Exhibit 10.89
EXECUTION COPY
AMENDED AND RESTATED AGREEMENT
BY AND AMONG
NEW YORK MORTGAGE TRUST, INC.,
A MARYLAND CORPORATION
THE NEW YORK MORTGAGE COMPANY, LLC,
A NEW YORK LIMITED LIABILITY COMPANY
XXXXXX X. XXXXXXX, AND
XXXXXX X. XXXXXX
April 29, 2004
TABLE OF CONTENTS
Page
ARTICLE I REPAYMENT OF NOTES............................................................ 1
1.1 Obligations of NYMT and NYMC........................................ 1
1.2 Payment and Delivery Instructions................................... 2
ARTICLE II REPRESENTATIONS AND WARRANTIES............................................... 2
2.1 Representations and Warranties by NYMT.............................. 2
2.2 Representations and Warranties by NYMC.............................. 2
2.3 Representations and Warranties by Xxxxxxx and Xxxxxx................ 3
ARTICLE III CONDITIONS PRECEDENT TO THE CLOSING......................................... 3
3.1 Conditions to NYMT's Obligations.................................... 3
3.2 Conditions to NYMC's Obligations.................................... 3
ARTICLE IV CLOSING AND CLOSING DOCUMENTS................................................ 4
4.1 Closing............................................................. 4
4.2 Xxxxxxx'x and Xxxxxx'x Deliveries................................... 4
4.3 NYMT's Deliveries................................................... 4
4.4 NYMC's Deliveries................................................... 4
4.5 Fees and Expenses; Closing Costs.................................... 5
ARTICLE V MISCELLANEOUS................................................................. 5
5.1 Notices............................................................. 5
5.2 Entire Agreement; Modifications and Waivers; Cumulative Remedies.... 6
5.3 Successors and Assigns.............................................. 7
5.4 Article Headings.................................................... 7
5.5 Governing Law....................................................... 7
5.6 Counterparts........................................................ 7
5.7 Survival............................................................ 7
5.8 Further Acts........................................................ 8
5.9 Severability........................................................ 8
5.10 Attorneys' Fees..................................................... 8
AMENDED AND RESTATED AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT (this "Agreement"), made as of the
29th day of April, 2004, by and among NEW YORK MORTGAGE TRUST, INC., a Maryland
corporation ("NYMT"), THE NEW YORK MORTGAGE COMPANY, LLC, a New York limited
liability company ("NYMC"), XXXXXX X. XXXXXXX, an individual ("Xxxxxxx") and
XXXXXX X. XXXXXX, an individual ("Xxxxxx"), amends and restates in its entirety
that certain Agreement, dated as of the 23rd day of December, 2003, by and among
NYMT, NYMC, Xxxxxxx and Xxxxxx.
RECITALS
A. NYMT has filed a registration statement on Form S-11, as amended, in
connection with the proposed initial public offering of the common stock, par
value $0.01 per share, of NYMT ("Common Stock"), which initial public offering
(the "IPO").
X. Xxxxxxx holds a promissory note, dated August 31, 2003, as amended and
restated on December 23, 2003, and as further amended and restated on February
26, 2004, in the principal amount of $11,432,550.00, due and payable by NYMC no
later than April 30, 2004 (the "Xxxxxxx Note") and Xxxxxx holds a promissory
note, dated August 31, 2003, as amended and restated on December 23, 2003, and
as further amended and restated on February 26, 2004, in the principal amount of
$2,274,352.00, due and payable by NYMC no later than April 30, 2004 (the "Xxxxxx
Note" and, together with the Xxxxxxx Note, the "Notes").
C. NYMT desires to fund the repayment by NYMC of the Notes, to the extent
they are still outstanding as of the closing date of the IPO (the "Closing
Date"), by contributing to NYMC funds in an amount sufficient to effect such
repayments out of the net proceeds of the IPO.
X. Xxxxxxx and Xxxxxx desire to grant NYMC an extension of the maturity
dates of the Notes to the Closing Date.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
REPAYMENT OF NOTES
1.1 Obligations of NYMT and NYMC.
NYMT hereby agrees to contribute to NYMC on the Closing Date out of the
net proceeds received by NYMT from the IPO an amount sufficient to enable NYMC
to pay in full, and
NYMC hereby agrees to pay in full promptly upon receipt of such contribution,
the entire principal and all accrued but unpaid interest under the Notes
outstanding as of the Closing Date in accordance with the terms thereof.
1.2 Payment and Delivery Instructions
Xxxxxxx and Xxxxxx shall each provide written instructions to NYMT and
NYMC at least 48 hours prior to the Closing Date setting out wire transfer
instructions for the payments specified in Section 1.1.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties by NYMT.
NYMT hereby represents and warrants to NYMC, Xxxxxxx and Xxxxxx as of the
date of this Agreement and as of the Closing Date as follows:
(a) Organization and Power. NYMT 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 NYMT of its obligations
hereunder have been duly authorized by all requisite action of NYMT and require
no further action or approval of NYMT's stockholders or of any other individuals
or entities in order to constitute this Agreement as a binding and enforceable
obligation of NYMT.
(b) Noncontravention. Neither the entry into nor the performance of,
or compliance with, this Agreement by NYMT 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 NYMT.
2.2 Representations and Warranties by NYMC.
NYMC hereby represents and warrants to NYMT, Xxxxxxx and Xxxxxx as of the
date of this Agreement and as of the Closing Date as follows:
(a) Organization and Power. NYMC is validly existing and in good
standing under the laws of the State of New York, 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 NYMC of its obligations hereunder have been
duly authorized by all requisite action of NYMC and require no further action or
approval of NYMC's stockholders or of any other individuals or entities in order
to constitute this Agreement as a binding and enforceable obligation of NYMC.
(b) Noncontravention. Neither the entry into nor the performance of,
or compliance with, this Agreement by NYMC has resulted, or will result, in any
violation of, or
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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
NYMC.
2.3 Representations and Warranties by Xxxxxxx and Xxxxxx.
Each of Xxxxxxx and Xxxxxx hereby severally, and not jointly, makes the
following representations and warranties as of the date of this Agreement as of
the Closing Date:
(a) Holders in Due Course. Xxxxxxx is the holder in due course of
the Xxxxxxx Note. Xxxxxx is the holder in due course of the Xxxxxx Note.
(b) Tax Advice. Xxxxxxx and Xxxxxx have each obtained from their own
personal tax advisors advice regarding the transaction contemplated by this
Agreement, including, without limitation, the tax consequences of the
transactions contemplated hereby.
ARTICLE III
CONDITIONS PRECEDENT TO THE CLOSING
3.1 Conditions to NYMT's Obligations.
NYMT's obligation to perform its obligations hereunder on the Closing Date
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 NYMT's obligations under this Agreement.
(a) Representations and Warranties of NYMC, Xxxxxxx and Xxxxxx. The
representations and warranties of NYMC set forth in Section 2.2 and of each of
Xxxxxxx and Xxxxxx set forth in Section 2.3 shall be true and correct as if made
again on the Closing Date.
(b) Completion of Contribution Agreement. The transactions
contemplated by the Contribution Agreement shall have been completed.
(c) Completion of IPO. The IPO shall have been completed.
3.2 Conditions to NYMC's Obligations.
NYMC's obligation to perform its obligations hereunder on the Closing Date
is 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 NYMC's obligations under this Agreement.
(a) NYMT's Obligations. NYMT shall have performed all covenants,
agreements and other obligations of NYMT hereunder which are to be performed on
the Closing Date.
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(b) Representations and Warranties of NYMT, Xxxxxxx and Xxxxxx. The
representations and warranties of NYMT set forth in Section 2.1 and of each of
Xxxxxxx and Xxxxxx set forth in Section 2.3 shall be true and correct as if made
again on the Closing Date.
(c) Completion of Contribution Agreement. The transactions
contemplated by that certain Second Amended and Restated Contribution Agreement,
dated as of April 29, 2004, by and among Xxxxxxx, the Xxxxxx X. Xxxxxxx Annuity
Trust 3/25/02, Xxxxxx, the 2004 Xxxxxx X. Xxxxxx Grantor Retained Annuity Trust
and NYMT (the "Contribution Agreement"), shall have been completed.
(d) Completion of IPO. The IPO shall have been completed.
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 NYMC in New
York, New York, or such other place as is mutually agreeable to the parties, on
the Closing Date; provided, that this Agreement shall be terminated and the
parties shall have no obligations hereunder if Closing Date does not occur by
May 31, 2004. In the event this Agreement is terminated, NYMC's obligations
under the Notes shall remain in full force and effect.
4.2 Xxxxxxx'x and Xxxxxx'x Deliveries.
At the Closing, upon confirmation of receipt of payment in full of all
amounts owing under the Notes, Xxxxxxx and Xxxxxx shall deliver the following to
NYMC:
(a) The Notes. Xxxxxxx and Xxxxxx shall deliver the original Notes
to NYMC.
4.3 NYMT's Deliveries.
At the Closing, NYMT shall deliver the following:
(a) Contribution to NYMC of an amount sufficient to enable NYMC to
pay in full the entire principal and all accrued but unpaid interest under the
Notes outstanding as of the Closing Date in accordance with the terms thereof.
(b) Bring-Down Certificate. A certificate signed by an authorized
officer of NYMT that all conditions to NYMC's obligations set forth in Section
3.2 hereof have been satisfied.
4.4 NYMC's Deliveries.
At the Closing, NYMT shall deliver the following:
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(a) Payment by NYMC to Xxxxxxx and Xxxxxx, respectively, in
accordance with the written instructions delivered by them pursuant to Section
1.2 hereof, of the entire principal and all accrued but unpaid interest under
the Notes outstanding as of the Closing Date in accordance with the terms
thereof.
(b) Bring-Down Certificate. A certificate signed by an authorized
officer of NYMC that all conditions to NYMT's obligations set forth in Section
3.1 hereof have been satisfied.
4.5 Fees and Expenses; Closing Costs.
NYMT shall pay all fees, expenses and closing costs relating to the
transactions contemplated by this Agreement.
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:
NYMT:
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
NYMC:
New York Mortgage Trust, Inc.
1301 Avenue of the Xxxxxxxx
0
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
Xxxxxxx:
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:
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
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 any party upon any breach
under this Agreement by another party shall impair such right or remedy or be
construed as a
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waiver of any such breach theretofore or thereafter occurring. The waiver by any
party 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 the parties 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 Successors and Assigns.
This Agreement may not be assigned by any party hereto without the prior
written approval of the other parties hereto. This Agreement shall be binding
upon, and inure to the benefit of, each of the parties, and their respective
legal representatives, successors, and permitted assigns.
5.4 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.
5.5 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.
5.6 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.
5.7 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 shall survive the Closing.
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5.8 Further Acts.
In addition to the acts, instruments and agreements recited herein and
contemplated to be performed, executed and delivered by the parties, the parties
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.
5.9 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.
5.10 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.
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[SIGNATURES APPEAR ON FOLLOWING PAGE.]
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IN WITNESS WHEREOF, this Agreement has been entered into effective as of
the 29th day of April, 2004.
NEW YORK MORTGAGE TRUST, INC.,
a Maryland corporation
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
Title: Co-Chief Executive Officer
THE NEW YORK MORTGAGE COMPANY, LLC,
a New York limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx
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