to the Option Securities to be purchased on such Option
Closing Date and otherwise to the same effect as the opinions required by Section 5(c)
hereof.
(4) Opinion of Counsel for Underwriter. The opinion of Hunton & Xxxxxxxx LLP,
counsel for the Underwriter, dated such Option Closing Date, relating to the Option
Securities to be purchased on such Option Closing Date and otherwise to the same effect as
the opinion required by Section 5(d) hereof.
(5) Bring-down Comfort Letter. A letter from Ernst & Young LLP, in form and
substance satisfactory to the Underwriter and dated such Option Closing Date, substantially
in the same form and substance as the letter furnished to the Underwriter pursuant to
Section 5(h) hereof, except that the “specified date” in the letter furnished pursuant to
this paragraph shall be a date not more than two business days prior to such Option Closing
Date.
(m) Additional Documents. At the Closing Date and at each Option Closing Date, counsel for
the Underwriter shall have been furnished with such other documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy
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of any of the representations or warranties, or the fulfillment of any of the conditions,
contained in this Agreement; and all proceedings taken by the Company, the Operating Partnership
and the Manager in connection with the issuance and sale of the Securities as herein contemplated
and in connection with the other transactions contemplated by this Agreement shall be satisfactory
in form and substance to the Underwriter and counsel for the Underwriter.
(n) Termination of Agreement. If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any
condition to the purchase of Option Securities on an Option Closing Date which is after the Closing
Date, the obligations of the Underwriter to purchase the relevant Option Securities, may be
terminated by the Underwriter by notice to the Company at any time on or prior to the Closing Date
or such Option Closing Date, as the case may be, and such termination shall be without liability of
any party to any other party except as provided in Section 4 hereof and except that Sections 1, 4,
6, 7 and 8 hereof shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification by the Company and the Operating Partnership. Each of the Company and the
Operating Partnership, jointly and severally, agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising in whole or in part out of (A) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any amendment
thereto), including the Rule 430B Information, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue statement of a
material fact included in any Issuer Free Writing Prospectus, the Disclosure Package or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or (B) any breach of any
representation, warranty or covenant of each of the Company and the Operating Partnership
contained herein;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any of (i) above; provided that (subject to Section 6(e)
below) any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Underwriter), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
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whatsoever based upon any of (i) above, to the extent that any such expense is not paid
under (i) or (ii) above,
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written information furnished to
the Company by the Underwriter expressly for use in the Registration Statement (or any amendment
thereto), or in any Issuer Free Writing Prospectus, the Disclosure Package or the Prospectus (or
any amendment or supplement thereto), which information is set forth in Section 1(a)(1) hereof.
The indemnity agreement set forth in this Section 6(a) shall be in addition to any liabilities that
the Company may otherwise have.
(b) Indemnification by the Manager. The Manager agrees to indemnify and hold harmless the
Underwriter, each person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section 6, as incurred, but
only with respect to (i) any inaccuracy in the representations and warranties of the Manager
contained herein and (ii) any failure of the Manager to perform its obligations hereunder. The
indemnity agreement set forth in this Section 6(b) shall be in addition to any liabilities that the
Manager may otherwise have.
(c) Indemnification by the Underwriter. The Underwriter severally agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the Registration
Statement, the Operating Partnership and the Manager and each person, if any, who controls the
Company, the Operating Partnership and the Manager within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section 6, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto), or any preliminary prospectus, any Issuer
Free Writing Prospectus, the Disclosure Package or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished to the Company by
the Underwriter expressly for use in the Registration Statement (or any amendment thereto) or any
preliminary prospectus, any Issuer Free Writing Prospectus, the Disclosure Package or the
Prospectus (or any amendment or supplement thereto), which information is described in Section
1(a)(1) hereof. The indemnity agreement set forth in this Section 6(c) shall be in addition to any
liabilities that the Underwriter may otherwise have.
(d) Actions against Parties; Notification. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement thereof; but the omission
so to notify such indemnifying party shall not relieve the indemnifying party from any liability
which it may have to any indemnified party under such subsection except to the extent it has been
materially prejudiced by such failure. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly
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notified, to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal or other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include any statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(e) Settlement Without Consent if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after delivery to such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company, the Operating Partnership and the Manager
on the one hand and the Underwriter on the other hand from the offering of the Securities pursuant
to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company, the Operating Partnership and the
Manager, on the one hand and of the Underwriter on the other hand in connection with the
inaccuracies, statements or omissions which resulted in such losses, liabilities, claims, damages
or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, the Operating Partnership and the Manager on
the one hand and the Underwriter on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as
the total net proceeds from the offering of the Securities pursuant to this Agreement (before
deducting expenses) received by the Company, the Operating Partnership and the Manager and the
total underwriting discount received by the Underwriter, in each case as set forth on the cover of
the Prospectus, bear to the aggregate public offering price of the Securities as set forth on such
cover.
-32-
The relative fault of the Company, the Operating Partnership and the Manager on the one hand
and the Underwriter on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company, the Operating
Partnership, the Manager or by the Underwriter and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company, the Operating Partnership, the Manager and the Underwriter agree that it would
not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls the Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, the Operating Partnership, the Manager and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in certificates of
Executive Officers of the Company, the Operating Partnership and the Manager or any of their
subsidiaries, shall remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Company,
the Operating Partnership or the Manager, and shall survive delivery of the Securities to the
Underwriter.
-33-
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriter may terminate this Agreement, by notice to the
Company, at any time on or prior to the Closing Date (and, if any Option Securities are to be
purchased on an Option Closing Date which occurs after the Closing Date, the Underwriter may
terminate its option to purchase such Option Securities by notice to the Company, at any time on or
prior to such Option Closing Date) (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the Prospectus, any
material adverse change in the operations, condition (financial or otherwise), or in the earnings,
business affairs or business prospects of the Company and its subsidiaries, including, without
limitation, the Operating Partnership, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the judgment of the
Underwriter, impracticable or inadvisable to market the Securities or to enforce contracts for the
sale of the Securities, or (iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the NYSE, or if trading generally on the American Stock
Exchange or the NYSE or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the Commission, the NASD or any
other governmental authority, or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, or (iv) if a banking moratorium
has been declared by Federal, Maryland or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section 9, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 4, 6, 7 and 8 hereof shall survive such termination and
remain in full force and effect.
SECTION 10. [Intentionally Omitted.]
SECTION 11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriter shall be directed to the Underwriter c/o Wachovia
Capital Markets, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxxx, with
a copy to Hunton & Xxxxxxxx, LLP, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx
X. Xxxxxx; notices to the Company, the Operating Partnership and the Manager shall be directed to
them c/o Arbor Realty Trust, Inc., 000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx
00000, Attention: Xxxx Xxxxxx, Chief Financial Officer and Treasurer, with a copy to Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X.
Xxxxxxxxxxx.
-34-
SECTION 12. Parties. This Agreement shall each inure to the benefit of and be binding
upon the Underwriter, the Company, the Operating Partnership and the Manager and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriter, the Company, the Operating
Partnership and the Manager and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriter, the Company, the Operating Partnership
and the Manager and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no other person, firm
or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 14. Effect of Headings. The Section and Exhibit headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 15. Absence of Fiduciary Relationship.
The Company, the Operating Partnership and the Manager acknowledge and agree that:
(a) the Underwriter has been retained solely to act as underwriter in connection with the sale
of the Securities and that no fiduciary, advisory or agency relationship between the Company, the
Operating Partnership or the Manager and the Underwriter has been created in respect of any of the
transactions contemplated by this Agreement, irrespective of whether the Underwriter has advised or
is advising the Company, the Operating Partnership or the Manager on other matters;
(b) the price of the Shares set forth in this Agreement was established by the Company and the
Underwriter following discussions and arms-length negotiations with the Underwriter and the
Company, and the Company, the Operating Partnership and the Manager are capable of evaluating and
understanding and understand and accept the terms, risks and conditions of the transactions
contemplated by this Agreement;
(c) they have been advised that the Underwriter and its affiliates are engaged in a broad
range of transactions which may involve interests that differ from those of the Company, the
Operating Partnership or the Manager and that the Underwriter have no obligation to disclose such
interests and transactions to the Company, the Operating Partnership or the Manager by virtue of
any fiduciary, advisory or agency relationship; and
(d) they waive, to the fullest extent permitted by law, any claims they may have against the
Underwriter, for breach of fiduciary duty or alleged breach of fiduciary duty and agree that the
Underwriter shall have no liability (whether direct or indirect) to the Company, the
-35-
Operating Partnership or the Manager in respect of such a fiduciary claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders,
employees or creditors of the Company, the Operating Partnership or the Manager.
[Signature pages follow.]
-36-
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriter, the Company, the Operating Partnership and
the Manager in accordance with its terms.
Very truly yours, | ||||
ARBOR REALTY TRUST, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
ARBOR REALTY LIMITED PARTNERSHIP | ||||
By: | Arbor Realty GPOP, Inc., its | |||
General Partner | ||||
By: | ||||
Name: | ||||
Title: | ||||
ARBOR COMMERCIAL MORTGAGE, LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
[Signature page to Underwriting Agreement]
CONFIRMED AND ACCEPTED, as of the
date first above written:
date first above written:
WACHOVIA CAPITAL MARKETS, LLC
By: |
||||
Name: |
||||
Title: |
||||
[Signature page to Underwriting Agreement]
Schedule I
Issuer Free Writing Prospectuses
None.
Schedule II
Oral Pricing Information
ARBOR REALTY TRUST, INC.
2,700,000 Shares of Common Stock
Pricing Script
The underwriter orally conveyed the following information to purchasers at or prior to the
Initial Sale Time:
• | The last reported sale price of the common stock on the New York Stock Exchange on June 6, 2007 was $28.69 per share. | ||
• | The public offering price is $27.65 per share. | ||
• | The number of shares of common stock sold to the underwriter by the company is 2,700,000. | ||
• | The company has granted the underwriter an option to purchase up to an additional 405,000 shares of common stock to cover any over-allotments. | ||
• | Wachovia Securities is receiving an underwriting discount of $0.25 per share. | ||
• | The company expects that the net proceeds from the sale of 2,700,000 shares of common stock will be approximately $73.8 million, after deducting the underwriting discount and the company’s estimated offering expenses. If Wachovia Securities exercises its over-allotment option in full, the company expects net proceeds of approximately $84.9 million. | ||
• | The company expects to use the net proceeds to pay down a portion of the outstanding principal under its existing repurchase agreements. | ||
• | The trade date is June 7, 2007. | ||
• | The closing date is June 12, 2007. |
Schedule III
Subsidiaries of the Company
Jurisdiction of | ||||
Name | Organization | Type Of Entity | ||
Arbor Realty GPOP, Inc. |
Delaware | Corporation | ||
Arbor Realty LPOP, Inc. |
Delaware | Corporation | ||
Arbor Realty Limited Partnership |
Delaware | Limited Partnership | ||
Arbor Realty SR, Inc. |
Maryland | Corporation | ||
ANMB Holdings LLC |
New York | Limited Liability Company | ||
ACM Gateway LLC |
Delaware | Limited Liability Company | ||
Arbor Texas CDS, LLC |
New York | Limited Liability Company | ||
420 5th Investor, LLC |
Delaware | Limited Liability Company | ||
Arbor Realty Funding, LLC |
Delaware | Limited Liability Company | ||
Arbor Realty Member LLC |
Delaware | Limited Liability Company | ||
ART 450 LLC |
Delaware | Limited Liability Company | ||
AT 450 II LLC |
Delaware | Limited Liability Company | ||
ARMS 2004-1 Equity Holdings LLC |
Delaware | Limited Liability Company | ||
Arbor Realty Mortgage Securities
Series 2004-1 LLC |
Delaware | Limited Liability Company | ||
Arbor Realty Mortgage Securities
Series 2004-1, Ltd. |
Cayman Islands | Exempted Company with Limited Liability | ||
Arbor Realty Collateral Management, LLC |
Delaware | Limited Liability Company | ||
AC Flushing, LLC |
New York | Limited Liability Company | ||
ACM Lakeview, LLC |
New York | Limited Liability Company (TRS) | ||
AR Prime Holdings LLC |
Delaware | Limited Liability Company | ||
JT Prime LLC |
Delaware | Limited Liability Company (50% owned) | ||
Arbor Realty Mortgage Securities
Series 2005-1 Ltd. |
Cayman Islands | Exempted Company with Limited Liability | ||
Arbor Realty Mortgage Securities
Series 2005-1 LLC |
Delaware | Limited Liability Company | ||
ARMS 2005-1 Equity Holdings LLC |
Delaware | Limited Liability Company | ||
Arbor Realty OTA LLC |
Delaware | Limited Liability Company (TRS) | ||
Arbor Realty RMBS LLC |
Delaware | Limited Liability Company | ||
Arbor SR West 35th LLC |
Delaware | Limited Liability Company | ||
Arbor TRS Holding Co., Inc. |
Delaware | Corporation (TRS) | ||
Arbor Toy LLC |
Delaware | Limited Liability Company (TRS) | ||
ARLP 000 Xxxxx Xxxxxx |
Xxx Xxxx | Limited Liability Company (TRS) | ||
ARMS 2006-1 Equity Holdings LLC |
Delaware | Limited Liability Company | ||
Arbor Realty Mortgage Securities
Series 2006-1 LLC |
Delaware | Limited Liability Company | ||
Arbor Realty Mortgage Securities
Series 2006-1, Ltd. |
Cayman Islands | Exempted Company with Limited Liability | ||
Arbor Realty Participation LLC |
Delaware | Limited Liability Company | ||
Arbor Realty Mezzanine LLC |
Delaware | Limited Liability Company | ||
Arbor Realty Mezzanine Holdings LLC |
Delaware | Limited Liability Company | ||
ART 823 LLC |
Delaware | Limited Liability Company (TRS) |
Jurisdiction of | ||||
Name | Organization | Type Of Entity | ||
ARSR Tahoe LLC |
Delaware | Limited Liability Company | ||
Ashley Court – Fort Xxxxx LLC |
Indiana | Limited Liability Company | ||
Richland Terrace Apts. LLC |
South Carolina | Limited Liability Company | ||
MK Realty Co. of N.Y. LLC |
New York | Limited Liability Company | ||
BM Realty I LLC |
New York | Limited Liability Company | ||
47 Realty I LLC |
New York | Limited Liability Company | ||
DAGIM 26 LLC |
New York | Limited Liability Company | ||
260 Senior Mezz Lending LLC |
Delaware | Limited Liability Company | ||
Empirian Highlands LP |
Tennessee | Limited Partnership | ||
Wil-Brook North Carolina LLC |
Delaware | Limited Liability Company | ||
Empirian Wildewood LLC |
Georgia | Limited Liability Company | ||
Wil-Brook South Carolina LLC |
Delaware | Limited Liability Company | ||
Empirian at Park Row LLP |
Delaware | Limited Liability Partnership | ||
Empirian at Inverness LLC |
Delaware | Limited Liability Company | ||
Arbor Capital Trust I |
Delaware | Statutory Trust | ||
Arbor Capital Trust II |
Delaware | Statutory Trust | ||
Arbor Capital Trust III |
Delaware | Statutory Trust | ||
Arbor Capital Trust IV |
Delaware | Statutory Trust | ||
Arbor Capital Trust V |
Delaware | Statutory Trust | ||
Arbor Capital Trust VI |
Delaware | Statutory Trust | ||
Arbor Capital Trust VII |
Delaware | Statutory Trust | ||
Arbor Capital Trust VIII |
Delaware | Statutory Trust | ||
Arbor Capital Trust IX |
Delaware | Statutory Trust | ||
ARF 95 Wall LLC |
Delaware | Statutory Trust | ||
Arbor ESH Acquisition, LLC |
Delaware | Limited Liability Company | ||
LITW LLC |
Delaware | Limited Liability Company | ||
Empirian Lexford Basket 1S LLC |
Delaware | Limited Liability Company | ||
Empirian Lexford Basket 2 LLC |
Delaware | Limited Liability Company | ||
Empirian Lexford Basket 3 LLC |
Delaware | Limited Liability Company | ||
Empirian Lexford Basket 4 LLC |
Delaware | Limited Liability Company | ||
Empirian Lexford Basket 5 LLC |
Delaware | Limited Liability Company | ||
Empirian Lexford Basket 6 LLC |
Delaware | Limited Liability Company | ||
Empirian Lexford Basket 7 LLC |
Delaware | Limited Liability Company | ||
Lexford New 8 LLC |
Delaware | Limited Liability Company | ||
ARSR Alpine LLC |
Delaware | Limited Liability Company | ||
SIGNIFICANT SUBSIDIARIES |
||||
Arbor Realty GPOP, Inc. |
Delaware | Corporation | ||
Arbor Realty Limited Partnership |
Delaware | Limited Partnership | ||
(general partner is Arbor Realty GPOP, Inc.) |
||||
Arbor Realty SR, Inc. |
Maryland | Corporation | ||
Arbor Realty Funding, LLC |
Delaware | Limited Liability Company | ||
Arbor Realty Member LLC |
Delaware | Limited Liability Company | ||
Arbor Realty Mortgage Securities
Series 2004-1, Ltd. |
Cayman Islands | Exempted Company with Limited Liability | ||
AR Prime Holdings LLC |
Delaware | Limited Liability Company |
Jurisdiction of | ||||
Name | Organization | Type Of Entity | ||
Arbor Realty Mortgage Securities
Series 2005-1 Ltd. |
Cayman Islands | Exempted Limited Liability Company | ||
Arbor Realty OTA LLC |
Delaware | Limited Liability Company (TRS) | ||
Arbor Toy LLC |
Delaware | Limited Liability Company (TRS) | ||
Arbor Realty Mortgage Securities
Series 2006-1, Ltd. |
Cayman Islands | Exempted Company with Limited Liability |
Schedule IV
Joint Ventures of the Company
Jurisdiction of | Percentage | |||||||||||
Name | Organization | Type of Entity | Ownership | |||||||||
Prime Outlets Acquisition Company LLC |
Delaware | Limited Liability Company | 24.17 | % | ||||||||
450 Managing Member LLC |
Delaware | Limited Liability Company | 28.96 | % | ||||||||
200 Fifth Holder LLC |
Delaware | Limited Liability Company | 20.00 | % | ||||||||
AC Flushing LLC |
New York | Limited Liability Company | 50.00 | % | ||||||||
LBREP York Avenue Holdings LLC |
Delaware | Limited Liability Company | 8.70 | % | ||||||||
000 Xxxx Xxxxxx Mezz LLC |
Delaware | Limited Liability Company | 20.00 | % | ||||||||
Richland Terrace Apartments, LLC |
South Carolina | Limited Liability Company | 25.00 | % | ||||||||
Ashley Court — Fort Xxxxx LLC |
Indiana | Limited Liability Company | 25.00 | % | ||||||||
Nottingham Village, LLC |
Indiana | Limited Liability Company | 25.00 | % |
Schedule V
Parties signing lock up agreements pursuant to Section 1(a)(28)
Arbor Commercial Mortgage, LLC
Xxxx X. Xxxxxx, Xx.
Xxxxx Xxxxxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Xxxx Xxxxxx
Xxxx X. Xxxxx
Xxxxxx X. Xxxx
Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx
C. Xxxxxxx Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxx Xxxxxxxx
Xxxx Xxxxxxxx
Xxxx X. Xxxxxx
Xxxx Xxxxx
Xxxx X. Xxxxxx, Xx.
Xxxxx Xxxxxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Xxxx Xxxxxx
Xxxx X. Xxxxx
Xxxxxx X. Xxxx
Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx
C. Xxxxxxx Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxx Xxxxxxxx
Xxxx Xxxxxxxx
Xxxx X. Xxxxxx
Xxxx Xxxxx