Adamas Trust, Inc S-4, filed May 28, 2021
Adamas Trust, Inc. (ADAM)
As filed with the Securities and Exchange Commission on May 28, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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New York Mortgage Trust, Inc. |
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(Exact Name of Registrant as Specified in Its Charter) |
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Maryland |
6798 |
47-0934168 |
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(State or Other Jurisdiction of |
(Primary Standard |
(I.R.S. Employer |
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90 Park Avenue New York, New York 10016 (212) 792-0107 |
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(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices) |
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Steven R. Mumma Chief Executive Officer 90 Park Avenue New York, New York 10016 (212) 792-0107 |
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(Name, address, including zip code, and telephone number, including area code, of agent for service) |
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Copies to: |
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Christopher C. Green Vinson & Elkins L.L.P. 2200 Pennsylvania Avenue NW Suite 500 West Washington, DC 20037 (202) 639-6500 |
Approximate date of commencement of proposed exchange offer: As soon as practicable after this Registration Statement is declared effective.
If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, please check the following box. ☐
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ☒ | Accelerated filer ☐ |
| Non-accelerated filer ☐ | Smaller reporting company ☐ |
| Emerging growth company ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Company Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross Border Third-Party Tender Offer) ☐
The Registrant hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
CALCULATION OF REGISTRATION FEE
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Title of Securities Being Registered |
Amount to be registered |
Proposed Maximum Offering Price Per Note |
Proposed Maximum Aggregate Offering Price(1) |
Amount of Registration Fee |
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5.75% Senior Notes due 2026 |
$100,000,000 |
100% |
$100,000,000 |
$10,910 |
(1) Calculated pursuant to Rule 457(f) of the Securities Act of 1933, as amended.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities in any jurisdiction where the offering is not permitted.
SUBJECT TO COMPLETION, DATED MAY 28, 2021
PROSPECTUS
New York Mortgage Trust, Inc.
Offer to Exchange (the “Exchange Offer”)
$100,000,000 aggregate principal amount of its 5.75% Senior Notes due 2026 (the “Exchange Notes”) which have been registered under the Securities Act of 1933, as amended (the “Securities Act”), for any and all of its outstanding unregistered 5.75% Senior Notes due 2026 issued on April 27, 2021 (CUSIP and ISIN Nos.: 649604 AE5, US649604AE57; 649604 AF2, US649604AF23) (the “Outstanding Notes” and, together with the Exchange Notes, the “Notes”).
We are conducting the exchange offer in order to provide you with an opportunity to exchange your unregistered Outstanding Notes for freely tradable notes that have been registered under the Securities Act.
The Exchange Offer
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We will exchange all Outstanding Notes that are validly tendered and not validly withdrawn for an equal principal amount of Exchange Notes that are freely tradable. |
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You may withdraw tenders of Outstanding Notes at any time prior to the expiration date of the exchange offer. |
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The exchange offer expires at 5 p.m., New York City time, on , 2021, unless extended. We do not currently intend to extend the expiration date. |
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We believe that the exchange of Outstanding Notes for Exchange Notes in the exchange offer will not be a taxable event to holders for U.S. federal income tax purposes. |
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The terms of the Exchange Notes to be issued in the exchange offer are substantially identical to the terms of the Outstanding Notes, except that the Exchange Notes will be freely tradable. |
Results of the Exchange Offer
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The Exchange Notes may be sold in the over-the-counter market, in negotiated transactions or through a combination of such methods. We do not plan to list the Exchange Notes on a national market. |
All untendered Outstanding Notes will continue to be subject to the restrictions on transfer set forth in the Outstanding Notes and in the indenture governing the Outstanding Notes. In general, the Outstanding Notes may not be offered or sold, unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. Other than in connection with the exchange offer, we do not currently anticipate that we will register the Outstanding Notes under the Securities Act.
See “Risk Factors” beginning on page 7 of this prospectus for a discussion of certain risks that you should consider before participating in the exchange offer.
Neither the Securities and Exchange Commission (the “SEC”) nor any state securities commission has approved or disapproved of the Exchange Notes to be distributed in the exchange offer or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is 2021.
You should rely only on the information contained or incorporated by reference in this prospectus. We have not authorized anyone to provide you with different information. The prospectus may be used only for the purposes for which it has been published, and no person has been authorized to give any information not contained or incorporated by reference herein. If you receive any other information, you should not rely on it. We are not making an offer of these securities in any state where the offer is not permitted.
TABLE OF CONTENTS
Page
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Special Note Regarding Forward-Looking Statements |
iii |
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Prospectus Summary |
1 |
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Risk Factors |
7 |
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The Exchange Offer |
10 |
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Use of Proceeds |
18 |
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Description of Notes |
19 |
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Plan of Distribution |
35 |
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Certain U.S. Federal Income Tax Consequences |
36 |
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Legal Matters |
41 |
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Experts |
42 |
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Where You Can Find More Information |
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Documents Incorporated by Reference |
44 |
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Annex A: Letter of Transmittal |
A-1 |
In this prospectus we refer to New York Mortgage Trust, Inc., together with its consolidated subsidiaries, as “we,” “us,” “Company,” or “our,” unless we specifically state otherwise or the context indicates otherwise, and we refer to our wholly-owned taxable REIT subsidiaries as “TRSs” and our wholly-owned qualified REIT subsidiaries as “QRSs.” In addition, the following defines certain of the commonly used terms in this prospectus:
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“ABS” refers to debt and/or equity tranches of securitizations backed by various asset classes including, but not limited to, automobiles, aircraft, credit cards, equipment, franchises, recreational vehicles and student loans; |
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“Agency RMBS” refers to RMBS representing interests in or obligations backed by pools of residential loans guaranteed by a government sponsored enterprise (“GSE”), such as the Federal National Mortgage Association (“Fannie Mae”) or the Federal Home Loan Mortgage Corporation (“Freddie Mac”), or by an agency of the U.S. government, such as the Government National Mortgage Association (“Ginnie Mae”); |
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“business purpose loans” refers to short-term loans collateralized by residential properties made to investors who intend to rehabilitate and sell the residential property for a profit; |
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“CMBS” refers to commercial mortgage-backed securities comprised of commercial mortgage pass-through securities issued by a GSE, as well as PO, IO, or mezzanine securities that represent the right to a specific component of the cash flow from a pool of commercial mortgage loans; |
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“excess mortgage servicing spread” refers to the difference between the contractual servicing fee with Fannie Mae, Freddie Mac or Ginnie Mae and the base servicing fee that is retained as compensation for servicing or subservicing the related mortgage loans pursuant to the applicable servicing contract; |
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“GAAP” refers to generally accepted accounting principles within the United States; |
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“non-Agency RMBS” refers to RMBS that are not guaranteed by any agency of the U.S. Government or GSE; |
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“RMBS” refers to residential mortgage-backed securities backed by adjustable-rate, hybrid adjustable-rate, or fixed-rate residential loans; and |
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“Variable Interest Entity” or “VIE” refers to an entity in which equity investors do not have the characteristics of a controlling financial interest or do not have sufficient equity at risk for the entity to finance its activities without additional subordinated financial support from other parties. |
This prospectus incorporates important business and financial information about us that is not included in or delivered with this prospectus. We will provide this information to you at no charge upon written or oral request directed to: New York Mortgage Trust, Inc., 90 Park Avenue, Floor 23, New York, New York 10016, Attention: Investor Relations, Telephone: (212) 792-0107. To obtain timely delivery, holders of Outstanding Notes must request this information no later than five business days before the date on which the exchange offer expires, or , 2021.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
We make forward-looking statements in this prospectus, and the documents that are incorporated by reference into this prospectus that are subject to risks and uncertainties. These forward-looking statements include information about possible or assumed future results of our business, financial condition, liquidity, results of operations, cash flow and plans and objectives. When we make statements which are not historical in nature, including those containing words such as “believe,” “expect,” “anticipate,” “estimate,” “project,” “plan,” “continue,” “intend,” “should,” “would,” “could,” “goal,” “objective,” “will,” “may,” “seek,” or similar expressions or their negative forms, or refer to strategies, plans, or intentions, we intend to identify forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended, or the “Exchange Act,” and as such, these statements may involve known and unknown risks, uncertainties, and assumptions.
Forward-looking statements are based on our estimates, beliefs, assumptions and expectations of our future performance, taking into account information currently available to us. These estimates, beliefs, assumptions and expectations are subject to risks and uncertainties and can change as a result of many possible events or factors, not all of which are known to us. If a change occurs, our business, financial condition, liquidity and results of operations may vary materially from those expressed, anticipated or contemplated in our forward-looking statements. You should carefully consider these risks before you invest in our securities. The following factors are examples of those that could cause actual results to vary from our forward-looking statements:
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changes in our business and investment strategy; |
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changes in interest rates and the fair market value of our assets, including negative changes resulting in margin calls relating to the financing of our assets; |
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changes in credit spreads; |
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changes in the long-term credit ratings of the U.S., Fannie Mae, Freddie Mac, or Ginnie Mae; |
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general volatility of the markets in which we invest; |
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changes in prepayment rates on the loans we own or that underlie our investment securities; |
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increased rates of default or delinquency and/or decreased recovery rates on our assets; |
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our ability to identify and acquire our targeted assets, including assets in our investment pipeline; |
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changes in our relationships with our financing counterparties and our ability to borrow to finance our assets and the terms thereof; |
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our ability to predict and control costs; |
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changes in laws, regulations or policies affecting our business, including actions that may be taken to contain or address the impact of the COVID-19 pandemic; |
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our ability to make distributions to our stockholders in the future; |
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our ability to maintain our qualification as a real estate investment trust (“REIT”) for U.S. federal income tax purposes; |
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our ability to maintain our exemption from registration under the Investment Company Act of 1940, as amended, or the “Investment Company Act”; |
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risks associated with investing in real estate assets, including changes in business conditions and the general economy, the availability of investment opportunities and the conditions in the market for Agency RMBS, non-Agency RMBS, ABS and CMBS securities, residential loans, structured multi-family investments and other mortgage-, residential housing- and credit-related assets, including changes resulting from the ongoing spread and economic effects of COVID-19; and |
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the impact of COVID-19 on us, our operations and our personnel. |
These and other risks, uncertainties and other important factors identified, or incorporated by reference in this prospectus, including, but not limited to, those described under the caption “Risk Factors” in this prospectus, as well as those described under the captions “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Quantitative and Qualitative Disclosures about Market Risk” in our most recent Annual Report on Form 10-K and in our subsequently filed Quarterly Reports on Form 10-Q and in the other documents incorporated by reference in this prospectus, could cause our actual results to differ materially from those projected in any forward-looking statements we make. All forward-looking statements speak only as of the date on which they are made. New risks and uncertainties arise over time and it is not possible to predict those events or how they may affect us. Except as required by law, we are not obligated to, and do not intend to, update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. See “Where You Can Find More Information” below.
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed information and financial statements and notes thereto appearing elsewhere in, or incorporated by reference into, this prospectus. Because this is a summary, it may not contain all of the information that is important to you. You should read the entire prospectus, including the section entitled “Risk Factors” and the documents incorporated by reference herein, before making an investment decision.
Our Company
We are a REIT for U.S. federal income tax purposes, in the business of acquiring, investing in, financing and managing primarily mortgage-related single-family and multi-family residential assets. Our objective is to deliver long-term stable distributions to our stockholders over changing economic conditions through a combination of net interest margin and capital gains from a diversified investment portfolio. Our investment portfolio includes credit sensitive single-family and multi-family assets.
We intend to focus on our core portfolio strengths of single-family and multi-family residential credit assets, which we believe will deliver better risk adjusted returns over time, with a current focus on assets that may benefit from active management in a prolonged low interest rate environment. Our targeted investments currently include (i) residential loans and business purpose loans, (ii) structured multi-family property investments such as preferred equity in, and mezzanine loans to, owners of multi-family properties, as well as joint venture equity investments in multi-family properties, (iii) non-Agency RMBS, (iv) Agency RMBS, (v) CMBS and (vi) certain other mortgage-, residential housing- and credit-related assets. Subject to maintaining our qualification as a REIT and the maintenance of our exclusion from registration as an investment company under the Investment Company Act, we also may opportunistically acquire and manage various other types of mortgage-, residential housing- and other credit-related assets that we believe will compensate us appropriately for the risks associated with them, including, without limitation, collateralized mortgage obligations, mortgage servicing rights, excess mortgage servicing spreads and securities issued by newly originated securitizations, including credit sensitive securities from these securitizations.
In recent years, we have sought to internalize and expand our investment management platform through the addition of multiple teams of investment professionals with expertise in our targeted assets. This includes the acquisition in 2016 of the external manager for our structured multi-family property investments and the addition of investment professionals in 2018 and 2019, which expanded our capabilities in self managing, sourcing and creating single-family credit assets. We believe that these steps have strengthened our ability to identify and secure attractive investment opportunities.
We have elected to be taxed as a REIT for U.S. federal income tax purposes and have complied, and intend to continue to comply, with the provisions of the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”), with respect thereto. Accordingly, we do not expect to be subject to U.S. federal income tax on our REIT taxable income that we currently distribute to our stockholders provided we satisfy certain asset, income, distribution and ownership tests and record keeping requirements. Even if we maintain our qualification as a REIT, we expect to be subject to some U.S. federal, state and local income taxes on our income generated in our TRSs.
Our principal executive offices are located at 90 Park Avenue, Floor 23, New York, New York 10016, and our telephone number is (212) 792-0107. Our corporate website is www.nymtrust.com. Our corporate website and the information contained therein or connected thereto do not constitute a part of this prospectus supplement, the accompanying prospectus or any amendment or supplement thereto.
Risk Factors
You should carefully consider all the information contained in this prospectus, including information in documents incorporated by reference, prior to participating in the exchange offer. In particular, we urge you to carefully consider the factors set forth under “Risk Factors” beginning on page 7 of this prospectus and those risk factors incorporated by reference herein from our Annual Report on Form 10-K and, to the extent applicable, any reports subsequently filed by us under the Exchange Act.
The Exchange Offer
On April 27, 2021, we completed a private offering of $100,000,000 aggregate principal amount of the Outstanding Notes.
| Exchange Offer | We are offering to exchange Outstanding Notes for Exchange Notes. Outstanding Notes may only be tendered in minimum denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. |
| Expiration Date | The exchange offer will expire at 5:00 p.m., New York City time, on , 2021, unless we decide to extend it. We currently do not intend to extend the expiration date. |
| Resale |
Based on an interpretation by the staff of the SEC set forth in no-action letters issued to third parties, we believe that the Exchange Notes issued pursuant to the exchange offer in exchange for the Outstanding Notes may be offered for resale, resold and otherwise transferred by you (unless you are our “affiliate” within the meaning of Rule 405 under the Securities Act) without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that:
● you are acquiring the Exchange Notes in the ordinary course of your business; and
● you have not engaged in, do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution of the Exchange Notes.
If you are a broker-dealer and receive Exchange Notes for your own account in exchange for Outstanding Notes that you acquired as a result of market-making activities or other trading activities, you must acknowledge that you will deliver this prospectus in connection with any resale of the Exchange Notes. See “Plan of Distribution.”
Any holder of Outstanding Notes who:
● is our affiliate;
● does not acquire Exchange Notes in the ordinary course of its business; or
● tenders its Outstanding Notes in the exchange offer with the intention to participate, or for the purpose of participating, in a distribution of Exchange Notes;
cannot rely on the position of the staff of the SEC enunciated in the Morgan Stanley & Co. Incorporated no action letter (available June 5, 1991) and the Exxon Capital Holdings Corporation no action letter (available May 13, 1988), as interpreted in the Shearman & Sterling no action letter (available July 2, 1993), or similar no-action letters and, in the absence of an exemption therefrom, must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the Exchange Notes. |
| Withdrawal | You may withdraw the tender of your Outstanding Notes at any time prior to the expiration of the exchange offer. We will return to you any of your Outstanding Notes that are not accepted for any reason for exchange, without expense to you, promptly after the expiration or termination of the exchange offer. |
| Conditions to the Exchange Offer | The exchange offer is subject to customary conditions, which we may waive. See “The Exchange Offer—Conditions to the Exchange Offer.” |
| Procedures for Tendering Outstanding Notes |
If you wish to participate in the exchange offer, you must complete, sign and date the accompanying letter of transmittal, or a facsimile of such letter of transmittal, according to the instructions contained in this prospectus and the letter of transmittal. You must then mail or otherwise deliver the letter of transmittal, or a facsimile of such letter of transmittal, together with your Outstanding Notes and any other required documents, to the exchange agent at the address set forth on the cover page of the letter of transmittal.
If you hold Outstanding Notes through The Depository Trust Company (“DTC”) and wish to participate in the exchange offer, you must comply with the Automated Tender Offer Program procedures of DTC by which you will agree to be bound by the letter of transmittal. By signing, or agreeing to be bound by, the letter of transmittal, you will represent to us that, among other things:
● you are not our “affiliate” within the meaning of Rule 405 under the Securities Act;
● you do not have an arrangement or understanding with any person or entity to participate in the distribution of the Exchange Notes;
● you are acquiring the Exchange Notes in the ordinary course of your business; and
● if you are a broker-dealer that will receive Exchange Notes for your own account in exchange for Outstanding Notes that were acquired as a result of market-making activities, you will deliver a prospectus, as required by law, in connection with any resale of such Exchange Notes. |
| Special Procedures for Beneficial Owners | If you are a beneficial owner of Outstanding Notes that are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, and you wish to tender those Outstanding Notes in the exchange offer, you should contact the registered holder promptly and instruct the registered holder to tender those Outstanding Notes on your behalf. If you wish to tender on your own behalf, you must, prior to completing and executing the letter of transmittal and delivering your Outstanding Notes, either make appropriate arrangements to register ownership of the Outstanding Notes in your name or obtain a properly completed bond power from the registered holder. The transfer of registered ownership may take considerable time and may not be able to be completed prior to the expiration date. |
| Effect on Holders of Outstanding Notes | As a result of the making of, and upon acceptance for exchange of all validly tendered Outstanding Notes pursuant to the terms of, the exchange offer, we will have fulfilled a covenant under the registration rights agreement. Accordingly, there will be no increase in the interest rate on the Outstanding Notes under the circumstances described in the registration rights agreement. If you do not tender your Outstanding Notes in the exchange offer, you will continue to be entitled to all the rights and limitations applicable to the Outstanding Notes as set forth in the indenture governing the Notes, except we will not have any further obligation to you to provide for the exchange and registration of untendered Outstanding Notes under the registration rights agreement. To the extent that Outstanding Notes are tendered and accepted in the exchange offer, the trading market for Outstanding Notes that are not so tendered and accepted could be adversely affected. |
| Consequences of Failure to Exchange | All untendered Outstanding Notes will continue to be subject to the restrictions on transfer set forth in the Outstanding Notes and in the indenture governing the Notes. In general, the Outstanding Notes may not be offered or sold, unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. Other than in connection with the exchange offer, we do not currently anticipate that we will register the Outstanding Notes under the Securities Act. |
| Certain U.S. Federal Income Tax Consequences | We believe that the exchange of Outstanding Notes for Exchange Notes in the exchange offer will not be a taxable event to holders for U.S. federal income tax purposes. See “Certain U.S. Federal Income Tax Consequences.” |
| Use of Proceeds | We will not receive any cash proceeds from the issuance of the Exchange Notes in the exchange offer. See “Use of Proceeds.” |
| Exchange Agent | UMB Bank, National Association is the exchange agent for the exchange offer. The address and telephone number of the exchange agent are set forth in the section captioned “The Exchange Offer—Exchange Agent.” |
Terms of the Exchange Notes
The summary below describes the principal terms of the Exchange Notes. Certain of the terms and conditions described below are subject to important limitations and exceptions. The “Description of Notes” section of this prospectus contains more detailed descriptions of the terms and conditions of the Exchange Notes. The Exchange Notes will have terms identical in all material respects to the Outstanding Notes, except that the Exchange Notes will be registered under the Securities Act and will not contain terms with respect to transfer restrictions, registration rights and additional interest for failure to observe certain obligations in the registration rights agreement. Unless otherwise indicated, references to the “Notes” are to the Outstanding Notes and the Exchange Notes.
| Issuer | New York Mortgage Trust, Inc. |
| Securities Offered | $100,000,000 aggregate principal amount of Exchange Notes. |
| Maturity Date | The Exchange Notes will mature on April 30, 2026. |
| Interest | Interest on the Exchange Notes will be payable in cash and will accrue at a rate of 5.75% per year. The interest rate on the Notes is subject to change upon the occurrence of certain events. See “Description of Notes—Interest.” |
| Interest Payment Dates | We will pay interest on the Exchange Notes on April 30 and October 30, beginning on October 30, 2021. Interest on the Outstanding Notes began to accrue from April 27, 2021. The Exchange Notes will accrue interest from the same date as the Outstanding Notes for which they are exchanged. |
| No Guarantees | The Exchange Notes are not guaranteed by any of our subsidiaries. |
| Security and Ranking |
The Exchange Notes will be unsecured and will rank equally and ratably with the other senior indebtedness of New York Mortgage Trust, Inc., including any Outstanding Notes. The Exchange Notes will be effectively subordinated to New York Mortgage Trust Inc.’s secured indebtedness, to the extent of the value of the collateral securing such indebtedness, and will be structurally subordinated to the existing and future indebtedness and other liabilities (including trade payables) and preferred equity of our subsidiaries, including any indebtedness and other liabilities that are guaranteed by our subsidiaries.
As of March 31, 2021, we had approximately $0.72 billion of total consolidated indebtedness of which an aggregate of $0.14 billion was senior indebtedness and an aggregate of $0.54 billion was secured indebtedness. As of March 31, 2021, our subsidiaries had $0.08 billion of indebtedness and other liabilities (including trade payables and excluding repurchase agreement indebtedness included in secured indebtedness referenced above) to which the Notes would have been structurally subordinated. After giving effect to the issuance of the Notes and the use of proceeds therefrom, our total consolidated indebtedness, senior indebtedness and secured indebtedness would have been approximately $0.82 billion, $0.24 billion and $0.54 billion, respectively. |
| Restrictive Covenants | The indenture governing the Notes, among other things, contains covenants that require the Company to maintain a minimum net asset value, ratio of unencumbered assets to unsecured indebtedness and senior debt service coverage ratio and limits the amount of leverage the Company may utilize and its ability to transfer the Company’s assets substantially as an entirety or merge into or consolidate with another person. See “Description of Notes—Restrictive Covenants” and “Description of Notes —Merger, Consolidation or Sale of Assets.” These covenants are subject to a number of important qualifications and limitations. |
| Optional Redemption | The Exchange Notes may be redeemed by us, at our option, in whole or in part, at any time or from time to time prior to April 30, 2023 (the “First Call Date”), at a redemption price equal to 100% of the aggregate principal amount of the Exchange Notes to be redeemed, plus a “make-whole” premium plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date. At any time or from time to time on or after the First Call Date, we may redeem the Exchange Notes in whole or in part by paying 100% of the aggregate principal amount of the Exchange Notes to be redeemed, plus the applicable Call Price Amount (defined herein) plus accrued and unpaid interest thereon to, but excluding, the redemption date. See “Description of Notes—Optional Redemption.” |
| Change of Control Offer | If a change of control triggering event as described herein occurs, each holder of the Exchange Notes may require us to purchase all or a portion of such holder’s Exchange Notes at a price equal to 101% of their principal amount, plus accrued and unpaid interest thereon, if any, to, but excluding, the date of purchase. See “Description of Notes—Change of Control Offer.” |
| Form and Denominations | The Exchange Notes will be issued in fully registered form without coupons and in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. These global securities will be deposited with or on behalf of DTC and registered in the name of a nominee of DTC. |
| Future Issuances | On April 27, 2021, we issued $100.0 million in aggregate principal amount of Notes eligible for exchange in this exchange offer. We may from time to time, without notice to or consent of holders, increase the aggregate principal amount of the Notes by issuing additional notes in the future with the same terms as the Notes, except for the issue date and offering price and, if applicable, the initial interest payment date and the initial interest accrual date, and such additional notes shall form a single series with the Notes, provided that such additional notes are fungible with the Notes for U.S. federal income tax purposes. |
| Absence of a Public Market for the Exchange Notes | The Exchange Notes will be freely transferable but will be new securities for which there will not initially be a market. Accordingly, a market for the Exchange Notes may not develop or there may be limited liquidity in any such market that may develop. We do not intend to apply for a listing of the Exchange Notes on any securities exchange or any automated dealer quotation system. |
| Indenture Trustee | UMB Bank, National Association |
| Listing | The Exchange Notes will not be listed on any securities exchange. |
| Governing Law | The indenture is, and the Exchange Notes will be, governed by the laws of the State of New York. |
RISK FACTORS
Any investment in the Exchange Notes involves significant risks. Before making an investment decision, you should carefully read and consider the following risk factors together with the information set forth under the heading “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2021 (which information is incorporated by reference herein), as well as the other information contained or incorporated by reference in this prospectus before making an investment decision. See “Where You Can Find More Information,” below.
If any of the risks described or incorporated by reference in this prospectus occur, our business, financial condition or results of operations could be materially and adversely affected. The risks and uncertainties described in this prospectus and in the documents incorporated by reference in this prospectus are not the only ones we face. Additional risks and uncertainties not presently known to us, or not presently deemed material by us, may also impair our operations and performance.
Risks Related to the Exchange Offer
Your ability to transfer the Exchange Notes may be limited by the absence of an active trading market, and no active trading market may develop for the Exchange Notes.
We do not intend to apply for a listing of the Exchange Notes on a securities exchange or on any automated dealer quotation system. There is currently no established market for the Exchange Notes, and we cannot assure you as to the liquidity of markets that may develop for the Exchange Notes, your ability to sell the Exchange Notes or the price at which you would be able to sell the Exchange Notes. If such markets were to exist, the Exchange Notes could trade at prices that may be lower than their principal amount or purchase price depending on many factors, including prevailing interest rates, the market for similar notes, our financial and operating performance and other factors. An active market for the Exchange Notes may not develop or, if developed, may not continue. Historically, the market for non-investment grade debt has been subject to disruptions that have caused substantial volatility in the prices of securities similar to the Exchange Notes. The market, if any, for the Exchange Notes may experience similar disruptions and any such disruptions may adversely affect the prices at which you may sell your Exchange Notes.
Certain persons who participate in the Exchange Offer must deliver a prospectus in connection with resales of the Exchange Notes.
Based on interpretations of the staff of the SEC contained in the Exxon Capital Holdings Corporation no action letter (available May 13, 1988), as interpreted in the Shearman & Sterling no action letter (available July 2, 1993) and the Morgan Stanley & Co. Incorporated no action letter (available June 5, 1991), we believe that you may offer for resale, resell or otherwise transfer the Exchange Notes without compliance with the registration and prospectus delivery requirements of the Securities Act. However, in some instances described in this prospectus under “Plan of Distribution,” certain holders of Exchange Notes will remain obligated to comply with the registration and prospectus delivery requirements of the Securities Act to transfer the Exchange Notes. If such a holder transfers any Exchange Notes without delivering a prospectus meeting the requirements of the Securities Act or without an applicable exemption from registration under the Securities Act, such a holder may incur liability under the Securities Act. We do not and will not assume, or indemnify such a holder against this liability.
Risks Related to the Notes
Our substantial indebtedness could adversely affect our business, financial condition or results of operations and prevent us from fulfilling our obligations under the Notes.
We currently have and will continue to have a significant amount of indebtedness. As of March 31, 2021, we had approximately $0.72 billion of total consolidated indebtedness of which an aggregate of $0.14 billion was senior indebtedness and an aggregate of $0.54 billion was secured indebtedness. As of March 31, 2021, our subsidiaries had $0.08 billion of indebtedness and other liabilities (including trade payables and excluding repurchase agreement indebtedness included in secured indebtedness referenced above) to which the Notes would have been structurally subordinated. After giving effect to the issuance of the Outstanding Notes on April 27, 2021 and the use of proceeds therefrom, our total consolidated indebtedness, senior indebtedness and secured indebtedness would have been approximately $0.82 billion, $0.24 billion and $0.54 billion, respectively. This substantial level of indebtedness increases the risk that we may be unable to generate enough cash to pay amounts due in respect of our indebtedness, including the Exchange Notes.
Our substantial indebtedness could have important consequences to you and significant effects on our business. For example, it could:
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make it more difficult for us to satisfy our obligations with respect to the Notes; |
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increase our vulnerability to general adverse economic and industry conditions; |
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require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, thereby reducing the availability of our cash flow to fund investments in our targeted assets, working capital and other general corporate purposes; |
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limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate; |
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restrict us from exploiting business opportunities; and |
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limit our ability to borrow additional funds. |
Moreover, the financial covenants in the indenture governing the Notes are subject to numerous exceptions and permit us to incur indebtedness subject to, among other exceptions, compliance with certain financial ratios and we and our subsidiaries will likely be able to incur substantial additional secured and unsecured indebtedness without violating such covenants. In addition, the indenture does not impose any limitation on the incurrence or issuance by us or our subsidiaries of liabilities that are not considered Indebtedness (as defined under “Description of Notes—Certain Definitions”).
In addition, the agreements that govern our current indebtedness contain, and the agreements that may govern any future indebtedness that we may incur may contain, financial and other restrictive covenants that limit or may limit our ability to engage in activities that may be in our long-term best interests.
The Notes are effectively subordinated to our secured debt and any liabilities of our subsidiaries.
The Notes rank senior in right of payment to our subordinated debentures and any of our other indebtedness that is expressly subordinated in right of payment to the Notes; equal in right of payment to any of our liabilities that are not so subordinated; effectively junior in right of payment to any of our secured indebtedness to the extent of the value of the assets securing such indebtedness; and structurally junior to all indebtedness and other liabilities of our subsidiaries. In the event of our bankruptcy, liquidation, reorganization or other winding up, our assets that secure debt ranking senior in right of payment to the Notes will be available to pay obligations on the Notes only after the secured debt has been repaid in full from these assets. There may not be sufficient assets remaining to pay amounts due on any or all of the Notes then outstanding. The indenture governing the Notes will not, subject to certain exceptions, prohibit us from incurring additional senior debt or secured debt, nor will it prohibit any of our subsidiaries from incurring additional liabilities.
We may not have sufficient funds to purchase the Notes upon a Change of Control Triggering Event as required by the indenture governing the Notes. The Change of Control Offer covenant provides limited protection.
Holders of the Notes may require us to purchase their Notes upon a “Change of Control Triggering Event” as defined under “Description of Notes—Change of Control Offer.” A Change of Control (as defined in such section of this prospectus) may also result in holders of certain of our future indebtedness having the right to require us to purchase or repay indebtedness issued under one or more indentures or other agreements. We cannot assure you that we would have sufficient financial resources, or would be able to arrange financing, to pay the purchase price of all Notes that may be tendered by the holders thereof in such a circumstance plus any other indebtedness that may also become due. Furthermore, the terms of our then existing indebtedness or other agreements may contain covenants, events of default or other provisions that could be violated if a Change of Control were to occur or if we were required to purchase the Notes and purchase or repay other indebtedness containing a similar repurchase or repayment requirement.
The Change of Control Offer covenant is limited to the transactions specified in “Description of Notes—Change of Control Offer.” We have no current intention to engage in a transaction involving a Change of Control Triggering Event, although it is possible that we could decide to do so in the future. We could, in the future, enter into certain transactions, including acquisitions, dispositions, refinancings or other recapitalizations, that would not constitute a Change of Control Triggering Event under the indenture, but that could increase the amount of indebtedness outstanding at such time or otherwise affect the capital structure or the credit ratings of the Notes or us.
Changes in our credit ratings may adversely affect your investment in the Notes.
The credit ratings of our indebtedness are an assessment by rating agencies at the present time of our ability to pay our indebtedness when due. These ratings are not recommendations to purchase, hold or sell the Notes, inasmuch as the ratings do not comment as to market price or suitability for a particular investor, are limited in scope, and do not address all material risks relating to an investment in the Notes, but rather reflect only the view of each rating agency at the time the rating is issued. The ratings are based on current information furnished to the ratings agencies by us and information obtained by the ratings agencies from other sources. An explanation of the significance of such ratings may be obtained from such rating agency. A downgrade or potential downgrade in these ratings or the assignment of new ratings that are lower than existing ratings could reduce the number of potential investors of the Notes and adversely affect the prices and liquidity of the Notes. There can be no assurance that such credit ratings will remain in effect for any given period of time or that such ratings will not be lowered, suspended or withdrawn entirely by the rating agencies, if, in each rating agency’s judgment, circumstances so warrant.
THE EXCHANGE OFFER
Purpose and Effect of the Exchange Offer
We have entered into a registration rights agreement in which we agreed, under certain circumstances, to use our commercially reasonable efforts to file a registration statement relating to offers to exchange the Outstanding Notes for Exchange Notes and to use our commercially reasonable efforts to consummate the exchange offer no later than October 24, 2021. The Exchange Notes will have terms identical in all material respects to the Outstanding Notes, except that the Exchange Notes will be registered under the Securities Act and will not contain terms with respect to transfer restrictions, registration rights and additional interest for failure to observe certain obligations in the registration rights agreement.
If such obligations are not satisfied (a “Registration Default”), the annual interest rate on the Outstanding Notes will be increased by 0.25%. The annual interest rate on the Outstanding Notes will increase by an additional 0.25% for each subsequent 90-day period during which the Registration Default continues, up to a maximum additional interest rate of 0.50% per year over the applicable interest rate described above. If the Registration Default is corrected, the applicable interest rate on the Outstanding Notes will revert to the original level. A copy of the registration rights agreement has been filed as an exhibit to the registration statement of which this prospectus is a part.
If you wish to exchange your Outstanding Notes for Exchange Notes in the exchange offer, you will be required to make the following written representations:
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you are not our affiliate within the meaning of Rule 405 of the Securities Act; |
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you have no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; |
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you are not engaged in, and do not intend to engage in, a distribution of the Exchange Notes; and |
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you are acquiring the Exchange Notes in the ordinary course of your business. |
Each broker-dealer that receives Exchange Notes for its own account in exchange for Outstanding Notes, where the broker-dealer acquired the Outstanding Notes as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Notes. Please see “Plan of Distribution.”
Resale of Exchange Notes
Based on interpretations by the SEC set forth in no-action letters issued to third parties, we believe that you may resell or otherwise transfer Exchange Notes issued in the exchange offer without complying with the registration and prospectus delivery provisions of the Securities Act if:
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you are not our affiliate within the meaning of Rule 405 under the Securities Act; |
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you do not have an arrangement or understanding with any person to participate in a distribution of the Exchange Notes; |
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you are not engaged in, and do not intend to engage in, a distribution of the Exchange Notes; and |
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you are acquiring the Exchange Notes in the ordinary course of your business. |
If you are our affiliate, or are engaging in, or intend to engage in, or have any arrangement or understanding with any person to participate in, a distribution of the Exchange Notes, or are not acquiring the Exchange Notes in the ordinary course of your business:
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you cannot rely on the position of the SEC contained in the Exxon Capital Holdings Corporation no action letter (available May 13, 1988), as interpreted in the Shearman & Sterling no action letter (available July 2, 1993) and the Morgan Stanley & Co. Incorporated no action letter (available June 5, 1991) or similar SEC no-action letters; and |
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in the absence of an exception from the position stated immediately above, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the Exchange Notes. |
This prospectus may be used for an offer to resell, resale or other transfer of Exchange Notes only as specifically set forth in this prospectus. With regard to broker-dealers, only broker-dealers that acquired the Outstanding Notes as a result of market-making activities or other trading activities may participate in the exchange offer. Each broker-dealer that receives Exchange Notes for its own account in exchange for Outstanding Notes, where such Outstanding Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of the Exchange Notes. Please read “Plan of Distribution” for more details regarding the transfer of Exchange Notes.
We have not entered into any arrangement or understanding with any person who will receive Exchange Notes in the exchange offer to distribute those securities following completion of the offer. We are not aware of any person that will participate in the exchange offer with a view to distribute the Exchange Notes.
Terms of the Exchange Offer
On the terms and subject to the conditions set forth in this prospectus and in the accompanying letter of transmittal, we will accept for exchange in the exchange offer any Outstanding Notes that are validly tendered and not validly withdrawn prior to the expiration date. Outstanding Notes may only be tendered in minimum denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. We will issue Exchange Notes in principal amount identical to Outstanding Notes surrendered in the exchange offer.
The form and terms of the Exchange Notes will be identical in all material respects to the form and terms of the Outstanding Notes except the Exchange Notes will be registered under the Securities Act, will not bear legends restricting their transfer and will not provide for any additional interest upon our failure to fulfill our obligations under the registration rights agreement to complete the exchange offer. The Exchange Notes will evidence the same debt as the Outstanding Notes. The Exchange Notes will be issued under and entitled to the benefits of the indenture that authorized the issuance of the Outstanding Notes. For a description of the indenture governing the Notes, see “Description of Notes.”
The exchange offer is not conditioned upon any minimum aggregate principal amount of Outstanding Notes being tendered for exchange.
As of the date of this prospectus, $100.0 million aggregate principal amount of Outstanding Notes is outstanding. This prospectus and the letter of transmittal are being sent to all registered holders of Outstanding Notes. There will be no fixed record date for determining registered holders of Outstanding Notes entitled to participate in the exchange offer. We intend to conduct the exchange offer in accordance with the provisions of the registration rights agreement, the applicable requirements of the Securities Act and the Exchange Act, and the rules and regulations of the SEC. Outstanding Notes that are not tendered for exchange in the exchange offer will remain outstanding and continue to accrue interest and will be entitled to the rights and benefits such holders have under the indenture governing the Notes agreement except we will not have any further obligation to you to provide for the registration of such Outstanding Notes under the registration rights agreement.
We will be deemed to have accepted for exchange properly tendered Outstanding Notes when we have given written notice of the acceptance to the exchange agent. The exchange agent will act as agent for the tendering holders for the purposes of receiving the Exchange Notes from us and delivering Exchange Notes to holders. Subject to the terms of the registration rights agreement, we expressly reserve the right to amend or terminate the exchange offer and to refuse to accept the occurrence of any of the conditions specified below under “—Conditions to the Exchange Offer.”
If you tender your Outstanding Notes in the exchange offer, you will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal, transfer taxes with respect to the exchange of Outstanding Notes. We will pay all charges and expenses, other than certain applicable taxes described below, in connection with the exchange offer. It is important that you read “—Fees and Expenses” below for more details regarding fees and expenses incurred in the exchange offer.
Expiration Date, Extensions and Amendments
As used in this prospectus, the term “expiration date” means 5:00 p.m., New York City time, on , 2021. However, if we, in our sole discretion, extend the period of time for which the exchange offer is open, the term “expiration date” will mean the latest time and date to which we shall have extended the expiration of the exchange offer. We expect to keep the exchange offer in effect for a period of not less than 20 business days from the date the notice of the exchange offer is mailed to holders of the Outstanding Notes.
To extend the period of time during which the exchange offer is open, we will notify the exchange agent of any extension by written notice, followed by notification by press release or other public announcement to the registered holders of the Outstanding Notes no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date.
We reserve the right, in our sole discretion:
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to delay accepting for exchange any Outstanding Notes (only in the case that we amend or extend the exchange offer); |
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to extend the exchange offer or to terminate the exchange offer if any of the conditions set forth below under “—Conditions to the Exchange Offer” have not been satisfied, by giving written notice of such delay, extension or termination to the exchange agent; and |
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subject to the terms of the registration rights agreement, to amend the terms of the exchange offer in any manner. In the event of a material change in the exchange offer, including the waiver of a material condition, we will extend the offer period, if necessary, so that at least five business days remain in such offer period following notice of the material change. |
Any delay in acceptance, extension, termination or amendment will be followed as promptly as practicable by written notice to the registered holders of the Outstanding Notes. If we amend the exchange offer in a manner that we determine to constitute a material change, we will promptly disclose the amendment in a manner reasonably calculated to inform the holders of the Outstanding Notes of that amendment.
Conditions to the Exchange Offer
Despite any other term of the exchange offer, we will not be required to accept for exchange, or to issue Exchange Notes in exchange for, any Outstanding Notes and we may terminate or amend the exchange offer as provided in this prospectus prior to the expiration date if in our reasonable judgment:
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the exchange offer or the making of any exchange by a holder violates any applicable law or interpretation of the SEC; or |
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any action or proceeding has been instituted or threatened in writing in any court or by or before any governmental agency with respect to the exchange offer that, in our judgment, would reasonably be expected to impair our ability to proceed with the exchange offer. |
In addition, we will not be obligated to accept for exchange the Outstanding Notes of any holder that has not made to us:
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the representations described under “—Purpose and Effect of the Exchange Offer,” “—Procedures for Tendering Outstanding Notes” and “Plan of Distribution”; or |
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any other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to make available to us an appropriate form for registration of the Exchange Notes under the Securities Act. |
We expressly reserve the right at any time or at various times to extend the period of time during which the exchange offer is open. Consequently, we may delay acceptance of any Outstanding Notes by giving written notice of such extension to their holders. We will return any Outstanding Notes that we do not accept for exchange for any reason without expense to their tendering holder promptly after the expiration or termination of the exchange offer.
We expressly reserve the right to amend or terminate the exchange offer upon the occurrence of any of the conditions of the exchange offer specified above. We will give written notice of any extension, amendment, non-acceptance or termination to the holders of the Outstanding Notes as promptly as practicable. In the case of any extension, such notice will be issued no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date.
These conditions are for our sole benefit, and we may assert them regardless of the circumstances that may give rise to them or waive them in whole or in part at any or at various times prior to the expiration date of the exchange offer in our sole discretion. If we waive a condition for one participant in the exchange offer, such condition will be deemed to have been waived for all participants in the exchange offer. If we fail at any time to exercise any of the foregoing rights, this failure will not constitute a waiver of such right. Each such right will be deemed an ongoing right that we may assert at any time or at various times prior to the expiration date.
In addition, we will not accept for exchange any Outstanding Notes tendered, and will not issue Exchange Notes in exchange for any such Outstanding Notes, if at such time any stop order is threatened or in effect with respect to the registration statement of which this prospectus constitutes a part or the qualification of the indenture governing the Notes under the Trust Indenture Act of 1939, as amended.
Procedures for Tendering Outstanding Notes
To tender your Outstanding Notes in the exchange offer, you must comply with either of the following:
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complete, sign and date the letter of transmittal, or a facsimile of the letter of transmittal, have the signature(s) on the letter of transmittal guaranteed if required by the letter of transmittal and mail or deliver such letter of transmittal or facsimile thereof to the exchange agent at the address set forth below under “—Exchange Agent” prior to the expiration date; or |
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comply with DTC’s Automated Tender Offer Program procedures described below. |
In addition, either:
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the exchange agent must receive certificates for Outstanding Notes along with the letter of transmittal prior to the expiration date; or |
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the exchange agent must receive a timely confirmation of book-entry transfer of Outstanding Notes into the exchange agent’s account at DTC according to the procedures for book-entry transfer described below or a properly transmitted agent’s message prior to the expiration date. |
Your tender, if not withdrawn prior to the expiration date, constitutes an agreement between us and you upon the terms and subject to the conditions described in this prospectus and in the letter of transmittal.
The method of delivery of Outstanding Notes, letters of transmittal and all other required documents to the exchange agent is at your election and risk. We recommend that instead of delivery by mail, you use an overnight or hand delivery service, properly insured. In all cases, you should allow sufficient time to assure timely delivery to the exchange agent before the expiration date. You should not send letters of transmittal or certificates representing Outstanding Notes to us. You may request that your broker, dealer, commercial bank, trust company or nominee effect the above transactions for you.
If you are a beneficial owner whose Outstanding Notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender your Outstanding Notes, you should promptly contact the registered holder and instruct the registered holder to tender on your behalf. If you wish to tender the Outstanding Notes yourself, you must, prior to completing and executing the letter of transmittal and delivering your Outstanding Notes, either:
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make appropriate arrangements to register ownership of the Outstanding Notes in your name; or |
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obtain a properly completed bond power from the registered holder of Outstanding Notes. |
The transfer of registered ownership may take considerable time and may not be able to be completed prior to the expiration date.
Signatures on the letter of transmittal or a notice of withdrawal, as the case may be, must be guaranteed by a member firm of a registered national securities exchange or of the Financial Industry Regulating Authority, a commercial bank or trust company having an office or correspondent in the United States or another “eligible guarantor institution” within the meaning of Rule 17A(d)-15 under the Exchange Act unless the Outstanding Notes surrendered for exchange are tendered:
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by a registered holder of the Outstanding Notes who has not completed the box entitled “Special Registration Instructions” or “Special Delivery Instructions” on the letter of transmittal; or |
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for the account of an eligible guarantor institution. |
If the letter of transmittal is signed by a person other than the registered holder of any Outstanding Notes listed on the Outstanding Notes, such Outstanding Notes must be endorsed or accompanied by a properly completed bond power. The bond power must be signed by the registered holder as the registered holder’s name appears on the Outstanding Notes, and an eligible guarantor institution must guarantee the signature on the bond power.
If the letter of transmittal, any certificates representing Outstanding Notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, those persons should also indicate when signing and, unless waived by us, they should also submit evidence satisfactory to us of their authority to so act.
The exchange agent and DTC have confirmed that any financial institution that is a participant in DTC’s system may use DTC’s Automated Tender Offer Program to tender Outstanding Notes. Participants in the program may, instead of physically completing and signing the letter of transmittal and delivering it to the exchange agent, electronically transmit their acceptance of the exchange by causing DTC to transfer the Outstanding Notes to the exchange agent in accordance with DTC’s Automated Tender Offer Program procedures for transfer. DTC will then send an agent’s message to the exchange agent. The term “agent’s message” means a message transmitted by DTC, received by the exchange agent and forming part of the book-entry confirmation, which states that:
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DTC has received an express acknowledgment from a participant in its Automated Tender Offer Program that is tendering Outstanding Notes that are the subject of the book-entry confirmation; |
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the participant has received and agrees to be bound by the terms of the letter of transmittal; and |
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we may enforce that agreement against such participant. |
DTC is referred to herein as a “book-entry transfer facility.”
Acceptance of Exchange Notes
In all cases, we will issue Exchange Notes for Outstanding Notes promptly after the expiration date only after the exchange agent timely receives:
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Outstanding Notes or a timely book-entry confirmation of such Outstanding Notes into the exchange agent’s account at the book-entry transfer facility; and |
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a properly completed and duly executed letter of transmittal and all other required documents or a properly transmitted agent’s message. |
By tendering Outstanding Notes pursuant to the exchange offer, you will represent to us that, among other things:
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you are not our affiliate or an affiliate of any guarantor within the meaning of Rule 405 under the Securities Act; 14 |
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you do not have an arrangement or understanding with any person or entity to participate in a distribution of the Exchange Notes; and |
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you are acquiring the Exchange Notes in the ordinary course of your business. |
In addition, each broker-dealer that is to receive Exchange Notes for its own account in exchange for Outstanding Notes must represent that such Outstanding Notes were acquired by that broker-dealer as a result of market-making activities or other trading activities and must acknowledge that it will deliver a prospectus that meets the requirements of the Securities Act in connection with any resale of the Exchange Notes. See “Plan of Distribution.”
We will interpret the terms and conditions of the exchange offer, including the letter of transmittal and the instructions to the letter of transmittal, and will resolve all questions as to the validity, form, eligibility, including time of receipt and acceptance of Outstanding Notes tendered for exchange. Our determinations in this regard will be final and binding on all parties. We reserve the absolute right to reject any and all tenders of any particular Outstanding Notes not properly tendered or to not accept any particular Outstanding Notes if the acceptance might, in our or our counsel’s judgment, be unlawful. We also reserve the absolute right to waive any defects or irregularities as to any particular Outstanding Notes prior to the expiration date.
Unless waived, any defects or irregularities in connection with tenders of Outstanding Notes for exchange must be cured within such reasonable period of time as we determine. Neither we, the exchange agent nor any other person will be under any duty to give notification of any defect or irregularity with respect to any tender of Outstanding Notes for exchange, nor will any of them incur any liability for any failure to give notification. Any Outstanding Notes received by the exchange agent that are not properly tendered and as to which the irregularities have not been cured or waived will be returned by the exchange agent to the tendering holder, unless otherwise provided in the letter of transmittal, promptly after the expiration date.
Book-Entry Delivery Procedures
Promptly after the date of this prospectus, the exchange agent will establish an account with respect to the Outstanding Notes at DTC and, as the book-entry transfer facility, for purposes of the exchange offer. Any financial institution that is a participant in the book-entry transfer facility’s system may make book-entry delivery of the Outstanding Notes by causing the book-entry transfer facility to transfer those Outstanding Notes into the exchange agent’s account at the facility in accordance with the facility’s procedures for such transfer. To be timely, book-entry delivery of Outstanding Notes requires receipt of a confirmation of a book-entry transfer, a “book-entry confirmation,” prior to the expiration date. In addition, although delivery of Outstanding Notes may be effected through book-entry transfer into the exchange agent’s account at the book-entry transfer facility, the letter of transmittal or a manually signed facsimile thereof, together with any required signature guarantees and any other required documents, or an “agent’s message,” as defined below, in connection with a book-entry transfer, must, in any case, be delivered or transmitted to and received by the exchange agent at its address set forth on the cover page of the letter of transmittal prior to the expiration date to receive Exchange Notes for tendered Outstanding Notes. Tender will not be deemed made until such documents are received by the exchange agent. Delivery of documents to the book-entry transfer facility does not constitute delivery to the exchange agent.
No Guaranteed Delivery
There are no guaranteed delivery procedures available in connection with the exchange offer. Accordingly, holders of Outstanding Notes must deliver or cause to be delivered their Outstanding Notes and all other required documentation to the exchange agent in accordance with the procedures described in this prospectus and the letter of transmittal prior to 5:00 p.m., New York City time, on the expiration date.
Withdrawal Rights
Except as otherwise provided in this prospectus, you may withdraw your tender of Outstanding Notes at any time prior to 12:00 midnight, New York City time, on the expiration date.
For a withdrawal to be effective:
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the exchange agent must receive a written notice, which may be by telegram, telex, facsimile or letter, of withdrawal at its address set forth below under “—Exchange Agent”; or |
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you must comply with the appropriate procedures of DTC’s Automated Tender Offer Program system. |
Any notice of withdrawal must:
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specify the name of the person who tendered the Outstanding Notes to be withdrawn; |
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identify the Outstanding Notes to be withdrawn, including the certificate numbers and principal amount of the Outstanding Notes; and |
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where certificates for Outstanding Notes have been transmitted, specify the name in which such Outstanding Notes were registered, if different from that of the withdrawing holder. |
If certificates for Outstanding Notes have been delivered or otherwise identified to the exchange agent, then, prior to the release of such certificates, you must also submit:
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the serial numbers of the particular certificates to be withdrawn; and |
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a signed notice of withdrawal with signatures guaranteed by an eligible institution unless you are an eligible guarantor institution. |
If Outstanding Notes have been tendered pursuant to the procedures for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn Outstanding Notes and otherwise comply with the procedures of the facility. We will determine all questions as to the validity, form and eligibility, including time of receipt of notices of withdrawal, and our determination will be final and binding on all parties. Any Outstanding Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the exchange offer. Any Outstanding Notes that have been tendered for exchange but that are not exchanged for any reason will be returned to their holder, without cost to the holder, or, in the case of book-entry transfer, the Outstanding Notes will be credited to an account at the book-entry transfer facility, promptly after withdrawal, rejection of tender or termination of the exchange offer. Properly withdrawn Outstanding Notes may be retendered by following the procedures described under “—Procedures for Tendering Outstanding Notes” above at any time on or prior to the expiration date.
Exchange Agent
UMB Bank, National Association has been appointed as the exchange agent for the exchange offer. UMB Bank, National Association also acts as trustee under the indenture governing the Notes. You should direct all executed letters of transmittal and all questions and requests for assistance, and requests for additional copies of this prospectus or of the letter of transmittal to the exchange agent addressed as follows:
By Registered or Certified Mail; Hand or Overnight Delivery:
UMB BANK, NATIONAL ASSOCIATION
5555 San Felipe St, Suite 870
Houston, TX 77056
Attention: Mauri J. Cowen, Senior Vice President
For Information or to Confirm by Telephone Call: (713) 300-0587
Fees and Expenses
The registration rights agreement provides that we will bear all expenses in connection with the performance of our obligations relating to the registration of the Exchange Notes and the conduct of the exchange offer. These expenses include registration and filing fees, accounting and legal fees and all expenses of printing and messenger and delivery services, among others. We will pay the exchange agent reasonable and customary fees for its services and reasonable out-of-pocket expenses.
We have not retained any dealer-manager in connection with the exchange offer and will not pay any fee or commission to any broker, dealer, nominee or other person, other than the exchange agent, for soliciting tenders of Outstanding Notes pursuant to the exchange offer.
Accounting Treatment
We will record the Exchange Notes in our accounting records at the same carrying value as the Outstanding Notes, which is the aggregate principal amount as reflected in our accounting records on the date of exchange. Accordingly, we will not recognize any gain or loss for accounting purposes upon the consummation of the exchange offer. We will record the expenses of the exchange offer as incurred.
Transfer Taxes
We may require payment of a sum sufficient to cover any transfer tax or other similar governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes—other than certain exchanges described in the Indenture not involving any transfer.
Consequences of Failure to Exchange
If you do not exchange your Outstanding Notes for Exchange Notes under the exchange offer, your Outstanding Notes will remain subject to the restrictions on transfer of such Outstanding Notes:
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as set forth in the legend printed on the Outstanding Notes as a consequence of the issuance of the Outstanding Notes pursuant to the exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws; and |
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as otherwise set forth in the note purchase agreement entered into with the several purchasers of the Outstanding Notes in connection with the private offering of the Outstanding Notes. |
In general, you may not offer or sell your Outstanding Notes unless they are registered under the Securities Act or if the offer or sale is exempt from registration under the Securities Act and applicable state securities laws. We do not intend to register resales of the Outstanding Notes under the Securities Act.
Other
Participating in the exchange offer is voluntary, and you should carefully consider whether to accept. You are urged to consult your financial and tax advisors in making your own decision on what action to take.
We may in the future seek to acquire untendered Outstanding Notes in open market or privately negotiated transactions, through subsequent exchange offer or otherwise. We have no present plans to acquire any Outstanding Notes that are not tendered in the exchange offer or to file a registration statement to permit resales of any untendered Outstanding Notes.
USE OF PROCEEDS
The exchange offer is intended to satisfy our obligations under the registration rights agreement. We will not receive any cash proceeds from the issuance of the Exchange Notes pursuant to the exchange offer. In consideration for issuing the Exchange Notes as contemplated in this prospectus, we will receive in exchange a like principal amount of Outstanding Notes, the terms of which are identical in all material respects to the Exchange Notes, except that the Exchange Notes will be registered under the Securities Act and will not contain terms with respect to transfer restrictions, registration rights and additional interest for failure to observe certain obligations in the registration rights agreement. The Outstanding Notes surrendered in exchange for the Exchange Notes will be retired and cancelled and cannot be reissued. Accordingly, the issuance of the Exchange Notes will not result in any change in our capitalization.
DESCRIPTION OF NOTES
General
The Notes were issued under an indenture, dated April 27, 2021 (the “Indenture”), between us and UMB Bank, National Association, as trustee (the “Trustee”). The following description of the Notes does not purport to be complete and is subject to and qualified in its entirety by reference to the Indenture. You should read the Indenture (including the forms of certificates evidencing the Notes attached thereto as an exhibit), a copy of which is available from us upon request.
The Notes were issued in fully registered form without coupons and in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. We do not intend to apply for the listing of the Notes on any securities exchange. The Notes are unsecured and rank equally with all of our other unsubordinated indebtedness.
The Notes are limited to an aggregate principal amount of $100.0 million.
The Notes will mature at 100% of their principal amount on April 30, 2026 (the “maturity date”). The Notes are not entitled to any sinking fund, which means that the Indenture does not require us to redeem or retire the Notes periodically. We may, subject to compliance with applicable law, at any time and from time to time, purchase Notes in the open market or otherwise.
Payments of principal, interest and premium, if any, to owners of the book-entry interests described below are expected to be made in accordance with the procedures of DTC and its participants.
For purposes of this “Description of Notes” section, references to “we,” “us” and “our” refer only to New York Mortgage Trust, Inc., and references to the “Notes” refer to the Exchange Notes together with the Outstanding Notes.
Interest
The Notes bear interest at an annual rate equal to 5.75%, subject to adjustment for changes in the ratings of the Notes as described below. The interest rate is also subject to increase in the circumstances described under “Exchange Offer; Registration Rights.” All references to interest on the Notes include additional interest on the Notes to the extent payable as described under “Exchange Offer; Registration Rights.”
Interest on the Notes is payable semi-annually in arrears on April 30 and October 30 of each year (each such date, an “interest payment date”), beginning on October 30, 2021, to the persons in whose names the Notes are registered at the close of business on the preceding April 15 and October 15 of each year. Interest on the Notes at the maturity date will be payable to the persons to whom principal is payable. Interest on the Notes is computed on the basis of a 360-day year comprised of twelve 30-day months. Interest payments on the Notes will be the amount of interest accrued from and including April 27, 2021 or the most recent interest payment date on which interest has been paid to, but excluding, the interest payment date, redemption date or the maturity date, as the case may be.
If any interest or other payment date of a Note falls on a day that is not a business day, the required payment of principal, premium, if any, and interest will be made on the next succeeding business day as if made on the date that the payment was due, and no interest will accrue on that payment for the period from and after that interest or other payment date, as the case may be, to the date of that payment on the next succeeding business day. The term “business day” means, when used with respect to any note, any day other than a Saturday, a Sunday or a day on which the Trustee, paying agent or banking institutions in New York City are authorized or required by law, regulation or executive order to close.
The initial annual interest rate of 5.75% per annum is subject to adjustment from time to time based on changes to the ratings of the Notes by one or more “nationally recognized statistical rating organizations” within the meaning of Section 3(a)(62) of the Exchange Act, including but not limited to Egan-Jones Ratings Company and any successor to the credit rating business thereof (“Egan-Jones” and each such organization, an “NRSRO”).
The annual interest rate on the Notes will be equal to the Initial Adjusted Interest Rate beginning on the first day of any Six-Month Interest Period (as defined below) if as of such day an Initial Below Investment Grade Rating Event has occurred and is continuing, and likewise the annual interest rate on the Notes will be equal to the Additional Adjusted Interest Rate beginning on the first day of any Six-Month Interest Period if as of such day, an Additional Below Investment Grade Rating Event has occurred and is continuing. In the event that the annual interest rate on the Notes increases due to one or more Initial Below Investment Grade Rating Events and/or Additional Below Investment Grade Rating Events, the rate will revert to the initial interest rate beginning on the first day of any Six-Month Interest Period if as of such day no Initial Below Investment Grade Rating Event is continuing, and it will revert to the Initial Adjusted Interest Rate beginning on the first day of any Six-Month Interest Period if as of such day no Additional Below Investment Grade Rating Event is continuing. The Company will notify the Trustee and DTC in writing of any change in the ratings of the Notes and the effective dates thereof, and in no event will the Trustee be responsible for monitoring such changes. Further, in no circumstances will the annual interest rate exceed the Additional Adjusted Interest Rate due to changes in ratings of the Notes, and in no event will it ever be less than the initial rate.
Set forth below are the definition of certain terms used in this “—Interest” section.
“Six-Month Interest Period” means the period beginning on each interest payment date for the Notes and ending on the day immediately preceding the commencement of the next following interest payment date for the Notes. The initial Six-Month Interest Period will begin on the first interest payment date for the Notes.
“Initial Adjusted Interest Rate” means 5.75% plus 0.50% per annum.
“Initial Below Investment Grade Rating Event” shall occur if, as of any date of determination, the Notes have a rating of “BB+”, “BB” or “BB-” (or the equivalent) by Egan-Jones or the equivalent by any other NRSRO selected by the Company to maintain a rating of the Notes in accordance with the terms of the Indenture, in each case, without giving effect to any credit watch.
“Additional Adjusted Interest Rate” means 5.75% plus 0.75% per annum.
“Additional Below Investment Grade Rating Event” shall occur if, as of any date of determination, the Notes have (x) a Rating of “B+” or below (or the equivalent) by Egan-Jones or the equivalent by any other NRSRO selected by the Company to maintain a rating of the Notes in accordance with the Indenture, in each case, without giving effect to any credit watch or (y) no rating.
We have agreed in the Indenture to use our commercially reasonable efforts at our own expense to maintain a rating of the Notes by at least one NRSRO at all times while the Notes are outstanding.
Payment and Transfer or Exchange
Principal of and premium, if any, and interest on the Notes will be payable, and the Notes may be exchanged or transferred, at the office or agency maintained by us for such purpose (which initially will be the office of the Trustee located at 5555 San Felipe St, Suite 870, Houston, Texas 77056). Payment of principal of and premium, if any, and interest on a global note registered in the name of or held by DTC or its nominee will be made in immediately available funds to DTC or its nominee, as the case may be, as the registered holder of such global note. If any of the Notes is no longer represented by a global note, payment of interest on certificated notes in definitive form may, at our option, be made by check mailed directly to holders at their registered addresses. See “Book-Entry Settlement and Clearance.”
A holder may transfer or exchange any certificated notes in definitive form at the same location given in the preceding paragraph. No service charge will be made for any registration of transfer or exchange of Notes, but we may require payment of a sum sufficient to cover any transfer tax or other similar governmental charge payable in connection therewith. We are not required to transfer or exchange any Note selected for redemption for a period of 15 days before providing a notice of redemption of Notes to be redeemed.
The registered holder of a Note will be treated as the owner of it for all purposes. Only registered holders have rights under the Indenture, and unless otherwise indicated all references to “holders” in this “Description of Notes” section are to registered holders of the Notes.
All amounts of principal of and premium, if any, or interest on the Notes paid by us that remain unclaimed two years after such payment was due and payable will be repaid to us, subject to applicable abandoned property law, and the holders of such Notes will thereafter look solely to us for payment.
Ranking
The Notes are our senior unsecured obligations and rank equally with all of our other unsubordinated indebtedness from time to time outstanding. The Notes are effectively subordinated to our secured indebtedness, to the extent of the value of the collateral securing such indebtedness and are structurally subordinated to the existing and future indebtedness and other liabilities (including trade payables) and preferred equity of our subsidiaries, including any indebtedness and other liabilities that are guaranteed by our subsidiaries.
As of March 31, 2021, we had approximately $0.72 billion of total consolidated indebtedness of which an aggregate of $0.14 billion was senior indebtedness and an aggregate of $0.54 billion was secured indebtedness. As of March 31, 2021, our subsidiaries had $0.08 billion of indebtedness and other liabilities (including trade payables and excluding repurchase agreement indebtedness included in secured indebtedness referenced above) to which the Notes would have been structurally subordinated. After giving effect to the issuance of the Notes and the use of proceeds therefrom, our total consolidated indebtedness, senior indebtedness and secured indebtedness would have been approximately $0.82 billion, $0.24 billion and $0.54 billion, respectively.
Optional Redemption by Us
The Notes may be redeemed by us, at our option, in whole or in part, at any time or from time to time prior to April 30, 2023 (the “First Call Date”), at a redemption price equal to 100% of the aggregate principal amount of the Notes to be redeemed, plus a Make-Whole Amount (defined below) plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date. At any time or from time to time on or after the First Call Date, we may redeem the Notes in whole or in part by paying 100% of the aggregate principal amount of the Notes to be redeemed, plus the applicable Call Price Amount (defined below) plus accrued and unpaid interest thereon to, but excluding, the redemption date.
“Call Price Amount” means, with respect to any Notes redeemed at the Company’s option on and after the First Call Date:
(1) in the case of any such redemption that occurs during the period from and including the First Call Date to but excluding April 30, 2024, an amount equal to the principal amount of such Notes multiplied by 2.875%;
(2) in the case of any such redemption that occurs during the period from and including April 30, 2024, to but excluding April 30, 2025, an amount equal to the principal amount of such Notes multiplied by 1.4375%; and
(3) in the case of any such redemption that occurs during the period from (and including) and after April 30, 2025, an amount equal to $0.
“Make-Whole Amount” means, with respect to any Notes redeemed at the Company’s option prior to the First Call Date, the amount (not less than zero) calculated by the Company equal to the sum of (a) the present value of all interest (excluding any interest required to be paid on the applicable redemption date) that would have accrued on the principal amount of such Notes, for the period from and including the applicable redemption date to but excluding the First Call Date, calculated as if such Notes had continued to remain outstanding through the First Call Date and based on a rate of interest per annum equal to the interest rate then applicable to the Notes and computed using a discount rate equal to the Treasury Rate as of such date plus 50 basis points discounted to such date on a semi-annual basis (computed on the basis of a 360-day year consisting of twelve 30-day months) and (b) an amount equal to the principal amount of such Notes (calculated as if such principal amount of such Notes had continued to remain outstanding through the First Call Date) multiplied by 2.875%.
“Comparable Treasury Issue” means the United States Treasury security selected by the Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed, determined as if the Notes matured on the First Call Date (the “Remaining Life”), that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the Remaining Life of the Notes.
“Comparable Treasury Price” means, with respect to any redemption date for the Notes, (i) the arithmetic average of five Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if we obtain fewer than five such Reference Treasury Dealer Quotations, the arithmetic average of all such quotations for such redemption date.
“Independent Investment Banker” means, with respect to any redemption date for the Notes, one of the Reference Treasury Dealers selected by us or, if such firms or any such successors, as the case may be, are unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing selected by us.
“Primary Treasury Dealer” means a primary U.S. government securities dealer in the United States.
“Reference Treasury Dealers” means, with respect to any redemption date for the Notes, (i) a Primary Treasury Dealer selected by Piper Sandler & Co. and (ii) four other Primary Treasury Dealers selected by us; provided, however, that if any of the foregoing ceases to be a Primary Treasury Dealer, we shall substitute therefor another Primary Treasury Dealer selected by us.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the arithmetic average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to us by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the second business day preceding such redemption date.
“Treasury Rate” means, with respect to any redemption date for the Notes, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15” or any successor publication which is published weekly by the Federal Reserve and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the First Call Date, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest month) or (2) if the release referred to in clause (1) (or any successor release) is not published during the week preceding the calculation date or does not contain the yields referred to above, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. The Company shall calculate the Treasury Rate on the second business day preceding the redemption date.
Notice of any redemption will be sent at least 10 days but not more than 60 days before the redemption date to (w) each holder of Notes to be redeemed at such holder’s registered address, (x) to the Trustee, (y) to the security registrar to forward to each holder of Notes to be redeemed at such holder’s registered address, or (z) otherwise in accordance with the procedures of DTC. If less than all the Notes are to be redeemed at our option, and the Notes are represented by global notes, the Notes to be redeemed will be selected by DTC in accordance with its standard procedures. If the Notes to be redeemed are not global notes held by DTC, the Trustee will select, in such manner as it deems fair and appropriate, the Notes (or portions thereof) to be redeemed. The Trustee shall have no duty to calculate or verify the calculation of the redemption price.
Unless we default in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Notes or portions thereof called for redemption on such redemption date.
Additional Notes
We may from time to time, without notice to or the consent of the holders of the Notes, create and issue additional notes ranking equally with the Notes and otherwise similar in all respects (other than the issue date, offering price or the first payment of interest following the issue date of such additional notes). Such additional notes may be consolidated and form a single series with, and will have similar terms as to ranking, redemption, waivers, amendments or otherwise as the Notes, and will vote together as one class on all matters with respect to the Notes, provided that such additional notes either shall be fungible with the Notes for federal income tax purposes or shall be issued under a different CUSIP number.
Change of Control Offer
Upon the occurrence of a Change of Control Triggering Event (as defined below), each holder of Notes will have the right to require us to purchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of the holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, up to but excluding the date of purchase (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), except to the extent that we have exercised our right to redeem the Notes as described under “—Optional Redemption.”
For purposes of this covenant, “Change of Control” means the occurrence of any one of the following:
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the sale, assignment, transfer, lease or other conveyance (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties and assets of us and our subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than to us or one or more of our subsidiaries or a combination thereof or a person controlled by us or one or more of our subsidiaries or a combination thereof; or |
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the consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than any subsidiary of ours) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of our outstanding Voting Stock (as defined below), measured by voting power rather than number of shares or the like. |
Notwithstanding the foregoing, a transaction will not be deemed to involve a “Change of Control” under clause (b) above if (i) we become a direct or indirect wholly owned subsidiary of a holding company and (ii)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following such transaction are substantially the same as the holders of our Voting Stock immediately prior to such transaction or (B) immediately following such transaction no “person” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than a holding company satisfying the requirements of this sentence) is the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding Voting Stock of such holding company, measured by voting power rather than number of shares or the like.
“Change of Control Triggering Event” means the Notes fail to have at least a rating of BBB- on any date during the period (the “Trigger Period”) commencing on the date of the first public announcement by us of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which 60-day period will be extended for so long as the rating of the Notes is under publicly announced consideration for a possible downgrade as a result of the Change of Control by any of the NRSROs). Notwithstanding the foregoing, no Change of Control Triggering Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
Within 60 days following the date upon which the Change of Control Triggering Event has occurred, or, at our option, prior to any Change of Control but after the public announcement of the transaction that constitutes or may constitute the Change of Control, except to the extent that we have exercised our right to redeem the Notes as described under “—Optional Redemption,” we will send a notice (a “Change of Control Offer”) to each holder of Notes with a copy to the Trustee, which notice will govern the terms of the Change of Control Offer, stating:
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that a Change of Control Triggering Event has occurred or may occur and that such holder has or may have the right to require us to purchase such holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, up to but excluding the date of purchase (subject to the right of holders of record on the relevant record date to receive interest on the relevant interest payment date); |
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the circumstances regarding such Change of Control Triggering Event; |
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the purchase date (which shall be (i) no earlier than 30 days nor later than 60 days from the date such notice is sent, if sent after consummation of the Change of Control and (ii) on the date of the Change of Control, if sent prior to consummation of the Change of Control, in each case, other than as may be required by law) (such date, the “Change of Control Payment Date”); and |
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the instructions that a holder must follow in order to have its Notes purchased. |
Holders of Notes electing to have Notes purchased pursuant to a Change of Control Offer will be required to surrender their Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the paying agent at the address specified in the notice, or transfer their Notes to the paying agent by book-entry transfer pursuant to the applicable procedures of the paying agent, prior to the close of business on the third business day prior to the Change of Control Payment Date.
We may make a Change of Control Offer in advance of a Change of Control and the Change of Control Payment Date, and our Change of Control Offer may be conditioned upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer.
If holders of not less than 90% in aggregate principal amount of the Notes outstanding validly tender and do not withdraw the Notes in a Change of Control Offer and we, or any third party making a Change of Control Offer in lieu of us, as described below, purchases all of the Notes validly tendered and not withdrawn by such holders, we will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at a redemption price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, up to, but excluding, the date of redemption (subject to the right of holders of record on the relevant record date to receive interest on the relevant interest payment date).
We will not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by us and such third party purchases all Notes properly tendered and not withdrawn under its offer.
We will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the terms described in this prospectus, we shall comply with the applicable securities laws and regulations and will not be deemed to have breached our obligations by virtue thereof.
The definition of Change of Control includes a phrase relating to the sale, assignment, transfer, lease or other conveyance of “all or substantially all” of the properties and assets of us and our subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a holder of Notes to require us to repurchase its Notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all of the properties and assets of us and the subsidiaries taken as a whole to another person may be uncertain.
Restrictive Covenants
The Indenture contains the covenants set forth below. For the definition of certain terms used in this “—Restrictive Covenants” section, see “—Certain Definitions” below. Notwithstanding any provision to the contrary contain in this prospectus, the Indenture or any Note, if Indebtedness (“Refinancing Indebtedness”) has been incurred, the proceeds of which have been set aside, escrowed or otherwise segregated pending a refinancing, redemption or tender of/for other Indebtedness (such other Indebtedness, “Refinanced Indebtedness”), then each calculation under the restrictive covenants made at any time that both the Refinancing Indebtedness and Refinanced Indebtedness shall be outstanding, shall exclude the Refinanced Indebtedness.
Maintenance of Minimum Net Asset Value
The Indenture provides that our Net Asset Value as of the close of business on the last day of each of our fiscal quarters must be equal to or greater than $1,150,000,000 plus the greater of (i) $0 and (ii) 50% of Net Equity Capital Activity.
Maintenance of Senior Debt Service Coverage Ratio
The Indenture provides that we will maintain a Senior Debt Service Coverage Ratio, as of the close of business on the last day of each our fiscal quarters, calculated on a pro forma basis for the incurrence and retirement of Indebtedness (other than revolving Indebtedness) during the applicable Testing Period, equal to or greater than 1.25 to 1.00. In giving pro forma effect to the incurrence of any Indebtedness during the applicable Testing Period (i) Operating Cash Flow for such Testing Period shall be increased by an amount equal to the product of (x) the initial aggregate principal amount of such Indebtedness and (y) our and our subsidiaries’ average yield on earning assets during such Testing Period and (ii) Senior Debt Service shall be increased by the Senior Debt Service that would have been paid on such Indebtedness had it been incurred on the first day of such Testing Period. In giving pro forma effect to the retirement of any Indebtedness during the applicable Testing Period, Senior Debt Service shall be decreased by the Senior Debt Service in respect of such retired Indebtedness as if such Indebtedness had been retired on the day before first day of such Testing Period.
Maintenance of Total Unencumbered Assets
The Indenture provides that we will maintain a ratio of (1) our Total Unencumbered Assets as of the close of business on the last day of each of our fiscal quarters to (2) the lesser of (i) the aggregate principal amount of our and our subsidiaries’ Unsecured Indebtedness as of such date and (ii) the aggregate principal amount of the Notes as of such date, equal to or greater than 1.25 to 1.00.
Maintenance of Net Debt to Equity Ratio
The Indenture provides that we will not permit our Net Debt to Equity Ratio as of the last day of each of our fiscal quarters to be greater than 4.00 to 1.00.
Merger, Consolidation or Sale of Assets
The Indenture provides that we shall not, in any transaction or series of related transactions, consolidate with or merge into any person or sell, assign, transfer, lease or otherwise convey all or substantially all of our properties and assets to any person unless:
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either (A) we shall be the continuing person (in the case of a merger) or (B) the successor person (if other than us) formed by such consolidation or into which we merged or which acquires by sale, assignment, transfer, lease or other conveyance all or substantially all of our properties and assets shall be a corporation, limited liability company, partnership or other entity organized and existing under the laws of the United States, any state thereof or the District of Columbia or any territory thereof and shall expressly assume the due and punctual performance and observance of every obligation of the Company under the Notes; |
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immediately after giving effect to such transaction or transactions, no default or Event of Default shall have occurred and be continuing; and |
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we shall have delivered to the Trustee the officer’s certificate and opinion of counsel called for by the Indenture. |
Upon any consolidation by us with or merger of us into any other person or any sale, assignment, transfer, lease or other conveyance of all or substantially all of our properties and assets to any person in accordance with the provisions described in the preceding paragraph, the successor person or the person to which such sale, assignment, transfer or lease or other conveyance is made shall succeed to, and be substituted for, us under the Indenture and the Notes and, thereafter, except in the case of a lease, we shall be released from all obligations under the Indenture and the Notes.
For purposes of this covenant, the sale, assignment, transfer, lease or conveyance of all or substantially all of the properties and assets of one or more of our subsidiaries, which properties and assets, if held by us instead of such subsidiaries, would constitute all or substantially all of our properties and assets on a consolidated basis, will be deemed to be the sale, assignment, transfer, lease or conveyance of all or substantially all of our properties and assets.
Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, in certain circumstances there may be a degree of uncertainty as to whether a particular transaction would involve “all or substantially all” of the properties and assets of a person.
Delivery of Rule 144A Information
The Indenture provides that, if at any time we are not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, we will prepare and will furnish to any holder of Notes, any beneficial owner of an interest in a global note and any prospective purchaser or other prospective transferee of Notes designated by a holder of Notes or a beneficial owner of an interest in a global note, promptly upon request and at our expense, the financial statements and other information specified in Rule 144A(d)(4) (or any successor provision thereto) under the Securities Act, in each case to the extent necessary to permit the resale or other transfer of Notes by such holder or beneficial owner to be made in compliance with Rule 144A under the Securities Act.
Certain Definitions
Set forth below are the definitions of certain terms used in this “Description of Notes” section. Reference is made to the Indenture for the definition of certain other terms defined in the Indenture and used in this “Description of Notes” section for which no definitions are provided herein.
“Cash Management Obligations” means obligations of any of our subsidiaries or us in relation to (1) treasury, depository or cash management services, arrangements or agreements (including, without limitation, credit, debt or other purchase card programs and intercompany cash management services) or any automated clearinghouse (“ACH”) transfers of funds (including reimbursement and indemnification obligations with respect to letters of credit or similar instruments), and (2) netting services, overdraft protections, controlled disbursement, ACH transactions, return items, interstate deposit network services, supplier services, cash pooling and operational foreign exchange management, Society for Worldwide Interbank Financial Telecommunication transfers and similar programs.
“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests or equivalents (however designated, including any instrument treated as equity for U.S. federal income tax purposes) in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.
“Full Margin Derivative Contract” means a derivative contract between our subsidiary or us (an “NYMT Party”) and a counterparty (the “Derivative Counterparty”) under which the Derivative Counterparty has the right on any business day to demand that the NYMT Party maintain variation margin for the benefit of the Derivative Counterparty in an amount equal to the net mark-to-market value of all derivative contracts between the NYMT Party and the Derivative Counterparty (subject, if applicable, to minimum threshold amounts and/or minimum transfer amounts each not to exceed $1 million).
“GAAP” means generally accepted accounting principles in the United States of America.
“Indebtedness” means, with respect to us or any of our subsidiaries, without duplication:
(1) all then-outstanding indebtedness of such Person for borrowed money (whether by loan or the issuance and sale of debt securities) or for the deferred purchase price of property or services (other than trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices);
(2) any other then-outstanding indebtedness of such Person which is evidenced by a note, bond, debenture or similar instrument;
(3) all then-outstanding obligations of such Person under Finance Lease Obligations;
(4) all then-outstanding obligations of such Person in respect of letters of credit, acceptances or similar instruments issued or created for the account of such Person;
(5) all repurchase obligations (excluding accrued interest or any portion of such obligations representing accrued interest) of such Person under Repurchase Agreements to which it is party; and
(6) all then-outstanding liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof;
provided, however, that, notwithstanding anything to the contrary contained in the Indenture, Indebtedness shall not include:
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Intercompany Indebtedness; |
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payment obligations for securities purchased in the ordinary course of business consistent with past practice, trade accounts payable and other accrued liabilities arising in the ordinary course of business and all obligations respecting the purchase of property or assets other than those relating to payment of the purchase price of the applicable property or assets; |
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any commitment to make loans, advances or other investments, or to purchase investments, Persons or other securities or assets to the extent that there is no recourse to us or any of our subsidiaries other than to the extent of the value of such investments, securities or other assets; |
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obligations of any of our subsidiaries or us under derivative contracts to the extent that either (a) there is no recourse to such subsidiary or us other than for any collateral posted in connection with such derivative contracts or (b) such derivative contract is a Full Margin Derivative Contract; |
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obligations of any of our subsidiaries or us arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; |
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(x) obligations of any of our subsidiaries or us in respect of banker’s acceptances, workers’ compensation claims, surety, performance, bid, customs, stay, appeal, tax or similar bonds, security deposits, performance or completion guarantees and payment obligations in connection with self-insurance or similar obligations provided or obtained by any of our subsidiaries or us in the ordinary course of business and (y) obligations of any of our subsidiaries or us owed to (including in respect of letters of credit for the benefit of) any Person in connection with workers’ compensation, early retirement or termination obligations, pension fund obligations or contributions or similar claims, obligations, taxes or contributions for social security, wages or unemployment, health, disability or other employee benefits, or property, casualty or liability insurance provided to any of our subsidiaries or us pursuant to reimbursement or indemnification obligations of such Person, in each case incurred in the ordinary course of business; |
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obligations of any of our subsidiaries or us arising from agreements of any of our subsidiaries or us providing for indemnification, adjustment of purchase price, earn-outs or similar obligations, in each case incurred or assumed in connection with an investment in or the acquisition or disposition of any business, investments or other securities or assets of any of our subsidiaries or us or any business, investments, other securities or assets or Equity Interests of any of our subsidiaries, other than guarantees of obligations incurred by any Person acquiring all or any portion of such business, investments, assets or Equity Interests for the purpose of financing such acquisition; |
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obligations incurred by any of our subsidiaries or us in connection with (i) insurance premium financing arrangements, (ii) deferred compensation payable to directors, officers, members of management, employees or consultants of any of our subsidiaries or us, (iii) contingent obligations arising under indemnity agreements to title insurance companies to cause such title insurers to issue title insurance policies in the ordinary course of business with respect to real property of any of our subsidiaries or us, (iv) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law and (v) obligations, contingent or otherwise, for the payment of money under any non-compete, consulting or similar arrangements entered into with the seller of a business or any other similar arrangements providing for the deferred payment of the purchase price for an investment or other securities or assets or any other acquisition; |
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obligations of any of our subsidiaries or us owed to banks and other financial institutions incurred in the ordinary course of business of our subsidiaries and us in connection with Cash Management Obligations and other ordinary banking arrangements to provide treasury services or to manage cash balances of our subsidiaries and us; |
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obligations consisting of promissory notes issued by any of our subsidiaries or us to future, present or former directors, officers, employees or consultants of any of our subsidiaries or us or their respective assigns, estates, heirs, family members, spouses, former spouses, domestic partners or former domestic partners to finance the purchase, redemption or other acquisition, cancellation or retirement of Equity Interests, or options, warrants, equity appreciation rights or other rights to purchase or acquire Equity Interests or other equity-based awards, of any of our subsidiaries or us; and |
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any Non-Recourse Indebtedness, Securitization Indebtedness and Permitted Indebtedness. |
For purposes of determining the amount of Indebtedness under any covenants, definitions or other provisions of the Indenture: (a) guarantees of, and obligations in respect of, letters of credit, bankers’ acceptances and other similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included and the incurrence or creation of any such guarantees, obligations or Liens shall not be deemed to be the incurrence of Indebtedness; (b) unless otherwise expressly provided in the Indenture, the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; (c) the amount of a guarantee of Indebtedness of another Person shall be the amount of such liability as determined in accordance with GAAP; (d) the amount of any commitment to make loans, advances or other investments, or to purchase investments, Persons or other securities or assets shall be the amount of such liability as determined in accordance with GAAP; (e) for a group of derivative contracts (which may be one derivative contract) constituting Indebtedness between an NYMT Party and a Derivative Counterparty, the amount of Indebtedness for such group shall be the excess, if any, of the aggregate liabilities in such group over the aggregate assets in such group, each as determined in accordance with GAAP; and (f) if any Person shall own, directly or indirectly, less than 100% of the outstanding common Equity Interests of any subsidiary of such Person, then only a pro rata portion of the Indebtedness of such subsidiary shall be included for purposes of determining the amount of Indebtedness of such Person and its subsidiaries on a consolidated basis. For the avoidance of doubt, it is understood and agreed that, anything in this Indenture to the contrary notwithstanding, (A) Indebtedness of VIEs and (B) Indebtedness pursuant to any operating lease shall not be deemed Indebtedness of any Person or any of its subsidiaries.
“Insolvency Event” means, with respect to any Person, (a) the filing of a decree or order for relief by a court having jurisdiction in the premises with respect to such Person or any part of its assets or property in an involuntary case under any applicable Insolvency Law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any part of its assets or property, or ordering the winding up or liquidation of such Person’s affairs, (b) the commencement by such Person of a voluntary case under any applicable Insolvency Law, (c) the consent by such Person to the entry of an order for relief in an involuntary case under any applicable Insolvency Law, (d) the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any part of its assets or property, (e) the making by such Person of any general assignment for the benefit of creditors, (f) the admission in a legal proceeding of the inability of such Person to pay its debts generally as they become due, (g) the failure by such Person generally to pay its debts as they become due, or (h) the taking of any action by such Person in furtherance of any of the foregoing.
“Insolvency Laws” means Title 11 of the United States Code and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments and similar debtor relief laws from time to time in effect affecting the rights of creditors generally.
“Intercompany Indebtedness” means Indebtedness to which the only parties are any of the Company and any consolidated subsidiary.
“Lien” means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest).
“Net Asset Value” means, as of the date of determination, the total value of the assets less the total value of the liabilities shown on our consolidated statement of assets, liabilities and equity on such date, as calculated and determined in accordance with GAAP.
“Net Cash Proceeds” means with respect to any issuance or sale of Equity Interests or incurrence of Indebtedness, the cash proceeds of such issuance, sale or incurrence, as the case may be, net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts and commissions and brokerage, consultant and other fees and expenses incurred in connection with such issuance, sale or incurrence, as the case may be, and net of taxes paid or payable as a result thereof.
“Net Equity Capital Activity” means the aggregate Net Cash Proceeds from the sale by us of our Equity Interests at any time after the date of the Indenture less (i) the aggregate amount paid by us after the date of the Indenture to repurchase our Equity Interests and (ii) the aggregate amount of cash distributions made by us to the holders of our Equity Interests (other than any of our subsidiaries) at any time after the date of the Indenture.
“Non-Recourse Exclusions” means, with respect to any Securitization or Indebtedness, (a) such representations, warranties, covenants and indemnities which are customarily (as determined by us) made by sellers of financial assets or other Securitization Assets, including without limitation, Securitization Repurchase Obligations, (b) such customary (as determined by us) carve-out matters for which we or any of our subsidiaries acts as guarantor in connection with any such Securitization or Indebtedness, such as fraud, misappropriation and misapplication of funds, misrepresentation, criminal acts, repurchase obligations for breach of representations or warranties, environmental indemnities, Insolvency Events, non-approved transfers, material adverse effect clauses, and regulatory proceedings.
“Non-Recourse Indebtedness” means Indebtedness in respect of which recourse for payment (except for Non-Recourse Exclusions) is contractually limited to specific assets encumbered by a Lien securing such Indebtedness.
“Operating Cash Flow” means for any period of determination, with respect to us and our subsidiaries, on a consolidated basis, net cash provided by operating activities, exclusive of the effects from changes in operating assets and liabilities, plus cash paid for income taxes and interest payments, determined in accordance with GAAP.
“Permitted Indebtedness” means, without duplication, Indebtedness of any of our subsidiaries or us to the extent the Net Cash Proceeds from such Indebtedness are, within 120 days after such Indebtedness is incurred:
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used to purchase any or all of the Notes tendered in a Change of Control Offer made as a result of a Change of Control Triggering Event; |
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used to redeem any or all of the Notes pursuant to the Indenture; or |
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deposited to effect defeasance or covenant defeasance or satisfaction and discharge of the Notes pursuant to the Indenture. |
Accrual of interest, accretion or amortization of original issue discount and payment of interest on any Indebtedness in the form of additional Indebtedness with substantially the same terms will not be deemed to be an incurrence of Indebtedness for purposes of the definition of “Permitted Indebtedness.”
“Permitted Liens” means:
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Liens securing our obligations under the Notes; |
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Liens for taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith by appropriate proceedings, provided any reserve or other appropriate provision as is required by GAAP has been made therefor; and |
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Liens of a depository institution or broker-dealer arising solely by virtue of any contractual, statutory or common law provisions relating to broker’s Liens, banker’s Liens, rights of set-off or similar rights and remedies as to deposit or brokerage accounts or other funds maintained with such depository institution or broker-dealer. |
“Refinance” means, in respect of any security or Indebtedness, to refinance, extend, renew, replace or refund (including pursuant to any defeasance, covenant defeasance or satisfaction, discharge or similar mechanism), or to issue a security or incur new Indebtedness in exchange or replacement for such security or Indebtedness in whole or in part. “Refinanced” and “Refinancing” shall have correlative meanings.
“Repurchase Agreement” means an agreement between us and/or any of our subsidiaries, as seller (in any such case, the “Repo Seller”), and one or more banks, other financial institutions and/or other investors, lenders or other Persons, as buyer (in any such case, the “Repo Buyer”), and any other parties thereto, under which we and/or such subsidiary or subsidiaries, as the case may be, are permitted to finance the origination or acquisition of loans, investments, Equity Interests, other securities, servicing rights and/or any other tangible or intangible property or assets and interests in any of the foregoing (collectively, “Applicable Assets”) by means of repurchase transactions (including reverse repos) pursuant to which the Repo Seller sells, on one or more occasions, Applicable Assets to the Repo Buyer with an obligation of the Repo Seller to repurchase such Applicable Assets on a date or dates and at a price or prices specified in or pursuant to such agreement, and which may also provide for payment by the Repo Seller of interest, fees, expenses, indemnification payments and other amounts, and any other similar agreement, instrument or arrangement, together with any and all existing and future documents related thereto (including, without limitation, any promissory notes, security agreements, intercreditor agreements, mortgages, other collateral documents and guarantees), in each case as the same may have been or may be amended, restated, amended and restated, supplemented, modified or Refinanced in any manner (whether before, upon or after termination or otherwise) in whole or in part from time to time (including successive amendments, restatements, amendments and restatements, supplements, modifications or Refinancings of any of the foregoing), and whether or not with the original or other sellers, buyers, guarantors, agents, lenders, banks, financial institutions, investors or other parties.
“Securitization” means a public or private transfer, sale or financing of servicing advances, mortgage loans, installment contracts, other loans and related assets, accounts receivable, real estate assets, mortgage receivables, corporate loans, consumer loans, investments or any other assets capable of being securitized (collectively, “Securitization Assets”) by which we and/or any of our subsidiaries directly or indirectly participates as a seller or transferor in the securitization of a pool of specified Securitization Assets or incurs Non-Recourse Indebtedness secured by specified Securitization Assets, including any such transaction involving the sale of Securitization Assets.
“Securitization Indebtedness” means (i) Indebtedness of any of our Affiliates or us incurred pursuant to Securitizations and (ii) any Indebtedness consisting of advances made to any of our Affiliates or us based upon securities issued in a Securitization and acquired or retained by any of our Affiliates or us.
“Securitization Repurchase Obligation” means any obligation of a seller of Securitization Assets in a Securitization to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Senior Debt Service” means, for any Testing Period, the sum of: (a) the interest paid in cash or required to be paid in cash by us and our subsidiaries, on a consolidated basis, for such Testing Period with respect to all Indebtedness for borrowed money, minus the interest paid in cash or required to be paid in cash by us and our subsidiaries, on a consolidated basis, for such Testing Period with respect to all subordinated Indebtedness for borrowed money, in each case, determined in accordance with GAAP; plus (b) regularly scheduled principal amortization payments made or required to be made by us and our subsidiaries, on a consolidated basis, on account of Indebtedness for borrowed money for such Testing Period (exclusive of pay-offs or pay-downs on account of such Indebtedness), minus regularly scheduled principal amortization payments made or required to be made by the Company and its subsidiaries, on a consolidated basis, on account of subordinated Indebtedness for borrowed money for such Testing Period (exclusive of pay-offs or pay-downs on account of such Indebtedness), in each case determined in accordance with GAAP.
"Senior Debt Service Coverage Ratio: means, with respect to us and our consolidated subsidiaries, at any date of determination, the ratio of (a) Operating Cash Flow during the Testing Period to (b) Senior Debt Service for the Testing Period; provided that, in the case of any date of determination prior to March 31, 2022, (x) Annualized Operating Cash Flow shall be used instead of Operating Cash Flow for purposes of clause (a) above and (y) Annualized Senior Debt Service shall be used instead of Senior Debt Service for purposes of clause (b) above. “subsidiary” means (i) any corporation a majority of whose outstanding Voting Stock is at the time owned, directly or indirectly, by us, or by one or more of our subsidiaries, or by us and one or more of our subsidiaries, (ii) any general partnership, limited liability company, joint venture or similar entity, a majority of whose outstanding partnership, membership or similar interests is at the time owned by us, or by one or more of our subsidiaries, or by us and one or more of our subsidiaries and (iii) any limited partnership of which we or any of our subsidiaries is a general partner.
“Testing Period” means the trailing four fiscal quarter period most recently ended prior to required delivery date of each applicable quarterly or annual Officer’s Certificate pursuant to the Indenture, as applicable.
“Total Unencumbered Assets” as of any date, means the value of all of the assets (excluding (x) intangibles and (y) the assets of VIEs (but not excluding, for the avoidance of doubt, the Equity Interests of VIEs held by us and our subsidiaries or any other investments of us and our subsidiaries in any VIEs)) of ours and our subsidiaries that are not subject to a Lien (other than a Permitted Lien) securing Indebtedness for borrowed money, all on a consolidated basis for us and our subsidiaries in accordance with GAAP.
“VIEs” means variable interest entities (within the meaning of GAAP).
“Voting Stock,” as applied to stock of any person, means shares, interests, participations or other equivalents in the equity interest (however designated) in such person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such person, other than shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
Events of Default, Notice and Waiver
An “Event of Default” with respect to the Notes is defined in the Indenture as being:
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default for 30 days in the payment of any interest on any Note; |
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default in the payment of any principal of or premium, if any, on any Note when due; |
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default by us in the performance, or breach, of any other covenant or warranty in the Indenture or in the Notes which shall not have been remedied for a period of 60 days after written notice to us by the Trustee or the holders of not less than 25% in aggregate principal amount of the Notes then outstanding; |
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default under any bond, note, debenture or other evidence of indebtedness for borrowed money of or guaranteed by us or any of our subsidiaries (excluding variable interest entities) in which we have invested at least $450,000,000 in capital (a “Significant Subsidiary”) or under any mortgage, indenture or other instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for borrowed money of or guaranteed us or any Significant Subsidiary that results in the acceleration of such indebtedness for borrowed money in an aggregate principal amount exceeding $100,000,000 or which constitutes a failure to pay when due (after expiration of any applicable grace period) such indebtedness for borrowed money in an aggregate principal amount exceeding $100,000,000, but only if such indebtedness for borrowed money is not discharged or such acceleration is not rescinded or annulled within 60 days after written notice, given in accordance with Section 106, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Notes; or |
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certain events of bankruptcy, insolvency or reorganization involving us. |
The Indenture provides that the Trustee may withhold notice to the holders of the Notes of the occurrence of a default with respect to the Notes (except a default in payment of principal, premium, if any, or interest) if the Trustee considers it in the interest of the holders to do so.
If an Event of Default with respect to the Notes (other than an Event of Default specified in paragraph (v) above) occurs and is continuing, either the Trustee by written notice to us or the holders of at least 25% of the aggregate principal amount of the Notes then outstanding by written notice to us (with a copy to the Trustee) may declare the principal of all the Notes, and accrued and unpaid interest, if any, thereon, to be due and payable immediately. If an Event of Default specified in paragraph (v) above occurs and is continuing, then the principal of all the Notes, and accrued and unpaid interest, if any, thereon, shall be automatically due and payable. At any time after the Notes have been accelerated, but before a judgment or decree based on acceleration has been obtained, the holders of a majority of the aggregate principal amount of Notes then outstanding may, under certain circumstances, rescind and annul such acceleration.
If a default occurs with respect to any covenant described under “Maintenance of Minimum Net Asset Value,” “Maintenance of Senior Debt Service Coverage Ratio,” “Maintenance of Total Unencumbered Assets,” and “Maintenance of Net Debt to Equity Ratio,” in “— Restrictive Covenants” above, such default and all consequences thereof will be annulled, waived and rescinded automatically, without any action by the Trustee or the holders of the Notes and without giving rise to an Event of Default, if within the 60-day cure period following the giving of written notice to the Company of such default, the Company delivers an officer’s certificate to the Trustee stating that, as of a specified date subsequent to the end of the applicable fiscal quarter, such default has been cured.
The Indenture provides that, subject to the duty of the Trustee during the continuance of an Event of Default to act with the required standard of care, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the holders of Notes unless such holders shall have offered to the Trustee satisfactory security or indemnity. Subject to the foregoing, the holders of a majority of the aggregate principal amount of the Notes then outstanding will have the right, subject to certain limitations, to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee under the Indenture with respect to the Notes.
No holder of any Notes will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder unless: (i) such holder previously has given written notice to the Trustee of a continuing Event of Default with respect to the Notes; (ii) the holders of at least 25% in aggregate principal amount of the Notes then outstanding have made written request to institute such proceeding as Trustee, and offered to the Trustee reasonably satisfactory indemnity against costs, expenses and liabilities incurred in compliance with such request; (iii) in the 60-day period following receipt of the notice, request and offer of indemnity referred to above, the Trustee has failed to initiate such proceeding; and (iv) during such 60-day period, the Trustee has not received from the holders of a majority of the aggregate principal amount of the Notes then outstanding a direction inconsistent with such request.
Notwithstanding the provisions described in the immediately preceding paragraph or any other provision of the Indenture, the holder of any Note shall have the right, which is absolute and unconditional, to receive payment of the principal of and premium, if any, and interest on such Note on the respective dates such payments are due and to institute suit for enforcement of any such payment, and such right shall not be impaired without the consent of such holder.
We are required to furnish to the Trustee an officer’s certificate within 60 days of the end of each of our first three fiscal quarters as to our compliance with the four maintenance covenants in the Indenture. We are also required to furnish to the Trustee an officer’s certificate within 120 days of the end of each fiscal year as to our performance of, or compliance with, all of our obligations under the Indenture, including the four maintenance covenants. The Trustee shall have no duty to monitor, inquire as to or ascertain compliance with, or the performance of, our obligations under the Indenture other than our obligations with respect to payment of principal or interest due on any Note, provided that the Trustee remains the paying agent for the Notes.
Modification of the Indenture
The Indenture contains provisions permitting us and the Trustee, with the consent of the holders of a majority in aggregate principal amount of the Notes then outstanding, to modify or amend any of the provisions of the Indenture or of the Notes or the rights of the holders of the Notes under the Indenture, provided that no such modification or amendment shall, among other things:
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change the stated maturity of the principal of, or premium, if any, or any installment of interest, if any, on any Notes; |
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reduce the principal amount of any Notes or any premium thereon, or reduce the rate of interest thereon; |
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change any place where, or the currency in which, any Notes are payable; |
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impair the holder’s right to institute suit to enforce the payment of any Notes when due; |
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reduce the aforesaid percentage of Notes, the consent of whose holders is required for any such modification or amendment or the consent of whose holders is required for any waiver (of compliance with certain provisions of the Indenture or certain defaults thereunder and their consequences); or |
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reduce the requirements for a quorum or voting at a meeting of holders of the Notes, |
without in each case obtaining the consent of the holder of each Note then outstanding that is so affected.
The Indenture also contains provisions permitting us and the Trustee, without notice to or the consent of the holders of any Notes, to modify or amend the Indenture in order to, among other things:
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add to the Events of Default or our covenants for the benefit of the holders of the Notes; |
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cure any ambiguity or correct or supplement any provision therein which may be defective or inconsistent with other provisions therein or to make any other provisions with respect to matters or questions arising under the Indenture which shall not materially adversely affect the interests of the holders of the Notes, as determined by us; |
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provide for the assumption of our obligations under the Indenture and the Notes in the case of a merger or consolidation or conveyance of all or substantially all of our assets; |
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provide security for or a guarantee of the Notes; |
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provide for a successor trustee or the appointment of more than one trustee; or |
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to qualify this Indenture under the Trust Indenture Act. |
The holders of a majority in aggregate principal amount of the Notes then outstanding may, on behalf of all holders of Notes, waive compliance by us with certain provisions of the Indenture, including the covenants described above under “—Restrictive Covenants.” The holders of a majority in aggregate principal amount of the Notes then outstanding may, on behalf of all holders of Notes, waive any past default under the Indenture and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on any notes or in respect of a covenant or provision which cannot be modified or amended without the consent of the holder of each Note.
The Indenture contains provisions for convening meetings of the holders of Notes. A meeting may be called at any time by the Trustee and also, upon request, by us or the holders of at least 10% in aggregate principal amount of the Notes then outstanding, in any such case upon notice given in accordance with the provisions of the Indenture. Except for any consent which must be given by the holder of each Note affected thereby, as described above, any resolution presented at a meeting or adjourned meeting duly reconvened at which a quorum (as described below) is present may be adopted by the affirmative vote of the holders of a majority in aggregate principal amount of the Notes then outstanding. Any resolution passed or decision taken at any meeting of holders of Notes duly held in accordance with the Indenture will be binding on all holders of Notes. The quorum at any meeting called to adopt a resolution, and at any reconvened meeting, will be persons holding or representing a majority in aggregate principal amount of the Notes then outstanding.
In determining whether the holders of the requisite aggregate principal amount of the Notes then outstanding have given any request, demand, authorization, direction, notice, consent or waiver under the Indenture, any Note owned by us or any other obligor on the Notes or any affiliate of ours or such other obligor shall be deemed not to be outstanding.
Discharge, Defeasance and Covenant Defeasance
Upon our direction, the Indenture shall cease to be of further effect (subject to the survival of certain provisions thereof) when (i) either (A) all Notes then outstanding have been delivered to the Trustee for cancellation (subject to certain exceptions) or (B) all Notes then outstanding have become due and payable or will become due and payable at their stated maturity within one year or are to be called for redemption within one year and we have deposited with the Trustee, in trust, money in an amount sufficient to pay the entire indebtedness on the Notes in respect of principal, premium, if any, and interest to the date of such deposit (if the Notes have become due and payable) or to the stated maturity or redemption date thereof, as the case may be, (ii) we have paid all other sums payable under the Indenture, and (iii) certain other conditions are met.
Subject to the satisfaction of certain conditions set forth in the Indenture, we may elect either (a) to defease and be discharged from any and all obligations with respect to the Notes (except for, among other things, the obligations to register the transfer or exchange of the Notes, to replace temporary or mutilated, destroyed, lost or stolen Notes, to maintain an office or agency in respect of the Notes and to hold money for payment in trust) (“defeasance”), or (b) to be released from our obligations with respect to the Notes described above under “—Restrictive Covenants” and certain other restrictive covenants in the Indenture, and any omission to comply with such obligations shall not constitute a default or an Event of Default (“covenant defeasance”), in either case upon the irrevocable deposit with the Trustee (or other qualifying trustee), in trust for such purpose, of money and/or U.S. government obligations which through the payment of principal and interest in accordance with their terms will provide money, in an amount sufficient, in the opinion of a nationally-recognized firm of independent public accountants, investment bank or appraisal firm expressed in a written certification thereof delivered to the Trustee, to pay the principal of and any premium and interest on the Notes on the scheduled due dates therefor or the applicable redemption date, as the case may be. Such conditions to defeasance or covenant defeasance include the delivery to the Trustee of an opinion of independent counsel in the United States to the effect that the beneficial owners of the Notes then outstanding will not recognize income, gain or loss for federal income tax purposes as a result of such defeasance or covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance or covenant defeasance had not occurred.
In the event we effect covenant defeasance with respect to the Notes and the Notes are declared due and payable because of the occurrence of any Event of Default other than an Event of Default resulting from a breach of a covenant as to which there has been covenant defeasance, the amount of money and/or U.S. government obligations deposited with the Trustee to effect such covenant defeasance may not be sufficient to pay amounts due on the Notes at the time of any acceleration resulting from such Event of Default. However, we would remain liable to make payment of such amounts due at the time of acceleration.
Trustee, Paying Agent and Security Registrar
UMB Bank, National Association acts as Trustee, paying agent and security registrar for the Notes. From time to time, we and some of our subsidiaries may maintain deposit accounts and conduct other banking transactions, including lending transactions, with the Trustee and its affiliates in the ordinary course of business. Upon the occurrence of a default or an Event of Default under the Notes, the Trustee may be deemed to have a conflicting interest with respect to any of our other debt securities as to which it acts as trustee and we are not in default for purposes of the Trust Indenture Act of 1939, as amended, and, accordingly, may be required to resign as trustee under the Indenture. In that event, we would be required to appoint a successor trustee.
Governing Law
The Indenture and the Notes are governed by, and construed in accordance with, the laws of the State of New York.
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account pursuant to an exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Notes received in exchange for Outstanding Notes where such Outstanding Notes were acquired as a result of market-making activities or other trading activities.
We will not receive any proceeds from any sale of Exchange Notes by broker-dealers. Exchange Notes received by broker-dealers for their own account pursuant to an exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or at negotiated prices. Any such resale may be made directly to purchasers or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer and/or the purchasers of any such Exchange Notes. Any broker-dealer that resells Exchange Notes that were received by it for its own account pursuant to an exchange offer and any broker or dealer that participates in a distribution of such Exchange Notes may be deemed to be an “underwriter” within the meaning of the Securities Act, and any profit of any such resale of Exchange Notes and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act.
We have agreed to pay all registration expenses in connection with the exchange offer (including the expenses of one counsel for the holders of the Outstanding Notes in connection with qualification of the Exchange Notes under state or blue sky laws), but not any discounts or commissions relating to the disposition of Exchange Notes.
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES
The following summarizes certain material U.S. federal income tax consequences relating to (i) the exchange of Outstanding Notes for Exchange Notes pursuant to this exchange offer and (ii) the acquisition, ownership and disposition of the Exchange Notes by U.S. holders and non-U.S. holders (each as defined below). This summary deals only with beneficial owners of Outstanding Notes that purchased the Outstanding Notes for cash in the original issuance at their issue price (the first price at which a substantial amount of the Outstanding Notes was sold to purchasers other than bond houses, brokers or similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers).
This discussion is based on based upon the provisions of the Internal Revenue Code, applicable U.S. Treasury regulations promulgated and proposed thereunder, judicial authority and administrative interpretations, each as of the date of this prospectus, all of which are subject to change, possibly with retroactive effect, or are subject to different interpretations. Changes in these authorities, subsequent to the date of this prospectus or retroactively applied, may cause the U.S. federal income tax consequences to vary substantially from the consequences described below. We cannot assure you that the Internal Revenue Service (the “IRS”) will not challenge one or more of the tax consequences described herein, and we have not obtained, nor do we intend to obtain, a ruling from the IRS with respect to the U.S. federal tax consequences of acquiring, owning or disposing of the Notes.
The tax treatment of a holder of the Notes may vary depending upon a holder’s particular situation. Certain holders (including, but not limited to, certain financial institutions, insurance companies, broker-dealers, persons who mark-to-market the Notes, an accrual method taxpayer subject to special tax accounting rules as a result of its use of financial statements, tax-exempt organizations, regulated investment companies, REITs, U.S. holders whose functional currency for tax purposes is not the U.S. dollar, expatriates and persons holding Notes as part of a “straddle,” “hedge” or “conversion transaction”) may be subject to special rules not discussed below. This discussion is limited to holders who will hold the Notes as “capital assets” (generally, property held for investment) within the meaning of Section 1221 of the Code. This discussion does not address the tax considerations arising under U.S. federal estate or U.S. federal gift tax laws or under the laws of any state, local, non-U.S. or other jurisdiction or any tax treaties.
If a partnership (including an entity or arrangement treated as a partnership for U.S. federal tax purposes) holds the Notes, the tax treatment of a partner of the partnership generally will depend upon the status of the partner and the activities of the partnership, among other things. If you are a partner of a partnership considering the exchange of Outstanding Notes for Exchange Notes, we particularly urge you to consult your tax advisor.
YOU SHOULD CONSULT YOUR TAX ADVISOR AS TO THE PARTICULAR TAX CONSEQUENCES OF YOUR ACQUISITION, OWNERSHIP AND DISPOSITION OF THE NOTES.
Treatment of Exchange under the Exchange Offer
We believe that the exchange of the Outstanding Notes for Exchange Notes in the exchange offer will not be a taxable event for U.S. federal income tax purposes. A holder will not realize any taxable gain or loss as a result of exchanging the Outstanding Notes for Exchange Notes, and, upon the exchange, the holder will have the same tax basis and holding period in the Exchange Notes as the holder had in the Outstanding Notes immediately before the exchange.
U.S. Federal Income Tax Consequences to U.S. Holders
The following discussion applies only to U.S. holders. You are a “U.S. holder” for purposes of this discussion if you are a beneficial owner of a Note and you are for U.S. federal income tax purposes:
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an individual who is a U.S. citizen or U.S. resident alien; |
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a corporation (or other entity taxable as a corporation) that was created or organized in or under the laws of the United States, any state thereof or the District of Columbia; |
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an estate the income of which is subject to U.S. federal income taxation regardless of its source; or |
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a trust (i) if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more “United States persons,” as defined in the Internal Revenue Code, have the authority to control all substantial decisions of the trust, or (ii) that has a valid election in effect under applicable U.S. Treasury regulations to be treated as a “United States person,” as defined in the Internal Revenue Code. |
Interest on the Exchange Notes
Stated interest on the Exchange Notes will be included in the income of a U.S. holder as ordinary income at the time such interest is received or accrued, in accordance with the U.S. holder’s regular method of tax accounting. The Outstanding Notes were issued without original issue discount (“OID”) and, accordingly, U.S. holders will continue not to be subject to the OID of the Internal Revenue Code provisions with respect to the Exchange Notes.
Disposition of the Exchange Notes
In general, a U.S. holder of the Exchange Notes will recognize gain or loss upon the sale, retirement, redemption or other taxable disposition of such Exchange Notes in an amount equal to the difference between (1) the amount of cash (including, without limitation, any “make-whole” premium in the event of a redemption requiring its payment) and the fair market value of property received in exchange therefor (except to the extent attributable to the payment of accrued and unpaid interest, which generally will be taxable to a U.S. holder as ordinary income) and (2) the U.S. holder’s adjusted tax basis in such Exchange Notes. A U.S. Holder’s tax basis in the Exchange Notes generally will be equal to such U.S. holder’s tax basis in the Outstanding Notes. The portion of any proceeds that is attributable to accrued and unpaid interest will not be taken into account in computing the U.S. holder’s capital gain or loss, but will instead be treated as interest income, as described under “—Interest” above. Net capital gain (i.e. generally, capital gain in excess of capital loss) recognized by a non-corporate U.S. holder from the sale of a capital asset that has been held for more than 12 months is currently eligible for reduced rates of U.S. federal income tax purposes. Net capital gain from the sale of an asset held for 12 months or less will be subject to U.S. federal income tax at ordinary income tax rates. In addition, capital gain recognized by a corporate taxpayer will continue to be subject to U.S. federal income tax at the ordinary income tax rates applicable to corporations. The ability to deduct capital losses is subject to limitations under the Internal Revenue Code.
Additional Tax on Net Investment Income
Certain U.S. holders who are individuals, estates or trusts and whose income exceeds certain thresholds are required to pay an additional 3.8% Medicare tax. A U.S. holder’s net investment income will generally include its interest income and net gain from the disposition of the Exchange Notes, unless such interest income and net gain is derived in the ordinary course of the conduct of a trade or business (other than a trade or business that consists of certain passive or trading activities). Net investment income may, however, be reduced by properly allocable deductions to such income. U.S. holders that are individuals, estates or trusts are urged to consult their tax advisors regarding the applicability of this 3.8% Medicare tax to their income and gains from the Exchange Notes.
Information Reporting and Backup Withholding.
In general, information reporting will apply to a U.S. holder (other than an “exempt recipient,” including a corporation and certain other persons who, when required, demonstrate their exempt status) with respect to:
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any payments made of principal of, premium, if any, and interest on, the Exchange Notes; and |
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payment of the proceeds of a sale or other disposition of the Exchange Notes. |
In addition, “backup withholding” at the applicable statutory rate may apply to such amounts if a U.S. holder fails to provide a correct taxpayer identification number certified under penalties of perjury or otherwise fails to comply with applicable requirements of the backup withholding rules. A U.S. holder that does not provide its correct taxpayer identification number also may be subject to penalties imposed by the IRS.
Any backup withholding is not an additional tax and may be refunded or credited against the U.S. holder’s federal income tax liability, provided that the required information is timely provided to the IRS.
U.S. Federal Income Tax Consequences to Non-U.S. Holders
The following discussion applies only to non-U.S. holders. The term “non-U.S. holder” means a beneficial owner of the Notes that is not a U.S. holder or a partnership (or entity treated as a partnership for U.S. federal income tax purposes). The rules governing U.S. federal income taxation of nonresident alien individuals, foreign corporations, foreign partnerships, and other foreign stockholders are complex. This section is only a summary of such rules. We urge non-U.S. stockholders to consult their tax advisors to determine the impact of U.S. federal, foreign, state, and local income tax laws on ownership of the Notes, including any reporting requirements.
Interest on the Exchange Notes
Subject to the discussion below of backup withholding and FATCA (as defined below), payments of interest on the Exchange Notes generally will not be subject to U.S. federal income tax and will be exempt from withholding of U.S. federal income tax under the “portfolio interest” exemption if a Non-U.S. holder properly certifies as to its foreign status, as described below, and:
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the Non-U.S. holders not own, actually or constructively, 10% or more of the total combined voting power of all classes of our stock entitled to vote; |
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the Non-U.S. holder is not a “controlled foreign corporation” that is related to us (actually or constructively); |
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the Non-U.S. holder is not a bank whose receipt of interest on the Exchange Notes is in connection with an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business; and |
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interest on the notes is not effectively connected with the Non-U.S. holder’s conduct of a U.S. trade or business. |
The portfolio interest exemption generally applies only if the Non-U.S. holder also appropriately certifies as to its foreign status. A Non-U.S. holder can generally meet the certification requirement by providing a properly executed IRS Form W-8BEN or IRS Form W-8BEN-E (or other applicable or successor form) to the applicable withholding agent. If a Non-U.S. holder hold the Exchange Notes through a financial institution or other agent acting on its behalf, the Non-U.S. holder may be required to provide appropriate certifications to the agent. The agent will then generally be required to provide appropriate certifications to the applicable withholding agent, either directly or through other intermediaries. Special rules apply to foreign partnerships, estates and trusts, and in certain circumstances certifications as to the foreign status of partners, trust owners or beneficiaries may have to be provided to the applicable withholding agent. In addition, special rules apply to qualified intermediaries that enter into withholding agreements with the IRS.
If a Non-U.S. holder cannot satisfy the requirements described above, payments of interest made to such Non-U.S. holder will be subject to U.S. federal withholding tax at a 30% rate, unless (i) it provides the applicable withholding agent with a properly executed IRS Form W-8BEN or IRS Form W-8BEN-E (or other applicable or successor form) claiming an exemption from (or a reduction of) withholding under the benefits of an applicable income tax treaty, or (ii) the payments of such interest are effectively connected with the Non-U.S. holder’s conduct of a trade or business in the United States and its meets the certification requirements described below. (See “— Income or Gain Effectively Connected with the Conduct of a U.S. Trade or Business.”)
The certifications described above and below must be provided to the applicable withholding agent prior to the payment of interest and must be updated periodically. If a Non-U.S. holder does not timely provide the applicable withholding agent with the required certification, but qualifies for an exemption or a reduced rate under an applicable income tax treaty, it may obtain a refund of any excess amounts withheld if it timely provides the required information or appropriate claim form to the IRS.
Disposition of the Exchange Notes
Subject to the discussion below of backup withholding, a Non-U.S. holder generally will not be subject to U.S. federal income tax on any gain recognized on the sale, redemption, exchange, retirement or other taxable disposition of an Exchange Note unless:
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the gain is effectively connected with the conduct by the Non-U.S. holder of a U.S. trade or business (and, if required by an applicable income tax treaty, the Non-U.S. holder maintains a permanent establishment or fixed base in the United States to which such gain is attributable); or |
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the Non-U.S. holder is an individual who has been present in the United States for 183 days or more in the taxable year of disposition and certain other requirements are met. |
If a Non-U.S. holder’s gain is described in the first bullet point above, the Non-U.S. holder generally will be subject to U.S. federal income tax in the manner described under “—Income or Gain Effectively Connected with a U.S. Trade or Business.” A Non-U.S. holder described in the second bullet point above will be subject to a flat 30% (or lower applicable income tax treaty rate) U.S. federal income tax on the gain derived from the sale or other disposition, which may be offset by certain U.S. source capital losses. To the extent that any portion of the amount recognized on a sale, redemption, exchange, retirement or other taxable disposition of an Exchange Note is attributable to accrued but unpaid interest on the Exchange Note, this amount generally will be treated in the same manner as described above in “—Interest on the Exchange Notes.”
Income or Gain Effectively Connected with the Conduct of a U.S. Trade or Business
If any interest on the Exchange Notes or gain from the sale, redemption, exchange, retirement or other taxable disposition of the Exchange Notes is effectively connected with a U.S. trade or business conducted by a Non-U.S. holder then, unless an applicable income tax treaty provides otherwise, the interest income or gain will be subject to U.S. federal income tax at regular graduated income tax rates generally in the same manner as if the Non-U.S. holder were a U.S. holder. Effectively connected interest income will not be subject to U.S. federal withholding tax if the Non-U.S. holder satisfies certain certification requirements by providing to the applicable withholding agent a properly executed IRS Form W-8ECI (or successor form). In addition, if such Non-U.S. holder is a corporation, that portion of the Non-U.S. holder’s earnings and profits that is effectively connected with its U.S. trade or business may also be subject to a “branch profits tax” at a 30% rate, unless an applicable income tax treaty provides for a lower rate. For this purpose, interest received on an Exchange Note and gain recognized on the disposition of an Exchange Note will be included in earnings and profits if the interest or gain is effectively connected with the conduct by the Non-U.S. holder of a U.S. trade or business.
Information Reporting and Backup Withholding
Payments to a Non-U.S. holder of interest on an Exchange Note generally will be reported to the IRS and to the Non-U.S. holder. Copies of applicable IRS information returns may be made available, under the provisions of a specific tax treaty or agreement, to the tax authorities of the country in which the Non-U.S. holder resides. Additional information reporting and backup withholding generally will not apply to payments of interest if the Non-U.S. holder has provided the requisite certification that the Non-U.S. holder is not a U.S. person for U.S. federal income tax purposes, as described under the heading “—Interest on the Exchange Notes” above, has been received or an exemption has otherwise been established provided that neither we nor our paying agent have actual knowledge or reason to know that the Non-U.S. holder is a U.S. person that is not an exempt recipient or that the conditions of any other exemption are not, in fact, satisfied.
As a general matter, backup withholding and information reporting will not apply to a payment of the proceeds of a sale of an Exchange Note effected at a foreign office of a foreign broker. Information reporting (but not backup withholding) will apply, however, to a payment of the proceeds of a sale of a note by a foreign office of a broker that:
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is a U.S. person; |
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derives 50% or more of its gross income for a specified three-year period from the conduct of a trade or business in the United States; |
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is a “controlled foreign corporation” (a foreign corporation controlled by certain U.S. stockholders) for federal income tax purposes; or |
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is a foreign partnership, if at any time during its tax year more than 50% of its income or capital interest are held by U.S. persons or if it is engaged in the conduct of a trade or business in the United States, |
unless the broker has documentary evidence in its records that the holder or beneficial owner is a Non-U.S. holder and certain other conditions are met, or the holder otherwise establishes an exemption. Payment of the proceeds of a sale of an Exchange Note effected at a U.S. office of a broker is subject to both backup withholding and information reporting unless the holder certifies under penalty of perjury that the holder is a Non-U.S. holder, or otherwise establishes an exemption; provided that, in either case, neither we nor any withholding agent knows or has reason to know that the holder is a U.S. person or that the conditions of any other exemptions are in fact not satisfied.
Any backup withholding is not an additional tax and may be refunded or credited against the Non-U.S. holder’s U.S. federal income tax liability, provided that the required information is timely provided to the IRS.
Foreign Account Tax Compliance Act
The Foreign Account Tax Compliance Act (“FATCA”) generally imposes a 30% U.S. federal withholding tax on interest income paid on the Exchange Notes to certain non-U.S. financial institutions and certain other non-U.S. entities (whether such entity is a beneficial owner or an intermediary), unless such non-U.S. financial institution or other non-U.S. entity provides sufficient documentation evidencing either (i) an exemption from FATCA, or (ii) its compliance with certain reporting and disclosure obligations (or deemed compliance pursuant to an intergovernmental agreement with the United States). Holders should consult their tax advisors regarding the possible implications of FATCA on their ownership of the Exchange Notes. We will not pay any additional amounts in respect of any amounts withheld under FATCA.
LEGAL MATTERS
Certain legal matters in connection with the exchange offer will be passed upon for us by Vinson & Elkins L.L.P. and Venable LLP.
EXPERTS
The audited consolidated financial statements and management's assessment of the effectiveness of internal control over financial reporting incorporated by reference in this prospectus and elsewhere in the registration statement have been so incorporated by reference in reliance upon the reports of Grant Thornton LLP, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is only part of a registration statement on Form S-4 we have filed with the SEC under the Securities Act and therefore omits some of the information contained in the registration statement. We have also filed exhibits and schedules to the registration statement which are excluded from this prospectus, and you should refer to the applicable exhibit or schedule for a complete description of any statement referring to any contract or other document. You may inspect or obtain a copy of the registration statement, including the exhibits and schedules, as described in the next paragraph.
Copies of the registration statement, including the exhibits and schedules to the registration statement, may be examined without charge at the public reference room of the SEC, 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Information about the operation of the public reference room may be obtained by calling the SEC at 1-800-SEC-0330. Copies of all or a portion of the registration statement may be obtained from the public reference room of the SEC upon payment of prescribed fees. Our SEC filings, including our registration statement, are also available to you on the SEC’s website at www.sec.gov. In addition, copies of our SEC filings are available free of charge through our website (www.nymtrust.com) as soon as reasonably practicable after filing with the SEC. The information contained on, or otherwise accessible through our website is not part of, or incorporated by reference into, this prospectus.
IN ORDER TO OBTAIN TIMELY DELIVERY, YOU MUST REQUEST THE INFORMATION NO LATER THAN , 2021, WHICH IS FIVE BUSINESS DAYS BEFORE THE EXPIRATION OF THE EXCHANGE OFFER.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" into this prospectus the information we file with the SEC, which means that we can disclose important business, financial and other information to you by referring you to other documents separately filed with the SEC. The information incorporated by reference is considered to be part of this prospectus from the date we file that document, and subsequent information that we file with the SEC will automatically update and, where applicable, supersede that information. Any statement contained in a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus modifies or replaces that statement.
We incorporate by reference the following documents or information filed with the SEC and any subsequent filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of the initial registration statement and prior to the effectiveness of the registration statement of which this prospectus forms a part through the date the exchange offer is terminated (other than, in each case, documents or information deemed to have been furnished and not filed in accordance with SEC rules):
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2020; |
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Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2021; |
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Our Current Reports on Form 8-K filed on March 15, 2021 and April 27, 2021; |
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The information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2020 from our Definitive Proxy Statement on Schedule 14A filed with the SEC on April 28, 2021; |
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All other reports we have filed pursuant to Section 13(a), 13(c), 14 and 15(a) of the Exchange Act since December 30, 2020; and |
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The description of our capital stock in our Registration Statement on Form 8-A filed on June 3, 2008. |
We will provide without charge to each person, including any beneficial owner, to whom this is delivered, upon his or her written or oral request, a copy of any or all documents referred to above that have been or may be incorporated by reference into this prospectus, excluding exhibits to those documents unless they are specifically incorporated by reference into those documents. You may request those documents from us by writing to New York Mortgage Trust, Inc., c/o Corporate Secretary, 90 Park Avenue, Floor 23, New York, New York 10016 or by calling our Corporate Secretary at (212) 792-0107.
OFFER TO EXCHANGE
$100,000,000 aggregate principal amount of its 5.75% Senior Notes due 2026
that have been registered under the Securities Act of 1933
for any and all of its outstanding
5.75% Senior Notes due 2026
Until the date that is 90 days from the date of this prospectus, all dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers’ obligation to deliver a prospectus when acting as underwriters with respect to their unsold allotments or subscriptions.
PROSPECTUS
, 2021
Annex A
Letter of Transmittal
NEW YORK MORTGAGE TRUST, INC.
OFFER TO EXCHANGE
$100,000,000 AGGREGATE PRINCIPAL AMOUNT OF ITS 5.75% SENIOR NOTES DUE 2026 WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, FOR ANY AND ALL OF ITS OUTSTANDING UNREGISTERED 5.75% SENIOR NOTES DUE 2026
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2021 (THE “EXPIRATION DATE”) UNLESS THE OFFER IS EXTENDED. TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON , 2021.
The Exchange Agent for the Exchange Offer is:
UMB BANK, NATIONAL ASSOCIATION By Registered or Certified Mail; Hand or Overnight Delivery:
UMB BANK, NATIONAL ASSOCIATION
5555 San Felipe Street, Suite 870
Houston, Texas 77056
Attention: Mauri J. Cowen, Senior Vice President
For Information or to Confirm by Telephone Call: (713) 300-0587
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
Holders of Outstanding Notes (as defined below) should complete this Letter of Transmittal either if Outstanding Notes are to be forwarded herewith or if tenders of Outstanding Notes are to be made by book-entry transfer to an account maintained by the Exchange Agent at the book-entry transfer facility specified by the holder pursuant to the procedures set forth in “The Exchange Offer —Book-Entry Delivery Procedures” and “The Exchange Offer—Procedures for Tendering Outstanding Notes” in the Prospectus (as defined below) and an “Agent’s Message” (as defined below) is not delivered. If tender is being made by book-entry transfer, the holder must have an Agent’s Message delivered in lieu of this Letter of Transmittal.
Unless the context otherwise requires, the term “holder” for purposes of this Letter of Transmittal means any person in whose name Outstanding Notes are registered or any other person who has obtained a properly completed bond power from the registered holder or any person whose Outstanding Notes are held of record by The Depository Trust Company (“DTC”).
The undersigned acknowledges receipt of the Prospectus dated , 2021 (as it may be amended or supplemented from time to time, the “Prospectus”) of New York Mortgage Trust, Inc. (the “Issuer”), and this Letter of Transmittal (the “Letter of Transmittal”), which together constitute the Issuer’s offer (the “Exchange Offer”) to exchange an aggregate principal amount of up to $100,000,000 of their 5.75% Senior Notes due 2026 (the “Exchange Notes”), which have been registered under the Securities Act of 1933, as amended (the “Securities Act”), for any and all of their outstanding unregistered 5.75% Senior Notes due 2026 (the “Outstanding Notes”).
For each Outstanding Note accepted for exchange, the holder of such Outstanding Note will receive an Exchange Note having a principal amount equal to that of the surrendered Outstanding Note. The Exchange Notes will accrue interest at a rate of 5.75% per annum and will be payable on April 30 and October 30 of each year. The Outstanding Notes began to accrue interest from April 27, 2021. The Exchange Notes will accrue interest from the same date as the Outstanding Notes for which they are exchanged..
Capitalized terms used but not defined herein shall have the same meaning given them in the Prospectus.
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT, WHOSE ADDRESS AND TELEPHONE NUMBER APPEAR ON THE FRONT PAGE OF THIS LETTER OF TRANSMITTAL.
The undersigned has completed the appropriate boxes below and signed this Letter of Transmittal to indicate the action that the undersigned desires to take with respect to the Exchange Offer.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY BEFORE CHECKING ANY BOX BELOW.
List below the Outstanding Notes to which this Letter of Transmittal relates. If the space provided below is inadequate, the certificate numbers and aggregate principal amounts of Outstanding Notes should be listed on a separate signed schedule affixed hereto.
All Tendering Holders Complete Box 1:
Box 1*
Description of Outstanding Notes Tendered Herewith
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Name(s) and Address(es) of Registered Holder(s) |
Series of Outstanding Notes Being Tendered |
Certificate or Registration Number(s) of Outstanding Notes** |
Aggregate Principal Amount Represented by Outstanding Notes |
Aggregate Principal Amount of Outstanding Notes Being Tendered*** |
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Total: |
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If the space provided is inadequate, list the certificate numbers and principal amount of Outstanding Notes on a separate signed schedule and attach the list to this Letter of Transmittal. |
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Need not be completed by book-entry holders. |
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The minimum permitted tender is $2,000 in principal amount. All tenders must be in the amount of $2,000 or in integral multiples of $1,000 in excess thereof. Unless otherwise indicated in this column, the holder will be deemed to have tendered the full aggregate principal amount represented by such Outstanding Notes. See instruction 2. |
Box 2
Book-Entry Transfer
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CHECK HERE IF ANY TENDERED OUTSTANDING NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING: |
Name of Tendering Institution: _____________________________________________________________________________________________
Account Number:
Transaction Code Number:
Holders of Outstanding Notes that are tendering by book-entry transfer to the Exchange Agent’s account at DTC can execute the tender through DTC’s Automated Tender Offer Program (“ATOP”), for which the transaction will be eligible. DTC participants that are accepting the Exchange Offer must transmit their acceptances to DTC, which will verify the acceptance and execute a book-entry delivery to the Exchange Agent’s account at DTC. DTC will then send a computer-generated message (an “Agent’s Message”) to the Exchange Agent for its acceptance in which the holder of the Outstanding Notes acknowledges and agrees to be bound by the terms of, and makes the representations and warranties contained in, this Letter of Transmittal, and the DTC participant confirms on behalf of itself and the beneficial owners of such Outstanding Notes all provisions of this Letter of Transmittal (including any representations and warranties) applicable to it and such beneficial owner as fully as if it had completed the information required herein and executed and transmitted this Letter of Transmittal to the Exchange Agent. Each DTC participant transmitting an acceptance of an Exchange Offer through the ATOP procedures will be deemed to have agreed to be bound by the terms of this Letter of Transmittal. Delivery of an Agent’s Message by DTC will satisfy the terms of the Exchange Offer as to execution and delivery of the Letter of Transmittal by the participant identified in the Agent’s Message.
Box 3
Return of Non-Exchanged Outstanding Notes
Tendered by Book-Entry Transfer
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CHECK HERE IF ANY OUTSTANDING NOTES TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OUTSTANDING NOTES ARE TO BE RETURNED BY CREDITING THE ACCOUNT NUMBER SET FORTH ABOVE. |
Box 4
Participating Broker-Dealer
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CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED ANY OUTSTANDING NOTES FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES AND WISH TO RECEIVE TEN (10) ADDITIONAL COPIES OF THE PROSPECTUS AND OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. |
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is acquiring the Exchange Notes in the ordinary course of business and has no arrangement or understanding with any person to participate in a distribution of the Exchange Notes. If the undersigned is a broker-dealer that will receive Exchange Notes for its own account in exchange for Outstanding Notes that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale or transfer of such Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. A broker-dealer may not participate in the Exchange Offer with respect to Outstanding Notes acquired other than as a result of market-making activities or other trading activities. Any broker-dealer who purchased Outstanding Notes from the Issuer to resell pursuant to Rule 144A under the Securities Act or any other available exemption under the Securities Act must comply with the registration and prospectus delivery requirements under the Securities Act.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Issuer the aggregate principal amount of the Outstanding Notes indicated above. Subject to, and effective upon, the acceptance for exchange of all or any portion of the Outstanding Notes tendered herewith in accordance with the terms and conditions of the Exchange Offer (including, if such Exchange Offer is extended or amended, the terms and conditions of any such extension or amendment), the undersigned hereby exchanges, assigns and transfers to, or upon the order of, the Issuer all right, title and interest in and to such Outstanding Notes as are being tendered herewith.
The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as its true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the Exchange Agent also acts as the agent of the Issuer, in connection with the Exchange Offer) with respect to the tendered Outstanding Notes, with full power of substitution and resubstitution (such power of attorney being deemed an irrevocable power coupled with an interest) to (1) deliver certificates representing such Outstanding Notes, or transfer ownership of such Outstanding Notes on the account books maintained by the book-entry transfer facility specified by the holder(s) of the Outstanding Notes, together, in each such case, with all accompanying evidences of transfer and authenticity to, or upon the order of, the Issuer, (2) present and deliver such Outstanding Notes for transfer on the books of the Issuer and (3) receive all benefits or otherwise exercise all rights and incidents of beneficial ownership of such Outstanding Notes, all in accordance with the terms of the Exchange Offer.
The undersigned hereby represents and warrants that (a) the undersigned has full power and authority to tender, exchange, assign and transfer the Outstanding Notes tendered hereby, (b) when such tendered Outstanding Notes are accepted for exchange, the Issuer will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and (c) the Outstanding Notes tendered for exchange are not subject to any adverse claims or proxies when accepted by the Issuer. The undersigned hereby further represents that any Exchange Notes acquired in exchange for Outstanding Notes tendered hereby will have been acquired in the ordinary course of business of the person receiving such Exchange Notes, whether or not such person is the undersigned, that neither the holder of such Outstanding Notes nor any such other person is engaged in or intends to engage in, nor has an arrangement or understanding with any person to participate in, the distribution of such Exchange Notes, and that neither the holder of such Outstanding Notes nor any such other person is an “affiliate,” as such term is defined in Rule 405 under the Securities Act, of the Issuer. If the undersigned is a person in the United Kingdom, the undersigned represents that its ordinary activities involve it in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of its business.
The undersigned also acknowledges that this Exchange Offer is being made based on the Issuer’s understanding of an interpretation by the staff of the Securities and Exchange Commission (the “SEC”) as set forth in no-action letters issued to third parties, including Morgan Stanley & Co. Incorporated (available June 5, 1991), Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling, dated July 2, 1993, or similar no-action letters, that the Exchange Notes issued in exchange for the Outstanding Notes pursuant to the Exchange Offer may be offered for resale, resold and otherwise transferred by each holder thereof (other than a broker-dealer who acquires such Exchange Notes directly from the Issuer for resale pursuant to Rule 144A under the Securities Act or any other available exemption under the Securities Act or any such holder that is an “affiliate” of the Issuer within the meaning of Rule 405 under the Securities Act), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such Exchange Notes are acquired in the ordinary course of such holder’s business and such holder is not engaged in, and does not intend to engage in, a distribution of such Exchange Notes and has no arrangement or understanding with any person to participate in the distribution of such Exchange Notes. If a holder of the Outstanding Notes is an affiliate of the Issuer, is not acquiring the Exchange Notes in the ordinary course of its business, is engaged in or intends to engage in a distribution of the Exchange Notes or has any arrangement or understanding with respect to the distribution of the Exchange Notes to be acquired pursuant to the Exchange Offer, such holder (x) may not rely on the applicable interpretations of the staff of the SEC and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction. If the undersigned is a broker-dealer that will receive the Exchange Notes for its own account in exchange for the Outstanding Notes, it represents that the Outstanding Notes to be exchanged for the Exchange Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus in connection with any resale or transfer of such Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
The undersigned will, upon request, execute and deliver any additional documents deemed by the Issuer or the Exchange Agent to be necessary or desirable to complete the exchange, assignment and transfer of the tendered Outstanding Notes or transfer ownership of such Outstanding Notes on the account books maintained by the book-entry transfer facility. The undersigned further agrees that acceptance of any and all validly tendered Outstanding Notes by the Issuer and the issuance of Exchange Notes in exchange therefor shall constitute performance in full by the Issuer of its obligations under the Registration Rights Agreement, dated as of April 27, 2021, between the Issuer and the several purchasers of the Outstanding Notes identified on the signature pages to the Note Purchase Agreement dated April 27, 2021 by and among the Issuer and each of the purchasers, relating to the Outstanding Notes (the “Registration Rights Agreement”), and that the Issuer shall have no further obligations or liabilities thereunder except as provided in such agreement. The undersigned will comply with its obligations under the Registration Rights Agreement.
The Exchange Offer is subject to certain conditions as set forth in the Prospectus under the caption “The Exchange Offer— Conditions to the Exchange Offer.” The undersigned recognizes that as a result of these conditions (which may be waived, in whole or in part, by the Issuer), as more particularly set forth in the Prospectus, the Issuer may not be required to exchange any of the Outstanding Notes tendered hereby and, in such event, the Outstanding Notes not exchanged will be returned to the undersigned at the address shown above, promptly following the expiration or termination of the Exchange Offer. In addition, the Issuer may amend the Exchange Offer at any time prior to the Expiration Date if any of the conditions set forth under “The Exchange Offer—Conditions to the Exchange Offer” occur.
All authority herein conferred or agreed to be conferred in this Letter of Transmittal shall survive the death or incapacity of the undersigned and every obligation of the undersigned hereunder shall be binding upon the successors, assigns, heirs, administrators, trustees in bankruptcy and legal representatives of the undersigned. Tendered Outstanding Notes may be withdrawn at any time prior to the Expiration Date in accordance with the procedures set forth in the terms of this Letter of Transmittal.
Unless otherwise indicated herein in the box entitled “Special Registration Instructions” below, please deliver the Exchange Notes (and, if applicable, substitute certificates representing the Outstanding Notes for any Outstanding Notes not exchanged) in the name of the undersigned or, in the case of a book-entry delivery of the Outstanding Notes, please credit the account indicated above. Similarly, unless otherwise indicated under the box entitled “Special Delivery Instructions” below, please send the Exchange Notes (and, if applicable, substitute certificates representing the Outstanding Notes for any Outstanding Notes not exchanged) to the undersigned at the address shown above in the box entitled “Description of Outstanding Notes Tendered Herewith.”
THE UNDERSIGNED, BY COMPLETING THE BOX 1 ENTITLED “DESCRIPTION OF OUTSTANDING NOTES TENDERED HEREWITH” ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE OUTSTANDING NOTES AS SET FORTH IN SUCH BOX.
Box 5
SPECIAL REGISTRATION INSTRUCTIONS
(See Instructions 4 and 5)
To be completed ONLY if certificates for the Outstanding Notes not tendered and/or certificates for the Exchange Notes are to be issued in the name of someone other than the registered holder(s) of the Outstanding Notes whose name(s) appear(s) above.
| Issue: | ☐ | Outstanding Notes not tendered to: |
| ☐ | Exchange Notes to: | |
| Name(s): | ||
| (Please Print or Type) | ||
| Address: | ||
| (Include Zip Code) | ||
| Daytime Area Code and Telephone Number. |
| Taxpayer Identification or Social Security Number: |
Box 6
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 4 and 5)
To be completed ONLY if certificates for the Outstanding Notes not tendered and/or certificates for the Exchange Notes are to be sent in the name of someone other than the registered holder(s) of the Outstanding Notes whose name(s) appear(s) above.
| Name(s): | |
| (Please Print or Type) | |
| Address: | |
| (Include Zip Code) |
| Daytime Area Code and Telephone Number. |
| Taxpayer Identification or Social Security Number: |
Box 7
TENDERING HOLDER(S) SIGN HERE
(Complete Internal Revenue Service (“IRS”) Form W-9 or applicable IRS Form W-8)
Must be signed by the registered holder(s) (which term, for the purposes described herein, shall include the book-entry transfer facility whose name appears on a security listing as the owner of the Outstanding Notes) of the Outstanding Notes exactly as their name(s) appear(s) on the Outstanding Notes hereby tendered or by any person(s) authorized to become the registered holder(s) by properly completed bond powers or endorsements and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, please set forth the full title of such person. See Instruction 4.
(Signature(s) of Holder(s))
| Date: |
| Name(s): |
(Please Type or Print)
| Capacity (full title): |
| Address: |
(Including Zip Code)
| Daytime Area Code and Telephone Number. |
| Taxpayer Identification or Social Security Number: |
GUARANTEE OF SIGNATURE(S)
(If Required-See Instruction 4)
| Authorized Signature: |
| Date: |
| Name: |
| Title: |
| Name of Firm: |
| Address of Firm: |
(Include Zip Code)
| Area Code and Telephone Number. |
| Taxpayer Identification or Social Security Number: |
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
General
Please do not send certificates for Outstanding Notes directly to the Issuer. Your certificates for Outstanding Notes, together with your signed and completed Letter of Transmittal and any required supporting documents, should be mailed or otherwise delivered to the Exchange Agent at the address set forth on the first page hereof. The method of delivery of Outstanding Notes, this Letter of Transmittal and all other required documents is at your sole option and risk and the delivery will be deemed made only when actually received by the Exchange Agent. If delivery is by mail, registered mail with return receipt requested, properly insured, or overnight or hand delivery service is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
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1. |
Delivery of this Letter of Transmittal and Certificates. |
A holder of Outstanding Notes (which term, for the purposes described herein, shall include the book-entry transfer facility whose name appears on a security listing as the owner of the Outstanding Notes) may tender the same by (i) properly completing and signing this Letter of Transmittal or a facsimile hereof (all references in the Prospectus to the Letter of Transmittal shall be deemed to include a facsimile thereof) and delivering the same, together with the certificate or certificates, if applicable, representing the Outstanding Notes being tendered and any required signature guarantees and any other documents required by this Letter of Transmittal, to the Exchange Agent at its address set forth above on or prior to the Expiration Date, or (ii) complying with the procedure for book-entry transfer described below.
Holders may tender their Outstanding Notes if: (i) the tender is made by or through an Eligible Guarantor Institution (as defined below); or (ii) the Exchange Agent receives a properly completed and executed Letter of Transmittal, or facsimile thereof and the certificate(s) representing all tendered Outstanding Notes in proper form or a confirmation of book-entry transfer of the Outstanding Notes into the Exchange Agent’s account at the appropriate book-entry transfer facility prior to the Expiration Date and all other documents deemed by the Issuer or Exchange Agent to be necessary or desirable to complete the exchange, assignment and transfer of the tendered Outstanding Notes within three New York Stock Exchange trading days after the Expiration Date.
No alternative, conditional, irregular or contingent tenders will be accepted. Each tendering holder, by execution of this Letter of Transmittal (or facsimile thereof), shall waive any right to receive notice of the acceptance of the Outstanding Notes for exchange.
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2. |
Partial Tenders; Withdrawals. |
Tenders of Outstanding Notes will be accepted only in the principal amount of $2,000 and integral multiples of $1,000 in excess thereof. If less than the entire principal amount of Outstanding Notes evidenced by a submitted certificate is tendered, the tendering holder(s) must fill in the aggregate principal amount of Outstanding Notes tendered in the column entitled “Description of Outstanding Notes Tendered Herewith” in Box 1 above. A newly issued certificate for the Outstanding Notes submitted but not tendered will be sent to such holder promptly after the Expiration Date, unless otherwise provided in the appropriate box on this Letter of Transmittal. All Outstanding Notes delivered to the Exchange Agent will be deemed to have been tendered in full unless otherwise clearly indicated. Outstanding Notes tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date, after which tenders of Outstanding Notes are irrevocable.
To be effective with respect to the tender of Outstanding Notes, a written notice of withdrawal (which may be by telegram, telex, facsimile or letter) must: (i) be received by the Exchange Agent at the address for the Exchange Agent set forth above before the Issuer notifies the Exchange Agent that it has accepted the tender of Outstanding Notes pursuant to the Exchange Offer; (ii) specify the name of the person who tendered the Outstanding Notes to be withdrawn; (iii) identify the Outstanding Notes to be withdrawn (including the principal amount of such Outstanding Notes, or, if applicable, the certificate numbers shown on the particular certificates evidencing such Outstanding Notes and the principal amount of Outstanding Notes represented by such certificates); (iv) include a statement that such holder is withdrawing its election to have such Outstanding Notes exchanged; (v) specify the name in which any such Outstanding Notes are to be registered, if different from that of the withdrawing holder; and (vi) be signed by the holder in the same manner as the original signature on this Letter of Transmittal (including any required signature guarantee). The Exchange Agent will return the properly withdrawn Outstanding Notes promptly following receipt of notice of withdrawal. If Outstanding Notes have been tendered pursuant to the procedure for book-entry transfer, any notice of withdrawal must specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn Outstanding Notes or otherwise comply with the book-entry transfer facility’s procedures. All questions as to the validity, form and eligibility of notices of withdrawals, including time of receipt, will be determined by the Issuer, and such determination will be final and binding on all parties.
Any Outstanding Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer. Any Outstanding Notes which have been tendered for exchange but which are not accepted for exchange for any reason will be returned to the holder thereof without cost to such holder (or, in the case of Outstanding Notes tendered by book-entry transfer into the Exchange Agent’s account at the book entry transfer facility pursuant to the book-entry transfer procedures described above, such Outstanding Notes will be credited to an account with such book-entry transfer facility specified by the holder) promptly after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Outstanding Notes may be retendered by following one of the procedures described under the caption “The Exchange Offer—Procedures for Tendering Outstanding Notes” in the Prospectus at any time prior to the Expiration Date.
None of the Issuer, any affiliate or assigns of the Issuer, the Exchange Agent nor any other person will be under any duty to give any notification of any irregularities in any notice of withdrawal or incur any liability for failure to give such notification (even if such notice is given to other persons).
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3. |
Beneficial Owner Instructions. |
Only a holder of Outstanding Notes (i.e., a person in whose name Outstanding Notes are registered on the books of the registrar or, or, in the case of Outstanding Notes held through book-entry, such book-entry transfer facility specified by the holder), or the legal representative or attorney-in-fact of a holder, may execute and deliver this Letter of Transmittal. Any beneficial owner of Outstanding Notes who wishes to accept the Exchange Offer must arrange promptly for the appropriate holder to execute and deliver this Letter of Transmittal on his or her behalf through the execution and delivery to the appropriate holder of the “Instructions to Registered Holder from Beneficial Owner” form accompanying this Letter of Transmittal.
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4. |
Signature on this Letter of Transmittal; Written Instruments and Endorsements; Guarantee of Signatures. |
If this Letter of Transmittal is signed by the registered holder(s) (which term, for the purposes described herein, shall include the book-entry transfer facility whose name appears on a security listing as the owner of the Outstanding Notes) of the Outstanding Notes tendered hereby, the signature must correspond exactly with the name(s) as written on the face of the certificates (or on such security listing) without alteration, addition, enlargement or any change whatsoever.
If any of the Outstanding Notes tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal.
If a number of Outstanding Notes registered in different names are tendered, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal (or facsimiles thereof) as there are different registrations of Outstanding Notes.
When this Letter of Transmittal is signed by the registered holder(s) of Outstanding Notes (which term, for the purposes described herein, shall include the book-entry transfer facility whose name appears on a security listing as the owner of the Outstanding Notes) listed and tendered hereby, no endorsements of certificates or separate written instruments of transfer or exchange are required. If, however, this Letter of Transmittal is signed by a person other than the registered holder(s) of the Outstanding Notes listed or the Exchange Notes are to be issued, or any untendered Outstanding Notes are to be reissued, to a person other than the registered holder(s) of the Outstanding Notes, such Outstanding Notes must be endorsed or accompanied by separate written instruments of transfer or exchange in form satisfactory to the Issuer and duly executed by the registered holder, in each case signed exactly as the name or names of the registered holder(s) appear(s) on the Outstanding Notes and the signatures on such certificates must be guaranteed by an Eligible Guarantor Institution (as defined below). If this Letter of Transmittal, any certificates or separate written instruments of transfer or exchange are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Issuer, submit proper evidence satisfactory to the Issuer, in its sole discretion, of such persons’ authority to so act.
Endorsements on certificates for the Outstanding Notes or signatures on bond powers required by this Instruction 4 must be guaranteed by a member firm of a registered national securities exchange or of the Financial Industry Regulatory Authority, Inc., a commercial bank or trust company having an office or correspondent in the United States or another “eligible guarantor institution” within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (an “Eligible Guarantor Institution”).
Signatures on this Letter of Transmittal must be guaranteed by an Eligible Guarantor Institution, unless Outstanding Notes are tendered: (i) by a registered holder (which term, for the purposes described herein, shall include the book-entry transfer facility whose name appears on a security listing as the owner of the Outstanding Notes) who has not completed the box entitled “Special Registration Instructions” or “Special Delivery Instructions” on this Letter of Transmittal; or (ii) for the account of an Eligible Guarantor Institution.
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5. |
Special Registration and Delivery Instructions. |
Tendering holders should indicate, in the applicable Box 5 or Box 6, the name and address in/to which the Exchange Notes and/or certificates for Outstanding Notes not exchanged are to be issued or sent, if different from the name(s) and address(es) of the person signing this Letter of Transmittal. In the case of issuance in a different name, the tax identification number or social security number of the person named must also be indicated. A holder tendering the Outstanding Notes by book-entry transfer may request that the Outstanding Notes not exchanged be credited to such account maintained at the book-entry transfer facility as such holder may designate. See Box 3.
If no such instructions are given, the Exchange Notes (and any Outstanding Notes not tendered or not accepted) will be issued in the name of and sent to the holder signing this Letter of Transmittal or deposited into such holder’s account at the applicable book-entry transfer facility.
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6. |
Transfer Taxes. |
The Issuer shall pay all transfer taxes, if any, applicable to the transfer and exchange of the Outstanding Notes to them or their order pursuant to the Exchange Offer. If, however, the Exchange Notes are delivered to or issued in the name of a person other than the registered holder, or if a transfer tax is imposed for any reason other than the transfer and exchange of Outstanding Notes to the Issuer or its order pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered holder or any other person) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith the amount of such transfer taxes will be billed directly to such tendering holder.
Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to the Outstanding Notes listed in this Letter of Transmittal.
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7. |
Waiver of Conditions. |
The Issuer reserves the absolute right to waive, in whole or in part, any of the conditions to the Exchange Offer set forth in the Prospectus.
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8. |
Mutilated, Lost, Stolen or Destroyed Securities. |
Any holder whose Outstanding Notes have been mutilated, lost, stolen or destroyed, should promptly contact the Exchange Agent at the address set forth on the first page hereof for further instructions. The holder will then be instructed as to the steps that must be taken in order to replace the certificate(s). This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, destroyed or stolen certificate(s) have been completed.
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9. |
No Conditional Tenders; No Notice of Irregularities. |
No alternative, conditional, irregular or contingent tenders will be accepted. All tendering holders, by execution of this Letter of Transmittal, shall waive any right to receive notice of the acceptance of their Outstanding Notes for exchange. The Issuer reserves the right, in its reasonable judgment, to waive any defects, irregularities or conditions of tender as to particular Outstanding Notes. The Issuer’s interpretation of the terms and conditions of the Exchange Offer (including the instructions in this Letter of Transmittal) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Outstanding Notes must be cured within such time as the Issuer shall determine. Although the Issuer intends to notify holders of defects or irregularities with respect to tenders of Outstanding Notes, none of the Issuer, the Exchange Agent or any other person is under any obligation to give such notice nor shall they incur any liability for failure to give such notification. Tenders of Outstanding Notes will not be deemed to have been made until such defects or irregularities have been cured or waived. Any Outstanding Notes received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the Exchange Agent to the tendering holder promptly following the Expiration Date.
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10. |
Requests for Assistance or Additional Copies. |
Questions relating to the procedure for tendering, as well as requests for additional copies of the Prospectus and this Letter of Transmittal, may be directed to the Exchange Agent at the address and telephone number set forth on the first page hereof.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE OR COPY THEREOF (TOGETHER WITH CERTIFICATES OF OUTSTANDING NOTES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under U.S. federal income tax law, a tendering holder whose Outstanding Notes are accepted for exchange may be subject to backup withholding unless the holder provides the Exchange Agent with either (i) such holder’s correct taxpayer identification number (“TIN”) on IRS Form W-9, certifying (A) that the TIN provided on the IRS Form W-9 is correct (or such holder is awaiting a TIN), (B) that the holder of Outstanding Notes is not subject to backup withholding because (x) such holder of Outstanding Notes is exempt from backup withholding, (y) such holder of Outstanding Notes has not been notified by the IRS that he or she is subject to backup withholding as a result of a failure to report all interest or dividends or (z) the IRS has notified the holder of Outstanding Notes that he or she is no longer subject to backup withholding and (C) that the holder of Outstanding Notes is a U.S. person (including a U.S. resident alien); or (ii) an adequate basis for exemption from backup withholding. If such holder of Outstanding Notes is an individual, the TIN is such holder’s social security number. If the Exchange Agent is not provided with the correct TIN, the holder of Outstanding Notes may also be subject to certain penalties imposed by the IRS and any reportable payments that are made to such holder may be subject to backup withholding (see below).
Certain holders of Outstanding Notes (including, among others, generally all corporations and certain foreign holders) are not subject to these backup withholding and reporting requirements. However, to avoid erroneous backup withholding, exempt U.S. holders of Outstanding Notes should complete the IRS Form W-9. In order for a foreign holder to qualify as an exempt recipient, the holder must submit an applicable IRS Form W-8, signed under penalties of perjury, attesting to that holder’s exempt status. An applicable IRS Form W-8 can be obtained from the Exchange Agent or at the IRS website at www.irs.gov. Holders are encouraged to consult their tax advisors to determine whether they are exempt from these backup withholding and reporting requirements. See the instructions to IRS Form W-9 for additional information.
If backup withholding applies, the Exchange Agent is required to withhold 24% of any reportable payments made to the holder of Outstanding Notes or other payee. Backup withholding is not an additional tax. Rather, the tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained from the IRS, provided the required information is furnished. The Exchange Agent cannot refund amounts withheld by reason of backup withholding.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 20. |
Indemnification of Directors and Officers. |
Maryland law permits a Maryland corporation to include in its charter a provision eliminating the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established by a final judgment as being material to the cause of action. Our charter contains such a provision which eliminates directors' and officers' liability to the maximum extent permitted by Maryland law.
Our charter authorizes us, and our bylaws obligate us, to the maximum extent permitted by Maryland law, to indemnify any present or former director or officer or any individual who, while a director or officer of us and at the request of us, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, officer, partner or trustee, from and against any claim or liability to which that individual may become subject or which that individual may incur by reason of his or her status as a present or former director or officer of us and to pay or reimburse his or her reasonable expenses in advance of final disposition of a proceeding. The charter and bylaws also permit us to indemnify and advance expenses to any individual who served a predecessor of us in any of the capacities described above and any employee or agent of us or a predecessor of us.
Maryland law requires a corporation (unless its charter provides otherwise, which our charter does not) to indemnify a director or officer who has been successful in the defense of any proceeding to which he is made a party by reason of his service in that capacity. Maryland law permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made a party by reason of their service in those or other capacities unless it is established that (a) the act or omission of the director or officer was material to the matter giving rise to the proceeding and (i) was committed in bad faith or (ii) was the result of active and deliberate dishonesty, (b) the director or officer actually received an improper personal benefit in money, property or services or (c) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. However, under Maryland law, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that personal benefit was improperly received, unless in either case a court orders indemnification and then only for expenses. In addition, Maryland law permits a corporation to advance reasonable expenses to a director or officer upon the corporation's receipt of (a) a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation and (b) a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the standard of conduct was not met.
We have entered into indemnification agreements with each of our directors and executive officers. The indemnification agreements require, among other things, that we indemnify our directors and executive officers to the fullest extent permitted by law and advance our directors and executive officers all related expenses, subject to reimbursement if it is subsequently determined that indemnification is not permitted.
Insofar as the foregoing provisions permit indemnification of directors, officers or persons controlling us for liability arising under the Securities Act, we have been informed that, in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
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Item 21. |
Financial Statements and Exhibits. |
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Exhibit Number |
Description |
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Articles of Amendment and Restatement of the Company, as amended (incorporated by reference to Exhibit 3.1 to the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 28, 2020). |
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Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 23, 2020). |
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Articles Supplementary designating the Company’s 7.75% Series B Cumulative Redeemable Preferred Stock (the “Series B Preferred Stock”) (incorporated by reference to Exhibit 3.3 to the Company’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on May 31, 2013). |
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Articles Supplementary classifying and designating 2,550,000 additional shares of the Series B Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 20, 2015). |
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Articles Supplementary classifying and designating the Company’s 7.875% Series C Cumulative Redeemable Preferred Stock (the “Series C Preferred Stock”) (incorporated by reference to Exhibit 3.5 to the Company’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on April 21, 2015). |
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Articles Supplementary classifying and designating the Company’s 8.00% Series D Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock (the “Series D Preferred Stock”) (incorporated by reference to Exhibit 3.6 to the Company’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on October 10, 2017). |
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Articles Supplementary classifying and designating 2,460,000 additional shares of the Series C Preferred Stock (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 29, 2019). |
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Articles Supplementary classifying and designating 2,650,000 additional shares of the Series D Preferred Stock (incorporated by reference to Exhibit 3.3 of the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 29, 2019). |
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Articles Supplementary classifying and designating the Company's 7.875% Series E Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock (the “Series E Preferred Stock”) (incorporated by reference to Exhibit 3.9 to the Company’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on October 15, 2019). |
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Articles Supplementary classifying and designating 3,000,000 additional shares of the Series E Preferred Stock (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on November 27, 2019). |
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Indenture, dated as of April 27, 2021, between New York Mortgage Trust, Inc. and UMB Bank, National Association, as trustee (incorporated by reference to Exhibit 4.1 to the registrant’s Current Report on Form 8-K filed April 27, 2021). |
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Form of New York Mortgage Trust, Inc.’s 5.75% Senior Notes due 2026 (included in Exhibit 4.1). |
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Form of Registration Rights Agreement, dated as of April 27, 2021, between New York Mortgage Trust, Inc. and the several purchasers of Notes party thereto (incorporated by reference to Exhibit 4.3 to the registrant’s Current Report on Form 8-K filed on April 27, 2021). |
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Opinion of Venable LLP. |
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Opinion of Vinson & Elkins L.L.P. |
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Tax opinion of Vinson & Elkins L.L.P. as to certain U.S. federal income tax matters. |
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List of Subsidiaries (incorporated by reference to Exhibit 21.1 to the registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2020). |
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23.1* |
Consent of Vinson & Elkins L.L.P. (included in Exhibits 5.2 and 8.1). |
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Consent of Venable LLP (included in Exhibit 5.1). |
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Consent of Grant Thornton LLP. |
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Power of Attorney (included on Signature Page). |
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Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, for UMB Bank, National Association, as trustee with respect to the Indenture dated as of April 27, 2021. |
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
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Form of Letter to Clients. |
* Filed herewith
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Item 22. |
Undertakings. |
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(1) |
The undersigned registrant hereby undertakes: |
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(1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(i) |
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933. |
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(ii) |
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. |
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(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
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(2) |
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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(3) |
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
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(4) |
That, for purposes of determining liability under the Securities Act of 1933 to any purchaser, if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
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(5) |
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
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(i) |
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
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(ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
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(iii) |
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
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(iv) |
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
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(2) |
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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(3) |
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
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(4) |
The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of Form S-4, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. |
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(5) |
The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in New York, New York, on the 28th of May, 2021.
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NEW YORK MORTGAGE TRUST, INC. |
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Date: May 28, 2021 |
By: |
/s/ Steven R. Mumma |
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Steven R. Mumma |
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Chairman of the Board and Chief Executive Officer |
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| (Principal Executive Officer) | ||||
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Steven R. Mumma, Jason T. Serrano, Kristine R. Nario-Eng, and Nathan R. Reese and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement, and any additional related registration statement filed pursuant to Rule 462 under the Securities Act of 1933, as amended (including post-effective amendments to the registration statement and any such related registration statements), and to file the same, with all exhibits thereto, and any other documents in connection therewith, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
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Name |
Title |
Date |
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/s/ Steven R. Mumma |
Chairman of the Board and Chief Executive Officer |
May 28, 2021 |
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Steven R. Mumma |
(Principal Executive Officer) |
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/s/ Kristine R. Nario-Eng |
Chief Financial Officer |
May 28, 2021 |
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Kristine R. Nario-Eng |
(Principal Financial and Accounting Officer) |
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/s/ Jason T. Serrano |
President and Director |
May 28, 2021 |
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Jason T. Serrano |
||||
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/s/ David R. Bock |
Director** |
May 28, 2021 |
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David R. Bock |
||||
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/s/ Michael B. Clement |
Director** |
May 28, 2021 |
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Michael B. Clement |
||||
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/s/ Alan L. Hainey |
Director** |
May 28, 2021 |
||
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Alan L. Hainey |
||||
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/s/ Steven G. Norcutt |
Director** |
May 28, 2021 |
||
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Steven G. Norcutt |
||||
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/s/ Lisa A. Pendergast |
Director** |
May 28, 2021 |
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Lisa A. Pendergast |
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** |
Independent Director |
Exhibit 5.1
 |
 |
May 28, 2021
New York Mortgage Trust, Inc.
90 Park Avenue
New York, New York 10016
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
We have served as Maryland counsel to New York Mortgage Trust, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the filing of the above-referenced registration statement, and all amendments thereto (collectively, the “Registration Statement”), by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), relating to the proposed issuance and offer to exchange up to $100,000,000 in aggregate principal amount of the Company’s new 5.75% Senior Notes due 2026 (the “Exchange Securities”) for a like aggregate principal amount of outstanding 5.75% Senior Notes due 2026 (the “Original Securities”). The Exchange Securities are to be issued pursuant to the Indenture (as defined below).
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):
1. The Registration Statement and the related form of prospectus included therein, in the form in which it was transmitted to the Commission under the 1933 Act;
2. The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;
4. Resolutions (the “Resolutions”) adopted by the Board of Directors of the Company, and a duly authorized committee thereof, relating to, among other matters, the authorization of (a) the sale and issuance of the Original Securities and (b) the issuance of the Exchange Securities, certified as of the date hereof by an officer of the Company;
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New York Mortgage Trust, Inc.
May 28, 2021
Page 2
5. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
6. A certificate executed by an officer of the Company, dated as of the date hereof;
7. The Indenture, dated as of the date hereof (the “Indenture”), by and between the Company and UMB Bank, National Association, as trustee (the “Trustee”); and
8. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information as to matters of fact contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any of the provisions of any of the Documents, by action or omission of the parties or otherwise.
5. The Exchange Securities, if and when issued, will have substantially identical terms as the Original Securities and will be issued in exchange therefor as contemplated by the Indenture and the Registration Statement.
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New York Mortgage Trust, Inc.
May 28, 2021
Page 3
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under the laws of the State of Maryland and is in good standing with the SDAT.
2. The Company has the corporate power to enter into and perform its obligations under the Indenture and the Exchange Securities.
3. The issuance of the Exchange Securities have been duly authorized by all necessary corporate action on the part of the Company.
4. The Indenture has been duly executed and, so far as is known to us, delivered by the Company.
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to compliance with any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers or the laws, codes or regulations of any municipality or other local jurisdiction. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
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Very truly yours,
/s/ Venable LLP |
Exhibit 5.2
May 28, 2021
Board of Directors
New York Mortgage Trust, Inc.
90 Park Avenue
New York, New York 10016
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as special counsel to New York Mortgage Trust, Inc., a Maryland corporation (the “Company”), with respect to the preparation of the Registration Statement on Form S-4 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) on the date hereof in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of the offer and exchange (the “Exchange Offer”) by the Company of $100,000,000 aggregate principal amount outstanding of 5.75% senior notes due 2026 (the “Original Notes”) for new notes in like principal amount and bearing substantially identical terms to the Original Notes (the “Exchange Notes”).
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. The Original Notes were issued, and the Exchange Notes will be issued, under an Indenture, dated as of April 27, 2021, by and between the Company and UMB Bank, National Association, as trustee (as it may be amended from time to time, the “Indenture”). The Exchange Offer will be conducted on such terms and conditions as are set forth in the prospectus contained in the Registration Statement to which this opinion letter is an exhibit.
We have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement, (ii) the Indenture, and (iii) such other certificates, statutes and other instruments and documents as we considered appropriate for purposes of the opinion expressed below. In connection with rendering the opinion set forth below, we have assumed (a) the authenticity of all documents submitted to us as originals, (b) the conformity to the originals of all documents submitted as certified or photostatic copies and the authenticity of the originals of such documents, (c) the due authorization, execution and delivery of all documents by all parties, and, except to the extent expressly stated in the opinion contained herein, the validity, binding effect and enforceability thereof, (d) the legal capacity of natural persons, (e) the genuineness of all signatures, (f) that the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective and (g) that the Exchange Notes will be issued and sold in compliance with applicable federal and state securities laws and in the manner described in the Registration Statement.
|
Vinson & Elkins LLP Attorneys at Law Austin Dallas Dubai Houston London Los Angeles New York Richmond Riyadh San Francisco Tokyo Washington |
2200 Pennsylvania Avenue NW, Suite 500 West Washington, DC 20037-1701 Tel +1.202.639.6500 Fax +1.202.639.6604 velaw.com |
Based on the foregoing, and subject to the qualifications and limitations stated herein, we are of the opinion that, when the Exchange Notes have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture, such Exchange Notes will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to the qualification that the enforceability of obligations of the Company thereunder may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance and similar laws affecting rights and remedies of creditors generally, by general principles of equity and an implied covenant of good faith and fair dealing, and will be entitled to the benefits of the Indenture.
We express no opinion concerning (i) the validity or enforceability of any provisions contained in the Indenture that purport to waive or not give effect to the rights to notices, defenses, subrogation or other rights or benefits that cannot be effectively waived under applicable law or (ii) the enforceability of indemnification provisions to the extent they purport to relate to liabilities resulting from or based upon negligence or any violation of federal or state securities or blue sky laws.
We do not purport to express any opinion on any laws other than the laws of the State of New York.
We hereby consent to the references to our firm under the caption “Legal Matters” in the prospectus forming a part of the Registration Statement and to the filing of this opinion letter as an exhibit to the Registration Statement. By giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. This opinion is given as of the date hereof, and we do not undertake to advise you of any changes in the opinions expressed herein from matters that might hereafter arise or be brought to our attention
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Very truly yours,
/s/ Vinson & Elkins L.L.P. |
Exhibit 8.1
May 28, 2021
New York Mortgage Trust, Inc.
90 Park Avenue, 23rd Floor
New York, New York 10016
Re: New York Mortgage Trust, Inc. Qualification as a Real Estate Investment Trust
Ladies and Gentlemen:
We have acted as counsel to New York Mortgage Trust, Inc., a Maryland corporation (the “Company”), in connection with the preparation of the Registration Statement on Form S-4 filed with the Securities and Exchange Commission (the “SEC”) on the date hereof (the “Registration Statement”) with respect to the registration of $100,000,000 aggregate principal amount of the Company’s 5.75% senior notes due 2026 (the “New Notes”), which are to be offered in exchange for all of the Company’s outstanding 5.75% senior notes due 2026 (the “Old Notes”). The Old Notes were, and the New Notes will be, issued under the Indenture, dated April 27, 2021, by and between the Company and UMB Bank National Association, as trustee. You have requested our opinion regarding certain U.S. federal income tax matters.
In giving this opinion letter, we have examined the following:
1. the Company’s Articles of Amendment and Restatement;
2. the Company’s Bylaws;
3. the organizational documents for New York Mortgage Funding, LLC (“NYMF”), Hypotheca Capital, LLC (“Hypotheca”), NYMT Residential Tax, LLC (“NYMT Residential”), NYMT Residential Tax 2013-RP1, LLC (“Residential Tax 1”), NYMT Residential Tax 2013-RP2, LLC (“Residential Tax 2”), NYMT Residential Tax 2013-RP3, LLC (“Residential Tax 3”), NYMT Residential Tax 2016-RP1, LLC (“Residential Tax 4”), Headlands Asset Management Fund III (Cayman), LP, Headlands Flagship Opportunity Fund Series I (“Headlands”) and NYMT Commercial Management, LLC (“Commercial Management”);
4. the Registration Statement;
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Vinson & Elkins LLP Attorneys at Law Austin Dallas Dubai Houston London Los Angeles New York Richmond Riyadh San Francisco Tokyo Washington |
2200 Pennsylvania Avenue NW, Suite 500 West Washington, DC 20037-1701 Tel +1.202.639.6500 Fax +1.202.639.6604 velaw.com |
 |
May 28, 2021 Page 2 |
5. the “taxable REIT subsidiary” (“TRS”) election for Hypotheca, which election, as amended, lists The New York Mortgage Company, Inc. and NYMC Loan Corporation as greater than 35%-owned subsidiaries;
6. the TRS election for NYMF;
7. the TRS election for NYMT Residential;
8. the TRS election for Residential Tax 1;
9. the TRS election for Residential Tax 2;
10. the TRS election for Residential Tax 3;
11. the TRS election for Residential Tax 4;
12. the TRS election for Headlands;
13. the TRS election for Commercial Management; and
14. such other documents as we have deemed necessary or appropriate for purposes of this opinion.
In connection with the opinions rendered below, we have assumed, with your consent, that:
1. each of the documents referred to above has been duly authorized, executed, and delivered; is authentic, if an original, or is accurate, if a copy; and has not been amended;
2. during its taxable year ending December 31, 2021, and future taxable years, the Company has operated and will operate in a manner that will make the representations contained in a certificate, dated the date hereof and executed by a duly appointed officer of the Company (the “Officer’s Certificate”), true for such years, without regard to any qualifications as to knowledge or belief;
3. the Company will not make any amendments to its organizational documents or the organizational documents of NYMF, Hypotheca, NYMT Residential, Residential Tax 1, Residential Tax 2, Residential Tax 3, Residential Tax 4, Commercial Management or any other subsidiary after the date of this opinion that would affect the Company’s qualification as a real estate investment trust (a “REIT”) for any taxable year; and
4. no action will be taken by the Company, NYMF, Hypotheca, NYMT Residential, Residential Tax 1, Residential Tax 2, Residential Tax 3, Residential Tax 4, Headlands, Commercial Management or any other subsidiary after the date hereof that would have the effect of altering the facts upon which the opinions set forth below are based.
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May 28, 2021 Page 3 |
In connection with the opinions rendered below, we have also relied upon the correctness, without regard to any qualification as to knowledge or belief, of the factual representations and covenants contained in the Officer’s Certificate. We are not aware of any facts that are inconsistent with the representations contained in the Officer’s Certificate. Furthermore, where the factual representations in the Officer’s Certificate involve terms defined in the Internal Revenue Code of 1986, as amended (the “Code”), the Treasury regulations thereunder (the “Regulations”), published rulings of the Internal Revenue Service (the “Service”), or other relevant authority, we have reviewed with the individuals making such representations the relevant provisions of the Code, the applicable Regulations, the published rulings of the Service, and other relevant authority.
Based on the documents and assumptions set forth above, the representations and covenants set forth in the Officer’s Certificate, and the factual matters discussed in the Registration Statement under the caption “Certain U.S. Federal Income Tax Consequences” (which are incorporated herein by reference), we are of the opinion that:
(a) the Company qualified to be taxed as a REIT pursuant to sections 856 through 860 of the Code, for its short taxable year ended December 31, 2004 and its taxable years ended December 31, 2005 through December 31, 2020, and the Company’s organization and current and proposed method of operation (as described in the Officer’s Certificate) will enable it to continue to qualify as a REIT under the Code for its taxable year ending December 31, 2021 and thereafter; and
(b) the descriptions of law and the legal conclusions in the Registration Statement under the caption “Certain U.S. Federal Income Tax Consequences” are correct in all material respects.
We will not review on a continuing basis the Company’s compliance with the documents or assumptions set forth above, or the representations set forth in the Officer’s Certificate. Accordingly, no assurance can be given that the actual results of the Company’s operations for any given taxable year will satisfy the requirements for qualification and taxation as a REIT. Although we have made such inquiries and performed such investigations as we have deemed necessary to fulfill our professional responsibilities as counsel, we have not undertaken an independent investigation of all the facts referred to in this opinion letter or the Officer’s Certificate.
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May 28, 2021 Page 4 |
The foregoing opinions are based on current provisions of the Code and the Regulations, published administrative interpretations thereof; and published court decisions. The Service has not issued Regulations or administrative interpretations with respect to various provisions of the Code relating to REIT qualification. No assurance can be given that the law will not change in a way that will prevent the Company from qualifying as a REIT.
The foregoing opinions are limited to the federal income tax matters addressed herein, and no other opinions are rendered with respect to other federal tax matters or to any issues arising under the tax laws of any other country, or any state or locality. Additional issues may exist that could affect the federal income tax treatment of the transaction or matter that is the subject of this opinion, and this opinion letter does not consider or provide a conclusion with respect to any such additional issues. We undertake no obligation to update the opinions expressed herein after the date of this letter. This opinion letter speaks only as of the date hereof. Except as provided in the next paragraph, this opinion letter may not be distributed, quoted in whole or in part or otherwise reproduced in any document, or filed with any governmental agency without our express written consent.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters” in the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required by Section 7 of the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder by the SEC.
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Sincerely,
/s/ Vinson & Elkins LLP
VINSON & ELKINS LLP |
Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our reports, dated February 26, 2021 with respect to the consolidated financial statements and internal control over financial reporting of New York Mortgage Trust, Inc. included in the Annual Report on Form 10-K for the year ended December 31, 2020, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement, and to use our name as it appears under the caption “Experts.”
/s/ GRANT THORNTON LLP
New York, New York
May 28, 2021
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
☐ CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)
UMB BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
| A National Banking Association | 44-0194180 |
| (Jurisdiction of incorporation or | (I.R.S. Employer |
| organization if not a U.S. national | Identification No.) |
| bank) | |
| 1010 Grand Boulevard | 64106 |
| Kansas City, Missouri | (Zip code) |
| (Address of principal executive offices) |
Mauri J. Cowen
UMB Bank, National Association
5555 San Felipe, Suite 870
Houston, TX 77056
(713) 300-0587
(Name, address and telephone number of agent for service)
NEW YORK MORTGAGE TRUST, INC.
(Exact name of obligor as specified in its charter)
| Maryland | 47-0934168 |
| (State or other jurisdiction of | (I.R.S. Employer |
| incorporation or organization) | Identification No.) |
| 90 Park Ave | |
| New York, New York | 10016 |
| (Address of principal executive offices) | (Zip code) |
5.75% Senior Notes due 2026
(Title of the indenture securities)
Item 1. General Information. Furnish the following information as to the trustee:
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(a) |
Name and address of each examining or supervising authority to which it is subject. |
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Mid-Western District 2345 Grand Avenue, Suite 700 Kansas City, Missouri 64108 |
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Federal Reserve Bank of Kansas City Federal Reserve P.O. Station Kansas City, Missouri 64198 |
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Supervising Examiner Federal Deposit Insurance Corporation 720 Olive Street, Suite 2909 St. Louis, Missouri 63101 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
| Yes |
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation.
None
Items 3-15. Items 3-15 are not applicable because, to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee.
Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility.
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Exhibit 1. |
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Exhibit 2. |
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Exhibit 3. |
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Exhibit 4. |
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Exhibit 5. |
A copy of each Indenture referred to in Item 4. Not applicable. |
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Exhibit 6. |
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Exhibit 7. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, UMB BANK, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Houston, State of Texas on the 28th day of May, 2021.
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UMB BANK, NATIONAL ASSOCIATION |
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/s/ Mauri J. Cowen |
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Mauri J. Cowen |
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Senior Vice President |
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(See Attached)
Exhibit 99.1
NEW YORK MORTGAGE TRUST, INC.
OFFER TO EXCHANGE
$100,000,000 AGGREGATE PRINCIPAL AMOUNT OF ITS 5.75% SENIOR NOTES DUE 2026, WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, FOR ANY AND ALL OF ITS OUTSTANDING UNREGISTERED 5.75% SENIOR NOTES DUE 2026
, 2021
To Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees:
As described in the enclosed Prospectus, dated , 2021 (as the same may be amended or supplemented from time to time, the “Prospectus”), and Letter of Transmittal (the “Letter of Transmittal”), New York Mortgage Trust, Inc. (the “Issuer”) is offering to exchange (the “Exchange Offer”) an aggregate principal amount of up to $100,000,000 of its 5.75% Senior Notes due 2026 (the “Exchange Notes”), which have been registered under the Securities Act of 1933, as amended (the “Securities Act”), for any and all of its outstanding unregistered 5.75% Senior Notes due 2026 (the “Outstanding Notes”) in integral multiples of $2,000 and multiples of $1,000 in excess thereof upon the terms and subject to the conditions of the enclosed Prospectus and Letter of Transmittal. The terms of the Exchange Notes are identical in all material respects (including principal amount, interest rate and maturity) to the terms of the Outstanding Notes, except that the Exchange Notes are freely transferable by holders thereof and are not subject to any covenant regarding registration under the Securities Act. The Issuer will accept for exchange any and all Outstanding Notes properly tendered according to the terms of the Prospectus and the Letter of Transmittal. Consummation of the Exchange Offer is subject to certain conditions described in the Prospectus.
WE URGE YOU TO PROMPTLY CONTACT YOUR CLIENTS FOR WHOM YOU HOLD OUTSTANDING NOTES REGISTERED IN YOUR NAME OR IN THE NAME OF YOUR NOMINEE. PLEASE BRING THE EXCHANGE OFFER TO THEIR ATTENTION AS PROMPTLY AS POSSIBLE.
Enclosed are copies of the following documents:
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The Prospectus; |
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The Letter of Transmittal for your use in connection with the tender of Outstanding Notes and for the information of your clients; and |
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A form of letter, including a letter of instructions to a registered holder from a beneficial owner, which you may use to correspond with your clients for whose accounts you hold Outstanding Notes that are registered in your name or the name of your nominee, with space provided for obtaining such clients’ instructions regarding the Exchange Offer. |
Your prompt action is requested. Please note that the Exchange Offer will expire at 5:00 p.m., New York City time, on , 2021 (the “Expiration Date”), unless the Issuer otherwise extends the Exchange Offer.
To participate in the Exchange Offer, certificates for Outstanding Notes, together with a duly executed and properly completed Letter of Transmittal or facsimile thereof, or a timely confirmation of a book-entry transfer of such Outstanding Notes into the account of UMB Bank, National Association (the “Exchange Agent”), at the book-entry transfer facility, with any required signature guarantees, and any other required documents, must be received by the Exchange Agent by the Expiration Date as indicated in the Prospectus and the Letter of Transmittal.
The Issuer will not pay any fees or commissions to any broker or dealer or to any other persons (other than a fee to the Exchange Agent) in connection with the solicitation of tenders of the Outstanding Notes pursuant to the Exchange Offer. However, the Issuer will pay or cause to be paid any transfer taxes, if any, applicable to the tender of the Outstanding Notes to it or its order, except as otherwise provided in the Prospectus and Letter of Transmittal.
Any inquiries you may have with respect to the Exchange Offer should be addressed to the Exchange Agent at its address and telephone number set forth in the enclosed Prospectus and Letter of Transmittal. Additional copies of the enclosed materials may be obtained from the Exchange Agent.
Very truly yours,
NEW YORK MORTGAGE TRUST, INC.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON AS AN AGENT OF THE ISSUER OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF THEM IN CONNECTION WITH THE EXCHANGE OFFER, OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS EXPRESSLY CONTAINED THEREIN.
Exhibit 99.2
NEW YORK MORTGAGE TRUST, INC.
OFFER TO EXCHANGE
$100,000,000 AGGREGATE PRINCIPAL AMOUNT OF ITS 5.75% SENIOR NOTES DUE 2026, WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, FOR ANY AND ALL OF ITS OUTSTANDING UNREGISTERED 5.75% SENIOR NOTES DUE 2026
, 2021
To Our Clients:
Enclosed for your consideration are a Prospectus, dated , 2021 (as the same may be amended or supplemented from time to time, the “Prospectus”), and a Letter of Transmittal (the “Letter of Transmittal”), relating to the offer by New York Mortgage Trust, Inc. (the “Issuer”), to exchange (the “Exchange Offer”) an aggregate principal amount of up to $100,000,000 of its 5.75% Senior Notes due 2026 (the “Exchange Notes”), which have been registered under the Securities Act of 1933, as amended (the “Securities Act”), for any and all of its outstanding unregistered 5.75% Senior Notes due 2026 (the “Outstanding Notes”) in integral multiples of $2,000 and multiples of $1,000 in excess thereof upon the terms and subject to the conditions of the enclosed Prospectus and Letter of Transmittal. The terms of the Exchange Notes are identical in all material respects (including principal amount, interest rate and maturity) to the terms of the Outstanding Notes, except that the Exchange Notes are freely transferable by holders thereof, upon the terms and subject to the conditions of the enclosed Prospectus and Letter of Transmittal, and are not subject to any covenant regarding registration under the Securities Act. The Issuer will accept for exchange any and all Outstanding Notes properly tendered according to the terms of the Prospectus and the Letter of Transmittal. Consummation of the Exchange Offer is subject to certain conditions described in the Prospectus.
PLEASE NOTE THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2021 (THE “EXPIRATION DATE”), UNLESS THE ISSUER EXTENDS THE EXCHANGE OFFER.
The enclosed materials are being forwarded to you as the beneficial owner of the Outstanding Notes held by us for your account but not registered in your name. A tender of such Outstanding Notes may only be made by us as the registered holder and pursuant to your instructions. Therefore, the Issuer urges beneficial owners of Outstanding Notes registered in the name of a broker, dealer, commercial bank, trust company or other nominee to contact such registered holder promptly if such beneficial owners wish to tender their Outstanding Notes in the Exchange Offer.
Accordingly, we request instructions as to whether you wish to tender any or all such Outstanding Notes held by us for your account, pursuant to the terms and conditions set forth in the enclosed Prospectus and Letter of Transmittal. If you wish to have us tender any or all of your Outstanding Notes, please so instruct us by completing, signing and returning to us the “Instructions to Registered Holder from Beneficial Owner” form that appears below. We urge you to read the Prospectus and the Letter of Transmittal carefully before instructing us as to whether or not to tender your Outstanding Notes.
The accompanying Letter of Transmittal is furnished to you for your information only and may not be used by you to tender Outstanding Notes held by us and registered in our name for your account or benefit.
If we do not receive written instructions in accordance with the below and the procedures presented in the Prospectus and the Letter of Transmittal, we will not tender any of the Outstanding Notes on your account.
INSTRUCTIONS TO REGISTERED HOLDER FROM BENEFICIAL OWNER
The undersigned beneficial owner acknowledges receipt of your letter and the accompanying Prospectus dated , 2021 (as the same may be amended or supplemented from time to time, the “Prospectus”), and a Letter of Transmittal (the “Letter of Transmittal”), relating to the offer (the “Exchange Offer”) by New York Mortgage Trust, Inc. (the “Issuer”), to exchange an aggregate principal amount of up to $100,000,000 of its 5.75% Senior Notes due 2026 (the “Exchange Notes”), which have been registered under the Securities Act of 1933, as amended (the “Securities Act”), for any and all of its outstanding unregistered 5.75% Senior Notes due 2026 (the “Outstanding Notes”), upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal. Capitalized terms used but not defined herein have the meanings ascribed to them in the Prospectus.
This will instruct you, the registered holder, to tender the principal amount of the Outstanding Notes indicated below held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal.
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Principal Amount Held for Account Holder(s) |
Principal Amount to be Tendered* |
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Unless otherwise indicated, the entire principal amount held for the account of the undersigned will be tendered. |
If the undersigned instructs you to tender the Outstanding Notes held by you for the account of the undersigned, it is understood that you are authorized (a) to make, on behalf of the undersigned (and the undersigned, by its signature below, hereby makes to you), the representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner of the Outstanding Notes, including but not limited to the representations that the undersigned (i) is not an “affiliate,” as defined in Rule 405 under the Securities Act, of the Issuer, (ii) is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any person to participate in, a distribution of Exchange Notes, (iii) is acquiring the Exchange Notes in the ordinary course of its business and (iv) is not a broker-dealer tendering Outstanding Notes acquired for its own account directly from the Issuer. If a holder of the Outstanding Notes is an affiliate of the Issuer, is not acquiring the Exchange Notes in the ordinary course of its business, is engaged in or intends to engage in a distribution of the Exchange Notes or has any arrangement or understanding with respect to the distribution of the Exchange Notes to be acquired pursuant to the Exchange Offer, such holder may not rely on the applicable interpretations of the staff of the Securities and Exchange Commission relating to exemptions from the registration and prospectus delivery requirements of the Securities Act and must comply with such requirements in connection with any secondary resale transaction.
SIGN HERE
Date: , 2021
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| Address: |
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(Please include Area Code)
| Tax Identification Number or Social Security Number: |
| My Account Number with You: |