exv10w2






Exhibit 10.2




CUSTODY AGREEMENT




DATED AS OF NOVEMBER 12, 2008




BY AND BETWEEN




HOMEAMERICAN MORTGAGE CORPORATION

(THE “SELLER”)




AND




U.S. BANK NATIONAL ASSOCIATION

IN ITS CAPACITY AS AGENT AND REPRESENTATIVE OF CERTAIN BUYERS

(THE “CUSTODIAN”)





 









 








Table of Contents




	 	 	 	 	 	 	 
	1.	 	DEFINITIONS
	 	 	1	 
	 	 	1.1. General Definitions
	 	 	1	 
	 	 	1.2. Other Definitional Rules
	 	 	5	 
	 	 	 
	 	 	 	 
	2.	 	DELIVERY OF FILES TO THE CUSTODIAN
	 	 	5	 
	 	 	2.1. Reaffirmation of Agent’s Lien
	 	 	5	 
	 	 	2.2. Delivery
	 	 	6	 
	 	 	2.3. Follow-up by the Seller
	 	 	6	 
	 	 	2.4. Supplemental Papers
	 	 	7	 
	 	 	 
	 	 	 	 
	3.	 	CUSTODIAN’S RECEIPT, EXAMINATION AND PRIOR CERTIFICATION OF FILES
	 	 	7	 
	 	 	3.1. Custodian’s Examination of Basic Papers
	 	 	7	 
	 	 	3.2. When Wet Loans’ Basic Papers Are Submitted
	 	 	8	 
	 	 	3.3. Limited Scope of Examination of Supplemental Papers
	 	 	9	 
	 	 	3.4. Submission List Errors or Omissions
	 	 	9	 
	 	 	3.5. Custodian’s Exception Reports
	 	 	9	 
	 	 	3.6. Custodian’s Exception Report Loans Ordinarily Not Included in Purchase
Value Calculation
	 	 	9	 
	 	 	3.7. Correction of Exceptions
	 	 	10	 
	 	 	3.8. Possession of Files
	 	 	10	 
	 	 	3.9. Papers Previously Certified by the Custodian
	 	 	10	 
	 	 	 
	 	 	 	 
	4.	 	RELEASE OF FILES BY THE CUSTODIAN
	 	 	10	 
	 	 	4.1. Shipping Direction
	 	 	10	 
	 	 	4.2. Shipping Purchased Loans
	 	 	11	 
	 	 	4.3. Repurchases
	 	 	11	 
	 	 	4.4. Shipping Schedule
	 	 	12	 
	 	 	4.5. Minimum Face Amount of MBS
	 	 	12	 
	 	 	4.6. Shipment of Files
	 	 	12	 
	 	 	4.7. Payment of Proceeds of Whole Loans and MBS Sold
	 	 	12	 
	 	 	4.8. If U.S. Bank is Custodian for the Approved Investor
	 	 	12	 
	 	 	4.9. Custodian Not Responsible to Obtain Acknowledgement or Confirm Status
	 	 	12	 
	 	 	4.10. Shipment of Files or Loan Papers to the Seller
	 	 	13	 
	 	 	4.11. Release and Indemnification
	 	 	13	 
	 	 	 
	 	 	 	 
	5.	 	RIGHT OF INSPECTION BY BUYERS AND THE SELLER
	 	 	14	 
	 	 	 
	 	 	 	 
	6.	 	CUSTODIAN’S FEES
	 	 	14	 
	 	 	 
	 	 	 	 
	7.	 	TERMINATION OF AGREEMENT
	 	 	14	 
	 	 	 
	 	 	 	 
	8.	 	RESIGNATION OR REMOVAL OF CUSTODIAN
	 	 	15	 
	 	 	8.1. Qualifications of Custodian
	 	 	15	 
	 	 	8.2. Resignation of the Custodian or any Successor Custodian
	 	 	15	 






 









 






	 	 	 	 	 	 	 
	 	 	8.3. Removal of the Custodian or any Successor Custodian
	 	 	15	 
	 	 	8.4. Effective Date of Resignation or Removal
	 	 	16	 
	 	 	8.5. Successor
	 	 	16	 
	 	 	8.6. Merger of the Custodian or any Successor Custodian
	 	 	17	 
	 	 	 
	 	 	 	 
	9.	 	LIMITATION ON OBLIGATIONS OF AND RELIANCE BY CUSTODIAN; INSURANCE
	 	 	17	 
	 	 	 
	 	 	 	 
	10.	 	NOTICES
	 	 	17	 
	 	 	 
	 	 	 	 
	11.	 	NO ASSIGNMENT OR DELEGATION BY CUSTODIAN
	 	 	18	 
	 	 	 
	 	 	 	 
	12.	 	BUYERS’ ASSIGNMENTS AND PARTICIPATION
	 	 	18	 
	 	 	 
	 	 	 	 
	13.	 	CONFIDENTIALITY
	 	 	19	 
	 	 	13.1. Seller’s Information
	 	 	19	 
	 	 	13.2. Privacy of Customer Information
	 	 	19	 
	 	 	 
	 	 	 	 
	14.	 	CONTROLLING LAW AND VENUE
	 	 	19	 
	 	 	 
	 	 	 	 
	15.	 	AGREEMENT FOR THE EXCLUSIVE BENEFIT OF PARTIES
	 	 	20	 
	 	 	 
	 	 	 	 
	16.	 	WAIVER OF JURY TRIAL
	 	 	20	 
	 	 	 
	 	 	 	 
	17.	 	ENTIRE AGREEMENT
	 	 	20	 
	 	 	 
	 	 		 
	18.	 	EXHIBITS
	 	 	20	 
	 	 	 
	 	 	 	 
	19.	 	INDULGENCES, NOT WAIVERS
	 	 	21	 
	 	 	 
	 	 	 	 
	20.	 	TITLES NOT TO AFFECT INTERPRETATION
	 	 	21	 
	 	 	 
	 	 	 	 
	21.	 	PROVISIONS SEPARABLE
	 	 	21	 
	 	 	 
	 	 	 	 
	22.	 	RELATIONSHIP OF THE SELLER AND THE CUSTODIAN
	 	 	21	 







 









 








CUSTODY AGREEMENT




PREAMBLE




     THIS CUSTODY AGREEMENT (as it may be supplemented, amended or restated from time to time, this
“Custody Agreement”) entered into as of November 12, 2008 by and among HOMEAMERICAN MORTGAGE
CORPORATION (the “Seller”), a Colorado corporation, and U.S. BANK NATIONAL ASSOCIATION (“U.S.
Bank”), a national banking association, as agent and representative of the Buyers under the Current
Repurchase Agreement (defined below) (in such capacity, the “Agent”) and as custodian under this
Custody Agreement (in such capacity, the “Custodian”) recites and provides as follows:



RECITALS




     The Seller, U.S. Bank and the other buyers named therein as buyers (collectively with U.S.
Bank, the “Buyers”) and the Agent have entered into a Master Repurchase Agreement dated as of
November 12, 2008 (as it may be supplemented, amended or restated from time to time, the “Current
Repurchase Agreement”). Pursuant to the Current Repurchase Agreement, the Seller has agreed to
sell and transfer to the Buyers against transfer of funds by the Buyers certain Eligible Loans (as
that term is defined in the Current Repurchase Agreement), with a simultaneous agreement by the
Buyers that the Buyers will transfer to Seller such Eligible Loans against the transfer of funds by
the Seller with the requirement that the Basic Papers relating to the Purchased Loans (as that term
is defined in the Current Repurchase Agreement) must be delivered to the Custodian pending
repurchase by the Seller.



     The Buyers and the Seller desire that the Seller deposit with the Custodian from time to time
the Basic Papers for all Purchased Loans, to be held by the Custodian acting as documents custodian
and representative of the Agent and the Buyers in respect of the Purchased Loans under the Current
Repurchase Agreement until each Purchased Loan has been repurchased or until possession and custody
of the Basic Papers for such Purchased Loan have been delivered to the Seller or another Person as
contemplated by and in accordance with the terms of this Custody Agreement.



AGREEMENTS




     In consideration of the mutual promises and covenants hereinafter set forth, and for good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:



1. DEFINITIONS.




     1.1. General Definitions. Capitalized terms defined in the Current Repurchase Agreement that are used
but not defined
differently herein have the same meanings here as there, and reference is here made to the Current
Repurchase Agreement for the definitions of such capitalized terms and for all purposes, the
Current Repurchase Agreement and this Custody Agreement being complementary and intended by the
parties to be read together (although in the



 









 







event of any conflict or inconsistency between the
Current Repurchase Agreement and this Custody Agreement, the Current Repurchase Agreement shall
govern and control.) For the purposes of this Custody Agreement, the following terms shall have
the indicated meanings unless the context or use indicates another or different meaning and intent,
and the definitions of such terms are equally applicable to their singular and plural forms.



     “Appraisal Report” means a written report of an Appraisal or a Broker’s Price Opinion setting
forth the appraiser’s or broker’s opinion and method of determination of the fair market value of
the subject Mortgaged Premises, including a statement of all material assumptions made, and dated
and signed by such appraiser or broker, who, and the form of which report, must comply with all
relevant Agency guidelines.



     “Approved MBS Custodian” means either (a) U.S. Bank, holding MBS as securities intermediary,
(b) a Person (other than U.S. Bank) approved by the Agent who has agreed to hold MBS and the
proceeds of any sale or other disposition thereof as custodian, agent and bailee for the Agent
pursuant to a custodial agreement (an “MBS Custodial Agreement”) in a form approved by the Agent
which such Person has executed with the Agent or (z) such other Person as shall have been approved
for that purpose by the Agent.



     “Bailee Letter” means a transmittal letter for shipments of Purchased Loans by the Custodian
to an Approved Investor substantially in the form attached as Exhibit A.



     “Certified Copy” means a copy of an original Basic Paper or Supplemental Paper accompanied by
(or on which there is stamped) a certification by an officer of either a title insurer or an
authorized agent of a title insurer (whether a title agency or a closing attorney) or, except where
otherwise specified below, by an Authorized Seller Representative or an officer of a Servicer (if
other than the Seller) of the relevant Mortgage Loan, that such copy is a true copy of the original
and (if applicable) that the original has been sent to the appropriate governmental filing office
for recording in the jurisdiction where the related Mortgaged Premises are located. Each such
certification shall be conclusively deemed to be a representation and warranty by the certifying
officer, agent, Authorized Seller Representative or officer of the relevant Servicer, as
applicable, to the Buyers, the Agent and the Custodian upon which each may rely.



     “Custodian’s Exception Report” is a report issued by the Custodian listing Purchased Loans
whose Basic Papers have been reviewed by the Custodian and appear not to satisfy the review
standards and requirements stated in this Custody Agreement and indicating (either by coding, a
summary statement or both) the defect or deficiency disclosed by such review for each Purchased
Loan (or grouping of Purchased Loans) listed therein.



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



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



     “Flood Insurance Policy” means (a) any policy of insurance issued in accordance with the Flood
Disaster Protection Act of 1973, as amended from time to time or, if repealed, any



2









 







superseding
legislation governing similar insurance coverage, or (b) any other policy of insurance providing
similar coverage against loss sustained by floods or similar hazard that conforms to the flood
insurance requirements prescribed by the Federal Insurance Administration.



     “Lender’s Title Insurance Policy” means an American Land Title Association or California Land
Title Association (extended coverage) form or a Texas Land Title Association form lender’s title
insurance policy, including all riders or endorsements thereto, together with such additional
endorsements as are required under relevant Agency guidelines or Approved Investor’s requirements,
as applicable, in an amount not less than the original principal balance of the relevant Mortgage
Loan, insuring the holder of the Mortgage Loan that the related Mortgage constitutes a valid Lien
on the related Mortgaged Premises, subject only to (a) (if the Seller has represented the relevant
Mortgage Loan to be a Second Lien Loan) the lien of a single senior Mortgage on the related
Mortgage Premises, (b) liens for real estate taxes and governmental-improvement assessments not
delinquent, (c) easements and restrictions that do not materially and adversely affect the
marketability of title to such Mortgaged Premises or prohibit or interfere with their use as a
Single-family residential dwelling, (d) (if such Mortgaged Premises constitute a unit in a
condominium) a declaration of condominium or other similar document that evidences the creation of
such condominium and a condominium endorsement, (e) reservations as to oil, gas or mineral rights,
provided such rights do not include the right to remove buildings or other improvements on or near
the surface of the related Mortgaged Premises or to mine or drill on the surface thereof or
otherwise enter the surface for purposes of removing oil, gas or minerals, (f) agreements for the
installation, maintenance or repair of public utilities, provided such agreements do not create or
evidence liens on the Mortgaged Premises, or authorize or permit any Person to file or acquire
claims of liens against the Mortgaged Premises, or (g) such other exceptions that are acceptable
under the relevant Agency guidelines or Approved Investor’s requirements, as applicable.



     “Loan Number” means the loan number assigned to a Purchased Loan by the Seller and customarily
used by the Seller in its internal and external communications referring to that Purchased Loan.



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



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



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



     “Mortgage Assignment” means an assignment, notice of transfer or equivalent instrument, in
recordable form (excepting therefrom, if applicable, the name of the assignee and/or the Mortgage
recordation information which has not yet been returned from the applicable recorder’s office),
which is in form sufficient under the laws of the U.S. jurisdiction where the related Mortgaged
Premises are located to reflect of record the sale of the Mortgage.



3









 





     “Pool Insurance Policy” means a premium-paid policy of mortgage loan pool insurance issued by
an insurance company having a AAA or AA rating from Standard & Poor’s (a division of The
McGraw-Hill Companies, Inc.) or Fitch Ratings, or Aaa or Aa rating from Moody’s Investors Service,
Inc. for claims-paying ability, in form and substance satisfactory to the Seller and insuring the
holder of a pool of Mortgage Loans against all or a portion of the loss sustained by reason of a
default by a Customer in the payment of principal and interest thereon.



     “Preliminary Title Report” means a title report prepared by a company qualified to issue a
Lender’s Title Insurance Policy that sets forth (i) the legal description of the Mortgaged Premises
and (ii) the status of title to the Mortgaged Premises as of the stated effective date of such
title report.



     “Primary Mortgage Insurance Policy” means a mortgage insurance policy, issued by a private
mortgage insurance company having a claims-paying ability rating of AAA or AA from Standard &
Poor’s (a division of The McGraw-Hill Companies, Inc.) or Fitch Ratings, or Aaa or Aa from Moody’s
Investors Service, Inc., for claims-paying ability, in form and substance satisfactory to the
Seller and insuring the holder of a Mortgage Loan against all or a portion of the loss sustained by
reason of a default by a Customer in the payment of principal and interest thereon, together with
all riders and endorsements thereto.



     “Record Layout” means the standard instructions and format for transmitting to the Custodian
required information for each Mortgage Loan Transmission Files submitted, substantially as stated
in Exhibit B, as such standard instructions may be updated or modified from time to time by the
Custodian. The resulting file created whether in computer-readable or hard copy form is a
“Mortgage Loan Transmission File”.



     “Repurchase Request” means a request for the Seller’s repurchase of Purchased Loans in the
form of Exhibit H or another form reasonably acceptable to the Custodian, to be completed
by the Seller, signed by an Authorized Seller Representative and delivered to the Custodian as
provided in Section 4.



     “Request/Confirmation” has the meaning set forth in the Current Repurchase Agreement.



     “Shipping Request” means a request to ship Files to an Approved Investor in the form of
Exhibit I or another form reasonably acceptable to the Custodian, to be completed by the
Seller, signed by an Authorized Seller Representative and delivered to the Custodian as provided in
Section 4.



     “Supplemental Papers” means the Loan Papers for a particular Purchased Loan that are to be
held in trust by the Seller and must be delivered to the Custodian promptly following written
request therefor made by the Agent or the Custodian after the occurrence of any Default,
Event of Default or Termination event under the Current Repurchase Agreement. The Supplemental
Papers are listed on Exhibit D.



     “Trust Receipt” means the form attached as Exhibit E.



4









 





     1.2. Other Definitional Rules. Other definitional rules applicable to this Custody Agreement are as follows:




     (a) Legal and accounting terms not otherwise defined shall have the meanings given them
under New York statutory and case law and under GAAP, respectively.




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




     (c) Except where otherwise specified, all times of day are local times in Denver,
Colorado.




     (d) Wherever the word “including” or a similar word is used in this Custody Agreement,
unless the context clearly requires otherwise, for example, if preceded by “not”, it shall
be read as if it were written, “including by way of example but without in any way limiting
the generality of the foregoing concept, subject or description”.




     (e) Unless the context plainly otherwise requires, wherever the term “Agent” is used in
this Custody Agreement, it shall be read as if it were written “the Agent (as agent and
representative of the Buyers)”.



2. DELIVERY OF FILES TO THE CUSTODIAN.




     2.1. Reaffirmation of Agent’s Lien. Although the parties to the Current Repurchase Agreement specifically intend that the
Current Repurchase Agreement and the purchases of Mortgage Loans made pursuant to it are to be
treated as repurchase transactions under Title 11 of the United States Code (the “Code”),
including all rights that accrue to the Buyers and the Agent by virtue of Code sections 559, 561
and 562, if, contrary to the intent of the parties, any court of competent jurisdiction
characterizes any Transaction as a financing, rather than a purchase, under applicable law
including the applicable provisions of the Code, the Seller has granted to the Agent and the Agent
is deemed to have, for the benefit of itself and the Buyers, a first priority perfected security
interest in and to the Purchased Loans to secure the payment and performance of all of the Seller’s
obligations under this Custody Agreement and the Current Repurchase Agreement. In the event of
such a recharacterization of the Current Repurchase Agreement, the Seller hereby grants to the
Agent, and reaffirms the continuing first priority Lien granted by the Seller to the Agent in the
Current Repurchase Agreement, in and against (a) all Purchased Loans now or hereafter sold by the
Seller to the Buyers, delivered or caused to be delivered by the Seller to the Custodian or the
Agent or in any other way or manner identified to the Agent or the Custodian as Purchased
Loans, (b) all Purchased Loans Support and Files and other Purchased Loan Papers now or
hereafter delivered to the Custodian or to any other agent, bailee or designee of the Agent or the
Custodian and (c) the proceeds thereof. The parties agree that the Lien granted and reaffirmed
herein shall continue and remain perfected with its first priority under the provisions of the
applicable UCC, real estate law or other applicable Law, notwithstanding that the Custodian may
deliver one or more of the Loan Papers or other papers evidencing or relating to any such Purchased
Loan to the Seller (or to its servicer, subservicer or designee) for the purpose of (i) correcting
or completing such papers or the related File or (ii) collecting or other servicing or handling of
such Purchased Loan, as provided herein.



5









 





     2.2. Delivery.




     (a) Wet Loans. Submissions of Wet Loans for purchase by the Buyers shall be made by
electronic transmission of Mortgage Loan Transmission Files listing such Wet Loans, by the
deadline therefor specified in the Current Repurchase Agreement.




     (b) Conversion of Wet Loans to Dry Loans. Concurrently with physical delivery to the
Custodian of the Basic Papers to convert Wet Loans previously submitted into Dry Loans, the
Seller shall deliver to the Custodian (by either mail or courier) a submission list listing
each Mortgage Loan being converted.




     (c) Dry Loans Initially Submitted as Such. Submissions to the Custodian for inclusion
in the Purchased Loans of Dry Loans that were not previously submitted as Wet Loans shall be
made by electronic transmission of a Mortgage Loan Transmission File listing such Dry Loans,
and concurrent physical delivery to the Custodian of a submission list and the Basic Papers
for such Dry Loans by no later than 10:30 a.m. (Denver time) on the Business Day such Dry
Loans are to be first included as Purchased Loans.




     (d) File Folders. The Seller shall place all Basic Papers delivered to the Custodian
in an appropriate file folder and in a logical order, properly secured, and clearly marked
with the Customer’s last name and the Loan Number. The Seller shall not deliver to the
Custodian, nor shall the Custodian be required to assume, or deemed to have assumed, custody
of the File for any Purchased Loan that does not contain all of the Basic Papers. If such
an incomplete File is delivered to the Custodian, within one (1) Business Day following
examination of such File within the applicable time frame specified in Section 3.1,
the Custodian shall notify the Seller that the Custodian is retaining the File pending the
Custodian’s receipt of the missing Basic Papers (although the related Purchased Loan shall
have zero Purchase Value from the Sixth Business Day after such Purchase Loan has been
purchased until all Basic Papers are so received, except to the extent (if any) that the
Agent exercises its discretionary authority under the Current Repurchase Agreement to count
and treat such Purchased Loan as having Purchase Value.) The Basic Papers required to be
included in each File shall consist of all documents listed on Exhibit C.



     2.3. Follow-up by the Seller. The Seller shall deliver or cause to be delivered to the Custodian as soon as they are
available and without any requirement for the Custodian to request them, and in any case promptly
following any Custodian’s request therefor, originals of all Basic Papers, and of any Supplemental
Papers that the Custodian has theretofore required, when copies, commitments or preliminary reports
were initially submitted, except for Appraisal Reports, originals of which shall not be delivered
unless the Custodian shall specifically request them on a case-by-case basis as provided for in
Section 2.4. Any such trailing documents shall be submitted under cover of a form
substantially similar to Exhibit G.



     2.4. Supplemental Papers. Although the Supplemental Papers are not required to be submitted to the Custodian unless
requested, by submitting any Single-family Mortgage Loan to the Custodian, the Seller shall be
deemed to represent to the Custodian and the Buyers that (a) the Seller, or (if the Seller is not
the Servicer) the related Mortgage Loan’s Servicer, has



6









 







possession of the Supplemental Papers for
each Purchased Loan, has no claim, title or ownership interest in them, shall hold them in trust
for the Agent and the Buyers and shall deliver them (or such of them as the Agent or the Custodian
shall from time to time request) to the Custodian promptly upon the Agent’s or the Custodian’s
request and (b) each Supplemental Paper meets the standards and requirements of all relevant
definitions and provisions of the Current Repurchase Agreement and this Custody Agreement.



3. CUSTODIAN’S RECEIPT, EXAMINATION AND PRIOR CERTIFICATION OF FILES.




     3.1. Custodian’s Examination of Basic Papers. The Custodian will examine Files submitted to it by the Seller in accordance with the
following schedule:



	 	 	 
	If the number of Files received by
the Custodian by 10:30 AM on a
Business Day is

	 	then the Custodian will examine them
	 
	 	 
	100 files or less

	 	within one Business Day
	 
	 	 
	more than 100 files

	 	within one additional Business Day
for each additional 100 files
increment





to confirm that the Basic Papers in such File appear on their faces to satisfy the following
relevant requirements without obvious defect (the Custodian shall not be required to make any
independent examination of any Purchased Loans beyond the review specifically required hereby and
such examination responsibilities do not extend to any Supplemental Papers or any other papers
contained in any File):





     (a) each Mortgage Note and Mortgage in the File bears an original signature or
signatures purporting to be the signature or signatures of the Person or Persons named as
the maker and mortgagor or grantor under such Mortgage Note and Mortgage or, if a Certified
Copy of the Mortgage is submitted, that such Certified Copy bears what appears to be a
reproduction of such signature or signatures.




     (b) the Mortgage Note in the File bears an endorsement by the named holder or payee
endorsing such Mortgage Note in blank, with an original signature that purports to be the
signature of an Authorized Seller Representative (although the Custodian shall have no
obligation to determine whether the certificate was authorized or issued by any particular
person or officer or by a person who in fact is an Authorized Seller Representative, or
otherwise is authentic).




     (c) any power of attorney in the File bears an original signature purporting to be the
signature of the maker of the Mortgage Note and the mortgagor or grantor of the Mortgage or
if a Certified Copy of the power of attorney is submitted, that such Certified Copy bears
what appears to be a reproduction of such signature.



7









 






     (d) the original of the Mortgage Assignment in blank in the File bears an original
signature that purports to be the signature of an Authorized Seller Representative (although
the Custodian shall have no obligation to determine whether the certificate was authorized
or issued by any particular person or officer or by a person who in fact is an Authorized
Seller Representative, or otherwise is authentic); provided that if the Electronic Tracking
Agreement has been duly entered into, no Mortgage Assignment is required for any Mortgage
Loan that has been originated in the name of MERS and registered under the MERS® System with
U.S. Bank as Interim Funder.




     (e) the information set forth in the Mortgage Loan Transmission File for such File
appears to be correct (insofar as the accuracy of such information can be reasonably
determined from an examination of the File delivered to the Custodian).




     (f) the original principal amount of the note described in the Mortgage in the File as
being secured by such Mortgage matches the original principal amount of the Mortgage Note in
the File.




     (g) each document for which a Certified Copy is submitted as permitted under a relevant
provision of Exhibit C appears to be a Certified Copy (although the Custodian shall
have no obligation to determine whether the certification was authorized or issued by any
particular person or officer or otherwise is authentic or complies with the provisions of
the definition of “Certified Copy”).



     3.2. When Wet Loans’ Basic Papers Are Submitted. When the Basic Papers for a Purchased Loan that was initially purchased as a Wet Loan are
delivered on any Business Day, the Custodian, in its sole discretion, may include that Purchased
Loan in the calculation of the Purchase Value of the Purchased Loans on that Business Day before
reviewing the Basic Papers on the assumption that such Purchased Loan is an Eligible Loan; provided
that such Basic Papers must be reviewed in accordance with Section 3.1 before five (5)
Business Days have expired after the Purchased Loan has been purchased (but if such Basic Papers
are delivered on the last of such five (5) Business Days, such Basic Papers may be reviewed in
accordance herewith on the next succeeding Business Day following such delivery); provided further
that if the Custodian reasonably determines from its initial review of such Basic Papers that they
are incomplete or incorrect and that such condition of incompleteness or incorrectness is
correctable and returns the subject Basic Papers to the Seller for corrective action under a Trust
Receipt in the form of Exhibit E, then the affected Purchased Loan(s) shall not be required to be
repurchased by the Seller unless and until the Seller fails to correct and return such Basic Papers
to the Custodian within ten (10) Business Days after the Custodian so returned them to the Seller.
If following such review the related Purchased Loan appears on a Custodian’s Exception Report, then
such Purchased Loan shall be excluded from any determination of Purchase Value until such Purchased
Loan has been removed from the Custodian’s Exception Report and all Basic Papers for such Purchased
Loan are in the possession of the Custodian.



     3.3. Limited Scope of Examination of Supplemental Papers. If after the occurrence of any Default or Event of Default, the Seller is requested to
deliver any Supplemental Papers to the Custodian with respect to any Purchased Loan, the Custodian
shall receive and file such



8









 







Supplemental Papers but shall not be required to review any such
documents other than to determine that such documents appear on their face to be the documents
required to be delivered.



     3.4. Submission List Errors or Omissions. If the Custodian discovers errors or omissions in any submission list, it may either
correct them itself or request that the Seller correct them (and the Seller agrees hereby promptly
to do so).



     3.5. Custodian’s Exception Reports. When the Custodian has completed its review pursuant to Section 3.1 of Files
delivered to it, the Custodian will issue to the Seller a Custodian’s Exception Report for such
Files that it discovers contain errors or omissions either by fax or electronically, in each case
within one (1) Business Day after the Custodian’s review of the Files. The Custodian shall provide
Custodian’s Exception Reports to the Buyers upon request.



     3.6. Custodian’s Exception Report Loans Ordinarily Not Included in Purchase Value Calculation. The Purchased Loans on the Custodian’s Exception Report and Purchased Loans whose Basic
Papers are returned to the Seller for correction or completion pursuant to the second proviso of
the first sentence of Section 3.2 shall not be included by the Agent in any calculation
of Purchase Value after the related Purchase, until all such exceptions relating to it are
cured except to the extent (if any) that the Agent exercises its discretionary authority, if any,
under the Current Repurchase Agreement to count and include such Purchased Loans in the calculation
of Purchase Value.



     3.7. Correction of Exceptions. The Custodian may ship Mortgage Notes listed in its Exceptions Report to the Seller for
correction under a Trust Receipt. Upon correction or completion of any such Mortgage Note and the
Custodian’s receipt of the corrected Mortgage Note or File with all corrected or completed Basic
Papers in it in the case of other Loan Papers that have been corrected pursuant to the Custodian’s
Exception Report, unless the Custodian has current actual knowledge that the relevant Purchased
Loan has been liquidated or is the subject of another uncured Disqualifier, the Custodian shall
remove the listing of that Purchased Loan from its next Custodian’s Exception Report.



     3.8. Possession of Files. All Purchased Loan Files at any time delivered to the Custodian hereunder shall be held by
the Custodian in a fire resistant vault, drawer or other suitable depository maintained and
controlled solely by the Custodian, in a manner customarily used by institutional mortgage
documents custodians and not commingled with any other assets or property of, or held by, the
Custodian for others. The Custodian shall also make appropriate notations in the Custodian’s books
and records to reflect that the File has been purchased by the Buyers, and the Buyers own such
File.



     3.9. Papers Previously Certified by the Custodian. If Mortgage Loans are purchased from a seller for which U.S. Bank was documents custodian
for the Purchased Loans sold, U.S. Bank makes no warranty as to the condition of the Files, the
completeness, accuracy or any other characteristics of the Files or the circumstances or
documentation under which the Purchased Loans were previously certified, other than as set forth in
this Custody Agreement. No previous certification by U.S. Bank to or for any other Person will be
construed to benefit any party to this Custody Agreement or anyone claiming by, through or under
any such party; provided that



9









 







nothing herein shall be construed to relieve U.S. Bank of any direct
obligation under any other agreement between U.S. Bank and any third party.



4. RELEASE OF FILES BY THE CUSTODIAN.




     4.1. Shipping Direction. The Seller may from time to time direct the Custodian to ship any of the Purchased Loans as
set forth in this Section, and unless a Default or an Event of Default has occurred and is
continuing, the Custodian shall do so (and will do so at the direction of the Agent even if a
Default or an Event of Default has occurred and is continuing); provided that if the Custodian
disagrees with any information set forth in any Shipping Request (for sales or transfers) received,
the Custodian may correct it with notice to the Seller, or require that the Seller correct it
as a condition to the Custodian’s processing such Shipping Request.



     4.2. Shipping Purchased Loans.The Seller may direct the Custodian to ship any of the Purchased Loans (a) that the Seller
intends to sell as whole loans to an Approved Investor for reasonably equivalent value in a bona
fide transaction (including sales of Purchased Loans under a repurchase agreement for financing
purposes) or (b) to a custodian or trustee for an Approved Investor for pooling and securitization
as MBS and sale of such securities to an underwriter or other third party, by delivering a Shipping
Request substantially in the form of Exhibit I to the Custodian with all blanks completed to
identify (i) the Purchased Loans to be so shipped and sold, (ii) the name, address, and contact
information (including contact name, phone number and fax number) of the custodian/trustee of
Approved Investor and/or Approved Investor, (iii) the name, if any, with which the Custodian is to
complete the Mortgage Notes’ endorsement in blank before shipping them, (iv) the courier to use and
the Seller’s account number to be charged and (v) the scheduled closing date and for
securitizations, the date when the Seller expects the proceeds of the sale of the MBS created will
be wired to the Agent. If such closing date is subsequently changed, the Seller will give the
Custodian prompt notice thereof.



     4.3. Repurchases. If the Seller elects to repurchase any Purchased Loans, the Seller shall deliver a
Repurchase Request to the Agent and the Custodian stating the scheduled repurchase date and
identifying those Purchased Loans, whereupon the Custodian shall release and return such Files to
the Seller if (and only if) both (a) the Seller shall have paid the Repurchase Price therefor to
the Agent in accordance with the Current Repurchase Agreement (unless such Repurchase Price is
deducted from any Margin Excess) and (b) (unless the Agent in its discretion shall elect to allow
such repurchase notwithstanding the existence of an Event of Default pursuant to Section
18.8 of the Current Repurchase Agreement) no Event of Default shall have occurred and then be
continuing. If the Custodian disagrees with any information set forth in any Repurchase Request
received, the Custodian may require that the Seller correct it as a condition to the Custodian’s
processing it. Before the Custodian transfers the Purchased Loans so designated, the Seller will
deposit in the Repurchase Settlement Account a cash amount equal to the sum of the Repurchase
Prices for the Purchased Loans being repurchased (except to the extent the same is to be deducted
from any Margin Excess), determined without regard to any Disqualifier that may be applicable. The
Agent’s determination of the Repurchase Price for each such Purchased Loan, absent manifest error,
shall be conclusive. Upon the Agent’s receipt of such funds in the Repurchase Settlement Account
(or its deduction from any Margin Excess) if no Event of Default shall have occurred and then be
continuing (unless the Agent has exercised its discretion to allow such repurchase notwithstanding
the existence of an Event of Default



10









 







pursuant to Section 18.8 of the Current Repurchase
Agreement), all claims, rights, liens and security interests of the Agent, however arising, in and
to the Purchased Loans that were so listed in the Repurchase Request, shipped by the Custodian and
for which the Agent was so paid pursuant to this Section, shall terminate and be released. The
Agent will notify the Custodian in writing that Agent has received the full Repurchase Price and
shall so instruct the Custodian to release the related Purchased Loans and the Custodian shall do
so.



     4.4. Shipping Schedule. If the number of Files to be shipped pursuant to any one or more of the foregoing
provisions of this Section 2 is one hundred fifty (150) or less and the Shipping Request is
received by 10:30 a.m. (Denver time) on a Business Day, the Custodian will use its best efforts to
ship the Files on that same Business Day. If more than one hundred fifty (150) files are to be
shipped or the Shipping Request is received later than 10:30 AM (but not later than 2:00 PM) on a
Business Day, the Custodian will use its best efforts to ship them on the next Business Day, unless
more than two hundred fifty (250) Files are to be shipped, in which event one additional Business
Day shall be added for each increment of two hundred (200) files in excess of two hundred fifty
(250) files to be shipped, limited to a maximum of ten (10) Business Days.



     4.5. Minimum Face Amount of MBS. Any new MBS delivered to an Approved MBS Custodian pursuant to Section 4.2 shall be
in a face amount of not less than the aggregate Purchase Price of the Purchased Loans so delivered
in exchange for such new MBS.



     4.6. Shipment of Files. Upon receipt of a Shipping Request and such other required documents and information, the
Custodian shall ship such Files (or such of the Basic Papers therefrom as the relevant Approved
Investor requires) under cover of either (a) a Bailee Letter in substantially the form of the
Bailee Letter attached as Exhibit A (the Custodian may make changes to such forms from time
to time at its election) or (b) such form as may be required under any Agency program pursuant to
which the relevant Files are being shipped.



     4.7. Payment of Proceeds of Whole Loans and MBS Sold. Upon purchase by an Approved Investor of Purchased Loans to be sold as Whole Loans or, in
the case of Purchased Loans to be securitized as MBS, upon the sale of the resulting securities to
their underwriter or purchaser, the Seller will:




     (a) cause the purchasing Approved Investor to wire to the Agent, in immediately
available funds for deposit in the Repurchase Settlement Account, all proceeds of such sale
of Whole Loans or MBS to which the Seller is entitled; and




     (b) deposit, or cause to be deposited, in the Repurchase Settlement Account such
additional funds, if any, as are needed to cause the total amount so deposited in respect of
the Purchased Loans shipped to at least equal the aggregate Repurchases Prices of all such
Purchased Loans shipped, and the Agent’s determination of such amounts for each Purchased
Loan shall be conclusive, absent manifest error.


Upon the Agent’s receipt of such funds in the Repurchase Settlement Account, all claims, rights,
liens and security interests of the Agent and the Buyers, however arising, in and to the Purchased


11









 






Loans that were so listed in the Shipping Request, shipped by the Custodian and for which the Agent
was so paid pursuant to clauses (a) and (b) of this Section shall terminate and be
released.




     4.8. If U.S. Bank is Custodian for the Approved Investor. It is understood that U.S. Bank may also function as an agent, representative, bailee
and/or document custodian for any Approved Investor to whom (or whose designee) the Seller may
request that Purchased Loans be shipped, in which event the Custodian will segregate from other
Purchased Loans’ Files, but will not physically deliver, the affected Files, but may instead issue
its trust receipt or custodian’s receipt to such Approved Investor acknowledging when it is
appropriate to do so that the Custodian is holding the affected Files exclusively for such Approved
Investor. The trust receipt or custodian’s receipt may be in the form of either a written or
electronic receipt in favor of the Approved Investor.



     4.9. Custodian Not Responsible to Obtain Acknowledgement or Confirm Status. In no event shall the Custodian have any obligation to (a) obtain written acknowledgement
of receipt from the addressee of any Bailee Letter or other communication sent by the Custodian
hereunder or (b) confirm the status as an Approved Investor of any Person to which it has been
instructed to deliver Mortgage Loans or MBS as long as such Person is listed on Schedule AI
to the Current Repurchase Agreement in the form most recently provided to the Custodian by the
Agent.



     4.10. Shipment of Files or Loan Papers to the Seller. From time to time and as appropriate for the servicing of any of the Purchased Loans, the
Custodian may release to the Seller the Files or the Loan Papers under a Trust Receipt in the form
of Exhibit E. The Seller hereby acknowledges that pursuant to such Trust Receipt the Seller holds
the Loan Papers returned to the Seller in trust for the Agent (as agent and representative of the
Buyers) and that the Buyers shall continue to be the owners of the Purchased Loans and the related
Files pursuant to the Current Repurchase Agreement and the Seller shall not dispute the Buyers’
ownership thereof pursuant to the Current Repurchase Agreement. The Seller shall promptly return
to the Custodian the File or such Loan Papers (whichever the case may be) when the Seller’s need
therefor in connection with such servicing no longer exists (but not later in any case, without the
Custodian’s consent, than ten (10) Business Days after the Custodian shipped them), unless the
Purchased Loan shall be liquidated and the proceeds thereof paid to the Agent for deposit to the
Repurchase Settlement Account (or deducted from any Margin Excess) in satisfaction of the
Repurchase Price, with any excess to be paid over to the Seller unless a Default or Event of
Default has occurred and is continuing, in which case the balance of such proceeds shall be
retained in the Repurchase Settlement Account for application to the Obligations. This provision
respecting release to the Seller of Files and Loan Papers by the Custodian shall be operative only
to the extent that at any time the Custodian shall not have released to the Seller Files or Loan
Papers pertaining to more than (i) the Aggregate Outstanding Purchase Price from time to time, or
(ii) Two Million Dollars ($2,000,000) in principal of Purchased Loans, whichever is less.



     4.11. Release and Indemnification. The Custodian shall not be liable for executing, failing to execute, or for any mistake in
the execution of, such request or instructions in connection with the certification, release or
shipment of any Loan Papers, except in the case of the gross negligence or willful misconduct
of the Custodian. Seller hereby releases and agrees, to indemnify, pay, defend and hold harmless
the Custodian and each of its officers, directors, employees or agents (the “Indemnified Custodian
Parties”) from and against any and all claims,



12









 







liabilities, obligations, losses, damages,
penalties, judgments, suits, costs, expenses and disbursements (including reasonable attorneys’
fees and disbursements) of any kind whatsoever which may be imposed upon, incurred by or asserted
against any of the Indemnified Custodian Parties in any way relating to or arising out of this
Custody Agreement or any of the transactions contemplated hereby, whether from the discretionary or
nondiscretionary acts or omissions of any of the Indemnified Custodian Parties or any other Person,
in whole or in part arising out of any act or omission of any of the Indemnified Custodian Parties
and based on any claim or theory of strict liability, or sole, comparative or contributory
negligence, except for a particular Indemnified Custodian Party’s fraud, gross negligence or
willful misconduct or a material breach of the Current Repurchase Agreement by a particular
Indemnified Custodian Party. The foregoing indemnification shall survive the termination or
assignment of this Agreement and the resignation or removal of the Custodian hereunder. It is the
Seller’s intention to hereby indemnify the Indemnified Custodian Parties against their own sole or
concurrent ordinary negligence to the fullest extent allowed by law, subject to the exceptions set
forth in the second sentence of this Section 4.11.



5. RIGHT OF INSPECTION BY BUYERS AND THE SELLER.




     Upon at least five (5) Business Days’ written notice to the Custodian, the Buyers, the Seller
or the Authorized Seller Representatives, may at any time, during ordinary business hours, inspect
and examine the Files in the possession and custody of the Custodian at such place or places where
such Files are deposited.



6. CUSTODIAN’S FEES.




     The Seller promises to pay the fees of the Custodian accrued under this Custody Agreement
pursuant to a separate arrangement between them, subject to adjustment annually, or more frequently
if and as the Custodian and the Seller may agree from time to time.



7. TERMINATION OF AGREEMENT.




     This Custody Agreement shall become effective on and as of the date hereof and shall terminate
upon the Custodian’s receipt of written notice of termination signed by all of the Buyers,
determined for purposes of this Section as excluding the Person serving as the Agent, and delivery
of all Files then held by the Custodian to a successor custodian or, if authorized in writing by
the Agent, to the Seller or its designee. Notwithstanding any such termination, the Buyers’
ownership interest in the Purchased Loans and their proceeds shall continue in effect until all
Obligations of the Seller to the Buyers and the Agent have been paid and satisfied in
full. The termination of this Custody Agreement shall not operate to remove U.S. Bank as
Agent for purposes of the Current Repurchase Agreement.



8. RESIGNATION OR REMOVAL OF CUSTODIAN.




     8.1. Qualifications of Custodian. The Agent shall be the Custodian, unless the Agent shall resign as Custodian (which does
not necessarily obligate the Agent to resign as Agent, the two roles may be bifurcated). The
Custodian shall satisfy the same qualifications as is required of the Agent according to the terms
of the Current Repurchase Agreement and shall at all times be a commercial bank or trust company
organized and doing business under the laws of the



13









 







United States of America or any state, district
or territory of it authorized under such laws to exercise corporate trust powers, having a combined
capital and unimpaired surplus of at least One Hundred Million Dollars ($100,000,000) and subject
to supervision or examination by federal, state, district or territorial Governmental Authority.
If such commercial bank or trust company publishes reports of conditions at least annually,
pursuant to law or to the requirements of its supervising or examination Governmental Authority,
then for the purposes of this Section, the combined capital and unimpaired surplus of such
commercial bank or trust company shall be deemed to be its combined capital and unimpaired surplus
as set forth in its most recent report of condition so published. In case the Custodian shall
cease at any time to be eligible in accordance with the provisions of this Section, the Custodian
shall resign immediately in the manner and with the effect hereinafter specified in this
Section 8.



     8.2. Resignation of the Custodian or any Successor Custodian. The Custodian or any successor hereafter appointed may resign at any time by giving written
notice of resignation to the Seller, the Agent and the Buyers and complying with the applicable
provisions of this Section 8. Upon receiving such notice of resignation, with the Seller’s
consent, which consent shall not unreasonably be delayed or withheld (provided that the Seller’s
consent shall not be required if a Default has occurred that has not been cured by the Seller or
declared in writing by the Agent to have been waived or any Event of Default has occurred that the
Agent has not declared in writing to have been cured or waived), a successor Custodian shall be
promptly appointed by the Required Buyers, or, if the Required Buyers fail to do so on or before
sixty (60) days have elapsed after notice to the Seller, the Agent and the Buyers of the
Custodian’s election to resign, by the Agent, by written instrument, in quadruplicate, one copy of
which instrument shall be delivered to the resigning Custodian, one copy to the Agent, one copy to
the Seller and one copy to the successor Custodian.



     8.3. Removal of the Custodian or any Successor Custodian. If (a) the Custodian or any successor shall cease to be eligible in accordance with the
provisions of Section 8.1 and shall fail to resign after written request by the Required
Buyers; (b) a receiver of the Custodian (or such successor) or of its property shall be appointed
or any Governmental Authority shall take charge or control of Custodian (or such successor) or of
its property or affairs for the purpose of rehabilitation, conservation or liquidation or (c) the
Custodian (or such successor) shall be grossly negligent in the performance of its material
duties and obligations under this Custody Agreement or engage in willful misconduct concerning any
such material duties and obligations, then, in any such case, upon the consent of the Required
Buyers and the Seller (provided that the Seller’s consent shall not be required if a Default has
occurred that has not been cured by the Seller or declared in writing by the Agent to have been
waived or any Event of Default has occurred that the Agent has not declared in writing to have been
cured or waived), the Custodian (or such successor) may be removed and a successor custodian
appointed by written instrument, in triplicate, one copy of which shall be delivered to the
custodian so removed, one copy to the Agent and one copy to the successor custodian.



     8.4. Effective Date of Resignation or Removal. No resignation or removal of the Custodian or any successor as custodian of the Loan Papers
shall be effective until a successor Custodian is appointed pursuant to the provisions of this
Section 8 and has accepted the appointment as provided in this Section 8; provided
that if such appointment has not been so made or if the Custodian’s duties have not been assumed by
the appointed successor on or before



14









 







ninety (90) days after the date of the Custodian’s notice of
resignation, the Custodian may deliver the Files then in its possession to the Agent at no cost to
the Seller and cease acting as Custodian hereunder, and shall have no further responsibility
therefor, at the close of business on the tenth (10th) Business Day after such
ninety-day period. The Custodian or any successor hereafter appointed shall continue to act as
custodian under this Custody Agreement until it delivers the Files to a duly appointed successor,
or to the Agent under the circumstances last above described.



     8.5. Successor. Any successor Custodian appointed as provided in this Section 8 shall execute and
deliver to the Buyers, the Agent and the Seller and to the Agent’s predecessor Custodian an
instrument accepting such appointment, and thereupon the resignation or removal of the predecessor
Custodian shall become effective and such successor Custodian, without any further act, deed or
conveyance, shall become vested with all the rights and obligations of its predecessor, with like
effect as if originally named as the Custodian and shall assume all the duties and obligations in
this Custody Agreement as Custodian (but not the duties and obligations of the Agent under the
Current Repurchase Agreement unless the successor Custodian is also a successor Agent); provided
that upon the written request of the Seller, the Required Buyers or the successor Custodian, the
Custodian ceasing to act shall execute and deliver (a) an instrument transferring to the successor
Custodian all of the rights of the Custodian so ceasing to act and (b) to the successor Custodian
such instruments as are necessary to transfer all Loan Papers then in the hands of the Custodian so
ceasing to act to such successor Custodian (including endorsements in blank and assignments in
blank of all Mortgage Notes and Mortgages that are not already endorsed or assigned in blank).
Upon the request of any such successor Custodian made from time to time, the Seller shall execute
any and all papers which the successor Custodian shall reasonably request or require to more fully
and certainly vest in and confirm to such successor Custodian all such rights. No successor
Custodian shall accept appointment as provided in this Section unless at the time of such
acceptance such successor Custodian shall be eligible under the provisions of Section 8.1.



     8.6. Merger of the Custodian or any Successor Custodian. Any Person into which the Custodian or any successor custodian may be merged or converted
or with which it may be consolidated, or any Person surviving or resulting from any merger,
conversion or consolidation to which the Custodian or successor custodian shall be a party or any
Person succeeding to the commercial banking business of the Custodian or such successor custodian,
shall be the successor custodian without the execution or filing of any paper or any further act on
the part of any of the parties, but only if such Person is eligible under the provisions of
Section 8.1.



9. LIMITATION ON OBLIGATIONS OF AND RELIANCE BY CUSTODIAN; INSURANCE.




     The Custodian agrees to use its best judgment and good faith in the performance of any
obligations and duties required under this Custody Agreement and shall incur no liability to any
other party to this Custody Agreement for its acts or omissions hereunder, except as may result
from its fraud, gross negligence or willful misconduct. The Custodian shall be entitled to rely
upon the advice of its legal counsel from time to time and shall not be liable for any action or
inaction by it in reliance upon such advice. The Custodian shall also be entitled to rely upon any
notice, document, correspondence, request or directive received by it from any other party to this



15









 







Custody Agreement that the Custodian believes to be genuine and to have been signed or presented by
the proper and duly authorized officer or representative thereof, and shall not be obligated to
inquire as to the authority or power of any Person so executing or presenting such documents or as
to the truthfulness of any statements set forth therein. The Custodian shall at its own expense
maintain at all times during the existence of this Custody Agreement and keep in full force and
effect fidelity insurance, theft of documents insurance, and forgery insurance. All such insurance
shall be with standard coverage and subject to deductibles as is customary for insurance typically
maintained by banks that act as custodians and shall be in such amounts and with an insurance
company as are reasonably acceptable to the Agent.



10. NOTICES.




     All notices, demands, consents, requests and other communications required or permitted to be
given or made hereunder, except as otherwise specifically provided in this Custody Agreement, shall
be in writing and shall be either (a) delivered in person, or (b) mailed, by certified, registered
or express mail, postage prepaid, addressed to the respective parties hereto at their respective
addresses specified below, or (c) sent in a prepaid overnight delivery envelope via a
nationally-recognized courier service that provides weekday next-day delivery service to the
addressee’s location, (d) faxed to their respective fax numbers (with a paper copy mailed the same
day as aforesaid) as hereinafter set forth or (e) emailed and displayed or acknowledged as received
as hereinafter set forth; provided that any party may change its address for notice by designating
such party’s new address in a notice to the sending party given at least five (5) Business Days
before it shall become effective. All notices shall be conclusively deemed to have
been properly given or served when received in person, regardless of how sent. Regardless of
when received, all notices shall be conclusively deemed to have been properly given or served if
addressed to the parties as set out below:



If to the Seller:



HomeAmerican Mortgage Corporation

6550 Greenwood Plaza Boulevard

Centennial, CO 80111



Attention: President

Telephone: (303) 773-1155

Fax: (720) 528-2202




If to the Custodian:



U.S. Bank National Association

3550 Rockmont Drive

Mortgage Banking Services

Denver, CO 80202




16









 







Attention: Millie Crocker

Telephone: (303) 561-7975

Fax: (303) 561-7246

Email: mildred.crocker@usbank.com




11. NO ASSIGNMENT OR DELEGATION BY CUSTODIAN.



The Custodian shall not assign, transfer, pledge or grant a security interest in any of its rights,
benefits or privileges hereunder nor delegate or appoint any other Person to perform or carry out
any of its duties, responsibilities or obligations under this Custody Agreement; any act or
instrument purporting to effect any such assignment, transfer, pledge, grant delegation or
appointment shall be void.




12. BUYERS’ ASSIGNMENTS AND PARTICIPATION.



The Buyers shall be entitled to assign interests and sell participation in the Repurchase Agreement
in accordance with the relevant provisions of the Current Repurchase Agreement, provided that the
Custodian retains the exclusive authority, notwithstanding any such participation arrangements, to
execute this Custody Agreement (including all Exhibits) as Custodian and to act alone as the
Custodian.




13. CONFIDENTIALITY.




     13.1. Seller’s Information. The Custodian is bound by the provisions of Section 16.8 of the Current Repurchase
Agreement regarding confidentiality of the Seller’s proprietary information.



     13.2. Privacy of Customer Information. The Custodian is bound by the provisions of Section 16.9 of the Current Repurchase
Agreement regarding confidentiality of Seller Customer Information.



14. CONTROLLING LAW AND VENUE.




     THIS CUSTODY AGREEMENT (INCLUDING THIS CHOICE-OF-LAW PROVISION) AND THE OTHER REPURCHASE
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED AND ALL CONTROVERSIES AND DISPUTES ARISING UNDER, IN
CONNECTION WITH OR RELATING TO THIS CUSTODY AGREEMENT AND THE OTHER REPURCHASE DOCUMENTS SHALL BE
RESOLVED, IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (PURSUANT TO SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW TO THE EXTENT SUCH LAWS WOULD OTHERWISE NOT APPLY) AND THE UNITED
STATES OF AMERICA APPLICABLE TO CONTRACTS MADE AND TO BE WHOLLY PERFORMED WITHIN SUCH STATE. THE
SELLER, THE ADMINISTRATIVE AGENT AND THE BUYERS EACH HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION AND VENUE OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
LOCATED IN THE BOROUGH OF MANHATTAN DIVISION IN THE CITY OF NEW YORK OR, IF SUCH COURT DOES NOT
HAVE JURISDICTION, THE SUPREME



17









 







COURT OF THE STATE OF NEW YORK, NEW YORK COUNTY FOR THE PURPOSE OF
ANY ACTION OR OTHER PROCEEDING ARISING UNDER, IN CONNECTION WITH OR RELATING TO THE REPURCHASE
DOCUMENTS OR ANY RELATED TRANSACTION, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW TO THE EXTENT SUCH SUBMISSION WOULD OTHERWISE NOT BE EFFECTIVE. To the fullest
extent permitted by applicable law, the Seller and the Custodian each irrevocably waives any
objection that he, she or it may now or hereafter have to the laying of venue for any such
proceeding brought in such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum. Nothing herein shall affect any applicable right of any
party at any time to initiate any suit in the United States District Court for the Southern
District of New York, Manhattan Division, or to remove any pending suit to that Court. Nothing
herein shall affect the right of the Custodian to accomplish service of process in any manner
permitted by applicable law or to commence legal proceedings or otherwise proceed against the
Seller in any other jurisdiction or court.



15. AGREEMENT FOR THE EXCLUSIVE BENEFIT OF PARTIES.




     This Custody Agreement is for the exclusive benefit of the parties hereto and the Buyers
(including in the case of the Buyers, the Buyers’ participants), the Agent, and their respective
successors and permitted assigns, and shall not be deemed to create or confer any legal or
equitable right, remedy, or claim upon any other Person whatsoever.



16. WAIVER OF JURY TRIAL.




     THE SELLER AND THE CUSTODIAN EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS CUSTODY AGREEMENT OR ANY OF THE OTHER REPURCHASE DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. This waiver of right to trial by jury is separately given, with
knowledge of its purpose and effect and voluntarily, by the Seller and the Custodian, and this
waiver is intended to encompass individually each instance and each issue as to which the right of
a jury trial would otherwise accrue. Each of the parties is hereby authorized to submit this
Custody Agreement to any court having jurisdiction over the subject matter and the parties hereto,
so as to serve as conclusive evidence of the foregoing waiver of the right to jury trial. Further,
the Seller hereby certifies that no representative or agent of the Custodian has represented,
expressly or otherwise, to any shareholder, director, officer, agent or representative of the
Seller that the Custodian will not seek to enforce this waiver of jury trial provision.



17. ENTIRE AGREEMENT.




     This Custody Agreement contains the entire agreement among the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof, including any prior custody agreements. The express terms
hereof control and supersede any course of performance and/or usage of the



18









 







trade inconsistent with
any of the terms hereof. This Custody Agreement may not be modified or amended other than by an
agreement in writing executed by the parties hereto.



18. EXHIBITS.




     All Exhibits and Schedules referred to herein or attached hereto are hereby incorporated by
reference into, and made a part of, this Custody Agreement.



19. INDULGENCES, NOT WAIVERS.




     Neither the failure nor any delay on the part of a party hereto to exercise any right, remedy,
power or privilege under this Custody Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any
other occurrence. No waiver shall be effective unless it is writing and is signed by the parties
asserted to have granted such waiver.



20. TITLES NOT TO AFFECT INTERPRETATION.




     The titles of Sections contained in this Custody Agreement are for convenience only, and they
neither form a part of this Custody Agreement nor are they to be used in the construction or
interpretation hereof.



21. PROVISIONS SEPARABLE.




     The provisions of this Custody Agreement are independent of and separable from each other, and
no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for
any reason any other provisions may be invalid or unenforceable in whole or in part.



22. RELATIONSHIP OF THE SELLER AND THE CUSTODIAN.




     The Custodian shall be entitled to deal with the Seller and any and all Loan Papers, payments,
instructions, notices or other instruments on the basis that the Buyers have purchased the
Purchased Loans from the Seller and are the sole owners legal and beneficial title thereto, without
regard to whether any other Person has any ownership or other interest in the Purchased Loans.



(The remainder of this page is intentionally blank; counterpart signature pages follow.)




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     IN WITNESS WHEREOF, the parties have entered into this Custody Agreement as of the date first
set forth above.



	 	 	 	 	 	 	 
	 	 	HOMEAMERICAN MORTGAGE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ John J. Heaney	 	 
	 

	 	Name:
	 	 

John J. Heaney
	 	 
	 

	 	Title:
	 	Senior Vice President and Treasurer	 	 






[Signature Page 1 to Custody Agreement]




 









 








	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	Edwin D. Jenkins	 	 
	 

	 	Name:
	 	 

Edwin D. Jenkins
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






[Signature Page 2 to Custody Agreement]