Unassociated Document


    Exhibit
      10.1(a)

    


    STOCK
      PURCHASE AGREEMENT

     

    THIS
      STOCK PURCHASE AGREEMENT
      (this
“Agreement”) is made and entered into as of November 30, 2007 by and between
NEW
      YORK
      MORTGAGE TRUST, INC.,
      a
      Maryland corporation (the “Company”) and EACH OF THE
      INVESTORS LISTED ON SCHEDULE I
      HERETO
      (each an
“Investor” and collectively, the “Investors”).

     

    RECITALS

     

    WHEREAS,
      the
      Company desires to issue and sell to the Investors, and the Investors desire
      to
      purchase from the Company, in a private transaction that is exempt from
      registration under Section 4(2) of the Securities Act of 1933, as amended
      (the “Securities Act”) and Regulation D thereunder, up to 2,000,000 shares of
      Series A Cumulative Redeemable Convertible Preferred Stock of the Company,
      including up to 1,000,000 shares that may be purchased upon exercise by the
      Investor’s of an additional allotment option, on the terms and conditions set
      forth in this Agreement (the “Private Transaction”); 

     

    WHEREAS,
      the
      parties desire to make certain representations, warranties, covenants and
      agreements in connection with the Private Transaction, and also to prescribe
      various conditions to such transaction all as set forth herein.

     

    AGREEMENT

     

    NOW,
      THEREFORE,
      in
      consideration of the foregoing, and for other good and valuable consideration,
      the receipt and sufficiency of which are hereby acknowledged, the parties hereto
      hereby agree as follows:

     

    ARTICLE
      1

    DEFINITIONS

     

    The
      following defined terms used herein and not otherwise defined shall have the
      meaning set forth below:

     

    2007
      Proxy Statement
      shall
      mean the definitive proxy statement of the Company on Schedule 14A, as filed
      with the Commission on April 27, 2007.

     

    2006
      Form 10-K
      shall
      mean the Company’s Annual Report on Form 10-K for the year ended
      December 31, 2006, as filed with the Commission on April 2,
      2007

     

    Advisory
      Agreement
      shall
      mean that certain advisory agreement by and between the Company and JMP Asset
      Management, LLC, dated as of the date hereof, substantially in the form attached
      hereto as Exhibit B.

     

    Articles
      Supplementary
      shall
      have the meaning set forth in Section 7.1(e). 

     

    CERCLA
      shall
      have the meaning set forth in Section 4.25.

     

    Charter
      shall
      mean the Articles of Amendment and Restatement of the Company, as
      amended.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Closing
      shall
      have the meaning set forth in Article 3
      hereof.


     

    Closing
      Date
      shall
      have the meaning set forth in Article 3
      hereof.

     

    Code
      shall
      mean the Internal Revenue Code of 1986, as amended.

     

    Commission
      shall
      mean the Securities and Exchange Commission.

     

    Common
      Stock
      shall
      mean the common stock of the Company, $0.01 par value per share.

     

    Company
      Indemnitees
      shall
      have the meaning set forth in Section 9.14.

     

    DTC
      shall
      mean The Depository Trust Company.

     

    Environmental
      Laws
      shall
      have the meaning set forth in Section 4.25.

     

    ERISA
      shall
      have the meaning set forth in Section 4.26.

     

    Exchange
      Act
      shall
      mean the Securities Exchange Act of 1934, as amended, and the rules and
      regulations of the Commission, thereunder, or any similar successor
      statute.

     

    Exchange
      Act Documents
      shall
      mean all forms, reports and documents required to be filed by the Company with
      the Commission pursuant to the Exchange Act.

     

    Exchange
      Act Regulations
      shall
      have the meaning set forth in Section 4.17.

     

    FCPA
      shall
      have the meaning set forth in Section 4.31.

     

    FINRA
      shall
      have the meaning set forth in Section 4.19. 

     

    First
      Quarter Form 10-Q
      shall
      mean the Company’s Quarterly Report on Form 10-Q for the period ended
      March 31, 2007, as filed with the Commission on May 15,
      2007.

     

    GAAP
      shall
      mean generally accepted accounting principles.

     

    Incorporated
      Form 8-K
      shall
      mean each of the Company’s Current Reports on Form 8-K filed with the Commission
      on February 14, 2007, March 14, 2007, July 3, 2007, September 6,
      2007 (excluding the information set forth under Items 7.01 and 9.01), September
      12, 2007, October 1, 2007, October 4, 2007, October 9, 2007.

     

    Initial
      Shares
      shall
      have the meaning set forth in Section 2.1.

     

    Intangibles
      shall
      have the meaning set forth in Section 4.21.

     

    Investment
      Company Act
      shall
      have the meaning set forth in Section 4.37.

     

    Investor
      Indemnities
      shall
      have the meaning set forth in Section 9.14.

     

    Investors’
      Representative
      shall
      have the meaning set forth in Section 2.2.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    Material
      Adverse Change or Material Adverse Effect
      shall
      mean any event, circumstance, change or effect that would reasonably be likely,
      individually or in the aggregate, to have a material adverse effect on the
      assets, business, operations, earnings, properties or condition (financial
      or
      otherwise), of the Company and its subsidiaries taken as a whole; provided,
      however, that none of the following shall be deemed to constitute or shall
      be
      taken into account in determining whether there has been a Material Adverse
      Effect: any event, circumstance, change or effect arising out of or attributable
      to (a) changes in the economy or financial markets, including, prevailing
      interest rates and market conditions, generally in the United States or that
      are
      the result of acts of war or terrorism, or (b) changes that are caused by
      factors generally affecting the industry in which the Company and its
      subsidiaries operate.

     

    Money
      Laundering Laws
      shall
      have the meaning set forth in Section 4.32.

     

    Notice
      of Exercise
      shall
      have the meaning set forth in Section 2.2.

     

    OFAC
      shall
      have the meaning set forth in Section 4.33.

     

    Option
      shall
      have the meaning set forth in Section 2.2.

     

    Option
      Closing
      shall
      have the meaning set forth in Section 3.2.

     

    Option
      Shares
      shall
      have the meaning set forth in Section 2.2.

     

    Preferred
      Stock
      shall
      have the meaning set forth in Article 2.

     

    Private
      Transaction
      shall
      have the meaning set forth in the recitals.

     

    Registration
      Rights Agreement
      shall
      mean the agreement between the Company and each of the Investors, dated as
      of
      the date hereof, substantially in the form attached hereto as Exhibit D.

     

    REIT
      shall
      have the meaning set forth in Section 4.39.

     

    Rule
      144
      shall
      have the meaning set forth in Section 5.6.

     

    Sarbanes-Oxley
      Act
      shall
      have the meaning set forth in Section 4.12.

     

    Secondary
      Closing Date
      shall
      have the meaning set forth in Section 3.2.

     

    Secondary
      Closing Time
      shall
      have the meaning set forth in Section 3.2.

     

    Second
      Quarter Form 10-Q
      shall
      mean the Company’s Quarterly Report on Form 10-Q for the period ended
      June 30, 2007, as filed with the Commission on August 10,
      2007.

     

    Securities
      Act
      shall
      have the meaning set forth in the recitals.

     

    Shares
      shall
      have the meaning set forth in Article 2.

     

    Special
      Meeting
      shall
      have the meaning set forth in Section 6.1.

     

    State
      Acts
      shall
      have the meaning set forth in Section 8.2.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    Subsidiary
      shall
      have the meaning set forth in Section 4.1.

     

    Third
      Quarter Form 10-Q
      shall
      mean the Company’s Quarterly Report on Form 10-Q for the period ended
      September 30, 2007, as filed with the Commission on November 14,
      2007.

     

    Transaction
      Documents
      shall
      mean collectively, this Agreement, the Advisory Agreement, the Registration
      Rights Agreement and the Articles Supplementary.

     

    ARTICLE
      2

    AGREEMENT
      TO PURCHASE AND SELL STOCK

     

    2.1. Initial
      Shares. Upon the basis of the warranties and representations and subject to
      the
      other terms and conditions set forth herein, the Company agrees to issue and
      sell to each Investor at the Closing, and each Investor agrees to purchase
      from
      the Company, severally and not jointly, at the Closing, the number of shares
      of
      the Company’s Series A Cumulative Redeemable Convertible preferred stock, $0.01
      par value per share (the “Preferred Stock”), set forth opposite such Investor’s
      name on Schedule I at
      the
      purchase price per share of $20.00 (the
      “Initial Shares”).

     

    2.2. Option
      Shares.
      Upon the
      basis of the warranties and representations and subject to the other terms
      and
      conditions set forth herein, the Company hereby grants to the Investors an
      option (the “Option”) to purchase from the Company up to an aggregate of
1,000,000
      additional shares
      of
      the
      Preferred Stock at a purchase price per share of $20.00 (the “Option Shares”
and, together with the Initial Shares, the “Shares”). The Option will
      expire at 5:00 p.m., New York City time on January 31, 2008. JMP Group, Inc.
      shall serve as the Investors’ representative
      (the
“Investors’ Representative”) with respect to the Option. The Option may be
      exercised upon delivery by the
      Investors’ Representative to the Company of a written
      notice
      of
      exercise (a “Notice of Exercise”) setting forth (i) the number of
      Option
      Shares as to which the
      Investors or their assignees are then exercising the Option, (ii) the names
and
      denominations to which certificates representing the Option Shares are to be
      delivered, and (iii) the time and date
      of
      payment for and delivery of such
      Option Shares. The time and date of delivery shall not
      be
      later than five (5) full business days nor earlier
      than two (2) full business day after
      the
      date of the Notice of Exercise, nor in any event prior
      to
      the Closing Time,
      unless
      otherwise agreed in writing by the Investors’ Representative and
      the
      Company. The Investors shall have the right to assign their rights under the
      Option to one or more of their Affiliates.

     

    ARTICLE
      3

    PAYMENT
      AND DELIVERY; ClOSING

     

    3.1. The
      purchase and sale of the Initial Shares (the “Closing”) shall take place at the
      offices of Hunton & Williams LLP (“Hunton & Williams”), 951 East Byrd
      Street, Richmond, Virginia 23219, at 9:30 a.m., Eastern Time on the earlier
      of
      (i) the date on which the Company consummates an unregistered private offering
      of not less than 16,500,000 shares of Common Stock, or (ii) the third business
      day after December 31, 2007, or at such other place, at such other time, or
      on
      such other date as the parties may mutually agree upon (such date, the “Closing
      Date”). At the Closing, (i) the Company shall deliver to (x) each of the
      Investors a certificate representing the number of Shares set forth opposite
      the
      Investors name on Schedule I hereto, and (ii) each of the Investors shall
      deliver to the Company the purchase price set forth opposite the Investor’s name
      on Schedule I hereto.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    3.2. The
      purchase and sale of any Option Shares (the “Option Closing”) shall take place
      at the offices of Hunton & Williams LLP, 951 East Byrd Street, Richmond,
      Virginia 23219. At
      the
      Secondary Closing Time (as defined herein),
      subject
to
      the
      satisfaction or waiver of the closing conditions set
      forth
      herein, the Investors or their assignees shall pay to the Company the aggregate
      applicable purchase price for the Option Shares then purchased by the Investors
      or their assignees by wire transfer of immediately available funds against
      the
      Company’s delivery of the Option Shares. Such payment and delivery shall be made
      at 9:30 a.m., New York City time, on the date scheduled for the Option Closing
      (the “Secondary Closing Date”). The
      Option
      Shares shall be delivered in such
      names
      and
      in such denominations as the Investors’ Representative shall specify in the
      Notice of Exercise.
      The
      time
      at which payment by the Investors or their assignees for, and delivery by the
      Company of, any Option Shares are actually made is referred to herein as a
      “Secondary Closing Time”.

     

    ARTICLE
      4

    REPRESENTATIONS
      AND WARRANTIES OF THE COMPANY

     

    Subject
      to the exceptions and qualifications set forth herein, the Company hereby
      represents and warrants to the Investors as follows:

     

    4.1. The
      Company has an authorized capitalization as set forth in the Exchange Act
      Documents; the outstanding shares of capital stock of the Company and of each
      subsidiary of the Company, each of which is identified in
Exhibit A hereto
      (each, a “Subsidiary”) have been duly and validly authorized and issued and are
      fully paid and non-assessable and were issued in compliance with all applicable
      state and federal laws concerning the issuance of securities; except as
      otherwise disclosed in the Exchange Act Documents and except for options issued
      pursuant to the Company’s 2005 Stock Incentive Plan and 2004 Stock Incentive
      Plan, there are no outstanding (i) securities or obligations of the Company
      or any of the Subsidiaries convertible into or exchangeable for any capital
      stock of the Company or any such Subsidiary, (ii) warrants, rights or
      options to subscribe for or purchase from the Company or any such Subsidiary
      any
      such capital stock or any such convertible or exchangeable securities or
      obligations, or (iii) obligations of the Company or any such Subsidiary to
      issue any shares of capital stock, any such convertible or exchangeable
      securities or obligation, or any such warrants, rights or options. The Preferred
      Stock has been duly and validly authorized and when issued in accordance with
      the terms of this Agreement and upon payment therefor in the manner contemplated
      by this Agreement, will be fully paid and non-assessable and issued in
      compliance with all applicable state and federal laws concerning the issuance
      of
      securities. The
      Company shall, prior to issuance of any Preferred Stock hereunder, and from
      time
      to time as may be necessary, reserve and keep available, free from preemptive
      rights, out of its authorized but unissued Common Stock, for the purpose of
      effecting the conversion of the Preferred Stock, such number of its duly
      authorized Common Stock as shall from time to time be sufficient to effect
      the
      conversion of all Preferred Stock then outstanding into such Common Stock at
      any
      time (assuming that, at the time of the computation of such number of Common
      Stock, all such Preferred Stock would be held by a single holder).
      The
      Common Stock issuable upon conversion of the Preferred Stock, when issued in
      accordance with the terms of the Articles Supplementary, will be duly and
      validly issued, fully paid and non-assessable and free of restrictions on
      transfer, other than restrictions under applicable federal and state securities
      laws and the Charter. Based in part on the representations of the Investors
      in
      Article 5
      of this
      Agreement, the Common Stock issuable upon conversion of the Preferred Stock
      pursuant to the Articles Supplementary will be issued in compliance with the
      Securities Act and all applicable federal and state securities
      laws.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    4.2. Each
      of
      the Company and the Subsidiaries has been duly incorporated or formed and is
      validly existing as a corporation or limited liability company, as applicable,
      in good standing under the laws of its respective jurisdiction of incorporation
      or formation with full corporate power and authority to own its respective
      properties and to conduct its respective businesses as described in the Exchange
      Act Documents; the Company has full corporate power and authority to execute
      and
      deliver this Agreement and, upon receipt of Stockholder Approval, full corporate
      power and authority to consummate the transactions contemplated
      herein.

     

    4.3. Each
      of
      the Company and the Subsidiaries is duly qualified and is in good standing
      as a
      foreign corporation or limited liability company, as the case may be, in each
      jurisdiction in which it is required to be so qualified, except where the
      failure to be so qualified would not reasonably be likely, individually or
      in
      the aggregate, to have a Material Adverse Effect.

     

    4.4. The
      Company and its Subsidiaries are in compliance in all material respects with
      all
      laws, rules, regulations, orders, decrees and judgments applicable to it,
      including those relating to transactions with affiliates, and have not received
      any notice of any material actual or proposed changes in existing federal,
      state, local or foreign laws, rules or regulations or any orders, decrees or
      judgments applicable to it.

     

    4.5. Neither
      the Company nor any of its Subsidiaries is in breach of or in default under
      (nor
      has any event occurred which with notice, lapse of time, or both, would
      constitute a breach of, or default under), its respective organizational
      documents, or in the performance or observance of any material obligation,
      agreement, covenant or condition contained in any license, indenture, mortgage,
      deed of trust, loan or credit agreement or other agreement or instrument to
      which the Company or the Subsidiaries are a party or by which any of them or
      their respective properties or assets may be bound or affected, except (i)
      as
      set forth in the Exchange Act Documents or (ii) where such breach or default
      would not reasonably be likely, individually or in the aggregate, to have a
      Material Adverse Effect.

     

    4.6. The
      execution, delivery and performance of this Agreement and the consummation
      by
      the Company of the transactions contemplated herein, do not and will not (A)
      conflict with, or result in any breach of, or constitute a default under (nor
      constitute any event which with notice, lapse of time, or both, would constitute
      a breach of, or default under), (i) any provision of the organizational
      documents of the Company or its Subsidiaries, or (ii) any provision of any
      license, indenture, mortgage, deed of trust, loan or credit agreement or other
      agreement or instrument to which the Company or its Subsidiaries is a party
      or
      by which any of them or their respective properties or assets may be bound
      or
      affected, or under any federal, state, local or foreign law, regulation or
      rule
      or any decree, judgment or order applicable to the Company or its Subsidiaries;
      or (B) result in the creation or imposition of any lien, charge, claim or
      encumbrance upon any property or asset of the Company or its
      Subsidiaries.

     

    4.7. This
      Agreement has been duly authorized, executed and delivered by the Company and
      constitutes the legal, valid and binding agreement of the Company enforceable
      in
      accordance with its terms, except as may be limited by bankruptcy, insolvency,
      reorganization, moratorium or similar laws affecting creditors’ rights
      generally, and by general equitable principles, and except to the extent that
      the indemnification provisions of Section 9.14
      hereof
      may be limited by federal or state securities laws and public policy
      considerations in respect thereof.

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    4.8. No
      approval, authorization, consent or order of or registration or filing with
      any
      federal, state or local court, governmental or regulatory commission, board,
      body, authority or agency is required in connection with the Company’s
      execution, delivery and performance of this Agreement or the consummation of
      the
      transactions contemplated herein, or the sale and delivery of the Shares, other
      than (A) such as have been obtained, or will have been obtained under the
      Exchange Act, (B) any necessary qualification under the securities or blue
      sky
      laws of any jurisdictions in which the Shares are being offered, (C) the rights
      provided in the Registration Rights Agreement or (D) such approvals,
      authorizations, consents, orders, registrations or filings, the absence of
      which
      would not reasonably be expected to have a Material Adverse Effect.

     

    4.9. The
      Company and its Subsidiaries have obtained all licenses, authorizations,
      consents, accreditations, certifications and approvals and has made all material
      filings required under any federal, state or local law, regulation or rule,
      which authorizations, consents, accreditations, certifications, approvals and
      filings are required in order to conduct its business as currently conducted,
      except where the failure to have any such licenses, authorizations, consents,
      accreditations, certifications or approvals, to make any such filings or to
      obtain any such authorizations, consents, accreditations, certifications or
      approvals would not reasonably be expected, individually or in the aggregate,
      to
      have a Material Adverse Effect; neither the Company nor its Subsidiaries are
      in
      violation of, in default under, or has received any notice regarding a possible
      violation, default or revocation of, or proceeding relating to, any such
      license, authorization, consent, accreditation, certification or approval
      applicable to the Company or its Subsidiaries, the effect of which could
      reasonably be expected to result in a Material Adverse Change.

     

    4.10. Except
      as
      set forth in the Exchange Act Documents or previously provided in writing by
      the
      Company to the Investors, there are no actions, suits, proceedings, inquiries
      or
      investigations pending or, to the knowledge of the Company, threatened against
      or affecting the Company or the Subsidiaries or any of their respective officers
      and directors or to which the properties, assets or rights of any such entity
      are subject, at law or in equity, before or by any federal, state, local or
      foreign governmental or regulatory commission, board, body, authority, arbitral
      panel or agency, that (i) could reasonably be expected to have a Material
      Adverse Effect on the performance of this Agreement or the transactions
      contemplated hereby, or (ii) could reasonably be expected to have a Material
      Adverse Effect.

     

    4.11. As
      of
      their respective dates, the Exchange Act Documents complied in all material
      respects with the requirements of the Exchange Act and the rules and regulations
      of the Commission promulgated thereunder applicable to the Exchange Act
      Documents and none of the Exchange Act Documents, at the time they were filed
      or
      are to be filed with the Commission, contained or will contain an untrue
      statement of a material fact or omitted or will omit to state a material fact
      required to be stated therein or necessary in order to make the statements
      therein, in the light of the circumstances under which they were made, not
      misleading.

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    4.12. The
      financial statements, including the notes thereto, included in the Exchange
      Act
      Documents present fairly and accurately in all material respects the
      consolidated financial position of the Company as of the dates indicated and
      the
      consolidated results of operations and changes in financial position and cash
      flows of the Company for the periods specified; such financial statements have
      been prepared in conformity with generally accepted accounting principles as
      applied in the United States and on a consistent basis throughout the periods
      involved and in accordance with Regulation S-X promulgated by the Commission;
      the financial statement schedules included in the Exchange Act Documents and
      the
      amounts under Item 6 of the 2006 Form 10-K present the information purported
      to
      be shown therein fairly and accurately in all material respects and have been
      compiled on a basis consistent with the financial statements included in the
      Exchange Act Documents; the amounts in each of the 2006 Form 10-K and First
      Quarter Form 10-Q under the caption “Management’s Discussion and Analysis of
      Financial Condition and Results of Operations” are accurately computed, fairly
      present the information purported to be shown therein and have been determined
      on a basis consistent with the financial statements included in the Exchange
      Act
      Documents.

     

    4.13. The
      Common Stock is registered pursuant to Section 12(b) or Section 12(g)
      of the Exchange Act and the Company has taken no action designed to, or likely
      to have the effect of, terminating the registration of the Common Stock under
      the Exchange Act nor, except as disclosed in the Exchange Act Documents, has
      the
      Company received any notification that the Commission is contemplating
      terminating such registration.

     

    4.14. Deloitte
      & Touche LLP, whose reports on the consolidated financial statements of the
      Company are filed with the Commission as part of the 2006 Form 10-K are, and
      were during the periods covered by their reports, an independent registered
      public accounting firm with respect to the Company as required by the
      Sarbanes-Oxley Act of 2002, as amended and the rules and regulations of the
      Commission thereunder (together, the “Sarbanes-Oxley Act”).

     

    4.15. Subsequent
      to the respective dates as of which information is given in the Exchange Act
      Documents, there has not been (A) any Material Adverse Change or any event
      or
      development including, but not limited to any loss or damage (whether or not
      insured) to the property of the Company or its Subsidiaries that could
      reasonably be expected to have a Material Adverse Effect, whether or not arising
      in the ordinary course of business, (B) any transaction that is material to
      the
      Company and the Subsidiaries taken as a whole, entered into by the Company,
      or
      the Subsidiaries, (C) any liability or obligation, contingent or otherwise,
      directly or indirectly incurred by the Company or its Subsidiaries that is
      material to the Company and its Subsidiaries taken as a whole, or (D) any
      dividend or distribution of any kind declared, paid or made by the Company
      on
      any class of its capital stock or any repurchase or redemption by the Company
      of
      any class of capital stock.

     

    4.16. There
      are
      no persons with registration or other similar rights to have any equity or
      debt
      securities, including securities which are convertible into or exchangeable
      for
      equity securities, registered by the Company under the Securities
      Act.

     

    4.17. The
      Shares have been duly authorized and, when issued and duly delivered against
      payment therefor as contemplated by this Agreement, will be validly issued,
      fully paid and non-assessable, free and clear of any security interest,
      mortgage, pledge, lien, claim, restriction or encumbrance, and the issuance
      and
      sale of the Shares by the Company is not subject to preemptive or other similar
      rights arising by operation of law, under the organizational documents of the
      Company or under any agreement to which the Company or the Subsidiaries is
      a
      party or otherwise.

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    4.18. The
      Company has not taken, and will not take, directly or indirectly, any action
      which is designed to or which has constituted or which might reasonably be
      expected to cause or result in stabilization or manipulation of the price of
      any
      security of the Company to facilitate the sale or resale of the
      Shares.

     

    4.19. Neither
      the Company nor any of its affiliates (i) is required to register as a “broker”
or “dealer” in accordance with the provisions of the Exchange Act, or the rules
      and regulations thereunder (the “Exchange Act Regulations”), or (ii) directly,
      or indirectly through one or more intermediaries, controls or has any other
      association with (within the meaning of Article I of the By-laws of the
      Financial Industry Regulatory Authority, or FINRA) any member firm of
      FINRA.

     

    4.20. The
      form
      of certificate used to evidence the Preferred Stock complies in all material
      respects with all applicable statutory requirements and any applicable
      requirements of the organizational documents of the Company.

     

    4.21. Each
      of
      the Company and the Subsidiaries have good title to all personal property owned
      by them, in each case free and clear of all liens, security interests, pledges,
      charges, encumbrances, mortgages and defects, except where the failure to have
      good title would not reasonably be likely, individually or in the aggregate,
      to
      have a Material Adverse Effect.

     

    4.22. All
      agreements between the Company or any of its Subsidiaries and third parties
      expressly referenced in the Exchange Act Documents are legal, valid and binding
      obligations of the Company or the Subsidiaries, as the case may be, enforceable
      in accordance with their respective terms, except to the extent enforceability
      may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
      laws affecting creditors’ rights generally and by general equitable principles;
      to the knowledge of the Company, no other party to any such agreement is in
      material breach or default thereof or thereunder.

     

    4.23. Each
      of
      the Company and its Subsidiaries owns or possesses adequate licenses or other
      rights to use all material patents, trademarks, service marks, trade names,
      copyrights, software and design licenses, trade secrets, other intangible
      property rights and know-how (collectively “Intangibles”) necessary to entitle
      it to conduct its business as described in the Exchange Act Documents, except
      where the failure to own or possess adequate licenses or other rights would
      not
      reasonably be expected to have a Material Adverse Effect, and neither the
      Company nor the Subsidiaries have received notice of infringement of or conflict
      with asserted rights of others with respect to any such
      Intangibles;

     

    4.24. The
      Company has implemented controls and other procedures that are designed to
      ensure that information required to be disclosed by the Company in the reports
      that it files or submits under the Exchange Act is recorded, processed,
      summarized and reported, within the time periods specified in the Commission’s
      rules and forms and is accumulated and communicated to the Company’s management,
      including its co-chief executive officers and chief financial officer, or
      persons performing similar functions, as appropriate to allow timely decisions
      regarding required disclosure; the Company makes and keeps books, records and
      accounts, which, in reasonable detail, accurately and fairly reflect the
      transactions and dispositions of the assets of the Company and its Subsidiaries;
      and the Company maintains a system of internal control over financial reporting
      sufficient to provide reasonable assurance that (i) transactions involving
      the
      Company or any of its Subsidiaries are executed in accordance with management’s
      general or specific authorizations; (ii) transactions involving the Company
      or
      any of its Subsidiaries are recorded as necessary to permit preparation of
      financial statements in conformity with generally accepted accounting principles
      as applied in the United States and to maintain asset accountability; (iii)
      access to assets is permitted only in accordance with management’s general or
      specific authorization; and (iv) the recorded accountability for assets is
      compared with the existing assets at reasonable intervals and appropriate action
      is taken with respect to any differences.

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    4.25. Each
      of
      the Company and the Subsidiaries has filed on a timely basis all material
      federal, state, local and foreign income and franchise tax returns required
      to
      be filed by it through the date hereof and has paid all material taxes shown
      as
      due thereon and any related material assessments, fines or penalties; no
      material tax deficiency has been asserted against any such entity nor does
      any
      such entity know of any such material tax deficiency which is likely to be
      asserted against any such entity; all material tax liabilities are provided
      for
      in the financial statements contained in the Exchange Act
      Documents.

     

    4.26. Each
      of
      the Company and the Subsidiaries maintains insurance (issued by insurers of
      recognized financial responsibility) of the types and in the amounts generally
      deemed adequate for their respective businesses and consistent with insurance
      coverage maintained by similar companies in similar businesses, including,
      but
      not limited to, insurance covering real and personal property owned or leased
      by
      the Company or the Subsidiaries against theft, damage, destruction, acts of
      vandalism and all other risks customarily insured against, all of which
      insurance is in full force and effect.

     

    4.27. Neither
      the Company nor any of its Subsidiaries is in violation in any material respect,
      or has received notice of any material violation with respect to, any applicable
      environmental, safety or similar law applicable to the business of the Company
      or any of its Subsidiaries; neither the Company nor any of its Subsidiaries
      has
      received any notice of, or has any knowledge of any occurrence or circumstance
      which, with notice or passage of time, or both, would give rise to a material
      claim against the Company or any of its Subsidiaries under or pursuant to any
      Environmental Law with respect to any properties currently or previously owned,
      leased or operated by the Company or any of its Subsidiaries or the assets
      of
      the Company or any of its Subsidiaries or arising out of the conduct of the
      business of the Company or any of its Subsidiaries; the Company and its
      Subsidiaries have received all material permits, licenses or other approvals
      required of them under applicable federal and state occupational safety and
      health and environmental laws and regulations to conduct their respective
      businesses, and each of the Company and its Subsidiaries is in compliance in
      all
      material respects with all terms and conditions of any such permit, license
      or
      approval applicable to it; for purposes of this Agreement, the term
“Environmental Law” shall mean any federal, state or local environmental law,
      statute, ordinance, rule or regulation, including, without limitation, the
      Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
      as amended, 42 U.S.C. Sections 9601-9675 (“CERCLA”), the Hazardous
      Materials Transportation Act, as amended, 49 U.S.C. Sections 5101-5127, the
      Resource Conservation and Recovery Act, as amended, 42 U.S.C.
      Sections 6901-6992k, the Emergency Planning and Community Right-to-Know Act
      of 1986, 42 U.S.C. Sections 11001-11050, the Toxic Substances Control Act,
      15 U.S.C. Sections 2601-2692, the Federal Insecticide, Fungicide and
      Rodenticide Act, 7 U.S.C. Sections 136-136y, the Clean Air Act, 42 U.S.C.
      Sections 7401-7642, the Clean Water Act (Federal Water Pollution Control
      Act), 33 U.S.C. Sections 1251-1387, the Safe Drinking Water Act, 42 U.S.C.
      Sections 300f-300j-26, and the Occupational Safety and Health Act, 29
      U.S.C. Sections 651-678, and any analogous state laws, as any of the above
      may be amended from time to time and the regulations promulgated pursuant to
      each of the foregoing.

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    4.28. The
      Company, the Subsidiaries and each “employee benefit plan” as defined under the
      Employee Retirement Income Security Act of 1974, as amended, including the
      regulations and published interpretations thereunder (“ERISA”) established or
      maintained by the Company, the Subsidiaries or their ERISA Affiliates (as
      defined below) are in compliance in all material respects with all presently
      applicable provisions of ERISA; no “reportable event” (as defined in ERISA) has
      occurred or is reasonably expected to occur with respect to any such employee
      benefit plan; neither the Company nor its Subsidiaries has incurred or expects
      to incur liability under (i) Title IV of ERISA with respect to termination
      of,
      or withdrawal from, any “employee benefit plan” or (ii) Section 412, 4971,
      4975 or 4980(B) of the Internal Revenue Code of 1986, as amended, including
      the
      regulations and published interpretations thereunder (“Code”); each “employee
      benefit plan” established or maintained by the Company, its Subsidiaries or any
      of their ERISA Affiliates that is intended to be qualified under
      Section 401(a) of the Code is so qualified and nothing has occurred,
      whether by action or by failure to act, which would reasonably be expected
      to
      cause the loss of such qualification; and no “employee benefit plan” established
      or maintained by the Company, its Subsidiaries or any of their ERISA Affiliates,
      if such “employee benefit plan” were terminated, would have any material “amount
      of unfunded benefit liabilities” (as defined under ERISA); for purposes of this
      Agreement, the term “ERISA Affiliate” means, with respect to the Company and any
      of its Subsidiaries, any member of any group of organizations described in
      Sections 414(b), (c), (m) or (o) of the Code of which the Company or any of
      its Subsidiaries is a member.

     

    4.29. Neither
      the Company nor any of the Subsidiaries nor, to the knowledge of the Company
      any
      officer, director, manager or director purporting to act on behalf of the
      Company or any of the Subsidiaries has at any time (i) made any
      contributions to any candidate for political office, or failed to disclose
      fully
      any such contributions, in violation of law, (ii) made any payment to any
      U.S. federal, state, local or foreign governmental officer or official, or
      other
      person charged with similar public or quasi-public duties, other than payments
      required or allowed by applicable law and the Company’s Code of Business Conduct
      and Ethics, or (iii) engaged in any transactions, maintained any bank
      account or used any corporate funds except for transactions, bank accounts
      and
      funds which have been and are reflected in the normally maintained books and
      records of the Company and the Subsidiaries.

     

    4.30. There
      is
      no transaction, arrangement or other relationship between the Company and an
      unconsolidated or other off-balance sheet entity that is required to be
      disclosed by the Company pursuant to the Exchange Act that is not so disclosed
      or that otherwise would be reasonably expected to have a Material Adverse
      Effect.

     

    4.31. Except
      as
      disclosed in the Exchange Act Documents, there are no outstanding loans or
      advances or guarantees of indebtedness by the Company or any of the Subsidiaries
      to or for the benefit of any of the officers, directors or managers of the
      Company or any of the Subsidiaries or any of the members of the families of
      any
      of them.

     

    4.32. There
      is
      and has been no failure on the part of the Company or any of the Company’s
      directors or officers, in their capacities as such, to comply with any provision
      of the Sarbanes-Oxley Act, including Section 402 related to loans and
      Sections 302 and 906 related to certifications.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    4.33. All
      securities issued by the Company or any of the Subsidiaries have been issued
      and
      sold in compliance with all applicable federal and state securities
      laws.

     

    4.34. Neither
      the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
      any director, officer, agent, employee or affiliate of the Company or any of
      its
      Subsidiaries is aware of or has taken any action, directly or indirectly, that
      would result in a violation by such Persons of the FCPA, including, without
      limitation, making use of the mails or any means or instrumentality of
      interstate commerce corruptly in furtherance of an offer, payment, promise
      to
      pay or authorization of the payment of any money, or other property, gift,
      promise to give, or authorization of the giving of anything of value to any
      “foreign official” (as such term is defined in the FCPA) or any foreign
      political party or official thereof or any candidate for foreign political
      office, in contravention of the FCPA and the Company, its Subsidiaries, and
      to
      the knowledge of the Company, its affiliates have conducted their businesses
      in
      compliance with the FCPA and have instituted and maintain policies and
      procedures designed to ensure, and which are reasonably expected to continue
      to
      ensure, continued compliance therewith. “FCPA” means Foreign Corrupt Practices
      Act of 1977, as amended, and the rules and regulations thereunder.

     

    4.35. The
      operations of the Company and its Subsidiaries are and have been conducted
      at
      all times in compliance with applicable financial recordkeeping and reporting
      requirements of the Currency and Foreign Transactions Reporting Act of 1970,
      as
      amended, the money laundering statutes of all jurisdictions, the rules and
      regulations thereunder and any related or similar rules, regulations or
      guidelines, issued, administered or enforced by any governmental agency
      (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by
      or before any court or governmental agency, authority or body or any arbitrator
      involving the Company or any of its Subsidiaries with respect to the Money
      Laundering Laws is pending or, to the knowledge of the Company,
      threatened.

     

    4.36. Neither
      the Company nor any of its Subsidiaries nor, to the knowledge of the Company,
      any director, officer, agent, employee or affiliate of the Company or any of
      its
      Subsidiaries is currently subject to any U.S. sanctions administered by the
      Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and
      the Company will not directly or indirectly use the proceeds of the offering,
      or
      lend, contribute or otherwise make available such proceeds to any subsidiary,
      joint venture partner or other person or entity, for the purpose of financing
      the activities of any person currently subject to any U.S. sanctions
      administered by OFAC.

     

    4.37. Neither
      the Company nor any of its Subsidiaries has incurred any liability for any
      finder’s fees or similar payments in connection with the transactions herein
      contemplated.

     

    4.38. No
      relationship, direct or indirect, exists between or among the Company or any
      of
      its Subsidiaries on the one hand, and the directors, officers, stockholders,
      customers or suppliers of the Company or any of its Subsidiaries on the other
      hand, which is required by the Exchange Act Regulations to be described in
      the
      2006 Form 10-K and which is not so described.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    4.39. Each
      director of the Company which is designated as an “Independent Director” in the
      Exchange Act Documents satisfies the requirements for independence under the
      Sarbanes-Oxley Act and the rules of the New York Stock Exchange.

     

    4.40. Neither
      the Company nor any of its Subsidiaries is, or after giving effect to the
      offering and sale of the Shares and the receipt of proceeds therefrom will
      be,
      an “investment company” or an entity “controlled” by an “investment company”, as
      such terms are defined in the Investment Company Act of 1940, as amended (the
      “Investment Company Act”); the Company will continue to conduct its business in
      a manner such that it will not be subject to registration as an “investment
      company” under the Investment Company Act.

     

    4.41. Except
      as
      disclosed in the Exchange Act Documents, there are no existing or, to the
      knowledge of the Company, threatened labor disputes with the employees of the
      Company or any of its Subsidiaries.

     

    4.42. To
      the
      Company’s knowledge, as of the date of this Agreement, there are no other known
      material expenses, liabilities or obligations (absolute, accrued, contingent
      or
      otherwise) to be incurred by the Company during the three month period ending
      December 31, 2007, except as incurred in the ordinary course of business
      consistent with past practice or as set
      forth
      on Schedule II hereto. 

     

    4.43. The
      Company elected to be taxed as a real estate investment trust (a “REIT”) under
      the Code commencing with its taxable year ended December 31, 2004;
      commencing with the Company’s taxable year ended December 31, 2004, the
      Company has been organized and operated in conformity with the requirements
      for
      qualification and taxation as a REIT under the Code, and its current and
      proposed ownership and operations will allow the Company to continue to satisfy
      the requirements for qualification and taxation as a REIT under the Code for
      its
      taxable year ending December 31, 2007 and in the future.

     

    ARTICLE
      5

    REPRESENTATIONS
      AND WARRANTIES OF INVESTOR

     

    Each
      of
      the Investors hereby represents and warrants as of the date hereof and as of
      the
      Closing to the Company that:

     

    5.1. The
      Investor has full power and authority to enter into this Agreement and such
      agreement constitutes a valid and legally binding obligation, enforceable in
      accordance with its respective terms except (i) as may be limited by applicable
      bankruptcy, insolvency, reorganization, moratorium, and other laws of general
      application affecting enforcement of creditors’ rights generally, and (ii) as
      may be limited by laws relating to the availability of specific performance,
      injunctive relief, or other equitable remedies.

     

    5.2. This
      Agreement is made with such Investor in reliance upon such Investor’s
      representation to the Company, which by such Investor’s execution of this
      Agreement such Investor hereby confirms, that the Shares to be received by
      such
      Investor will be acquired for investment for such Investor’s own account, not as
      a nominee or agent, and not with a view to the resale or distribution of any
      part thereof, and that such Investor has no present intention of selling,
      granting any participation in, or otherwise distributing the same. By executing
      this Agreement, such Investor further represents that such Investor does not
      have any contract, undertaking, agreement or arrangement with any person to
      sell, transfer or grant participation to such person or to any third person,
      with respect to any of the Shares.

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

    5.3. The
      Investor has received all the information it considers necessary or appropriate
      for deciding whether to purchase the Shares. Such Investor further represents
      that it has had an opportunity to ask questions of and receive answers from
      the
      Company regarding the terms and conditions of the offering of Shares and the
      business, properties, prospects and financial condition of the
      Company.

     

    5.4. The
      Investor understands that the purchase of the Shares involves substantial risk.
      The Investor: (i) has experience as an investor in securities and acknowledges
      that the Investor is able to fend for itself, can bear the economic risk of
      the
      Investor’s investment in the Shares and has such knowledge and experience in
      financial or business matters that the Investor is capable of evaluating the
      merits and risks of this investment in the Shares and protecting its own
      interests in connection with this investment and/or (ii) has a preexisting
      personal or business relationship with the Company and certain of its officers,
      directors or controlling persons of a nature and duration that enables the
      Investor to be aware of the character, business acumen and financial
      circumstances of such persons.

     

    5.5. The
      Investor is an “accredited investor” as defined in Rule 501(a) of Regulation D
      under the Securities Act. The Investor has received a copy of the Articles
      Supplementary and this Agreement and has read and understands the respective
      contents thereof. The Investor has had the opportunity to ask questions of
      the
      Company and has received answers to such questions from the Company. The
      Investor has carefully reviewed and evaluated these documents and understands
      the risks and other considerations relating to the investment.

     

    5.6. The
      Investor understands that the Shares are characterized as “restricted
      securities” under the Securities Act inasmuch as they are being acquired from
      the Company in a transaction not involving a public offering and that under
      the
      Securities Act and applicable rules and regulations thereunder such securities
      may be resold without registration under the Securities Act only in certain
      limited circumstances, unless and until the Shares are registered in accordance
      with the provisions of the Registration Rights Agreement. The Investor
      represents that it is familiar with Rule 144 promulgated under the Securities
      Act (“Rule 144”), as presently in effect, and understands the resale limitations
      imposed thereby and by the Securities Act. 

     

    5.7. The
      Investor has not incurred any liability for any finder’s fees or similar
      payments in connection with the transactions herein contemplated.

     

    5.8. The
      Investor is not purchasing the Shares as a result of any advertisement, article,
      notice or other communication regarding the Shares published in any newspaper,
      magazine or similar media or broadcast over television or radio or presented
      at
      any seminar or any other general solicitation or general advertisement.


     

    5.9. The
      Investor relied only on its own due diligence investigation of the Company
      in
      making its investment decision with respect to the Private Transaction. The
      foregoing, however, does not limit or modify the representations and warranties
      of the Company in Article 4
      of this
      Agreement or the right of the Investors to rely on such representations and
      warranties.

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    5.10. The
      Investor acknowledges that it is not relying upon any person, firm or
      corporation, other than the Company and its officers and directors, in making
      its investment or decision to invest in the Company. Such Investor agrees that
      no other Investor nor the respective controlling persons, officers, directors,
      partners, agents, or employees of any Investor shall be liable to any other
      Investor for any action heretofore or hereafter taken or omitted to be taken
      by
      any of them in connection with the issuance and purchase of the
      Shares.

     

    ARTICLE
      6

    OTHER
      AGREEMENTS OF
      THE PARTIES

     

    6.1. Board
      of Director Resignations; Appointments. 

     

    The
      Company agrees that its Board of Directors and any appropriate committees
      thereof shall take all necessary action to (i) accept the resignations of Mary
      Dwyer Pembroke, Thomas W. White, and Jerome F. Sherman from the Board of
      Directors, (ii) accept the resignation of Steven B. Schnall as non-executive
      Chairman of the Board of Directors; provided, however, that Mr. Schnall shall
      remain a director of the Company after Closing, and (iii) appoint James J.
      Fowler and Steven Abreu as new members of the Company’s Board of Directors, with
      Mr. Fowler being appointed as the non-executive Chairman of the Board of
      Directors; provided, that Mr. Fowler shall resign as the non-executive Chairman
      of the Board of Directors (but shall not be required to resign as a director
      of
      the Company) in the event the Investors exercise the special redemption option
      set forth in Section 6(b) of the Articles Supplementary. The Company further
      agrees and acknowledges that the Investors shall have the right to appoint
      one
      additional “independent” director, as such term is defined in the Listed Company
      Manual of the Nasdaq Stock Market, to stand for election at the Company’s next
      annual meeting of stockholders and, that in connection therewith, one of the
      Company’s current independent directors who shall remain a director after the
      Closing will agree to not accept nomination for election as a director at the
      Company’s next annual meeting of stockholders.

     

    6.2. Restrictions
      on Company Indebtedness.

     

    For
      so
      long as more than fifty percent (50%) or the shares of the Preferred Stock
      issued at the Closing remain outstanding, the Company covenants and agrees
      that
      the Company and any of its Subsidiaries shall not incur any future indebtedness,
      other than indebtedness incurred pursuant to the issuance of senior notes in
      connection with Section 6(b) of the Articles Supplementary, unless the Board
      of
      Directors of the Company unanimously approves the incurrence of such
      indebtedness; provided, however, that future indebtedness incurred by the
      Company or its Subsidiaries in the ordinary course of its business in connection
      with the financing of its investment portfolio shall not require the approval
      of
      the Company’s Board of Directors.

     

    6.3. Fiscal
      Year 2008 Director Compensation.

     

    The
      Company agrees that its Board of Directors and any appropriate committees
      thereof shall take all necessary action to approve and adopt the compensation
      policy set forth on Schedule
      III
      hereto
      as the compensation to be paid to directors of the Company for their service
      on
      the Board of Directors and any committees thereof during the 2008 fiscal year.
      The Company further agrees that such compensation shall not be modified until
      January 1, 2009 without the unanimous consent of the Board of Directors.


     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

     

    6.4. Non-Ordinary
      Course Expense Statement.

     

    The
      Company shall prepare, and its Board of Directors shall approve, an operating
      plan including staffing, compensation and corporate overhead reasonably
      satisfactory to the Investors. Such operating plan shall include reductions
      in
      operating costs, including employee compensation and board of director
      expenses.

     

    6.5. Ownership
      Waivers.

     

    To
      the
      extent the issuance and sale of Shares to each of the Investors would result
      in
      any Investor exceeding the Aggregate Stock Ownership Limit (as defined in
      Article VII of the Charter), upon receipt of a letter of representation from
      such Investor reasonably satisfactory to the Board of Directors, the Board
      of
      Directors will take all necessary action to waive the application of such
      Aggregate Stock Ownership Limit as it relates to such Investor’s ownership of
      the Shares; provided, however, that the Board of Directors shall not be required
      to comply with this Section 6.4 if such compliance would reasonably be expected
      to cause the Company to fail to qualify as a REIT.

     

    6.6. Use
      of
      Proceeds.

     

    The
      Company hereby covenants and agrees to use the proceeds from the Private
      Transaction to make investments primarily in mortgage securities guaranteed
      by
      U.S. Government sponsored entities, such as Fannie Mae, and other AAA-rated
      residential mortgages. In addition, proceeds from the Private Transaction
      allocated to certain subsidiaries of the Company shall be invested by JMP Asset
      Management in accordance with the Advisory Agreement.

     

    ARTICLE
      7

    CONDITIONS
      TO CLOSING

     

    7.1. The
      obligation of the Investors to close the transaction contemplated by this
      Agreement is subject to the satisfaction on or prior to the Closing and any
      Secondary Closing Time of the following conditions:

     

    (a) The
      Company shall have executed this Agreement and delivered the same to the
      Investor.

     

    (b) The
      Investors shall have received copies of all documents and information which
      it
      may have reasonably requested in connection with the purchase and sale of the
      Shares. 

     

    (c) The
      representations and warranties made by the Company in Article 4 hereof shall
      be
      true and correct as of the Closing Date and any Secondary Closing Date , and
      the
      Company shall have performed all obligations and conditions herein required
      to
      be performed or observed by it on or prior to the Closing and any applicable
      Option Closing.

     

    (d) The
      Company shall have delivered to the Investors a certificate of its
      (1) Vice-Chairman of the Board and Co-Chief Executive Officer and (2)
      President, Co-Chief Executive Officer and Chief Financial Officer, dated as
      of
      the Closing Date or any Secondary Closing Date , to the effect
      that:

     

    
      	 	
              (i)

            	
              the
                representations and warranties of the Company in this Agreement are
                true
                and correct, as if made on and as of the Closing Date or any Secondary
                Closing Date , and the Company has, in all material respects, complied
                with all the agreements and satisfied the all the conditions on its
                part
                to be performed or satisfied at or prior to the Closing Date any
                applicable Option Closing;
                and

            


    

     

    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    

     

    
      	 	
              (ii)

            	
              subsequent
                to the respective dates as of which information is given in the Exchange
                Act Documents, there has not been (1) any Material Adverse Change,
                (2) any transaction that is material to the Company and the
                Subsidiaries considered as one enterprise, except transactions entered
                into in the ordinary course of business, (3) any obligation, direct
                or contingent, that is material to the Company and the Subsidiaries
                considered as one enterprise, incurred by the Company or the Subsidiaries,
                except obligations incurred in the ordinary course of business,
                (4) any change in the capital stock or outstanding indebtedness of
                the Company or any Subsidiary that is material to the Company and
                the
                Subsidiaries considered as one enterprise, (5) any dividend or
                distribution of any kind declared, paid or made on the capital stock
                of
                the Company or any Subsidiary, or (6) any loss or damage (whether or
                not insured) to the property of the Company or any Subsidiary which
                has
                been sustained or will have been sustained which has a Material Adverse
                Effect. 

            


    

     

    (e) The
      Company shall have executed and filed the Articles Supplementary Establishing
      and Fixing the Rights and Preferences of the Series A Cumulative Redeemable
      Convertible Preferred Stock substantially in the form attached hereto as
Exhibit C
      (the
“Articles Supplementary”) with the Department of Assessment and Taxation of the
      State of Maryland and delivered evidence of such filing to the
      Investors.

     

    (f) The
      Company shall have executed each of the Advisory Agreement and Registration
      Rights Agreement and delivered each of the same to the Investors.

     

    (g) The
      Company shall have caused its legal counsel to deliver to the Investors legal
      opinions reasonably satisfactory to the Investors substantially in the form
      attached hereto as Exhibits E
      and F,
      dated
      as of the Closing Date and any Secondary Closing Date.

     

    (h) The
      Company shall have received the written resignations of (i) Mary Dwyer Pembroke,
      Thomas W. White, and Jerome F. Sherman from the Board of Directors, and (ii)
      the
      resignation of Steven B. Schnall as non-executive Chairman of the Board of
      Directors, and delivered evidence of the same to the Investors.

     

    (i) The
      Amended and Restated Employment Agreements between the Company and each of
      David
      A. Akre and Steven R. Mumma, in the forms attached hereto as Exhibits
      H and I,
      respectively, shall have been executed by each of the parties and evidence
      of
      the same shall have been delivered to the Investors.

     

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    

     

    7.2. The
      obligation of the Company to close the transaction contemplated by this
      Agreement is subject to the satisfaction on or prior to the Closing and any
      Secondary Closing Time of the following conditions:

     

    (a) Each
      of
      the Investors shall have executed this Agreement and the Investors shall have
      delivered the same to the Company;

     

    (b) The
      representations and warranties made by the Investors shall be true and correct
      as of the Closing Date and
      any
      Secondary Closing Date ,
      and the
      Investors shall have performed all obligations and conditions herein required
      to
      be performed or observed by it on or prior to the Closing and
      any
      applicable Option Closing;

     

    (c) The
      Investors shall have delivered to the Company a certificate signed by each
      of
      the Investors, dated as of the Closing Date or any
      Secondary Closing Date ,
      to the
      effect that the representations and warranties of the Investors in this
      Agreement are true and correct, as if made on and as of the Closing Date or
      any
      Secondary Closing Date ,
      and the
      Investors have complied with all the agreements and satisfied all the conditions
      on its part to be performed or satisfied at or prior to the Closing Date or
      any
Secondary
      Closing Date ;

     

    (d) Each
      of
      the Investors shall have executed an investor questionnaire in the form attached
      hereto as Exhibit G
      and
      delivered the same to the Company.

     

    (e) Each
      of
      the Investors shall have delivered the purchase price as specified in
Article 3.

     

    (f) Each
      of
      the Investors shall have executed each of the Advisory Agreement and
      Registration Rights Agreement and delivered each of the same to the
      Company.

     

    ARTICLE
      8

    COVENANTS
      OF THE PARTIES

     

    8.1. Legends.

     

    It
      is
      understood that the certificates evidencing the shares of the Preferred Stock
      will bear the legends set forth below:

     

    (a) THE
      SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
      ACT
      OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES.
      THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE
      AND
      MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
      APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
      THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
      FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER
      OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
      SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE
      IS
      IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES
      LAWS.

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

    (b) The
      shares represented by this certificate are subject to restrictions on Beneficial
      and Constructive Ownership and Transfer. Subject to certain further restrictions
      and except as expressly provided in the Corporation’s Charter, (i) no Person may
      Beneficially or Constructively Own shares of the Corporation’s Common Stock in
      excess of nine and four-tenths percent (9.4%) in value or in number of shares,
      whichever is more restrictive, of the aggregate of the outstanding shares of
      Common Stock of the Corporation unless such Person is an Excepted Holder (in
      which case the Excepted Holder Limit shall be applicable); (ii) no Person may
      Beneficially or Constructively Own shares of Capital Stock of the Corporation
      in
      excess of nine and four-tenths percent (9.4%) in value of the aggregate of
      the
      outstanding shares of Capital Stock of the Corporation unless such Person is
      an
      Excepted Holder (in which case the Excepted Holder Limit shall be applicable);
      (iii) no Person may Beneficially or Constructively Own shares of Capital Stock
      that would result in the Corporation being “closely held” under
      Section 856(h) of the Internal Revenue Code of 1986, as amended (the
“Code”); (iv) no Person may Transfer shares of Capital Stock that would result
      in the Capital Stock of the Corporation being beneficially owned by less than
      one hundred (100) Persons (determined without reference to any rules of
      attribution) and (v) no Disqualified Organization shall Beneficially Own any
      shares of Capital Stock, and no Person shall Transfer shares of Capital Stock
      to
      the extent that such Transfer would result in shares of Capital Stock being
      Beneficially Owned by a Disqualified Organization. Any Person who Beneficially
      or Constructively Owns or attempts to Beneficially or Constructively Own shares
      of Capital Stock which causes or will cause a Person to Beneficially or
      Constructively Own shares of Capital Stock in excess or in violation of the
      above limitations must immediately notify the Corporation. If any of the
      restrictions on transfer or ownership are violated, the shares of Capital Stock
      represented hereby will be automatically transferred to a Trustee of a
      Charitable Trust for the benefit of one or more Charitable Beneficiaries. In
      addition, the Corporation may redeem shares upon the terms and conditions
      specified by the Board of Directors in its sole discretion if the Board of
      Directors determines that ownership or a Transfer or other event may violate
      the
      restrictions described above. Furthermore, upon the occurrence of certain
      events, attempted Transfers in violation of the restrictions described above
      may
      be void ab initio.
      All
      capitalized terms in this legend have the meanings defined in the Charter of
      the
      Corporation, as the same may be amended from time to time, a copy of which,
      including the restrictions on transfer and ownership, will be furnished to
      each
      holder of Capital Stock of the Corporation on request and without charge.
      Requests for such a copy may be directed to the Secretary of the Corporation
      at
      its principal office.

     

    (c) Any
      legend required by the laws of the State of Maryland or any other state
      securities laws.

     

    The
      legend set forth in (a)
      above
      shall be removed by the Company from any certificate evidencing the Shares
      upon
      delivery to the Company of an opinion by counsel, reasonably satisfactory to
      the
      Company, that a registration statement under the Securities Act is at that
      time
      in effect with respect to the legended security or that such security can be
      freely transferred in a public sale without such a registration statement being
      in effect and that such transfer will not jeopardize the exemption or exemptions
      from registration pursuant to which the Company issued the Shares.

     

    
      8.2. Restrictions
        on Transfer; Registration Rights.

       

      (a) Investor
        acknowledges that it is acquiring the Shares for its own account and for
        the
        purpose of investment and not with a view to any distribution or resale thereof
        within the meaning of the Securities Act,
        and any
        applicable state or other securities laws ("State Acts"). Investor further
        agrees that it will not sell, assign, transfer or otherwise dispose of any
        of
        the Shares in violation of the Securities
        Act
        or
        State Acts and acknowledges that, in taking unregistered shares of preferred
        stock, it must continue to bear economic risk in regard to its investment
        for an
        indefinite period of time because of the fact that the Shares have not been
        registered under the Securities
        Act
        or
        State Acts and further realizes that the Shares cannot be sold unless
        subsequently registered under the Securities
        Act
        and
        State Acts or an exemption from such registration is available. Investor
        further
        recognizes that the Company is not assuming any obligation to register such
        Shares except as expressly set forth herein. Investor also acknowledges that
        appropriate legends reflecting the status of the Shares under the Securities
        Act
        and
        State Acts may be placed on the face of the certificates for the Shares at
        the
        time of their transfer and delivery to the holder thereof. This Agreement
        is
        made with each of the Investors, subject to, and in reliance upon the Investors’
above representations.

       

    

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

    (b) The
      Shares issued pursuant to this Agreement may not be transferred except in a
      transaction, which is in compliance with the Securities
      Act
      and
      State Acts. Except as provided hereafter, it shall be a condition to any such
      transfer that the Company shall be furnished with an opinion of counsel, which
      counsel and opinion shall be reasonably satisfactory to the Company, to the
      effect that the proposed transfer would be in compliance with the
      Securities
      Act and
      State Acts. Notwithstanding the foregoing, furnishing such opinion of counsel
      shall not be a condition to any transfer of the Shares to an affiliate of
      Investor, including for this purpose if such Investor is an investment company,
      any fund or account advised by such Investor’s investment adviser or any
      affiliate thereof.

     

    ARTICLE
      9

    MISCELLANEOUS

     

    9.1. Payment
      of Expenses.

     

    The
      Company shall pay its own expenses in connection with the Private Transaction
      and the other transactions contemplated herein, including any advisory fees
      or
      commissions due to third parties, and upon completion of the Private
      Transaction, shall reimburse JMP Group Inc., or one of its designated
      affiliates, up to a maximum of $250,000 for its Private Transaction-related
      expenses, including reasonable travel expenses of its personnel, out-of-pocket
      expenses incurred by JMP Group Inc., or one of its designated affiliates, in
      connection with document production, third party data sources, and other direct
      expenses attributable to the Investors’ evaluation of the Private Transaction,
      and reasonable fees of one (1) external legal counsel.

    


    9.2. Survival
      of Warranties.

     

    The
      representation, warranties and covenants of the Company and the Investors
      contained in or made pursuant to this Agreement shall survive the execution
      and
      delivery of this Agreement and the Closing for a period of one year after the
      Closing and shall in no way be affected by any investigation of the subject
      matter thereof made by or on behalf of any of the Investors, their counsel
      or
      the Company or its counsel, as the case may be.

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

    9.3. Successors
      and Assigns.

     

    The
      terms
      and conditions of this Agreement shall inure to the benefit of and be binding
      upon the respective successors and assigns of the parties. This Agreement may
      not be assigned by either party without the prior written consent of the other
      party; provided, however, that any of the Investors may assign its rights,
      but
      may not delegate its obligations, hereunder to a wholly-owned subsidiary. In
      no
      event will a sale by any of the Investors of all or substantially all of its
      capital stock or assets, or a merger, consolidation, share exchange or other
      business combination transaction involving any such Investor constitute an
      assignment for purposes of this Section 9.3.

     

    9.4. Governing
      Law.

     

    This
      Agreement shall be governed by and construed under the internal laws of the
      State of New York as applied to agreements among residents of such state entered
      into and to be performed entirely within such state, without reference to
      principles of conflict of laws or choice of laws.

     

    9.5. Counterparts;
      Facsimile Signatures.

     

    This
      Agreement 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. Signatures delivered by facsimile shall be deemed to be original
      signatures.

     

    9.6. Headings.

     

    The
      headings and captions used in this Agreement are used for convenience only
      and
      are not to be considered in construing or interpreting this Agreement. All
      references in this Agreement to sections, paragraphs, exhibits and schedules
      shall, unless otherwise provided, refer to sections and paragraphs hereof and
      exhibits and schedules attached hereto, all of which exhibits and schedules
      are
      incorporated herein by this reference.

     

    9.7. Notices.

     

    Unless
      otherwise provided, any notice required or permitted under this Agreement shall
      be given in writing and shall be deemed effectively given upon personal delivery
      to the party to be notified or upon deposit with the United States Post Office,
      by registered or certified mail, postage prepaid and addressed, by a nationally
      recognized overnight courier service or by facsimile, as follows: 

     

    
      	
              if
                to the Company, to:

            	
              New
                York Mortgage Trust, Inc.

              1301
                Avenue of the Americas, 7th
                Floor

              New
                York, New York 10019

              Attention: President

              Fax:
                212-655-6269

            


    

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

     

    
      	
              With
                a copy to:

            	
              Hunton
                & Williams LLP

              951
                East Byrd Street

              Richmond,
                Virginia 23219

              Attention:
                Daniel M. LeBey, Esq.

              Fax:
                804-788-8218

            
	 	 
	
              if
                to the Investors, to:

            	
              JMP
                Group, Inc.

              600
                Montgomery Street, 11th
                Floor

              San
                Francisco, CA 94108

              Attention:
                Janet Tarkoff

              Fax:
                (415) 263-1336

            
	 	 
	
              With
                a copy to:

            	
              Kirkpatrick
                & Lockhart, Preston Gates Ellis LLP

              1601
                K Street, NW

              Washington,
                DC 20006

              Attention:
                Phillip Kardis, Esq.

              Fax:
                202-778-9100

            
	 	 


    

    or
      at
      such other address as the Investors or the Company may designate by giving
      ten
      (10) days advance written notice to the other parties.

     

    9.8. Attorneys’
      Fees.

     

    If
      any
      action at law or in equity, proceeding or counterclaim is necessary to enforce
      or interpret the terms of this Agreement or to recover damages, costs and
      expenses in connection with any breach of the Agreement, the prevailing party
      shall be entitled to be reimbursed by the opposing party for all of the
      prevailing party’s reasonable attorneys’ fees, costs and other reasonable
      out-of-pocket expenses incurred in connection with such action, proceeding
      or
      counterclaim in addition to any other relief to which such party may be
      entitled.

     

    9.9. Amendments
      and Waivers.

     

    Any
      term
      of this Agreement may be amended and the observance of any term of this
      Agreement may be waived (either generally or in a particular instance and either
      retroactively or prospectively), only with the written consent of the Company
      and the Investors. Any amendment or waiver effected in accordance with this
      Section shall be binding upon each holder of any Common Stock at the time
      outstanding, each future holder of such securities, and the
      Company.

     

    9.10. Termination.

     

    In
      the
      event any of the conditions to a party’s obligations to close the transactions
      contemplated under this Agreement is not satisfied or waived, that party shall
      have the right to terminate this Agreement.

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

     

    9.11. Severability.

     

    If
      one or
      more provisions of this Agreement are held to be unenforceable under applicable
      law, such provision(s) shall be excluded from this Agreement and the balance
      of
      the Agreement shall be interpreted as if such provision(s) were so excluded
      and
      shall be enforceable in accordance with its terms.

     

    9.12. Entire
      Agreement.

     

    This
      Agreement, together with all exhibits and schedules hereto, constitutes the
      entire agreement and understanding of the parties with respect to the subject
      matter hereof and supersedes any and all prior negotiations, correspondence,
      agreements, understandings, duties or obligations between the parties with
      respect to the subject matter hereof. The Exhibits hereto shall be deemed a
      part
      of this Agreement for all purposes.

     

    9.13. Further
      Assurances.

     

    From
      and
      after the date of this Agreement, upon the request of the Investors or the
      Company, the Company and the Investors shall execute and deliver such
      instruments, documents or other writings as may be reasonably necessary or
      desirable to confirm and carry out and to effectuate fully the intent and
      purposes of this Agreement.

     

    9.14. Indemnity.

     

    The
      Company shall indemnify, defend and hold harmless each of the Investors and
      its
      agents, shareholders, partners, members, officers, directors, representatives
      and affiliates (each an “Investor Indemnitee” and collectively, the “Investor
      Indemnitees”) from and against any and all losses, damages, liabilities, claims
      and expenses, including reasonable attorneys’ fees, sustained by any Investor
      Indemnitee resulting from, arising out of, or connected with any material
      inaccuracy in, breach of, or non-fulfillment of any representation, warranty,
      covenant or agreement made by or other obligation of the Company contained
      in
      this Agreement (including the exhibits and schedules hereto) or in any document
      delivered in connection herewith.

     

    Each
      Investor agrees, severally and not jointly, to indemnify, defend and hold
      harmless the Company and each of its agents, partners, members, officers,
      directors, representatives and affiliates (each a “Company Indemnitee” and
      collectively, the “Company Indemnitees”) from and against any and all actual
      damages sustained or incurred by any Company Indemnitee upon a finding by a
      court of competent jurisdiction in a final non-appealable judgment that the
      Investors have in fact breached its representations and warranties under
Article 5
      of this
      Agreement and that the Company Indemnitee has in fact been damaged as a direct
      result of such breach. 

     

    9.15. Press
      Release.

     

    The
      parties hereto shall consult in good faith with each other as to the form and
      substance of any press releases or other public announcements (including
      investor presentations and related presentations or outlines prepared or used
      by
      the Company), including any related question and answer guidelines prepared
      or
      used by the Company, related to the transactions contemplated hereby and any
      filings with any governmental body or with any national securities exchange
      or
      interdealer quotation service with respect thereto prior to issuing any press
      release or other public announcement or making any filing. Nothing in this
      Agreement shall be deemed to prohibit any party from making any disclosure
      or
      filing that it determines, upon the advice of counsel, is required by applicable
      law or by obligations pursuant to any listing agreement with or rules of any
      national securities exchange or interdealer quotation service or to prohibit
      the
      Company from making disclosures in connection with other discussions, questions
      or comments in connection with investor relations matters the principal focus
      of
      which is not specifically related to the transactions contemplated hereby
      provided that such disclosures or comments are not designed to adversely affect
      the reputation or business of the Investors or any of their
      Affiliates.

     

    [Signature
      page follows]

    


    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
      date
      first above written.

     

    
      	
              COMPANY:

            	 	 	
              NEW
                YORK MORTGAGE TRUST, INC.

            
	 	 	 	 
	 	 	 	 
	
            	 	 	/s/
              David A.
              Akre
	
            	 	 	
              
                

              

              Name: David A. Akre

              
                Title:
                  Co-Chief Executive Officer

              

            
	 	 	 	 
	
              INVESTORS:

            	 	 	
              JMP
                GROUP INC.

            
	 	 	 	 
	 	 	 	 
	 	 	 	/s/ Joseph A. Jolson
	 	 	 	
              
                

              

              Name: Joseph A. Jolson

              
                Title:
                  Chief Executive Officer

              

            
	 	 	 	 
	 	 	 	
              JMP
                REALTY TRUST, INC.

            
	 	 	 	 
	 	 	 	 
	 	 	 	/s/ Jim J. Fowler
	 	 	 	
              
                

              

              Name: Jim J. Fowler

              
                Title:
                  President

              

            
	 	 	 	 
	 	 	 	
              HARVEST
                OPPORTUNITY PARTNERS II, L.P.

            
	 	 	 	 
	 	 	 	 
	 	 	 	/s/ Joseph A. Jolson
	 	 	 	
              
                

              

              Name: Joseph A. Jolson

              
                Title:
                  Portfolio Manager

              

            
	 	 	 	 
	 	 	 	
              HARVEST
                OPPORTUNITY PARTNERS OFFSHORE FUND, LTD.

            
	 	 	 	 
	 	 	 	 
	 	 	 	/s/ Joseph A. Jolson
	 	 	 	
              
                

              

              Name: Joseph A. Jolson

              
                Title:
                  Portfolio Manager

              

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	 	 	
              HARVEST
                SMALL CAP PARTNERS, L.P.

            
	 	 	 	 
	 	 	 	 
	 	 	 	/s/ Jeffrey B. Osher
	 	 	 	
              
                

              

              Name: Jeffrey B. Osher

              
                Title:
                  Portfolio Manager

              

            
	 	 	 	 
	 	 	 	
              HARVEST
                SMALL CAP PARTNERS OFFSHORE, LTD.

            
	 	 	 	 
	 	 	 	 
	 	 	 	/s/ Jeffrey B. Osher
	 	 	 	
              
                

              

              Name: Jeffrey B. Osher

              
                Title:
                  Portfolio Manager

              

            


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Schedule
      I

     

    
      	
              Investor

            	 	
              No.
                of Shares

            	 	
              Purchase
                Price

            	 
	
              JMP
                Group, Inc.

            	 	 	
              250,000

            	 	
              $

            	
              5,000,000

            	 
	
              JMP
                Realty Trust, Inc.

            	 	 	
              500,000

            	 	
              $

            	
              10,000,000

            	 
	
              Harvest
                Opportunity Partners II, L.P.

            	 	 	
              194,693

            	 	
              $

            	
              3,893,860

            	 
	
              Harvest
                Opportunity Partners Offshore Fund, Ltd.

            	 	 	
              17,807

            	 	
              $

            	
              356,140

            	 
	
              Harvest Small
                Cap Partners, L.P.

            	 	 	
              33,850

            	 	
              $

            	
              677,000

            	 
	
              Harvest
                Small Cap Offshore, Ltd.

            	 	 	
              3,650

            	 	
              $

            	
              73,000

            	 
	
              Total

            	 	 	
              1,000,000

            	 	
              $

            	
              20,000,000