Exhibit 10.87
EXECUTION COPY
AMENDED AND RESTATED
CONTRIBUTION AGREEMENT
BY AND AMONG
XXXXXX X. XXXXXXX,
XXXXXX X. XXXXXXX ANNUITY TRUST U/A 3/23/04,
XXXXXX X. XXXXXX
AND
2004 XXXXXX X. XXXXXX GRANTOR RETAINED ANNUITY TRUST,
AS THE CONTRIBUTORS,
AND
NEW YORK MORTGAGE TRUST, INC.
A MARYLAND CORPORATION,
AS THE ACQUIRER
TABLE OF CONTENTS
Page
ARTICLE I THE CONTRIBUTION.................................................... 2
1.1 Contribution of Contributed Interests..................... 2
1.2 Consideration............................................. 2
1.3 Earn-Out Provision........................................ 2
1.4 Payment and Delivery Instructions......................... 3
1.5 Tax Treatment of Transaction.............................. 4
ARTICLE II REPRESENTATIONS, WARRANTIES, COVENANTS AND OTHER AGREEMENTS........ 4
2.1 Representations and Warranties by Acquirer................ 4
2.2 Representations and Warranties by Contributors............ 5
2.3 Covenants by Contributors................................. 7
2.4 Satisfaction of Conditions................................ 7
2.5 Acquirer's Indemnity...................................... 7
ARTICLE III CONDITIONS PRECEDENT TO THE CLOSING............................... 8
3.1 Conditions to Acquirer's Obligations...................... 8
3.2 Conditions to Contributors' Obligations................... 8
ARTICLE IV CLOSING AND CLOSING DOCUMENTS...................................... 9
4.1 Closing................................................... 9
4.2 Contributors' Deliveries.................................. 9
4.3 Acquirer's Deliveries..................................... 9
4.4 Fees and Expenses; Closing Costs.......................... 9
ARTICLE V MISCELLANEOUS...................................................... 10
5.1 Notices.................................................. 10
5.2 Entire Agreement; Modifications and Waivers;
Cumulative Remedies ................................... 11
5.3 Exhibits................................................. 11
5.4 Successors and Assigns................................... 11
5.5 Article Headings......................................... 12
5.6 Governing Law............................................ 12
5.7 Counterparts............................................. 12
5.8 Survival................................................. 12
5.9 Further Acts............................................. 12
5.10 Severability............................................. 12
5.11 Attorneys' Fees.......................................... 13
5.12 Confidentiality.......................................... 13
EXHIBITS
A Form of Assignment of Membership Interest
CONTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED CONTRIBUTION AGREEMENT (this "Agreement") is
made as of the 25th day of March, 2004, by and among XXXXXX X. XXXXXXX, an
individual ("Xxxxxxx"), the XXXXXX X. XXXXXXX ANNUITY TRUST U/A 3/23/03, a
Delaware Trust (the "Xxxxxxx Trust"), XXXXXX X. XXXXXX, an individual
("Xxxxxx"), and 2004 XXXXXX X. XXXXXX GRANTOR RETAINED ANNUITY TRUST, a Delaware
Trust (the "Xxxxxx Trust") (Xxxxxxx, the Xxxxxxx Trust, Xxxxxx and the Xxxxxx
Trust collectively are the "Contributors"); and NEW YORK MORTGAGE TRUST, INC., a
Maryland corporation (the "Acquirer").
RECITALS
A. The New York Mortgage Company, LLC, a New York limited liability
company (the "Company"), was formed in 1998 as the result of a combination of
the assets and staff of its two principals' predecessor firms, New York Mortgage
Corp. and First Security Financial Services Inc. The Company is governed by the
terms of that certain Amended and Restated Operating Agreement of the Company
dated as of June 30, 1999, as amended as of August 31, 2003 and as further
amended as of March 25, 2004 (the "LLC Agreement") by and among the
Contributors.
X. Xxxxxxx is the owner of a 53.05% membership interest in the Company
(the "Xxxxxxx Interest"). The Xxxxxxx Trust is the owner of 16.95% membership
interest in the Company (the "Xxxxxxx Trust Interest"). Xxxxxxx is the trustee
of the Xxxxxxx Trust with full discretionary dispositive power with respect to
the Xxxxxxx Trust Interest. Xxxxxx is the owner of a 25.16% membership interest
in the Company (the "Xxxxxx Interest"). The Xxxxxx Trust is the owner of a 4.84%
membership interest in the Company (the "Xxxxxx Trust Interest"). Xxxxxx is the
trustee of the Xxxxxx Trust with full discretionary dispositive power with
respect to the Xxxxxx Trust Interest. Collectively, the Contributors are the
record and beneficial owners of 100% of the membership interests in the Company
(the "Contributed Interests"). The Contributors desire to contribute the
Contributed Interests to the Acquirer, and the Acquirer desires to acquire the
Contributed Interests from the Contributors, on the terms and conditions
hereinafter set forth.
C. This Agreement amends and restates that certain Contribution
Agreement, dated December 22, 2003, by and among Xxxxxx X. Xxxxxxx and Xxxxxx X.
Xxxxxx and New York Mortgage Trust, Inc.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
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ARTICLE I
THE CONTRIBUTION
1.1 Contribution of Contributed Interests.
The Contributors agree to contribute and transfer the Contributed
Interests to the Acquirer, and the Acquirer agrees to accept transfer of the
Contributed Interests pursuant to the terms and conditions set forth in this
Agreement. The Contributed Interests shall be transferred to the Acquirer free
and clear of all liens, encumbrances, security interests, prior assignments or
conveyances, conditions, restrictions, claims, and other matters affecting title
thereto.
1.2 Consideration.
The total consideration (the "Consideration") for which the
Contributors agree to contribute and assign the Contributed Interests to the
Acquirer, and which the Acquirer agrees to pay or deliver to the Contributors,
subject to the terms of this Agreement, shall be,
(a) to Xxxxxxx, Two Million One Hundred and Ninety Thousand Five
Hundred and Ninety Nine (2,190,599) shares of common stock of the Acquirer, par
value $0.01 per share ("Common Stock");
(b) to the Xxxxxxx Trust, Six Hundred and Ninety Nine Thousand Nine
Hundred and Eighteen (699,918) shares of Common Stock;
(c) to Xxxxxx, One Million Thirty Eight Thousand Nine Hundred Ninety
Four (1,038,934) shares of Common Stock; and
(d) to the Xxxxxx Trust, One Hundred and Ninety Nine Thousand Eight
Hundred Fifty Nine (199,859) shares of Common Stock.
1.3 Earn-Out Provision.
Notwithstanding anything to the contrary contained herein, 530,500 of
the shares of Common Stock issuable to Xxxxxxx under Section 1.2(a) (the
"Escrowed Xxxxxxx Shares"), 169,500 of the shares of Common Stock issuable to
the Xxxxxxx Trust under Section 1.2(b) (the "Escrowed Xxxxxxx Trust Shares"),
251,600 of the shares of Common Stock issuable to Xxxxxx under Section 1.2(c)
(the "Escrowed Xxxxxx Shares") and 48,400 of the shares of Common Stock issuable
to the Xxxxxx Trust under Section 1.2(d) (the "Escrowed Xxxxxx Trust Shares")
will be deposited into a an escrow account with an independent third party
escrow agent that is mutually acceptable to the parties hereto and held in such
escrow account until the first to occur of (i) the date on which one of the
conditions set forth below in clauses (a), (b) or (c) of this Section 1.3 is
satisfied and (ii) the date on which none of the conditions is capable of being
satisfied (the "Escrow Period"). During the Escrow Period, Xxxxxxx, the Xxxxxxx
Trust, Xxxxxx and the Xxxxxx Trust shall not be permitted to, directly or
indirectly, sell, offer, pledge, contract or grant any option to sell (including
without limitation any short sale), loan, transfer, establish an open "put
equivalent position" within the meaning of Rule 16a-1(h) under the Securities
Exchange Act of 1934, as amended, or otherwise dispose of, or grant any rights
with respect to, any of such
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Escrowed Xxxxxxx Shares, Escrowed Xxxxxxx Trust Shares, Escrowed Xxxxxx Shares
or Escrowed Xxxxxx Trust Shares, or options or warrants to acquire any such
shares, or publicly announce an intention to do any of the foregoing. The
foregoing restrictions shall lapse automatically upon satisfaction of the first
to be satisfied of the conditions set forth below in clauses (a), (b) or (c) of
this Section 1.3, such satisfaction to be evidenced by written instructions from
the Acquirer accompanied by copies of the relevant audited financial statements
of the Acquirer and the relevant written report or reports of the Mortgage
Bankers Association of America (the "MBAA") or, if the MBAA is no longer
publishing such reports, by another nationally recognized trade association or
reporting institution or agency that is mutually acceptable to the parties
hereto, and the escrow agent shall promptly deliver the Escrowed Xxxxxxx Shares
directly to Xxxxxxx, the Escrowed Xxxxxxx Trust Shares directly to the Xxxxxxx
Trust, the Escrowed Xxxxxx Shares directly to Xxxxxx and the Escrowed Xxxxxx
Trust Shares directly to the Xxxxxx Trust after receipt of such written
instructions, financial statements and reports. If none of the conditions is
satisfied by the time the Acquirer's audited financial statements for the year
ended December 31, 2005 are delivered by the Acquirer's independent auditors to
the Acquirer, the Escrowed Xxxxxxx Shares, the Escrowed Xxxxxxx Trust Shares,
the Escrowed Xxxxxx Shares and the Escrowed Xxxxxx Trust Shares will be
delivered by the escrow agent directly to the Acquirer's transfer agent and
registrar with written instructions by the transfer agent, co-signed by the
Acquirer, to cancel such shares. Xxxxxxx, the Xxxxxxx Trust, Xxxxxx and the
Xxxxxx Trust shall be entitled to receive dividends on the Escrowed Xxxxxxx
Shares, the Escrowed Xxxxxxx Trust Shares, the Escrowed Xxxxxx Shares and the
Escrowed Xxxxxx Trust Shares, respectively, during the Escrow Period.
(a) The dollar amount of NYMC's and its affiliates' total mortgage loan
originations during the 2004 calendar year, as a percentage of the dollar amount
of NYMC's and its affiliates' total mortgage loan originations during the 2003
calendar year, exceed the dollar amount of the total industry-wide mortgage loan
originations in the United States during the 2004 calendar year, as a percentage
of the dollar amount of the total industry-wide mortgage loan originations in
the United States during the 2003 calendar year (as reported by the MBAA); or
(b) The dollar amount of NYMC's and its affiliates' total mortgage loan
originations during the 2004 calendar year exceed the dollar amount of NYMC's
and its affiliates' total mortgage loan originations during the 2003 calendar
year; or, if neither of the conditions set forth in (a) or (b) is satisfied,
then
(c) The dollar amount of NYMC's and its affiliates' total mortgage loan
originations during the 2004 and 2005 calendar years, as a percentage of the
dollar amount of NYMC's and its affiliates' total mortgage loan originations
during the 2003 calendar year, exceed the dollar amount of the total
industry-wide mortgage loan originations in the United States during the 2004
and 2005 calendar years, as a percentage of the dollar amount of the total
industry-wide mortgage loan originations in the United States during the 2003
calendar year (as reported by the MBAA).
1.4 Payment and Delivery Instructions.
Xxxxxxx, for himself and the Xxxxxxx Trust, and Xxxxxx, for himself and
the Xxxxxx Trust, shall each provide written instructions to the Acquirer at
least 48 hours prior to the Closing
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setting out delivery instructions for the delivery of the shares of Common Stock
issuable pursuant to Section 1.2(a), Section 1.2(b), Section 1.2(c) and Section
1.2(d), respectively.
1.5 Tax Treatment of Transaction.
Notwithstanding anything to the contrary contained in this Agreement,
including without limitation the use of words and phrases such as "sell,"
"sale," purchase," and "pay," the parties hereto acknowledge and agree that it
is their assumption and intention that the transaction contemplated hereby shall
be treated for federal income tax purposes as a tax-free nonrecognition
transaction under Section 351 or 354 of the Internal Revenue Code of 1986, as
amended (the "Code"). The parties further agree to cooperate with each other in
preparing any tax returns, statements, and forms consistent with that assumption
and necessary or appropriate to effectuate that intention.
ARTICLE II
REPRESENTATIONS, WARRANTIES, COVENANTS AND OTHER AGREEMENTS
2.1 Representations and Warranties by Acquirer.
The Acquirer hereby represents and warrants to the Contributors as of
the date of this Agreement and as of the Closing Date as follows:
(a) Organization and Power. The Acquirer is duly organized, validly
existing, and in good standing under the laws of the State of Maryland, and has
full right, power, and authority to enter into this Agreement and to assume and
perform all of its obligations under this Agreement; and, the execution and
delivery of this Agreement and the performance by the Acquirer of its
obligations hereunder have been duly authorized by all requisite action of the
Acquirer and require no further action or approval of the Acquirer's
stockholders or of any other individuals or entities in order to constitute this
Agreement as a binding and enforceable obligation of the Acquirer.
(b) Noncontravention. Neither the entry into nor the performance of, or
compliance with, this Agreement by the Acquirer has resulted, or will result, in
any violation of, or default under, or result in the acceleration of, any
obligation under any existing mortgage, indenture, lien agreement, note,
contract, permit, judgment, decree, order, restrictive covenant, statute, rule,
or regulation applicable to the Acquirer.
(c) Litigation. There is no action, suit, or proceeding, pending or
known to be threatened, against or affecting the Acquirer in any court or before
any arbitrator or before any federal, state, municipal, or other governmental
department, commission, board, bureau, agency or instrumentality which (i) in
any manner raises any question affecting the validity or enforceability of this
Agreement, (ii) could materially and adversely affect the business, financial
position, or results of operations of the Acquirer, (iii) could materially and
adversely affect the ability of the Acquirer to perform its obligations
hereunder, or under any document to be delivered pursuant hereto.
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(d) Shares of Common Stock Validly Issued. The shares of Common Stock,
when issued to Xxxxxxx, the Xxxxxxx Trust, Xxxxxx and the Xxxxxx Trust, will
have been duly and validly authorized and issued, free of any preemptive or
similar rights, and will be fully paid and nonassessable.
(e) Consents. Except as may otherwise be set forth in Section 3.1
hereof, each consent, approval, authorization, order, license, certificate,
permit, registration, designation, or filing by or with any governmental agency
or body necessary for the execution, delivery, and performance of this Agreement
or the transactions contemplated hereby by the Acquirer has been obtained or
will be obtained on or before the Closing Date.
2.2 Representations and Warranties by Contributors.
Each of the Contributors hereby severally, and not jointly, makes the
following representations and warranties as of the date of this Agreement as of
the Closing Date:
(a) Ownership, Organization and Power. Xxxxxxx is the record and
beneficial owner of the Xxxxxxx Interest. The Xxxxxxx Trust is the record owner
of the Xxxxxxx Trust Interest and Xxxxxxx is the sole trustee of the Xxxxxxx
Trust with full discretionary dispositive power with respect to the Xxxxxxx
Trust Interest. Xxxxxx is the record and beneficial owner of the Xxxxxx
Interest. The Xxxxxx Trust is the record owner of the Xxxxxx Trust Interest and
Xxxxxx is the sole trustee of the Xxxxxx Trust with full discretionary
dispositive power with respect to the Xxxxxx Trust Interest. Collectively, the
Xxxxxxx Interest, the Xxxxxxx Trust Interest, the Xxxxxx Interest and the Xxxxxx
Trust Interest comprise 100% of the outstanding equity interests in the Company
and there are no outstanding options, warrants, subscriptions or other rights to
acquire equity interests in the Company or agreements to issue any such options,
warrants, subscriptions or other rights. The Company is a limited liability
company, duly organized, validly existing, and in good standing under the laws
of the State of New York. The Contributors have full right, power, and authority
to enter into this Agreement and to assume and perform all of their respective
obligations under this Agreement; and the execution and delivery of this
Agreement and the performance by the Contributors of their respective
obligations hereunder have been duly authorized by all requisite action of the
Contributors and require no further action or approval of the Company.
(b) Litigation. To the knowledge of the Contributors, there is no
action, suit, or proceeding, pending or known to be threatened, against or
affecting the Contributors or the Company in any court or before any arbitrator
or before any federal, state, municipal, or other governmental department,
commission, board, bureau, agency or instrumentality which (A) in any manner
raises any question affecting the validity or enforceability of this Agreement,
(B) could materially and adversely affect the business, financial position, or
results of operations of the Company, (C) could materially and adversely affect
the ability of the Contributor to perform their respective obligations
hereunder, or under any document to be delivered pursuant hereto, (D) could
create a lien on the Contributed Interests or any interest therein, or (E) could
materially and adversely affect the Contributed Interests or the Company or any
interest therein.
(c) No Encumbrances. (A) The Contributed Interests are held by the
Contributors free and clear of all liens, encumbrances, pledges, conditions,
restrictions, claims
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and security interests and any other matters affecting title thereto, other than
such liens, encumbrances, pledges, conditions, restrictions, claims or security
interests that will be terminated or released prior to the Closing Date, and (B)
the Contributors have not granted any other person or entity an option to
purchase or a right of first refusal with respect to the Contributed Interests
nor are there any agreements or understandings between the Contributors and any
other person or entity with respect to the disposition of the Contributed
Interests.
(d) No Consents. Except as may otherwise be set forth in Section 3.1
hereof, each consent, approval, authorization, order, license, certificate,
permit, registration, designation, or filing by or with any governmental agency
or body necessary for the execution, delivery, and performance of this Agreement
or the transactions contemplated hereby by the Contributors have been obtained
or will be obtained on or before the Closing Date.
(e) Tax Matters. (A) To the best of the know ledge of the Contributors,
(i) the Company has filed within the time periods (including any extensions of
such time periods filed by the Company) and in the manner prescribed by law all
federal, state, and local tax returns and reports, including but not limited to
income, gross receipts, intangible, real property, excise, withholding,
franchise, sales, use, employment, personal property, and other tax returns and
reports, required to be filed by the Company under the laws of the United States
and of each state or other jurisdiction in which the Company conducts business
activities requiring the filing of tax returns or reports, (ii) all tax returns
and reports filed by the Company are true and correct in all material respects,
(iii) the Company has paid in full all material taxes of whatever kind or nature
to be paid by the Company for the periods covered by such returns (unless an
extension of such periods has been properly filed for such returns), (iv) the
Company has no material tax deficiency or claim outstanding, assessed,
threatened, or proposed against it, (v) the charges, accruals, and reserves for
unpaid taxes on the books and records of the Company as of the Closing Date are
sufficient in all material respects for the payment of all unpaid federal,
state, and local taxes of the Company accrued for or applicable to all periods
ended on or before the Closing Date, (vi) there are no material tax liens,
whether imposed by the United States, any state, local, or other taxing
authority, outstanding against the Company or any of its assets, and (vii) the
federal, state, and local tax returns of the Company are not currently under
audit, nor has the Company received any notice of any federal, state, or local
audit.
(B) The Contributors represent and warrant that the Company has
properly filed an Internal Revenue Service ("IRS") Form 8832 with the IRS
electing to be treated as a corporation for federal income tax purposes and that
such election became effective no later than January 1, 2004. The Contributors
further represent and warrant that the Company has filed or will file an IRS
Form 2553 with the IRS electing to be treated as an S corporation for federal
income tax purposes and that such election became effective no later than
January 1, 2004.
(C) The Contributors represent and warrant that they have obtained
from their own counsel advice regarding the transaction contemplated by this
Agreement, including, without limitation, the tax consequences of the transfer
of the Contributed Interests to the Acquirer and the receipt of Common Stock
and/or cash as consideration therefor.
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2.3 Covenants by Contributors.
(a) Between the date hereof and the Closing Date, the Contributors will
(A) operate the Company only in the usual, regular, and ordinary manner
consistent with such entity's prior practice and (B) maintain the Company books
of account and records in the usual, regular, and ordinary manner, in accordance
with sound accounting principles applied on a basis consistent with the basis
used in keeping its books in prior years. From the date hereof until the Closing
Date, the Contributors shall not take any action or fail to take any action the
result of which would (1) have a material adverse effect on the Contributed
Interests, the Company or the Acquirer's ability to continue the operation
thereof after the Closing Date in substantially the same manner as presently
conducted or (2) would cause any of the representations and warranties contained
in Section 2.2 to be untrue as of the Closing Date.
(b) The Contributors hereby covenant and agree to take all appropriate
and reasonable actions necessary or advisable to facilitate completion of the
IPO. The Contributors shall not knowingly take any action that could reasonably
be expected to have an adverse effect on the completion of the IPO.
2.4 Satisfaction of Conditions.
The Acquirer hereby covenants and agrees that the Acquirer shall: (a)
use commercially reasonable efforts and diligence in order to satisfy all of the
conditions set forth in subsections 3.1(d), (e) and (h), and Section 3.2 hereof,
and (b) cooperate and assist in the Contributors' efforts to satisfy the
conditions set forth in subsection 3.1(c) hereof; and the Contributors shall not
have any obligation to consummate the Closing hereunder unless and until all
such conditions have been satisfied or waived by the Contributors in writing.
The Contributors hereby covenant and agree that they shall: (a) use commercially
reasonable efforts and diligence in order to satisfy all of the conditions set
forth in subsections 3.1(a), (b) and (c) hereof, and (B) cooperate and assist in
the Acquirer's efforts to satisfy the conditions set forth in subsections 3.1(d)
and subsection 3.2(c) hereof; and the Acquirer shall not have any obligation to
consummate the Closing hereunder unless and until such conditions have been
satisfied or waived by the Acquirer in writing.
2.5 Acquirer's Indemnity.
The Acquirer agrees to indemnify and hold each of the Contributors
harmless of and from all liabilities, losses, damages, costs, claims,
obligations and expenses (including reasonable attorneys' fees) which either or
both of the Contributors may suffer or incur by reason of (a) any breach of the
Acquirer's representations, warranties, covenants or agreements contained in
this Agreement, (b) any act or cause of action occurring or accruing on or after
the Closing Date and arising from the ownership of the Contributed Interests or
the operation of the Company's business on or after the Closing Date and (c) any
guarantee by either or both of the Contributors in existence prior to or as of
the Closing Date of or relating to any liability or obligation of the Company
(the "Contributor Guarantees"). In addition, the Acquirer hereby agrees to take
all actions necessary to cause all Contributor Guarantees to be terminated or
released in full with any continuing liability or obligation on the part of the
Contributors as soon as reasonably practicable following the Closing Date.
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ARTICLE III
CONDITIONS PRECEDENT TO THE CLOSING
3.1 Conditions to Acquirer's Obligations.
In addition to any other conditions set forth in this Agreement, the
Acquirer's obligation to consummate the Closing is subject to the timely
satisfaction of each and every one of the conditions and requirements set forth
in this Section 3.1, all of which shall be conditions precedent to the
Acquirer's obligations under this Agreement.
(a) Contributors' Obligations. The Contributors shall have performed
all covenants, agreements and other obligations of the Contributors hereunder
which are to be performed prior to the Closing, and shall have delivered or
caused to be delivered to the Acquirer all of the documents and other
information required of the Contributors pursuant to Section 4.2.
(b) Contributors' Representations and Warranties. The Contributors'
representations and warranties set forth in Section 2.2 shall be true and
correct as if made again on the Closing Date.
(c) No Injunction. On the Closing Date, there shall be no effective
injunction, writ, preliminary restraining order or other order issued by a court
of competent jurisdiction restraining or prohibiting the consummation of the
transactions contemplated hereby.
(d) Completion of IPO. The IPO shall have been completed.
3.2 Conditions to Contributors' Obligations.
In addition to any other conditions set forth in this Agreement, the
Contributors' obligations to consummate the Closing are subject to the timely
satisfaction of each and every one of the conditions and requirements set forth
in this Section 3.2, all of which shall be conditions precedent to the
Contributors' obligations under this Agreement.
(a) Acquirer's Obligations. The Acquirer shall have performed all
covenants, agreements and other obligations of the Acquirer hereunder which are
to be performed prior to the Closing, and shall have delivered or caused to be
delivered to the Contributor, all of the documents and other information
required of the Acquirer pursuant to Section 4.3.
(b) Acquirer's Representations and Warranties. The Acquirer's
representations and warranties set forth in Section 2.1 shall be true and
correct as if made again on the Closing Date.
(c) Completion of IPO. The IPO shall have been completed.
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ARTICLE IV
CLOSING AND CLOSING DOCUMENTS
4.1 Closing.
The consummation and closing (the "Closing") of the transactions
contemplated under this Agreement shall take place at the offices of the
Acquirer in New York, New York, or such other place as is mutually agreeable to
the parties, on the date of the closing of the IPO (the "Closing Date");
provided, that this Agreement shall be terminated and the parties shall have no
obligations hereunder if the IPO closing does not occur by April 30, 2004.
4.2 Contributors' Deliveries.
At the Closing, the Contributors shall deliver the following to the
Acquirer in addition to all other items required to be delivered to the Acquirer
by the Contributors:
(a) Contribution and Assignment of Contributed Interests. Each
Contributor shall have executed and delivered a Contribution and Assignment, in
substantially the form of Exhibit A attached hereto, contributing, assigning,
granting and conveying to the Acquirer good and indefeasible title to the
Contributed Interests owned by such Contributor, free and clear of all liens,
encumbrances, security interests, prior assignments, conditions, restrictions,
claims, and other matters affecting title thereto.
(b) Bring-Down Certificate. A certificate signed by both Contributors
that all conditions to the Acquirer's obligations set forth in Section 3.1
hereof have been satisfied.
4.3 Acquirer's Deliveries.
At the Closing, the Acquirer shall deliver the following:
(a) Certificates for Shares of Common Stock. If certificates are
issued, certificates representing shares of Common Stock duly issued by the
Acquirer in the name of the Contributors as of the Closing Date representing the
shares of Common Stock to which the Contributors are entitled pursuant to
Section 1.2 of this Agreement.
(b) Bring-Down Certificate. A certificate signed by an authorized
officer of the Acquirer that all conditions to the Contributors' obligations set
forth in Section 3.2 hereof have been satisfied.
4.4 Fees and Expenses; Closing Costs.
The Acquirer shall pay all fees, expenses and closing costs relating to
the transactions contemplated by this Agreement.
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ARTICLE V
MISCELLANEOUS
5.1 Notices.
Any notice provided for by this Agreement and any other notice, demand,
or communication required hereunder shall be in writing and either delivered in
person (including by confirmed facsimile transmission) or sent by hand delivered
against receipt or sent by recognized overnight delivery service or by certified
or registered mail, postage prepaid, with return receipt requested. All notices
shall be addressed as follows:
Acquirer:
---------
New York Mortgage Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Fax No.: (000) 000-0000
with a copy to:
---------------
Hunton & Xxxxxxxx LLP
Riverfront Plaza, East Tower
000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. XxXxx, Esq.
Fax No.: (000) 000-0000
Contributors:
-------------
Xxxxxx X. Xxxxxxx
c/o The New York Mortgage Company, LLC
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Xxxxxx X. Xxxxxxx Annuity Trust X/X Xxxxx 00, 0000
x/x Xxx Xxx Xxxx Mortgage Company, LLC
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
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Xxxxxx X. Xxxxxx
c/o The New York Mortgage Company, LLC
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
and
2004 Xxxxxx X. Xxxxxx Grantor Retained Annuity Trust
c/o The New York Mortgage Company, LLC
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Any address or name specified above may be changed by a notice given by
the addressee to the other party. Any notice, demand or other communication
shall be deemed given and effective as of the date of delivery in person or
receipt set forth on the return receipt. The inability to deliver because of
changed address of which no notice was given, or rejection or other refusal to
accept any notice, demand or other communication, shall be deemed to be receipt
of the notice, demand or other communication as of the date of such attempt to
deliver or rejection or refusal to accept.
5.2 Entire Agreement; Modifications and Waivers; Cumulative Remedies.
This Agreement supersedes any existing letter of intent between the
parties, constitutes the entire agreement among the parties hereto and may not
be modified or amended except by instrument in writing signed by the parties
hereto, and no provisions or conditions may be waived other than by a writing
signed by the party waiving such provisions or conditions. No delay or omission
in the exercise of any right or remedy accruing to the Contributors or the
Acquirer upon any breach under this Agreement shall impair such right or remedy
or be construed as a waiver of any such breach theretofore or thereafter
occurring. The waiver by the Contributors or the Acquirer of any breach of any
term, covenant, or condition herein stated shall not be deemed to be a waiver of
any other breach, or of a subsequent breach of the same or any other term,
covenant, or condition herein contained. All rights, powers, options, or
remedies afforded to Contributors or the Acquirer either hereunder or by law
shall be cumulative and not alternative, and the exercise of one right, power,
option, or remedy shall not bar other rights, powers, options, or remedies
allowed herein or by law, unless expressly provided to the contrary herein.
5.3 Exhibits.
All exhibits referred to in this Agreement and attached hereto are
hereby incorporated in this Agreement by reference.
5.4 Successors and Assigns.
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Upon the request of the Acquirer, the Contributors agree to transfer at
Closing the Contributed Interests (or portions thereof) to the Acquirer or to
one or more wholly-controlled affiliates of the Acquirer. Except as set forth
above or elsewhere in this Agreement, this Agreement may not be assigned by the
Acquirer or the Contributors without the prior approval of the other party
hereto. This Agreement shall be binding upon, and inure to the benefit of, the
Contributors, the Acquirer, and their respective legal representatives,
successors, and permitted assigns.
5.5 Article Headings.
Article headings and article and section numbers are inserted herein
only as a matter of convenience and in no way define, limit, or prescribe the
scope or intent of this Agreement or any part hereof and shall not be considered
in interpreting or construing this Agreement.
5.6 Governing Law.
This Agreement shall be construed and interpreted in accordance with
the laws of the State of New York, without regard to conflicts of laws
principles.
5.7 Counterparts.
This Agreement may be executed in any number of counterparts and by any
party hereto on a separate counterpart, each of which when so executed and
delivered shall be deemed an original and all of which taken together shall
constitute but one and the same instrument.
5.8 Survival.
All representations and warranties contained in this Agreement, and all
covenants and agreements contained in the Agreement which contemplate
performance after the Closing Date (including, without limitation, those
covenants and agreements contained in Section 2.5 hereof) shall survive the
Closing.
5.9 Further Acts.
In addition to the acts, instruments and agreements recited herein and
contemplated to be performed, executed and delivered by the Acquirer and the
Contributors, the Acquirer and Contributors shall perform, execute, and deliver
or cause to be performed, executed, and delivered at the Closing or after the
Closing, any and all further acts, instruments, and agreements and provide such
further assurances as the other parties may reasonably require to consummate the
transaction contemplated hereunder.
5.10 Severability.
In case any one or more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provision hereof, and this Agreement shall be construed as if such
invalid, illegal, or unenforceable provision had never been contained herein.
- 12 -
5.11 Attorneys' Fees.
Should a party employ an attorney or attorneys to enforce any of the
provisions hereof or to protect its interest in any manner arising under this
Agreement, or to recover damages for breach of this Agreement, any
non-prevailing party in any action pursued in a court of competent jurisdiction
(the finality of which is not legally contested) shall pay to the prevailing
party all reasonable costs, damages, and expenses, including reasonable
attorneys' fees, expended or incurred in connection therewith.
5.12 Confidentiality.
The Contributors acknowledge that the matters relating to the Acquirer,
the IPO, this Agreement, and the other documents, terms, conditions and
information related thereto (collectively, the "Information") are confidential
in nature. Therefore, the Contributors covenant and agree to keep the
Information confidential and will not (except as required by applicable law,
regulation or legal process including applicable securities laws), without the
Acquirer's prior written consent, disclose any Information in any manner
whatsoever; provided, however, that the Information may be revealed only to the
Contributors' key employees, legal counsel and financial advisors, each of whom
shall be informed of the confidential nature of the Information and shall agree
to act in accordance with the terms of this Section 5.12. In the event that the
Contributors or their key employees, legal counsel or financial advisors
(collectively, the "Information Group") are requested pursuant to, or required
by, applicable law (other than in connection with the IPO), regulation or legal
process to disclose any of the Information, the applicable member of the
Information Group will notify the Acquirer promptly so that it may seek a
protective order or other appropriate remedy or, in its sole discretion, waive
compliance with the terms of this Section 5.12. In the event that no such
protective order or other remedy is obtained, or that the Acquirer waives
compliance with the terms of this Section 5.12, the applicable member of the
Information Group may furnish only that portion of the Information which it is
advised by counsel is legally required and will exercise all reasonable efforts
to obtain reliable assurance that confidential treatment will be accorded the
Information. The Contributors acknowledge that remedies at law may be inadequate
to protect the Acquirer against any actual or threatened breach of this Section
5.12, and, without prejudice to any other rights and remedies otherwise
available, the Contributors agree to the granting of injunctive relief in favor
of the Acquirer without proof of actual damages. Notwithstanding any other
express or implied agreement to the contrary, the parties agree and acknowledge
that each of them and each of their employees, representatives, and other agents
may disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to any of them
relating to such tax treatment and tax structure, except to the extent that
confidentiality is reasonably necessary to comply with U.S. federal or state
securities laws. For purposes of this paragraph, the terms "tax treatment" and
"tax structure" have the meanings specified in Treasury Regulation section
1.6011-4(c).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
[SIGNATURES APPEAR ON FOLLOWING PAGE.]
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IN WITNESS WHEREOF, this Agreement has been entered into effective as
of the 25th day of March, 2003.
CONTRIBUTORS: XXXXXX X. XXXXXXX, a member of The New York
Mortgage Company, LLC
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Member of The New York Mortgage Company, LLC
XXXXXX X. XXXXXXX ANNUITY TRUST U/A
MARCH 23,2004, a member of The New York
Mortgage Company, LLC
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
XXXXXX X. XXXXXX, a member of The New York
Mortgage Company, LLC
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Member of The New York Mortgage Company, LLC
2004 XXXXXX X. XXXXXX GRANTOR RETAINED
ANNUITY TRUST, a member of The New York
Mortgage Company, LLC
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
ACQUIRER: NEW YORK MORTGAGE TRUST, INC., a Maryland
corporation
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Co-Chief Executive Officer
- 14 -
EXHIBIT A
CONTRIBUTION AND ASSIGNMENT
Xxxxxx X. Xxxxxxx (the "Contributor"), the record and the beneficial
owner of a 53.05% limited liability company membership interest (the
"Contributed Interest") in The New York Mortgage Company, LLC, a New York
limited liability company, for good and valuable consideration paid to the
Contributor by New York Mortgage Trust, Inc., a Maryland corporation
("Assignee"), pursuant to the Amended and Restated Contribution Agreement dated
as of March 25, 2004, by and between the Contributors (as defined in such
Contribution Agreement) and Assignee (the "Agreement") and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, does hereby contribute, assign, transfer, convey and deliver to
the Assignee good and indefeasible title to the Contributed Interest, free and
clear of all liens, encumbrances, security interests, prior assignments,
conditions, restrictions, claims, and other matters affecting title thereto.
Capitalized terms used but not defined herein shall have the respective
meanings ascribed to them in the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Contribution
and Assignment to be signed by a duly authorized officer this __ day of _______,
2004.
CONTRIBUTOR
XXXXXX X. XXXXXXX
_____________________________
EXHIBIT A
CONTRIBUTION AND ASSIGNMENT
Xxxxxx X. Xxxxxxx Annuity Trust U/A 3/23/04 (the "Contributor"), the
record owner of a 16.95% limited liability company membership interest (the
"Contributed Interest") in The New York Mortgage Company, LLC, a New York
limited liability company, for good and valuable consideration paid to the
Contributor by New York Mortgage Trust, Inc., a Maryland corporation
("Assignee"), pursuant to the Amended and Restated Contribution Agreement dated
as of March 25, 2004, by and between the Contributors (as defined in such
Contribution Agreement) and Assignee (the "Agreement") and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, does hereby contribute, assign, transfer, convey and deliver to
the Assignee good and indefeasible title to the Contributed Interest, free and
clear of all liens, encumbrances, security interests, prior assignments,
conditions, restrictions, claims, and other matters affecting title thereto.
Capitalized terms used but not defined herein shall have the respective
meanings ascribed to them in the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Contribution
and Assignment to be signed by a duly authorized officer this ___ day of ______,
2004.
CONTRIBUTOR
XXXXXX X. XXXXXXX ANNUITY TRUST U/A 3/23/04
By: ___________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
EXHIBIT A
CONTRIBUTION AND ASSIGNMENT
Xxxxxx X. Xxxxxx (the "Contributor"), the record and the beneficial
owner of a 25.16% limited liability company membership interest (the
"Contributed Interest") in The New York Mortgage Company, LLC, a New York
limited liability company, for good and valuable consideration paid to the
Contributor by New York Mortgage Trust, Inc., a Maryland corporation
("Assignee"), pursuant to the Amended and Restated Contribution Agreement dated
as of March 25, 2004, by and between the Contributors (as defined in such
Contribution Agreement) and Assignee (the "Agreement") and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, does hereby contribute, assign, transfer, convey and deliver to
the Assignee good and indefeasible title to the Contributed Interest, free and
clear of all liens, encumbrances, security interests, prior assignments,
conditions, restrictions, claims, and other matters affecting title thereto.
Capitalized terms used but not defined herein shall have the respective
meanings ascribed to them in the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Contribution
and Assignment to be signed by a duly authorized officer this __ day of _______,
2004.
CONTRIBUTOR
XXXXXX X. XXXXXX
_________________________________
EXHIBIT A
CONTRIBUTION AND ASSIGNMENT
2004 Xxxxxx X. Xxxxxx Grantor Retained Annuity Trust (the
"Contributor"), the record owner of a 4.84% limited liability company membership
interest (the "Contributed Interest") in The New York Mortgage Company, LLC, a
New York limited liability company, for good and valuable consideration paid to
the Contributor by New York Mortgage Trust, Inc., a Maryland corporation
("Assignee"), pursuant to the Amended and Restated Contribution Agreement dated
as of March 25, 2004, by and between the Contributors (as defined in such
Contribution Agreement) and Assignee (the "Agreement") and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, does hereby contribute, assign, transfer, convey and deliver to
the Assignee good and indefeasible title to the Contributed Interest, free and
clear of all liens, encumbrances, security interests, prior assignments,
conditions, restrictions, claims, and other matters affecting title thereto.
Capitalized terms used but not defined herein shall have the respective
meanings ascribed to them in the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Contribution
and Assignment to be signed by a duly authorized officer this ___ day of ______,
2004.
CONTRIBUTOR
2004 XXXXXX X. XXXXXX GRANTOR RETAINED
ANNUITY TRUST
By: ____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Trustee
