Amendment No. 2 to Equity Distribution Agreement dated August 10, 2021, by and between the Company and JonesTrading Institutional Services LLC

Exhibit 1.2

New York Mortgage Trust, Inc.

AMENDMENT NO. 2
TO
EQUITY DISTRIBUTION AGREEMENT

August 10, 2021

JonesTrading Institutional Services LLC
757 Third Avenue, 23^rd Floor
New York, New York 10017

Ladies and Gentlemen:

Reference is made to the Equity Distribution Agreement, dated March 29, 2019 (the “Original Equity Distribution Agreement”), between New York Mortgage Trust, Inc., a Maryland corporation (the “Company”), and JonesTrading Institutional Services LLC (the “Placement Agent”), as amended by Amendment No. 1 to Original Equity Distribution Agreement, dated as of November 27, 2019 (“Amendment No. 1” and together with the Original Equity Distribution Agreement, the “Equity Distribution Agreement”), pursuant to which the Company agreed to sell through the Placement Agent, acting as agent and/or principal, up to an aggregate of $131,477,592 of shares of the Company’s 7.75% Series B Cumulative Redeemable Preferred Stock, par value $0.01 per share, the Company’s 7.875% Series C Cumulative Redeemable Preferred Stock, par value $0.01 per share, the Company’s 8.00% Series D Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share, and the Company’s 7.875% Series E Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share. All capitalized terms used in this Amendment No. 2 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:

“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, up to an aggregate of $149,094,182 of shares (the “Securities”) of any of the Company’s 7.75% Series B Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series B Preferred Stock”), the Company’s 7.875% Series C Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series C Preferred Stock”), the Company’s 8.00% Series D Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series D Preferred Stock”), the Company’s 7.875% Series E Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series E Preferred Stock”), and the Company’s 6.875% Series F Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series F Preferred Stock”); provided, however, that as of the date hereof, the Company has redeemed all of its outstanding Series C Preferred Stock and has no further authorized shares of Series C Preferred Stock for sale under this Agreement. References to “Preferred Stock” shall refer hereinafter collectively to the Series B Preferred Stock, the Series D Preferred Stock, the Series E Preferred Stock and the Series F Preferred Stock. 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 Preferred 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 Preferred Stock under the Company’s organizational documents, (iii) exceed the number or dollar amount of shares of Preferred 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 Preferred Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (i), (ii), (iii), and (iv), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, except as set forth in a Placement Notice (as defined below), the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number of the Securities issued and sold under this Agreement shall be the sole responsibility of the Company, and the Placement Agent shall have no obligation in connection with such compliance. The issuance and sale of the Securities through the Placement Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to offer, sell or issue the Securities.”

“Each time that the Company wishes to issue and sell the Securities hereunder (each, a “Placement”), it will notify the Placement Agent by email notice (or other method mutually agreed to in writing by the parties) containing the parameters in accordance with which it desires the Securities to be sold, which shall at a minimum include the maximum number of each series of Preferred Stock to be offered, sold and issued (the “Placement Securities”), the time period during which sales are requested to be made, any limitation on the number of Securities that may be sold in any one day, any minimum price below which sales may not be made, and the maximum prices above which sales of shares of Series B Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F Preferred Stock may not be made (a “Placement Notice”), a form of which containing such parameters necessary is attached hereto as Exhibit A.”

“REIT Qualification. The Company is organized and has operated in conformity with the requirements for qualification as a real estate investment trust (a “REIT”) under the Code; the Company qualified as a REIT for the taxable years ended December 31, 2004 through December 31, 2020 and the present and contemplated method of operation of the Company and the Subsidiaries will enable the Company to meet the requirements for qualification and taxation as a REIT under the Code for its tax year ending December 31, 2021 and subsequent taxable years; and the Company intends to continue to qualify as a REIT until the Board of Directors of the Company determines that it is no longer in the best interests of the Company to continue to qualify as a REIT; neither the Company nor any of the Subsidiaries has taken any action that could reasonably be expected to cause the Company to fail to qualify as a REIT under the Code at any time. The description of the Company’s organization and actual and proposed method of operation and its qualification and taxation as a REIT set forth in the Prospectus is accurate and presents fairly the matters referred to therein in all material respects; the Company’s operating policies and investment guidelines described in the Prospectus accurately reflect in all material respects the current intentions of the Company with respect to the operation of its business, and no material deviation from such guidelines or policies is currently contemplated.”

“The Company and the Subsidiaries have implemented commercially reasonable backup, security and disaster recovery technology, and to the Company’s knowledge there have been no material breaches, violations, outages or unauthorized uses of or accesses to the Company IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data), nor any incidents under internal review or investigations relating to the same.”

“Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between New York Mortgage Trust, Inc. (the “Company”) and JonesTrading Institutional Services LLC (the “Placement Agent”) dated March 29, 2019, as amended on November 27, 2019 and August 10, 2021 (the “Agreement”), I hereby request on behalf of the Company that the Placement Agent sell [(a) up to $[●] of shares of the Company’s 7.75% Series B Cumulative Redeemable Preferred Stock, par value $0.01 per share, at a minimum market price of $[●] per share and a maximum market price of $[●] per share, (b) up to $[●] of shares of the Company’s 8.00% Series D Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share, at a minimum market price of $[●] per share and a maximum market price of $[●] per share, (c) up to $[●] of shares of the Company’s 7.875% Series E Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share, at a minimum market price of $[●] per share and a maximum market price of $[●] per share], and (d) up to $[●] of shares of the Company’s 6.875% Series F Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share, at a minimum market price of $[●] per share and a maximum market price of $[●] per share], beginning on [insert start date] and ending on [insert end date] [such date in the future as notified in writing (including by email) by the Company].”

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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.