XXXXXXX LLP
Two Xxxxxxx Plaza, Suite 1800 Telephone 000-000-0000 xxx.xxxxxxx.xxx
Baltimore, Maryland 21201-2978 Facsimile 000-000-0000
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Exhibit 5.1
April 5, 2004
Arbor Realty Trust, Inc.
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Re: Arbor Realty Trust, Inc.
Ladies and Gentlemen:
We have served as special Maryland counsel to Arbor Realty Trust, Inc., a
Maryland corporation (the "Company"), in connection with certain matters of
Maryland law relating to the registration by the Company of up to 7,710,000
shares (the "Shares") of common stock, par value $.01 per share (the "Common
Stock"), of the Company consisting of up to (a) 7,187,500 Shares (the "IPO
Shares") to be issued pursuant to an underwritten public offering, (b) 500,000
Shares (the "Concurrent Shares") to be issued to X. Xxxxxxx Xxxxxxx in a
concurrent offering with the IPO Shares and (c) 22,500 Shares (the "Unit
Shares") issued as part of the Units (as defined below), each covered by the
Registration Statement on Form S-11 (No. 333-110472), and all amendments thereto
(collectively, the "Registration Statement"), filed with the United States
Securities and Exchange Commission (the "Commission") by the Company under the
Securities Act of 1933, as amended (the "1933 Act"). The Unit Shares were
issued on July 1, 2003 as part of 1,610,000 Units issued by the Company, each
Unit consisting of five Unit Shares and a warrant to purchase a share of Common
Stock (a "Warrant Share") at an initial exercise price of $15 per Warrant Share,
pursuant to (a) the Purchase/Placement Agreement, dated as of June 26, 2003 (the
"Purchase Agreement"), by and among the Company, Arbor Commercial Mortgage, LLC,
a New York limited liability company, Arbor Realty Limited Partnership, a
Delaware limited partnership, and JMP Securities LLC ("JMP"), as initial
purchaser of 1,327,989 of the Units and the placement agent for 282,011 of the
Units, and (b) the Subscription Agreements, each accepted by the Company as of
July 1, 2003 (the "Subscription Agreements"), each between an individual
subscriber of a certain number of the 282,011 Units and the Company.
In connection with our representation of the Company, and as a basis for
the opinions hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (collectively, the "Documents"):
XXXXXXX LLP
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Arbor Realty Trust, Inc.
April 5, 2004
Page 2
Arbor Realty Trust, Inc.
April 1, 2004
Page 2
1. The Registration Statement and the related form of prospectus
included therein in the form in which it was filed with the Commission under the
1933 Act;
2. The charter of the Company (the "Charter"), certified as of a
recent date by the State Department of Assessments and Taxation of Maryland (the
"SDAT");
3. The Bylaws of the Company (the "Bylaws"), certified as of the
date hereof by an officer of the Company;
4. Resolutions (the "Resolutions") adopted by the Board of
Directors of the Company and a duly authorized committee thereof, relating to
the issuance and sale of the Shares, certified as of the date hereof by an
officer of the Company;
5. A certificate of the SDAT as to the good standing of the
Company, dated as of a recent date;
6. A certificate executed by an officer of the Company, dated as of
the date hereof;
7. The Purchase Agreement, certified as of the date hereof by an
officer of the Company;
8. The Subscription Agreements, each certified as of the date
hereof by an officer of the Company;
9. The Warrant Agreement, dated as of July 1, 2003 (the "Warrant
Agreement"), between the Company and American Stock Transfer & Trust Company, as
warrant agent, certified as of the date hereof by an officer of the Company; and
10. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth in this letter, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on
behalf of such individual or another person, is legally competent to do so.
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Arbor Realty Trust, Inc.
April 5, 2004
Page 3
2. Each individual executing any of the Documents on behalf of a
party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and the obligations of such party set forth
therein are legal, valid and binding and are enforceable in accordance with all
stated terms.
4. All Documents submitted to us as originals are authentic. The
form and content of all Documents submitted to us as unexecuted drafts do not
differ in any respect relevant to this opinion from the form and content of such
Documents as executed and delivered. All Documents submitted to us as certified
or photostatic copies conform to the original documents. All signatures on all
Documents are genuine. All public records reviewed or relied upon by us or on
our behalf are true and complete. All representations, warranties, statements
and information contained in the Documents are true and complete. There has
been no oral or written modification of or amendment to any of the Documents,
and there has been no waiver of any provision of any of the Documents, by action
or omission of the parties or otherwise.
5. The Unit Shares have not been, and the IPO Shares and Concurrent
Shares will not be, issued in violation of the restrictions on transfer and
ownership contained in Article VII of the Charter.
Based upon the foregoing, and subject to the assumptions, limitations and
qualifications stated herein, it is our opinion that:
1. The Company has been duly incorporated and is validly existing
under the laws of the State of Maryland and is in good standing with the State
Department of Assessments and Taxation of Maryland.
2. The IPO Shares and the Concurrent Shares have been duly authorized
and, when issued and delivered by the Company pursuant to the Charter and the
Resolutions, will be validly issued, fully paid and non-assessable.
3. The Unit Shares have been duly authorized and are validly issued,
fully paid and non-assessable.
XXXXXXX LLP
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Arbor Realty Trust, Inc.
April 5, 2004
Page 4
The foregoing opinion is limited to the laws of the State of Maryland and
we do not express any opinion herein concerning any other law. We express no
opinion in connection with the securities (or "blue sky") laws or the real
estate syndication laws of the State of Maryland or as to federal or state laws
regarding fraudulent transfers. We note that the Purchase Agreement provides
that it shall be governed by the laws of the State of New York. To the extent
that any matter as to which our opinion is expressed herein would be governed by
the laws of any jurisdiction other than the State of Maryland, we do not express
any opinion on such matter. The opinion expressed herein is subject to the
effect of judicial decisions which may permit the introduction of parol evidence
to modify the terms or the interpretation of agreements.
We assume no obligation to supplement this opinion if any applicable law
changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as
an exhibit to the Registration Statement. We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement and to the use of the
name of our firm therein. In giving this consent, we do not admit that we are
within the category of persons whose consent is required by Section 7 of the
1933 Act.
Very truly yours,
/S/ Xxxxxxx LLP
