ASSET PURCHASE AGREEMENT

Disclosure Memorandum

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 ”).

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:

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.

“ 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.

“ 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.

“ 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).

“ 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.

“ 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.

“ 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:

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.

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;

(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 ”);

(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;

(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.

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 .

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.

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;

(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.

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.

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.

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.

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).

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.

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:

(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;

(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 a