Exhibit 1.1
NEW YORK MORTGAGE TRUST, INC.
SHARES OF COMMON STOCK
UNDERWRITING AGREEMENT
June 23, 2004
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
as Representative of the several Underwriters
1001 19th Street North
Arlington, Virginia 22209
Dear Sirs:
Each of New York Mortgage Trust, Inc. a Maryland corporation (the
"Company") and The New York Mortgage Company, LLC, a New York limited liability
company ("NYMC"), and, with respect only to Sections 3 and 4(b) hereof, Steven
B. Schnall ("Schnall") and Joseph V. Fierro ("Fierro" and, together with
Schnall, the "Founding Members") confirms its agreement with each of the
Underwriters listed on Schedule I hereto (collectively, the "Underwriters"), for
whom Friedman, Billings, Ramsey & Co., Inc. is acting as representative (in such
capacity, the "Representative"), with respect to (i) the sale by the Company of
15,000,000 shares (the "Initial Shares") of common stock, par value $0.01 per
share, of the Company ("Common Stock"), and the purchase by the Underwriters,
acting severally and not jointly, of the respective number of shares of Common
Stock set forth opposite the names of the Underwriters in Schedule I hereto and
(ii) the grant of the option described in Section 1(b) hereof to purchase all or
any part of 2,250,000 additional shares of Common Stock (the "Option Shares") to
cover over-allotments, if any, from the Company, to the Underwriters, acting
severally and not jointly, in the respective numbers of shares of Common Stock
set forth opposite the names of the Underwriters in Schedule I hereto. The
15,000,000 shares of Common Stock to be purchased by the Underwriters described
in Section 1(a) and all or any part of the 2,250,000 shares of Common Stock
subject to the option described in Section l(b) hereof are hereinafter called,
collectively, the "Shares."
The Company has filed with the Securities and Exchange Commission (the
Commission"), a registration statement on Form S-11 (No. 333-111668) for the
registration of the Shares under the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations thereunder (the "Securities Act
Regulations") which contains a form of prospectus to be used in connection with
the public offering and sale of Shares. The Company has prepared and filed such
amendments thereto, if any, and such amended preliminary prospectuses, if any,
as may have been required to the date hereof, and will file such additional
amendments thereto and such amended prospectuses as may hereafter be required
under the Securities Act and Securities Act Regulations. The registration
statement has been declared effective under the Securities Act by the
Commission. The registration statement as amended at the time it became
effective (including all information deemed (whether by incorporation by
reference or otherwise) to be a part of the registration statement at the time
it became effective pursuant to Rule 430A(b) of the Securities Act Regulations)
is hereinafter called the "Registration Statement," except that, if the
Company files a post-effective amendment to such registration statement which
becomes effective prior to the Closing Time (as defined below), "Registration
Statement" shall refer to such registration statement as so amended. Any
registration statement filed pursuant to Rule 462(b) of the Securities Act
Regulations is hereinafter called the "Rule 462(b) Registration Statement," and
after such filing the term "Registration Statement" shall include the 462(b)
Registration Statement. Each prospectus included in the Registration Statement,
including amendments thereof or supplements thereto, before the Registration
Statement became effective under the Securities Act which was filed with the
Commission by the Company with the consent of the Underwriters pursuant to Rule
424(a) of the Securities Act Regulations and distributed to prospective
investors in connection with the offering of the Shares is hereinafter called
the "Preliminary Prospectus." The term "`Prospectus" means the final prospectus,
as first filed with the Commission pursuant to Rule 424(b) of the Securities Act
Regulations, and any amendments thereof or supplements thereto. The Commission
has not issued any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus.
The Company and the Underwriters agree as follows:
1. Sale and Purchase:
(a) Initial Shares. Upon the basis of the warranties and
representations and other terms and conditions herein set forth, at the
purchase price per share of $9.00, the Company agrees to sell to the
Underwriters the number of Initial Shares set forth in Schedule I opposite
their names, and each Underwriter agrees, severally and not jointly, to
purchase from the Company the number of Initial Shares set forth in
Schedule I opposite such Underwriter's name, plus any additional number of
Initial Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 8 hereof, subject in each case, to
such adjustments among the Underwriters as the Representative in its sole
discretion shall make to eliminate any sales or purchases of fractional
shares.
(b) Option Shares. In addition, upon the basis of the warranties and
representations and other terms and conditions herein set forth, the
Company hereby grants an option to the Underwriters, acting severally and
not jointly, to purchase from the Company, all or any part of the Option
Shares at the purchase price per share set forth in paragraph (a), plus
any additional number of Option Shares which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 8 hereof. The
option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time (but in no event in more
than two installments) only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Shares upon written notice by the Representative to the Company
setting forth the number of Option Shares as to which the several
Underwriters are then exercising the option and the time and date of
payment and delivery for such Option Shares. Any such time and date of
delivery (a "Date of Delivery") shall be determined by the Representative,
but shall not be later than three full business days (or earlier, without
the consent of the Company, than two full business days) after the
exercise of such option, nor in any event prior to the Closing Time, as
hereinafter defined.
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If the option is exercised as to all or any portion of the Option Shares,
the Company will sell such Option Shares to the Underwriters, and each of
the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Shares then being purchased which
the number of Initial Shares set forth in Schedule I opposite the name of
such Underwriter bears to the total number of Initial Shares, subject in
each case to such adjustments among the Underwriters as the Representative
in its sole discretion shall make to eliminate any sales or purchases of
fractional shares.
2. Payment and Delivery
(a) Initial Shares. The Shares to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as the Representative may request upon at least
forty-eight hours' prior written notice to the Company, shall be delivered
by or on behalf of the Company to the Representative, including, at the
option of the Representative, through the facilities of The Depository
Trust Company ("DTC") for the account of such Underwriter, against payment
by or on behalf of such Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified to the
Representative by the Company upon at least forty-eight hours' prior
written notice. To the extent the Representative requests that the Initial
Shares be delivered in certificated form and not in book-entry form
through the facilities of DTC, the Company will cause the certificates
representing the Initial Shares to be made available for checking and
packaging at least twenty-four hours prior to the Closing Time (as defined
below) with respect thereto at the office of the Representative, 1001 19th
Street North, Arlington, Virginia 22209, or at the office of DTC or its
designated custodian, as the case may be (the "Designated Office"). The
time and date of delivery of and payment for the Initial Shares shall be
9:30 a.m., New York City time, on the third (fourth, if pricing occurs
after 4:30 p.m., New York City time) business day after the date hereof
(unless another time and date shall be agreed to by the Representative and
the Company). The time at which such payment and delivery are actually
made is hereinafter sometimes called the "Closing Time" and the date of
delivery of both Initial Shares and Option Shares is hereinafter sometimes
called the "Date of Delivery." Delivery of and payment for the Initial
Shares shall occur at the Richmond, Virginia offices of Hunton & Williams
LLP.
(b) Option Shares. Any Option Shares to be purchased by each
Underwriter hereunder, in definitive form, and in such authorized
denominations and registered in such names as the Representative may
request upon at least forty-eight hours' prior written notice to the
Company shall be delivered by or on behalf of the Company to the
Representative, including, at the option of the Representative, through
the facilities of DTC for the account of such Underwriter, against payment
by or on behalf of such Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified to the
Representative by the Company upon at least forty-eight hours' prior
written notice. To the extent the Representative requests that the Option
Shares be delivered in certificated form and not in book-entry form
through the facilities of DTC, the Company will cause the certificates
representing the Option Shares to be made available for checking and
packaging at least twenty-four hours prior to the Date of
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Delivery with respect thereto at the Designated Office. The time and date
of delivery of and payment for such Option Shares shall be 9:30 a.m., New
York City time, on the date specified by the Representative in the notice
given by the Representative to the Company of the Underwriters' election
to purchase such Option Shares or on such other time and date as the
Company and the Representative may agree upon in writing. Delivery of and
payment for the Option Shares shall occur at the Richmond, Virginia
offices of Hunton & Williams LLP.
(c) Directed Shares. It is understood that approximately 500,000
shares of the Initial Shares ("Directed Shares") initially will be
reserved by the Underwriters for offer and sale to officers, employees,
directors and related persons ("Directed Share Participants") upon the
terms and conditions set forth in the Prospectus and in accordance with
the rules and regulations of the National Association of Securities
Dealers, Inc. (the "NASD" and such program for such offer and sale, the
"Directed Share Program"). Under no circumstances will the Representative
or any Underwriter be liable to the Company or to any Directed Share
Participant for any action taken or omitted to be taken in good faith in
connection with such Directed Share Program. To the extent that any
Directed Shares are not affirmatively reconfirmed for purchase by any
Directed Share Participant on or immediately after the date of this
Agreement, such Directed Shares may be offered to the public as part of
the public offering contemplated herein.
3. Representations and Warranties of the Company:
The Company, NYMC and each of the Founding Members, jointly and
severally, represent and warrant to the Underwriters that:
(a) The outstanding shares of capital stock or membership interests,
as applicable, of the Company, NYMC and New York Mortgage Funding, LLC, a
Delaware limited liability company ("NYMF") have been duly and validly
authorized and issued and are fully paid and non-assessable, and all of
the outstanding membership interests of NYMF are and, following payment of
the consideration for the Company's acquisition of NYMC described in the
Prospectus, all of the outstanding membership interests of NYMC will be,
directly or indirectly owned of record and beneficially by the Company
free and clear of any security interest, mortgage, pledge, lien, claim,
restriction or encumbrance; except as disclosed in the Prospectus, there
are no outstanding (i) securities or obligations of the Company, NYMC or
NYMF convertible into or exchangeable for any capital stock or membership
interests of the Company, NYMC or NYMF, (ii) warrants, rights or options
to subscribe for or purchase from the Company, NYMC or NYMF any such
capital stock or membership interests or any such convertible or
exchangeable securities or obligations, or (iii) obligations of the
Company, NYMC or NYMF to issue any shares of capital stock or membership
interests, any such convertible or exchangeable securities or obligation,
or any such warrants, rights or options; except as disclosed in the
prospectus and named in Exhibit 21 to the Registration Statement, neither
the Company, nor NYMC nor NYMF has any subsidiaries or owns, directly or
indirectly, any capital stock or other equity securities of any other
corporation or any ownership interest in any partnership, joint venture or
other entity.
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(b) The authorized capital stock, and the number of issued and
outstanding shares of Common Stock, of the Company, on an actual basis, on
a pro forma basis after giving effect to the NYMC acquisition, and on a
pro forma as adjusted basis after giving effect to the NYMC acquisition
and the offering, are as set forth in the Prospectus. The Common Stock
(including the Shares) conforms in all material respects to the
description thereof contained in the Prospectus. None of the outstanding
shares of capital stock or membership interests, as applicable, of the
Company, NYMC or NYMF were issued in violation of any preemptive rights,
rights of first refusal or other similar rights to subscribe for or
purchase securities of the Company, NYMC or NYMF. The descriptions of the
Company's 2004 Incentive Plan, and of the options or other awards granted
thereunder, set forth in the Prospectus fairly and accurately present the
information required to be shown with respect to such plan, options or
other awards. Except as described in the Prospectus, the Company has not
sold or issued any shares of Common Stock nor have NYMC or NYMF sold or
issued any membership interests during the six-month period preceding the
date of the Prospectus.
(c) Each of the Company, NYMC and NYMF has been duly incorporated or
formed and is validly existing as a corporation or limited liability
company, as applicable, in good standing under the laws of its respective
jurisdiction of incorporation or formation with full corporate power and
authority to own its respective properties and to conduct its respective
businesses as described in the Prospectus; each of the Company and NYMC
has full corporate or limited liability company, as applicable, power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated herein and the Company has full corporate power
and authority to execute and deliver the Contribution Agreement and to
consummate the transactions contemplated therein;
(d) Each of the Company, NYMC and NYMF is duly qualified and is in
good standing as a foreign corporation or limited liability company, as
the case may be, in each jurisdiction in which it is required to be so
qualified, except where the failure to be so qualified would not
reasonably be likely, individually or in the aggregate, to have a material
adverse effect on the assets, business, operations, earnings, prospects,
properties or condition (financial or otherwise), of the Company and its
subsidiaries taken as a whole, (any such effect or change, where the
context so requires, is hereinafter called a "Material Adverse Effect" or
"Material Adverse Change"); except as disclosed in the Prospectus, NYMF is
not and NYMC will not, following the consummation of the transactions
contemplated by the Contribution Agreement, be prohibited or restricted,
directly or indirectly, from making distributions to the Company with
respect to such entity's membership interests, or from repaying to the
Company any amounts which may from time to time become due under any loans
or advances to such entity from the Company or from transferring any of
NYMF's or NYMC's property or assets to the Company;
(e) Each of the Company, NYMC and NYMF is in compliance in all
material respects with all laws, rules, regulations, orders, decrees and
judgments applicable to it,
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including those relating to transactions with affiliates, and has not
received any notice of any material actual or proposed changes in existing
federal, state, local or foreign laws, rules or regulations or any orders,
decrees or judgments applicable to it;
(f) Neither the Company, nor NYMC nor NYMF is in breach of or in
default under (nor has any event occurred which with notice, lapse of
time, or both, would constitute a breach of, or default under), its
respective organizational documents, or in the performance or observance
of any material obligation, agreement, covenant or condition contained in
any license, indenture, mortgage, deed of trust, loan or credit agreement
or other agreement or instrument to which the Company, NYMC or NYMF is a
party or by which any of them or their respective properties or assets may
be bound or affected;
(g) The execution, delivery and performance of this Agreement, and
consummation by the Company and NYMC of the transactions contemplated
herein, do not and will not (A) conflict with, or result in any breach of,
or constitute a default under (nor constitute any event which with notice,
lapse of time, or both, would constitute a breach of, or default under),
(i) any provision of the organizational documents of the Company, NYMC or
NYMF, or (ii) any provision of any license, indenture, mortgage, deed of
trust, loan or credit agreement or other agreement or instrument to which
the Company, NYMC or NYMF is a party or by which any of them or their
respective properties or assets may be bound or affected, or under any
federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Company, NYMC or NYMF; or (B) result
in the creation or imposition of any lien, charge, claim or encumbrance
upon any property or asset of the Company, NYMC or NYMF;
(h) This Agreement has been duly authorized, executed and delivered
by the Company and NYMC and constitutes the legal, valid and binding
agreement of the Company and NYMC enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, and by
general equitable principles, and except to the extent that the
indemnification and contribution provisions of Section 9 hereof may be
limited by federal or state securities laws and public policy
considerations in respect thereof;
(i) no approval, authorization, consent or order of or registration
or filing with any federal, state or local court, governmental or
regulatory commission, board, body, authority or agency is required in
connection with the Company's or NYMC's execution, delivery and
performance of this Agreement or the Company's execution, delivery and
performance of the Contribution Agreement, the consummation of the
transactions contemplated herein or therein, or the sale and delivery of
the Shares, other than (A) such as have been obtained, or will have been
obtained at the Closing Time or the relevant Date of Delivery, as the case
may be, under the Securities Act and the Securities Exchange Act of 1934
(the "Exchange Act"), (B) such approvals as have been obtained in
connection with the approval of the listing of the Shares on the New York
Stock Exchange and (C) any necessary qualification under the securities or
blue sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriters;
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(j) Each of the Company, NYMC and NYMF has obtained all material
licenses, authorizations, consents, accreditations, certifications and
approvals and has made all material filings required under any federal,
state or local law, regulation or rule, which authorizations, consents,
accreditations, certifications, approvals and filings are required in
order to conduct its business as currently conducted or as proposed to be
conducted as described in the Prospectus; neither the Company, nor NYMC,
nor NYMF is in violation of, in default under, or has received any notice
regarding a possible violation, default or revocation of, or proceeding
relating to, any such material license, authorization, consent,
accreditation, certification or approval applicable to the Company, NYMC
or NYMF; and no such license, authorization, consent, accreditation,
certification or approval contains a materially burdensome restriction
that is not adequately disclosed in the Prospectus;
(k) Each of the Registration Statement and any Rule 462(b)
Registration Statement has been declared effective by the SEC under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been
issued under the Securities Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company, are
threatened by the Commission, and, to the knowledge of the Company, the
Company has complied to the Commission's satisfaction with all requests on
the part of the Commission for additional information;
(l) Each Preliminary Prospectus, the Prospectus and all amendments
or supplements thereto, complied when filed, and comply as of the date
hereof, with the requirements of the Securities Act and the Securities Act
Regulations in all material respects; each of the Registration Statement
(including any Rule 462(b) Registration Statement) and any post-effective
amendment thereto, complied at the time it became effective and complies
as of the date hereof with the requirements of the Securities Act and the
Securities Act regulations in all material respects; the Registration
Statement did not, and any amendment thereto will not, in each case as of
the applicable effective date, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the
Prospectus or any amendment or supplement thereto did not, as of the
applicable filing date and will not, at the Closing Time and on each Date
of Delivery, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
warranty or representation with respect to any statement contained in the
Registration Statement or the Prospectus in reliance upon and in
conformity with the information concerning the Underwriters and furnished
in writing by or on behalf of the Underwriters through the Representative
to the Company expressly for use in the Registration Statement or the
Prospectus (that information being limited to that described in the
penultimate sentence of the first paragraph of Section 9(b) hereof);
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(m) The Prospectus will be identical to the version of the
Prospectus created to be transmitted to the Commission for filing via the
Electronic Data Gathering Analysis and Retrieval System ("EDGAR"), except
to the extent permitted by Regulation S-T;
(n) There are no material actions, suits, proceedings, inquiries or
investigations pending or, to the knowledge of the Company or NYMC,
threatened against or affecting the Company, NYMC or NYMF or any of their
respective officers and directors or to which the properties, assets or
rights of any such entity are subject, at law or in equity, before or by
any federal, state, local or foreign governmental or regulatory
commission, board, body, authority, arbitral panel or agency;
(o) The financial statements, including the notes thereto, included
in the Registration Statement and the Prospectus present fairly and
accurately in all material respects the consolidated financial position of
the entities to which such financial statements relate (the "Covered
Entities") as of the dates indicated and the consolidated results of
operations and changes in financial position and cash flows of the Covered
Entities for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles as
applied in the United States and on a consistent basis throughout the
periods involved and in accordance with Regulation S-X promulgated by the
Commission; the financial statement schedules included in the Registration
Statement and the amounts in the Prospectus under the captions "Summary -
Selected Historical and Pro Forma Financial Data of Our Company and NYMC",
"Capitalization" and "Selected Historical and Pro Forma Financial Data of
Our Company and NYMC" present the information purported to be shown
therein fairly and accurately in all material respects and have been
compiled on a basis consistent with the financial statements included in
the Registration Statement and the Prospectus; no other financial
statements or supporting schedules are required to be included in the
Registration Statement; the amounts in the Prospectus under the caption
"Management's Discussion and Analysis of Financial Condition and Results
of Operations" are accurately computed, fairly present the information
purported to be shown therein and have been determined on a basis
consistent with the financial statements included in the Registration
Statement and the Prospectus; the unaudited pro forma financial
information (including the related notes) included in the Prospectus
present fairly and accurately in all material respects the information
purported to be contained therein, complies in all material respects with
the applicable accounting requirements of the Securities Act and the
Securities Act Regulations, and management of the Company believes that
the assumptions underlying the pro forma adjustments are reasonable and
that the adjustments applied therein are appropriate to give effect to the
transactions and circumstances referred to therein; such pro forma
adjustments have been properly applied to the historical amounts in the
compilation of the information and such information fairly presents with
respect to the Company, NYMC and NYMF, the financial position, results of
operations and other information purported to be shown therein at the
respective dates and for the respective periods specified; no other
financial statements or pro forma financial information is required under
applicable law or the rules and regulations of the SEC to be included in
the Registration Statement or the Prospectus;
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(p) Deloitte & Touche LLP, whose reports on the consolidated
financial statements of the Company, NYMC and NYMF are filed with the
Commission as part of the Registration Statement and Prospectus are, and
were during the periods covered by their reports, independent public
accountants with respect to each of the Company, NYMC and NYMF as required
by the Securities Act, the Securities Act Regulations and the
Sarbanes-Oxley Act of 2002, as amended and the rules and regulations of
the Commission thereunder (together, the "Sarbanes-Oxley Act");
(q) Subsequent to the respective dates as of which information is
given in the most recent Preliminary Prospectus, and except as may be
otherwise stated in such Preliminary Prospectus, there has not been (A)
any Material Adverse Change or any event or development including, but not
limited to any loss or damage (whether or not insured) to the property of
the Company, NYMC or NYMF, that could reasonably be expected to have a
Material Adverse Effect, whether or not arising in the ordinary course of
business, (B) any transaction that is material to the Company, NYMC and
NYMF taken as a whole, entered into by the Company, NYMC or NYMF, (C) any
liability or obligation, contingent or otherwise, directly or indirectly
incurred by the Company, NYMC or NYMF that is material to the Company and
its subsidiaries taken as a whole, (D) any dividend or distribution of any
kind declared, paid or made by the Company or NYMC on any class of its
capital stock or membership interests or any repurchase or redemption by
the Company or NYMC of any class of capital stock or other equity
interests, or (E) any change in the capital stock or membership interests,
as applicable, or long-term debt or short-term borrowings of the Company,
NYMC or NYMF;
(r) There are no persons with registration or other similar rights
to have any equity or debt securities, including securities which are
convertible into or exchangeable for equity securities, registered
pursuant to the Registration Statement or otherwise registered by the
Company, NYMC or NYMF under the Securities Act;
(s) The Shares have been duly authorized and, when issued and duly
delivered against payment therefor as contemplated by this Agreement, will
be validly issued, fully paid and non-assessable, free and clear of any
security interest, mortgage, pledge, lien, claim, restriction or
encumbrance, and the issuance and sale of the Shares by the Company is not
subject to preemptive or other similar rights arising by operation of law,
under the organizational documents of the Company or under any agreement
to which the Company, NYMC or NYMF is a party or otherwise;
(t) The Common Stock is registered pursuant to Section 12(b) of the
Exchange Act and the Shares have been approved for listing on the New York
Stock Exchange, subject only to official notice of issuance;
(u) The Company has not taken, and will not take, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares;
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(v) Neither the Company nor any of its affiliates (i) is required to
register as a "broker" or "dealer" in accordance with the provisions of
the Exchange Act, or the rules and regulations thereunder (the "Exchange
Act Regulations"), or (ii) directly, or indirectly through one or more
intermediaries, controls or has any other association with (within the
meaning of Article I of the By-laws of the NASD) any member firm of the
NASD;
(w) The Company has not relied upon the Representative or legal
counsel for the Representative for any legal, tax or accounting advice in
connection with the offering and sale of the Shares, other than with
respect to applicable state securities or "blue sky" laws and foreign
securities laws;
(x) Any certificate signed by any officer of the Company, NYMC or
NYMF delivered to the Representative or to counsel for the Underwriters
pursuant to or in connection with this Agreement shall be deemed a
representation and warranty by the Company, NYMC and each of the Founding
Members jointly and severally, to each Underwriter as to the matters
covered thereby;
(y) The form of certificate used to evidence the Common Stock, as
filed with the Commission as Exhibit 4.1 to the Registration Statement,
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the organizational
documents of the Company and the requirements of the New York Stock
Exchange;
(z) Neither the Company, nor NYMC nor NYMF owns or has previously
owned any real property other than real property owned by NYMC as a result
of foreclosures in the ordinary course of business; each of the Company,
NYMC and NYMF have good title to all personal property owned by them, in
each case free and clear of all liens, security interests, pledges,
charges, encumbrances, mortgages and defects, except such as are disclosed
in the Prospectus or such as do not materially and adversely affect the
value of such property and do not interfere with the use made or proposed
to be made of such property by the Company, NYMC or NYMF, as the case may
be; and any real property and buildings held under lease by the Company,
NYMC or NYMF are held under valid, existing and enforceable leases, with
such exceptions as are disclosed in the Prospectus or are not material and
do not interfere with the use made or proposed to be made of such property
and buildings by the Company, NYMC or NYMF;
(aa) The descriptions in the Registration Statement and the
Prospectus of legal or governmental proceedings, contracts, agreements and
other legal documents present fairly in all material respects the
information required to be shown therein, and there are no legal or
governmental proceedings, contracts, agreements, or other documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement which
are not described or filed as required; all agreements between the
Company, NYMC or NYMF and third parties expressly referenced in the
Prospectus are legal, valid and binding obligations of the Company, NYMC
or NYMF, enforceable in accordance with their respective terms, except to
the extent enforceability may be limited by bankruptcy, insolvency,
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reorganization, moratorium or similar laws affecting creditors' rights
generally and by general equitable principles; to the knowledge of the
Company, NYMC and NYMF, no other party to any such agreement is in
material breach or default thereof or thereunder;
(bb) Each of the Company, NYMC and NYMF owns or possesses adequate
licenses or other rights to use all material patents, trademarks, service
marks, trade names, copyrights, software and design licenses, trade
secrets, other intangible property rights and know-how (collectively
"Intangibles") necessary to entitle it to conduct its business as
described in the Prospectus, and neither the Company, nor NYMC nor NYMF
has received notice of infringement of or conflict with (and neither the
Company, nor NYMC, nor any Founding Member knows of any such infringement
of or conflict with) asserted rights of others with respect to any such
Intangibles;
(cc) The Company, NYMC and NYMF have implemented controls and other
procedures that are designed to ensure that information required to be
disclosed by the Company in the reports that it files or submits under the
Securities Exchange Act of 1934 is recorded, processed, summarized and
reported, within the time periods specified in the Commission's rules and
forms and is accumulated and communicated to the Company's management,
including its chief executive officer and chief financial officer, or
persons performing similar functions, as appropriate to allow timely
decisions regarding required disclosure; the Company makes and keeps
books, records and accounts, which, in reasonable detail, accurately and
fairly reflect the transactions and dispositions of the assets of the
Company, NYMC and NYMF; and the Company, NYMC and NYMF maintain a system
of internal accounting controls and procedures sufficient to provide
reasonable assurance that (i) transactions involving the Company, NYMC or
NYMF are executed in accordance with management's general or specific
authorizations; (ii) transactions involving the Company, NYMC or NYMF are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles as applied in the
United States and to maintain asset accountability; (iii) access to assets
is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences;
(dd) Each of the Company, NYMC and NYMF has filed on a timely basis
all necessary federal, state, local and foreign income and franchise tax
returns required to be filed by it through the date hereof and has paid
all taxes shown as due thereon and any related assessments, fines or
penalties; no material tax deficiency has been asserted against any such
entity nor any Founding Member with respect to the Company, NYMC or NYMF,
nor does any such entity or any Founding Member know of any such material
tax deficiency which is likely to be asserted against any such entity or
any Founding Member; all tax liabilities are adequately provided for in
the financial statements contained in the Prospectus;
(ee) Each of the Company, NYMC and NYMF maintains insurance (issued
by insurers of recognized financial responsibility) of the types and in
the amounts generally
-11-
deemed adequate for their respective businesses and consistent with
insurance coverage maintained by similar companies in similar businesses,
including, but not limited to, insurance covering real and personal
property owned or leased by the Company, NYMC and NYMF against theft,
damage, destruction, acts of vandalism and all other risks customarily
insured against, all of which insurance is in full force and effect;
(ff) Neither the Company, NYMC nor NYMF is in violation in any
material respect, or has received notice of any material violation with
respect to, any applicable environmental, safety or similar law applicable
to the business of the Company, NYMC or NYMF; neither the Company nor
NYMC, nor NYMF nor any Founding Member has received any notice of, or has
any knowledge of any occurrence or circumstance which, with notice or
passage of time, or both, would give rise to a material claim against the
Company, NYMC or NYMF under or pursuant to any Environmental Law with
respect to any properties currently or previously owned, leased or
operated by the Company, NYMC or NYMF or the assets of the Company, NYMC
or NYMF or arising out of the conduct of the business of the Company, NYMC
or NYMF; the Company, NYMC and NYMF have received all material permits,
licenses or other approvals required of them under applicable federal and
state occupational safety and health and environmental laws and
regulations to conduct their respective businesses, and each of the
Company, NYMC and NYMF is in compliance in all material respects with all
terms and conditions of any such permit, license or approval applicable to
it; for purposes of this Agreement, the term "Environmental Law" shall
mean any federal, state or local environmental law, statute, ordinance,
rule or regulation, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, 42 U.S.C. Sections 9601-9675 ("CERCLA"), the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Sections 5101-5127, the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Sections 6901-6992k,
the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
Sections 11001-11050, the Toxic Substances Control Act, 15 U.S.C. Sections
2601-2692, the Federal Insecticide, Fungicide and Rodenticide Act, 7
U.S.C. Sections 136-136y, the Clean Air Act, 42 U.S.C. Sections 7401-7642,
the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C.
Sections 1251-1387, the Safe Drinking Water Act, 42 U.S.C. Sections
300f-300j-26, and the Occupational Safety and Health Act, 29 U.S.C.
Sections 651-678, and any analogous state laws, as any of the above may be
amended from time to time and the regulations promulgated pursuant to each
of the foregoing.
(gg) Neither the Company, nor NYMC nor NYMF is in violation in any
material respect of any federal or state law relating to discrimination in
the hiring, promotion or pay of employees, nor any applicable federal or
state wages and hours law, nor any state law precluding the denial of
credit due to the neighborhood in which a property is situated, and
neither the Company nor NYMC nor NYMF has received notice of any such
violation;
(hh) The Company, NYMC and NYMF and each "employee benefit plan" as
defined under the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations
thereunder ("ERISA") established
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or maintained by the Company, NYMC or NYMF or their ERISA Affiliates (as
defined below) are in compliance in all material respects with all
presently applicable provisions of ERISA; no "reportable event" (as
defined in ERISA) has occurred or is reasonably expected to occur with
respect to any such employee benefit plan; neither the Company nor NYMC
nor NYMF has incurred or expects to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any "employee
benefit plan" or (ii) Section 412, 4971, 4975 or 4980(B) of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder ("Code"); each "employee benefit plan"
established or maintained by the Company, NYMC or NYMF or any of their
ERISA Affiliates that is intended to be qualified under Section 401(a) of
the Code is so qualified and nothing has occurred, whether by action or by
failure to act, which would reasonably be expected to cause the loss of
such qualification; and no "employee benefit plan" established or
maintained by the Company, NYMC or NYMF or any of their ERISA Affiliates,
if such "employee benefit plan" were terminated, would have any material
"amount of unfunded benefit liabilities" (as defined under ERISA); for
purposes of this Agreement, the term "ERISA Affiliate" means, with respect
to the Company, NYMC or NYMF, any member of any group of organizations
described in Sections 414(b), (c), (m) or (o) of the Code of which the
Company, NYMC or NYMF is a member;
(ii) Neither the Company, nor NYMC, nor NYMF, nor any officer,
director, manager, employee or agent purporting to act on behalf of the
Company, NYMC or NYMF has at any time (i) made any contributions or other
payment to any candidate for political office, or failed to disclose fully
any such contributions, in violation of law or of a character required to
be disclosed in the Prospectus which is not so disclosed, (ii) made any
payment to any state, federal, local or foreign governmental officer or
official, or other person charged with similar public or quasi-public
duties, other than payments required or allowed by applicable law, (iii)
made any payment outside the ordinary course of business to any investment
officer or loan broker or person charged with similar duties of any entity
to which the Company, NYMC or NYMF sells or from which the Company, NYMC
or NYMF buys loans or servicing arrangements for the purpose of
influencing such agent, officer, broker or person to buy loans or
servicing arrangements from or sell loans to the Company, NYMC or NYMF, or
(iv) engaged in any transactions, maintained any bank account or used any
corporate funds except for transactions, bank accounts and funds which
have been and are reflected in the normally maintained books and records
of the Company, NYMC and NYMF; the Company has not offered, or caused the
Representative to offer, Shares to any person pursuant to the Directed
Share Program (as defined above) with the specific intent to unlawfully
influence (i) a customer or supplier of the Company, NYMC or NYMF to alter
the customer's or supplier's level or type of business with the Company,
NYMC or NYMF or (ii) a trade journalist or publication to write or publish
favorable information about the Company, NYMC or NYMF;
(jj) Except as disclosed in the Prospectus, there are no outstanding
loans or advances or guarantees of indebtedness by the Company, NYMC or
NYMF to or for the
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benefit of any of the officers, directors or managers of the Company, NYMC
or NYMF or any of the members of the families of any of them;
(kk) Neither the Company, nor NYMC, nor NYMF, nor to the knowledge
of the Company, NYMC or any Founding Member, any employee or agent of the
Company, NYMC or NYMF, has made any payment of funds of the Company, NYMC
or NYMF or received or retained any funds in violation of any law, rule or
regulation or of a character required to be disclosed in the Prospectus
and not so disclosed;
(ll) All securities issued by the Company, NYMC and NYMF have been
issued and sold in compliance with all applicable federal and state
securities laws.
(mm) In connection with this offering, the Company has not offered
and will not offer its Common Stock or any other securities convertible
into or exchangeable or exercisable for Common Stock in a manner in
violation of the Securities Act. The Company has not distributed and will
not distribute any offering material in connection with the offer and sale
of the Shares, other than a Preliminary Prospectus, the Prospectus or the
Registration Statement;
(nn) Each of the Company, NYMC and NYMF has complied and will comply
with all the provisions of Florida Statutes, Section 517.075 (Chapter
92-198, Laws of Florida) and the rules and regulations thereunder; and
neither the Company, nor NYMC, nor NYMF, nor any of their respective
affiliates, does business with the government of Cuba or with any person
or affiliate located in Cuba;
(oo) Neither the Company, nor NYMC nor NYMF has incurred any
liability for any finder's fees or similar payments in connection with the
transactions herein contemplated;
(pp) No relationship, direct or indirect, exists between or among
the Company, NYMC or NYMF on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company, NYMC or NYMF on the
other hand, which is required by the Securities Act and the Securities Act
Regulations to be described in the Registration Statement or the
Prospectus and which is not so described;
(qq) Each of the director nominees of the Company which is
designated as an "Independent Director" in Prospectus satisfies the
requirements for independence under the Sarbanes-Oxley Act and the rules
of the New York Stock Exchange.
(rr) Neither the Company, nor NYMC, nor NYMF is, or after giving
effect to the offering and sale of the Shares and the receipt of proceeds
therefrom will be, an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act"); the Company will
continue to conduct its business in a manner such that it will not be
subject to registration as an "investment company" under the Investment
Company Act;
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(ss) The Company has retained Deloitte & Touche LLP as its qualified
independent accountants;
(tt) There are no existing or, to the knowledge of the Company, NYMC
or any Founding Member, threatened labor disputes with the employees of
the Company, NYMC or NYMF;
(uu) The execution and delivery of that certain Second Amended and
Restated Contribution Agreement, dated as of April 29, 2004, by and among
the Company, Schnall, Steven B. Schnall Annuity Trust U/A 3/25/04, Fierro
and 2004 Joseph V. Fierro Grantor Retained Annuity Trust with respect to
the Company's acquisition of NYMC (the "Contribution Agreement") and each
of the documents, agreements and instruments executed and delivered in
connection therewith, and the consummation of the transactions
contemplated by the foregoing, have been duly authorized by all necessary
corporate or, as applicable, limited liability company action, including,
but not limited to, any vote of the stockholders of the Company or the
members of NYMC that may be required by applicable state law; the
Contribution Agreement is a legal, valid and binding agreement of the
Company and the other parties thereto enforceable in accordance with its
terms and is in full force and effect on the date hereof, and neither the
Company nor any of the other parties thereto is in breach or default of
its obligations thereunder (nor has any event occurred which with notice,
lapse of time, or both, would constitute a breach thereof, or default
thereunder); the execution, delivery and performance of the Contribution
Agreement and consummation of the transactions contemplated therein did
not and will not (A) conflict with, or result in any breach of, or
constitute a default under (nor constitute any event which with notice,
lapse of time, or both, would constitute a breach of, or default under),
(i) any provision of the organizational documents of the Company, NYMC or
NYMF, or (ii) any provision of any license, indenture, mortgage, deed of
trust, loan or credit agreement or other agreement or instrument to which
the Company, NYMC or NYMF is a party or by which any of them or their
respective properties may be bound or affected, or under any federal,
state, local or foreign law, regulation or rule or any decree, judgment or
order applicable to the Company, NYMC or NYMF; or (B) result in the
creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Company, NYMC or NYMF; and
(vv) The Company is organized in conformity with the requirements
for qualification as a real estate investment trust (a "REIT") under the
Code; the contemplated method of operation of the Company, NYMC and NYMF
(as described in the Prospectus) will enable the Company to meet the
requirements for taxation as a REIT under the Code for its short taxable
year commencing on the business day preceding the Closing Time and ending
December 31, 2004 and in subsequent years; no transaction or other event
has occurred which would cause the Company to not be able to qualify as a
REIT for its short taxable year described above or any subsequent years
and the Company intends to qualify as a REIT for such taxable year and all
subsequent years.
(ww) Each Founding Member represents and warrants to the
Underwriters that:
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(i) Such Founding Member has full power and authority to enter
into this Agreement and the Contribution Agreement. All
authorizations and consents necessary for the execution, delivery
and performance of this Agreement and the Contribution Agreement by
such Founding Member have been obtained. This Agreement and the
Contribution Agreement have been duly authorized, executed and
delivered by or on behalf of such Founding Member and constitute the
valid and binding agreement of such Founding Member enforceable
against such Founding Member in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally, and by general equitable principles, and except to
the extent that the indemnification and contribution provisions of
Section 9 hereof may be limited by federal or state securities laws
and public policy considerations in respect thereof;
(ii) The performance of this Agreement and the Contribution
Agreement and the consummation of the transactions contemplated
herein and therein will not conflict with, or result in any breach
of, or constitute a default under (nor constitute any event which
with notice, lapse of time, or both, would constitute a breach of,
or default under), any provision of any license, indenture,
mortgage, deed of trust, loan or credit agreement or other agreement
or instrument to which such Founding Member is a party or by which
he or his properties may be bound or affected, or under any federal,
state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to such Founding Member, or result in
the creation or imposition of any lien, charge, claim or encumbrance
upon any property or asset of such Founding Member;
(iii) no approval, authorization, consent or order of or
filing with any federal, state or local governmental or regulatory
commission, board, body, authority or agency is required in
connection with such Founding Member's execution, delivery and
performance of this Agreement or the Contribution Agreement or the
consummation of the transactions contemplated herein or therein;
(iv) such Founding Member (i) has carefully reviewed the
representations and warranties of the Company, NYMC and the Founding
Members contained in this Agreement and has no reason to believe
that such representations and warranties are untrue or incorrect and
(ii) is familiar with the Registration Statement and the Prospectus
and has no knowledge of any fact, condition or information required
to be disclosed in the Registration Statement or the Prospectus
which is not so disclosed;
(v) all information with respect to such Founding Member
contained in the Registration Statement and the Prospectus (as
amended or supplemented, if the Company shall have filed with the
Commission any amendment or supplement thereto) was complete and
accurate in all material respects on the
-16-
effective date of the Registration Statement, on the date of the
Prospectus, at the Closing Time and on each Date of Delivery;
(vi) such Founding Member does not have any registration or
other similar rights to have any equity or debt securities
registered for sale by the Company under the Registration Statement
or included in the offering contemplated by this Agreement, except
for such rights as are described in the Prospectus under "Shares
Eligible for Future Sale;"
(vii) such Founding Member does not have, or has waived prior
to the date hereof, any preemptive right, co-sale right or right of
first refusal or other similar right to purchase any of the Shares
that are to be sold by the Company to the Underwriters pursuant to
this Agreement; and such Founding Member does not own any warrants,
options or similar rights to acquire, and does not have any right or
arrangement to acquire, any capital stock, right, warrants, options
or other securities from the Company, NYMC or NYMF other than those
described in the Registration Statement and the Prospectus; and
(viii) except as otherwise disclosed to the Underwriters in
writing, such Founding Member is not a member of or an affiliate of
or associated with any member of the NASD.
4. Certain Covenants:
(a) The Company hereby agrees with each Underwriter:
(i) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and
sale under the securities or blue sky laws of such jurisdictions
(both domestic and foreign) as the Representative may designate and
to maintain such qualifications in effect as long as reasonably
requested by the Representative for the distribution of the Shares,
provided that the Company shall not be required to qualify as a
foreign corporation or to consent to the service of process under
the laws of any such state (except service of process with respect
to the offering and sale of the Shares);
(ii) if, at the time this Agreement is executed and delivered,
it is necessary for a post-effective amendment to the Registration
Statement to be declared effective before the offering of the Shares
may commence, the Company will endeavor to cause such post-effective
amendment to become effective as soon as reasonably possible and
will advise the Representative promptly and, if requested by the
Representative, will confirm such advice in writing, when such
post-effective amendment has become effective;
(iii) to prepare the Prospectus in a form approved by the
Underwriters and file such Prospectus with the Commission pursuant
to Rule 424(b) under the Securities Act not later than 4:30 p.m.
(New York City time) on the day following
-17-
the execution and delivery of this Agreement or on such other day as
the parties may mutually agree, and to furnish promptly, and with
respect to the initial delivery of such Prospectus, not later than
4:30 p.m. (New York City time) on the day following the execution
and delivery of this Agreement, or on such other day as the parties
may mutually agree, to the Underwriters copies of the Prospectus (or
of the Prospectus as amended or supplemented if the Company shall
have made any amendments or supplements thereto after the effective
date of the Registration Statement) in such quantities and at such
locations as the Underwriters may reasonably request for the
purposes contemplated by the Securities Act Regulations, which
Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the version created to be
transmitted to the Commission for filing via EDGAR, except to the
extent permitted by Regulation S-T;
(iv) to advise the Representative promptly and (if requested
by the Representative) to confirm such advice in writing, when the
Registration Statement has become effective and when any
post-effective amendment thereto becomes effective under the
Securities Act Regulations;
(v) to advise the Representative immediately, confirming such
advice in writing, of (i) the receipt of any comments from, or any
request by, the Commission for amendments or supplements to the
Registration Statement or Prospectus or for additional information
with respect thereto, or (ii) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, or of the suspension of
the qualification of the Shares for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes and, if the Commission or any other
government agency or authority should issue any such order, to make
every reasonable effort to obtain the lifting or removal of such
order as soon as possible; to advise the Representative promptly of
any proposal to amend or supplement the Registration Statement or
Prospectus and to file no such amendment or supplement to which the
Representative shall reasonably object in writing;
(vi) for a period of three years from the date of this
Agreement, to furnish to the Underwriters as soon as practicable
after the filing thereof, copies of all reports, if any, filed by
the Company with the NASD;
(vii) to advise the Underwriters promptly of the happening of
any event known to the Company within the time during which a
Prospectus relating to the Shares is required to be delivered under
the Securities Act Regulations which would require the making of any
change in the Prospectus then being used so that the Prospectus
would not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made,
-18-
not misleading, or if it is necessary at any time to amend or
supplement the Prospectus to comply with any law and, during such
time, to promptly prepare and furnish to the Underwriters copies of
the proposed amendment or supplement before filing any such
amendment or supplement with the Commission and thereafter promptly
furnish at the Company's own expense to the Underwriters, copies in
such quantities and at such locations as the Representative may
reasonably request of an appropriate amendment to the Registration
Statement or supplement to the Prospectus so that the Prospectus as
so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, and so that
the Prospectus will comply with the law;
(viii) to file promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any supplement to
the Prospectus that may be required by the Securities Act or
requested by the Commission;
(ix) prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 under the Securities Act, to furnish
a copy thereof to the Representative and counsel for the
Underwriters and obtain the consent of the Representative to the
filing, which consent shall not be unreasonably withheld, delayed or
conditioned;
(x) to furnish promptly to the Representative a signed copy of
the Registration Statement, as initially filed with the Commission,
and of all amendments or supplements to the Registration Statement,
as filed with the Commission after the date hereof (including all
exhibits filed therewith or incorporated by reference therein) and
such number of conformed copies of the foregoing as the
Representative may reasonably request;
(xi) During the period referred to in paragraph (vi) above to
file all documents required to be filed with the Commission pursuant
to Section 13, 14, or 15(d) of the Exchange Act in the manner and
within the time periods required by the Exchange Act and the
Exchange Act Regulations;
(xii) to apply the net proceeds from the sale of the Shares in
accordance with its statements under the caption "Use of Proceeds"
in the Prospectus;
(xiii) to make generally available to its security holders and
the Representative not later than the end of the fiscal quarter
first occurring after the first anniversary of the effective date of
the Registration Statement an earnings statement complying with the
provisions of Section 11(a) of the Securities Act (in form, at the
option of the Company, complying with the provisions of Rule 158 of
the Securities Act Regulations,) covering a period of 12 months
beginning after the effective date of the Registration Statement;
-19-
(xiv) to use its commercially reasonable efforts to maintain
the listing of the Shares on the New York Stock Exchange and to file
with the New York Stock Exchange all documents and notices required
by the New York Stock Exchange of companies that have securities
that are traded on the New York Stock Exchange;
(xv) to engage and maintain, at its expense, a registrar and
transfer agent for the Shares;
(xvi) to refrain during a period of 180 days from the date of
the Prospectus, without the prior written consent of the
Representative, from, directly or indirectly, (i) offering,
pledging, selling, contracting to sell, selling any option or
contract to purchase, purchasing any option or contract to sell,
granting any option for the sale of, or otherwise disposing of or
transferring, (or entering into any transaction or device which is
designed to, or could be expected to, result in the disposition by
any person at any time in the future of), any share of Common Stock
or any securities convertible into or exercisable or exchangeable
for Common Stock, or filing any registration statement under the
Securities Act with respect to any of the foregoing, or (ii)
entering into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any
such swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the
Shares to be sold hereunder, or (B) any shares of Common Stock
issued by the Company upon the exercise of an option outstanding on
the date hereof and referred to in the Prospectus (C) Shares of
Common Stock issued pursuant to the Company's 2004 Stock Incentive
Plan upon completion of the transactions contemplated herein as
disclosed in the Prospectus or upon approval of the compensation
committee of the Company's Board of Directors or (D) shares of
Common Stock issued by the Company in connection with any merger,
acquisition, share exchange or other business combination
transaction approved by the Company's Board of Directors, as long as
such shares are restricted as to resale for at least the 180 day
period referred to above;
(xvii) Prior to termination of the underwriting syndicate
contemplated by this Agreement, not to itself, and to use its best
efforts to cause its officers, directors and affiliates not to, (i)
take, directly or indirectly, any action designed to stabilize or
manipulate the price of any security of the Company, or which may
cause or result in, or which might in the future reasonably be
expected to cause or result in the stabilization or manipulation of
the price of any security of the Company, to facilitate the sale or
resale of any of the Shares, (ii) sell, bid for, purchase or pay
anyone any compensation for soliciting purchases of the Shares or
(iii) pay or agree to pay to any person any compensation for
soliciting any order to purchase any other securities of the
Company;
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(xviii) to cause each 1% or greater stockholder, if any, and
each executive officer and director (and each director nominee named
in the Prospectus) of the Company, each of whom are listed on
Schedule D-1 to Exhibit D attached hereto, to furnish to the
Representative, prior to the first Date of Delivery, a lock-up
letter agreement substantially in the form of Exhibit D hereto.
(xix) that the Company shall obtain or maintain, as
appropriate, Directors and Officers liability insurance in the
minimum amount of $12 million which shall apply to the offering
contemplated herein;
(xx) if at any time during the 90-day period after the
Registration Statement becomes effective, any rumor, publication or
event relating to or affecting the Company shall occur as a result
of which, in the reasonable opinion of the Representative, the
market price of the Common Stock has been or is likely to be
materially affected (regardless of whether such rumor, publication
or event necessitates a supplement to or amendment of the
Prospectus) and after written notice from the Representative
advising the Company to the effect set forth above, to consult with
the Representative concerning whether a press release or other
public statement responding to or commenting on such rumor,
publication or event is appropriate and to consult with the
Representative concerning the substance of any such press release or
public statement, provided, however, that, as long as the Company
has satisfied its obligations under this subparagraph (xx), the
final decisions regarding whether to disseminate any such press
release or other public statement, and the content of any such press
release or public statement, shall rest with the Company;
(xxi) that the Company will comply with all of the provisions
of any undertakings in the Registration Statement; and
(xxii) that the Company will continue to use its best efforts
to meet the requirements to qualify as a REIT under the Code; and
(xxiii) that the Company will use its best efforts to
consummate its acquisition of NYMC pursuant to the Contribution
Agreement at the Closing Time with respect to the sale of the
Initial Shares pursuant to this Agreement.
(xxiv) that the Company (i) will comply with all securities
and other applicable laws, rules and regulations, including without
limitation, the rules and regulations of the NASD that are
applicable to the Company, in each jurisdiction in which the
Directed Shares are offered in connection with the Directed Share
Program and (ii) will pay all reasonable fees and disbursements of
counsel incurred by the Underwriters in connection with the Directed
Share Program and any stamp duties, similar taxes or duties or other
taxes, if any, incurred by the Underwriters in connection with the
Directed Share Program.
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(xxv) that one of the members of the Audit Committee of the
Board of Directors of the Company will satisfy the requirements of
the Sarbanes-Oxley Act applicable to the Company's "audit committee
financial expert" as defined therein.
(b) The Founding Members hereby agree with each Underwriter to use
their best efforts to cause the consummation of the Company's acquisition
of NYMC pursuant to the Contribution Agreement at the Closing Time with
respect to the sale of the Initial Shares pursuant to this Agreement.
5. Payment of Expenses:
(a) The Company agrees to pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated hereunder are consummated or this Agreement is
terminated, including expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and all amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment), (ii) the
issuance and delivery of the Shares to the Underwriters, including payment
of any stock or other transfer taxes or duties payable upon the sale of
the Shares (and preparation of certificates therefor, if applicable) to
the Underwriters, (iii) the qualification of the Shares for offering and
sale under state laws that the Representative has determined are
appropriate (including related filing fees and related fees and
disbursements of counsel for the Underwriters), (iv) filing for review of
the public offering of the Shares by the NASD (including the legal fees
and filing fees and other disbursements of counsel for the Underwriters
relating thereto), (v) the fees and expenses of any transfer agent or
registrar for the Shares and miscellaneous expenses referred to in the
Registration Statement, (vi) the fees and expenses incurred in connection
with the inclusion of the Shares in the New York Stock Exchange, (vii)
making road show presentations with respect to the offering of the Shares,
(viii) preparing and distributing bound volumes of transaction documents
for the Representative and its legal counsel and (ix) the performance of
the Company's other obligations hereunder. Upon the request of the
Representative, the Company will provide funds in advance for filing fees.
(b) The Company agrees to reimburse the Representative for its
reasonable out-of-pocket expenses in connection with the performance of
its activities under this Agreement, including, but not limited to, costs
such as background investigations, printing, facsimile, courier service,
direct computer expenses, roadshow, accommodations, travel and the fees
and disbursements of counsel for the Underwriters, subject to a maximum of
$400,000, of which $25,000 has been previously paid to the Representative
as a deposit; provided, that the maximum such reimbursement shall be
$200,000 if this Agreement is terminated by the Underwriters for any
reason other than as set forth in Section 5(c) below, of which $25,000 has
been previously paid to the Representative as a deposit.
-22-
(c) Notwithstanding the foregoing, if this Agreement shall be
terminated by the Underwriters, or any of them, because of any failure or
refusal on the part of the Company, NYMC or the Founding Members to comply
with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company, NYMC or the Founding Members shall be
unable to perform its or their obligations under this Agreement, the
Company and NYMC, jointly and severally, will reimburse, without any
maximum limitation, the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including but not limited to costs for background
investigations, printing, facsimile, courier service, direct computer
expenses, roadshow, accommodations, travel and the fees and disbursements
of Underwriters' counsel) and any other advisors, accountants, appraisers,
etc. reasonably incurred by such Underwriters in connection with this
Agreement or the transactions contemplated herein.
6. Conditions of the Underwriters' Obligations.
The obligations of the Underwriters hereunder to purchase Shares at the
Closing Time or on each Date of Delivery, as applicable, are subject to the
accuracy of the representations and warranties on the part of the Company, NYMC
and the Founding Members hereunder on the date hereof and at the Closing Time
and on each Date of Delivery, as applicable, the performance by the Company,
NYMC and the Founding Members of their respective obligations hereunder and to
the satisfaction of the following further conditions at the Closing Time or on
each Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing
Time and on each Date of Delivery two opinions of Hunton & Williams LLP
(each of which may rely on the opinion of Venable LLP to the extent that
any opinion contained therein pertains to Maryland law), counsel for the
Company, NYMC and NYMF, addressed to the Underwriters and dated the
Closing Time and each Date of Delivery and in form and substance
reasonably satisfactory to McDermott, Will & Emery, counsel for the
Underwriters, with respect to the matters set forth on Exhibit A-1 and
Exhibit A-2 hereto.
(b) The Company shall furnish to the Underwriters at the Closing
Time and on each Date of Delivery an opinion of Venable LLP, special
Maryland counsel for the Company, addressed to the Underwriters and dated
the Closing Time and each Date of Delivery and in form and substance
reasonably satisfactory to McDermott, Will & Emery, counsel for the
Underwriters, with respect to the matters set forth on Exhibit B hereto.
(c) The Company shall furnish to the Underwriters at the Closing
Time and on each Date of Delivery an opinion of Wiener Brodsky, Sidman &
Kider, P.C., special regulatory counsel for the Company, addressed to the
Underwriters and dated the Closing Time and each Date of Delivery and in
form and substance reasonably satisfactory to McDermott, Will & Emery,
counsel for the Underwriters, with respect to the matters set forth on
Exhibit C hereto.
-23-
(d) The Representative shall have received from Deloitte & Touche
LLP, letters dated, respectively, as of the date of this Agreement, the
Closing Time and each Date of Delivery, as the case may be, addressed to
the Representative, in form and substance reasonably satisfactory to the
Representative, relating to the financial statements, including any pro
forma financial statements, of the Company and NYMC, data with respect to
NYMC's historical operations, and such other financial matters included
within any Preliminary Prospectus and the Prospectus as are customarily
covered by comfort letters issued in connection with registered public
offerings involving similar companies.
In the event that the letters referred to above set forth any
changes in indebtedness, decreases in total assets or earnings, increases
in borrowings, or changes in NYMC's historical operating data from the
related information set forth in any Preliminary Prospectus or the
Prospectus it shall be a further condition to the obligations of the
Underwriters that (A) such letters shall be accompanied by a written
explanation of the Company as to the significance thereof, unless the
Representative deems such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representative,
make it impractical or inadvisable to proceed with the purchase and
delivery of the Shares as contemplated by the Registration Statement.
(e) No amendment or supplement to the Registration Statement or
Prospectus shall have been filed to which the Underwriters shall have
objected in writing.
(f) Prior to the Closing Time and each Date of Delivery (i) no stop
order suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus shall have been issued, and no proceedings for such purpose
shall have been initiated or threatened by the Commission, and no
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, or the initiation or threatening of any proceedings for any
of such purposes, shall have occurred; (ii) all requests for additional
information on the part of the Commission shall have been complied with to
the reasonable satisfaction of the Representative; and (iii) the
Registration Statement and the Prospectus shall not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(g) All filings with the Commission required by Rule 424 under the
Securities Act to have been filed by the Closing Time shall have been made
within the applicable time period prescribed for such filing by such Rule
and in accordance with this Agreement.
(h) Between the date of this Agreement and the Closing Time or the
relevant Date of Delivery: (i) there shall not have been a Material
Adverse Change or any event or development that could reasonably be
expected to have a Material Adverse Effect and (ii) no transaction which
is material and unfavorable to the Company shall have been entered into by
the Company or any of its subsidiaries, in each case, which in the
Representative's
-24-
sole judgment, makes it impracticable or inadvisable to proceed with the
public offering of the Shares as contemplated by the Registration
Statement.
(i) The Shares shall have been approved for listing on the New York
Stock Exchange, subject to official notice of issuance.
(j) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(k) The Representative shall have received lock-up letter agreements
from each executive officer and director of the Company (and each director
nominee named in the Prospectus) and each 1% or greater stockholder of the
Company, if any, substantially in the form of Exhibit D, and such letter
agreements shall be in full force and effect. The persons from whom the
Representative expects to receive such lock-up letter agreements are
listed on Schedule D-1 to Exhibit D.
(l) The Company will, at the Closing Time and on each Date of
Delivery, deliver to the Underwriters a certificate of its Chairman of the
Board, Chief Executive Officer, President, Chief Operating Officer or Vice
President and Chief Accounting Officer or Chief Financial Officer, to the
effect that:
(i) the representations and warranties of the Company and NYMC
in this Agreement are, if qualified as to materiality, true and
correct in all respects and, if not so qualified, true and correct
in all material respects, as if made on and as of the date hereof,
and the Company has complied in all material respects with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto has
been issued and no proceedings for that purpose have been instituted
or are pending or threatened under the Securities Act;
(iii) each Preliminary Prospectus and, when the Registration
Statement became effective and at all times subsequent thereto up to
the date hereof, the Registration Statement and the Prospectus, and
any amendments or supplements thereto, contained all material
information required to be included therein by the Securities Act or
the Exchange Act and the applicable rules and regulations of the
Commission thereunder and in all material respects conformed to the
requirements of the Securities Act and the Exchange Act and the
applicable rules and regulations of the Commission thereunder; the
Registration Statement and the Prospectus, and any amendments or
supplements thereto, did not and do not include any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and, since the effective date of the Registration
Statement, there has occurred no event
-25-
required to be set forth in an amendment or supplement to the
Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which
information is given in the Registration Statement, each Preliminary
Prospectus and the Prospectus, and except as may be otherwise stated
in such Registration Statement, Preliminary Prospectus or
Prospectus, there has not been (A) a Material Adverse Change or any
event or development including, but not limited to any loss or
damage (whether or not insured) to the property of the Company, NYMC
or NYMF, that could reasonably be expected to have Material Adverse
Effect, whether or not arising in the ordinary course of business,
(B) any transaction that is material to the Company, NYMC and NYMF
taken as a whole, entered into by the Company, NYMC or NYMF, (C) any
liability or obligation, contingent or otherwise, directly or
indirectly incurred by the Company, NYMC or NYMF that is material to
the Company and its subsidiaries taken as a whole, (D) any dividend
or distribution of any kind declared, paid or made by the Company or
NYMC on any class of its capital stock or membership interests or
any repurchase or redemption by the Company or NYMC of any class of
capital stock or other equity interests, or (E) any change in the
capital stock or membership interests, as applicable, or long-term
debt or short-term borrowings of the Company, NYMC or NYMF;
(m) Each of the Founding Members will, at the Closing Time and on
each Date of Delivery, deliver to the Underwriters a certificate signed by
such Founding Member to the effect set forth in subsections 6(k)(i)
through (k)(iv) above.
(n) NYMC will, at the Closing Time and on each Delivery Date,
deliver to the Underwriters a certificate of its Chief Executive Officer,
President, Chief Operating Officer or Vice President and Chief Financial
Officer to the effect set forth in subsections 6(k)(i) through (k)(iv)
above but only with respect to NYMC.
(o) The Company, NYMC and the Founding Members shall have furnished
to the Underwriters such other documents and certificates as to the
accuracy and completeness of any statement in the Registration Statement
and the Prospectus, the representations, warranties and statements of the
Company, NYMC and the Founding Members contained herein, the performance
by the Company, NYMC and the Founding Members of their respective
covenants contained herein, and the fulfillment of any conditions
contained herein, as of the Closing Time or any Date of Delivery, as the
Underwriters may reasonably request.
(p) The Company, NYMC and the Founding Members each shall have
performed in all material respects its obligations under this Agreement as
are to be performed by the terms hereof at or before the Closing Time or
the relevant Date of Delivery.
-26-
(q) The consummation of the transactions contemplated by the
Contribution Agreement shall occur at the Closing Time with respect to the
Initial Shares pursuant to this Agreement.
7. Termination:
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of the Representative, at any time prior
to the Closing Time or any Date of Delivery, (i) if any of the conditions
specified in Section 6 shall not have been fulfilled when and as required by
this Agreement to be fulfilled, or (ii) if there has been since the respective
dates as of which information is given in the Registration Statement or the
Prospectus, any Material Adverse Change or any event or development which could
reasonably be expected to have a Material Adverse Effect, or material change in
management of the Company or any Subsidiary, NYMC or NYMF, whether or not
arising in the ordinary course of business, or (iii) if there has occurred any
outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic, political or other conditions the
effect of which on the financial markets of the United States is such as to make
it, in the sole judgment of the Representative, impracticable to market the
Shares or enforce contracts for the sale of the Shares, or (iv) if trading in
any securities of the Company has been suspended by the Commission or by New
York Stock Exchange, or if trading generally on the New York Stock Exchange or
in the Nasdaq over-the-counter market has been suspended (including an automatic
halt in trading pursuant to market-decline triggers, other than those in which
solely program trading is temporarily halted), or limitations on prices for
trading (other than limitations on hours or numbers of days of trading) have
been fixed, or maximum ranges for prices for securities have been required, by
such exchange or the NASD or the over-the-counter market or by order of the
Commission or any other governmental authority, or (v) any federal or state
statute, regulation, rule or order of any court or other governmental authority
has been enacted, published, decreed or otherwise promulgated which, in the
reasonable opinion of the Representative, materially adversely affects or could
reasonably be expected to materially adversely affect the business or operations
of the Company, NYMC and NYMF taken as a whole.
If the Representative elects to terminate this Agreement as provided in
this Section 7, the Company and the Underwriters shall be notified promptly by
telephone, promptly confirmed by facsimile.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply in all material respects with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 5 and 9 hereof) and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
-27-
8. Increase in Underwriters' Commitments:
If any Underwriter shall default at the Closing Time or on a Date of
Delivery in its obligation to take up and pay for the Shares to be purchased by
it under this Agreement on such date, the Representative shall have the right,
within 36 hours after such default, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Shares which such Underwriter shall have agreed but failed
to take up and pay for (the "Defaulted Shares"). Absent the completion of such
arrangements within such 36-hour period, (i) if the total number of Defaulted
Shares does not exceed 10% of the total number of Shares to be purchased on such
date, each non-defaulting Underwriter shall take up and pay for (in addition to
the number of Shares which it is otherwise obligated to purchase on such date
pursuant to this Agreement) the portion of the total number of Shares agreed to
be purchased by the defaulting Underwriter on such date that its underwriting
obligations hereunder bears to the underwriting obligations of all
non-defaulting Underwriters; and (ii) if the total number of Defaulted Shares
exceeds 10% of such total, the Representative may terminate this Agreement by
notice to the Company, without liability of any party to any other party except
that the provisions of Sections 5 and 9 hereof shall at all times be effective
and shall survive such termination.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Shares hereunder at the Closing Time or on any Date of Delivery
unless all of the Shares to be purchased on such date are purchased on such date
by the Underwriters (or by substituted Underwriters selected by the
Representative with the approval of the Company or selected by the Company with
the approval of the Representative).
If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter in accordance with the foregoing provision, the Company or the
non-defaulting Underwriters shall have the right to postpone the Closing Time or
the relevant Date of Delivery for a period not exceeding five business days in
order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term "Underwriter" as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with the same effect as
if such substituted Underwriter had originally been named in this Agreement.
9. Indemnity and Contribution by the Company and NYMC and the
Underwriters:
(a) The Company and NYMC, jointly and severally, agree to indemnify,
defend and hold harmless each Underwriter and any person who controls any
Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any loss, expense,
liability, damage or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or
controlling person may incur under the Securities Act, the Exchange Act or
otherwise, insofar as such loss, expense, liability, damage or claim
arises out of, or is based upon, or relates to (i) any breach of any
representation, warranty or covenant of the Company, NYMC or any
-28-
Founding Member contained herein, (ii) any failure on the part of the
Company to comply with any applicable law, rule or regulation relating to
the offering of securities being made pursuant to the Prospectus, (iii)
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or in the Registration Statement
as amended by any post-effective amendment thereof by the Company), the
Prospectus (the term Prospectus for the purpose of this Section 9 being
deemed to include any Preliminary Prospectus, the Prospectus and the
Prospectus as amended or supplemented by the Company), or (iv) any
omission or alleged omission to state a material fact required to be
stated in any such Registration Statement or Prospectus or necessary to
make the statements made therein, in the light of the circumstances under
which they were made, not misleading, except insofar as any such loss,
expense, liability, damage or claim arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in and in conformity with
information furnished in writing by the Underwriters through the
Representative to the Company expressly for use in such Registration
Statement or Prospectus; provided, however, that the Company's and NYMC's
obligation to indemnify the Underwriters and such controlling persons
pursuant to Section 9(a)(i) above shall be limited to losses, expenses,
liabilities and damages arising out of claims brought by third parties.
The indemnity agreement set forth in this Section 9(a) shall be in
addition to any liability which the Company or NYMC may otherwise have to
such Underwriters or controlling persons or otherwise.
If any action is brought against an Underwriter or controlling
person in respect of which indemnity may be sought against the Company or
NYMC pursuant to subsection (a) above, such Underwriter shall promptly
notify the Company or NYMC, as applicable, in writing of the institution
of such action, and the Company or NYMC, as applicable, shall assume the
defense of such action, including the employment of counsel and payment of
expenses; provided, however, that any failure or delay to so notify the
Company or NYMC, as applicable, will not relieve the Company or NYMC of
any obligation hereunder, except to the extent that its ability to defend
is actually impaired or prejudiced by such failure or delay. Such
Underwriter or controlling person shall have the right to employ its or
their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling
person unless the employment of such counsel shall have been authorized in
writing by the Company or NYMC, as applicable, in connection with the
defense of such action, or the Company or NYMC, as applicable, shall not
have employed counsel to have charge of the defense of such action within
a reasonable time or such indemnified party or parties shall have
reasonably concluded (based on the advice of counsel) that there may be
defenses available to it or them which are different from or additional to
those available to the Company or NYMC, as applicable (in which case the
Company or NYMC, as applicable, shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by the Company
or NYMC, as applicable, and paid as incurred (it being understood,
however, that the Company or NYMC, as applicable, shall not be liable for
the expenses of more than one separate firm of attorneys for the
Underwriters or controlling persons in any one
-29-
action or series of related actions in the same jurisdiction (other than
local counsel in any such jurisdiction) representing the indemnified
parties who are parties to such action). Anything in this paragraph to the
contrary notwithstanding, neither the Company nor NYMC, as applicable,
shall be liable for any settlement of any such claim or action effected
without its written consent.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify, defend and hold harmless NYMC, the Company, the Company's
directors, the Company's officers that signed the Registration Statement,
and any person who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against
any loss, expense, liability, damage or claim (including the reasonable
cost of investigation) which any such person may incur under the
Securities Act, the Exchange Act or otherwise, but only insofar as such
loss, expense, liability, damage or claim arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information furnished in writing by
such Underwriter through the Representative to the Company expressly for
use in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or the
Prospectus or (ii) any omission or alleged omission to state a material
fact in connection with such information required to be stated either in
such Registration Statement or Prospectus or necessary to make such
information, in the light of the circumstances under which made, not
misleading. The statements set forth in the third full paragraph on page
133 under the caption "Underwriting" in the Preliminary Prospectus and the
Prospectus (to the extent such statements relate to the Underwriters)
constitute the only information furnished by or on behalf of any
Underwriter through the Representative to the Company for purposes of
Section 3(l) and this Section 9. The indemnity agreement set forth in this
Section 9(b) shall be in addition to any liabilities that such Underwriter
may otherwise have to such persons or otherwise.
If any action is brought against the Company or any such
person in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Company or such person shall
promptly notify the Representative in writing of the institution of such
action and the Representative, on behalf of the Underwriters, shall assume
the defense of such action, including the employment of counsel and
payment of expenses; provided, however, that any failure or delay to so
notify the Representative will not relieve any Underwriter hereunder,
except to the extent that its ability to defend is actually impaired or
prejudiced by such failure or delay. The Company or such person shall have
the right to employ its own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of the Company or such
person unless the employment of such counsel shall have been authorized in
writing by the Representative in connection with the defense of such
action or the Representative shall not have employed counsel to have
charge of the defense of such action within a reasonable time or such
indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them
which are different from or additional to those available to the
Underwriters (in which case the
-30-
Representative shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by such Underwriter and paid
as incurred (it being understood, however, that the Underwriters shall not
be liable for the expenses of more than one separate firm of attorneys in
any one action or series of related actions in the same jurisdiction
(other than local counsel in any such jurisdiction) representing the
indemnified parties who are parties to such action). Anything in this
paragraph to the contrary notwithstanding, no Underwriter shall be liable
for any settlement of any such claim or action effected without the
written consent of the Representative.
(c) If the indemnification provided for in this Section 9 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) and (b) of this Section 9 in respect of any losses,
expenses, liabilities, damages or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, expenses, liabilities, damages or claims
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of the
Shares or (ii) if (but only if) the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions which resulted
in such losses, expenses, liabilities, damages or claims, as well as any
other relevant equitable considerations. The relative benefits received by
the Company and the Underwriters shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company bear to the underwriting discounts and commissions received by the
Underwriters. The relative fault of the Company and of the Underwriters
shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the
Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages and liabilities referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any
claim or action.
(d) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in subsection
(c)(i) and, if applicable (ii), above. Notwithstanding the provisions of
this Section 9, no Underwriter shall be required to contribute any amount
in excess of the underwriting discounts and commissions applicable to the
Shares purchased by such Underwriter. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who
-31-
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 9 are several in
proportion to their respective underwriting commitments and not joint.
(e) The Company agrees to indemnify and hold harmless each
Underwriter and its affiliates and each person, if any, who controls each
Underwriter and its affiliates within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection
with defending or investigating any such action or claim) (i) caused by
any untrue statement or alleged untrue statement of a material fact
contained in any material prepared by or with the consent of the Company
for distribution to participants in connection with the Directed Share
Program, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; (ii) as a result of the failure of any
participant to pay for and accept delivery of Directed Shares that the
participant has agreed to purchase; or (iii) otherwise related to, arising
out of, or in connection with the Directed Share Program, other than as a
result of the gross negligence or willful misconduct of the
Representative.
10. Survival:
The indemnity and contribution agreements contained in Section 9 and the
covenants, warranties and representations of the Company, NYMC and the Founding
Members contained in Sections 3, 4 and 5 of this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter, or any person who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, or by or on
behalf of the Company, its directors and officers, NYMC, the Founding Members or
any person who controls the Company or NYMC within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the sale and delivery of the Shares. The
Company, NYMC, each Founding Member and each Underwriter agree promptly to
notify the others of the commencement of any litigation or proceeding against it
and, in the case of the Company, against any of the Company's officers and
directors, in connection with the sale and delivery of the Shares, or in
connection with the Registration Statement, each Preliminary Prospectus or the
Prospectus.
11. Notices:
Except as otherwise herein provided, all statements, requests, notices and
agreements shall be in writing or by telegram and, if to the Underwriters, shall
be sufficient in all respects if delivered to Friedman, Billings, Ramsey & Co.,
Inc., 1001 19th Street North, Arlington, Virginia 22209, Attention: Syndicate
Department; if to the Company, shall be sufficient in all respects if delivered
to the Company at the offices of the Company at 1301 Avenue of the Avenues, New
York, New York 10019, Attention: Chief Executive Officer; if to NYMC, shall be
sufficient in all respects if delivered to NYMC at the offices of NYMC at 1301
Avenue of the Avenues, New
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York, New York 10019, Attention: Chief Executive Officer; if to Schnall, shall
be sufficient in all respect if delivered to Schnall at 1301 Avenue of the
Americas, New York, New York 10019; and if to Fierro, shall be sufficient in all
respects if delivered to Fierro at 1301 Avenue of the Americas, New York, New
York 10019.
12. Governing Law; Headings:
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. Parties at Interest:
The Agreement herein set forth has been and is made solely for the benefit
of the Underwriters, the Company, NYMC and the controlling persons, directors
and officers referred to in Sections 9 and 10 hereof, and their respective
successors, assigns, executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from any
of the Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
14. Counterparts and Facsimile Signatures:
This Agreement may be signed by the parties in counterparts which together
shall constitute one and the same agreement among the parties. A facsimile
signature shall constitute an original signature for all purposes.
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If the foregoing correctly sets forth the understanding among the Company,
NYMC, the Founding Members and the Underwriters, please so indicate in the space
provided below for the purpose, whereupon this Agreement shall constitute a
binding agreement among the Company, NYMC, the Founding Members and the
Underwriters.
Very truly yours,
NEW YORK MORTGAGE TRUST, INC.
/s/ Steven B. Schnall
By:______________________________
Name: Steven B. Schnall
Title: Co-Chief Executive Officer
NEW YORK MORTGAGE COMPANY, LLC
/s/ Steven B. Schnall
By:______________________________
Name: Steven B. Schnall
Title: President and Chief Executive
Officer
/s/ Steven B. Schnall
_________________________________
Steven B. Schnall
/s/ Joseph V. Fierro
_________________________________
Joseph V. Fierro
Accepted and agreed to as
of the date first above written:
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
/s/ James R. Kleeblatt
By:_______________________________
Title: Senior Managing Director
For itself and as Representative of the other Underwriters named on Schedule I
hereto.
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Schedule I
Number of Initial Number of Option
Underwriter Shares to be Purchased Shares to be Purchased
----------- ---------------------- ----------------------
Friedman, Billings, Ramsey 7,920,000 1,188,000
& Co., Inc.
J.P. Morgan Securities, 4,320,000 648,000
Inc.
RBC Capital Markets 2,160,000 324,000
Corporation
Advest, Inc. 100,000 15,000
Roth Capital Partners, LLC 100,000 15,000
Jefferies & Co Inc. 100,000 15,000
JMP Securities LLC 100,000 15,000
Piper Jaffray & Co. 100,000 15,000
Stifel, Nicolaus & 100,000 15,000
Company, Incorporated
---------- ---------
Total...... 15,000,000 2,250,000
---------- ---------
I-1