EXHIBIT 10.1
AMENDED AND RESTATED
MANAGEMENT AND ADVISORY AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT AND ADVISORY AGREEMENT is
made as January 18, 2005 (the "Agreement") by and among ARBOR REALTY TRUST,
INC., a Maryland corporation ("Parent REIT"), ARBOR REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership (the "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").
WITNESSETH:
WHEREAS, Parent REIT, Manager and the Operating Partnership have
entered into that certain Management and Advisory Agreement, dated as of July 1,
2003 (the "Original Management Agreement").
WHEREAS, Parent REIT currently conducts its operations and makes
substantially all of its investments through the Operating Partnership;
WHEREAS, Parent REIT intends to cause the Operating Partnership
to contribute substantially all of the assets directly or indirectly held by the
Operating Partnership to Sub-REIT in exchange for shares of common stock of
Sub-REIT;
WHEREAS, a subsidiary of the Sub-REIT has been formed in order to
issue debt and equity securities collateralized by certain of the assets to be
contributed by the Operating Partnership to Sub-REIT (the "CDO Financing");
WHEREAS, in order to maintain Parent REIT's qualification as a
REIT (as defined below) upon consummation of the CDO Financing, Parent REIT
intends to make its investments primarily through the Sub-REIT and its
subsidiaries and cause Sub-REIT to qualify as a REIT for federal income tax
purposes; and
WHEREAS, Parent REIT, Manager and the Operating Partnership
desire to amend and restate the Original Management Agreement in its entirety on
the terms and conditions hereinafter set forth in order to add Sub-REIT as a
party.
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) "Agreement" has the meaning assigned in the first paragraph.
(b) "Board of Directors" means the Board of Directors of Parent
REIT.
(c) "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. Change of
Control shall not include public offerings of the capital stock of Manager or
any assignment of this Agreement by Manager as permitted hereby and in
accordance with the terms hereof.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Common Share" means a share of capital stock of Parent REIT
now or hereafter authorized and issued as common voting stock of Parent REIT.
(f) "Company" has the meaning assigned in the first paragraph.
(g) "Company Account" has the meaning