SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 10, 2018
NEW YORK MORTGAGE TRUST, INC.
(Exact name of registrant as specified in its charter)
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Maryland
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001-32216
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47-0934168
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(State or other jurisdiction of
incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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275 Madison Avenue
New York, New York 10016
(Address and zip code of
principal executive offices)
Registrant’s telephone number, including area code:
(212) 792-0107
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 under the Securities Act (§230.405 of this chapter) or Rule 12b-2 under the Exchange Act (§240.12b-2 of this chapter).
Emerging Growth Company
o
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 13(a) of the Exchange Act.
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Item 1.01.
Entry Into a Material Definitive Agreement.
On September 10, 2018, New York Mortgage Trust, Inc. (the “Company”) entered into an amendment (the “Amendment”) to the equity distribution agreement, dated August 10, 2017 (as amended, the “Equity Distribution Agreement”), with Credit Suisse Securities (USA) LLC (“Credit Suisse”) in connection with the Company’s “at-the-market” offering program (the “ATM Program”). The Amendment increased the maximum aggregate sales price of shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”) that the Company may offer and sell under the ATM Program. Pursuant to the Equity Distribution Agreement, the Company may offer and sell shares of Common Stock having a maximum aggregate sales price of up to $177,087,818 from time to time through Credit Suisse. Pursuant to a prospectus supplement filed on the date hereof, shares of Common Stock having a maximum aggregate sales price of $100,000,000 (the “Offered Shares”) remain available for offer and sale under the Equity Distribution Agreement. The Company has previously sold shares of Common Stock having an aggregate offering price of $77,087,818 million under the ATM Program.
The Amendment also provides that the Offered Shares will be issued pursuant to the Company’s automatic shelf registration statement filed with the Securities and Exchange Commission on August 9, 2018 (File No. 333-226726), a base prospectus, dated August 9, 2018, included as part of the registration statement, and a prospectus supplement, dated the date hereof, filed with the Securities and Exchange Commission pursuant to Rule 424(b) under the Securities Act.
The Amendment is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference. The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment filed herewith as an exhibit to this Current Report on Form 8-K.
In connection with the filing of the Amendment, the Company is filing as Exhibit 5.1 hereto the opinion of its Maryland counsel, Venable LLP, regarding the validity of the Offered Shares.
This Current Report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there been any sale of securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
Item 9.01.
Financial Statements and Exhibits.
(d)
Exhibits.
The following exhibits are being filed herewith this Current Report on Form 8-K.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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NEW YORK MORTGAGE TRUST, INC.
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(Registrant)
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Date: September 10, 2018
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By:
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/s/ Steven R. Mumma
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Steven R. Mumma
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Chief Executive Officer
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Exhibit 1.1
New York Mortgage Trust, Inc.
AMENDMENT NO. 1
TO
EQUITY DISTRIBUTION AGREEMENT
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
Reference is made to the Equity Distribution Agreement, dated August 10, 2017 (the “
Equity Distribution Agreement
”), between New York Mortgage Trust, Inc., a Maryland corporation (the “
Company
”), and
Credit Suisse Securities (USA) LLC (the “
Placement Agent
”), pursuant to which the Company agreed to sell through the Placement Agent, acting as agent and/or principal, shares of the Company’s common stock, par value $0.01 per share, having a maximum aggregate sales price of up to $100,000,000. All capitalized terms used in this Amendment No. 1 to the Equity Distribution Agreement between the Company and the Placement Agent (this “
Amendment
”) and not otherwise defined herein shall have the respective meanings assigned to them in the Equity Distribution Agreement. The Company and the Placement Agent agree as follows:
A.
Amendments to Equity Distribution Agreement
. The Equity Distribution Agreement is amended as follows:
1.
The first sentence of the first paragraph of Section 1 of the Equity Distribution Agreement is hereby deleted and replaced with the following:
“The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Placement Agent, acting as agent and/or principal, shares of the Company’s common stock, par value $0.01 per share (the “
Common Stock
”), having a maximum aggregate sales price of up to $177,087,818 (the “
Securities
”)
; provided, however, that in no event shall the Company issue or sell through the Placement Agent such number or dollar amount of Securities that would (i) exceed the number or dollar amount of shares of Common Stock registered on an effective registration statement pursuant to which the offering is being made, (ii) exceed the number of authorized but unissued shares of Common Stock under the Company’s charter, (iii) exceed the number or dollar amount of shares of Common Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (iv) exceed the number or dollar amount of shares of Common Stock for which the Company has filed one or more Prospectus Supplements (defined below) (the lesser of (i), (ii), (iii), and (iv), the “
Maximum Amount
”).”
2.
The first sentence of the second paragraph of Section 1 of the Equity Distribution Agreement shall be amended to replace “(File No. 333-213316)” with “(File No. 333-226726)”.
3.
The second sentence of the second paragraph of Section 1 of the Equity Distribution Agreement shall be amended to replace “August 25, 2016” with “August 9, 2018”.
4.
The first sentence of Section 5(a)(35) of the Equity Distribution Agreement shall be amended to replace “December 31, 2016” with “December 31, 2017” and to replace “December 31, 2017” with “December 31, 2018”.
5.
Section 5(a)(36) of the Equity Distribution Agreement is hereby deleted and replaced with the following:
“
Investment Management
. The investment management agreement, by and between Headlands Asset Management, LLC (“
Headlands
”) and NYMT Loan Financing, LLC (the “
Headlands Management Agreement
”) provides that Headlands provides investment management services to the Company with respect to residential mortgage loans purchased pursuant to the Headlands Management Agreement and real estate or other assets owned due to the foreclosure or other liquidation of such residential mortgage loans. Each of NYMT Loan Financing, LLC and, to the Company’s knowledge, Headlands is, as of the date hereof, in compliance in all material respects with the terms of the Headlands Management Agreement and no circumstances exist that would entitle Headlands to terminate such agreement other than pursuant to Section 9.1 of the Headlands Management Agreement.”
6.
The first sentence of the Form of Placement Notice attached as Exhibit A to the Equity Distribution Agreement shall be amended to add “, as amended on September 10, 2018” immediately before “(the “
Agreement
”)”.
7.
“Kevin M. Donlon, President, kdonlon@nymtrust.com” shall be deleted from Exhibit B to the Equity Distribution Agreement.
8.
The second sentence of the Form of Officer’s Certificate attached as Exhibit F to the Equity Distribution Agreement shall be amended to add “, as amended on September 10, 2018” immediately before “(the “
Equity Distribution Agreement
”)”.
B.
New Registration Statement Covered by Equity Distribution Agreement
. The parties to this Amendment agree that from and after the initial filing of a Prospectus Supplement to the base prospectus included as part of the registration statement on Form S-3 (File No. 333-226726) filed with the Commission by the Company on August 9, 2018, all references to “Registration Statement” included in the Equity Distribution Agreement shall be deemed to include such registration statement on Form S-3 (File No. 333-226726), including a base prospectus, relating to, among other securities of the Company, the Common Stock, including the Securities to be issued from time to time by the Company, and the documents that the Company has filed or will file in accordance with the provisions of the Exchange Act that are or will be incorporated by reference in such registration statement, and all references to “base prospectus” included in the Equity Distribution Agreement shall be deemed to include the final form of prospectus, including all documents incorporated therein by reference, included in such registration statement at the time of the initial filing of a Prospectus Supplement to the base prospectus included as part of such registration statement. For the avoidance of confusion, all references to “Registration Statement” included in the Equity Distribution Agreement relating to the offer and sale of any Securities or such other relevant action that occurred prior to the filing with the Commission of the registration statement on Form S-3 (File No. 333-226726) shall be deemed to refer to the Company’s registration statement on Form S-3 (File No. 333-213316), including a base prospectus, relating to, among other securities of the Company, the Common Stock, including the Securities, including all documents incorporated by reference therein.
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C.
Prospectus Supplement
. The Company agrees to file a 424(b) Prospectus Supplement reflecting this Amendment within two business days of the date hereof.
D.
No Other Amendments
. Except as set forth in Part A above, all the terms and provisions of the Equity Distribution Agreement shall continue in full force and effect.
E.
Counterparts
. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Amendment by one party to the other may be made by facsimile or email transmission.
[
Signature Page Follows
]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this Amendment, along with all counterparts, will become a binding agreement by and between
the Placement Agent and the Company in accordance with its terms.
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Very truly yours,
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NEW YORK MORTGAGE TRUST, INC.
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By:
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/s/ Steven R. Mumma
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Name: Steven R. Mumma
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Title: Chief Executive Officer
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CONFIRMED AND ACCEPTED, as of the date first above written:
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CREDIT SUISSE SECURITIES (USA) LLC
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By:
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/s/ Craig Wiele
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Name: Craig Wiele
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Title: Managing Director
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Exhibit 5.1
September 10, 2018
New York Mortgage Trust, Inc.
275 Madison Avenue
New York, New York 10016
Re:
Registration Statement on Form S-3ASR (File No. 333-226726)
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 sale and issuance by the Company of up to $100,000,000 in maximum aggregate offering price of shares (the “Shares”) of common stock, par value $0.01 per share (the “Common Stock”), of the Company, covered by the above-referenced Registration Statement, and all amendments related thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”). The Shares may be issued pursuant to the Equity Distribution Agreement, dated August 10, 2017, and as amended by Amendment No. 1 thereto, dated September 10, 2018 (collectively, the “Agreement”), by and between the Company and Credit Suisse Securities (USA) LLC, as placement agent.
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 Bylaws of the Company, as amended (the “Bylaws”), 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 (the “Board of Directors”), or a duly authorized committee thereof, relating to, among other matters, (i) the sale and issuance of the Shares, (ii) the execution, delivery and performance
of the Agreement and (iii) the delegation to designated officers of the Company (the “Authorized Officers”) of the power to determine the number and price of the Shares and certain other matters in connection with the sale and issuance of the Shares, subject to the restrictions set forth in the Resolutions, certified as of the date hereof by an officer of the Company;
5.
The Agreement;
6.
A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
7.
A certificate executed by an officer of the Company, dated as of the date hereof; 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.
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5.
The Shares will not be issued or transferred in violation of any restriction or limitation contained in Article VII of the Charter.
6.
The issuance of, and certain terms of, the Shares to be issued by the Company from time to time will be authorized and approved by the Board of Directors or a duly authorized committee thereof, or by the Authorized Officers, in accordance with and not in violation of, the Maryland General Corporation Law, the Charter, the Bylaws and the Resolutions and reflected, to the extent applicable, in appropriate governing documents (with such approvals referred to hereinafter as the “Corporate Proceedings”) prior to the issuance thereof.
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.
Upon the completion of all Corporate Proceedings relating to the Shares, the issuance of the Shares will be duly authorized and, when and if issued and delivered against payment therefor in accordance with the Agreement and the Corporate Proceedings (and assuming that upon any such issuance the total number of shares of Common Stock issued and outstanding does not exceed the total number of shares of Common Stock then authorized to be issued under the Charter), the Shares will be validly issued, fully paid and nonassessable.
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. 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.
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This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K (the “Current Report”), which is incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Current Report and the said incorporation by reference 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,
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/s/ Venable LLP
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