Exhibit
10.19


 


LOAN  PARTICIPATION SALE
AGREEMENT

(COLB WET &
DRY MORTGAGE LOANS Program)


 


THIS LOAN  PARTICIPATION  SALE  AGREEMENT (COLB Wet &
Dry Mortgage Loans Program) (the “Agreement”)
is made and entered into as of the 21 day of December, 2007, by and between SIRVA MORTGAGE, INC., an Ohio corporation, whose address is 6070
Parkland Boulevard, Mayfield Heights, Ohio 44124 (the “Seller”)
and COLONIAL BANK, N.A., a national banking
association, whose address is One Commerce Street, Montgomery, Alabama  36104 (the “Buyer”).


 


BACKGROUND


 


The Seller originates,
acquires, markets, sells and services one-to-four family, residential real
estate loans secured by a lien on the real property (and improvements)
encumbered pursuant to such loans (collectively, the “Mortgage
Loans”). The Seller wishes to sell, and the Buyer wishes to
purchase, undivided participation ownership interests (each, a “Participation Interest,” and
collectively, the “Participation Interests”)
in the Mortgage Loans (and all collections received or receivable from the
Mortgage Loans and all escrow and reserve accounts and funds held on deposit
therein) identified in the Participation Certificate(s) (as defined below)
issued pursuant to this Agreement.  The
Mortgage Loans in which the Buyer is purchasing a Participation Interest
hereunder shall be closed and funded contemporaneously with the payment by the
Buyer of the purchase price for the Participation Interest in such Mortgage
Loan or shall be closed and funded by the Seller prior to the Buyer’s payment
of the purchase price for the Participation Interest in such Mortgage
Loan.  This Agreement is intended by the
parties to govern the sale, assignment and transfer by the Seller to the Buyer
of such Participation Interest(s) in the Mortgage Loans (and all
collections received or receivable from the Mortgage Loans and all escrow and
reserve accounts and funds held on deposit therein) identified in such
Participation Certificate(s), including the percentage of the principal amount
of such Mortgage Loans representing the undivided interest sold, the purchase
price, the amounts payable to the Buyer, and the Seller’s responsibilities for
servicing and other incidents, including those of agency, with respect to the
resulting Participation Interests.  The purchase
price to be paid by the Buyer for the Participation Interest(s) sold under
this Agreement will be set forth in the Participation Certificate(s) issued
by the Seller to the Buyer from time to time pursuant to this Agreement.  The Seller will be retained as servicer of the
Participated Mortgage Loans (as defined below) because (i) the Seller (or
one or more of its subsidiaries, affiliates or customers) originated the
Participated Mortgage Loans in the ordinary course of its business, (ii) the
Seller is familiar with servicing the Participated Mortgage Loans and the
Servicing Standards, and (iii) the Seller has the administrative and other
staff and agents necessary to most effectively service the Participated
Mortgage Loans under the Servicing Standards. Accordingly, other entities could
not comparably service the Participated Mortgage Loans as efficiently as the
Seller and servicing the Participated Mortgage Loans by any entity other than
the Seller could result in a diminution in the value of the Participation
Interest.


 


AGREEMENT


 


1.             Sale and
Identification of Loan Participation Interest; Funding Mortgage Loans; Closing
Agents.


 


A.            Subject to the terms and conditions
hereunder, the Seller hereby agrees to irrevocably sell to the Buyer, and the
Buyer hereby agrees to purchase from the Seller, the Participation Interest(s) in
the Mortgage Loans (and all collections received or receivable from the
Mortgage Loans and all escrow and reserve accounts and funds held on deposit
therein) identified in the participation certificate(s), in the form attached
hereto as Exhibit A appropriately completed (as amended, restated,
supplemented from time to time, each, a “Participation Certificate”),
issued by the Seller to the Buyer from time to time pursuant to this Agreement
(each, a “Participated Mortgage Loan,”
and collectively, the “Participated Mortgage
Loans”) for the purchase price set forth in the Participation
Certificate. Notwithstanding the purchase price set forth in the Participation
Certificate, the parties agree that, in the case of any Mortgage Loans which,
at the time the Buyer purchases its Participation Interest in such Mortgage
Loans from the Seller, are not covered by a master forward commitment of an end
investor pursuant 


 

















 


to the requirements of Section 4(ii)(c)(1) hereof,
but which otherwise meet the requirements of Section 4(ii)(c)(2) hereof,
the Buyer will pay to Seller an additional purchase price for such Mortgage
Loans at the time of closing of the sale of such Mortgage Loans to an end
investor which the Buyer believes to be fair market value and adequate
consideration for the difference between the purchase price initially paid by
the Buyer for its Participation Interest in such Mortgage Loans and the
purchase price that would have been payable by the Buyer to the Seller had such
Mortgage Loans been covered by the end investor’s commitment at the time of
initial purchase by the Buyer of its Participation Interest.  Each Participation Certificate shall specify,
among other things, the percentage of the principal amount of the Mortgage
Loans representing the undivided interest sold, the identification of the
Mortgage Loans in which the Buyer has purchased the Participation Interest, and
the purchase price paid by the Buyer. The Seller hereby sells, assigns,
transfers and delivers to the Buyer, the percentage Participation Interest
indicated in each Participation Certificate (as applicable, the “Buyer’s Percentage” or “Percentage”) of the Seller’s
ownership rights in and to the Participated Mortgage Loans and the
indebtedness, promissory note or notes, collateral security (including, without
limitation, where such term is used herein, the mortgage, deed of trust, deed
to secure debt and any other form of security instrument used to create a lien
or other encumbrance upon real property as security for such promissory note or
notes), the end investor commitment, all escrow and reserve accounts and funds
held on deposit therein and all other documents and instruments evidencing,
securing or otherwise relating to such Participated Mortgage Loans.  Notwithstanding the foregoing, so long as the
Seller is acting as servicing agent on behalf of the Buyer hereunder, the
Seller shall enforce any and all remedies, or exercise any defenses of setoff
or otherwise, directly against any Obligor(s) (as defined below) under the
Participated Mortgage Loans as are reasonably prudent under the circumstances
and consistent with the Servicing Standards (as defined below).


 


B.            The parties hereto agree that the
Mortgage Loans in which the Buyer is purchasing a Participation Interest
hereunder shall either be closed and funded contemporaneously with the payment
by the Buyer of the purchase price for the Participation Interest in such
Mortgage Loan or shall have been closed and funded by the Seller prior to the
Buyer’s payment of the purchase price for the Participation Interest in such
Mortgage Loan.  Payment of the purchase
price for a Mortgage Loan may be made before delivery to the Buyer of all of
the Required Documents (as defined in Section 5 hereof) related to such
Mortgage Loan (a “Wet Mortgage Loan”)
or after the Required Documents are delivered to the Buyer or its designee (a “Dry Mortgage Loan”).  A Wet Mortgage Loan shall become a Dry
Mortgage Loan immediately upon delivery of all of the Required Documents to the
Buyer or its designee.  The Buyer may
purchase a Participation Interest in a Dry Mortgage Loan if the Required
Documents are delivered to the Buyer prior to such purchase.  The Seller irrevocably agrees that (i) payment
of the purchase price for the Participation Interest in a Wet Mortgage Loan
shall be made directly to an approved payee and closing agent (“Approved Payee” and “Closing Agent”) designated by the
Seller and acceptable to the Buyer, which Closing Agent shall also be
responsible for closing and funding such Mortgage Loan, and (ii) payment
of the purchase price for the Participation Interest in a Dry Mortgage Loan
shall be made to the Seller or, if such Dry Mortgage Loan is purchased by the
Seller from a third party correspondent, by remitting or transferring such
funds to an account designated in writing by the Seller or by such warehouse
lender in its bailment letter, as the case may be.  In order for a Person to be designated an
Approved Payee and Closing Agent with respect to purchase price proceeds to be
used to fund any Wet Mortgage Loan, the following conditions shall apply:


 


(i)            the
Seller shall have submitted to the Buyer a valid Closing Protection Letter (as
defined below) covering the closings conducted by the Closing Agent in the
jurisdiction where the closing will take place issued by the title insurance
company which is issuing the title insurance policy covering the related
Mortgage Loan, and, if applicable, an assignment to the Buyer of such Closing
Protection Letter, in form and substance acceptable to the Buyer, in its sole
and absolute discretion.  From time to
time, the Buyer may modify any such requirements in its sole and absolute
discretion;


 


(ii)           the
Seller shall have submitted to the Buyer any other information and
documentation as the Buyer reasonably may deem appropriate with respect to such
Closing Agent and/or title insurance company; and


 


(iii)          the
Buyer shall have reviewed the applicable documents with respect to such proposed
Closing Agent and notified the Seller within two (2) Business Days (as
defined below) thereafter as to whether such Closing Agent has been accepted by
the Buyer, in its sole and absolute discretion, to be an approved payee with
respect to such Mortgage Loan.  Buyer may
withdraw its approval of any Closing Agent as an approved payee at any time, in
its sole and absolute discretion.


 


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For purposes of this
Agreement, the terms shall below shall have the following meanings:


 


“Business
Day” as used herein shall mean any day, other than a Saturday or
Sunday, or a day on which banking and savings and loan institutions in the
State of Alabama are authorized or obligated by law or executive order to be
closed.


 


“Closing Protection Letter” shall mean a
document, in form and substance acceptable to the Buyer, in its sole and
absolute discretion, issued by a title insurance company to the Seller and
listing the Buyer as a loss payee, and relied upon by the Buyer to provide
closing protection for one or more mortgage loan closings and to insure the
Seller and the Buyer, without limitation, against embezzlement by the Closing
Agent and loss or damage resulting from the failure of the Closing Agent to
comply with all applicable closing instructions.  The Closing Protection Letter shall be issued
in the form of a blanket closing protection letter unless otherwise agreed by
the Buyer, in its sole and absolute discretion and on a case-by-case basis.


 


                “Person”
shall mean natural persons, corporations, limited liability companies, limited
partnerships, registered limited liability partnerships, general partnerships,
joint stock companies, joint ventures, associations, companies, trusts, banks,
trust companies, land trusts, business trusts or other organizations and
governments and agencies and political subdivisions of them.


 


C.            Seller shall provide the Buyer prior
written notice (a “Purchase Request”)
by no later than 11:00 a.m. (Montgomery time) on the date payment is
requested, in a form acceptable to the Buyer, which can be submitted by the
Seller to the Buyer electronically, of the (i) date payment of the
purchase price hereunder is requested to be made by the Buyer for a Mortgage
Loan (the “Purchase Date”); (ii) the
scheduled closing date of such Mortgage Loan in the case of a Wet Mortgage
Loan; (iii) the note principal balance of such Mortgage Loan; (iv) the
bank wire instructions for the Closing Agent in the case of a Wet Mortgage
Loan; and (v) loan number, borrower(s) name, and such other relevant
information related to the Mortgage Loan in which a Participation Interest is
being purchased by the Buyer.  The
Purchase Request with respect to any Wet Mortgage Loan must certify to the Buyer
that the closing and funding of such Mortgage Loan will occur within one (1) Business
Day after the purchase price is paid by the Buyer to the Closing Agent on
behalf of the Seller.  The Purchase
Request shall be irrevocable after it is delivered to the Buyer.  As conditions precedent to the Buyer’s
obligation to pay the purchase price for the Participation Interest in any
Mortgage Loan, the following shall be true and correct as of the date payment
thereof is made by the Buyer to the Closing Agent (1) the Seller has
complied, and is in compliance, with all of its obligations hereunder, and the
Seller’s representations and warranties made in this Agreement shall be true
and correct; (2) there shall not have occurred or be continuing a default
under this Agreement and no default is imminent or likely to occur after giving
effect to the payment of the amounts requested by the Seller; and (3) a
fully executed original (or a copy thereof which the parties agree constitutes
an original hereunder) Participation Certificate evidencing the Buyer’s Participation
Interest in the Mortgage Loan shall have been issued by the Seller and
delivered to the Buyer.  Subject to the
terms and conditions of this Agreement, on the requested Purchase Date for each
Mortgage Loan, the Buyer shall make available to the Seller the purchase price
requested by the Seller in the Purchase Request in the applicable manner
contemplated by Section 1.B.  If a
Wet Mortgage Loan is not closed and funded within one (1) Business Day
after the purchase price is paid to the Closing Agent, the Buyer shall direct
the Closing Agent to immediately return the purchase price proceeds to the
Buyer, and the Buyer’s Participation Interest in such Mortgage Loan shall be
null and void (a “Failed Transaction”);
except, that the Seller shall be liable to the Buyer for all costs and expenses
incurred thereby and interest accrued at the LIBOR Rate (as defined in the
Participation Certificate) plus 150 basis points (1.50%) on the amount of the
purchase price paid from and including the Purchase Date to but excluding the
date such purchase price proceeds are returned to the Buyer, which amounts
shall be immediately due and payable, arising from such Failed
Transaction.  In addition to such other
rights under applicable law, the Buyer shall have the right to setoff and
deduct from amounts held on deposit by the Seller with the Buyer, whether or
not related to this Agreement, the amount of such costs, expenses and accrued
interest related to a Failed Transaction.


 


                For purposes of this Agreement, the term “Purchase Date” shall also include any
subsequent purchase date in which the Buyer paid to the Seller an additional
purchase price with respect to a Mortgage Loan pursuant to Section 1.A.
hereof.


 


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D.            If requested by the Buyer at any
time, the Seller shall deliver, or cause the Closing Agent to deliver to the
Buyer or to a custodian acting on its behalf, prior to the closing and funding
of a Wet Mortgage Loan, copies of any and all applicable documentation with respect
to such Wet Mortgage Loan as the Buyer, in its sole and absolute discretion,
shall request.  Subject to Section 5
hereof, the original or certified copies, as applicable, of the Required
Documents related to a Wet Mortgage Loan shall be delivered to the Buyer within
five (5) Business Days after the closing and funding of such Wet Mortgage
Loan (the “Wet Mortgage Loan Period”).


 


E.            In connection with the funding of
each Wet Mortgage Loan, Seller shall provide to the applicable Closing Agent,
an executed original or copy thereof of the closing instructions, which shall,
stipulate the title insurance company that will be issuing the applicable title
insurance policy and the Closing Protection Letter and require the Closing
Agent to hold such funds in trust for the benefit of the Buyer until such loan
closes, in no event distribute any of such funds to the Seller, and return
promptly (within one (1) Business Day) all funds remitted by the Buyer to
the Buyer if the closing does not take place as scheduled. Such closing
instructions shall be signed by the Closing Agent and returned with the closing
documents to the Seller and, unless otherwise directed by the Buyer, such
signed closing instructions shall be included in the closing documents
delivered to the Buyer.  Buyer shall have
the right to inspect the closing instructions and require modification thereof
as necessary at any time.  If the Closing
Agent is not a title insurance company, the Seller shall also (i) confirm
to the Buyer that the closing is covered by a Closing Protection Letter issued
to the Buyer by the title insurance company stipulated in the final closing
instructions and/or (ii) provide to the Buyer an assignment of the Closing
Protection Letter naming the Buyer as the assignee in form and substance
acceptable to the Buyer, in its sole and absolute discretion.


 


2.             Ownership
Interest.  The parties
hereto agree that, upon issuance of the Participation Certificate and the
concurrent payment of the purchase price for the Buyer’s Percentage of the
Participated Mortgage Loans, which the Seller believes to be fair market value
and adequate consideration for the Participation Interests purchased by the
Buyer pursuant to this Agreement together with the servicing rights hereunder,
the Buyer immediately shall become vested, to the extent of such Percentage,
with beneficial ownership of the Participated Mortgage Loans including, without
limitation, the indebtedness, promissory note or notes, collateral security,
the end investor commitment, all escrow and reserve accounts and funds held on
deposit therein and all other documents and instruments evidencing, securing or
otherwise relating to said Participated Mortgage Loans, together with all of
the rights, privileges and remedies applicable thereto and all representations
and covenants made thereunder by Obligor in favor of the Seller and, except as
otherwise provided hereunder, Seller shall have no right or obligation to sell,
pledge, repurchase, substitute other mortgage loans for, or otherwise dispose
of, any of the Participated Mortgage Loans. 
Except as otherwise provided in this Agreement, the Seller shall
continue to hold legal title to the Participated Mortgage Loans (in trust and
as nominee for the benefit of the Buyer to the extent of the Buyer’s Percentage
therein), and the Buyer shall be the holder, subject to the terms of this
Agreement, of equitable title to the Buyer’s Percentage of such Participated
Mortgage Loans. The Seller shall not represent to any person that the Seller
owns any portion of the Participation Interest(s) sold to and paid for by the
Buyer under this Agreement, and it is the intent of the parties that both the
buyer and the Seller shall reflect the transaction(s) hereunder on its
balance sheet and other financial statements as a sale of assets by the Seller
and the purchase of assets by the Buyer pursuant to United States generally
accepted accounting principles as in effect from time to time (“GAAP”) and as a sale for federal
income tax purposes. It is the parties’ intent that the transactions
contemplated hereunder meet all of the requirements of sale accounting
treatment under GAAP. The parties hereto acknowledge and agree that the
transactions contemplated are bona-fide, arm’s-length transactions and that
neither party is an affiliate of the other.


 


THIS LOAN
PARTICIPATION IS A SALE BY THE SELLER TO THE BUYER, AND A PURCHASE BY THE BUYER
FROM THE SELLER, OF PARTICIPATION INTERESTS IN THE ABOVE REFERENCED MORTGAGE
LOANS INCLUDING, WITHOUT LIMITATION, THE INDEBTEDNESS, PROMISSORY NOTE OR
NOTES, COLLATERAL SECURITY AND ALL OTHER DOCUMENTS AND INSTRUMENTS EVIDENCING,
SECURING OR OTHERWISE RELATING TO SUCH MORTGAGE LOANS, AND NO AMOUNT PAID BY
THE BUYER HEREUNDER TO PURCHASE SUCH PARTICIPATION INTERESTS SHALL IN ANY WAY
BE CONSTRUED AS A LOAN OR AN EXTENSION OF CREDIT BY THE BUYER TO THE SELLER,
AND THE PARTICIPATION INTEREST BEING PURCHASED BY THE BUYER SHALL NOT BE A PART OF
THE ESTATE OF THE SELLER IN THE EVENT OF BANKRUPTCY, REORGANIZATION,
ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDING, OR OTHER PROCEEDING UNDER
ANY FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW, OR THE OCCURRENCE OF ANOTHER
SIMILAR EVENT OF, OR 


 


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WITH RESPECT TO, THE SELLER.  THE PARTIES TO THIS AGREEMENT HEREBY
ACKNOWLEDGE THAT THE “CREDIT RISK” OF THE PARTICIPATED MORTGAGE LOANS CONVEYED
HEREUNDER SHALL BE BORNE BY THE BUYER TO THE EXTENT OF THE BUYER’S PERCENTAGE,
AND THAT THE SELLER HAS NOT MADE ANY REPRESENTATIONS TO THE BUYER CONCERNING
THE COLLECTABILITY OF THE PAYMENTS DUE UNDER THE PARTICIPATED MORTGAGE LOANS
NOR HAS THE SELLER MADE ANY REPRESENTATIONS TO THE BUYER CONCERNING THE
EXPECTED RETURN ON THE BUYER’S INVESTMENT IN THE PARTICIPATED MORTGAGE LOANS.


 


The parties hereto
acknowledge and agree 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 of the transactions hereunder constitute a single business and
contractual relationship, have been made in consideration of one another, and
the Buyer is purchasing and the Seller is selling a Participation Interest in a
group of Participated Mortgage Loans, notwithstanding that individual
Participated Mortgage Loans included in the group may be evidenced by a separate
Participation Certificate.


 


3.             Participation
in Collateral.  The
Participation Interest purchased by the Buyer from the Seller in each
Participated Mortgage Loan hereunder shall be proportionately secured (in an
amount equal to the Buyer’s Percentage) by any collateral securing such
Mortgage Loan in accordance with the provisions of the applicable collateral
security documents and, notwithstanding designation of the Seller as the
mortgagee or secured party thereunder, the Buyer shall have all rights, privileges
and benefits of the mortgagee or secured party, to the extent of its
Participation Interest, with respect to such Participated Mortgage Loans.  The Seller hereby acknowledges and agrees
that the Participation Interest in each Participated Mortgage Loan purchased by
the Buyer shall also be proportionately secured (in an amount equal to the
Buyer’s Percentage) by Seller’s interest in the Obligor’s escrow and reserve
accounts and the funds held on deposit therein, and that all such accounts
shall be held by the Seller in trust, segregated from and not commingled with
its own funds and be deemed Trust Funds (as defined in Section 8.A.
hereof).  The provisions of Section 8A
hereof shall apply to such escrow and reserve accounts.  For purposes of the foregoing, the Seller, in
its capacity as the mortgagee or secured party, shall act as the representative
and collateral agent for the Buyer with respect to obtaining, perfecting,
protecting and maintaining the collateral security for the Participated Mortgage
Loans.


 


4.             Requirements
for Participated Mortgage Loans.   Each Mortgage Loan in which the Buyer
purchases a Participation Interest hereunder: 
(i) shall be one of the following types of Mortgage Loan (each a “Type”):  a Conforming Mortgage Loan (as defined
below), a Non-Conforming Mortgage Loan (as defined below) or an A Quality
Second/HELOC Mortgage Loan (as defined below); (ii) shall, (a) if
sold by the Seller to an end investor on a “best efforts” basis, be covered by
a bona fide current, unfilled and unexpired commitment of an end investor,
issued in favor of and owned by the Seller, under which such end investor
agrees to purchase such Mortgage Loan at a specified price and which commitment
is not subject to any term or condition that is not customary in commitments of
like nature or that, in the reasonably anticipated course of events, cannot be
fully complied with prior to the expiration thereof, (b) if sold on a “mandatory
delivery” basis, be covered by a bona fide current, unfilled and unexpired commitment
of an end investor, issued in favor of and owned by the Seller, under which
such end investor agrees to purchase such Mortgage Loan at a specified price
and which commitment is not subject to any term or condition that is not
customary in commitments of like nature or that, in the reasonably anticipated
course of events, cannot be fully complied with prior to the expiration thereof
and is also covered by a valid and binding hedging agreement entered into by
the Seller which eliminates any interest rate risk of such Mortgage Loan to the
Seller, or (c) if sold on a “bulk” basis, either (1) be covered by a
master forward commitment of an end investor obligating such end investor to
purchase from the Seller within a specified time period mortgage loans of a
specified criteria to which such Mortgage Loan conforms or (2) be sold to
an investor pre-approved by the Buyer as set forth in Exhibit B
attached hereto at the maximum available price that can be obtained by the
Seller for such Mortgage Loan, in its capacity as agent of the Buyer and as
owner of the retained interest in such Mortgage Loan but, in any event, at a
price that is sufficient to pay in full the amounts due the Buyer hereunder on
its Participation Interest unless the Buyer otherwise agrees in writing; and (iii) shall
meet each of the other requirements as set forth in Exhibit C
attached hereto. The Seller shall not sell, or offer to sell, a Participation
Interest in any Mortgage Loan to the Buyer hereunder unless such Mortgage Loan
meets the requirements set forth in this Section 4.  THE PARTIES AGREE THAT THE REQUIREMENTS SET
FORTH IN THIS SECTION AND THE EXISTENCE OF THE END INVESTOR’S PURCHASE
COMMITMENT DESCRIBED IN CLAUSE (ii) OF 


 


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THIS SECTION ARE A
MATERIAL INDUCEMENT FOR THE BUYER AGREEING TO ENTER INTO THIS AGREEMENT AND
PURCHASING A PARTICIPATION INTEREST IN THE MORTGAGE LOANS FROM THE SELLER.


 


As used herein, the
following definitions shall apply:


 


“Agency”
shall mean Fannie Mae, Freddie Mac, Ginnie Mae or FHA/VA, or any successor
thereto.


 


“Credit
Quality Guidelines” shall mean either (i) in the case of a
Mortgage Loan that is subject to a commitment issued by an Agency, the credit
quality guidelines utilized by such Agency, or (ii) in the case of a
Mortgage Loan that is subject to a commitment issued by any other end investor,
the credit quality guidelines utilized by Fitch IBCA as
set forth in Exhibit D attached hereto or such other nationally
recognized credit ratings agency or firm as specified by the Buyer from time to
time.


 


“Conforming
Mortgage Loan” shall mean a first-priority Mortgage Loan that is
fully underwritten (using  either an
automated underwriting system such as Loan Prospector (“LP”)
or Desktop Underwriter (“DU”) or a
manual underwriting process) in conformity with the underwriting standards of
Fannie Mae or Freddie Mac in effect at the time of such underwriting and that
conforms to the Credit Quality Guidelines, except that Mortgage Loans rated
below “A” shall be ineligible.


 


“Non-Conforming
Mortgage Loan” shall mean a first-priority Mortgage Loan that
encumbers property that is owner-occupied and is not investment or rental
property, that conforms to all underwriting and other requirements of the end
investor and that conforms to the Credit Quality Guidelines, except that
Mortgage Loans rated below “B” shall be ineligible.


 


“A Quality
Second/HELOC Mortgage Loan” shall mean either a (i) second-priority
Mortgage Loan that encumbers property that is owner-occupied and is not
investment or rental property, that conforms to all underwriting and other
requirements of the end investor and that conforms to the Credit Quality
Guidelines, except that Mortgage Loans rated below “A” shall be ineligible, or (ii) second-priority
Mortgage Loan that encumbers investment property or rental property, that
conforms to all underwriting and other requirements of the end investor and
that conforms to the Credit Quality Guidelines, except that Mortgage Loans
rated below “A” shall be ineligible.


 


5.             Delivery
of Loan Documentation. 
Upon purchase by the Buyer of a Participation Interest in any Mortgage
Loans, the Seller concurrently therewith shall deliver a Participation
Certificate to the Buyer identifying the particular Mortgage Loans in which the
Buyer is purchasing a Participation Interest and specifying the Buyer’s
Percentage of such Mortgage Loans and the other matters set forth in Section 1
hereof.  Thereafter, the Seller shall
deliver, or cause the Closing Agent to deliver, to the extent it is in
possession thereof, to the Buyer the following documents and instruments
pertaining to each such Participated Mortgage Loan, (x) in the case of the
documents and instruments referenced in subsection A below (the “Required Documents”), as soon as said
documents and instruments are available, but no later than within five(5) Business
Days after the closing and funding of such Mortgage Loan, and (y) in the
case of the documents and instruments referenced in subsection B below (the “Additional Required Documents”),
upon request by the Buyer from time to time:


 


A.           Required
Documents.


 


(i)            Information
related to the end investor commitment, if applicable, and Investor Commitment
Certification (whole loan investor commitment information or weekly secondary
market report, if Mortgage Loan is sold on a mandatory delivery basis);


 


(ii)           Original
promissory note or other evidence of debt signed by loan debtor(s) (the “Obligor(s)”), endorsed in blank by
the Seller, and, if applicable, with an interim endorsement from the originating
mortgage company to the Seller;


 


(iii)          Copies
of the collateral security documents (including, without limitation, the
mortgage, deed of trust, deed to secure debt and any other form of security
instrument used to create a lien 


 


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or other
encumbrance upon real property as security for such promissory note) including,
with respect thereto, any modification agreements;


 


(iv)         Copy
of any interim assignments, if applicable;


 


(v)          Original
unrecorded assignment in blank of the collateral security documents or, if
applicable, the Mortgage Electronic Registration Systems, Inc. (“MERS”) designation;


 


(vi)         Closing
Agent certification (if required by the Buyer at any time); and


 


(vii)        Copies
of other supporting documentation, if applicable (such as Power of Attorney,
Guardianship, Trust Agreement, etc.).


 


B.            Additional Required Documents.


 


(i)            Original
or certified copy of HUD-1 Settlement Statement;


 


(ii)           Copy
of the title insurance binder or certificate (including an attorney approval
letter) covering at least the face amount of the promissory note, with the
original policy of title insurance insuring the mortgage (or deed of trust,
deed to secure debt, etc.) as a first-priority lien (or in the case of an A
Quality Second/HELOC Mortgage Loan only, a second-priority lien) on the real
property and improvements encumbered thereby (the “Property”)
written by a title company and containing exceptions satisfactory to the Buyer;


 


(iii)          Evidence
of the applicable FHA commitment for insurance with respect to each FHA-insured
promissory note, or VA commitment for guaranty with respect to each
VA-guaranteed promissory note, and of the applicable commitment for private
mortgage insurance with respect to each conventional promissory note having a
loan-to-value ratio in excess of 80%;


 


(iv)         Evidence
of fire and extended coverage insurance in an amount not less than the lower of
the following: (a) the amount of the Mortgage Loan, and (b) 100% of
the insurable value of the Property. 
Such insurance shall be written by a company satisfactory to the Buyer
with form and content subject to the Buyer’s approval.  The Buyer reserves the right to obtain a loss
payable endorsement in favor of the Buyer if the Buyer so desires;


 


(v)          Evidence
of Notice to Customer and Rescission required by the federal Truth-in-Lending
Law and Federal Reserve Regulation Z;


 


(vi)         Copy
of the appraisal of the Property;


 


(vii)        Survey(s) of
the Property;


 


(viii)       Termite
treatment report of the Property;


 


(ix)          Copies
of the Obligor(s) financial statement(s) and written credit
report(s);


 


(x)           Copy
of underwriting summary (LP or DU approval, etc.);


 


(xi)          End
investor commitment; and


 


(xii)         Any
other records and documentation as the Buyer reasonably may deem appropriate
including, without limitation, documentation necessary to fulfill the
requirements of the end investor commitments.


 


It is the understanding
of the parties that the Seller shall retain possession of all Additional
Required Documents and any Required Documents not requested by the Buyer as
collateral agent for the benefit of the Buyer 


 


6

















 


unless the Buyer
requests, as aforesaid, that such Additional Required Documents be delivered to
and held by the Buyer, in which case, the Seller shall promptly deliver same to
the Buyer.  To the extent that the Seller
retains possession of any documents hereunder relating to the Participated
Mortgage Loans, the Seller shall keep all such documents in segregated files
appropriately marked to show that a Participation Interest therein has been
sold to the Buyer.  Likewise, the Seller
shall segregate and separately mark each Participated Mortgage Loan on its
systems used in the origination and servicing of such Mortgage Loans to show
that a Participation Interest therein has been sold to the Buyer.  In addition, if required by the Buyer at any
time in order to maintain, preserve and protect its Participation Interest(s) in
the Participated Mortgage Loans, the Seller immediately shall record the
assignment referenced in subsection A(v) above of this Section 5 in
favor of the Buyer in the applicable recording office and pay all recording
fees, charges and taxes in connection therewith.


 


6.             Expenses,
Etc.  All out-of-pocket
expenses for preparation and recording of any documents including, without
limitation, any assignments or registrations necessary to reflect ownership by
the Buyer of its Participation Interest(s) in the Participated Mortgage
Loans or any precautionary UCC-1 filings contemplated by Section 22E
hereof to reflect the transaction(s) hereunder, shall be borne by the
Seller. The Seller shall prepare all documents including, without limitation,
the Participation Certificates, necessary to reflect the Buyer’s Participation
Interest(s) in the Participated Mortgage Loans.


 


7.             Record
Inspection Rights.  The
Buyer, or its agents or representatives or, if applicable, the Buyer’s
successors or assigns, and its examiners or supervisory agents, shall have the
right at any reasonable time during normal business hours to request, have
access to and examine, any and all books, records and documents relating to any
Participated Mortgage Loan or to any matters covered by this Agreement.


 


8.             Servicing of Participated Mortgage Loans.


 


A.           Subject to the limitations set forth
in this Section, and unless the Buyer has notified the Seller of the Buyer’s
election to take over servicing of the Participated Mortgage Loans as set forth
in Section 9 hereof (and in such case, subject to the further limitations
on the term for servicing any Participated Mortgage Loan set forth in Section 18A
hereof), the Seller shall be solely responsible for the servicing of the
Participated Mortgage Loans in accordance with the Servicing Standards as a
fiduciary on behalf and for the benefit of the Buyer. The Seller is hereby
authorized and directed to act as agent, custodian and bailee for the Buyer and
in such capacity shall manage, service, administer and make collections on the
Participated Mortgage Loans, and strictly perform all services and take all
actions required to be taken by the Seller under this Agreement. The Seller’s
servicing duties shall include, without limitation, billing, collection and
posting of all payments, responding to inquiries of Obligors, investigating
delinquencies, sending invoices to Obligors, accounting for collections, making
distributions, disbursements and withdrawals from the trust described in the
second paragraph of this subsection A and the Buyer’s accounts described in the
second paragraph of this subsection A as provided in this Agreement, and
furnishing periodic statements to the Buyer with respect to all such
distributions, disbursements and withdrawals, and performing the other duties
specified herein.  In performing its
duties under this Agreement, the Seller shall exercise due care and discretion
and  agrees to service the Participated
Mortgage Loans in a manner the Seller reasonably believes to be in the best
interest of the Buyer and in accordance with customary and usual procedures of
institutions which service one-to-four family, residential real estate loans
secured by a lien on the real property (and improvements) encumbered pursuant
to such loans, promissory notes, loan agreements and other similar types of
property comparable to the Mortgage Loans and, to the extent more exacting, the
degree of skill and attention that the Seller exercises from time to time with
respect to all comparable such contracts that it services for itself or others
(the “Servicing Standards”).  In consideration of the servicing
responsibilities performed hereunder and, as long as the Seller is servicing
the Participated Mortgage Loans, the Seller shall be entitled to a servicing
fee calculated monthly by taking the product of: (A) the average
outstanding principal balance of all Participated Mortgage Loans (prior to any
reductions for any principal payments received during the preceding calendar
month) as of the preceding due date and (B) the positive difference
between the (i) dollar weighted average interest rate payable under such
Participated Mortgage Loans, and (ii) the Reference Rate as defined and set
forth in the Participation Certificate in Exhibit A hereto and (C) the
Buyer’s Percentage in the Participated Mortgage Loans hereunder and (D) a
fraction, the numerator of which is the actual number of days in the month and
the denominator of which is 360.  The
servicing fees shall be payable (and retained by the Seller) from interest
collected on the Participated Mortgage Loans. 
In addition, the Seller shall be entitled to retain all ancillary income
such as late payment charges, insufficient funds fees, prepayment penalties or
fees, modification fees, extension fees, assumption fees, optional 


 


7

















 


insurance administration
fees and other incidental fees and charges related to such Participated
Mortgage Loans as additional servicing compensation. The servicing fees and
additional servicing compensation shall be payable (and retained by the Seller)
from interest and other excess amounts collected on the Participated Mortgage
Loans.


 


All payments of principal
and interest and all fees and other income and proceeds (other than the Seller’s
ownership interest in such payments and the servicing fee and additional
servicing compensation due the Seller) received by the Seller with respect to a
Participated Mortgage Loan shall be held by the Seller in trust (the “Trust Funds”). The Seller shall not
commingle the Trust Funds with its own funds, and shall, at all times, keep the
Trust Funds segregated from its own funds by placing the Trust Funds in a
separate trust or escrow account titled as follows:  “Escrow Servicing Account, Sirva Mortgage, Inc.,
as servicing agent for Colonial Bank and other purchasers”. The Seller shall
have the authority to withdraw funds deposited in the escrow account to (i) pay
any funds deposited in such escrow account in error, (ii) pay its
servicing fee and additional servicing compensation and its share of the collections
on deposit therein based on its ownership interest in such collections, in each
case, to the extent not retained by the Seller pursuant to the first sentence
of this paragraph, or (iii) transfer funds payable to other purchasers.
The escrow account and Trust Funds therein will not be property of the estate
of the Seller as that term is defined in Section 541 of Title 11 of the
United States Code in the event of the Seller’s bankruptcy.  The Trust Funds shall be deposited in the
escrow account on the same day of receipt thereof by the Seller.  The Buyer shall have the authority to
withdraw funds from the escrow account at any time and the Seller shall make
arrangements to provide the Buyer such access or, at the Buyer’s request, the
Seller shall immediately remit any funds from the escrow account to an account
designated by the Buyer.  On the 2nd
day of each calendar month (or if such day is not a Business Day, on the
succeeding Business Day), the Buyer shall submit to the Seller a statement of
the total scheduled payments (net of the Seller’s retained ownership interest,
its servicing fee and additional servicing compensation) due under the
Participated Mortgage Loans for the preceding calendar month. The Seller shall
immediately make such payments to the Buyer from amounts in the escrow account
representing collections and proceeds received with respect to the Participated
Mortgage Loans in accordance with Section 15 hereof.  As an administrative convenience to the Seller
in servicing the Participated Mortgage Loans, the Seller shall advance to the
Buyer any scheduled payments not made by Obligors if the Seller deems such advance
to be recoverable from the applicable Obligor. The Seller shall have the right
to seek reimbursement from the Buyer, and the Buyer shall promptly reimburse
the Seller, for any advances the Seller has made in connection with any
Participated Mortgage Loan if any such amounts are not subsequently recovered
from the applicable Obligor.


 


Upon request of the Buyer
from time to time with respect to any Participated Mortgage Loan, the Seller
shall promptly deliver to the Buyer a report, in form and substance agreeable
to the Buyer regarding such Participated Mortgage Loan’s current status, the
collections and proceeds received as of the date of such request or such other
date, any current and prior unreimbursed advances made by the Seller, and a
reconciliation of the escrow account accounting for all withdrawals from and
deposits made into the escrow account.


 


B.            The Seller agrees to indemnify the
Buyer for any and all liabilities, obligations, losses, damages, payments,
costs or expenses of any kind whatsoever which may be imposed on, incurred or
asserted against the Buyer as the result of any act or omission by the Seller
relating to the servicing, maintenance and custody of the Mortgage Loans, the
Required Documents, and the Additional Required Documents; provided, however,
that the Seller will not be liable, to the Buyer for any portion of any such
amount resulting from the gross negligence, fraud or willful misconduct of the
Buyer.


 


C.            Except as otherwise set forth in Section 9
hereof, the Seller shall retain full power and authority and the reasonable
discretion to administer the Participated Mortgage Loans and to take or omit to
take any action whatsoever in respect thereof as the Seller deems prudent,
reasonably necessary and/or desirable to preserve the value thereof and to
maximize the proceeds to be realized therefrom; provided, however,
the Seller, in all cases, shall act in good faith and in accordance with the
Servicing Standards, other usual practices employed by the Seller in the
servicing of Mortgage Loans for its own account, and customary industry
practices; and further  provided, however, the Seller shall
not without the prior consent of the Buyer:


 


(iv)         make
or consent to any amendments, modifications or extensions in the terms and
conditions of any Participated Mortgage Loan, or in the terms of the promissory
note or notes evidencing such Mortgage Loan, or in any collateral security
documents securing such Mortgage Loan;


 


8

















 


(v)          waive
or release any claim against any Obligor and/or against any co-maker, guarantor
or endorser under any Participated Mortgage Loan;


 


(vi)         make
or consent to any release, substitution, exchange or subordination of any
collateral for any Participated Mortgage Loan;


 


(vii)        accelerate
payment under any Participated Mortgage Loan and/or under any promissory note
or notes evidencing such Mortgage Loan;


 


(viii)       commence
any type of collection proceeding against any Obligor and/or against any
co-maker, guarantor or endorser under any Participated Mortgage Loan; and/or


 


(ix)          seize,
sell, transfer, assign, foreclose or attempt to exercise any other remedy against
any collateral securing any Participated Mortgage Loan.


 


D.            Notwithstanding subsection C above
of this Section 8 (except for the Seller’s standard of care which shall
remain applicable), if the Seller, in its reasonable judgment, determines that
it is necessary to take, any of the actions described in subsection (C)(iv) through
(C)(vi) above because such action is warranted to prevent a substantial
loss in the value of the Participated Mortgage Loan and is unable to obtain the
Buyer’s prior consent in a timely manner, then the Seller may take such action
but shall simultaneously notify the Buyer of the action taken and the reason(s) therefor,
together with evidence of the Seller’s attempt(s) to first obtain the
Buyer’s prior consent to such action.


 


E.             If the Seller requests the consent
of the Buyer to any action in respect of a Participated Mortgage Loan, the
Buyer shall respond within ten (10) Business Days after the Seller’s
request.  If the Buyer fails to respond
within such time period, the Buyer shall be deemed to have agreed to the action
referenced in the Seller’s request.  If
the Buyer responds after the expiration of such time period but prior to any
action taken by the Seller, then the Seller shall honor the Buyer’s response.


 


F.             The Seller shall deliver any
written servicing, maintenance or custodial policies, together with any
amendments thereto, related to the Servicing Standards to the Buyer, with
reasonable promptness after adoption of same. The Seller, upon written notice
to the Buyer, may at any time change its customary standards, policies and
procedures; provided, however, that any such change shall not vary from the
Servicing Standards and shall not impair the collectability of any of the
Mortgage Loans nor the Seller’s ability to perform its obligations under this
Agreement, the Required Documents, and the Additional Required Documents.


 


G.            The Seller shall promptly report to
the Buyer any failure by the Seller to service the Mortgage Loans in accordance
with the provisions hereunder and shall promptly take appropriate action to
remedy any such failure.


 


9.             Buyer’s
Right to Service Participated Mortgage Loans. Upon (i) the
termination of this Agreement as set forth herein, (ii) the occurrence of a
material default by the Seller of its obligations hereunder which remains
uncured for fifteen (15) days after written notice of such default is delivered
to the Seller by the Buyer, (iii) the exercise by the Buyer of any of its
rights under Section 17E hereof or (iv) the delivery by the Buyer of thirty
(30) days prior written notice to the Seller, which notice the Buyer may elect
to give to the Seller at any time and for any reason whatsoever (each, a “Servicing Termination Event”), the
Buyer or its designee may take over the servicing of some or all of the
Participated Mortgage Loans and the collection of all payments thereunder.  Upon the occurrence of a Servicing
Termination Event, the Seller, or if the Seller fails to do so within five (5) days
following the occurrence of such Servicing Termination Event, then the Buyer or
its designee, shall immediately notify the Obligor(s) of the transfer of
the servicing to the Buyer or its designee, directing the Obligor(s) to
forward principal and interest payments under the Participated Mortgage Loans
directly to the Buyer or its designee, in sufficient amounts to satisfy the
Buyer’s Percentage in such Mortgage Loans. The Seller shall transmit or cause
to be transmitted to the applicable taxing authorities and insurance companies
(including primary mortgage insurers, if applicable) and/or agents, not less
than fifteen (15) days prior to the date the servicing transfer shall occur,
notification of the transfer of the servicing to the Buyer or its designee and
instructions to deliver all notices, tax bills and insurance statements, as the
case may be, to the Buyer or its designee from and after the date the servicing



 


9

















 


transfer is scheduled to
occur. The Seller shall promptly provide the Buyer or its designee with copies
of all such notices. The Seller shall be obligated to pay all mortgage
insurance premiums with respect to FHA/VA Mortgage Loans until such notice is
received by HUD and/or the VA. The Seller shall timely file all IRS forms which
are required to be filed in relation to the servicing and ownership of the
Participated Mortgage Loans. The Seller shall provide copies of such forms to
the Buyer or its designee upon request thereof and shall reimburse the Buyer or
its designee for any costs or penalties incurred by the Buyer or its designee
due to the Seller’s failure to comply with this paragraph.  In addition, the Seller shall cooperate with
and deliver immediately, but in no event later than ten (10) days after a
servicing transfer date, to the Buyer or its designee all mortgage files,
computer programs, tapes, discs, cards, accounting records and other books,
records, information and data of the Seller which are necessary or helpful to
the Buyer or its designee in performing the administration and servicing duties
in connection with such Participated Mortgage Loans. The Seller shall forward
by wire transfer to a bank account designated by the Buyer, on or before the
servicing transfer date, all payments received by the Seller from Obligors of
Participated Mortgage Loans, prepayments or pay aheads and net escrow payments,
suspense balances and all loss draft balances associated with the Participated
Mortgage Loans prior to the servicing transfer date to the Buyer. The Seller
shall forward the amount of any payments received by the Seller from Obligors
after the servicing transfer date to the Buyer or its designee by overnight
mail on the date of receipt. The Seller shall notify the Buyer or its designee
of the particulars of the payment, which notification requirement shall be
satisfied (except with respect to Participated Mortgage Loans then in
foreclosure or bankruptcy) if the Seller forwards with its payments sufficient
information to the Buyer or its designee. Not less than five (5) days
prior to the servicing transfer date, the Seller shall perform a reconciliation
and provide a detailed report of the Participated Mortgage Loan balances,
payments and escrows and make any monetary adjustments reasonably required by
the Buyer or its designee.  Any such monetary
adjustments will be transferred between the Seller and the Buyer or its
designee, as appropriate. The Seller shall assume full responsibility for the
necessary and appropriate legal application of Obligor payments received by the
Seller after the servicing transfer date with respect to Participated Mortgage
Loans then in foreclosure or bankruptcy; provided, however,
necessary and appropriate legal application of such Obligor payments shall
include, but not be limited to, endorsement of an Obligor payment to the Buyer
or its designee with the particulars of the payment such as the account number,
dollar amount, date received and any special mortgage application
instructions.  Thereafter, the Buyer
shall deal directly with the Obligor(s) in servicing and collecting
payments on the Participated Mortgage Loans. Unless otherwise provided herein,
the remaining terms and conditions of this Agreement shall survive the election
by the Buyer to take over the servicing of the Participated Mortgage Loans.  Such remaining terms and conditions of this
Agreement shall continue to apply until such time as each Participated Mortgage
Loan either is paid in full or the Buyer’s Participation Interest in such
Mortgage Loans is repurchased by the Seller as provided in Section 17
hereof.


 


10.          Representation and Warranties by the Seller.  The Seller represents and warrants to the
Buyer that the statements contained below are true and correct as of the date
hereof and each date the Buyer purchases a Participation Interest in a Mortgage
Loan hereunder:


 


A.            The Seller is a corporation, duly
organized and validly existing in good standing under the laws governing its
organization and has all licenses necessary to carry on its business as now
being conducted and, if required by applicable law, is licensed, qualified and
in good standing in each state where it conducts business.


 


B.            The Seller has full power and
authority to execute, deliver and perform this Agreement, including authority
to sell, assign and transfer good and marketable title to, and, if applicable,
to repurchase the, Participation Interest(s) in the Mortgage Loans
hereunder.


 


C.            All necessary corporate, regulatory
or other similar action has been taken to authorize and empower the Seller, and
the officers or representatives acting on its behalf, to execute, deliver and
perform this Agreement.


 


D.            The execution and delivery of this
Agreement by the Seller and the performance of or compliance with the terms and
conditions hereof by the Seller do not or will not conflict with or result in,
as the case may be, a material breach of any of the terms and conditions or
provisions of the articles of incorporation or organization, as applicable, or
bylaws or operating agreement (or regulations), as applicable, of the Seller or
any 


 


10

















 


provisions of any law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award presently in effect to which the Seller or its properties or assets are
subject.


 


E.             The execution and delivery of this
Agreement by the Seller and the performance of or compliance with the terms and
conditions hereof by the Seller do not and will not conflict with or result in,
as the case may be, a material breach of any of the terms, conditions or
provisions of or constitute a material default under any indenture, loan or
credit agreement or any other agreement, or instrument to which the Seller is a
party or by which it or its properties or assets may be materially affected.


 


F.             Assuming due authorization,
execution and delivery by the Buyer, this Agreement constitutes a legal, valid
and binding obligation of the Seller enforceable against the Seller according
to its terms and conditions set forth herein.


 


G.            No consent, approval, authorization
or order of any court or governmental agency or body is required for the
execution, delivery and performance by the Seller of or compliance by the
Seller with this Agreement, the sale of the Participation Interest(s) in
such Mortgage Loan to the Buyer or the consummation of the transactions
contemplated by this Agreement or, if required, such approval has been obtained
prior to the closing date.


 


H.            There is no action, suit,
administrative or other proceeding of any kind pending or, to the best
knowledge of the Seller, threatened against or materially affecting the Seller
or the properties or assets of the Seller before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign that would prohibit the Seller from executing and delivering this
Agreement and performing its obligations hereunder or would materially or
adversely affect the legality, binding affect, validity or enforceability of
the sale of the Participation Interest to the Buyer, or the ability of the
Seller to service such Mortgage Loan in accordance with the terms hereof.


 


I.              Such Dry Mortgage Loan, as of the Purchase
Date but prior to such purchase, is, and such Wet Mortgage Loan when made will
be, 100% owned and held by the Seller, free and clear of all liens,
encumbrances and claims of any kind, and neither such Mortgage Loan nor any
interest therein previously has been sold, assigned, transferred, encumbered or
otherwise disposed of by the Seller.


 


J.             Such Dry Mortgage Loan has been
made or acquired, and such Wet Mortgage Loan when made will be made, and
serviced by the Seller pursuant to and in compliance with all applicable
federal and state laws, rules and regulations, as from time to time in
effect, and in accordance with Fannie Mae, Freddie Mac or other customary and
accepted servicing guidelines and industry practices.


 


K.            The Seller has used the same underwriting procedures, has
applied the same underwriting standards and has made the same underwriting
decision with respect to such Mortgage Loan, in each case, that the Seller
would have used, applied or made had the Seller elected to retain full
ownership of such Mortgage Loan for its own account.


 


L.             The Seller used no selection procedures that identified
any Mortgage Loan as being less desirable or valuable than other comparable
assets in the Seller’s portfolio on the Purchase Date; no Mortgage Loan has a
higher risk of default or loss than similar Mortgage Loans which the Seller
sells to other participants or investors or retains for its own account; and no
Mortgage Loan was selected on any basis intended to have a material adverse
effect on the Buyer.


 


M.           The documents and instruments
evidencing, securing or otherwise relating to the Dry Mortgage Loans have been,
and after the making of a Wet Mortgage Loan, the documents and instruments
evidencing, securing or otherwise relating to such Wet Mortgage Loans will be,
duly and validly executed and delivered by the Obligor(s) as well as, to
the extent applicable, by the co-maker(s), guarantor(s) and/or endorser(s) under
such Mortgage Loan.


 


N.            Such Mortgage Loan meets and
complies in all respects with the Credit Quality Guidelines and all of the
other requirements of the Buyer as set forth in Section 4 that are applicable
to such Type of 


 


11

















 


Mortgage Loan (including,
but not limited to, the requirements set forth in Exhibit C
hereof).  In addition, the Seller has
received a copy of and is familiar with the applicable end investors’
underwriting and other requirements for purchasing such Mortgage Loan under its
commitment (the “Purchase Requirements”)
and such Mortgage Loan meets the applicable end investors’ Purchase
Requirements.


 


O.            The Seller has provided the Buyer
with the originals or copies (certified, where required), as applicable, of the
Required Documents if a Dry Mortgage Loan and, after the making of a Wet
Mortgage Loan, the Seller will provide the Buyer with the originals or copies
(certified, where required), as applicable, of the Required Documents within
the Wet Mortgage Loan Period, and, if requested by the Buyer in accordance with
Section 5, the Additional Required Documents, relating to such Mortgage
Loan.


 


P.             The Seller, if requested by the
Buyer, additionally has provided the Buyer with copies of all relevant credit
and other underwriting information currently in the possession of the Seller
that was used by the Seller as a basis for its decision to make such Mortgage
Loan to the Obligor(s) and all such information is accurate and complete
in all material respects.


 


Q.            To the extent required under
applicable law, the Seller has taken (and/or will take, and or will continue to
take) whatever additional actions may be necessary and proper to obtain,
perfect, protect and maintain a valid and enforceable lien on and security
interest in the collateral securing such Mortgage Loan.


 


R.            The Seller is not insolvent and will
not be rendered insolvent immediately prior to and after the purchase of a
Participation Interest in the Participated Mortgage Loans and has adequate
capital to conduct its business as presently conducted and as contemplated by
this Agreement.


 


S.             The Seller is not entering into the
transactions contemplated hereby with the intent of hindering, delaying or
defrauding its creditors and the transactions contemplated hereby do not
constitute a fraudulent, preferential, or voidable conveyance.


 


T.            If the Seller is a member of MERS,
the Seller is in good standing and will comply in all material respects with
the rules and procedures of MERS in connection with the servicing of any
such Mortgage Loan that is registered with MERS for as long as such Mortgage
Loan remains registered therewith.  If
the Seller is a member of MERS, the Seller has complied with all rules and
procedures of MERS in connection with registering the Buyer as the beneficial
owner of such applicable Mortgage Loan on the MERS system.


 


U.            No such Mortgage Loan is a “commercial
mortgage loan” within the meaning of Section 101(47)(B), Title 11 of the
United States Code.


 


V.            The Seller has valid business
reasons for the sale and assignment of the Participation Interests to the Buyer
rather than the Seller obtaining a secured loan with the Participated Mortgage
Loans as collateral.


 


W.           The transactions contemplated by this
Agreement are in the ordinary course of business of the Seller.


 


X.            The transfer of the Participation
Interests by the Seller to the Buyer was not made in consideration of any
pre-existing debt or obligation.


 


Y.            The Seller is not, and never has
been, an insider or affiliate  (as such
terms are defined in Regulation C of the Securities Act of 1933, as amended
(the “Securities Act”)) of the Buyer.


 


Z.            The Seller is an entity that would
in an insolvency proceeding be subject to the Bankruptcy Code, as amended (the “Bankruptcy Code”).


 


12














 


11.          Representations and Warranties by the Buyer.  The Buyer represents and warrants to the
Seller:


 


A.            The Buyer is a national banking
association, which is domiciled and has its headquarters in the State of
Alabama, and is validly existing in good standing under applicable federal laws
and has all licenses necessary to carry on its business as now being conducted
and, if required by applicable law, is licensed, qualified and in good standing
in each state where it conducts business.


 


B.            The Buyer has full power and
authority to execute, deliver and perform this Agreement, including authority
to purchase the Participation Interest(s) in the Mortgage Loans hereunder.


 


C.            All necessary corporate, regulatory
or other similar action has been taken to authorize and empower the Buyer, and
the officers or representatives acting on its behalf, to execute, deliver and
perform this Agreement.


 


D.            The execution and delivery of this
Agreement by the Buyer and the performance of or compliance with the terms and
conditions hereof by the Buyer do not or will not conflict with or result in,
as the case may be, a material breach of any of the terms and conditions or
provisions of the articles of incorporation or bylaws of the Buyer or any
provisions of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect to which the Buyer or its
properties or assets are subject.


 


E.             The execution and delivery of this
Agreement by the Buyer and the performance of or compliance with the terms and
conditions hereof by the Buyer do not or will not conflict with or result in,
as the case may be, a material breach of any of the terms, conditions or
provisions of or constitute a material default under any indenture, loan or
credit agreement or any other agreement, or instrument to which the Buyer is a
party or by which it or its properties or assets may be materially affected.


 


F.             Assuming due authorization,
execution and delivery by the Seller, this Agreement constitutes a legal, valid
and binding obligation of the Buyer enforceable against the Buyer according to
its terms and conditions set forth herein.


 


G.            No consent, approval, authorization
or order of any court or governmental agency or body is required for the
execution, delivery and performance by the Buyer of or compliance by the Buyer
with this Agreement, the purchase of the Participation Interest(s) in the
Participated Mortgage Loans by the Buyer or the consummation of the
transactions contemplated by this Agreement or, if required, such approval has
been obtained prior to the closing date.


 


H.            There is no action, suit, regulatory
or other proceeding of any kind pending or threatened against or materially
affecting the Buyer or the properties or assets of the Buyer before any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, which, if determined adversely to the
Buyer, would prohibit the Buyer from executing and delivering this Agreement
and performing its obligations hereunder.


 


I.              The Buyer is a sophisticated and
knowledgeable financial institution, both generally and with respect to
investments of this type, and is familiar with
the Seller and its business and has been given reasonable opportunity to make
inquiries of the Seller and to consider the suitability of the investment
hereunder.


 


J.             The Buyer is purchasing its
Participation Interest(s) hereunder for its own account and not with a
view to or in connection with any subdivision, resale or distribution thereof
in violation of the Securities Act or the terms of this Agreement, and can bear
the economic risk related to the purchase of same.


 


K.            The transactions contemplated by
this Agreement are in the ordinary course of business of the Buyer.


 


13

















 


L.             The Buyer has valid business
reasons for the sale and assignment of the Participation Interests to the Buyer
rather than the Seller obtaining a secured loan with the Participated Mortgage
Loans as collateral.


 


12.          Covenants of the Seller.   The Seller covenants and agrees with the
Buyer as follows:


 


A.            The Seller shall take all action
necessary or desirable to obtain, properly perfect, by recording or otherwise,
protect and maintain all collateral securing the Participated Mortgage Loans as
a first-priority lien (or in the case of an A Quality Second/HELOC Mortgage
Loan only, a second-priority lien) on the Property encumbered thereby.


 


B.            The Seller shall keep all collateral
security for the Participated Mortgage Loans insured against loss, damage,
theft and other risks customarily covered by insurance, and such other risks as
the Buyer may reasonably request, and the Seller shall ensure all insurance
premiums and applicable taxes related thereto are paid promptly when due.


 


C.            The Seller shall not knowingly use
or permit to be used any collateral security for the Participated Mortgage
Loans unlawfully or in violation of any provision of this Agreement or any
applicable law, rule or regulation or any policy of insurance covering such
collateral security.


 


D.            The Seller shall appear at and
defend, at the Seller’s cost and expense, any action or proceeding that may
affect its title to or the Buyer’s Participation Interest(s) in the
Participated Mortgage Loans, including, but not limited to, efforts to
recharacterize the sale of a Participation Interest hereunder as a loan.


 


E.             The Seller shall keep accurate and
complete records of the Participated Mortgage Loans which shall clearly indicate that a Participation Interest in the Participated
Mortgage Loans has been sold to the Buyer and shall provide the Buyer
with such records and such reports and information relating to such
Participated Mortgage Loans as the Buyer may reasonably request from time to
time.


 


F.             The Seller shall deliver to the
Buyer copies of all material documents and items received by the Seller
pursuant to or in connection with the Participated Mortgage Loans.


 


G.            The Seller shall immediately notify
the Buyer should the Seller learn or have any knowledge of the following with
respect to any Participated Mortgage Loan:


 


(i)            any
change in the financial condition of the Obligor(s), or of any co-maker,
guarantor or endorser under the Participated Mortgage Loan, which may have a
material adverse affect upon continuation of payments under the Participated
Mortgage Loan or the ultimate collectability thereof;


 


(ii)           any
material change in the value of collateral securing the Participated Mortgage
Loan;


 


(iii)          any
material change in lien status as affecting the collateral securing the
Participated Mortgage Loan;


 


(iv)          any
request by the Obligor(s), or any co-maker, guarantor or endorser under the
Participated Mortgage Loan, for any change in terms and conditions of the
Participated Mortgage Loan, or in the terms of any note or notes evidencing the
Participated Mortgage Loan, or in any mortgage or security agreement or
instrument securing the Participated Mortgage Loan;


 


(v)           any
request by the Obligor(s), or by any co-maker, guarantor or surety under the
Participated Mortgage Loan, for release, substitution or exchange of any
collateral securing the Participated Mortgage Loan;


 


14

















 


(vi)          any
request by the Obligor(s), or by any co-maker, guarantor or endorser under the
Participated Mortgage Loan for the release of any personal obligation of any
such party under the Participated Mortgage Loan;


 


(vii)         any
failure by the Obligor(s) to pay principal and/or interest payments under
the Participated Mortgage Loan when due (considering applicable grace periods,
if any);


 


(viii)        any
failure to carry hazard and flood insurance to keep the Property fully insured
and/or to pay taxes or assessments timely; and


 


(ix)          the
occurrence of any other event which would constitute an event of default under
the Participated Mortgage Loan or under any collateral security for the
Participated Mortgage Loan.


 


H.            Further, as long as the Buyer
continues to have a Participation Interest in any Participated Mortgage Loan and the Seller continues to act as servicing agent
on behalf of the Buyer with respect thereto, upon request, the Seller
agrees to provide the Buyer with current credit related and other information
concerning the Obligor(s), the Participated Mortgage Loan and the collateral
security for the Participated Mortgage Loan including, without limitation,
copies of:


 


(i)            current
financial statements of the Obligor(s), as well as of all co-makers, guarantors
and sureties under the Participated Mortgage Loan;


 


(ii)           any
other financial information submitted by the Obligor(s) to the Seller in
connection with the Participated Mortgage Loan;


 


(iii)          any
information and/or documents in possession of the Seller applicable to the
existence, value and lien status of the collateral securing the Participated
Mortgage Loan; and


 


(iv)          any
additional information and/or documents in the possession of the Seller bearing
upon the continuing credit worthiness of the Obligor(s).


 


I.              The Seller agrees that any setoff
funds and benefits realized in connection with the Participated Mortgage Loans against
the Obligor(s) shall be shared ratably (in accordance with the Buyer’s
Percentage) with the Buyer.


 


J.             If the Seller uses MERS in
connection with the registration or recordation of mortgages, the Seller shall
execute and deliver to the Buyer, upon the Buyer’s request, an Electronic
Tracking Agreement in form and substance satisfactory to the Buyer.


 


K.            The Seller shall comply to the
fullest extent with all of its obligations hereunder.


 


13.          Securitization Transaction.  EACH OF THE SELLER AND BUYER AGREES THAT,
WITH RESPECT TO THE POOLING OF THE PARTICIPATED MORTGAGE LOANS AND ANY
PARTICIPATION INTEREST IN THE PARTICIPATED MORTGAGE LOANS SOLD PURSUANT TO THIS
AGREEMENT, SUCH POOLING AND SALE SHALL BE DEEMED TO CONSTITUTE A “SECURITIZATION
TRANSACTION” AS DEFINED IN THE ALABAMA ASSET-BACKED SECURITIES FACILITATION
ACT, ALA. CODE 35-10A-1 ET. SEQ. IN ADDITION, EACH OF THE SELLER AND BUYER
AGREES THAT ANY SALE OF A PARTICIPATION INTEREST IN ANY PARTICIPATED MORTGAGE
LOAN PURSUANT TO THIS AGREEMENT BY THE SELLER SHALL BE SUBJECT TO THE
PROVISIONS OF THE ALABAMA ASSET-BACKED SECURITIES FACILITATION ACT, ALA. CODE
35-10A-1 ET. SEQ., ALL OF WHICH ARE SPECIFICALLY INCORPORATED HEREIN AND MADE A
PART HERETO BY THIS REFERENCE.


 


15

















 


14.          Sale of Participated Mortgage Loans.


 


A.            Upon written request of the Seller,
the Buyer, in its sole discretion, may release to the Seller documentation
related to the Participated Mortgage Loans against a trust receipt executed by
the Seller in form acceptable to the Buyer. 
The Seller hereby represents and warrants to the Buyer that any request
by the Seller for release of the Participated Mortgage Loans pursuant to this
subsection A shall be solely for the purposes of correcting clerical or other
non-substantive documentation problems in preparation for the ultimate sale or
exchange of such Participated Mortgage Loans.


 


B.            The Buyer shall release
documentation related to the Participated Mortgage Loans to end investors or
other purchasers for purchase.  Any
transmittal of documentation for the Participated Mortgage Loans in the
possession of the Buyer in connection with the sale thereof to an end investor
or other purchaser shall be under cover of a bailment letter in form acceptable
to the Buyer, except in connection with the sale thereof to Fannie Mae, Freddie
Mac or Ginnie Mae, in which case transmittal of such documentation shall be
accompanied by such other forms, duly executed, if necessary, by the Seller in
lieu of the foregoing that Fannie Mae, Freddie Mac or Ginnie Mae may
require.  In each case of transmittal of
documentation related to the Participated Mortgage Loans pursuant to this
subsection B, the recipient thereof shall be required to return such
documentation to the Buyer if such Participated Mortgage Loans are not
purchased and the proceeds therefor paid in accordance with subsection C below
within forty-five (45) days after such recipient’s receipt of such
documentation or, if earlier, the expiration of the applicable end investor
commitment.  In such case, the Buyer
shall promptly send a “bailee violation letter” to such investor or other
purchaser and, if the documentation is then not promptly returned to the Buyer
or the purchase and payment of such Participated Mortgage Loans is then not
promptly completed, the Seller, if required by the Buyer, shall immediately be
obligated to repurchase such Participated Mortgage Loan in accordance with Section 17
hereof.


 


C.            All proceeds or other amounts
payable on account of the sale of the Participated Mortgage Loans shall be paid
directly by the investor or other purchaser (and the Seller shall so notify
each investor and/or purchaser, as applicable, of this requirement) by wire
transfer to such account maintained with the Buyer as may be designated by the
Buyer for such purpose, pursuant to the Buyer’s wire transfer instructions
provided by the Buyer  to the Seller, accompanied
by a copy of the investor’s or other purchaser’s, as applicable, written
purchase advice.  Such wire, among other
things, shall specify the Obligor’s(s’) name(s) and the loan number(s) for
the applicable Participated Mortgage Loan(s). 
Unless such wire is received by the Buyer on or prior to 1:00 p.m.
(Montgomery time) on the date of closing of the sale of such Participated
Mortgage Loan(s), for purposes of calculation and payment of the amounts due
the Buyer on its Participation Interest, the proceeds of such sale shall be
deemed to have been received by the Buyer on the next succeeding Business Day.  All such proceeds or other amounts payable on
account of the sale of Participated Mortgage Loans by the Seller shall be
applied in the manner set forth in Section 15 hereof.


 


15.          Application of Payments.  All principal and interest payments and other
collections under any Participated Mortgage Loan hereunder and, except as
provided in Section 16C hereof, all proceeds or other amounts payable on
account of the sale or other disposition of such Participated Mortgage Loan, in
each case, net of servicing fees and additional servicing compensation due to
the Seller which shall be retained by the Seller, shall be applied pro rata in
accordance with the Participation Interests owned by each party.


 


16.          Default Under Participated Mortgage Loan;
Administration After Default.


 


A.            Upon the occurrence of any default
under any Participated Mortgage Loan, the Seller shall give prompt notice
thereof to the Buyer and, time permitting (i.e., absent the risk of imminent
loss or diminution in value of the collateral securing the Participated
Mortgage Loan), shall consult with the Buyer to determine a mutually acceptable
course of action with respect to such default, and then, shall promptly and
diligently pursue such course of action; provided, however,
unless the Buyer otherwise agrees, in no event shall the Seller file suit to
foreclose the collateral security for such Participated Mortgage Loan or accept
a deed in lieu of foreclosure or other transfer of title to the Property securing
such Participated Mortgage Loan or, following any such foreclosure or
acceptance of a deed in lieu of foreclosure or other transfer of title to said
Property which has been agreed to by the Buyer, sell, lease or otherwise
dispose of such Property or other collateral without, in each instance, giving
the Buyer at least thirty (30) days’ prior written notice of its intention to
do so.


 


16

















 


B.            In the event that time does not so
permit, then, for the benefit of each party, the Seller shall exercise the
rights, powers, privileges, remedies and interests, if any, that reasonably may
be exercised or otherwise enforced under the circumstances in a manner
consistent with and otherwise permissible under the documents and instruments
evidencing, securing or otherwise relating to such Participated Mortgage Loan,
with the Seller determining in good faith and in accordance with prudent and
customary market practice the specific actions to take or omit to take from
time to time, subject, however, to the limitations placed on
certain actions of the Seller by Section 8C hereof and Section 9
hereof and, further, to the provisions of Section 18 hereof.  In the event that time does so permit and the
Buyer and the Seller cannot mutually agree upon what course of action to take,
then the Buyer’s decision shall control.


 


C.            All proceeds or other amounts
realized from any sale or other disposition of any of the Property securing a
Participated Mortgage Loan shall be applied first, to the repayment of
the Participated Mortgage Loan in the manner set forth in Section 15
hereof; second, to the reimbursement of any reasonable costs and
expenses of collection (including reasonable attorneys’ fees and costs); third,
if legally permitted pursuant to the terms of the collateral security
documents, to the repayment of any other amounts then due and owing by the
Obligor(s) to the Seller or the Buyer; and fourth, if any such
proceeds are remaining after application in the manner set forth in clauses first,
second and third above, to the applicable Obligor(s).  In the event any of the Property securing a
Participated Mortgage Loan is acquired through foreclosure, deed in lieu of
foreclosure or otherwise, the Seller and the Buyer each shall have an undivided
interest in the Property so acquired pursuant to their proportionate interest
in such Participated Mortgage Loan.


 


D.            Unless otherwise reimbursed to the
Seller in accordance with the provisions of subsection C of this Section 16,
the Buyer shall pay its pro rata part, based on the Buyer’s Percentage, of all
reasonable attorneys’ fees and other expenses incurred by the Seller in
connection with the enforcement of the obligations of the Obligor(s) under
any Participated Mortgage Loan, and the Buyer shall be entitled to such pro
rata part of any payments subsequently received by the Seller with respect to
such fees and expenses.


 


E.             In the event Seller ceases to
service the Participated Mortgage Loans, its administrative and servicing rights
under this Section 16 shall terminate.


 


17.          Repurchase of Participation Interest(s) by
the Seller.


 


A.            The Seller shall repurchase the
Buyer’s Participation Interest in any Participated Mortgage Loan at the
Repurchase Price (as hereinafter defined) within five (5) Business Days of
the Seller’s receipt of the Buyer’s notice to repurchase such Participation
Interest, which notice may be given by the Buyer to the Seller upon the
occurrence of any of the following (each, a “Repurchase
Event”): (i) if such Participated Mortgage Loan does not
meet all of the requirements set forth in Section 4 hereof applicable to
the Type of such Mortgage Loan (including, but not limited to, the requirements
set forth in Exhibit C hereof) at the time of sale by the Seller to
the Buyer under this Agreement of a Participation Interest therein; (ii) if
such Participated Mortgage Loan proves to be counterfeit, fraudulent, forged,
fictitious, nonexistent or pledged or assigned by the Seller to any third
party; (iii) if there is any material misrepresentation or fraudulent
conduct by the Seller or its servants, agents or employees, whether of
commission or omission, arising out of the making of such Participated Mortgage
Loan or the sale of any Participation Interest therein to the Buyer; or (iv) if
the Seller breaches any representation or warranty set forth in Section 10
applicable to such Participated Mortgage Loan or fails to comply with any
covenant applicable to such Participated Mortgage Loan set forth in Section 12.  In the event that the Obligor(s) default(s) in
the first payment due and payable under any Participated Mortgage Loan
following the date of sale by the Seller to the Buyer under this Agreement of a
Participation Interest therein, it shall be presumed that a Repurchase Event
has occurred and the Seller shall repurchase the Buyer’s Participation Interest
in such Participated Mortgage Loan as set forth above; provided, however,
if within thirty (30) days following the repurchase of the Buyer’s
Participation Interest in such Participated Mortgage Loan, the Seller provides
written information to the Buyer that demonstrates to the Buyer’s reasonable
satisfaction such first payment default by the Obligor(s) did not result
from a Repurchase Event, then the Buyer shall promptly purchase from the
Seller, in accordance with Section 2 hereof, the Buyer’s Percentage of
such Participated Mortgage Loan previously owned by the Buyer. Notwithstanding
anything herein to the contrary, it shall not be a Repurchase Event if the
failure to meet all of the requirements set forth in Section 4 hereof is
due to Obligor defaults or the credit risk of the Participated Mortgage Loan
resulting from events that occur after the Buyer 


 


17

















 


purchases the
Participation Interest in the Participated Mortgage Loan, including, but not
limited to, the death of the Obligor, the diminution of the Obligor’s financial
condition and the diminution of the value of the Collateral.


 


B.            Each repurchase of such
Participation Interest by the Seller upon a Repurchase Event shall be
accomplished by the Seller’s payment to the Buyer of the full amount of the
Repurchase Price.  Such repurchase shall
be without recourse and without any representation or warranty on part of the
Buyer as the re-seller, except that the Buyer shall represent and warrant to
the Seller that the Buyer is reconveying such Participation Interest free and
clear of liens and encumbrances.  The
term “Repurchase Price”
shall mean with respect to any such Participation Interest (i) one hundred
percent (100%) of the amount paid by the Buyer for such Participation Interest
less any payments received by the Buyer (or held in the escrow account for the
Buyer) in reduction of the purchase price paid for such Participation Interest,
plus (ii) any accrued and unpaid
interest at the Reference Rate less interest advanced by the Seller to the date
of the repurchase, plus (iii) any
reasonable fees and expenses charged by third parties relating to the
reassignment or redelivery of the Participated Mortgage Loan, including reasonable
attorneys’ fees and costs.


 


C.            Upon any repurchase by the Seller of
the Buyer’s Participation Interest in a Participated Mortgage Loan hereunder,
the Buyer shall reassign, deliver and transfer to the Seller, the interest of
the Buyer in such Participated Mortgage Loan which, except as otherwise set
forth in subsection B above of this Section 17, shall be without recourse
and without representation or warranty of any kind, by delivering to the
Seller, (a) all of the documents and instruments evidencing, securing or
otherwise relating to such Participated Mortgage Loan which are in the
possession of the Buyer; and (b) the original Participation Certificate
and/or other evidence that the Participation Certificate has been repurchased
by the Seller so as to vest the Seller with one hundred percent (100%) of the
interests in and to the reassigned Participated Mortgage Loan.  The Buyer shall execute such other documents
and instruments as may reasonably be necessary to accomplish such repurchase by
the Seller.


 


D.            In order to secure the prompt
payment and performance by the Seller of each of its obligations under this
Agreement, including the prompt payment in full of each Repurchase Price as and
when due hereunder and the Seller’s obligations under Section 18A hereof
and Section 18B hereof, the Seller hereby pledges, assigns and delivers to
the Buyer, and grants to the Buyer a security interest in, all of the Seller’s
right, title and interest in (i) each Participated Mortgage Loan,
including, without limitation, the indebtedness, all collections received or
receivable from the Mortgage Loan(s) and all escrow and reserve accounts
and funds held on deposit therein, promissory note or notes, collateral
security, the end investor commitment and all other documents and instruments
evidencing, securing or otherwise related to each such Participated Mortgage
Loan, together with all of the rights, privileges and remedies applicable
thereto, (ii) its right to service such Participated Mortgage Loans
hereunder (including, without limitation, pursuant to Section 8), (iii) each
account referred to in Section 8A hereof or Section 14C hereof and
the funds therein, and (iv) all proceeds of each of the foregoing
(collectively, the “Collateral”).


 


E.             In the event that the Seller fails
to pay the Repurchase Price as and when due hereunder under Section 17A
above in respect of any Participated Mortgage Loan, or if the Seller fails to
assign its interests in the Participated Mortgage Loans under Section 18A
below or take the actions required in connection therewith under Section 18B
below, or in the event that any proceeding under Title 11 of the United States
Code, either voluntary or involuntary, is commenced by or against the Seller,
then, in any such case, the Buyer shall have the right from time to time and at
any time, in the Buyer’s sole and absolute discretion, to do any of the
following:


 


(i)            exercise,
with respect to the Collateral, any and all of the rights and remedies of a
secured party under the Uniform Commercial Code in effect in any applicable
jurisdiction, including, without limitation, the right to sell, liquidate or
otherwise dispose of any or all of the Collateral by public or private
proceedings at such time and place, by such methods, in such manner and on such
terms as the Buyer shall elect subject to applicable law, without recourse to
judicial proceedings, and without right of demand, appraisement or redemption,
all of which are expressly waived by the Seller;


 


(ii)           exercise
any and all of its other rights and remedies under this Agreement;


 


(iii)          declare
all payment and performance obligations of the Seller hereunder, including its
obligations under Section 18A and 18B 
below, to be accelerated;


 


18

















 


(iv)         declare
this Agreement to be terminated as to all or some of the Participated Mortgage
Loans; and


 


(v)          take
such other actions or proceedings at law or in equity as the Buyer deems
necessary or advisable to collect or enforce or to protect its interest in the
Collateral.


 


The Buyer may
exercise such options individually, sequentially or in concert, all such
remedies being cumulative, the exercise of one not being deemed a waiver of any
of the others. No delay or omission by the Buyer in exercising any right hereunder
shall operate as a waiver of such right or of any right under this Agreement.


 


F.             With respect to the Collateral, the
Seller shall be liable for, and shall pay on demand, all reasonable expenses of
retaking, holding, preparing for sale, sale, or the like, and all reasonable
attorneys’ fees and other expenses incurred by the Buyer in connection with the
collection of the obligations secured hereunder and the enforcement of the
Buyer’s rights under this Agreement, the payment of all of which expenses and fees
shall constitute additional obligations secured by this Agreement. The Seller
will execute and deliver, or cause to be executed and delivered, such
instruments, documents, assignments, waivers, certificates and affidavits and
supply or cause to be supplied such further information and take such action as
the Buyer shall reasonably require in connection with such sale.


 


G.            The Seller acknowledges and agrees
that the Participated Mortgage Loans constituting the Collateral may decline
speedily in value and are of a type customarily sold on a recognized market,
and, accordingly, the Seller is not entitled to prior notice of any sale of
such Collateral by the Buyer, except any notice that is required under
applicable law and cannot be waived.  If
and to the extent such notice is required under applicable law, the Seller
hereby agrees that five (5) calendar days’ prior notice of any sale of
Collateral shall constitute reasonable notice. 
The Buyer shall have the right to liquidate and sell any of the
Collateral pledged hereunder, subject to the conditions and limitations
contained herein. The Buyer will not be obligated to make any sale of such
Collateral if it shall determine not to do so, regardless of the fact that
notice of the sale may have been given. The Buyer may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the sale was so adjourned.


 


H.            The Seller recognizes that the Buyer
may be unable to effect a public sale of any or all of the Collateral for
reasons which may include certain prohibitions contained in the Securities Act
and applicable state securities law, but may be compelled to resort to one or
more private sales thereof to a restricted group of purchasers who will be
obliged to agree, among other things, to acquire such assets for their own
account for investment and not with a view to the redistribution or resale
thereof. The Seller acknowledges and agrees that any such private sale may
result in prices and other terms less favorable to the Buyer than if such sale
were a public sale and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially reasonable
manner. The Buyer shall be under no obligation to delay a sale of any of the
Collateral for the period of time necessary to permit the Seller to register
such assets for public sale under the Securities Act or under applicable state
securities laws, even if the Seller were to agree to do so.


 


18.          Purchase by the Buyer of the Seller’s Retained
Interest in Participated Mortgage Loans.


 


A.            Notwithstanding any other provisions
of this Agreement, the Buyer shall have the absolute and unconditional right,
but shall be under no duty or obligation, to purchase at any time the retained
interest of the Seller hereunder in any Participated Mortgage Loan, exercisable
upon written notice to the Seller and effective upon payment to the Seller of
its pro rata part of such Participated Mortgage Loan, following which, the
Seller shall have no further rights or interests in respect of said
Participated Mortgage Loan, including no further rights to service such
Participated Mortgage Loan unless the Buyer engages the Seller to continue
acting as the Buyer’s servicing agent pursuant to Section 18C below.  In such case, the Seller shall assign the
Participated Mortgage Loan and each and all of the documents and instruments
evidencing, securing or otherwise relating to such Participated Mortgage Loan
to the Buyer, without recourse, unless any of the matters set forth in clauses (i) through
(iv), inclusive, of subsection A of Section 17 hereof has occurred, in
which case, the Seller shall indemnify the Buyer and hold the Buyer harmless
from and against any actual loss or expense suffered or incurred by the Buyer
resulting therefrom, and without representation or warranty, except that the
Seller shall represent and warrant 


 


19

















 


to the Buyer each of the
matters set forth in Section 10 hereof, and further, shall represent and
warrant to the Buyer the amount due on the Participated Mortgage Loan and that
the Seller has not previously sold, assigned or encumbered its pro rata
interest in such Participated Mortgage Loan.


 


B.            Upon any purchase by the Buyer of
the Seller’s retained interest in a Participated Mortgage Loan hereunder, the
Seller shall endorse over, assign, deliver and transfer to the Buyer the
interests of the Seller in such Participated Mortgage Loan which, except as
otherwise set forth in subsection A above of this Section 18, shall be
without recourse and without representation or warranty of any kind, by
delivering to the Buyer, (a) each and all of the documents and instruments
evidencing, securing or otherwise relating to such Participated Mortgage Loan
with appropriate completed endorsements so as to vest the Buyer with one
hundred percent (100%) of the interests in and title to the assigned
Participated Mortgage Loan; and (b) the entire Mortgage Loan file
(including, without limitation, the Additional Required Documents) relating to
the Participated Mortgage Loan and in the possession, or coming into the
possession, of the Seller.  The Buyer
shall execute such other documents and instruments as may reasonably be
necessary to accomplish the foregoing purchase by the Buyer.


 


C.            Upon any purchase by the Buyer of
the Seller’s retained interest in a Participated Mortgage Loan hereunder, the
Buyer may engage the Seller to continue to act thereafter as the Buyer’s
servicing agent in connection with the Participated Mortgage Loans and the
parties may enter into a separate servicing agreement consistent with subsection
A of Section 8 hereof, in form and substance that is mutually acceptable,
setting forth the servicing requirements and the servicing fee to be charged by
the Seller in connection therewith.


 


19.          Retention of Counsel.  In the event of actual or threatened
litigation affecting any Participated Mortgage Loan hereunder or the collateral
security for the Participated Mortgage Loan with respect to which litigation
the Buyer is of the opinion that the services of an attorney should be retained
for the protection of the interest of the Buyer, the Buyer may, following five (5) Business
Days prior written notice to the Seller, employ counsel to represent the Seller
and the Buyer with respect to such Participated Mortgage Loan.


 


20.          Dispute Resolution.  Any party may give the other party written
notice of any dispute that arises under this Agreement and is not resolved in
the normal course of business.  Within
fifteen (15) days after delivery of the notice, the receiving party shall
submit to the other a written response. 
The notice and the response shall include (i) a statement of each
party’s position and a summary of arguments supporting that position, and (ii) the
name and title of the executive who will represent that party, as well as the
name of any other Person who will accompany that executive.  Within thirty (30) days after delivery of the
disputing party’s notice, the executives of both parties shall meet at a
mutually acceptable time and place, and thereafter as often as they reasonably
deem necessary to attempt to resolve the dispute.  Consideration shall be given to all
reasonable requests for information made by one party to the other.


 


21.          Arbitration.  Any dispute arising out of or relating to
this Agreement or the breach, termination or validity hereof that has not been
resolved in the manner set forth in Section 20 hereof within ninety (90)
days of the giving of notice as set forth in Section 20 hereof, shall be
determined by binding arbitration administered by the American Arbitration
Association (“AAA”) in accordance with the
Commercial Arbitration Rules of the AAA. 
Any arbitration shall be conducted in Montgomery, Alabama pursuant to
the laws of the State of Alabama.  The
parties request that the AAA exercise its best efforts to select arbitrators
with a basic understanding of the mortgage lending industry.  Any award of the arbitrators shall be
accompanied by a statement of the reasons upon which such award is based, a
determination of the prevailing party and an award of reasonable attorney’s fees
and costs to the prevailing party.  Each
side shall equally divide and shall be equally responsible for the costs of
arbitration.  Any award in arbitration is
deemed binding upon the parties unless appealed within thirty (30) days to any
court of competent jurisdiction by filing a complaint disputing the arbitration
award.


 


22.          Miscellaneous.


 


A.            Governing Law.  This Agreement, and the sale of any
Participation Interests in the Participated Mortgage Loans hereunder, shall be
governed by and construed under the laws of the State of Alabama, including the
Asset-Backed Securities Facilitation Act, 
Ala. Code 35-10A et. seq., without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.


 


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B.            Binding Effect.  This Agreement shall be binding upon the
parties hereto, as well as their respective legal representatives, successors
and assigns.


 


C.            Notices.  All notices under this Agreement shall be in
writing and mailed (and faxed ) to the respective parties at the following
addresses:


 


	
  As to the Seller:

  	
   

  	
  Sirva
  Mortgage, Inc.

  
	
   

  	
   

  	
  6070 Parkland
  Boulevard

  
	
   

  	
   

  	
  Mayfield
  Heights, Ohio 44124

  
	
   

  	
   

  	
  Attention:

  	
  David Drozin

  
	
   

  	
   

  	
   

  	
  Controller

  
	
   

  	
   

  	
  Facsimile:

  	
  440/646-1835

  
	
   

  	
   

  	
   

  
	
  As to the Buyer:

  	
   

  	
  Colonial Bank,
  N.A.

  
	
   

  	
   

  	
  One Commerce
  Street

  
	
   

  	
   

  	
  Montgomery,
  Alabama 36104

  
	
   

  	
   

  	
  Attention:

  	
  Mary Lou Bathen

  
	
   

  	
   

  	
   

  	
  Senior Vice
  President/Assistant Treasurer

  
	
  Facsimile:

  	
   

  	
   

  	
  334/240-5295

  
	
   

  	
   

  	
   

  
	
  With a
  copy to:

  	
   

  	
  Colonial Bank, N.A.

  
	
   

  	
   

  	
  201 East Pine Street

  
	
   

  	
   

  	
  Orlando, Florida 32801

  
	
   

  	
   

  	
  Attention:

  	
  Catherine L.
  Kissick

  
	
   

  	
   

  	
   

  	
  Senior Vice
  President

  
	
   

  	
   

  	
  Facsimile:

  	
  407/835-6690

  



 


D.            Purchase of Additional
Participation Interests. The Seller, at its option, may offer to sell
Participation Interest(s) in additional Mortgage Loans to the Buyer from
time to time, and shall supply the Buyer with any information requested with
respect to those interests.  The Buyer
may (but shall not be obligated to) purchase any such additional Participation
Interest(s) upon the terms and conditions set forth in this Agreement and
in the related Participation Certificate negotiated by the parties.  If the parties come to an agreement on the
purchase and sale of such additional Participation Interest(s), a Participation
Certificate in the form attached as Exhibit A shall be
appropriately and completely filled out by the Seller, executed by both parties
and delivered to the Buyer.  The Buyer
shall thereupon remit payment for its Participation Interest in the principal
amount of the Mortgage Loans as shown by such Participation Certificate.


 


E.             Interpretation of Agreement.  The parties hereto reconfirm that each
transaction contemplated by this Agreement is intended to be and shall be
construed as a sale of payment intangibles (as that term is defined in Revised Article 9
of the Uniform Commercial Code). For all purposes this Agreement and the
transactions conducted pursuant to this Agreement shall be interpreted and
governed in accordance with such intent. 
However, out of an abundance of caution, in case any such transaction
were for any reason determined by a court of law as being a loan instead of a
sale, then the Seller hereby grants to the Buyer as of the date hereof a first
priority perfected security interest in the applicable Participated Mortgage
Loan(s), all escrow and reserve accounts and funds held on deposit therein, Trust
Funds and any other funds collected pursuant to this Agreement, and this
Agreement shall constitute a security agreement under applicable law.  THE SELLER HEREBY AUTHORIZES THE BUYER TO
FILE FROM TIME TO TIME IN ALL APPROPRIATE JURISDICTIONS ANY AND ALL
PRECAUTIONARY UCC-1 FINANCING STATEMENTS AND/OR UCC-3 AMENDMENTS DEEMED NECESSARY
OR DESIRABLE BY THE BUYER TO REFERENCE THE SALE OF THE PARTICIPATION INTEREST
AND OTHER TRANSACTION(S) CONTEMPLATED HEREUNDER AND TO PERFECT, IF
REQUIRED, THE INTEREST OF THE BUYER IN THE PARTICIPATED MORTGAGE LOANS. This Agreement is intended by the parties to be a “securities
contract” within the meaning of Section 101(7), Title 11 of the United
States Code.


 


21

















 


F.             Survival of Representations and
Warranties.  Each of the
representations, warranties, covenants and agreements of the Seller and the
Buyer contained in this Agreement shall be absolute and unconditional, shall
survive the execution and delivery hereof, and shall remain and continue in
full force and effect until all Participation Interest(s) of the Buyer in
all Participated Mortgage Loans have been repurchased by the Seller or
otherwise paid in full to the Buyer.


 


G.            Indemnity.  In addition to any repurchase obligations the
Seller may have as set forth herein, the Seller hereby agrees, on demand, to
defend, indemnify, and hold harmless the Buyer and its affiliates, and their
respective employees, agents and representatives, from and against any all
harm, liabilities, judgments, damages, claims, demands, costs, expenses
(including reasonable legal fees and expenses) or losses (each, a “Claim”) suffered or incurred by
reason of: (i) any representation or warranty made by the Seller in this
Agreement having been untrue, incorrect, false or misleading in any material
respect when made or deemed made or the breach or alleged breach by the Seller
of any covenant or agreement made by it herein (whether or not the Seller had
knowledge (a) that such representation or warranty was untrue, incorrect,
false or misleading or (b) of the facts or circumstances giving rise to
such breach or alleged breach), or (ii) any fraudulent conduct by the
Seller or its servants, agents or employees, whether of commission or omission,
arising out of the servicing or administration of the Participated Mortgage
Loans.


 


H.            Consent To Jurisdiction; Venue.  ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT SHALL BE BROUGHT IN THE FEDERAL COURTS LOCATED IN THE MIDDLE
DISTRICT OF ALABAMA AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE SELLER
AND THE BUYER EACH CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO BE
SUBJECT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.  THE SELLER AND THE BUYER EACH IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE DETERMINATION OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN
RESPECT OF THIS AGREEMENT.  FURTHER, THE
SELLER AND THE BUYER EACH WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ALABAMA
LAW (OTHER THAN BY PUBLICATION).


 


I.              Waiver of Jury Trial.  THE SELLER AND THE BUYER EACH WAIVES ITS
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT, RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR
OTHERWISE.  WITHOUT LIMITING THE
FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY
JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM
OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY
OR ENFORCEABILITY OF THIS AGREEMENT. 
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.


 


J.            Assignability. The Seller may
not assign any of its rights or delegate any of its obligations under this
Agreement without the prior written consent of the Buyer.  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
(including, without limitation, Participation Interests in specific Mortgage
Loans) to any other Person, including, without limitation, affiliates of the
Buyer (each, an “Assignee”),
without notice to or consent by the Seller or any other Person. The Seller
hereby agrees 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, conveyance or delegation, the same rights
and benefits as it would have if it were the Buyer under this Agreement, unless
otherwise provided therein; provided, that
the Seller shall have no duty to recognize the Assignee absent receipt by it of
notice of such sale, assignment, transfer, pledge, conveyance or delegation.
The Seller authorizes the Buyer to disclose to any Assignee and to any
prospective Assignee, any and all information in the Buyer’s possession
concerning the Seller, the Participation Interests or the Mortgage Loans.


 


22

















 


K.            Effect of Article and Section Headings.  The Article and Section headings
herein are for convenience only and shall not affect the construction of this
Agreement.


 


L.             Counterparts.  This Agreement may be executed in counterparts,
each of which shall be an original and all of which shall constitute but one
and the same agreement.


 


M.           Document Contains Entire Agreement.  This document, together with each
Participation Certificate issued hereunder, contains the entire agreement
between the parties hereto and supersedes all other negotiations,
understandings and representations (if any) made by and between such parties
with respect to the subject matter hereof, and cannot be modified in any
respect except by mutual agreement in writing.


 


N.            Reform.  Should any provision of this Agreement be
deemed invalid or unenforceable as contrary to applicable law, the parties
hereto agree that such provision shall automatically be deemed to be reformed
as to be consistent with applicable law.


 


O.            Amendments. 
The provisions of this Agreement may not be amended, supplemented,
waived or changed, other than by a writing signed by both of the parties
hereto; provided, however, that the purchase price for the Buyer’s
Percentage shall not be amended or changed.


 


P.             Seller Default. 
Upon a default of the Seller of any provisions hereunder, the Seller
shall consent to a court order directing that all future payments on account of
the Participated Mortgage Loans by Obligors be made to a new collection account
designated and held by the Buyer.


 


Q.            Waiver of Automatic Stay. The Seller and the Buyer
hereby acknowledge and agree that this Agreement is intended to constitute a “securities
contract” within the meaning of the Bankruptcy Code, and therefore the Buyer’s
contractual right to liquidate, terminate or accelerate this Agreement because
of a condition of the kind specified in Bankruptcy Code § 365(e)(1) may
not be stayed, avoided, or otherwise limited by operation of the Bankruptcy
Code.  If, notwithstanding the foregoing,
the Buyer’s enforcement of any right or remedy is stayed by operation of the
Bankruptcy Code, the Seller hereby agrees, as further consideration to induce
the Buyer to enter into this Agreement, that, in the event a proceeding under Title
11 of the United States Code, either voluntary or involuntary, is commenced by
or against the Seller, the Seller hereby consents to and agree that the Seller
will not oppose or object to any motion or other pleading by the Buyer seeking
relief from the automatic stay imposed by 11 U.S.C. § 362 to enforce any right
or remedy the Buyer has with respect to the Participation Interests and Trust
Funds, whether under this Agreement or otherwise.  In addition, the Seller
hereby consents to and agrees that the Seller will not oppose any motions filed
by the Buyer regarding possession, control or servicing of the Participation
Interests including, but not limited to, a motion by the Buyer seeking an order
(a) directing turnover and/or disbursement of Participation Interests and
Trust Funds to the Buyer, and (b) directing continued performance by the
Seller of the terms of this Agreement and any related servicing agreement.


 


[Signatures follow on next page]


 


23

















 


IN WITNESS WHEREOF, each
party has caused this Agreement to be executed on its behalf by its duly
authorized representative as of the day and year first above written.


 


	
  SELLER:

  	
  BUYER:

  
	
   

  	
   

  
	
  SIRVA MORTGAGE, INC.

  	
  COLONIAL BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/ Paul E. Klemme

  	
   

  	
  By: 

  	
  /s/ Amy J. Nunneley

  
	
  Name: Paul E. Klemme

  	
  Name: Amy J. Nunneley

  
	
  Title: President

  	
  Title: Senior Vice President

  
					



 


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