Exhibit 1.1
ARBOR
REALTY TRUST, INC.
2,700,000 Shares of Common Stock
UNDERWRITING AGREEMENT
Dated
June 7, 2007
Wachovia
Capital Markets, LLC
375 Park Avenue
New York, New York 10152
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 (“ EDGAR ”).
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 EDGAR, 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
1933 Act) 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
-13-
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
-14-
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 with
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