Exhibit 4.6
REGISTERED PRINCIPAL AMOUNT NO.: __________
$
CUSIP NO.: __________
New York Mortgage Trust, Inc.
[Designation of Subordinated Security]
New York Mortgage Trust, Inc., a Maryland corporation (hereinafter called
the "Company," which term shall include any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to ____________, or registered assigns, upon presentation, the principal sum of
____________ DOLLARS on ____________, and to pay interest on the outstanding
principal amount thereon from ____________, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on __________ and __________ in each year, commencing ____________,
at the rate of ____% per annum, until the entire principal amount hereof is paid
or made available for payment. The interest so payable, and punctually paid or
duly provided for on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Subordinated Security (or
one or more Predecessor Subordinated Securities) is registered at the close of
business on the Regular Record Date for such interest which shall be the
____________ or ____________ (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Subordinated Security (or one or more Predecessor Subordinated
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Subordinated Securities of this series not
more than 15 days and not less than 10 days prior to such Special Record Date,
or may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Subordinated Securities may
be listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. Payment of the principal of, Make-Whole Amount,
if any, on, and interest on this Subordinated Security will be made at the
office or agency of the Company maintained for that purpose in the City/County
of ____________, State of ____________, or elsewhere as provided in the
Indenture, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made by (i) check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register kept for the Subordinated
Securities pursuant to Section 305 of the Indenture (the "Security Register") or
(ii) transfer to an account of the Person entitled thereto located inside the
United States.
This Subordinated Security is one of a duly authorized issue of securities
of the Company (herein called the "Subordinated Securities"), issued and to be
issued in one or more series under an Indenture, dated as of ____________, 200__
(herein called the "Indenture"),
between the Company and ____________ (herein called the "Trustee," which term
includes any successor trustee under the Indenture with respect to the
Subordinated Securities), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Subordinated Securities and of the terms upon
which the Subordinated Securities are, and are to be, authenticated and
delivered. This Subordinated Security is one of the series designated as the
"[designation of Subordinated Securities]," limited in aggregate principal
amount to $____________.
The Subordinated Securities may be redeemed at any time at the option of
the Company, in whole or in part, upon notice of not more than 60 nor less than
30 days prior to the Redemption Date, at a redemption price equal to the sum of
(i) the principal amount of the Subordinated Securities being redeemed plus
accrued interest thereon to the Redemption Date and (ii) the Make-Whole Amount,
if any, with respect to such Subordinated Securities.
The following definitions apply with respect to any redemption of the
Subordinated Securities of this series at the option of the Company:
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any Subordinated Security, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated payment
of each dollar of principal being redeemed or paid and the amount of interest
(exclusive of any interest accrued to the date of redemption or accelerated
payment) that would have been payable in respect of such dollar if such
redemption or accelerated payment had not been made, determined by discounting,
on a semiannual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date such notice of
redemption is given or declaration of acceleration is made) from the respective
dates on which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the aggregate
principal amount of the Subordinated Securities being redeemed or paid.
"Reinvestment Rate" means .25% (one-fourth of one percent) plus the
arithmetic mean of the yields under the respective headings "This Week" and
"Last Week" published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of the
principal being redeemed or paid. If no maturity exactly corresponds to such
maturity, yields for the two published maturities most closely corresponding to
such maturity shall be calculated pursuant to the immediately preceding sentence
and the Reinvestment Rate shall be interpolated or extrapolated from such yields
on a straight-line basis, rounding in each of such relevant periods to the
nearest month. For the purposes of calculating the Reinvestment Rate, the most
recent Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated "H.15
(519)" or any successor publication which is published weekly by the Federal
Reserve System and which establishes yields on actively traded United States
government securities adjusted to constant maturities or, if such statistical
release is not published at the time of any determination under the
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Indenture, then such other reasonably comparable index which shall be designated
by the Company.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Subordinated Security and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Company, in each case, upon compliance by the Company with certain
conditions set forth in the Indenture, which provisions apply to this
Subordinated Security.
If an Event of Default with respect to the Subordinated Securities shall
occur and be continuing, the principal of, and the Make-Whole Amount, if any,
on, the Subordinated Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder
of this Subordinated Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver or
trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default
with respect to the Subordinated Securities, the Holders of not less than 25% in
principal amount of the Subordinated Securities at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity
and the Trustee shall not have received from the Holders of a majority in
principal amount of the Subordinated Securities at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Subordinated Security for the enforcement of any payment of principal
hereof or any interest on or after the respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Subordinated Securities under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Subordinated Securities. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Subordinated
Securities at the time Outstanding, on behalf of the Holders of all Subordinated
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Subordinated Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Subordinated Security and of any Subordinated Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Subordinated
Security.
No reference herein to the Indenture and no provision of this Subordinated
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of,
Make-Whole Amount, if any, on, and interest on this Subordinated Security at the
times, place and rate, and in the coin or currency, herein prescribed.
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As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Subordinated Security is registrable in the
Security Register, upon surrender of this Subordinated Security for registration
of transfer at the office or agency of the Company in any Place of Payment where
the principal of, Make-Whole Amount, if any, on, and interest on this
Subordinated Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar for the Subordinated Securities (the "Security Registrar" duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Subordinated Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Subordinated Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Subordinated Securities of this series are exchangeable for a like
aggregate principal amount of Subordinated Securities of this series of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Subordinated Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Subordinated Security is registered as
the owner hereof for all purposes, whether or not this Subordinated Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Holder of this Subordinated Security by the acceptance thereof agrees
that the indebtedness evidenced by this Subordinated Security is subordinated in
right of payment, to the extent and in the manner provided in Article Sixteen of
the Indenture, to the prior payment in full of all Senior Debt and that the
subordination is for the benefit of the holders of Senior Debt. The Holder
hereof authorizes and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effect such subordination as provided in the
Indenture and appoints the Trustee his attorney-in-fact for such purpose.
"Senior Debt" is defined in the Indenture as the principal of and interest on,
or substantially similar payments to be made by the Company in respect of, the
following, whether outstanding at the date of execution of this Indenture or
thereafter incurred, created or assumed: (a) indebtedness of the Company for
money borrowed or represented by purchase-money obligations, (b) indebtedness of
the Company evidenced by notes, debentures, or bonds, or other securities issued
under the provisions of an indenture, fiscal agency agreement or other
instrument, (c) obligations of the Company as lessee under leases of property
either made as part of any sale and lease-back transaction to which the Company
is a party or otherwise, (d) indebtedness of partnerships and joint ventures
which is included in the Company's consolidated financial statements, (e)
indebtedness, obligations and liabilities of others in respect of which the
Company is liable contingently or otherwise to pay or advance money or property
or as guarantor, endorser or otherwise or which the Company has agreed to
purchase or otherwise acquire, and (f) any binding commitment of the Company to
fund any real estate investment or to fund any investment in any entity making
such real estate investment; but
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excluding, however, (1) any such indebtedness, obligation or liability referred
to in clauses (a) through (f) above as to which, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such indebtedness, obligation or liability is not superior in right of
payment to the Subordinated Securities, or ranks pari passu with the
Subordinated Securities, (2) any such indebtedness, obligation or liability
which is subordinated to indebtedness of the Company to substantially the same
extent as or to a greater extent than the Subordinated Securities are
subordinated and (3) the Subordinated Securities. As used in the preceding
sentence the term "purchase-money obligations" shall mean indebtedness or
obligations evidenced by a note, debenture, bond or other instrument (whether or
not secured by any lien or other security interest but excluding indebtedness or
obligations for which response is limited to the property purchased) issued or
assumed as all or a part of the consideration for the acquisition of property,
whether by purchase, merger, consolidation or otherwise, but shall not include
any trade accounts payable. A distribution may consist of cash, securities or
other property.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or in this Subordinated Security, or because of any
indebtedness evidenced thereby, shall be had against any promoter, as such or,
against any past, present or future shareholder, officer or director, as such,
of the Company or of any successor, either directly or through the Company or
any successor, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Senior Security by the Holder thereof and as part of the
consideration for the issue of the Subordinated Securities.
All terms used in this Subordinated Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SUBORDINATED SECURITIES, INCLUDING THIS SUBORDINATED
SECURITY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Subordinated Securities as a convenience to the Holders of the
Subordinated Securities. No representation is made as to the correctness or
accuracy of such CUSIP numbers as printed on the Subordinated Securities, and
reliance may be placed only on the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Subordinated Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal this day of ____________.
New York Mortgage Trust, Inc.
By:__________________________________
Name:________________________________
Title:_______________________________
Attest:
By:__________________________________
Name:________________________________
Title:_______________________________
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Securities of the series designated
"[designation of Subordinated Securities]" pursuant to the within-mentioned
Indenture.
___________________________________________,
as Trustee
By:________________________________________
Authorized Signatory
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Typewrite Name and Address including Zip Code of Assignee)
____________ the within Subordinated Security of New York Mortgage Trust, Inc.
(the "Company") and ____________ hereby does irrevocably constitute and appoint
____________ Attorney to transfer said Subordinated Security on the books of the
within-named Company with full power of substitution in the premises.
Dated:_____________________________
NOTICE: The signature to this assignment must correspond
with the name as it appears on the first page of the within
Subordinated Security in every particular, without
alteration or enlargement or any change whatever.
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