exv10w1








Exhibit
10.1




SECOND AMENDED AND RESTATED

MANAGEMENT AND ADVISORY AGREEMENT




          THIS SECOND AMENDED AND RESTATED MANAGEMENT AND ADVISORY AGREEMENT is made as of August 6,
2009 (the “Agreement”) by and among ARBOR REALTY TRUST, INC., a Maryland corporation
(“Parent REIT”), ARBOR REALTY LIMITED PARTNERSHIP, a Delaware limited partnership
(“Operating Partnership”), ARBOR REALTY SR, INC., a Maryland corporation
(“Sub-REIT” and together with the Parent REIT and the Operating Partnership, the
“Company”), and ARBOR COMMERCIAL MORTGAGE, LLC, a New York limited liability company
(together with its permitted assigns, “Manager”).




W I T N E S S E T H :




          WHEREAS, Parent REIT, Manager and the Operating Partnership have entered into the Management
and Advisory Agreement, dated as of July 1, 2003 (the “Original Management Agreement”);




          WHEREAS, Parent REIT, Manager, the Operating Partnership and the Sub-REIT agreed to amend and
restate the Original Management Agreement by entering into the Amended and Restated Management and
Advisory Agreement, dated as of January 18, 2005, as amended on February 17, 2007, and as further
amended on June 18, 2008 (as amended, the “First Amended Management Agreement”).




          WHEREAS, Parent REIT, Manager, Operating Partnership and Sub-REIT desire to amend and restate
the First Amended Management Agreement in its entirety on the terms and conditions hereinafter set
forth.




          NOW THEREFORE, in consideration of the mutual agreements herein set forth, the parties hereto
agree as follows:




     1. Definitions. The following terms have the meanings assigned them:



          (a) “2009 Incentive Fee” has the meaning assigned in Section 8(c)(v)(A).




          (b) “450 West 33rd Street Incentive Fee” means the Company’s payment of
$19,047,949 to the Manager in August 2007 in accordance with the terms of the amendment, dated
February 17, 2007, to the First Amended Management Agreement.




          (c) “450 West 33rd Street Guaranty” means, collectively, (1) the guaranty
by Sub-REIT pursuant to that certain Guaranty, dated as of June 12, 2007, by the parties identified
as Guarantors on Exhibit A thereto to 450 Holding LLC and for the benefit of Wachovia Bank,
National Association, a true and correct copy of which is attached hereto as Annex I, and
(2) [Sub-REIT]’s obligations as a member of 450 Holding LLC pursuant to that certain Guaranty,
dated as of June 12, 2007, by 450 Holding LLC to Wachovia Bank, National Association, a true and
correct copy of which is attached hereto as Annex II.




          (d) “Agreement” has the meaning assigned in the first paragraph.





 









 








          (e) “Agreed-Upon Manager Budget” has the meaning assigned in Section 8(a)(i)(A).




          (f) “Approved Bonus Amount” has the meaning assigned in Section 8(a)(iv)(B).




          (g) “Board of Directors” means the Board of Directors of Parent REIT.




          (h) “Calculation Delivery Date” has the meaning assigned in Section 8(c)(iv).




          (i) “CDO Special Servicing Fees” means any fees and other compensation payable to any
servicer or special servicer of any collateralized debt obligation of any Subsidiary.




          (j) “Code” means the Internal Revenue Code of 1986, as amended.




          (k) “Common Share” means a share of capital stock of Parent REIT now or hereafter
authorized and issued as common voting stock of Parent REIT.




          (l) “Company” has the meaning assigned in the first paragraph.




          (m) “Company Account” has the meaning assigned in Section 5.




          (n) “Company Cause” means any reason for termination of this Agreement set forth in
Section 13(c).




          (o) “Company Target Investments” means multifamily and commercial mortgage loans,
customized financing transactions, including bridge loans, mezzanine loans, preferred equity
investments, note acquisitions and participation interests in owners of real properties, and
commercial mortgage-backed securities.




          (p) “Company Termination Notice” has the meaning assigned in Section 13(b).




          (q) “Compensation Committee” means the Compensation Committee of the Board of
Directors.




          (r) “Cost Reimbursement Installment” has the meaning assigned in Section 8(a)(ii).




          (s) “Covered Manager Employee” has the meaning assigned in Section 8(a)(i)(A).




          (t) “Credit Committee” means the Company’s Credit Committee consisting of the
Company’s Chief Financial Officer and Chief Credit Officer and certain other officers of the
Company and the Manager.




          (u) “Cure Period” has the meaning assigned in Section 13(e).




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          (v) “Discretionary Bonus Recipients” has the meaning assigned in Section 8(a)(iv)(A).




          (w) “Effective Company Termination Date” has the meaning assigned in Section 13(b).




          (x) “Effective Manager Termination Date” has the meaning assigned in Section 13(d).




          (y) “Excess Funds” has the meaning assigned in Section 2(g).




          (z) “Excess Quarterly Costs” has the meaning assigned in Section 8(a)(i)(C).




          (aa) “Exchange Act” means the Securities Exchange Act of 1934, as amended.




          (bb) “Funds from Operations” has the meaning assigned by the National Association of
Real Estate Investment Trusts and means net income (computed in accordance with GAAP) excluding
gains (or losses) from debt restructuring and sales of property, plus depreciation and amortization
on real estate assets, and after adjustments for unconsolidated partnerships and joint ventures;
provided, however, that:





          (i) for the calendar quarter and corresponding fiscal year in which Parent REIT records
a book gain on the 450 West 33rd Street Investment, the amount of such book gain will be
excluded from Funds from Operations in such calendar quarter and corresponding fiscal year,
and




          (ii) if an allowance for a loss or an impairment of an Investment that is a Company
Target Investment is recognized in the Company’s income statement prepared in accordance
with GAAP, any subsequent recovery of such loss or impairment that is recorded in the
Company’s income statement prepared in accordance with GAAP shall be excluded from Funds
from Operations, except as follows: (A) 20% of the amount of such subsequent recovery will
be included in Funds from Operations for the remainder of the fiscal year in which such
subsequent recovery occurs, applied proportionally for each remaining quarter in such fiscal
year, (B) an additional 20% of such amount shall be included in Funds from Operations for
the next succeeding year at the rate of one-fourth per calendar quarter, and (C) an
additional 20% of such amount shall be included in Funds from Operations for the second
succeeding year at the rate of one-fourth per calendar quarter.



          (cc) “GAAP” means generally accepted accounting principles in effect in the U.S. on
the date such principles are applied, consistently applied.




          (dd) “Governing Instruments” means, with respect to any Person, the articles of
incorporation and bylaws in the case of a corporation, the certificate of limited partnership (if
applicable) and partnership agreement in the case of a general or limited partnership or the
articles of formation and operating agreement in the case of a limited liability company.




          (ee) “Guidelines” has the meaning assigned in Section 2(b)(i).





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          (ff) “Incentive Fee” has the meaning assigned in Section 8(c)(i).




          (gg) “Incentive Fee Payment” has the meaning assigned in Section 8(c)(ii).




          (hh) “Includable Gains” means gains from debt restructurings and sales of properties,
subject to the limitation on the inclusion of certain gains in Funds From Operations set forth in
Section 1(bb)(ii) with respect to any subsequent recovery of prior recognized losses and
impairments of any such applicable debt restructurings and sales of properties.




          (ii) “Independent Directors” means the members of the Board of Directors who are not
officers or employees of Manager or the Company and who are otherwise “independent” in accordance
with Parent REIT’s Governing Instruments.




          (jj) “Investment Company Act” means the Investment Company Act of 1940, as amended.




          (kk) “Investments” means the investments of the Company.




          (ll) “Management Fee” means the Cost Reimbursement plus the Incentive Fee.




          (mm) “Manager” has the meaning assigned in the first paragraph.




          (nn) “Manager Cause” means any reason for termination of this Agreement set forth in
Section 13(e).




          (oo) “Manager Change of Control” means a change in the direct or indirect (i)
beneficial ownership of more than fifty percent (50%) of the combined voting power (of any Person
together with any affiliates of such Person or Persons otherwise associated or acting in concert
with such Person) of Manager’s then outstanding equity interests, or (ii) power to direct or
control the management policies of Manager, whether through the ownership of beneficial equity
interests, common directors or officers, by contract or otherwise. Manager Change of Control shall
not include (A) transfer by the Principal of equity interests in the Manager or Arbor Management,
LLC, the managing member of the Manager pursuant to the Operating Agreement of the Manager, to any
immediate family member of the Principal as of the date of this Agreement, or to any estate or
trust of which any immediate family member of the Principal as of the date of this Agreement is the
beneficiary, (B) public offerings of the capital stock of Manager, or (C) any assignment of this
Agreement by Manager as permitted hereby and in accordance with the terms hereof.




          (pp) “Manager Indemnified Party” has the meaning assigned in Section 11(b).




          (qq) “Manager Multifamily Bridge Loans” means any bridge loan with respect to a
multifamily property made by the Manager to a borrower seeking to obtain a longer term mortgage or
other loan from the Manager pursuant to the Manager’s Fannie Mae loan program.




          (rr) “Manager Parties” has the meaning assigned in Section 3(b).




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          (ss) “Manager Target Investments” has the meaning assigned in Section 3(c).




          (tt) “Manager Termination Notice” has the meaning assigned in Section 13(d).




          (uu) “Non-Competition Agreement” means that certain Non-Competition Agreement, dated
as of July 1, 2003, among Parent REIT, Operating Partnership and Principal.




          (vv) “OP Unit” means a unit of partnership interest in the Operating Partnership now
or hereafter authorized and issued as a unit of partnership interest in the Operating Partnership.




          (ww) “Operating Partnership” has the meaning assigned in the first paragraph.




          (xx) “Parent REIT” has the meaning assigned in the first paragraph.




          (yy) “Person” means any individual, corporation, partnership, joint venture, limited
liability company, estate, trust, unincorporated association, any federal, state, county or
municipal government or any bureau, department or agency thereof and any fiduciary acting in such
capacity on behalf of any of the foregoing.




          (zz) “Prime Outlets Excess” has the meaning assigned in Section 8(c)(v)(A)(3).




          (aaa) “Prime Outlets Incentive Fee” means the Company’s payment of $7,292,448 to the
Manager in August 2008 in accordance with the terms of the amendment, dated June 18, 2008, to the
First Amended Management Agreement.




          (bbb) “Principal” means Ivan Kaufman, an individual.




          (ccc) “Proposed Manager Budget” has the meaning assigned in Section 8(a)(i)(A).




          (ddd) “Reimbursable Expenses” has the meaning assigned in Section 9.




          (eee) “REIT” means a corporation or trust which qualifies as a real estate investment
trust in accordance with Sections 856 through 860 of the Code.




          (fff) “Services Agreement” means that certain Services Agreement, dated as of July 1,
2003, among Parent REIT, the Operating Partnership and Manager.




          (ggg) “Subsidiary” means any entity of which Parent REIT directly or indirectly owns
the majority of the outstanding voting equity interests, any partnership, the general partner of
which is Parent REIT or any subsidiary of Parent REIT and any limited liability company, the
managing member of which is Parent REIT or any subsidiary of Parent REIT.




          (hhh) “Supervisory Certification” has the meaning assigned in Section 8(a)(i)(C).




          (iii) “Ten Year U.S. Treasury Rate” means the arithmetic average of the weekly average
yield to maturity for actively traded current coupon U.S. Treasury fixed interest





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rate securities (adjusted to constant maturities of ten (10) years) published by the Federal Reserve Board during a
fiscal year, or, if such rate is not published by the Federal Reserve Board, any Federal Reserve
Bank or agency or department of the federal government selected by the Company. If the Company
determines in good faith that the Ten Year U.S. Treasury Rate cannot be calculated as provided
above, then the rate will be the arithmetic average of the per annum average yields to maturities,
based upon closing asked prices on each business day during a quarter, for each actively traded
marketable U.S. Treasury fixed interest rate security with a final maturity date not less than
eight (8) and not more than twelve (12) years from the date of the closing asked prices as chosen
and quoted for each business day in each such quarter in New York City by at least three (3)
recognized dealers in U.S. government securities selected by the Company.




          (jjj) “Termination Fee” means an amount equal to ten million U.S. dollars
($10,000,000.00).




          (kkk) “U.S.” means United States of America.




     2. Appointment and Duties of Manager.



          (a) Appointment. The Company hereby appoints Manager to manage the Investments of the
Company subject to the further terms and conditions set forth in this Agreement, and Manager hereby
agrees to use its commercially reasonable efforts to perform each of the duties set forth herein.
The appointment of Manager shall be exclusive to Manager except to the extent that Manager
otherwise agrees, in its sole and absolute discretion, and except to the extent that Manager elects
pursuant to the terms of this Agreement to cause the duties of Manager hereunder to be provided by
third parties.




          (b) Duties. Manager, in its capacity as manager of the Investments and the day-to-day
operations of the Company, at all times will be subject to the supervision of the Board of
Directors and the board of directors of the Sub-REIT and will have only such functions and
authority as the Company may delegate to it, including, without limitation, the functions and
authority identified herein and delegated to Manager hereby. Manager will be responsible for the
day-to-day operations of the Company and will perform (or cause to be performed) such services and
activities relating to the Investments and operations of the Company as may be appropriate,
including, without limitation:





          (i) serving as the Company’s consultant with respect to the periodic review of the
investment criteria and parameters for Investments, borrowings and operations, any
modifications to which shall be approved by a majority of the Independent Directors (such
policy guidelines as are in effect on the date hereof, as the same may be modified with such
approval, the “Guidelines”), and other policies for approval by the Board of
Directors;




          (ii) investigation, analysis and selection of investment opportunities;




          (iii) with respect to prospective investments by the Company and dispositions of
Investments, conducting negotiations with real estate brokers, sellers and



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purchasers, and
their respective agents and representatives, investment bankers, mortgage bankers and owners
of privately and publicly held real estate companies;




          (iv) coordinating and managing operations of any joint venture or co-investment
interests held by the Company and conducting all matters with the joint venture or
co-investment partners;




          (v) providing executive and administrative personnel, office space and office services
required in rendering services to the Company;




          (vi) administering the day to day operations of the Company and performing and
supervising the performance of such other administrative functions necessary in the
management of the Company as may be agreed upon by Manager and the Board of Directors,
including, without limitation, collection of interest, fee and other income, payment of the
Company’s debts and obligations, payment of dividends or distributions to the holders of the
Common Shares and maintenance of appropriate back-office infrastructure to perform such
administrative functions;




          (vii) communicating on behalf of the Company with the holders of any equity or debt
securities of the Parent REIT, Sub-REIT or their respective Subsidiaries as required to
satisfy the reporting and other requirements of any governmental entities or agencies or
trading markets and to maintain effective relations with such holders;




          (viii) counseling the Company in connection with policy decisions to be made by the
Board of Directors or the board of directors or similar governing bodies of the
Subsidiaries;




          (ix) evaluating and recommending to the Board of Directors hedging strategies and, as
the Board of Directors shall request or Manager shall deem appropriate, engaging in hedging
activities on behalf of the Company, in a manner consistent with such strategies, as so
modified from time to time, Parent REIT’s status as a REIT, Sub-REIT’s status as a REIT and
the Guidelines;




          (x) counseling Parent REIT and Sub-REIT regarding the maintenance of their status as
REITs and monitoring compliance with the various REIT qualification tests and other rules
set out in the Code and the Treasury Regulations promulgated thereunder;




          (xi) counseling the Company regarding the maintenance of its exemption from the
Investment Company Act and monitoring compliance with the requirements for maintaining such
exemption;




          (xii) assisting the Company in developing criteria for debt and equity financing that
is specifically tailored to the Company’s investment objectives, making available to the
Company its knowledge and experience with respect to Company Target
Investments and other real estate and real estate-related transactions and serving as
the originating lender of such investments comprising Company Target Investments;



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          (xiii) representing and making recommendations to the Company in connection with its
investment in a diversified portfolio of Company Target Investments and other real estate
transactions with select borrowers and principals;




          (xiv) investing and re-investing any moneys and securities of the Company (including
investing in short-term investments pending investment in Investments, payment of fees,
costs and expenses or payments of dividends or distributions to stockholders and partners of
the Company) and advising the Company with respect to its capital structure and capital
raising;




          (xv) causing the Company to retain qualified accountants and legal counsel, as
applicable, to assist in developing appropriate accounting and compliance procedures and
testing systems with respect to financial reporting obligations, as applicable, and Parent
REIT and Sub-REIT’s compliance with the provisions of the Code applicable to REITs and the
Treasury Regulations promulgated thereunder and to conduct quarterly compliance reviews with
respect thereto;




          (xvi) causing the Company to qualify to do business in all applicable jurisdictions and
to obtain and maintain all appropriate licenses;




          (xvii) assisting the Company in complying with all regulatory requirements applicable
to the Company in respect of its business activities, including preparing or causing to be
prepared all financial statements required under applicable regulations and contractual
undertakings and all reports and documents required under the Exchange Act;




          (xviii) taking all necessary actions to enable the Company to make required tax filings
and reports, including, with respect to Parent REIT and Sub-REIT, soliciting stockholders
for required information to the extent provided by the provisions of the Code applicable to
REITs and the Treasury Regulations promulgated thereunder;




          (xix) handling and resolving all claims, disputes or controversies (including all
litigation, arbitration, settlement or other proceedings or negotiations) in which the
Company may be involved or to which the Company may be subject arising out of the Company’s
day-to-day operations, subject to such limitations or parameters as may be imposed from time
to time by the Board of Directors;




          (xx) using commercially reasonable efforts to cause expenses incurred by or on behalf
of the Company to be reasonable, customary and within any budgeted parameters or expense
guidelines set by the Board of Directors from time to time;




          (xxi) using commercially reasonable efforts to cause the Company to comply with all
applicable laws; and




          (xxii) performing such other services as may be required from time to time for
management and other activities relating to the Investments of the Company as the Board of
Directors shall reasonably request or Manager shall deem appropriate under particular
circumstances.



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          (c) Subcontracts. Manager may enter into agreements with other parties, including its
affiliates, for the purpose of engaging one or more property and/or asset managers for and on
behalf, and at the sole cost and expense, of the Company to provide property management, asset
management, leasing, development and/or similar services to the Company with respect to the
Investments, pursuant to property management agreement(s) and/or asset management agreement(s) with
terms which are then customary for agreements regarding the management of assets similar in type,
quality and value to the assets of the Company; provided, that any such agreements entered into
with affiliates of Manager shall be (i) on terms no more favorable to such affiliate then would be
obtained from a third party on an arm’s-length basis, and (ii) to the extent the same do not fall
within the provisions of the Guidelines, approved by a majority of the Independent Directors.




          (d) Service Providers. Manager may retain for and on behalf of the Company such
services of accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars,
developers, investment banks, financial advisors, banks, other lenders and other Persons, including
Manager’s affiliates, as Manager deems necessary or advisable in connection with the management and
operations of the Company; provided, that any agreements entered into with affiliates of Manager to
perform any such services shall be (i) on terms no more favorable to such affiliate then would be
obtained from a third party on an arm’s-length basis, and (ii) to the extent the same do not fall
within the provisions of the Guidelines, approved by a majority of the Independent Directors. The
Company shall pay all expenses, and reimburse Manager for Manager’s expenses incurred on its
behalf, in connection with any such services to the extent such expenses are reimbursable by the
Company to Manager pursuant to Section 9.




          (e) Reporting Requirements.





          (i) As frequently as Manager may deem necessary or advisable, or at the direction of
the Board of Directors, Manager shall prepare, or cause to be prepared, with respect to any
Investment (i) at the Company’s sole cost and expense, an appraisal prepared by an
independent real estate appraiser, (ii) reports and information on the Company’s operations
and Investment performance, and (iii) such other information reasonably requested by the
Company. The Company shall pay all expenses, and reimburse Manager for Manager’s expenses
incurred on its behalf, in connection with the foregoing clauses (ii) and (iii) to the
extent such expenses are reimbursable by the Company to Manager pursuant to Section 9.



          (f) Manager shall prepare, or cause to be prepared, at the sole cost and expense of the
Company, all reports, financial or otherwise, with respect to Parent REIT, the Operating
Partnership, Sub-REIT and the other Subsidiaries reasonably required by the Board of Directors in
order for Parent REIT, the Operating Partnership, Sub-REIT and the other Subsidiaries to comply
with their Governing Instruments or any other materials required to be filed with any governmental
entity or agency, and shall prepare, or cause to be prepared, all
materials and data necessary to complete such reports and other materials including, without
limitation, an annual audit of the Company’s books of account by a nationally recognized
independent accounting firm of good reputation.




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          (i) Manager shall prepare regular reports for the Board of Directors to enable the
Board of Directors to review the Company’s acquisitions, portfolio composition and
characteristics, credit quality, performance and compliance with the Guidelines and policies
approved by the Board of Directors.



          (g) Excess Funds. Notwithstanding anything contained in this Agreement to the
contrary, except to the extent that the payment of additional moneys is proven by the Company to
have been required as a direct result of Manager’s acts or omissions which result in the right of
the Company to terminate this Agreement pursuant to Section 13(c) and except as expressly provided
in Section 11(c), Manager shall not be required to expend money (“Excess Funds”) in excess
of that contained in any applicable Company Account or otherwise made available by the Company to
be expended by Manager hereunder.




          (h) Reliance by Manager. In performing its duties under this Section 2, Manager shall
be entitled to rely reasonably on qualified experts and professionals (including, without
limitation, accountants, legal counsel and other professional service providers) hired by Manager.




     3. Dedication; Right of First Refusal; Exclusivity..



          (a) Devotion of Time. Manager will provide the Company with a management team,
including the Chief Executive Officer and the Chief Financial Officer of the Manager, to provide
the management services to be provided by Manager to the Company hereunder, the members of which
team shall devote such of their time to the management of the Company as the Independent Directors
determine is necessary and appropriate, commensurate with the level of activity of the Company from
time to time. The portion of the compensation of such officers payable by the Company pursuant to
the Agreed-Upon Budget, as such Agreed Upon-Budget may be adjusted pursuant to the quarterly review
contemplated in Section 8(a)(i)(C), shall reflect such determination. The Company shall have the
benefit of Manager’s best judgment and effort in rendering services and, in furtherance of the
foregoing, Manager shall not undertake activities which, in its reasonable judgment, will
substantially adversely affect the performance of its obligations under this Agreement.




          (b) Additional Activities; Right of First Refusal. Except to the extent set forth in
Section 3(a) and subject to the provisions of this Section 3(b), Manager and any of its affiliates,
and any of the officers and employees of any of the foregoing (the “Manager Parties”), may
engage in other businesses and render services of any kind to any other Person, including
investment in, or advisory service to others investing in, Company Target Investments and other
real estate and real estate-related transactions; provided, however, prior to any Manager Party
engaging in transactions involving or rendering services relating to Company Target Investments
other than on behalf of or to the Company, if (i) such transaction is consistent with the
Company’s investment objectives and within the Guidelines, and (ii) the parameters of the
transaction are of a character which would not adversely affect the status of Parent REIT or
Sub-REIT as REITs, Manager shall offer such investment opportunity to the Company by delivering to
the Credit Committee a written description thereof containing the economic and other material terms
of the transaction. The Credit Committee shall have five (5) days to accept or reject the offer by
a majority vote of the members of the Credit Committee. If the Credit Committee




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rejects the offer
or does not respond to the offer within such five-day period, Manager shall present the investment
opportunity to the Independent Directors who shall have five (5) days to accept or reject the offer
by majority vote. If the Independent Directors reject the offer and allow Manager to pursue the
investment opportunity or do not respond to the offer within such five-day period, any Manager
Party may pursue the same provided the economic and other material terms thereof are not materially
more beneficial to the applicable Manager Party than the economic and other material terms to the
Company would have been under the transaction described in the original offer. If the economic and
other material terms of the transaction to be engaged in by the applicable Manager Party are
modified so that the benefits thereof to the applicable Manager Party are materially more
beneficial to the applicable Manager Party than such terms to the Company would have been under the
transaction described in the original offer, then Manager must offer the revised transaction
opportunity to the Company and the provisions of this Section 3(b) shall apply to the revised offer
as though it were an original offer. If the Company accepts, either by majority vote of the Credit
Committee or the Independent Directors, an investment opportunity offered by Manager hereunder, the
Company must reimburse Manager for its expenses relating thereto to the extent the same would be
reimbursable by the Company to Manager pursuant to Section 9. Notwithstanding the foregoing,
Manager may pursue investments in Manager Multifamily Bridge Loans, subject to the following: (i)
the Manager obtains the prior approval of the Independent Directors to make Manager Multifamily
Bridge Loans, and (ii) within 20 business days following each calendar quarter in which the Manger
has made investments in any Manager Multifamily Bridge Loans, Manager provides the Independent
Directors with a written report describing the type and amount of such Manager Multifamily Bridge
Loans.




          (c) Manager Exclusivity Rights. Manager and any other Manager Party may, and the
Company agrees not to, pursue any investment opportunities consisting of multifamily and commercial
mortgage loans that meet the underwriting and approval guidelines of (i) Fannie Mae, (ii) the
Federal Housing Administration, and (iii) conduit commercial lending programs secured by first
liens on real property (collectively, “Manager Target Investments”).




          (d) Officers, Employees, Etc. Manager, members, partners, officers, employees and
agents of Manager or affiliates of Manager may serve as directors, officers, employees, agents,
nominees or signatories for Parent REIT, the Operating Partnership, Sub-REIT or any other
Subsidiary, to the extent permitted by their Governing Instruments, as may be amended from time to
time, or by any resolutions duly adopted by the Board of Directors pursuant to Parent REIT’s
Governing Instruments. When executing documents or otherwise acting in such capacities for Parent
REIT, the Operating Partnership, Sub-REIT or such other Subsidiary, such Persons shall use their
respective titles with respect to Parent REIT, the Operating Partnership, Sub-REIT or such other
Subsidiary.




     4. Agency. Manager shall act as agent of the Company in making, acquiring, financing and disposing of
Investments, disbursing and collecting the Company’s funds, paying the debts and fulfilling the
obligations of the Company, supervising the performance of professionals engaged by or on behalf of
the Company and handling, prosecuting and settling any claims of or against the Company, the Board
of Directors, holders of Parent REIT, the Operating Partnership, Sub-REIT or any other Subsidiary’s
securities or the Company’s representatives or properties.



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     5. Bank Accounts. At the direction of the Board of Directors, Manager may establish and
maintain one or more bank accounts in the name of Parent REIT, the Operating Partnership, Sub-REIT
or any other Subsidiary (any such account, a “Company Account”), collect and deposit funds
into any such Company Account or Company Accounts and disburse funds from any such Company Account
or Company Accounts, under such terms and conditions as the Board of Directors may approve.
Manager shall from time-to-time render appropriate accountings of such collections and payments to
the Board of Directors and, upon request, to the auditors of Parent REIT.



     6. Records; Confidentiality.



          (a) Records. Manager shall maintain appropriate books of account and records relating
to services performed under this Agreement, and such books of account and records shall be
accessible for inspection by representatives of Parent REIT, the Operating Partnership, Sub-REIT or
any other Subsidiary at any time during normal business hours upon one (1) business day’s advance
written notice.




          (b) Confidentiality. Manager shall keep confidential any nonpublic information
obtained in connection with the services rendered under this Agreement and shall not disclose any
such information (or use the same except in furtherance of its duties under this Agreement),
except: (i) with the prior written consent of the Board of Directors; (ii) to legal counsel,
accountants and other professional advisors, so long as Manager informs such Persons of the
confidential nature of such information and directs them to treat such information confidentially;
(iii) to appraisers in the ordinary course of business; (iv) to governmental officials having
jurisdiction over Manager; (v) as required by law or legal process to which Manager or any Person
to whom disclosure is permitted hereunder is a party or in connection with Manager’s assertion in
any judicial or nonjudicial proceeding of any claim, counterclaim or defense against the Company;
or (vi) information which has previously become available through the actions of a Person other
than Manager not resulting from Manager’s violation of this Section 6(b).




     7. Obligations of Manager; Restrictions.



          (a) Asset Representations and Warranties. Manager shall require each seller or
transferor of investment assets to the Company to make such representations and warranties
regarding such assets as may, in the judgment of Manager, be necessary and appropriate. In
addition, Manager shall take such other action as it deems necessary or appropriate with
regard to the protection of the Investments.




          (b) Restrictions. Manager shall refrain from any action that, in its sole judgment
made in good faith, (i) is not in compliance with the Guidelines, (ii) would adversely affect the
status of Parent REIT or Sub-REIT as REITs, or (iii) would violate any law, rule or regulation of
any governmental body or agency having jurisdiction over Parent REIT, the Operating Partnership,
Sub-REIT or any other Subsidiary or that would otherwise not be permitted by such Person’s
Governing Instruments. If Manager is ordered to take any such action by the Board of Directors,
Manager shall promptly notify the Board of Directors of Manager’s judgment that such action would
adversely affect such status or violate any such law, rule or regulation or Governing Instruments.
Notwithstanding the foregoing, Manager, its




12









 







directors, officers, stockholders and employees shall
not be liable to Parent REIT, the Operating Partnership, Sub-REIT or any other Subsidiary, the
Board of Directors, Parent REIT or Sub-REIT’s stockholders or the Operating Partnership’s partners
for any act or omission by Manager, its directors, officers, stockholders or employees except as
provided in Section 11.




          (c) Interested Party Transaction. Manager shall not (i) consummate any transaction
which would involve the acquisition by the Company of property in which Manager or any of its
affiliates has an ownership interest or the sale by the Company of property to Manager or any of
its affiliates, or (ii) under circumstances where Manager is subject to an actual or potential
conflict of interest because it manages both the Company and another Person (not an affiliate of
the Company) with which the Company has a contractual relationship, take any action constituting
the granting to such other Person of a waiver, forebearance or other relief, or the enforcement
against such other Person of remedies, under or with respect to the applicable contract, unless
such transaction or action, as the case may be and in each case, is approved by a majority of the
Independent Directors.




          (d) Joint Ventures. The Company shall not invest in joint ventures with Manager or
any of its affiliates, unless such Investment is (i) made in accordance with the Guidelines, and
(ii) approved in advance by a majority of the Independent Directors.




          (e) Board of Director Review. The Board of Directors periodically reviews the
Guidelines and the Company’s portfolio of Investments. If a majority of the Independent Directors
determine in their periodic review of transactions that a particular transaction does not comply
with the Guidelines, then a majority of the Independent Directors will consider what corrective
action, if any, can be taken.




          (f) Insurance. Manager shall at all times during the term of this Agreement
(including the initial term and any renewal term) maintain a tangible net worth equal to or greater
than $3,000,000. In addition, Manager shall maintain “errors and omissions” insurance coverage and
such other insurance coverage which is customarily carried by property, asset and investment
managers performing functions similar to those of Manager under this Agreement with respect to
assets similar to the Investments of the Company, in an amount which is comparable to that
customarily maintained by other managers or servicers of similar assets.




     8. Compensation.



          (a) Cost Reimbursement.




          (i) General. Subject to the provisions of this Section 8(a), the Company shall
reimburse the Manager for the costs incurred by the Manager in performing the duties set
forth in Section 2 (other than any Expenses incurred on behalf of the Company which shall be
reimbursed pursuant to Section 9) pursuant to the following procedures and guidelines.




          (A) On or prior to December 1st of each fiscal year (beginning on December 1,
2009), Manager shall submit to the Independent Directors a proposed annual budget of
Manager to perform the duties set forth in Section 2 in the immediately following
fiscal year (the “Proposed Manager Budget”). The



13









 







Proposed Manager Budget
should include a reasonably detailed description of each type and amount of cost
expected to be incurred by Manager in performing such duties. Such costs may
include pro rata allocations of Manager’s costs for (1) the property and services of
Manager expected to be utilized by the Company and (2) the base salaries and “annual
bonus potential,” if any, of each employee of the Manager expected to perform
services on behalf of both the Company and Manager (a “Covered Manager
Employee”). As soon as practicable after the Proposed Manager Budget is
provided to the Independent Directors, the Independent Directors shall review the
amount and type of costs included in the Proposed Manager Budget.




          (B) On or prior to December 31st of each fiscal year (beginning on December 31,
2009), Manager and the Company each agree to use commercially reasonable efforts to
agree upon the amount and type of each cost expected to be incurred by Manager in
performing the duties set forth in Section 2 in the immediately following year that
will be reimbursed by the Company (the “Agreed-Upon Manager Budget”).




          (C) Within forty-five (45) days after the last day of each calendar quarter
beginning with the quarter ending March 31, 2010, Manager shall submit a report to
the Independent Directors setting forth (1) Manager’s actual costs to perform the
duties set forth in Section 2 in such quarter, and (2) the amounts set forth in the
Agreed-Upon Manager Budget allocable to such quarter. In addition, the Manager
shall cause each supervisor of a Covered Manager Employee to certify to the Company
whether or not there have been any material changes in the amount of time dedicated
to the Company’s business in such quarter (a “Supervisor Certification”).




          (1) If the total cost incurred by Manager to perform the duties set
forth in Section 2 in any given quarter exceeds 110% of the amount set forth
in the Agreed-Upon Manager Budget allocable to such quarter, excluding any
annual bonus potential amounts for any Covered Manager Employee (the
“Excess Quarterly Costs”), Manager may request
that the Independent Directors reimburse the Manager for such Excess
Quarterly Costs if Manager submits a written request to the Independent
Directors describing the type and amount of such excess costs and Manager’s
business reasons for such excess costs. The Company may reimburse Manager
for such Excess Quarterly Costs if (i) such Excess Quarterly Costs represent
types of costs contemplated in the Agreed-Upon Manager Budget, and (ii) the
Independent Directors determine, in their reasonable discretion, that
Manager’s business reason for the incurrence of the Excess Quarterly Costs
is reasonable in the context of the performance of Manager’s duties set
forth in Section 2.




          (2) If the total cost incurred by Manager to perform the duties set
forth in Section 2 in any given quarter does not exceed 90% of the amount
set forth in the Agreed-Upon Manager Budget allocable to



14









 







such quarter,
excluding any annual bonus potential amounts for any Covered Manager
Employee, Manager shall refund to the Company the difference between the
actual amount incurred by Manager to perform the duties set forth in Section
2 in such quarter and the amount set forth in the Agreed-Upon Manager Budget
allocable to such quarter, subject to an annual reconciliation of the actual
costs incurred by the Manager to perform the duties set forth in Section 2
for each year.




          (3) If the total cost incurred by Manager to perform the duties set
forth in Section 2 in any given quarter is equal to an amount between 90%
and 110% of the amount set forth in the Agreed-Upon Manager Budget allocable
to such quarter, excluding any annual bonus potential amounts for any
Covered Manager Employee, the Company shall continue to pay Manager 100% of
the amount set forth in the Agreed-Upon Manager Budget allocable to such
quarter, subject to an annual reconciliation of the actual costs incurred by
the Manager to perform the duties set forth in Section 2 for each year.




          (4) At the end of each fiscal year, the sum of the quarterly payments
made to Manager pursuant to this Section 8(a)(i)(C) will be reconciled with
the actual costs incurred by Manager for such fiscal year, excluding any
annual bonus potential amounts for any Covered Manager Employees. If the
sum of such quarterly payments is less than the lesser of (A) 100% of the
Agreed-Upon Manager Budget for such fiscal year or the actual costs incurred
by Manager, excluding any annual bonus potential amounts for any Covered
Manager Employees, the Company shall pay such amount to Manager within three
(3) business days of such reconciliation. If, as result of this
reconciliation, the sum of such quarterly payments exceeds the lesser of
100% of the Agreed-Upon Manager Budget for such fiscal year or the actual
costs incurred by Manager, excluding any annual bonus potential amounts for
any Covered Manager Employees, Manager shall pay such amount to the Company
within three (3) business days of such reconciliation.




          (5) At the end of each fiscal year, the Company and Manager shall
reconcile the Agreed-Upon Manager Budget with the actual costs incurred by
the Manager, excluding any annual bonus potential amounts for any Covered
Manager Employees. If, as a result of such annual reconciliation, it is
determined that Manager’s costs for such fiscal year exceed the Agreed-Upon
Budget for such fiscal year, Manager may request that the Company reimburse
Manager for such excess costs if Manager submits a written request to the
Independent Directors describing the type and amount of such excess costs
and Manager’s business reasons for such excess costs. The Company may
reimburse Manager for such excess costs if (i) such excess costs represent
types of costs contemplated in the Agreed-Upon Manager Budget, and (ii) the
Independent Directors determine, in their reasonable discretion, that
Manager’s business reason



15









 







for the incurrence of such excess costs is
reasonable in the context of the performance of Manager’s duties set forth
in Section 2.




          (ii) Cost Reimbursement Installments. Subject to clauses (i)(C) and (iii) of
this Section 8(a), the Company shall pay the Manager one-twelfth (1/12) of the Agreed-Upon
Manager Budget (other than any amounts identified as the “annual bonus potential” of any
Covered Manager Employee) in cash on a monthly basis in arrears (each, a “Cost
Reimbursement Installment”) within twenty (20) days of the last day of the calendar
month with respect to which such Cost Reimbursement Installment is payable.




          (A) If the Company agrees to reimburse Manager for any Excess Quarterly Costs
pursuant to Section 8(a)(i)(C), the Company shall pay Manager the agreed-upon amount
for any prior periods within three (3) business days of such determination and the
Company shall include the agreed-upon amount for any subsequent periods in the
monthly Cost Reimbursement Installments payable to Manager immediately following
such determination.




          (B) The Cost Reimbursement Installment payable to Manager for any given
calendar month shall be reduced by the dollar amount representing the aggregate of
the amounts set forth in clauses (A), (B), (C) and (D) of Section 8(a)(iii)
applicable to such month. If the aggregate of such amounts applicable to any month
exceeds the amount of the Cost Reimbursement Installment otherwise payable for such
month, the Company shall not pay Manager any Cost Reimbursement Installment for such
month and shall retain the excess and apply it to reduce the Cost Reimbursement
Installment otherwise payable to Manager for the next calendar month or months until
fully applied. Upon the expiration or earlier termination of this Agreement, if any
such excess amounts remain to be applied against a succeeding monthly Cost
Reimbursement Installment, Manager shall pay to the Company the amount of such
excess unapplied amounts.




          (iii) Cost Reimbursement Credits.




          (A) CDO Special Servicing Fees. Any CDO Special Servicing Fees payable
to, or received by, Manager with respect to any period beginning on
or after January 1, 2009 shall be retained by the Manager and the Cost
Reimbursement Installment due to Manager for the month in which such fees were paid
to Manager shall be reduced by an amount equal to one hundred percent (100%) of the
amount of any such fees.




          (B) Asset Management Services. The cost of services provided by the
Company’s Asset Management Group to Manager for which Manager is required to
reimburse the Company pursuant to Section 1(c) of the Services Agreement shall be
retained by the Manager and the Cost Reimbursement Installment due to Manager for
the month in which such costs were incurred by the Company shall be reduced by an
amount equal to one hundred percent (100%) of the amount of any such costs.



16









 






          (C) Origination Fees. Any origination fees paid by borrowers with
respect to any Investments, after deducting (i) any fees or commissions paid by the
Company to any brokers who are not affiliates of the Company, and (ii) any other
costs of third parties who are not affiliates of the Company that are related to the
origination of such Investments, shall be retained by the Manager and the Cost
Reimbursement Installment due to Manager for the month in which such origination fee
is paid by the borrower shall be reduced by an amount equal to one hundred percent
(100%) of the amount of any such origination fee.




          (D) Exit Fee Waivers. To the extent that the Company agrees to waive
the requirement of any borrower under an Investment to pay an exit fee as a result
of such borrower’s refinancing of such Investment with permanent financing by
Manager as contemplated in Section 8(b), the Cost Reimbursement Installment due to
Manager for the month in which such waiver is made shall be reduced by an amount
equal to fifty percent (50%) of the amount of any such exit fee.




          (iv) Covered Manager Employee Bonuses. The Company shall reimburse Manager for
a portion of the annual bonus amounts proposed to be paid to each Covered Manager Employee
by the Manager, subject the following procedures and guidelines:




          (A) Prior to the Compensation Committee’s consideration of the annual bonus
amounts to be paid to (1) the Covered Manager Employees who are expected to be the
seven (7) most highly compensated Covered Manager Employees for such year, (2) any
Covered Manager Employee whose proposed annual bonus amount exceeds 50% of his or
her base salary for such year, and (3) any Covered Manager Employee whose proposed
annual bonus amount is in excess of $200,000 (collectively, the “Discretionary
Bonus Recipients”), Manager shall provide the Compensation Committee with (i)
the total bonus amounts proposed to be paid by Manager to each Discretionary Bonus
Recipient, and (ii) the portion of such total bonus amounts proposed to be paid by
the Company to Manager, accompanied by a Supervisor Certification for each Covered
Manager Employee with respect to the applicable year or bonus period.




          (B) The Compensation Committee and the Independent Directors shall have the
sole discretion to approve the amount of annual bonus of each Discretionary Bonus
Recipient to be paid by the Company to Manager (the “Approved Bonus
Amount”). If the proposed bonus amount for the Discretionary Bonus Recipient is
less than or equal to such person’s annual bonus potential as set forth in the
Agreed-Upon Manager Budget for such year, and the Compensation Committee does not
approve such proposed bonus amount, the Company shall give Manager a commercially
reasonable reason for its decision.




          (C) Within fifteen (15) days after the approval contemplated in clause (B)
above, the Company shall pay Manager (1) the Approved Bonus Amount for each
Discretionary Bonus Recipient, and (2) the Company’s allocable



17









 







portion of the total
bonus amount to be paid by the Manager to each other Covered Manager Employee,
subject to such amounts not exceeding the Covered Manager Employees’ aggregate
annual bonus potential set forth in the Agreed-Upon Manager Budget for the
applicable year.




          (v) 2009 Cost Reimbursement. The Agreed-Upon Manager Budget for fiscal year
2009 is attached hereto as Annex III. In consideration of Manager’s performance of
the duties set forth in Section 2 in the first six (6) months of fiscal year 2009, the
Company shall pay Manager the difference between the aggregate of the monthly Cost
Reimbursement Installments that would have been paid to Manager for such months based on
such Agreed-Upon Budget, less (A) any amounts set forth in Section 8(a)(ii)(B) applicable to
such months, and (B) all Management Fees (as defined in the First Amended Management
Agreement) paid by the Company to Manager for such months, equal to $1,201,461 in the
aggregate. With respect to the subsequent six months of 2009, the Company shall pay Manager
pursuant to the Agreed-Upon Manager Budget for 2009 in accordance, and subject to, all terms
and provisions of this Agreement.



          (b) Characterization and Waiver of Exit Fees. With respect to any Investments
providing for the payment of any exit fees by the borrowers thereunder, (i) Manager shall use
commercially reasonable efforts to structure the applicable loan and other documents in such a
manner that it is reasonably likely that any such exit fees may be characterized as interest or
deferred interest for U.S. federal income tax purposes, and (ii) the Company agrees to waive any
such exit fees if such borrowers refinance their Investments with permanent financing provided by
Manager.




          (c) Incentive Fee.





          (i) In addition to the Cost Reimbursement, the Company shall pay Manager an annual
incentive fee (the “Incentive Fee”) on a cumulative, but not compounding, basis,
equal to the product of (A) twenty-five percent (25%) of the dollar amount by which (1)(a)
the Operating Partnership’s Funds from Operations (before giving effect to payment of the
Incentive Fee) per OP Unit (based on the weighted average number of OP Units outstanding,
including OP Units issued to Parent REIT corresponding to outstanding Common Shares), plus
(b) Includable Gains or losses from
debt restructuring and sales of property per OP Unit (based on the weighted average
number of OP Units outstanding, including OP Units issued to Parent REIT corresponding to
outstanding Common Shares), exceed (2) the product of (a) the greater of (x) $10.00 and (y)
the weighted average (based on Common Shares and OP Units) of (i) the book value per OP Unit
of the net assets contributed by Manager to the Operating Partnership on July 1, 2003, (ii)
$15, (iii) the offering price per Common Share (including Common Shares issued upon the
exercise of warrants or options) at any secondary Common Share offerings by Parent REIT
(adjusted for any prior capital dividends or distributions), and (iv) the issue price per OP
Unit for subsequent contributions to the Operating Partnership, and (b) the greater of (i)
nine and one-half percent (9.5%) per annum, and (ii) the Ten Year U.S. Treasury Rate plus
three and one-half percent (3.5%) per annum, and (B) the weighted average number of OP Units



18









 







outstanding, including OP Units issued to Parent REIT corresponding to outstanding Common
Shares.




          (ii) The Incentive Fee shall be payable annually in arrears; provided, however, Manager
shall receive quarterly installments thereof in advance, and Manager shall calculate each
such installment based on the period of twelve (12) months ending on the last day of the
fiscal quarter with respect to which such installment is payable (provided, for calendar
year 2003, such calculations shall be based on the period of three (3) or six (6) months, as
applicable, ending on the last day of the fiscal quarter with respect to which such
installment is payable), and deliver such calculation to the Board of Directors, within
forty-five (45) days following the last day of each fiscal quarter. The Company shall pay
Manager each installment of the Incentive Fee (each, an “Incentive Fee Payment”)
within sixty (60) days following the last day of the fiscal quarter with respect to which
such Incentive Fee Payment is payable.




          (iii) Twenty-five percent (25%) of the Incentive Fee shall (subject to the remaining
provisions of this Section 8(c)(iii)) be payable to Manager in Common Shares, and the
remainder thereof shall be paid in cash; provided, Manager may (subject to the remaining
provisions of this Section 8(c)(iii)) elect, by so indicating in the installment calculation
delivered to Board of Directors, to receive more than twenty-five percent (25%) of the
Incentive Fee in the form of Common Shares; provided, however, Manager may not receive
payment of any portion of the Incentive Fee in the form of Common Shares, either
automatically or by election, if such payment would result a violation of the Common Share
ownership restrictions set forth in Parent REIT’s Governing Instruments. For purposes of
determining the Common Share equivalent of the amount of the Incentive Fee payable in Common
Shares, (A) prior to the date the Common Shares are publicly traded, each Common Share shall
have a value equal to the book value per Common Share on the last day of the fiscal quarter
with respect to which the Incentive Fee is being paid, and (B) from and after the date the
Common Shares are publicly traded, each Common Share shall have a value equal to the average
of the closing price per Common Share of the last (20) trading days of the fiscal quarter
with respect to which the Incentive Fee is being paid. Manager’s receipt of Common Shares
in accordance herewith shall be subject to all applicable securities exchange rules and
securities laws (including, without limitation, prohibitions on insider trading).




          (iv) Each Incentive Fee Payment shall be deemed to be an advance of a portion of the
Incentive Fee payable for the subject fiscal year. The Manager shall calculate the
Incentive Fee payable during the immediately preceding fiscal year (or partial fiscal year,
if applicable, following the expiration or earlier termination of this Agreement), and
deliver such calculation to the Board of Directors, within seventy-five (75) days following
(A) the last day of each fiscal year during the term, and (B) the date of expiration or
earlier termination of this Agreement (such date, the “Calculation Delivery Date”). If the
amount of the Incentive Fee for such fiscal year (or partial fiscal year, if applicable)
exceeds the sum of the Incentive Fee Payments made during such fiscal year (or partial
fiscal year, if applicable), the Company shall pay Manager the amount of such underpayment,
subject to the provisions of Section 8(c)(iii), within fifteen (15) days after the date
Manager delivers such calculation to the Board of Directors. If



19









 







the amount of the Incentive
Fee due and payable for any fiscal year (or partial fiscal year, if applicable) is less than
the sum of the Incentive Fee Payments made with respect to such fiscal year (or partial
fiscal year, if applicable), Manager shall refund to the Company the portion of Incentive
Fee Payments received with respect to such fiscal year that exceeds the Incentive Fee due
for such fiscal year, in cash, within fifteen (15) days of the Calculation Delivery Date.




          (v) Prime Outlets Incentive Fee.




          (A) 2009 Reconciliation. Notwithstanding that the Manager may earn an
Incentive Fee pursuant to the formula set forth in Section 8(c)(i) for the twelve
months ending December 31, 2009 (the “2009 Incentive Fee”), the Company and
Manager agree as follows:




          (1) If the amount of the 2009 Incentive Fee exceeds the amount of the Prime
Outlets Incentive Fee, the Company shall only pay Manager the portion of the 2009
Incentive Fee that exceeds the amount of the Prime Outlets Incentive Fee shall and
the Manager shall retain the Prime Outlets Incentive Fee in satisfaction of the
Company’s obligation to pay Manager the remainder of such Incentive Fee;




          (2) If the 2009 Incentive Fee equals the Prime Outlets Incentive Fee, no
Incentive Fee shall be payable to the Manager with respect to the twelve months
ended December 31, 2009 in satisfaction of the Company’s obligation to pay Manager
such Incentive Fee; and




          (3) If the Prime Outlets Incentive Fee exceeds the 2009 Incentive Fee, no
Incentive Fee shall be payable to Manager with respect to the twelve months ended
December 31, 2009, and Manager shall refund to the Company the portion of the Prime
Outlets Incentive Fee that exceeds the amount of the 2009 Incentive Fee (the
“Prime Outlets Excess”) as follows: (a) 25% of the Prime Outlets Excess
shall be due and payable by December 31, 2010, and (b) 75% of the Prime Outlets
Excess shall be due and payable by June 30, 2012. Either installment of the Prime
Outlets Excess may be paid earlier than such due dates. In the event that the
Manager terminates this Agreement, any unpaid
portion of the Prime Outlets Excess shall become due and payable as of the
earlier of (a) the effective date of such termination and (b) the due dates set
forth above.




          (B) Payment of Prime Outlets Excess in Shares. All or any portion of
either installment of the Prime Outlet Excess may be paid by surrendering Common
Shares to the Company as long as (x) at least 50% of the Prime Outlets Excess in the
aggregate is repaid in cash, and (y) Manager gives the Company five (5) business
days’ irrevocable written notice of its intent to surrender Common Shares in lieu of
paying cash. Notwithstanding the foregoing, the Independent Directors may, in their
sole discretion, permit the Manager to pay up to 100% of the Prime Outlets Excess in
Common Shares. Any surrender of



20









 







Common Shares by the Manager shall be valued at the
closing price for the Common Shares on the day the Manager surrenders the Common
Shares.




          (C) Set-off. At any time after the Prime Outlets Incentive Fee is
determined to exceed the 2009 Incentive Fee and prior to the time that the Prime
Outlets Excess has been repaid in full, all compensation otherwise payable to the
Manager pursuant to this Section 8(c) will be retained by the Company to the extent
of the unpaid dollar amount of the Prime Outlets Excess and will be applied to
reduce the Manager’s obligation to repay the Prime Outlets Excess in cash and shares
of Common Stock.




          (vi) 450 West 33rd Street Incentive Fee. The Company and Manager
agree that Manager’s right to retain the 450 West 33rd Street Incentive Fee is
subject the Company’s obligation to pay any amounts pursuant to the 450 West 33rd
Street Guaranty. To the extent that the Company is required to pay any amounts pursuant to
the 450 West 33rd Street Guaranty, Manager shall be responsible for paying 25% of
any such amount by surrendering the applicable portion of the 450 West 33rd
Street Incentive Fee.




          (vii) Special Incentive Fees. The Independent Directors may from time to time
in their sole discretion consider and approve the payment of special incentive fees to
Manager in consideration of the accomplishment of certain specified corporate objectives.



          (d) 2008 Special Fee. The Company shall pay Manager a special fee equal to three
million dollars ($3,000,000.00) in consideration of (i) expenses incurred by Manager in fiscal year
2008 in connection with the management of the Company’s business and Investments, (ii) the imputed
value of the $4.2 million loan made by Manager to the Company in December 2008, and (iii) special
services provided by Manager in 2008 in addition to the services contemplated in the First Amended
Management Agreement.




     9. Expenses. Subject to Section 8(a), the Company shall be responsible for all expenses
incurred on its behalf in accordance with this Agreement. The Company shall reimburse Manager
pursuant to Section 10 for all third party expenses incurred by Manager on behalf of the Company,
which expenses may include the following:



          (a) expenses in connection with the issuance and transaction costs incident to the
acquisition, disposition and financing of Investments;




          (b) legal, accounting, tax and auditing fees and expenses of third parties for services
rendered for the Company by providers retained by Manager;




          (c) compensation, benefits and expenses of the Independent Directors and the Company’s
employees;




          (d) travel and other out-of-pocket expenses incurred by the Company’s employees in connection
with the purchase, financing, refinancing, sale or other disposition of Investments;





21









 








          (e) compensation and expenses of the Company’s custodian and transfer agent, if any;




          (f) the cost of liability insurance to indemnify (i) the Company’s directors and officers, and
(ii) the underwriters in connection with any securities offerings of Parent REIT, the Operating
Partnership, Sub-REIT or any other Subsidiary;




          (g) any litigation, arbitration or similar costs incurred by Manager on behalf of the Company
relating to or arising from any claim, dispute or action brought by or against the Company;




          (h) costs associated with the establishment and maintenance of any credit facilities or other
indebtedness of the Company (including, without limitation, commitment and origination fees, legal
fees, closing and other costs) or any securities offerings of Parent REIT, the Operating
Partnership, Sub-REIT or any other Subsidiary;




          (i) costs incurred in raising capital for the Company, including fees and expenses of
investment banks, financial advisors, banks and other lenders;




          (j) expenses relating to interest payments, dividends or distributions in cash or any other
form made or caused to be made by the Board of Directors to or on account of the holders of
securities or units of Parent REIT, the Operating Partnership, Sub-REIT or any other Subsidiary,
including, without limitation, in connection with any dividend reinvestment plan;




          (k) expenses relating to the production and distribution of communications to holders of
securities or units of Parent REIT, the Operating Partnership, Sub-REIT or any other Subsidiary and
other bookkeeping and clerical work necessary to maintain relations with the holders of such
securities or units and to comply with the continuous reporting and other requirements of
governmental entities or agencies, including, without limitation, (i) costs of preparing and filing
required reports with the Securities and Exchange Commission, (ii) costs payable by Parent REIT to
any transfer agent or registrar in connection with the listing and/or trading of the Common Shares
on any exchange, (iii) fees payable by Parent REIT to any such exchange in connection with its
listing, and (iv) costs of preparing, printing and mailing Parent REIT’s annual report to its
shareholders and proxy materials with respect to any meeting of Parent REIT’s shareholders;




          (l) other costs and expenses relating to the Company’s business and investment operations,
including, without limitation, the costs and expenses of acquiring, owning, protecting,
maintaining, developing and disposing of Investments, including taxes, license fees and appraisal,
reporting, audit and legal fees; and




          (m) such other extraordinary or non-recurring expenses incurred by Manager in connection with
the performance of its services hereunder, provided, to the extent the same are incurred with
respect to matters that do not fall within the provisions of the Guidelines, such expenses are
approved by a majority of the Independent Directors.




          The types of expenses referred to in clauses (a) through (m) of this Section 9 are
collectively referred to as the “Reimbursable Expenses.” For the avoidance of doubt, Manager




22









 







shall not be entitled to reimbursement of the following types of expenses pursuant to this Section 9: (i)
any expenses that the Company is required to reimburse Manager for pursuant to Section 8(a), (ii)
any item included in a Proposed Manager Budget for any given fiscal year and subsequently excluded
from the Agreed-Upon Manager Budget for such year, and (iii) any Excess Quarterly Cost which the
Independent Directors has determined shall not be reimbursed pursuant to Section 8(a)(i)(C).




          Except as set forth in Section 8(a), Manager shall bear the following expenses: (i) the wages
and salaries of Manager’s officers and employees; (ii) rent attributable to the offices occupied by
Manager separate from the office maintained for the Company; and (iii) all other “overhead”
expenses of Manager.




     10. Reimbursable Expense Reports and Reimbursements. Manager shall prepare a statement
documenting the Reimbursable Expenses incurred during, and deliver the same to the Company within
forty-five (45) days following, each fiscal quarter. Reimbursable Expenses incurred by Manager on
behalf of the Company shall be reimbursed by the Company within sixty (60) days following each
fiscal quarter.



     11. Limits of Manager Responsibility; Indemnification.



          (a) Limits of Manager Responsibility. Manager assumes no responsibility under this
Agreement other than to render the services set forth herein in good faith and shall not be
responsible for any action of the Board of Directors in following or declining to follow any advice
or recommendations of Manager, including as set forth in Section 7(b). Manager, its members,
managers, officers and employees will not be liable to Parent REIT, Sub-REIT, the Operating
Partnership, any other Subsidiary, the Board of Directors, Parent REIT or the Sub-REIT’s
stockholders, the Operating Partnership’s partners or any other Subsidiary’s stockholders or
partners for any acts or omissions by Manager, its members, managers, officers or employees
pursuant to or in accordance with this Agreement, except as otherwise expressly provided in Section
11(c).




          (b) Indemnification by Company. Parent REIT, Sub-REIT and/or the Operating
Partnership shall, to the full extent lawful, reimburse, indemnify and hold Manager, its
members, managers, officers and employees and each other Person, if any, controlling Manager
(each, a “Manager Indemnified Party”) harmless for and from any and all expenses, losses,
damages, liabilities, demands, charges and claims of any nature whatsoever (including reasonable
attorneys’ fees and disbursements), excluding any claims by Manager’s employees relating to the
terms and conditions of their employment by Manager, in respect of or arising out of (i) any acts
or omissions of such Manager Indemnified Party made in good faith in the performance of Manager’s
duties hereunder and not constituting such Manager Indemnified Party’s bad faith, willful
misconduct, gross negligence or material breach (beyond any applicable cure period) of Manager’s
duties under this Agreement, and (ii) the Company’s or any of its shareholder’s, director’s,
officer’s or employee’s bad faith, willful misconduct, gross negligence or material breach (beyond
any applicable cure period) of the Company’s obligations under this Agreement.





23









 








          (c) Indemnification by Manager. Manager shall, to the full extent lawful, reimburse,
indemnify and hold each of Parent REIT, Sub-REIT and the Operating Partnership, its shareholders,
directors, officers and employees and each other Person, if any, controlling Parent REIT, Sub-REIT
or the Operating Partnership harmless for and from any and all expenses, losses, damages,
liabilities, demands, charges and claims of any nature whatsoever (including reasonable attorneys’
fees and disbursements) in respect of or arising out of (i) Manager’s or any of its member’s,
manager’s, officer’s or employee’s bad faith, willful misconduct, gross negligence or material
breach (beyond any applicable cure period) of Manager’s duties under this Agreement, and (ii) any
claims by Manager’s employees relating to the terms and conditions of their employment by Manager.




     12. No Joint Venture. Nothing in this Agreement shall be construed to make the Company
and Manager partners or joint venturers or impose any liability as such on either of them.



     13. Term; Termination.



          (a) Term. This Agreement shall remain in full force and effect until December 31,
2010 unless earlier terminated by the Company or Manager as set forth below. This Agreement shall
be renewed automatically for successive one (1) year periods after December 31, 2010, until this
Agreement is terminated in accordance with the terms hereof.




          (b) Non-Renewal/Termination Without Company Cause by Company. The Company may (i)
elect not to renew this Agreement at the expiration of any one-year term described in Section
13(a), or (ii) terminate this Agreement at any time without Company Cause, subject to the
provisions of Section 13(c). If the Company elects not to renew this Agreement, or to terminate
this Agreement without Company Cause, the Company shall (i) deliver to Manager a written notice
(the “Company Termination Notice”) specifying the date, which may not be less than six (6)
months from the date of the Company Termination Notice, on which this Agreement shall terminate
(the “Effective Company Termination Date”), and (ii) pay to Manager the Termination Fee no
later than the Effective Company Termination Date. Such termination by
the Company will be effective upon Effective Company Termination Date. For the avoidance of
doubt, any internalization of the Company’s management shall be deemed a termination of this
Agreement pursuant to which the Company shall pay the Manager the Termination Fee unless the
Company shall have exercised its right to terminate this Agreement pursuant to Section 13(c) prior
to such internalization.




          (c) Termination With Company Cause by Company. The Company may terminate this
Agreement, by a majority vote of the Independent Directors and without payment of the Termination
Fee, if:





          (i) Manager commits fraud or acts or fails to act in a manner that constitutes gross
negligence in the performance of its duties hereunder;




          (ii) Manager misappropriates or embezzles Company funds;



24









 






          (iii) Manager commits some other willful violation of this Agreement in its corporate
capacity (as distinguished from the acts of any employees of Manager which are taken without
the complicity of Principal);




          (iv) Parent REIT removes Principal from the position of Chief Executive Officer of
Parent REIT for “cause” as such term is defined in and interpreted in accordance with the
Non-Competition Agreement;




          (v) a Manager Change of Control occurs;




          (vi) Principal is no longer Chief Executive Officer of Manager (provided such condition
is not a result of Principal’s death, disability or incapacity); or




          (vii) Manager defaults in the performance or observance of any material term, condition
or covenant contained in this Agreement to be performed or observed on its part, and such
default continues for a period of thirty (30) days after written notice thereof from the
Company specifying such default and requesting that the same be remedied within such thirty
(30) day period; provided, however, Manager shall have an additional sixty (60) days to cure
such default if (A) such default cannot reasonably be cured with in thirty (30) days but can
be cured within ninety (90) days, and (B) Manager shall have commenced to cure such default
within the initial thirty (30) day period and thereafter diligently proceeds to cure the
same within ninety (90) days of the date of the Company’s original notice of the default.



     Termination of this Agreement pursuant to this Section 13(c) shall become effective, in case
of the foregoing (A) clauses (i) through (iv), upon seven (7) days’ prior written notice to
Manager, (B) clauses (v) and (vi), upon thirty (30) days’ prior written notice to Manager, and (C)
clause (vii), in the event of Manager’s failure to cure and provided the Company has delivered to
Manager a termination notice, upon the expiration of the applicable cure period.



          (d) Non-Renewal/Termination Without Manager Cause by Manager. Manager may, without
payment of the Termination Fee, (i) elect not to renew this Agreement at the expiration of any
one-year term described in Section 13(a), or (ii) terminate this Agreement
at any time without Manager Cause. If Manager elects not to renew this Agreement, or to
terminate this Agreement without Manager Cause, the Manager shall (i) deliver to the Company a
written notice (the “Manager Termination Notice”) specifying the date, which may not be
less than six (6) months from the date of the Manager Termination Notice, on which this Agreement
shall terminate (the “Effective Manager Termination Date”). Such termination by the
Company will be effective upon Effective Manager Termination Date.




          (e) Termination With Manager Cause by Manager. Manager may terminate this Agreement
if the Company defaults in the performance or observance of any material term, condition or
covenant contained in this Agreement to be performed or observed on its part, and such default
continues for a period of thirty (30) days after written notice thereof from Manager specifying
such default and requesting that the same be remedied within such thirty (30) day period (the
“Cure Period”). In the event of the Company’s failure to cure such default within the Cure
Period, this Agreement shall terminate upon the expiration of the Cure Period provided





25









 







Manager has
delivered to the Company a written notice of such termination upon the expiration of the Cure
Period.




     14. Assignment.



          (a) Manager Assignment. Except as set forth in Section 14(c), this Agreement shall
terminate at the Company’s election and without payment of any Termination Fee, and any such
assignment shall be null and void, in the event of its assignment, in whole or in part, by Manager,
unless Manager obtains the prior written consent of Parent REIT and a majority of the Independent
Directors; provided, however, no such consent shall be required in the case of an assignment by
Manager to any affiliate whose day-to-day business and operations are managed and supervised by
Principal. Any permitted assignment by Manager shall bind the assignee in the same manner as
Manager is bound by the terms of this Agreement, and Manager shall be liable to the Company for all
errors or omissions of the assignee under any such assignment. In addition, the assignee shall
execute and deliver to the Company a counterpart of this Agreement naming such assignee as Manager.
For purposes of this Section 14(a) and Section 14(c), “affiliate” means any Person controlling,
controlled by or under common control with Manager, and “control” means the direct or indirect
ownership of at least fifty-one percent (51%) of the beneficial equity interests in and voting
power of such Person (and “controlling” and “under common control with” have meanings correlative
to the foregoing).




          (b) Parent REIT Assignment. This Agreement shall not be assigned by Parent REIT
without Manager’s prior written consent; provided, however, no such consent shall be required in
the case of an assignment by Parent REIT to (i) a Subsidiary to which Parent REIT is also assigning
its general partnership interest in the Operating Partnership, or (ii) a REIT or other organization
which is a successor (by merger, consolidation or purchase of assets) to Parent REIT, in which case
such successor organization shall be bound under this Agreement and by the terms of such assignment
in the same manner as Parent REIT is bound by the terms of this Agreement.




          (c) Manager Affiliate Subcontract and Partial Assignment. Notwithstanding any
provision of this Agreement, Manager may subcontract and assign any or all of its responsibilities
under Sections 2(b), (c) and (d) to any of its affiliates whose day-to-day business and operations
are managed and supervised by Principal in accordance with the terms of this Agreement applicable
to any such subcontract or assignment, and the Company hereby consents to any such subcontract and
assignment. In addition, provided that Manager provides prior written notice to the Company for
informational purposes only, nothing contained in this Agreement shall preclude any pledge,
hypothecation or other transfer of any amounts payable to Manager under this Agreement.




     15. Action Upon Termination. From and after the effective date of termination of this
Agreement pursuant to Sections 13 or 14, Manager shall not be entitled to compensation for further
services under this Agreement but shall be paid all compensation accruing to the date of such
termination and the Termination Fee, if applicable. Upon such termination, Manager shall
forthwith:



26









 





          (a) after deducting any accrued compensation and reimbursement for Reimbursable Expenses to
which it is then entitled, pay over to the Company all money collected and held for the account of
the Company pursuant to this Agreement;




          (b) deliver to the Board of Directors a full accounting, including a statement showing all
payments collected and all money held by it, covering the period following the date of the last
accounting furnished to the Board of Directors with respect to the Company; and




          (c) deliver to the Board of Directors all property and documents of the Company provided to or
obtained by Manager pursuant to or in connection with this Agreement, including all copies and
extracts thereof in whatever form, then in Manager’s possession or under its control.




     16. Survival



     Sections 6(b), 10 and 11 shall survive termination or expiration of this Agreement. The
Company’s obligation to pay the Termination Fee as contemplated in Section 13(b) shall survive any
such termination or expiration. The obligation of the Company to pay any of the amounts set forth
in Section 8 with respect to any period prior to the effective date of any termination or
expiration of this Agreement shall survive such termination or expiration. The obligation of the
Manager to pay the Prime Outlets Excess shall survive any termination or expiration of this
Agreement.



     17. Release of Money or other Property Upon Written Request. Manager agrees that any
money or other property of the Company held by Manager under this Agreement shall be held by
Manager as custodian for the Company, and Manager’s records shall be clearly and appropriately
marked to reflect the ownership of such money or other property by the Company. Upon the receipt
by Manager of a written request signed by a duly authorized officer of the Company requesting
Manager to release to the Company any money or other property then held by Manager for the account
of the Company under this
Agreement, Manager shall release such money or other property to the Company within a
reasonable period of time, but in no event later than sixty (60) days following such request.
Manager shall not be liable to the Company, the Independent Directors, Parent REIT or Sub-REIT’s
stockholders or the Operating Partnership’s partners for any acts or omissions by the Company in
connection with the money or other property released to the Company in accordance with the terms
hereof. The Company shall indemnify Manager and its members, managers, officers and employees
against any and all expenses, losses, damages, liabilities, demands, charges and claims of any
nature whatsoever which arise in connection with Manager’s release of such money or other property
to the Company in accordance with the terms of this Section 17. Indemnification pursuant to this
Section 17 shall be in addition to any right of Manager to indemnification under Section 11.



     18. Notices. Unless expressly provided otherwise in this Agreement, all notices,
requests, demands and other communications required or permitted under this Agreement shall be in
writing and shall be deemed to have been duly given, made and received when delivered against
receipt or upon actual receipt of (a) personal delivery, (b) delivery by a reputable overnight
courier, (c) delivery by facsimile transmission against answerback, or (d) delivery by



27









 







registered
or certified mail, postage prepaid, return receipt requested, addressed as set forth below:



	 	 	 
	If to Parent REIT, Sub-REIT
	 	 
	or the Operating Partnership:

	 	Arbor Realty Trust, Inc.
	 

	 	333 Earle Ovington Boulevard, Suite 900
	 

	 	Uniondale, New York 11553
	 

	 	Attention:
	 

	 	Facsimile:
	 
	 	 
	If to Manager:

	 	Arbor Commercial Mortgage, LLC
	 

	 	333 Earle Ovington Boulevard
	 

	 	Uniondale, New York 11553
	 

	 	Attention:
	 

	 	Facsimile:






          Any party may alter the address to which communications or copies are to be sent by giving
notice of such change of address in conformity with the provisions of this Section 18 for the
giving of notice.




     19. Binding Nature of Agreement; Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns as provided in this Agreement.



     20. Entire Agreement. This Agreement contains the entire agreement and understanding
among the parties hereto with respect to the subject matter hereof and supersedes all prior and
contemporaneous
agreements, understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter of this Agreement. The express terms
of this Agreement control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms of this Agreement. This Agreement may not be modified or
amended other than by an agreement in writing signed by the parties hereto.



     21. Governing Law. This Agreement and all questions relating to its validity,
interpretation, performance and enforcement shall be governed by and construed, interpreted and
enforced in accordance with the laws of the State of New York, notwithstanding any New York or
other conflict-of-law provisions to the contrary.



     22. Indulgences, Not Waivers. Neither the failure nor any delay on the part of a party to
exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude
any other or further exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.



28









 





     23. Titles Not to Affect Interpretation. The titles of sections, paragraphs and
subparagraphs contained in this Agreement are for convenience only, and they neither form a part of
this Agreement nor are they to be used in the construction or interpretation of this Agreement.



     24. Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any party whose signature
appears thereon, and all of which shall together constitute one and the same instrument. This
Agreement shall become binding when one or more counterparts of this Agreement, individually or
taken together, shall bear the signatures of all of the parties reflected hereon as the
signatories.



     25. Provisions Separable. The provisions of this Agreement are independent of and
separable from each other, and no provision shall be affected or rendered invalid or unenforceable
by virtue of the fact that for any reason any other or others of them may be invalid or
unenforceable in whole or in part.



     26. Principles of Construction. Words used herein regardless of the number and gender
specifically used, shall be deemed and construed to include any other number, singular or plural,
and any other gender, masculine, feminine or neuter, as the context requires. All references to
recitals, sections,
paragraphs and schedules are to the recitals, sections, paragraphs and schedules in or to this
Agreement unless otherwise specified.



     27. Amendments. This Agreement may be amended only in a writing signed by the parties
hereto; provided the same has been approved by a majority of the Independent Directors. The
approval of the holders of the Common Shares shall not be required for any amendments to this
Agreement.



     28. References to Original Management Agreement and First Amended Management Agreement



     Any reference to the Original Management Agreement or First Amended Management Agreement in
any other document executed in connection with the Original Management Agreement, the First Amended
Management Agreement or this Agreement shall be deemed to refer to this Agreement.



[NO FURTHER TEXT ON THIS PAGE]




29









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.



	 	 	 	 	 	 	 	 	 
	 	 	Manager:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ARBOR COMMERCIAL MORTGAGE, LLC,

a New York limited liability company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Ivan Kaufman	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Ivan Kaufman	 	 
	 	 	Title:	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Parent REIT:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ARBOR REALTY TRUST, INC.,

a Maryland corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Paul Elenio	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Paul Elenio	 	 
	 	 	Title:	 	Chief Financial Officer	 	 
	 	 	and Executive Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Operating Partnership:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ARBOR REALTY LIMITED PARTNERSHIP,

a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: Arbor Realty GPOP, Inc.,

a Delaware corporation,

its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Paul Elenio	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Paul Elenio	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 

	 	 	 	 	 	and Executive Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Sub-REIT:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ARBOR REALTY SR, INC.,

a Maryland corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Paul Elenio	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Paul Elenio	 	 
	 	 	Title:	 	Chief Financial Officer	 	 
	 	 	and Executive Vice President	 	 






 









 






Annex I




 









 








Annex II




32









 








Annex III





33