SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of
the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): February 6,
2007
NEW
YORK MORTGAGE TRUST, INC.
(Exact
name of registrant as specified in its charter)
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Maryland
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001-32216
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47-0934168
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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1301
Avenue of the Americas
New
York, New York 10019
(Address
and zip code of
principal
executive offices)
Registrant’s
telephone number, including area code: (212)
634-9400
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
| Item 1.01. |
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Entry
Into a Material Definitive
Agreement.
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On
February 7, 2007, New York Mortgage Trust, Inc. (the "Company") announced that
it had entered into a definitive agreement (the "Asset Purchase Agreement")
dated February 6, 2007 to sell certain assets of the retail mortgage banking
platform of its wholly owned taxable REIT subsidiary, The New York Mortgage
Company, LLC (“NYMC”), to IndyMac Bank, F.S.B. (“Indymac”) for an estimated
purchase price of approximately $13.4 million in cash and the assumption of
certain liabilities by Indymac.
Pursuant
to the Asset Purchase Agreement, the purchase price will be an amount equal
to
the difference between (a) the sum of (i) the book value of the purchased assets
as of the closing date of this transaction (the “Closing Date”) less the book
value of the assumed liabilities as of the Closing Date; plus
(ii)
$8.0 million; plus
(iii)
the sum of (A) the product obtained by multiplying (x) the aggregate principal
balance of Pipeline Loans (defined below) that fund within 60 days after the
Closing Date by (y) 0.0025 plus
(B) the
aggregate pipeline loan adjustment (as defined in the Asset Purchase Agreement)
and (b) the sum of (i) $936,371 plus
(ii) the
NYMC Severance Amount (defined below). NYMC has agreed to deposit with an escrow
agent on the Closing Date an aggregate of $2.3 million of the purchase price
for
the purpose of settling the final purchase price and satisfaction of any
indemnification claims under the Asset Purchase Agreement.
Under
the
terms of the Asset Purchase Agreement, Indymac will purchase substantially
all
of the operating assets related to NYMC’s retail mortgage banking platform,
including, among other things, a majority of its retail branch office leases
(excluding the lease for the Company’s corporate headquarters, which is being
assigned, as previously announced, under a separate agreement to Lehman Brothers
Holding, Inc.) and the tangible personal property located thereon, its pipeline
of residential mortgage loan applications (the “Pipeline Loans”), escrowed
deposits related to the Pipeline Loans, customer lists and intellectual property
and information technology systems used by NYMC in the conduct of its retail
mortgage banking platform (the "Business"). Indymac has agreed to assume the
obligations of NYMC under the Pipeline Loans and substantially all of NYMC’s
liabilities under the purchased contracts and purchased assets arising after
the
closing date. Pursuant to the Asset Purchase Agreement, certain severance and
similar obligations arising after the closing with respect to “transferred
employees” (the “Severance Expenses”) will be paid in the following manner: (i)
Indymac will pay up to the first $500,000 of Severance
Expenses,
(ii)
NYMC will pay up to the next $600,000 of Severance Expenses (the “NYMC Severance
Amount”) and (iii) Indymac will pay Severance Expenses in excess of $1.1
million.
The
Company, NYMC and Indymac have made customary representations, warranties and
covenants in the Asset Purchase Agreement, including, among others,
representations regarding authorization, consents, conflicts and the Pipeline
Loans, as well as NYMC’s covenant to conduct the Business between the date of
the Asset Purchase Agreement and the Closing Date in the manner set forth in
the
Asset
Purchase Agreement.
The
closing of the transaction contemplated by the Asset Purchase Agreement is
subject to various closing conditions, including, among other things, the
continued accuracy at closing of NYMC’s representations and warranties made in
the Asset Purchase Agreement, the absence of a material adverse effect on the
Business or the Company’s or NYMC’s ability to consummate the transaction, and
the agreement of certain officers and employees to accept employment with
Indymac effective on the Closing Date. The Company anticipates that the
transaction will be completed by March 31, 2007, at which time it will
effectively exit the retail mortgage origination business. The Company
anticipates that the transaction will result in net available proceeds of $12.1
million, after deducting fees and expenses and before deduction of the amount
to
be held in escrow, and expects to redeploy the net proceeds in high quality
mortgage loan securities.
A
copy of
a press release dated February 7, 2007 announcing the Asset Purchase Agreement
and the related transaction is attached as Exhibit 99.1 to this Current Report
on Form 8-K and is incorporated herein by reference.
| Item
5.02. |
|
Departure
of Directors or Principal Officers; Election of Directors; Appointment
of
Certain Officers; Compensatory Arrangements of Certain
Officers.
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In
connection with the execution of the Asset Purchase Agreement described above
in
Item 1.01, the Company announced on February 7, 2006 that upon closing of the
Indymac transaction, Mr. Steven B. Schnall, the Company’s Chairman, Co-Chief
Executive Officer and President and NYMC’s Chief Executive Officer and
President, will resign his executive positions with the Company and NYMC, but
will remain as the Company’s non-executive Chairman. In addition, Mr.
Joseph V. Fierro, Chief Operating Officer of NYMC, will also resign his
position with NYMC upon closing of the transaction. Upon closing, each of
Messrs. Schnall and Fierro will assume positions with Indymac and The New York
Mortgage Company, a division of IndyMac.
The
Company announced that in connection with the departures of Messrs. Schnall
and Fierro, effective upon and subject to the closing of the Indymac
transaction, Mr. Steven R. Mumma, age 48, the Company’s Chief Operating Officer
and Chief Financial Officer, will assume the additional roles of President
and
Co-Chief Executive Officer. Mr. David A. Akre, currently Vice Chairman and
Co-Chief Executive Officer of the Company, will remain in these roles upon
completion of this transaction.
In
connection with these departures, the Company entered into a separation and
release agreement with each of Messrs. Schnall and Fierro, dated February 6,
2007 (the “Separation Agreements”) that provide for, among other things, in the
case of Mr. Schnall, the vesting of 15,856 shares of unvested restricted stock
held by Mr. Schnall and, in the case of Mr. Fierro, the vesting of 6,797 shares
of unvested restricted stock held by Mr. Fierro. Each of the Separation
Agreements will only become effective and enforceable on and as of the Closing
Date, and each will be subject to the closing of the Indymac transaction and
the
effectiveness of the employment agreements between Indymac and each of Messrs.
Schnall and Fierro.
This
summary is qualified in its entirety by reference to the Separation Agreements,
which are being filed as Exhibits 10.1 and 10.2 to this Current Report on Form
8-K and are incorporated by reference herein.
| Item
9.01. |
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Financial
Statements and
Exhibits.
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(d)
Exhibits.
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10.1
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Separation
Agreement and General Release, by and between the Company and Steven
B.
Schnall, dated as of February 6, 2007.
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10.2
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Separation
Agreement and General Release, by and between the Company and Joseph
V.
Fierro, dated as of February 6, 2007.
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99.1 |
Press
release, dated February 7, 2007. |
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
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NEW
YORK
MORTGAGE TRUST, INC. |
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(Registrant) |
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| Date: February
14, 2007 |
By: |
/s/ Steve
R.
Mumma |
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Steve
R. Mumma |
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Chief
Financial Officer |
EXHIBIT
INDEX
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Exhibit |
Description
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10.1
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Separation
Agreement and General Release, by and between the Company and Steven
B.
Schnall, dated as of February 6, 2007.
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10.2
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Separation
Agreement and General Release, by and between the Company and Joseph
V.
Fierro, dated as of February 6, 2007.
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99.1 |
Press release,
dated
February 7, 2007. |