information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any arbitration, judicial or administrative proceeding, whether or not
the original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
11.19 Limitation of Representations and Warranties.
NEITHER SELLER NOR ANY OF ITS AFFILIATES IS MAKING ANY REPRESENTATIONS OR
WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, CONCERNING SELLER,
THE ACQUIRED ASSETS, THE ASSUMED LIABILITIES OR THE ORIGINATION BUSINESS EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING,
NEITHER SELLER NOR ANY OF ITS AFFILIATES IS MAKING ANY REPRESENTATION OR
WARRANTY TO BUYER WITH RESPECT TO (I) THE INFORMATION SET FORTH IN ANY
EVALUATION MATERIALS PROVIDED TO BUYER OR (II) ANY FINANCIAL PROJECTION OR
FORECAST OR OTHER STATEMENT RELATING TO THE BUSINESS OF SELLER, THE ORIGINATION
BUSINESS, THE ACQUIRED ASSETS OR THE ASSUMED LIABILITIES EXCEPT THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT. WITH RESPECT TO ANY
PROJECTION OR FORECAST DELIVERED ON BEHALF OF SELLER OR ITS AFFILIATES OR
REPRESENTATIVES TO BUYER OR ITS REPRESENTATIVES, BUYER ACKNOWLEDGES THAT (I)
THERE ARE UNCERTAINTIES INHERENT IN ATTEMPTING TO MAKE SUCH PROJECTIONS AND
FORECASTS, (II) EACH IS FAMILIAR WITH SUCH UNCERTAINTIES, AND (III) EACH IS
TAKING FULL RESPONSIBILITY FOR MAKING ITS OWN EVALUATION OF THE ADEQUACY AND
ACCURACY OF ALL SUCH PROJECTIONS AND FORECASTS FURNISHED TO IT. BUYER AGREES
THAT, IN THE ABSENCE OF FRAUD OR INTENTIONAL MISSTATEMENT, NEITHER SELLER NOR
ANY OF ITS AFFILIATES WILL HAVE ANY LIABILITY TO BUYER OR ITS AFFILIATES WITH
RESPECT TO ANY INFORMATION THAT IS NOT INCLUDED IN THIS AGREEMENT OR THE
SCHEDULES HERETO.
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11.20 Limitation on Damages.
IN THE ABSENCE OF FRAUD, NO PARTY HERETO (OR ITS AFFILIATES) SHALL, UNDER ANY
CIRCUMSTANCE, BE LIABLE TO ANY OTHER PARTY (OR ITS AFFILIATES), BY STATUTE, IN
TORT OR CONTRACT OR OTHERWISE, FOR ANY PUNITIVE DAMAGES, LOSS OF REVENUE OR
INCOME, COST OF CAPITAL, OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY, CLAIMED
BY ANY OTHER PARTY UNDER THE TERMS OF OR WITH RESPECT TO ANY BREACH OF THIS
AGREEMENT.
[signature page follows]
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IN WITNESS WHEREOF, this Agreement has been signed on behalf of each of the
parties hereto by their authorized representatives, all as of the day and year
first above written.
SELLER:
The New York Mortgage Company, LLC
By:
/s/ Steven R. Mumma
Name: Steven R. Mumma
Title: Chief Executive Officer
NYMT:
The New York Mortgage Company, Inc.
By:
/s/ David A. Akre
Name: David A. Akre
Title: Co-Chief Executive Officer
BUYER:
Tribeca Lending Corp.
By:
/s/ A. Gordon Jardin
Name:
A. Gordon Jardin
Title: Chief Executive Officer
FCMC:
Franklin Credit Management Corporation
By:
/s/ A. Gordon Jardin
Name:
A. Gordon Jardin