Exhibit 10.18


 


MASTER REPURCHASE
AGREEMENT


 


This MASTER REPURCHASE AGREEMENT, dated as of December 21,
2007 (this “Agreement”), is by and between SIRVA MORTGAGE,
INC., an Ohio corporation (the “Seller”
or “Sirva”), and COLONIAL BANK, N.A., a national banking association (“Buyer” or “Colonial Bank”).


 


1              Applicability


 


Seller desires to obtain,
and Buyer agrees to provide, a revolving mortgage loan repurchase facility
pursuant to which, from time to time and upon the terms and conditions herein
set forth, the parties hereto may enter into transactions in which the Seller
sells, transfers, assigns and conveys to the Buyer all of the Seller’s right,
title and interest in and to certain Eligible Loans (as defined in Section 2.2),
against the transfer of funds by the Buyer, subject to a simultaneous agreement
by the Seller to repurchase from the Buyer such Eligible Loans (i) upon
written notice to the Buyer by the Seller, (ii) on a prescribed date in
the future, (iii) upon the occurrence of prescribed events or (iv) on
the Termination Date (as defined in Section 2.2), all as more fully
set forth herein (each such transaction, herein, a “Transaction”).


 


The parties hereby
specifically declare that it is their intention that this Agreement and all of
the purchases and repurchases of Eligible Loans made pursuant hereto are to be
treated as repurchase transactions, a repurchase agreement or priority contract
under the Title 11 of the United States Code, as amended (the “Bankruptcy Code”), including all rights that accrue to the
Buyer by virtue of sections 362(b), 555, 559, 561 and 562 and all other
sections of the Bankruptcy Code.  This
Agreement also contains lien provisions with respect to the Purchased Loans (as
defined in Section 2.2) so that if, contrary to the intent of the
parties, any court of competent jurisdiction characterizes any Transaction as a
financing, rather than a purchase, under applicable Law, including the
applicable provisions of the Bankruptcy Code, the Buyer, is deemed to have a
first priority perfected security interest in and to the Purchased Loans to
secure the payment and performance of all of the Obligations (as defined in Section 2.2).


 


In consideration of the
premises and the agreements, provisions and covenants herein contained, the
parties hereto further agree the matters set forth hereinbelow.


 


2              Defined Terms


 


2.1           Defined Terms.  Except where otherwise specifically stated,
capitalized terms used in this Agreement and the other Facility Papers have the
meanings assigned to them below or elsewhere in this Agreement.


 


2.2           Definitions of General
Application.  The terms
defined in this Section are generally applicable.  For convenience of reference, terms relating
only to the calculation of pricing and payment of Price Differential are
defined in Section 2.3.


 


“Accumulated
Funding Deficiency” shall mean a funding deficiency described in
section 302 of ERISA.


 


“Adjusted
Tangible Net Worth” means, as of any date of determination thereof,
an amount equal to the difference of (a) the sum of (i) Tangible Net
Worth as of such date and (ii) Subordinated Debt as of such date, minus (b) the sum of (i) any note or other
receivables from the Seller’s Affiliates, officers, directors and stockholders
as of such date, (ii) investments made in Seller’s Affiliates as of such
date and (iii) any employee advances as of such date, all determined in
accordance with GAAP.


 


“Administrative
Account” means Account No. 8037245282 maintained in the name of
the Seller with the Buyer at the office of the Buyer located at 201 East Pine
Street, Orlando, Florida 32801, into which, (a) if the Seller has
requested the Buyer to release a Purchased Loan pursuant to Sections 20.6(ii) prior
to clearance and payment of the check from the Seller written on the Controlled
Disbursement Account which funded such Purchased Loan, the proceeds of the
Transaction related to such Purchased Loan may be deposited upon disbursement
by the Buyer, or (b) if the Seller’s check written on the Controlled
Disbursement Account which funded a Purchased Loan has been returned for
endorsement (or for any other reason), the funds initially transferred from the
Master Advance Account to the Controlled Disbursement Account to pay such check
may be re-transferred by the Buyer until said check is 


 

















 


again
presented for payment.  The
Administrative Account shall be a “blocked account” under the Buyer’s sole
control and the Seller shall not have access to monies on deposit therein until
re-transfer from time to time of such monies to the Controlled Disbursement
Account in accordance with the provisions hereof.


 


“Affiliate”
means and includes, with respect to a specified Person, any other Person directly or indirectly controlling,
controlled by or under common control with, such Person, whether through the
ownership of voting securities, by contract or otherwise.


 


“Agency”
means Ginnie Mae, Fannie Mae, Freddie Mac, HUD, FHA or VA.


 


“Agency
Guides” means the Freddie Mac Guide, the Fannie Mae Guide and the
Ginnie Mae Guide.


 


“Aggregate
Outstanding Purchase Price” means as of any Determination Date, an
amount equal to the sum of the Purchase Prices for all Purchased Loans funded
under all Open Transactions as of such date.


 


“Agreement” is defined in Section 1.


 


“Anti-Terrorism
Laws” means any laws relating to terrorism or money laundering,
including Executive Order No. 13224 and the USA Patriot Act.


 


“Appraisal”
means an appraisal by a licensed appraiser selected in accordance with Agency
guidelines and not identified to the Seller as an unacceptable appraiser by an
Agency or any Approved Investor, and who is experienced in estimating the value
of property of that same type in the community where it is located, and who —
unless approved by the Buyer on a case-by-case basis — is not an employee or
Affiliate of the Seller, or related as a parent, sibling, spouse, child or
first cousin to any such Person, a signed copy of the written report of which
appraisal is in the possession of the Seller or the applicable Servicer.


 


“Approved
Investor” means any of the Persons listed on Schedule AI.  At the request of the Seller, the Buyer, in
its sole discretion, may from time to time agree in writing to add Persons to
the list set forth on Schedule AI and each Person approved by the Buyer
shall be an Approved Investor as of the date of such approval (the Buyer’s
written approval must be given before any trades may be performed with such
investor).  By written notice to the
Seller, the Buyer, in its sole discretion based on its evaluation of the
creditworthiness or funding ability of any Approved Investor listed on Schedule
AI, may remove an Approved Investor from such list.  Such removal shall become effective
immediately upon written notice of the Buyer; provided, that if any
Investor Commitment of such Approved Investor is then in effect and such
Approved Investor, in the reasonable judgment of the Buyer, is able to fund
such Investor Commitment, such Approved Investor shall continue to be an
Approved Investor for ninety (90) days after the date of such notice with
respect to (a) Purchased Loans owned by the Buyer at the time of such
notice and allocated to such Investor Commitment and (b) Mortgage Loans
that the Seller has committed to fund (and that, upon closing, will be Eligible
Loans) prior to the time of such notice and allocated to such Investor
Commitment; and provided  further, that such removal shall become
effective immediately at any time prior to the expiration of such ninety (90)
day period if the Buyer in its reasonable judgment believes that such Approved
Investor is unable to fund its Investor Commitment.  Following the addition or removal of any
Person as an Approved Investor in accordance with the provisions hereof, Schedule
AI shall be deemed automatically updated to include the addition or removal
of such Person.


 


“Assignee” is defined in Section 23.1(b).


 


“Authorized
Seller Representative” means a representative of the Seller duly
designated by all requisite corporate action to act on behalf of the Seller in
connection with the Repurchase Facility and to initiate Purchase Requests
thereunder on behalf of the Seller, execute on behalf of the Seller any of the
Facility Papers or any certificate, schedule or other document contemplated or
required by this Agreement or the other Facility Papers.  A list of Authorized Seller Representatives
current as of the Effective Date is attached as Schedule ASR.  The Seller will provide an updated list of
Authorized Seller Representatives to the Buyer promptly following each addition
to or subtraction from such list, in a form substantially similar to Schedule
CN (“Change Notice”), and the Buyer shall be
entitled to rely on each such list until such Change Notice is received by the
Buyer.


 


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“Banking Day”
means any day other than a Saturday, Sunday and any other day on which banks in
Orlando, Florida are required or authorized to close.


 


“Bankruptcy Code” is defined in Section 1.


 


“Blocked Person” is defined in Section 16.1(xiv)(b).


 


“Broker’s
Price Opinion” means the written opinion of the value of a tract or
parcel of residential real property securing a Mortgage Loan, issued by a real
estate broker that is duly licensed as such by the jurisdiction in which the
subject property is located, that is reasonably acceptable to the Buyer and that
is not an employee or Affiliate of the Seller, selected reasonably and in good
faith by the Seller.


 


“Buyer”
means Colonial Bank, and its successors and assigns.


 


“Buyer’s Margin Percentage” means:


 


(i)            for all Eligible Loans that
are Conforming Mortgage Loans, ninety-nine percent (99%);


 


(ii)           for all Eligible Loans that
are Non-Conforming Mortgage Loans, ninety-eight percent (98%);


 


(iii)          for all Eligible Loans that
are PSTP Mortgage Loans, a percentage of the Principal Balance of such PSTP
Mortgage Loan to be determined by the Buyer in its sole and absolute discretion
at the time of each applicable Transaction;


 


(iv)          for all Eligible Loans that
are Reacquired Mortgage Loans or Rejected Mortgage Loans, ninety percent (90%);
and


 


(v)           for all Eligible Loans that
are Wet Mortgage Loans, the percentage applicable to the Type of Mortgage Loan.


 


“Cash Equivalents” means and includes, on any day:


 


(i)            any evidence of debt issued by the United States
government, or guaranteed as to the timely payment of principal and interest by
the United States government, and maturing twelve (12) months or less after
that day;


 


(ii)           commercial paper issued by a corporation (other than an
Affiliate of the Seller) organized under the laws of any state of the United
States of America or of the District of Columbia, rated A1 by Standard &
Poor’s (a division of The McGraw-Hill Companies), Prime-1 by Moody’s Investors
Service, Inc. or the equivalent rating by another nationally-recognized
ratings service acceptable to the Buyer, and having a stated maturity date nine
(9) months or less after its issue date;


 


(iii)          any certificate of deposit or banker’s acceptance issued by
a commercial bank that is a member of the Federal Reserve System and has a
combined unimpaired capital and surplus and unimpaired undivided profits of not
less than Five Hundred Million Dollars ($500,000,000), and maturing not more
than twelve (12) months after that day; and


 


(iv)          any repurchase agreement (a) entered into with any
Federal Reserve System member commercial bank of the size referred to in clause
(iii) above and (b) secured by any obligation of the type
described in any of clauses (i)-(iii) above and (c) having
a market value on its date of at least one hundred percent (100%) of the
repurchase obligation of that commercial bank. [COLONIAL TO
REVIEW DEFINITION OF CASH EQUIVALENTS AND ADVISE WHETHER MINIMUM LIQUIDITY
COVENANT CAN BE MET THROUGH SAME, OR WHETHER ONLY CASH IS ACCEPTABLE]


 


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“Change of
Control” shall mean the occurrence of any one or more of the
following events without the prior written consent of the Buyer: (a) the
acquisition by any Person of direct or indirect ownership or control of any
voting capital stock of the Seller, or (b) Paul Klemme  ceases
to be an officer of Seller with the same title and with substantially the same
responsibilities and job functions as he has as of the date hereof.


 


“Code”
means the Internal Revenue Code of 1986 or any subsequent federal income tax
law or laws, as amended from time to time.


 


“Commitment”  means the Buyer’s commitment under Section 3.1
to fund Transactions, subject to Section 5.2 and each of the other
provisions of this Agreement, and not to exceed, in any event, the aggregate
amount of $25,000,000.00.


 


“Conforming
Mortgage Loan” is defined in Annex A.


 


“Conforming
Mortgage Loans Sublimit” means that portion of the Repurchase
Facility available for the purchase of Conforming Mortgage Loans, as more fully
set forth in Section 5.2.


 


“Contractual
Obligation” means, as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or undertaking to which
such Person is a party or by which it or any of its property is bound.


 


“Control” means
the power to direct the management and policies of such Person.


 


“Controlled
Disbursement Account” means Account No.                               
maintained in the name of the Seller with the Buyer at the office of the Buyer
located at 201 East Pine Street, Orlando, Florida 32801, into which funds
transferred from the Master Advance Account shall be deposited and disbursed
for the funding of Mortgage Loans acquired by the Buyer hereunder.


 


“Conventional
Mortgage Loan” means a Mortgage Loan that is not insured or
guaranteed by the federal government.


 


“Cumulative
Loan-to-Value Ratio” means, as to any Mortgage Loan, the ratio
(expressed as a percentage) of (i) the aggregate principal amount of all
indebtedness, including the principal amount of the indebtedness relating to
such Mortgage Loan and any permitted prior indebtedness, secured (or to be
secured) by the Mortgaged Premises, to (ii) the appraised value of said
Mortgaged Premises determined by a Current Appraisal or Current Broker’s Price
Opinion (whichever is less) acceptable to the Buyer; final determination of
Cumulative Loan-to-Value Ratio shall be made by the Buyer in its sole and
absolute discretion.


 


“Current
Appraisal” means an Appraisal dated no earlier than forty five (45)
days (or such longer period, if any, as the Buyer shall approve) before the
relevant Determination Date.


 


“Current
Assets” means those assets which in the regular course of business
of the Seller will be readily and quickly realized, or converted into cash, all
in accordance with GAAP within the applicable accounting or time period
together with such additional assets as may readily be converted into cash
without impairing the business of the Seller, and includes, without limitation,
cash, temporary investments, receivables (net of allowance for doubtful accounts),
inventories and prepaid expenses but excludes (a) loans and advances to or
receivables due from employees, officers or directors of the Seller and between
the Seller and an Affiliate, (b) all deferred assets, other than prepaid
items for insurance, taxes, and rents, and (c) any properties or assets
located outside the continental United States and Canada.


 


“Current
Broker’s Price Opinion” means a Broker’s Price Opinion dated no
earlier than forty five (45) days (or such longer period, if any, as the Buyer
shall approve) before the relevant Determination Date.


 


“Current
Liabilities” means those liabilities of the Seller, or any portion
thereof, the maturity of which will not extend beyond one year from the date
determination thereof is to be made.


 


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“Current
Ratio” means, as of any date of determination thereof, the ratio of (a) Current
Assets as of such date to (b) Current Liabilities as of such date, all
determined in accordance with GAAP.


 


“Customer”
shall mean the Person or Persons obligated to pay the indebtedness that is the
subject of a Mortgage Loan, including any guarantor of such indebtedness.


 


“Depository
Obligations” means any and all debts, obligations and liabilities of
the Seller to the Buyer arising out of or in connection with the Buyer’s role
as a depository bank for the Seller including, but not limited to, any and all
overdrafts (provided, however, nothing herein shall be construed
to require the Buyer to permit any overdrafts).


 


“Determination
Date” means the date as of, or for, which a specified characteristic
of a Mortgage Loan or other subject matter is being determined for purposes of
a provision of this Agreement or another Facility Papers Paper.


 


“Disqualifier”
means any of the circumstances or events affecting Purchased Loans that are
described on Schedule DQ.


 


“Dry Mortgage
Loan” means an Eligible Loan acquired or originated by the Seller
that has been closed, funded and qualifies without exception as an Eligible
Loan, including satisfying the requirement that all of its Required Documents
have been delivered to the Buyer.


 


“Effective Date” means December 31, 2007.


 


“Electronic
Buyer” means MERSCORP, Inc. or its successor in interest or
assigns.


 


“Electronically
Submitted” means submitted via an electronic download to the Buyer’s
secure website or such other site designated by the Buyer, in a form and format
that the Buyer has approved and with respect to which the Buyer is not required
to enter any data manually.


 


“Electronic
Tracking Agreement” means a written Electronic Tracking Agreement
among the Seller, the Buyer, MERS and the Electronic Buyer, in form and
substance acceptable to the Seller and the Buyer, as it may be supplemented,
amended, restated or replaced from time to time.


 


“Eligibility
Change Notice” means a written notice (sent by email or otherwise)
from the Buyer to the Seller substantially in the form of Exhibit F.


 


“Eligible Loan” is defined on Schedule EL.


 


“Endorsement
Fee” means the fee payable by the Seller to the Buyer pursuant to Section 10.1(i).


 


“ERISA”
means the Employee Retirement Income Security Act of 1974 and any successor
statute, as amended from time to time, and all rules and regulations
promulgated under it.


 


“ERISA
Affiliate” shall mean each trade or business, including the Seller,
whether or not incorporated, that together with the Seller would be treated as
a single employer under section 4001 of ERISA.


 


“Existing
Facilities” means, collectively, an early purchase facility and a
mortgage warehouse facility, each provided by Washington Mutual Bank, FA to the
Seller.


 


“Event of Default” is defined in Section 19.1.


 


“Facility
Papers” means and includes this Agreement, the Electronic Tracking
Agreement and any financing statements or other papers now or hereafter
authorized, executed or issued pursuant to this Agreement (excluding any
Hedging Arrangements relating to the Obligations entered into with any
counterparty that was the 


 


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Buyer
or an Affiliate thereof at the time such Hedging Arrangement was entered into),
and any renewal, extension, rearrangement, increase, supplement, modification
or restatement of any of them.


 


“Fannie Mae”
means the Federal National Mortgage Association and any successor thereto.


 


“Fannie Mae
Guide” means, collectively, the “Selling Guide”
and the “Servicing Guide” published by Fannie
Mae, as modified, amended, supplemented or restated from time to time.


 


“FAS-91”
means Statement No. 91 under the Statements of Financial Accounting
Standards issued by FASB, as modified or amended from time to time.


 


“FASB”
means the Financial Accounting Standards Board of the American Institute of
Certified Public Accountants and any successor thereto.


 


“Fees”
means any and all of the fees described in Article 10.


 


“FHA”
means the Federal Housing Administration and any successor.


 


“FICO Score”
means the Fair Isaac Corporation or similar computer analytical objective
scoring model ascertaining a borrower’s credit reputation based on a scale of
300-850, the lower the number, the greater the probability of default.  With respect to any Customer under a Mortgage
Loan, the term shall mean the FICO Score for such Customer that is required to
be used under the underwriting guidelines of the Approved Investor for such
Mortgage Loan.


 


“Freddie Mac”
means the Federal Home Loan Mortgage Corporation and any successor.


 


“Freddie Mac
Guide” means the “Sellers’ &
Servicers’ Guide” published by Freddie Mac, as modified, amended,
supplemented or restated from time to time.


 


“Funded Liabilities” means and includes, without duplication:


 


(i)            any liability or obligation payable more than one year
from the date of creation thereof, which under GAAP is required to be shown on
a balance sheet as a liability,


 


(ii)           indebtedness payable more than one year from the date of
creation thereof which is secured by any security interest on property owned by
the Seller whether or not the indebtedness secured thereby shall have been
assumed by the Seller,


 


(iii)          guarantees, endorsements (other than endorsements of
negotiable instruments for collection in the ordinary course of business), and
other contingent liabilities (whether direct or indirect) in connection with
the obligations, stock, or dividends of any Person,


 


(iv)          obligations under any contract providing for the making of
loans, advances, or capital contributions to any Person in order to enable such
Person primarily to maintain working capital, net worth, or any other balance
sheet condition or to pay debts, dividends, or expenses, and


 


(v)           obligations under any contract which, in economic effect,
is substantially equivalent to a guarantee,


 


all
as determined in accordance with GAAP; provided, however, that
any such obligation shall be treated as a Funded Liability, regardless of its
term, if such obligation is renewable pursuant to the terms thereof or arises
under a revolving credit or similar agreement effective for more than one year
after the date of creation of such obligation, or may be payable out of the
proceeds of a similar obligation pursuant to the terms of such obligation or of
any such agreement.


 


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“GAAP”
means, for any day, generally accepted accounting principles, applied on a
consistent basis, stated in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants, or
in statements and pronouncements of the Financial Accounting Standards Board or
in such other statements by another entity or entities as may be approved by a
significant segment of the accounting profession, that are applicable to the
circumstances for that day.  The
requirement that such principles be applied on a consistent basis means that
the accounting principles observed in a current period shall be comparable in
all material respects to those applied in an earlier period, with the exception
of changes in application to which the Seller’s independent certified public
accountants have agreed and which changes and their effects are summarized in
the subject company’s financial statements following such changes.  If (a) during the term of this Agreement
any change(s) in such principles occur(s) which materially changes
the meaning or effect of any provision of this Agreement and (b) the Seller
or the Buyer regard such change(s) as adverse to their respective
interests, then upon written notice by the Seller to the Buyer, or by the Buyer
to the Seller, the parties to this Agreement shall negotiate promptly and in
good faith a supplement or amendment to this Agreement to achieve as nearly as
possible preservation and continuity of the business substance of this
Agreement in light of such change; provided that the Buyer shall not be
obligated to commence, continue or conclude any such negotiation or to execute
any such supplement or amendment after any Potential Default has occurred
(other than a Potential Default caused by such change) and before it has been
cured or after any Event of Default has occurred (other than an Event of
Default caused by such change) that the Buyer has not declared in writing to
have been cured or waived.


 


“Ginnie Mae”
means the Government National Mortgage Association and any successor.


 


“Ginnie Mae
Guide” means collectively, the “Ginnie Mae I
Mortgage-Backed Securities Guide” and the “Ginnie Mae
Mortgage-Backed Securities Guide” published by HUD, as modified,
amended, supplemented or restated from time to time.


 


“Governmental
Authority” means any foreign governmental authority, the United
States of America, any state of the United States and any political subdivision
of any of the foregoing, and any agency, department, commission, board, bureau,
court or other tribunal.


 


“Guarantee”
of or by any Person (the “guarantor”)
means any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any indebtedness or other obligation
of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly and including any obligation,
direct or indirect, of the guarantor (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such indebtedness or other
obligation or to purchase (or to advance or supply funds for the purchase of)
any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such indebtedness of other obligation or (d) as an account party or
applicant in respect of any letter of credit or letter of guaranty issued in
support of such indebtedness or obligation; provided, that the term “Guarantee” shall not include
endorsements for collection of deposits in the ordinary course of business with
respect to checks or other items for collection. The term “Guarantee”
used as a verb has a corresponding meaning.


 


“Hazard
Insurance Policy” means, with respect to each Purchased Loan, the
policy of fire and extended coverage insurance required by Section 17.13(ii)(a) to
be maintained for the related Mortgaged Premises’ improvements (and, if the
related Mortgaged Premises are located in a federally-designated special flood
area, federal flood insurance issued in accordance with the Flood Disaster
Protection Act of 1973, as amended from time to time, or, if repealed, any
superseding legislation governing similar insurance coverage, or similar
coverage against loss sustained by floods or similar hazards that conforms to
the flood insurance requirements prescribed by Fannie Mae guidelines, which may
be provided under a separate insurance policy), which insurance may be a
blanket mortgage impairment policy maintained by the Seller or such Purchased
Loan’s Servicer, if applicable, in accordance with the terms and conditions of Section 17.15(ii)(b).


 


“Hedging
Arrangements” means any agreement or other arrangement (including
without limitation, an interest rate swap agreement, an interest cap agreement,
and a forward sale agreement) entered into by the Seller to protect itself
against changes in interest rates or the market value of assets.


 


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“HUD”
means the U.S. Department of Housing and Urban Development and any successor.


 


“In Default”
means that, as to any Mortgage Loan, any Mortgage Note payment or escrow
payment is unpaid for thirty (30) days or more after its due date (whether or
not the Seller has allowed any grace period or extended the due date thereof by
any means) or another material default has occurred and is continuing,
including the commencement of foreclosure proceedings or the commencement of a
case in bankruptcy as to the Customer in respect of such Mortgage Loan.


 


“Income”
means, with respect to any Eligible Loan on any day, all payments of principal,
interest, fees and other distributions thereon or proceeds thereof paid by or
on behalf of the applicable Customer.


 


“Intangible Assets”
means those assets of the Seller which are (a) deferred assets, other than
prepaid insurance and prepaid taxes; (b) patents and applications
therefor, copyrights, trademarks, service marks, trade names, copyright,
trademark, service mark and trade name registrations and applications,
goodwill, franchises, permits, experimental expenses and other similar assets
which would be classified as “intangible assets” under GAAP; (c) treasury
stock and any write-up of the value of any assets after the date of the Seller ‘s
most recent year end financial statements provided to the Buyer; and (d) any
other assets which would be classified as “intangible assets” under GAAP.


 


“Investor
Commitment” means a bona fide, current, unfilled and unexpired
written commitment to buy Mortgage Loans, from an Approved Investor to the
Seller, that specifies (a) the type or item(s) of Mortgage Loan, (b) a
purchase date or purchase deadline date and (c) a purchase price or the
criteria by which the purchase price will be determined.


 


“Investor
Funding Account” means Account No. 8037245274 maintained in the
name of the Seller with the Buyer at the office of the Buyer located at 201
East Pine Street, Orlando, Florida 32801, into which Repurchase Price payments
from the Seller or for the Seller’s account by Approved Investors and
settlement of Income collections from Purchased Loans shall be deposited and
applied to reduce the Repurchase Prices of such Purchased Loans in accordance
with Section 4.4. The Investor Funding Account shall be a “blocked
account” under the Buyer’s sole control and the Seller shall not have access to
monies on deposit therein until transfer from time to time of surplus monies
(after payment of Transactions) to the Master Advance Account in accordance
with the provisions hereof.  The Investor
Funding Account shall not be subject to deductions, setoff or any other right
in favor of any Person other than the Buyer.


 


“Law”
means any law, statute, code, ordinance, order, rule, regulation, judgment,
decree, injunction, franchise, permit, certificate, license, authorization or
other determination, direction or requirement (including any of the foregoing
which relate to environmental standards or controls, energy regulations and
occupational safety and health standards or controls) of any (domestic or
foreign) arbitrator, court or other Governmental Authority.


 


“Leverage
Ratio” means, as of any date of determination thereof, the ratio of (a) Total
Debt as of such date less Subordinated Debt as of such date to (b) Adjusted
Tangible Net Worth as of such date, all determined in accordance with GAAP.


 


“Lien”
means any lien, mortgage, deed of trust, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give
any security interest).


 


“Loan Papers”
means the Mortgage Note and all of the other papers related to the
establishment of a Purchased Loan and the creation, perfection and maintenance
of its Lien on the Mortgaged Premises, including its Required Documents and its
Supplemental Papers and including any papers securing, guaranteeing or
otherwise related to or delivered in connection with any Purchased Loan, in a
form acceptable to the Buyer (including any guaranties, lien priority
agreements, security agreements, mortgages, deeds of trust, collateral
assignments of the Seller’s interest in underlying obligations or security,
subordination agreements, negative pledge agreements, loan agreements and
title, mortgage, pool and casualty insurance policies), as any such Loan Paper
may be supplemented, amended, restated or replaced from time to time.


 


8

















 


“Loan Records”
means books, records, ledger cards, files, papers, documents, instruments,
certificates, appraisal reports, journals, reports, correspondence, customer
lists, information and data that describes, catalogs or lists such information
or data, computer printouts, media (tapes, discs, cards, drives, flash memory
or any other kind of physical or virtual data or information storage media or
systems) and related data processing software (subject to any licensing
restrictions) and similar items that at any time evidence or contain
information relating to any of the Purchased Loans, and other information and
data that is used or useful for managing and administering the Purchased Loans,
together with the nonexclusive right to use (in common with the Seller and any
repurchase agreement counterparty or secured party that has a valid and
enforceable interest therein and that agrees that its interest is similarly
nonexclusive) the Seller’s operating systems to manage and administer any of
the Purchased Loans and any of the related data and information described
above, or that otherwise relates to the Purchased Loans, together with the
media on which the same are stored to the extent stored with material
information or data that relates to property other than the Purchased Loans
(tapes, discs, cards, drives, flash memory or any other kind of physical or
virtual data or information storage media or systems), and the Seller’s rights
to access the same, whether exclusive or nonexclusive, to the extent that such
access rights may lawfully be transferred or used by the Seller’s permittees,
and any computer programs that are owned by the Seller (or licensed to the
Seller under licenses that may lawfully be transferred or used by the Seller’s
permittees) and that are used or useful to access, organize, input, read, print
or otherwise output and otherwise handle or use such information and data.


 


“Loan
Schedule” means a schedule of Eligible Loans, in the form of the
attachment to Exhibit A (or another form acceptable to the Buyer),
identifying each Eligible Loan purchased or to be purchased (as the context
requires) from the Seller by the Buyer in a proposed or executed (as the
context requires) Transaction.


 


“Loan-to-Value
Ratio” means, with respect to any Mortgage Loan, the ratio of (a) the principal amount of such Mortgage Loan
outstanding at the origination thereof to (b) the appraised value of the
Mortgage Premises securing such Mortgage Loan (as set forth in the Appraisal
delivered in connection with the origination of such Mortgage Loan).


 


“LPSA”
is defined in the definition of PSTP Mortgage Loan.


 


“Margin Call” is defined in Section 7.1.


 


“Margin Deficit” is defined in Section 7.1.


 


“Margin Stock”
has the meaning assigned to that term in Regulation U as in effect from time to
time.


 


“Market Value”
means what the Buyer reasonably determines the market value of any Purchased
Loan to be, taking into account customary factors, including current market
conditions and the fact that such Purchased Loan may be sold or otherwise
disposed of under circumstances where the Seller is in default under this
Agreement or where the Seller is in default under a relevant Servicing
Agreement.  The Buyer’s determination of
Market Value hereunder shall be conclusive and binding upon the parties, absent
manifest error.


 


“Master
Advance Account” means Account No. 8037245266 maintained in
name of the Seller with the Buyer at the office of the Buyer located at 201
East Pine Street, Orlando, Florida 32801, into which (i) the proceeds of
Transactions may be deposited upon disbursement by the Buyer (and used solely
to pay items drawn by the Seller on, or to cover wires requested by the Seller
from, the Controlled Disbursement Account, as applicable, in each case for the
purpose of funding Purchased Loans hereunder) and (ii) funds transferred
from the Investor Funding Account shall be deposited and made available to the
Seller.  The Seller irrevocably
authorizes the Buyer, which authorization shall remain in effect until all
Obligations are fully and finally paid, to withdraw funds on any day in an
amount equal to the aggregate Repurchase Prices of all Purchased Loans that are
Past Due on that day and to, while any Potential Default or Event of Default
exists, set off from amounts held in such account any amounts owed to the Buyer
on account of the Obligations.  The
Master Advance Account shall be subject to setoff by the Buyer.


 


“Material
Adverse Effect” means a material adverse effect on (a) the
business, assets, property, operations, financial condition or results of
operations of the Seller and, if applicable, its Subsidiaries, taken as a
whole, (b) the 


 


9

















 


ability
of the Seller to pay and perform the Obligations, or (c) the Buyer’s
rights in respect of any of the Purchased Loans.


 


“Material
Amount” means, at any time, ten percent (10%) or more of Tangible
Net Worth (determined based on the most recent monthly balance sheet delivered
to the Buyer pursuant to Section 17.1(ii)).


 


“MBS”
means a mortgage pass-through security, collateralized mortgage obligation, Real
Estate Mortgage Investment Conduit (“REMIC”) or other security that (i) is
based on and backed by an underlying pool of Mortgage Loans and (ii) provides
for payment by its issuer to its holder of specified principal installments
and/or a fixed or floating rate of interest on the unpaid balance and for all
prepayments to be passed through to the holder, whether issued in certificated
or book-entry form and whether or not issued, guaranteed, insured or bonded by
Ginnie Mae, Fannie Mae, Freddie Mac, an insurance company, a private issuer or
any other investor.


 


“MERS”
means Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or its successors or assigns.


 


“MERS
Designated Loan” means a Purchased Loan registered to the Seller on
the MERS® System.


 


“MERS
Procedures Manual” means the MERS Procedures Manual, as it may be
amended from time to time.


 


“MERS® System”
means the Electronic Buyer’s mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.


 


“Mortgage”
means a mortgage, deed of trust, deed to secure debt, security deed or other
mortgage instrument or similar evidence of lien legally effective in the United
States jurisdiction where the relevant real property is located to create and
constitute a valid and enforceable Lien, subject only to Permitted
Encumbrances, on the fee simple or long term ground leasehold estate in
improved real property.


 


“Mortgage
Assignment” means an assignment of a Mortgage in a form sufficient
under the Laws of the United States jurisdiction where the real property
covered by such Mortgage is located to give record notice of such assignment of
such Mortgage, to perfect the assignment and to establish its priority relative
to other transactions in respect of the Mortgage assigned (no Mortgage
Assignment is required for any Mortgage that has been originated in the name of
MERS and registered under the MERS® System).


 


“Mortgage
Loan” means any loan evidenced by a Mortgage Note and includes all
right, title and interest of the lender or mortgagee of such Mortgage Loan as a
holder of both the beneficial and legal title to such Mortgage Loan, including (i) all
loan documents, files and records of the lender or mortgagee for such Mortgage
Loan, including the Loan Papers, (ii) the monthly payments, any
prepayments, insurance and other proceeds, (iii) the rights to service
such Mortgage Loan and (iv) all other rights, interests, benefits,
security, proceeds, remedies and claims in favor or for the benefit of the
lender or mortgagee arising out of or in connection with such Mortgage Loan.


 


“Mortgage
Note” means a promissory note secured by a Mortgage.


 


“Mortgaged
Premises” means the Property securing a Mortgage Loan.


 


“Multiemployer
Plan” means any “multiemployer plan”, as defined in Section 4001(a)(3) of
ERISA, which is maintained for employees of the Seller or any of the Seller’s
Subsidiaries.


 


“Non-Conforming Mortgage
Loan” is defined in Annex B.


 


“Non-Conforming
Mortgage Loans Sublimit” means that portion of the Repurchase
Facility available for the purchase of Non-Conforming Mortgage Loans, as more
fully set forth in Section 5.2.


 


“Non-Usage
Fee” means the fee payable by the Seller to the Buyer pursuant to Section 10.1(iii).


 


10

















 


“Notices” is defined in Article 24.


 


“Obligations”
means (a) all of the Seller’s obligations and liabilities to the Buyer
(whether now existing or hereafter arising, voluntary or involuntary, whether
or not jointly owed with others, direct or indirect, absolute or contingent,
liquidated or unliquidated, and whether or not from time to time decreased or
extinguished and later increased, created or incurred) under or arising out of
this Agreement or any of the other Facility Papers, and the Repurchase
Facility, including without limitation, all Repurchase Prices, Price
Differentials (including any interest equivalent accruing after the filing of
any petition in bankruptcy or the commencement of any insolvency,
reorganization or like proceeding relating to the Seller, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
all reimbursement obligations, fees, indemnification and reimbursement
payments, costs and expenses (including all fees, costs and expenses of counsel
to the Buyer, incurred pursuant to or in connection with this Agreement or any
other Facility Papers, whether incurred at trial, on appeal, in bankruptcy, or
otherwise), together with all renewals, extensions, modifications and
refinancings thereof, and (b) all obligations of the Seller, monetary or
otherwise, under any Hedging Arrangements relating to the obligations referred
to in the preceding clause (a) entered into with the Buyer (or an
Affiliate thereof) and (c) any and all Depository Obligations.


 


“Officer’s
Certificate” means a certificate executed on behalf of the Seller by
its president, chief financial officer, treasurer, any of its executive vice
presidents or senior vice presidents, its company secretary, its controller or
such other officer as shall be acceptable to the Buyer.


 


“Open
Transaction” means a Transaction in which the Buyer has purchased
and paid for the related Purchased Loan(s) but the Seller has not
repurchased said Purchased Loan(s), and “Open” means
that the subject Transaction is an Open Transaction.


 


“Other Approved
Facilities” means the existing facilities listed on Schedule 18.3.


 


“Other Approved
Facility Papers” means the agreements and documents (and any
amendments, supplements and restatements thereof) executed in connection with the
Other Approved Facilities.


 


“Other Assets”
means all of the Seller’s right, title and interest in and to and under all now
existing or hereafter arising goods, investment property, documents,
instruments, chattel paper, accounts, deposit accounts, commercial tort claims
and general intangibles, as each such term is defined in Revised Article 9
of the UCC.


 


“Participant” is defined in Section 23.1(i).


 


“PBGC”
shall mean the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA and any successor thereto.


 


“Per Loan
Limit” is defined on Schedule EL.


 


“Permitted
Encumbrances” means, in respect of the Mortgaged Premises securing a
Purchased Loan, (i) tax Liens for real property taxes and
government-improvement assessments that are not delinquent; (ii) easements
and restrictions that do not materially and adversely affect the title to or
marketability of such Mortgaged Premises or prohibit or interfere with the use
of such Mortgaged Premises as a one-to-four family residential dwelling; (iii) reservations
as to oil, gas or mineral rights, provided such rights do not include the right
to remove buildings or other material improvements on or near the surface of
such Mortgaged Premises or to mine or drill on the surface thereof or otherwise
enter the surface for purposes of mining, drilling or exploring for, or
producing, transporting or otherwise handling oil, gas or other minerals of any
kind; (iv) agreements for the installation, maintenance or repair of
public utilities, provided such agreements do not create or evidence Liens on
such Mortgaged Premises or authorize or permit any Person to file or acquire
claims or Liens against such Mortgaged Premises; (v) with respect to
Purchased Loans which are second priority Mortgage Loans, the applicable first
priority Mortgage Loans; and (vi) such other exceptions (if any) as are
acceptable under relevant Agency guidelines; provided that any encumbrance that
is not permitted pursuant to the standards of any relevant Investor Commitment
by which the subject Purchased Loan is covered shall not be a Permitted
Encumbrance.


 


11

















 


“Person”
means and includes any corporation, natural person, firm, joint venture,
partnership, limited liability company, trust, unincorporated organization,
government or any political subdivision, department, agency or instrumentality
of any government.


 


“Plan”
means any plan (other than a Multiemployer Plan) subject to Title IV of ERISA
maintained for employees of the Seller or any ERISA Affiliate (and any such
plan no longer maintained by the Seller or any of its ERISA Affiliates to which
the Seller or any of its ERISA Affiliates has made or was required to make any
contributions during the five years preceding the date on which such plan
ceased to be maintained).


 


“Plan Party” is defined in Section 35.1.


 


“Potential
Default” means the occurrence of any event or existence of any
condition that, but for the giving of notice, the lapse of time or both, would
constitute an Event of Default.


 


“Principal
Balance” means, for any day, the unpaid principal balance of a
Purchased Loan on that day.


 


“Procedural
Manual” means the internally prepared manual of Colonial Bank’s
Mortgage Warehouse Lending Division setting forth the administrative and
operational procedures of such division, as the same may be modified, amended,
supplemented or restated from time to time.


 


“Prohibited
Transaction” shall mean any transaction described in section 406 of
ERISA that is not exempt by reason of section 408 of ERISA or the transitional rules set
forth in section 414(c) of ERISA and any transaction described in section
4975(c)(1) of the Code that is not exempt by reason of section 4975(c)(2) or
section 4975(d) of the Code, or the transitional rules of section
2003(c) of ERISA.


 


“Property”
means any interest of a Person in any kind of property, whether real, personal
or mixed, tangible or intangible.


 


“PSTP Mortgage Loan” is defined in Annex C.


 


“PSTP
Mortgage Loans Sublimit” means that portion of the Repurchase
Facility available for the purchase of PSTP Mortgage Loans, as more fully set
forth in Section 5.2.


 


“Purchase
Date” means, for each Transaction, the date the Buyer funds the
purchase of the applicable Purchased Loan(s) (including, without
limitation, any Purchased Loan that is a Wet Mortgage Loan).


 


“Purchase
Price” means (i) on the relevant Purchase Date, the price at
which a Purchased Loan in a Transaction is sold by the Seller to the Buyer,
such price being equal to the Purchase Value of such Purchased Loan, and (ii) thereafter,
except where the Buyer and the Seller agree in writing otherwise, a price equal
to the Purchase Value of such Purchased Loans decreased by amounts theretofore
paid by the Seller in respect of such Transaction (as determined by the Buyer)
to the Buyer pursuant to the terms hereof, including Sections 4.3, 7.1
and 13.5 (absent manifest error, the Buyer’s determination of same being
conclusive and binding).


 


“Purchase
Request” means a request from the Seller to enter into a Transaction
with the Buyer and, if applicable, a request to wire transfer the related
Purchase Price to a designated account as set forth therein, as more
particularly described in the Procedural Manual, Electronically Submitted or,
if it cannot be Electronically Submitted, by facsimile pursuant to Article 4.  The term “Purchase Request” shall also
contain the Loan Schedule for the related Eligible Loan being purchased by the
Buyer under such Transaction.


 


“Purchase Value” means:


 


(i)            in the case of a Conforming Mortgage Loan, (A) the
Buyer’s Margin Percentage for Conforming Mortgage Loans multiplied by (B) the
purchase price to be paid by an Approved Investor in the Investor Commitment
applicable to such Conforming Mortgage Loan, not to exceed the Principal
Balance of such Conforming Mortgage Loan;


 


12

















 


(ii)           in the case of a Non-Conforming Mortgage Loan, (A) the
Buyer’s Margin Percentage for Non-Conforming Mortgage Loans multiplied by (B) the
lesser of (1) the Principal Balance of such Non-Conforming Mortgage Loan
or (2) the purchase price to be paid by an Approved Investor in the
Investor Commitment applicable to such Non-Conforming Mortgage Loan;


 


(iii)          in the case of a Reacquired Mortgage Loan or a Rejected
Mortgage Loan, (A) the Buyer’s Margin Percentage for Reacquired Mortgage
Loans or Rejected Mortgage Loans multiplied by (B) the least of: (1) in
the case of a Reacquired Mortgage Loan, the net price required to be paid by
the Seller to the applicable Approved Investor in connection with the Seller’s
repurchase therefrom of such Mortgage Loan and, in the case of a Rejected
Mortgage Loan, the Principal Balance of such Mortgage Loan; (2) the
original Appraisal value of such Mortgage Loan; provided, however,
if such Mortgage Loan is more than nine (9) months old, a Current Broker’s
Price Opinion which supports the original Appraisal value must be received
within 45 days of the Purchase Date and, if the value determined by the Current
Broker’s Price Opinion is less than the original Appraisal value, then the
difference may result in a Margin Call in the amount of such difference, which
Margin Call may be made by the Buyer upon receipt of such Current Broker’s
Price Opinion (further, the Buyer reserves the right to request a Current
Appraisal if the Broker’s Price Opinion does not support the original Appraisal
value); or (3) the Principal Balance of such Mortgage Loan; subject,
however, to the reduction in the Purchase Value applicable to Reacquired
Mortgage Loans and Rejected Mortgage Loans required by clause (D) of the
definition of Repurchase Period;


 


(iv)          in the case of a PSTP Mortgage Loan, (A) the Buyer’s
Margin Percentage for PSTP Mortgage Loans multiplied by (B) the Principal
Balance of such PSTP Mortgage Loan; and


 


(v)           in the case of a Wet Mortgage Loan, an amount equal to the
Purchase Value applicable to the Type of Mortgage Loan funded under such
Transaction.


 


“Purchased
Loan” means, an Eligible Loan sold by the Seller to the Buyer and
any Eligible Loan substituted therefor in accordance with Section 12.  In addition, the term “Purchased Loans” shall also
include all assets and properties described in EXHIBIT A of Schedule 11
(except Other Assets).


 


“Purchased
Loan Records” means books, records, ledger cards, files, papers,
documents, instruments, certificates, appraisal reports journals, reports,
correspondence, customer lists, information and data that describes, catalogs
or lists such information or data, computer printouts, media (tapes, discs, cards,
drives, flash memory or any other kind of physical or virtual data or
information storage media or systems) and related data processing software
(subject to any licensing restrictions) and similar items that at any time
evidence or contain information relating to any of the Purchased Loans, and
other information and data that is used or useful for managing and
administering the Purchased Loans, together with the nonexclusive right to use
(in common with the Seller and any other secured party that has a valid and
enforceable security interest therein and that agrees that its security
interest is similarly nonexclusive) the Seller’s operating systems to manage
and administer any of the Purchased Loans and any of the related data and
information described above, or that otherwise relates to the Purchased Loans,
together with the media on which the same are stored to the extent stored with
material information or data that relates to property other than the Purchased
Loans (tapes, discs, cards, drives, flash memory or any other kind of physical
or virtual data or information storage media or systems), and the Seller’s
rights to access the same, whether exclusive or nonexclusive, to the extent
that such access rights may lawfully be transferred or used by the Seller’s
permittees, and any computer programs that are owned by the Seller (or licensed
to the Seller under licenses that may lawfully be transferred or used by the
Seller’s permittees) and that are used or useful to access, organize, input,
read, print or otherwise output and otherwise handle or use such information
and data.


 


“Purchased
Loans Support” means all property (real or personal) assigned,
hypothecated or otherwise securing obligations in respect of Purchased Loans
and includes any security agreement or other agreement granting a lien or
security interest in such real or personal property, including:


 


(i)            all Loan Papers, whether now owned or hereafter acquired,
related to, and all private mortgage insurance on, any Purchased Loans, and all
renewals, extensions, modifications and replacements of any of them;


 


13

















 


(ii)           all rights, liens, security interests, guarantees,
insurance agreements and assignments accruing or to accrue to the benefit of
the Seller in respect of any Purchased Loan;


 


(iii)          all of the Seller’s rights, powers, privileges, benefits
and remedies under each and every paper now or hereafter securing, insuring,
guaranteeing or otherwise relating to or delivered in connection with any Purchased
Loan, including all guarantees, lien priority agreements, security agreements,
deeds of trust, Purchased Loans assignments, subordination agreements, negative
pledge agreements, loan agreements, management agreements, development
agreements, design professional agreements, payment, performance or completion
bonds, title and casualty insurance policies and mortgage guaranty or insurance
contracts;


 


(iv)          all of the Seller’s rights, to the extent assignable, in,
to and under any and all commitments issued by (1) Ginnie Mae, Fannie Mae,
Freddie Mac, another mortgage company or any other investor or the Buyer or a
securities issuer to guarantee, purchase or invest in any of the Purchased
Loans or any MBS based on or backed by any of them or (2) any broker or
investor to purchase any MBS, whether evidenced by book entry or certificate,
representing or secured by any interest in any of the Purchased Loans, together
with the proceeds arising from or pursuant to any and all such commitments;


 


(v)           all rights under every Hazard Insurance Policy relating to
the improvements securing a Purchased Loan for the benefit of the lender or
mortgagee under such Purchased Loan, the proceeds of all errors and omissions
insurance policies and all rights under any blanket hazard insurance policies
to the extent they relate to any Purchased Loan or its security and all hazard
insurance or condemnation proceeds paid or payable with respect to any of the
Purchased Loans and/or any of the Property securing payment of any of the Purchased
Loans or covered by any related instrument;


 


(vi)          all present and future claims and rights of the Seller to
have, demand, receive, recover, obtain and retain payments from, and all
proceeds of any nature paid or payable by, any governmental, quasi-governmental
or private mortgage guarantor or insurer (including VA, FHA or any other
Person) with respect to any of the Purchased Loans; and


 


(vii)         all tax, insurance, maintenance fee and other escrow
deposits or payments made by the Customers under such Purchased Loans (the
Buyer acknowledges that the Seller’s rights in such deposits are limited to the
rights of an escrow agent and such other rights, if any, in and to such
deposits as are accorded by the Purchased Loans and related papers).


 


“Reacquired
Mortgage Loan” is defined in Annex D.


 


“Reacquired/Rejected
Mortgage Loans Sublimit” means that portion of the Repurchase
Facility available for the purchase of Reacquired Mortgage Loans and/or
Rejected Mortgage Loans, as more fully set forth in Section 5.2.


 


“Regulation U”
means Regulation U promulgated by the Board of Governors of the Federal Reserve
System, 12 C.F.R. Part 221, or any other regulation when promulgated to
replace the prior Regulation U and having substantially the same function.


 


“Regulation Z”
means Regulation Z promulgated by the Board of Governors of the Federal Reserve
System, 12 C.F.R. Part 221, or any other regulation when promulgated to
replace the prior Regulation Z and having substantially the same function.


 


“Rejected
Mortgage Loan” is defined in Annex E.


 


“Reportable
Event” shall mean any of the events set forth in section 4043(b) of
ERISA or the regulations thereunder, a withdrawal from a Plan described in
section 4063 of ERISA, a cessation of operations described in section 4068(f) of
ERISA, an amendment to a Plan necessitating the posting of security under
section 401(a)(29) of the Code, or a failure to make a payment required by
section 412(m) of the Code and section 302(e) of ERISA when due.


 


14

















 


“Repurchase
Date” means (i) upon demand by the Seller or (ii) if
earlier, the date on which the Seller is required to repurchase a Purchased
Loan from the Buyer, being the earliest of (A) the date on which an
Approved Investor is required to purchase such Purchased Loan; (B) the
last day of the Repurchase Period with respect to such Purchased Loan; or (C) any
date determined by application of the provisions of Sections 4.3 or 19.


 


“Repurchase
Facility” means the revolving mortgage loan repurchase facility
provided to the Seller by the Buyer pursuant to this Agreement.


 


“Repurchase
Period” means, for any Purchased Loan, the period commencing on the
applicable Purchase Date and ending on the first to occur of: (A) in the
case of a Conforming Mortgage Loan, 90 days after such Purchase Date; (B) in
the case of a Wet Mortgage Loan, five (5) Banking Days after such Purchase
Date unless the Required Documents and, if requested by the Buyer, the
Supplemental Papers, supporting such Transaction have been delivered to and
accepted by the Buyer; (C) in the case of a Non-Conforming Mortgage Loan,
90 days after such Purchase Date; (D) in the case of a Rejected Mortgage
Loan or a Reacquired Mortgage Loan, 360 days after such Purchase Date; provided,
however, the amounts required for such Mortgage Loan to constitute a
Rejected Mortgage Loan or a Reacquired Mortgage Loan, as applicable, must be
repaid in accordance with Section 13.5; (E) in the case of a
PSTP Mortgage Loan, 360 days after such Purchase Date or, if earlier, upon
demand by the Buyer; (F) upon expiration of the Investor Commitment for
such Mortgage Loan or certificate covering same or rejection by the Approved
Investor under the Investor Commitment for such Mortgage Loan for purchase
unless, in either case, within 10 Banking Days thereafter such Mortgage Loan is
covered by a new Investor Commitment; or (G) if applicable, 14 days after
redelivery by the Buyer to the Seller of any non-conforming instrument or
document for correction unless the Seller has completed the correction thereof
and delivered the same to the Buyer within such 14-day period.


 


“Repurchase
Price” means the price at which a Purchased Loan is to be resold by
the Buyer to the Seller on the applicable Repurchase Date, which will be determined
in each case as the sum of (x) the Purchase Price, (y) the accrued
and unpaid Price Differential as of the date of such determination, and (z) any
accrued and unpaid Fees, expenses and indemnity amounts.


 


“Required
Documents” means all of the Loan Papers that must be delivered to
the Buyer (in the case of Dry Mortgage Loans, prior to the related Purchase
Date and, in the case of Wet Mortgage Loans, on or before the fifth (5th)
Banking Day after the related Purchase Date) in order for any particular Purchased
Loan to have or continue to have Market Value. 
Schedule RD lists the Required Documents.


 


“Requirements
of Law” means as to any Person the formation or other organizational
or governing documents of such Person, and any law, treaty, rule or regulation,
or a final and binding determination of an arbitrator or a determination of a
court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its Property or to which such Person or any of its
Property is subject.


 


“Servicer”
means, collectively, with respect to each Purchased Loan, any Person who owns
or holds the rights to service such Purchased Loan (the “Servicing
Rights”), and any Person who as a servicer or subservicer is
primarily responsible for performing the servicing functions for such Purchased
Loan, which is identified in a Real Estate Settlement Procedures Act of 1974,
12 U.S.C. § 2602, as amended (“RESPA”) notification letter as the Person to
whom the applicable Customer sends scheduled loan payments; provided
that any Servicer has been both (i) appropriately identified to the Buyer
in a written notice from the Seller to the Buyer and (ii) approved by the
Buyer.  The Seller is hereby approved by
the Buyer as Servicer.


 


“Servicing
Agreement” means, with respect to any Person, the arrangement —
whether or not in writing — pursuant to which that Person acts as a Servicer of
Mortgage Loans, whether owned by that Person or by others.


 


“Servicing Rights” is defined in the definition of “Servicer”.


 


“SIPA”
means the Securities Investors Protection Act of 1970, 15 U.S.C. § 78a et. seq., as amended.


 


15

















 


“Sublimit”
means one or more (as the context requires) of the concentration limits under
the Repurchase Facility described in Article 5.


 


“Subordinated
Creditor” means each creditor holding indebtedness or other
obligations of the Seller that are subordinated to the Obligations pursuant to
the terms and conditions of the Subordination Agreement applicable to such
creditor.


 


“Subordinated
Debt” means any indebtedness of the Seller subordinated in writing
pursuant to a Subordination Agreement to the Obligations on terms and
conditions satisfactory in all respects to the Buyer, in its sole discretion,
including without limitation, with respect to interest rates, payment terms,
maturities, amortization schedules, collateral, covenants, defaults, remedies,
and subordination provisions, as evidenced by the written approval of the
Buyer.


 


“Subordination
Agreement” means a written subordination agreement in form and
substance satisfactory to and approved by the Buyer that subordinates (x) all
present and future debts and obligations owing by the Seller to the Person
signing such Subordination Agreement as a creditor to (y) to the
Obligations, in both right of payment and lien priority, including standstill
and blockage provisions approved by the Buyer.


 


“Subsidiary”
means, with respect to any Person (herein referred to as the “parent”), any corporation, association or other business
entity of which more than fifty percent (50%) of the securities or other
ownership interests having ordinary voting power is, or with respect to which
rights to control management (pursuant to any contract or other agreement or
otherwise) are, at the time as of which any determination is being made, owned,
controlled or held by the parent or one or more subsidiaries of the parent.


 


“Supplemental  Papers”  means  the  Loan  Papers  for  a  particular  Purchased  Loan  other  than  its  Required  Documents.  Schedule  SP  lists  the  Supplemental  Papers.


 


“Tangible
Assets” means all assets of the Seller, determined in accordance
with GAAP, but excluding Intangible Assets.


 


“Tangible Net
Worth” means, as of any date of determination thereof, an amount
equal to the difference between (a) Tangible Assets as of such date and (b) Total
Liabilities as of such date, all determined in accordance with GAAP.


 


“Taxes” is defined in Section 8.1.


 


“Termination
Date”  means the earlier of (i) [                            ],
2008 or (ii) the date when the Buyer’s Commitment is terminated pursuant
to this Agreement or by operation of Law.


 


“Total Debt”
means, as of any date of determination thereof, (a) the sum (without
duplication) of (i) Total Liabilities as of such date and (ii) all indebtedness
or other obligations for borrowed money or for the deferred purchase price of
property or services as of such date, minus (b) the
sum of, to the extent included in clause (a)(i) or (ii) above, (i) if
outstanding at any time, any Subordinated Debt, all determined in accordance
with GAAP.


 


“Total
Liabilities” or “Liabilities”
means all liabilities and obligations of the Seller, determined in accordance
with GAAP, and includes, without limitation, Funded Liabilities and/or Current
Liabilities, as the case may be.


 


“Transaction” is defined in Article 1.


 


“Type”
means (a) when used in respect of any Purchased Loan, a Conforming
Mortgage Loan, a Wet Mortgage Loan, a Non-Conforming Mortgage Loan, a
Reacquired Mortgage Loan, a Rejected Mortgage Loan or an PSTP Mortgage Loan,
and (b) when used in respect of any Sublimit, the Conforming Mortgage
Loans Sublimit, the Wet Mortgage Loans Sublimit, the Non-Conforming Mortgage
Loans Sublimit, the Reacquired/Rejected Mortgage Loans Sublimit, the Rejected
Mortgage Loans Sublimit or the PSTP Mortgage Loans Sublimit.


 


16














 


“UCC”
means the Uniform Commercial Code or similar Laws of the applicable
jurisdiction, as amended from time to time.


 


“VA”
means the Department of Veterans Affairs and any successor.


 


“Wet Mortgage
Loan” is defined in Annex F.


 


“Wet Mortgage
Loan Period” means, with respect to a Wet Mortgage Loan, the five (5) Banking
Day period, commencing on the Purchase Date, by which the Seller must deliver
to the Buyer the Required Documents for such Mortgage Loan.


 


“Wet Mortgage
Loans Sublimit” means that portion of the Repurchase Facility
available for the purchase of Wet Mortgage Loans, as more fully set forth in
the table in Section 5.2(iii).


 


“Wholly-Owned
Subsidiary” shall mean any Subsidiary, all of the stock or ownership
interests of every class of which shall, at the time as of which any
determination is being made, be owned by the Seller either directly or through
a Wholly-Owned Subsidiary.


 


2.3           Definitions for Price
Calculations.  For
convenience of reference, definitions used in provisions relating to calculation
of the applicable Pricing Rate and payment of Price Differential are grouped
together in this Section.


 


“Base Rate”
is defined in the definition of “Rate”.


 


“Index”
means a standard interest rate used as an index for determining a Rate
hereunder.  The Indexes used in this
Agreement are:


 


(i)            “LIBOR”,
which means, for any day on which a Transaction is Open, the rate appearing on
the display designated as Reuters Screen LIBOR 01 Page (or
on any successor or substitute page, or any successor to or substitute for such
service, providing rate quotations comparable to those currently provided on
such page, as determined by the Buyer from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m. on that day, as the
rate for delivery on that day of one (1) month U.S. dollar deposits of One
Million Dollars ($1,000,000) or, if not so reported on such service for any
reason, then on any other interest rate reporting service of recognized
standing designated in writing by the Buyer to the Seller, as the one-month
LIBOR, adjusted daily with each change in the one-month LIBOR; provided,
however, in no event shall such rate be less than a floor rate per annum
equal to 2.50% (250 basis points) or greater than a ceiling rate equal to the
Prime Rate, which floor rate is subject to change at any time upon written
notice from the Buyer.  Any Price
Differential based on LIBOR shall be (a) calculated on a 360 day basis
applied for the actual number of days for which the Transaction to which it
applies is Open (i.e., on a 365/360 (or 366/360 in
a leap year) day basis) and (b) adjusted daily with each change in LIBOR.


 


(ii)           The “Prime Rate”,
which means the rate of interest per annum publicly announced from time to time
by Colonial Bank as its prime rate; provided, however, in no
event shall such rate be less than a floor rate per annum equal to 5.50% (550
basis points), which floor rate is subject to change at any time upon written
notice from the Buyer.  Each change in
the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective. 
The Prime Rate is a reference rate and is not necessarily the lowest
rate.  Any Price Differential based on
the Prime Rate shall be (a) computed on a 365/365 (or 366/366 in a leap
year) day basis and (b) adjusted daily with each change in the Prime Rate.


 


Should any issue ever arise
in any forum or under any circumstances as to the amount of any Index for any
then-current or any prior day, a certificate of the chief credit officer of
Colonial Bank, stating such Index for that day, absent manifest error, shall
conclusively establish what the Index was for that day.


 


“Past Due”
means that the Seller has not repurchased the subject Purchased Loan on or
before its Repurchase Date.


 


17

















 


“Price
Differential” means, with respect to any Transaction hereunder for
any day, the aggregate amount obtained by daily multiplication, for each day,
commencing on (and including) the Purchase Date and ending on (but excluding)
such date of determination, of (i) the Pricing Rate applicable to such
Transaction on such day, by (ii) the Purchase Price for such Transaction
on such day, reduced by the amount of Price Differential theretofore paid by
the Seller to the Buyer with respect to such Transaction.  Absent manifest error, the Buyer’s
determination of the Price Differential shall be conclusive and binding.


 


“Pricing
Margin”  means the pricing rate margin to
be added to a specified Index to determine a Rate.  The margins used in this Agreement are: (A) the
“LIBOR Margin”, which means, (1) in
the case of Conforming Mortgage Loans, 1.45% (145 basis points), floating
daily; subject, however, to adjustment to 1.70% (170 basis
points) after the 60th day after the applicable Purchase Date (said
adjustment being effective on day 61); (2) for Wet Mortgage Loans, 1.50%
(150 basis points), floating daily; (3) for Non-Conforming Mortgage Loans,
1.50% (150 basis points), floating daily; subject, however, to
adjustment to 1.75% (175 basis points) after the 60th day after the
applicable Purchase Date (said adjustment being effective on day 61); (4) for
Reacquired Mortgage Loans or Rejected Mortgage Loans, 2.50% (250 basis points),
floating daily; and (5) for PSTP Mortgage Loans, 2.25% (225 basis points),
floating daily; and (B) the “Prime Margin”,
which means 3% (300 basis points).


 


“Rate”
means the Pricing Rate (R) to be multiplied by the Purchase Price (P) of
the Purchased Loans in each Open Transaction for the relevant time period (T) to
determine Price Differential (I).  Each Rate is stated as an annual percentage
rate and is the sum of an Index and a Pricing Margin.  The Rates used in this Agreement are:


 


(i)            The “Base Rate”
which, for each day on which the relevant Transaction is Open, is a rate per
annum equal to the lesser of:


 


(a)           the sum of (x) LIBOR for that day and (y) the
LIBOR Margin; or


 


(b)           the Ceiling Rate for that day;


 


(ii)           The “Ceiling Rate”
which means, on any day, the maximum nonusurious rate of interest permitted for
that day by applicable Law, stated as a rate per annum; and


 


(iii)          The “Past Due Rate”
which means, for any day after the Repurchase Date for the relevant Transaction,
the lesser of:


 


(a)           the sum of (x) Prime Rate for that day and (y) the
Prime Margin; and


 


(b)           the Ceiling Rate for that day.


 


Each
determination by the Buyer of any Rate, absent manifest error, shall be
conclusive and binding.


 


“Pricing Rate”
means the Rate for determination of Price Differential, and shall be for all
Open Transactions the Rates applicable to each of the Open Transactions; provided that if on any day the applicable Rate for any such
Transaction as a whole or the aggregate of all Open Transactions determined as
provided above shall exceed the relevant Ceiling Rate for that day, then the
Rate therefor shall be reset to the Ceiling Rate on that day for that day.


 


2.4          Other Definitional Provisions.


 


(i)            Accounting terms not
otherwise defined shall have the meanings given them under GAAP; provided
that, for purposes of determining compliance with any covenant set forth in Section 18.24,
such term shall be construed in accordance with GAAP as in effect on the date
of this Agreement applied on a basis consistent with the financial statements
referred to in Section 16.1(iv)(a); and further  provided,
that if the Seller notifies the Buyer that the Seller wishes to amend any
covenant in Section 18.24 to eliminate the effect of any change in
GAAP on the operation of such covenant (or if the Buyer notifies the Seller
that the Seller wishes to amend Section 18.24 for such purpose),
then the Seller’s compliance with such covenant shall be determined on the 


 


18

















 


basis
of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Seller and the Buyer.


 


(ii)           Defined terms may be used in
the singular or the plural, as the context requires.


 


(iii)          Except where otherwise
specified, all times of day used in the Facility Papers are local (U.S. Eastern
Time Zone) times in Orlando, Florida.


 


(iv)          Unless the context plainly
otherwise requires (e.g., if preceded by the word “not”), wherever the word “including”
or a similar word is used in the Facility Papers, it shall be read as if it
were written, “including by way of example but without in any way limiting the
generality of the foregoing concept or description”.


 


3              The Buyer’s Commitment


 


3.1          The Buyer’s Commitment to
Purchase.  Subject to
the terms and conditions of this Agreement, and provided the conditions
precedent set forth in Article 15 have been satisfied and no
Potential Default or Event of Default has occurred that the Buyer has not
declared in writing to have been cured or waived (or, if one has occurred and
not been so declared cured or waived, if the Buyer, in its sole discretion and
with or without waiving such Potential Default or Event of Default, has elected
in writing that Transactions under this Agreement shall continue nonetheless),
the Buyer agrees to make revolving purchases of Eligible Loans, until the
Termination Date, so long as the Aggregate Outstanding Purchase Price does not
exceed the Commitment.


 


3.2          Expiration or Termination of the
Commitment.  Unless
extended in writing or terminated earlier in accordance with this Agreement,
the Buyer’s Commitment shall automatically expire at the close of business (A) on
the date set forth in clause (i) of the definition of Termination Date,
without any requirement for notice or any other action by the Buyer or any
other Person, or (B) on any date prior to the date set forth in clause (i) of
the definition of Termination Date as may be determined by the Buyer, in its
sole discretion, upon notice not less than 6 month’s notice to the Seller, in
each case subject to earlier termination as set forth in Section 19.2.  The Buyer’s Commitment may not be reduced in
part by the Seller, but may be terminated in its entirety at any time by the
Seller upon at least sixty (60) days’ prior irrevocable notice to the Buyer,
provided all Obligations are paid in full on or prior to such termination date.


 


3.3          Changes in Product
Eligibility.  The Buyer may
from time to time, in the exercise of the Buyer’s reasonable discretion based
on, among other things, prevailing market conditions or changes in the Buyer’s
internal underwriting standards and without the consent of the Seller, revise
the definition of Conforming Mortgage Loan, Eligible Loans, Non-Conforming
Mortgage Loan, Reacquired Mortgage Loan, Rejected Mortgage Loan, PSTP Mortgage
Loan and/or Wet Mortgage Loan by delivery to the Seller of an Eligibility
Change Notice.  Each Eligibility Change
Notice shall be effective as of the effective date set forth therein, provided
such effective date shall not be earlier than the date of the Seller’s receipt
of the Eligibility Change Notice, and provided further that the revisions
effectuated pursuant to the Eligibility Change Notice shall not be applicable
to Mortgage Loans in the Seller’s pipeline as of such effective date (i.e.,
Mortgage Loans that have been committed by the Seller as of such effective date
but that have not yet closed).


 


4              Initiation; Purchase Request; Termination


 


4.1          Seller’s Purchase Request.


 


(i)            Any agreement to enter into
a Transaction shall be made by notice to the Buyer at the initiation of the
Seller. To request a Transaction, the Seller shall provide the Buyer with a
Purchase Request (Electronically Submitted or by facsimile). Each Purchase
Request shall identify the informational requirements set forth in the
Procedural Manual.


 


(ii)           If the Seller submits a
Purchase Request and:


 


19

















 


(a)           it is received by 12:00 p.m.
(or 3:00 p.m. if Electronically Submitted) on the proposed Purchase Date,
the Transaction shall be funded by the Buyer on such date, provided that all
conditions to funding (including the requirements of Section 3.1
and this Section 4.1) are then satisfied; or


 


(b)           it is not received until
after 12:00 p.m. (or 3:00 p.m. if Electronically Submitted) on the
proposed Purchase Date, then the Buyer shall fund such requested Transaction on
the next succeeding Banking Day, provided that all conditions to funding
(including the requirements of Section 3.1 and this Section 4.1)
are then satisfied.


 


4.2          Binding Transactions.  Upon Buyer’s receipt of a Purchase Request,
the Transaction requested by the Seller under such Purchase Request shall
become binding and irrevocable on the parties. The Buyer shall be entitled to
rely on the accuracy, and may act without liability upon the basis, of each
Purchase Request made by the Seller without further investigation or inquiry.  In each case, the Seller waives the right to
dispute or hold the Buyer in any way responsible for any errors or omissions in
any Purchase Request. By delivering a Purchase Request to the Buyer, the Seller
shall be deemed to represent and warrant to the Buyer that all of the
representations and warranties in this Agreement and in the other Facility
Papers are true and correct with the same force and effect as if made on the
date of such Purchase Request and that no Potential Default or Event of Default
has occurred and is continuing.  The
Buyer reserves the right in its discretion to review and reduce the Buyer’s
Margin Percentage at any time with respect to any Transaction.   Notwithstanding
anything contained herein to the contrary, in no event will the Buyer be
obligated, at any time after the date hereof, to fund the purchase of any
Eligible Loans originated by any third party correspondent of the Seller and
purchased by the Seller from such third party correspondent until the Seller
has delivered or has caused to be delivered to the Buyer all of the Required
Documents and, if requested by the Buyer at any time, all of the Supplemental
Papers (accompanied by a bailment letter, in form and substance acceptable to
the Buyer, if such third party correspondent is not a bank) for such Mortgage
Loan. The Buyer may change its procedures for funding requests for Transactions
from time to time upon not less than three (3) Banking Days’ prior notice
to the Seller. In the event of any conflict between the terms of a Purchase
Request and this Agreement, this Agreement shall prevail.


 


4.3          Transaction Termination.


 


(i)            Automatic Termination.  The Seller shall repurchase each Purchased
Loan from the Buyer on the applicable Repurchase Date at the applicable
Repurchase Price.  Each Transaction will
automatically terminate on the earlier of (x) the date when the subject
Purchased Loans are purchased by Approved Investors or (y) the Termination
Date.


 


(ii)           How Terminations will be Effected.  Termination of every Transaction will be
effected by (x) the Buyer’s reconveyance to the Seller or its designee of
the Purchased Loans and payment of any Income in respect thereof received by
the Buyer and not previously either paid to the Seller or applied as a credit
to the  Obligations, against (y) payment
by the Seller (or, by an Approved Investor on behalf of the Seller, if payment
is being made in connection with an Investor Commitment) to the Buyer of the
Repurchase Price therefor in immediately available funds to the account
referred to in Section 4.4 by 1:00 p.m. on the Repurchase
Date, so that the Buyer receives the Repurchase Price in collected funds on
that same Banking Day; provided that the portion of the Repurchase Price
attributable to accrued and unpaid Price Differential as of such Repurchase Date
shall not be due until the earlier of:


 


(a)           the Termination Date; or


 


(b)           the fifth (5th)
day after receipt by the Seller of the Buyer’s invoice therefor, which invoice
will be delivered to the Seller (electronically or otherwise) on or before the
5th day of the month immediately following the month in which the
Repurchase Date occurred, provided, however, that any failure or delay in
delivering such invoice or any inaccuracy therein shall not affect the
Obligations;


 


The Buyer is authorized by
the Seller to debit amounts on deposit in the Master Advance Account (or any of
the Seller’s other accounts maintained with the Buyer) for payment of Price
Differential and Fees when due.  The
Buyer shall have the sole right of withdrawal with regard to funds from time to
time in the Investor Funding Account and 


 


20

















 


shall periodically transfer
any excess funds remaining in the Investor Funding Account to the Master
Advance Account after payment of the Repurchase Prices and other amounts due
the Buyer hereunder.


 


4.4           Place for Payments of Repurchase
Prices.  All Repurchase Price payments,
whether attributable to Purchase Price or Price Differential, shall be paid to
directly to the Buyer by wire transfer to:


 


Colonial Bank, N.A.


201 East Pine Street, Suite 730


Orlando, FL  32801


ABA No. 062001319


For Credit Account No. 8037245274


Attention: Mortgage
Warehouse Lending Division


Phone:  (407) 835-6700


For credit to:  Sirva Mortgage, Inc. – Investor Funding
Account


 


Such
wire shall also specify the last name(s) of each Customer and loan number(s) for
the applicable Mortgage Loan(s); provided, however, the Buyer may
change the wire transfer instructions from time to time by written notice to
the Seller.


 


4.5           If Repurchase Price Not Paid.  If the Seller fails for any reason to
repurchase any one or more Purchased Loans on the applicable Repurchase Date in
the manner and by the time specified in Sections 4.3 and 4.4, in
addition to the Buyer’s other rights and remedies set forth herein, the Buyer
is hereby specifically and irrevocably authorized to withdraw the Seller’s
cleared funds from the Master Advance Account in an amount equal to the sum of
the Repurchase Prices of all Purchased Loans that are Past Due on that day and
apply such funds withdrawn to the payment of the Repurchase Prices of such
Purchased Loans in such order and manner as the Buyer may elect.  The foregoing authorization shall remain in
effect until all amounts in respect of the Obligations are paid to the Buyer.


 


5              Transaction Limits and
Sublimits


 


5.1           Transaction Limits.  Each Transaction shall be subject to the
Sublimits set forth in Section 5.2. 
No Transaction will be executed if after giving effect to such
Transaction, the Aggregate Outstanding Purchase Price exceeds or would exceed
the Commitment.


 


5.2           Transaction Sublimits.  The following sublimits shall also be
applicable to Transactions hereunder:


 


(i)            The Aggregate Outstanding
Purchase Price of Purchased Loans that are Conforming Mortgage Loans shall not
exceed one hundred percent (100%) of the Commitment (the “Conforming
Mortgage Loans Sublimit”).


 


(ii)           The Aggregate Outstanding
Purchase Price of all Purchased Loans that are Wet Mortgage Loans shall not
exceed (x) the lesser of: (1) $8,750,000 or (2) thirty-five
percent (35%) of the Commitment on any of the first five and last five Banking
Days of any month or (y) the lesser of: (1) $6,250,000 or (2) twenty-five
percent (25%) of the Commitment on any other day (the “Wet Mortgage
Loans Sublimit”).


 


(iii)          The Aggregate Outstanding
Purchase Price of all Purchased Loans that are of the Type listed in the first
column of the following table shall not exceed the lesser of the amount listed
in the second column of the table below or the percentage of the Commitment
listed in the third column of the table (the name of that Sublimit is set forth
in the fourth column):


 


	
  Type of Purchased Loan

  	
   

  	
  Maximum 

  Amount

  	
   

  	
  Maximum
  percentage of 

  Commitment

  	
   

  	
  Name of
  Sublimit

  
	
  Non-Conforming Mortgage Loans

  	
   

  	
  $

  	
  2,500,000

  	
   

  	
  10

  	
  %

  	
  “Non-Conforming
  Mortgage Loans Sublimit”

  
	
  Reacquired Mortgage Loans and Rejected Mortgage
  Loans

  	
   

  	
  $

  	
  2,500,000

  	
   

  	
  10

  	
  %

  	
  “Reacquired/Rejected
  Mortgage Loans Sublimit”

  
	
  PSTP Mortgage Loans

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
  N/A

  	
   

  	
  “PSTP
  Mortgage Loans Sublimit”

  



 


21

















 


If
as of any Determination Date any of such Sublimits shall be exceeded, by notice
to the Seller the Buyer may demand that the Seller repurchase from the Buyer so
many Purchased Loans of the relevant Type as shall be required to reduce the
Aggregate Outstanding Purchase Price of Purchased Loans of that Type to a level
that does not exceed the relevant Sublimit, and the Seller shall pay to the
Buyer the Repurchase Price for each such Purchased Loan within one (1) Banking
Day after such demand.  If no Event of
Default has occurred and is then continuing, upon the Buyer’s receipt of such
Repurchase Prices, the Buyer shall reconvey to the Seller the Purchased Loans
for which the Buyer has been paid such Repurchase Prices, but only to the
extent that the conveyance from the Buyer to the Seller of such Purchased Loans
pursuant to this Section 5 does not cause or result in a Margin
Deficit pursuant to Section 7.1.


 


6              Price Differential


 


6.1           Pricing Rate.  Subject to the following rules, and as
contemplated in the definition of Pricing Rate, the Pricing Rate to be applied
to the Purchase Price of a Purchased Loan to determine the Price Differential
in all Open Transactions on any day when no Event of Default has occurred and
is continuing shall be the Base Rate for that day and for that Type of
Purchased Loan.  Any change in the
Pricing Rate due to a change in the Index shall be effective at the beginning
of the Banking Day on which any such change is announced.  Notwithstanding the foregoing, if the Buyer,
in its sole discretion, extends the Repurchase Period with respect to any Past
Due Purchased Loan, then, in addition to any payments required to be made by
the Seller pursuant to  Section 13.5,
the Pricing Rate to be applied to such Past Due Purchased Loan during such
extended period of time may, at the Buyer’s election, be increased to the
lesser of the (i) Past Due Rate or (ii) Ceiling Rate, from (and
including) the day immediately following the Repurchase Date for each such Past
Due Purchased Loan and until (but excluding) the date on which such Past Due
Purchased Loan is repurchased by the Seller by payment to the Buyer of the full
Repurchase Price in immediately available funds.  The foregoing notwithstanding, if any
Purchased Loan is Past Due for more than ten (10) days, the Buyer, at its
option, may elect, without notice to the Seller, to utilize the Ceiling Rate as
the Pricing Rate for such Past Due Purchased Loan for each day that such
Purchased Loan is Past Due.


 


6.2           Price Differential Payment Due
Dates.  The Price Differential on each
Open Transaction accrued and unpaid as of the end of each calendar month shall
be due and payable, whether or not such Transaction is still Open on such
payment date, on or before the fifth (5th) day after receipt by the
Seller of the Buyer’s invoice therefor, which invoice will be delivered to the
Seller (electronically or otherwise) on or before the 5th day of the
immediately following month, provided, however, that any failure or delay in
delivering such invoice or any inaccuracy therein shall not affect the
Obligations. With respect to any Price Differential not paid by the Seller on
or before the due date therefor, the Pricing Rate may, at the Buyer’s election,
be increased, for all Open Transactions, to the Past Due Rate, from (and
including) the day immediately following the original payment due date for such
Price Differential and until (but excluding) the date on which all outstanding
Price Differential is paid in full in immediately available funds. The
foregoing notwithstanding, if any payment of Price Differential is more than
ten (10) days past due, the Buyer, at its option, may elect, without
notice to the Seller, to utilize the Ceiling Rate as the Pricing Rate for all
Open Transactions for each day that such payment of Price Differential is past
due.  All accrued and unpaid Price
Differential on all Transactions shall be due and payable on the Termination
Date.


 


7              Margin Maintenance


 


7.1           Margin Deficit.  If at any time (i) the Market Value of a
Purchased Loan is less than the Repurchase Price for such Purchased Loan
or (ii) the aggregate Market Value of all Purchased Loans is less
than the 


 


22

















 


aggregate
Repurchase Price for all Purchased Loans (in each case, a “Margin
Deficit”), then by notice to the Seller (a “Margin Call”),
the Buyer may require the Seller to pay to the Buyer, in immediately available
funds, (x) the difference between the Market Value of such Purchased Loan
and the Repurchase Price for such Purchased Loan or (y) the difference
between the Market Value of all such Purchased Loans and the aggregate
Repurchase Price for all such Purchased Loans, as applicable.


 


7.2           Margin Call Deadline.  If the Buyer notifies the Seller of a Margin
Call at or before 12:00 p.m. (or such other time as the parties may
mutually agree) on any Banking Day, then the Seller shall make the payment
required in Section 7.1 by the next Banking Day (or such other time
as the parties may mutually agree).


 


7.3           Application of Margin Payments.  Any payment to the Buyer pursuant to Section 7.1
shall be applied by the Buyer to reduce the Repurchase Price of the applicable
Transaction(s) in accordance with Section 13.7.


 


8              Taxes


 


8.1           Payments to be Free of Taxes;
Withholding. All payments made by the Seller under this Agreement and the other
Facility Papers shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding, in the case of the Buyer, net income taxes
and franchise taxes (imposed in lieu of net income taxes) imposed on the Buyer
as a result of a present or former connection between the jurisdiction of the
government or taxing authority imposing such tax and the Buyer (excluding a
connection arising solely from the Buyer having executed, delivered, performed
its obligations or received a payment under, or enforced, this Agreement or the
other Facility Papers) or any political subdivision or taxing authority thereof
or therein (all such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions and withholdings being hereinafter called “Taxes”).  If any Taxes
are required to be withheld from any amounts payable to the Buyer hereunder or
under other Facility Papers, the amounts so payable to the Buyer shall be
increased to the extent necessary to yield to the Buyer (after payment of all
Taxes) interest (or its equivalent) or any such other amounts payable hereunder
at the rates or in the amounts specified in this Agreement and the other
Facility Papers.  Whenever any Taxes are
payable by the Seller, as promptly as possible thereafter the Seller shall send
to the Buyer a certified copy of an original official receipt received by the
Seller showing payment thereof.  If the
Seller fails to pay any Taxes when due to the appropriate taxing authority or
fails to remit to the Buyer the required receipts or other required documentary
evidence, the Seller shall indemnify the Buyer for any incremental taxes,
interest or penalties that may become payable by the Buyer as a result of any
such failure.  The agreements in this
subsection shall survive the termination of this Agreement and the payment of
the amounts payable hereunder and under the other Facility Papers.


 


9              Income Payments


 


Notwithstanding that the
Buyer and the Seller intend that the Transactions be sales to the Buyer of the
Purchased Loans, where a particular Transaction’s term extends over an Income
payment date in respect of the Purchased Loans subject to that Transaction,
unless (i) otherwise mutually agreed by the Buyer and the Seller (in which
event the Income shall be paid in accordance with their agreement) or (ii) an
Event of Default or Potential Default shall have occurred and be continuing (in
which event, all Income shall be paid to the Buyer to be applied towards
payment of the Obligations), all payments and distributions, whether in cash or
in kind, made on or with respect to the Purchased Loans collected by the Seller
from the applicable Customer shall be immediately sent to the Buyer in the form
received by the Seller or shall be deposited in a separate segregated account
of the Seller named “Receipts on Purchased
Loans Owned By Colonial Bank, N.A.” and, on clearing of such
deposits, shall be wire transferred immediately thereafter by the Seller to the
Buyer for deposit into the Investor Funding Account for 


 


application to the
Obligations in accordance with Section 4.3(ii). The Buyer shall
have no obligation to collect or apply any Income to prevent or reduce any
Margin Deficit.


 


10           Fees


 


10.1         Repurchase Facility Fees and
Other Fees.


 


23

















 


(i)            The Seller agrees to pay to
the Buyer a collateral processing fee (the “Collateral Processing Fee”)
in the amount of $10.00 for each Mortgage Loan that the Buyer purchases (Wet
Mortgage Loans or Conforming Mortgage Loans or Non-Conforming Loans that are
purchased under the applicable Sublimit and then moved to the
Reacquired/Rejected Mortgage Loan Sublimit are not charged twice), payable monthly
in arrears on or before ten (10) days following receipt by the Seller of a
statement from the Buyer for such Collateral Processing Fee based upon the
prior month’s activity, unless otherwise directed by the Buyer.


 


(ii)           The Seller agrees to pay to
the Buyer an endorsement fee (the “Endorsement Fee”)
in the amount of $10.00 for each Mortgage Loan that the Buyer endorses on
behalf of the Seller because such Mortgage Loan is missing the Seller’s
endorsement when it is submitted to the Buyer, payable monthly in arrears on or
before ten (10) days following receipt by the Seller of a statement from
the Buyer for such Endorsement Fee based upon the prior month’s activity (which
statement may be included with or be a part of the monthly billing statement
delivered by the Buyer to the Seller), unless otherwise directed by the Buyer.


 


(iii)          If, at any time, the average
daily amount outstanding under the Repurchase Facility for any fiscal quarter
of the Seller then ended is less than fifty percent (50%) of the average daily
availability under the Repurchase Facility for such fiscal quarter, the Seller
shall pay to the Buyer a non-usage fee (the “Non-Usage
Fee”) at a rate per annum equal to 0.125% (12.50 basis points) on
the difference between (i) fifty percent (50%) of the average daily
availability under the Repurchase Facility for such fiscal quarter and (ii) the
average daily amount outstanding under the Repurchase Facility for such fiscal
quarter.  If applicable at any time or
from time to time, such Non-Usage Fee shall be payable quarterly in arrears on
or before the second (2nd) Banking Day following receipt by the Seller of a
statement from the Buyer for such Non-Usage Fee based upon the prior fiscal
quarter’s activity (which statement may be included with or be a part of a
monthly Price Differential billing statement delivered by the Buyer to the
Seller).  Failure of the Buyer to deliver
such statement to the Seller shall not affect the Seller’s obligation to pay
the Non-Usage Fee.


 


(iv)          If at the end of any
calendar month the Seller is not in compliance with any of the financial covenants
set forth in Section 18.24, and the Buyer agrees, in its sole
discretion and in writing, to forbear enforcement of such covenant
violation(s), the Seller shall pay the Buyer, for each such covenant violation,
an administrative fee (the “Administrative Fee”) in the amount of $1,500.00
for each month that such covenant violation and forbearance continues, which
Administrative Fee shall be payable within five (5) Banking Days following
each calendar month-end (and the Buyer is authorized by the Seller to debit
amounts on deposit in the Master Advance Account or any of the Seller’s other
accounts maintained with the Buyer for such payment); provided, however,
nothing contained herein shall obligate the Buyer to agree to any such
forbearance; and further  provided, however, if the Buyer
does not agree to any such forbearance (or, at any time following its agreement
to any such forbearance, thereafter withdraws such forbearance in writing), the
Seller’s non-compliance with the provisions of Section 18.24 shall
constitute an Event of Default.


 


(v)           The Seller agrees to pay to
the Buyer, if charged by the Buyer in its sole discretion, a reinstatement fee
(the “Reinstatement Fee”) in the amount of
$5.00 for each Purchase Loan that has been shipped to an Approved Investor for
purchase and been returned unpurchased. 
Such Reinstatement Fee, if any, shall be payable monthly in arrears upon
receipt by the Seller of a statement from the Buyer therefor based upon the
prior month’s activity and on the dates separately agreed to by the Buyer and
the Seller.


 


(vi)          The Seller agrees to pay to
the Buyer, if charged by the Buyer in its sole discretion, a wire transfer fee
(the “Wire Transfer Fee”) in the amount of
$15.00 for each outgoing wire transfer made by the Buyer on behalf of the
Seller.  Such Wire Transfer Fee, if any,
shall be payable monthly in arrears upon receipt by the Seller of a statement
from the Buyer therefor based upon the prior month’s activity and on the dates
separately agreed to by the Buyer and the Seller.


 


(vii)         In addition to the foregoing
fees, the Seller shall pay or reimburse the Buyer for any transaction fees
payable to MERS in connection with the registration of mortgage assignments to
the Buyer for the benefit of the Buyer if the Seller uses MERS and, further,
shall pay all pass-through costs in connection with the purchase of Mortgage
Loans under the Reacquired/Rejected Mortgage Loans Sublimit (recording costs,
etc.).


 


24

















 


(viii)        The fees set forth in this Section 10.1,
once paid, shall not be refundable under any circumstances.


 


11           Security Interest


 


Although the parties intend
that, subject to and not inconsistent with Article 36, all
Transactions be sales and purchases and not loans, if any one or more
Transactions are recharacterized as loans by a court of competent jurisdiction,
the Seller shall be conclusively deemed, as security for the payment and
performance by the Seller of its obligations under each such recharacterized
Transaction, to have pledged and granted to the Buyer a security interest in
and a lien on, all of the Purchased Loans with respect to all such
recharacterized Transactions and all Income and proceeds from the Purchased
Loans that are the subject matter of such recharacterized Transactions,
including the Purchased Loans Support and all of the property, rights and other
items described in the definition of “Mortgage Loan” in Section 2.2
for each such Purchased Loan, and for that purpose the Seller hereby grants the
Buyer a security interest in and a lien to the property described on the copy
of Exhibit A to the UCC financing statement to be filed by the Buyer that
is attached as Schedule 11, and this Agreement shall constitute a
security agreement.  The Seller agrees to
do such things as applicable Law requires to maintain the security interest of
the Buyer so granted in all of the Purchased Loans with respect to all such
recharacterized Transactions and all Income and proceeds from the Purchased
Loans that are the subject matter of such recharacterized Transactions as a
perfected first priority Lien at all times. 
The Seller hereby authorizes the Buyer to file any financing or
continuation statements under the applicable UCC to perfect or continue such
security interest in any and all applicable filing offices.  The Seller shall pay all customary fees and
expenses associated with perfecting such security interest including the costs
of filing financing and continuation statements under the UCC and recording
assignments of Mortgages as and when required by the Buyer, in its reasonable
discretion.


 


12           Substitution


 


12.1         Seller May Substitute Other
Eligible Loans with Notice to and Approval of the Buyer.  Subject to agreement with and acceptance by,
and upon notice to, the Buyer, the Seller may substitute for any Purchased Loan
an Eligible Loan of the same Type.  If
the Seller gives notice to the Buyer at or before 12:00 noon on a Banking Day,
the Buyer may elect, by the close of business on the Banking Day notice is
received or by the close of the next Banking Day if notice is received after
12:00 noon on such day, not to accept such substitution (no election by the
Buyer being deemed a rejection of the substitution).  If such substitution is accepted by the
Buyer, such substitution shall be made by the Seller’s transfer to the Buyer of
such other Eligible Loan and the Buyer’s transfer to the Seller of such
Purchased Loan, and after such substitution, the substituted Eligible Loan
shall be deemed to be a Purchased Loan. 
If the Buyer elects not to accept such substitution, the Seller shall
offer the Buyer the right to terminate the related Transaction.


 


12.2         Payment to Accompany Substitution.  If the Seller exercises its right to
substitute or terminate under Section 12.1, the Seller shall be
obligated to pay to the Buyer by the close of the Banking Day of such
substitution or termination, as the case may be, an amount equal to the sum of (x) actual
cost (including all customary fees, expenses and commissions) to the Buyer of (i) entering
into replacement Transactions, (ii) entering into or terminating hedge
transactions and/or (iii) terminating Transactions or substituting
securities in like transactions with third parties in connection with or as a
result of such substitution or termination, and (y) to the extent the
Buyer determines not to enter into replacement Transactions, the loss incurred
by the Buyer directly arising or resulting from such substitution or
termination.  The foregoing amounts shall
be solely determined and calculated by the Buyer in good faith.


 


13           Payment and Transfer


 


13.1          Immediately Available Funds;
Notice to the Buyer.  Unless
otherwise mutually agreed, all transfers of funds hereunder shall be in
immediately available funds.


 


13.2          Payments to the Buyer.  Except as otherwise specifically provided in
this Agreement, all payments required of the Seller by this Agreement or the
other Facility Papers to be made to the Buyer shall be paid (i) to the
Buyer for deposit in the Investor Funding Account, (ii) by not later than
1:00 p.m. on the day when due, it being expressly agreed and understood
that if a payment is received after 1:00 p.m. by the Buyer, such payment
will be 


 


25

















 


deemed
to have been made on the next succeeding Banking Day and any Price Differential
accruing with respect thereto thereon shall be payable at the then applicable
Pricing Rate during such extension; provided, however, any
payments received via wire transfer before 5:00 p.m. shall be treated as
having been received by the Buyer on the same Banking Day as receipt of such
funds if (B) the Seller has sufficiently identified to the Buyer the
Transaction and related Purchased Loans to which such payment relates (by the
last name(s) of each Customer and loan number(s)) prior to 12:00 p.m.
noon on the next Banking Day after receipt of such funds) and (B) the
transfer is actually confirmed by the Buyer as being credited to the Buyer’s
account with the Federal Reserve Bank on the Banking Day of the receipt of such
funds, and (iii) without setoff, counterclaim or deduction, in lawful
money of the United States of America in immediately available funds at the
principal office of the Buyer located at 201 East Pine, Suite 730,
Orlando, FL  32801, or by fed funds wire
transfer to:


 


Colonial
Bank, N.A.


201
East Pine Street, Suite 730


Orlando,
FL  32801


ABA
No. 062001319


Attention:
Mortgage Warehouse Lending Division


Phone:  (407) 835-6700


Account
No. 8037245274


For
Credit — Investor Funding Account of Sirva Mortgage, Inc.


 


or
at such other place as the Buyer shall designate from time to time.  Whenever any payment to be made under this
Agreement or any of the other Facility Papers shall be stated to be due on a
day that is not a Banking Day, the due date for that payment shall be
automatically extended to the next day that is a Banking Day, and (if
applicable) Price Differential at the applicable rate (determined in accordance
with this Agreement) shall continue to accrue during the period of such
extension.


 


13.3         If Payment Not Made When Due.  If and to the extent any payment is not made
when due under this Agreement or any of the other Facility Papers, the Seller
authorizes the Buyer then or at any time thereafter to charge any amounts so
due and unpaid against any or all of the Seller’s accounts with the Buyer; provided
that such right to charge the Seller’s accounts shall not apply to any
escrow, trust or other deposit accounts designated as being held by the Seller
on behalf of third party owners of the escrowed funds other than Affiliates of
the Seller.  The Buyer agrees to use
reasonable efforts to promptly advise the Seller of any charge made pursuant to
this Section, but its failure to do so will not affect the validity or collectibility
of such charge.  This
Section 13.3 shall not limit any of the Buyer’s other rights and
remedies set forth in this Agreement.


 


13.4         Reserved.


 


13.5         Mandatory Payment of Repurchase
Prices.   In addition to mandatory payments required
under Sections 4.3 and 7.1 and Articles 6, 9 and 10,
in the case of any Purchased Loan funded with a Reacquired/Rejected Mortgage
Loans Sublimit Transaction and not repaid in full within ninety (90) days after
the Purchase Date therefor, the Seller shall immediately pay to the Buyer to
reduce the Repurchase Price for the applicable Transaction (A) on the 91st
day after such Purchase Date, 15% of the initial Purchase Price for such
Purchased Loan, and (B) every 90th day thereafter, an
additional 25% of the initial Purchase Price for such Purchased Loan so that
the entire Purchase Price has been paid in full on or before the 360th day
following such Purchase Date.  If the
Buyer continues to hold any Purchased Loans past the applicable Repurchase
Period, the Seller shall pay to the Buyer the related Repurchase Price on the
Buyer’s demand, or if no demand for payment is made, in accordance with the
payment schedule specified therefor by the Buyer (which payment schedule shall
not exceed an aggregate of 364 days after the initial Purchase Date (after
taking into account the number of days lapsed in the Repurchase Period), and
may require periodic payments by the Seller toward reduction of the Repurchase
Prices).


 


13.6         Optional Prepayment of Repurchase
Prices.   The Seller shall have the right at any time
and from time to time to prepay outstanding Transactions of any Type, in whole,
but not in part, without premium or penalty and without prior written notice to
the Buyer, and such prepayment shall reduce the Repurchase Prices related to
such Transactions; provided, however, each partial prepayment
shall be in an amount sufficient to pay the Repurchase Price for the particular
Purchased Loan related to such Transaction and the Seller shall, at the time of
making such prepayment, designate the Transaction being prepaid.  If the Seller fails to make such a
designation, 


 


26

















 


any
funds received as a prepayment pursuant to this Section 13.6 shall
be applied to the Obligations in such order as the Buyer, in its sole
discretion, may determine.


 


13.7         Distribution of Payments.


 


(a)           Prior to the occurrence of an Event of Default and
acceleration of all Obligations or termination of the Commitment, all amounts
received on any day by the Buyer in respect of Repurchase Prices (other than
the Price Differential) for related Transactions shall be applied by the Buyer
as follows: first, to pay the Transactions
outstanding and due and payable on such day pursuant to Section 13.5;
second, to prepay the Transactions
outstanding and due and payable on such day pursuant to Section 13.6;
and third, the balance, if any (provided,
that no Potential Default or Event of Default has occurred and is continuing),
to the Seller by transfer to the Master Advance Account.  If any Potential Default or Event of Default
has occurred and is continuing, but the Obligations have not yet been
accelerated pursuant to Section 19.2, all amounts remaining after
making the applications required by clauses first and second above shall be applied to the payment of outstanding
Transactions and/or other outstanding Obligations, in such order as the Buyer
may determine.


 


(c)           Following (i) the occurrence of an Event of Default
and acceleration of all Obligations or (ii) termination of the Commitment,
all amounts received by the Buyer hereunder and under the other Facility Papers
shall be disbursed by the Buyer as follows: first, to the
Buyer to reimburse the Buyer for all fees, costs and expenses set forth in Section 21.1
reasonably incurred by the Buyer in connection with an Event of Default or
otherwise payable to the Buyer under the Facility Papers; second,
to the Buyer to pay the Price Differential on all Transactions and Fees due the
Buyer; third, to the Buyer to pay the Purchase
Prices on all outstanding Transactions in such order and amounts as the Buyer,
in its sole discretion, may determine; fourth, to the
Buyer to pay all remaining unpaid Obligations; and fifth,
any remaining amounts, to the Seller by transfer to the Master Advance Account,
or to such other account as the Seller may direct in writing for such purpose.


 


14           Segregation of Documents
Relating to Purchased Loans


 


All documents relating to
Purchased Loans in the possession of the Seller or its designee (including any
Servicer or any subservicer) shall be segregated from other documents and
securities in its or its designee’s possession and shall be identified as being
owned by the Buyer (which shall be referenced in the relevant books and records
as “Colonial Bank, N.A., as Buyer”) and subject to this Agreement.  Segregation may be accomplished by
appropriate identification of ownership on the books and records of the holder
of such documents, including MERS, a documents custodian, a financial or
securities intermediary or a clearing corporation. All of the Seller’s interest
in the Purchased Loans shall pass to the Buyer on the Purchase Date and nothing
in this Agreement shall preclude the Buyer from engaging with others in
repurchase transactions with the Purchased Loans or otherwise selling,
transferring, pledging or hypothecating the Purchased Loans, but no such
transaction shall relieve the Buyer of its obligations to transfer Purchased
Loans to the Seller pursuant to Articles 4 or 19, or of the Buyer’s
obligation to credit or pay Income to, or apply Income to the Obligations,
pursuant to Article 9.


 


15           Conditions Precedent


 


15.1         Initial Purchase.  The obligation of the Buyer to make purchases
under this Agreement are subject to the Seller’s fulfillment of the following
conditions precedent:


 


(i)            the Buyer shall have
received (or be satisfied that it will receive by such deadline as the Buyer
shall specify) the following, all of which are satisfactory in form and content
to the Buyer:


 


(a)           this Agreement duly executed
by the Seller;


 


(b)           the Electronic Tracking Agreement
duly executed by the Seller, MERS, MERSCorp., Inc. and the Buyer;


 


(c)           the UCC financing statements
for the Purchased Loans duly authorized by the Seller;


 


27

















 


(d)           a current UCC, judgment and
tax lien search report from the applicable state and county offices where the
Seller is located;


 


(e)           copies of the Seller’s (i) formation
documents certified by the Secretary of State of the state of its formation and
(ii) operating documents and all amendments certified by its corporate
secretary or assistant secretary, manager or member, as the case may be, as
well as any other information required by Section 326 of the USA Patriot
Act or necessary for the Buyer to verify the identity of the Seller as required
by Section 326 of the USA Patriot Act in accordance with the requirements
summarized in the notice given in Section 38;


 


(f)            a certificate of good
standing for the Seller issued by the Secretary of State of the state in which
such Person is formed and a certificate of existence or foreign authority and
good standing for the Seller issued by the Secretary of State of each
jurisdiction in which the Seller conducts business and is required to qualify
to do business;


 


(g)           original resolutions of the
Seller’s board of directors, governing body, manager or member, as the case may
be, certified as of the initial Purchase Date by the Seller’s corporate
secretary or assistant secretary, manager or member, as applicable, authorizing
the execution, delivery and performance by the Seller of this Agreement and all
other Facility Papers to be delivered by the Seller pursuant to this Agreement;


 


(h)           a certificate of the Seller’s
corporate secretary or assistant secretary, manager or member, as the case may
be, as to (i) the incumbency of the officers of the Seller executing this
Agreement and all other Facility Papers executed or to be executed by or on
behalf of the Seller and (ii) the authenticity of their signatures — and
specimens of their signatures shall be included in such certificate or set
forth on an exhibit attached to it — (the Buyer shall be entitled to rely on
that certificate until the Seller has furnished a new certificate to the
Buyer), and certifying that attached to such certificate are true and correct copies
of all amendments to the Seller’s formation and operating documents since its
inception;


 


(i)            an Officer’s Certificate for
the Seller dated the initial Purchase Date and certifying truthfully that, (i) after
giving effect to the Transactions to occur on that Purchase Date, no Potential
Default or Event of Default will exist, (ii) all of the representations
and warranties made by the Seller in the Facility Papers are true and correct
as of the Effective Date and (iii) there has been no material adverse change
since the date of the financial statements referred in Section 16.1(iv)(a);


 


(j)            copies of an errors and
omissions insurance policy or mortgage impairment insurance policy and blanket
bond coverage policy, or certificates in lieu of policies, providing such
insurance coverage as is acceptable to the Buyer and otherwise customary for
members of the Seller’s industry;


 


(k)           a favorable written opinion
of counsel to the Seller dated on or before the initial Purchase Date,
addressed to the Buyer and in form and substance reasonably satisfactory to the
Buyer and its legal 


 


counsel (a form containing opinions required to be included therein are
set forth in Exhibit B), specifically stating that the Buyer and
any Person that purchases the Purchased Loans from the Buyer can rely on it;


 


(l)            payment to the Buyer of the
Fees and all other costs and expenses (including the disbursements and
reasonable fees of the Buyer’s attorneys) of the Buyer payable by the Seller
pursuant to this Agreement accrued and billed for to the date of the Seller’s
execution and delivery of this Agreement;


 


(m)          the affidavits of out of
state execution and delivery of this Agreement duly executed by the Seller and
the Buyer;


 


(n)           evidence reasonably
satisfactory to the Buyer (i) as to the due filing and recording in all
appropriate offices of all UCC financing statements, (ii) if there are any
Purchased Loans that require the Buyer’s interest to be noted by book entry,
that such book entry has been duly made and (iii) if there is any “investment
property” under the UCC of the State of Ohio or the State of Florida or any
other applicable Law, that such instruments as are necessary to give the Buyer “control”
of such investment property have been duly executed by the Seller and the
relevant securities intermediary;


 


28

















 


(o)           evidence satisfactory to the
Buyer that the Controlled Disbursement Account, the Investor Funding Account,
the Master Advance Account and the Administrative Account remain open;


 


(p)           financial statements for the
Seller and its consolidated Subsidiaries for the calendar month ended July 31,
2007, in reasonable detail, and certified by Seller’s chief financial officer
that, to the best of his or her knowledge, such financial statements were
prepared in accordance with GAAP and present fairly in all material respects
the Seller’s and its consolidated Subsidiaries’ financial condition as of the
date thereof and the results of their operations for the period covered,
subject, however, to adjustments required by FAS-91 and normal year-end audit
adjustments and the omission of notes to the financial statements;


 


(q)           evidence reasonably
satisfactory to the Buyer as to the due filing and recording in all appropriate
offices of the UCC-3 terminations for each of the UCC-1 financing statements of
record listing the Seller as debtor and National City Bank of Kentucky and
First Collateral Services as secured party, respectively; and


 


(r)            such other documents or
opinions as the Buyer or its counsel may request.


 


15.2        Each Purchase.  The obligations of the Buyer to enter into
Transactions under this Agreement are also subject to the satisfaction, in the
sole discretion of the Buyer, as of each Purchase Date, of each of the
following additional conditions precedent:


 


(i)            The Seller shall have
delivered to the Buyer a Purchase Request for the Purchased Loans to be
purchased in the manner described in Article 4.


 


(ii)           If not previously delivered
pursuant to Section 15.1(i), the Electronic Tracking Agreement duly
executed by the Seller, MERS, MERSCorp., Inc. and the Buyer.


 


(iii)          With regard to any
Transaction, prior to entering into any Transaction to fund the purchase of
Eligible Loans which are to be sold directly to Fannie Mae, Freddie Mac or
Ginnie Mae, the Buyer shall have received a fully executed tri-party agreement
(or agreements) by and among the Seller, the Buyer and Fannie Mae, Freddie Mac
or Ginnie Mae, as applicable (including without limitation, in the case of
Fannie Mae, the Fannie Mae approved form of the triparty wiring instruction
agreement), pursuant to which Fannie Mae, Freddie Mac or Ginnie Mae, as
applicable, agrees to send all cash proceeds of Eligible Loans sold by the
Seller to Fannie Mae, Freddie Mac or Ginnie Mae, as applicable, directly to the
Investor Funding Account.


 


(iv)          The representations and
warranties contained in this Agreement and the other Facility Papers shall be
true and correct in all material respects as if made on and as of each Purchase
Date unless specifically stated to relate to an earlier date, and by submitting
to the Buyer a Purchase Request, the Seller shall be deemed to have restated
such representations and warranties as of the date of submission of such
Purchase Request.


 


(v)           The Seller shall have performed
all agreements to be performed by it under this Agreement and all other
Facility Papers, as well as under all Investor Commitments that the Seller has
represented to the Buyer cover any of the Purchased Loans, and after the
requested Transaction shall have been executed, no Potential Default or Event
of Default will exist that the Buyer has not declared in writing to have been
waived or cured, and no default or event of default will exist under any such
Investor Commitments.


 


(vi)          The Seller shall not have
incurred any material liabilities, direct or contingent, other than in the
ordinary course of its business, and no liabilities (whether or not in the
ordinary course of business) that, individually or in the aggregate, have or
could reasonably be expected to have, a Material Adverse Effect.


 


(vii)         Since the date of the last
fiscal year end or interim financial statements delivered by the Seller to the
Buyer, no material adverse change shall have occurred in the Seller’s business,
financial condition or results of operations.


 


(viii)        The Buyer shall have
received from counsel for the Seller, if requested by the Buyer, an updated
favorable opinion or opinions, in form and substance satisfactory to the Buyer
addressed to the Buyer and 


 


29

















 


dated
as of the relevant Purchase Date, covering and updating such matters that were
originally addressed in the opinion issued pursuant to Section 15.1(i) as
the Buyer may reasonably request.


 


(ix)           The Seller shall have paid
the Fees then due and payable in accordance with Article 10.


 


(x)            No Potential Default or
Event of Default shall have occurred that the Buyer has not declared in writing
to have been waived or cured, and by submitting to the Buyer a Purchase
Request, the Seller shall be deemed to have represented as to the absence of
any Potential Default or Event of Default as of the date of submission of such
Purchase Request.


 


(xi)           The requested Transaction
will not result in the violation of any applicable Law.


 


(xii)          After giving effect to the
funding of the requested Transaction, the Aggregate Outstanding Purchase Prices
would not exceed any of the limitations set forth this Agreement.


 


(xiii)         The Buyer shall have
received such other documents, if any, as the Buyer or its counsel may request.


 


15.3        General.  Each condition in this Agreement including,
without limitation, those set forth in Sections 15.1 and 15.2, is
material to the transactions contemplated by this Agreement, and time is of the
essence with respect to each such condition. 
The Buyer, in its sole discretion, may enter into Transactions without
all conditions being satisfied.  However,
the Buyer’s funding of such Transaction shall not constitute a waiver of the
requirement that each condition be satisfied as a prerequisite for any
subsequent Transaction, unless the Buyer specifically waives a condition an
item in writing.


 


16           Representations and
Warranties


 


16.1        General Representations and
Warranties.  As an
inducement to the Buyer to enter into this Agreement and to purchase Eligible
Loans as provided herein, the Seller represents and warrants to the Buyer that:


 


(i)            Corporate Existence; Compliance
with Law and Contractual Obligations.  The Seller (a) is duly organized and
validly existing and is in good standing as a corporation under the laws of the
state of its incorporation and in each jurisdiction where its ownership of
property or conduct of business requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect; (b) has
the corporate power and authority and the legal right to own and operate its
property and to conduct business in the manner in which it does and proposes so
to do; and (c) is not in violation of any Requirement of Law or any
Contractual Obligation if such violation could have a Material Adverse Effect.


 


(ii)           Corporate Power; Authorization;
Enforceable Obligations.  The Seller has the corporate power
and authority to execute, deliver and perform the Facility Papers to which it
is a party and to sell Eligible Loans and use the proceeds thereof and has
taken all necessary corporate action to authorize the execution, delivery and
performance of the Facility Papers, the selling of Eligible Loans and the use
of the proceeds thereof.  The Facility
Papers have been duly executed and delivered on behalf of the Seller and
constitute legal, valid and binding obligations of the Seller enforceable
against it in accordance with their respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency and other similar laws
affecting creditors’ rights generally and by general principles of equity.


 


(iii)          No Legal or Contractual Bar.  The execution,
delivery and performance of the Facility Papers, the selling of Eligible Loans
hereunder and the use of the proceeds thereof do not and will not (a) violate
any Requirement of Law or any Contractual Obligation of the Seller, (b) except
as contemplated by this Agreement, require any license, consent, authorization,
approval or any other action by, or any notice to or filing or registration
with, any Governmental Authority or any other Person or (c) result in the
creation or imposition of any Lien on any asset of the Seller except as
contemplated by the Facility Papers.


 


(iv)          Financial Information.


 


30

















 


(a)           The consolidated balance
sheet of the Seller as at December 31, 2006 and the related consolidated
statements of income, retained earnings and cash flows for the fiscal year then
ended, including in each case the related schedules and notes, reported on by
Crowe Chisek and Company, LLC, true copies of which have been previously
delivered to the Buyer, are complete and correct and fairly present the
financial condition of the Seller as at the date thereof and the results of
operations and cash flows for such period, in accordance with GAAP applied on a
consistent basis.


 


(b)           The Seller has no material
liability of any kind, whether accrued, contingent, absolute, determined,
determinable or otherwise, and no condition, situation or set of circumstances
exists that could be reasonably expected to result in such a liability, in each
case that is not reflected in the balance sheet referred to in Section 16.1(iv)(a) or
will not be reflected in the most recent balance sheet delivered to the Buyer
pursuant to Section 17.1(i) or, if applicable, Section 17.1(ii).


 


(c)           Since the date of the
financial statements referred to in Section 16.1(iv)(a), no
material adverse change has occurred in the business, financial condition or
results of operations of the Seller.


 


(v)           No Material Litigation.  There is no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority that is
pending or, to the knowledge of the Seller, threatened by or against the
Seller, or against any of the Seller’s properties or revenues that,
individually or in the aggregate, if adversely determined, could have a
Material Adverse Effect.


 


(vi)          Taxes.  The Seller has filed or caused to be filed all
tax returns that are required to be filed and has paid all taxes shown to be
due and payable on such returns or on any assessments made against it or any of
its property other than taxes and assessments that are being contested in good
faith by appropriate proceedings and as to which the Seller has established
adequate reserves in conformance with GAAP.


 


(vii)         Investment Company Act.  The Seller is not, and is not controlled by,
an “investment company” within the meaning of the Investment Company Act of
1940, as amended.


 


(viii)        Subsidiaries.  Except as set forth in Exhibit D,
the Seller has no Subsidiaries.  The
issued and outstanding capital stock of the Seller and its Subsidiaries is
owned, beneficially and of record, by the Persons listed in Exhibit D
in the amounts and percentage interests set forth opposite such Persons’ names.


 


(ix)           Use of Proceeds.  The Purchase Price proceeds of all
Transactions entered into under the Conforming Mortgage Loan Sublimit shall be
used by the Seller solely for the purpose of originating or acquiring
Conforming Mortgage Loans.  The Purchase
Price proceeds of all Transactions entered into under the Wet Mortgage Loan
Sublimit shall be used by the Seller solely for the purpose of originating Wet
Mortgage Loans.  The Purchase Price proceeds
of all Transactions entered into under the Non-Conforming Mortgage Loan
Sublimit shall be used by the Seller solely for the purpose of originating or
acquiring Non-Conforming Mortgage Loans. 
The Purchase Price proceeds of all Transactions entered into under the
Reacquired/Rejected Mortgage Loan Sublimit shall be used by the Seller solely
for the purpose of originating Reacquired Mortgage Loans or Rejected Mortgage
Loans.


 


(x)            ERISA.  No Prohibited Transactions, Accumulated
Funding Deficiencies, withdrawals from Multiemployer Plans or Reportable Events
have occurred with respect to any Plans or Multiemployer Plans that, in the
aggregate, could subject the Seller to any material tax, penalty or other
liability where such tax, penalty or liability is not covered in full, for the
benefit of Borrower, by insurance; (b) no notice of intent to terminate a
Plan has been filed, nor has any Plan been terminated under Section 4041
of ERISA, nor has the PBGC instituted proceedings to terminate, or appoint a
trustee to administer, a Plan and no event has occurred or condition exists
that might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan; (c) the
present value of all benefits liabilities (as defined in Section 4001(a)(16)
of ERISA) under all Plans (based on the actuarial assumptions used to fund the
Plans) does not exceed the assets of the Plans; and (d) the execution,
delivery and performance by the Seller of the Facility Papers and Transactions
hereunder and the use of the Purchase Price proceeds thereof will not involve
any Prohibited Transaction.


 


31














 


(xi)           Agency Approvals.  The Seller is a Freddie Mac, Fannie Mae
approved seller/servicer and an FHA/VA approved lender, in each case, in good
standing.


 


(xii)          Principal Place of Business.  The Seller’s principal place of business and
chief executive office and the place where its records concerning the Purchased
Loans are kept and the Seller’s organizational number are set forth on Schedule
16.1(xii).


 


(xiii)         Trade Names.  The Seller has not used or transacted
business under any other corporate or trade name in the five-year period
preceding the Effective Date.


 


(xiv)        Anti-Terrorism
Laws.


 


(a)          Neither the Seller nor any
Affiliate of the Seller is in violation of any Anti-Terrorism Law or engages in
or conspires to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in any Anti-Terrorism Law.


 


(b)          Neither the Seller nor any
Affiliate of the Seller, or their respective agents acting or benefiting in any
capacity in connection with the Repurchase Facility or other transactions
hereunder, is any of the following (each a “Blocked Person”):


 


(1)           a Person that is listed in
the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224;


 


(2)           a Person owned or controlled
by, or acting for or on behalf of, any Person that is listed in the annex to,
or is otherwise subject to the provisions of, Executive Order No. 13224;


 


(3)           a Person or entity with
which any bank or other financial institution is prohibited from dealing or
otherwise engaging in any transaction by any Anti-Terrorism Law;


 


(4)           a Person or entity that
commits, threatens or conspires to commit or supports “terrorism” as defined in
Executive Order No. 13224;


 


(5)           a Person or entity that is named
as a “specially designated national” on the most current list published by the
U.S. Treasury Department Office of Foreign Asset Control at its official
website or any replacement website or other replacement  official publication of such list; or


 


(6)           a Person or entity who is
affiliated with a Person or entity listed above.


 


Neither
the Seller nor, to the knowledge of the Seller, any of its agents acting in any
capacity in connection with the Repurchase Facility or other transactions
hereunder (i) conducts any business or engages in making or receiving any
contribution of funds, goods or services to or for the benefit of any Blocked
Person or (ii) deals in, or otherwise engages in any transaction relating
to, any property or interests in property blocked pursuant to Executive Order No. 13224.


 


16.2        Special Representations and
Warranties Relating to the Purchased Loans.  As of the related Purchase Date, for each
Purchased Loan the Seller makes the following representations and warranties to
the Buyer:


 


(i)            The information with respect
to each Purchased Loan set forth in the related Loan Schedule is true and
correct as of the date specified in all material respects.


 


(ii)           Other than with respect to
PSTP Mortgage Loans as to which the funds from a Transaction shall be used to
repurchase the applicable participation interest under an LPSA such that,
concurrently with entering the Transaction, the Seller is the sole legal and
equitable owner (except in the case of MERS Designated Loans, as to which MERS,
as nominee for the Seller and its successors and assigns, is the record owner),



 


32

















 


the
Seller is the sole legal and equitable owner, free and clear of all Liens other
than Permitted Encumbrances, of all Eligible Loans to be sold to the Buyer by
the Seller pursuant to this Agreement.


 


(iii)          Each of the Purchased Loans
sold to the Buyer by the Seller complies with all of the requirements of this
Agreement and is genuine and what it purports to be.


 


(iv)          All information concerning
each item or grouping of Purchased Loans listed in any Loan Schedule sent to
the Buyer was, is and/or shall be (as applicable) true and complete in all
material respects as of the date of such Loan Schedule.


 


(v)           The Seller has complied and
will continue to comply in all material respects with all Requirements of Law
relating to each Purchased Loan.


 


(vi)          Each Mortgage Note and
Mortgage related to a Purchased Loan, including Wet Mortgage Loans, has been
duly (i) endorsed or assigned to the Seller and (ii) endorsed or
assigned by the Seller in blank —endorsement in blank of a Mortgage is not
required when MERS is designated in the Mortgage as the original mortgagee or
the nominee of the original mortgagee, its successors and assigns — and
delivered (or in the case of Wet Mortgage Loans are in the process of being
delivered) to the Buyer.


 


(vii)         All Required Documents for
each Purchased Loan (except Wet Mortgage Loans) will be transmitted as of the
applicable Purchase Date to the Buyer with the Purchase Request with which it
is submitted for purchase.


 


(viii)        Each assignment to the Buyer
of the Lien securing any Purchased Loan will be in proper and sufficient form
for recording in the appropriate government office in the U.S. jurisdiction where
the related Mortgaged Premises are located (no such assignment is required for
any Mortgage that has been originated in the name of MERS and registered under
the MERS® System.)  Upon and after
delivery to the Buyer of the Mortgage Note evidencing the particular Purchased
Loan, the Buyer will have a duly perfected first priority possessory ownership
interest in such Purchased Loan, and for so long as the Buyer or another bailee
for the Buyer retains possession of such Mortgage Note, the Buyer will have a
duly perfected first priority possessory ownership interest in such Purchased
Loan.


 


(ix)           The Seller has and will
continue to have the full right, power and authority to sell the Purchased
Loans to the Buyer, and the Purchased Loans sold and to be sold to the Buyer by
the Seller under this Agreement or pursuant to it may be further sold, resold,
assigned and reassigned to any Person or Persons without any requirement for
the further consent of the Seller or the consent of any other party to any of
the Loan Papers or obligated in respect of the Purchased Loans.


 


(x)            Each Purchased Loan is
covered by an ALTA mortgage title insurance policy or such other form of title
insurance as is acceptable to Fannie Mae or Freddie Mac, issued by and
constituting the valid and binding obligation of a title insurer that is (i) generally
acceptable to prudent mortgage lenders who regularly originate or purchase
Mortgage Loans comparable to the Purchased Loans, and (ii) is qualified to
do business in the jurisdiction where the relevant Mortgaged Premises are
located, insuring the Seller, its successors and assigns, as to the first
priority (or, in the case of a second priority Mortgage, second priority) of
the Lien of the Mortgage on the related Mortgaged Premises, in an amount equal
to the original principal amount of such Purchased Loan.  The Seller is the sole named insured of such
mortgage title insurance policy, the assignment to the Buyer of the Seller’s
interest in such policy does not require the consent of or notice to the
insurer (or such consent has been obtained or notice given), and such policy is
and will be in full force and effect and inure to the benefit of the Buyer as
and when such Purchased Loan is sold to the Buyer.  No claims have been made under such policy
and no prior holder of such Purchased Loan, including the Seller, has done, by
act or omission, anything that would impair the coverage of such policy.


 


(xi)           The Mortgaged Premises
securing each Purchased Loan are capable of being lawfully occupied under
applicable Laws, and all inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of such Mortgaged Premises
and, with respect to the use and occupancy of the same, 


 


33

















 


including
certificates of occupancy and fire underwriting certificates, have been made or
obtained from the appropriate Governmental Authority.


 


(xii)          Each Purchased Loan that has
a Loan-to-Value Ratio greater than eighty percent (80%) is either guaranteed by
VA or insured by FHA or private mortgage insurance.


 


(xiii)         All taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents that have previously become due have been paid, or an
escrow of funds has been established in an amount sufficient to pay for every
such item which remains unpaid and which has been assessed but is not yet
due.  The Seller has not advanced funds,
or induced, solicited or knowingly received any advance of funds by any Person
other than the applicable Customer, directly or indirectly, for the payment of
any amount required under the related Loan Papers, except for interest to
accrue from the date of the relevant Purchased Loan or the date of disbursement
of its proceeds (whichever is greater) to the day that precedes by a month the
due date of such Purchased Loan’s first installment of principal and interest.


 


(xiv)         The Seller has no knowledge
of any circumstances or conditions with respect to the Mortgage, the Mortgaged
Premises or the Customer in respect of any Purchased Loan (other than the
Customer’s credit standing) that can reasonably be expected to cause private
institutional investors that regularly invest in Mortgage Loans similar to such
Purchased Loan to regard such Purchased Loan as an unacceptable investment or
adversely affect the value or marketability of such Purchased Loan to other
similar institutional investors.


 


(xv)          Each Purchased Loan’s
Mortgage contains an enforceable provision for acceleration of the maturity of
the unpaid principal balance thereof in the event that the Mortgaged Premises
are sold or transferred without the prior written consent of the holder
thereof.


 


(xvi)         No Purchased Loan contains
provisions pursuant to which monthly payments are paid in whole or in part with
funds deposited in any separate account established by the Seller, the Customer
or anyone on behalf of the Customer, or paid by any source other than the
Customer, nor any other similar provisions currently in effect that effectively
constitute a “buydown” provision.


 


(xvii)        Each Purchased Loan is an
Eligible Loan.


 


(xviii)       The Seller’s acquisition,
disposition and collection practices with respect to Mortgage Loans are and
have been in all material respects in accordance with industry custom and
practice, and in all respects legal and proper.


 


(xix)         If an escrow of funds has
been established for a Purchased Loan, it is not prohibited by applicable Law,
all escrow deposits and escrow payments have been collected in full compliance
with applicable Law and are in the possession of the Seller or have been
applied to pay their proper and intended purposes, no escrow deposits or escrow
payments or other charges or payments due in respect of such Purchased Loan
have been capitalized under its Mortgage Note or Mortgage and no deficiencies
exist in connection therewith for which customary arrangements for payment have
not been made.


 


(xx)          All interest rate
adjustments, if any, in respect of each Purchased Loan have been made in strict
compliance with applicable Law and the terms of the related Mortgage Note, and
any interest required to be paid pursuant to applicable Law has been properly
paid and credited.


 


(xxi)         No Customer in respect of
any Purchased Loan has notified the Seller, and the Seller has no knowledge, of
any relief requested by or allowed to such Customer under the Servicemembers’
Civil Relief Act of 2003.


 


(xxii)        Based on customary
residential mortgage industry practices and to the knowledge of the Seller, the
Mortgaged Property securing each Purchased Loan is free from any and all toxic
and hazardous substances and there exists no violation of any applicable
environmental Law.


 


34

















 


(xxiii)       The Seller used no selection
procedures that identified the Eligible Loans relating to a Transaction as
being less desirable or valuable than other comparable assets in the Seller’s
portfolio on the related Purchase Date, and no Purchased Loan was selected for
inclusion in a Transaction on any basis that was intended to adversely affect
the Buyer.


 


(xxiv)       No Mortgaged Property
securing any Purchased Loan is within a one-mile radius of any site listed in
the National Priorities List as defined under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or on any similar
state list of hazardous waste sites that are known to contain any hazardous
substance or hazardous waste.


 


(xxv)        No Purchased Loan is subject
to a bankruptcy plan.


 


(xxvi)       All Purchased Loans or, as
applicable, all Loan Papers relating to Purchased Loans:


 


(a)           were originated by a duly
licensed mortgage lender in the ordinary course of its business;


 


(b)          have been made in compliance
with all applicable requirements of the Real Estate Settlement Procedures Act,
the Equal Credit Opportunity Act, the federal Truth-In-Lending Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, related statutes and
regulations and all applicable Requirements of Law under usury, truth-in-lending,
equal credit opportunity and all other Laws, and the continued compliance of
the Purchased Loans is not affected by their sale to the Buyer;


 


(c)           are the legal, valid and
binding obligations of the respective Customers who made them and are and will continue
to be valid and enforceable in accordance with their terms, without any claim,
right of rescission, counterclaim, defense or offset, including any claim or
defense of usury, except as such enforceability may be limited by bankruptcy
and other laws affecting the rights of creditors generally and by principles of
equity, excepting rights that,  by
applicable Law, cannot be waived, and neither the operation of any of their
respective contract terms nor the exercise of any right thereunder will render any
of them partly or wholly unenforceable or subject to any such claim, right of
rescission, counterclaim, defense or offset, and no such claim, right of
rescission, counterclaim, defense or setoff has been asserted;


 


(d)          have not been modified or
amended and none of their requirements has been waived, except as expressly and
completely reflected in the applicable Loan Papers furnished to the Buyer;


 


(e)           to the best of the Seller’s
knowledge have fair market values equal to or greater than the loan values respectively
attributed or allocated to them under this Agreement;


 


(f)           comply and will continue to
comply with the terms of this Agreement;


 


(g)          were not originated in, and
are not subject to the laws of, any jurisdiction whose laws (i) make
unlawful their sale to the Buyer pursuant to this Agreement, or (ii) render
the Purchased Loans unenforceable;


 


(h)          are in full force and effect
and have not been satisfied or subordinated in whole or in part or rescinded,
and the Mortgaged Premises securing each Purchased Loan has not been partially
or completely released from the Lien of the applicable Mortgage;


 


(i)            are each secured by a valid
first Lien, or if applicable a second Lien, in favor of the Seller on real
property securing the amount owed by the Customer(s) under the related
Mortgage, subject only to Permitted Encumbrances, that to the best of the
Seller’s knowledge has fair market value equal to or greater than the loan
value attributed or allocated under this Agreement to the Purchased Loan
secured thereby, the Seller has sold all of the Seller’s right, title and
interest in such Purchased Loan and related Mortgage, and the Buyer are the
owners of such Purchased Loan;


 


35

















 


(j)            are each executed in full
accordance with all requirements of the applicable Laws of the jurisdiction in
which the related Mortgaged Premises are located, with the Mortgage for each
being (i) duly acknowledged and sealed by such official and in such manner
and form as to be both recordable and effective under such Laws to give such
constructive notice to all Persons as shall be necessary to establish and
continue the Lien of such Mortgage with the priority that the Seller represents
it has to the Buyer and (ii) so recorded, and with the Mortgage Note,
Mortgage and all related papers executed with the genuine original signature(s) of
the Customer(s) obligated on such Purchased Loan, and all parties to each
such Purchased Loan had full legal capacity to execute it;


 


(k)           with respect to Purchased
Loans directly or indirectly acquired by the Seller from a mortgage broker or a
correspondent, such Purchased Loans were purchased for fair value and the
Seller took possession of them in the ordinary course of its business, without
knowledge that any such Purchased Loan was subject to any security interest;
the Seller has not sold, assigned or pledged any of such Purchased Loans to any
Person (excluding assignments to MERS as nominee for the Seller, its successors
and assigns) and the Seller has good and marketable title to them free and
clear of any encumbrance, equity, loan, pledge, charge, claim or security
interest, and is the sole owner thereof with full right to sell them to the
Buyer;


 


(l)            are at the time of the Buyer’s
purchase thereof, the subject of a Current Appraisal or a Current Broker’s
Price Opinion of which the Seller has possession and will make available to the
Buyer on request, and the Seller has in its possession and will make available
to the Buyer on request evidence of such value and how it was determined; and


 


(m)          are not subject to the Home
Ownership and Equity Protection Act of 1994.


 


(xxvii)    As to each Purchased Loan
and its Loan Papers:


 


(a)           the Seller has not waived
any default, breach, violation or event permitting acceleration except payment
delinquencies that have not been outstanding long enough to cause such
Purchased Loan to be In Default;


 


(b)           as of the Effective Date,
the related Mortgaged Premises are, to the best of the Seller’s knowledge, free
of material damage and in good repair and the Seller has no actual knowledge
that any such Mortgaged Premises have suffered material fire, storm or other
casualty damage that is not covered by a Hazard Insurance Policy;


 


(c)           as of the Effective Date, to
the best of the Seller’s knowledge, no liens or claims have been filed for
work, labor or materials affecting the related Mortgaged Premises which are
undischarged (whether prior, equal or subordinate to the Lien of the Purchased
Loan);


 


(d)           the Loan Papers contain
customary and enforceable provisions so as to render the rights and remedies of
their holder adequate for the realization of the benefits of the security
intended to be provided by it;


 


(e)           there is only one original
executed Mortgage Note, and, except in the case of Wet Mortgage Loans, that
original has been delivered to the Buyer; and


 


(f)            none of its makers or
mortgagors is an Affiliate of the Seller or any of its or its Subsidiaries’
directors or officers.


 


(xxviii)    Each Mortgage is a Lien on
the premises and property described in it having the priority represented to
the Buyer, and the description of the Mortgaged Premises in each Mortgage is
legally adequate and each Purchased Loan has been fully advanced in its face
amount.


 


(xxix)       No default, and no event
that with notice or lapse of time or both would become a default, has occurred
and is continuing in respect of any Purchased Loan except as to which the
Seller has given 


 


36

















 


written
notice to the Buyer (by reporting Purchased Loans that are delinquent Mortgage
Loans), and if any such default or event has occurred, it has not continued for
more than sixty (60) days, reckoned and counted from the most recent month end,
and the Seller will promptly notify the Buyer of any such Purchased Loan that
is in default for a longer period of time.


 


(xxx)        All Hazard Insurance
Policies covering the premises encumbered by each Purchased Loan:


 


(a)           name and will continue to
name the Seller or the relevant Servicer as the insured under a standard
mortgagee clause and insure to the benefit of the Buyer;


 


(b)           are and will continue to be
in full force and effect;


 


(c)           are in the amount of the
full insurable value of the Mortgaged Premises on a replacement cost basis or
the unpaid principal amount of the related Purchased Loan, whichever is less;


 


(d)           are the valid and binding
obligation of the insurer;


 


(e)           have all premiums due
thereon paid;


 


(f)            are required by the related
Mortgage to be maintained on relevant Mortgaged Premises at the applicable
Customer’s cost and expense, failing which the holder of such Mortgage is
authorized by the express terms of such Mortgage to obtain and maintain such
insurance at such Customer’s cost and expense and to obtain reimbursement of
such cost from such Customer; and


 


(g)           afford and will continue to
afford insurance against fire and such other risks as are usually insured
against in the broad form of extended coverage insurance from time to time
available, as well as insurance against flood hazards if required by the terms
of any applicable private mortgage insurance or by any applicable Requirements
of Law.


 


(xxxi)       all Mortgaged Premises
securing Purchased Loans and located in a special flood hazard area designated
as such by the Secretary of HUD are and shall continue to be covered by special
flood insurance as required by the National Flood Insurance Program.


 


(xxxii)      Each Purchased Loan will on
the Purchase Date therefor meet the requirements for a Type of Eligible Loan
set forth in the definition of Conforming Mortgage Loan, Non-Conforming
Mortgage Loan, Reacquired Mortgage Loan, Rejected Mortgage Loan, PSTP Mortgage
Loan or Wet Mortgage Loan, as applicable.


 


17           Affirmative Covenants


 


The Seller agrees that, for
so long as either (i) there are any Purchased Loans that have not been
repurchased by the Seller or (ii) any of the Obligations remain to be paid
or performed under this Agreement or any of the other Facility Papers:


 


17.1        Reports to the Buyer.  The Seller shall furnish or cause to be
furnished to the Buyer directly:


 


(i)            Annual Financial Statements.  As soon as available and in any event within
ninety (90) days after the end of each fiscal year of the Seller, a
consolidated and consolidating balance sheet of the Seller as at the end of
such year and the related consolidated and consolidating statement of income,
and consolidated statements of retained earnings and cash flows of the Seller
for such fiscal year, setting forth in each case in comparative form the
figures as of the end of and for the previous fiscal year, all in reasonable
detail and accompanied by a report thereon of Crowe Chisek and Company, LLP or
other independent public accountants of recognized national standing acceptable
to the Buyer, which report shall be unqualified as to scope of audit and shall
not be qualified as to going concern, and shall state that such financial
statements present fairly the financial condition as at the end of such fiscal
year, and the results of operations and cash flows for such fiscal year, of the



 


37

















 


Seller
in accordance with GAAP consistently applied. 
Such financial statements shall be accompanied by a certificate of such
accountants attesting to whether the Seller is in compliance with the financial
covenants applicable to the Seller as set forth in Section 18.24.


 


(ii)           Monthly Financial Statements.  As soon as available and in any event within
forty-five (45) days after the end of each calendar month, a balance sheet of
the Seller as at the end of such calendar month and the related statements of
income and retained earnings of the Seller for such calendar month and the
portion of the fiscal year ended at the end of such calendar month, all in
reasonable detail and certified by the chief financial officer (or equivalent)
of the Seller that they are complete and correct and that they present fairly
the financial condition as at the end of such month, and the results of
operations and cash flows for such month and such portion of the fiscal year, of
the Seller in accordance with GAAP consistently applied (subject to normal
year-end adjustments); provided, however, notwithstanding the
foregoing, (A) the financial statements herein required with respect to
each calendar month of January shall be due on or before April 15 of
the same year, and (B) the financial statements herein required with
respect to each calendar month of February shall be due on or before April 30
of the same year.  If requested by the
Buyer, the Seller shall use its best efforts to include in such financial
statements information on monthly production volume in dollars and units and on
the Seller’s servicing portfolio (if applicable), and further, shall detail any
additional Funded Liabilities incurred by the Seller during the reporting
period.


 


(iii)          Compliance Certificate.  Together with the financial statements
required pursuant to subsections (i) and (ii) of this Section 17.1,
a certificate of the chief financial officer of the Seller (A) to the
effect that, based upon a review of the activities of the Seller and such
financial statements during the period covered thereby, no Potential Default or
Event of Default exists, or if a Potential Default or an Event of Default
exists, specifying the nature thereof and the Seller’s proposed response
thereto, and (B) demonstrating in reasonable detail whether there has been
compliance as at the end of such fiscal year, such fiscal quarter or such month
with the applicable financial covenants set forth in Section 18.24.


 


(iv)          Audit Reports.  Promptly after receipt thereof by the Seller,
copies of each HUD single family audit report and Fannie Mae and Freddie Mac
audit reports on the Seller and its operations.


 


(v)           Notice of Default.  Promptly after the occurrence of a Potential
Default or an Event of Default, a certificate of the chief financial officer
(or equivalent) of the Seller specifying the nature thereof and the Seller’s
proposed response thereto.


 


(vi)          Loss Qualification.  Promptly after the occurrence thereof, notice
of any Purchased Loan that ceases to be an Eligible Loan.


 


(vii)         Secondary Market Position Reports.  If any Mortgage Loan is not sold to an
Approved Investor on a “best efforts” basis, on Monday of each week, and on
such other days as the Buyer may reasonably request, a secondary market
position report prepared by the Seller, in the form of and containing the
information required by the Buyer, including without limitation, detailed
loan/investor information, together with weighted average commitment value,
dated as of the Friday preceding such Monday or as of such other day.


 


(viii)        Pipeline/Servicing Reports.  As soon as available and in any event within
ten (10) days after the end of each calendar month, a pipeline report
showing coverage of the Mortgage Loans that are in the pipeline that are over
ninety (90) days old or a sufficient Hedging Arrangement applicable thereto
that protects the Seller and the Buyer from interest rate risk.


 


(ix)           Delinquency Reports.  Prompt notice if any of the Purchased Loans
become In Default.


 


(x)            Litigation.  Promptly after the occurrence thereof and in
any event within five (5) days after the Seller knows or has reason to
know of the occurrence thereof, notice of the institution of or any material
adverse development in any action, suit or proceeding or any governmental
investigation or any arbitration, before any court or arbitrator or any
governmental or administrative body, agency or official, against the Seller or
any material property of the Seller, in each case if such action, suit, proceeding,
investigation or arbitration, individually 


 


38

















 


or
together with one or more other actions, suits, proceedings, investigations or
arbitrations, could result in liabilities to the Seller in excess of the
Material Amount.


 


(xi)           Material Adverse Conditions.  Prompt notice of any condition, development
or event that has or results in, or could reasonably be expected to have or
result in, a Material Adverse Effect.


 


(xii)          Change of Control.  Promptly after obtaining knowledge of any
actual or proposed Change of Control, notice thereof, together with a
description of the nature and the date or proposed date thereof.


 


(xiii)         Mergers and Acquisitions.  Promptly, upon entering into any agreement to
purchase or acquire, or permitting any of its Subsidiaries to enter into any
agreement to purchase or acquire, any or all of the assets or business of any
Person (whether such purchase or acquisition shall be by means of merger, stock
purchase, asset purchase or otherwise), notice thereof, together with a copy of
the agreement.


 


(xiv)        Other Liabilities.  Promptly, upon creating, incurring, assuming,
suffering to exist or otherwise becoming liable in respect of, or permitting
any of its Subsidiaries to create, incur, assume, suffer to exist or otherwise
become liable in respect of, any Funded Liabilities in an aggregate principal
amount exceeding $500,000.00, notice thereof, together with copies of the
evidence of such indebtedness and related documents.


 


(xv)         ERISA.  In connection with ERISA:


 


(a)           Promptly and in any event
within ten (10) days after the Seller knows or has reason to know of the
occurrence of a Reportable Event with respect to a Plan with regard to which
notice must be provided to the PBGC, a copy of such materials required to be
filed with the PBGC with respect to such Reportable Event and in each such case
a statement of the chief financial officer of Borrower setting forth details as
to such Reportable Event and the action that the Seller proposes to take with
respect thereto;


 


(b)          Promptly and in any event
within ten (10) days after the Seller knows or has reason to know of any
condition existing with respect to a Plan that presents a material risk of
termination of such Plan, imposition of an excise tax, requirement to provide
security to such Plan or incurrence of other liability by the Seller or any
ERISA Affiliate, a statement of the chief financial officer of the Seller
describing such condition;


 


(c)           At least ten (10) days
prior to the filing by any plan administrator of a Plan of a notice of intent
to terminate such Plan, a copy of such notice;


 


(d)          Promptly and in no event
more than ten (10) days after the filing thereof with the Secretary of the
Treasury, a copy of any application by the Seller or an ERISA Affiliate for a
waiver of the minimum funding standard under Section 412 of the Code;


 


(e)           Promptly and in no event
more than ten (10) days after the filing thereof with the Internal Revenue
Service, copies of each annual report that is filed on Form 5500, together
with certified financial statements for any Plan (if any) as of the end of such
year and actuarial statements on Schedule B to such Form 5500;


 


(f)           Promptly and in any event
within ten (10) days after it knows or has reason to know of any event or
condition that might constitute grounds under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, a
statement of the chief financial officer of the Seller describing such event or
condition;


 


(g)          Promptly and in no event
more than 10 days after receipt thereof by the Seller or any ERISA Affiliate, a
copy of each notice received by the Seller or an ERISA Affiliate concerning the
imposition of any withdrawal liability under Section 4202 of ERISA; and


 


(h)          Promptly after receipt
thereof a copy of any notice the Seller or any ERISA Affiliate may receive from
the PBGC or the Internal Revenue Service with respect to any Plan or
Multiemployer 


 


39

















 


Plan;
provided that this subparagraph (H) shall not apply to notices of
general application promulgated by the PBGC or the Internal Revenue Service.


 


(xvi)        Formation of Subsidiaries.  Promptly upon forming any Subsidiary, notice
thereof, together with written disclosure of whether such Subsidiary is a
Wholly-Owned Subsidiary and copies of such Subsidiary’s organizational
documents; and


 


(xvii)       Other Information.  Promptly, such additional financial and other
information, including financial statements of the Seller or any Approved
Investor (other than an Agency), and such information regarding the Purchased
Loans as the Buyer may from time to time reasonably request, including such
information as is necessary for the Buyer to grant participations in its interests
in Transactions hereunder.


 


17.2         Maintenance of Existence and
Properties; Compliance with Laws; Maintenance of Agency Status.  The Seller shall preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its legal existence
and all rights, privileges, licenses, approvals, franchises, properties and
assets material to the normal conduct of its business; comply, and cause each
of its Subsidiaries to comply, in all material respects with all Contractual
Obligations and Requirements of Law, except when the failure to so comply would
not have a Material Adverse Effect; and maintain at all times its status as a
Freddie Mac and Fannie Mae approved seller/servicer and an FHA/VA approved
lender in good standing.


 


17.3         Inspection of Property; Books and
Records.  The Seller
shall keep, and cause each of its Subsidiaries to keep, proper books of record
and account in which full, true and correct entries in conformity with GAAP and
all Requirements of Law shall be made of all dealings and transactions in
relation to its business and activities, and permit representatives of the
Buyer (at no cost to the Seller unless an Event of Default has occurred and is
continuing) to visit and inspect any of its properties and examine and make
abstracts from any of its books and records during normal business hours, upon
reasonable advance notice and as often as may reasonably be desired by the
Buyer, and to discuss the business, operations, properties and financial and
other condition of the Seller and its Subsidiaries with officers and employees
of such parties, and with their independent certified public accountants.  The Buyer will be allowed to conduct, from
time to time at the Seller’s expense, financial and operational audits at the
Seller’s office during normal business hours, as well as the Buyer’s periodic
audit of the Seller’s operations and the Purchased Loans (including periodic
third party audits requested by the Buyer) and shall pay the reasonable fees
and costs associated with such audits.


 


17.4         Insurance. The Seller
shall maintain or cause to be maintained with financially sound and reputable
insurers, insurance with respect to its properties and business, and the
properties and business of its Subsidiaries, against loss or damage of the
kinds customarily insured against by reputable companies in the same or similar
businesses, such insurance to be of such types and in such amounts (with such
deductible amounts) as is customary for such companies under similar
circumstances, including errors and omissions coverage and fidelity coverage in
form and substance and in such amounts acceptable under Agency guidelines and
acceptable to the Buyer, and furnish the Buyer on request (i) copies of
all policies (each of which shall be issued by a company reasonably acceptable
to the Buyer, name the Buyer as an additional insured/loss payee and contain a
provision for thirty (30) days prior written notice to the Buyer of any
cancellation, non-renewal or modification thereof) at the following address:


 


Colonial
Bank, N.A.


Mortgage
Warehouse Lending Division


201  East Pine Street, Suite 730


Orlando,
Florida 32801


 


together
with proof of payment of the applicable premiums and (ii) full information
as to all such insurance.  The Seller
shall at all times maintain a fidelity bond covering all employees who handle
money or documents in an amount and issued by a company acceptable to the
Buyer, naming the Buyer as the “loss payee” and protecting the Buyer against
loss due to double selling or other fraud involving the Purchased Loans.


 


17.5         Payment of Taxes and Claims.  The Seller shall pay, and cause each of its
Subsidiaries to pay, (i) all taxes, assessments and governmental charges
imposed upon it or upon its property, and (ii) all genuine claims 


 


40

















 


(including
claims for labor, materials, supplies or services) that might, if unpaid,
become a Lien upon its property, unless, in each case, the validity or amount
thereof is being contested in good faith by appropriate proceedings and the
Seller or such Subsidiary has maintained adequate reserves in accordance with
GAAP with respect thereto or has posted a bond in respect thereof satisfactory
to the Buyer.


 


17.6         Other Accounts.  The Seller shall maintain the Administrative
Account, Controlled Disbursement Account, Investor Funding Account and Master
Advance Account with the Buyer, which accounts shall be maintained in a manner
acceptable to the Buyer.  The Seller
further agrees that it shall at all times maintain in the Master Advance
Account or, if applicable, the Controlled Disbursement Account, sufficient
funds to pay the difference between (i) the amount of all drafts drawn
thereon, including wire transfers or checks written to originate or acquire
Mortgage Loans to be sold to the Buyer, and (ii) the amount of the
Purchase Price, if any, paid by the Buyer, which proceeds the Seller
acknowledges that the Buyer is not obligated to pay unless and until all
conditions thereto as set forth in Article 15 have been satisfied
by the Seller.


 


17.7         Further Documents.  The Seller shall execute and deliver or cause
to be executed and delivered to the Buyer from time to time such confirmatory
or supplementary security agreements, financing statements, reaffirmations and
consents and such other documents, instruments or agreements as the Buyer may
reasonably request, that are in the Buyer’s reasonable judgment necessary or
desirable to obtain for the Buyer the benefit of the Facility Papers.


 


17.8         Operational Procedures.  The Seller shall follow and abide by the
operational procedures set forth on the Procedural Manual.


 


17.9         Closing the Buyer Instructions.  The Seller’s closing instructions shall
require all closing agents to return all funds to the Buyer if the closing does
not take place as scheduled, which instructions shall be signed by each closing
agent and returned with the closing package to the Seller (unless otherwise
directed by the Buyer, the Seller shall be required to include such signed
instructions in the closing package to the closing agents).


 


17.10       FHA Mortgage Loan Requirements.  The Seller shall (i) no later than
fifteen (15) days after the end of each calendar month, provide evidence
satisfactory to the Buyer that not less than ninety percent (90%) of all FHA
Mortgage Loans constituting Purchased Loans are 


 


FHA-insured within 60 days of their origination and (ii) provide
the necessary authorization to the Buyer to access the HUD website for the
purpose of checking the status of insurance on all FHA Mortgage Loans constituting
Purchased Loans.


 


17.11       Promptly Correct Escrow
Imbalances.  By no later
than seven (7) Banking Days after learning (from any source) of any
material imbalance in any escrow account(s) maintained by the Seller, the
Seller will fully and completely correct and eliminate such imbalance.


 


17.12       MERS.  The Seller will:


 


(i)            be a “Member” (as defined in
the MERS Procedures Manual) of MERSCORP;


 


(ii)           maintain the Electronic
Tracking Agreement in full force and effect and timely perform all of its
obligations thereunder;


 


(iii)          provide the Buyer with
copies of any new MERS Procedures Manual or agreement or any amendment,
supplement or other modification of any MERS Procedures Manual or agreement
(other than the Electronic Tracking Agreement);


 


(iv)         not amend, terminate or
revoke, or enter into any agreement that is inconsistent with or contradicts
any provision of, the Electronic Tracking Agreement;


 


(v)          identify to the Buyer each
Purchased Loan that is registered in the MERS System, at the earlier of the
time it is so registered or the time it is purchased or deemed purchased
hereunder, as so registered;


 


41

















 


(vi)          at the request of the Buyer,
take such actions as may be requested by the Buyer to:


 


(a)           transfer beneficial
ownership of any Purchased Loan to the Buyer as “Interim Funder” and/or “Associated
Member” or as any other category, as the Buyer may deem necessary and proper,
on the MERS System; or


 


(b)          de-register or re-register
any Purchased Loan on, or withdraw any Purchased Loan from, the MERS System;


 


(vii)         provide the Buyer with
copies of any or all of the following reports with respect to the Purchased
Loans registered on the MERS System at the request of the Buyer:


 


(a)           Co-existing Security
Interest (MERS form IA);


 


(b)          Release of Security Interest
by Interim Funder (MERS form IB);


 


(c)           Interim Funder Rejects (MERS
form IC);


 


(d)          Paid in Full Verification
(MERS form DK); and


 


(e)           such other reports as the
Buyer may reasonably request to verify the status of any Purchased Loan on the
MERS System;


 


(viii)        notify the Buyer of any
withdrawal or deemed withdrawal of the Seller’s membership in the MERS System
or any deregistration of any Purchased Loan previously registered on the MERS
System; and


 


(ix)           obtain the prior written
consent of the Buyer before entering into an electronic tracking agreement
(other than the Electronic Tracking Agreement) with any other Person.


 


17.13       Special Affirmative Covenants
Concerning Purchased Loans.


 


(i)            The Seller will defend the
right, title and interest of the Buyer in and to the Purchased Loans against
the claims and demands of all persons whomsoever.


 


(ii)           The Seller will ensure that
the Mortgaged Premises securing each Purchased Loan is continuously insured
against casualty loss as follows:


 


(a)           the Seller shall cause to be
maintained with respect to each Purchased Loan, one or more Hazard Insurance
Policies which provide, at a minimum, the same coverage as a standard form fire
and extended coverage insurance policy that is customarily required by other
creditors for residential real estate located in the same general geographic
area and state that secures that Purchased Loan, issued by a company authorized
to issue such policies in the state in which the related residential real
estate is located and in an amount not less than (x) the maximum insurable
value of the improvements to such residential real estate or (y) the
principal balance due from the Customer(s) under the related Purchased
Loan, whichever is less; provided
that the amount of coverage provided by each Hazard Insurance Policy shall be
sufficient to avoid the application of any coinsurance clause for partial
losses, although such Hazard Insurance Policies may provide for customary
deductible amounts.  Each Hazard
Insurance Policy shall contain a standard loss payee clause in favor of the
Seller and its successors and assigns. 
If any Customer obligated on any Purchased Loan fails to pay any
premiums on the Hazard Insurance Policy for the related property, the Seller
shall pay such premiums out of its own funds and may separately add the amount
so paid to the applicable Customer’s obligation as provided by the relevant
Loan Papers, but shall not add that amount to the remaining principal balance
of that Purchased Loan; and


 


(b)          the Seller may, in lieu of
causing individual Hazard Insurance Policies to be maintained with respect to
each Mortgaged Premises pursuant to Section 17.13(ii)(a), and
shall, to the extent that the related Loan Papers do not require the Customer(s) obligated
on them to maintain a Hazard Insurance Policy with 


 


42

















 


respect
to the related Mortgaged Premises, maintain one or more blanket insurance
policies covering losses on the Seller’s interest in the Purchased Loans
resulting from the absence or insufficiency of individual Hazard Insurance
Policies.  The Seller shall pay the
premium for such policy on the basis described therein and shall pay from its
own funds any deductible amount with respect to claims under such blanket
insurance policy relating to the Purchased Loans.  However, the Seller shall not be required to
deposit any deductible amount with respect to claims under individual Hazard
Insurance Policies maintained pursuant to Section 17.13(ii)(a).  If the insurer under such blanket insurance
policy shall cease to be acceptable to the Buyer, the Seller shall exercise its
best reasonable efforts to obtain from another insurer a replacement policy
comparable to such policy.


 


(iii)          The Seller hereby authorizes
the Buyer to file such UCC financing statements and continuation statements as
the Buyer shall deem necessary or appropriate, and agrees to make or cause to
be made by any Person such book entries and control agreements with respect to
the Purchased Loans as the Buyer may reasonably require or request from time to
time to perfect or continue perfection of the security interests granted or
required to be granted to the Buyer pursuant to this Agreement.  The Seller shall also execute and deliver to
the Buyer such further instruments of sale, pledge or assignment or transfer,
and such powers of attorney, as shall be reasonably required by the Buyer from
time to time, and shall do and perform all matters and things necessary or
desirable to be done or observed, for the purpose of effectively creating,
maintaining and preserving the security and benefits intended to be afforded
the Buyer under this Agreement and the other Facility Papers.  In the event of recharacterization of the
purchases made hereunder as a financing, the Buyer shall have all the rights
and remedies of a secured party under the UCC of the State of Ohio and any
other applicable Law, in addition to all rights provided for in this Agreement
and the other Facility Papers.


 


(iv)         As soon as they become
available but in no event past the Wet Mortgage Loan Period, the Seller will
cause to be assembled and delivered to the Buyer all Required Documents
relating to Wet Mortgage Loans.  Without
limitation of the foregoing, if original recordation receipts evidencing the
recordation of the Mortgage and Mortgage Assignment included in the Purchased
Loans which are Reacquired Mortgage Loans or Rejected Mortgage Loans have not
previously been delivered to the Buyer, the Seller will promptly deliver (or
cause to be delivered) to the Buyer, either the original recordation receipts
or the original recorded Mortgage or Mortgage Assignment showing the
recordation data thereon.


 


17.14       Non-Agency
Investor Letters.  Send or
cause to be sent the Buyer approved letters to all non-Agency investors which
shall execute and return same to the Buyer at the Buyer’s address set forth in Section 24.


 


17.15       Post
Closing.  Terminate within
thirty (30) days following the Effective Date, the Existing Facilities and
obtain all required releases and UCC termination statements with respect to any
Mortgage Loans and all obligations thereunder, as may be required by the Buyer.


 


18           Negative Covenants


 


The Seller agrees that until
all of the Purchased Loans have been repurchased by the Seller and none of the
Seller’s Obligations remain to be paid or performed under this Agreement or any
of the other Facility Papers, the Seller shall not, either directly or
indirectly:


 


18.1         Liens.  Create, incur, assume or suffer to exist, or
permit any Subsidiary to create, incur, assume or suffer to exist, any Lien
upon its properties, assets or revenues now owned or hereafter acquired,
except:


 


(i)            Liens created or permitted
by this Agreement or any of the other Facility Papers, including without
limitation, Permitted Encumbrances;


 


(ii)           Liens created or permitted
under any of the Other Approved Facility Papers; provided, that
notwithstanding anything to the contrary contained herein, such Liens shall not
encumber at any time any properties, assets or revenues of the Seller which are
purchased by the Buyer under this Agreement and/or otherwise secure the
Obligations pursuant to the Facility Papers;


 


43

















 


(iii)          Liens for taxes not yet due
or which are being contested in good faith by appropriate proceedings; provided,
that adequate reserves with respect thereto are maintained on the books of the
Seller in conformity with GAAP;


 


(iv)         carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s, lessors’, landlords’ or other like
Liens arising in the ordinary course of business that are not overdue for a
period of more than 60 days or that are being contested in good faith by
appropriate proceedings; or


 


(v)          pledges or deposits in
connection with workers’ compensation, unemployment insurance and other social
security legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements not to exceed $50,000.00 in the
aggregate, provided that, in the event the Seller makes any such pledge
or deposit, the Seller shall deliver to the Buyer a detailed schedule regarding
such pledge or deposit, including, but not limited to, the amount, the date
made, any expiration or termination dates and such other information as the
Buyer reasonably may request.


 


18.2        Warehouse and Other Financing.  Create, incur, assume, suffer to exist, or
otherwise become or be liable in respect of, or permit any of its Subsidiaries
to create, incur, assume, suffer to exist, or otherwise become liable in
respect of, any warehouse or other financing (other than the Approved Other
Facilities but only for so long each creditor thereunder is a party to an
intercreditor agreement with the Buyer, in form and substance satisfactory to
the Buyer) without prior written consent of the Buyer.


 


18.3        Other Indebtedness.  Create, incur, assume or suffer to exist or
otherwise become liable in respect of, any Funded Liabilities or any
Liabilities to any bank or other financial institution, whether Current Liabilities
or Funded Liabilities, in the aggregate in excess of $500,000.00 in the
aggregate annually (other than the Other Approved Facilities, of which the
Existing Facilities shall be terminated within 30 days of the Effective Date,
and the mortgage on the Seller’s office building) without the Buyer’s prior
written consent.


 


18.4        Change of Business.  Engage in any type of business that is
unrelated to the mortgage banking and lending business and the servicing of
Mortgage Loans.


 


18.5        Change of Control.  Suffer or permit any Change of Control.


 


18.6        Fundamental Changes.  Merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, lease, transfer or otherwise dispose of (in a single transaction or a
series of transactions) all or substantially all of its assets (in each case,
whether now owned or hereafter acquired) or liquidate or dissolve; provided,
that if at the time thereof and immediately after giving effect thereto, no
Potential Default or Event of Default shall have occurred and be continuing the
Seller may merge with a Person if the Seller is the surviving Person.


 


18.7        Investments.  Make any advance, loan, extension of credit
or capital contribution to, or purchase any stock, bonds, notes, debentures or
other securities of or any assets constituting a business unit of, or make any
other investment in, any Person (collectively, “Investments”),
except:


 


(i)            extensions of trade credit
and accounts receivable generated in the ordinary course of business;


 


(ii)           Investments as reflected in
the financial statement referenced in Section 16.1(iv)(a);


 


(iii)          Investments in cash or cash
equivalents;


 


(iv)         Hedging Arrangements entered
into by the Seller to protect the Seller against changes in the value of its
Mortgage Loans or any of its other assets;


 


(v)          Investments in equity or
debt securities which are listed on a national securities exchange or freely
traded in the over-the-counter market; provided, that (i) the
aggregate costs incurred in making such 


 


44

















 


Investments
shall not exceed $50,000.00 at any time and (ii) prior to and immediately
after giving effect to such Investment, no Potential Default or Event of
Default shall have occurred and be continuing;


 


(vi)          if permitted by Section 18.16,
formation of new Subsidiaries; provided, such Subsidiaries execute a
Guarantee of the Obligations in favor of the Buyer in form and substance
satisfactory to the Buyer; and


 


(vii)         loans or advances to
employees, officers or directors of the Seller in the ordinary course of
business for travel, relocation and related expenses.


 


18.8        Guarantees.  Guarantee, endorse or otherwise become
secondarily liable for or upon the obligations of any other Person, except by
endorsement for deposit in the ordinary course of business.


 


18.9        Restrictive Agreements.  Enter into, incur or permit to exist any
agreement that prohibits, restricts or imposes any condition upon the ability
of the Seller to create, incur or permit any Lien upon any of its assets or
properties, whether now owned or hereafter acquired or of any Subsidiary to
declare or pay dividends or to make loans or other advances to the Seller,
directly or indirectly.


 


18.10      Payment of Dividends and Other
Payments.  (i) Declare
or pay any dividend on its capital stock now or hereafter outstanding (except
dividends payable solely in shares of the capital stock of the Seller), or make
any other distribution to its respective stockholders, whether in cash,
property or securities or (ii) make any payment on its Subordinated Debt
without, in each instance, the prior written consent of the Buyer, which
consent shall not be unreasonably withheld, so long as the Seller is in
compliance with the financial covenants contained in Section 18.24
and all other covenants contained herein, both before and after giving effect
thereto, and no Potential Default or Event of Default has occurred and is
continuing, or would result after giving effect thereto.


 


18.11      Transactions with Affiliates.  Enter into, or permit any of its Subsidiaries
directly or indirectly to enter into, any transaction (including the purchase,
sale, lease or exchange of any property, the making or borrowing of any loan or
the rendering of any service) with any Affiliate on terms, in each instance,
that are less favorable to the Seller or such Subsidiary than those that might
be obtained at the time from Persons which are not Affiliates.


 


18.12      Effectiveness of Investor
Commitments.  Amend,
void, reduce, modify, violate, terminate or commit any act that would in any
way adversely affect any Investor Commitment covering a Purchased Loan if,
after giving pro-forma effect to such action, a Potential Default or Event of
Default will have occurred.


 


18.13      VA Guaranties and FHA Insurance.  Commit any act that would invalidate any VA
guarantee or FHA insurance relating to any Mortgage Loan constituting a
Purchased Loan if, after giving pro-forma effect to such action, a Potential
Default or Event of Default will have occurred.


 


18.14      ERISA.  Take, or permit any Subsidiary to take, any
of the following actions:


 


(i)            Terminate or withdraw from
any Plan so as to result in any material liability to the PBGC;


 


(ii)           Engage in or permit any
Person to engage in any Prohibited Transaction involving any Plan that would
subject the Seller or any of its Subsidiaries to any material tax, penalty or
other liability;


 


(iii)          Incur or suffer to exist any
material Accumulated Funding Deficiency, whether or not waived, involving any
Plan;


 


(iv)          Allow or suffer to exist any
event or condition that presents a risk of incurring a material liability to
the PBGC;


 


(v)           Amend any Plan so as to
require the posting of security under Section 401(a)(29) of the Code; or


 


45

















 


(vi)          Fail to make payments
required under Section 412(m) of the Code and Section 302(e) of
ERISA that would subject the Seller or any of its Subsidiaries to any material
tax, penalty or other liability.


 


18.15      Transfer to Affiliates.  Sell, assign or otherwise transfer any of its
assets, or permit any of its Subsidiaries to sell, assign or otherwise transfer
any of their respective assets, to any Affiliate of the Seller without the
prior written consent of the Buyer.


 


18.16      Subsidiaries.  Form or cause to be formed after the
date hereof any Subsidiaries without the prior written consent of the Buyer.


 


18.17      Margin Regulations.  Use any or all of the proceeds of any
Transaction (i) to purchase or carry Margin Stock or extend credit to
others for the purpose of purchasing or carrying Margin Stock or (ii) in
any manner that will violate or be inconsistent with the provisions of
Regulation U.


 


18.18      Change of Jurisdiction of
Incorporation; Principal Place of Business and Chief Executive Office; Location
of Records.  Change its
jurisdiction of incorporation from the State of Ohio or its principal place of
business and chief executive office and the place where its records concerning
the Purchased Loans are kept as set forth on Schedule 16.1(xii) unless
it has given the Buyer at least thirty (30) days’ prior written notice thereof
and then, only if (i) the new jurisdiction and/or location is in the
United States, and (ii) the Seller has taken all actions requested by the
Buyer to maintain the perfected interest in the Purchased Loans.


 


18.19      Amendments to Material Documents.  Amend, modify or waive any of its rights in a
manner materially adverse to the Buyer under (a) its certificate of
incorporation, bylaws or other organizational documents or (b) any
material contract if, in either case, any such amendment, modification or
waiver, would cause a change in the financial condition of the Seller or any of
its Subsidiaries in a Material Amount or otherwise cause a Material Adverse
Effect.


 


18.20      Change in Accounting; Fiscal Year.  Make any significant change in accounting
treatment or reporting practices, except as required or, with the approval of
the Buyer, as permitted, by GAAP, or permit its fiscal year to end on a day
other than December 31.


 


18.21      Subordinated Debt.  Make any payment to a Subordinated Creditor
on any Subordinated Debt which would cause a violation of any of the financial
covenants contained in Section 18.24 or if any Potential Default or
Event of Default has occurred and is continuing or would result after giving
effect thereto and, prior to making any such payment, without first providing
the Buyer with a certificate of the Seller’s chief financial officer attesting,
to the satisfaction of the Buyer, that the Seller, following the making of such
payment, will be in compliance with each of the foregoing financial covenants.


 


18.22      Negative Pledge.  Permit the shareholder of the Seller to
pledge, assign, transfer or encumber any capital stock such shareholder holds
of the Seller to any third party.


 


18.23      Anti-Terrorism Laws.  Take, or permit any Affiliate to take, any of
the following actions:


 


(i)            conduct any business or
engage in any transaction or dealing with any Blocked Person, including the
making or receiving of any contribution of funds, goods or services to or for
the benefit of any Blocked Person;


 


(ii)           deal in, or otherwise engage
in any transaction relating to, any property or interests in property blocked
pursuant to Executive Order No. 13224; or


 


(iii)          engage in on conspire to
engage in any transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the prohibitions set forth in
Executive Order No. 13224 or the USA Patriot Act.


 


46

















 


The
Seller shall deliver to the Buyer any certification or other evidence requested
from time to time by the Buyer, in its sole discretion, confirming the Seller’s
compliance with this Section 18.23.


 


18.24      Financial Covenants.  Permit:


 


(i)            Adjusted Tangible Net Worth.  Adjusted Tangible Net Worth, tested monthly
as at the end of each calendar month, to be less than $13,500,000.00.


 


(ii)           Leverage Ratio.  The Leverage Ratio, tested monthly as at the
end of each calendar month, to be greater than 15.0:1.0.


 


(iii)          Current Ratio.  The Current Ratio, tested monthly as at the
end of each calendar month, to be less than 1.0:1.0.


 


(iv)          Minimum Corporate Cash.  The Seller’s cash [or Cash Equivalents][COLONIAL TO CONFIRM] on hand, determined only with respect
to the Seller and not on a consolidated basis, tested monthly as at the end of
each calendar month, to be less than $1,000,000.00.


 


19           Events of Default; Event of Termination


 


19.1         Events of Default.  If one or more of the following events (each
an “Event of Default”) shall have occurred
and be continuing, each shall be and constitute an “Event of
Default” hereunder:


 


(i)            Payments.  The Seller shall fail to make any payment of
Repurchase Price when due or shall fail to pay within five (5) Banking
Days after the due date therefor any other Obligations under any of the
Facility Papers.


 


(ii)           Covenants Without Notice.  The Seller shall fail to observe or perform
any covenant or agreement contained in Sections 17.1(v), 17.1(xiv),
17.2, 17.4, 17.6, 17.7, 17.8, 17.9, 17.11,
17.15 and Article 18 (other than Section 18.5); provided,
that any violation of Section 18.1 that is attributable to the
existence of an involuntary Lien on the Purchased Loan shall not constitute an
Event of Default until thirty (30) days after the imposition thereof if at all
times during such thirty (30) day period (i) the Seller is making a
diligent effort by appropriate means to remove such Lien and (ii) such
Lien does not have a Material Adverse Effect.


 


(iii)          Covenants With Five Day
Grace Period.  The Seller
shall fail to observe or perform any covenant or agreement contained in Section 17.1
(other than those referred to in Section 19.1(ii)), 17.3, 17.5
or 17.10, and such failure shall remain unremedied for five (5) Banking
Days after oral notice thereof to an Authorized Seller Representative (which
shall be confirmed in writing before the end of such five (5) Banking Day
period).


 


(iv)          Covenants With Thirty Day
Grace Period.  The Seller
shall fail to observe or perform any covenant or agreement contained in any
Facility Papers, other than those referred to in Sections 19.1(i), 19.1(ii),
19.1(iii), and, if capable of being remedied, such failure shall remain
unremedied for thirty (30) days after the earlier of (i) the Seller’s
obtaining knowledge thereof or (ii) written notice thereof shall have been
given to the Seller by the Buyer; provided that (x) if such failure
is capable of being remedied but only in a period of more than thirty (30)
days, then such failure shall not constitute an Event of Default until ninety
(90) days after the earlier of the above dates if the Seller is making a
diligent effort by appropriate means to observe or perform such covenant and (y) failure
to observe or perform such covenant does not have a Material Adverse Effect.


 


(v)           Representations.  Any representation, warranty or statement
made or deemed to be made by the Seller or any of its officers or the
Authorized Seller Representatives under or in connection with any Facility
Papers shall have been inaccurate, incomplete or incorrect in any respect when
made or deemed to be made.


 


(vi)          Non-Payment of Other
Liabilities.  The Seller
shall fail to make any payment of principal of or interest on any of its
liabilities (other than the Obligations), including without limitation under the
Other 


 


47

















 


Approved
Facility Papers, when due (whether at stated maturity, by acceleration, on
demand or otherwise) after giving effect to any applicable grace period.


 


(vii)         Defaults Under Other Agreements.  The Seller shall fail to observe or perform
any covenant or agreement contained in any agreement or instrument relating to
any of its liabilities (other than the Obligations), including without
limitation under any of the Other Approved Facility Papers, within any
applicable grace period, or any other event shall occur if the effect of such
failure or other event is to accelerate, or to permit the holder of such
liabilities or any other Person to accelerate, the maturity of such
liabilities; or any such liabilities shall be required to be prepaid (other
than by a regularly scheduled required prepayment) in whole or in part prior to
their stated maturity.


 


(viii)        Bankruptcy.  The Seller or any guarantor shall commence a
voluntary case under the Bankruptcy Code; or any involuntary case is commenced
against the Seller or any guarantor and the petition is not dismissed within
sixty (60) days after commencement of such case; or a custodian (as defined in
the Bankruptcy Code) is appointed for, or takes charge of, all or any
substantial part of the property of the Seller or any guarantor; or the Seller
or any guarantor commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law or there is commenced against the Seller or any
guarantor any such proceeding that remains undismissed for a period of sixty
(60) days; or the Seller or any guarantor is adjudicated insolvent or bankrupt;
or any order of relief or other order approving any such case or proceeding is
entered; or the Seller or any guarantor shall fail to pay, or shall state that
it or he is unable to pay, or shall be unable to pay, its or his debts
generally as they become due; or the Seller or any guarantor shall call a
meeting of its or his creditors with a view to arranging a composition or
adjustment of its or his debts; or the Seller or any guarantor shall by any act
or failure to act indicate its or his consent to, approval of or acquiescence
in any of the foregoing; or any corporate action is taken by the Seller or any
guarantor for the purpose of effecting any of the foregoing.


 


(ix)           Money Judgment.  One or more judgments or orders for the
payment of money shall be rendered against the Seller or any guarantor and such
judgment or order shall continue unsatisfied (in the case of a money judgment)
and in effect for a period of thirty (30) days during which execution shall not
be effectively stayed or deferred (whether by action of a court, by agreement or
otherwise).


 


(x)            ERISA.  (i) Any Reportable Event or a Prohibited
Transaction shall occur with respect to any Plan; (ii) a notice of intent
to terminate a Plan under Section 4041 of ERISA shall be filed; (iii) a
notice shall be received by the plan administrator of a Plan that the PBGC has
instituted proceedings to terminate a Plan or appoint a trustee to administer a
Plan; (iv) any other event or condition shall exist that might, in the
opinion of the Buyer, constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Plan; (v) the
Seller or any ERISA Affiliate shall withdraw from a Multiemployer Plan under
circumstances that the Buyer determine could have a Material Adverse Effect;
and in case of the occurrence of any event or condition described in clauses (i) through
(v) above, such event or condition together with all other such events or
conditions, if any, could subject the Seller to any tax, penalty or other
liabilities in the aggregate material in relation to the business, operations,
property or financial or other condition of the Seller.


 


(xi)           Dissolution; Death, etc.  The Seller or any guarantor that is not a
natural person shall commence dissolution proceedings or otherwise shall cease
operation of its business as conducted on the date hereof, or any guarantor
that is a natural person shall die or become incapacitated.


 


(xii)          Change of Control.  Any Change of Control shall occur.


 


(xiii)         Adverse Changes.  Any change in the financial condition of the
Seller or any of its Subsidiaries shall occur which is in a Material Amount.


 


(xiv)         Failure to Pass Audit.  The Buyer, for any reason, shall be
dissatisfied with the results of any operational or financial audit undertaken
by it pursuant to Section 17.3.


 


48

















 


(xv)         Insecurity.  The Buyer, in the exercise of good faith,
shall deem itself to be insecure with respect to the Seller’s ability to pay
the Obligations as and when due or to comply with and perform any of the
covenants, agreements, or obligations of the Seller hereunder.


 


(xvi)        Interests in the Purchased
Loans.  The Buyer shall cease for any
reason (other than pursuant to the terms of this Agreement) to have valid,
perfected and first priority ownership interests in the Purchased Loans, or any
Person shall take any action to discontinue or to assert the invalidity or
unenforceability of such ownership interests.


 


(xvii)       Default Under Guaranty.  Any guarantor shall fail to meet or comply
with any term or condition of its respective guaranty or shall seek to cancel
or revoke his or its respective guaranty for any reason whatsoever or shall
default in the payment or performance of any obligations thereunder to the
Buyer.


 


(xviii)      Default Under Other Facility
Papers.  Any default or event of
default shall occur under any of the other Facility Papers, subject to any
applicable notice requirements and the expiration of any applicable grace
periods provided therein.


 


(xix)        Default Under Other Approved
Facility Papers.  Any default
or event of default shall occur under any of the Other Approved Facility Papers
or the documents and instruments governing, evidencing, securing, guaranteeing
or otherwise relating to such Other Approved Facility Papers, subject to any
applicable notice requirements and the expiration of any applicable grace
periods provided therein.


 


(xx)         Recharacterization of this
Agreement. Either (i) this Agreement shall for any
reason not cause, or shall cease to cause, the Buyer to be the owners of all
Purchased Loans or, if recharacterized as a secured financing, secured party
with respect to all Purchased Loans, in each case, free of any adverse claim,
liens and other rights of others (other than as granted or disclosed herein), (ii) if
a Transaction is recharacterized as a secured financing, this Agreement and the
other Facility Papers with respect to such Transaction shall for any reason
fail or cease to create a valid and perfected first priority security interest
in favor of the Buyer in all of the related Purchased Loans for such
Transaction, or (iii) if this Agreement shall cease to be in full force
and effect or if its enforceability is disputed or challenged by the Seller.


 


19.2         Transaction and Commitment
Termination.  If an Event
of Default shall have occurred and be continuing, then, at the option of the
Buyer (which option shall be deemed to have been exercised, even if no notice
is given, immediately upon the occurrence of an Event of Default specified in Sections
19.1(viii) or (xi)) the Buyer may terminate the Commitment and
declare, by written notice to the Seller, the Repurchase Date for each
Transaction hereunder as deemed immediately to have occurred.


 


19.3         Termination by the Buyer.  If the Buyer is deemed to have exercised the
option to terminate Transactions referred to in Section 19.2, (i) the
Seller’s obligations hereunder to repurchase all Purchased Loans in such
Transactions shall thereupon become immediately due and payable, (ii) to
the extent permitted by applicable Law, the Repurchase Price with respect to
each Transaction shall be increased by the aggregate amount obtained by daily
multiplication of (x) the Ceiling Rate by (y) the Purchase Price for
such Transaction as of the Repurchase Date as determined pursuant to Section 19.2
(decreased as of any day by (A) any amounts retained by the Buyer with
respect to such Purchase Price pursuant to clause (iii) of this Section 19.3,
(B) any proceeds from the sale of Purchased Loans pursuant to clause (a) of
Section 19.4(i), and (C) any amounts credited to the account
of the Seller pursuant to clause (b) of Section 19.4(i))
on a three hundred sixty (360) day per year basis for the actual number of days
during the period from and including the date of the Event of Default giving
rise to such option to but excluding the date of payment of the Repurchase
Price as so increased, (iii) all Income paid after such exercise or deemed
exercise shall be payable to and retained by the Buyer and applied to the
aggregate unpaid Repurchase Prices owed by the Seller and (iv) the Seller
shall immediately deliver to the Buyer any documents and Purchased Loans
Records relating to Purchased Loans subject to such Transactions then in the
Seller’s, its Servicer’s or its subservicer’s possession.


 


19.4         Remedies.  Upon the occurrence of an Event of Default,
the Buyer, without prior notice to the Seller, may:


 


49














 


(i)            (a) immediately sell,
in a recognized market at such price or prices as the Buyer may, in its sole
discretion, deem satisfactory, any or all Purchased Loans subject to
Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase
Prices and any other amounts owing by the Seller hereunder or (b) in the
Buyer’s sole and absolute discretion elect, in lieu of selling all or a portion
of such Purchased Loans, to give the Seller credit for such Purchased Loans in
an amount equal to the Market Value therefor on such date against the aggregate
unpaid Repurchase Prices and any other amounts owing by the Seller hereunder; provided
that in either of clause (a) or (b), the related servicing for such
Purchased Loans shall be either retained or released as provided in Section 20.3;


 


(ii)           notify all obligors in
respect of the Purchased Loans that the Purchased Loans have been sold to the
Buyer, and that all payments thereon are to be made directly to the Buyer or
such other party as may be designated thereby; and


 


(iii)          exercise from time to time
any and all other remedies available under applicable Law including, but not
limited to, those of a purchaser or secured party under the Ohio UCC and/or the
Florida UCC, as applicable.


 


The
Seller acknowledges that Mortgage Loans are customarily sold on a recognized
market.  The Seller waives any right it
may have to prior notice of the sale of any Purchased Loans, and agrees that
the Buyer may purchase any Purchased Loans at a private sale thereof.


 


Upon
any sale or other disposition pursuant to this Agreement, the Buyer shall have
the right to deliver, assign and transfer to the purchaser thereof the
Purchased Loans or portion thereof so sold or disposed of and all proceeds
thereof shall be promptly transmitted to the Buyer.  Each purchaser at any such sale or other
disposition shall hold the Purchased Loans, free from any claim or right of
whatever kind, including any equity or right of redemption of the Seller, and
the Seller specifically waives (to the extent permitted by law) all rights of
redemption, stay or appraisal that it has or may have under any rule of
law or statute now existing or hereafter adopted.  The Buyer is hereby granted a license or
other right to use, without charge, the Seller’s computer programs, other
programs, labels, patents, copyrights, rights of use of any name, trade
secrets, trade names, trademarks, service marks and advertising matter, or any
property of a similar nature, as it pertains to the Purchased Loans, in
advertising for sale and selling any Purchased Loans, and the Seller’s rights
under all licenses and all other agreements related to the foregoing shall
inure to the Buyer’s benefit until the Obligations are paid in full and the
Buyer’s Commitment is terminated. 
Nothing herein contained shall be construed as an assumption by the
Buyer or its appointee of any liability of the Seller with respect to any of
the Purchased Loans, and the Seller shall be and remain responsible for all
such liabilities.


 


Any
notice pursuant to any Requirements of Law of any sale, public or private, of
all or any part of the Purchased Loans shall be deemed in all circumstances to
have been given in a commercially reasonable manner if sent at least five (5) Banking
Days prior to such sale by mail to the Seller at its address set forth herein.  The Buyer shall not be obligated to make any
sale pursuant to any such notice.  If
permissible under the UCC or other applicable Law, the Buyer will endeavor to
sell any Purchased Loan which is subject to a current Investor Commitment to
the Approved Investor which issued such Investor Commitment prior to offering
such Purchased Loan for sale (either public or private) to another
purchaser.  At any such sale the
Purchased Loans may be sold in one lot as an entirety or in separate lots or
parcels.  In the case of any sale of all
or any part of the Purchased Loans for credit or for future delivery, the
Purchased Loans so sold may be retained by the Buyer until the selling price is
paid by the purchaser thereof, but the Buyer shall not incur any liability in
case of the failure of such purchaser to take up and pay for the Purchased
Loans so sold, and in case of any such failure, such Purchased Loans may again
be sold under and pursuant to the provisions hereof.  The Seller hereby appoints the Buyer or the
Buyer’s designee as the Seller’s attorney-in-fact with power to execute all
conveyances, assignments and transfers of the Purchased Loans sold pursuant
hereto in the name and stead of the Seller. 
The Seller shall, if so requested by the Buyer, ratify and confirm any
sale or sales by executing and delivering to the Buyer, or to such purchaser or
purchasers, all such documents as may, in the judgment of the Buyer, be
advisable for such purpose.  All acts of
such attorney or designee are hereby ratified and approved by the Seller, and
such attorney or designee shall not be liable for any acts of omission or
commission, nor for any error of judgment or mistake of fact or law in
accordance with this Agreement.  The
power of attorney hereby granted is irrevocable and coupled with an interest
while any of the Obligations remain unsatisfied.


 


50

















 


19.5         Liability for Expenses and
Damages.  The Seller shall be liable to
the Buyer for (i) the amount of all reasonable legal or other expenses
incurred by the Buyer in connection with or as a result of an Event of Default
and collecting and enforcing its rights in the Purchased Loans, whether or not
suit is brought and whether incurred with trial, rehearing, retrial, appeal or
bankruptcy, (ii) damages in an amount equal to the reasonable cost
(including all fees, expenses and commissions) of entering into replacement
transactions and entering into or terminating hedge transactions in connection
with or as a result of an Event of Default and (iii) any other reasonable
loss, damage, cost or expense directly arising or resulting from the occurrence
of an Event of Default.


 


19.6         Liability for Interest.  To the extent permitted by applicable Law,
the Seller shall be liable to the Buyer for interest on any amounts owing by
the Seller under Section 19.5, from the date the Seller becomes
liable for such amounts until such amounts are (i) paid in full by the
Seller or (ii) satisfied in full by the exercise of the Buyer’s rights
hereunder.  Interest on any sum payable
by the Seller to the Buyer under this Section 19.6 shall be at a
rate equal to the Ceiling Rate.


 


19.7         Setoff.  The Buyer may set off against the Obligations
any funds or debts owing to the Seller by the Buyer including, but not limited
to, any funds in any deposit account, savings certificate or other instrument
now or hereafter maintained by the Seller with the Buyer or any of its
Affiliates.  The Seller hereby confirms
the Buyer’s right of lien and setoff and nothing in this Agreement shall be
deemed to constitute any waiver or prohibition thereof.


 


19.8         Other Rights.  The rights, powers and remedies of the Buyer
under this Agreement shall be in addition to all rights, powers and remedies
given to the Buyer by virtue of any applicable Law, all of which rights, powers
and remedies shall be cumulative and may be exercised successively or
concurrently without impairing the Buyer’s interest in the Purchased Loans.


 


19.9         Limitation on Liability of the
Buyer.  It is expressly agreed by the
Seller that, anything herein to the contrary notwithstanding, the Seller shall
remain liable to observe and perform all the conditions, duties and obligations
to be observed and performed by it relating to the Purchased Loans, and the
Seller shall perform all of its duties and obligations thereunder, all in
accordance with and pursuant to the terms and provisions relating thereto.  The Buyer shall not have any obligation or
liability under any instrument, agreement, contract or other document by reason
of or arising out of this Agreement or the granting of a security interest in
any instrument, agreement, contract or other document to the Buyer or the
receipt by the Buyer of any payment relating to any of the foregoing pursuant
hereto, nor shall the Buyer be required or obligated in any manner to perform
or fulfill any of the obligations of the Seller thereunder, or to make any
payment, or to make any inquiry as to the nature or the sufficiency of any
payment received by it or the sufficiency of any performance by any party
thereunder, or to present or file any claim, or to take any action to collect
or enforce any performance or the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.


 


20           Servicing and Custody of the Purchased Loans


 


20.1          Servicing for the Buyer.  The parties hereto agree and acknowledge
that, notwithstanding the purchase and sale of the Purchased Loans contemplated
hereby, and regardless of whether they acquired by the Buyer on a “servicing
retained” or “servicing released” basis, the Seller shall service, or cause its
subservicer to service, the Purchased Loans for the benefit of the Buyer and,
if the Buyer shall exercise its rights to sell the Purchased Loans pursuant to
this Agreement prior to the related Repurchase Date, the Buyer’s assigns; provided
that the obligation of the Seller to service, or cause its subservicer to
service, the Purchased Loans for the benefit of the Buyer as aforesaid shall
cease upon the payment to the Buyer of the Repurchase Price therefor (whether
paid by Approved Investors or the Seller).


 


20.2          Servicing Standard and Reports.  The Seller shall cause the Servicer and the
Seller’s subservicer to service and administer each Purchased Loan by
exercising the same care that the Servicer or subservicer (as applicable)
customarily employs and exercises in servicing and administering mortgage loans
for its own account, in accordance with (i) the generally accepted servicing
practices of prudent mortgage lending institutions for the same type of
Mortgage Loan in the jurisdiction where the related Mortgaged Premises are
located, and (ii) the requirements of all applicable Laws and the terms of
the related Mortgage Loan documents, and giving due consideration to the Buyer’s
reliance on the Servicer.  The Seller
will promptly provide, or cause to be provided, to 


 


51

















 


the
Buyer such periodic reports, data files, information and such other Purchased
Loan Records as requested by the Buyer with respect to all Purchased Loans then
funded under any Transaction hereunder. 
The Seller shall deliver to the Buyer no later than the fifteenth (15th)
day of each month an electronic copy of the servicing records of any Purchased
Loan, in a form mutually acceptable to each of them, with the data and
information effective as of the last day of the immediately preceding calendar
month.


 


20.3         Servicing Termination or
Succession.  Upon the
occurrence and continuance of an Event of Default, the servicing for the
Purchased Loans shall be subject to the following:


 


(i)            if the Seller or any of its
Affiliates is the Servicer or the owner of the related Servicing Rights for any
Purchased Loans, then the Buyer, in its sole discretion, may (i) in
connection with the sale of such Purchased Loans, sell such loans on a
servicing released basis and transfer the related servicing rights to another
Person as designated by the Buyer, or (ii) terminate the Servicer or any
subservicer of the Purchased Loans with or without cause and transfer the
servicing to another person as designated by the Buyer, in each case without
payment to the Servicer or subservicer of any termination fee or any other
costs or expenses, it being agreed that the Seller will pay any termination
fees, and costs and expenses required to effectuate a transfer of servicing to
a designee of the Buyer; or


 


(ii)           if a third party is the
Servicer and owner of the related Servicing Rights for the Purchased Loans,
then the Buyer, in its sole discretion, may (i) in connection with the
sale of such Purchased Loans, sell such loans on a servicing retained basis and
subject to the applicable servicing agreement for such Servicer or (ii) provide
notice to the Servicer that the Buyer is succeeding to the Seller’s interest as
the lender or mortgagee of such Purchased Loans under the applicable servicing
agreement for such Servicer.


 


20.4         Delivery of Purchased Loan
Documentation.  Except in
the case of Wet Purchased Loans, at the time of each Purchase Request under the
Repurchase Facility, the Seller shall deliver or cause to be delivered to the
Buyer the Required Documents and, if requested by the Buyer at any time, the
applicable Supplemental Papers. In addition, if requested by the Buyer at any
time, the Seller immediately shall (i) record the assignment in favor of
the Buyer of the Mortgage and/or any security agreements related to any
Purchased Loan acquired in connection with a Transaction in the appropriate
recording office and pay all recording fees, charges and taxes in connection
therewith and (ii) execute and deliver to the Buyer any and all other
documents which are, in the opinion of the Buyer or its counsel, necessary so
as to evidence or perfect the Buyer’s ownership interests in the Purchased
Loans including, but not limited to, execution of appropriate UCC-1 financing
statements to be filed with the appropriate filing officer in the state of the
Seller’s organization and with the appropriate filing officers in such other
jurisdictions where any of the Purchased Loans are or may be located.  All documentation relating to or constituting
each Purchased Loan delivered at any time to the Buyer under this Agreement shall
be held by the Buyer in a suitable depository maintained and controlled solely
by the Buyer.


 


20.5         Buyer’s Review of the Purchased
Loans; Certifications.  Upon
any receipt of Required Documents for any item of the Purchased Loans, the
Buyer shall review the same in accordance with the Purchased Loan review
procedures from time to time set forth in the Procedural Manual (the “Purchased Loan Review Procedures”).  If the Buyer notes any exception in such
review, the Buyer shall follow the directions set forth with respect to such
exception in the Purchased Loan Review Procedures.  In the event that the Seller was requested to
deliver Supplemental Papers with respect to a Purchased Loan, the Buyer shall
review and verify such Supplemental Papers consistent with the review
procedures of the Buyer described in this Section 20.5.


 


20.6         Release of the Required Documents.


 


(i)            Unless an Event of Default
has occurred and is continuing, and upon written request of the Seller, the
Buyer may release to the Seller (or, in the case of clause (iii) of this paragraph,
permit the Seller to release) (i) documentation relating to Purchased
Loans (other than Reacquired Mortgage Loans or Rejected Mortgage Loans) against
a trust receipt executed by the Seller substantially in the form of Schedule
TR-1, with all blanks completed in conformity therewith, (ii) documentation
relating to Reacquired Mortgage Loans or Rejected Mortgage Loans, as
applicable, against a trust receipt executed by the Seller substantially in the
form of Schedule TR-2, with all blanks completed in conformity
therewith, and (iii) to an attorney, trustee or other third party
prosecuting foreclosure proceedings on behalf of the Buyer, documentation
relating to Purchased Loans that are 


 


52

















 


Reacquired
Mortgage Loans or Rejected Mortgage Loans, as applicable, against a trust
receipt executed by such attorney, trustee or other third party substantially
in the form of Schedule TR-3, with all blanks completed in conformity
therewith.  The Seller hereby represents
and warrants to the Buyer that (A) any request by the Seller for release
of the Purchased Loans (other than Reacquired Mortgage Loans or Rejected
Mortgage Loans) pursuant to this Section 20.6(i) shall be
solely for the purposes of correcting clerical or other non-substantial
documentation problems in preparation for returning such Purchased Loans to the
Buyer for ultimate sale or exchange, (B) any request for release of
Reacquired Mortgage Loans or Rejected Mortgage Loans, as applicable, pursuant
to this Section 20.6(i) both to the Seller and to any
attorney, trustee or other third party acting on behalf of the Buyer in the
prosecution of foreclosure proceedings shall be solely for the purposes of
prosecuting foreclosure proceedings relating to such Purchased Loans, and (C) the
Seller shall request such release in compliance with all of the terms and
conditions of such release set forth herein.


 


(ii)           Unless an Event of Default
has occurred and is continuing, the Buyer shall release (i) Purchased
Loans (other than Reacquired Mortgage Loans or Rejected Mortgage Loans) to
Approved Investors for purchase and (ii) Reacquired Mortgage Loans or
Rejected Mortgage Loans, as applicable, to purchasers thereof.  Any transmittal of documentation for (i) Purchased
Loans (other than Reacquired Mortgage Loans or Rejected Mortgage Loans) in the
possession of the Buyer in connection with the sale thereof to an Approved
Investor (other than an Agency) or (ii) Reacquired Mortgage Loans or
Rejected Mortgage Loans, as applicable, in the possession of the Buyer in
connection with the sale thereof to a purchaser, in each case, shall be under
cover of a bailment letter substantially in the form of Schedule BL,
with all blanks completed in conformity therewith.  Any transmittal of documentation for
Purchased Loans in connection with the sale thereof to any Agency for inclusion
as whole Purchased Loans in their respective loan portfolios shall be under
cover of a bailment letter substantially in the form of Schedule BL,
with all blanks completed in conformity therewith, or such other forms, duly
executed, if necessary, by the Seller, in lieu of the foregoing that any Agency
may require pursuant to their respective Agency Guides.  In each case of transmittal of documentation
relating to such Purchased Loans pursuant to this subsection, the recipient
thereof shall be required to return such documentation to the Buyer if such
Purchased Loans are not purchased and the proceeds therefrom paid in accordance
with Section 20.6(iii) within forty-five (45) days after such
recipient’s receipt of such documentation or, if earlier, the expiration of the
applicable Investor Commitment; provided, however, the Buyer may
allow, in its sole and absolute discretion, a shipped Purchased Loan to remain
with an Approved Investor subsequent to such 45-day period if there is
legitimate reason for the delay in return or in purchase and payment.  In such case, the Buyer shall promptly send a
“bailee violation letter” to such Approved Investor and, if the documentation
is then not promptly returned to the Buyer or the purchase and payment of such
Purchased Loan is then not promptly completed, the Seller shall immediately pay
the Transactions related thereto.  With
respect to transmittal of documentation relating to Purchased Loans (other than
Reacquired Mortgage Loans or Rejected Mortgage Loans), before the Buyer
delivers documentation pursuant to this Section 20.6(ii), the
Seller shall have delivered such forms, duly executed by the Seller, required
under the applicable Agency Guides or Investor Commitments to effect delivery
to an Agency or any other Approved Investor of such Purchased Loan and payment
therefor in accordance with the instructions of the Buyer.


 


(iii)          Unless an Event of Default
or Potential Default has occurred and is continuing, the Seller, in connection
with the sale of any Purchased Loans, may obtain the release of the ownership
interest in the applicable Purchased Loan by paying to the Buyer, for
application to the Obligations in accordance with this Agreement, the
Repurchase Price for such Type of Purchased Loan (determined as of the applicable
Repurchase Date therefor) to be released. 
All amounts payable on account of the sale of Purchased Loans (other
than Reacquired Mortgage Loans or Rejected Mortgage Loans) by the Seller are to
be paid directly by the applicable Approved Investor to the Investor Funding
Account for the benefit of the Buyer and the Seller shall so instruct each such
applicable Approved Investor.  All
amounts payable on account of the sale of Reacquired Mortgage Loans or Rejected
Mortgage Loans by the Seller and all foreclosure proceeds are to be paid
directly by the applicable purchaser or bailee to the Investor Funding Account
for the benefit of the Buyer and the Seller shall so instruct such purchaser or
bailee.  Upon receipt of the full amount
of the Repurchase Price for each Purchased Loan from a purchaser thereof in
accordance with this Section, the Buyer’s interest in the affected Purchased
Loan shall be automatically released.


 


(iv)          Unless an Event of Default
has occurred and is continuing and, the Buyer may take such steps in addition
to those set forth above as it may be reasonably directed from time to time by
the Seller in writing that are not inconsistent with the provisions of this
Agreement and that the Seller deems necessary to enable the 


 


53

















 


Seller
to perform and comply with Investor Commitments, trades and settlements and
with other agreements for the sale or other disposition in whole or in part of
Purchased Loans.


 


21           Payment of Expenses; Indemnity


 


21.1         Expenses;
Indemnification.


 


(i)            The Seller
shall:


 


(a)           (1) pay all reasonable
out-of-pocket costs and expenses of the Buyer in the administration (both
before and after the execution hereof and including advice of counsel as to the
rights and duties of the Buyer with respect thereto) of, and in connection with
the preparation, execution and delivery of, this Agreement and the other
Facility Papers, and (2) pay all reasonable out-of-pocket costs and
expenses of the Buyer in the preservation of rights under, enforcement of, and,
after the occurrence of a Potential Default or an Event of Default, the
refinancing, the renegotiating or the restructuring of, this Agreement and the
other Facility Papers and the documents and instruments referred to herein and
therein including in connection with any bankruptcy, insolvency, liquidation,
reorganization or similar proceeding and any amendment, waiver or consent
relating hereto and thereto (including the reasonable fees and disbursements of
counsel (including allocated costs of internal counsel) for the Buyer (and the
Buyer is authorized by the Seller to debit amounts on deposit in the Master
Advance Account or any of the Seller’s other accounts maintained with the Buyer
for payment of all such costs and expenses, including the reasonable fees and
disbursements of counsel);


 


(b)          pay and hold harmless the
Buyer from and against any and all present and future stamp, documentary, and
other similar taxes with respect to this Agreement and any other Facility
Papers, any collateral described therein, or any payments due thereunder, and
save the Buyer harmless from and against any and all liabilities with respect
to or resulting from any delay in paying or omission to pay such taxes; and


 


(c)           indemnify the Buyer, and its
officers, directors, employees, representatives and the Buyer from, and hold
each of them harmless against, any and all out-of-pocket costs, losses,
liabilities, claims, damages or expenses actually incurred by any of them
(whether or not any of them is designated a party thereto) arising out of or by
reason of any investigation, litigation or other proceeding related to any
actual or proposed use by the Seller of the proceeds or any of the Transactions
or the Seller’s entering into and performing of the Facility Papers, including
the reasonable fees and disbursements of counsel (including allocated costs of
internal counsel) incurred in connection with any such investigation,
litigation or other proceeding and the claims of any third parties, including
any assignees; provided, that the Buyer shall not have the right to be
indemnified hereunder for its own gross negligence or willful misconduct.


 


(ii)           All amounts due under this Section 21.1
shall be payable promptly after written demand therefor.  A certificate of the Buyer setting forth in
reasonable detail any amount or amounts which the Buyer is entitled to receive
pursuant to this Section 21 shall be delivered to the Seller and
shall be conclusive and binding absent manifest error.  If and to the extent that the obligations of
the Seller under this Section 21.1 are unenforceable for any
reason, the Seller hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations that is permissible under
applicable Law.


 


22           Single Agreement


 


The Buyer and the Seller
acknowledge that, and have entered into this Agreement and will enter into each
Transaction hereunder in consideration of and in reliance upon the fact that,
all Transactions hereunder constitute a single business and contractual
relationship and have been made in consideration of each other.


 


23           Participation; Assignment


 


23.1         Participation; Assignment.


 


54

















 


(i)            Participations.  The Buyer may, without notice to or consent
from the Seller or any other Person, sell participations in all or any part of
any Transactions entered into by the Buyer or the Buyer’s Commitment or any
other interest of the Buyer in the Facility Papers to any Person (each, a “Participant”), in which event the Participant shall not have
any direct rights against the Seller or the Purchased Loans under the Facility
Papers or any other document delivered in connection herewith (Participant’s
rights against the Buyer in respect of such participation to be those set forth
in the agreement executed by the Buyer in favor of Participant relating
thereto).


 


(ii)           Assignments.  The Buyer may at any time and from time to
time sell, assign, transfer, pledge or convey all or any portion of its rights
and/or delegate all or any portion of its obligations under this Agreement and
the other Facility Papers (including, without limitation, all Transactions
entered into by the Buyer to fund specific Purchased Loans or the Buyer’s
Commitment or any other interest of the Buyer in the Facility Papers) to any
Person, including, without limitation, Affiliates of the Buyer (each, an “Assignee”), without notice to or consent from the Seller or
any other Person, in all cases subject to the Assignee’s obligation to convey
the Purchased Loans (and not substitutes thereof, unless such Purchased Loans
were substituted pursuant to Section 12) on the applicable
Repurchase Date.  The Buyer and the
Seller hereby agree that upon any such sale, assignment, transfer, pledge,
conveyance or delegation by the Buyer, the Assignee shall have, to the extent
of such sale, assignment, transfer, pledge or conveyance, the same rights and
benefits as it would have if it were the Buyer under the Facility Papers; provided,
that the Seller shall not have any duty to recognize the Assignee absent
receipt by it of notice of such sale, assignment, transfer, pledge, conveyance
or delegation.


 


(iii)          The Buyer may at any time
pledge all or any portion of its rights under the Facility Papers to a Federal
Reserve Bank.  No such pledge shall
release the Buyer from its obligations hereunder.


 


(iv)          In connection with any such
sale, assignment, transfer, pledge or conveyance permitted hereunder, the
Seller authorizes the Buyer to disclose to any Assignee or Participant and to
any prospective Assignee or Participant, any and all information in the Buyer’s
possession concerning the Seller, the Transactions or the Purchased Loans.


 


24           Notices and Other Communications


 


All notices, demands,
consents, requests and other communications required or permitted to be given
or made hereunder (collectively, “Notices”),
except as otherwise specifically provided in this Agreement, shall be in
writing and shall be either (a) delivered in person, (b) mailed, by
certified, registered or express mail, postage prepaid, addressed to the
respective parties hereto at their respective addresses specified below, (c) sent
in a prepaid overnight delivery envelope via a nationally-recognized courier
service (such as Federal Express, United Parcel Service or DHL Worldwide
Express) that provides weekday next-Banking Day delivery service to the
addressee’s location, or (d) faxed to their respective fax numbers (with a
paper copy mailed the same day as aforesaid) as hereinafter set forth; provided
that any party may change its address for notice by designating such party’s
new address in a Notice to the sending party given at least five (5) Banking
Days before it shall become effective. 
All Notices shall be conclusively deemed to have been properly given or
served when received in person, regardless of how sent.  Regardless of when received, all Notices
shall be conclusively deemed to have been properly given or served if addressed
in accordance with this Section 24 and (1) if mailed, on the
third (3rd) Banking Day after being deposited in the mails, or (2) if sent
by nationally-recognized courier service, on the next Banking Day or (3) if
faxed before the close of business at the recipient’s location on a Banking
Day, when faxed — or if faxed after the close of business at the recipient’s
location or on a day that is not a Banking Day, on the next Banking Day
thereafter — to the fax number set forth below (provided that a paper copy is
mailed on the same day as aforesaid), provided that if any such faxed
notice or other communication is not sent during the normal business hours of
the recipient, such notice or communication shall be deemed to have been sent
at the opening of business on the next business day for the recipient:


 


If
to the Seller:


 


Sirva
Mortgage, Inc.


6070
Parkland Blvd.


Mayfield
Heights, OH  44124


 


55

















 


Attention:  Paul Klemme, President


	
  Telephone:

  	
  (       )

  
	
  Fax:

  	
  (       )

  



 


If to the Buyer:


 


Colonial Bank, N.A.


201
East Pine Street, Suite 730


Orlando, FL 32801


	
  Attention:

  	
  Cathie Kissick, Senior
  Vice President

  	
   

  
	
   

  	
  Mortgage Warehouse Lending
  Division

  	
   

  
	
  Telephone:

  	
  (407) 835-6700

  	
   

  
	
  Fax:

  	
  (407)
  835-6690

  	
   

  



 


with a copy to:


 


Akerman Senterfitt


One
S.E. Third Avenue, 25th Floor


Miami, FL 33131


	
  Attention:

  	
  Milton A.
  Vescovacci, Esq.

  
	
  Telephone:

  	
  (305) 982-5671

  
	
  Fax:

  	
  (305)
  374-5095

  



 


25           Further Assurances


 


At any time and from time to
time, at the sole expense of the Seller, the Seller shall promptly provide such
further reasonable assurances, documents and agreements and undertake such
actions as the Buyer may reasonably request in order to effect the purposes of
this Agreement, including the assignment, conveyance and transfer of all right,
title and interest of each Purchased Loan from the Seller to the Buyer, or to
otherwise obtain or preserve the benefits or rights granted under this
Agreement.


 


26           Buyer as Attorney-in-Fact


 


The Buyer is hereby
appointed the attorney-in-fact of the Seller for the purpose of carrying out
the provisions of this Agreement and taking any action and executing any
instruments or documents that the Buyer may deem reasonably necessary or
advisable to accomplish the purposes hereof, which appointment as attorney-in-fact
is irrevocable and coupled with an interest, although the Buyer agrees not to
exercise its rights under this power of attorney unless, in its opinion or the
opinion of its legal counsel, a Potential Default or an Event of Default has
occurred.  Without limiting the
generality of the foregoing, but subject to Section 20.3, the Buyer
shall have the right and power during the occurrence and continuation of any
Event of Default to receive, endorse, collect and control all checks or
instruments made payable to the order of the Seller and all other forms of
payment to the Seller that represent any payment on account of the principal of
or interest on or proceeds from any of the Purchased Loans and to give full
discharge for the same. Notwithstanding anything contained herein, in no event
shall the Buyer be required to make any presentment, demand or protest, or give
any notice, and the Buyer need not take any action to preserve any rights
against any prior party or any other Person in connection with the Obligations
or with respect to the Purchased Loans.


 


27           Payments by Wire Transfers


 


27.1        Wires to the Seller.  Any amounts to be transferred by the Buyer to
the Seller hereunder shall be sent by journal entry (or wire transfer) in
immediately available funds to the account of the Seller as follows:


 


Bank: Colonial Bank, N.A.


ABA No.: 062001319


Account:  Sirva Mortgage, Inc.


Account
No.: 8037245274 – Investor Funding Account


 


56

















 


27.2        Wires to the Buyer.  Any amounts to be transferred by the Seller
to the Buyer hereunder shall be sent by wire transfer in immediately available
funds to the account of the Buyer as follows:


 


Colonial Bank, N.A.


ABA No. 062001319


Attention: Mortgage Warehouse Lending Division


Phone:  (407) 835-6700


Account No.  8037245274


Sirva Mortgage, Inc. – Investor Funding Account


 


28           Entire Agreement; Severability;
Inconsistencies


 


This Agreement supersedes
any existing agreements between the parties containing general terms and
conditions for repurchase transactions.  This Agreement may not be amended, restated, modified or supplemented
unless such amendment, restatement, modification or supplement is set forth in
a writing signed by all of the parties hereto; provided, however,
that the Seller expressly acknowledges and agrees that the definitions of
Conforming Mortgage Loan, Non-Conforming Mortgage Loan, PSTP Mortgage Loan,
Reacquired Mortgage Loan, Rejected Mortgage Loan and/or Wet Mortgage Loan, as
set forth in Annexes A through F, respectively, may be amended, restated,
modified or supplemented by the Buyer, in its sole and absolute discretion,
without any further act or consent on the part of the Seller or any other
Person, upon delivery of an Eligibility Change Notice to the Seller.  Each provision and agreement herein shall be
treated as separate and independent from any other provision or agreement
herein and shall be enforceable notwithstanding the unenforceability of any
such other provision or agreement.  If
there is any conflict or inconsistency between any of the terms or provisions
of this Agreement and any of the other Facility Papers, this Agreement shall
govern and control.  If there is any
conflict between any provision of this Agreement and any later supplement,
amendment, restatement or replacement of it, then the latter shall govern and
control.


 


29           Benefit of the Agreement; Termination


 


29.1         Benefit of the Agreement.  This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, that the Seller may not assign
or transfer any of its interest or delegate any of its obligations under the
Facility Papers without the prior written consent of the Buyer and any such
assignment or transfer without the prior written consent of the Buyer shall be
null and void.


 


29.2         Remedies Exception.  Section 29.1 shall not preclude a
party from assigning, charging or otherwise dealing with all or any part of its
interest in any sum payable to it under Section 19.


 


29.3         Agreement Commencement;
Termination.  This
Agreement shall commence and become effective as of the Effective Date; provided,
that each of the conditions precedent in Section 15.1(i) have
been satisfied.  Subject to payment of
all Obligations, this Agreement and all Open Transactions hereunder shall
terminate, automatically and without any requirement for notice, on the
Termination Date; provided, that this Agreement and any Open
Transactions may be extended in writing by the Buyer, in its sole and absolute
discretion.


 


30           Counterparts


 


This Agreement may be
executed in any number of counterparts, each of which counterparts shall be
deemed to be an original, and such counterparts shall constitute but one and
the same instrument.


 


31           Governing Law, Jurisdiction and Venue


 


31.1         Governing Law, Jurisdiction and
Venue .  This Agreement and the other
Facility Papers shall be governed by and construed in accordance with the laws
of the State of Florida (without reference to its conflicts of laws principles)
and the United States of America from time to time in effect.  The Seller irrevocably submits to the
nonexclusive jurisdiction of the United States District Court for the Middle
District of Florida and the state courts located in Orange County, Florida, for
purposes of all legal proceedings arising out of or relating to the Facility 


 


57

















 


Papers
and all related transactions.  To the
fullest extent permitted by applicable Law, the Seller irrevocably waives any
objection that it may now or hereafter have to the laying of venue for any such
proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum and agrees
that service of process may be made upon it in any such proceeding by
registered or certified mail.


 


31.2         Arbitration.   IN THE EVENT ANY DISPUTE
SHOULD ARISE UNDER THIS AGREEMENT, THE REPURCHASE FACILITY, ANY OF THE FACILITY
PAPERS, OR ANY OTHER ASPECT OF ANY TRANSACTION BETWEEN THE BUYER AND THE
SELLER, WHETHER OR NOT SPECIFICALLY RELATING TO ANY OF THE FACILITY PAPERS,
SAID DISPUTE OR ANY PORTION THEREOF WILL, AT THE BUYER’S  SOLE ELECTION, AS APPLICABLE, BE RESOLVED
THROUGH BINDING ARBITRATION IN ORANGE COUNTY, FLORIDA, AND IN ACCORDANCE WITH
THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION.


 


32           Waiver of Jury Trial


 


EACH OF THE SELLER AND THE
BUYER HEREBY (I) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY OF ANY
ISSUE TRIABLE OF RIGHT BY A JURY, AND (II) WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST.  THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
SEPARATELY GIVEN, KNOWINGLY AND VOLUNTARILY, BY EACH OF THE SELLER AND THE
BUYER, AND THIS WAIVER IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND
EACH ISSUE AS TO WHICH THE RIGHT OF A JURY TRIAL WOULD OTHERWISE ACCRUE.  THE BUYER IS HEREBY AUTHORIZED AND REQUESTED
TO SUBMIT THIS AGREEMENT TO ANY COURT HAVING JURISDICTION OVER THE SUBJECT
MATTER AND THE PARTIES HERETO, SO AS TO SERVE AS CONCLUSIVE EVIDENCE OF THE
FOREGOING WAIVER OF THE RIGHT TO JURY TRIAL. 
FURTHER, THE SELLER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF
THE BUYER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, TO ANY STOCKHOLDER,
DIRECTOR, OFFICER OR REPRESENTATIVE OF THE SELLER THAT THE BUYER WILL NOT SEEK
TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.


 


33           Relationship of the Parties


 


This Agreement provides for
the sale by the Seller and the purchase by the Buyer of Eligible Loans and the
obligation of the Seller to repurchase them upon termination of each
Transaction.  The relationship between
the Seller and the Buyer is limited to that of seller and purchaser on the one
hand and purchaser and reseller on the other. 
The provisions in this Agreement and the other Facility Papers for
compliance with financial covenants and delivery of financial statements are
intended solely for the benefit of the Buyer including the Buyer’s interest in
assuring repurchase of Purchased Loans at the termination of each Transaction,
and nothing contained in this Agreement or any of the other Facility Papers
shall be construed as permitting or obligating the Buyer to act as a financial
or business advisor or consultant to the Seller, as permitting or obligating
the Buyer to control the Seller or to conduct the Seller’s operations, as
creating any fiduciary obligation on the part of the Buyer to the Seller, or as
creating any joint venture, agency or other relationship between the parties
other than as explicitly and specifically stated in this Agreement.  The Seller acknowledges that it has had the
opportunity to obtain the advice of experienced counsel of its own choosing in
connection with the negotiation and execution of this Agreement and the other
Facility Papers and to obtain the advice of such counsel with respect to all
matters contained in the Facility Papers including the provision for waiver of
trial by jury.  The Seller further
acknowledges that it is experienced with respect to financial and credit matters
and has made its own independent decisions to apply to the Buyer to enter into
this Agreement, and to execute and deliver this Agreement and the other
Facility Papers.


 


34           No Waivers, Etc.


 


No express or implied waiver
of any Event of Default by the Buyer shall constitute a waiver of any other
Event of Default and no exercise of any remedy hereunder by any party shall
constitute a waiver of its right to exercise any other remedy hereunder.  Except as otherwise expressly provided
herein, no modification or waiver of any provision of this Agreement and no
consent by any party to a departure herefrom shall be effective unless and
until such shall be in writing and duly executed by the Seller and the Buyer.


 


58

















 


35           Use of Employee Plan Assets


 


35.1         Prohibited Transactions.  If assets of an employee benefit plan subject
to any provision of ERISA are intended to be used by any party hereto (the “Plan Party”) in a Transaction, the Plan Party shall so
notify the other parties prior to the Transaction.  The Plan Party shall represent in writing to
the other parties that the Transaction does not constitute a prohibited
transaction under ERISA or is otherwise exempt therefrom, and the other parties
may proceed in reliance thereon but shall not be required so to proceed.


 


35.2         Audited Financial Statements
Required.  With
respect to the last sentence of Section 35.1, any such Transaction
shall proceed only if the Seller furnishes or has furnished to the Buyer its
most recent available audited statement of its financial condition and its most
recent subsequent unaudited statement of its financial condition.


 


35.3         Representations.  By entering into a Transaction pursuant to
this Section 35, the Seller shall be deemed (i) to represent
to the Buyer that since the date of the Seller’s latest such financial
statements, there has been no material adverse change in the Seller’s financial
condition which the Seller has not disclosed to the Buyer, and (ii) to
agree to provide the Buyer with future audited and unaudited statements of its
financial condition as they are issued, so long as it is a Seller in any Open
Transaction involving a Plan Party.


 


36           Intent


 


36.1         Transactions are Repurchase
Agreements, Master Netting Agreements and Securities Contracts. The parties
intend and acknowledge that each Transaction is a “repurchase agreement” and a “master
netting agreement” as each such term is defined in Section 101 of the
Bankruptcy Code (except insofar as the type of Eligible Loans subject to such
Transaction or the term of such Transaction would render such definition
inapplicable), and a “securities contract” as that term is defined in Section 741
of the Bankruptcy Code (except insofar as the type of assets subject to such
Transaction would render such definition inapplicable).


 


36.2         Contractual Rights, Etc.  The Buyer’s right to liquidate Eligible Loans
delivered to it in connection with Transactions hereunder or to exercise any
other remedies pursuant to Section 19, is a contractual right to
liquidate, terminate or accelerate such Transaction as described in Sections
555, 559 and 561 of the Bankruptcy Code.


 


36.3         FDIA.  If a party hereto is an “insured depository
institution,” as such term is defined in the Federal Deposit Insurance Act, as
amended (“FDIA”), then each Transaction hereunder
is a “qualified financial contract,” as that term is defined in FDIA and any
rules, orders or policy statements thereunder (except insofar as the type of
assets subject to such Transaction would render such definition inapplicable).


 


36.4         Agreement is a Netting Contract.  This Agreement constitutes a “netting
contract” as defined in and subject to Title IV of the Federal Deposit
Insurance Corporation Improvement Act of 1991 (“FDICIA”)
and each payment entitlement and payment obligation under any Transaction
hereunder shall constitute a “covered contractual payment entitlement” or “covered
contractual payment obligation”, respectively, as defined in and subject to
FDICIA (except insofar as any or all of the parties is not a “financial
institution” as that term is defined in FDICIA).


 


36.5         Security  Interest  in  Certain  Assets  Which  are  Deemed  Part  of  a  Purchased  Loan.  To  the  extent  that  a  competent  court  of  jurisdiction  determines  that  certain  assets  which  are  deemed  part  of  a  Purchased  Loan  do  not  fall  within  the  definition  of  a  “repurchase  agreement”  under  Section  101(47)(A)(i)  of  the  Bankruptcy  Code  (the  “Additional  Repurchase  Assets”),  then  the  parties  hereto  agree  that  to  secure  payment  of  its  Obligations  hereunder  the  Seller  shall  have  pledged  to  the  Buyer,  and  granted  to  the  Buyer,  a  security  interest  in  and  a  Lien  on,  Seller’s  right,  title  and  interest  in  and  to  all  of  such  Additional  Repurchase  Assets  and  in  any  products  and  proceeds  related  thereto  (collectively,  the  “Additional  Repurchase  Collateral”),  whether  now  owned  or  hereafter  acquired,  subject  to  no  other  Liens  except  for  Permitted  Encumbrances,  and,  only  with  respect  to  such  Additional  Repurchase  Collateral,  this  Agreement  shall  constitute  a  security  agreement  related  to  a  repurchase  agreement  as  defined  under  Section  101(47(A)(v)  of  the  Bankruptcy  Code  and  this  Agreement  shall  create  a  continuing  security  interest  in  the  


 


59

















 


Additional Repurchase
Collateral which shall remain in full force and effect until full and final
payment of all Obligations.  The
Seller agrees to do such things as applicable Law requires to maintain the
security interest of the Buyer so granted in all of the Additional Repurchase
Collateral that are the subject matter of such court determination as a
perfected first priority Lien at all times and to preserve and protect the Additional Repurchase
Collateral.  The Seller hereby authorizes
the Buyer to file any financing or continuation statements under the applicable
UCC to perfect or continue such security interest in any and all applicable
filing offices.  The Seller shall pay all
customary fees and expenses associated with perfecting such security interest
including the costs of filing financing and continuation statements under the
UCC as and when required by the Buyer, in its reasonable discretion.  In addition to all other rights and remedies
granted to the Buyer in this Agreement or in any other Facilities Paper or by
applicable law, the Buyer shall have all of the rights and remedies of a
secured party under the UCC (whether or not the UCC applies to the affected
Additional Repurchase Collateral).  The
Seller shall be liable for all reasonable expenses of retaking, holding,
preparing for sale, or the like, and all reasonable attorneys’ fees, legal
expenses, and other costs and expenses incurred by the Buyer in connection with
the collection of the Obligations and the enforcement of the Buyer’s rights
under this Agreement.  The Seller shall
remain liable for any deficiency if the proceeds of any sale or other
disposition of the Additional Repurchase Collateral applied to the Obligations
are insufficient to pay the Obligations in full.  The Buyer may apply the Additional Repurchase
Collateral against the Obligations as provided in this Agreement and the other Facility
Papers.  The Seller waives all rights of
marshaling, valuation, and appraisal in respect of the Collateral.  Any cash held by the Buyer as Additional Repurchase
Collateral and all cash proceeds received by the Buyer in respect of any sale
of, collection from, or other realization upon all or any part of the
Additional Repurchase Collateral may, in the discretion of the Buyer, be held
by the Buyer as collateral for, and then or at any time thereafter applied in
whole or in part against, the Obligations in the order permitted by this
Agreement and the other Facility Papers. 
Any surplus of such cash or cash proceeds and interest accrued thereon,
if any, held by the Buyer and remaining after payment in full of all the
Obligations shall be promptly paid over to the Seller or to whomsoever may be
lawfully entitled to receive such surplus; provided that the Buyer shall have
no obligation to invest or otherwise pay interest on any amounts held by it in
connection with or pursuant to this Agreement. The provisions of this Section shall
not amend or modify or conflict or be inconsistent with the intent of the
parties as otherwise expressed in the Agreement, including without limitation Articles
1, 11 and 36.


 


37           Disclosure Relating to Certain Federal
Protections


 


The parties hereto
acknowledge that they have been advised that:


 


37.1         Parties not Protected by SIPA or
Insured by FDIC or NCUSIF.   In
the case of Transactions in which one of the parties is a broker or dealer
registered with the Securities and Exchange Commission (“SEC”)
under Section 15 of the Securities Exchange Act of 1934, as amended (“1934 Act”), the Securities Investor Protection Corporation
has taken the position that the provisions of SIPA do not protect the other
party with respect to any Transaction hereunder.


 


37.2         SIPA Does Not Protect Government
Securities Broker or Dealer Counterparty.  In the case of Transactions in which one of
the parties is a government securities broker or a government securities dealer
registered with the SEC under Section 15C of the 1934 Act, SIPA will not
provide protection to the other party with respect to any Transaction
hereunder.


 


37.3         Transaction Funds Are Not Insured
Deposits.  In the case
of Transactions in which one of the parties is a financial institution, funds
held by such financial institution pursuant to a Transaction hereunder are not
a deposit and therefore are not insured by the Federal Deposit Insurance Corporation
(through either the Bank Insurance Fund or the Savings Association Insurance
Fund) or the National Credit Union Share Insurance Fund, as applicable.


 


38           USA Patriot Act Notification


 


The Buyer hereby notifies
the Seller that, pursuant to the requirements of the USA Patriot Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)), the Buyer is
required to obtain, verify and record information that identifies the Seller,
including the Seller’s name and address and other information, that will allow
them to identify the Seller in accordance with said Act.


 


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39           No Consequential Damages


 


WITH REGARD TO ANY ACTION,
COUNTERCLAIM OR PROCEEDING UNDER THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL THE
BUYER BE LIABLE TO THE SELLER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES, WHETHER OR NOT SUCH DAMAGES ARE CAUSED BY THE FAULT OR
NEGLIGENCE OF THE BUYER AND WHETHER OR NOT THE BUYER IS NOTIFIED OF THE
POSSIBILITY OF SUCH DAMAGES.


 


40           Survival


 


All covenants, agreements,
representations and warranties made by the Seller herein and in any certificate
delivered pursuant hereto shall survive the entering into the Transactions
regardless of any investigation made by the Buyer and of the Buyer’s access to
any information and shall continue in full force and effect so long as any
Obligation is outstanding and unpaid.  In
addition to the provisions of Article 8, the Seller’s obligations
under Section 21.1 and any other indemnification obligations of the
Seller or other obligations that so provide shall survive the termination of
this Agreement for any reason whatsoever and payment of the Obligations.


 


41           Security Interest in the
Seller’s Other Assets


 


Notwithstanding anything to
the contrary herein, to secure payment of its Obligations hereunder the Seller
hereby pledges to the Buyer, and grants to the Buyer, a security interest in
and a Lien on, Seller’s right, title and interest in and to and under the Other
Assets and any products and proceeds related thereto (collectively, the “Other Assets Collateral”), whether now owned or hereafter acquired, subject to
no other Liens except for Permitted Encumbrances, and, only with respect to
such Other Assets Collateral, this Agreement shall constitute a security
agreement related to
a repurchase agreement as defined under Section 101(47(A)(v) of the
Bankruptcy Code and this Agreement shall create a continuing security interest
in the Other Assets Collateral which shall remain in full force and effect
until full and final payment of all Obligations.  The Seller agrees to do such things as
applicable Law requires to maintain the security interest of the Buyer so
granted in the Other Assets Collateral as a perfected first priority Lien at
all times and to preserve
and protect the Other Assets Collateral.  The Seller hereby authorizes the Buyer to
file any financing or continuation statements under the applicable UCC to
perfect or continue such security interest in any and all applicable filing
offices.  The Seller shall pay all
customary fees and expenses associated with perfecting such security interest
including the costs of filing financing and continuation statements under the
UCC as and when required by the Buyer, in its reasonable discretion.  In addition to all other rights and remedies
granted to the Buyer in this Agreement or in any other Facilities Paper or by
applicable law, the Buyer shall have all of the rights and remedies of a
secured party under the UCC (whether or not the UCC applies to the affected
Other Assets Collateral).  The Seller
shall be liable for all reasonable expenses of retaking, holding, preparing for
sale, or the like, and all reasonable attorneys’ fees, legal expenses, and
other costs and expenses incurred by the Buyer in connection with the
collection of the Obligations and the enforcement of the Buyer’s rights under
this Agreement.  The Seller shall remain
liable for any deficiency if the proceeds of any sale or other disposition of
the Other Assets Collateral applied to the Obligations are insufficient to pay
the Obligations in full.  The Buyer may
apply the Other Assets Collateral against the Obligations as provided in this
Agreement and the other Facility Papers. 
The Seller waives all rights of marshaling, valuation, and appraisal in
respect of the Other Assets Collateral. 
Any cash held by the Buyer as Other Assets Collateral and all cash
proceeds received by the Buyer in respect of any sale of, collection from, or
other realization upon all or any part of the Collateral may, in the discretion
of the Buyer, be held by the Buyer as collateral for, and then or at any time
thereafter applied in whole or in part against, the Obligations in the order
permitted by this Agreement and the other Facility Papers.  Any surplus of such cash or cash proceeds and
interest accrued thereon, if any, held by the Buyer and remaining after payment
in full of all the Obligations shall be promptly paid over to the Seller or to
whomsoever may be lawfully entitled to receive such surplus; provided that the
Buyer shall have no obligation to invest or otherwise pay interest on any
amounts held by it in connection with or pursuant to this Agreement. The
provisions of this Section shall not amend or modify or conflict or be
inconsistent with the intent of the parties as otherwise expressed in the
Agreement, including without limitation Articles 1, 11 and 36.


 


[The remainder of this page is intentionally blank; signature pages follow]


 


61

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of the Effective
Date.


 


 


	
   

  	
  SIRVA MORTGAGE, INC.,

  
	
   

  	
  as the Seller

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Paul E. Klemme

  
	
   

  	
        Name:
  Paul E. Klemme

  
	
   

  	
        Title:
  President

  



 


STATE OF Ohio


 


COUNTY OF Lake


 


On this 21st
day of December, 2007, personally appeared Paul E. Klemme, as President of SIRVA MORTGAGE, INC., an Ohio corporation (“Seller”), and before me executed the attached
Master Repurchase Agreement, dated as of December 21, 2007, by and between
the Seller and COLONIAL
BANK, N.A., a national banking association, as Buyer, on behalf of
the association.


 


IN
WITNESS WHEREOF,
I have hereunto set my hand and official seal in the County and State last
aforesaid.


 


	
   

  	
  /s/ Karen A. Hamilton

  
	
   

  	
  Signature of Notary
  Public-State of [State]

  
	
   

  	
   

  
	
   

  	
  Karen A. Hamilton

  
	
   

  	
  Print Name: Notary
  Public, State of Ohio

  
	
   

  	
  Personally Known           or
  Produced Identification               

  
	
   

  	
  Type of Identification                                                      

  



 


(NOTARIAL SEAL)


 


62

















 


	
   

  	
  COLONIAL BANK, N.A.,

  
	
   

  	
  as the Buyer

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Amy J. Nunneley

  
	
   

  	
      Name:
   Amy J. Nunneley

  
	
   

  	
      Title:    Senior
  Vice President

  



 


STATE OF


 


COUNTY OF


 


On this       
day of                 ,
200    , personally appeared                               ,
as                               
of COLONIAL BANK, N.A., a national
banking association (“Buyer”), and before me executed the attached Master Repurchase
Agreement, dated as of                             ,
200    , by and between SIRVA
MORTGAGE, INC., an Ohio corporation, and Buyer, on behalf of the association.


 


IN
WITNESS WHEREOF,
I have hereunto set my hand and official seal in the County and State last
aforesaid.


 


	
   

  	
   

  	
   

  
	
   

  	
  Signature of Notary
  Public-State of [State]

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name: Notary
  Public, State of [State]

  
	
   

  	
  Personally Known
          or Produced Identification      

  
	
   

  	
  Type of Identification

  	
   

  	
   

  
						



 


(NOTARIAL SEAL)


 


63