New York Mortgage Trust
Annual Report 2006

Plain-text annual report

NEW YORK MORTGAGE TRUST INC FORM 10-K (Annual Report) Filed 04/02/07 for the Period Ending 12/31/06 Address Telephone CIK 52 VANDERBILT AVENUE SUITE 403 NEW YORK, NY 10017 (212) 792-0107 0001273685 Symbol NYMT SIC Code 6798 - Real Estate Investment Trusts Industry Real Estate Operations Sector Fiscal Year Services 12/31 http://www.edgar-online.com © Copyright 2010, EDGAR Online, Inc. All Rights Reserved. Distribution and use of this document restricted under EDGAR Online, Inc. Terms of Use.  UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K Commission File Number 001-32216 NEW YORK MORTGAGE TRUST, INC . (Exact name of registrant as specified in its charter) 1301 Avenue of the Americas, New York, New York 10019 (Address of principal executive office) (Zip Code) (Registrant’s telephone number, including area code) (212) 792-0107 Securities registered pursuant to Section 12(b) of the Act: Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes £ No R Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes £ No R Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes R No £ Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. R Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filers” and “large accelerated filers” in Rule 12b-2 of The Exchange Act. (check one): Large Accelerated Filer £ Accelerated Filer R Non-Accelerated Filer £ Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes £ No R R ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Fiscal Year Ended December 31, 2006 £ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Transition Period From ____________ to ____________ Maryland 47-0934168 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) Title of Each Class Name of Each Exchange on Which Registered Common Stock, $0.01 par value New York Stock Exchange  The aggregate market value of voting stock held by non-affiliates of the registrant as of June 30, 2006 was approximately $58.8 million based on the closing price on such date of the registrant’s common stock as reported by the New York Stock Exchange Composite Transactions. The number of shares of the Registrant’s Common Stock outstanding on March 15, 2007 was 18,077,880. DOCUMENTS INCORPORATED BY REFERENCE Document Where Incorporated 1. Proxy Statement for Annual Meeting of Stockholders to be held on June 14, 2007, to be filed with the Securities and Exchange Commission Part III  NEW YORK MORTGAGE TRUST, INC. FORM 10-K For the Fiscal Year Ended December 31, 2006 TABLE OF CONTENTS PART I Item 1. Business 1 Item 1A. Risk Factors 14 Item 1B. Unresolved Staff Comments 22 Item 2. Properties 22 Item 3. Legal Proceedings 22 Item 4. Submission of Matters to a Vote of Security Holders 22 PART II Item 5. Market For Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities 23 Item 6. Selected Financial Data 25 Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations 27 Item 7A. Quantitative and Qualitative Disclosures About Market Risk 62 Item 8. Financial Statements and Supplementary Data 69 Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure 69 Item 9A. Controls and Procedures 69 Item 9B. Other Information 69 PART III Item 10. Directors and Executive Officers of the Registrant and Corporate Governance 71 Item 11. Executive Compensation 71 Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters 71 Item 13. Certain Relationships and Related Party Transactions and Director Independence 71 Item 14. Principal Accountant Fees and Services 71 PART IV Item 15. Exhibits and Financial Statement Schedules 72 -i-  PART I Item 1. BUSINESS General New York Mortgage Trust, Inc. together with its consolidated subsidiaries (“NYMT”, the “Company”, “we”, “our”, and “us”) is a self-advised residential mortgage finance company that acquires and invests in adjustable rate mortgage (“ARM”) assets. We earn net interest income from residential mortgage-backed securities and adjustable-rate mortgage loans and securities. Until March 31, 2007, the Company originated mortgages throught its wholly-owned subsidiary, The New York Mortgage Company, LLC (“NYMC”). In this discontinued operation, we earned gain on sale income and net interest income by originating a variety of residential mortgage loan products. This discontinued operation also originated residential mortgage loans as a broker for the purpose of obtaining broker fee income. As of December 31, 2006, we had approximately $1.32 billion of total assets as compared to $1.79 billion at December 31, 2005 (see our consolidated financial statements and related notes beginning on page F-1). Recent Events - Sale of Mortgage Lending Business and Change in Our Business Strategy On February 7, 2007, we announced that, as a part of our previously announced exploration of strategic alternatives for the Company, we had entered into a definitive agreement to sell substantially all of the retail mortgage lending platform of NYMC to IndyMac Bank, F.S.B., (“Indymac”), a wholly owned subsidiary of Indymac Bancorp, Inc, for an estimated purchase price of $13.5 million in cash and the assumption of certain of our liabilities by Indymac. On March 31, 2007, Indymac purchased substantially all of the operating assets related to NYMC’s retail mortgage lending platform, including, among other things, assuming leases held by NYMC for approximately 20 full service and approximately 10 satellite retail mortgage lending offices (excluding the lease for the Company’s corporate headquarters, which is being assigned, as previously announced, under a separate agreement to Lehman Brothers Holding, Inc.), the tangible personal property located in those approximately 30 retail mortgage banking offices, NYMC’s pipeline of residential mortgage loan applications (the “Pipeline Loans”), escrowed deposits related to the Pipeline Loans, customer lists and intellectual property and information technology systems used by NYMC in the conduct of its retail mortgage banking platform. Indymac assumed the obligations of NYMC under the Pipeline Loans and substantially all of NYMC’s liabilities under the purchased contracts and purchased assets arising after the closing date. Indymac has also agreed to pay (i) the first $500,000 in severance expenses with respect to “transferred employees” (as defined in the asset purchase agreement filed as Exhibit 10.62 to this Annual Report on Form 10-K) and (ii) severance expenses in excess of $1.1 million arising after the closing with respect to transferred employees. As part of the Indymac transaction, the Company has agreed, for a period of 18 months, not to compete with Indymac other than in the purchase, sale, or retention of mortgage loans. Indymac has hired substantially all of our branch employees and loan officers and a majority of NYMC employees based out of our corporate headquarters. As of April 1, 2007, the Company has approximately 40 employees. On February 14, 2007, we entered into a definitive agreement with Tribeca Lending Corp., a subsidiary of Franklin Credit Management Corporation (“Tribeca Lending”) to sell our wholesale lending business for an estimated purchase price of $485,000. This transaction closed on February 22, 2007. Together, the closing of the sale of our retail mortgage banking platform to Indymac and the sale of our wholesale lending business to Tribeca Lending has resulted in gross proceeds to NYMT of approximately $14.0 million before fees and expenses, and before deduction of approximately $2.3 million, which will be held in escrow to support warranties and indemnifications provided to Indymac by NYMC as well as other purchase price adjustments. NYMC will record a one time taxable gain on the sale of these assets. NYMC’s deferred tax asset will absorb any taxable gain from the sale. We expect to redeploy the net proceeds from the sale of our retail mortgage banking platform in high quality mortgage loan securities. We will liquidate the remaining inventory of loans held for sale in the ordinary course of business. Our Board of Directors, together with our management, will continue to consider strategic options for NYMT, including a possible sale or merger or raising capital under a passive REIT business model. We believe that the disposition of our mortgage lending business will allow us to meet the following business objectives: • reduce, and ultimately eliminate, our taxable REIT subsidiary’s operating losses; • enable NYMC to retain the economic value of its accumulated net operating losses; • increase NYMT’s investable capital and financial flexibility; 1  Upon consummation of the transaction with Indymac on March 31, 2007, Steven B. Schnall, our Chairman, President and Co-Chief Executive Officer, and Joseph V. Fierro, the Chief Operating Officer of NYMC, resigned from their executive positions with us and assumed roles with Indymac. Concurrent with Mr. Schnall’s resignation, Steven R. Mumma, presently our Chief Financial Officer, will also assume the roles of President and Co-Chief Executive Officer. Mr. Schnall continues to serve our Board of Directors as its non-executive Chairman, and David A. Akre continues to serve as Vice Chairman and Co-Chief Executive Officer. In connection with the sale of our wholesale mortgage origination platform assets on February 22, 2007 and the transaction with Indymac, during the fourth quarter of 2006, we classified substantially all of the assets, liabilities and operations of our Mortgage Lending segment as a discontinued operation in accordance with the provisions of Statement of Financial Accounting Standards No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets” (“SFAS No. 144”). As a result, we have reported revenues and expenses related to the segment as a discontinued operation and the related assets and liabilities as assets and liabilities related to a discontinued operation for all periods presented in the accompanying consolidated financial statements . Certain assets, such as the deferred tax asset, and certain liabilities, such as subordinated debt and liabilities related to leased facilities not assigned to Indymac will become part of the ongoing operations of NYMT and accordingly, we have not classified as a discontinued in accordance with the provisions of SFAS No. 144. See Note 12 in the notes of our consolidated financial statements. Following our exit from the mortgage lending business, we will exclusively focus our resources and efforts on the business that we refer to as our Mortgage Portfolio Management segment, which will primarily involve investing, on a leveraged basis, in residential mortgage backed securities, and our revenues will be derived primarily from the difference between the interest income we earn on our mortgage assets and the costs of our borrowings (net of hedging expenses). Because the mortgage lending business represented a significant part of our operations, our historic operations (since completion of our initial public offering) may not be necessarily comparable to our financial operations following consummation of the transactions described above. Our Mortgage Portfolio Management Business Our residential mortgage investments are comprised of ARM loans, ARM securities and floating rate collateralized mortgage obligations (“CMO Floaters”). The ARM loans and securities have interest rates that reset in a year or less, and “hybrid” ARM loans and securities have a fixed interest rate for an initial period of two to seven years before converting to ARM loans and securities whose rates will reset each year or shorter. ARM securities represent interests in pools of ARM loans. The ARM securities are rated by at least one of two nationally recognized rating agencies, Standard & Poor’s, Inc. or Moody’s Investors Service, Inc. (the “Rating Agencies”), or issued by Freddie Mac (“FHLMC”), Fannie Mae (“FNMA”) or Ginnie Mae (“GNMA”). The securitizations result in a series of rated mortgage securities backed by the ARM loans. The CMO Floaters are mortgage securities backed by a pool of FNMA, FHLMC or GNMA fixed rate mortgage loans the cash flows from which have interest rates that adjust monthly. As an investor in residential mortgage assets, our net income is generated primarily from the difference between the interest income we earn on our mortgage assets and the cost of our borrowings (net of hedging expenses), commonly referred to as the “Net Spread.” Our goal is to maximize the long-term sustainable difference between the yield on our investments and the cost of financing these assets through the following strategies: • lower NYMT’s executive management compensation expenses; • significantly reduce our potential severance obligations; and • enable our management to focus on our mortgage portfolio management operations, which consisted of a $1.1 billion portfolio of investment securities as of December 31, 2006. • earning net interest spread between the yield of mortgage assets we own and the cost to finance such assets; • focusing on purchasing high credit quality residential mortgage loans through third parties that we believe can be retained in our portfolio; 2  We finance the purchases of ARM loans, ARM securities and CMO Floaters (collectively “ARM Assets”) with equity capital, unsecured debt and short-term borrowings such as repurchase agreements, securitizations resulting in floating-rate long-term collateralized debt obligations (“CDOs”) and other collateralized financings. For hedging purposes, and to the extent we feel is necessary, we enter into swap agreements whereby we receive floating rate payments in exchange for fixed rate payments, effectively converting the borrowings to a fixed rate. We believe our exposure and risks related to changes in interest rates can be prudently managed through holding ARM Assets and attempting to match the duration of our liabilities with the duration of our ARM Assets. From a credit risk perspective, we retain high quality assets and follow strict credit underwriting standards. Our Mortgage Lending Business (Discontinued Operation) Until March 31, 2007, we originated mortgage loans through NYMC. Licensed or exempt from licensing in 44 states and the District of Columbia and through a network of 25 full service branch loan origination locations and 22 satellite loan origination locations that were licensed or pending state license approval as of December 31, 2006, NYMC offered a broad range of residential mortgage products, with a primary focus on prime, or high credit quality, residential mortgage loans . We sell the fixed-rate loans that we originated to third parties and retain and either finance in our portfolio selected adjustable-rate and hybrid mortgage loans that we originated or we sell them to third parties. As of March 2006, we began to sell all loans originated by NYMC in an effort to increase gain on sale revenue in current periods due to decreased spreads available by holding the loans in portfolio. Our portfolio of loans is held at the real estate investment trust (“REIT”) level or by a qualified REIT subsidiary (“QRS”). We relied on our own underwriting criteria with respect to the mortgage loans we retained and relied on the underwriting criteria of the institutions to which we sell our loans with respect to the loans we intend to sell. In either case, we directly performed the underwriting of such loans with our own experienced underwriters. Our Tax Status Unlike banks, savings and loans or most mortgage originators, we are structured as a REIT for federal income tax purposes. We have elected to be taxed as a REIT under Sections 856-860 of the Internal Revenue Code (IRC) of 1986, as amended, commencing with our taxable year ended December 31, 2004, and we operate so as to qualify as a real estate investment trust (“REIT”) for federal income tax purposes. We hold our investment in ARM Assets directly or in a QRS. Accordingly, the net interest income we earn on our ARM Assets is generally not subject to federal income tax as long as we distribute at least 90% of our REIT taxable income in the form of a dividend to our stockholders each year and comply with various other requirements. Failure to qualify as a REIT would subject the Company to federal income tax (including any applicable minimum tax) on its taxable income at regular corporate rates and distributions to its stockholders in any such year would not be deductible by the Company. NYMC is our taxable REIT subsidiary (“TRS”). The activities we conduct through NYMC, including purchasing mortgage loans from and selling mortgage loans sold to third parties, are subject to federal and state corporate income tax. We may elect to retain any after tax income generated by NYMC, and, as a result, may increase our consolidated capital and grow our business through retained earnings or distribute all or a portion of our after-tax NYMC earnings to our stockholders. Access to our Periodic SEC Reports and Other Corporate Information Our internet website address is www.nymtrust.com. We make available free of charge, through our internet website, our annual report on Form 10-K, our quarterly reports on Form 10-Q, current reports on Form 8-K and any amendments thereto that we file or furnish pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 as soon as reasonably practicable after we electronically file such material with, or furnish it to, the Securities and Exchange Commission (the “SEC”). Our Corporate Governance Guidelines and Code of Business Conduct and Ethics and the charters of our Audit, Compensation and Nominating and Corporate Governance Committees are also available on our website and are available in print to any stockholder upon request in writing to New York Mortgage Trust, Inc., c/o Chief Financial Officer and Secretary, 1301 Avenue of the Americas, 7th floor, New York, New York 10019. Information on our website is neither part of nor incorporated into this annual report on Form 10-K. • using hedging instruments to better match asset and liability durations; • leveraging our portfolio to increase its size with the intent to enhance our returns while at the same time managing the increased risk of loss associated with this leverage; and • utilizing hedging strategies that we consider appropriate to minimize exposure to interest rate changes. 3  Corporate Governance We operate our business with a focus on high standards in business practices and professional conduct. The following are some of the highlights relating to our corporate governance: Company History We were formed as a Maryland corporation in September 2003. On January 9, 2004, we capitalized New York Mortgage Funding, LLC (“NYMF”) as a wholly-owned subsidiary of our company. NYMF is a qualified REIT subsidiary (“QRS”), in which we accumulate mortgage loans that the Company intends to securitize. In June 2004, we sold 15 million shares of our common stock in an IPO at a price to the public of $9.00 per share, for net proceeds of approximately $122 million after deducting the underwriters’ discount and other offering expenses. Concurrent with our IPO, we issued 2,750,000 shares of common stock in exchange for the contribution to us of 100% of the equity interests of NYMC. Prior to the IPO, we did not have recurring business operations. Prior to being acquired by us, NYMC’s business strategy was to sell or broker all of the loans it originated to third parties and the largest component of NYMC’s net income was generated by the gain on sale of such loans. For accounting purposes and reporting purposes, the combination of our company and NYMC is accounted for as a reverse merger and the related transfer of loans originated by NYMC to us is accounted for as a transfer of assets between entities under common control. Accordingly, we have recorded assets and liabilities transferred from NYMC at their carrying amounts in the accounts of NYMC at the date of transfer. The consolidated financial statements include the accounts of our Company subsequent to the IPO and also include the accounts of NYMC and NYMF prior to the IPO. As a result, our historical financial results prior to the IPO reflect the financial operations of this prior business strategy of selling virtually all of the loans originated by NYMC to third parties. Furthermore, the ARM loans we originated and securitized in the securitizations completed in 2005 were recorded at cost with no gain on sale recognized, as would be the case if sold to third parties. Since our IPO, our business strategy has been to invest in ARM loans and securitize them to generate net interest income. As a result, our historic operations prior to the IPO and current financial operations are not necessarily comparable. Our Industry With the closing of the transaction under which we sold substantially all of the assets of the retail mortgage lending platform to Indymac, we are now principally a residential portfolio manager. Our portfolio is comprised of residential adjustable rate mortgage loans and securities. As of December 31, 2006 approximately 98% of our assets are rated either “AA” or “AAA” by either Standard & Poor’s or Moody’s, or are obligations issued by either Fannie Mae or Freddie Mac. Besides continuing to manage our existing portfolio, our future strategy will most likely involve the purchase or high quality residential mortgage loans in bulk, and the securitization of same. • Our board of directors is composed of a super-majority of independent directors. As per guidelines established by the SEC and NYSE, the Audit, Nominating/Governance and Compensation Committees are composed exclusively of independent directors. • We have adopted a Code of Business Conduct and Ethics and Corporate Governance Guidelines that apply to all officers, directors and employees (as well as a supplemental Code of Ethics for Senior Financial Officers) to promote the highest standard of conduct and ethics in our dealings with our customers, stockholders, vendors, the public and our employees. • Our Insider Trading Policy prohibits any of the directors, officers or employees of the Company from buying or selling our stock on the basis of material nonpublic information, and in conjunction with our Regulation FD policy, prohibits communicating material nonpublic information to others. Trading of our securities by directors, officers or employees is allowed only during a discreet narrow open period after our quarterly report on Form 10-Q or annual report on Form 10-K is filed with the SEC. • We have established a formal internal audit function to monitor and test the efficiency of our internal controls and procedures as well as the implementation of Section 404 of the Sarbanes-Oxley Act of 2002. • We have made publicly available, through our website www.nymtrust.com, the charters of the independent committees of our Board of Directors (Audit Committee, Compensation Committee, Nominating and Corporate Governance Committee) and other corporate governance materials, including our Code of Business Conduct and Ethics, our Corporate Governance Guidelines, our Insider Trading Policy, and other corporate governance policies. 4  Operating Policies, Strategies and Business Segments Until March 31, 2007, the Company operated two segments, the Mortgage Portfolio Management segment and the Mortgage Lending segment. Upon the sale of substantially all of its mortgage lending operating assets to Indymac as of March 31, 2007, the Company exited the mortgage lending business and accordingly will no longer report segment information. Mortgage Portfolio Management Prior to the completion of our IPO on June 29, 2004, our operations were limited to the mortgage operations described in the section below entitled “Mortgage Lending.” Beginning in July 2004, we began to implement our business plan of investing in high quality, adjustable rate mortgage loan securities. Our portfolio management strategy is to acquire ARM Assets from third parties to hold in our portfolio, fund them using equity capital and borrowings and to generate net interest income from the difference, or net spread, between the yield on these assets and our cost of financing. Prior to March 2006, we invested in ARM Assets originated by NYMC, but have since ceased this activity in an effort to increase gain on sale revenue due to a reduction in spreads available by holding loans in portfolio. In order to accomplish this, our: We seek to have a portfolio consisting of high quality mortgage-backed securities and loans. We believe that retaining high quality assets in our portfolio helps us mitigate risks associated with market disruptions. Our investment guidelines define the following classifications for securities we own: • Acquired ARM Assets are replaced with high-quality mortgage securities ARM loans acquired from third parties, (and in the past acquired ARM Assets were replaced with ARM loans originated by NYMC). • Mortgage portfolio management operates with a long-term investment outlook. • Short-term financing of ARM loans to be securitized is provided by secured warehouse and aggregation lines. • Ultimate financing for ARM loans is provided by either issuing collateralized debt obligations or by repurchase financing facilities. • Category I investments are mortgage-backed securities that are either rated within one of the two highest rating categories by at least one of the Rating Agencies, or have their repayment guaranteed by FHLMC, FNMA or GNMA. • Category II investments are mortgage-backed securities with an investment grade rating of BBB/Baa or better by at least one of the Rating Agencies. • Category III investments are mortgage-backed securities that have no rating from, or are rated below investment grade by at least one of the Rating Agencies. 5  The investment policy adopted by our Board of Directors provides, among other things, that: Our Board of Directors may amend or waive compliance with this investment policy at any time without the consent of our stockholders. To achieve our portfolio strategy and mitigate risk, we: Our Board of Directors has also established an investment and leverage committee for the purpose of approving certain investment transactions and the incurrence of indebtedness. This committee is comprised of our co-chief executive officers, and our chief financial officer. The committee has the authority to approve, without the need of further approval of our board of directors, the following transactions from time to time, any of which may be entered into by us or any of our subsidiaries: • interest rate swaps and Eurodollar contracts; • caps, floors and collars; • financial futures; and • options on any of the above; and • repurchase agreements; • bank loans, up to an aggregate of $100 million; and • no investment shall be made which would cause us to fail to qualify as a REIT; • no investment shall be made which would cause us to be regulated as an investment company; • at least 70% of our assets will be Category I investments or loans that back or will back such investments; and • no more than 7.5% of our assets will be Category III investments. • attempt to maintain a net duration, or duration gap, of one year or less on our ARM portfolio, related borrowings and hedging instruments; • structure our liabilities to mitigate potential negative effects of changes in the relationship between short- and longer-term interest rates; • focus on holding ARM loans rather than fixed-rate loans, as we believe we will be adversely affected to a lesser extent by early repayments due to falling interest rates or a reduction in our net interest income due to rising interest rates. • the purchase and sale of agency and private label mortgage-backed securities, subject to the limitations described above; • securitizations of our mortgage loan portfolio; • the purchase and sale of agency debt; • the purchase and sale of U.S. Treasury securities; • the purchase and sale of overnight investments; • the purchase and sale of money market funds; • hedging arrangements using: • the incurrence of indebtedness using: • term repurchase agreements. 6  Initially, the loans held for investment are funded through warehouse facilities and repurchase agreements. We ultimately finance the loans that we retain in our portfolio through securitization transactions. Upon securitization, we expect that a vast majority of the resulting mortgage-backed securities will become eligible for inclusion in Category I. The only subordinate classes of mortgage-backed securities that we will hold (Category III investments) are subordinate classes that result from securitizations of the mortgage loans in our portfolio. We do not seek to acquire subordinated mortgage-backed securities as investments but instead acquire them only in connection with our mortgage loan securitizations or in order to help us meet our asset tests as a REIT. Our liabilities are primarily termed repurchase agreements with maturities ranging from one to twelve months. A significant risk to our operations, relating to our portfolio management, is the risk that interest rates on our assets will not adjust at the same times or amounts that rates on our liabilities adjust. Even though we have retained and invested in ARM loans, many of the hybrid ARM loans in our portfolio have fixed rates of interest for a period of time ranging from two to seven years. We use interest rate swaps to extend the duration of our liabilities to attempt to match the duration of our assets and we use termed repurchase agreements with laddered maturities to reduce the risk of a disruption in the repurchase market. Since we hold primarily ARM Assets rated AAA and agency securities (FHLMC or FNMA), we believe we are less susceptible to a disruption in the repurchase market as these types of securities have typically been eligible for repurchase market financing even when repurchase financing was not available for other classes of mortgage assets or asset backed bonds. Mortgage Lending (Discontinued Operation) The origination of mortgage loans through NYMC has a significant impact on our financial results in that: Until March 31, 2007, through NYMC, we originated primarily first mortgages on one-to-four family dwellings through our retail loan production offices and supplemented this origination production through our internet channel ( www.MortgageLine.com ). On February 22, 2007 we closed an asset sale transaction with Tribeca Lending for our wholesale origination business, and as of that date, no longer originate loans in a wholesale capacity. As of March 31, 2007, we closed an asset sale transaction with Indymac for substantially all of the operating assets of the Company ’ s mortgage lending business and as of that date exited the mortgage lending business. • Loans we originate and sell generate gain on sale income at the TRS. • Certain ARM loans may be held in portfolio rather than be sold, thus reducing current period gain on sale income. • A majority of the Company’s overhead is associated with the mortgage lending segment. • Any early payment defaults and resulting loss in 2006 will come from our mortgage lending segment 7  The following table details the payment stream, loan purpose and documentation type of our mortgage loan originations for the year ended December 31, 2006: MORTGAGE LOAN ORIGINATION SUMMARY For the fiscal year ended December 31, 2006 Retail Loan Origination Our loan origination strategy is predominantly retail, referral-based, mortgage banking. Our loan officers rely primarily on the various relationships they have established with their clientele, realtors, attorneys and others who routinely interact with those who may need mortgage financing. Retail loan origination allows us to provide a variety of attractive and innovative mortgage products at competitive rates. Unlike many banks and financial institutions which focus solely on loan products to retain in their portfolios, we offer a wide range of products — products that we have retained in the past and may retain in portfolio in the future, and products that we will sell to third parties if such loans do not meet our investment parameters. Because we are predominately referral-based, our cost of sourcing potential retail clients, we believe, is less than an organization that relies heavily on concentrated broadcast, print or internet media advertising. By eliminating intermediaries between the borrower and us, we can both originate high quality mortgage loans for retention in our portfolio at attractive yields or offer loans that may be sold to third parties, while at the same time offering our customers a variety of mortgage products at competitive rates and fees. On March 31, 2007, we closed an asset sale transaction with Indymac for substantially all of the operating assets of our retail mortgage lending business and as of that date we have exited the mortgage lending business. Wholesale Loan Origination Number of Loans Dollar Value (in thousands) % of Total Payment Stream Fixed Rate FHA/VA 477 $ 78,899 3.1 % Conventional: Conforming 5,942 1,044,537 41.1 % Conventional Jumbo 505 318,346 12.5 % Total Fixed Rate 6,924 $ 1,441,782 56.7 % ARMs FHA/VA 12 $ 3,423 0.1 % Conventional 3,386 1,098,798 43.2 % Total ARMs 3,398 1,102,221 43.3 % Annual Total 10,322 $ 2,544,003 100.0 % Loan Purpose Conventional 9,833 $ 2,461,681 96.8 % FHA/VA 489 82,322 3.2 % Total 10,322 $ 2,544,003 100.0 % Documentation Type Full Documentation 5,317 $ 1,265,453 49.7 % Stated Income 2,167 610,235 24.0 % Stated Income/Stated Assets 1,259 293,454 11.5 % No Documentation 925 231,244 9.1 % No Ratio 445 101,868 4.0 % Stated Assets 15 2,329 0.1 % Other 194 39,420 1.6 % Total 10,322 $ 2,544,003 100.00 % Our wholesale lending strategy has historically been a small component of our loan origination operations. Our wholesale lending business was driven by a network of non-affiliated wholesale loan brokers and mortgage lenders who submitted loans to us. We maintained relationships with these wholesale brokers and, as with retail loan originations, underwrote, processed, and funded wholesale loans through our centralized facilities and processing systems. In order to further diversify our origination network, during 2005, we expanded our wholesale loan origination capacity with the creation of a division specifically for wholesale loan originations. On February 22, 2007, we closed an asset sale transaction with Tribeca Lending for our wholesale origination business, and as of that date, no longer originate loans in a wholesale capacity. 8  Correspondent Lending Until March 31, 2007, through our correspondent lending channels, from time to time we acquired bulk mortgage loan packages from Company-approved correspondent lenders. To date these purchases have been to supplement loans put into our securitizations. We reviewed our correspondents for the soundness of their in-house mortgage lending procedures and their ability to fulfill their representations and warranties to us. Generally, loans acquired from correspondents were originated according to the correspondents’ product specifications and underwriting guidelines that we have approved and accepted. A full loan collateral review of each loan file, was performed to assess note and mortgage documentation sufficiency and compliance, to verify product quality and compliance with our investment guidelines, we performed a full review of substantially all moderate to high credit risk loans. Underwriting Historically, NYMC’s underwriting philosophy has been to underwrite loans according to the guidelines established by the available purchasers of its loans. However, the Company underwrites to its own guidelines select ARM loans it retains for its investment portfolio. We believe that proper underwriting for such loans was critical to managing the credit risk inherent in a loan portfolio. Typically, mortgage underwriting guidelines provide a framework for determining whether a proposed mortgage loan to a potential borrower will be approved. The key points in this framework are the borrower’s credit scores and other indications of the borrower’s ability and willingness to repay the loan, such as the borrower’s employment and income, the amount of the borrower’s equity in and the value of the borrower’s property securing the loan, the borrower’s debt to income and other debt ratios, the loan to value (“LTV”) of the loan, the amount of funds available to the borrower for closing and the borrower’s post-closing liquidity. Until March 31, 2007 when the Company exited the mortgage lending business, they Company followed the underwriting guidelines established by available purchasers with respect to the loans we intend to sell. Furthermore, for mortgage loans we have retained in the past, the Company followed a specific underwriting methodology based on the following philosophy — first evaluate the borrower’s ability and willingness to repay the loan, and then evaluate the value of the property securing the loan. Our strategy has been to only retain mortgage loans that we believed had low risk of default and resultant loss. As underwriting basically seeks to predict future borrower payment patterns and ability based on the borrower’s history and current financial information and the lender’s ability to be made whole in the future through foreclosure in the event a default does occur, no assurance can be made that every loan originated or purchased will perform as anticipated. In March 2006, we ceased our practice of retaining loans originated by NYMC to hold in our portfolio and as of March 31, 2007 we exited the mortgage lending business. The key aspects of our underwriting guidelines were as follows: Borrower— In evaluating the borrower’s ability and willingness to repay a loan, we reviewed and analyzed the following aspects of the borrower: credit score, income and its source, employment history, debt levels in revolving, installment and other mortgage loans, credit history and use of credit in the past, and finally the ability and/or willingness to provide verification for the above. Credit scores, credit history, use of credit in the past and information as to debt levels can be typically obtained from a third party credit report through a credit repository. Those sources were used in all cases, as available. In certain cases, borrowers had little or no credit history that can be tracked by one of the primary credit repositories. In these cases, the reason for the lack of history was considered and taken into account. In our experience, more than 95% of prospective borrowers have accessible credit histories. In other cases borrowers are not required, per the loan program, to provide proof of either their stated incomes and or stated assets as found on their mortgage applications. These loan types can make assessment of the borrower's credit profile more difficult. Property— In evaluating a potential property to be used as collateral for a mortgage loan, we consider all of the following aspects of the property: the loan balance versus the property value, or LTV, the property type, how the property will be occupied (a primary residence, second home or investment property), if the property’s apparent value is supported by recent sales of similar properties in the same or a nearby area, any unique characteristics of the property and our confidence in the above data and their sources. 9  Other Considerations— Other considerations that impact our decision regarding a borrower’s loan application include the borrower’s purpose in requesting the loan (purchase of a home as opposed to cashing equity out of the home through a refinancing for example), the loan type (adjustable-rate, including adjustment periods and loan life rate caps, or fixed-rate), and any items unique to a loan that we believe could affect credit performance. In addition, we worked with nationally recognized providers of appraisal, credit, and title insurance. We oversaw the activities of these service providers through on-site visits, report monitoring, customer service surveys, post-closing quality control, and periodic direct participation and conversations with our customers. A significant amount of our settlement services were performed by in-house professionals. We maintained an extensive quality control review process that was contracted with a third party in order to verify that selected loans were properly underwritten, executed and documented. All loans retained in portfolio and a selection of other loans sold to third parties were reviewed for quality control. Our Loan Origination Financing Strategy We financed our loan originations utilizing warehouse agreements as well as other similar financing arrangements. The agreements are each renewable annually, but are not committed, meaning that the counterparties to the agreements may withdraw access to the credit facilities at any time. Warehouse Facilities— Non-depository mortgage lenders, such as NYMC, typically rely on credit facilities for capital needed to fund new mortgage loans. These facilities are typically lines of credit or master repurchase agreements from other financial institutions that the mortgage banker can draw from in order to fund new mortgage loans. These facilities are referred to as warehouse lines or warehouse facilities. Warehouse lines are typically collateralized loans made to mortgage bankers that in turn pledge the resulting loans to the warehouse lender. Third-party mortgage custodians, usually large banks, typically hold the mortgage loans, including the notes, mortgages and other important loan documentation, for the benefit of the mortgage lender who is deemed to own the loan and, if there is a default under the warehouse line, for the benefit of the warehouse lender. As of December 31, 2006 we had a $250 million warehouse facility with Greenwich Capital Financial Products, Inc, a $200 million warehouse facility with Credit Suisse First Boston Mortgage Capital, LLC, and a $300 million master repurchase agreement with Deutsche Bank Structured Products, Inc. The Deutsche Bank facility became operational in January 2006 and has expired on March 26, 2007. The Greenwich Capital facility has expired as of February 4, 2007. Loan Servicing Loan servicing is the administration function of a mortgage loan whereby an entity collects monthly payments from a mortgage borrower and disburses those funds to the appropriate parties. The servicer has to account for all payments, maintain balances in certain accounts for each loan, maintain escrow accounts for real estate taxes and insurance, remit the correct amount of principal and interest monthly to the holder of the loan and handle foreclosures as required. Any loans that we originated and retained for our portfolio have their servicing handled by Cenlar Federal Savings Bank (“Cenlar”), a wholesale bank specializing in mortgage sub-servicing nationwide. Under this arrangement, Cenlar acts as an intermediary between us and the borrower. It collects payments from borrowers, handles accounting and remittance of the payments, handles escrow accounts and does certain tax reporting. As our retained loans are securitized, Cenlar continues to service those loans and reports to the securities trustee or master servicer, as appropriate. For a loan originated and sold to third parties, the servicing rights are sold upon the sale of the loan. We may choose to own in NYMC, for periods usually not more than 90 days, certain loans designated as held for sale to third parties in order to increase earnings. In these cases, we believe there is a large enough spread between the mortgage loan interest rate and the interest rate paid on the applicable warehouse line to make any additional risk in carrying those loans on our balance sheet worthwhile. In these cases, and during the interim period between the time we fund (and subsequently own) a loan and sell the loan to a third party, we service loans through Cenlar as well. Loan servicing provided by Cenlar is provided on a private label basis, meaning that Cenlar employees will identify themselves as being our representatives and correspondence regarding loans is on our letterhead. The benefit to us of this arrangement is that we pay for loan services as we use them, without a significant investment in personnel, systems and equipment. In addition, since Cenlar sub-services on our behalf and reports directly to us, we are quickly made aware of any customer wishing for an early payoff of their loan through refinancing or sale of their home. As a result, we can quickly respond to customer needs and make immediate efforts reestablishing customer contact in order to capture the potential payoff of a customer’s loan with another loan product (potential refinancing, modification or new purchase mortgage) that suits their needs. 10  CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS This Annual Report on Form 10-K contains certain forward-looking statements. Forward looking statements are those which are not historical in nature. They can often be identified by their inclusion of words such as “will,” “anticipate,” “estimate,” “should,” “expect,” “believe,” “intend” and similar expressions. Any projection of revenues, earnings or losses, capital expenditures, distributions, capital structure or other financial terms is a forward-looking statement. Certain statements regarding the following particularly are forward-looking in nature: It is important to note that the description of our business in general and our investment in mortgage loans and mortgage-backed securities holdings in particular, is a statement about our operations as of a specific point in time. It is not meant to be construed as an investment policy, and the types of assets we hold, the amount of leverage we use, the liabilities we incur and other characteristics of our assets and liabilities are subject to reevaluation and change without notice. Our forward-looking statements are based upon our management’s beliefs, assumptions and expectations of our future operations and economic performance, taking into account the information currently available to us. Forward-looking statements involve risks and uncertainties, some of which are not currently known to us that might cause our actual results, performance or financial condition to be materially different from the expectations of future results, performance or financial condition we express or imply in any forward-looking statements. Some of the important factors that could cause our actual results, performance or financial condition to differ materially from expectations are: • our business strategy; • the potential consummation of the disposition of each of our retail and wholesale mortgage lending businesses; • our consideration of strategic options, including the possible sale or merger of NYMT or raising capital under a passive REIT business model; • future performance, developments, market forecasts or projected dividends; and • projected capital expenditures. • our proposed portfolio strategy may be changed or modified by our management without advance notice to stockholders, and that we may suffer losses as a result of such modifications or changes; • risks associated with the availability of liquidity; • risks associated with the use of leverage; • risks associated with non-performing assets; • interest rate mismatches between our mortgage-backed securities and our borrowings used to fund such purchases; • changes in interest rates and mortgage prepayment rates; • effects of interest rate caps on our adjustable-rate mortgage-backed securities; • the degree to which our hedging strategies may or may not protect us from interest rate volatility; • potential impacts of our leveraging policies on our net income and cash available for distribution; • our board’s ability to change our operating policies and strategies without notice to you or stockholder approval; 11  We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. In light of these risks, uncertainties and assumptions, the events described by our forward-looking events might not occur. We qualify any and all of our forward-looking statements by these cautionary factors. In addition, you should carefully review the risk factors described in other documents we file from time to time with the Securities and Exchange Commission, including the Company’s registration statement on Form S-3 (File No. 333-127400). This Annual Report on Form 10-K contains market data, industry statistics and other data that have been obtained from, or compiled from, information made available by third parties. We have not independently verified their data. Competition When we invest in mortgage-backed securities, mortgage loans and other investment assets, we compete with a variety of institutional investors, including other REITs, insurance companies, mutual funds, hedge funds, pension funds, investment banking firms, banks and other financial institutions that invest in the same types of assets. As we seek to expand our business, we face a greater number of competitors, many of whom are well-established in the markets we seek to penetrate. Many of these investors have greater financial resources and access to lower costs of capital than we do. The existence of these competitive entities, as well as the possibility of additional entities forming in the future, may increase the competition for the acquisition of mortgage assets, resulting in higher prices and lower yields on assets. Personnel As of December 31, 2006, we employed 616 people. Of this number, 327 were loan officers dedicated to originating loans. As part of the sale of the wholesale lending business, Tribeca Lending hired approximately 62 employees. Upon the sale of the retail mortgage lending platform and related assets to Indymac, substantially all retail mortgage lending related employees were hired by Indymac. As of the completion of these two transactions, we will employ approximately 40 people. Certain Federal Income Tax Considerations and Our Status as a REIT We have elected to be taxed as a REIT under the federal income tax laws. As such, we operate in such a manner as to qualify for taxation as a REIT under the federal income tax laws, and we intend to continue to operate in such a manner, but no assurance can be given that we will operate in a manner so as to qualify or remain qualified as a REIT. • the other important factors described in this Annual Report on Form 10-K, including those under the captions “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Risk Factors,” and “Quantitative and Qualitative Disclosures about Market Risk.” 12  As a REIT, we generally will not be subject to federal income tax on the REIT taxable income that we distribute to our stockholders, but taxable income generated by NYMC, our taxable REIT subsidiary, is subject to regular corporate income tax. The benefit of REIT tax status is a tax treatment that avoids “double taxation,” or taxation at both the corporate and stockholder levels, that generally applies to distributions by a corporation to its stockholders. Summary Requirements for Qualification Organizational Requirements A REIT is a corporation, trust, or association that meets each of the following requirements: 1) It is managed by one or more trustees or directors. 2) Its beneficial ownership is evidenced by transferable shares, or by transferable certificates of beneficial interest. 3) It would be taxable as a domestic corporation, but for the REIT provisions of the federal income tax laws. 4) It is neither a financial institution nor an insurance company subject to special provisions of the federal income tax laws. 5) At least 100 persons are beneficial owners of its shares or ownership certificates. 6) Not more than 50% in value of its outstanding shares or ownership certificates is owned, directly or indirectly, by five or fewer individuals, which the federal income tax laws define to include certain entities, during the last half of any taxable year. 7) It elects to be a REIT, or has made such election for a previous taxable year, and satisfies all relevant filing and other administrative requirements established by the IRS that must be met to elect and maintain REIT status. 8) It meets certain other qualification tests, described below, regarding the nature of its income and assets. We must meet requirements 1 through 4 during our entire taxable year and must meet requirement 5 during at least 335 days of a taxable year of 12 months, or during a proportionate part of a taxable year of less than 12 months. Qualified REIT Subsidiaries. A corporation that is a “qualified REIT subsidiary” is not treated as a corporation separate from its parent REIT. All assets, liabilities, and items of income, deduction, and credit of a “qualified REIT subsidiary” are treated as assets, liabilities, and items of income, deduction, and credit of the REIT. A “qualified REIT subsidiary” is a corporation, all of the capital stock of which is owned by the REIT. Thus, in applying the requirements described herein, any “qualified REIT subsidiary” that we own will be ignored, and all assets, liabilities, and items of income, deduction, and credit of such subsidiary will be treated as our assets, liabilities, and items of income, deduction, and credit. Taxable REIT Subsidiaries . A REIT is permitted to own up to 100% of the stock of one or more “taxable REIT subsidiaries,” or TRSs. A TRS is a fully taxable corporation that may earn income that would not be qualifying income if earned directly by the parent REIT. Overall, no more than 20% of the value of a REIT’s assets may consist of stock or securities of one or more TRSs. A TRS will pay income tax at regular corporate rates on any income that it earns. In addition, the TRS rules limit the deductibility of interest paid or accrued by a TRS to its parent REIT to assure that the TRS is subject to an appropriate level of corporate taxation. We have elected for NYMC to be treated as a TRS. NYMC is subject to corporate income tax on its taxable income, which is its net income from loan originations and sales. Qualified REIT Assets On the last day of each calendar quarter, at least 75% of the value of our assets (which includes any assets held through a qualified REIT subsidiary) must consist of qualified REIT assets — primarily, real estate, mortgage loans secured by real estate, and certain mortgage-backed securities (“Qualified REIT Assets”), government securities, cash, and cash items. We believe that substantially all of our assets are and will continue to be Qualified REIT Assets. On the last day of each calendar quarter, of the assets not included in the foregoing 75% asset test, the value of securities that we hold issued by any one issuer may not exceed 5% in value of our total assets and we may not own more than 10% of the voting power or value of any one issuer’s outstanding securities (with an exception for securities of a qualified REIT subsidiary or of a taxable REIT subsidiary). In addition, the aggregate value of our securities in taxable REIT subsidiaries cannot exceed 20% of our total assets. We monitor the purchase and holding of our assets for purposes of the above asset tests and seek to manage our portfolio to comply at all times with such tests. 13  We intend to limit substantially all of the assets that we acquire to Qualified REIT Assets. Our strategy to maintain REIT status may limit the type of assets, including hedging contracts and other assets that we otherwise might acquire. We may from time to time hold, through one or more taxable REIT subsidiaries, assets that, if we held them directly, could generate income that would have an adverse effect on our qualification as a REIT or on certain classes of our stockholders. Gross Income Tests We must meet the following separate income-based tests each year: 1. The 75% Test. At least 75% of our gross income for the taxable year must be derived from Qualified REIT Assets. Such income includes interest (other than interest based in whole or in part on the income or profits of any person) on obligations secured by mortgages on real property, rents from real property, gain from the sale of Qualified REIT Assets, and qualified temporary investment income or interests in real property. The investments that we have made and intend to continue to make will give rise primarily to mortgage interest qualifying under the 75% income test. 2. The 95% Test. At least 95% of our gross income for the taxable year must be derived from the sources that are qualifying for purposes of the 75% test, and from dividends, interest or gains from the sale or disposition of stock or other assets that are not dealer property. Distributions We must distribute to our stockholders on a pro rata basis each year an amount equal to at least (i) 90% of our taxable income before deduction of dividends paid and excluding net capital gain, plus (ii) 90% of the excess of the net income from foreclosure property over the tax imposed on such income by the Internal Revenue Code, less (iii) any “excess non-cash income.” We have made and intend to continue to make distributions to our stockholders in sufficient amounts to meet the distribution requirement for REIT qualification. Item 1A. RISK FACTORS An investment in our securities involves various risks. You should carefully consider the following risk factors and the various other factors identified in or incorporated by reference into any other documents filed by us with the Securities and Exchange Commission before making an investment decision involving our securities. The risks discussed herein can adversely affect our business, liquidity, operating results, prospects, and financial condition. This could cause the market price of our securities to decline and could cause you to lose all or part of your investment. The risk factors described below are not the only risks that may affect us. Additional risks and uncertainties not presently known to us also may adversely affect our business, liquidity, operating results, prospects, and financial condition. 14  Holding loans for sale or securitization requires a significant amount of cash or warehouse facility capacity which if not available, could cause our business and financial performance to be significantly harmed. By holding loans pending sale or securitization, we may also require cash in the event our warehouse facilities elect to not fund the entire principal balance of our loans, or if our loans are financed past the permitted term under our warehouse lines, or decline in value, we may need cash to reduce our borrowings under the warehouse facilities to the permitted level. We also need cash to fund or satisfy, as the case may be, our working capital, financial covenants in our warehouse facilities and other needs. We finance the majority of the loans we hold for sale or securitization by borrowing from our warehouse facilities and pledging the loans made as collateral. If the value of the loans we pledge as collateral declines, we may need cash to offset any decline in value. Our primary sources of cash consist of: It is possible that our warehouse lenders could experience changes in their ability to advance funds to us, independent of our performance or the performance of our loans. In addition, if the regulatory capital requirements imposed on our lenders change, our lenders may be required to increase significantly the cost of the lines of credit that they provide to us. As of December 31, 2006, we financed substantially all of our loan originations through warehouse facilities. Each of these facilities may be terminated by the lender upon an event of default, subject in some cases to cure periods. As of December 31, 2006, the aggregate balance outstanding under these facilities was approximately $173.0 million. As of April 1, 2007, we have exited the mortgage lending business and accordingly have terminated two of our three warehouse facilities. If we are not able to renew this remaining warehouse facility or arrange for new financing on terms acceptable to us, or if we default on our covenants or are otherwise unable to access funds under this facility, we may not be able to continue to finance mortgage loans held for sale, which would have a material adverse effect on our business, financial condition, liquidity and results of operations. During the year ended December 31, 2006, we determined that we were not in compliance with certain of these financial covenants (primarily profitability and total net worth covenants). We received waivers from all lenders concerning such non-compliance. If we fail to comply with financial covenants in any of our warehouse facility in the future and are not able to cure the non-compliance or obtain the necessary waivers, this facility may be terminated by the lender. We generally fund less than 100% of a loan balance with warehouse debt, requiring us to invest cash to the extent the originated balance is not funded by the warehouse facility. This funding shortfall ranges from 0% to 2% on loans financed under warehouse facilities. The longer loans remain funded by a warehouse facility the more our warehouse lenders require us to advance against the loans. In addition, our warehouse lenders will require us to have on deposit a cash margin against funded loans based upon the loan’s estimated market value. The market for any senior or subordinate securities we issue through securitizations could become temporarily illiquid or trade at steep discounts, thereby reducing the cash flow we receive over time from our loans subject to the securities. In addition, our operating cash flow could be reduced if we sell more loans at a discount than at a premium or at lower premiums. Cash flows from principal repayments could be reduced should prepayments slow or should credit quality trends deteriorate (in the latter case since, for certain of our assets, credit tests must be met for us to receive cash flows). In the event that our liquidity needs exceed our access to liquidity, we may need to sell assets at an inopportune time, thus reducing our earnings. Adverse cash flow could threaten our continued ability to satisfy the income and asset tests necessary to maintain our status as a REIT or our solvency. Risks Related to Our Business and Our Company Our common stock could be delisted by the New York Stock Exchange if we do not comply with its continued listing standards. Our common stock is listed on the New York Stock Exchange, or NYSE. Under the NYSE’s current listing standards, we are required to have market capitalization or shareholders' equity of more than $25 million in order to maintain compliance with continued listing standards. As of March 28, 2007, our market capitalization was approximately $42.7 million. We cannot assure you that we can continue to comply with • borrowings, including under our warehouse facilities; • our net interest income; • the proceeds from the sale of our loans; and • net proceeds from the sale of our securities. the listing procedures and that the NYSE will maintain our listing in the future. In the event that our common stock is delisted by the NYSE, or if it becomes apparent to us that we will be unable to meet the NYSE’s continued listing criteria in the foreseeable future, we will seek to have our stock listed or quoted on another national securities exchange or quotation system. However, we cannot assure you that, if our common stock is listed or quoted on such other exchange or system, the market for our common stock will be as liquid as it has been on the NYSE. As a result, if we are delisted by the NYSE or transfer our listing to another exchange or quotation system, the market price for our common stock may become more volatile than it has been historically. 15  Delisting of our common stock would likely cause a reduction in the liquidity of an investment in our common stock. Delisting also could reduce the ability of holders of our common stock to purchase or sell our securities as quickly and inexpensively as they would have been able to do had our common stock remained listed. This lack of liquidity also could make it more difficult for us to raise capital in the future. We may experience a decline in the market value of our assets The market value of the interest-bearing assets that we have acquired and intend to continue to acquire, most notably mortgage-backed securities and originated or purchased residential mortgage loans and any related hedging instruments, may move inversely with changes in interest rates. We anticipate that increases in interest rates will tend to decrease our net income. A decline in the market value of our investments may limit our ability to borrow or result in lenders requiring additional collateral or initiating margin calls under our repurchase agreements. As a result, we could be required to sell some of our investments under adverse market conditions in order to maintain liquidity. If such sales are made at prices lower than the amortized costs of such investments, we will incur losses. A default under our repurchase agreements could also result in the liquidation of the underlying investments used as collateral and result in a loss equal to the difference between the value of the collateral and the amount owed under our repurchase agreements. If we are unable to leverage our equity to the extent we currently anticipate, the returns on our portfolio could be diminished, which may limit or eliminate our ability to make distributions to our stockholders. If we are limited in our ability to leverage our assets, the returns on our portfolio may be harmed. A key element of our strategy is our use of leverage to increase the size of our portfolio in an attempt to enhance our returns. As of December 31, 2006, our leverage ratio, defined as total financing facilities less subordinated debentures outstanding divided by total stockholders' equity plus subordinated debentures at December 31, 2006 was 10 to 1. Our repurchase agreements are not currently committed facilities, meaning that the counterparties to these agreements may at any time choose to restrict or eliminate our future access to the facilities and we have no other committed credit facilities through which we may leverage our equity. If we are unable to leverage our equity to the extent we currently anticipate, the returns on our portfolio could be diminished, which may limit or eliminate our ability to make distributions to our stockholders. We currently leverage our equity, which will exacerbate any losses we incur on our current and future investments and may reduce cash available for distribution to our stockholders. We currently leverage our equity through borrowings, generally through the use of repurchase agreements, bank credit facilities, securitizations, including the issuance of collateralized debt securities, which are obligations issued in multiple classes secured by an underlying portfolio of securities, and other borrowings. The amount of leverage we incur varies depending on our ability to obtain credit facilities and our lenders’ estimates of the value of our portfolio’s cash flow. The return on our investments and cash available for distribution to our stockholders may be reduced to the extent that changes in market conditions cause the cost of our financing to increase relative to the income that can be derived from the assets we hold in our portfolio. Further, the leverage on our equity may exacerbate any losses we incur. Our debt service payments will reduce the net income available for distributions to our stockholders. We may not be able to meet our debt service obligations and, to the extent that we cannot, we risk the loss of some or all of our assets to foreclosure or sale to satisfy our debt obligations. We currently leverage through repurchase agreements. A decrease in the value of the assets may lead to margin calls which we will have to satisfy. While we have experienced normal course of business margin calls primarily related to the changing interest rate environment, significant decreases in asset valuation could lead to increased margin calls. We may not have the funds available to satisfy any such margin calls. We have a target overall leverage amount of 8 to 12 times our equity, but there is no established limitation, other than may be required by our financing arrangements, on our leverage ratio or on the aggregate amount of our borrowings. 16  Interest rate fluctuations may cause losses. We believe our primary interest rate exposure relates to our mortgage loans, mortgage-backed securities and variable-rate debt, as well as the interest rate swaps and caps that we utilize for risk management purposes. Changes in interest rates may affect our net interest income, which is the difference between the interest income we earn on our interest-earning assets and the interest expense we incur in financing these assets. Changes in the level of interest rates also can affect our ability to acquire mortgage loans or mortgage-backed securities, the value of our assets and our ability to realize gains from the sale of such assets. In a period of rising interest rates, our interest expense could increase while the interest we earn on our assets would not change as rapidly. This would adversely affect our profitability. Our operating results depend in large part on differences between income received from our assets, net of credit losses, and our financing costs. We anticipate that in most cases, for any period during which our assets are not match-funded, the income from such assets will adjust more slowly to interest rate fluctuations than the cost of our borrowings. Consequently, changes in interest rates, particularly short-term interest rates, may significantly influence our net income. We anticipate that increases in interest rates will tend to decrease our net income. Interest rate fluctuations resulting in our interest expense exceeding our interest income would result in operating losses for us and may limit or eliminate our ability to make distributions to our stockholders. We have a limited operating history with respect to securitizing mortgage loans or managing a portfolio of mortgage securities and we may not be able to complete loan securitizations in the future on favorable terms, or at all, the result of which would have a material adverse effect on our results of operations and limit our ability to make cash available for distribution to our stockholders. Historically, NYMC’s business has consisted of the origination and sale of mortgage loans of all types, with a particular focus on prime adjustable- and fixed-rate, first lien, residential purchase mortgage loans. Our strategy includes building a leveraged portfolio of residential mortgage loans comprised of prime adjustable-rate mortgage loans, including hybrid adjustable-rate loans that have an initial fixed-rate period, and other qualifying loans or securities. We have a limited history with respect to securitizing mortgage loans or managing a portfolio of mortgage securities, having completed just four securitizations and having managed an investment portfolio of mortgages and mortgage securities commencing only after the completion of our initial public offering in June 2004. Our ability to complete securitizations in the future on favorable terms will depend upon a number of factors, including the experience and ability of our management team, conditions in the securities markets generally, conditions in the mortgage-backed securities market specifically, the performance of our portfolio of securitized loans and our ability to obtain leverage. In addition, poor performance of any pool of loans we do securitize could increase the expense of any subsequent securitization we bring to market. Accordingly, a decline in the securitization market or a change in the market’s demand for our shares of common stock could have a material adverse effect on our results of operations, financial condition and business prospects. If we are unable to securitize efficiently the adjustable-rate and hybrid mortgage loans that we acquire, then our revenues for the duration of our investment in those loans would decline, which would lower our earnings for the time the loans remain in our portfolio. We cannot assure you that we will be able to complete loan securitizations in the future on favorable terms, or at all. Excessive supply of or reduced demand for mortgage-backed securities in the market for these securities may cause the market to require a higher yield on our mortgage-backed securities and thereby cause a decline in the value of our portfolio. The mortgage-backed securities we own, or will own, are also subject to spread risk. The majority of these securities are, or will be, adjustable-rate securities valued based on a market credit spread to U.S. Treasury security yields. In other words, their value is dependent on the yield demanded on such securities by the market based on their credit relative to U.S. Treasury securities. Excessive supply of such securities combined with reduced demand will generally cause the market to require a higher yield on such securities, resulting in the use of a higher or wider spread over the benchmark rate (usually the applicable U.S. Treasury security yield) to value such securities. Under such conditions, the value of our securities portfolio will tend to decline. Conversely, if the spread used to value such securities were to decrease or tighten, the value of our securities portfolio will tend to increase. Such changes in the market value of our portfolio could adversely affect our net equity, net income or cash flow directly through their impact on unrealized gains or losses on available-for-sale securities, and therefore our ability to realize gains on such securities, or indirectly through their impact on our ability to borrow and access capital, all of which could adversely affect our results of operations and ability to make cash distributions to our stockholders. 17  In addition, upward shifts in the U.S. Treasury yield curve, which represents the market’s expectations of future interest rates, would generally cause investors to demand a higher yield on our mortgage-backed securities. Such events would affect our portfolio, financial position and results of operations in a manner similar to those described above. Loan prepayment rates may increase, adversely affecting yields on our planned investments. The value of the assets we have acquired and intend to continue to acquire may be affected by prepayment rates on mortgage loans. Prepayment rates on mortgage loans are influenced by changes in current interest rates and a variety of economic, geographic and other factors beyond our control, and consequently, such prepayment rates cannot be predicted with certainty. In periods of declining mortgage loan interest rates, prepayments on mortgage loans generally increase. If general interest rates decline as well, the proceeds of such prepayments received during such periods are likely to be reinvested by us in assets with lower yields than the yields on the assets that were prepaid. In addition, the market value of any mortgage assets may, because of the risk of prepayment, benefit less than other fixed-income securities from declining interest rates. Conversely, in periods of rising interest rates, prepayments on mortgage loans generally decrease, in which case we would not have the prepayment proceeds available to invest in assets with higher yields. Under certain interest rate and prepayment scenarios, we may fail to recoup fully our cost of acquisition of certain investments. Our hedging transactions may limit our gains or result in losses. We use derivatives, primarily interest rate swaps and caps, to hedge our liabilities and this has certain risks, including the risk that losses on a hedging transaction will reduce the amount of cash available for distribution to our stockholders and that such losses may exceed the amount invested in such instruments. Our board of directors has adopted a general policy with respect to the use of derivatives, and which generally allows us to use derivatives when we deem appropriate for risk management purposes, but does not set forth specific guidelines. To the extent consistent with maintaining our status as a REIT, we may use derivatives, including interest rate swaps and caps, options, term repurchase contracts, forward contracts and futures contracts, in our risk management strategy to limit the effects of changes in interest rates on our operations. However, a hedge may not be effective in eliminating the risks inherent in any particular position. Our profitability may be adversely affected during any period as a result of the use of derivatives in a hedging transaction. The mortgage loans we typically invest in and the mortgage loans underlying the mortgage-backed securities we typically invest in are subject to risks of delinquency, foreclosure and loss, which could result in losses to us. Residential mortgage loans are secured by residential properties and are subject to risks of delinquency and foreclosure, and risks of loss. The ability of a borrower to repay a loan secured by residential property typically is dependent primarily upon the income or assets of the borrower, but also may be affected by property location and condition, competition and demand for comparable properties, changes in zoning laws, environmental contamination, changes in national, regional or local economic conditions, declines in regional or local real estate values, increases in interest rates, real estate tax rates, changes in governmental rules and regulations and acts of God, terrorism, social unrest and civil disturbances. In the event of any default under a mortgage loan held directly by us, we will bear a risk of loss of principal to the extent of any deficiency between the value of the collateral that we can realize upon foreclosure and sale and the principal and accrued interest of the mortgage loan. In the event of the bankruptcy of a mortgage loan borrower, the mortgage loan to such borrower will be deemed to be secured only to the extent of the value of the underlying collateral at the time of bankruptcy (as determined by the bankruptcy court), and the lien securing the mortgage loan will be subject to the avoidance powers of the bankruptcy trustee or debtor-in-possession to the extent the lien is unenforceable under state law. Foreclosure of a mortgage loan can be an expensive and lengthy process. The occurrence of an event of default or foreclosure could have a material adverse effect on our cash flow from operations and could limit the amount we have available for payment of our debt obligations and distribution to our stockholders. In addition, residential mortgage-backed securities evidence interests in or are secured by pools of residential mortgage loans. Accordingly, the mortgage-backed securities we typically invest in are subject to all of the risks of the underlying mortgage loans. Our directors have approved broad investment guidelines for us and do not approve each investment we make. Our board of directors has given us substantial discretion to invest in accordance with our broad investment guidelines. Our board of directors periodically reviews our investment guidelines and our portfolio. However, our board of directors does not review each proposed investment. In addition, in conducting periodic reviews, our directors rely primarily on information provided to them by our executive officers. Furthermore, transactions entered into by us may be difficult or impossible to unwind by the time they are reviewed by our directors. We have substantial discretion within our broad investment guidelines in determining the types of assets we may decide are proper investments for us. 18  We may be required to repurchase mortgage loans that we have sold or to indemnify holders of our mortgage-backed securities. If any of the mortgage loans that we originated and sold, or that we pledge or pledged to secure mortgage-backed securities that we issue in our securitizations, do not comply with the representations and warranties that we make about the characteristics of the loans, the borrowers and the properties securing the loans, we may be required to repurchase those loans in the case of the loans that we have sold, or replace them with substitute loans or cash in the case of securitized loans. If this occurs, we may have to bear any associated losses directly. In addition, in the case of loans that we have sold, we may be required to indemnify the purchasers of such loans for losses or expenses incurred as a result of a breach of a representation or warranty made by us. Repurchased loans typically require an allocation of working capital to carry on our books, and our ability to borrow against such assets is limited, which could limit the amount by which we can leverage our equity. Any significant repurchases or indemnification payments could significantly harm our cash flow and results of operations and limit our ability to make distributions to our stockholders. 19  Risks Related to Our Company, Structure and Change in Control Provisions Our executive officers have agreements that provide them with benefits in the event their employment is terminated following a change in control. We have entered into agreements with the members of our senior management team, Messrs. Akre, Mumma and Howe that provides them with severance benefits if their employment ends under specified circumstances following a change in control. These benefits could increase the cost to a potential acquirer of us and thereby prevent or discourage a change in control that might involve a premium price for your shares or otherwise be in your best interest. The stock ownership limit imposed by our charter may inhibit market activity in our common stock and may restrict our business combination opportunities. In order for us to maintain our qualification as a REIT under the Internal Revenue Code, not more than 50% in value of the issued and outstanding shares of our capital stock may be owned, actually or constructively, by five or fewer individuals (as defined in the Internal Revenue Code to include certain entities) at any time during the last half of each taxable year (other than our first year as a REIT). Attribution rules in the Internal Revenue Code apply to determine if any individual or entity actually or constructively owns our capital stock for purposes of this requirement. Additionally, at least 100 persons must beneficially own our capital stock during at least 335 days of each taxable year (other than our first year as a REIT). To help ensure that we meet these tests, our charter restricts the acquisition and ownership of shares of our capital stock. Our charter, with certain exceptions, authorizes our directors to take such actions as are necessary and desirable to preserve our qualification as a REIT and provides that, unless exempted by our board of directors, no person other than Mr. Schnall may own more than 9.4% in value of the outstanding shares of our capital stock. Our charter provides that Mr. Schnall may own up to 12.0% of our outstanding common stock. Our board of directors may grant an exemption from that ownership limit in its sole discretion, subject to such conditions, representations and undertakings as it may determine. This ownership limit could delay or prevent a transaction or a change in control of our company under circumstances that otherwise could provide our stockholders with the opportunity to realize a premium over the then current market price for our common stock or would otherwise be in the best interests of our stockholders. Certain provisions of Maryland law and our charter and bylaws could hinder, delay or prevent a change in control which could have an adverse effect on the value of our securities. Certain provisions of Maryland law, our charter and our bylaws may have the effect of delaying, deferring or preventing transactions that involve an actual or threatened change in control. These provisions include the following, among others: Although our board of directors has adopted a resolution exempting us from application of the Maryland Business Combination Act and our bylaws provide that we are not subject to the Maryland Control Share Acquisition Act, our board of directors may elect to make the “business combination” statute and “control share” statute applicable to us at any time and may do so without stockholder approval. Maintenance of our Investment Company Act exemption imposes limits on our operations. We have conducted and intend to continue to conduct our operations so as not to become regulated as an investment company under the Investment Company Act of 1940, as amended. We believe that there are a number of exemptions under the Investment Company Act that are applicable to us. To maintain the exemption, the assets that we acquire are limited by the provisions of the Investment Company Act and the • our charter provides that, subject to the rights of one or more classes or series of preferred stock to elect one or more directors, a director may be removed with or without cause only by the affirmative vote of holders of at least two-thirds of all votes entitled to be cast by our stockholders generally in the election of directors; • our bylaws provide that only our board of directors shall have the authority to amend our bylaws; • under our charter, our board of directors has authority to issue preferred stock from time to time, in one or more series and to establish the terms, preferences; • and rights of any such series, all without the approval of our stockholders; • the Maryland Business Combination Act; and • the Maryland Control Share Acquisition Act. rules and regulations promulgated under the Investment Company Act. In addition, we could, among other things, be required either (a) to change the manner in which we conduct our operations to avoid being required to register as an investment company or (b) to register as an investment company, either of which could have an adverse effect on our operations and the market price for our securities. 20  Tax Risks Related to Our Business and Structure Failure to qualify as a REIT would adversely affect our operations and ability to make distributions. We have operated and intend to continue to operate so to qualify as a REIT for federal income tax purposes. Our continued qualification as a REIT will depend on our ability to meet various requirements concerning, among other things, the ownership of our outstanding stock, the nature of our assets, the sources of our income, and the amount of our distributions to our stockholders. If we fail to qualify as a REIT in any taxable year, we would be subject to federal income tax (including any applicable alternative minimum tax) on our taxable income at regular corporate rates. In addition, if we do not qualify for certain statutory relief provisions we generally would be disqualified from treatment as a REIT for the four taxable years following the year in which we lost our REIT status. Losing our REIT status would reduce our net earnings available for investment or distribution to stockholders because of the additional tax liability, and we would no longer be required to make distributions to stockholders. Additionally, we might be required to borrow funds or liquidate some investments in order to pay the applicable tax. REIT distribution requirements could adversely affect our liquidity. In order to qualify as a REIT, we generally are required each year to distribute to our stockholders at least 90% of our REIT taxable income, excluding any net capital gain. To the extent that we distribute at least 90%, but less than 100% of our REIT taxable income, we will be subject to corporate income tax on our undistributed REIT taxable income. In addition, we will be subject to a 4% nondeductible excise tax on the amount, if any, by which certain distributions paid by us with respect to any calendar year are less than the sum of (i) 85% of our ordinary REIT income for that year, (ii) 95% of our REIT capital gain net income for that year, and (iii) 100% of our undistributed REIT taxable income from prior years. We have made and intend to continue to make distributions to our stockholders to comply with the 90% distribution requirement and to avoid corporate income tax and the nondeductible excise tax. However, differences in timing between the recognition of REIT taxable income and the actual receipt of cash could require us to sell assets or to borrow funds on a short-term basis to meet the 90% distribution requirement and to avoid corporate income tax and the nondeductible excise tax. Certain of our assets may generate substantial mismatches between REIT taxable income and available cash. Such assets could include mortgage-backed securities we hold that have been issued at a discount and require the accrual of taxable income in advance of the receipt of cash. As a result, our taxable income may exceed our cash available for distribution and the requirement to distribute a substantial portion of our net taxable income could cause us to: in order to comply with the REIT distribution requirements. Further, amounts distributed will not be available to fund investment activities. We expect to fund our investments generally through borrowings from financial institutions, along with securitization financings. If we fail to obtain debt or equity capital in the future, it could limit our ability to grow, which could have a material adverse effect on the value of our common stock. Dividends payable by REITs do not qualify for the reduced tax rates on dividend income from regular corporations. The maximum U.S. federal income tax rate for dividends payable to domestic shareholders that are individuals, trust and estates is 15% (through 2008). Dividends payable by REITs, however, are generally not eligible for the reduced rates. Although the reduced U.S. federal income tax rate applicable to dividend income from regular corporate dividends does not adversely affect the taxation of REITs or dividends paid by REITs, the more favorable rate applicable to regular corporate dividends could cause investors who are individuals, trusts and estates to perceive investments in REITs to be relatively less attractive than investments in the stocks of non-REIT corporations that pay dividends, which could adversely affect the value of the shares of REITs, including our common shares. Risks Related to an Investment in Our Common Stock • sell assets in adverse market conditions, • borrow on unfavorable terms or • distribute amounts that would otherwise be invested in future acquisitions, capital expenditures or repayment of debt Our common stock trades in a limited market which could hinder your ability to sell our common stock. Our equity market capitalization places us at the low end of market capitalization among all public REITs. Our common stock experiences limited trading volume, and many investors may not be interested in owning our common stock because of the inability to acquire or sell a substantial block of our common stock at one time. This illiquidity could have an adverse effect on the market price of our common stock. A substantial sale, or series of sales, of our common stock could have a material adverse effect on the market price of our common stock. 21  The market price and trading volume of our common stock may be volatile. The market price of our common stock may become highly volatile and subject to wide fluctuations. In addition, the trading volume in our common stock may fluctuate and cause significant price variations to occur. Some of the factors that could result in fluctuations in the price or trading volume of our common stock include, among other things: actual or anticipated changes in our current or future financial performance; changes in market interest rates and general market and economic conditions. We cannot assure you that the market price of our common stock will not fluctuate or decline significantly. Item 1B. UNRESOLVED STAFF COMMENTS None. Item 2. PROPERTIES As of March 31, 2007, our principal executive and administrative offices are located at 1301 Avenue of the Americas, 7th floor, New York, New York 10019. On November 13, 2006, we entered into an Assignment and Assumption of Sublease with Lehman Brothers Holdings Inc. (“Lehman”). Under the agreement, we assigned the sublease for this space to Lehman. We intend to relocate our corporate headquarters to a smaller facility at a location that is yet to be determined. Until March 31, 2007 we also operated retail loan origination sales offices at 47 (25 branches and 22 branch satellite) locations in 14 states. All of our facilities were leased. The aggregate annual rent for these locations was approximately $4.8 million. Upon consummation of the sale of our retail mortgage origination platform assets to Indymac, we assigned substantially all of the leases for the branch offices to Indymac. Further details of our facilities are as follows: (1) This lease was assigned to and assumed by Tribeca Lending effective February 22, 2007 in connection with the sale of the wholesale mortgage origination platform described further in note 22 of the consolidated financial statements. (2) Substantially all of these leases were assigned and assumed by Indymac effective March 31, 2007 in connection with the sale of substantially all of the operating assets of our retail mortgage lending platform described further in note 22 of the consolidated financial statements. Item 3. LEGAL PROCEEDINGS The Company is at times subject to various legal proceedings arising in the ordinary course of business. The Company does not believe that any of its current legal proceedings, individually or in the aggregate, will have a material adverse effect on its operations or financial condition. Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS None. Location Business Activity Business Segment New York City Corporate Headquarters and Mortgage Origination Mortgage Portfolio Management and Mortgage Lending Bridgewater, New Jersey(1) Wholesale Lending Mortgage Lending Various-47 locations in 14 states(2) Retail Mortgage Origination Mortgage Lending 22  PART II Item 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters Our common stock is traded on the New York Stock Exchange under the trading symbol “NTR”. As of March 15, 2007, we had 18,077,880 shares of common stock outstanding, and as of March 5, 2007, there were 87 holders of record. This figure does not reflect the beneficial ownership of shares held in nominee name. The following table sets forth, for the periods indicated, the high, low and quarter end closing sales prices per share of our common stock on the NYSE and the cash dividends paid or payable per share of common stock. In order to qualify for the tax benefits accorded to a REIT under the Code, we intend to pay quarterly dividends such that all or substantially all of our taxable income each year (subject to certain adjustments) is distributed to our stockholders. All of the distributions that we make will be at the discretion of our Board of Directors and will depend on our earnings and financial condition, maintenance of REIT status and any other factors that the Board of Directors deems relevant. During 2006, taxable dividend distributions for the Company’s common stock were $0.63 per share. The Company’s common stock is currently listed under the CUSIP #649604-10-5 and trades under the NYSE ticker symbol NTR. For tax reporting purposes, the 2006 taxable dividend distributions will be classified as follows: $0.02401 as ordinary income and $0.60599 as a return of capital. The following table contains this information on a quarterly basis. Purchases of Equity Securities by the Issuer and Affiliated Purchasers Common Stock Prices Cash Dividends High Low Close Declared Paid or Payable Amount per Share Year Ended December 31, 2006 Fourth quarter $ 4.04 $ 2.60 $ 3.05 12/18/06 1/26/07 $ 0.05 Third quarter 4.85 3.65 3.86 9/18/06 10/26/06 0.14 Second quarter 5.56 3.80 4.00 6/15/06 7/26/06 0.14 First quarter 6.88 4.15 5.40 3/6/06 4/26/06 0.14 Common Stock Prices Cash Dividends High Low Close Declared Paid or Payable Amount per Share Year Ended December 31, 2005 Fourth quarter $ 7.50 $ 5.51 $ 6.62 12/09/05 1/26/06 $ 0.21 Third quarter 9.20 7.00 7.47 9/26/05 10/26/05 0.21 Second quarter 10.23 9.04 9.07 6/02/05 07/26/05 0.25 First quarter 11.30 9.90 10.22 03/11/05 04/26/05 0.25 Declaration Date Record Date Payment Date Cash Distribution per share Income Dividends Short-term Capital Gain Total Taxable Ordinary Dividend Return of Capital 12/09/05 1/6/06 1/26/06 $ 0.21 $ 0.00000 $ 0.00000 $ 0.00000 $ 0.21000 3/6/06 4/6/06 4/26/06 $ 0.14 $ 0.00000 $ 0.00000 $ 0.00000 $ 0.14000 6/15/06 7/6/06 7/26/06 $ 0.14 $ 0.00000 $ 0.02401 $ 0.02401 $ 0.11599 9/18/06 10/6/06 10/26/06 $ 0.14 $ 0.00000 $ 0.00000 $ 0.00000 $ 0.14000 Total 2006 Cash Distributions $ 0.63 $ 0.00000 $ 0.02401 $ 0.02401 $ 0.60599  During the year ended December 31, 2006 the Company purchased and retired a total of 67,000 shares of its common stock in open market transactions as part of the share repurchase program announced on November 10, 2005. 23  The shares were repurchased though a broker on the open-market. The plan, funded from available capital, provides that the Company, at management’s discretion, is authorized to repurchase shares of Company common stock from time to time, in the open market or through privately negotiated transactions through December 31, 2015. The plan may be temporarily or permanently suspended or discontinued at any time. The Company has not repurchased any shares since March 2006. Securities Authorized for Issuance Under Equity Compensation Plans The following table sets forth information as of December 31, 2006 with respect to compensation plans under which equity securities of the Company are authorized for issuance. The Company has no such plans that were not approved by security holders. Performance Graph Period Total Number of Shares Purchased as Part of Publicly Announced Plan Average Price Paid Per Share Maximum Number of Shares that May yet be Purchased Under Plan 1/1/06 to 1/31/06 (cid:190) (cid:190) 10,000,000 2/1/06 to 2/28/06 (cid:190) (cid:190) 10,000,000 3/1/06 to 3/31/06 67,000 $ 4.43 9,933,000 Total/Weighted Avg. 67,000 $ 4.43 9,933,000 Plan Category Number of Securities to be Issued upon Exercise of Outstanding Options, Warrants and Rights Weighted Average Exercise Price of Outstanding Options, Warrants and Rights Number of Securities Remaining Available for Future Issuance under Equity Compensation Plans Equity compensation plans approved by security holders 466,500 $ 9.52 878,496  The foregoing graph and chart shall not be deemed incorporated by reference by any general statement incorporating by reference this Annual Report on Form 10-K into any filing under the Securities Act of 1933 or under the Securities Exchange Act of 1934, except to the extent we specifically incorporate this information by reference, and shall not otherwise be deemed filed under those acts. 24  Item 6. SELECTED FINANCIAL DATA The following selected consolidated financial data is derived from our audited consolidated financial statements and the notes thereto for the periods presented and should be read in conjunction with the more detailed information therein and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included elsewhere in this annual report. Operating results are not necessarily indicative of future performance. In connection with the sale of the Company's wholesale mortgage origination platform assets on February 22, 2007 and the sale of its retail mortgage origination platform assets on March 31, 2007, we are required to classify our Mortgage Lending segment as a discontinued operation in accordance with Statement of Financial Accounting Standards No. 144 (see note 12 in the notes to our consolidated financial statements). In connection with this reclassification, we have presented selected financial data below in two different formats. Table 1 provides summary level data for the continuing and discontinued business segments of our company (after giving effect to the reclassification of the Mortgage Lending segment). Table 2 provides selected financial data in greater detail in a form of presentation that is consistent with our prior disclosures under this Item 6. The selected financial data as of and for the years ended December 31, 2006, December 31, 2005 and December 31, 2004, include the operations of NYMT and its consolidated subsidiaries. Included in the selected financial data for the year ended December 31, 2004 are the results of NYMT for the period beginning June 29, 2004 (the closing date of our IPO) and NYMC for the year-to-date period beginning January 1, 2004. Prior to our IPO, NYMT had no operations and, as a result, for all years prior to 2004, the financial data presented is for NYMC only. Table 1: For the Year Ended December 31, 2006 2005 2004 2003 2002 (Dollar amounts in thousands, except per share data) Operating Data: Revenues: Net interest income $ 4,784 $ 12,873 $ 7,924 $ — $ — Income from continuing operations 2,166 3,322 6,899 — — (Loss)/income from discontinued operation-net of tax (17,197 ) (8,662 ) (1,952 ) 13,726 3,750 Net (loss)/income (15,031 ) (5,340 ) 4,947 13,726 3,750 Basic (loss)/income per share EPS (0.83 ) (0.30 ) 0.28 — — Total assets continuing operations 1,107,983 1,542,422 1,413,729 — — Total assets discontinued operation 214,925 248,871 201,034 110,081 83,004 Total liabilities continuing operations 1,063,349 1,458,410 1,306,185 — — Total liabilities discontinued operation $ 187,987 $ 231,925 $ 189,095 $ 90,425 $ 73,016 25  Table 2: For the Year Ended December 31, 2006 2005 2004 2003 2002 (Dollar amounts in thousands, except per share data) Operating Data: Revenues: Interest income $ 81,247 $ 77,476 $ 27,299 $ 7,609 $ 2,986 Interest expense 72,940 60,104 16,013 3,266 1,673 Net Interest Income 8,307 17,372 11,286 4,343 1,313 Gains on sales of mortgage loans 17,987 26,783 20,835 23,031 9,858 Brokered loan fees 10,937 9,991 6,895 6,683 5,241 (Loss)/gain on sale of securities and related hedges (529 ) 2,207 774 — — Loss on sale of current period securitized loans (747 ) — — — — Loan/impairment loss on investment securities (8,285 ) (7,440 ) — — — Miscellaneous 453 232 227 45 15 Total other income 19,816 31,773 28,731 29,759 15,114 Expenses: Salaries and benefits 22,425 30,979 17,118 9,247 5,788 Brokered loan expenses 8,277 7,543 5,276 3,734 2,992 General and administrative expenses 20,946 24,512 13,935 7,395 3,897 Total expenses 51,648 63,034 36,329 20,376 12,677 (Loss)/income before income tax benefit (23,525 ) (13,889 ) 3,688 13,726 3,750 Income tax benefit 8,494 8,549 1,259 — — Net (loss)/income $ (15,031 ) $ (5,340 ) $ 4,947 $ 13,726 $ 3,750 Basic (loss)/income per share $ (0.83 ) $ (0.30 ) $ 0.28 — — Diluted (loss)/income per share $ (0.83 ) $ (0.30 ) $ 0.27 — — Balance Sheet Data: Cash and cash equivalents $ 969 $ 9,056 $ 7,613 $ 4,047 $ 2,746 Mortgage loans held in securitization trusts or held for investment 588,160 780,670 190,153 — — Investment securities available for sale 488,962 716,482 1,204,745 — — Mortgage loans held for sale 106,900 108,271 85,385 36,169 34,039 Due from loan purchasers and escrow deposits pending loan closings 88,351 123,247 96,140 58,862 40,621 Total assets 1,322,908 1,791,293 1,614,762 110,081 83,004 Financing arrangements 988,285 1,391,685 1,470,596 90,425 73,016 Collateralized debt obligations 197,447 228,226 — — — Subordinated debentures 45,000 45,000 — — — Subordinated notes due to members — — — 14,707 — Total liabilities 1,251,336 1,690,335 1,495,280 110,555 76,504 Equity/(deficit) $ 71,572 $ 100,958 $ 119,482 $ (474 ) $ 6,500 Investment Portfolio Data: Average yield on investment portfolio 5.10 % 4.05 % 3.90 % — — Net duration of interest earning assets to liabilities 0.52 yrs 0.91 yrs 0.42 yrs — — Originations Data: Purchase originations $ 1,483,966 $ 1,985,651 $ 1,089,499 $ 803,446 $ 469,404 Refinancing originations 1,060,037 1,451,720 756,006 796,879 407,827 Total originations $ 2,544,003 $ 3,437,371 $ 1,845,505 $ 1,600,325 $ 877,231 Fixed-rate originations $ 1,441,782 $ 1,562,151 $ 878,749 $ 890,172 $ 518,382  Adjustable-rate originations 1,102,221 1,875,220 966,756 710,153 358,849 Total originations $ 2,544,003 $ 3,437,371 $ 1,845,505 $ 1,600,325 $ 877,231 Total mortgage sales $ 1,841,012 $ 2,875,288 $ 1,435,340 $ 1,234,848 $ 633,223 Brokered originations 702,991 562,083 410,165 365,477 244,008 Total originations $ 2,544,003 $ 3,437,371 $ 1,845,505 $ 1,600,325 $ 877,231 Originated Mortgage Loans Retained for Investment: Par amount $ 69.7 $ 555.2 $ 95.1 n/a n/a Weighted average middle credit score 738 734 743 n/a n/a Weighted average LTV 68.02 % 69.62 % 66.58 % n/a n/a Mortgage Loans Sold: Weighted average whole loan sales price over par - all mortgage loans sold 1.45 % 1.52 % 2.02 % 1.75 % 1.52 % Weighted average middle credit score all mortgage loans sold 707 696 703 719 716 Weighted average LTV non-FHA (1) 73.88 % 74.58 % 71.95 % 68.47 % 67.23 % Weighted average LTV FHA (1) 93.81 % 92.76 % 92.12 % 88.82 % 91.78 % Weighted average LTV all mortgage loans sold 74.53 % 76.65 % 75.88 % 68.67 % 67.42 % Operational/Performance Data: Salaries, general and administrative expense as a percentage of total loans originated 1.70 % 1.61 % 1.68 % 1.04 % 1.10 % Number of states licensed in or exempt from licensing at period end 44 43 40 15 13 Number of locations at period end 47 54 66 15 13 Number of employees at period end 616 802 782 335 184 Dividends declared per common share $ 0.47 $ 0.92 $ 0.40 — — (1) Beginning near the end of the first quarter of 2004, our volume of FHA loans increased; prior to such time the volume of FHA loan originations was immaterial. Generally, FHA loans have lower average balances and FICO scores which are reflected in the statistics above. All FHA loans are currently and will be in the future sold or brokered to third parties. 26  Item 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS General New York Mortgage Trust, Inc. (“NYMT,” the “Company,” “we,” “our” and “us”) is a self-advised residential mortgage finance company that acquires, retains and securitizes mortgage loans and mortgage-backed securities. Until March 31, 2007, the Company through its wholly-owned subsidiary, its taxable REIT subsidiary (“TRS”), The New York Mortgage Company, LLC (“NYMC”), was a residential mortgage banking company that originated a wide range of mortgage loans, with a particular focus on prime adjustable- and fixed-rate, first lien, residential purchase mortgage loans. The discontinued operation also originated residential mortgage loans as a broker for the purpose of obtaining broker fee income. Recent Events - Sale of Mortgage Lending Business and Change in Our Business Strategy On February 7, 2007, we announced that, as a part of our previously announced exploration of strategic alternatives for the Company, we had entered into a definitive agreement to sell substantially all of the retail mortgage lending platform of NYMC to IndyMac Bank, F.S.B., (“Indymac”), a wholly owned subsidiary of Indymac Bancorp, Inc, for an estimated purchase price of $13.5 million in cash and the assumption of certain of our liabilities by Indymac. On March 31, 2007, Indymac purchased substantially all of the operating assets related to NYMC’s retail mortgage lending platform, including, among other things, assuming leases held by NYMC for approximately 20 full service and approximately 10 satellite retail mortgage lending offices (excluding the lease for the Company’s corporate headquarters, which is being assigned, as previously announced, under a separate agreement to Lehman Brothers Holding, Inc.), the tangible personal property located in those approximately 30 retail mortgage banking offices, NYMC’s pipeline of residential mortgage loan applications (the “Pipeline Loans”), escrowed deposits related to the Pipeline Loans, customer lists and intellectual property and information technology systems used by NYMC in the conduct of its retail mortgage banking platform. Indymac assumed the obligations of NYMC under the Pipeline Loans and substantially all of NYMC’s liabilities under the purchased contracts and purchased assets arising after the closing date. Indymac has also agreed to pay (i) the first $500,000 in severance expenses with respect to “transferred employees” (as defined in the asset purchase agreement filed as Exhibit 10.62 to this Annual Report on Form 10-K) and (ii) severance expenses in excess of $1.1 million arising after the closing with respect to transferred employees. As part of the Indymac transaction, the Company has agreed, for a period of 18 months, not to compete with Indymac other than in the purchase, sale, or retention of mortgage loans. Indymac has hired substantially all of our branch employees and loan officers and a majority of NYMC employees based out of our corporate headquarters. As of April 1, 2007, the Company has approximately 40 employees. On February 14, 2007, we entered into a definitive agreement with Tribeca Lending Corp., a subsidiary of Franklin Credit Management Corporation (“Tribeca Lending”) to sell our wholesale lending business for an estimated purchase price of $485,000. This transaction closed on February 22, 2007. Together, the closing of the sale of our retail mortgage banking platform to Indymac and the sale of our wholesale lending business to Tribeca Lending has resulted in gross proceeds to NYMT of approximately $14.0 million before fees and expenses, and before deduction of approximately $2.3 million, which will be held in escrow to support warranties and indemnifications provided to Indymac by NYMC as well as other purchase price adjustments. NYMC will record a one time taxable gain on the sale of these assets. NYMC’s deferred tax asset will absorb any taxable gain from the sale. We expect to redeploy the net proceeds from the sale of our retail mortgage banking platform in high quality mortgage loan securities. We will liquidate the remaining inventory of loans held for sale in the ordinary course of business. Our Board of Directors, together with our management, will continue to consider strategic options for NYMT, including a possible sale or merger or raising capital under a passive REIT business model. We believe that the disposition of our mortgage lending business will allow us to meet the following business objectives: • reduce, and ultimately eliminate, our taxable REIT subsidiary’s operating loses; • enable NYMC to retain the economic value of its accumulated net operating losses; • increase NYMT’s investable capital and financial flexibility; • lower NYMT’s executive management compensation expenses; • significantly reduce our potential severance obligations; 27  Note Regarding Discontinued Operation In connection with the sale of our wholesale mortgage lending platform assets on February 22, 2007 and the sale of our retail mortgage lending platform assets to Indymac on March 31, 2007, during the fourth quarter of 2006, we classified our Mortgage Lending segment as a discontinued operation in accordance with the provisions of Statement of Financial Accounting Standards No. 144. As a result, we have reported revenues and expenses related to the segment as a discontinued operation and the related assets and liabilities as assets and liabilities related to a discontinued operation for all periods presented in the accompanying consolidated financial statements. Certain assets, such as the deferred tax asset, and certain liabilities, such as subordinated debt and liabilities related to leased facilities not assigned to Indymac will become part of the ongoing operations of NYMT and accordingly, we have not classified as a discontinued operation in accordance with the provisions of Statement of Financial Accounting Standards No. 144. See note 12 in the notes to our consolidated financial statements. Strategic Overview Our operations were conducted in 2006 such that we are considered an “active” mortgage REIT in that NYMC, our TRS, originated loans that may either be held in portfolio, aggregated and subsequently securitized for long-term investment, or sold to third parties for gain on sale revenue. The leveraged portfolio is comprised largely of prime adjustable-rate mortgage loans that we either originate or acquire from third parties. Starting in March of 2006, we began to sell all loans originated by NYMC in an effort to increase gain on sale income in current periods. On March 31, 2007, we concluded the sale of substantialy all of the operating assets of NYMC's retail mortgage lending platform and exited the mortgage lending business. We aggregate a portfolio comprised mainly of high credit quality, adjustable-rate mortgage loans until the portfolio reaches a size sufficient for us to securitize such loans. Historically, we obtained the loans we securitize from either our TRS or from third parties. As of April 1, 2007, we obtain the loans we securitize exclusively from third parties. Our first securitization occurred on February 25, 2005 and we completed our second and third loan securitizations on July 28, 2005 and December 20, 2005, respectively. These securitization transactions, through which we financed the adjustable-rate and hybrid mortgage loans that we retained, were structured as financings for both tax and financial accounting purposes. Therefore, we do not expect to generate a gain or loss on sales from these activities, and, following the securitizations, the loans are classified on our consolidated balance sheet as loans held in securitization trusts. For our first two securitizations, we retained all of the resultant securities and financed such securities with repurchase agreements; for our third securitization we issued investment grade securities to third parties and recorded the securitization debt is recorded as a liability. On March 30, 2006 we completed our fourth securitization, New York Mortgage Trust 2006-1. This securitization was structured as a sale for accounting purposes. The Company holds certain AAA tranches as well as all the subordinate interests in this transaction. We earn net interest income from purchased residential mortgage-backed securities and adjustable-rate mortgage loans and securitized loans. We have acquired and increasingly seek to acquire additional assets that will produce competitive returns, taking into consideration the amount and nature of the anticipated returns from the investment, our ability to pledge the investment for secured, collateralized borrowings and the costs associated with originating, financing, managing, securitizing and reserving for these investments. Funding Diversification . We strive to maintain and achieve a balanced and diverse funding mix to finance our investment portfolio and assets. Until March 31, 2007 when we exited the mortgage lending business, we relied primarily on secured warehouse lines of credit for our funding needs on loans held for sale to third parties. Since our IPO in June 2004, we rely primarily on repurchase agreements in order to finance our investment portfolio of residential loans and mortgage-backed securities. As of December 31, 2006, we have $5.1 billion of commitments to provide repurchase agreement financing through 23 different counterparties with approximately $0.8 billion outstanding as of December 31, 2006. During 2005, we further diversified our sources of financing with the issuance of $45 million of trust preferred securities classified as subordinated debentures. • enable our management to focus on our mortgage portfolio management operations, which consisted of a $1.1 billion portfolio of investment securities as of December 31, 2006; and • enable us to continue to acquire loans for securitization. 28  On our first two securitizations (collateralized debt obligations, or ”CDO”) of mortgage loans, we retained 100% of the issued securities and financed such securities with repurchase agreements. The creation of mortgage-backed securities from self-originated mortgage loans in this manner provides an asset with better liquidity and longer-term financing at better rates as opposed to financing whole loans through warehouse lines. In December, 2005 we completed our third securitization of $235.0 million of self-originated ARM loans and sold the majority of the securities to third parties. Because we did not retain all of the resultant securities as in prior CDOs, this securitization eliminated the risk of short-term financing and the mark-to-market pricing risk inherent in financing through repurchase agreements or warehouse lines of credit; as a result of this permanent financing we are not subject to margin calls on the assets of this CDO. Risk Management . As a manager of mortgage loan investments, we must mitigate key risks inherent in these businesses, principally credit risk and interest rate risk. Investment Portfolio Credit Quality . We retain in our portfolio only selected, high-quality loans that we originated or may acquire from third parties. As a result, our investment portfolio consists of high-quality loans that we have either securitized for our own portfolio or that collateralize our CDO financings. High credit quality creates improved portfolio liquidity and provides for financing opportunities that are available on generally favorable terms. When we retain loans for investment, either whole loans being aggregated for securitization or CDOs in which we retain all resultant securities or below A-rated tranches, we retain the risk of potential credit losses relative to the agency or higher rated securities we may purchase from time-to-time. Since we began our portfolio investment operations, we have experienced approximately $57,000 to date of credit losses in our portfolio. We believe that our credit performance is reflective of the high credit quality of the loans we originated or acquire for securitization, our prudent in-house underwriting, property valuation methods and review, our overall investment policies and prudent management of our delinquent loan portfolio. We believe that our delinquencies of $6.8 million, or 1.16% of the total par balance of our investment portfolio of residential loans at December 31, 2006, reflect strong credit characteristics and the credit culture of our underwriting and investment philosophy. The weighted average seasoning of loans in our investment portfolio of mortgage loans was approximately 19 months at December 31, 2006. Interest Rate Risk Management. Another primary risk to our investment portfolio of mortgage loans and mortgage-backed securities is interest rate risk. We use hedging instruments to fix or cap the interest rates on our short-term, CDO and other financing arrangements that finance our investment portfolio of mortgage loans and securities. We hedge our financing costs in an attempt to maintain a net duration gap of less than one year; as of December 31, 2006, our net duration gap was approximately 6 months. As we acquire mortgage-backed securities or loans, we seek to hedge interest rate risk in order to stabilize net asset values and earnings during periods of rising interest rates. To do so, we use hedging instruments in conjunction with our borrowings to approximate the repricing characteristics of such assets. The Company utilizes a model based risk analysis system to assist in projecting portfolio performances over a scenario of different interest rates and market stresses. The model incorporates shifts in interest rates, changes in prepayments and other factors impacting the valuations of our financial securities, including mortgage-backed securities, repurchase agreements, interest rate swaps and interest rate caps. However, given the prepayment uncertainties on our mortgage assets, it is not possible to definitively lock-in a spread between the earnings yield on our investment portfolio and the related cost of borrowings. Nonetheless, through active management and the use of evaluative stress scenarios of the portfolio, we believe that we can mitigate a significant amount of both value and earnings volatility. See further discussion of interest rate risk at the “Quantitative And Qualitative Disclosures About Market Risk - Interest Rate Risk” section of this document. Other Risk Considerations: Our business is affected by a variety of economic and industry factors. Management periodically reviews and assesses these factors and their potential impact on our business. The most significant risk factors management considers while managing the business and which could have a material adverse effect on our financial condition and results of operations are • a decline in the market value of our assets due to rising interest rates; • increasing or decreasing levels of prepayments on the mortgages underlying our mortgage-backed securities; • our ability to obtain financing to hold mortgage loans prior to their sale or securitization; • the overall leverage of our portfolio and the ability to obtain financing to leverage our equity; 29  Financial Overview Revenues . Our primary sources of income are net interest income on our loans and residential investment securities and gain on sale of mortgage loans. Net interest income is the difference between interest income, which is the income that we earn on our loans and residential investment securities and interest expense, which is the interest we pay on borrowings and subordinated debt. Net interest income is also earned on the banked loan origination production of our TRS for the period of time from when a loan is closed to the sale of such loan to a third party. Income from the gain on sale of mortgage loans to third parties is the difference between the sales price and the adjusted cost basis of originated loans when title transfers. The adjusted cost basis of the loans includes the original principal amount adjusted for deferrals of origination and commitment fees received, net of direct loan origination costs (including commissions and salaries for employees directly responsible for such originations) paid. Other Income (Expense). Loan losses include reserves for, or actual costs incurred with respect to, the disposition of non-performing or early payment default loans we have originated or purchased from third parties. Other significant sources of other income (expense) include fees received on brokered loans and income from the sale of securities and related hedges. Expenses . Non-interest expenses we incur in operating our business consist primarily of salary and employee benefits, brokered loan expenses, occupancy and equipment expenses, marketing and promotion expenses, and other general and administrative expenses. Salary and employee benefits consist primarily of the salaries and wages paid to our employees (exclusive of salaries and wages allocated to net gain on sale of mortgage loans), payroll taxes and expenses for health insurance, retirement plans and other employee benefits. Brokered loan expenses are primarily direct commissions and other costs associated with brokered loans when such loans are closed with the borrower. Costs associated with brokered loans are expensed when incurred. Occupancy and equipment expenses, which are the fixed and variable costs of buildings and equipment, consist of building lease expenses, furniture and equipment expenses, maintenance, real estate taxes and other associated costs of occupancy. Marketing and promotion expenses include the cost of print, radio and internet advertisements, promotions, third-party marketing services, public relations and sponsorships. Other general and administrative expenses include expenses for professional fees, office supplies, postage and shipping, telephone, insurance, travel and entertainment and other miscellaneous operating expenses. Many of our expenses are variable in nature and are relative to our loan origination production volumes. Variable expenses include commissions on loan originations, brokered loan costs and, to a lesser degree, office supplies, marketing and promotion and other miscellaneous expenses. Fixed expenses are primarily occupancy and equipment lease expenses and data processing and communications expenses. Loss from discontinued operation: Loss from discontinued operation includes all revenues and expenses related to our mortgage • the potential for increased borrowing costs and its impact on net income; • the concentration of our mortgage loans in specific geographic regions; • our ability to use hedging instruments to mitigate our interest rate and prepayment risks; • a prolonged economic slow down, a lengthy or severe recession or declining real estate values could harm our operations; • if our assets are insufficient to meet the collateral requirements of our lenders, we might be compelled to liquidate particular assets at inopportune times and at disadvantageous prices; • if we are disqualified as a REIT, we will be subject to tax as a regular corporation and face substantial tax liability; and • compliance with REIT requirements might cause us to forgo otherwise attractive opportunities. lending segment excluding those costs that will be retained by the ongoing Company. Primarily, expenses related rent expense for locations not being purchased and certain allocated payroll expenses for employees remaining with the Company. 30  Description of Business Mortgage Lending (Discontinued Operation) Until March 31, 2007, our mortgage lending operation contributed to our financial results as it either produced the loans that ultimately collateralized the mortgage securities that we hold in our portfolio or it provided us the flexibility to sell the loans for gain on sale revenue. We primarily originated prime, first-lien, residential mortgage loans and, to a lesser extent, second lien mortgage loans, home equity lines of credit, and bridge loans. We originated a wide range of mortgage loan products including adjustable-rate mortgage (“ARM”) loans which may have an initial fixed rate period, and fixed-rate mortgages. Historically, we sold or retained and aggregated our self-originated, high-quality, shorter-term ARM loans in order to pool them into mortgage securities. Due to market conditions, starting in March, 2006, NYMC increased the number of loans originated by it that it would sell to third parties for gain on sale revenue rather than aggregating lower cost assets. For the years ended December 31, 2006 and 2005, we originated $2.5 billion and $2.9 billion in mortgage loans for sale to third parties, respectively. We recognized gains on sales of mortgage loans totaling $18.0 million and $26.8 million for the years ended December 31, 2006 and 2005, respectively. Subsequent to our IPO in June 2004, we have sold or retained for our portfolio the high quality, adjustable-rate mortgage loans that we originated. For the years ended December 31, 2006 and 2005, we originated and retained $69.7 million and $555.2 million of such loans, respectively. When we retain mortgage loans that we originated, we record such assets at historical cost in accordance with GAAP (“GAAP” means generally accepted accounting principles). The cost of each loan is then amortized on the effective interest method over the estimated lives of the retained loans. Furthermore, when we retain loans that we originated, we are not able to recognize a gain on sale of these loans (and thus higher GAAP net income) as we would have if such loans were sold to third parties. Instead, the value of the gain on sale revenue inures to the benefit of our investment portfolio in the form of a lower cost asset and thus incrementally higher yield during the lives of retained loans. We estimate that the foregone premium we would have otherwise received had retained loans been sold to third parties is approximately $0.4 million and $7.5 million for the years ended December 31, 2006 and 2005, respectively. On March 31, 2007, the Company sold substantially all of the operating assets of the mortgage lending business to Indymac and exited the mortgage lending business. Our wholesale lending strategy has been a small component of our loan origination operations. We have a network of non-affiliated wholesale loan brokers and mortgage lenders who submit loans to us. We maintain relationships with these wholesale brokers and, as with retail loan originations, will underwrite, process, and fund wholesale loans through our centralized facilities and processing systems. On February 22, 2007, we sold all of the assets of our wholesale operations to Tribeca Lending. We also sold broker loans to third party mortgage lenders for which we receive a broker fee. For the years ended December 31, 2006 and 2005, we originated $703.0 million and $562.1 million in brokered loans, respectively. We recognized net brokering income totaling $2.7 million and $2.4 million during the years ended December 31, 2006 and 2005, respectively. A significant risk to our mortgage lending operations is liquidity risk - the risk that we will not have financing facilities and cash available to fund and hold loans prior to their sale or securitization. We maintain lending facilities with large banking and investment institutions to reduce this risk. On a short-term basis, we finance mortgage loans using warehouse lines of credit and repurchase agreements. Details regarding available financing arrangements and amounts outstanding under those arrangements are included in “Liquidity and Capital Resources” below. Mortgage Portfolio Management Prior to the completion of our IPO on June 29, 2004, our operations were limited to the mortgage operations described in the preceding section. Beginning in July 2004, we began to implement our business plan of investing in high-quality, adjustable rate mortgage related securities and residential loans. Our mortgage portfolio, consisting primarily of residential mortgage-backed securities and mortgage loans held for investment, currently generates a substantial portion of our earnings. In managing our investment in a mortgage portfolio, we: • invest in mortgage-backed securities originated by others, including ARM securities and collateralized mortgage obligation floaters (“CMO Floaters”); • generally operate as a long-term portfolio investor; • finance our portfolio by entering into repurchase agreements, warehouse facilities for loan aggregation or issue collateral debt obligations relating to our securitizations; and • generate earnings from the return on our mortgage securities and spread income from our mortgage loan portfolio. 31  A significant risk to our operations, relating to our portfolio management, is the risk that interest rates on our assets will not adjust at the same times or amounts that rates on our liabilities adjust. Even though we retain and invest in ARMs, many of the hybrid ARM loans in our portfolio have fixed rates of interest for a period of time ranging from two to seven years. Our funding costs are variable and the maturities are short term in nature. As a result, we use derivative instruments (interest rate swaps and interest rate caps) to mitigate, but not eliminate, the risk of our cost of funding increasing or decreasing at a faster rate than the interest on our investment assets. As of December 31, 2006, our mortgage securities portfolio consisted of 98% AAA- rated or Fannie Mae, Freddie Mac or Ginnie Mae-guaranteed (“FNMA/FHLMC/GNMA”) mortgage securities as compared to financing rates or lower rated securities. The loans held in securitization trusts and mortgage loans held for investment consisted of high-credit quality prime adjustable rate mortgages with initial reset periods of no greater than five years or less. Our portfolio strategy for ARM loan originations is to acquire high-credit quality ARM loans for our securitization process thereby limiting future potential losses. Such assets are evaluated for impairment on a quarterly basis or, if events or changes in circumstances indicate that these assets or the underlying collateral may be impaired, on a more frequent basis. We evaluate whether these assets are considered impaired, whether the impairment is other-than-temporary and, if the impairment is other-than-temporary, recognize an impairment loss equal to the difference between the asset’s amortized cost basis and its fair value. We recorded an impairment loss of $7.4 million in the fourth quarter of 2005 because we concluded that we no longer had the intent to hold certain lower-yielding mortgage-backed securities until their values recovered. This impairment was not due to any underlying credit issues but was related to our intent to no longer hold identified lower-yield securities and to re-position our portfolio by selling such securities and replacing them with higher yield securities with similar credit characteristics in order to earn higher net interest spread in the future. The securities were disposed of during the first quarter of 2006 resulting in an additional loss of $1.0 million. Known Material Trends and Commentary For the year ended December 31, 2006, our originations of residential mortgage loans totaled $2.5 billion. The following chart summarizes the our loan origination volume and characteristics for each of the four quarters of 2006 relative to our 2005 historical origination production: For the year ended December 31, 2006, NYMC’s total loan originations decreased to $2.5 billion from $3.4 billion in 2005, a decrease of 26%. This compares to total originations for the industry as a whole of $2.5 trillion in 2006 versus $3.0 trillion in 2005, a decrease of 17%, as reported by the MBA’s Mortgage Finance Forecast. The reason for this larger than industry decrease is primarily due to a meaningful number of our seasoned loan officers being recruited and hired by other large lenders in the first half of 2006. 32  In the February 12, 2007 forecast, the MBA projects that mortgage loan volumes will decrease to $2.4 trillion in 2007 from $2.5 trillion in 2006, primarily due to an expected continued decline in the volume of loan refinancings. We believe that the market for mortgage loans for home purchases is less susceptible than the refinance market to downturns during periods of increasing interest rates, because borrowers seeking to purchase a home do not generally base their decision to purchase on changes in interest rates alone, while borrowers that refinance their mortgage loans often make their decision as a direct result of changes in interest rates. Consequently, we are hopeful that our referral-based marketing strategy and a concentration on purchase loan originations will help mitigate further origination decreases relative to the industry. State and local governing bodies are focused on certain practices engaged in by certain participants in the mortgage lending business relating to fees borrowers incur in obtaining a mortgage loan - generally termed “predatory lending” within the mortgage industry. In several instances, states or local governing bodies have imposed strict laws on lenders to curb such practices. To date, these laws have had an insignificant impact on our business. We have capped fee structures consistent with those adopted by federal mortgage agencies and have implemented rigid processes to ensure that our lending practices are not predatory in nature. Results of Operations . We expect that our revenues will derive primarily from the difference between the interest income we earn on our mortgage assets and the costs of our borrowings (net of hedging expenses). We expect that our operating expenses will reduce in the future due to the elimination of compensation expense attributable to our mortgage origination platform. The sale of each of our retail and wholesale mortgage banking platforms, has resulted in gross proceeds to NYMT of approximately $14.0 million before fees and expenses, and before deduction of approximately $2.3 million, which will be held in escrow to support warranties and indemnifications provided to Indymac by NYMC as well as other purchase price adjustments. NYMC expects to record a one time taxable gain on the sale of its assets to Indymac. NYMC’s deferred tax asset will absorb any taxable gain from sale. Liquidity . We depend on the capital markets to finance our investments in mortgage-backed securities and mortgage loans held for sale. We finance our mortgage loans held for sale using “warehouse” facilities provided by commercial or investment banks. As it relates to our investment portfolio, we have either issued bonds from our loan securitizations and will either own such bonds or sell them to institutional investors via intermediaries, or use repurchase agreements for short term financing. The provider of our warehouse facilities are well capitalized investment or commercial banks. Commercial and investment banks have provided significant liquidity to finance our operations, and while management cannot predict the future liquidity environment, we are currently unaware of any material reason to prevent continued liquidity support in the capital markets for our business. See “Liquidity and Capital Resources” below for further discussion of liquidity risks and resources available to us. Loan Loss Reserves on Mortgage Loans . Currently, conditions in the mortgage market remain challenging due a significant increase in demands for indemnification and loan repurchases form third party loan investors. A large portion of these demands come as a result of borrowers failing to timely make their first three to six mortgage loan payments, commonly known as early payment defaults (“EPDs”). This is evident throughout the mortgage industry as many local, regional and national mortgage lenders have announced plans to exit the mortgage lending business in part or in whole. Many of these announcements come as a result of liquidity problems caused by a significant increase in repurchase demands due to EPDs. With respect to the loans originated by our discontinued operations, in 2006, we repurchased a total of $28.9 million of mortgage loans that were originated in both 2005 and 2006, the majority of which were due to EPDs. Of the repurchased loans originated in 2006, most were Alternative-A (“Alt-A”), as sub-prime comprised only approximately 10% of our 2006 originations. In 2006, the percentage of Alt-A loans we originated was approximately 26%. Generally, under the terms of the agreements with the investors to whom we sell our loans, we are required to repurchase loans if the borrower misses one of his or her first three payments. The increased use of limited documentation underwriting associated with Alt-A loans, as offered by many investor programs under which we originate loans, in concert with reduced amounts of down payments required under many of those same programs, have made it easier for many borrowers to obtain mortgage financing. As with any mortgage loan asset in either NYMT or NYMC, we have policies and procedures in place to determine the appropriate levels of reserves relative to non-performing assets or losses associated with indemnifications or repurchase demands. Our approach looks at individual loans for which we have received indemnification or repurchase demands, rather than using a model based macro approach based on historic performance. Note however that in volatile times such as these, a historical based approach would not likely result in adequate reserves. And while we feel that we are using a prudent approach to reserving for EPDs and non-performing loans, no assurance can be made as to the adequacies of those reserves. In determining reserves we generally rely on management’s judgment and estimates of credit losses inherent in each individual non-performing loan held for sale and each mortgage loan held in securitization trusts. Estimation involves the consideration of various credit-related factors including but not limited to, the current housing market conditions, loan-to-value ratios, delinquency status, historical credit loss severity rates, purchased mortgage insurance, the borrower’s credit and other factors deemed to warrant consideration. Additionally, we look at the balance of any delinquent loan and compare that to the value of the property. As many of the loans involved in current reserve process were funded in the past six to twelve months, we typically rely on the original appraised value of the property, unless there is evidence that the original appraisal should not be relied upon. If there is a doubt to the objectivity of the original property value assessment, we either utilize various internet based property data services to look at comparable properties in the same area, or consult with a realtor in the property’s area. Comparing the current loan balance to the original property value determines the current loan-to-value (“LTV”) ratio of the loan. Generally we estimate that any first lien loan that goes through a foreclosure process and results in Real Estate Owned (“REO”) results is the property being disposed of at approximately 68% of the property’s original value. That number is based on management’s long term experience in similar market conditions in past difficult real estate markets. Thus, for a first lien loan that is delinquent, we will adjust the property value down to approximately 68% of the original and compare that to the current balance of the loan. The difference, plus an estimate of past interest due, determines the base reserve taken for that loan. This base reserve for a particular loan may be adjusted if we are aware of specific circumstances that may affect the outcome of the loss mitigation process for that loan. Predominately, however, we use the base reserve number for our reserve. Reserves for second liens are larger than that for first liens as second liens are in a junior position and only receive proceeds after the claims of the first lien holder are satisfied. As with first liens, we may occasionally alter the base reserve calculation but that is in a minority of the cases and only if we are aware of specific circumstances that pertain to that specific loan. While we feel these policies are prudent, we can make no assurance that this policy will be adequate to cover future losses. Significance of Estimates and Critical Accounting Policies We prepare our consolidated financial statements in conformity with accounting principles generally accepted in the United States of America, or GAAP, many of which require the use of estimates, judgments and assumptions that affect reported amounts. These estimates are based, in part, on our judgment and assumptions regarding various economic conditions that we believe are reasonable based on facts and circumstances existing at the time of reporting. The results of these estimates affect reported amounts of assets, liabilities and accumulated other comprehensive income at the date of the consolidated financial statements and the reported amounts of income, expenses and other comprehensive income during the periods presented. Changes in the estimates and assumptions could have a material effect on these financial statements. Accounting policies and estimates related to specific components of our consolidated financial statements are disclosed in the notes to our consolidated financial statements. In accordance with SEC guidance, those material accounting policies and estimates that we believe are most critical to an investor’s understanding of our financial results and condition and which require complex management judgment are discussed below. Revenue Recognition . Interest income on our residential mortgage loans and mortgage-backed securities is a combination of the interest earned based on the outstanding principal balance of the underlying loan/security, the contractual terms of the assets and the amortization of yield adjustments, principally premiums and discounts, using generally accepted interest methods. The net GAAP cost over the par balance of self-originated loans held for investment and premium and discount associated with the purchase of mortgage-backed securities and loans are amortized into interest income over the lives of the underlying assets using the effective yield method as adjusted for the effects of estimated prepayments. Estimating prepayments and the remaining term of our interest yield investments require management judgment, which involves, among other things, consideration of possible future interest rate environments and an estimate of how borrowers will react to those environments, historical trends and performance. The actual prepayment speed and actual lives could be more or less than the amount estimated by management at the time of origination or purchase of the assets or at each financial reporting period. Fair Value . Generally, the financial instruments we utilize are widely traded and there is a ready and liquid market in which these financial instruments are traded. The fair values for such financial instruments are generally based on market prices provided by five to seven dealers who make markets in these financial instruments. If the fair value of a financial instrument is not reasonably available from a dealer, management estimates the fair value based on characteristics of the security that the Company receives from the issuer and on available market information. 33  In the normal course of our discontinued mortgage lending business, we enter into contractual interest rate lock commitments, or (“IRLCs”), to extend credit to finance residential mortgages. Mark-to-market adjustments on IRLCs are recorded from the inception of the interest rate lock through the date the underlying loan is funded. The fair value of the IRLCs is determined by an estimate of the ultimate gain on sale of the loans net of estimated net costs to originate the loan. To mitigate the effect of the interest rate risk inherent in issuing an IRLC from the lock-in date to the funding date of a loan, we generally enter into forward sale loan contracts, or (“FSLCs”). Since the FSLCs are committed prior to mortgage loan funding and thus there is no owned asset to hedge, the FSLCs in place prior to the funding of a loan are undesignated derivatives under SFAS No. 133 and are marked to market with changes in fair value recorded to current earnings. Impairment of and Basis Adjustments on Securitized Financial Assets . As previously described herein, we regularly securitize our mortgage loans and retain the beneficial interests created. Such assets are evaluated for impairment on a quarterly basis or, if events or changes in circumstances indicate that these assets or the underlying collateral may be impaired, on a more frequent basis. We evaluate whether these assets are considered impaired, whether the impairment is other-than-temporary and, if the impairment is other-than-temporary, recognize an impairment loss equal to the difference between the asset’s amortized cost basis and its fair value. These evaluations require management to make estimates and judgments based on changes in market interest rates, credit ratings, credit and delinquency data and other information to determine whether unrealized losses are reflective of credit deterioration and our ability and intent to hold the investment to maturity or recovery. This other-than-temporary impairment analysis requires significant management judgment and we deem this to be a critical accounting estimate. We recorded an impairment loss of $7.4 million during 2005, because we concluded that we no longer had the intent to hold certain lower-yielding mortgage-backed securities until their values recovered. At December 31, 2006, we have an unrealized loss of $3.85 million on the remaining securities in our portfolio, which we do not consider to represent an other than temporary impairment. Loan Loss Reserves on Mortgage Loans . We evaluate a reserve for loan losses based on management’s judgment and estimate of credit losses inherent in our portfolio of residential mortgage loans held for sale and mortgage loans held in securitization trusts. The estimation involves the consideration of various credit-related factors including loans held for investment, but not limited to, current economic conditions, loan-to-value ratios, delinquency status, historical credit losses, purchased mortgage insurance and other factors deemed to warrant consideration. If the credit performance of any of our mortgage loans deviates from expectations, the allowance for loan losses is adjusted to a level deemed appropriate by management to provide for estimated probable losses in the portfolio. One of the critical assumptions used in estimating the loan loss reserve is severity. Severity represents the expected rate of realized loss upon disposition/resolution of the collateral that has gone into foreclosure. Securitizations . We create securitization entities as a means of either: Residential mortgage loans are transferred to a separate bankruptcy-remote legal entity from which private-label multi-class mortgage-backed notes are issued. On a consolidated basis, securitizations are accounted for as secured financings as defined by SFAS No. 140, “Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities”, and, therefore, no gain or loss is recorded in connection with the securitizations. Each securitization entity is evaluated in accordance with Financial Accounting Standards Board Interpretation, or FIN, 46(R), “Consolidation of Variable Interest Entities”, and we have determined that we are the primary beneficiary of the securitization entities. As such, the securitization entities are consolidated into our consolidated balance sheet subsequent to securitization. Residential mortgage loans transferred to securitization entities collateralize the mortgage-backed notes issued, and, as a result, those investments are not available to us, our creditors or stockholders. All discussions relating to securitizations are on a consolidated basis and do not necessarily reflect the separate legal ownership of the loans by the related bankruptcy-remote legal entity. Derivative Financial Instruments - The Company has developed risk management programs and processes, which include investments in derivative financial instruments designed to manage market risk associated with its mortgage banking and its mortgage-backed securities investment activities. All derivative financial instruments are reported as either assets or liabilities in the consolidated balance sheet at fair value. The gains and losses associated with changes in the fair value of derivatives not designated as hedges are reported in current earnings. If the derivative is designated as a fair value hedge and is highly effective in achieving offsetting changes in the fair value of the asset or liability hedged, the recorded value of the hedged item is adjusted by its change in fair value attributable to the hedged risk. If the derivative is designated as a cash flow hedge, the effective portion of change in the fair value of the derivative is recorded in OCI and is recognized in the income statement when the hedged item affects earnings. The Company calculates the effectiveness of these hedges on an ongoing basis, and, to date, has • creating securities backed by mortgage loans which we will continue to hold and finance that will be more liquid than holding whole loan assets; or • securing long-term collateralized financing for our residential mortgage loan portfolio and matching the income earned on residential mortgage loans with the cost of related liabilities, otherwise referred to a match funding our balance sheet. calculated effectiveness of approximately 100%. Ineffective portions, if any, of changes in the fair value or cash flow hedges are recognized in earnings. 34  New Accounting Pronouncements - In February 2007, the FASB issued SFAS No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities” (“SFAS No. 159”), which provides companies with an option to report selected financial assets and liabilities at fair value. The objective of SFAS No. 159 is to reduce both complexity in accounting for financial instruments and the volatility in earnings caused by measuring related assets and liabilities differently. SFAS No. 159 establishes presentation and disclosure requirements and requires companies to provide additional information that will help investors and other users of financial statements to more easily understand the effect of the company's choice to use fair value on its earnings. SFAS No. 159 also requires entities to display the fair value of those assets and liabilities for which the company has chosen to use fair value on the face of the balance sheet. SFAS No. 159 is effective for financial statements issued for fiscal years beginning after November 15, 2007 and early adoption is permitted for fiscal years beginning on or before November 15, 2007 provided that the entity makes that choice in the first 120 days of the fiscal year, has not issued financial statements for any interim period of the fiscal year of adoption and also elects to apply the provisions of SFAS No. 157. The Company is in the process of analyzing the impact of SFAS No. 159 on its consolidated financial statements. In September 2006, the FASB issued SFAS No. 157, “Fair Value Measurements” (“SFAS No.157”). SFAS No.157 defines fair value, establishes a framework for measuring fair value in generally accepted accounting principles and expands disclosures about fair value measurements. SFAS No.157 will be applied under other accounting principles that require or permit fair value measurements, as this is a relevant measurement attribute. This statement does not require any new fair value measurements. We will adopt the provisions of SFAS No.157 beginning January 1, 2008. We are currently evaluating the impact of this statement on our consolidated financial statements. In September 2006, the SEC issued SAB No. 108, “Considering the Effects of Prior Year Misstatements when Quantifying Misstatements in Current Year Financial Statement” (“SAB 108”), on quantifying financial statement misstatements. In summary, SAB 108 was issued to address the diversity in practice of evaluating and quantifying financial statement misstatements and the related accumulation of such misstatements. SAB 108 states that both a balance sheet approach and an income statement approach should be used when quantifying and evaluating the materiality of a potential misstatement and contains guidance for correcting errors under this dual perspective. SAB 108 is effective for financial statements issued for fiscal years ending after November 15, 2006. The adoption of SAB 108 did not have a material effect on the Company's consolidated financial statements. In June 2006, FASB issued FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes — an interpretation of FASB Statement No. 109” (“FIN 48”). This interpretation increases the relevancy and comparability of financial reporting by clarifying the way companies account for uncertainty in income taxes. FIN 48 prescribes a consistent recognition threshold and measurement attribute, as well as clear criteria for subsequently recognizing, derecognizing and measuring such tax positions for financial statement purposes. The interpretation also requires expanded disclosure with respect to the uncertainty in income taxes. FIN 48 is effective for us on January 1, 2007. The Company does not expect the adoption of FIN 48 to have a material effect on the Company’s consolidated financial statements. In March 2006, the FASB issued SFAS No. 156, “Accounting for Servicing of Financial Assets an amendment of FASB Statement No. 140.” Effective at the beginning of the first quarter of 2006, the Company early adopted the newly issued statement and elected the fair value option to subsequently measure its mortgage servicing rights (“MSRs”). Under the fair value option, all changes in the fair value of MSRs are reported in the statement of operations. The initial implementation of SFAS 156 did not have a material impact on the Company’s financial statements. In February 2006, the FASB issued SFAS No.155, “Accounting for Certain Hybrid Financial Instruments”. Key provisions of SFAS No.155 include: (1) a broad fair value measurement option for certain hybrid financial instruments that contain an embedded derivative that would otherwise require bifurcation; (2) clarification that only the simplest separations of interest payments and principal payments qualify for the exception afforded to interest-only strips and principal-only strips from derivative accounting under paragraph 14 of FAS No.133 (thereby narrowing such exception); (3) a requirement that beneficial interests in securitized financial assets be analyzed to determine whether they are freestanding derivatives or whether they are hybrid instruments that contain embedded derivatives requiring bifurcation; (4) clarification that concentrations of credit risk in the form of subordination are not embedded derivatives; and (5) elimination of the prohibition on a QSPE holding passive derivative financial instruments that pertain to beneficial interests that are or contain a derivative financial instrument. In general, these changes will reduce the operational complexity associated with bifurcating embedded derivatives, and increase the number of beneficial interests in securitization transactions, including interest-only strips and principal-only strips, required to be accounted for in accordance with FAS No.133. Management does not believe that SFAS No.155 will have a material effect on the Company’s consolidated financial statements. Overview of Performance For the year ended December 31, 2006, we reported a net loss of $15.0 million, as compared to a net loss of $5.3 million for the year ended December 31, 2005. The increase in net loss is attributed to a decrease in gain on sale revenues and net interest income from our investment portfolio. Our revenues were driven largely from increases in interest income on investments in mortgage loans and mortgage securities (our “mortgage portfolio management” segment). In addition, the Company incurred a $8.3 million charge attributable to loan losses. For the year ended December 31, 2006, total residential originations, including brokered loans, were $2.5 billion as compared to $3.4 billion and $1.8 billion for the same period of 2005 and 2004, respectively. The decrease in our loan origination levels for the year ended December 31, 2006 as compared to the same period of 2005 is the result of the loss of experienced loan officers to competitors as well as an overall market decline. Total employees decreased to 616 at December 31, 2006 from 802 at December 31, 2005; full-service loan origination locations decreased to 25 offices and 22 satellite loan origination locations at December 31, 2006 from 28 full service locations and 26 satellite loan origination locations at December 31, 2005. Summary of Operations and Key Performance Measurements For the year ended December 31, 2006, our net income was dependent upon our mortgage portfolio management operations and the net interest (interest income on portfolio assets net of the interest expense and hedging costs associated with the financing of such assets) generated from our portfolio of mortgage loans held for investment, mortgage loans held in the securitization trusts and residential mortgage-backed securities in our portfolio management segment. The following table presents the components of our net interest income from our investment portfolio of mortgage securities and loans for the year ended December 31, 2006: The key performance measures for our portfolio management activities are: For the year ended December 31, 2006, our net income was also dependent upon our mortgage lending operations and originations from our mortgage lending segment, which include the mortgage loan sales (“mortgage banking”) and mortgage brokering activities on residential mortgages sold or brokered to third parties. Our mortgage banking activities generate revenues in the form of gains on sales of mortgage loans to third parties and ancillary fee income and interest income from borrowers. Our mortgage brokering operations generate brokering fee revenues from third party buyers. When we retain a portion of our loan originations for our investment portfolio, we do not realize the gain on sale premiums we would have otherwise recognized had these loans been sold to third parties and such loans retained on our balance sheet at cost. As a result, revenues in our mortgage banking segment are lower and the book value of these assets on our balance sheet, which are accounted for on a cost basis, will differ from their fair market value. A breakdown of our loan originations for the year ended December 31, 2006 follows: Amount Average Outstanding Balance Effective Rate (Dollars in Millions) Net Interest Income Components: Interest Income Investment securities and loans held in the securitization trusts $ 66,973 $ 1,266.4 5.29 % Amortization of premium (2,092 ) 5.9 (0.16 )% Total interest income $ 64,881 $ 1,272.3 5.13 % Interest Expense Repurchase agreements $ 62,437 $ 1,201.2 5.12 % Interest rate swaps and caps (5,884 ) — (0.48 )% Total interest expense $ 56,553 $ 1,201.2 4.64 % Net Interest Income $ 8,328 0.49 % • net interest spread on the portfolio; • characteristics of the investments and the underlying pool of mortgage loans including but not limited to credit quality, coupon and prepayment rates; and • return on our mortgage asset investments and the related management of interest rate risk. Number Aggregate Principal Balance Percentage of Total Weighted Average Interest Average  The key performance measures for our origination activities are: Description of Loans ($000’s) Principal Rate Loan Size Purchase mortgages 6,485 $ 1,484.0 58.3 % 7.15 % $ 228,831 Refinancings 3,837 1,060.0 41.7 % 6.98 % 276,267 Total 10,322 $ 2,544.0 100.0 % 7.08 % 246,464 Adjustable rate or hybrid 3,398 $ 1,102.2 43.3 % 6.94 % 324,373 Fixed rate 6,924 1,441.8 56.7 % 7.18 % 208,230 Total 10,322 $ 2,544.0 100.0 % 7.08 % 246,464 Banked 8,018 $ 1,841.0 72.4 % 7.16 % 229,610 Brokered 2,304 703.0 27.6 % 6.86 % 305,118 Total 10,322 $ 2,544.0 100.0 % 7.08 % $ 246,464 • dollar volume of mortgage loans originated; • relative cost of the loans originated; • characteristics of the loans, including but not limited to the coupon and credit quality of the loan, which will indicate their expected yield; • return on our mortgage asset investments and the related management of interest rate risk; and • frequency of early payment defaults which result in loan losses. 35  Management’s discussion and analysis of financial condition and results of operations, along with other portions of this report, are designed to provide information regarding our performance and these key performance measures. Year Ended December 31, 2006 Financial Highlights Financial Condition Balance Sheet Analysis - Asset Quality Investment Portfolio Related Assets Mortgage Loans Held in Securitization Trusts and Mortgage Loans Held for Investment . Included in our portfolio are adjustable-rate mortgage loans that we originated or purchased in bulk from third parties that meet our investment criteria and portfolio requirements. These loans are classified as “mortgage loans held for investment” during a period of aggregation and until the portfolio reaches a size sufficient for us to securitize such loans. If the securitization qualifies as a financing for SFAS No. 140 purposes the loans are classified as “mortgage loans held in securitization trusts.” The NYMT 2006-1 securitization qualifies as a sale under SFAS No. 140, which resulted in the recording of residual assets and mortgage servicing rights. The residual assets total $2.0 million and are included in investment securities available for sale (see note 2 in our consolidated financial statements). There were no Mortgage Loans Held for Investment at December 31, 2006. The following table details Mortgage Loans Held for Investment at December 31, 2005 (dollar amounts in thousands): The following table details Mortgage Loans Held in Securitization Trusts (dollar amounts in thousands): At December 31, 2006 mortgage loans held in securitization trusts totaled $588.2 million, or 45% of total assets. Of this mortgage loan investment portfolio 100% are traditional or hybrid ARMs and 75.9% are ARM loans that are interest only. On our hybrid ARMs, interest rate reset periods are predominately seven years or less and the interest-only/amortization period is typically 10 years, which mitigates the “payment shock” at the time of interest rate reset. No loans in our investment portfolio of mortgage loans are option-ARMs or ARMs with negative amortization. Characteristics of Our Mortgage Loans Held in Securitization Trusts and Retained Interest in Securitization: The following table sets forth the composition of our loans held for investment and in securitization trusts as of December 31, 2006 (dollar amounts in thousands): • Net income for the Company’s Mortgage Portfolio Management segment totaled $6.0 million for the year ended December 31, 2006. • Consolidated net loss totaled $15.0 million for the year ended December 31, 2006. • Discontinued operations net loss totaled $17.2 million net of tax for the year ended December 31, 2006. Category Par Value Coupon Carrying Value Yield Mortgage Loans Held for Investment $ 4,054 5.84 % $ 4,060 5.56 % Par Value Coupon Carrying Value Yield December 31, 2006 $ 584,358 5.56% $ 588,160 5.56% December 31, 2005 $ 771,451 5.17% $ 776,610 5.49% # of Loans Par Value Carrying Value Loan Characteristics: Mortgage loans held in securitization trusts 1,259 $ 584,358 $ 588,160  Retained interest in securitization (included in Investment securities available for sale) 458 249,627 23,930 Total Loans Held 1,717 $ 833,985 $ 612,090 36  The following table sets forth the composition of our loans held for investment and in securitization trusts as of December 31, 2005 (dollar amounts in thousands): Average High Low General Loan Characteristics: Original Loan Balance $ 501 $ 3,500 $ 25 Coupon Rate 5.67 % 8.13 % 3.88 % Gross Margin 2.36 % 6.50 % 1.13 % Lifetime Cap 11.14 % 13.75 % 9.00 % Original Term (Months) 360 360 360 Remaining Term (Months) 341 351 307 # of Loans Par Value Carrying Value Loan Characteristics: Mortgage loans held in securitization trusts 1,609 $ 771,451 $ 776,610 Mortgage loans held for investment 11 4,054 4,060 Total Loans Held 1,620 $ 775,505 $ 780,670 Average High Low General Loan Characteristics: Original Loan Balance $ 486 $ 3,500 $ 25 Coupon Rate 5.26 % 7.75 % 3.00 % Gross Margin 2.40 % 7.01 % 1.13 % Lifetime Cap 11.08 % 13.75 % 9.00 % Original Term (Months) 360 360 359 Remaining Term (Months) 348 360 319 December 31, 2006 Percentage December 31, 2005 Percentage Arm Loan Type Traditional ARMs 2.9 % 4.7 % 2/1 Hybrid ARMs 3.8 % 5.3 % 3/1 Hybrid ARMs 16.8 % 32.4 % 5/1 Hybrid ARMs 74.5 % 57.3 % 7/1 Hybrid ARMs 2.0 % 0.3 % Total 100.0 % 100.0 % Percent of ARM loans that are Interest Only 75.9 % 74.9 % Weighted average length of interest only period 8.0 years 8.2 years 37  December 31, 2006 Percentage December 31, 2005 Percentage Traditional ARMs - Periodic Caps None 61.9 % 64.5 % 1% 8.8 % 19.4 % Over 1% 29.3 % 16.1 % Total 100.0 % 100.0 % December 31, 2006 Percentage December 31, 2005 Percentage Hybrid ARMs - Initial Cap 3.00% or less 14.8 % 29.6 % 3.01%-4.00% 7.5 % 10.7 % 4.01%-5.00% 76.6 % 58.2 % 5.01%-6.00% 1.1 % 1.5 % Total 100.0 % 100.0 % December 31, 2006 Percentage December 31, 2005 Percentage FICO Scores 650 or less 3.8 % 5.0 % 651 to 700 16.9 % 18.0 % 701 to 750 34.0 % 35.4 % 751 to 800 41.5 % 38.2 % 801 and over 3.8 % 3.4 % Total 100.0 % 100.0 % Average FICO Score 737 733 December 31, 2006 Percentage December 31, 2005 Percentage Loan to Value (LTV) 50% or less 9.8 % 9.5 % 50.01%-60.00% 8.8 % 9.4 % 60.01%-70.00% 28.1 % 28.6 % 70.01%-80.00% 51.1 % 49.7 % 80.01% and over 2.2 % 2.8 % Total 100.0 % 100.0 % Average LTV 69.4 % 69.3 % December 31, 2006 Percentage December 31, 2005 Percentage Property Type Single Family 52.3 % 53.7 % Condominium 22.9 % 23.1 % Cooperative 8.8 % 10.1 % Planned Unit Development 13.0 % 9.2 % Two to Four Family 3.0 % 3.9 %  Total 100.0 % 100.0 % December 31, 2006 Percentage December 31, 2005 Percentage Occupancy Status Primary 85.3 % 84.2 % Secondary 10.7 % 10.7 % Investor 4.0 % 5.1 % Total 100.0 % 100.0 % 38  Delinquency Status As of December 31, 2006, we had seven delinquent loans totaling $6.8 million categorized as Mortgage Loans Held in Securitization Trusts. The table below shows delinquencies in our loan portfolio as of December 31, 2006 (dollar amounts in thousands): As of December 31, 2005, we had four delinquent loans totaling $2.0 million categorized as Mortgage Loans Held in Securitization Trusts. The table below shows delinquencies in our loan portfolio as of December 31, 2005 (dollar amounts in thousands): December 31, 2006 Percentage December 31, 2005 Percentage Documentation Type Full Documentation 70.1 % 61.8 % Stated Income 21.3 % 24.1 % Stated Income/ Stated Assets 7.2 % 11.8 % No Documentation 0.9 % 1.6 % No Ratio 0.5 % 0.7 % Total 100.0 % 100.0 % December 31, 2006 Percentage December 31, 2005 Percentage Loan Purpose Purchase 57.3 % 60.0 % Cash out refinance 26.1 % 25.2 % Rate & term refinance 16.6 % 14.8 % Total 100.0 % 100.0 % December 31, 2006 Percentage December 31, 2005 Percentage Geographic Distribution: 5% or more in any one state NY 26.2 % 32.7 % MA 14.4 % 19.4 % CA 6.8 % 14.1 % NJ ─ 5.8 % FL ─ 5.4 % Other (less than 5% individually) 52.6 % 22.6 % Total 100.0 % 100.0 % Days Late Number of Delinquent Loans Total Dollar Amount % of Loan Portfolio 30-60 1 $ 166.4 0.03 % 61-90 1 193.1 0.03 % 90+ 5 $ 6,444.5 1.10 % Days Late Number of Delinquent Loans Total Dollar Amount % of Loan Portfolio 30-60 1 $ 193.1 0.02 % 61-90 ─ ─ ─ 90+ 3 $ 1,771.0 0.23 % 39  Interest is recognized as revenue when earned according to the terms of the mortgage loans and when, in the opinion of management, it is collectible. The accrual of interest on loans is discontinued when, in management’s opinion, the interest is not collectible in the normal course of business, but in no case beyond when payment on a loan becomes 90 days delinquent. Interest collected on loans for which accrual has been discontinued is recognized as income upon receipt. Investment Securities - Available for Sale . Our securities portfolio consists of agency securities or AAA-rated residential mortgage-backed securities. At December 31, 2006, we had no investment securities in a single issuer or entity (other than a government sponsored agency of the U.S. Government) that had an aggregate book value in excess of 10% of our total assets. The following tables set forth the credit characteristics of our securities portfolio as of December 31, 2006 and December 31, 2005: Characteristics of Our Investment Securities (dollar amounts in thousands): Characteristics of Our Investment Securities (dollar amounts in thousands): December 31, 2006 Sponsor or Rating Par Value Carrying Value % of Portfolio Coupon Yield Credit Agency REMIC CMO Floating Rate FNMA/FHLMC/GNMA $ 163,121 $ 163,898 34 % 6.72 % 6.40 % Private Label Floating Rate AAA 22,392 22,284 5 % 6.12 % 6.46 % Private Label ARMs AAA 287,018 284,874 58 % 4.82 % 5.71 % NYMT Retained Securities AAA-BBB 15,996 15,894 3 % 5.67 % 6.02 % NYMT Retained Securities Below Investment Grade 2,767 2,012 0 % 5.67 % 18.35 % Total/Weighted Average $ 491,294 $ 488,962 100 % 5.54 % 6.06 % December 31, 2005 Sponsor or Rating Par Value Carrying Value % of Portfolio Coupon Yield Credit Agency REMIC CMO Floating Rate FNMA/FHLMC/GNMA $ 13,505 $ 13,535 2 % 5.56 % 5.45 % FHLMC Agency ARMs FHLMC 91,835 91,217 13 % 4.28 % 3.82 % FNMA Agency ARMs FNMA 298,526 297,048 41 % 4.18 % 3.91 % Private Label ARMs AAA 315,835 314,682 44 % 4.74 % 4.51 % Total/Weighted Average $ 719,701 $ 716,482 100 % 4.47 % 4.19 % 40  The following table sets forth the stated reset periods and weighted average yields of our investment securities at December 31, 2006 and December 31, 2005 (dollar amounts in thousands): Mortgage Lending Related Assets Mortgage Loans Held for Sale. Mortgage loans that we have originated but do not intend to hold for investment and are held pending sale to investors are classified as “mortgage loans held for sale.” We had mortgage loans held for sale of $106.9 million at December 31, 2006 as compared to $108.3 million at December 31, 2005. We use warehouse lines of credit and loan aggregation facilities to finance our mortgage loans held for sale. Fluctuations in mortgage loans held for sale, warehouse lines of credit, due to/from loan purchasers and related accounts are dependent on factors such as loan production, seasonality and our investor’s ability to purchase loans on a timely basis. Due from Purchasers. We had amounts due from loan purchasers totaling $88.4 million at December 31, 2006 as compared to $121.8 million at December 31, 2005. Amounts due from loan purchasers are a receivable for the principal and premium due to us for loans that have been shipped to permanent investors but for which payment has not yet been received at period end. Escrow Deposits - Pending Loan Closings . We had escrow deposits pending loan closing of $3.8 million at December 31, 2006 as compared to $1.4 million at December 31, 2005. Escrow deposits pending loan closing are advance cash fundings by us to escrow agents to be used to close loans within the next one to three business days. Non-Loan or Investment Assets Cash and Cash Equivalents. We had unrestricted cash and cash equivalents of $0.9 million at December 31, 2006 versus $9.1 million at December 31, 2005. Less than 6 Months More than 6 Months To 24 Months More than 24 Months To 60 Months Total December 31, 2006 Carrying Value Weighted Average Yield Carrying Value Weighted Average Yield Carrying Value Weighted Average Yield Carrying Value Weighted Average Yield Agency REMIC CMO Floating Rate $ 163,898 6.40 % $ — — $ — — $ 163,898 6.40 % Private Label Floating Rate 22,284 6.46 % — — — — 22,284 6.46 % Private Label ARMs 16,673 5.60 % 78,565 5.80 % 183,612 5.64 % 278,850 5.68 % NYMT Retained Securities 6,024 7.12 % — — 17,906 7.83 % 23,930 7.66 % Total $ 208,879 6.37 % $ 78,565 5.80 % $ 201,518 5.84 % $ 488,962 6.06 % Less than 6 Months More than 6 Months To 24 Months More than 24 Months To 60 Months Total December 31, 2005 Carrying Value Weighted Average Yield Carrying Value Weighted Average Yield Carrying Value Weighted Average Yield Carrying Value Weighted Average Yield Agency REMIC CMO Floating Rate $ 13,535 5.45 % $ — $ — — $ 13,535 5.45 % FHLMC Agency ARMs — — 91,217 3.82 % — — 91,217 3.82 % FNMA Agency ARMs — — 297,048 3.91 % — — 297,048 3.91 % Private Label ARMs — — 57,605 4.22 % 257,077 4.57 % 314,682 4.51 % Total $ 13,535 5.45 % $ 445,870 3.93 % $ 257,077 4.57 % $ 716,482 4.19 % 41  Prepaid and Other Assets . Prepaid and other assets totaled $20.5 million as of December 31, 2006. Prepaid and other assets consist primarily of a deferred tax benefit of $18.4 million and loans held by us which are pending remedial action (such as updating loan documentation) or which do not currently meet third-party investor criteria. Property and Equipment, Net - Property and equipment totaled $6.5 million as of December 31, 2006 and have estimated lives ranging from three to ten years, and are stated at cost less accumulated depreciation and amortization. Depreciation is determined in amounts sufficient to charge the cost of depreciable assets to operations over their estimated service lives using the straight-line method. Leasehold improvements are amortized over the lesser of the life of the lease or service lives of the improvements using the straight-line method. Balance Sheet Analysis - Financing Arrangements Financing Arrangements, Mortgage Loans Held for Sale/for Investment. We had debt outstanding on our financing facilities which finance our mortgage loans held for sale of $173.0 million at December 31, 2006 as compared to $225.2 million at December 31, 2005. As of December 31, 2006, the current weighted average borrowing rate on these financing facilities is 5.93%. The fluctuations in mortgage loans held for sale and short-term borrowings are dependent on loans we have originated during the period as well as loans we have sold outright. Financing Arrangements, Portfolio Investments . We have arrangements to enter into repurchase agreements with 23 different financial institutions having a total line capacity of $5.1 billion. As of December 31, 2006 and December 31, 2005, there were $0.8 billion and $1.2 billion, respectively, of repurchase borrowings outstanding. Our repurchase agreements typically have terms of 30 days. As of December 31, 2006, the current weighted average borrowing rate on these financing facilities is 5.37%. Collateralized Debt Obligations . There were no new securitization transactions accounted for as a financing during 2006. On December 20, 2005 we issued CDOs secured by ARM loans and restricted cash placed as collateral for prefunded loans which will be replaced by ARM loans within 30 days. For financial reporting purposes, the ARM loans and restricted cash held as collateral are recorded as assets of the Company and the CDO is recorded as the Company’s debt. The transaction includes interest rate caps and are held by the trust and recorded as an asset or liability of the Company. The interest rate cap limits the interest rate exposure on these transactions. As of December 31, 2006 we have CDO outstanding of $197.4 million with an average interest rate of 5.72%. Subordinated Debentures . As of December 31, 2006, we have trust preferred securities outstanding of $45.0 million. The securities are fully guaranteed by the Company with respect to distributions and amounts payable upon liquidation, redemption or repayment. These securities are classified as subordinated debentures in the liability section of the Company’s consolidated balance sheet. $25.0 million of our subordinated debentures have a floating interest rate equal to three-month LIBOR plus 3.75%, resetting quarterly (9.12% at December 31, 2006). These securities mature on March 15, 2035 and may be called at par by the Company any time after March 15, 2010. NYMC entered into an interest rate cap agreement to limit the maximum interest rate cost of the trust preferred securities to 7.5%. The term of the interest rate cap agreement is five years and resets quarterly in conjunction with the reset periods of the trust preferred securities. $20 million of our subordinated debentures have a fixed interest rate equal to 8.35% up to and including July 30, 2010, at which point the interest rate is converted to a floating rate equal to one-month LIBOR plus 3.95% until maturity. The securities mature on October 30, 2035 and may be called at par by the Company any time after October 30, 2010. Derivative Assets and Liabilities . We generally hedge only the risk related to changes in the benchmark interest rate used in the variable rate index, usually a London Interbank Offered Rate, known as LIBOR, or a U.S. Treasury rate. In order to reduce these risks, we enter into interest rate swap agreements whereby we receive floating rate payments in exchange for fixed rate payments, effectively converting the borrowing to a fixed rate. We also enter into interest rate cap agreements whereby, in exchange for a fee, we are reimbursed for interest paid in excess of a contractually specified capped rate. Derivative financial instruments contain credit risk to the extent that the institutional counterparties may be unable to meet the terms of the agreements. We minimize this risk by using multiple counterparties and limiting our counterparties to major financial institutions with good credit ratings. In addition, we regularly monitor the potential risk of loss with any one party resulting from this type of credit risk. Accordingly, we do not expect any material losses as a result of default by other parties. We enter into derivative transactions solely for risk management purposes. The decision of whether or not a given transaction (or portion thereof) is hedged is made on a case-by-case basis, based on the risks involved and other factors as determined by senior management, including the financial impact on income and asset valuation and the restrictions imposed on REIT hedging activities by the Internal Revenue Code, among others. In determining whether to hedge a risk, we may consider whether other assets, liabilities, firm commitments and anticipated transactions already offset or reduce the risk. All transactions undertaken as a hedge are entered into with a view towards minimizing the potential for economic losses that could be incurred by us. Generally, all derivatives entered into are intended to qualify as hedges in accordance with GAAP, unless specifically precluded under SFAS No. 133 Accounting for Derivative Instruments and Hedging Activities. To this end, terms of the hedges are matched closely to the terms of hedged items. 42  We have also developed risk management programs and processes designed to manage market risk associated with normal mortgage banking and mortgage-backed securities investment activities. In the normal course of our mortgage loan origination business, we enter into contractual interest rate lock commitments, or IRLCs, to extend credit to finance residential mortgages. These commitments, which contain fixed expiration dates, become effective when eligible borrowers lock-in a specified interest rate within time frames established by our origination, credit and underwriting practices. Interest rate risk arises if interest rates change between the time of the lock-in of the rate by the borrower and the sale of the loan. To mitigate the effect of the interest rate risk inherent in issuing an IRLC from the lock-in date to the funding date of a loan, we generally enter into forward sale loan contracts, or FSLCs. Once a loan has been funded, our risk management objective for our mortgage loans held for sale is to protect earnings from an unexpected charge due to a decline in value of such mortgage loans. Our strategy is to engage in a risk management program involving the designation of FSLCs (the same FSLCs entered into at the time of the IRLC) to hedge most of our mortgage loans held for sale. The following table summarizes the estimated fair value of derivative assets and liabilities as of December 31, 2006 and December 31, 2005 (dollar amounts in thousands): Balance Sheet Analysis - Stockholders’ Equity Stockholders’ equity at December 31, 2006 was $71.6 million and included $4.4 million of net unrealized losses on available for sale securities and cash flow hedges presented as accumulated other comprehensive income. Securitizations NYMT 2006-1- During the twelve month period ended December 31, 2006, we completed the securitization of approximately $277.4 million of high-credit quality, first-lien, adjustable rate mortgage and hybrid adjustable rate mortgages. We accounted for this securitization as a non-recourse sale in accordance with SFAS 140, “Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities.” December 31, 2006 December 31, 2005 Derivative Assets: Continuing Operations: Interest rate caps $ 1,045 $ 2,163 Interest rate swaps 621 6,383 Total derivative assets, continuing operations 1,666 8,546 Discontinued Operation: Interest rate caps 966 1,177 Forward loan sale contracts - loan commitments 48 — Forward loan sale contracts - mortgage loans held for sale 39 — Forward loan sale contracts - TBA securities 84 — Interest rate lock commitments - loan commitments — 123 Total derivative assets, discontinued operation 1,137 1,300 Total derivative assets $ 2,803 $ 9,846 Derivative liabilities: Discontinued Operation: Forward loan sale contracts - loan commitments $ — $ (38 ) Forward loan sale contracts - mortgage loans held for sale — (18 ) Forward loan sale contracts - TBA securities — (324 ) Interest rate lock commitments - loan commitments (118 ) — Interest rate lock commitments - mortgage loans held for sale (98 ) (14 ) Total derivative liabilities, discontinued operation $ (216 ) $ (394 )  43  The amount of each class of notes, together with the interest rate and credit ratings for each class are set forth below (dollar amounts in thousands): NR-such rating agency has not been asked to rate these certificates. During 2005, we completed three CDO transactions in which we securitized $896.9 million of our residential mortgage loans into a series of multi-class adjustable rate securities. In the first two CDOs, we elected to retain 100% of the resultant securities and finance them through repurchase agreements. The creation of mortgage-backed securities of our mortgage loans in this manner provides an asset with better liquidity and longer-term financing at better rates as opposed to financing whole loans through warehouse lines. Beginning with our third CDO of self-originated mortgage loans in December 2005, $235 million of ARM loans were permanently financed through the issuance of securities to third parties. Because we did not retain all of the resultant securities as in prior CDOs, this securitization eliminated the risk of short-term financing (eliminating the asset to liability duration gap) and the mark-to-market pricing risk inherent in financing through repurchase agreements or warehouse lines of credit; as a result of this permanent financing we are not subject to margin calls. We did not account for these securitizations as sales because the transactions are secured borrowings under SFAS 140, “Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities.” A summary of the three CDOs completed in 2005 follows. New York Mortgage Trust 2005-1. February 25, 2005 - securitization of approximately $419.0 million of high-credit quality, first-lien, adjustable rate mortgage and hybrid adjustable rate mortgages. The amount of each class of notes, together with the interest rate and credit ratings for each class as rated by S&P, are set forth below (dollar amounts in thousands): At the time of securitization, the weighted average loan-to-value of the mortgage loans in the trust was approximately 68.8% and the weighted average FICO score was approximately 729. The weighted average current loan rate of the pool of mortgage loans is approximately 5.36% and the weighted average maximum loan rate (after periodic rate resets) is 10.62%, and weighted average months to roll of 17months with 64% rolling in 6 months. New York Mortgage Trust 2005-2. July 29, 2005 - securitization of approximately $242.9 million of high-credit quality, first-lien, adjustable rate mortgage and hybrid adjustable rate mortgages. The amount of each class of notes, together with the interest rate and credit ratings for each class as rated by S&P, are set forth below (dollar amounts in thousands): Class Approximate Principal Amount Interest Rate (%) Moody’s/Fitch Rating 1-A-1 $ 6,726 5.648 Aaa/AAA 2-A-1 148,906 5.673 Aaa/AAA 2-A-2 20,143 5.673 Aaa/AAA 2-A-3 65,756 5.673 Aaa/AAA 2-A-4 9,275 5.673 Aa1/AAA 3-A-1 16,055 5.855 Aaa/AAA B-1 3,746 5.683 Aa2/AA B-2 2,497 5.683 A2/A B-3 1,525 5.683 Baa2/BBB B-4 1,387 5.683 NR/BB B-5 694 5.683 NR/B B-6 $ 693 5.683 NR Class Approximate Principal Amount Interest Rate S&P Rating A $ 391,761 LIBOR + 27bps AAA M-1 $ 18,854 LIBOR + 50bps AA M-2 $ 6,075 LIBOR + 85bps A Class Approximate Principal Amount Interest Rate S&P Rating A $ 217,126 LIBOR + 33bps AAA  At the time of securitization, the weighted average loan-to-value of the mortgage loans in the trust was approximately 69.8% and the weighted average FICO score was approximately 736. The weighted average current loan rate of the pool of mortgage loans is approximately 5.46% and the weighted average maximum loan rate (after periodic rate resets) is 11.22%. M-1 $ 16,029 LIBOR + 60 bps AA M-2 $ 6,314 LIBOR + 100 bps A 44  New York Mortgage Trust 2005-3. December 20, 2005 - securitization of approximately $235.0 million of high-credit quality, first-lien, adjustable rate mortgage and hybrid adjustable rate mortgages. The amount of each class of notes, together with the interest rate and credit ratings for each class as rated by S&P and Moody’s, are set forth below (dollar amounts in thousands): At the time of securitization, the weighted average loan-to-value of the mortgage loans in the Trust was approximately 69.5% and the weighted average FICO score was approximately 732. The weighted average current loan rate of the pool of mortgage loans is approximately 5.79% and the weighted average maximum loan rate (after periodic rate resets) is 11.58%. Prepayment Experience The cumulative prepayment rate (“CPR”) on our mortgage loan portfolio averaged approximately 19% during 2006 as compared to 27% during 2005. CPRs on our purchased portfolio of investment securities averaged approximately 16% while the CPRs on loans held for investment or held in our securitization trusts averaged approximately 22% during 2006. When prepayment expectations over the remaining life of assets increase, we have to amortize premiums over a shorter time period resulting in a reduced yield to maturity on our investment assets. Conversely, if prepayment expectations decrease, the premium would be amortized over a longer period resulting in a higher yield to maturity. We monitor our prepayment experience on a monthly basis and adjust the amortization of our net premiums accordingly. Results of Operations Our results of operations for our mortgage portfolio management segment during a given period typically reflect the net interest spread earned on our investment portfolio of residential mortgage loans and mortgage-backed securities. The net interest spread is impacted by factors such as our cost of financing, the interest rate our investments are earning and our interest hedging strategies. Furthermore, the cost of originating loans held in our portfolio, the amount of premium or discount paid on purchased portfolio investments and the prepayment rates on portfolio investments will impact the net interest spread as such factors will be amortized over the expected term of such investments. Our results of operations for our mortgage lending segment during a given period typically reflect the total volume of loans originated and closed by us during that period. The volume of closed loan originations generated by us in any period is impacted by a variety of factors. These factors include: Class Approximate Principal Amount Interest Rate S&P/Moody’s Rating A-1 $ 70,000 LIBOR + 24bps AAA / Aaa A-2 $ 98,267 LIBOR + 23bps AAA / Aaa A-3 $ 10,920 LIBOR + 32bps AAA / Aaa M-1 $ 25,380 LIBOR + 45bps AA+ / Aa2 M-2 $ 24,088 LIBOR + 68 bps AA / A2 • The demand for new mortgage loans. Reduced demand for mortgage loans causes closed loan origination volume to decline. Demand for new mortgage loans is directly impacted by current interest rate trends and other economic conditions. Rising interest rates tend to reduce demand for new mortgage loans, particularly loan refinancings, and falling interest rates tend to increase demand for new mortgage loans, particularly loan refinancings. • Loan refinancing and home purchase trends. As discussed above, the volume of loan refinancings tends to increase following declines in interest rates and to decrease when interest rates rise. The volume of home purchases is also affected by interest rates, although to a lesser extent than refinancing volume. Home purchase trends are also affected by other economic changes such as inflation, improvements in the stock market, unemployment rates and other similar factors. 45  In its February 12, 2007 Mortgage Finance Forecast, the MBA estimated that closed loan originations in the industry declined to $3.03 trillion in 2005 and $2.51 trillion in 2006. Although not forecast, a decline in the overall volume of closed loan originations may have a negative effect on our loan origination volume and net income. The volume and cost of our loan production is critical to our financial results. The loans we produce generate gains as they are sold to third parties. Loans we retain for securitization serve as collateral for our mortgage securities. We do not recognize gain on sale income on loans originated by us and retained in our investment portfolio as they are recorded at cost and will generate revenues through their maturity and ultimate repayment. As the cost basis of a retained loan is typically lower than loans purchased from third parties or already placed in a securitization, we would expect an incremental yield increase on these loans relative to their purchased counterparts. The cost of our production is also critical to our financial results as it is a significant factor in the gains we recognize. In addition, the type of loan production is an important factor in recognizing gain on sale premiums. Beginning near the end of the first quarter of 2004, our volume of FHA loans increased. Generally, FHA loans have lower average balances and FICO scores which are reflected in the statistics above. All FHA loans are currently and will be in the future sold or brokered to third parties. The following table summarizes our loan production for each quarter of 2006, 2005 and 2004. • Seasonality. Historically, according to the MBA, loan originations during late November, December, January and February of each year are typically lower than during other months in the year due, in part, to inclement weather, fewer business days (due to holidays and the short month of February), and the fact that home buyers tend to purchase homes during the warmer months of the year. As a result, loan volumes tend to be lower in the first and fourth quarters of a year than in the second and third quarters. • Occasional spikes in volume resulting from isolated events. Mortgage lenders may experience spikes in loan origination volume from time to time due to non-recurring events or transactions, such as a large mass closing of a condominium project for which a bulk end-loan commitment was negotiated. Number of Loans Aggregate Principal Balance ($ in millions) Percentage Of Total Principal Weighted Average Interest Rate Average Principal Balance Weighted Average LTV FICO 2006: Fourth Quarter ARM 647 $ 218.2 37.3 % 7.10 % $ 337,270 73.5 699 Fixed-rate 1,609 353.7 60.4 % 7.14 % 219,835 75.8 712 Subtotal-non-FHA 2,256 571.9 97.7 % 7.13 % 253,514 74.9 707 FHA - ARM — — — — — — — FHA - fixed-rate 83 13.7 2.3 % 6.42 % 164,723 94.6 650 Subtotal - FHA 83 13.7 2.3 % 6.42 % 164,723 94.6 650 Total ARM 647 218.2 37.3 % 7.10 % 337,270 73.5 699 Total fixed-rate 1,692 367.4 62.7 % 7.11 % 217,132 76.5 709 Total Originations 2,339 $ 585.6 100.0 % 7.11 % $ 250,364 75.4 706 Purchase mortgages 1,350 $ 306.0 52.3 % 7.22 % $ 226,633 80.2 720 Refinancings 906 265.9 45.4 % 7.02 % 293,570 68.8 693 Subtotal-non-FHA 2,256 571.9 97.7 % 7.13 % 253,514 74.9 707 FHA - purchase 71 11.3 1.9 % 6.35 % 159,550 96.9 661 FHA - refinancings 12 2.4 0.4 % 6.74 % 195,333 83.4 597 Subtotal - FHA 83 13.7 2.3 % 6.42 % 164,723 94.6 650 Total purchase 1,421 317.3 54.2 % 7.19 % 223,281 80.8 717 Total refinancings 918 268.3 45.8 % 7.02 % 292,286 69.0 692 Total Originations 2,339 $ 585.6 100.0 % 7.11 % $ 250,364 75.4 706 46  Third Quarter ARM 794 $ 237.6 39.4 % 7.27 % $ 299,209 72.8 704 Fixed-rate 1,709 351.1 58.2 % 7.48 % 205,433 75.6 711 Subtotal-non-FHA 2,503 588.7 97.6 % 7.39 % 235,180 74.5 708 FHA - ARM 3 1.2 0.2 % 6.06 % 423,701 96.1 681 FHA - fixed-rate 82 12.9 2.2 % 6.61 % 157,096 96.1 652 Subtotal - FHA 85 14.1 2.4 % 6.56 % 166,506 95.7 654 Total ARM 797 238.8 39.6 % 7.27 % 299,678 72.9 704 Total fixed-rate 1,791 364.0 60.4 % 7.45 % 203,220 76.4 709 Total Originations 2,588 $ 602.8 100.0 % 7.38 % $ 232,925 75.0 707 Purchase mortgages 1,594 $ 352.6 58.5 7.47 % $ 221,215 79.0 718 Refinancings 909 236.1 39.1 7.28 % 259,670 67.8 693 Subtotal-non-FHA 2,503 588.7 97.6 % 7.39 % 235,180 74.5 708 FHA - purchase 70 11.9 2.0 6.50 % 170,453 96.5 664 FHA - refinancings 15 2.2 0.4 6.84 % 148,087 91.4 604 Subtotal - FHA 85 14.1 2.4 6.56 % 166,506 95.7 654 Total purchase 1,664 364.5 60.5 7.44 % 219,079 79.5 716 Total refinancings 924 238.3 39.5 7.27 % 257,858 68.0 692 Total Originations 2,588 $ 602.8 100.0 % 7.38 % $ 232,925 75.0 707 Second Quarter ARM 1,021 $ 352.4 47.5 % 6.83 % $ 345,116 72.2 711 Fixed-rate 1,687 358.8 48.4 % 7.21 % 212,710 75.1 713 Subtotal-non-FHA 2,708 711.2 95.9 % 7.02 % 262,631 73.7 712 FHA - ARM 7 1.7 0.2 % 5.60 % 242,250 95.8 608 FHA - fixed-rate 170 28.9 3.9 % 6.32 % 169,950 93.3 662 Subtotal - FHA 177 30.6 4.1 % 6.28 % 172,809 93.4 659 Total ARM 1,028 354.1 47.7 % 6.82 % 344,415 72.3 711 Total fixed-rate 1,857 387.7 52.3 % 7.14 % 208,795 76.5 709 Total Originations 2,885 $ 741.8 100.0 % 6.99 % $ 257,120 74.5 710 Purchase mortgages 1,792 $ 434.7 58.6 % 7.10 % $ 242,591 78.7 720 Refinancings 916 276.5 37.3 % 6.89 % 301,836 65.8 698 Subtotal-non-FHA 2,708 711.2 95.9 % 7.02 % 262,631 73.7 712 FHA - purchase 108 19.2 2.6 % 6.23 % 178,164 96.6 669 FHA - refinancings 69 11.4 1.5 % 6.38 % 164,429 88.0 642 Subtotal - FHA 177 30.6 4.1 % 6.28 % 172,809 93.4 659 Total purchase 1,900 453.9 61.2 % 7.07 % 238,929 79.4 718 Total refinancings 985 287.9 38.8 % 6.87 % 292,210 66.7 696 Total Originations 2,885 $ 741.8 100.0 % 6.99 % $ 257,120 74.5 710 47  First Quarter ARM 924 $ 290.6 47.3 % 6.71 % $ 314,555 71.6 705 Fixed-rate 1,442 299.2 48.8 % 7.06 % 207,519 73.3 712 Subtotal-non-FHA 2,366 589.8 96.1 % 6.89 % 249,320 72.5 709 FHA - ARM 2 0.5 0.1 % 5.57 % 228,253 93.0 646 FHA - fixed-rate 142 23.5 3.8 % 6.13 % 165,161 92.7 650 Subtotal - FHA 144 24.0 3.9 % 6.12 % 166,037 92.7 650 Total ARM 926 291.1 47.4 % 6.71 % 314,369 71.7 705 Total fixed-rate 1,584 322.7 52.6 % 6.99 % 203,722 74.7 708 Total Originations 2,510 $ 613.8 100.0 % 6.86 % $ 244,542 73.2 706 Purchase mortgages 1,430 $ 335.5 54.7 % 6.94 % $ 234,600 77.2 722 Refinancings 936 254.3 41.4 % 6.81 % 271,809 66.2 692 Subtotal-non-FHA 2,366 589.8 96.1 % 6.89 % 249,320 72.5 709 FHA - purchase 70 12.7 2.1 % 6.07 % 181,325 96.4 655 FHA - refinancings 74 11.3 1.8 % 6.17 % 151,576 88.6 645 Subtotal - FHA 144 24.0 3.9 % 6.12 % 166,037 92.7 650 Total purchase 1,500 348.2 56.7 % 6.91 % 232,144 77.9 719 Total refinancings 1,010 265.6 43.3 % 6.78 % 263,000 67.1 690 Total Originations 2,510 $ 613.8 100.0 % 6.86 % $ 244,542 73.2 706 Number of Loans Aggregate Principal Balance ($ in millions) Percentage Of Total Principal Weighted Average Interest Rate Average Principal Balance Weighted Average LTV FICO 2005: Fourth Quarter ARM 1,321 $ 452.5 55.0 % 6.33 % $ 342,551 71.9 700 Fixed-rate 1,617 343.7 41.8 % 6.79 % 212,524 72.2 712 Subtotal-non-FHA 2,938 796.2 96.8 % 6.53 % 270,987 72.1 705 FHA - ARM 1 0.2 0.0 % 5.80 % 157,545 84.6 655 FHA - fixed-rate 194 26.5 3.2 % 6.06 % 136,820 93.5 639 Subtotal - FHA 195 26.7 3.2 % 6.06 % 136,927 93.4 639 Total ARM 1,322 452.7 55.0 % 6.33 % 342,411 72.0 700 Total fixed-rate 1,811 370.2 45.0 % 6.74 % 204,414 73.7 707 Total Originations 3,133 $ 822.9 100.0 % 6.52 % $ 262,643 72.7 703 Purchase mortgages 1,949 $ 426.8 51.9 % 6.73 % $ 218,995 78.5 716 Refinancings 989 369.4 44.9 % 6.29 % 373,447 64.5 692 Subtotal-non-FHA 2,938 796.2 96.8 % 6.53 % 270,987 72.1 705 FHA - purchase 38 6.1 0.7 % 6.40 % 161,278 97.4 649 FHA - refinancings 157 20.6 2.5 % 5.95 % 131,033 92.1 636 Subtotal - FHA 195 26.7 3.2 % 6.06 % 136,927 93.4 639 Total purchase 1,987 433.0 52.6 % 6.72 % 217,891 78.8 715 Total refinancings 1,146 389.9 47.4 % 6.28 % 340,237 66.0 689  Total Originations 3,133 $ 822.9 100.0 % 6.52 % $ 262,643 72.7 703 48  Third Quarter ARM 1,727 $ 513.3 51.2 % 6.10 % $ 297,213 73.8 705 Fixed-rate 1,946 392.2 39.1 % 6.43 % 201,537 73.2 717 Subtotal-non-FHA 3,673 905.5 90.3 % 6.25 % 246,522 73.5 710 FHA - ARM 4 0.8 0.1 % 5.80 % 217,202 94.7 642 FHA - fixed-rate 700 95.9 9.6 % 5.72 % 136,954 92.9 633 Subtotal - FHA 704 96.7 9.7 % 5.72 % 137,410 93.0 633 Total ARM 1,731 514.1 51.3 % 6.10 % 297,028 73.8 705 Total fixed-rate 2,646 488.1 48.7 % 6.29 % 184,451 77.1 700 Total Originations 4,377 $ 1,002.2 100.0 % 6.19 % $ 228,973 75.4 703 Purchase mortgages 2,568 $ 558.1 55.7 % 6.39 % $ 217,314 78.1 719 Refinancings 1,105 347.4 34.6 % 6.01 % 314,402 66.2 696 Subtotal-non-FHA 3,673 905.5 90.3 % 6.25 % 246,522 73.5 710 FHA - purchase 71 11.7 1.2 % 6.05 % 165,045 96.3 659 FHA - refinancings 633 85.0 8.5 % 5.67 % 134,310 92.5 630 Subtotal - FHA 704 96.7 9.7 % 5.72 % 137,410 93.0 633 Total purchase 2,639 569.8 56.9 % 6.38 % 215,908 78.5 718 Total refinancings 1,738 432.4 43.1 % 5.94 % 248,811 71.4 683 Total Originations 4,377 $ 1,002.2 100.0 % 6.19 % $ 228,973 75.4 703 Second Quarter ARM 1,839 $ 537.9 57.2 % 5.90 % $ 292,482 72.7 709 Fixed-rate 1,777 337.1 35.9 % 6.47 % 189,732 72.7 718 Subtotal-non-FHA 3,616 875.0 93.1 % 6.12 % 241,988 72.7 712 FHA - ARM 30 4.8 0.5 % 5.34 % 159,088 93.7 611 FHA - fixed-rate 449 59.9 6.4 % 5.97 % 133,408 92.6 624 Subtotal - FHA 479 64.7 6.9 % 5.92 % 135,016 92.7 623 Total ARM 1,869 542.7 57.8 % 5.89 % 290,341 72.8 708 Total fixed-rate 2,226 397.0 42.2 % 6.39 % 178,371 75.7 704 Total Originations 4,095 $ 939.7 100.0 % 6.10 % $ 229,475 74.0 706 Purchase mortgages 2,652 $ 587.8 62.6 % 6.21 % $ 221,657 76.4 720 Refinancings 964 287.2 30.5 % 5.94 % 297,918 65.1 695 Subtotal-non-FHA 3,616 875.0 93.1 % 6.12 % 241,988 72.7 712 FHA - purchase 85 13.9 1.5 % 5.99 % 163,693 96.3 644 FHA - refinancings 394 50.8 5.4 % 5.91 % 128,829 91.7 617 Subtotal - FHA 479 64.7 6.9 % 5.92 % 135,016 92.7 623 Total purchase 2,737 601.7 64.0 % 6.20 % 219,857 76.8 719 Total refinancings 1,358 338.0 36.0 % 5.93 % 248,860 69.1 684 Total Originations 4,095 $ 939.7 100.0 % 6.10 % $ 228,973 74.0 706 49  First Quarter ARM 1,313 $ 355.3 52.8 % 5.61 % $ 270,603 72.7 708 Fixed-rate 1,274 247.8 36.9 % 6.31 % 194,541 71.4 719 Subtotal-non-FHA 2,587 603.1 89.7 % 5.90 % 233,145 72.2 712 FHA - ARM 59 9.5 1.4 % 5.10 % 160,093 93.8 648 FHA - fixed-rate 462 59.9 8.9 % 5.85 % 129,756 92.2 635 Subtotal - FHA 521 69.4 10.3 % 5.75 % 133,191 92.4 637 Total ARM 1,372 364.8 54.2 % 5.60 % 265,851 73.2 706 Total fixed-rate 1,736 307.7 45.8 % 6.22 % 177,299 75.5 703 Total Originations 3,108 $ 672.5 100.0 % 5.88 % $ 216,390 74.3 705 Purchase mortgages 1,717 $ 365.9 54.4 % 6.03 % $ 213,081 76.2 723 Refinancings 870 237.2 35.3 % 5.69 % 272,743 66.0 696 Subtotal-non-FHA 2,587 603.1 89.7 % 5.90 % 233,145 72.2 712 FHA - purchase 95 15.1 2.2 % 5.66 % 158,699 97.2 672 FHA - refinancings 426 54.3 8.1 % 5.78 % 127,503 91.0 627 Subtotal - FHA 521 69.4 10.3 % 5.75 % 133,191 92.4 637 Total purchase 1,812 381.0 56.6 % 6.02 % 210,230 77.0 721 Total refinancings 1,296 291.5 43.4 % 5.71 % 225,002 70.7 683 Total Originations 3,108 $ 672.5 100.0 % 5.88 % $ 216,390 74.3 705 2004: Fourth Quarter ARM 1,094 $ 330.1 52.2 % 5.23 % $ 301,765 71.1 714 Fixed-rate 956 206.8 32.7 % 6.32 % 216,266 72.1 714 Subtotal-non-FHA 2,050 536.9 84.9 % 5.65 % 261,893 71.5 714 FHA - ARM 150 19.5 3.1 % 5.20 % 130,215 92.7 627 FHA - fixed-rate 599 76.2 12.0 % 6.04 % 127,281 92.0 622 Subtotal - FHA 749 95.7 15.1 % 5.87 % 127,868 92.1 623 Total ARM 1,244 349.6 55.3 % 5.23 % 281,080 72.3 709 Total fixed-rate 1,555 283.0 44.7 % 6.24 % 181,988 77.5 689 Total Originations 2,799 $ 632.6 100.0 % 5.68 % $ 226,029 74.6 700 Purchase mortgages 1,426 $ 353.3 55.9 % 5.65 % $ 247,722 75.1 724 Refinancings 624 183.6 29.0 % 5.65 % 294,278 64.4 694 Subtotal-non-FHA 2,050 536.9 84.9 % 5.65 % 261,893 71.5 714 FHA - purchase 82 13.3 2.1 % 5.93 % 162,494 96.4 647 FHA - refinancings 667 82.4 13.0 % 5.86 % 123,611 91.4 619 Subtotal - FHA 749 95.7 15.1 % 5.87 % 127,868 92.1 623 Total purchase 1,508 366.6 57.9 % 5.66 % 243,088 75.9 721 Total refinancings 1,291 266.0 42.1 % 5.71 % 206,102 72.8 671 Total Originations 2,799 $ 632.6 100.0 % 5.68 % $ 226,029 74.6 700 50  Third Quarter ARM 692 $ 208.9 50.3 % 5.06 % $ 301,879 70.7 718 Fixed-rate 639 145.7 35.1 % 6.70 % 228,013 71.0 714 Subtotal-non-FHA 1,331 354.6 85.4 % 5.73 % 266,416 70.8 716 FHA - ARM 52 6.8 1.6 % 5.29 % 130,769 92.2 597 FHA - fixed-rate 429 54.0 13.0 % 6.33 % 125,874 92.2 612 Subtotal - FHA 481 60.8 14.6 % 6.21 % 126,403 92.2 610 Total ARM 744 215.7 51.9 % 5.07 % 289,919 71.4 714 Total fixed-rate 1,068 199.7 48.1 % 6.60 % 186,985 76.7 687 Total Originations 1,812 $ 415.4 100.0 % 5.80 % $ 229,249 73.9 701 Purchase mortgages 1,019 $ 265.9 64.0 % 5.78 % $ 260,942 73.4 725 Refinancings 312 88.7 21.4 % 5.59 % 284,295 63.1 691 Subtotal-non-FHA 1,331 354.6 85.4 % 5.73 % 266,416 70.8 716 FHA - purchase 54 8.7 2.1 % 6.36 % 161,111 95.0 637 FHA - refinancings 427 52.1 12.5 % 6.18 % 122,014 91.8 605 Subtotal - FHA 481 60.8 14.6 % 6.21 % 126,403 92.2 610 Total purchase 1,073 274.6 66.1 % 5.80 % 255,918 74.1 722 Total refinancings 739 140.8 33.9 % 5.81 % 190,528 73.7 660 Total Originations 1,812 $ 415.4 100.0 % 5.80 % $ 229,249 73.9 701 Second Quarter ARM 781 $ 253.4 49.3 % 4.91 % $ 324,456 69.8 722 Fixed-rate 797 167.2 32.5 % 6.31 % 209,787 70.6 720 Subtotal-non-FHA 1,578 420.6 81.8 % 5.47 % 266,540 70.1 721 FHA - ARM 29 4.1 0.8 % 4.37 % 141,379 93.5 653 FHA - fixed-rate 764 89.3 17.4 % 5.87 % 116,885 91.9 655 Subtotal - FHA 793 93.4 18.2 % 5.81 % 117,781 92.0 654 Total ARM 810 257.5 50.1 % 4.90 % 317,901 70.1 721 Total fixed-rate 1,561 256.5 49.9 % 6.16 % 164,318 78.0 697 Total Originations 2,371 $ 514.0 100.0 % 5.53 % $ 216,786 74.1 709 Purchase mortgages 1,021 $ 262.7 51.1 % 5.46 % $ 257,297 74.8 728 Refinancings 557 157.9 30.7 % 5.48 % 283,483 62.2 711 Subtotal-non-FHA 1,578 420.6 81.8 % 5.47 % 266,540 70.1 721 FHA - purchase 71 10.6 2.1 % 6.25 % 149,296 96.1 633 FHA - refinancings 722 82.8 16.1 % 5.75 % 114,681 91.4 657 Subtotal - FHA 793 93.4 18.2 % 5.81 % 117,781 92.0 654 Total purchase 1,092 273.3 53.2 % 5.49 % 250,275 75.6 724 Total refinancings 1,279 240.7 46.8 % 5.57 % 188,194 72.3 693 Total Originations 2,371 $ 514.0 100.0 % 5.53 % $ 216,786 74.1 709 51  First Quarter ARM 458 $ 121.8 43.0 % 5.55 % $ 265,982 83.8 839 Fixed-rate 578 151.8 53.5 % 5.43 % 262,547 60.1 611 Subtotal-non-FHA 1,036 273.6 96.5 % 5.48 % 264,066 70.7 713 FHA - ARM — — — — — — — FHA - fixed-rate 35 9.8 3.5 % 4.48 % 281,445 68.0 445 Subtotal - FHA 35 9.8 3.5 % 4.48 % 281,445 68.0 445 Total ARM 458 121.8 43.0 % 5.55 % 265,982 83.8 839 Total fixed-rate 613 161.6 57.0 % 5.38 % 263,626 60.6 601 Total Originations 1,071 $ 283.4 100.0 % 5.45 % $ 264,633 70.6 703 Purchase mortgages 623 $ 164.2 57.9 % 5.42 % $ 263,586 74.1 711 Refinancings 413 109.4 38.6 % 5.58 % 264,789 65.5 715 Subtotal-non-FHA 1,036 273.6 96.5 % 5.48 % 264,066 70.7 713 FHA - purchase 27 7.8 2.8 % 4.73 % 289,221 73.2 462 FHA - refinancings 8 2.0 0.7 % 3.55 % 255,200 48.3 380 Subtotal - FHA 35 9.8 3.5 % 4.48 % 281,445 68.0 445 Total purchase 650 172.0 60.7 % 5.39 % 264,651 74.1 700 Total refinancings 421 111.4 39.3 % 5.54 % 264,607 65.2 708 Total Originations 1,071 $ 283.4 100.0 % 5.45 % $ 264,633 70.6 703 52  Any change in loan origination volume and other operational and financial performance results was primarily dependent on the number of offices and our level of staffing these offices. Our personnel costs are largely variable in that loan origination personnel are paid commissions on loan production volume and the related operations personnel are somewhat variable in terms of have flexibility to scale operations based on volume levels. Our staffing levels also have a high correlation to levels of expense for marketing and promotion, office supplies, data processing, and travel and entertainment expenses. Likewise, the number of offices and branches which we operate has a high correlation to occupancy and equipment expense. Other Operational Information As of December 31, 2006 2005 % Change 2004 % Change Loan officers 327 329 (0.6 )% 344 (4.4 )% Other employees 289 473 (38.9 )% 438 8.0 % Total employees 616 802 (23.2 )% 782 2.6 % Number of sales locations 47 54 (13.0 )% 66 (18.2 )% 53  Results of Operations - Comparison of Years Ended December 31, 2006, 2005 and 2004 Net Income - Overview Comparative Net Income For the year ended December 31, 2006, we reported net loss of $15.0 million, as compared to net loss of $5.3 million for the year ended December 31, 2005. The increase in net loss is attributable to a reduction in gain on sale income from the mortgage lending segment as well as a reduction in net interest income from the investment portfolio. In addition the mortgage lending segment incurred a $7.4 million charge related to loan loss reserves. For the year ended December 31, 2005, we reported net loss of $5.3 million, as compared to net income of $4.9 million for the year ended December 31, 2004. The change in net loss is attributed to an increase in gain on sale income and net interest income from our investment portfolio. These gains were offset by the execution of our core business strategy to retain selected originated loans in our portfolio (thus forgoing the gain on sale premiums we would have otherwise received when such loans are sold to third parties), an impairment charge of $7.4 million in the fourth quarter related to $388.3 million of available for sale securities that we now anticipate selling in 2006 in order to rebalance our portfolio with higher yielding assets, one-time severance charges of $3.0 million, and increased expenses incurred for and subsequent to the acquisition of multiple retail loan origination locations during 2004. Comparative Net Interest Income Net interest income was $4.8 million, $12.9 million and $7.9 million for the years ended December 31, 2006, 2005 and 2004. Net interest income decreased by $8.1 million in 2006 from 2005. The change was primarily due to an increase interest expense without the corresponding increase in interest income on the portfolio assets. In addition, the amount invested in the investment securities portfolio and mortgage loans held in securitization trust decreased by approximately $416.0 million as compared to December 31, 2005. Net interest income increased by $5.0 million from 2004 to 2005 and was primarily due to an increase in portfolio assets as the Company continued to implement its investment strategy following the IPO in 2004. In addition, the Company raised $45 million in subordinated debt during 2005 that allowed the Company to increase the portfolio. (dollar amounts in thousands) For the Year Ended December 31, 2006 2005 % Change 2004 % Change Net (loss)/income $ (15,031 ) $ (5,340 ) (181.5 )% $ 4,947 (207.9 )% EPS (Basic) $ (0.83 ) $ (0.30 ) (176.7 )% $ 0.28 (207.1 )% EPS (Diluted) $ (0.83 ) $ (0.30 ) (176.7 )% $ 0.27 (211.1 )% (dollar amounts in thousands) For the Year Ended December 31, 2006 2005 % Change 2004 % Change Interest income $ 64,881 $ 62,725 3.4 % $ 20,394 207.6 % Interest expense 60,097 49,852 20.6 % 12,470 299.8 % Net interest income $ 4,784 $ 12,873 (62.8 )% $ 7,924 62.5 % 54  Revenues Net Interest Income. The following table summarizes the changes in net interest income for 2006, 2005 and 2004: Yields Earned on Mortgage Loans and Securities and Rates on Financial Arrangements For our portfolio investments of investment securities, mortgage loans held for investments and loans held in securitization trusts, our net interest spread for each quarter since we began our portfolio investment activities follows: Comparative Expenses (dollar amounts in thousands) 2006 2005 2004 Average Balance Amount Yield/ Rate Average Balance Amount Yield/ Rate Average Balance Amount Yield/ Rate ($ Millions) ($ Millions) ($ Millions) Interest Income: Investment securities and loans held in the securitization trusts $ 1,266.4 $ 66,973 5.29 % $ 1,347.4 $ 60,988 4.53 % $ 1,006.8 $ 21,338 4.24 % Loans held for investment — — —% 145.7 7,778 5.34 % 32.9 723 4.09 % Amortization of net premium 5.9 $ (2,092 ) (0.16 )% $ 14.7 $ (6,041 ) (0.42 )% $ 11.5 $ (1,667 ) (0.46 )% Interest income $ 1,272.3 $ 64,881 5.13 % $ 1,507.8 $ 62,725 4.16 % $ 1,051.2 $ 20,394 3.89 % Interest Expense: Investment securities and loans held in the securitization trusts $ 1,201.2 $ 56,553 4.64 % $ 1,283.3 $ 42,001 3.23 % $ 930.1 $ 11,982 2.57 % Loans held for investment — — — 142.7 5,847 4.04 % 32.7 488 2.72 % Subordinated debentures 45.0 3,544 7.77 % 26.6 2,004 7.54 % — — — Interest expense $ 1,246.2 $ 60,097 4.76 % $ 1,452.6 $ 49,852 3.39 % $ 962.8 $ 12,470 2.58. % Net interest income $ 26.1 $ 4,784 0.37 % $ 55.2 $ 12,873 0.77 % $ 88.4 $ 7,924 1.31 % As of the Quarter Ended Average Interest Earning Assets ($ millions) Weighted Average Coupon Weighted Average Yield on Interest Earning Assets Cost of Funds Net Interest Spread December 31, 2006 $ 1,111.0 5.53 % 5.35 % 5.26 % 0.09 % September 30, 2006 $ 1,287.6 5.50 % 5.28 % 5.12 % 0.16 % June 30, 2006 $ 1,217.9 5.29 % 5.08 % 4.30 % 0.78 % March 31, 2006 $ 1,478.6 4.85 % 4.75 % 4.04 % 0.71 % December 31, 2005 $ 1,499.0 4.84 % 4.43 % 3.81 % 0.62 % September 30, 2005 $ 1,494.0 4.69 % 4.08 % 3.38 % 0.70 % June 30, 2005 $ 1,590.0 4.50 % 4.06 % 3.06 % 1.00 % March 31, 2005 $ 1,447.9 4.39 % 4.01 % 2.86 % 1.15 % December 31, 2004 $ 1,325.7 4.29 % 3.84 % 2.58 % 1.26 % September 30, 2004 $ 776.5 4.04 % 3.86 % 2.45 % 1.41 % (dollar amounts in thousands) For the Year Ended December 31, 2006 2005 % Change 2004 Salaries, commissions and benefits $ 714 $ 1,934 (63.1 )% $ 382 406.3 % Professional fees 598 853 (30.0 ) 149 472.5 % Depreciation and amortization 276 171 61.4 1 17,000 %  The 63.1% decrease in salaries from December 31, 2005 was primarily due to the severance paid to an executive who left the Company during 2005. Professional fees decreased by $255 thousand or 30% due to a decrease in general legal advisory fees as well as and a reduction in legal fees related to public filings in 2005. Depreciation and amortization increase was primarily due to an upgrade of computer equipment during the year. Other Expense decrease of 92% is due mainly to the reserve charge incurred for the sublease of the previous corporate headquarters. (See note 13) Other $ 82 $ 1,011 (91.9 )% $ 45 2146.6 % 55  It should be noted that certain expenses are shared by the Company and are included as a discontinued operation for this presentation. Income (loss) from discontinued operation In connection with the sale of the Company's wholesale mortgage origination platform assets on February 22, 2007 and the sale of its retail mortgage lending platform assets on March 31, 2007, we are required to classify our Mortgage Lending segment as a discontinued operation in accordance with Statement of Financial Accounting Standards No. 144 (see note 12 in the notes to our consolidated financial statements). The increase in loss from the discontinued operation of $8.5 in the year ended December 31, 2006 from the previous year is mainly attributable to the $8.2 loan loss charge we incurred during the second half of the 2006. In addition, the mortgage lending segment experienced decreased origination volume, increased pricing pressures and changes in product mix which reduced overall profitability. The following is selected financial data detail that is included in income (loss) from the discontinued operation for the years ending December 31, 2006, 2005 and 2004: Net interest income : For the year ending December 31, 2006 net interest income decreased by 21.7% as compared to the previous year. This is mainly due to two factors: the first was an increase in the cost of funds during the first six months of the year without a corresponding increase in average loan coupon and second, the overall average amount of loans held for sale outstanding during the year was lower due to the decrease in origination volume. Gain on Sales of Mortgage Loans. The following table summarizes the gain on sales of mortgage loans for 2006, 2005 and 2004: Gain on Sales of Mortgage Loans (dollar amounts in thousands) For the Year Ended December 31, 2006 2005 % Change 2004 Loss from discontinued operation-net of tax $ (17,197) $ (8,662) (98.5) % $ (1,952) 343.7 % (dollar amounts in thousands) For the Year Ended December 31, 2006 2005 % Change 2004 % Change Net interest income $ 3,524 $ 4,499 (21.7) % $ 3,362 33.8 % (dollar amounts in thousands) For the Year Ended December 31, 2006 2005 % Change 2004 % Change Total banked loan volume $ 1,841,012 $ 2,875,288 (36.0) % $ 1,435,340 100.3 % Total banked loan volume - units 8,018 12,654 (36.6) % 6,882 83.9 % Banked originations retained in portfolio $ 69,739 $ 555,189 (87.4) % $ 95,077 483.9 % Banked originations retained in portfolio - units 134 1,249 (89.3) % 187 567.9 % Net banked loan volume $ 1,771,273 $ 2,320,099 (23.7) % $ 1,340,263 73.1 % Net banked loan volume - units 7,884 11,405 (30.9) % 6,695 70.45 % Gain on sales of mortgage loans $ 17,987 $ 26,783 (32.8 )% $ 20,835 28.6 % 56  The 32.8% decreased in 2006 banked loan volumes was due to an overall industry decline as well as increased competition for our senior loan officers which lead to several departures. The increase in banked loan volumes during the years ended 2005 and 2004 is due to increased loan origination personnel and branch offices as compared to each prior year. The year ended 2005 includes full year utilization of increased personnel and branches while the increases for year ended 2004 primarily occurred in the latter half of the year. The 36% decrease in gain on sales of mortgage loans for the year ending December 31, 2006 is directly related to the decrease in banked origination volume of 33%. Furthermore, gain on sale revenues in 2005 and 2004 are impacted by the execution of our core business strategy: retaining selected adjustable rate mortgages for our investment portfolio. The execution of this strategy, which began in the third quarter of 2004 after our IPO, requires that we forgo the gain on sale premiums (revenues) we would otherwise receive when we sell these loans to third-parties. Instead, the cost basis of these loans, which is far lower than the loan and its associated third-party premium, is retained in our investment portfolio with the inherent value of the loan realized over time. For the years ended December 31, 2006, 2005 and 2004, we originated and retained $69.7 million, $555.2 million and $95.1 million respectively, of loans in our investment portfolio or in the case of 2006 deposited into a REMIC transaction and estimate that the forgone gain on sale premium, net of the cost basis of these loans when retained in our securitization, was $.4 million, $7.5 million and $2.0 million, respectively. The following table summarizes brokered loan volume, fees and related expenses for the fiscal years ended 2006, 2005 and 2004: Brokered Loan Fees and Brokered Loan Expense The increase in brokered loan volume for the year ended 2006 relative to a decrease in overall origination volume for the same period is due to the discontinuance to bank sub-prime and certain other types of mortgage products. The increase in the years ended 2005 and 2004 is due to increased loan origination personnel and branch offices as compared to each prior year. The year ended 2005 includes full year utilization of increased personnel and branches while the increases for year ended 2004 primarily occurred in the latter half of the year. While brokered loan volumes have increased, brokered loan revenues have not had a correlating increase due to lower lender rebates/premiums. Expenses Most of our expenses are directly correlated to our staffing levels and our number of offices: (dollar amounts in thousands) For the Year Ended December 31, 2006 2005 % Change 2004 % Change Total brokered loan volume $ 703.0 $ 562.1 25.07 % $ 410.1 37.1 % Total brokered loan volume - units 2,304 2,059 11.90 % 1,171 75.8 % Brokered loan fees $ 10,937 $ 9,991 9.5 % $ 6,895 44.9 % Brokered loan expenses $ 8,277 $ 7,543 9.7 % $ 5,276 43.0 % (dollar amounts in thousands) For the Year Ended December 31, 2006 2005 % Change 2004 % Change Loan officers 327 329 (0.6 )% 344 (4.4) % Other employees 289 473 (38.9 )% 438 8.0 % Total employees 616 802 (23.2 )% 782 2.6 % Number of sales locations 47 54 (13.0 )% 66 (18.2) % Salaries and benefits $ 21,711 $ 29,045 (25.3 )% $ 16,736 73.5 % Occupancy and equipment 5,077 6,094 (16.7 )% 3,519 73.2 % Marketing and promotion 2,012 4,736 (57.5 )% 3,519 34.6 % Data processing and communications 2,431 2,223 9.4 % 1,424 56.1 %  Office supplies and expenses 1,896 2,312 (18.0 )% 1,515 52.6 % Professional fees 4,144 3,889 6.6 % 1,856 109.5 % Depreciation and amortization $ 2,106 $ 1,708 23.3 % $ 689 147.9 % 57  The majority of the category changes noted above is in direct correlation to the change in loan origination volume of (36%), 100% and 16% for the years ended December 31, 2006, 2005 and 2004 respectively. Professional Fees Expense . During the year ended December 31, 2006, we had professional fees expense of $4.1 million as compared to $3.9 million for the same period of 2005, an increase of less than 7%. The 110% increase in 2005 was primarily due to increase spending for costs of compliance with various regulatory and public company requirements, such as the Sarbanes-Oxley Act of 2002 and increases in dues, licenses and permits in states where NYMC has a new presence. Off-Balance Sheet Arrangements Since inception, we have not maintained any relationships with unconsolidated entities or financial partnerships, such as entities often referred to as structured finance or special purpose entities, established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited purposes. Further, we have not guaranteed any obligations of unconsolidated entities nor do we have any commitment or intent to provide funding to any such entities. Accordingly, we are not materially exposed to any market, credit, liquidity or financing risk that could arise if we had engaged in such relationships. Liquidity and Capital Resources Liquidity is a measure of our ability to meet potential cash requirements, including ongoing commitments to repay borrowings, fund and maintain investments, pay dividends to our stockholders and other general business needs. We recognize the need to have funds available for our operating businesses and our investment portfolio. We plan to meet liquidity through normal operations with the goal of avoiding unplanned sales of assets or emergency borrowing of funds. Current market conditions relative to early payment defaults (“EPD”) 0n mortgage loans have made EPDs an important factor affecting our liquidity. As more fully described in section Loan Loss Reserves on Mortgage Loans , we are generally required to repurchase loans where the borrowers have not timely made some or all of their first three mortgage payments. As the incidence of EPDs has recently increased dramatically, the frequency of loans we are requested to repurchase has increased. These repurchases are predominately made with cash and the loans are held on the balance sheet until they can be sold. EPD loans are sold at a discount to the current balance of the loan, thus reducing our cash position. We believe our existing cash balances and funds available under our warehouse facility and cash flows from operations will be sufficient for our liquidity requirements for at least the next 12 months. Unused borrowing capacity will vary as the market values of our securities vary. Our investments and assets will also generate liquidity on an ongoing basis through mortgage principal and interest payments, pre-payments and net earnings held prior to payment of dividends. Should our liquidity needs ever exceed the on-going or immediate sources of liquidity discussed above, we believe that our securities could be sold to raise additional cash. At December 31, 2006, we had no commitments for any additional financings, however we cannot ensure that we will be able to obtain any future additional financing if and when required and on terms and conditions acceptable to us. To finance our investment portfolio, we generally seek to borrow between eight and 12 times the amount of our equity. At December 31, 2006 our leverage ratio, defined as total financing facilities outstanding divided by total stockholders’ equity was 17. We, and the providers of our finance facilities, generally view our $45.0 million of subordinated trust preferred debentures outstanding at December 31, 2006 as a form of equity which would result in an adjusted leverage ratio of 10 to 1. We have arrangements to enter into repurchase agreements, a form of collateralized short-term borrowing, with 23 different financial institutions with total borrowing capacity of $5.1 billion; as of December 31, 2006 we had $0.8 billion outstanding from six of these firms. These agreements are secured by our mortgage-backed securities and bear interest rates that have historically moved in close relationship to LIBOR. Under these repurchase agreements the financial institutions lend money versus the market value of our mortgage-backed securities portfolio, and, accordingly, an increase in interest rates can have a negative impact on the valuation of these securities, resulting in a potential margin call from the financial institution. We monitor the market valuation fluctuation as well as other liquidity needs to ensure there is adequate collateral available to meet any additional margin calls or liquidity requirements. We enter into interest rate swap agreements to extend the maturity of our repurchase agreements as a mechanism to reduce the interest rate risk of the securities portfolio. At December 31, 2006 we had $285.0 million in interest rate swaps outstanding with two different financial institutions. The weighted average maturity of the swaps was 694 days at December 31, 2006. The impact of the interest swaps extends the maturity of the repurchase agreements to six months. As of December 31, 2006, the Company had three warehouse facilities totaling $750 million, all of which were uncommitted.  58  The documents governing these facilities contains a number of compensating balance requirements and restrictive financial and other covenants that, among other things, require us to maintain a maximum ratio of total liabilities to tangible net worth, of 20 to 1 in the case of each of the CSFB facility and the Greenwich Capital facility and 15 to 1 in the for Deutsche Bank, as well as to comply with applicable regulatory and investor requirements. These facilities also contain various covenants pertaining to, among other things, the maintenance of certain periodic income thresholds and working capital, and maintenance of certain amounts of net worth. As of December 31, 2006, the Company was in compliance with all covenants with the exception of the net income covenant on all three facilities as well as a stockholder’s equity covenant on the CSFB facility. Waivers have been obtained from these institutions for these matters. The agreements also contained covenants limiting the ability of our subsidiaries to: These limits may in turn restrict our ability to pay cash or stock dividends on our stock. In addition, under our warehouse facilities, we cannot continue to finance a mortgage loan that we hold through the warehouse facility if: The Greenwich Capital facility is a master loan and security agreement totaling $250 million. Under this agreement, the counterparty provides financing to us for the origination or acquisition of certain mortgage loans, to be sold to third parties or contributed for future securitizations. We repay advances under this credit facility with a portion of the proceeds from the sale of all mortgage-backed securities issued by the trust or other entity, along with a portion of the proceeds resulting from permitted whole loan sales. Advances under this facility bare interest at a floating rate initially equal to LIBOR plus a spread (starting at 0.75%) that varies depending on the types of mortgage loans securing these facilities. As of December 31, 2006 there were no outstanding balances on the Greenwich facility. This facility expired as of February 4, 2007. The master loan and security agreement with Deutsche Bank Structured Products, Inc is for $300 million. Under this agreement, the counterparty provides financing to us for the origination or acquisition of certain mortgage loans, which then are sold to third parties or contributed for future securitizations. We will repay advances under this credit facility with a portion of the proceeds from the sale of all mortgage-backed securities issued by the trust or other entity, along with a portion of the proceeds resulting from permitted whole loan sales. Advances under this facility bare interest at a floating rate initially equal to LIBOR plus a spread (starting at 0.625%) that varies depending on the types of mortgage loans securing the facility. Advances under this facility are subject to lender approval of the mortgage loans intended for origination or acquisition, advance rates and the then ratio of our liabilities to our tangible net worth. As of December 31, 2006 the outstanding balance of this facility was $66.2 million with the maximum aggregate amount available for additional borrowings of $233.8 million. As of March 26, 2007, under the terms of a termination agreement between us and the counterparty, and with no loans remaining financed by the counterparty, this facility was terminated. The repurchase facility with Credit Suisse First Boston Mortgage Capital, LLC, or CSFB, at December 31, 2006 totaled $200.0 million. This facility is secured by the mortgage loans owned by the Company. Advances under this facility bear interest at a floating rate initially equal to LIBOR plus a spread (starting at .75%) that varies depending on the types of mortgage loans securing the facility. Additionally advance rates and terms may vary depending on the ratio of our liabilities to our tangible net worth. As of December 31, 2006, the aggregate outstanding balance under this facility was $106.8 million and the aggregate maximum amount available for additional borrowings was $93.2 million. An amendment pertaining to this facility was entered into between us and the counterparty on March 23, 2007 that limited the facility to $120 million, and specified a termination date of June 29, 2007, at which time we expect to have all loans currently financed with this facility to be sold, or reduced to an amount that would enable us to pay the loans off of the facility. As it relates to our purchasing bulk packages of loans for securitizations going forward, we anticipate continuing relationships with one or more of our current or previous warehouse facility providers, although no formal agreements have been entered into at this time. We expect that the CSFB facility will be sufficient to meet our capital and financing needs as we no longer operate a mortgage lending business as of March 31, 2007. • transfer or sell assets; • create liens on the collateral; • incur additional indebtedness without obtaining prior consent of lenders. • the loan is rejected as “unsatisfactory for purchase” by the ultimate investor and has exceeded its permissible warehouse period which varies by facility; • we fail to deliver the applicable note, mortgage or other documents evidencing the loan within the requisite time period; • the underlying property that secures the loan has sustained a casualty loss in excess of 5% of its appraised value; or • the loan ceases to be an eligible loan (as determined pursuant to the warehouse facility agreement).  59  As of December 31, 2006, our aggregate repurchase facility borrowings related to our discontinued operation were $173.0 million at an average interest rate of approximately 5.93%. As of December 31, 2006, our aggregate financing arrangements secured by portfolio investments were $815.3 million at an average interest rate of approximately 5.37%. Our borrowings are secured by either portfolio investments or residential mortgage loans, the value of which may move inversely with changes in interest rates. A decline in the market value of our portfolio investments or mortgage loans investments in the future may limit our ability to borrow under these facilities or result in lenders requiring additional collateral or initiating margin calls under our borrowing facilities. As a result, we could be required to sell some of our investments under adverse market conditions in order to maintain liquidity. If such sales are made at prices lower than the amortized costs of such investments, we will incur losses. Our ability to sell the mortgage loans we own at cost or for a premium in the secondary market so that we may generate cash proceeds to repay borrowings under our repurchase facilities, depends on a number of factors, including: As it relates to loans sold previously under certain loan sale agreements, and in the event of a breach of a representation, warranty or covenant under such agreement, or in the event of an EPD, we may be required to repurchase some of those loans or indemnify the loan purchaser for damages caused by that breach. We have been required to repurchase loans we have sold from time to time; these repurchases have resulted in a loss of $7.5 million in 2006. We intend to make distributions to our stockholders to comply with the various requirements to maintain our REIT status and to minimize or avoid corporate income tax and the nondeductible excise tax. However, differences in timing between the recognition of REIT taxable income and the actual receipt of cash could require us to sell assets or to borrow funds on a short-term basis to meet the REIT distribution requirements and to avoid corporate income tax and the nondeductible excise tax. Certain of our assets may generate substantial mismatches between REIT taxable income and available cash. These assets could include mortgage-backed securities we hold that have been issued at a discount and require the accrual of taxable income in advance of the receipt of cash. As a result, our REIT taxable income may exceed our cash available for distribution and the requirement to distribute a substantial portion of our net taxable income could cause us to: Inflation For the periods presented herein, inflation has been relatively low and we believe that inflation has not had a material effect on our results of operations. The impact of inflation is primarily reflected in the increased costs of our operations. Virtually all our assets and liabilities are financial in nature. Our consolidated financial statements and corresponding notes thereto have been prepared in accordance with GAAP, which require the measurement of financial position and operating results in terms of historical dollars without considering the changes in the relative purchasing power of money over time due to inflation. As a result, interest rates and other factors influence our performance far more than inflation. Inflation affects our operations primarily through its effect on interest rates, since interest rates typically increase during periods of high inflation and decrease during periods of low inflation. During periods of increasing interest rates, demand for mortgages and a borrower’s ability to qualify for mortgage financing in a purchase transaction may be adversely affected. During periods of decreasing interest rates, borrowers may prepay their mortgages, which in turn may adversely affect our yield and subsequently the value of our portfolio of mortgage assets. • the program parameters under which the loan was originated under and the continuation of that program by the investor; • the loan’s conformity with the ultimate investors’ underwriting standards; • the credit quality of the loans; and • our compliance with laws and regulations as it relates to lending practices; • sell assets in adverse market conditions; • borrow on unfavorable terms; • distribute amounts that would otherwise be invested in assets or repayment of debt, in order to comply with the REIT distribution requirements. 60  Contractual Obligations The Company had the following contractual obligations (excluding derivative financial instruments) at December 31, 2006: ($ in thousands) Total Less Than 1 Year 1 to 3 Years 4 to 5 Years After 5 Years Reverse repurchase agreements $ 818,974 $ 818,974 — — — Operating leases 9,835 2,550 4,908 2,377 — Collateralized debt obligations(1)(2) 240,944 47,690 73,701 41,665 77,888 Subordinated debentures(1) 57,156 3,594 7,198 46,364 — Employment agreements(3) 2,256 752 1,504 — — Discontinued businesses Warehouse facilities(5) 172,972 172,972 — — — Operating leases 7,075 2,761 3,026 931 357 Employment agreements(4) 2,354 785 1,569 — — $ 1,311,566 $ 1,050,078 $ 91,906 $ 91,337 $ 78,245 (1) Amounts increase interest paid during the period. Interest based on interest rates in effect on December 31, 2006. (2) Maturities of our CDOs are dependent upon cash flows received from the underlying loans receivable. Our estimate of their repayment is based on scheduled principal payments on the underlying loans receivable. This estimate will differ from actual amounts to the extent prepayments and/or loan losses are experienced. (3) Represents base cash compensation of David Akre and Steven Mumma. (4) Represents base cash compensation of Steven Schnall and Joseph Fierro. (5) Excludes interest payments as the balance changes on a daily basis. 61  Item 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK Market risk is the exposure to loss resulting from changes in interest rates, credit spreads, foreign currency exchange rates, commodity prices and equity prices. Because we are invested solely in U.S.-dollar denominated instruments, primarily residential mortgage instruments, and our borrowings are also domestic and U.S. dollar denominated, we are not subject to foreign currency exchange, or commodity and equity price risk; the primary market risk that we are exposed to is interest rate risk and its related ancillary risks. Interest rate risk is highly sensitive to many factors, including governmental monetary and tax policies, domestic and international economic and political considerations and other factors beyond our control. All of our market risk sensitive assets, liabilities and related derivative positions are for non-trading purposes only. Management recognizes the following primary risks associated with our business and the industry in which we conduct business: Interest Rate Risk Our primary interest rate exposure relates to the portfolio of adjustable-rate mortgage loans and mortgage-backed securities we acquire, as well as our variable-rate borrowings and related interest rate swaps and caps. Interest rate risk is defined as the sensitivity of our current and future earnings to interest rate volatility, variability of spread relationships, the difference in re-pricing intervals between our assets and liabilities and the effect that interest rates may have on our cash flows, especially the speed at which prepayments occur on our residential mortgage related assets. Changes in the general level of interest rates can affect our net interest income, which is the difference between the interest income earned on interest earning assets and our interest expense incurred in connection with our interest bearing debt and liabilities. Changes in interest rates can also affect, among other things, our ability to acquire loans and securities, the value of our loans, mortgage pools and mortgage-backed securities, and our ability to realize gains from the resale and settlement of such originated loans. In our investment portfolio, our primary market risk is interest rate risk. Interest rate risk can be defined as the sensitivity of our portfolio, including future earnings potential, prepayments, valuations and overall liquidity to changes in interest rates. We attempt to manage interest rate risk by adjusting portfolio compositions, liability maturities and utilizing interest rate derivatives including interest rate swaps and caps. Management’s goal is to maximize the earnings potential of the portfolio while maintaining long term stable portfolio valuations. We utilize a model based risk analysis system to assist in projecting portfolio performances over a scenario of different interest rates. The model incorporates shifts in interest rates, changes in prepayments and other factors impacting the valuations of our financial securities, including mortgage-backed securities, repurchase agreements, interest rate swaps and interest rate caps. Based on the results of this model, as of December 31, 2006, an instantaneous shift of 100 basis points in interest rates would result in an approximate decrease in the net interest spread by 30-35 basis points as compared to our base line projections over the next year. • Interest rate and market (fair value) risk • Credit spread risk • Liquidity and funding risk • Prepayment risk • Credit risk 62  The following tables set forth information about financial instruments (dollar amounts in thousands): The impact of changing interest rates may be mitigated by portfolio prepayment activity that we closely monitor and the portfolio funding strategies we employ. First, our floating rate borrowings may react to changes in interest rates before our adjustable rate assets because the weighted average next repricing dates on the related borrowings may have shorter time periods than that of the adjustable rate assets. Second, interest rates on adjustable rate assets may be limited to a “periodic cap” or an increase of typically 1% or 2% per adjustment period, while our borrowings do not have comparable limitations. Third, our adjustable rate assets typically lag changes in the applicable interest rate indices by 45 days, due to the notice period provided to adjustable rate borrowers when the interest rates on their loans are scheduled to change. In a period of declining interest rates or nominal differences between long-term and short-term interest rates, the rate of prepayment on our mortgage assets may increase. Increased prepayments would cause us to amortize any premiums paid for our mortgage assets faster, thus resulting in a reduced net yield on our mortgage assets. Additionally, to the extent proceeds of prepayments cannot be reinvested at a rate of interest at least equal to the rate previously earned on such mortgage assets, our earnings may be adversely affected. Conversely, if interest rates rise or if the differences between long-term and short-term interest rates increase the rate of prepayment on our mortgage assets may decrease. Decreased prepayments would cause us to amortize the premiums paid for our ARM assets over a longer time period, thus resulting in an increased net yield on our mortgage assets. Therefore, in rising interest rate environments where prepayments are declining, not only would the interest rate on the ARM Assets portfolio increase to re-establish a spread over the higher interest rates, but the yield also would rise due to slower prepayments. The combined effect could mitigate other negative effects that rising short-term interest rates might have on earnings. Interest rates can also affect our net return on hybrid adjustable rate (“hybrid ARM”) securities and loans net of the cost of financing hybrid ARMs. We continually monitor and estimate the duration of our hybrid ARMs and have a policy to hedge the financing of the hybrid ARMs such that the net duration of the hybrid ARMs, our borrowed funds related to such assets, and related hedging instruments are less than one year. During a declining interest rate environment, the prepayment of hybrid ARMs may accelerate (as borrowers may opt to refinance at a lower rate) causing the amount of liabilities that have been extended by the use of interest rate swaps to increase relative to the amount of hybrid ARMs, possibly resulting in a decline in our net return on hybrid ARMs as replacement hybrid ARMs may have a lower yield than those being prepaid. Conversely, during an increasing interest rate environment, hybrid ARMs may prepay slower than expected, requiring us to finance a higher amount of hybrid ARMs than originally forecast and at a time when interest rates may be higher, resulting in a decline in December 31, 2006 Notional Amount Carrying Amount Estimated Fair Value Investment securities available for sale $ 491,293 $ 488,962 $ 488,962 Mortgage loans held in the securitization trusts 584,358 588,160 582,504 Mortgage loans held for sale 110,804 106,900 107,810 Commitments and contingencies: Interest rate lock commitments - loan commitments 104,334 (118 ) (118 ) Forward loan sales contracts 142,110 171 171 Interest rate swaps 285,000 621 621 Interest rate caps $ 1,540,518 $ 2,011 $ 2,011 December 31, 2005 Notional Amount Carrying Amount Estimated Fair Value Investment securities available for sale $ 719,701 $ 716,482 $ 716,482 Mortgage loans held for investment 4,054 4,060 4,079 Mortgage loans held in the securitization trusts 771,451 776,610 775,311 Mortgage loans held for sale 108,244 108,271 109,252 Commitments and contingencies: Interest rate lock commitments - loan commitments 130,320 123 123 Interest rate lock commitments - mortgage loans held for sale 108,109 (14 ) (14 Forward loan sales contracts 51,763 (380 ) (380 Interest rate swaps 645,000 6,383 6,383 Interest rate caps $ 1,858,860 $ 3,340 $ 3,340 our net return on hybrid ARMs. Our exposure to changes in the prepayment speed of hybrid ARMs is mitigated by regular monitoring of the outstanding balance of hybrid ARMs and adjusting the amounts anticipated to be outstanding in future periods and, on a regular basis, making adjustments to the amount of our fixed-rate borrowing obligations for future periods. 63  Interest rate changes may also impact our net book value as our securities, certain mortgage loans and related hedge derivatives are marked-to-market each quarter. Generally, as interest rates increase, the value of our fixed income investments, such as mortgage loans and mortgage-backed securities, decreases and as interest rates decrease, the value of such investments will increase. We seek to hedge to some degree changes in value attributable to changes in interest rates by entering into interest rate swaps and other derivative instruments. In general, we would expect that, over time, decreases in value of our portfolio attributable to interest rate changes will be offset to some degree by increases in value of our interest rate swaps, and vice versa. However, the relationship between spreads on securities and spreads on swaps may vary from time to time, resulting in a net aggregate book value increase or decline. However, unless there is a material impairment in value that would result in a payment not being received on a security or loan, changes in the book value of our portfolio will not directly affect our recurring earnings or our ability to make a distribution to our stockholders. In order to minimize the negative impacts of changes in interest rates on earnings and capital, we closely monitor our asset and liability mix and utilize interest rate swaps and caps, subject to the limitations imposed by the REIT qualification tests. Movements in interest rates can pose a major risk to us in either a rising or declining interest rate environment. We depend on substantial borrowings to conduct our business. These borrowings are all made at variable interest rate terms that will increase as short term interest rates rise. Additionally, when interest rates rise, mortgage loans held for sale and any applications in process with interest rate lock commitments, or IRLCs, decrease in value. To preserve the value of such loans or applications in process with IRLCs, we may enter into forward sale loan contracts, or FSLCs, to be settled at future dates with fixed prices. 64  Our hedging transactions using derivative instruments also involve certain additional risks such as counterparty credit risk, the enforceability of hedging contracts and the risk that unanticipated and significant changes in interest rates will cause a significant loss of basis in the contract. The counterparties to our derivative arrangements are major financial institutions and securities dealers that are well capitalized with high credit ratings and with which we may also have other financial relationships. While we do not anticipate nonperformance by any counterparty, we are exposed to potential credit losses in the event the counterparty fails to perform. Our exposure to credit risk in the event of default by a counterparty is the difference between the value of the contract and the current market price. There can be no assurance that we will be able to adequately protect against the forgoing risks and will ultimately realize an economic benefit that exceeds the related expenses incurred in connection with engaging in such hedging strategies. Credit Spread Exposure The mortgage-backed securities we currently, and will in the future, own are also subject to spread risk. The majority of these securities will be adjustable-rate securities that are valued based on a market credit spread to U.S. Treasury security yields. In other words, their value is dependent on the yield demanded on such securities by the market based on their credit relative to U.S. Treasury securities. Excessive supply of such securities combined with reduced demand will generally cause the market to require a higher yield on such securities, resulting in the use of a higher or wider spread over the benchmark rate (usually the applicable U.S. Treasury security yield) to value such securities. Under such conditions, the value of our securities portfolio would tend to decline. Conversely, if the spread used to value such securities were to decrease or tighten, the value of our securities portfolio would tend to increase. Such changes in the market value of our portfolio may affect our net equity, net income or cash flow directly through their impact on unrealized gains or losses on available-for-sale securities, and therefore our ability to realize gains on such securities, or indirectly through their impact on our ability to borrow and access capital. Furthermore, shifts in the U.S. Treasury yield curve, which represents the market’s expectations of future interest rates, would also affect the yield required on our securities and therefore their value. These shifts, or a change in spreads, would have a similar effect on our portfolio, financial position and results of operations. Market (Fair Value) Risk For certain of the financial instruments that we own, fair values will not be readily available since there are no active trading markets for these instruments as characterized by current exchanges between willing parties. Accordingly, fair values can only be derived or estimated for these investments using various valuation techniques, such as computing the present value of estimated future cash flows using discount rates commensurate with the risks involved. However, the determination of estimated future cash flows is inherently subjective and imprecise. Minor changes in assumptions or estimation methodologies can have a material effect on these derived or estimated fair values. These estimates and assumptions are indicative of the interest rate environments as of December 31, 2006 and do not take into consideration the effects of subsequent interest rate fluctuations. We note that the values of our investments in mortgage-backed securities, and in derivative instruments, primarily interest rate hedges on our debt, will be sensitive to changes in market interest rates, interest rate spreads, credit spreads and other market factors. The value of these investments can vary and has varied materially from period to period. Historically, the values of our mortgage loan portfolio have tended to vary inversely with those of its derivative instruments. The following describes the methods and assumptions we use in estimating fair values of our financial instruments: Fair value estimates are made as of a specific point in time based on estimates using present value or other valuation techniques. These techniques involve uncertainties and are significantly affected by the assumptions used and the judgments made regarding risk characteristics of various financial instruments, discount rates, estimates of future cash flows, future expected loss experience and other factors. Changes in assumptions could significantly affect these estimates and the resulting fair values. Derived fair value estimates cannot be substantiated by comparison to independent markets and, in many cases, could not be realized in an immediate sale of the instrument. Also, because of differences in methodologies and assumptions used to estimate fair values, the fair values used by us should not be compared to those of other companies. 65  The fair values of the Company’s residential mortgage-backed securities are generally based on market prices provided by five to seven dealers who make markets in these financial instruments. If the fair value of a security is not reasonably available from a dealer, management estimates the fair value based on characteristics of the security that the Company receives from the issuer and on available market information. The fair value of loans held for investment are determined by the loan pricing sheet which is based on internal management pricing and third party competitors in similar products and markets. The fair value of loan commitments to fund with agreed upon rates are estimated using the fees and rates currently charged to enter into similar agreements, taking into account the remaining terms of the agreements and the present creditworthiness of the counterparties. For fixed rate loan commitments, fair value also considers the difference between current market interest rates and the existing committed rates. The fair value of commitments to deliver mortgages is estimated using current market prices for dealer or investor commitments relative to our existing positions. The market risk management discussion and the amounts estimated from the analysis that follows are forward-looking statements that assume that certain market conditions occur. Actual results may differ materially from these projected results due to changes in our ARM portfolio and borrowings mix and due to developments in the domestic and global financial and real estate markets. Developments in the financial markets include the likelihood of changing interest rates and the relationship of various interest rates and their impact on our ARM portfolio yield, cost of funds and cash flows. The analytical methods that we use to assess and mitigate these market risks should not be considered projections of future events or operating performance. As a financial institution that has only invested in U.S.-dollar denominated instruments, primarily residential mortgage instruments, and has only borrowed money in the domestic market, we are not subject to foreign currency exchange or commodity price risk. Rather, our market risk exposure is largely due to interest rate risk. Interest rate risk impacts our interest income, interest expense and the market value on a large portion of our assets and liabilities. The management of interest rate risk attempts to maximize earnings and to preserve capital by minimizing the negative impacts of changing market rates, asset and liability mix, and prepayment activity. The table below presents the sensitivity of the market value of our portfolio using a discounted cash flow simulation model. Application of this method results in an estimation of the percentage change in the market value of our assets, liabilities and hedging instruments per 100 basis point (“bp”) shift in interest rates expressed in years - a measure commonly referred to as duration. Positive portfolio duration indicates that the market value of the total portfolio will decline if interest rates rise and increase if interest rates decline. The closer duration is to zero, the less interest rate changes are expected to affect earnings. Included in the table is a “Base Case” duration calculation for an interest rate scenario that assumes future rates are those implied by the yield curve as of December 31, 2006. The other two scenarios assume interest rates are instantaneously 100 and 200 bps higher that those implied by market rates as of December 31, 2006. The use of hedging instruments is a critical part of our interest rate risk management strategies, and the effects of these hedging instruments on the market value of the portfolio are reflected in the model’s output. This analysis also takes into consideration the value of options embedded in our mortgage assets including constraints on the repricing of the interest rate of ARM Assets resulting from periodic and lifetime cap features, as well as prepayment options. Assets and liabilities that are not interest rate-sensitive such as cash, payment receivables, prepaid expenses, payables and accrued expenses are excluded. The duration calculated from this model is a key measure of the effectiveness of our interest rate risk management strategies. Changes in assumptions including, but not limited to, volatility, mortgage and financing spreads, prepayment behavior, defaults, as well as the timing and level of interest rate changes will affect the results of the model. Therefore, actual results are likely to vary from modeled results. 66  Net Portfolio Duration December 31, 2006 It should be noted that the model is used as a tool to identify potential risk in a changing interest rate environment but does not include any changes in portfolio composition, financing strategies, market spreads or changes in overall market liquidity. Based on the assumptions used, the model output suggests a very low degree of portfolio price change given increases in interest rates, which implies that our cash flow and earning characteristics should be relatively stable for comparable changes in interest rates. Although market value sensitivity analysis is widely accepted in identifying interest rate risk, it does not take into consideration changes that may occur such as, but not limited to, changes in investment and financing strategies, changes in market spreads, and changes in business volumes. Accordingly, we make extensive use of an earnings simulation model to further analyze our level of interest rate risk. There are a number of key assumptions in our earnings simulation model. These key assumptions include changes in market conditions that affect interest rates, the pricing of ARM products, the availability of ARM products, and the availability and the cost of financing for ARM products. Other key assumptions made in using the simulation model include prepayment speeds and management’s investment, financing and hedging strategies, and the issuance of new equity. We typically run the simulation model under a variety of hypothetical business scenarios that may include different interest rate scenarios, different investment strategies, different prepayment possibilities and other scenarios that provide us with a range of possible earnings outcomes in order to assess potential interest rate risk. The assumptions used represent our estimate of the likely effect of changes in interest rates and do not necessarily reflect actual results. The earnings simulation model takes into account periodic and lifetime caps embedded in our ARM Assets in determining the earnings at risk. Liquidity and Funding Risk Liquidity is a measure of our ability to meet potential cash requirements, including ongoing commitments to repay borrowings, fund and maintain investments, pay dividends to our stockholders and other general business needs. We recognize the need to have funds available for our operating. It is our policy to have adequate liquidity at all times. We plan to meet liquidity through normal operations with the goal of avoiding unplanned sales of assets or emergency borrowing of funds. Our ability to hold mortgage loans held for sale require cash. Generally, we are required to have a balance of between zero and 4% of the loan’s balance funded by the Company with cash, the balance being drawn from the warehouse facility. Our operating cash inflows are predominately from cash flows from mortgage securities, principal and interest on mortgage loans, and sales of originated loans. Loans financed on our warehouse facility are subject to changing market valuations and margin calls. The market value of our loans is dependent on a variety of economic conditions, including interest rates (and borrower demand) and end investor desire and capacity. These values can also be affected by general tightening of credit standards across the industry recently. There is no certainty that market values will remain constant going forward. To the extent the value of the loans declines significantly, we would be required to repay portions of the amounts we have borrowed. Basis point increase Base +100 +200 Mortgage Portfolio 0.95 years 1.33 years 1.47 years Borrowings (including hedges) 0.43 years 0.43 years 0.43 years Net 0.52 years 0.90 years 1.04 years 67  As it relates to our investment portfolio, derivative financial instruments we use also subject us to “margin call” risk based on their market values. Under our interest rate swaps, we pay a fixed rate to the counterparties while they pay us a floating rate. When floating rates are low, on a net basis we pay the counterparty and visa-versa. In a declining interest rate environment, we would be subject to additional exposure for cash margin calls due to accelerating prepayments of mortgage assets. However, the asset side of the balance sheet should increase in value in a further declining interest rate scenario. Most of our interest rate swap agreements provide for a bi-lateral posting of margin, the effect being that either swap party must post margin, depending on the change in value of the swap over time. Unlike typical unilateral posting of margin only in the direction of the swap counterparty, this provides us with additional flexibility in meeting our liquidity requirements as we can call margin on our counterparty as swap values increase. Incoming cash on our mortgage loans and securities is a principal source of cash. The volume of cash depends on, among other things, interest rates. The volume and quality of such incoming cash flows can be impacted by severe and immediate changes in interest rates. If rates increase dramatically, our short-term funding costs will increase quickly. While many of our investment portfolio loans are hybrid ARMs, they typically will not reset as quickly as our funding costs creating a reduction in incoming cash flow. Our derivative financial instruments are used to mitigate the effect of interest rate volatility. We manage liquidity to ensure that we have the continuing ability to maintain cash flows that are adequate to meet commitments on a timely and cost-effective basis. Our principal sources of liquidity are the repurchase agreement market, the issuance of CDOs, loan warehouse facilities as well as principal and interest payments from portfolio Assets. We believe our existing cash balances and cash flows from operations will be sufficient for our liquidity requirements for at least the next 12 months. Prepayment Risk When borrowers repay the principal on their mortgage loans before maturity or faster than their scheduled amortization, the effect is to shorten the period over which interest is earned, and therefore, reduce the cash flow and yield on our ARM Assets. Furthermore, prepayment speeds exceeding or lower than our reasonable estimates for similar assets, impact the effectiveness of any hedges we have in place to mitigate financing and/or fair value risk. Generally, when market interest rates decline, borrowers have a tendency to refinance their mortgages. The higher the interest rate a borrower currently has on his or her mortgage the more incentive he or she has to refinance the mortgage when rates decline. Additionally, when a borrower has a low loan-to-value ratio, he or she is more likely to do a “cash-out” refinance. Each of these factors increases the chance for higher prepayment speeds during the term of the loan. We mitigate prepayment risk by constantly evaluating our ARM portfolio at a range of reasonable market prepayment speeds observed at the time for assets with a similar structure, quality and characteristics. Furthermore, we stress-test the portfolio as to prepayment speeds and interest rate risk in order to develop an effective hedging strategy. For the three months ended December 31, 2006, our mortgage assets paid down at an approximate average annualized Constant Paydown Rate (“CPR”) of 17%, compared to 21% for the three months ended September 30, 2006, to 20% for the three months ended June 30, 2006, to 19% for the three months ended March 31, 2006 and 31% for the three months ended December 31, 2005. The constant prepayment rate averaged approximately 19% during the year ended December 31, 2006. When prepayment experience increases, we have to amortize our premiums over a shorter time period, resulting in a reduced yield to maturity on our ARM Assets. Conversely, if actual prepayment experience decreases, we would amortize the premium over a longer time period, resulting in a higher yield to maturity. We monitor our prepayment experience on a monthly basis and adjust the amortization of the net premium, as appropriate. Credit Risk Credit risk is the risk that we will not fully collect the principal we have invested in mortgage loans or securities. As previously noted, we are predominately a high-quality loan originator and our underwriting guidelines are intended to evaluate the credit history of the potential borrower, the capacity and willingness of the borrower to repay the loan, and the adequacy of the collateral securing the loan. Along with this however, is a growing percentage of loans underwritten with stated income and/or stated assets. These loan types make credit risk assessment more difficult. We mitigate credit risk by establishing and applying criteria that identifies high-credit quality borrowers. With regard to the purchased mortgage security portfolio, we rely on the guaranties of FNMA, FHLMC, GNMA or the AAA/Aaa rating established by the Rating Agencies. With regard to loans included in our securitization, factors such as FICO score, LTV, debt-to-income ratio, and other borrower and collateral factors are evaluated. Credit enhancement features, such as mortgage insurance may also be factored into the credit decision. In some instances, when the borrower exhibits strong compensating factors, exceptions to the underwriting guidelines may be approved. Our loans held in securitization are concentrated in geographic markets that are generally supply constrained. We believe that these markets have less exposure to sudden declines in housing values than those markets which have an oversupply of housing. In addition, in the supply constrained housing markets we focus on, housing values tend to be high and, generally, underwriting standards for higher value homes require lower LTVs and thus more owner equity further mitigating credit risk. For our mortgage securities that are purchased, we rely on the Fannie Mae, Freddie Mac, Ginnie Mae and AAA-rating of the securities supplemented with additional due diligence. 68  Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA The financial statements of the Company and the related notes and schedules to the financial statements, together with the Report of Independent Registered Public Accounting Firm thereon, as required by this Item 8, are set forth beginning on page F-1 of this annual report on Form 10-K. Item 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE. None. Item 9A. CONTROLS AND PROCEDURES Evaluation of Disclosure Controls and Procedures. As of the end of the period covered by this report, we carried out an evaluation, under the supervision of and with the participation of our management, including our Co-Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934) as of December 31, 2006 to ensure that information required to be disclosed in the reports that we file or submit under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that such information is accumulated and communicated to our management timely. Based upon that evaluation, our management, including our Co-Chief Executive Officer and our Chief Financial Officer, concluded that our disclosure controls and procedures were effective as of December 31, 2006. Management’s Report on Internal Control Over Financial Reporting . Our management is responsible for establishing and maintaining adequate internal control over financial reporting for our company, as such term is defined in Exchange Act Rule 13a-15(f). Under the supervision and with the participation of our management, including our principal executive officers and principal financial officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework set forth in “ Internal Control - Integrated Framework ,” issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) and concluded that there was a material weakness in the operation of the Company’s internal control over financial reporting as of December 31, 2006 . A material weakness is a control deficiency or combination of control deficiencies that results in more than a remote likelihood that a material misstatement of the annual or interim financial statements will not be prevented or detected. The material weakness identified was an inadequacy in the operation of our control activities involving the completion and review of the accounting period closing process. The sale of substantially all of the operating assets of our mortgage lending platform to Indymac, which closed as of March 31, 2007, significantly increased the workload demands of the existing accounting staff, thereby disrupting the timely completion and review of the accounting period closing process. In addition, in connection with the uncertainty of the consummation and effect of the Indymac transaction, the accounting department was affected by the departure of certain key accounting personnel during this time. The increased workload and decreased staff levels resulted in a significant number of post-closing journal entries and contributed to a request for additional time to file our Annual Report on Form 10-K in accordance with Rule 12b-25. Management’s assessment of the effectiveness of our internal control over financial reporting as of December 31, 2006 has been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report which is included herein beginning on page F-2 of this annual report on Form 10-K. Remediation Plan . With the closing of the Indymac transaction, management believes that the workload demands on the accounting staff will be greatly reduced going forward. During the first quarter of 2007, and in preparation for the completion and review of the accounting period closing process for the first quarter of 2007, management has been actively assessing the Company’s accounting needs and taking such necessary steps to retain and hire additional accounting staff with the requisite accounting experience and skill to effectively remediate this material weakness. Management believes that taking these steps will remediate the material weakness in internal control over financial reporting. Changes in Internal Control Over Financial Reporting. There have been no changes in the Company's internal control over financial reporting during the quarter ended December 31, 2006 that have materially affected, or are reasonably likely to materially affect, the Company's internal control over financial reporting. The changes in the Company's internal control over financial reporting described above are changes that management has implemented during the three months ended March 31, 2007. Item 9B. OTHER INFORMATION The table below summarizes the 2006 cash incentive bonuses granted to each of the Company’s executive officers along with 2007 contractual salaries:  2007 Annual Salary(1)(3)(4) 2006 Cash Bonus(2) Steven B. Schnall $ 434,008 $ ─ Chairman of the Board and Co-Chief Executive Officer(4) David A. Akre 434,008 ─ Co-Chief Executive Officer Joseph V. Fierro 350,545 ─ Chief Operating Officer of NYMC(4) Steven R. Mumma $ 434,008 $ 30,000 President, Co-Chief Executive Officer and Chief Financial Officer (1) Pursuant to each of the executive officer’s employment agreements, 2007 base salaries reflect a 2.5% increase over base salary as established in 2006. (2) On February 5, 2007 the compensation committee of the Company’s Board of Directors granted a 2006 cash incentive bonus to Steven R. Mumma. (3) On March 28, 2007, the Company's Board of Directors approved an increase in Mr Mumma's base salary to $434,008 upon the consummation of the Indymac transaction and his being named President and Co-Chief Executive in addition to his title of Chief Financial Officer. Prior to April 1, 2007, Mr Mumma's 2007 annualized salary would have been $317,954. (4) Upon the consummation of the transaction with Indymac on March 31, 2007, Steven B. Schnall and Joseph V. Fierro resigned from their executive positions and assumed roles with Indymac. 69  On December 13, 2005, NYMC Loan Corporation, a wholly owned subsidiary of New York Mortgage Trust, Inc. (the “Company”), and the Company entered into a $300 million master repurchase agreement (the “Agreement”) with DB Structured Products, Inc., Aspen Funding Corp. and Newport Funding Corp. (each a “Buyer” and collectively the “Buyers”) to finance, on a short-term basis, mortgage loans originated by The New York Mortgage Company, LLC (“assets”). The Company guaranteed the payment and performance of NYMC Loan Corporation, as Seller, under the Agreement. Under the Agreement, the Seller may sell assets to the Buyers and agrees to repurchase those assets on a date certain. The purchase price for assets is generally an amount equal to the product of the market value of the assets to be sold multiplied by a percentage of the purchase price that generally ranges from 75% to 98% of the asset's market value, depending on the type of mortgage asset being financed and whether the asset is performing or non-performing. In general, the repurchase price equals the original purchase price plus accrued but unpaid interest. Pursuant to the terms of the Agreement, the Seller pays interest to the Buyers at a fixed percentage over LIBOR depending on collateral type. All of the Seller's interest in the transferred assets passes to the Buyers on the purchase date. Upon receipt of the purchase price, the Buyers transfer their ownership interests in the asset back to the Seller. The Agreement is a $300 million uncommitted lending facility, meaning the Buyers must agree to each asset financed under the Agreement. If the market value of an asset financed under the facility declines to less than the related Buyer's purchase price (the “margin deficit”), then the Buyers may require that the Seller transfer cash in an amount equal to such margin deficit or additional loans or may retain any funds received by it to which the Seller would otherwise be entitled. On December 12, 2006, the facility was extended until December 12, 2007. The Company and the Seller are required to maintain certain routine covenants during the term of the Agreement, including without limitation, maintaining a certain level of net worth, not exceeding a certain indebtedness ratio, providing financial reports, not undertaking a merger or other fundamental transaction, and maintaining a certain level of profitability. The Agreement requires that all assets subject to the facility have the related loan documents delivered to LaSalle Bank, National Association, who holds them as a custodian so long as they are subject to the facility. In addition to being an uncommitted facility, if an event of default (as defined in the Agreement) occurs, the Seller will be unable to finance assets under the facility and its obligation to repurchase assets financed under the facility may, at the option of the Buyers, be accelerated. The definition of an event of default includes, among others, the following events: (i) failure to pay sums due under the Agreement, (ii) failure to repurchase an asset as required, (iii) a default on other obligations of the Company or Seller that involves the failure to pay a matured obligation or permits the acceleration of the maturity of the obligation, (iv) a material adverse change in the Company's or Seller's property, business, or financial condition, and (v) undergoing a change in control of the Company. If the Seller defaults under the Agreement, then the Buyers have most standard remedies, including, demanding all assets be repurchased and selling the assets subject to the facility. Pursuant to an amended and restated guaranty of the Company, the Company fully and unconditionally guarantees the obligations of the Sellers under the terms of this Agreement. On January 5, 2006, the Company and its wholly-owned subsidiaries, The New York Mortgage Company, LLC (“NYMC”) and New York Mortgage Funding, LLC (“NYMF”) (the Company, NYMC and NYMF, each a Seller and together, the “Sellers”), entered into a $250 million master repurchase agreement with Greenwich Capital Products, Inc. (“GCM”). The terms of the agreement between the Sellers and GCM are substantially similar to the Agreement described above. The agreement between the Sellers and GCM is a full-recourse facility against the Sellers and all obligations of the Sellers are joint and several. This agreement with GCM was set to expire on December 4, 2006. On December 1, 2006, the facility was extended until January 4, 2007 and on December 22, 2006 the facility was again extended until February 4, 2007. At that time, management decided not to seek renewal of this facility which expired on February 4, 2007. In connection with the sale of our mortgage banking platform to Indymac and as an inducement for certain employees to accept employment with Indymac, on March 28, 2007, the Company's Board of Directors approved the acceleration of vesting of an aggregate of 46,848 performance shares and shares of restricted stock previously awarded to non-executive employees of the company. Pursuant to this action, the awards will vest and be paid in cash the 30th day following the closing of the Indymac transaction. In connection with Mr. Mumma's appointment as President and Co-Chief Executive Officer of the Company upon consummation of the Indymac transaction, on March 28, 2007, our Board of Directors approved Amendment No. 2 to Mr. Mumma's employment agreement increasing his base salary in the manner set forth above. On the same date, our Board of Directors elected Mr. Mumma to serve on the Board, effective March 31, 2007, and to stand for election at our 2007 Annual Meeting of Shareholders in June. 70  PART III Item 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT AND CORPORATE GOVERNANCE Information on our directors and executive officers is incorporated by reference from our Proxy Statement (under the headings “Proposal 1: Election of Directors,” “Information on Our Board of Directors and its Committees,” “Section 16(a) Beneficial Ownership Reporting Compliance” and “Executive Officers and Significant Employees”) to be filed with respect to our Annual Meeting of Stockholders to be held June 14, 2007 (the “2007 Proxy Statement”). Because our common stock is listed on the NYSE, our Co-Chief Executive Officers are required to make an annual certification to the NYSE stating that they are not aware of any violation by us of the corporate governance listing standards of the NYSE. Our Co-Chief Executive Officers made their annual certification to that effect to the NYSE as of June 30, 2006. In addition, we have filed, as exhibits to this Annual Report on Form 10-K, the certifications of our principal executive officers and principal financial officer required under Section 302 of the Sarbanes Oxley Act of 2002. Item 11. EXECUTIVE COMPENSATION The information presented under the headings “Compensation of Directors” and “Executive Compensation” in our 2007 Proxy Statement to be filed with the SEC is incorporated herein by reference. Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS The information presented under the heading “Security Ownership of Certain Beneficial Owners and Management” in our 2007 Proxy Statement to be filed with the SEC is incorporated herein by reference. The information presented under the heading “Market for the Registrant’s Common Equity and Related Stockholder Matters — Securities Authorized for Issuance Under Equity Compensation Plans” in Item 5 of Part II of this Form 10-K is incorporated herein by reference. Item 13. CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS AND DIRECTOR INDEPENDENCE The information presented under the heading “Certain Relationships and Related Party Transactions” and “Information on Our Board of Directors and its Committees” in our 2007 Proxy Statement to be filed with the SEC is incorporated herein by reference. Item 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES The information presented under the headings “Principal Accountant Fees and Services” and “Audit Committee Pre-Approval Policy” in our 2006 Proxy Statement to be filed with the SEC is incorporated herein by reference. 71  PART IV Item 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES The information set forth under “ Exhibit Index ” below is incorporated herein by reference. (a) Financial Statements and Schedules. The following financial statements and schedules are included in this report: Page FINANCIAL STATEMENTS: Report of Independent Registered Public Accounting Firm F-2 Report of Independent Registered Public Accounting Firm F-3 Consolidated Balance Sheets F-4 Consolidated Statements of Operations F-5 Consolidated Statements of Stockholders’/Members’ Equity F-6 Consolidated Statements of Cash Flows F-7 Notes to Consolidated Financial Statements F-8 (b) Exhibits. 72  SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. NEW YORK MORTGAGE TRUST, INC. Date: April 2 , 2007 By: /s/ DAVID A. AKRE Name: David A. Akre Title: Co-Chief Executive Officer Signature Title Date /s/ David A. Akre Co-Chief Executive Officer April 2, 2007 David A. Akre and Director (Principal Executive Officer) /s/ Steven R. Mumma President, Co-Chief Executive Officer and April 2, 2007 Steven R. Mumma Chief Financial Officer (Principal Financial Officer) /s/ Steven B. Schnall Chairman of the Board April 2, 2007 Steven B. Schnall /s/ David R. Bock Director April 2, 2007 David R. Bock /s/ Alan L. Hainey Director April 2, 2007 Alan L. Hainey /s/ Steven G. Norcutt Director April 2, 2007 Steven G. Norcutt /s/ Mary Dwyer Pembroke Director April 2, 2007 Mary Dwyer Pembroke /s/ Jerome F. Sherman Director April 2, 2007 Jerome F. Sherman  /s/ Thomas W. White Director April 2, 2007 Thomas W. White 73  NEW YORK MORTGAGE TRUST, INC. AND SUBSIDIARIES CONSOLIDATED FINANCIAL STATEMENTS AND REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM For Inclusion in Form 10-K Filed with United States Securities and Exchange Commission December 31, 2006 NEW YORK MORTGAGE TRUST, INC. AND SUBSIDIARIES Index to Consolidated Financial Statements Page FINANCIAL STATEMENTS: Report of Independent Registered Public Accounting Firm F-2 Report of Independent Registered Public Accounting Firm F-3 Consolidated Balance Sheets F-4 Consolidated Statements of Operations F-5 Consolidated Statements of Stockholders’/Members’ Equity F-6 Consolidated Statements of Cash Flows F-7 Notes to Consolidated Financial Statements F-8 F-1  REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM To the Board of Directors and Stockholders of New York Mortgage Trust, Inc. New York, New York We have audited management's assessment, included in the accompanying Management's Report on Internal Control Over Financial Reporting, that New York Mortgage Trust, Inc. and subsidiaries (the “Company”) did not maintain effective internal control over financial reporting as of December 31, 2006, because of the effect of the material weakness identified in management's assessment based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. The Company's management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting. Our responsibility is to express an opinion on management's assessment and an opinion on the effectiveness of the Company's internal control over financial reporting based on our audit. We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, evaluating management's assessment, testing and evaluating the design and operating effectiveness of internal control, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinions. A company's internal control over financial reporting is a process designed by, or under the supervision of, the company's principal executive and principal financial officers, or persons performing similar functions, and effected by the company's board of directors, management, and other personnel to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company's internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the financial statements. Because of the inherent limitations of internal control over financial reporting, including the possibility of collusion or improper management override of controls, material misstatements due to error or fraud may not be prevented or detected on a timely basis. Also, projections of any evaluation of the effectiveness of the internal control over financial reporting to future periods are subject to the risk that the controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. A material weakness is a significant deficiency, or combination of significant deficiencies, that results in more than a remote likelihood that a material misstatement of the annual or interim financial statements will not be prevented or detected. The following material weakness in the Company's internal control over financial reporting has been identified and included in management's assessment: The material weakness related to an inadequacy in the operation of control activities relating to the completion and review of the accounting period closing process that resulted in significant post-closing journal entries and contributed to a delay in filing of the Company's Annual Report on Form 10-K. This material weakness was considered in determining the nature, timing, and extent of audit tests applied in our audit of the consolidated financial statements as of and for the year ended December 31, 2006 of the Company, and this report does not affect our report on such financial statements. In our opinion, management's assessment that the Company did not maintain effective internal control over financial reporting as of December 31, 2006, is fairly stated, in all material respects, based on the criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Also in our opinion, because of the effect of the material weakness described above on the achievement of the objectives of the control criteria, the Company has not maintained effective internal control over financial reporting as of December 31, 2006, based on the criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) the consolidated balance sheet of the Company, and the related consolidated statements of operation, stockholders'/members' equity, and cash flows, as of and for the year ended December 31, 2006, and our report dated April 2, 2007 expressed an unqualified opinion on those financial statements. /s/DELOITTE & TOUCHE LLP New York, New York April 2, 2007 F-2  REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM To the Board of Directors and Stockholders of New York Mortgage Trust, Inc. New York, New York We have audited the accompanying consolidated balance sheets of New York Mortgage Trust, Inc. and subsidiaries (the “Company”) as of December 31, 2006 and 2005, and the related consolidated statements of operations, stockholders'/members' equity, and cash flows for each of the three years in the period ended December 31, 2006. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the financial statements based on our audits. We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, such consolidated financial statements present fairly, in all material respects, the financial position of New York Mortgage Trust, Inc. and subsidiaries as of December 31, 2006 and 2005, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2006, in conformity with accounting principles generally accepted in the United States of America. We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the effectiveness of the Company's internal control over financial reporting as of December 31 , 2006, based on the criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated April 2, 2007 expressed an unqualified opinion on management's assessment of the effectiveness of the Company's internal control over financial reporting and an adverse opinion on the effectiveness of the Company's internal control over financial reporting because of a material weakness. /s/DELOITTE & TOUCHE LLP New York, New York April 2, 2007 F-3  NEW YORK MORTGAGE TRUST, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (Dollar amounts in thousands) See notes to consolidated financial statements. December 31, 2006 December 31, 2005 ASSETS Cash and cash equivalents $ 969 $ 9,056 Restricted cash 2,086 4,949 Investment securities — available for sale 488,962 716,482 Accounts and accrued interest receivable 5,189 9,899 Mortgage loans held in securitization trusts 588,160 776,610 Mortgage loans held for investment ─ 4,060 Prepaid and other assets 20,951 12,820 Derivative assets 1,666 8,546 Assets related to discontinued operation 214,925 248,871 TOTAL ASSETS $ 1,322,908 $ 1,791,293 LIABILITIES AND STOCKHOLDERS’ EQUITY LIABILITIES: Financing arrangements, portfolio investments $ 815,313 $ 1,166,499 Financing arrangements, loans held for sale/for investment ─ 3,969 Collateralized debt obligations 197,447 228,226 Accounts payable and accrued expenses 5,575 14,521 Subordinated debentures 45,000 45,000 Other liabilities 14 195 Liabilities related to discontinued operation 187,987 231,925 Total liabilities 1,251,336 1,690,335 COMMITMENTS AND CONTINGENCIES STOCKHOLDERS’ EQUITY: Common stock, $0.01 par value, 400,000,000 shares authorized 18,325,187 shares issued and 18,077,880 outstanding at December 31, 2006 and 18,258,221 shares issued and 17,953,674 outstanding at December 31, 2005 183 183 Additional paid-in capital 99,509 107,573 Accumulated other comprehensive (loss) income (4,381 ) 1,910 Accumulated deficit (23,739 ) (8,708 ) Total stockholders’ equity 71,572 100,958 TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY $ 1,322,908 $ 1,791,293 F-4  NEW YORK MORTGAGE TRUST, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS (Dollar amounts in thousands, except per share data) See notes to consolidated financial statements. For the Year Ended December 31, 2006 2005 2004 REVENUES: Interest income: Investment securities and loans held in securitization trusts $ 64,881 $ 55,050 $ 19,671 Loans held for investment — 7,675 723 Total interest income 64,881 62,725 20,394 Interest expense: Investment securities and loans held in securitization trusts 56,553 42,001 11,982 Loans held for investment — 5,847 488 Subordinated debentures 3,544 2,004 — Total interest expense 60,097 49,852 12,470 Net interest income 4,784 12,873 7,924 Other (expense) income: Loan losses (57 ) — — (Loss) gain on sale of securities and related hedges (529 ) 2,207 167 Impairment loss on investment securities — (7,440 ) — Miscellaneous income — 1 — Total other (expense) income (586 ) (5,232 ) 167 EXPENSES: Salaries, commissions and benefits 714 1,934 382 Occupancy and equipment 1 50 422 Marketing and promotion 78 124 14 Data processing and communications 230 149 174 Office supplies and expenses 24 21 4 Professional fees 598 853 149 Travel and entertainment 29 6 1 Depreciation and amortization 276 171 1 Other 82 1,011 45 Total expenses 2,032 4,319 1,192 Income from continuing operations 2,166 3,322 6,899 Loss from discontinued operation - net of tax (17,197 ) (8,662 ) (1,952 ) NET (LOSS)/INCOME $ (15,031 ) $ (5,340 ) $ 4,947 Basic (loss)/income per share $ (0.83 ) $ (0.30 ) $ 0.28 Diluted (loss)/income per share $ (0.83 ) $ (0.30 ) $ 0.27 Weighted average shares outstanding-basic(1) 18,038 17,873 17,797 Weighted average shares outstanding-diluted(1) 18,038 17,873 18,115 (1) Weighted average shares outstanding-basic and diluted assume the shares outstanding upon the Company’s June 2004 initial public offering were outstanding for the full year. F-5  NEW YORK MORTGAGE TRUST, INC. AND SUBSIDIARIES STATEMENTS OF STOCKHOLDERS’/MEMBERS’ EQUITY For the Years Ended December 31, 2006, 2005 and 2004 (Dollar amounts in thousands) See notes to consolidated financial statements. Common Stock Additional Paid-In Capital Stockholders’/ Members’ Equity (Deficit) Accumulated Other Comprehensive Income (Loss) Comprehensive Income (Loss) Total BALANCE,JANUARY 1, 2004 — Members’ Deficit $ — $ — $ (1,339 ) $ 865 $ — $ (474 ) Net income — — 4,947 — 4,947 4,947 Contributions — — 2,310 — — 2,310 Distributions — — (3,135 ) — — (3,135 ) Forfeiture of 47,680 escrowed shares — (493 ) — — (493 ) Dividends declared — (4,470 ) (2,783 ) — — (7,253 ) Initial public offering — Common stock 181 121,910 — — — 122,091 Restricted stock — 1,743 — — — 1,743 Performance shares — 249 — — — 249 Stock options — 106 — — — 106 Decrease in net unrealized gain on available for sale securities — — — (3,836 ) (3,836 ) (3,836 ) Increase derivative instruments — — — 3,227 3,227 3,227 Comprehensive income — — — — $ 4,338 — BALANCE, DECEMBER 31, 2004 — Stockholders’ Equity 181 119,045 0 256 — 119,482 Net loss — — (5,340 ) — $ (5,340 ) (5,340 ) Dividends declared — (13,375 ) (3,368 ) — — (16,743 ) Restricted stock 2 1,310 — — — 1,312 Performance shares — 549 — — — 549 Stock options — 44 — — — 44 Decrease in net unrealized gain on available for sale securities — — — (1,130 ) (1,130 ) (1,130 ) Increase derivative instruments — — — 2,784 2,784 2,784 Comprehensive loss — — — — $ (3,686 ) — BALANCE, DECEMBER 31, 2005 — Stockholders’ Equity 183 107,573 (8,708 ) 1,910 100,958 Net loss — — (15,031 ) — $ (15,031 ) (15,031 ) Dividends declared — (8,595 ) — — — (8,595 ) Repurchase of common stock (1 ) (299 ) — — — (300 ) Restricted stock 1 819 — — — 820 Performance shares — 8 — — — 8 Stock options — 3 — — — 3 Decrease in net unrealized gain on available for sale securities — — — (879 ) (879 ) (879 ) Decrease in derivative instruments — — — (5,412 ) (5,412 ) (5,412 ) Comprehensive loss — — — — $ (21,322 ) — BALANCE, DECEMBER 31, 2006 Stockholders’ Equity $ 183 $ 99,509 $ (23,739 ) $ (4,381 ) $ 71,572 F-6  NEW YORK MORTGAGE TRUST, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (Dollar amounts in thousands) For the Years Ended December 31, 2006 2005 2004 CASH FLOWS FROM OPERATING ACTIVITIES: Net (loss)/income $ (15,031 ) $ (5,340 ) $ 4,947 Adjustments to reconcile net (loss)/income to net cash provided by (used in) operating activities: Depreciation and amortization 2,106 1,716 690 Amortization of premium on investment securities and mortgage loans 2,483 6,269 1,667 Loss on sale of current period securitized loans 747 — — Gain (loss) on sale of securities and related hedges 529 (2,207 ) (939 ) Impairment loss on investment securities — 7,440 — Stock compensation expense 832 1,905 2,099 Forfeited shares-non cash — (493 ) Change in value of derivatives 289 (3,155 ) (314 ) Loan losses 6,800 — — Minority interest expense (26 ) — — Loss on sale of fixed assets — 27 — (Increase) decrease in operating assets: Purchase of mortgage loans held for sale (222,907 ) — — Origination of mortgage loans held for sale (1,841,011 ) (2,316,734 ) (1,435,340 ) Proceeds from sales of mortgage loans 2,059,981 2,293,848 1,386,124 Deferred tax benefit (8,494 ) (8,549 ) (1,309 ) Due from loan purchasers 33,462 (41,909 ) (21,042 ) Escrow deposits-pending loan closings (2,380 ) 14,802 (16,236 ) Accounts and accrued interest receivable 7,188 714 (12,846 ) Prepaid and other assets (1,586 ) (3,987 ) (2,211 ) Increase (decrease) in operating liabilities: Due to loan purchasers 4,209 1,301 (403 ) Accounts payable and accrued expenses (7,957 ) 3,990 12,170 Other liabilities (453 ) (4,100 ) 4,553 Net cash provided by (used in) operating activities 18,781 (53,969 ) (78,883 ) CASH FLOWS FROM INVESTING ACTIVITIES: Restricted cash 2,317 (3,126 ) (2,124 ) Sale of investment securities — 225,326 197,350 Purchase of investment securities (388,398 ) (148,150 ) (1,533,511 ) Purchase of mortgage loans held in securitization trusts — (167,097 ) — Principal repayments received on loans held in securitization trust 191,673 120,835 — Proceeds from sale of investment securities 452,780 — — Purchase of mortgage loans held for investment — — (94,767 ) Origination of mortgage loans held for investment — (558,554 ) (95,386 ) Proceeds from sale of marketable securities — — 3,580 Principal paydown on investment securities 162,185 399,694 126,944 Payments received on loans held for investment — 13,279 — Purchases of property and equipment (1,464 ) (3,929 ) (3,460 ) Sale of fixed assets — 75 — Net cash provided by (used in) investing activities 419,093 (121,647 ) (1,401,374 ) CASH FLOWS FROM FINANCING ACTIVITIES: Repurchase of common stock (300 ) — — Proceeds from issuance of common stock — — 122,091  See notes to consolidated financial statements. Members’ contributions — — 1,309 (Decrease) increase in financing arrangements, net (434,179 ) 149,315 1,380,171 Payments on subordinated notes due members — — (13,707 ) Dividends paid (11,524 ) (17,256 ) (2,906 ) Cash distributions to members — — (3,135 ) Issuance of subordinated debentures 45,000 — Capital contributions from minority interest member 42 — — Net cash (used in) provided by financing activities (445,961 ) 177,059 1,483,823 NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS (8,087 ) 1,443 3,566 CASH AND CASH EQUIVALENTS — Beginning of period 9,056 7,613 4,047 CASH AND CASH EQUIVALENTS — End of period $ 969 $ 9,056 $ 7,613 SUPPLEMENTAL DISCLOSURE Cash paid for interest $ 76,905 $ 57,871 $ 11,709 NON CASH INVESTING ACTIVITIES Non-cash purchase of fixed assets $ — $ 168 $ — NON CASH FINANCING ACTIVITIES Reduction of subordinated notes due members $ — $ — $ 1,000 Dividends declared to be paid in subsequent period $ 905 $ 3,834 $ 4,347 Grant of restricted stock $ — $ 277 $ 1,974 F-7  NEW YORK MORTGAGE TRUST, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (dollar amounts in thousands unless otherwise indicated) Organization - New York Mortgage Trust, Inc. (“NYMT” or the “Company”) is a fully-integrated, self-advised, residential mortgage finance company formed as a Maryland corporation in September 2003. The Company earns net interest income from residential mortgage-backed securities and fixed-rate and adjustable-rate mortgage loans and securities. The Company also earns net interest income from its investment in and the securitization of certain self-originated adjustable rate mortgage loans that meet the Company’s investment criteria. Until March 31, 2007, when the Company exited the mortgage lending business, the Company originated mortgage loans through its wholly-owned subsidiary, The New York Mortgage Company, LLC (“NYMC”) (see note 12 and note 21). Licensed or exempt from licensing in 44 states and the District of Columbia and through a network of 25 full service branch loan origination locations and 22 satellite loan origination locations that were licensed or pending state license approval as of December 31, 2006, NYMC offered a broad range of residential mortgage products, with a primary focus on prime, or high credit quality, residential mortgages. The Company is organized and conducts its operations to qualify as a real estate investment trust (“REIT”) for federal income tax purposes. As such, the Company will generally not be subject to federal income tax on that portion of its income that is distributed to stockholders if it distributes at least 90% of its REIT taxable income to its stockholders by the due date of its federal income tax return and complies with various other requirements. On February 25, 2005, the Company completed its first loan securitization of $419.0 million high-credit quality, first-lien, adjustable rate mortgage (“ARM”) loans, by contributing loans into New York Mortgage Trust 2005-1 (“NYMT ‘05-1 Trust”). NYMT ‘05-1 Trust is a wholly-owned subsidiary of NYMT. The securitization was structured as a secured borrowing, with the line-of-credit financing used to purchase and originate the mortgage loans and refinanced through repurchase agreements upon securitization. On March 15, 2005, the Company closed a private placement of $25.0 million of trust preferred securities issued by NYM Preferred Trust I. NYM Preferred Trust I is a wholly-owned subsidiary of NYMC. On July 28, 2005 the Company completed its second loan securitization of $242.9 million of high-credit quality, first-lien, ARM loans, by contributing loans to New York Mortgage Trust 2005-2 (“NYMT ‘05-2 Trust”). NYMT ‘05-2 Trust is a wholly-owned subsidiary of NYMT. The securitization was structured as a secured borrowing, with the line-of-credit financing used to purchase and originate the mortgage loans and refinanced through repurchase agreements upon securitization. On September 1, 2005, the Company closed a private placement of $20.0 million of preferred securities issued by NYM Preferred Trust II. NYM Preferred Trust II is a wholly-owned subsidiary of NYMC. On December 20, 2005 the Company completed its third loan securitization of $235.0 million of high-credit quality, first-lien, ARM loans, by contributing loans to New York Mortgage Trust 2005-3 (“NYMT ‘05-3 Trust”). NYMT ‘05-3 Trust is a wholly-owned subsidiary of NYMT. In connection with the sale of our wholesale mortgage origination platform assets on February 22, 2007 and the sale of our retail mortgage lending platform on March 31, 2007 (See Note 21), during the fourth quarter of 2006, we classified our Mortgage Lending segment as a discontinued operation in accordance with the provisions of Statement of Financial Accounting Standards No. 144 "Accounting for the Impariment or Disposal of Long-Lived Assets" ("SFAS No. 144"). As a result, we have reported revenues and expenses related to the segment as a discontinued operation and the related assets and liabilities as assets and liabilities related to the discontinued operation for all periods presented in the accompanying consolidated financial statements. . Certain assets, such as the deferred tax asset, and certain liabilities, such as subordinated debt and liabilities related to leased facilities not assigned to Indymac will become part of the ongoing operations of NYMTand accordingly, we have not classified as a discontinued operation in accordance with the provisions of SFAS No. 144. ( See note 12). As used herein, references to the “Company,” “NYMT,” “we,” “our” and “us” refer to New York Mortgage Trust, Inc., collectively with its subsidiaries. Basis of Presentation - The consolidated financial statements include the accounts of the Company subsequent to the IPO and also include the accounts of NYMC and NYMF prior to the IPO. As a result, our historical financial results reflect the financial operations of this prior business strategy of selling virtually all of the loans originated by NYMC to third parties. All intercompany accounts and transactions are eliminated in consolidation. Certain prior period amounts have been reclassified to conform to current period classifications. 1. Summary of Significant Accounting Policies F-8  Concurrent with the closing of the Company’s initial public offering (“IPO”), 100,000 of the 2,750,000 shares exchanged for the equity interests of NYMC, were placed in escrow through December 31, 2004 and were available to satisfy any indemnification claims the Company may have had against Steven B. Schnall, the Company’s Chairman, President and Co-Chief Executive Officer, Joseph V. Fierro, the Chief Operating Officer of NYMC, and each of their affiliates, as the contributors of NYMC, for losses incurred as a result of defaults on any residential mortgage loans originated by NYMC and closed prior to the completion of the IPO. As of December 31, 2004, the amount of escrowed shares was reduced by 47,680 shares, representing $493,000 for estimated losses on loans closed prior to the Company’s IPO. Furthermore, the contributors of NYMC amended the escrow agreement to extend the escrow period to December 31, 2005 for the remaining 52,320 shares. On or about December 31, 2005, the escrow period was extended for an additional year to December 31, 2006. During 2006 the Company concluded that all indemnification claims related to the escrowed shares have been determined and that no additional losses were incurred by the Company as a result of defaults on any residential mortgage loans originated by NYMC and closed prior completion of the IPO. Accordingly, we have concluded that no further indemnification was necessary. The remaining 52,320 shares were then released from escrow. Use of Estimates - The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America (“GAAP”) requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. The Company’s estimates and assumptions primarily arise from risks and uncertainties associated with interest rate volatility, prepayment volatility and credit exposure. Although management is not currently aware of any factors that would significantly change its estimates and assumptions in the near term, future changes in market conditions may occur which could cause actual results to differ materially. Cash and Cash Equivalents - Cash and cash equivalents include cash on hand, amounts due from banks and overnight deposits. The Company maintains its cash and cash equivalents in highly rated financial institutions, and at times these balances exceed insurable amounts. Restricted Cash - Restricted cash is held by counterparties as collateral for hedging instruments, collateralized debt obligations or (“CDOs”) and two letters of credit related to the Company’s lease of its corporate headquarters. Restricted cash collateralizing CDOs is replaced by ARM loans within 30 days. Investment Securities Available for Sale - The Company’s investment securities are residential mortgage-backed securities comprised of Ginnie Mae (“GNMA”) and “AAA”- rated adjustable-rate securities, including adjustable-rate loans that have an initial fixed-rate period. Investment securities are classified as available for sale securities and are reported at fair value with unrealized gains and losses reported in other comprehensive income (“OCI”). Realized gains and losses recorded on the sale of investment securities available for sale are based on the specific identification method and included in gain on sale of securities and related hedges. Purchase premiums or discounts on investment securities are accreted or amortized to interest income over the estimated life of the investment securities using the interest method. Investment securities may be subject to interest rate, credit and/or prepayment risk. When the fair value of an available for sale security is less than amortized cost, management considers whether there is an other-than-temporary impairment in the value of the security (e.g., whether the security will be sold prior to the recovery of fair value). Management considers at a minimum the following factors that, both individually or in combination, could indicate the decline is “other-than-temporary:” 1) the length of time and extent to which the market value has been less than book value; 2) the financial condition and near-term prospects of the issuer; or 3) the intent and ability of the Company to retain the investment for a period of time sufficient to allow for any anticipated recovery in market value. If, in management’s judgment, an other-than-temporary impairment exists, the cost basis of the security is written down to the then-current fair value, and the unrealized loss is transferred from accumulated other comprehensive income as an immediate reduction of current earnings (i.e., as if the loss had been realized in the period of impairment). Even though no credit concerns exist with respect to an available for sale security, an other- than-temporary impairment may be evident if management determines that the Company does not have the intent and ability to hold an investment until a forecasted recovery of the value of the investment. As of December 31, 2005, management concluded, based on the decision to potentially sell in the 1st quarter of 2006 certain of its available for sale securities, that the decline in those securities was other-than-temporary. Accordingly, the cost basis of those securities of $395.7 million was written down to fair value and an unrealized loss of $7.4 million was transferred from accumulated other comprehensive income as an impairment loss on investment securities to the accompanying consolidated statement of operations. F-9  Due from Loan Purchasers and Escrow Deposits - Pending Loan Closings - Amounts due from loan purchasers are a receivable for the principal and premium due to us for loans sold and shipped but for which payment has not yet been received at period end. Escrow deposits pending loan closing are advance cash fundings by us to escrow agents to be used to close loans within the next one to three business days. Mortgage Loans Held for Sale - Mortgage loans held for sale represent originated mortgage loans held for sale to third party investors. The loans are initially recorded at cost based on the principal amount outstanding net of deferred direct origination costs and fees. The loans are subsequently carried at the lower of cost or market value. Market value is determined by examining outstanding commitments from investors or current investor yield requirements, calculated on an aggregate loan basis, less an estimate of the costs to close the loan, and the deferral of fees and points received, plus the deferral of direct origination costs. Gains or losses on sales are recognized at the time title transfers to the investor which is typically concurrent with the transfer of the loan files and related documentation and are based upon the difference between the sales proceeds from the final investor and the adjusted book value of the loan sold. Mortgage Loans Held in Securitization Trusts - Mortgage loans held in securitization trusts are certain ARM loans transferred to New York Mortgage Trust 2005-1, New York Mortgage Trust 2005-2 and New York Mortgage Trust 2005-3 that have been securitized into sequentially rated classes of beneficial interests. Mortgage loans held in securitization trusts are recorded at amortized cost, using the same accounting principles as those used for mortgage loans held for investment. Currently the Company has retained 100% of the securities issued by New York Mortgage Trust 2005-1 and the New York Mortgage Trust 2005-2 and the securities have been financed as a secured borrowing under repurchase agreements. For our third securitization, New York Mortgage Trust 2005-03, we sold investment grade securities to third parties, which are recorded as collateralized debt obligations on the accompanying consolidated balance sheet. For our fourth securitization, the Company sold residential mortgage loans of $277.4 million to New York Mortgage Trust 2006-1 in a securitization transaction structured as a sale for accounting purposes on March 30, 2006. Mortgage Loans Held for Investment - The Company retains substantially all of the adjustable-rate mortgage loans originated by NYMC that meet specific investment criteria and portfolio requirements. Loans originated and retained in the Company’s portfolio are serviced through a subservicer. Servicing is the function primarily consisting of collecting monthly payments from mortgage borrowers, and disbursing those funds to the appropriate loan investors. Mortgage loans held for investment are recorded net of deferred loan origination fees and associated direct costs and are stated at amortized cost. Net loan origination fees and associated direct mortgage loan origination costs are deferred and amortized over the life of the loan as an adjustment to yield. This amortization includes the effect of projected prepayments. Interest income is accrued and recognized as revenue when earned according to the terms of the mortgage loans and when, in the opinion of management, it is collectible. The accrual of interest on loans is discontinued when, in management’s opinion, the interest is not collectible in the normal course of business, but in no case when payment becomes greater than 90 days delinquent. Loans return to accrual status when principal and interest become current and are anticipated to be fully collectible. Credit Risk and Allowance for Loan Losses - The Company estimates an allowance for loan losses based on management’s assessment of probable credit losses in the Company’s investment portfolio of residential mortgage loans, mortgage loans held for sale and mortgage loans held for investment. These loans are individually evaluated for impairment. The allowance is based upon management’s assessment of various credit-related factors, including current economic conditions, loan-to-value ratios, delinquency status, purchased mortgage insurance and other factors deemed to warrant consideration. If the credit performance of these mortgage loans previously reserved deviates from expectations, the allowance for loan losses is adjusted to a level deemed appropriate by management to provide for estimated probable losses in the portfolio. The allowance will be maintained through ongoing provisions charged to operating income and will be reduced by loans that are charged off. As of December 31, 2006 the allowance for loan losses totaled $4.0 million. Determining the allowance for loan losses is subjective in nature due to the estimation required. Property and Equipment, Net - Property and equipment have lives ranging from three to ten years, and are stated at cost less accumulated depreciation and amortization. Depreciation is determined in amounts sufficient to charge the cost of depreciable assets to operations over their estimated service lives using the straight-line method. Leasehold improvements are amortized over the lesser of the life of the lease or service lives of the improvements using the straight-line method. Discontinued Operation: The Company entered into agreements to sell the mortgage lending operations subsequent to December 31, 2006 and accordingly, as per the provisions of SFAS No. 144 will report the activities of the Mortgage Banking Segment as a discontinued operation. (see note 12). F-10  Financing Arrangements, Portfolio Investments — Portfolio investments are typically financed with repurchase agreements, a form of collateralized borrowing which is secured by portfolio securities on the balance sheet. Such financings are recorded at their outstanding principal balance with any accrued interest due recorded as an accrued expense. Financing Arrangements, Loans Held for Sale/for Investment — Loans held for sale or for investment are typically financed with warehouse lines that are collateralized by loans we originated or purchased from third parties. Such financings are recorded at their outstanding principal balance with any accrued interest due recorded as an accrued expense. Collateralized Debt Obligations - CDOs are securities that are issued and secured by ARM loans. For financial reporting purposes, the ARM loans and restricted cash held as collateral are recorded as assets of the Company and the CDO is recorded as the Company’s debt. The transaction includes interest rate caps which are held by the securitization trust and recorded as an asset or liability of the Company. Securitized transactions - The Company, as transferor, regularly securitizes mortgage loans and securities by transferring the loans or securities to entities (“Transferees”) which generally qualify under GAAP as “qualifying special purpose entities” (“QSPE's”) as defined under Statement of Financial Accounting Standards (“SFAS”) No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishment of Liabilities—a replacement of FASB Statement No. 125 (“Off Balance Sheet Securitizations”). The QSPEs issue investment grade and non-investment grade securities. Generally, the investment grade securities are sold to third party investors, and the Company retains the non-investment grade securities. If a transaction meets the requirements for sale recognition under GAAP, and the Transferee meets the requirements to be a QSPE, the assets transferred to the QSPE are considered sold, and gain or loss is recognized. The gain or loss is based on the price of the securities sold and the estimated fair value of any securities and servicing rights retained over the cost basis of the assets transferred net of transaction costs. If subsequently the Transferee fails to continue to qualify as a QSPE, or the Company obtains the right to purchase assets out of the Transferee, then the Company may have to include in its financial statements such assets, or potentially, all the assets of such Transferee. Subordinated Debentures - Subordinated debentures are trust preferred securities that are fully guaranteed by the Company with respect to distributions and amounts payable upon liquidation, redemption or repayment. These securities are classified as subordinated debentures in the liability section of the Company’s consolidated balance sheet. Derivative Financial Instruments - The Company has developed risk management programs and processes, which include investments in derivative financial instruments designed to manage market risk associated with its mortgage banking and its mortgage-backed securities investment activities. All derivative financial instruments are reported as either assets or liabilities in the consolidated balance sheet at fair value. The gains and losses associated with changes in the fair value of derivatives not designated as hedges are reported in current earnings. If the derivative is designated as a fair value hedge and is highly effective in achieving offsetting changes in the fair value of the asset or liability hedged, the recorded value of the hedged item is adjusted by its change in fair value attributable to the hedged risk. If the derivative is designated as a cash flow hedge, the effective portion of change in the fair value of the derivative is recorded in other comprehensive income (“OCI”) and is recognized in the income statement when the hedged item affects earnings. The Company calculates the effectiveness of these hedges on an ongoing basis, and, to date, has calculated effectiveness of approximately 100%. Ineffective portions, if any, of changes in the fair value or cash flow hedges are recognized in earnings. Risk Management - Derivative transactions are entered into by the Company solely for risk management purposes. The decision of whether or not an economic risk within a given transaction (or portion thereof) should be hedged for risk management purposes is made on a case-by-case basis, based on the risks involved and other factors as determined by senior management, including the financial impact on income, asset valuation and restrictions imposed by the Internal Revenue Code among others. In determining whether to hedge a risk, the Company may consider whether other assets, liabilities, firm commitments and anticipated transactions already offset or reduce the risk. All transactions undertaken to hedge certain market risks are entered into with a view towards minimizing the potential for economic losses that could be incurred by the Company. Under SFAS No. 133, “Accounting for Derivative Instruments and Hedging Activities”, as amended and interpreted, (“SFAS No. 133”), the Company is required to formally document its hedging strategy before it may elect to implement hedge accounting for qualifying derivatives. Accordingly, all qualifying derivatives are intended to qualify as fair value, or cash flow hedges, or free standing derivatives. To this end, terms of the hedges are matched closely to the terms of hedged items with the intention of minimizing ineffectiveness. F-11  In the normal course of its mortgage loan origination business, the Company enters into contractual interest rate lock commitments to extend credit to finance residential mortgages. These commitments, which contain fixed expiration dates, become effective when eligible borrowers lock-in a specified interest rate within time frames established by the Company’s origination, credit and underwriting practices. Interest rate risk arises if interest rates change between the time of the lock-in of the rate by the borrower and the sale of the loan. Under SFAS No. 133, the IRLCs are considered undesignated or free-standing derivatives. Accordingly, such IRLCs are recorded at fair value with changes in fair value recorded to current earnings. Mark to market adjustments on IRLCs are recorded from the inception of the interest rate lock through the date the underlying loan is funded. The fair value of the IRLCs is determined by the interest rate differential between the contracted loan rate and the currently available market rates as of the reporting date. To mitigate the effect of the interest rate risk inherent in providing IRLCs from the lock-in date to the funding date of a loan, the Company generally enters into forward sale loan contracts (“FSLC”). The FSLCs in place prior to the funding of a loan are undesignated derivatives under SFAS No. 133 and are marked to market through current earnings. Derivative instruments contain an element of risk in the event that the counterparties may be unable to meet the terms of such agreements. The Company minimizes its risk exposure by limiting the counterparties with which it enters into contracts to banks, investment banks and certain private investors who meet established credit and capital guidelines. Management does not expect any counterparty to default on its obligations and, therefore, does not expect to incur any loss due to counterparty default. These commitments and option contracts are considered in conjunction with the Company’s lower of cost or market valuation of its mortgage loans held for sale. The Company uses other derivative instruments, including treasury, agency or mortgage-backed securities forward sale contracts which are also classified as free-standing, undesignated derivatives and thus are recorded at fair value with the changes in fair value recognized in current earnings. Once a loan has been funded, the Company’s primary risk objective for its mortgage loans held for sale is to protect earnings from an unexpected charge due to a decline in value. The Company’s strategy is to engage in a risk management program involving the designation of FSLCs (the same FSLCs entered into at the time of rate lock) to hedge most of its mortgage loans held for sale. The FSLCs have been designated as qualifying hedges for the funded loans and the notional amount of the forward delivery contracts, along with the underlying rate and critical terms of the contracts, are equivalent to the unpaid principal amount of the mortgage loan being hedged. The FSLCs effectively fix the forward sales price and thereby offset interest rate and price risk to the Company. Accordingly, the Company evaluates this relationship quarterly and, at the time the loan is funded, classifies and accounts for the FSLCs as cash flow hedges. Interest Rate Risk - The Company hedges the aggregate risk of interest rate fluctuations with respect to its borrowings, regardless of the form of such borrowings, which require payments based on a variable interest rate index. The Company generally intends to hedge only the risk related to changes in the benchmark interest rate (London Interbank Offered Rate (“LIBOR”) or a Treasury rate). In order to reduce such risks, the Company enters into swap agreements whereby the Company receives floating rate payments in exchange for fixed rate payments, effectively converting the borrowing to a fixed rate. The Company also enters into cap agreements whereby, in exchange for a fee, the Company is reimbursed for interest paid in excess of a certain capped rate. To qualify for cash flow hedge accounting, interest rate swaps and caps must meet certain criteria, including: The fair values of the Company’s interest rate swap agreements and interest rate cap agreements are based on market values provided by dealers who are familiar with the terms of these instruments. Correlation and effectiveness are periodically assessed at least quarterly based upon a comparison of the relative changes in the fair values or cash flows of the interest rate swaps and caps and the items being hedged. For derivative instruments that are designated and qualify as a cash flow hedge (i.e. hedging the exposure to variability in expected future cash flows that is attributable to a particular risk), the effective portion of the gain or loss on the derivative instruments are reported as a component of OCI and reclassified into earnings in the same period or periods during which the hedged transaction affects earnings. The remaining gain or loss on the derivative instruments in excess of the cumulative change in the present value of future cash flows of the hedged item, if any, is recognized in current earnings during the period of change. With respect to interest rate swaps and caps that have not been designated as hedges, any net payments under, or fluctuations in the fair value of, such swaps and caps, will be recognized in current earnings. •••• the items to be hedged expose the Company to interest rate risk; and •••• the interest rate swaps or caps are expected to be and continue to be highly effective in reducing the Company’s exposure to interest rate risk.  F-12  Termination of Hedging Relationships - The Company employs a number of risk management monitoring procedures to ensure that the designated hedging relationships are demonstrating, and are expected to continue to demonstrate, a high level of effectiveness. Hedge accounting is discontinued on a prospective basis if it is determined that the hedging relationship is no longer highly effective or expected to be highly effective in offsetting changes in fair value of the hedged item. Additionally, the Company may elect to undesignate a hedge relationship during an interim period and re-designate upon the rebalancing of a hedge profile and the corresponding hedge relationship. When hedge accounting is discontinued, the Company continues to carry the derivative instruments at fair value with changes recorded in current earnings. Other Comprehensive Income - Other comprehensive income is comprised primarily of net income (loss) from changes in value of the Company’s available for sale securities, and the impact of deferred gains or losses on changes in the fair value of derivative contracts hedging future cash flows. Gain on Sale of Mortgage Loans - The Company recognizes gain on sale of loans sold to third parties as the difference between the sales price and the adjusted cost basis of the loans when title transfers. The adjusted cost basis of the loans includes the original principal amount adjusted for deferrals of origination and commitment fees received, net of direct loan origination costs paid. Loan Origination Fees and Direct Origination Cost - The Company records loan fees, discount points and certain incremental direct origination costs as an adjustment of the cost of the loan and such amounts are included in gain on sales of loans when the loan is sold. Accordingly, salaries, compensation, benefits and commission costs have been reduced by $26.4 million, $41.2 million and $20.5 milion for the years ended December 31, 2006, 2005 and 2004, respectively, because such amounts are considered incremental direct loan origination costs. Brokered Loan Fees and Expenses - The Company records commissions associated with brokered loans when such loans are closed with the borrower. Costs associated with brokered loans are expensed when incurred. Loan Commitment Fees - Mortgage loans held for sale: fees received for the funding of mortgage loans to borrowers at pre-set conditions are deferred and recognized at the date at which the loan is sold. Mortgage loans held for investment: such fees are deferred and recognized into interest income over the life of the loan based on the effective yield method. Employee Benefits Plans - The Company sponsors a defined contribution plan (the “Plan”) for all eligible domestic employees. The Plan qualifies as a deferred salary arrangement under Section 401(k) of the Internal Revenue Code. Under the Plan, participating employees may defer up to 15% of their pre-tax earnings, subject to the annual Internal Revenue Code contribution limit. The Company matches contributions up to a maximum of 25% of the first 5% of salary. Employees vest immediately in their contribution and vest in the Company’s contribution at a rate of 25% after two full years and then an incremental 25% per full year of service until fully vested at 100% after five full years of service. The Company’s total contributions to the Plan were $0.3 million, $0.4 million and $0.2 million for the years ended December 31, 2006, 2005 and 2004 respectively. Stock Based Compensation - Until January 1, 2006 t he Company followed the provisions of SFAS No. 123, “Accounting for Stock-Based Compensation” (“SFAS No. 123”) and SFAS No. 148, “Accounting for Stock-Based Compensation, Transition and Disclosure” (“SFAS No. 148”). The provisions of SFAS No. 123 allow companies either to expense the estimated fair value of stock options or to continue to follow the intrinsic value method set forth in Accounting Principles Board Opinion No. 25, “Accounting for Stock Issued to Employees” (“APB No. 25”) and disclose the pro forma effects on net income (loss) had the fair value of the options been expensed. The Company, since its inception, has elected not to apply APB No. 25 in accounting for its stock option incentive plans and has expensed stock based compensation in accordance with SFAS No. 123. In December, 2004 the Financial Accounting Standards Board (“FASB”) issued SFAS No. 123R, “Share-Based Payment,” (“SFAS No. 123R”) which requires all companies to measure compensation costs for all share-based payments, including employee stock options, at fair value. This statement was effective for the Company with the quarter beginning January 1, 2006. The adoption of SFAS No. 123R did not have a material impact on the Company’s consolidated financial statements. Marketing and Promotion - The Company charges the costs of marketing, promotion and advertising to expense in the period incurred. Income Taxes - The Company operates so as to qualify as a REIT under the requirements of the Internal Revenue Code. Requirements for qualification as a REIT include various restrictions on ownership of the Company’s stock, requirements concerning distribution of taxable income and certain restrictions on the nature of assets and sources of income. A REIT must distribute at least 90% of its taxable income to its stockholders of which 85% plus any undistributed amounts from the prior year must be distributed within the taxable year in order to avoid the imposition of an excise tax. The remaining balance may extend until timely filing of the Company’s tax return in the subsequent taxable year. Qualifying distributions of taxable income are deductible by a REIT in computing taxable income. F-13  NYMC changed its tax status upon completion of the IPO from a non-taxable limited liability company to a taxable REIT subsidiary and therefore subsequent to the IPO, is subject to corporate Federal income taxes. Accordingly, deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax base upon the change in tax status. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. Earnings Per Share - Basic earnings per share excludes dilution and is computed by dividing net income available to common stockholders by the weighted-average number of shares of common stock outstanding for the period. Diluted earnings per share reflects the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock or resulted in the issuance of common stock that then shared in the earnings of the Company. New Accounting Pronouncements – In February 2007, the FASB issued SFAS No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities” (“SFAS No. 159”), which provides companies with an option to report selected financial assets and liabilities at fair value. The objective of SFAS No. 159 is to reduce both complexity in accounting for financial instruments and the volatility in earnings caused by measuring related assets and liabilities differently. SFAS No. 159 establishes presentation and disclosure requirements and requires companies to provide additional information that will help investors and other users of financial statements to more easily understand the effect of the company's choice to use fair value on its earnings. SFAS No. 159 also requires entities to display the fair value of those assets and liabilities for which the company has chosen to use fair value on the face of the balance sheet. SFAS No. 159 is effective for financial statements issued for fiscal years beginning after November 15, 2007 and early adoption is permitted for fiscal years beginning on or before November 15, 2007 provided that the entity makes that choice in the first 120 days of the fiscal year, has not issued financial statements for any interim period of the fiscal year of adoption and also elects to apply the provisions of SFAS No. 157. The Company is in the process of analyzing the impact of SFAS No. 159 on its consolidated financial statements. In September 2006, the FASB issued SFAS No. 157, “Fair Value Measurements” (“SFAS No.157”). SFAS No.157 defines fair value, establishes a framework for measuring fair value in generally accepted accounting principles and expands disclosures about fair value measurements. SFAS No.157 will be applied under other accounting principles that require or permit fair value measurements, as this is a relevant measurement attribute. This statement does not require any new fair value measurements. We will adopt the provisions of SFAS No.157 beginning January 1, 2008. We are currently evaluating the impact of this statement on our consolidated financial statements. In September 2006, the SEC issued SAB No. 108, “Considering the Effects of Prior Year Misstatements when Quantifying Misstatements in Current Year Financial Statement” (“SAB 108”), on quantifying financial statement misstatements. In summary, SAB 108 was issued to address the diversity in practice of evaluating and quantifying financial statement misstatements and the related accumulation of such misstatements. SAB 108 states that both a balance sheet approach and an income statement approach should be used when quantifying and evaluating the materiality of a potential misstatement and contains guidance for correcting errors under this dual perspective. SAB 108 is effective for financial statements issued for fiscal years ending after November 15, 2006. The adoption of SAB 108 did not have a material effect on the Company's consolidated financial statements. In June 2006, FASB issued FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes — an interpretation of FASB Statement No. 109” (“FIN 48”). This interpretation increases the relevancy and comparability of financial reporting by clarifying the way companies account for uncertainty in income taxes. FIN 48 prescribes a consistent recognition threshold and measurement attribute, as well as clear criteria for subsequently recognizing, derecognizing and measuring such tax positions for financial statement purposes. The interpretation also requires expanded disclosure with respect to the uncertainty in income taxes. FIN 48 is effective for us on January 1, 2007 . The Company does not expect the adoption of FIN 48 to have a material effect on the Company ’ s consolidated financial statements. In March 2006, the FASB issued SFAS No. 156, “Accounting for Servicing of Financial Assets an amendment of FASB Statement No. 140.” Effective at the beginning of the first quarter of 2006, the Company early adopted the newly issued statement and elected the fair value option to subsequently measure its mortgage servicing rights (“MSRs”). Under the fair value option, all changes in the fair value of MSRs are reported in the statement of operations. The initial implementation of SFAS 156 did not have a material impact on the Company’s consolidated financial statements. In February 2006, the FASB issued SFAS No.155, “Accounting for Certain Hybrid Financial Instruments”. Key provisions of SFAS No.155 include: (1) a broad fair value measurement option for certain hybrid financial instruments that contain an embedded derivative that would otherwise require bifurcation; (2) clarification that only the simplest separations of interest payments and principal payments qualify for the exception afforded to interest-only strips and principal-only strips from derivative accounting under paragraph 14 of FAS No.133 (thereby narrowing such exception); (3) a requirement that beneficial interests in securitized financial assets be analyzed to determine whether they are freestanding derivatives or whether they are hybrid instruments that contain embedded derivatives requiring bifurcation; (4) clarification that concentrations of credit risk in the form of subordination are not embedded derivatives; and (5) elimination of the prohibition on a QSPE holding passive derivative financial instruments that pertain to beneficial interests that are or contain a derivative financial instrument. In general, these changes will reduce the operational complexity associated with bifurcating embedded derivatives, and increase the number of beneficial interests in securitization transactions, including interest-only strips and principal-only strips, required to be accounted for in accordance with FAS No.133. Management does not believe that SFAS No.155 will have a material effect on the Company’s consolidated financial statements. F-14  Investment securities available for sale consist of the following as of December 31, 2006 and December 31, 2005 (dollar amounts in thousands): As of December 31, 2006, none of the remaining securities with unrealized losses have been deemed to be other-than-temporarily impaired. The Company has the intent and believes it has the ability to hold such investment securities until recovery of their amortized cost. Substantially all of the Company’s investment securities available for sale are pledged as collateral for borrowings under financing arrangements (see note 8). The amortized cost balance at December 31, 2005 included approximately $388.3 million of certain lower-yielding mortgage agency securities (with rate resets of less than two years) that the Company had concluded it no longer had the intent to hold until their values recovered. Upon such determination, the Company recorded an unrealized impairment loss of $7.4 million for the three months ended December 31, 2005. During the first quarter of 2006, all of such designated securities were sold at an additional loss of $1.0 million. The following table sets forth the stated reset periods and weighted average yields of our investment securities at December 31, 2006 (dollar amounts in thousands): The NYMT retained securities includes $2.0 million of residual interests related to the NYMT 2006-1 transaction. The residual interest carrying-values are determined by obtaining dealer quotes. The following table sets forth the stated reset periods and weighted average yields of our investment securities at December 31, 2005 (dollar amounts in thousands): The following table’s presents the Company’s investment securities available for sale in an unrealized loss position, aggregated by investment category and length of time that individual securities have been in a continuous unrealized loss position at December 31, 2006 and December 31, 2005 (dollar amounts in thousands): 2. Investment Securities Available For Sale December 31, 2006 December 31, 2005 Amortized cost $ 492,777 $ 720,583 Gross unrealized gains 623 1 Gross unrealized losses (4,438 ) (4,102 ) Fair value $ 488,962 $ 716,482 Less than 6 Months More than 6 Months to 24 Months More than 24 Months to 60 Months Total Carrying Value Weighted Average Yield Carrying Value Weighted Average Yield Carrying Value Weighted Average Yield Carrying Value Weighted Average Yield Agency REMIC CMO Floating Rate $ 163,898 6.40 % $ — — $ — — $ 163,898 6.40 % Private Label Floaters 22,284 6.46 % — — — — 22,284 6.46 % Private Label ARMs 16,673 5.60 % 78,565 5.80 % 183,612 5.64 % 278,850 5.68 % NYMT Retained Securities 6,024 7.12 % — — 17,906 7.83 % 23,930 7.66 % Total/Weighted Average $ 208,879 6.37 % $ 78,565 5.80 % $ 201,518 5.84 % $ 488,962 6.06 % Less than 6 Months More than 6 Months To 24 Months More than 24 Months To 60 Months Total Carrying Value Weighted Average Yield Carrying Value Weighted Average Yield Carrying Value Weighted Average Yield Carrying Value Weighted Average Yield Agency REMIC CMO Floating Rate $ 13,535 5.45 % $ — — $ — — $ 13,535 5.45 % FHLMC Agency ARMs — — 91,217 3.82 % — — 91,217 3.82 % FNMA Agency ARMs — — 297,048 3.91 % — — 297,048 3.91 % Private Label ARMs — — 57,605 4.22 % 257,077 4.57 % 314,682 4.51 % Total/Weighted Average $ 13,535 5.45 % $ 445,870 3.93 % $ 257,077 4.57 % $ 716,482 4.19 %  December 31, 2006 Less than 12 Months 12 Months or More Total Fair Value Gross Unrealized Losses Fair Value Gross Unrealized Losses Fair Value Gross Unrealized Losses Agency REMIC CMO Floating Rate $ 966 $ 2 $ 1,841 $ 4 $ 2,807 $ 6 Private Label Floaters 22,284 80 — — 22,284 80 Private Label ARMs 30,385 38 248,465 4,227 278,850 4,265 NYMT Retained Securities 7,499 87 — — 7,499 87 Total $ 61,134 $ 207 $ 250,306 $ 4,231 $ 311,440 $ 4,438 F-15  Mortgage loans held for sale consist of the following as of December 31, 2006 and December 31, 2005 (dollar amounts in thousands): Substantially all of the Company’s mortgage loans held for sale are pledged as collateral for borrowings under financing arrangements (Note 9). The following table presents the activity in the Company's allowance for loan losses for the year ended December 31, 2006. There was no allowance for the year ended December 31, 2005. Mortgage loans held in securitization trusts consist of the following at December 31, 2006 and December 31, 2005 (dollar amounts in thousands): Substantially all of the Company’s mortgage loans held in securitization trusts are pledged as collateral for borrowings under financing arrangements (Note 8) or for the collateralized debt obligation (Note 10). The following sets forth delinquent loans in our portfolio as of December 31, 2006 and December 31, 2005 (dollar amounts in thousands): December 31, 2006 December 31, 2005 Less than 12 Months 12 Months or More Total Fair Value Gross Unrealized Losses Fair Value Gross Unrealized Losses Fair Value Gross Unrealized Losses Agency REMIC CMO Floating Rate $ 11,761 $ 19 $ — $ — $ 11,761 $ 19 Private Label ARMs 48,642 203 270,124 3,880 318,766 4,083 Total $ 60,403 $ 222 $ 270,124 $ 3,880 $ 330,527 $ 4,102 3. Mortgage Loans Held For Sale (discontinued, see note 12) December 31, 2006 December 31, 2005 Mortgage loans principal amount $ 110,804 $ 108,244 Deferred origination costs - net 138 27 Allowance for loan losses (4,042 ) — Mortgage loans held for sale $ 106,900 $ 108,271 December 31, 2006 Balance at beginning of period $ - Provisions for loan losses (5,040 ) Charge-offs 998 Balance of the end of period $ (4,042 ) 4. Mortgage Loans Held in Securitization Trusts December 31, 2006 December 31, 2005 Mortgage loans principal amount $ 584,358 $ 771,451 Deferred origination costs - net 3,802 5,159 Total mortgage loans held in securitization trusts $ 588,160 $ 776,610 Days Late Number of Delinquent Loans Total Dollar Amount % of Loan Portfolio 30-60 1 $ 166 0.03 % 61-90 1 193 0.03 %  December 31, 2005 90+ 5 $ 6,444 1.10 % Days Late Number of Delinquent Loans Total Dollar Amount % of Loan Portfolio 30-60 1 $ 193 0.02 % 61-90 — — — 90+ 3 $ 1,771 0.23 % F-16  There were no Mortgage loans held for investment at December 31, 2006. Mortgage loans held for investment consist of the following at December 31, 2005 (dollar amounts in thousands): Substantially all of the Company’s mortgage loans held for investment as of December 31, 2005 were pledged as collateral for borrowings under financing arrangements (note 9). Property and equipment consist of the following as of December 31, 2006 and December 31, 2005 (dollar amounts in thousands): The Company enters into derivatives to manage its interest rate and market risk exposure associated with its mortgage banking and its mortgage-backed securities investment activities. In the normal course of its mortgage loan origination business, the Company enters into contractual IRLCs to extend credit to finance residential mortgages. To mitigate the effect of the interest rate risk inherent in providing IRLCs from the lock-in date to the funding date of a loan, the Company generally enters into FSLCs. With regard to the Company’s mortgage-backed securities investment activities, the Company uses interest rate swaps and caps to mitigate the effects of major interest rate changes on net investment spread. The following table summarizes the estimated fair value of derivative assets and liabilities as of December 31, 2006 and December 31, 2005 (dollar amounts in thousands): 5. Mortgage Loans Held For Investment December 31, 2005 Mortgage loans principal amount $ 4,054 Deferred origination cost-net 6 Total mortgage loans held for investment $ 4,060 6. Property and Equipment — Net (discontinued, see note 12) December 31, 2006 December 31, 2005 Office and computer equipment $ 7,800 $ 6,292 Furniture and fixtures 2,200 2,306 Leasehold improvements 1,491 1,429 Total premises and equipment 11,491 10,027 Less: accumulated depreciation and amortization (4,975 ) (3,145 ) Property and equipment - net $ 6,516 $ 6,882 7. Derivative Instruments and Hedging Activities December 31, 2006 December 31, 2005 Derivative Assets: Continuing Operation: Interest rate caps $ 1,045 $ 2,163 Interest rate swaps 621 6,383 Total derivative assets, continuing operations 1,666 8,546 Discontinued Operation: Interest rate caps 966 1,177 Forward loan sale contracts - loan commitments 48 — Forward loan sale contracts - mortgage loans held for sale 39 — Forward loan sale contracts - TBA securities 84 — Interest rate lock commitments - loan commitments — 123 Total derivative assets, discontinued operation 1,137 1,300  Total derivative assets $ 2,803 $ 9,846 Derivative liabilities: Discontinued Operation: Forward loan sale contracts - loan commitments $ — $ (38 ) Forward loan sale contracts - mortgage loans held for sale — (18 ) Forward loan sale contracts - TBA securities — (324 ) Interest rate lock commitments - loan commitments (118 ) — Interest rate lock commitments - mortgage loans held for sale (98 ) (14 ) Total derivative liabilities, discontinued operation $ (216 ) $ (394 ) F-17  The notional amounts of the Company’s interest rate swaps, interest rate caps and forward loan sales contracts as of December 31, 2006 were $285.0 million, $1.5 billion and $142.1 million, respectively The notional amounts of the Company’s interest rate swaps, interest rate caps and forward loan sales contracts as of December 31, 2005 were $645.0 million, $1.9 billion and $51.8 million, respectively. The Company estimates that over the next twelve months, approximately $1.6 million of the net unrealized gains on the interest rate swaps will be reclassified from accumulated OCI into earnings. The Company has entered into repurchase agreements with third party financial institutions to finance its residential mortgage-backed securities and mortgage loans held in the securitization trusts. The repurchase agreements are short-term borrowings that bear interest rates based on a spread to LIBOR, and are secured by the residential mortgage-backed securities and mortgage loans held in the securitization trusts which they finance. At December 31, 2006, the Company had repurchase agreements with an outstanding balance of $815.3 million and a weighted average interest rate of 5.37%. As of December 31, 2005, the Company had repurchase agreements with an outstanding balance of $1.2 billion and a weighted average interest rate of 4.37%. At December 31, 2006 and 2005 securities and mortgage loans pledged as collateral for repurchase agreements had estimated fair values of $850.6 million and $1.2 billion, respectively. As of December 31, 2006 all of the repurchase agreements will mature within 30 days, with weighted average days to maturity equal to 21 days. The Company has available to it $5.1 billion in commitments to provide financings through such arrangements with 23 different counterparties. The follow table summarizes outstanding repurchase agreement borrowings secured by portfolio investments as of December 31, 2006 and December 31, 2005 (dollars amounts in thousands): 8. Financing Arrangements, Portfolio Investments Repurchase Agreements by Counterparty Counterparty Name December 31, 2006 December 31, 2005 Citigroup Global Markets Inc. $ — $ 200,000 Countrywide Securities Corporation 168,217 109,632 Credit Suisse First Boston LLC — 148,131 Deutsche Bank Securities Inc. — 205,233 Goldman, Sachs & Co. 121,824 — HSBC — 163,781 J.P. Morgan Securities Inc. 33,631 37,481 Nomura Securities International, Inc. 156,352 — SocGen/SG Americas Securities 87,995 — WaMu Capital Corp — 158,457 West LB 247,294 143,784 Total Financing Arrangements, Portfolio Investments $ 815,313 $ 1,166,499 F-18  Financing arrangements secured by mortgage loans held for sale or for investment consist of the following as of December 31, 2006, and December 31, 2005 (dollar amounts in thousands): The lines of credit are secured by all of the mortgage loans held by the Company, except for the loans held in the securitization trusts. The lines contain various covenants pertaining to, among other things, maintenance of certain amounts of net worth, periodic income thresholds and working capital. As of December 31, 2006, the Company was in compliance with all covenants with the exception of the net income covenant on the CSFB, Greenwich and Deutche Bank facilities and waivers have been obtained from these institutions. As these annual agreements are negotiated for renewal, these covenants may be further modified. The agreements are each renewable annually, but are not committed, meaning that the counterparties to the agreements may withdraw access to the credit facilities at any time. The Company’s CDOs are secured by ARM loans pledged as collateral. The ARM loans are recorded as an asset of the Company and the CDOs are recorded as the Company’s debt. The CDO transaction includes an amortizing interest rate cap contract with a notional amount of $187.5 million as of December 31, 2006 and a notional amount of $230.6 million as of December 31, 2005, which is recorded as an asset of the Company. The interest rate cap limits interest rate exposure on these transactions. As of December 31, 2006 and December 31, 2005, the Company had CDOs outstanding $197.4 million and $228.2 million, respectively. As of December 31, 2006 and December 31, 2005 the current weighted average interest rate on these CDOS was 5.72% and 4.74%, respectively. The CDOs are collateralized by ARM loans with a principal balance of $204.6 million and $235.0 million at December 31, 2006 and December 31, 2005, respectively. On September 1, 2005 the Company closed a private placement of $20.0 million of trust preferred securities to Taberna Preferred Funding II, Ltd., a pooled investment vehicle. The securities were issued by NYM Preferred Trust II and are fully guaranteed by the Company with respect to distributions and amounts payable upon liquidation, redemption or repayment. These securities have a fixed interest rate equal to 8.35% up to and including July 30, 2010, at which point the interest rate is converted to a floating rate equal to one-month LIBOR plus 3.95% until maturity. The securities mature on October 30, 2035 and may be called at par by the Company any time after October 30, 2010. In accordance with the guidelines of SFAS No. 150 “Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity”, the issued preferred stock of NYM Preferred Trust II has been classified as subordinated debentures in the liability section of the Company’s consolidated balance sheet. 9. Financing Arrangements, Mortgage Loans Held for Sale/for Investment December 31, 2006 December 31, 2005 $250 million master repurchase agreement with Greenwich Capital expired on February 4, 2007 bearing interest at one-month LIBOR plus spreads from 0.75% to 1.25% (5.137% at December 31, 2005). Principal repayments are required 120 days from the funding date. (a) $ — $ 81,577 (c) $200 million master repurchase agreement with CSFB expiring on June 29, 2007 bearing interest at daily LIBOR plus spreads from 0.75% to 2.000% depending on collateral (6.36% at December 31, 2006 and 5.28% at December 31, 2005). Principal repayments are required 90 days from the funding date 106,801 143,609 $300 million master repurchase agreement with Deutche Bank Structured Products, Inc. expiring on March 26, 2007 bearing interest at 1 month LIBOR plus spreads from 0.625% to 1.25% depending on collateral (6.0% at December 31, 2006). Principal payments are due 120 days from the repurchase date. (b) 66,171 Total Financing Arrangements $ 172,972 $ 225,186 (a) Management did not seek renewal of this facility which expired February 4, 2007. (b) The line was paid in full and mutually terminated on March 26, 2007. (c) Includes $3,969 of warehouse financing not related to discontinued operations. 10. Collateralized Debt Obligations 11. Subordinated Debentures F-19 On March 15, 2005 the Company closed a private placement of $25.0 million of trust preferred securities to Taberna Preferred Funding I, Ltd., a pooled investment vehicle. The securities were issued by NYM Preferred Trust I and are fully guaranteed by the Company with respect to distributions and amounts payable upon liquidation, redemption or repayment. These securities have a floating interest rate equal to three-month LIBOR plus 3.75%, resetting quarterly (9.12% at December 31, 2006 and 7.77% at December 31, 2005). The securities mature on March 15, 2035 and may be called at par by the Company any time after March 15, 2010. NYMC entered into an interest rate cap agreement to limit the maximum interest rate cost of the trust preferred securities to 7.5%. The term of the interest rate cap agreement is five years and resets quarterly in conjunction with the reset periods of the trust preferred securities. The interest rate cap agreement is accounted for as a cash flow hedge transaction in accordance with SFAS No.133. In accordance with the guidelines of SFAS No. 150 “Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity”, the issued preferred stock of NYM Preferred Trust I has been classified as subordinated debentures in the liability section of the Company’s consolidated balance sheet. In connection with the sale of our wholesale mortgage origination platform assets on February 22, 2007 and the sale of our retail mortgage lending platform on March 31, 2007, during the fourth quarter of 2006, we classified our Mortgage Lending segment as a discontinued operation in accordance with the provisions of Statement of Financial Accounting Standards No. 144. As a result, we have reported revenues and expenses related to the segment as a discontinued operation and the related assets and liabilities as assets and liabilities related to a discontinued operation for all periods presented in the accompanying consolidated financial statements. Certain assets, such as the deferred tax asset, and certain liabilities, such as subordinated debt and liabilities related to leased facilities not assigned to Indymac will become part of the ongoing operations of NYMT and accordingly, we have not included these items as part of the discontinued operation in accordance with the provisions of SFAS No. 144. The components of Assets related to the discontinued operation as of December 31, 2006 and 2005 are as follows (dollar amounts in thousands): The components of Liabilities related to the discontinued operation as of December 31, 2006 and 2005 are as follows (dollar amounts in thousands): The combined results of operations of the assets and liabilities related to the discontinued operation for the years ended December 31, 2006, 2005 and 2004 are as follows (dollar amounts in thousands): 12. Discontinued Operation December 31, 2006 December 31, 2005 Restricted cash $ 1,065 $ 519 Due from loan purchasers 88,351 121,813 Escrow deposits-pending loan closings 3,814 1,434 Accounts and accrued interest receivable 2,488 4,966 Mortgage loans held for sale (see note 3) 106,900 108,271 Prepaid and other assets 4,654 3,686 Derivative assets 1,137 1,300 Property and equipment, net (see note 6) 6,516 6,882 $ 214,925 $ 248,871 December 31, 2006 December 31, 2005 Financing arrangements, loans held for sale /for investment (see note 9) $ 172,972 $ 221,217 Due to loan purchasers 8,334 1,762 Accounts payable and accrued expenses 6,348 8,163 Derivative liabilities (see note 7) 216 394 Other liabilities 117 389 $ 187,987 $ 231,925 For the Year Ended December 31, 2006 2005 2004 REVENUES: $ $  Net interest income 3,524 4,499 $ 3,362 Gain on sale of mortgage loans 17,987 26,783 20,835 Loan losses (8,228 ) — — Brokered loan fees 10,937 9,991 6,895 Other (expense) income (294) 231 834 Total net revenues 23,926 41,504 31,926 EXPENSES: Salaries, commissions and benefits 21,711 29,045 16,736 Brokered loan expenses 8,277 7,543 5,276 Occupancy and equipment 5,077 6,076 3,107 General and administrative 14,552 16,051 10,018 Total expenses 49,617 58,715 35,137 (LOSS)/INCOME BEFORE INCOME TAX BENEFIT (25,691 ) (17,211 ) (3,211 ) Income tax benefit 8,494 8,549 1,259 NET (LOSS)/INCOME $ (17,197 ) $ (8,662 ) $ (1,952 ) F-20  Loans Sold to Investors - The Company is not exposed to long term credit risk on its loans sold to investors. In the normal course of business however, the Company is obligated to repurchase loans based on violations of representations and warranties, or early payment defaults. Loans Funding and Delivery Commitments - At December 31, 2006 and December 31, 2005 the Company had commitments to fund loans with agreed-upon rates totaling $104.3 million and $130.3 million, respectively. The Company hedges the interest rate risk of such commitments and the recorded mortgage loans held for sale balances primarily with FSLCs, which totaled $142.1 million and $51.8 million at December 31, 2006 and December 31, 2005, respectively. The remaining commitments to fund loans with agreed-upon rates are anticipated to be sold through optional delivery contract investor programs. The Company does not anticipate any material losses from such sales. Outstanding Litigation - The Company is involved in litigation arising in the normal course of business. Although the amount of any ultimate liability arising from these matters cannot presently be determined, the Company does not anticipate that any such liability will have a material effect on its consolidated financial statements. Leases - The Company leases its corporate offices and certain retail facilities and equipment under short-term lease agreements expiring at various dates through 2013. All such leases are accounted for as operating leases. Total rental expense for property and equipment amounted to $4.8 million, $4.6 million and $3.3 million for the years ended December 31, 2006, 2005 and 2004, respectively. On February 11, 2005, the Company signed a letter of intent to enter into a sub-lease for its former headquarters space at 304 Park Avenue in New York. The Company’s remaining contractual obligation to the landlord on this lease is $1.8 million. The sub-lease tenant will have a contractual rent obligation to the Company under the sub-lease of $1.0 million. This transaction was completed in late March 2005. Accordingly, during the first quarter of 2005, the Company recognized a charge of $0.8 million to earnings. On November 13, 2006 the Company entered into an Assignment and Assumption of Sublease and an Escrow Agreement, each with Lehman Brothers Holdings Inc. (“Lehman”) (collectively, the “Agreements”). Under the Agreements, the Company assigned and Lehman has assumed the sublease for the Company’s corporate headquarters at 1301 Avenue of the Americas. Pursuant to the Agreements, Lehman will fund an escrow account in the amount of $3.0 million for the benefit of NYMC. Pending the consent of the landlord to the assignment, the full escrow amount will be released to the Company if it vacates the leased space on or before May 1, 2007. For each month beginning in May 2007 that the Company remains in occupation of the leased space, the escrow amount payable to NYMC will be reduced by $200,000. The Company intends to relocate its corporate headquarters to a smaller facility at a location that is yet to be determined. As of December 31, 2006 obligations under non-cancelable operating leases that have an initial term of more than one year are as follows (dollar amounts in thousands): 13. Commitments and Contingencies Year Ending December 31, Continuing operations Discontinued operation Total 2007 $ 2,550 $ 2,761 $ 5,311 2008 2,468 1,985 4,453 2009 2,440 1,041 3,481 2010 2,377 637 3,014 2011 — 294 294 Thereafter — 357 357 $ 9,835 $ 7,075 $ 16,910 F-21  Letters of Credit - NYMC maintains a letter of credit in the amount of $100,000 in lieu of a cash security deposit for an office lease dated June 1998 for the Company’s former headquarters located at 304 Park Avenue South in New York City. The sole beneficiary of this letter of credit is the owner of the building, 304 Park Avenue South LLC. This letter of credit is secured by cash deposited in a bank account maintained at Signature Bank. Subsequent to the move to a new headquarters location in New York City in July 2003, in lieu of a cash security deposit for the office lease we entered into an irrevocable transferable letter of credit in the amount of $313,000 with PricewaterhouseCoopers, LLP (sublandlord),as beneficiary. This letter of credit is secured by cash deposited in a bank account maintained at HSBC bank. Upon completion of the Company’s IPO and acquisition of NYMC, Steven B. Schnall and Joseph V. Fierro, the former owners of NYMC, were entitled to a distribution of NYMC’s retained earnings through the close of the Company’s IPO on June 29, 2004, not to exceed $4.5 million. As a result, a distribution of $2.4 million ($0.4 million of retained earnings as of March 31, 2004 plus an estimate of $2.0 million for NYMC’s earnings through June 29, 2004) was made to the former owners upon the close of the IPO. The subsequent earnings and elimination of distributions and unrealized gains and losses attributable to NYMC for the period prior to June 29, 2004 equated to a distribution overpayment of $1.3 million, for which Messrs. Schnall and Fierro reimbursed the Company immediately upon the finalization of the overpayment calculation in July 2004. Steven B. Schnall owns a 48% membership interest and Joseph V. Fierro owns a 12% membership interest in Centurion Abstract, LLC (“Centurion”), which provides title insurance brokerage services for certain title insurance providers. From time to time, NYMC refers its mortgage loan borrowers to Centurion for assistance in obtaining title insurance in connection with their mortgage loans, although the borrowers have no obligation to utilize Centurion’s services. When NYMC’s borrowers elect to utilize Centurion’s services to obtain title insurance, Centurion collects various fees and a portion of the title insurance premium paid by the borrower for its title insurance. Centurion received $13,323, $0.6 million and $0.6 million in fees and other amounts from NYMC borrowers for the years ended December 31, 2006, December 31, 2005 and December 31, 2004 respectively. NYMC does not economically benefit from such referrals. The Company has originated loans predominantly in the eastern United States. Loan concentrations are considered to exist when there are amounts loaned to a multiple number of borrowers with similar characteristics, which would cause their ability to meet contractual obligations to be similarly impacted by economic or other conditions. At December 31, 2006 and December 31, 2005, there were geographic concentrations of credit risk exceeding 5% of the total loan balances within mortgage loans held for sale as follows: At December 31, 2006 and December 31, 2005, there were geographic concentrations of credit risk exceeding 5% of the total loan balances within mortgage loans held in the securitization trusts and mortgage loans held for investment as follows: 14. Related Party Transactions 15. Concentrations of Credit Risk December 31, 2006 December 31, 2005 New York 20.9 % 43.0 % Massachusetts 17.5 % 17.8 % New Jersey 12.3 % 5.1 % Connecticut 7.5 % 5.8 % Florida 6.8 % 9.7 % December 31, 2006 December 31, 2005 New York 26.2 % 32.7 % Massachusetts 14.4 % 19.4 % California 6.8 % 14.1 % New Jersey 4.2 % 5.8 % Florida 4.2 % 5.4 % F-22  Fair value estimates are made as of a specific point in time based on estimates using market quotes, present value or other valuation techniques. These techniques involve uncertainties and are significantly affected by the assumptions used and the judgments made regarding risk characteristics of various financial instruments, discount rates, estimates of future cash flows, future expected loss experience, and other factors. Changes in assumptions could significantly affect these estimates and the resulting fair values. Derived fair value estimates cannot be necessarily substantiated by comparison to independent markets and, in many cases, could not be necessarily realized in an immediate sale of the instrument. Also, because of differences in methodologies and assumptions used to estimate fair values, the Company’s fair values should not be compared to those of other companies. Fair value estimates are based on existing financial instruments and do not attempt to estimate the value of anticipated future business and the value of assets and liabilities that are not considered financial instruments. Accordingly, the aggregate fair value amounts presented below do not represent the underlying value of the Company. The fair value of certain assets and liabilities approximate cost due to their short-term nature, terms of repayment or interest rates associated with the asset or liability. Such assets or liabilities include cash and cash equivalents, escrow deposits, unsettled mortgage loan sales, and financing arrangements. All forward delivery commitments and option contracts to buy securities are to be contractually settled within six months of the balance sheet date. The following describes the methods and assumptions used by the Company in estimating fair values of other financial instruments: a. Investment Securities Available for Sale - Fair value is generally estimated based on market prices provided by five to seven dealers who make markets in these financial instruments. If the fair value of a security is not reasonably available from a dealer, management estimates the fair value based on characteristics of the security that the Company receives from the issuer and based on available market information. b. Mortgage Loans Held for Sale - Fair value is estimated using the quoted market prices for securities backed by similar types of loans and current investor or dealer commitments to purchase loans. c. Mortgage Loans Held for Investment - Mortgage loans held for investment are recorded at amortized cost. Fair value is estimated using pricing models and taking into consideration the aggregated characteristics of groups of loans such as, but not limited to, collateral type, index, interest rate, margin, length of fixed-rate period, life cap, periodic cap, underwriting standards, age and credit estimated using the quoted market prices for securities backed by similar types of loans. d. Mortgage Loans Held in the Securitization Trusts - Mortgage loans held in the securitization trusts are recorded at amortized cost. Fair value is estimated using pricing models and taking into consideration the aggregated characteristics of groups of loans such as, but not limited to, collateral type, index, interest rate, margin, length of fixed-rate period, life cap, periodic cap, underwriting standards, age and credit estimated using the quoted market prices for securities backed by similar types of loans. e. Interest Rate Swaps and Caps - The fair value of interest rate swaps and caps is based on using market accepted financial models as well as dealer quotes. f. Interest Rate Lock Commitments - The fair value of IRLCs is estimated using the fees and rates currently charged to enter into similar agreements, taking into account the remaining terms of the agreements and the present creditworthiness of the counterparties. For fixed rate loan commitments, fair value also considers the difference between current levels of interest rates and the committed rates. The fair value of IRLCs is determined in accordance with SAB 105. g. Forward Sale Loan Contracts - The fair value of these instruments is estimated using current market prices for dealer or investor commitments relative to the Company’s existing positions. 16. Fair Value of Financial Instruments F-23  The following tables set forth information about financial instruments, except for those noted above for which the carrying amount approximates fair value (dollar amounts in thousands): NYMT and its taxable subsidiary, NYMC, were S corporations prior to June 29, 2004 pursuant to the Internal Revenue Code of 1986, as amended, and as such did not incur any federal income tax expense. On June 29, 2004, NYMC became a C corporation for federal and state income tax purposes and, as such, is subject to federal and state income tax on its taxable income for periods after June 29, 2004. December 31, 2006 Notional Amount Carrying Amount Estimated Fair Value Continuing Operations: Investment securities available for sale $ 491,293 $ 488,962 $ 488,962 Mortgage loans held in the securitization trusts 584,358 588,160 582,504 Commitments and contingencies: Interest rate swaps 285,000 621 621 Interest rate caps 1,514,744 1,045 1,045 Discontinued Operation: Mortgage loans held for sale 110,804 106,900 107,810 Commitments and contingencies: Interest rate lock commitments - loan commitments 104,334 (118 ) (118 ) Interest rate lock commitments - mortgage loans held for sale 106,312 (98 ) (98 ) Forward loan sales contracts 142,110 171 171 Interest rate caps $ 25,774 $ 966 $ 966 December 31, 2005 Notional Amount Carrying Amount Estimated Fair Value Continuing Operations: Investment securities available for sale $ 719,701 $ 716,482 $ 716,482 Mortgage loans held for investment 4,054 4,060 4,079 Mortgage loans held in the securitization trusts 771,451 776,610 775,311 Commitments and contingencies: Interest rate swaps 645,000 6,383 6,383 Interest rate caps 1,833,086 2,163 2,163 Discontinued Operation: Mortgage loans held for sale 108,244 108,271 109,252 Commitments and contingencies: Interest rate lock commitments - loan commitments 130,320 123 123 Interest rate lock commitments - mortgage loans held for sale 108,109 (14 ) (14 ) Forward loan sales contracts 51,763 (380 ) (380 ) Interest rate caps $ 25,774 $ 1,177 $ 1,177 17. Income taxes F-24  A reconciliation of the statutory income tax provision (benefit) to the effective income tax provision for the years ended December 31, 2006 and December 31, 2005, is as follows (dollar amounts in thousands). The income tax benefit for the year ended December 31, 2006 is comprised of the following components (dollar amounts in thousands): The income tax benefit for the year ended December 31, 2005 is comprised of the following components: The deferred tax asset at December 31, 2006 includes a deferred tax asset of $18.4 million and a deferred tax liability of $0.1 million which represents the tax effect of differences between tax basis and financial statement carrying amounts of assets and liabilities. The major sources of temporary differences and their deferred tax effect at December 31, 2006 are as follows (dollar amounts in thousands): December 31, 2006 December 31, 2005 Benefit at statutory rate (35%) $ (8,234 ) $ (4,861 ) Non-taxable REIT loss (1,891 ) (2,038 ) Transfer pricing of loans sold to nontaxable parent 11 555 State and local tax benefit (2,663 ) (1,731 ) Valuation allowance 4,269 — Miscellaneous 14 (21 ) Change in tax status — (453 ) Total benefit $ (8,494 ) $ (8,549 ) Deferred Regular tax benefit Federal $ (6,721 ) State (1,773 ) Total tax benefit $ (8,494 ) Deferred Regular tax benefit Federal $ (6,818 ) State (1,731 ) Total tax benefit $ (8,549 ) Deferred tax assets: Net operating loss carryover $ 19,949 Restricted stock, performance shares and stock option expense 410 Mark to market adjustment 2 Sec. 267 disallowance 268 Charitable contribution carryforward 35 GAAP reserves 1,399 Rent expense 518 Loss on sublease 121 Gross deferred tax asset 22,702 Valuation allowance (4,269 ) Net deferred tax asset $ 18,433 Deferred tax liabilities: Management compensation $ 16 Depreciation 65 Total deferred tax liability $ 81 F-25  The deferred tax asset at December 31, 2005 includes a deferred tax asset of $10.2 million and a deferred tax liability of $0.3 million which represents the tax effect of differences between tax basis and financial statement carrying amounts of assets and liabilities. The major sources of temporary differences and their deferred tax effect at December 31, 2005 are as follows (dollar amounts in thousands): The net deferred tax asset is included in prepaid and other assets on the accompanying consolidated balance sheet. Management has established a valuation allowance for the portion of the net deferred tax assets that it believes is more likely than not that, based upon the weight of available evidence, will not be realized. Although realization is not assured, management believes it is more likely than not that the remaining deferred tax assets, for which valuation allowance has not been established, will be realized. The net operating loss carryforward expires at various intervals between 2012 and 2026. The charitable contribution carryforward will expire in 2011. Until March 31, 2007, the Company operated two segments, the Mortgage Portfolio Management segment and the Mortgage Lending segment. Upon the sale of substantially all of its mortgage lending operating assets to Indymac as of March 31, 2007, the Company exited the mortgage lending business and accordingly will no longer report segment information. Deferred tax assets: Net operating loss forward $ 9,560 Restricted stock, performance shares and stock option expense 125 Rent expense 120 Management compensation 98 Loss on sublease 181 Mark to market adjustments 94 Total deferred tax asset 10,178 Deferred tax liabilities: Depreciation 319 Total deferred tax liability 319 Net deferred tax asset $ 9,859 18. Segment Reporting F-26  The Company had 400,000,000 shares of common stock, par value $0.01 per share, authorized with 18,325,187 shares issued and 18,077,880 outstanding as of December 31, 2006. Of the common stock authorized, 1,031,111 shares were reserved for issuance as restricted stock awards to employees, officers and directors pursuant to the 2005 Stock Incentive Plan. As of December 31, 2006, 878,496 shares remain reserved for issuance. The Company calculates basic net income per share by dividing net income (loss) for the period by weighted-average shares of common stock outstanding for that period. Diluted net income (loss) per share takes into account the effect of dilutive instruments, such as stock options and unvested restricted or performance stock, but uses the average share price for the period in determining the number of incremental shares that are to be added to the weighted-average number of shares outstanding. Since the Company is in a loss position for the fiscal years ended December 31, 2006 and 2005, the calculation of basic and diluted earnings per share is the same since the effect of common stock equivalents would be anti-dilutive. The following table presents the computation of basic and diluted net earnings per share for the periods indicated (dollar amounts in thousands, except net earnings per share): During 2006, taxable dividends for New York Mortgage Trust’s common stock were $0.63 per share. For tax reporting purposes, the 2006 taxable dividend will be classified as follows: $0.02401 as ordinary income and $0.60599 as a return of capital. 19. Capital Stock and Earnings per Share For the Year Ended December 31, 2006 For the Year Ended December 31, 2005 For the Year Ended December 31, 2004 Numerator: Net (loss)/income $ (15,031 ) $ (5,340 ) $ 4,947 Denominator: Weighted average number of common shares outstanding — basic 18,038 17,873 17,797 Net effect of unvested restricted stock — — 224 Performance shares — — 35 Escrowed shares(1) — — 53 Net effect of stock options(2) — — 6 Weighted average number of common shares outstanding — dilutive $ 18,038 17,873 18,115 Net (loss)/income per share — basic $ (0.83 ) $ (0.30 ) $ 0.28 Net (loss)/income per share — diluted $ (0.83 ) $ (0.30 ) $ 0.27 F-27  During 2005, taxable dividends for New York Mortgage Trust’s common stock were $0.95 per share. For tax reporting purposes, the 2005 taxable dividend will be classified as follows: $0.81532 as ordinary income and $0.13468 as a return of capital. 2004 Stock Incentive Plan The Company adopted the 2004 Stock Incentive Plan (the “2004 Plan”), during 2004. The 2004 Plan provided for the issuance of options to purchase shares of common stock, stock awards, stock appreciation rights and other equity-based awards, including performance shares, and all employees and non-employee directors were eligible to receive these awards under the 2004 Plan. During 2004 and 2005, the Company granted stock options, restricted stock and performance shares to certain of its employees and non-employee directors under the 2004 Plan, including performance shares awarded to certain employees in connection with the Company’s November 2004 acquisition of Guaranty Residential Lending, Inc. (“GRL”). The maximum number of options that could be issued under the 2004 Plan was 706,000 shares and the maximum number of restricted stock awards that could be granted was 794,250. 2005 Stock Incentive Plan At the Annual Meeting of Stockholders held on May 31, 2005, the Company’s stockholders approved the adoption of the Company’s 2005 Stock Incentive Plan (the “2005 Plan”). The 2005 Plan replaced the 2004 Plan, which was terminated on the same date. The 2005 Plan provides that up to 1,031,111 shares of the Company’s common stock may be issued thereunder. The 2005 Plan provides that the number of shares available for issuance under the 2005 Plan may be increased by the number of shares covered by 2004 Plan awards that were forfeited or terminated after March 10, 2005. On October 12, 2006, the Company filed a registration statement on Form S-8 registering the issuance or resale of 1,031,111 shares under the 2005 Plan. As of December 31, 2006, 16,540 shares awarded under the 2004 Plan had been forfeited or terminated. Options Each of the 2005 and 2004 Plans provide for the exercise price of options to be determined by the Compensation Committee of the Board of Directors (“Compensation Committee”) but not to be less than the fair market value on the date the option is granted. Options expire ten years after the grant date. As of December 31, 2006, 591,500 options have been granted pursuant to the Company's stock incentive plans with a vesting period of two years. The Company accounts for the fair value of its grants in accordance with SFAS No. 123(R). The compensation cost charged against income exclusive of option forfeitures during the twelve months ended December 31, 2006 and 2005 was approximately $32,000 and $44,000, respectively. As of December 31, 2006, there was no unrecognized compensation cost related to non-vested share-based compensation awards granted under the stock option plans. No cash was received for the exercise of stock options during the twelve month periods ended December 31, 2006, 2005 and 2004. A summary of the status of the Company’s options as of December 31, 2006 and changes during the year then ended is presented below: (1) Upon the closing of the Company’s IPO, of the 2,750,000 shares exchanged for the equity interests of NYMC, 100,000 shares were held in escrow through December 31, 2004 and were available to satisfy any indemnification claims the Company may have had against the contributors of NYMC for losses incurred as a result of defaults on any residential mortgage loans originated by NYMC and closed prior to the completion of the IPO. As of December 31, 2004, the amount of escrowed shares was reduced by 47,680 shares, representing $492,536 for estimated losses on loans closed prior to the Company’s IPO. Furthermore, the contributors of NYMC entered into a new escrow agreement, which extended the escrow period to December 31, 2006 for the remaining 52,320 shares. In September 2006, the Company concluded all indemnification claims related to the escrowed shares were finally determined and no additional losses would be incurred. Accordingly the remaining 52,320 escrowed shares were released from escrow on October 27, 2006. (2) The Company has granted 591,500 stock options under its stock incentive plans. 20. Stock Incentive Plans Number of Options Weighted Average Exercise Price Outstanding at beginning of year, January 1, 2006 541,500 $ 9.56  Granted — — Canceled 75,000 9.83 Exercised — — Outstanding at end of year, December 31, 2006 466,500 $ 9.52 Options exercisable at year-end 466,500 $ 9.52 F-28  A summary of the status of the Company’s options as of December 31, 2005 and changes during the year then ended is presented below: A summary of the status of the Company’s options as of December 31, 2004 and changes during the year then ended is presented below: The following table summarizes information about stock options at December 31, 2006: The following table summarizes information about stock options at December 31, 2005: Number of Options Weighted Average Exercise Price Outstanding at beginning of year, January 1, 2005 591,500 $ 9.58 Granted — Canceled 50,000 9.83 Exercised — — Outstanding at end of year, December 31, 2005 541,500 $ 9.56 Options exercisable at year-end 403,157 $ 9.47 Number of Options Weighted Average Exercise Price Outstanding at beginning of year, January 1, 2004 — — Granted 591,500 $ 9.58 Canceled — — Exercised — — Outstanding at end of year, December 31, 2004 591,500 $ 9.58 Options exercisable at year-end 314,828 $ 9.36 Weighted-average fair value of options granted during the year $ 9.58 Options Outstanding Weighted Average Remaining Contractual Options Exercisable Fair Value of Range of Exercise Prices Date of Grants Number Outstanding Life (Years) Exercise Price Number Exercisable Exercise Price Options Granted $9.00 6/24/04 176,500 7.5 $ 9.00 176,500 $ 9.00 $ 0.39 $9.83 12/2/04 290,000 7.9 9.83 290,000 9.83 0.29 Total 466,500 7.8 $ 9.52 466,500 $ 9.52 $ 0.33 Options Outstanding Weighted Average Remaining Contractual Options Exercisable Fair Value of Range of Exercise Prices Number Outstanding Life (Years) Exercise Price Number Exercisable Exercise Price Options Granted $ 9.00 176,500 8.5 $ 9.00 176,500 $ 9.00 $ 0.39 $9.83 365,000 8.9 9.83 226,657 9.83 0.29 Total 541,500 8.8 $ 9.56 403,157 $ 9.47 $ 0.33 F-29  The following table summarizes information about stock options at December 31, 2004: The fair value of each option grant is estimated on the date of grant using the Binomial option-pricing model with the following weighted-average assumptions: Restricted Stock As of December 31, 2006, the Company has awarded 684,333 shares of restricted stock under the 2005 Plan, of which 470,826 shares have fully vested. As of December 31, 2006 the remaining shares of restricted stock awarded under the 2005 Plan are subject to vesting periods between 3 and 24 months. During the year ended December 31, 2006, the Company recognized non-cash compensation expense of $1.0 million relating to the vested portion of restricted stock grants. Dividends are paid on all restricted stock issued, whether those shares are vested or not. In general, unvested restricted stock is forfeited upon the recipient’s termination of employment. A summary of the status of the Company’s non-vested restricted stock as of December 31, 2006 and changes during the year then ended is presented below: A summary of the status of the Company’s non-vested restricted stock as of December 31, 2005 and changes during the year then ended is presented below: Range of Exercise Prices Number Outstanding Options Outstanding Weighted Average Remaining Contractual Life (Years) Exercise Price Options Exercisable Number Exercisable Exercise Price Fair Value of Options Granted $9.00 176,500 9.5 $ 9.00 176,500 $ 9.00 $ 0.39 $9.83 415,000 9.9 9.83 138,328 9.83 0.29 Total 591,500 9.8 $ 9.58 314,828 $ 9.36 $ 0.35 Risk free interest rate 4.5 % Expected volatility 10 % Expected life 10 years Expected dividend yield 10.48 % Number of Non-vested Restricted Shares Weighted Average Grant Date Fair Value Non-vested shares at beginning of year, January 1, 2006 221,058 $ 8.85 Granted 129,155 4.36 Forfeited (21,705 ) 9.20 Vested (115,001 ) 8.37 Non-vested shares as of December 31, 2006 213,507 $ 6.36 Weighted-average fair value of restricted stock granted during the period $ 562,549 $ 4.36 Number of Non-vested Restricted Shares Weighted Average Grant Date Fair Value Non-vested shares at beginning of year, January 1, 2005 367,803 $ 9.20 Granted 40,000 6.88 Forfeited (26,253 ) 9.83 Vested (160,492 ) 9.00 Non-vested shares as of December 31, 2005 221,058 $ 8.85  Weighted-average fair value of restricted stock granted during the period $ 275,000 $ 6.88 F-30  Performance Based Stock Awards In November 2004, the Company acquired 15 full-service and 26 satellite retail mortgage banking offices located in the Northeast and Mid-Atlantic states from General Residential Lending, Inc. (“GRL”). Pursuant to that transaction, the Company committed to award 238,809 shares of the Company’s stock to certain employees of those branches. Of these committed shares, 206,256 were performance based stock awards granted upon attainment of predetermined production levels and 32,553 were restricted stock awards. As of December 31, 2006, the awards range in vesting periods from 3 to 6 months with a share price set at the December 2, 2004 grant date market value of $9.83 per share. During the year ended December 31, 2006, the Company recognized non-cash compensation expense, exclusive of forfeitures of $0.1 million relating to performance based stock awards. Unvested performance share awards have no voting rights and do not earn dividends. A summary of the status of the Company’s non-vested performance based stock awards as of December 31, 2006 and changes during the year then ended is presented below: A summary of the status of the Company’s non-vested performance based stock awards as of December 31, 2005 and changes during the year then ended is presented below: The following table is a comparative breakdown of our unaudited quarterly results for the immediately preceding eight quarters. The unaudited information provided does not consider the effects of discontinued operations (dollar amounts in thousands, except per share data): Number of Non-vested Restricted Shares Weighted Average Grant Date Fair Value Non-vested shares at beginning of year, January 1, 2006 61,078 $ 9.83 Granted - - Forfeited (26,271 ) 9.83 Vested (9,256 ) 9.83 Non-vested shares as of December 31, 2006 25,551 $ 9.83 Number of Non-vested Restricted Shares Weighted Average Grant Date Fair Value Non-vested shares at beginning of year, January 1, 2005 206,256 $ 9.83 Granted - - Forfeited (107,561 ) 9.83 Vested (37,617 ) 9.83 Non-vested shares as of December 31, 2005 61,078 $ 9.83 21. Quarterly Financial Data (unaudited) Three Months Ended Mar. 31, 2006 Jun. 30, 2006 Sep. 30, 2006 Dec. 31, 2006 REVENUES: Interest income $ 22,626 $ 18,701 $ 20,878 $ 19,042 Interest expense 18,279 15,885 20,096 18,680 Net interest income 4,347 2,816 782 362 Other income (expense): Gain on sales of mortgage loans 4,070 5,981 4,311 3,625 Loan losses — — (4,077 ) (4,208 ) Brokered loan fees 2,777 3,493 2,402 2,265 Loss on sale of current period securitized loans (773 ) 26 — — (Loss) gain on sale of marketable securities and related  hedges (969 ) — 440 — Miscellaneous income loss 119 148 43 143 Total other income (expense) 5,224 9,648 3,119 1,825 EXPENSES: Salaries, commissions and related expenses 6,341 6,001 5,378 4,705 Brokered loan expenses 2,168 2,767 1,674 1,668 General and administrative expenses 5,774 5,181 4,632 5,359 Total expenses 14,283 13,949 11,684 11,732 Income (loss) before provision for income taxes (4,712 ) (1,485 ) (7,783 ) (9,545 ) Income tax benefit 2,916 1,663 3,915 — Net income (loss) $ (1,796 ) $ 178 $ (3,868 ) $ (9,545 ) Per share basic income (loss) $ (0.10 ) $ 0.01 $ (0.21 ) $ (0.53 ) Per share diluted income (loss) $ (0.10 ) $ 0.01 $ (0.21 ) $ (0.53 ) F-31  22. Subsequent events On February 7, 2007, we announced that we had entered into a definitive agreement to sell substantially all of the retail mortgage lending platform of NYMC to IndyMac Bank, F.S.B., (“Indymac”), a wholly owned subsidiary of Indymac Bancorp, Inc, for an estimated purchase price of $13.5 million in cash and the assumption of certain of our liabilities by Indymac. On March 31, 2007, Indymac purchased substantially all of the operating assets related to NYMC’s retail mortgage lending platform, including, among other things, assuming leases held by NYMC for approximately 20 full service and approximately 10 satellite retail mortgage lending offices (excluding the lease for the Company’s corporate headquarters, which is being assigned, as previously announced, under a separate agreement to Lehman Brothers Holding, Inc.), the tangible personal property located in those approximately 30 retail mortgage banking offices, NYMC’s pipeline of residential mortgage loan applications (the “Pipeline Loans”), escrowed deposits related to the Pipeline Loans, customer lists and intellectual property and information technology systems used by NYMC in the conduct of its retail mortgage banking platform. Indymac assumed the obligations of NYMC under the Pipeline Loans and substantially all of NYMC’s liabilities under the purchased contracts and purchased assets arising after the closing date. Indymac has also agreed to pay (i) the first $500,000 in severance expenses with respect to “transferred employees” (as defined in the asset purchase agreement filed as Exhibit 10.62 to this Annual Report on Form 10-K) and (ii) severance expenses in excess of $1.1 million arising after the closing with respect to transferred employees. As part of the Indymac transaction, the company has agreed, for a period of 18 months, not to compete with Indymac other than in the purchase, sale, or retention of mortgage loans. Indymac has hired substantially all of our branch employees and loan officers and a majority of NYMC employees based out of our corporate headquarters. As of April 1, 2007, the Company has approximately 40 employees. On February 14, 2007, we entered into a definitive agreement with Tribeca Lending Corp., a subsidiary of Franklin Credit Management Corporation (“Tribeca Lending”) to sell our wholesale lending business for an estimated purchase price of $485,000. This transaction closed on February 22, 2007. Together, the closing of the sale of our retail mortgage banking platform to Indymac and the sale of our wholesale lending business to Tribeca Lending has resulted in gross proceeds to NYMT of approximately $14.0 million before fees and expenses, and before deduction of approximately $2.3 million, which will be held in escrow to support warranties and indemnifications provided to Indymac by NYMC as well as other purchase price adjustments. NYMC will record a one time taxable gain on the sale of these assets. NYMC’s deferred tax asset will absorb any taxable gain from the sale. On November 13, 2006, The New York Mortgage Company, LLC (“NYMC”), a taxable REIT subsidiary of New York Mortgage Trust, Inc. (the “Company”), entered into an Assignment and Assumption of Sublease and an Escrow Agreement, each with Lehman Brothers Holdings Three Months Ended Mar. 31, 2005 Jun. 30, 2005 Sep. 30, 2005 Dec. 31, 2005 REVENUES: Interest income $ 17,117 $ 19,669 $ 19,698 $ 20,992 Interest expense 11,690 14,531 16,159 17,724 Net interest income 5,427 5,138 3,539 3,268 Other income (expense): Gain on sales of mortgage loans 4,321 8,328 8,985 5,149 Brokered loan fees 1,999 2,534 2,647 2,811 Gain (loss) on sale of marketable securities and related hedges 377 544 1,286 (7,440 ) Miscellaneous income (loss) 115 (10 ) 91 36 Total other income (expense) 6,812 11,396 13,009 556 EXPENSES: Salaries, commissions and related expenses 7,143 9,430 7,302 7,104 Brokered loan expenses 1,520 2,686 1,483 1,854 General and administrative expenses 6,304 6,062 5,903 6,243 Total expenses 14,967 18,178 14,688 15,201 Income (loss) before provision for income taxes (2,728 ) (1,644 ) 1,860 (11,377 ) Income tax benefit 2,690 2,190 1,000 2,669 Net income (loss) $ (38 ) $ 546 $ 2,860 $ (8,708 ) Per share basic income (loss) $ 0.00 $ 0.03 $ 0.16 $ (0.49 ) Per share diluted income (loss) $ 0.00 $ 0.03 $ 0.16 $ (0.49 ) Inc. (“Lehman”) (collectively, the “Agreements”). Under the Agreements, NYMC assigned and Lehman has assumed the sublease for the Company's corporate headquarters at 1301 Avenue of the Americas. Pursuant to the Agreements, Lehman will fund an escrow account in the amount of $3,000,000 for the benefit of NYMC. Pending the consent of the landlord to the assignment, the full escrow amount will be released to the Company if it vacates the leased space on or before March 1, 2007. For each month beginning in March 2007 that the Company remains in occupation of the leased space, the escrow amount payable to NYMC will be reduced by $200,000. NYMC will be paid an additional (i) $100,000 if the Company vacates the leased space between February 1, 2007 and February 28, 2007, or (ii) $200,000 if the Company vacates the leased space prior to February 1, 2007. The Company intends to relocate its corporate headquarters to a smaller facility at a location that is yet to be determined. On or about January 5 2007, NYMC and Lehman entered into a First Amendment to Assignment and Assumption of Sublease extending the date for NYMC to vacate the leased space to on or before April 1, 2007. For each month beginning in April, 2007 that NYMC remains in occupation of the leased space, the escrow amount payable to NYMC will be reduced by $200,000. On or about February 8, 2007 NYMC and Lehman entered into a Second Amendment to the Assignment and Assumption of Sublease extending the date for NYMC to vacate the leased space on or before May 1, 2007. For each month beginning in May, 2007 that NYMC remains in occupation of the leased space, the escrow amount payable to NYMC will be reduced by $200,000. F-32  EXHIBIT INDEX Exhibits. The exhibits required by Item 601 of Regulation S-K are listed below. Management contracts or compensatory plans are filed as Exhibits 10.16, 10.28 - 10.34, 10.38, 10.41, 10.46, 10.60, 10.61. Exhibit Description 3.1 Articles of Amendment and Restatement of New York Mortgage Trust, Inc. (Incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 3.2(a) Bylaws of New York Mortgage Trust, Inc. (Incorporated by reference to Exhibit 3.2 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 3.2(b) Amendment No. 1 to Bylaws of New York Mortgage Trust, Inc. 4.1 Form of Common Stock Certificate. (Incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 4.2(a) Junior Subordinated Indenture between The New York Mortgage Company, LLC and JPMorgan Chase Bank, National Association, as trustee, dated September 1, 2005. (Incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K as filed with the Securities and Exchange Commission on September 6, 2005). 4.2(b) Amended and Restated Trust Agreement among The New York Mortgage Company, LLC, JPMorgan Chase Bank, National Association, Chase Bank USA, National Association and the Administrative Trustees named therein, dated September 1, 2005. (Incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K as filed with the Securities and Exchange Commission on September 6, 2005). 74  Exhibit Description 10.1 Warehousing Credit Agreement, among The New York Mortgage Company LLC, Steven B. Schnall, Joseph V. Fierro and National City Bank of Kentucky, dated January 25, 2002. (Incorporated by reference to Exhibit 10.39 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.2 First Amendment, dated April 2002, to Warehousing Credit Agreement, among The New York Mortgage Company LLC, Steven B. Schnall, Joseph V. Fierro and National City Bank of Kentucky, dated January 25, 2002. (Incorporated by reference to Exhibit 10.40 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.3 Second Amendment, dated June 3, 2002, to Warehousing Credit Agreement, among The New York Mortgage Company LLC, Steven B. Schnall, Joseph V. Fierro and National City Bank of Kentucky, dated January 25, 2002. (Incorporated by reference to Exhibit 10.41 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.4 Third Amendment, dated November , 2002, to Warehousing Credit Agreement, among The New York Mortgage Company LLC, Steven B. Schnall, Joseph V. Fierro and National City Bank of Kentucky, dated January 25, 2002. (Incorporated by reference to Exhibit 10.42 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.5 Fourth Amendment, dated June 15, 2003, to Warehousing Credit Agreement, among The New York Mortgage Company LLC, Steven B. Schnall, Joseph V. Fierro and National City Bank of Kentucky, dated January 25, 2002. (Incorporated by reference to Exhibit 10.43 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.6 Warehouse Promissory Note, between The New York Mortgage Company, LLC and National City Bank of Kentucky, dated January 25, 2002. (Incorporated by reference to Exhibit 10.44 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 75  Exhibit Description 10.7 Amended and Restated Warehouse Promissory Note, between The New York Mortgage Company, LLC and National City Bank of Kentucky, dated June 3, 2002. (Incorporated by reference to Exhibit 10.45 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.8 Warehousing Credit Agreement, between New York Mortgage Company, LLC, Steven B. Schnall, Joseph V. Fierro and National City Bank of Kentucky, dated as of January 25, 2002. (Incorporated by reference to Exhibit 10.46 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.9 Pledge and Security Agreement, between The New York Mortgage Company, LLC and National City Bank of Kentucky, dated as of January 25, 2002. (Incorporated by reference to Exhibit 10.47 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.10 Unconditional and Continuing Guaranty of Payment by Steven B. Schnall to National City Bank of Kentucky, dated January 25, 2002. (Incorporated by reference to Exhibit 10.48 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.11 Unconditional and Continuing Guaranty of Payment by Joseph V. Fierro to National City Bank of Kentucky, dated January 25, 2002. (Incorporated by reference to Exhibit 10.49 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.12 Amended and Restated Unconditional and Continuing Guaranty of Payment by Steven B. Schnall to National City Bank of Kentucky, dated June 15, 2003. (Incorporated by reference to Exhibit 10.50 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.13 Amended and Restated Unconditional and Continuing Guaranty of Payment by Joseph V. Fierro to National City Bank of Kentucky, dated June 15, 2003. (Incorporated by reference to Exhibit 10.51 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.14 Whole Loan Purchase and Sale Agreement/Mortgage Loan Purchase and Sale Agreement between The New York Mortgage Company, LLC and Greenwich Capital Financial Products, Inc., dated as of September 1, 2003. (Incorporated by reference to Exhibit 10.53 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.15 Whole Loan Custodial Agreement/Custodial Agreement between Greenwich Capital Financial Products, Inc., The New York Mortgage Company, LLC and LaSalle Bank National Association, dated as of September 1, 2003. (Incorporated by reference to Exhibit 10.54 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 76  Exhibit Description 10.16 Form of New York Mortgage Trust, Inc. 2004 Stock Incentive Plan. (Incorporated by reference to Exhibit 10.55 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 77  Exhibit Description 10.17 Guaranty between HSBC Bank USA, National City Bank of Kentucky, The New York Mortgage Company LLC and Steven B. Schnall, dated as of December 15, 2003. (Incorporated by reference to Exhibit 10.71 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.18 Guaranty between HSBC Bank USA, National City Bank of Kentucky, The New York Mortgage Company LLC and Joseph V. Fierro, dated as of December 15, 2003. (Incorporated by reference to Exhibit 10.72 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.19 Credit Note by and between HSBC Bank USA and The New York Mortgage Company LLC, dated as of December 15, 2003. (Incorporated by reference to Exhibit 10.73 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.20 Credit Note by and between National City Bank of Kentucky and The New York Mortgage Company LLC, dated as of December 15, 2003. (Incorporated by reference to Exhibit 10.74 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.21 Swingline Note by and between HSBC Bank USA and The New York Mortgage Company LLC, dated as of December 15, 2003. (Incorporated by reference to Exhibit 10.75 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.22 Custodial Agreement by and among Greenwich Capital Financial Products, Inc., The New York Mortgage Corporation LLC and Deutsche Bank Trust Company Americas, dated as of August 1, 2003. (Incorporated by reference to Exhibit 10.76 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 78  Exhibit Description 10.23 Master Mortgage Loan Purchase and Interim Servicing Agreement by and between The New York Mortgage Company L.L.C. and Greenwich Capital Financial Products, Inc., dated as of August 1, 2003. (Incorporated by reference to Exhibit 10.77 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.24 Promissory Note, issued by New York Mortgage Funding, LLC on January 9, 2004 in the principal amount of $100,000,000.00, payable to Greenwich Capital Financial Products, Inc. (Incorporated by reference to Exhibit 10.82 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.25 Guaranty between the New York Mortgage Company, LLC and Greenwich Capital Financial Products, Inc., dated as of January 9, 2004. (Incorporated by reference to Exhibit 10.83 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.26 Custodial Agreement between New York Mortgage Funding, LLC, Deutche Bank Trust Company Americas and Greenwich Capital Financial Products, Inc., dated as of January 9, 2004. (Incorporated by reference to Exhibit 10.85 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.27 Amendment Number One, dated November 24, 2003, to the Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of August 1, 2003. (Incorporated by reference to Exhibit 10.86 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 79  Exhibit Description 10.28 Form of Employment Agreement between New York Mortgage Trust, Inc. and Steven B. Schnall. (Incorporated by reference to Exhibit 10.92 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.29 Form of Employment Agreement between New York Mortgage Trust, Inc. and David A. Akre. (Incorporated by reference to Exhibit 10.93 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.30 Form of Employment Agreement between New York Mortgage Trust, Inc. and Raymond A. Redlingshafer, Jr. (Incorporated by reference to Exhibit 10.94 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.31 Form of Employment Agreement between New York Mortgage Trust, Inc. and Michael I. Wirth. (Incorporated by reference to Exhibit 10.95 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.32 Form of Employment Agreement between New York Mortgage Trust, Inc. and Joseph V. Fierro. (Incorporated by reference to Exhibit 10.96 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 80  Exhibit Description 10.33 Form of Employment Agreement between New York Mortgage Trust, Inc. and Steven R. Mumma. (Incorporated by reference to Exhibit 10.97 to the Company’s Registration Statement on Form S-11 as filed with the Securities and Exchange Commission (Registration No. 333-111668), effective June 23, 2004). 10.34 Amendment No. 1 to Employment Agreement between New York Mortgage Trust, Inc. and Steven R. Mumma, dated December 2, 2004. (Incorporated by reference to Exhibit 10.98 to the Company’s Annual Report on Form 10-K as filed with the Securities and Exchange Commission on March 31, 2005). 10.35 Amended and Restated Credit and Security Agreement between HSBC Bank USA, National Association, National City Bank of Kentucky, JP Morgan Chase Bank, N.A. and The New York Mortgage Company LLC, dated as of February 1, 2005. (Incorporated by reference to Exhibit 10.99 to the Company’s Annual Report on Form 10-K as filed with the Securities and Exchange Commission on March 31, 2005). 10.36 Amended and Restated Master Loan and Security Agreement between New York Mortgage Funding, LLC, The New York Mortgage Company, LLC and New York Mortgage Trust, Inc. and Greenwich Capital Financial Products, Inc., dated as of December 6, 2004. (Incorporated by reference to Exhibit 10.100 to the Company’s Annual Report on Form 10-K as filed with the Securities and Exchange Commission on March 31, 2005). 10.37 Amended and Restated Master Repurchase Agreement Between New York Mortgage Trust, Inc., The New York Mortgage Company, LLC, New York Mortgage Funding, LLC and Credit Suisse First Boston Mortgage Capital LLC, dated as of March 30, 2005. (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K as filed with the Securities and Exchange Commission on April 5, 2005). 10.38 Separation and Release Agreement, dated June 30, 2005, by and between the Company and Raymond A. Redlingshafer, Jr. (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K as filed with the Securities and Exchange Commission on July 5, 2005). 10.39 Parent Guarantee Agreement between New York Mortgage Trust, Inc. and JPMorgan Chase Bank, National Association, as guarantee trustee, dated September 1, 2005. (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K as filed with the Securities and Exchange Commission on September 6, 2005). 10.40 Purchase Agreement among The New York Mortgage Company, LLC, New York Mortgage Trust, Inc., NYM Preferred Trust II and Taberna Preferred Funding II, Ltd., dated September 1, 2005. (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K as filed with the Securities and Exchange Commission on September 6, 2005). 10.41 New York Mortgage Trust, Inc. 2005 Stock Incentive Plan. (Incorporated by reference to Exhibit 10.1 to the Company’s Registration Statement on Form S-3/A (File No. 333-127400) as filed with the Securities and Exchange Commission on September 9, 2005). 10.42 Master Repurchase Agreement among DB Structured Products, Inc., Aspen Funding Corp. and Newport Funding Corp, New York Mortgage Trust, Inc. and NYMC Loan Corporation, dated as of December 13, 2005.* 10.43 Custodial Agreement among DB Structured Products, Inc., Aspen Funding Corp., and Newport Funding Corp., NYMC Loan Corporation, New York Mortgage Trust, Inc. and LaSalle Bank National Association, dated as of December 13, 2005.* 10.44 Master Repurchase Agreement among New York Mortgage Funding, LLC, The New York Mortgage Company, LLC, New York Mortgage Trust Inc. and Greenwich Capital Financial Products, Inc. dated as of January 5, 2006.* 81  Exhibit Description 10.45 Amended and Restated Custodial Agreement by and among The New York Mortgage Company, LLC, New York Mortgage Funding, LLC, New York Mortgage Trust, Inc., LaSalle Bank National Association and Greenwich Capital Financial Products, Inc. dated as of January 5, 2006. 10.46 Summary of 2005 Cash Bonuses Paid to Executive Officers (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on May 10, 2006). 10.47 Amendment No. 1 to Amended and Restated Master Repurchase Agreement among Credit Suisse First Boston Mortgage Capital LLC, The New York Mortgage Company, LLC, New York Mortgage Funding, LLC and New York Mortgage Trust, Inc. dated as of April 29, 2005 (incorporated by reference to Exhibit 10.110 to the Company’s Quarterly Report on Form 10-Q filed on May 10, 2006). 10.48 Amendment No. 2 to Amended and Restated Master Repurchase Agreement among Credit Suisse First Boston Mortgage Capital LLC, The New York Mortgage Company, LLC, New York Mortgage Funding, LLC and New York Mortgage Trust, Inc. dated as of May 10, 2005 (incorporated by reference to Exhibit 10.111 to the Company’s Quarterly Report on Form 10-Q filed on May 10, 2006). 10.49 Amendment No. 3 to Amended and Restated Master Repurchase Agreement among Credit Suisse First Boston Mortgage Capital LLC, The New York Mortgage Company, LLC, New York Mortgage Funding, LLC and New York Mortgage Trust, Inc. dated as of July 18, 2005 (incorporated by reference to Exhibit 10.112 to the Company’s Quarterly Report on Form 10-Q filed on May 10, 2006). 10.50 Amendment No. 4 to Amended and Restated Master Repurchase Agreement among Credit Suisse First Boston Mortgage Capital LLC, The New York Mortgage Company, LLC, New York Mortgage Funding, LLC and New York Mortgage Trust, Inc. dated as of August 5, 2005 (incorporated by reference to Exhibit 10.113 to the Company’s Quarterly Report on Form 10-Q filed on May 10, 2006). 10.51 Amendment No. 5 to Amended and Restated Master Repurchase Agreement among Credit Suisse First Boston Mortgage Capital LLC, The New York Mortgage Company, LLC, New York Mortgage Funding, LLC and New York Mortgage Trust, Inc. dated as of September 6, 2005 (incorporated by reference to Exhibit 10.114 to the Company’s Quarterly Report on Form 10-Q filed on May 10, 2006). 10.52 Amendment No. 6 to Amended and Restated Master Repurchase Agreement among Credit Suisse First Boston Mortgage Capital LLC, The New York Mortgage Company, LLC, New York Mortgage Funding, LLC and New York Mortgage Trust, Inc. dated as of November 14, 2005 (incorporated by reference to Exhibit 10.115 to the Company’s Quarterly Report on Form 10-Q filed on May 10, 2006). 10.53 Amendment No. 7 to Amended and Restated Master Repurchase Agreement among Credit Suisse First Boston Mortgage Capital LLC, The New York Mortgage Company, LLC, New York Mortgage Funding, LLC and New York Mortgage Trust, Inc. dated as of March 14, 2006 (incorporated by reference to Exhibit 10.116 to the Company’s Quarterly Report on Form 10-Q filed on May 10, 2006). 10.54 Amendment No. 8 to Amended and Restated Master Repurchase Agreement among Credit Suisse First Boston Mortgage Capital LLC, The New York Mortgage Company, LLC, New York Mortgage Funding, LLC and New York Mortgage Trust, Inc. dated as of March 24, 2006 (incorporated by reference to Exhibit 10.117 to the Company’s Quarterly Report on Form 10-Q filed on May 10, 2006). 10.55 Amendment No. 9 to Amended and Restated Master Repurchase Agreement among Credit Suisse First Boston Mortgage Capital LLC, The New York Mortgage Company, LLC, New York Mortgage Funding, LLC and New York Mortgage Trust, Inc. dated as of May 10, 2006 (incorporated by reference to Exhibit 10.118 to the Company’s Quarterly Report on Form 10-Q filed on May 10, 2006). 10.56 Amendment No. 10 to Amended and Restated Master Repurchase Agreement Among Credit Suisse First Boston Mortgage Capital LLC, The New York Mortgage Company LLC, New York Mortgage Funding, LLC and New York Mortgage Trust, Inc. dated as of August 4, 2006 (incorporated by reference to Exhibit 10.119 to the Company’s Quarterly Report on Form 10-Q filed on August 9, 2006). 82  * Filed herewith. 10.57 Amendment No. 11 to Amended and Restated Master Repurchase Agreement Among Credit Suisse First Boston Mortgage Capital LLC, The New York Mortgage Company LLC, New York Mortgage Funding, LLC and New York Mortgage Trust, Inc. dated as of October 16, 2006 (incorporated by reference to Exhibit 10.120 to the Company’s Quarterly Report on Form 10-Q filed on November 9, 2006). 10.58 Amendment No. 12 to Amended and Restated Master Repurchase Agreement Among Credit Suisse First Boston Mortgage Capital LLC, The New York Mortgage Company LLC, New York Mortgage Funding, LLC and New York Mortgage Trust, Inc. dated as of November 9, 2006 (incorporated by reference to Exhibit 10.121 to the Company’s Quarterly Report on Form 10-Q filed on November 9, 2006). 10.59 Amendment Number One to the Master Repurchase Agreement dated as of December 13, 2005, by and among DB Structured Products, Inc., Aspen Funding Corp., Newport Funding Corp., the Company and NYMC Loan Corporation, dated as of December 12, 2006 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 15, 2006). 10.60 Separation Agreement and General Release, by and between the Company and Steven B. Schnall, dated as of February 6, 2007 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on February 14, 2007). 10.61 Separation Agreement and General Release, by and between the Company and Joseph V. Fierro, dated as of February 6, 2007 (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on February 14, 2007). 10.62 Asset Purchase Agreement, by and among IndyMac Bank, F.S.B., The New York Mortgage Company, LLC and the New York Mortgage Trust, Inc., dated as of February 6, 2007.* 10.63 Assignment and Assumption of Sublease, by and between Lehman Brothers Holdings Inc. and The New York Mortgage Company, LLC, dated as of November 14, 2006.* 10.64 First Amendment to Assignment and Assumption of Sublease, dated as of January 5, 2007, by and between The New York Mortgage Company, LLC and Lehman Brothers Holdings, Inc.* 10.65 Second Amendment to Assignment and Assumption of Sublease, dated as of February __, 2007, by and between The New York Mortgage Company, LLC and Lehman Brothers Holdings, Inc.* 12.1 Computation of Ratios * 21.1 List of Subsidiaries of the Registrant.* 23.1 Consent of Independent Registered Public Accounting Firm (Deloitte & Touche LLP).* 31.1 Section 302 Certification of Co-Chief Executive Officer.* 31.2 Section 302 Certification of Chief Financial Officer.* 32.1 Section 906 Certification of Co-Chief Executive Officer.* 32.2 Section 906 Certification of Chief Financial Officer.* 83  Execution Version ASSET PURCHASE AGREEMENT AMONG NEW YORK MORTGAGE TRUST, INC., THE NEW YORK MORTGAGE COMPANY, LLC AND INDYMAC BANK, F.S.B. Dated as of February 6, 2007  Article I DEFINITIONS 1 1.1 Certain Definitions 1 1.2 Terms Defined Elsewhere in this Agreement 8 1.3 Other Definitional and Interpretive Matters 10 Article II PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES 11 2.1 Purchase and Sale of Assets 11 2.2 Excluded Assets 12 2.3 Assumption of Liabilities 13 2.4 Excluded Liabilities 13 2.5 Conditional Purchase and Assumption 14 2.6 Further Conveyances and Assumptions; Consent of Third Parties 15 2.7 Bulk Sales Laws 15 2.8 Purchase Price Allocation 16 2.9 Right to Control Payment 16 2.10 Proration of Certain Expenses 16 2.11 Copies and Access to Documents 16 Article III CONSIDERATION 17 3.1 Purchase Price 17 3.2 Estimated Purchase Price 17 3.3 Closing Payment 17 3.4 Final Book Value and Final Pipeline Premium Calculation 17 3.5 Escrow 19 Article IV CLOSING AND TERMINATION 20 4.1 Closing Date 20 4.2 Termination of Agreement 20 4.3 Effect of Termination 21 Article V REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT 21 5.1 Organization and Good Standing 21 5.2 Authorization of Agreement 21 5.3 Conflicts; Consents of Third Parties 22 5.4 Financial Statements 22 5.5 No Undisclosed Liabilities 23 5.6 Title to Purchased Assets; Sufficiency 23  5.7 Absence of Certain Developments 23 5.8 Taxes. 25 5.9 Real Property 26 5.10 Tangible Personal Property 27 5.11 Intellectual Property 28 5.12 Material Contracts. 30 5.13 Employee Benefits 32 5.14 Labor 33 5.15 Litigation 33 5.16 Compliance with Laws; Permits 34 5.17 Environmental Matters 34 5.18 Insurance 34 5.19 Loan Originations 35 5.20 Loan Officers 37 5.21 Related Party Transactions 37 5.22 Financial Advisors 37 Article VI REPRESENTATIONS AND WARRANTIES OF PURCHASER 38 6.1 Organization and Good Standing 38 6.2 Authorization of Agreement 38 6.3 Conflicts; Consents of Third Parties 38 6.4 Litigation 38 6.5 Financial Advisors 38 6.6 Financing 39 Article VII COVENANTS 39 7.1 Access to Information 39 7.2 Conduct of the Business Pending the Closing 39 7.3 Consents 41 7.4 Regulatory Approvals 42 7.5 Further Assurances 43 7.6 No Shop 43 7.7 Non-Competition; Non-Solicitation; Confidentiality 44 7.8 Preservation of Records 45 7.9 Publicity 46 7.10 Notice to Pipeline Loan Mortgagors and Others 46 7.11 Use of Name 46 ii  7.12 Real Property Lease Portfolio 47 Article VIII EMPLOYEES AND EMPLOYEE BENEFITS 47 8.1 Employment 47 8.2 Personnel Files 50 8.3 Standard Procedure 50 8.4 Terminated Employees 50 Article IX CONDITIONS TO CLOSING 50 9.1 Conditions Precedent to Obligations of Purchaser 50 9.2 Conditions Precedent to Obligations of Seller 52 Article X INDEMNIFICATION 53 10.1 Survival of Representations and Warranties 53 10.2 Indemnification 53 10.3 Indemnification Procedures 55 10.4 Limitations on Indemnification 56 10.5 Tax Treatment of Indemnity Payments 57 Article XI TAXES 57 11.1 Transfer Taxes 57 11.2 Prorations 57 11.3 Cooperation on Tax Matters 58 Article XII MISCELLANEOUS 58 12.1 Expenses 58 12.2 Submission to Jurisdiction; Consent to Service of Process; Waiver of Jury Trial. 58 12.3 Entire Agreement; Amendments and Waivers 59 12.4 Governing Law 59 12.5 Notices 59 12.6 Severability 60 12.7 Binding Effect; Assignment 60 12.8 Knowledge 60 12.9 Disclosure Memorandum 61 12.10 Parent Agreements and Obligations 61 12.11 Non-Recourse 61 12.12 Counterparts 61 iii  Disclosure Memorandum Section 1.1(a) [reserved] 1.1(b) Excluded Contracts 1.1(c) Excluded Real Property Leases 1.1(d) Other Purchased Contracts 2.1(c) Tangible Personal Property 2.2 Excluded Assets 2.5(a) Conditional Assets -- Leases 2.5(c) Conditional Assets -- Contracts 5.3(a) Conflicts 5.3(b) Consents 5.7(iii) Absence of Certain Developments - Salary Increases 5.7(vii) Absence of Certain Developments - Capital Expenditures 5.9(a) Real Property 5.10 Personal Property 5.11(a) Intellectual Property 5.11(m) Software 5.12 Material Contracts 5.13(a) Employee Benefit Plans 5.15 Litigation 5.16(b) Permits 5.17 Environmental 5.18 Insurance 5.20 Loan Officers 5.21(a), (b) Related Party Transactions 7.2(b)(xii) Conduct of Business Pending Closing 8.1(h)(1) Severance Arrangements 8.1(h)(2) Assumed Employment and Change of Control Agreements 8.5 Retention Bonus Arrangements 9.1(l) Employment Agreements 9.1(m) Transferred Employee Acceptance Threshold 12.8 Knowledge of Seller and Knowledge of Parent Exhibits 3.4 Final Purchase Price Calculation 5.19(b)(ii) Pipeline Loan Representations and Warranties A Duration Multiple and Market Movement Examples B Transition Services Agreement C Form of Escrow Agreement D Form of Severance Agreement E Form of Retention Bonus Agreement F Form of Bill of Sale G Form of Assignment and Assumption Agreement H Form of Opinion of Seller Counsel iv  ASSET PURCHASE AGREEMENT ASSET PURCHASE AGREEMENT, dated as of February 6, 2007 (the “ Agreement ”), among IndyMac Bank, F.S.B., a federal savings bank chartered under the laws of the United States, or its designated Affiliate (“ Purchaser ”), The New York Mortgage Company, LLC, a New York limited liability company (“ Seller ”), and New York Mortgage Trust, Inc., a Maryland corporation (“ Parent ”). BACKGROUND Seller presently conducts the Business, and Parent and Seller desire to sell, transfer and assign to Purchaser or its designated Affiliate or Affiliates, and Purchaser desires to (or to cause its designated Affiliate or Affiliates to) acquire and assume from Seller, all of the Purchased Assets and Assumed Liabilities, all as more specifically provided herein. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties, intending to be legally bound, hereby agree as follows: ARTICLE I DEFINITIONS 1.1 Certain Definitions . For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.1 : “ Affiliate ” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, and the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of a majority of such Person’s outstanding voting securities, by contract or otherwise, and the terms “controlled by” and “under common control with” have correlative meanings. “ Agency ” means HUD or the applicable State Agency. “ Aggregate Pipeline Loan Adjustment ” means the aggregate amount of all Pipeline Loan Adjustments. “ Applicable Requirements ” means and includes, as of the time of reference, with respect to Seller’s and its Subsidiaries’origination of Pipeline Loans, all contractual obligations of Seller and its Subsidiaries (including any contained in a Mortgage Loan Document). “ Business ” means the business of Parent and its Affiliates (including Seller and the Subsidiaries of Parent and Seller) of marketing, soliciting, originating and selling residential mortgage loans on a retail or consumer basis throughout the United States. “ Business Day ” means any day of the year on which national banks in New York are open to the public for conducting business and are not required or authorized to close.  “ COBRA ” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended. “ Code ” means the Internal Revenue Code of 1986, as amended. “ Consents ” shall mean any consents, registrations, approvals, declarations, permits, expiration of any applicable waiting periods or authorizations. “ Contingent Workers ” means independent contractors, consultants, temporary employees, leased employees or other servants or agents classified by Parent or Seller as other than employees or compensated other than through wages paid by Parent or Seller and reported on a form W-4, that are employed or used with respect to the operation of the Business. “ Contract ” means any contract, agreement, indenture, note, bond, loan, instrument, lease, commitment or other arrangement or understanding, whether written or oral. “ Documents ” means all files, documents, instruments, papers, books, reports, records, tapes, microfilms, photographs, letters, budgets, forecasts, ledgers, journals, title policies, customer lists, regulatory filings, operating data and plans, technical documentation (design specifications, functional requirements, operating instructions, logic manuals, flow charts, etc), user documentation (installation guides, user manuals, training materials, release notes, working papers, etc.), marketing documentation (sales brochures, flyers, pamphlets, web pages, etc.), and other similar materials related to the Business and the Purchased Assets, in each case whether or not in electronic form. “ Employee ” means all individuals (including common law employees, independent contractors and individual consultants), as of the date hereof, who are employed by Parent or Seller in connection with the Business, together with individuals who are hired in respect of the Business after the date hereof. “ Environmental Law ” means any foreign, federal, state or local statute, regulation, ordinance, rule of common law or other legal requirement as now or hereafter in effect in any way relating to the protection of human health and safety, the environment or natural resources, including the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq. ), the Hazardous Materials Transportation Act (49 U.S.C. App. § 1801 et seq. ), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq. ), the Clean Water Act (33 U.S.C. § 1251 et seq. ), the Clean Air Act (42 U.S.C. § 7401 et seq. ), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq. ), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq. ), and the Occupational Safety and Health Act (29 U.S.C. § 651 et seq. ), as each has been or may be amended and the regulations promulgated pursuant thereto. “ ERISA ” means the Employment Retirement Income Security Act of 1974, as amended. “ Excess Severance Payments ” shall mean the amount by which severance or similar payments made to Transferred Employees by Purchaser pursuant to Section 8.1(h) (together with the cost to Purchaser of any services provided by third-party outplacement service providers with respect to any dismissed Transferred Employees) on or prior to the first anniversary of the Closing Date exceed $500,000; provided, that, such Excess Severance Payments shall not exceed the Excess Severance Escrow Amount; provided further, that Excess Severance Payments shall not include any severance or similar payments made by Purchaser resulting from Purchaser’s sale or discontinuation of the Business. 2  “ Excluded Contracts ” means the Contracts listed on Section 1.1(b) of the Disclosure Memorandum. “ Excluded Real Property Leases ” means the Real Property Leases listed on Section 1.1(c) of the Disclosure Memorandum. “ Foreclosure ” means the process culminating in the acquisition of title to a Mortgaged Property in a foreclosure sale or by a deed in lieu of foreclosure or pursuant to any other comparable procedure allowed under applicable Law. “ Furniture and Equipment ” means all furniture, fixtures, furnishings, equipment, vehicles, leasehold improvements and other tangible personal property owned, leased or used by Seller or any Subsidiary in the conduct of the Business, including artwork, desks, chairs, tables, Hardware, copiers, telephone lines and numbers, telecopy machines and other telecommunication equipment, cubicles and miscellaneous office furnishings and supplies. “ GAAP ” means generally accepted accounting principles in the United States. “ Governmental Body ” means any government or governmental or regulatory body thereof, or political subdivision thereof, whether foreign, federal, state, or local, or any agency, instrumentality or authority thereof, or any court or arbitrator (public or private). “ Hardware ” means any and all computer and computer-related hardware, including computers, file servers, facsimile servers, scanners, color printers, laser printers and networks. “ Hazardous Material ” means any substance, material or waste that is regulated, classified, or otherwise characterized under or pursuant to any Environmental Law as “hazardous,” “toxic,” “pollutant,” “contaminant,” “radioactive,” or words of similar meaning or effect, including, without limitation, petroleum and its by-products, asbestos, polychlorinated biphenyls, radon, mold or other fungi, and urea formaldehyde insulation. “ HUD ” means the United States Department of Housing and Urban Development. “ Independent Accountant ” means to an independent nationally recognized auditing firm selected by the Seller and Purchaser. “ Insurer ” means a Person who insures or guarantees all or any portion of the risk of loss on any Mortgage Loan or Pipeline Loan, including any provider of PMI, standard hazard insurance, flood insurance, earthquake insurance or title insurance, with respect to any Mortgage Loan, Pipeline Loan or related Mortgaged Property. “ Intellectual Property ” means, subject to the provisions of Section 7.11 , all right, title and interest in or relating to intellectual property and industrial property, whether protected, created or arising under the Laws of the United States or any other jurisdiction, including: (i) all patents and applications therefor, including all continuations, divisionals, and continuations-in-part thereof and patents issuing thereon, along with all reissues, reexaminations and extensions thereof (collectively, “ Patents ”), (ii) subject to the terms and conditions of Section 7.11 , all trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, corporate names, trade styles, logos and other source or business identifiers and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, along with all applications, registrations, renewals and extensions thereof (collectively, “ Marks ”), (iii) subject to the terms and conditions of Section 7.11 , all Internet domain names, (iv) all copyrights and all mask work, database and design rights, whether or not registered or published, all registrations and recordations thereof and all applications in connection therewith, along with all reversions, extensions and renewals thereof (collectively, “ Copyrights ”), (iv) trade secrets (“ Trade Secrets ”), (v) all other intellectual property and industrial property rights arising from or relating to Technology, and (vi) all Contracts granting any right relating to or under the foregoing. 3  “ Intellectual Property Licenses ” means (i) any grant to a third Person of any right relating to or under the Purchased Intellectual Property and (ii) any grant to (a) Seller or any Subsidiary of any right relating to or under any third Person’s Intellectual Property or (b) Parent or any of its Affiliates (other than Seller or any Subsidiary) of any right relating to or under any third Person’s Intellectual Property that is related to or used in connection with the Business. “ IRS ” means the Internal Revenue Service. “ Law ” means any federal, state, local, municipal, foreign, international, multinational, or other constitution, law, rule, standard, requirement, administrative ruling, order, ordinance, principle of common law, legal doctrine, code, regulation, statute, treaty or process, including, without limitation, those relating to consumer credit and mortgage lending or brokering (including but not limited to the Real Estate Settlement Procedures Act, the federal Truth in Lending Act, the Equal Credit Opportunity Act, the Fair Housing Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Home Mortgage Disclosure Act, the Federal Trade Commission Act, the Gramm-Leach-Bliley Act and all applicable state laws related to the foregoing) and laws covering predatory lending, fair housing and unfair and deceptive practices, the Code, state adaptions of the Uniform Commercial Code and the Uniform Consumer Credit Code, any Environmental Law, ERISA, the Securities Exchange Act of 1934, as amended, and the Securities Act of 1933, as amended. “ Legal Proceeding ” means any judicial, administrative or arbitral actions, suits, proceedings (public or private) or claims or any proceedings by or before a Governmental Body, including any civil, criminal, investigative or informal actions, audits, demands, claims, hearings, litigations, disputes, inquiries, investigations or other proceedings of any kind or nature. “ Liability ” means any debt, loss, damage, adverse claim, liability or obligation (whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due, and whether in contract, tort, strict liability or otherwise), and including all costs and expenses relating thereto. “ Lien ” means any lien, pledge, mortgage, deed of trust, security interest, claim, lease, charge, option, right of first refusal, easement, servitude, proxy, voting trust or agreement, transfer restriction under any shareholder or similar agreement, encumbrance or any other restriction or limitation whatsoever. “ LoanQuest Software ” means that certain software provided by MortgageFlex Systems, Inc. pursuant to that certain Corporate Software License and Maintenance Agreement identified at no. 8 on Section 5.11(m) of the Disclosure Memorandum. “ Material Adverse Effect ” means (i) a material adverse effect on the business, condition (financial or otherwise), assets or results of operations of the Business, taken as a whole, or (ii) a material impairment of, or delay in, Parent’s and Seller’s ability to effect the Closing or to perform their respective obligations under this Agreement; provided, 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, except to the extent any of the same materially disproportionately affects Parent, Seller or any of their respective Subsidiaries as compared to other companies in the industry in which Parent, Seller and their respective Subsidiaries operate; (b) changes that are caused by factors generally affecting the industry in which Parent, Seller and their Subsidiaries operate, except to the extent any of the same materially disproportionately affects Parent, Seller or any of their Subsidiaries; (c) any loss of, or adverse change in, the relationship of Parent or Seller with their customers, employees or suppliers caused by the announcement of the transactions contemplated by this Agreement; (d) changes in, or in the application of, GAAP; (e) changes in applicable Laws except to the extent any of the same materially disproportionately affects Parent, Seller or any of their respective Subsidiaries as compared to other companies in the industry in which Seller and its Subsidiaries operate; and (f) so long as the condition set forth in Section 9.1(m) is satisfied, changes related to any Employee employed by Seller in a sales function (including loan officers and production managers) who are intended to become Transferred Employees. 4  “ Mortgage ” means a mortgage, deed of trust or other similar security instrument that creates a Lien on real property. “ Mortgage Loan ” means any loan that is, or upon closing or funding, will be, evidenced by a Mortgage or Mortgage Note and secured by a Mortgaged Property. “ Mortgage Loan Documents ” means the documents relating to Mortgage Loans or Pipeline Loans required by Applicable Requirements to originate the Mortgage Loans or Pipeline Loans, whether on hard copy, microfiche or its equivalent or in electronic format and, to the extent required by Applicable Requirements, credit and closing packages and disclosures. “ Mortgage Loan Tape ” means, with respect to the Pipeline Loans, an electronic data file to be dated as of the day immediately prior to the Closing Date and furnished by Seller to Purchaser on such day in connection with the transactions contemplated by this Agreement. “ Mortgage Note ” means, with respect to a Mortgage Loan, a promissory note or notes, or other evidence of indebtedness, with respect to such Mortgage Loan secured by a Mortgage or Mortgages, together with any assignment, reinstatement, extension, endorsement or modification thereof. “ Mortgaged Property ” means a fee simple property (or such other estate in real property as is commonly accepted as collateral for mortgage loans that are subject to secondary mortgage sales or securitizations) that secures a Mortgage Note and that is subject to a Mortgage. “ MortgageWare Software ” means that certain software provided by Harland Financial Solutions pursuant to arrangement identified at no. 4 on Section 5.11(m) of the Disclosure Memorandum. “ Mortgagor ” means the obligor(s) on a Mortgage Note or owners of a Mortgaged Property. “ Order ” means any order, injunction, judgment, decree, ruling, writ, assessment or arbitration award of a Governmental Body. “ Ordinary Course of Business ” means the ordinary and usual course of normal day-to-day operations of the Business through the date hereof consistent with past practice (including consistent with Seller’s credit and underwriting policies as applicable). 5  “ Originator ” means, with respect to any Mortgage Loan or Pipeline Loan, each entity or individual that (i) took the relevant loan application or (ii) processed the relevant loan application. “ Permits ” means any approvals, authorizations, Consents, licenses, permits or certificates of a Governmental Body. “ Permitted Exceptions ” means (i) all defects, exceptions, restrictions, easements, rights of way and encumbrances disclosed in policies of title insurance which have been made available to Purchaser; (ii) statutory liens for current Taxes, assessments or other governmental charges not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings or the making of appropriate demands, notices or filings; provided that an appropriate reserve is established therefor against the carrying amount of the related assets; (iii) mechanics’, carriers’, workers’, repairers’ and similar Liens arising or incurred in the Ordinary Course of Business that are not material to the business, operations and financial condition of the Business that are not resulting from a breach, default or violation by Seller or any of the Subsidiaries of any Contract or Law; (iv) zoning, entitlement and other land use and environmental regulations by any Governmental Body provided that such regulations have not been violated; and (v) such other imperfections in title, charges, easements, restrictions and encumbrances which do not materially detract from the value of or materially interfere with the present use of any Seller Property subject thereto or affected thereby. “ Person ” means any individual, corporation, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Body or other entity. “ Pipeline Loan Adjustment ” means, for each Pipeline Loan that is subject to a rate-lock commitment on the Closing Date, the product obtained by multiplying (i) the Duration Multiple by (ii) the Market Movement of the Pipeline Loan from the date the Pipeline Loan is rate-locked to the Closing Date by (iii) the principal amount of such Pipeline Loan; provided, that for Pipeline Loans that are subject to a rate-lock commitment on the Closing Date and are to be sold subject to an acknowledged lock-in price by the investor to which they are designated to be sold, there will be no Pipeline Loan Adjustment as the investor price will be the market price. For purposes of this Agreement the “ Duration Multiple ” means, for a Pipeline Loan, the duration multiple set forth on Exhibit A which most closely approximates the interest rate characteristic and amortization period that a Pipeline Loan represents. For purposes of this Agreement, the “ Market Movement ” means, for a Pipeline Loan the change in interest rates from the original rate-lock date to the Closing Date calculated in accordance with the examples set forth in Exhibit A . “ PMI ” means the default insurance provided by private mortgage insurance companies. “ Pre-Closing Tax Period ” means any taxable year or period that ends on or before the Closing Date and, with respect to any taxable year or period beginning before and ending after the Closing Date, the portion of such taxable year or period ending on and including the Closing Date. “ Purchased Contracts ” means: (i) all leases for Furniture and Equipment located at the Seller Properties; (ii) Personal Property Leases; (iii) Real Property Leases; (iv) Contracts relating to Software identified in Section 5.11(m) of the Disclosure Memorandum; (v) any Contracts relating directly to the operation and maintenance of the Seller Properties that (A) require payments that are not material, (B) do not contain any restrictions prohibiting or limiting the ability of Seller to (1) engage in any line of business, (2) compete with, obtain products or services from, or provide services or products to, any Person, (3) carry on or expand the nature or geographical scope of the Business anywhere in the world or (4) enter into any Contract with any other Person, and (C) that may be terminated without penalty or fee upon not more than 90 days notice; and (vi) all other Contracts listed in Section 1.1(d) of the Disclosure Memorandum, in each case excluding any Excluded Real Property Leases and Excluded Contracts. 6  “ Purchased Intellectual Property ” means all Intellectual Property owned by Parent and its Affiliates (including Seller and the Subsidiaries) related to or used in connection with the Business. “ Purchased Technology ” means all Technology owned by Parent and its Affiliates (including Seller and the Subsidiaries) related to or used in connection with the Business. “ SEC ” means the United States Securities and Exchange Commission. “ Software ” means any and all (i) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code, (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (iii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons, and (iv) all documentation including user manuals and other training documentation related to any of the foregoing. “ State Agency ” means any state agency or other entity with authority to regulate the activities of Seller or any of its Subsidiaries relating to the origination or servicing of Mortgage Loans or Pipeline Loans or to determine the investment or servicing requirements with regard to mortgage loan origination, purchasing, servicing, master servicing or certificate administration performed by Seller or any of its Subsidiaries. “ Subsidiary ” means any Person of which a majority of the outstanding voting securities or other voting equity interests is owned, directly or indirectly, by Seller. “ Tax ” or “ Taxes ” means (i) any and all federal, state, local or foreign taxes, charges, fees, imposts, levies or other assessments, including, without limitation, all net income, gross receipts, capital, sales, use, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security, unemployment, excise, severance, stamp, occupation, property and estimated taxes, customs duties, fees, assessments and charges of any kind whatsoever imposed or administered by any Taxing Authority, (ii) all interest, penalties, fines, additions to tax or additional amounts imposed by any Taxing Authority in connection with any item described in clause (i), and (iii) any liability in respect of any items described in clauses (i) and/or (ii) payable by reason of contract, assumption, transferee liability, operation of law, Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof or any analogous or similar provision under law) or otherwise. “ Taxing Authority ” means the U.S. Internal Revenue Service and any other Governmental Body responsible for the administration of any Tax. “ Tax Return ” means any return, report or statement required to be filed with respect to any Tax (including any attachments thereto, and any amendment thereof) including, but not limited to, any information return, claim for refund, amended return or declaration of estimated Tax, and including, where permitted or required, com-bined, consolidated or unitary returns for any group of entities that includes Seller, any of the Subsidiaries, or any of their Affiliates. “ Technology ” means, collectively, all Software, information, designs, formulae, algorithms, procedures, methods, techniques, ideas, know-how, research and development, technical data, programs, subroutines, tools, materials, specifications, processes, inventions (whether patentable or unpatentable and whether or not reduced to practice), apparatus, creations, improvements, works of authorship and other similar materials, and all recordings, graphs, drawings, reports, analyses, and other writings, and other tangible embodiments of the foregoing, in any form whether or not specifically listed herein, and all related technology, that are used in, incorporated in, embodied in, displayed by or relate to, or are used in connection with the foregoing. 7  “ Transition Services Agreement ” means an agreement in substantially the form attached hereto as Exhibit B pursuant to which Parent and Seller will provide, or cause their respective subsidiaries to provide, certain transition services to Purchaser and its subsidiaries. “ WARN ” means the Worker Adjustment and Retraining Notification Act of 1988, as amended. 1.2 Terms Defined Elsewhere in this Agreement . For purposes of this Agreement, the following terms have meanings set forth in the sections indicated: Term Section Acquisition Transaction 7.6(a) Agreement Recitals Antitrust Laws 7.4(b) Asset Acquisition Statement 2.8 Assumed Liabilities 2.3 Balance Sheet 5.4(a) Balance Sheet Date 5.4(a) Book Value 3.1 Book Value Escrow Amount 3.5(b) Business Marks 7.11(a) Cap 10.4(c) Closing 4.1 Closing Date 4.1 Closing Payment 3.3 Confidential Information 7.7(c) Copyrights 1.1 (in Intellectual Property definition) Deductible 10.4(a) Disclosure Memorandum 12.9(a) Dispute Notice Exhibit 3.4 Duration Multiple 1.1 (in Pipeline Loan Adjustment definition) Employee Benefit Plans 5.13(a) Escrow Agent 3.5(a) Escrow Agreement 3.5(a) Escrow Amount 3.5(b) Estimated Book Value 3.2 Estimated Closing Balance Sheet 3.2 Estimated Pipeline Premium 3.2 Estimated Purchase Price 3.2 Excess Severance Escrow Amount 3.5(b) Excluded Assets 2.2 Excluded Employee 8.1(b) Excluded Liabilities 2.4 FDIC 6.3(b) 8  Term Section Final Balance Sheet Exhibit 3.4 Final Book Value Exhibit 3.4 Final Pipeline Premium Exhibit 3.4 Final Pipeline Premium Calculation Statement Exhibit 3.4 Final Purchase Price Exhibit 3.4 Final Purchase Price Adjustment Exhibit 3.4 Financial Statements 5.4(a) FIRPTA Affidavit 9.1(g) Hedging Instrument 2.2(k) Indemnification Escrow Amount 3.5(b) knowledge 12.8 Knowledge of Parent 12.8 Knowledge of Seller 12.8 Losses 10.2(a)(i) Market Movement 1.1 (in Pipeline Loan Adjustment definition) Marks 1.1 (in Intellectual Property definition) Material Contracts 5.12(a) Nonassignable Assets 2.6(c) OTS 6.1 Parent Recitals Parent Marks 7.11 Parent URL 7.11 Patents 1.1 (in Intellectual Property definition) Personal Property Leases 5.10(b) Pipeline Loans 2.1(a) Pipeline Premium 3.1 Pipeline Premium Escrow Amount 3.5 Premium 3.1 Purchased Assets 2.1 Purchase Price 3.1 Purchaser Recitals Purchaser 401(k) Plan 8.1(g) Purchaser Benefit Plans 8.1(d) Purchaser Documents 6.2 Purchaser Indemnified Parties 10.2(a) Real Property Lease 5.9(a) Receivables 2.2(c) Representatives 7.6 Resolution Period Exhibit 3.4 Restricted Business 7.7(a) Revised Statements 2.8 Seller Recitals Seller Documents 5.2 Seller Indemnified Parties 10.2(b) Seller Property 5.9(a) Severance Agreements 8.1(h) Survival Period 10.1 Third Party Claim 10.3(b) 9  1.3 Other Definitional and Interpretive Matters (a) Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply: Calculation of Time Period . When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day. Dollars . Any reference in this Agreement to $ shall mean U.S. dollars. Exhibits/Schedules . The Exhibits and Disclosure Memorandum to this Agreement are hereby incorporated and made a part hereof as if set forth in full herein and are an integral part of this Agreement. Any capitalized terms used in the Disclosure Memorandum or any Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement. Gender and Number . Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa. Headings . The provision of a Table of Contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement. All references in this Agreement to any “Section” are to the corresponding Section of this Agreement unless otherwise specified. Herein . The words such as “ herein ,” “ hereinafter ,” “ hereof ,” and “ hereunder ” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. Including . The word “ including ” or any variation thereof means “ including, without limitation ” and shall not be construed to limit any general statement that it follows to the specific items immediately following it. (b) The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. Term Section Trade Secrets 1.1 (in Intellectual Property definition) Transfer Taxes 11.1 Transferred Employees 8.1(a) 10  ARTICLE II PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES 2.1 Purchase and Sale of Assets . On the terms and subject to the conditions set forth in this Agreement, at the Closing, Purchaser shall (or shall cause its designated Affiliate or Affiliates to) purchase, acquire and accept from Seller and the Subsidiaries, and Seller shall (and shall cause the Subsidiaries to) sell, transfer, assign, convey and deliver to Purchaser (or its designated Affiliate or Affiliates) all of Seller’s and the Subsidiaries’ right, title and interest in, to and under the Purchased Assets, free and clear of all Liens except, in the case of tangible property, for Permitted Exceptions. “ Purchased Assets ” shall mean all of the business, assets, properties, contractual rights, goodwill, going concern value, rights and claims of Seller and the Subsidiaries related to the Business, wherever situated and of whatever kind and nature, real or personal, tangible or intangible, whether or not reflected on the books and records of Seller or the Subsidiaries (other than the Excluded Assets), including, without duplication, each of the following assets: (a) Mortgage Loan applications (i) that have a “received” or greater status under Seller’s MortgageWare Software (or equivalent status under Seller’s LoanQuest Software) as of the Closing Date, (ii) which have not been denied, withdrawn or funded as of the Closing Date, and (iii) for which “three-day” disclosure packages have been sent to the potential borrower (the “ Pipeline Loans ”), together with all documentation and files related thereto; (b) all escrowed deposits related to Pipeline Loans; (c) all tangible personal property used in the Business, including Furniture and Equipment, in each case as listed on Section 2.1(c) of the Disclosure Memorandum and other than such tangible personal property which is an Excluded Asset; (d) all security deposits (including security for rent, electricity, telephone or otherwise) and prepaid charges and expenses, including any prepaid rent, prepaid insurance premiums, prepaid utility expenses and interest on subleases, of Seller and the Subsidiaries; (e) all rights of Seller and the Subsidiaries under each Real Property Lease, together with all improvements, fixtures and other appurtenances thereto and rights in respect thereof; (f) the Purchased Intellectual Property, including as set forth in Section 5.11(a) of the Disclosure Memorandum, and the Purchased Technology, including as set forth in Section 5.11(m) of the Disclosure Memorandum; (g) all rights of Seller and the Subsidiaries under the Purchased Contracts including all claims or causes of action with respect to the Purchased Contracts; (h) subject to Section 2.11 , all Documents that are used in or related to the Business, including Documents relating to products, services, marketing, advertising, promotional materials, Pipeline Loans, Purchased Intellectual Property, Intellectual Property Licenses, personnel files for Transferred Employees and all files, customer files and past borrower data, and documents (including credit information), supplier lists, records, literature and correspondence, whether or not physically located on any of Seller’s or Parent’s premises, but excluding personnel files for Employees of Seller or the Subsidiaries who are not Transferred Employees; 11  (i) all Permits, including environmental permits, used by Seller or any Subsidiary to conduct the Business and all rights and incidents of interest therein; (j) all supplies owned by Seller or any Subsidiary and used in connection with the Business; (k) all rights of Seller and the Subsidiaries under non-disclosure or confidentiality, non-compete, or non-solicitation agreements with employees and agents of Seller or any Subsidiary or with third parties to the extent relating to the Business or the Purchased Assets (or any portion thereof); (l) all rights of Seller and the Subsidiaries under or pursuant to all warranties, representations and guarantees made by suppliers, manufacturers and contractors for the benefit of Seller or any Subsidiary with respect to any Purchased Assets or Assumed Liabilities; (m) all third party property and casualty insurance proceeds, and all rights to third party property and casualty insurance proceeds, in each case to the extent received or receivable in respect of the Business; and (n) all goodwill and other intangible assets associated with the Business, including customer and supplier lists, prospective client lists, and the goodwill associated with the Purchased Intellectual Property. 2.2 Excluded Assets . Nothing herein contained shall be deemed to sell, transfer, assign or convey the Excluded Assets to Purchaser, and Seller or a Subsidiary shall retain all right, title and interest to, in and under the Excluded Assets. “ Excluded Assets ” shall mean each of the following assets: (a) the Excluded Contracts; (b) all assets set forth in Section 2.2 of the Disclosure Memorandum; (c) all accounts and accrued interest receivable of Seller and the Subsidiaries (the “ Receivables ”); (d) any and all Contracts pursuant to which Seller previously sold or currently sells Mortgage Loans to investors, including any amounts due from such investors pursuant to such Contracts; (e) Mortgage Loans held for sale, held in securitization trusts or held for investment; (f) Mortgage Loans repurchased by Seller from any investor; (g) cash, cash equivalents and restricted cash; (h) investment securities available for sale; (i) servicing rights and other servicing assets; (j) tax assets, claims for Tax refunds, Tax Returns and Tax workpapers; (k) all interest rate swaps, caps, floors, collars and option agreements or other interest rate risk management arrangements (collectively, “ Hedging Instruments ”); 12  (l) all rights in connection with, and assets of, any Employee Benefit Plan, except to the extent otherwise provided in Article VIII hereof; (m) Excluded Real Property Leases; and (n) all minute books, organizational documents, stock registers and such other books and records of Seller or any Subsidiary as pertain to ownership, organization or existence of Seller and each Subsidiary and duplicate copies of such records as are necessary to enable Seller and the Subsidiaries to prepare or file Tax Returns. 2.3 Assumption of Liabilities . On the terms and subject to the conditions set forth in this Agreement, at the Closing, Purchaser shall (or shall cause its designated Affiliate or Affiliates to) assume, effective as of the Closing, the following liabilities of Seller and the Subsidiaries (collectively, the “ Assumed Liabilities ”): (a) all obligations of Seller and the Subsidiaries under the Pipeline Loans; (b) except as specifically provided for in Section 2.3(c) , all Liabilities of Seller and the Subsidiaries under the Purchased Contracts that arise out of or relate to the period after the Closing; (c) subject to the calculation of the Purchase Price set forth in Section 3.1 and the Excess Severance Escrow Amount, all severance and similar obligations arising after the Closing pursuant to those certain: (i) Severance Agreements with the Transferred Employees listed in Section 8.1(h)(1) of the Disclosure Memorandum, and (ii) agreements listed in Section 8.1(h)(2) of the Disclosure Memorandum. (d) all Liabilities that relate directly to the Purchased Assets and that arise out of or relate to the conduct of the Business by Purchaser after the Closing. 2.4 Excluded Liabilities . Purchaser will not assume or be liable for any Excluded Liabilities. Seller shall, and shall cause the Subsidiaries to, timely perform, satisfy and discharge in accordance with their respective terms all Excluded Liabilities. “ Excluded Liabilities ”shall mean all Liabilities of Seller and the Subsidiaries arising out of or relating to the Business or the Purchased Assets prior to the Closing and all other Liabilities of Parent, Seller and the Subsidiaries other than the Assumed Liabilities, including the following Liabilities: (a) all Liabilities in respect of any and all products (including Mortgage Loans) sold and/or services performed by Seller or the Subsidiaries prior to the Closing; (b) except to the extent specifically provided in Article VIII , all Liabilities arising out of, relating to or with respect to (i) the employment or performance of services, or termination of employment or services by Seller or any of its Affiliates, of any individual employed by or engaged to provide services for or on behalf of Seller or any its Affiliates prior to the Closing, (ii) workers’ compensation claims against Seller or any of the Subsidiaries that relate to the period prior to the Closing, irrespective of whether such claims are made prior to or after the Closing or (iii) any Employee Benefit Plan; (c) all Liabilities arising out of, under or in connection with the Excluded Real Property Leases and any Contracts that are not Purchased Contracts and, with respect to Purchased Contracts, Liabilities in respect of a breach by or default of Seller or any Subsidiary accruing under such Purchased Contracts with respect to any period prior to Closing; 13  (d) all Liabilities arising out of, under or in connection with any indebtedness of Seller or any of the Subsidiaries for borrowed money or any other indebtedness; (e) all Liabilities for (i) Taxes of Parent, Seller and the Subsidiaries, (ii) Taxes that relate to the Purchased Assets or the Assumed Liabilities for taxable periods (or portions thereof) ending on or before the Closing Date, including Taxes allocable to Seller and the Subsidiaries pursuant to Section 11.2 , and (iii) payments under any Tax allocation, sharing or similar agreement (whether oral or written); (f) all Liabilities in respect of any pending or threatened Legal Proceeding, or any claim arising out of, relating to or otherwise in respect of (i) the operation of the Business to the extent such Legal Proceeding or claim relates to such operation prior to the Closing, including any claim for preferential payment by a bankruptcy trustee in respect of payment received by Seller or the Subsidiaries prior to the Closing or (ii) any Excluded Asset; (g) all Liabilities relating to any dispute with any client or customer of the Business existing as of the Closing or based upon, relating to or arising out of events, actions, or failures to act prior to the Closing; (h) any amounts due to investors in the Mortgage Loans, including servicing premium rebates, purchase price premium rebates, repurchase amounts and indemnification payments; (i) any amounts due under any subordinated debentures issued by Seller to NYM Trust I and NYM Trust II; (j) any derivative Liabilities and Liabilities under any Hedging Instruments; (k) any amounts payable for securities purchased; and (l) any amounts due to any Affiliate of Seller. 2.5 Conditional Purchase and Assumption . Purchaser shall have the right, but not the obligation, to acquire any of the following assets and assume the related Liabilities, at the Closing on the terms set forth below: (a) one or more of the leases relating to real property identified in Section 2.5(a) of the Disclosure Memorandum; provided, that any such lease that Purchaser determines to acquire and assume shall be deemed to be a Real Property Lease for all purposes under this Agreement and that any such lease that Purchaser determines not to acquire or assume shall be deemed to be an Excluded Real Property Lease for all purposes under this Agreement; (b) the shares of capital stock, units, membership interests or any other equity interests of any of Settlement Services of America, LLC, PIPCo Agency, LLC or any other Subsidiary of Seller; provided, that any such equity interests that Purchaser determines to acquire shall be deemed to be a Purchased Asset for all purposes under this Agreement and that any such equity interests that Purchaser determines not to acquire shall be deemed to be Excluded Assets for all purposes under this Agreement; (c) any Contract identified in Section 2.5(c) of the Disclosure Memorandum; provided, that any Contract that Purchaser determines to acquire the rights and benefits of shall be deemed to be a Purchased Contract for all purposes under this Agreement and that any Contract that Purchaser determines not acquire the rights and benefits of shall be deemed to be an Excluded Contract for all purposes under this Agreement. 14  Purchaser shall make a written determination, in its sole discretion and without any impact on the Purchase Price, with respect to each of the items identified in this Section 2.5 no later than five Business Days prior to the Closing. 2.6 Further Conveyances and Assumptions; Consent of Third Parties . (a) From time to time following the Closing and except as prohibited by Law, Seller shall, or shall cause its Affiliates to, make available to Purchaser such data in personnel records of Transferred Employees as is reasonably necessary for Purchaser to transition such employees into Purchaser’s records. (b) From time to time following the Closing, Seller and Purchaser shall, and shall cause their respective Affiliates to, execute, acknowledge and deliver all such further conveyances, notices, assumptions, releases and acquittances and such other instruments, and shall take such further actions, as may be necessary or appropriate to assure fully to Purchaser and its respective successors or assigns, all of the properties, assets, rights, titles, interests, estates, remedies, powers and privileges intended to be conveyed to Purchaser under this Agreement and the Seller Documents and to assure fully to Seller and its Affiliates and their successors and assigns, the assumption of the liabilities and obligations intended to be assumed by Purchaser under this Agreement and the Seller Agreements, and to otherwise make effective the transactions contemplated hereby and thereby. (c) Nothing in this Agreement nor the consummation of the transactions contemplated hereby shall be construed as an attempt or agreement to assign any Purchased Asset, including any Contract, Permit, certificate, approval, authorization or other right, which by its terms or by Law is nonassignable without the consent of a third party or a Governmental Body or is cancelable by a third party in the event of an assignment or purported assignment (“ Nonassignable Assets ”) unless and until such consent shall have been obtained. Seller shall, and shall cause its Affiliates to, use its commercially reasonable efforts to, with the cooperation of Purchaser, obtain at the earliest practical date all Consents and approvals required to consummate the transactions contemplated by this Agreement. To the extent permitted by applicable Law, in the event Consents to the assignment thereof cannot be obtained, such Nonassignable Assets shall be held, as of and from the Closing Date, by Seller or the applicable Affiliate of Seller in trust for Purchaser and the covenants and obligations thereunder shall be performed by Purchaser in Seller’s or such Affiliate’s name and all benefits and obligations existing thereunder shall be for Purchaser’s account. Seller shall take or cause to be taken at Purchaser’s expense such actions in its name or otherwise as Purchaser may reasonably request so as to provide Purchaser with the benefits of the Nonassignable Assets and to effect collection of money or other consideration that becomes due and payable under the Nonassignable Assets, and Seller or the applicable Affiliate of Seller shall promptly pay over to Purchaser all money or other consideration received by it after the Closing Date in respect of all Nonassignable Assets. As of and from the Closing Date, Seller on behalf of itself and its Affiliates authorizes Purchaser, to the extent permitted by applicable Law and the terms of the Nonassignable Assets, at Purchaser’s expense, to perform all the obligations and receive all the benefits of Seller or its Affiliates under the Nonassignable Assets and appoints Purchaser its attorney-in-fact to act in its name on its behalf or in the name of the applicable Affiliate of Seller and on such Affiliate’s behalf with respect thereto. 2.7 Bulk Sales Laws . Purchaser hereby waives compliance by Seller and the Subsidiaries with the requirements and provisions of any “bulk-transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of the Purchased Assets to Purchaser; provided, that Seller agrees (i) to pay and discharge when due or to contest or litigate all claims of creditors which are asserted against Purchaser or the Purchased Assets by reason of such noncompliance, (ii) to indemnify, defend and hold harmless Purchaser from and against any and all such claims in the manner provided in Article X and (iii) to take promptly all necessary action to remove any Lien which is placed on the Purchased Assets by reason of such noncompliance. Any “bulk-transfer” Law that addresses Taxes shall be governed by Article X and not by this Section 2.7 . 15  2.8 Purchase Price Allocation . Not later than 60 days after the Closing Date, Purchaser shall prepare and deliver to Seller drafts of Form 8594 and any required exhibits thereto (the “ Asset Acquisition Statement ”) allocating the Purchase Price among the Purchased Assets in accordance with Code Section 1060 and the Treasury Regulations thereunder (and any similar provision of state, local or foreign Law, as appropriate) for Seller’s review and comment. Not later than 90 days after the Closing Date, Purchaser shall deliver to Seller copies of the Asset Acquisition Statement, reflecting such comments received from Seller that Purchaser considered in good faith, and in its reasonable discretion chooses to incorporate. Purchaser shall prepare and deliver to Seller from time to time revised copies of the Asset Acquisition Statement (the “ Revised Statements ”) so as to report any matters on the Asset Acquisition Statement that need updating (including purchase price adjustments, if any). The Purchase Price paid by Purchaser for the Purchased Assets, and Assumed Liabilities (to the extent included in the amount realized for federal income tax purposes), shall be allocated in accordance with the Asset Acquisition Statement or, if applicable, the last Revised Statements, provided by Purchaser to Seller, and all income Tax Returns and reports filed by Purchaser and Seller shall be prepared consistently with such allocation; provided, that (i) Purchaser’s reported cost for the Purchased Assets may be greater than the amount allocated hereunder to reflect Purchaser’s acquisition costs not included in the total amount so allocated, and (ii) Seller’s reported amount realized may be less than the amount allocated hereunder to reflect Seller’s costs that reduce the amount realized. For purposes of this Section 2.8 , the Purchased Assets include the covenant not to compete as set forth in Section 7.7 . 2.9 Right to Control Payment . Purchaser shall have the right, but not the obligation, to make any payment due from Seller or the Subsidiaries with respect to any Excluded Liabilities which are not paid by Seller or the Subsidiaries within five Business Days following written request for payment from Purchaser; provided, that if Seller or the Subsidiaries advise Purchaser in writing during such five Business Day period that a good faith payment dispute exists or Seller or the Subsidiaries have valid defenses to non-payment with respect to such Excluded Liability, then Purchaser shall not have the right to pay such Excluded Liability. Seller and the Subsidiaries agree to reimburse Purchaser promptly and in any event within five Business Days following written notice of such payment by Purchaser for the amount of any payment made by Purchaser pursuant to this Section 2.9 . 2.10 Proration of Certain Expenses . Subject to Section 11.2 with respect to Taxes, all expenses and other payments in respect of all rents and other payments due under the Real Property Leases and any other leases constituting part of the Purchased Assets shall be prorated between Seller and the Subsidiaries, on the one hand, and Purchaser, on the other hand, as of the Closing Date. Seller shall be responsible for all rents (including any percentage rent, additional rent and any accrued tax and operating expense reimbursements and escalations), charges and other payments of any kind accruing during any period under the Real Property Leases or any such other leases up to and including the Closing Date. Purchaser shall be responsible for all such rents, charges and other payments accruing during any period under the Real Property Leases (other than the Excluded Real Property Leases) or any such other leases that are Purchased Assets after the Closing Date. Purchaser shall pay the full amount of any invoices received by it and shall submit a request for reimbursement to Seller for Seller’s pro rata share of such expenses, along with any supporting documentation that Seller may reasonably request, and Seller shall pay the full amount of any invoices received by it and Purchaser shall reimburse Seller for Purchaser’s share of such expenses. 2.11 Copies and Access to Documents . Seller may retain for its records and not for use, disclosure, sale or other dissemination to any Person or in any manner, except for any purpose reasonably related to Seller’s prior ownership of the Business, one copy of all of the Documents that constitute Purchased Assets. For a period of two years from the Closing Date, Purchaser agrees that it shall preserve and keep the Documents which constitute Purchased Assets and shall make such Documents available to Seller as may be reasonably required by Seller in connection with any legitimate business purpose including, among other things, any insurance claims by, legal proceedings by or against, or governmental investigations of, Seller or any of its Affiliates, or in order to enable Seller to comply with its obligations under this Agreement, subject in all cases to the restrictions, prohibitions and limitations set forth in this Agreement. 16  ARTICLE III CONSIDERATION 3.1 Purchase Price . The purchase price (the “ Purchase Price ”) shall be an amount equal to the difference between (a) the sum of (i) the book value of the Purchased Assets as of the Closing Date less the book value of the Assumed Liabilities as of the Closing Date determined in accordance with GAAP applied on a consistent basis with the same accounting principles and practices used by Seller in the preparation of the Balance Sheet (but only to the extent consistent with GAAP) (the “ Book Value ”); plus (ii) Eight Million Dollars ($8,000,000) (the “ Premium ”); plus (iii) the sum of (A) the product obtained by multiplying (x) the aggregate principal balance of Pipeline Loans that fund within 60 days after the Closing Date by (y) 0.0025 plus (B) the Aggregate Pipeline Loan Adjustment (the “ Pipeline Premium ”) and (b) the sum of (i) $936,371 plus (ii) the Excess Severance Payments. 3.2 Estimated Purchase Price . Seller shall furnish to Purchaser, at least five days prior to the Closing, an estimated balance sheet of the Business as of the opening of business on the Closing Date (the “ Estimated Closing Balance Sheet ”) and a statement detailing the estimated calculation of the Purchase Price (“ Estimated Purchase Price ”). The Estimated Purchase Price shall equal the difference between (a) the sum of (i) the Book Value as reflected in the Estimated Closing Balance Sheet (the “ Estimated Book Value ”), plus (ii) the Premium, plus (iii) the product obtained by multiplying (x) the product obtained by multiplying (A) the aggregate principal balance of Pipeline Loans set forth on the Estimated Closing Balance Sheet by (B) 0.0025, by (y) .7 (the “ Estimated Pipeline Premium ”) and (b) the sum of (i) $936,371 plus (ii) the Excess Severance Escrow Amount. The Final Purchase Price shall be finally determined following the Closing in accordance with Section 3.4 and Exhibit 3.4 attached hereto. 3.3 Closing Payment . Purchaser agrees to pay to Seller (the “ Closing Payment ”) the difference between (x) the Estimated Purchase Price and (y) the difference between (i) the Escrow Amount, and (ii) the Excess Severance Escrow Amount, at the Closing by wire transfer of immediately available funds to an account of Seller designated to Purchaser at least five Business Days prior to the Closing. 3.4 Final Book Value and Final Pipeline Premium Calculation . Upon the earlier to occur of (i) the Parties’ agreement (or deemed agreement pursuant to Section (b) of Exhibit 3.4 attached hereto) with respect to the calculation of the Final Book Value and Final Pipeline Premium and (ii) the delivery of any report of the Independent Accountant as provided in Section (c) of Exhibit 3.4 attached hereto with respect to the Final Book Value and the Final Pipeline Premium, as applicable: (a) if the Estimated Book Value is greater than the Final Book Value or the Estimated Pipeline Premium is greater than the Final Pipeline Premium, and the amount of such difference is greater than the Book Value Escrow Amount or Pipeline Premium Escrow Amount, as applicable, then the Book Value Escrow Amount or Pipeline Premium Escrow Amount, as applicable, shall be reduced to zero and the Escrow Agent shall disburse the Book Value Escrow Amount or Pipeline Premium Escrow Amount, as applicable, to Purchaser by wire transfer of immediately available funds to such account or accounts of Purchaser as Purchaser specifies in writing to the Escrow Agent in the manner specified in the Escrow Agreement for the delivery of notices, and Seller shall pay to Purchaser, within five Business Days after the earlier to occur of the events described in clauses (i) and (ii) of the first sentence of this Section 3.4 , the amount by which the difference between the Estimate Book Value and Final Book Value or Estimated Pipeline Premium and Final Pipeline Premium, as applicable, exceeds the Book Value Escrow Amount or Pipeline Premium Escrow Amount, as applicable, plus simple interest on the amount of such difference from the Closing Date to the date of payment at an interest rate equal to six percent (6.0%) per annum by wire transfer of immediately available funds to such account or accounts of Purchaser as Purchaser specifies in writing to Seller in the manner specified herein for the delivery of notices; 17  (b) if the Estimated Book Value is greater than the Final Book Value or the Estimated Pipeline Premium is greater than the Final Pipeline Premium, and the amount of such difference is less than the Book Value Escrow Amount or Pipeline Premium Escrow Amount, as applicable, then the Book Value Escrow Amount or Pipeline Premium Escrow Amount, as applicable, shall be reduced by the amount of such difference; or (c) if the Final Book Value is greater than the Estimated Book Value or the Final Pipeline Premium is greater than the Estimated Pipeline Premium, then (A) Purchaser shall pay to Seller, within five Business Days after the earlier to occur of the events described in clauses (i) and (ii) of the first sentence of this Section 3.4 , the amount of the difference between the Estimated Book Value and the Final Book Value or between the Estimated Pipeline Premium and the Final Pipeline Premium, as applicable, plus simple interest on the amount of such difference from the Closing Date to the date of payment at an interest rate equal to six percent (6.0%) per annum and (B) the remaining Book Value Escrow Amount, if any, and the remaining Pipeline Premium Escrow Amount, if any, shall be disbursed by wire transfer of immediately available funds to such account or accounts of Seller as Seller specifies in writing to the Escrow Agent in the manner specified in the Escrow Agreement for the delivery of notices. The Parties agree that in the event that the Book Value Escrow Amount or Pipeline Premium Escrow Amount are reduced pursuant to Sections 3.4(a) or 3.4(b) , then the amount by which the Book Value Escrow Amount or Pipeline Premium Escrow Amount is reduced shall be disbursed to Purchaser, and the remainder of the Book Value Escrow Amount or Pipeline Premium Escrow Amount shall be disbursed to Seller, in either case by wire transfer of immediately available funds to such account or accounts of Seller or Purchaser as Seller or Purchaser specifies in writing to the Escrow Agent in the manner specified in the Escrow Agreement for the delivery of notices. Exhibit 3.4 attached hereto sets forth certain defined terms used in this Section 3.4 , as well as certain agreements and procedures relating to the manner in which the Final Book Value and Final Pipeline Premium are to be determined. 18  3.5 Escrow . (a) No later than ten days prior to the Closing Date, Purchaser and Seller shall mutually agree upon a financial institution, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal or state authority, to act as escrow agent (the “ Escrow Agent ”) with respect to the Escrow Amount. On or before the Closing Date, Seller and Purchaser shall enter into an agreement in substantially the form attached hereto as Exhibit C with the Escrow Agent (the “ Escrow Agreement ”) pursuant to which the Escrow Agent shall agree to hold and disburse the Escrow Amount, for the benefit of Seller and Purchaser, in accordance with the terms and conditions of this Agreement and the Escrow Agreement. (b) On the Closing Date, Purchaser shall deposit with the Escrow Agent Two Million Three Hundred Thousand Dollars ($2,300,000) in cash (the “ Escrow Amount ”) for disbursement in accordance with the terms of this Agreement and the Escrow Agreement. The Escrow Amount will consist of (i) Five Hundred Thousand Dollars ($500,000), which will be held in escrow exclusively for payments due to either Purchaser or Seller upon determination of the Final Book Value (the “ Book Value Escrow Amount ”), (ii) Six Hundred Thousand Dollars ($600,000), which will be held in escrow exclusively for payments due to either Purchaser or Seller upon determination of the Final Pipeline Premium (the “ Pipeline Premium Escrow Amount ”), (iii) Six Hundred Thousand Dollars ($600,000), which will be held in escrow exclusively for reimbursement of Excess Severance Payments made by Purchaser on or prior to the first anniversary of the Closing Date (the “Excess Severance Escrow Amount ”), and (iv) Six Hundred Thousand Dollars ($600,000), which will be held in escrow exclusively for indemnification payments pursuant to Article X hereof (the “ Indemnification Escrow Amount ”). Purchaser and Seller agree that the Escrow Amount is part of the consideration paid to Seller and the obligation to release the Escrow Amount to Seller is absolute and unconditional, subject only to the terms and conditions of this Agreement and the Escrow Agreement. The Escrow Agreement shall provide that four events will trigger distribution of the Escrow Amount: (i) the determination of the Final Book Value, which shall only trigger distribution of the Book Value Escrow Amount, (ii) the determination of the Final Pipeline Premium, which shall only trigger distribution of the Pipeline Premium Escrow Amount, (iii) the obligation of the Purchaser to make any Excess Severance Payment, and (iv) a finally determined claim by Purchaser for indemnification payments under Article X of this Agreement, which shall only trigger distribution of the Indemnification Escrow Amount. In addition, distribution of the Escrow Amount may occur (i) on the date that is six months after the Closing Date if the Excess Severance Escrow Amount exceeds Three Hundred Thousand Dollars ($300,000), then such excess amount shall be disbursed to Seller by wire transfer of immediately available funds to such account or accounts of Seller as Seller specifies in writing to the Escrow Agent in the manner specified in the Escrow Agreement for the delivery of notices, and (ii) any portion of the Excess Severance Escrow Amount remaining in escrow on the first Business Day following the first anniversary of the Closing shall be disbursed to Seller by wire transfer of immediately available funds to such account or accounts of Seller as Seller specifies in writing to the Escrow Agent in the manner specified in the Escrow Agreement for the delivery of notices. Any portion of the Indemnification Escrow Amount remaining in escrow on the first Business Day following the first anniversary of the Closing shall be disbursed to Seller by wire transfer of immediately available funds to such account or accounts of Seller as Seller specifies in writing to the Escrow Agent in the manner specified in the Escrow Agreement for the delivery of notices; provided, that if Purchaser has submitted a notice for indemnification on or prior to the first anniversary of the Closing and such indemnification claim is not finally determined until after the first anniversary of the Closing, then the Indemnification Escrow Amount shall remain subject to such indemnification claim and any remaining portion of the Indemnification Escrow Amount shall not be disbursed to Seller until after such indemnification claim shall have been finally determined and any indemnification payments to Purchaser have been made. The Escrow Agreement shall further provide that disbursement of the Book Value Escrow Amount and Pipeline Premium Escrow Amount shall be made in accordance with Section 3.4 and in accordance with the terms and conditions of the Escrow Agreement. Upon disbursement of the Escrow Amount (or such lesser amount of the Escrow Amount pursuant to the terms and conditions of this Agreement and the Escrow Agreement) to Seller or Purchaser in accordance with this Agreement, Purchaser shall have no other obligation to Seller with respect to the Escrow Amount. 19  ARTICLE IV CLOSING AND TERMINATION 4.1 Closing Date . Subject to the satisfaction of the conditions set forth in Sections 9.1 and 9.2 hereof (or the waiver thereof by the party entitled to waive that condition), the closing of the purchase and sale of the Purchased Assets and the assumption of the Assumed Liabilities provided for in Article II hereof (the “ Closing ”) shall take place at the offices of Alston & Bird LLP located at 90 Park Avenue, New York, New York 10016 (or at such other place as the parties may designate in writing) at 10:00 a.m. (New York City time) on a date to be specified by the parties, which date shall be the later of the date that is (i) 60 days following the date hereof, and (ii) the third Business Day after satisfaction or waiver of the conditions set forth in Article IX (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions), unless another time or date, or both, are agreed to in writing by the parties hereto. The date on which the Closing shall be held is referred to in this Agreement as the “ Closing Date .” 4.2 Termination of Agreement . This Agreement may be terminated prior to the Closing as follows: (a) At the election of Seller or Purchaser, on or after May 1, 2007, if the Closing shall not have occurred by the close of business on such date; provided, that the terminating party is not in material breach of any of its representations, warranties, covenants or agreements hereunder; (b) by mutual written consent of Seller and Purchaser; (c) by Purchaser upon written notice from Purchaser to Seller that there has been an event, change, occurrence or circumstance that has had or has a reasonable likelihood of having a Material Adverse Effect; (d) by Seller or Purchaser if there shall be in effect a final nonappealable Order of a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, it being agreed that the parties hereto shall promptly appeal any adverse determination which is not nonappealable (and pursue such appeal with reasonable diligence); (e) by Purchaser, if there shall have been a material breach by Seller of any representation, warranty, covenant or agreement of Seller set forth in this Agreement, which breach would give rise to a failure of a condition set forth in Sections 9.1(a) or 9.1(b) and is incapable of being cured or, if capable of being cured, shall not have been cured within 30 days following receipt by Seller of notice of such breach from Purchaser; or (f) by Seller, if there shall have been a material breach by Purchaser of any representation, warranty, covenant or agreement of Purchaser set forth in this Agreement, which breach would give rise to a failure of a condition set forth in Sections 9.2(a) or 9.2(b) and is incapable of being cured or, if capable of being cured, shall not have been cured within 30 days following receipt by Purchaser of notice of such breach from Seller. 20  4.3 Effect of Termination . In the event that this Agreement is validly terminated as provided herein, then each of the parties shall be relieved of their duties and obligations arising under this Agreement after the date of such termination and such termination shall be without liability to Purchaser or Seller; provided, that (a) if this Agreement is terminated by Purchaser pursuant to Section 4.2(e) , Seller shall, or if this Agreement is terminated by Seller pursuant to Section 4.2(f) , Purchaser shall, in addition to any other Liabilities accruing hereunder, be liable for and pay within five Business Days of such termination (i) the cost of all filing or other fees paid by the terminating party to any Governmental Body in respect of the transactions contemplated by this Agreement and (ii) an amount equal to One Million Five Hundred Thousand Dollars ($1,500,000); (b) the obligations of the parties set forth in Sections 7.7(c), (d) and (e) and Articles XI and XII hereof shall survive any such termination and shall be enforceable hereunder; and (c) nothing in this Section 4.3 shall relieve Purchaser or Seller of any Liability for a breach of this Agreement prior to the effective date of such termination. ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT Seller and Parent, as applicable, hereby represent and warrant to Purchaser that: 5.1 Organization and Good Standing . (a) Each of Parent and Seller is duly organized, validly existing and in good standing under the laws of its respective jurisdiction of incorporation or organization, with full power and authority to conduct its business as it is now being conducted, to own or use the properties or assets that it purports to own or use, and to perform all of its respective obligations under the Purchased Contracts and the Material Contracts. Seller is duly qualified or licensed to do business as a foreign limited liability company and is in good standing as a foreign limited liability company in each jurisdiction in which either the ownership or use of the properties owned or used by it, or the nature of the activities conducted by it, requires such licensing, qualification or good standing, except for such failures to so qualify that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Seller. (b) Parent and Seller have made available or delivered to Purchaser a true and complete copy of each of their certificates of incorporation or organization (or equivalent charter document), bylaws and limited liability company agreement, each as amended to date, and such documents are in full force and effect. 5.2 Authorization of Agreement . Parent and Seller have all requisite power, authority and legal capacity to execute and deliver this Agreement and Parent, Seller and each of the Subsidiaries have all requisite power, authority and legal capacity to execute and deliver each other agreement, document, or instrument or certificate contemplated by this Agreement to be executed by Parent, Seller or the Subsidiaries in connection with the consummation of the transactions contemplated by this Agreement (the “ Seller Documents ”), to perform their respective obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the Seller Documents and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of Parent, Seller and each of the Subsidiaries. The approval of the stockholders of Parent is not required in connection with the execution and delivery of this Agreement by Parent or Seller or the consummation of the transactions contemplated hereby. This Agreement has been, and each of the Seller Documents will be at or prior to the Closing (other than such Seller Documents which are required to be duly and validly executed and delivered by Parent, Seller or any Subsidiary on a date after the Closing Date), duly and validly executed and delivered by Parent, Seller and each of the Subsidiaries which is a party thereto and (assuming the due authorization, execution and delivery by the other parties hereto and thereto) this Agreement constitutes, and each of the Seller Documents when so executed and delivered will constitute, legal, valid and binding obligations of Parent, Seller and each applicable Subsidiary, as the case may be, enforceable against it in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). 21  5.3 Conflicts; Consents of Third Parties . (a) Except as set forth in Section 5.3(a) of the Disclosure Memorandum, none of the execution and delivery by Parent or Seller of this Agreement or by Parent, Seller and the Subsidiaries of the Seller Documents, the consummation of the transactions contemplated hereby or thereby, or compliance by Parent, Seller and the Subsidiaries with any of the provisions hereof or thereof will conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a material benefit under, or give rise to any obligation of Seller or the Subsidiaries to make any payment under, or to the increased, additional, accelerated or guaranteed rights or entitlements of any Person under, or result in the creation of any Liens upon any of the properties or assets of Seller or the Subsidiaries under, any provision of (i) the certificate of incorporation and by-laws or comparable organizational documents of Seller or any Subsidiary; (ii) any Contract or Permit to which Seller or any Subsidiary is a party or by which any of the properties or assets of Seller or any Subsidiary are bound; (iii) any Order of any Governmental Body applicable to Seller or any Subsidiary or by which any of the properties or assets of Seller or any Subsidiary are bound; or (iv) any applicable Law, except, with respect to clauses (ii) - (iv) above, for any such conflict, violation, default, right of termination, cancellation or acceleration that would not have, or be reasonably likely to have, a Material Adverse Effect. (b) No Consent, waiver, approval, Permit or authorization of, or filing with, or notification to, any Person or Governmental Body is required on the part of Parent, Seller or any Subsidiary in connection with (i) the execution and delivery of this Agreement or the Seller Documents, the compliance by Parent, Seller or any Subsidiary with any of the provisions hereof or thereof, the consummation of the transactions contemplated hereby or thereby or the taking by Parent, Seller or any Subsidiary of any other action contemplated hereby or thereby or (ii) the continuing validity and effectiveness immediately following the Closing of any Contract or Permit of Seller or any Subsidiary, except (A) as set forth in Section 5.3(b) of the Disclosure Memorandum and (B) where the failure to obtain such Consents, waivers, approvals, Permits or authorizations or to make such filings or notifications, would not result in, or be reasonably likely to result in, a Material Adverse Effect. 5.4 Financial Statements . (a) Seller has delivered to Purchaser copies of (i) the audited consolidated balance sheets of Seller and the Subsidiaries as at December 31, 2005 and 2004 and the related audited consolidated statements of income and of cash flows of Seller and the Subsidiaries for the years then ended and (ii) the unaudited consolidated balance sheets of Seller and the Subsidiaries as at each quarter end from March 31, 2006 through December 31, 2006 and the related consolidated statements of income and cash flows of Seller and the Subsidiaries for each such quarter (such audited and unaudited statements, including the related notes and schedules thereto, are referred to herein as the “ Financial Statements ”). Each of the Financial Statements is complete and correct in all material respects, has been prepared in accordance with GAAP applied on a consistent basis throughout the periods presented (except as may be indicated in the notes thereto), subject, in the case of unaudited Financial Statements, to normal recurring year-end adjustments (the effect of which will not, individually or in the aggregate, be material in amount or effect) and the absence of notes (that, if presented, would not differ materially from those included in the audited Financial Statements), and presents fairly in all material respects the consolidated financial position, results of operations and cash flows of Seller and the Subsidiaries as at the dates and for the periods indicated. 22  For the purposes hereof, the unaudited consolidated balance sheet of Seller and the Subsidiaries as at December 31, 2006 is referred to as the “ Balance Sheet ” and December 31, 2006 is referred to as the “ Balance Sheet Date .” (b) Seller and the Subsidiaries make and keep books, records and accounts which, in reasonable detail, accurately and fairly reflect the acquisitions and dispositions of their respective assets. Seller and the Subsidiaries maintain systems of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (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 actual levels at reasonable intervals and appropriate action is taken with respect to any differences. The Financial Statements were compiled and will be compiled from and are and will be in accordance with the books and records of Seller. The books and records (including the books of account, minute books, stock record books and other records) of Seller, all of which have been made available to Purchaser, are true and complete, have been maintained in accordance with sound business practices and accurately present and reflect in all material respects all of the transactions and actions therein described. At the Closing, all of those books and records shall be in the possession of Seller. (c) Seller has provided to Purchaser copies of all issued auditors’ reports, letters to management regarding accounting practices and systems of internal control, and responses to such letters from management, in each case to the extent relating to the Business and the operation thereof, whether the same are issued to Seller, Parent or any of their respective Affiliates. 5.5 No Undisclosed Liabilities . Neither Seller nor any Subsidiary has any indebtedness, obligations or Liabilities of any kind other than those (i) that do not arise out of or relate to the Business, (ii) fully reflected in, reserved against or otherwise described in the Balance Sheet or the notes thereto or (iii) that are immaterial to Seller or any Subsidiary and incurred in the Ordinary Course of Business since the Balance Sheet Date. Parent has no material Liabilities secured by the membership interests or assets of Seller or which may give rise to any action, Order or Legal Proceeding to which Seller or the assets of Seller may become subject. 5.6 Title to Purchased Assets; Sufficiency . Seller and the Subsidiaries own and have good title to each of the Purchased Assets, free and clear of all Liens other than Permitted Exceptions. The Purchased Assets constitute all of the assets used in or held for use in the Business and are sufficient for Purchaser to conduct the Business from and after the Closing Date in the Ordinary Course of Business and without interruption. 5.7 Absence of Certain Developments . Except as expressly contemplated by this Agreement or as set forth in Section 5.7 of the Disclosure Memorandum, since the Balance Sheet Date (i) Seller has conducted the Business only in the Ordinary Course of Business and (ii) there has not occurred any event, change, effect or circumstance that has had or is reasonably likely to have a Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth in Section 5.7 of the Disclosure Memorandum, since the Balance Sheet Date: 23  (i) neither Seller nor any Subsidiary has incurred any Liabilities with respect to the Business or the Purchased Assets of any nature other than items incurred in the regular and Ordinary Course of Business, consistent with past practice, or increased (or experienced any change in the assumptions underlying or the methods of calculating) any bad debt, contingency, or other reserve with respect to the Business or the Purchased Assets, other than in the Ordinary Course of Business consistent with past practice; (ii) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the Seller Properties or any tangible personal property of Seller or the Subsidiaries that constitutes a Purchased Asset having a replacement cost of more than $50,000 for any single loss or $100,000 for all such losses; (iii) neither Seller nor any Subsidiary has (A) except as set forth in Section 5.7(iii) of the Disclosure Memorandum, increased the salary, bonus or other compensation (other than compensation increases not exceeding five percent (5%) per annum and otherwise made in the Ordinary Course of Business) of any Employee; (B) increased the benefits, waivers or variations for the benefit of any such Employee, or otherwise amended, or made payments or grants of awards that were not required, under any Employee Benefit Plan, or adopted or executed of any new Employee Benefit Plan (other than any such events in the Ordinary Course of Business); or (C) established, assumed, adopted or amended any collective bargaining agreement or recognized any labor organization as the collective bargaining representative of any Employees; (iv) except as set forth in Section 8.1(h)(1) and Section 8.1(h)(2) of the Disclosure Memorandum, neither Seller nor any Subsidiary has executed any employment, severance, change in control or similar agreements, other than in the Ordinary Course of Business; (v) there has not been any (A) material change in the business organization of Seller (including all agency, brokerage and similar relationships of the Business); (B) change in the services provided by the advisors, managers, officers, Employees, underwriters, agents, brokers or sales representatives of Seller; (C) change in the relationships and goodwill with customers, suppliers, correspondents, investors, credit enhancers, attorneys, licensors, landlords, creditors, employees, agents, brokers, and others having business relationships with Seller; or (D) material change in the existing levels of insurance coverage of Seller, except, with respect to clauses (B) and (C), changes that have not had, and are not reasonably likely to have, a Material Adverse Effect; (vi) neither Seller nor any Subsidiary has failed to pay and discharge current Liabilities except for Liabilities not material in amount that are disputed in good faith by appropriate proceedings; (vii) except as set forth in Section 5.7(vii) of the Disclosure Memorandum, neither Seller nor any Subsidiary has made any material capital expenditure or commitment for additions to property, plant, equipment, intangible property or capital assets or for any other purpose with respect to the Seller Properties or the Purchased Assets, other than for emergency repairs or replacement; (viii) Seller has not made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person with respect to the Business or the Purchased Assets other than in the Ordinary Course of Business; 24  (ix) neither Seller nor any Subsidiary has permitted, allowed, or suffered any of its properties or assets (real, personal or mixed, tangible or intangible) that constitute Purchased Assets to be subjected to any Lien, other than Permitted Exceptions; (x) neither Seller nor any Subsidiary has acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of Seller or any Subsidiary with respect to the Business or the Purchased Assets, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the Ordinary Course of Business; (xi) neither Seller nor any Subsidiary has discharged or satisfied any Lien, or paid any obligation or liability (fixed or contingent), with respect to the Business or the Purchased Assets except in the Ordinary Course of Business and which, in the aggregate, would not be material to the Business taken as a whole; (xii) neither Seller nor any Subsidiary has canceled or compromised any debt or claim with respect to the Business or the Purchased Assets or amended, modified, extended, canceled, terminated, relinquished, waived or released any Contract or right with respect to the Business or the Purchased Assets except for immaterial amendments or modifications to such Contract; (xiii) neither Seller nor any Subsidiary has written down or written up the value of any Purchased Assets with a book value on the Balance Sheet in excess of $10,000, except for write-downs, write-ups, and write-offs in the Ordinary Course of Business, none of which is material in amount; (xiv) neither Seller nor any Subsidiary has instituted or settled any material Legal Proceeding with respect to the Business or the Purchased Assets; (xv) Seller has not granted any license or sublicense of any rights under or with respect to any Purchased Intellectual Property; and (xvi) Seller has not agreed, committed, arranged or entered into any understanding to do anything set forth in this Section 5.7 . 5.8 Taxes . (a) (i) All material Tax Returns that are or were required to be filed by or with respect to Seller or any of its Subsidiaries, either separately or as a member of an affiliated, combined, consolidated or unitary group, have been filed on a timely basis (taking into account all extensions of due dates) in accordance with applicable Law, (ii) all Tax Returns referred to in clause (i) are true and complete in all material respects, (iii) all material amounts of Taxes due for the periods covered by such Tax Returns (whether or not shown on any Tax Return), including any Taxes payable pursuant to any assessment made by the IRS or other Taxing Authorities in respect of such periods, have been paid in full, and (iv) all material amounts of estimated Taxes required to be paid in respect of Seller or any of its Subsidiaries have been paid in full when due in accordance with applicable Law. Seller has delivered or made available to Purchaser true and complete copies of all income Tax Returns and other material Tax Returns filed by Seller, any of its Subsidiaries, and any affiliated, combined, consolidated or unitary group of which Seller or any of its Subsidiaries is or was a member since the taxable year ended December 31, 2004. (b) (i) There is no material dispute or claim concerning any Tax liability of Seller or any of its Subsidiaries claimed or raised by any Taxing Authority in writing or of which any director or officer (or employee responsible for tax matters) of Seller is aware. All material deficiencies asserted or assessments made as a result of an examination of any Tax Return filed by Seller or any of its Subsidiaries have been paid in full, and no material issues that were raised by any Taxing Authority in connection with any such examination are currently pending. Neither Seller nor any of its Subsidiaries has given or been requested to give a currently effective waiver (or is subject to such a waiver given by any other Person) of any statute of limitations relating to Taxes or agreed to any currently effective extension of time with respect to a Tax assessment or deficiency. No unresolved claim has ever been made by an authority in any jurisdiction in which Seller or any of its Subsidiaries does not file Tax Returns that Seller or any of its Subsidiaries is or may be subject to taxation in such jurisdiction. There are no unresolved examinations of all Tax Returns, including a reasonably detailed description of the nature of each such examination, the adjustments made to such Tax Returns, and the resulting deficiencies asserted or assessments made by the IRS or other appropriate Taxing Authority. 25  (c) No Tax is required to be withheld pursuant to Section 1445 of the Code as a result of the transfer contemplated by this Agreement. (d) There are no Liens, except for Permitted Exceptions, relating or attributable to Taxes with respect to, or in connection with, the Purchased Assets. There is no basis for the assertion of any claim for Taxes (excluding Taxes of Purchaser and its Affiliates) which, if adversely determined, would or is reasonably likely to result in the imposition of any Lien on the Purchased Assets or otherwise adversely affect Purchaser, the Business or Purchaser’s use of such assets. (e) All material amounts of Taxes that Seller is or was required by Law to withhold or collect have been duly withheld or collected and, to the extent required by applicable Law, have been paid to the proper Governmental Body or other Person and all related Tax Returns, including Forms W-2 and 1099, have been properly completed and timely filed. 5.9 Real Property . (a) Section 5.9(a) of the Disclosure Memorandum sets forth an accurate and complete list of all real property and interests in real property (including the location of the property, monthly rent, lease expiration and square footage), other than the real property subject to the Excluded Real Property Leases, leased by Seller and the Subsidiaries (individually, a “ Real Property Lease ” and the real properties specified in such leases being referred to herein individually as a “ Seller Property ” and collectively as the “ Seller Properties ”) as lessee or lessor which are currently used or currently held for use in connection with the Business by Seller or a Subsidiary and are necessary for the continued operation of the Business by Seller and the Subsidiaries as the Business is currently conducted. All of the Seller Properties, buildings, fixtures and improvements thereon owned or leased by Seller or a Subsidiary are in good operating condition and repair (subject to normal wear and tear). Seller has delivered or otherwise made available to Purchaser true, correct and complete copies of the Real Property Leases, together with all amendments, modifications or supplements thereto, including any assignments thereof. (b) Seller and the Subsidiaries have a valid and enforceable leasehold interest under each of the Real Property Leases, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Each of the Real Property Leases is in full force and effect, and neither Seller nor any Subsidiary has received or given any notice of any default or event that with notice or lapse of time, or both, would constitute a default by Seller or any Subsidiary under any of the Real Property Leases and, to the Knowledge of Parent and Knowledge of Seller, no other party is in default thereof, and no party to any of the Real Property Leases has exercised any termination rights with respect thereto. 26  (c) Seller and the Subsidiaries have all material certificates of occupancy and Permits of any Governmental Body necessary or useful for the current use and operation of each Seller Property, and Seller and the Subsidiaries have fully complied with all material conditions of the Permits applicable to them, except, in each case, where the failure to have such certificates or Permits has not had, and is not reasonably likely to have, a Material Adverse Effect. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit, except where such default or violation has not had, and is not reasonably likely to have, a Material Adverse Effect. (d) There does not exist any actual or, to the Knowledge of Parent and Knowledge of Seller, threatened or contemplated condemnation or eminent domain proceedings that affect any Seller Property or any part thereof, and neither Parent nor Seller has not received any notice, oral or written, of the intention of any Governmental Body or other Person to take or use all or any part thereof. (e) Neither Seller nor any Subsidiary has received any notice from any insurance company that has issued a policy with respect to any Seller Property requiring performance of any structural or other repairs or alterations to such Seller Property. (f) Neither Seller nor any Subsidiary owns or holds, and is not obligated under or a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein. 5.10 Tangible Personal Property . (a) Seller and the Subsidiaries have good and marketable title to all of the items of tangible personal property reflected on the Final Balance Sheet that relate to the Business or the Purchased Assets (except as sold or disposed of subsequent to the date thereof in the Ordinary Course of Business), free and clear of any and all Liens, other than Permitted Exceptions. All such items of tangible personal property which, individually or in the aggregate, are material to the operation of the Business are in good condition and in a state of good maintenance and repair (ordinary wear and tear excepted) and are suitable for the purposes used. (b) Section 5.10 of the Disclosure Memorandum sets forth all leases of personal property (“ Personal Property Leases ”) involving annual payments in excess of $10,000 relating to personal property that is located at a Seller Property and used by Seller or any of the Subsidiaries in the Business or by which any of the Purchased Assets are bound. All of the items of personal property under the Personal Property Leases are in good condition and repair and are suitable for the purposes used, and such property is in all material respects in the condition required of such property by the terms of the lease applicable thereto during the term of the lease. Seller has delivered or otherwise made available to the Purchaser true, correct and complete copies of the Personal Property Leases, together with all amendments, modifications or supplements thereto. (c) Seller and the Subsidiaries have a valid and enforceable leasehold interest under each of the Personal Property Leases under which it is a lessee, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Each of the Personal Property Leases is in full force and effect. There is no default under any Personal Property Lease by the Seller or any of the Subsidiaries or, to the Knowledge of Parent and Knowledge of Seller, by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder. No party to any of the Personal Property Leases has exercised any termination rights with respect thereto. 27  5.11 Intellectual Property (a) Section 5.11(a) of the Disclosure Memorandum sets forth an accurate and complete list of all Patents, registered Marks, pending applications for registration of Marks, unregistered Marks, registered Copyrights, and pending applications for registration of Copyrights included in the Purchased Intellectual Property. Section 5.11(a) of the Disclosure Memorandum lists (i) the jurisdictions in which each such item of Purchased Intellectual Property has been issued, registered, otherwise arises or in which any such application for such issuance and registration has been filed and (ii) the registration or application date, as applicable. (b) Seller and the Subsidiaries are the sole and exclusive owners of all right, title and interest in and to all of the Purchased Intellectual Property and the Purchased Intellectual Property includes each of the Copyrights in any works of authorship prepared by or for Seller or any Subsidiary that resulted from or arose out of any work performed by or on behalf of Seller or a Subsidiary or by any employee, officer, consultant or contractor of any of them. To the Knowledge of Seller and Knowledge of Parent, Seller and the Subsidiaries are the sole and exclusive owners of, or have valid and continuing rights to use, sell and license, as the case may be, all other Purchased Intellectual Property as the same is used, sold and licensed in the Business as presently conducted and proposed to be conducted, free and clear of all Liens or obligations to others. (c) The Purchased Intellectual Property, the manufacturing, licensing, marketing, importation, offer for sale, sale or use of any products and services in connection with the Business as presently and as currently proposed to be conducted, and the present and currently proposed business practices, methods and operations of Seller and the Subsidiaries do not infringe, constitute an unauthorized use, misappropriation or violation of any Copyright, Trade Secret or other similar right of any Person and, to the Knowledge of Seller and Knowledge of Parent, do not infringe, constitute an unauthorized use of, misappropriate, dilute or violate any other Intellectual Property or other right of any Person (including pursuant to any non-disclosure agreements or obligations to which Parent or any of its Affiliates (including Seller or any of the Subsidiaries) or any of their present or former employees is a party). The Purchased Intellectual Property and the Intellectual Property Licenses include all of the Intellectual Property necessary and sufficient to enable Seller and the Subsidiaries to conduct the Business in the manner in which such Business is currently being conducted and proposed by Seller to be conducted. (d) Except with respect to licenses of commercial off-the-shelf Software available on reasonable terms for a license fee of no more than $10,000, none of Parent or any of its Affiliates (including Seller or any of the Subsidiaries) is required, obligated, or under any Liability whatsoever, to make any payment by way of royalties, fees or otherwise to any owner, licensor of, or other claimant to any Purchased Intellectual Property, or other third Person, with respect to the use thereof or in connection with the conduct of the Business as currently conducted or proposed by Seller to be conducted. (e) There are no Contracts (i) to which Parent or any of its Affiliates (including Seller or any of the Subsidiaries) is a party (A) granting any Intellectual Property License, (B) containing a covenant not to compete or otherwise limiting its ability to (x) exploit fully any of the Purchased Intellectual Property or (y) conduct the Business in any market or geographical area or with any Person or (ii) to which Seller or any Subsidiary is a party containing an agreement to indemnify any other Person against any claim of infringement, unauthorized use, misappropriation, dilution or violation of Intellectual Property. 28  (f) Each of the Intellectual Property Licenses is in full force and effect and is the legal, valid and binding obligation of the Seller and/or the Subsidiaries, enforceable against them in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Neither Seller nor any Subsidiary is in default under any Intellectual Property License, nor, to the Knowledge of Seller and Knowledge of Parent, is any other party to an Intellectual Property License in default thereunder, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder. No party to any of the Intellectual Property Licenses has exercised any termination rights with respect thereto. Seller and the Subsidiaries have, and will transfer to Purchaser at the Closing, good and valid title to the Intellectual Property Licenses, free and clear of all Liens other than Permitted Exceptions. Seller has delivered or otherwise made available to Purchaser true, correct and complete copies of all of the Intellectual Property Licenses, together with all amendments, modifications or supplements thereto. (g) No Trade Secret or any other non-public, proprietary information included in the Purchased Assets material to the Business as presently conducted and proposed to be conducted has been authorized to be disclosed or has been actually disclosed by Parent or any of its Affiliates (including Seller or any of the Subsidiaries) to any of their employees or any third Person other than pursuant to a non-disclosure agreement restricting the disclosure and use of the Purchased Intellectual Property. Parent and its Affiliates (including Seller and the Subsidiaries) have taken adequate security measures to protect the secrecy, confidentiality and value of all the Trade Secrets included in the Purchased Intellectual Property and any other non-public, proprietary information included in the Purchased Technology, which measures are reasonable in the industry in which the Business operates. Each employee, consultant and independent contractor of Parent and its Affiliates (including Seller and the Subsidiaries) has entered into a written non-disclosure and invention assignment agreement with them in a form reasonably acceptable to them and provided to Purchaser prior to the date hereof. (h) As of the date hereof, none of Parent or its Affiliates (including Seller and the Subsidiaries) is the subject of any pending or, to the Knowledge of Seller and Knowledge of Parent, threatened Legal Proceedings which involve a claim of infringement, unauthorized use, misappropriation, dilution or violation by any Person against Seller or any of the Subsidiaries or challenging the ownership, use, validity or enforceability of any Purchased Intellectual Property. None of Parent or its Affiliates (including Seller and the Subsidiaries) has received written (including by electronic mail) notice of any such threatened claim and, to the Knowledge of Seller and Knowledge of Parent, there are no facts or circumstances that would form the basis for any such claim or challenge. The Purchased Intellectual Property, and all of Parent’s and its Affiliates’ (including Seller’s and the Subsidiaries’) rights in and to the Purchased Intellectual Property, are valid and enforceable. (i) To the Knowledge of Seller and Knowledge of Parent, no Person is infringing, violating, misusing or misappropriating any Purchased Intellectual Property, and no such claims have been made against any Person by Parent or any of its Affiliates (including Seller or any of the Subsidiaries). (j) There are no Orders to which Parent or any of its Affiliates (including Seller or any of the Subsidiaries) is a party or by which they are bound which restrict, in any material respect, any rights to any Purchased Intellectual Property. (k) The consummation of the transactions contemplated hereby will not result in the loss or impairment of Purchaser’s right to own or use any of the Purchased Intellectual Property. 29  (l) No present or former employee of Parent or any of its Affiliates (including Seller or any of the Subsidiaries) has any right, title, or interest, directly or indirectly, in whole or in part, in any material Purchased Intellectual Property. To the Knowledge of Seller and Knowledge of Parent, no employee, consultant or independent contractor of Parent or any of its Affiliates (including Seller or any of the Subsidiaries) engaged in the Business is, as a result of or in the course of such employee’s, consultant’s or independent contractor’s engagement, in default or breach of any material term of any employment agreement, non-disclosure agreement, assignment of invention agreement or similar agreement. (m) Section 5.11(m) of the Disclosure Memorandum sets forth a complete and accurate list of (i) all Software included in the Purchased Technology owned or licensed exclusively by Seller and the Subsidiaries that is material to the operation of the Business and (ii) all other Software used in the Business that is not exclusively owned or licensed by Seller and the Subsidiaries, excluding commercial-off-the-shelf Software available on reasonable terms for a license fee of no more than $10,000. (n) Immediately following the Closing, Parent and its Affiliates will not hold any material assets or rights of the Business including any rights to the Purchased Intellectual Property, except for (i) any Excluded Assets, (ii) such assets or rights that will be the subject of the Transition Services Agreement and (iii) any services currently provided to Seller or the Subsidiaries that Purchaser elects not to be the subject of the Transition Services Agreement. 5.12 Material Contracts . (a) Section 5.12 of the Disclosure Memorandum sets forth all of the following Contracts to which Seller or any of the Subsidiaries is a party or by which it is bound and which relate to the Business or the Purchased Assets, other than any Excluded Contracts (collectively, the “ Material Contracts ”): (i) Contracts with any Affiliate or current or former officer, director, stockholder or Affiliate of Seller or any of the Subsidiaries or any loan officer, Affiliate of any loan officer, agent, broker or sales representative of Seller or any of the Subsidiaries that are currently in effect; (ii) Contracts with any labor union or association representing any employees of Seller or any of the Subsidiaries; (iii) Contracts for the sale of any of the assets of Seller or any of the Subsidiaries or for the grant to any Person of any preferential rights to purchase any of its assets other than in the Ordinary Course of Business and not material in amount in the aggregate; (iv) Contracts for joint ventures, strategic alliances or partnerships or other Contract (however named) involving a sharing of profits, losses, costs or Liabilities by Seller or any Subsidiary with any other Person; (v) Contracts prohibiting or limiting the ability of Seller to (A) engage in any line of business, (B) compete with, obtain products or services from, or provide services or products to, any Person, (C) carry on or expand the nature or geographical scope of the Business anywhere in the world or (D) disclose any confidential information in the possession of Seller (and not otherwise generally available to the public); 30  (vi) Contracts relating to the acquisition by Seller or any of the Subsidiaries of any operating business or the capital stock of any other person; (vii) Contracts relating to incurrence, assumption or guarantee of any indebtedness in excess of $100,000 or imposing a Lien on any of its assets; (viii) Contracts involving (A) leases by Seller from or to any other Person of any tangible personal property or real property or (B) purchases or sales by Seller of materials, supplies, equipment or services and which, in the case of clauses (A) and (B), calls for future payments in excess of $25,000 in any year; (ix) Contracts under which the Seller or any of the Subsidiaries has made advances or loans to any other Person other than (A) intercompany loans and (B) loans and advances made in the Ordinary Course of Business; (x) Contracts providing for severance, retention, change in control or similar payments; (xi) Contracts for the employment (including “at will” employment) of any individual on a full-time, part-time or consulting or other basis providing annual compensation in excess of $100,000; (xii) outstanding agreements of guaranty, surety or indemnification, direct or indirect, by Seller or any of the Subsidiaries, other than master loan purchase agreements to which Seller or any Subsidiary is a party; (xiii) Contracts (or a group of related contracts) which involve the expenditure of more than $50,000 annually or $100,000 in the aggregate or require performance by any party more than one year from the date hereof; and (xiv) Contracts that are otherwise material to the Business. (b) Each of the Material Contracts is in full force and effect and is the legal, valid and binding obligation of Seller and/or a Subsidiary, enforceable against them in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Neither Seller nor any Subsidiary is in material default under any Material Contract, nor, to the Knowledge of Parent and Knowledge of Seller, is any other party to any Material Contract in material default thereunder, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a material default thereunder. No party to any of the Material Contracts has exercised any termination rights with respect thereto. Seller and the Subsidiaries have the right to, and will at the Closing, assign the Material Contracts to Purchaser. Seller has delivered or otherwise made available to Purchaser true, correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto. (c) None of the Purchased Contracts contains any restrictions prohibiting or limiting the ability of Seller (or Purchaser following the Closing) to (1) engage in any line of business, (2) compete with, obtain products or services from, or provide services or products to, any Person, (3) carry on or expand the nature or geographical scope of the Business anywhere in the world, (4) disclose any confidential information in the possession of Seller (and not otherwise generally available to the public) or (5) enter into any Contract with any other Person. 31  5.13 Employee Benefits . (a) Section 5.13(a) of the Disclosure Memorandum sets forth a true and complete list of each profit-sharing, pension, severance, thrift, savings, incentive, change of control, employment, retirement, vacation, bonus, retention, equity, deferred compensation, life insurance and any medical, vision, dental or other health plan, flexible spending account, cafeteria plan, holiday, disability or any other employee benefit plan or fringe benefit plan, agreement, arrangement or commitment, whether written or unwritten (all of which are hereinafter referred to as the “ Employee Benefit Plans ”), which is maintained, contributed to or required to be contributed to by Parent or Seller on behalf of any current or former employee, director or consultant of Seller. Section 5.13(a) of the Disclosure Memorandum identifies each of the Employee Benefit Plans which constitutes an “employee benefit plan” as defined in Section 3(3) of ERISA, in addition to any other plan, fund, policy, program, practice, custom, understanding or arrangement providing compensation or other benefits, whether or not such Employee Benefit Plan is or is intended to be (i) covered or qualified under the Code, ERISA or any other applicable Law, (ii) written or oral, (iii) funded or unfunded, (iv) actual or contingent, or (v) arrived at through collective bargaining or otherwise. Seller does not have any formal commitment, or intention communicated to employees, to create any additional Employee Benefit Plan or modify or change any existing Employee Benefit Plan. (b) Parent or Seller has delivered to Purchaser true and complete copies of (i) the most recent plan documents (including all amendments thereto) of all Employee Benefit Plans and other writings setting forth the terms of such Employee Benefit Plans; (ii) the most recent summary plan description, together with each summary of material modifications of all Employee Benefit Plans; and (iii) written descriptions of all Employee Benefit Plans for which a plan document or other writing is not required or available. (c) Neither Parent, Seller nor any ERISA affiliate has ever maintained or participated in any Employee Benefit Plan which has been subject to title IV of ERISA or Code Section 412 or ERISA Section 302, including, but not limited to, any “multiemployer plan” (within the meaning of Section 4001(a)(3) of ERISA). An ERISA affiliate for purposes of this Section 5.13 is any person or entity that would be considered, when combined with Seller, a single employer pursuant to Section 414 of the Code. (d) The consummation of the transactions contemplated by this Agreement and the Seller Documents will not (or will not upon termination of employment within a fixed period of time following such consummation) (i) entitle any employee, director or consultant to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting or increase the amount of payment with respect to any compensation due to any Employee, director or Contingent Worker. (e) Except as set forth in Section 8.1(h)(1) and Section 8.5 of the Disclosure Memorandum, no written, or, to the Knowledge of Seller and Knowledge of Purchaser, oral representation or communication with respect to any aspect of a Employee Benefit Plan has been made to any employee on or before the Closing Date that is not in accordance with the written or otherwise pre-existing terms and provisions of such plans. 32  5.14 Labor . (a) There is no labor or collective bargaining agreement with any union or similar labor organization covering any Employee. (b) No petition for certification or union election is existing or pending with respect to any Employee and no union, labor organization or collective bargaining unit has sought certification or recognition within the preceding three (3) years with respect to any Employee. (c) All Employees are at-will employees. (d) There are no (i) strikes, work stoppages, slowdowns, lockouts or arbitrations or (ii) material grievances or other labor disputes pending or, to the Knowledge of Parent and Knowledge of Seller, threatened against or involving Seller or any of the Subsidiaries involving any Employee. There are no unfair labor practice charges, grievances or complaints pending or, to the Knowledge of Parent and Knowledge of Seller, threatened by or on behalf of any Employee. 5.15 Litigation . (a) Except as set forth in Section 5.15 of the Disclosure Memorandum, there is no Legal Proceeding pending or, to the Knowledge of Parent and Knowledge of Seller, threatened against Seller or any of the Subsidiaries (or to the Knowledge of Parent and Knowledge of Seller, pending or threatened, against any of the officers, directors or key employees of Seller or any of the Subsidiaries with respect to their business activities on behalf of Seller), or to which Seller or any of the Subsidiaries is otherwise a party, before any Governmental Body; nor, to the Knowledge of Parent and Knowledge of Seller, is there any reasonable basis for any such Legal Proceeding. Except as set forth in Section 5.15 of the Disclosure Memorandum, neither Seller nor any Subsidiary is subject to any Order. Except as set forth in Section 5.15 of the Disclosure Memorandum, neither Seller nor any Subsidiary is engaged in any legal action to recover monies due it or for damages sustained by it. (b) There are no Legal Proceedings or Orders issued, pending or, to the Knowledge of Parent and Knowledge of Seller, threatened, against Parent, Seller or any of Seller’s assets, at law, in equity or otherwise, in, before, by, or otherwise involving, any Governmental Body, arbitrator or other Person that question or challenge the validity or legality of, or have the effect of prohibiting, preventing, restraining, restricting, delaying, making illegal or otherwise interfering with, this Agreement, the Seller Documents, the consummation of the transactions contemplated hereby or thereby or any action taken or proposed to be taken by Parent or Seller pursuant hereto or in connection with the transactions contemplated hereby or thereby. To the Knowledge of Parent and Knowledge of Seller, no event has occurred or circumstance exists that could reasonably be expected to give rise to or serve as a basis for the commencement of any such Legal Proceeding or the issuance of any such Order. (c) Neither Parent nor Seller is a party to any written agreement, consent agreement or memorandum of understanding with or a party to any commitment letter or similar undertaking with, and the Board of Directors thereof has not adopted any resolutions at the request of, any Governmental Body that restrict the conduct of the Business or that are in any manner related to its capital adequacy, its credit policies, its management or the Business, nor have Parent or Seller been advised by any Governmental Body that the entity is considering requesting such an agreement, consent agreement, memorandum of understanding, commitment letter or similar undertaking, or Board of Directors resolutions. 33  5.16 Compliance with Laws; Permits . (a) Seller and the Subsidiaries are in compliance in all respects with all Laws of every Governmental Body, including all licensing and escheat laws, applicable to the Purchased Assets or their conduct of the Business, except for such failure to comply that has not had, and is not reasonably likely to have, a Material Adverse Effect. Neither Seller nor any of the Subsidiaries has received any written or other notice of or been charged with the violation of any Law with respect to the Business or the Purchased Assets. To the Knowledge of Parent and Knowledge of Seller, neither Seller nor any of the Subsidiaries is under investigation with respect to the violation of any Law with respect to the Business or the Purchased Assets and there are no facts or circumstances which could form the basis for any such violation. (b) Section 5.16(b) of the Disclosure Memorandum contains a list of all Permits which are required for the operation of the Business as presently conducted. Seller and the Subsidiaries currently have all Permits which are required for the operation of the Business as presently conducted, except where the failure to have such Permits has not had, and is not reasonably likely to have, a Material Adverse Effect. Neither Seller nor any of the Subsidiaries is in default or violation in any material respect, and no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation, in any material respect of any term, condition or provision of any Permit to which it is a party, to which the Business is subject or by which any of the Purchased Assets are bound and, to the Knowledge of Parent and Knowledge of Seller, there are no facts or circumstances which could form the basis for any such default or violation. All applications required to have been filed for the renewal of any Permit listed in Section 5.16(b) of the Disclosure Memorandum have been duly filed on a timely basis with the appropriate Governmental Body, and all other filings required to have been made with respect to any such Permit have been duly made on a timely basis with the appropriate Governmental Body, except where the failure to have timely made such filings has not had, and is not reasonably likely to have, a Material Adverse Effect. 5.17 Environmental Matters . Except as set forth in Section 5.17 of the Disclosure Memorandum hereto: (a) no Hazardous Materials have been used, stored or otherwise handled in any manner by Parent, Seller or any of their Subsidiaries on, in, from or affecting any Seller Property except in compliance with applicable Environmental Laws; (b) to the Knowledge of Parent and the Knowledge of Seller, no Hazardous Materials have at any time been released into or stored on or in any Seller Property; (c) neither Parent nor Seller has received any notice of any violations (and, to the Knowledge of Parent and Knowledge of Seller, there are no existing violations) of any applicable Law governing the use, storage, treatment, transportation, manufacture, refinement, handling, production or disposal of Hazardous Materials on, in, from or affecting any Seller Property and there are no Legal Proceedings pending or, to the Knowledge of Parent and Knowledge of Seller, threatened by any Person with respect to any such violations; and (d) all Seller Properties are currently being, and have in the past been, operated by Parent or Seller in all material respects in accordance and in compliance with all applicable Environmental Laws. 5.18 Insurance . Seller and the Subsidiaries have insurance policies in full force and effect for such amounts as are sufficient for all requirements of Law and all agreements to which Seller or any of the Subsidiaries is a party or by which it is bound to the extent applicable to the Business, the Seller Properties and the Purchased Assets. Set forth in Section 5.18 of the Disclosure Memorandum is a list of all insurance policies and all fidelity bonds held by or applicable to Seller or any of the Subsidiaries to the extent applicable to the Business, the Seller Properties and the Purchased Assets setting forth, in respect of each such policy, the policy name, policy number, carrier, term, type and amount of coverage and annual premium. Except as set forth in Section 5.18 of the Disclosure Memorandum, no event relating to Seller or any of the Subsidiaries has occurred which could reasonably be expected to result in a retroactive upward adjustment in premiums under any such insurance policies or which could reasonably be expected to result in a prospective upward adjustment in such premiums. Excluding insurance policies that have expired and been replaced in the Ordinary Course of Business and except as set forth in Section 5.18 of the Disclosure Memorandum, no insurance policy applicable to the Business, the Seller Properties or the Purchased Assets has been cancelled within the last two (2) years and, to the Knowledge of Parent and Knowledge of Seller, no threat has been made to cancel any such insurance policy of Seller or any of the Subsidiaries during such period. Except as noted in Section 5.18 of the Disclosure Memorandum, all such insurance will remain in full force and effect and all such insurance is assignable or transferable to Purchaser. No event has occurred, including the failure by Seller or any of the Subsidiaries to give any notice or information and none of Seller or any of the Subsidiaries has given any inaccurate or erroneous notice or information to any third party, which limits or impairs the rights of Seller or any of the Subsidiaries under any such insurance policies in a material adverse manner. 34  5.19 Loan Originations . (a) Lender qualifications. Each of Seller and its Subsidiaries have been during the last three years, and are presently in, compliance with all Applicable Requirements, except where such failure to comply has not had, and is not reasonably likely to have, a Material Adverse Effect. Seller and its Subsidiaries have timely filed, or will have timely filed by the Closing Date, all reports that any Governmental Body or Insurer requires that it file with respect to the Business, except where such failure to make such filings has not had, and is not reasonably likely to have, a Material Adverse Effect. No Agency has indicated to Seller or any of its Subsidiaries in writing, or to the Knowledge of Parent and Knowledge of Seller, in any other manner, that it has terminated or intends to terminate its relationship with Seller or any such Subsidiary for poor performance, poor loan quality or concern with respect to Seller’s or any Subsidiary’s compliance with Laws or that Seller or any of its Subsidiaries is in default under or not in compliance with respect to any Applicable Requirements, except as would not, individually or in the aggregate, be materially adverse to Seller and its Subsidiaries. (b) Seller conduct. The loan origination and underwriting processes, procedures and guidelines of Seller and its Subsidiaries that are used in the Business are adequate and are consistent with generally accepted industry standards, and Seller and its Subsidiaries have not taken any action or omitted to take any action in violation of such loan origination and underwriting processes, procedures and guidelines with respect to any of the Pipeline Loans. Neither Seller nor its Subsidiaries have done or caused to be done, or have failed to do or omitted to be done, any act, the effect of which would operate to invalidate or materially impair (1) any private mortgage insurance or commitment of any private mortgage insurer to insure, (2) any title insurance policy, (3) any hazard insurance policy, (4) any flood insurance policy, (5) any fidelity bond, direct surety bond, or errors and omissions insurance policy required by private mortgage insurers, or (6) any surety or guaranty agreement, in each case applicable to the Pipeline Loans or reasonably necessary to the operation of the Business. No Agency or private mortgage insurer has (x) claimed in writing or, to the Knowledge of Parent and Knowledge of Seller, intends to claim, that the Pipeline Loans, Seller or any of its Subsidiaries have violated or have not complied with the representations and warranties applicable with respect to any Pipeline Loans, or with respect to any sale of Mortgage Loans or mortgage servicing rights or (y) imposed restrictions on the activities (including commitment authority) of Seller or any Subsidiary, except where such restrictions have not had, and are not reasonably likely to have, a Material Adverse Effect. 35  (c) Pipeline loans. (i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or a material adverse effect on the aggregate fair market value of the Pipeline Loans, each Pipeline Loan was advertised, solicited and originated by Seller in a manner consistent with all Applicable Requirements and applicable Laws, and with the intent and expectation that, upon closing or funding, it would be (1) eligible for sale to, and insurance by, or pooling to collateralize securities issued by an investor, Agency or Insurer; (2) evidenced by a Mortgage Note with such terms as are customary in the business; (3) duly secured by a Mortgage with such terms as are customary in the business and which grants the holder thereof either a first lien on the Mortgaged Property (including any improvements thereon) with respect to Pipeline Loans originated as first lien Mortgage Loans and with respect to Pipeline Loans originated as second lien Mortgage Loans, a second priority lien on the Mortgaged Property which constitutes a security interest that has been duly perfected and maintained (or is in the process of perfection in due course) and is in full force and effect and is insured by a title policy issued by a company acceptable to the applicable Agency or investor to the extent required by the applicable Agency or investor; (4) accompanied by a hazard insurance policy covering improvements on the Mortgaged Property subject to such Mortgage, with a loss payee clause in favor of Seller or one of its Subsidiaries or the assignee of Seller or one its Subsidiaries, which insurance policy or policies covers such risks as are customarily insured against in accordance with industry practice and in accordance with investor or Agency requirements, and which includes flood insurance and/or special hazard insurance where either is required by an investor or Agency; and (5) covered by a policy of private mortgage insurance, if required by the terms of any Applicable Requirement or any applicable Law. Neither Seller nor its Subsidiaries has engaged in any act or omission that would impair the coverage of such insurance described in this subsection, except as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Business, the Purchased Assets or the aggregate fair market value of the Pipeline Loans. The information set forth in the Mortgage Loan Tape with respect to the Pipeline Loans is complete, true and correct in all material respects as of the date specified in the Mortgage Loan Tape. In the event Purchaser changes or modifies the loan underwriting criteria employed by Seller with respect to any Pipeline Loan, and such change results in a Liability to Purchaser or a failure of the representations and warranties set forth in this Section 5.19(b)(i) to be true and correct in all respects with respect to such Pipeline Loan, then the representations and warranties set forth in this Section 5.19(b)(i) shall be of no force and effect with respect to such Pipeline Loan and Seller and Parent shall have no other obligation or Liability to Purchaser with respect to such Pipeline Loan. (ii) The representations and warranties set forth at Exhibit 5.19(b)(ii) shall be true and correct with respect to each Pipeline Loan. (iii) Except as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Business, the Purchased Assets or the aggregate fair market value of the Pipeline Loans, but for the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, upon the closing and funding of the Pipeline Loans, Seller or its Subsidiaries would have been the sole owner of each of the Pipeline Loans and the sole owner or beneficiary of or under the related Mortgage Notes, Mortgages, guaranties, indemnities, financing statements, assignments, endorsement, bonds, letters of credit, accounts, insurance contracts and policies, credit reports, Tax Returns, appraisals, escrow documents, participation agreements (if applicable), loan files, servicing files and all other documents evidencing or securing the Pipeline Loans (the “ Mortgage Files ”). Except as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Business, the Purchased Assets or the aggregate fair market value of the Pipeline Loans, there exists no physical damage to any Mortgaged Property reflected in the Mortgage Files as securing any Pipeline Loan, which physical damage is not insured against in compliance with the Applicable Requirements or would cause any Pipeline Loan to become delinquent or adversely affect the value or marketability of any Pipeline Loan. 36  5.20 Loan Officers . Set forth in Section 5.20 of the Disclosure Memorandum is a true and complete list of each loan officer of Seller or its Subsidiaries as of the date hereof together with a true and complete copy of each form of any Contract between the Seller or such Subsidiary and such loan officers, including any compensation arrangements. Each Contract with a loan officer is in substantially the form, and contains all of the terms, conditions and provisions set forth in, one of the forms of such Contracts set forth in Section 5.20 of the Disclosure Memorandum. Seller enjoys good relations with its loan officers. Each of the Contracts between Seller and its loan officers is valid, binding and in full force and effect in accordance with its terms. Neither Seller nor, to the Knowledge of Parent and Knowledge of Seller, any other party to any such Contract is in default in any material respect with respect to any such Contract and no such Contract contains any provision providing that the other party thereto may terminate the same by reason of the transactions contemplated by this Agreement or the Seller Documents or any other provision which would be altered or otherwise become applicable by reason of such transactions. 5.21 Related Party Transactions . (a) Except as set forth in Section 5.21(a) of the Disclosure Memorandum or as specifically described in the annual proxy statement of Parent as filed with the SEC under Section 14(a) of the Exchange Act on April 26, 2006, none of Seller, any Subsidiary, any Affiliate of Seller or any of their respective officers, directors or employees (i) owns any direct or indirect interest of any kind in, or controls or is a director, officer, employee or partner of, or consultant to, or lender to or borrower from or has the right to participate in the profits of, any Person which is (A) a competitor, supplier, customer, landlord, tenant, creditor or debtor of Seller or any of the Subsidiaries with respect to the Business, (B) engaged in a business that is substantially similar to the Business, or (C) a participant in any transaction with respect to the Business to which Seller or any of the Subsidiaries is a party or (ii) is a party to any Contract with Seller or any of the Subsidiaries with respect to the Business. (b) Except as set forth in Section 5.21(b) of the Disclosure Memorandum, each Contract, agreement, or arrangement between Seller or any of the Subsidiaries on the one hand, and any Affiliate of Seller or any officer, director or employee of Seller on the other hand, with respect to the Business is on commercially reasonable terms no more favorable to the Affiliate, director, officer or employee of Seller than what any third party negotiating on an arms-length basis would expect. 5.22 Financial Advisors . Except for Milestone Advisors LLC, whose fees shall be paid by Seller, no Person has acted, directly or indirectly, as a broker, finder or financial advisor for Seller or any of the Subsidiaries in connection with the transactions contemplated by this Agreement and no Person is entitled to any fee or commission or like payment in respect thereof. 37  ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER Purchaser hereby represents and warrants to Seller that: 6.1 Organization and Good Standing . Purchaser is a federal savings and loan association chartered by the Office of Thrift Supervision (“ OTS ”), and is duly organized, validly existing and in good standing under the laws of the United States. 6.2 Authorization of Agreement . Purchaser has full corporate power and authority to execute and deliver this Agreement and each other agreement, document, instrument or certificate contemplated by this Agreement or to be executed by Purchaser in connection with the consummation of the transactions contemplated hereby and thereby (the “ Purchaser Documents ”), and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by Purchaser of this Agreement and each Purchaser Document have been duly authorized by all necessary corporate action on behalf of Purchaser. This Agreement has been, and each Purchaser Document will be at or prior to the Closing, duly executed and delivered by Purchaser and (assuming the due authorization, execution and delivery by the other parties hereto and thereto) this Agreement constitutes, and each Purchaser Document when so executed and delivered will constitute, legal, valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). 6.3 Conflicts; Consents of Third Parties . (a) Neither of the execution and delivery by Purchaser of this Agreement and of the Purchaser Documents, nor the compliance by Purchaser with any of the provisions hereof or thereof will (i) conflict with, or result in the breach of, any provision of the charter or by-laws of Purchaser, (ii) conflict with, violate, result in the breach of, or constitute a default under any securitization, forward commitment, note, bond, mortgage, indenture, license, agreement or other obligation to which Purchaser is a party or by which Purchaser or its properties or assets are bound or (iii) violate any statute, rule, regulation or Order by which Purchaser is bound, except, in the case of clauses (ii) and (iii), for such violations, breaches or defaults as would not, individually or in the aggregate, have a material adverse effect on the ability of Purchaser to consummate the transactions contemplated by this Agreement. (b) Except for filings of applications and notices with, receipt of approvals or nonobjections from, and expiration of related waiting periods required by the OTS and the Federal Deposit Insurance Corporation (“ FDIC ”), no Consent, waiver, approval, Order, Permit or authorization of, or declaration or filing with, or notification to, any Person or Governmental Body is required on the part of Purchaser in connection with the execution and delivery of this Agreement or the Purchaser Documents or the compliance by Purchaser with any of the provisions hereof or thereof. 6.4 Litigation . There are no Legal Proceedings pending or, to the Knowledge of Purchaser, threatened that are reasonably likely to prohibit or restrain the ability of Purchaser to enter into this Agreement or consummate the transactions contemplated hereby. 6.5 Financial Advisors . Except for Credit Suisse Securities (USA) LLC, no Person has acted, directly or indirectly, as a broker, finder or financial advisor for Purchaser in connection with the transactions contemplated by this Agreement and no Person is entitled to any fee or commission or like payment in respect thereof. 38  6.6 Financing . Purchaser has available, and on the Closing Date and at such other times pursuant to Section 3.4 and Section 3.5 , will have available, sufficient funds, available lines of credit or other sources of immediately available funds necessary to pay the Estimated Purchase Price, the Escrow Amount, the difference between the Estimated Book Value and the Final Book Value and the difference between the Estimated Pipeline Premium and the Final Pipeline Premium, each as applicable, and to assume the Assumed Liabilities on the terms and conditions of this Agreement. Purchaser’s obligations hereunder are not subject to any conditions regarding Purchaser’s ability to obtain financing for the consummation of the transactions contemplated hereby. ARTICLE VII COVENANTS 7.1 Access to Information . Seller shall, and shall cause the Subsidiaries to, afford Purchaser, its officers, employees, advisors, attorneys, accountants and representatives reasonable access to make such investigation of the properties, businesses and operations of Seller and the Subsidiaries as they relate to the Business or Purchased Assets and such examination of the books, records and financial condition of Seller and the Subsidiaries as they relate to the Business or Purchased Assets as it reasonably requests and to make extracts and copies of such books and records, except to the extent such disclosure of books and records is not permitted under applicable Law, and access to the members of management and personnel of the Business. Any such investigation, examination, discussion and review shall be conducted during the period prior to the Closing, during regular business hours and under reasonable circumstances and Seller shall cooperate fully therein. No investigation by Purchaser prior to or after the date of this Agreement shall diminish or obviate any of the representations, warranties, covenants or agreements of Seller contained in this Agreement or the Seller Documents. In order that Purchaser may have full opportunity to make such physical, business, accounting and legal review, examination or investigation as it may reasonably request of the affairs of Seller and the Subsidiaries as they relate to the Business or Purchased Assets, Seller shall cause the officers, employees, consultants, agents, accountants, attorneys and other representatives of Seller and the Subsidiaries to cooperate fully with such representatives in connection with such review and examination. 7.2 Conduct of the Business Pending the Closing . (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of Purchaser, Seller shall, and shall cause the Subsidiaries to: (i) conduct the Business only in the Ordinary Course of Business; (ii) use their commercially reasonable efforts to (A) preserve its present business operations, organization (including, without limitation, management and the sales force) and goodwill of Seller and the Subsidiaries as they relate to the Business or Purchased Assets and (B) maintain its present relationships with Persons having business dealings with Seller and the Subsidiaries (including, without limitation, customers, suppliers, officers, employees, underwriters, agents, brokers, sales representatives, correspondents, landlords and investors) with respect to the Business or the Purchased Assets; (iii) maintain (A) all of the assets and properties of Seller and the Subsidiaries that relate to the conduct of the Business or the Purchased Assets in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the assets and properties of Seller and the Subsidiaries that relate to the conduct of the Business or the Purchased Assets in such amounts and of such kinds comparable to that in effect on the date of this Agreement; 39  (iv) (A) maintain the books, accounts and records of Seller and the Subsidiaries that relate to the conduct of the Business or the Purchased Assets in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable that relate to the conduct of the Business or the Purchased Assets utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply in all material respects with all contractual and other obligations applicable to the operation the Business and the Purchased Assets; (v) comply in all material respects with all applicable Laws that relate to the conduct of the Business or the Purchased Assets; (vi) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Purchased Intellectual Property; (vii) continue the existing credit collection control of delinquencies and other policies and practices relating to the conduct of the Business; and (viii) not take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement. (b) Except as otherwise expressly provided by this Agreement or with the prior written consent of Purchaser, Seller shall not, and shall not permit the Subsidiaries to, with respect to the Business or the Purchased Assets: (i) except as set forth in Section 5.12(x) of the Disclosure Memorandum, or as may be required by applicable Law, (A) increase the annual level of compensation of any Employee in an amount greater than $10,000, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee, director or consultant, or (C) increase the coverage or benefits with respect to any Employee available under any Employee Benefit Plan or create or enter into any new Employee Benefit Plan; (ii) make any loan or advance to any Person other than in the Ordinary Course of Business; (iii) incur or assume any indebtedness other than in the Ordinary Course of Business; (iv) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be encumbered, any of the properties or assets (whether tangible or intangible) of Seller or any of the Subsidiaries; (v) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets of Seller and the Subsidiaries; (vi) enter into or agree to enter into any merger or consolidation with, any corporation or other entity except for any merger or consolidation that is not adverse to the rights and interests of Purchaser set forth in this Agreement, and that would not have any adverse effects on, the Business or the Purchased Assets or the ability of Seller and its Subsidiaries to consummate the transactions contemplated by this Agreement, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; 40  (vii) cancel or compromise any debt or claim or waive or release any right of Seller or any of the Subsidiaries; (viii) except in the Ordinary Course of Business, deviate from or change in any respect the credit or underwriting policies or collateral eligibility standards of Seller or any Subsidiary; (ix) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to any Employee; (x) enter into any transaction or enter into, modify, amend, terminate or renew any Contract which by reason of its size, terms or otherwise is not in the Ordinary Course of Business; (xi) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Purchaser, to compete with or conduct any business or line of business in any geographic area; (xii) except as set forth in Section 7.2(b)(xii) of the Disclosure Memorandum, terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License or (B) Permit; (xiii) enter into, modify or amend any agreement with any broker or correspondent; (xiv) amend the certificate of organization or incorporation or by-laws (or other similar governing documents) of Seller or any Subsidiary in a manner that would adversely impact the consummation of the transactions contemplated hereby; or (xv) agree to do anything (A) prohibited by this Section 7.2 , (B) which would make any of the representations and warranties of Seller in this Agreement untrue or incorrect in any material respect or (C) that would reasonably be expected to have a Material Adverse Effect. 7.3 Consents . Seller shall use (and shall cause each of the Subsidiaries to use) its commercially reasonable efforts, and Purchaser shall cooperate with Seller, to obtain at the earliest practicable date all Consents and approvals required to consummate the transactions contemplated by this Agreement, including, without limitation, the Consents and approvals referred to in Section 5.3(b) . Seller shall bear the sole cost of obtaining such Consents and approvals except for those costs associated with obtaining consents to assignment or transfer of any Material Contract or Real Property Lease which costs shall be shared equally by Purchaser and Seller. 41  7.4 Regulatory Approvals . (a) Each of Purchaser, Parent and Seller shall use commercially reasonable efforts to (i) make or cause to be made all filings required of each of them or any of their respective Subsidiaries or Affiliates under any Antitrust Laws with respect to the transactions contemplated hereby as promptly as practicable and, in any event, within ten Business Days after the date of this Agreement, (ii) comply at the earliest practicable date with any request under any Antitrust Laws for additional information, documents, or other materials received by each of them or any of their respective Subsidiaries from the FTC, the Antitrust Division or any other Governmental Body in respect of such filings or such transactions and (iii) cooperate with each other in connection with any such filing (including, to the extent permitted by applicable Law, providing copies of all such documents to the non-filing parties prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry of any of the FTC, the Antitrust Division or other Governmental Body under any Antitrust Laws with respect to any such filing or any such transaction. Each such party shall use commercially reasonable efforts to furnish to each other all information required for any application or other filing to be made pursuant to any applicable Law in connection with the transactions contemplated by this Agreement. Each such party shall promptly inform the other parties hereto of any oral communication with, and provide copies of written communications with, any Governmental Body regarding any such filings or any such transaction. No party hereto shall independently participate in any formal meeting with any Governmental Body in respect of any such filings, investigation, or other inquiry without giving the other parties hereto prior notice of the meeting and, to the extent permitted by such Governmental Body, the opportunity to attend and/or participate. Subject to applicable Law, the parties hereto will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto relating to proceedings under any Antitrust Laws. (b) Each of Purchaser and Seller shall use commercially reasonable efforts to resolve such objections, if any, as may be asserted by any Governmental Body with respect to the transactions contemplated by this Agreement under the Sherman Act, as amended, the Clayton Act, as amended, the Federal Trade Commission Act, as amended, and any other United States federal or state or foreign statutes, rules, regulations, orders, decrees, administrative or judicial doctrines or other laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, the “ Antitrust Laws ”). In connection therewith, if any Legal Proceeding is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as in violation of any Antitrust Law, Seller shall use commercially reasonable efforts, and Purchaser shall cooperate with Seller, to contest and resist any such Legal Proceeding, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction or other order whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, or restricts consummation of the transactions contemplated by this Agreement, including by pursuing all available avenues of administrative and judicial appeal and all available legislative action, unless, by mutual agreement, Purchaser and Seller decide that litigation is not in their respective best interests. Each of Purchaser and Seller shall use reasonable efforts to take such action as may be required to cause the expiration of the notice periods under any Antitrust Laws with respect to such transactions as promptly as possible after the execution of this Agreement. Notwithstanding anything to the contrary provided herein, neither Purchaser nor any of its Affiliates shall be required (i) to hold separate (including by trust or otherwise) or divest any of its businesses, product lines or assets, or any of the Purchased Assets, (ii) to agree to any limitation on the operation or conduct of the Business, or (iii) to waive any of the conditions to this Agreement set forth in Section 9.1 . (c) Each party hereto hereby agrees to cooperate with each other party and to promptly prepare and file all necessary filings, applications and other documents, to obtain as promptly as practicable all Consents of Governmental Bodies necessary or advisable to consummate the transactions contemplated hereby and to lift any injunction or other legal bar to the consummation of the transactions contemplated by this Agreement (and, in such case, to proceed with the consummation of the transactions contemplated by this Agreement as expeditiously as possible), including through all possible appeals; provided, that Purchaser shall not be required to consummate the transactions contemplated hereby if, in the reasonable good faith judgment of Purchaser, any conditions or restrictions imposed by any third party or Governmental Body in connection with any such Consent may reasonably be expected to materially impair the ability of Purchaser to consummate the transactions contemplated hereby or operate the Business or any other business operated by Purchaser or its Affiliates following the Closing in substantially the same manner it has been operated prior to the date of this Agreement. Subject to the timely receipt of all necessary information and materials from Parent and Seller, Purchaser shall, if necessary, file, on or prior to five Business Days after the date hereof, the appropriate application with the Office of Thrift Supervision necessary to obtain the appropriate Consent of the Office of Thrift Supervision required to consummate the transactions contemplated by this Agreement. Each party shall have the right to review in advance, and to the extent practicable each will consult the other on, in each case subject to applicable Laws relating to the exchange of information, all information relating to Purchaser, Seller or Parent, as the case may be, that is reasonably relevant to such party in terms of obtaining any Consents of Governmental Bodies and which appears in any filing made with, or other written materials submitted to, any third party or Governmental Body in connection with the transactions contemplated by this Agreement. In exercising the foregoing right, each of Purchaser and Seller shall act reasonably and as promptly as practicable. Purchaser and Seller agree that they will keep the other apprised of the status of matters relating to completion of the transactions contemplated by this Agreement, including, subject to applicable Laws relating to the exchange of information, promptly furnishing the other with copies of notice or other communications received by Purchaser, Seller or Parent, as the case may be, from any third party or Governmental Body with respect to the transactions contemplated hereby.  42  7.5 Further Assurances . (a) Subject to Section 7.4 , each of Seller and Purchaser shall use its commercially reasonable efforts to (i) take all actions necessary or appropriate to consummate the transactions contemplated by this Agreement and (ii) cause the fulfillment at the earliest practicable date of all of the conditions to their respective obligations to consummate the transactions contemplated by this Agreement. (b) Parent will transfer all Purchased Intellectual Property owned by Parent and its Affiliates (other than Seller and the Subsidiaries) to Seller prior to the Closing. Seller, the Subsidiaries and Parent shall execute such additional documents and take such other actions as may be reasonably necessary or desirable to secure, record or perfect the assignment of the Purchased Intellectual Property to Purchaser and to allow Purchaser to register, maintain, defend, enforce and otherwise obtain the full benefits of the Purchased Intellectual Property. 7.6 No Shop . (a) Except with respect to the possible sale by Seller of the Excluded Assets, neither Parent nor Seller will, and will not permit any of the directors, officers, employees, representatives or agents of Seller or the Subsidiaries (collectively, the “ Representatives ”) to, directly or indirectly, (i) discuss, negotiate, undertake, authorize, recommend, propose or enter into, either as the proposed surviving, merged, acquiring or acquired corporation, any transaction involving a merger, consolidation, business combination, purchase or disposition of any amount of the Business or the Purchased Assets other than the transactions contemplated by this Agreement (an “ Acquisition Transaction ”), (ii) facilitate, encourage, solicit or initiate discussions, negotiations or submissions of proposals or offers in respect of an Acquisition Transaction, (iii) furnish or cause to be furnished, to any Person, any information concerning the Business or the Purchased Assets in connection with an Acquisition Transaction, or (iv) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing. 43  (b) Parent and Seller shall notify Purchaser orally and in writing promptly (but in no event later than 24 hours) after receipt of any proposal or offer from any Person other than Purchaser to effect an Acquisition Transaction or any request for non-public information relating to the Business or for access to the properties, books or records of the Business by any Person other than Purchaser. Such notice shall indicate the identity of the Person making the proposal or offer, or intending to make a proposal or offer or requesting non-public information or access to the books and records of the Business, the material terms of any such proposal or offer, or modification or amendment to such proposal or offer and copies of any written proposals or offers or amendments or supplements thereto. Seller shall keep Purchaser informed, on a current basis, of any material changes in the status and any material changes or modifications in the material terms of any such proposal, offer, indication or request. (c) Parent and Seller shall (and shall cause their Representatives to) immediately cease and cause to be terminated any existing discussions or negotiations with any Persons (other than Purchaser) conducted heretofore with respect to any of the foregoing. Parent and Seller agree not to release any third party from the confidentiality and standstill provisions of any agreement to which Seller or any of the Subsidiaries is a party, and, to the extent such agreements are not Purchased Contracts, to enforce such agreements on behalf of Purchaser at Purchaser’s request. 7.7 Non-Competition; Non-Solicitation; Confidentiality . (a) For a period from the date hereof until the date that is 18 months after the Closing Date, neither Parent nor Seller shall, and each shall cause its Affiliates not to, directly or indirectly, own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business or that otherwise competes with the Business other than the purchase, sale or retention of Mortgage Loans by Parent or Seller (a “Restricted Business ”) in North America; provided, that the restrictions contained in this Section 7.7(a) shall not restrict Parent or Seller from acquiring, directly or indirectly, less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business. In addition, for the avoidance of doubt, the restrictions set forth in this Section 7.7(a) or elsewhere in this Agreement shall in no way restrict Parent or Seller from (i) continuing to operate the businesses of Parent and Seller that are not included in the Business that is the subject of this Agreement or from engaging in any other business that does not constitute a Restricted Business, or (ii) entering into a definitive agreement with respect to, or consummating, the sale of Excluded Assets or the sale, merger, share exchange, consolidation or other business combination involving a change in control of Parent (regardless of whether the counterparty to any such definitive agreement engages in the Restricted Business); provided, that the purpose of such transaction is not to enter into the Restricted Business (either by Parent, Seller or the counterparty to any such agreement). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Purchaser, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever. (b) For a period from the date hereof to the third anniversary of the Closing Date, neither Parent nor Seller shall, and each shall cause their respective Affiliates not to: (i) cause, solicit, induce or encourage any employees involved in the Business who are or become employees of Purchaser or its Affiliates to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, broker, correspondent, supplier, or licensor of the Business (including any existing or former client of Seller or the Subsidiaries and any Person that becomes a client of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. 44  (c) Subject to Section 7.9 , from and after the date hereof, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld), neither Parent nor Seller shall, and each shall cause their respective Affiliates and such Affiliates’respective officers, and directors not to, directly or indirectly, disclose, reveal, divulge or communicate to any Person other than authorized officers, directors and employees of Purchaser or use or otherwise exploit for its own benefit or for the benefit of anyone other than the Purchaser, any Confidential Information (as defined below). Neither Parent nor Seller or their respective officers, directors and Affiliates shall have any obligation to keep confidential any Confidential Information if and to the extent disclosure thereof is specifically required by Law; provided, that in the event disclosure is required by applicable Law, Parent and Seller shall, to the extent reasonably possible, provide Purchaser with prompt notice of such requirement prior to making any disclosure so that Purchaser may seek an appropriate protective order. For purposes of this Section 7.7(c) , “ Confidential Information ” shall mean any confidential information with respect to the Purchased Assets or the Business, including, methods of operation, customers, customer lists, broker and correspondent lists, products, prices, fees, costs, Technology, inventions, Trade Secrets, know-how, Software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters. “ Confidential Information ” does not include, and there shall be no obligation hereunder with respect to, information that (i) is generally available to the public on the date of this Agreement or (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible thereunder. (d) The covenants and undertakings contained in this Section 7.7 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.7 will cause irreparable injury to the parties, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Therefore, Purchaser will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.7 . The rights and remedies provided by this Section 7.7 are cumulative and in addition to any other rights and remedies which Purchaser may have hereunder or at law or in equity. In the event that Purchaser were to seek damages for any breach of this Section 7.7 , the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (e) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party. 7.8 Preservation of Records . Seller and Purchaser each agrees that it shall preserve and keep the records held by it or its Affiliates relating to the Business for a period of three years from the Closing Date and shall make such records and personnel available to the other as may be reasonably required by such party in connection with, among other things, any insurance claims by, legal proceedings against or governmental investigations of Seller or any of its Affiliates or Purchaser or any of its Affiliates or in order to enable Seller or Purchaser to comply with its obligations under this Agreement and each other agreement, document or instrument contemplated hereby or thereby. In the event Seller wishes to destroy (or permit to be destroyed) such records after that time, Seller shall first give 90 days prior written notice to Purchaser and Purchaser shall have the right at its option and expense, upon prior written notice given to Seller within that 90 day period, to take possession of the records within 180 days after the date of such notice. 45  7.9 Publicity . 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 Parent or Seller), including any related question and answer guidelines prepared or used by Parent or Seller, 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 Law or by obligations pursuant to any listing agreement with or rules of any national securities exchange or interdealer quotation service or to prohibit Parent or Seller 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 Purchaser or its Affiliates. 7.10 Notice to Pipeline Loan Mortgagors and Others . Purchaser and Seller shall notify each Mortgagor under the Pipeline Loans of the sale of the Pipeline Loans in accordance with applicable Laws. As promptly as reasonably practicable after the Closing Date or at such other times as may be required by applicable Law, Purchaser and Seller shall jointly notify the appropriate casualty and title insurance companies and agents, escrow companies, credit reporting agencies, appraisers and other service providers that the Pipeline Loans have been transferred, and instruct such entities to deliver all payments, notices, insurance statements and reports to Purchaser after the Closing Date. 7.11 Use of Name . (a) Seller hereby agrees that upon the consummation of the transactions contemplated hereby, Purchaser will operate the Business under the name “The New York Mortgage Company, a division of Indymac Bank, FSB” and shall have the sole right to the use of the trade name “The New York Mortgage Company” and any other trade names used in the Business and all similar names or any service marks, trademarks, trade names, identifying symbols, logos, emblems or signs containing or comprising the phrase “New York Mortgage Company,” including any name or mark confusingly similar thereto (collectively, the “ Business Marks ”) and Seller shall not, and shall not permit any Affiliate to, use such name or any variation or simulation thereof. In furtherance thereof, as promptly as reasonably practicable but in no event later than 180 days following the Closing Date, subject to Section 7.11(b) , Parent and Seller shall remove, strike over or otherwise obliterate all Business Marks from all materials owned by Parent and Seller and used or displayed publicly including, without limitation, any sales and marketing materials, displays, signs, promotional materials and other materials. (b) Notwithstanding the provisions of Section 7.11(a) , (i) Parent may refer to the name “The New York Mortgage Company, LLC” in any form, report and document (including all exhibits thereto) filed with the SEC, to the extent counsel to Parent advises Parent that such references are necessary or advisable, (ii) Parent may continue to use the name “New York Mortgage Trust, Inc.” and all similar names and service marks, trademarks, trade names, identifying symbols, logos, emblems and signs containing or comprising the phrase “New York Mortgage Trust” (collectively, the “ Parent Marks ”) and the domain name (the “ Parent URL ”) until the first anniversary of the Closing Date, (iii) Purchaser agrees to notify Parent promptly following any determination by Purchaser to discontinue the use of any of the Business Marks and, not less than 90 days prior to the first anniversary of the Closing Date, to notify Parent of Purchaser’s intentions with respect to the continued use or discontinued use, as the case may be, of the Business Marks with respect to Purchaser’s future operation of the Business, (iv) if Purchaser notifies Parent pursuant to clause (iii) hereof of its intention to continue the use of the Business Marks beyond the first anniversary of the Closing Date with respect to Purchaser’s operation of the Business, Parent and Seller (and any successor entities) shall take appropriate steps to change the name of Parent (or any successor entity) to a name that does not include the Parent Marks and to discontinue the use of, and transfer to Purchaser ownership of, the Parent Marks prior to the first anniversary of the Closing Date, provided that Parent will retain the ownership of and the right to use the Parent URL for the limited purpose of directing interested parties to the Parent’s or any successor’s new Internet website and URL, and (v) if Purchaser notifies Parent pursuant to clause (iii) hereof of its intention to discontinue the use of the Business Marks beyond the first anniversary of the Closing Date with respect to Purchaser’s operation of the Business, then Parent and Seller (and any successor entities) shall be permitted to continue to own and use the Parent Marks. 46  7.12 Real Property Lease Portfolio . Following the date of this Agreement, Seller and Purchaser shall use their commercially reasonable efforts to mutually agree upon a true and complete list (the “ Final Lease Portfolio ”) of all real estate-related documents compromising the leases and obligations (as such leases and obligations may have been amended, supplemented or otherwise modified) related to the Seller Properties identified in Section 5.9(a) of the Disclosure Memorandum which Final Lease Portfolio shall be completed no later than 30 days after the date of this Agreement. Following the completion of such Final Lease Portfolio, Purchaser shall be entitled to remove any Seller Property from Section 5.9(a) of the Disclosure Memorandum and the related real property lease shall be deemed an Excluded Real Property Lease for all purposes under this Agreement if: (i) the information identified in Section 5.9(a) of the Disclosure Memorandum is materially inaccurate and such inaccuracy is reasonably likely to have an adverse effect on the intended operation of the Business at such location, (ii) the Final Lease Portfolio includes one or more documents with respect to the Seller Property that were not previously provided to Purchaser and which would materially increase the Liabilities to be assumed by Purchaser with respect to such property or would materially impair Purchaser’s intended operation of the Business at such location, or (iii) Purchaser and Seller are unable to mutually agree upon a true and complete list of the material real estate-related documents with respect to such Seller Property. ARTICLE VIII EMPLOYEES AND EMPLOYEE BENEFITS 8.1 Employment . (a) Transferred Employees . At least 15 Business Days prior to the Closing Date the parties shall mutually agree as to which of the Employees Purchaser may extend offers of employment to with such employment to commence immediately upon the Closing. At least five Business Days prior to the Closing, Purchaser shall deliver, in writing, an offer of employment (on an “at will” basis) to each of those mutually agreed upon Employees. Each such offer of employment shall be at comparable cash compensation levels as in effect immediately prior to the Closing Date. Such individuals who accept such offer by the Closing Date are hereinafter referred to as the “ Transferred Employees .” Subject to applicable Laws, on and after the Closing Date, Purchaser shall have the right to dismiss any or all Transferred Employees at any time, with or without cause, and to change the terms and conditions of their employment (including compensation and employee benefits provided to them). (b) Excluded Employees . Any Employee who is not offered employment by Purchaser prior to Closing or who does not accept an offer of employment by Purchaser and commence work with Purchaser immediately after the Closing, in each case pursuant to Section 8.1(a) , is hereinafter referred to as an “ Excluded Employee .” 47  (c) Purchaser shall provide employee benefits (including, without limitation, health, life and disability insurance, but specifically excluding stock options, restricted stock or other plans involving the potential issuance of securities or equity rights) to Transferred Employees that are no less favorable in the aggregate to such Transferred Employees and any dependents and beneficiaries of such Transferred Employees, as appropriate, than those provided to a similarly situated employee of Purchaser or its Affiliates who is not a Transferred Employee, taking into account the employee’s performance and geographic location. Except as specifically set forth in the immediately preceding sentence with respect to benefits for Transferred Employees, nothing in this Agreement shall be construed as restricting Purchaser, Seller or any affiliate of the Purchaser, in the exercise of its independent business judgment, in modifying any of the terms and conditions of the employment of any employee following the Closing or terminating the employment of any employee, including any Transferred Employee, following the Closing. (d) With respect to the benefit plans of Purchaser in which any Transferred Employee participates after the Closing (each, a “ Purchaser Benefit Plan ”), Purchaser shall cause each such Purchaser Benefit Plan to recognize the service of each such Transferred Employee prior to the Closing with Seller and its Affiliates as employment with Purchaser and its Affiliates for purposes of eligibility and benefit entitlement, but not for purposes of benefit accrual, under each such Purchaser Benefit Plan. With respect to medical, dental and other health and welfare Purchaser Benefit Plans covering Transferred Employees as required herein, Purchaser shall waive any waiting periods or limitations or exclusions relating to pre-existing conditions to the extent that such periods, limitations or exclusions were not applicable to or had been satisfied by such Transferred Employees immediately prior to the Closing Date under applicable Employee Benefit Plans of Seller or its Affiliate. (e) Purchaser shall not be responsible (and Seller shall be responsible) for any health and accident claims and expenses with respect to services provided to the Transferred Employees prior to the Closing. Seller shall not be responsible (and Purchaser shall be responsible) for any health and accident claims and expenses with respect to services provided to Transferred Employees from and after the Closing Date. Purchaser agrees to provide continuation coverage required by COBRA to all Transferred Employees and their covered beneficiaries who become entitled to COBRA coverage in connection with a “qualifying event” (as such term is defined in ERISA) that occurs after the Closing Date. Seller shall provide continuation coverage required by COBRA to all Transferred Employees and their covered beneficiaries who became entitled to COBRA coverage in connection with a “qualifying event” that occurred on or before the Closing Date. (f) Nothing in this Article VIII shall require Purchaser or Seller to provide or continue any specific plans, programs, policies or arrangements. Furthermore, Purchaser shall not assume any Employee Benefit Plan which is maintained, contributed to or required to be contributed to by Parent or Seller, and Seller shall retain all Liabilities and obligations for all benefits incurred, accrued, or legally committed to, if any, under such Employee Benefit Plans including, but not limited to, responsibility for all welfare plan claims incurred by Employees and all long or short-term disability claims arising from disabilities. For this purpose, a claim is incurred when the medical or other service giving rise to the claim is performed, except that in the case of death, a claim is incurred upon death. Seller shall retain all Liabilities and obligations to provide post-retirement health and life insurance benefits to former employees and Employees (and their covered spouses and dependents) incurred under the terms of the Employee Benefit Plans which is maintained, contributed to or required to be contributed to by Parent or Seller. 48  (g) The Transferred Employees will be eligible to participate in a plan established, maintained or adopted by Purchaser which is described in Section 401(k) of the Code (individually a “ Purchaser 401(k) Plan ”). To the extent permitted by the Purchaser 401(k) Plan, Section 401(k) of the Code and the regulations promulgated thereunder, Purchaser shall waive any applicable waiting period under the Purchaser 401(k) Plan with respect to the eligibility of such Transferred Employees to participate in such plan. To the extent permitted under Section 401(k) of the Code and the regulations promulgated thereunder, the Purchaser 401(k) Plan will provide that the Transferred Employees will have the right to make direct rollovers from Seller’s 401(k) plan to the applicable plan of their vested accounts in Purchaser’s 401(k) plan to the extent those rollovers constitute “eligible rollover distributions” within the meaning of Section 402(c)(4) of the Code. Such rollover distributions received by the Purchaser 401(k) Plan shall not include any participant loans. None of the assets involved in such rollover shall include shares of Parent stock. The Transferred Employees will receive credit under the Purchaser 401(k) Plan for all service with Seller or its Subsidiaries for purposes of satisfying any service requirement to participate in the applicable plan and any service requirement to earn a vested benefit under the applicable plan; however, such service shall not be credited for any other purpose under the Purchaser 401(k) Plan. (h) Parent and Seller acknowledge that the transactions contemplated by this Agreement will require Parent or Seller to make, and Parent and Seller agree to make, certain payments to Excluded Employees under the Employee Benefit Plans and existing employment agreements, change of control agreements and severance or similar Contracts to which Parent or Seller are a party. Seller shall use commercially reasonable efforts to enter into severance agreements in the form attached hereto as Exhibit D (the “ Severance Agreements ”) with the Employees listed in Section 8.1(h)(1) of the Disclosure Memorandum obligating Seller to pay the amounts set forth in Section 8.1(h)(1) of the Disclosure Memorandum. Subject to the calculation of the Purchase Price contained in Section 3.1 and to the Excess Severance Escrow Amount, Purchaser agrees to assume (i) the Severance Agreements between Seller and any Employees listed in Section 8.1(h)(1) of the Disclosure Memorandum that become Transferred Employees, and (ii) the agreements listed in Section 8.1(h)(2) of the Disclosure Memorandum. Purchaser shall have no obligation to make severance or similar payments to any Excluded Employee or to any Transferred Employee other than those identified in Section 8.1(h)(1) and Section 8.1(h)(2) of the Disclosure Memorandum. (i) Seller shall remain liable and pay, perform and discharge any and all employment, compensation and employee benefit liabilities, responsibilities and obligations of Seller and its Affiliates including, without limitation, any and all claims of employment discrimination under any local, state, or federal law or ordinance, including, without limitation, Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Americans with Disabilities Act of 1990; the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act of 1990; and Section 510 of ERISA, which Liabilities, responsibilities and obligations are incurred as the result of incidents occurring prior to the Closing, regardless of whether claims are made or reported prior to the Closing. In the event that Purchaser or its Affiliate or any benefit plan maintained by Purchaser or any of its Affiliates directly or indirectly incurs any costs, liabilities, obligations or legal expenses related to any such incidents occurring prior to the Closing, Seller shall reimburse and indemnify Purchaser and its Affiliates for any and all such costs, liabilities, obligations and expenses immediately upon the demand of Purchaser. (j) Purchaser shall become liable for and shall pay, perform and discharge any and all employment, compensation and employee benefit liabilities, responsibilities and obligations relating to the Transferred Employees including, without limitation, any and all claims of employment discrimination under any local, state, or federal law or ordinance, including, without limitation, Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Americans with Disabilities Act of 1990; the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act of 1990; and Section 510 of ERISA, which Liabilities, responsibilities and obligations are incurred as the result of incidents occurring following the Closing. 49  (k) Notwithstanding anything in this Agreement to the contrary, the terms of this Agreement shall not amend or have the effect of amending the terms of any Employee Benefit Plan or Purchaser Benefit Plan. 8.2 Personnel Files . From time to time from and after the Closing Date, Seller and the Subsidiaries shall transfer and deliver to Purchaser the personnel files, with the exception of any medical records, of any Transferred Employee who consents to such transfer of files in writing pursuant to a consent and release in form and substance reasonably satisfactory to Seller (each, an “Employee Release”). Seller and the Subsidiaries shall have no obligation to transfer or deliver to Purchaser any personnel files of any Transferred Employee unless and until Seller receives a duly executed Employee Release from such Transferred Employee. 8.3 Standard Procedure . Pursuant to the “Standard Procedure” provided in Section 4 of Revenue Procedure 96-60, 1996-2 C.B. 399, (i) Purchaser and Seller shall report on a predecessor/successor basis as set forth therein, (ii) Seller will not be relieved from filing a Form W-2 with respect to any Transferred Employees, and (iii) Purchaser will undertake to file (or cause to be filed) a Form W-2 for each such Transferred Employee only with respect to the portion of the year during which such Employees are employed by the Purchaser that includes the Closing Date, excluding the portion of such year that such Employee was employe d by Seller or the Subsidiaries. 8.4 Terminated Employees . At the Closing, Seller shall deliver to Purchaser a true and complete list of all Employees who suffered an “employment loss” as defined in WARN within 90 days prior to the Closing Date. 8.5 Retention Plans . Seller shall use commercially reasonable efforts to enter into retention bonus agreements prior to the Closing in the form attached hereto as Exhibit E with the loan officers listed in Section 8.5 of the Disclosure Memorandum requiring payment of the amount for each loan officer set forth beside each loan officer’s name in Section 8.5 of the Disclosure Memorandum. ARTICLE IX CONDITIONS TO CLOSING 9.1 Conditions Precedent to Obligations of Purchaser . The obligation of Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Purchaser in whole or in part to the extent permitted by applicable Law): (a) the representations and warranties of Seller set forth in this Agreement that are qualified as to materially or that contain a Material Adverse Effect qualifier shall be true and correct, and those not so qualified shall be true and correct in all material respects, as of the date of this Agreement and as of the Closing as though made at and as of the Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties that are qualified as to materiality or that contain a Material Adverse Effect qualifier shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date); (b) Parent and Seller shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by it prior to the Closing Date, and Purchaser shall have received copies of such corporate resolutions and other documents evidencing the performance thereof as Purchaser may reasonably request; 50  (c) there shall not have been or occurred any event, change, occurrence or circumstance that has had or has a reasonable likelihood of having a Material Adverse Effect since the Balance Sheet Date; (d) Purchaser shall have received a certificate signed by the Chief Executive Officer and Chief Financial Officer of Seller, each in form and substance reasonably satisfactory to Purchaser, dated the Closing Date, to the effect that each of the conditions specified above in Sections 9.1(a)-(c) have been satisfied; (e) no Legal Proceedings shall have been instituted or threatened or claim or demand made against Seller or Purchaser seeking to restrain or prohibit or to obtain substantial damages with respect to the consummation of the transactions contemplated hereby, and there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby; (f) Seller shall have obtained (i) any Consent, approval or authorization with respect to any significant Real Property Lease required to be obtained or made in connection with the execution and delivery of this Agreement or the performance of the transactions contemplated herein, (ii) any Consent, approval or authorization of any Person with respect to any Purchased Contract or Purchased Asset that is significant to the Business as currently conducted and that is required to be obtained or made in connection with the execution and delivery of this Agreement or the performance of the transactions contemplated herein, (iii) any other Consent, approval, Order or authorization of, or registration, declaration or filing with, any Governmental Body required to be obtained or made in connection with the execution and delivery of this Agreement or the performance of the transactions contemplated herein, and (iv) all Consents, waivers and approvals under all Antitrust Laws and those Consents, waivers and approvals referred to in Section 5.3(b) in a form and substance satisfactory to Purchaser; (g) Seller shall have provided Purchaser with one or more affidavits of non-foreign status of Seller and the Subsidiaries that complies with Section 1445 of the Code (a “ FIRPTA Affidavit ”); (h) Seller shall have delivered, or caused to be delivered, to Purchaser a duly executed bill of sale in the form of Exhibit F ; (i) Seller shall have delivered, or caused to be delivered, to Purchaser a duly executed assignment and assumption agreement in the form of Exhibit G and duly executed assignments of the registrations and applications included in the Purchased Intellectual Property, in a form reasonably acceptable to Purchaser and suitable for recording in the U.S. Patent and Trademark Office, U.S. Copyright Office or equivalent foreign agency, as applicable, and general assignments of all other Purchased Intellectual Property; (j) Seller shall have delivered, or caused to be delivered, to Purchaser, opinions of the general counsel of Parent, Hunton & Williams LLP, counsel to Parent and Seller, and Venable LLP, as special counsel to Parent as to matters of Maryland law, in substantially the form of Exhibit H ; (k) Seller shall have delivered, or caused to be delivered, to Purchaser a duly executed Transition Services Agreement; 51  (l) Each of the individuals listed in Section 9.1(l) of the Disclosure Memorandum shall have entered into employment agreements with Purchaser and such employment agreements shall be in full force and effect as of the Closing; (m) Employees of Seller employed in a sales function (including loan officers and production managers) representing the threshold amount set forth in Section 9.1(m) of the Disclosure Memorandum shall have agreed to accept employment with Purchaser and become Transferred Employees. (n) Seller shall have delivered, or caused to be delivered, to Purchaser (i) certified copies of the resolutions of the Board of Directors of Seller and Parent, in each case authorizing and approving this Agreement and the consummation of the transactions contemplated hereby, (ii) a copy of the articles of organization or any other similar organizational or governing document of Seller and each Subsidiary certified as of a recent date by the Secretary of State of the jurisdiction of incorporation or organization of each such Person, (iii) a copy of the bylaws, partnership or limited liability company agreement, or any other similar organizational or governing document of Seller and each Subsidiary certified by the Secretary of Seller and each Subsidiary, and (iv) certificates of good standing for Seller and each Subsidiary from the Secretary of State of the state of their respective incorporation or organization, in each case dated not more than ten days prior to the Closing Date; (o) Seller shall have delivered, or caused to be delivered, to Purchaser the Escrow Agreement, duly executed by Seller and the Escrow Agent; and (p) Seller shall have delivered, or caused to be delivered, to Purchaser such other documents as Purchaser may reasonably request in order to consummate the transactions contemplated under this Agreement. 9.2 Conditions Precedent to Obligations of Seller . The obligations of Seller to consummate the transactions contemplated by this Agreement are subject to the fulfillment, prior to or on the Closing Date, of each of the following conditions (any or all of which may be waived by Seller in whole or in part to the extent permitted by applicable Law): (a) the representations and warranties of Purchaser set forth in this Agreement that are qualified as to materiality or that contain a Material Adverse Effect qualifier shall be true and correct, and those not so qualified shall be true and correct in all material respects, as of the date of this Agreement and as of the Closing as though made at and as of the Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties that are qualified as to materially or that contain a Material Adverse Effect qualifier shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date); (b) Purchaser shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by Purchaser on or prior to the Closing Date; (c) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby; (d) Purchaser shall have obtained any other Consent, approval, Order or authorization of, or registration, declaration or filing with, any Governmental Body, including the OTS and FDIC (if applicable), required to be obtained or made in connection with the execution and delivery of this Agreement or the performance of the transactions contemplated herein; 52  (e) Purchaser shall have delivered, or caused to be delivered, to Seller evidence of the wire transfer referred to in Section 3.3 ; (f) Purchaser shall have delivered, or caused to be delivered, to Seller the Escrow Agreement, duly executed by Purchaser; and (g) Purchaser shall have delivered, or caused to be delivered, to Seller a duly executed assignment and assumption agreement in the form attached hereto as Exhibit G . ARTICLE X INDEMNIFICATION 10.1 Survival of Representations and Warranties . The representations and warranties of the parties contained in Articles V and VI of this Agreement or any Seller Document or Purchaser Document shall survive the Closing through and including the second anniversary of the Closing Date; provided, that the representations and warranties (a) of Seller set forth in Sections 5.1 (organization), 5.2 (authorization), 5.6 (title) and 5.22 (financial advisors) shall survive the Closing indefinitely, (b) of Seller set forth in Sections 5.13 (employee benefits), 5.17 (environmental matters) and 5.19 (loan origination) shall survive the Closing through and including the third anniversary of the Closing Date, (c) of Seller set forth in Section 5.8 (taxes) shall survive the Closing until sixty (60) days following the expiration of the applicable statute of limitations with respect to the particular matter that is the subject matter thereof and (d) of Purchaser set forth in Sections 6.1 (organization), 6.2 (authorization) and 6.5 (financial advisors) shall survive the Closing indefinitely (in each case, the “ Survival Period ”); provided, further, that any obligation to indemnify and hold harmless shall not terminate with respect to any Losses as to which the Person to be indemnified shall have given notice (stating in reasonable detail the basis of the claim for indemnification) to the indemnifying party in accordance with Section 10.3(a) before the termination of the applicable Survival Period. Unless a specified period is set forth in this Agreement (in which event such specified period will control), the covenants and other agreements in this Agreement will survive the Closing and remain in effect indefinitely. 10.2 Indemnification . (a) Subject to Sections 10.1 , 10.4 and 10.5 , Seller hereby agrees to indemnify and hold Purchaser and its directors, officers, employees, Affiliates, stockholders, agents, attorneys, representatives, successors and assigns (collectively, the “ Purchaser Indemnified Parties ”) harmless from and against: (i) any and all losses, Liabilities, claims, demands, judgments, obligations, damages (including incidental and consequential damages), costs and expenses (including reasonable costs of investigation and reasonable defense and attorneys’ and other professionals’ fees incurred in connection with the investigation and defense of any Third Party Claim and any other indemnification claim pursuant to which an indemnified party receives a payment or payments from the indemnifying party for such indemnification claim) (individually, a “ Loss ” and, collectively, “ Losses ”) based upon, attributable to or resulting from the failure of any of the representations or warranties of Parent or Seller set forth in this Agreement or in any Seller Document to be true and correct in all respects at the date hereof and at the Closing Date; 53  (ii) any and all Losses based upon, attributable to or resulting from the breach of any covenant or other agreement on the part of Parent or Seller under this Agreement or any Seller Document; (iii) any and all Losses attributable to any Transferred Employee resulting from or based upon (A) any employment-related Liability (statutory or otherwise) with respect to employment or termination of employment on or prior to the Closing Date, (B) except as set forth in the Transition Services Agreement, any Liability relating to, arising under or in connection with any Employee Benefit Plan, including any Liability under COBRA, whether arising prior to, on or within three years after the Closing Date and (C) any liability under WARN; (iv) any Liabilities resulting from payment by Purchaser of retention payments pursuant to the retention bonus agreements contemplated by Section 8.5 in excess of the aggregate payments set forth in Section 8.5 of the Disclosure Memorandum; and (v) any and all Losses arising out of, based upon or relating to any Excluded Asset, Excluded Liability or Excluded Employee or to Seller’s operation of the Business prior to the Closing. (b) Subject to Sections 10.1 and 10.4 , Purchaser hereby agrees to indemnify and hold Seller and its Affiliates, stockholders, agents, attorneys, representatives, successors and permitted assigns (collectively, the “ Seller Indemnified Parties ”) harmless from and against: (i) any and all Losses based upon, attributable to or resulting from the failure of any of the representations or warranties of Purchaser set forth in this Agreement or any Purchaser Document, to be true and correct at the date hereof and at the Closing Date; (ii) any and all Losses based upon, attributable to or resulting from the breach of any covenant or other agreement on the part of Purchaser under this Agreement or any Purchaser Document; and (iii) any and all Losses arising out of, based upon or relating to any Assumed Liability; and (iv) any and all Losses arising out of, based upon or relating to Purchaser’s operation of the Business, any Purchased Asset, Assumed Liability or Transferred Employee, in each case arising after the Closing. (c) The right to indemnification or any other remedy provided for herein based on representations, warranties, covenants and agreements in this Agreement shall not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or agreements, will not affect the right to indemnification or any other remedy provided for herein based on such representations, warranties, covenants and agreements. (d) The rights to indemnification set forth in this Section 10.2 are subject to the terms, conditions, procedures and limitations set forth in this Article X and will be the exclusive remedy of each Party against the other for money damages with respect to this Agreement or any of the transactions contemplated hereby; provided, that the limitations (including the immediately preceding clause providing for exclusivity of remedy) set forth in this Article X shall not apply to any Losses caused by the willful misconduct, fraud, or bad faith of any indemnifying party, and the indemnifying party shall be liable for all Losses with respect thereto. 54  10.3 Indemnification Procedures . (a) A claim for indemnification for any matter not involving a third party claim may be asserted by written notice to the party from whom indemnification is sought, which notice shall include a reasonable description of the basis for the claim. (b) In the event that any Legal Proceedings shall be instituted or that any claim or demand shall be asserted by any third party in respect of which payment may be sought under Section 10.2 hereof (“ Third Party Claim ”), the indemnified party shall reasonably and promptly cause written notice of the assertion of any Third Party Claim of which it has knowledge which is covered by this indemnity to be forwarded to the indemnifying party. The indemnifying party shall have the right, at its sole expense, to be represented by counsel of its choice, which must be reasonably satisfactory to the indemnified party, and to defend against, negotiate, settle or otherwise deal with any Third Party Claim which relates to any Losses for which indemnification is sought hereunder. If the indemnifying party elects to defend against, negotiate, settle or otherwise deal with any Third Party Claim which relates to any Losses for which indemnification is sought hereunder, it shall within ten days (or sooner, if the nature of the Third Party Claim so requires) notify the indemnified party of its intent to do so. If the indemnifying party elects not to defend against, negotiate, settle or otherwise deal with any Third Party Claim which relates to any Losses for which indemnification is sought hereunder, fails to notify the indemnified party of its election as herein provided the indemnified party may then, but only then, defend against, negotiate, settle or otherwise deal with such Third Party Claim. If the indemnified party defends any Third Party Claim, then the indemnifying party shall reimburse the indemnified party for the reasonable expenses of defending such Third Party Claim upon submission of periodic bills. If the indemnifying party shall assume the defense of any Third Party Claim, the indemnified party may participate, at his or its own expense, in the defense of such Third Party Claim; provided, that such indemnified party shall be entitled to participate in any such defense with separate counsel at the expense of the indemnifying party if (i) so requested by the indemnifying party to participate or (ii) in the reasonable opinion of counsel to the indemnified party a conflict or potential conflict exists between the indemnified party and the indemnifying party that would make such separate representation advisable; and provided, further, that the indemnifying party shall not be required to pay for more than one such counsel (and any appropriate local counsel) for all indemnified parties in connection with any Third Party Claim. The parties hereto agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Third Party Claim. Notwithstanding anything in this Section 10.3 to the contrary, neither the indemnifying party nor the indemnified party shall, without the written consent of the other party, settle or compromise any Third Party Claim or permit a default or consent to entry of any judgment unless the claimant and such party provide to such other party an unqualified release from all liability in respect of the Third Party Claim. Notwithstanding the foregoing, if a settlement offer solely for money damages is made by the applicable third party claimant, and the indemnifying party notifies the indemnified party in writing of the indemnifying party’s willingness to accept the settlement offer and, subject to the applicable limitations of Section 10.4 , pay the amount called for by such offer, and the indemnified party declines to accept such offer, the indemnified party may continue to contest such Third Party Claim, free of any participation by the indemnifying party, and the amount of any ultimate liability with respect to such Third Party Claim that the indemnifying party has an obligation to pay hereunder shall be limited to the lesser of (A) the amount of the settlement offer that the indemnified party declined to accept plus the Losses of the indemnified party relating to such Third Party Claim through the date of its rejection of the settlement offer or (B) the aggregate Losses of the indemnified party with respect to such Third Party Claim. If the indemnifying party makes any payment on any Third Party Claim, the indemnifying party shall be subrogated, to the extent of such payment, to all rights and remedies of the indemnified party to any insurance benefits or other claims of the indemnified party with respect to such Third Party Claim. 55  (c) After any final judgment or award shall have been rendered by a Governmental Body of competent jurisdiction and the expiration of the time in which to appeal therefrom, or a settlement shall have been consummated, or the indemnified party and the indemnifying party shall have arrived at a mutually binding agreement with respect to an Third Party Claim hereunder, the indemnified party shall forward to the indemnifying party notice of any sums due and owing by the indemnifying party pursuant to this Agreement with respect to such matter and the indemnifying party shall be required to pay all of the sums so due and owing to the indemnified party by wire transfer of immediately available funds within five Business Days after the date of such notice; provided, that Purchaser may cause a distribution from the Escrow Amount maintained by the Escrow Agent pursuant to Section 3.5 of this Agreement and the Escrow Agreement up to the Indemnification Escrow Amount in partial or total satisfaction of one or more indemnification payments due from Seller to Purchaser under this Article X . (d) The failure of the indemnified party to give reasonably prompt notice of any Third Party Claim shall not release, waive or otherwise affect the indemnifying party’s obligations with respect thereto except to the extent that the indemnifying party can demonstrate actual loss and prejudice as a result of such failure. (e) In the event that Purchaser repurchases any Pipeline Loans sold to investors or any other Person by Purchaser under facts or circumstances in which Seller would be obligated to indemnify Purchaser pursuant to this Agreement, then Seller may elect to repurchase such Pipeline Loans from Purchaser instead of indemnifying Purchaser pursuant to this Article X . To exercise its right to repurchase any Pipeline Loan under this Section 10.3(e) , Seller must provide Purchaser with written notice of such election within five Business Days of receipt of notice from Purchaser pursuant to this Section 10.3 of an indemnification claim for which Purchaser is seeking indemnification from Seller. The purchase price for any Pipeline Loan which Seller elects to repurchase from Purchaser pursuant to this Section 10.3(e) shall be equal to the sum of (i) the purchase price paid by Purchaser to repurchase such Pipeline Loan plus (ii) Purchaser’s actual out-of-pocket costs and expenses for holding, servicing and administering such Pipeline Loan prior to the repurchase of such Pipeline Loan by Seller less (iii) any principal or interest paid by the borrower to Purchaser with respect to such Pipeline Loan. 10.4 Limitations on Indemnification . (a) Seller shall not have any liability under Section 10.2(a)(i) and Purchaser shall not have any liability under Section 10.2(b)(i) unless and until the aggregate amount of Losses to the indemnified parties finally determined to arise thereunder based upon, attributable to or resulting from the failure of any of the representations or warranties (other than the representations and warranties set forth in Sections 5.2 (authorization), 5.6 (title), 5.19(b) and (c) (loan originations), 5.22 (financial advisors), 6.2 (authorization) and 6.5 (financial advisors)) to be true and correct exceeds $250,000 (the “ Deductible ”) and, in such event, the indemnifying party shall be required to pay only the amount of such Losses that exceeds the Deductible. No claim for Losses may be made for indemnification or aggregated with any other claim for indemnification pursuant to Section 10.2(a)(i) or Section 10.2(b)(i) if the amount of such claim does not exceed $7,500 (the “ Per Item Deductible ”); provided, that the Per Item Deductible shall not apply to any claims for indemnification pursuant to Section 10.2(a)(i) or Section 10.2(b)(i) based upon, attributable to or resulting from the failure of any of the representations and warranties set forth in Sections 5.2 (authorization), 5.6 (title), 5.19(b) and (c) (loan originations), 5.22 (financial advisors), 6.2 (authorization) and 6.5 (financial advisors) to be true and correct in all respects at the date hereof and at the Closing Date. 56  (b) No claim for Losses may be made for indemnification or aggregated with any other claim for indemnification by Purchaser under Section 10.2(a)(ii) or Seller under Section 10.2(b)(ii) if the amount of such claim does not exceed the Per Item Deductible (other than the covenants, agreements and obligations set forth in Sections 2.6 (further conveyances and assumptions; consents of third parties), 2.7 (bulk sales laws), 7.5 (further assurances), 7.6 (no shop), and 7.7 (non-competition; non-solicitation; confidentiality)). (c) Neither Seller nor Purchaser shall be required to indemnify, any Person under Section 10.2(a)(i) or 10.2(b)(i) for an aggregate amount of Losses exceeding 10% of the Purchase Price (the “ Cap ”) in connection with Losses related to the breach of any of the representations and warranties of Seller or Purchaser in Articles V and VI , respectively; provided, that the Cap limitation shall not apply to Losses related to the breach of any representation or warranty contained in Sections 5.2 (authorization), 5.6 (title), 5.19(b) and (c) (loan origination), 5.22 (financial advisors), 6.2 (authorization) and 6.5 (financial advisors). Neither Seller nor Purchaser shall be required to indemnify, any Person under Sections 10.2(a)(ii) or 10.2(b)(ii) for breaches of the covenants, agreements or obligations set forth in Section 7.3 (consents) (but only to the extent that any such breach occurred after the Closing), and Sections 7.8 (preservation of records), 7.9 (publicity), 7.10 (notice to pipeline loan mortgagors and others) and 7.11 (use of name) for an aggregate amount of Losses exceeding 25% of the Purchase Price. (d) For purposes of (i) determining whether any representation or warranty was true and correct on the date hereof or as of the Closing Date, (ii) determining whether any covenant, agreement or obligation under this Agreement was breached, or (iii) calculating Losses hereunder, any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be disregarded. 10.5 Tax Treatment of Indemnity Payments . Seller and Purchaser agree to treat any indemnity payment made pursuant to this Article X as an adjustment to the Purchase Price for all Tax purposes. Notwithstanding the treatment required by the preceding sentence, the Liability of the indemnifying party with respect to any Losses shall be reduced by the Tax benefit actually realized and any insurance proceeds received by the indemnified party as a result of any Losses upon which an indemnification claim is based, and shall include any Tax detriment actually suffered by the indemnified party as a result of such Losses and any payment under this Article X . ARTICLE XI TAXES 11.1 Transfer Taxes . Seller and Purchaser shall share equally any and all sales, use, stamp, documentary, filing, recording, transfer, real estate transfer, stock transfer, gross receipts, registration, duty, securities transactions or similar fees or taxes or governmental charges (together with any interest or penalty, addition to tax or additional amount imposed) as levied by any Taxing Authority in connection with the transactions contemplated by this Agreement (collectively, “ Transfer Taxes ”), regardless of the Person liable for such Transfer Taxes under applicable Law. Seller shall timely file or caused to be filed, with the cooperation of Purchaser, all necessary documents (including all Tax Returns) with respect to Transfer Taxes. 11.2 Prorations . All real property taxes, personal property taxes, or ad valorem obligations and similar recurring taxes and fees on the Purchased Assets for taxable periods beginning before, and ending after, the Closing Date, shall be prorated between Purchaser and Sellers as of the Closing Date. Seller shall be responsible for all such taxes and fees on the Purchased Assets accruing during any period up to and including the Closing Date. Purchaser shall be responsible for all such taxes and fees on the Purchased Assets accruing during any period after the Closing Date. With respect to Taxes described in this Section 11.2 , unless otherwise required by Law, Seller shall timely file all Tax Returns due before the Closing Date with respect to such Taxes and Purchaser shall prepare and timely file all Tax Returns due after the Closing Date with respect to such Taxes. If one party remits to the appropriate Taxing Authority payment for Taxes which are subject to proration under this Section 11.2 and such payment includes the other party’s share of such Taxes, such other party shall promptly reimburse the remitting party for its share of such Taxes upon demand therefor, accompanied by reasonably satisfactory evidence of such payment. 57  11.3 Cooperation on Tax Matters . Purchaser and Seller shall furnish or cause to be furnished to each other, as promptly as practicable, such information and assistance relating to the Purchased Assets and the Assumed Liabilities as is reasonably necessary for the preparation and filing of any Tax Return, claim for refund or other filings relating to Tax matters, for the preparation for any Tax audit, for the preparation for any Tax protest, and for the prosecution or defense of any suit or other proceeding relating to Tax matters. ARTICLE XII MISCELLANEOUS 12.1 Expenses . Except as otherwise provided in this Agreement, each of Seller and Purchaser shall bear its own expenses incurred in connection with the negotiation and execution of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the consummation of the transactions contemplated hereby and thereby. 12.2 Submission to Jurisdiction; Consent to Service of Process; Waiver of Jury Trial . (a) The parties hereto hereby irrevocably submit to the non-exclusive jurisdiction of any federal or state court located within the State of California over any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby and each party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action proceeding related thereto may be heard and determined in such courts. The parties hereby irrevocably waive, to the fullest extent permitted by applicable Law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. Each of the parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. (b) EACH PARTY HERETO HEREBY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY DOCUMENT REFERRED TO IN THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12.2. 58  (c) Each of the parties hereto hereby consents to process being served by any party to this Agreement in any suit, action or proceeding by the delivery of a copy thereof in accordance with the provisions of Section 12.5 . 12.3 Entire Agreement; Amendments and Waivers . This Agreement (including the schedules and exhibits hereto and the Disclosure Memorandum and Purchaser Disclosure Memorandum) represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof. This Agreement can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed by the party against whom enforcement of any such amendment, supplement, modification or waiver is sought. No action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by Law. 12.4 Governing Law . This Agreement shall be governed by and construed in accordance with the law of the State of New York applicable to contracts made and performed in such State. 12.5 Notices . All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission) or (iii) one Business Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and facsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this provision): If to Parent or Seller, to: The New York Mortgage Company, LLC 1301 Avenue of the Americas, 7th Floor New York, NY 10019 Facsimile: 212-621-4523 Attention: A. Bradley Howe, general Counsel With a copy to: Hunton & Williams LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, VA 23219-4074 Facsimile: 804-343-4543 Attention: Daniel M. LeBey 59  If to Purchaser, to: IndyMac Bank, F.S.B. 888 East Walnut Street Pasadena, CA 91101 Facsimile: 626-432-8949 Attention: Donald D. Bundy, Mortgage Bank General Counsel With a copy to: Alston & Bird LLP The Atlantic Building 950 F Street, N.W. Washington, D.C. 20004 Facsimile: 202-756-3333 Attention: Michael P. Reed 12.6 Severability . If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. 12.7 Binding Effect; Assignment . This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement except as provided below. No assignment of this Agreement or of any rights or obligations hereunder may be made by either Seller or Purchaser (by operation of law or otherwise) without the prior written consent of the other parties hereto and any attempted assignment without the required consents shall be void; provided, that Purchaser may assign this Agreement and any or all rights or obligations hereunder (including, without limitation, Purchaser’s rights to purchase the Purchased Assets and assume the Assumed Liabilities and Purchaser’s rights to seek indemnification hereunder) to any Affiliate of Purchaser, or any Person to which Purchaser or any of its Affiliates proposes to sell all or substantially all of the assets relating to the Business. Upon any such permitted assignment, the references in this Agreement to Purchaser shall also apply to any such assignee unless the context otherwise requires. 12.8 Knowledge . When references are made in this Agreement to information being to the “ Knowledge of Parent ” or “Knowledge of Seller ” or similar language, such knowledge shall refer to the knowledge of the individuals listed in Section 12.8 of the Disclosure Memorandum. Such individuals shall be deemed to have “ knowledge ” of a particular fact or other matter if: (x) such individual is actually aware of such fact or other matter; or (y) a prudent individual could be expected to discover or otherwise become aware of such fact or other matter in the course of conducting a reasonably comprehensive investigation concerning the existence of such fact or other matter. 60  12.9 Disclosure Memorandum . (a) Concurrently with the execution and delivery of this Agreement, Parent and Seller are delivering to Purchaser a disclosure memorandum (the “ Disclosure Memorandum ”) that sets forth all of the items that are necessary or appropriate either in response to an express disclosure requirement contained in a provision hereof or as an exception to one or more representations or warranties contained in Article V or to one or more of the covenants of Seller contained in this Agreement; provided, that the mere inclusion of an item in the Disclosure Memorandum as an exception to a representation or warranty shall not be deemed an admission by Parent or Seller that such item represents a material exception or event, state of facts, circumstance, development, change or effect or that such item is reasonably likely to have or result in a Material Adverse Effect; provided, further, that any disclosures made with respect to a section or subsection of this Agreement shall be deemed to qualify such sections or subsections specifically referenced or cross-referenced, as well as other sections or subsections to the extent such disclosure is readily apparent as constituting disclosure in respect of such other sections or subsections. (b) In the event of an inconsistency between the statements in the body of this Agreement and those in such Disclosure Memorandum (other than an exception expressly set forth in the Disclosure Schedule with respect to a specifically identified section or subsection), the statements in the body of this Agreement will control. 12.10 Parent Agreements and Obligations . (a) Parent hereby agrees to be jointly and severally liable for the prompt and complete performance of Seller’s obligations under this Agreement, including its indemnification obligations under Article X , subject to the same terms, conditions, procedural requirements and limitations that apply to Seller’s obligations hereunder, as if Parent had delivered or made the same representations, warranties, covenants and agreements that Seller has delivered or made hereunder, on a joint and several basis. Parent’s obligations hereunder are unconditional (other than with respect to the conditions applicable to Seller hereunder) irrespective of any circumstances which might otherwise constitute, by operation of law, a discharge of a guarantor and it shall not be necessary for Purchaser to institute or exhaust any remedies or causes of action against Seller or any other Person as a condition to the obligations of Parent hereunder. (b) Parent hereby irrevocably waives any right to receive a separate formal notification or to request that any other formalities or protest be accomplished as a condition to its obligations hereunder, and expressly undertakes not to exercise, and waives to the fullest extent lawful, any rights that it may have under applicable law. 12.11 Non-Recourse . No past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney or representative of Purchaser or its Affiliates shall have any liability for any obligations or liabilities of Purchaser under this Agreement or the Purchaser Documents of or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby and thereby. 12.12 Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. [Signatures on following page] 61  IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the date first written above. INDYMAC BANK, F.S.B. By: /s/ Michael W. Perry Name: Michael W. Perry Title: Chairman and Chief Executive Officer THE NEW YORK MORTGAGE COMPANY, LLC By: /s/ Steven R. Mumma Name: Steven R. Mumma Title: Chief Financial Officer NEW YORK MORTGAGE TRUST, INC. By: /s/ David A. Akre Name: David A. Akre Title: Co-Chief Executive Officer                 Exhibit 12.1 Computation of Ratios Computation of Ratios of Earnings to Combined Fixed Charges and Preferred Dividends Years ended December 31, (dollar amount in thousands) 2006 2005 2004 2003 2002 Earnings: Pretax income (loss) from continuing operations (23,525 ) (13,889 ) 3,688 13,726 3,750 Fixed Charges 72,939 60,104 16,012 3,266 1,673 Distributed income of equity investees 11,524 17,268 7,605 21,565 1,589 Total Earnings 60,938 63,483 27,305 38,557 7,012 Fixed Charges: Interest Expense 72,939 60,104 16,012 3,266 1,673 Amortized premiums & discounts related to indebtedness - - - - - Capitalized expenses related to indebtedness - - - - - Capitalized Interest - - - - - Preference security dividends - - - - - Total Fixed Charges 72,939 60,104 16,012 3,266 1,673 Ratio of earnings to fixed charges 0.84 1.06 1.71 11.81 4.19 Preference security dividends - - - - - Ratio of earnings to fixed charges and preference security dividends 0.84 1.06 1.71 11.81 4.19 Computation of Earnings to Fixed Charges Years ended December 31, (dollar amount in thousands) 2006 2005 2004 2003 2002 Fixed Charges: + Interest Expense 72,939 60,104 16,013 3,266 1,673 + Capitalized Interest - - - - - + Amortized premiums & discounts related to indebtedness - - - - - + Capitalized expenses related to indebtedness - - - - - + Interest within rent expense - - - - - + Preference security dividends - - - - - Total Fixed Charges 72,939 60,104 16,013 3,266 1,673 Earnings: + Pretax income from continuing operations (23,525 ) (13,889 ) 3,688 13,726 3,750 + Fixed Charges 72,939 60,104 16,013 3,266 1,673 + Amortization of capitalized interest - - - - - + Distributed income of equity investees 11,524 17,268 7,605 21,565 1,589 + Pre-tax losses of equity investees - - - - - - Interest capitalized - - - - - - Preference security dividends of consolidated subsidiaries - - - - - - Minority interest in pre-tax income of subs… - - - - - Total Earnings 60,938 63,483 27,305 38,557 7,012 Ratio of Earnings to Fixed Charges 0.84 1.06 1.71 11.80 4.19 If ratio is less than 1, disclose dollar amount of deficiency 12,001 - - - - Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in Registration Statement No. 333-127400 of New York Mortgage Trust, Inc. on Form S-3/A and Registration Statements No. 333-117524 and No. 333-137987 of New York Mortgage Trust, Inc. on Form S-8 of our reports dated April 2, 2007, relating to the financial statements of New York Mortgage Trust, Inc. and subsidiaries and to management's report of the effectiveness of internal control over financial reporting (which report expresses an adverse opinion on the effectiveness of the Company’s internal control over financial reporting because of a material weakness) appearing in the Annual Report on Form 10-K of New York Mortgage Trust, Inc. and subsidiaries for the year ended December 31, 2006. /s/ DELOITTE AND TOUCHE, LLP New York, New York April 2, 2007  Exhibit 21.1 List of Significant Subsidiaries Name State of Incorporation Names under which it does Business The New York Mortgage Company, LLC New York MortgageLine.com, Princeton Mortgage Consultants New York Mortgage Trust 2005-1 Delaware n/a New York Mortgage Trust 2005-2 Delaware n/a New York Mortgage Trust 2005-3 Delaware n/a New York Mortgage Trust 2006-1 Delaware n/a New York Mortgage Funding, LLC Delaware n/a  Exhibit 31.1 CERTIFICATION PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, David A. Akre, certify that: 1. I have reviewed this annual report on Form 10-K of New York Mortgage Trust, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: April 2, 2007 /s/ David A. Akre David A. Akre Co-Chief Executive Officer (Principal Executive Officer)  Exhibit 31.2 CERTIFICATION PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Steven R. Mumma, certify that: 1. I have reviewed this annual report on Form 10-K of New York Mortgage Trust, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: April 2, 2007 /s/ Steven R. Mumma Steven R. Mumma President, Co-Chief Executive Officer and Chief Financial Officer (Principal Financial Officer)   EXHIBIT 32.1 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annaul Report of New York Mortgage Trust, Inc, (the “Company”) on Form 10-K for the year ended December 31, 2006, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned hereby certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to section 906 of the Sarbanes-Oxley Act of 2002, that: (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request. Date: April 2, 2007 /s/ David A. Akre David A. Akre Co-Chief Executive Officer  EXHIBIT 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report of New York Mortgage Trust, Inc., (the “Company”) on Form 10-K for the year ended December 31, 2006, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned hereby certifies, pursuant to 18 U.S.C. § 1350, as adopted pursuant to section 906 of the Sarbanes-Oxley Act of 2002, that: (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request. Date: April 2, 2007 /s/ Steven R. Mumma Steven R. Mumma President, Co-Chief Executive Officer and Chief Financial Officer 

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