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