HSBC BANK USA, NATIONAL ASSOCIATION, as Indenture Trustee
for the PHH Mortgage Trust,
Series 2008-CIM2, Mortgage-Backed Notes,
XXXXX FARGO BANK, N.A.,
as Custodian,
and
PHH MORTGAGE CORPORATION,
as Servicer,
CUSTODIAL AGREEMENT
As of July 1, 2008
TABLE OF CONTENTS
Page
Section 1. Definitions.....................................................................................2
Section 2. Delivery of Custodial Files.....................................................................9
Section 3. Custodian's Receipt, Examination and Certification of Mortgage Files; Initial
Trust Receipt Delivered by the Custodian.......................................................10
Section 4. Obligations of the Custodian...................................................................10
Section 5. Final Trust Receipt............................................................................12
Section 6. Future Defects.................................................................................13
Section 7. Release for Servicing..........................................................................13
Section 8. Release for Payment............................................................................14
Section 9. Fees and Expenses of Custodian.................................................................14
Section 10. Removal of Custodian...........................................................................15
Section 11. Transfer of Custodial Files....................................................................15
Section 12. Examination of Custodial Files.................................................................15
Section 13. Insurance of Custodian.........................................................................15
Section 14. Counterparts...................................................................................16
Section 15. Periodic Statements............................................................................16
Section 16. GOVERNING LAW..................................................................................16
Section 17. Copies of Mortgage Documents...................................................................16
Section 18. No Adverse Interest of Custodian...............................................................16
Section 19. Termination by Custodian.......................................................................16
Section 20. Term of Agreement..............................................................................17
Section 21. Notices........................................................................................17
Section 22. Successors and Assigns.........................................................................17
Section 23. Indemnification of Custodian...................................................................17
Section 24. Reliance of Custodian..........................................................................18
Section 25. Transmission of Custodial Files................................................................19
Section 26. Authorized Representatives.....................................................................19
Section 27. Reproduction of Documents......................................................................20
Section 28. Custodian Representations......................................................................20
Section 29. Amendment......................................................................................20
Section 30. Limitations on the Responsibilities of the Custodian...........................................20
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EXHIBITS
SCHEDULE 1 DOCUMENTS TO REVIEW
EXHIBIT 1 FORM OF TRUST RECEIPT AND INITIAL CERTIFICATION
EXHIBIT 2 FORM OF FINAL TRUST RECEIPT
EXHIBIT 3 FORM OF REQUEST FOR RELEASE OF CUSTODIAL FILE
EXHIBIT 4 AUTHORIZED REPRESENTATIVES OF INDENTURE TRUSTEE
EXHIBIT 5 AUTHORIZED REPRESENTATIVES OF CUSTODIAN
EXHIBIT 6 AUTHORIZED REPRESENTATIVES OF THE SERVICER
EXHIBIT 7 [RESERVED]
EXHIBIT 8 [RESERVED]
EXHIBIT 9 FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT 10 MORTGAGE LOAN SCHEDULE
EXHIBIT 11 SUBSTITUTE MORTGAGE LOANS
EXHIBIT 12 ASSESSMENTS OF COMPLIANCE AND ATTESTATION REPORTS SERVICING CRITERIA
EXHIBIT 13 RECEIPT OF MORTGAGE NOTES
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THIS CUSTODIAL AGREEMENT, dated as of July 1, 2008, among HSBC Bank USA, National Association, a
national banking association (the "Indenture Trustee"), having an address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, not individually but solely as indenture trustee for PHH Mortgage Trust, Series 2008-CIM2 Mortgage-Backed
Notes, Xxxxx Fargo Bank, N.A. as custodian (the "Custodian"), having an address at 000 Xxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 and PHH Mortgage Corporation, as servicer (the "Servicer"), having an address at
0000 Xxxxxxxxxx Xxxx, Xx. Laurel, NJ 08054.
W I T N E S S E T H
WHEREAS, Credit Suisse First Boston Mortgage Acceptance Corp. (the "Depositor") has agreed to
purchase certain conventional, hybrid adjustable-rate and fixed-rate mortgage loans (the "Mortgage Loans") from
Chimera Investment Corporation (the "Seller"), pursuant to the terms and conditions of the Assignment, Assumption
and Recognition Agreement among the Seller, the Servicer, the Depositor, PHH Mortgage Trust, Series 2008-CIM2
(the "Trust"), and acknowledged and agreed to by Xxxxx Fargo Bank, N.A., as master servicer;
WHEREAS, the Servicer has agreed to service the Mortgage Loans on behalf of the Trust pursuant
to the Mortgage Loan Flow Purchase, Sale & Servicing Agreement (the "Purchase and Servicing Agreement") dated as
of December 14, 2007 among the Servicer, Xxxxxx'x Gate Residential Mortgage Trust and the Seller, which will be
assigned to the Trust;
WHEREAS, the Mortgage Loans shall be subject to the terms and conditions of that certain Sale
and Servicing Agreement, dated as of July 1, 2008 (the "Sale and Servicing Agreement"), among the Trust, the
Seller, the Depositor, Xxxxx Fargo Bank, N.A., a national banking association, as master servicer (in such
capacity, the "Master Servicer") and as securities administrator (in such capacity, the "Securities
Administrator") and the Indenture Trustee;
WHEREAS, the Mortgage Loans and payments thereon will secure certain notes, (the "Notes")
issued by the Trust pursuant to the Indenture (the "Indenture) dated as of July 25, 2008, among the Issuer, the
Indenture Trustee and the Securities Administrator.
WHEREAS, the Custodian is a national banking association chartered under the laws of the United
States of America and regulated by the Comptroller of the Currency, and is otherwise authorized to act as
Custodian pursuant to this Agreement; and
WHEREAS, the Indenture Trustee desires to have the Custodian take possession of the Mortgages
and Mortgage Notes relating to the Mortgage Loans, which are identified on the Mortgage Loan Schedule attached
hereto as Exhibit 10, along with certain other documents specified herein, as a custodian of the Indenture
Trustee, in accordance with the terms and conditions hereof.
NOW THEREFORE, in consideration of the mutual undertakings herein expressed, the parties hereto
hereby agree as follows:
Section 1. Definitions.
Adjustment Date: With respect to each adjustable-rate Mortgage Loan, the date set forth in the
related Mortgage Note on which the Mortgage Interest Rate on such Mortgage Loan is adjusted in accordance with
the terms of the Mortgage Note.
Agreement: This Custodial Agreement and all amendments and attachments hereto and supplements
hereof.
ALTA: American Land Title Association or any successor thereto.
Appraised Value: With respect to any Mortgaged Property, the lesser of (i) the value thereof as
determined by an appraisal made for the originator of the Mortgage Loan at the time of origination of the
Mortgage Loan by an appraiser who met the minimum requirements of FNMA and FHLMC and (ii) the purchase price paid
for the related Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan, provided, however, in
the case of a Refinanced Mortgage Loan, such value of the Mortgaged Property is based solely upon the value
determined by an appraisal made for the originator of such Refinanced Mortgage Loan at the time of origination of
such Refinanced Mortgage Loan by an appraiser who met the minimum requirements of FNMA and FHLMC.
Assignment of Mortgage: An individual assignment of the Mortgage, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the jurisdiction wherein the related
Mortgaged Property is located to reflect the sale of the Mortgage Loan to the Indenture Trustee.
Assignment of Proprietary Lease: With respect to a Cooperative Loan, the assignment or
mortgage of the related Proprietary Lease from the Mortgagor to the originator of the Cooperative Loan.
Business Day: Any day other than (i) a Saturday or Sunday or (ii) or a day on which the New
York Stock Exchange or Federal Reserve is closed or on which banking and savings and loan institutions in the
State of New York, the State of California, the State of Minnesota, the State of Maryland or the State of New
Jersey, are authorized or obligated by law or executive order to be closed.
Closing Date: July 25, 2008.
Commission: The United States Securities and Exchange Commission.
Cooperative Corporation: With respect to any Cooperative Loan, the cooperative apartment
corporation that holds legal title to the related Cooperative Property and grants occupancy rights to units
therein to stockholders through Proprietary Leases or similar arrangements.
Cooperative Lien Search: A search for (a) federal tax liens, mechanics' liens, lis pendens,
judgments of record or otherwise against (i) the Cooperative Corporation and (ii) the seller of the Cooperative
Unit, (b) filings of Financing Statements and (c) the deed of the Cooperative Property into the Cooperative
Corporation.
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Cooperative Loan: A Mortgage Loan that is secured by a first lien on and a perfected security
interest in Cooperative Shares and the related Proprietary Lease granting exclusive rights to occupy the related
Cooperative Unit in the building owned by the related Cooperative Corporation.
Cooperative Pledge Agreement: The specific agreement creating a first lien on and pledge of
the Cooperative Shares and the appurtenant Proprietary Lease securing a Cooperative Loan.
Cooperative Property: With respect to any Cooperative Loan, all real property and improvements
thereto and rights therein and thereto owned by a Cooperative Corporation including without limitation the land,
separate dwelling units and all common elements.
Cooperative Shares: With respect to any Cooperative Loan, the shares of stock issued by a
Cooperative Corporation and allocated to a Cooperative Unit and represented by stock certificates.
Cooperative Unit: With respect to any Cooperative Loan, a specific unit in a Cooperative
Property.
Custodial File: As to each Mortgage Loan, any mortgage loan documents which are delivered to
the Custodian or which at any time come into the possession of the Custodian.
Custodian: Xxxxx Fargo Bank, N.A., or its successor in interest or assigns, or any successor to
the Custodian under this Agreement as herein provided.
Cut-off Date: July 1, 2008.
Depositor: Credit Suisse First Boston Mortgage Acceptance Corp., or its successor in interest
or assigns.
Due Date: The day of each calendar month on which the Monthly Payment is due on a Mortgage
Loan, exclusive of any days of grace.
Exchange Act: The Securities and Exchange Act of 1934, as amended.
FHLMC: Freddie Mac or any successor thereto.
Final Trust Receipt: Trust receipt and certification, in the form annexed hereto as Exhibit 2,
as to each Mortgage Loan, which Final Trust Receipt is delivered to the Indenture Trustee (with a copy to the
Depositor, the Master Servicer, the Servicer and the Seller) by the Custodian pursuant to the requirements of
Section 5 below.
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Financing Statement: A financing statement in the form of a UCC-1 or UCC-3, as applicable,
filed pursuant to the Uniform Commercial Code to perfect a security interest in the Cooperative Shares and Pledge
Instruments.
FNMA: Xxxxxx Xxx or any successor thereto.
Gross Margin: With respect to any adjustable-rate Mortgage Loan, the fixed percentage amount
set forth in the Mortgage Note and the related Mortgage Loan Schedule that is added to the Index on each
Adjustment Date in accordance with the terms of the related Mortgage Note to determine the new Mortgage Interest
Rate for such Mortgage Loan.
Indenture Trustee: As defined in the recitals hereto.
Index: As of any Adjustment Date, the index applicable to the determination of the Mortgage
Rate on each adjustable-rate Mortgage Loan will generally be the average of the interbank offered rates for
one-year United States dollar deposits in the London market as published in The Wall Street Journal and as most
recently available either (a) as of the first Business Day forty-five (45) days prior to such Adjustment Date or
(b) as of the first Business Day of the month preceding the month of such Adjustment Date, as specified in the
related Mortgage Note.
Lender Paid Mortgage Insurance Policy or LPMI Policy: A policy of mortgage guaranty insurance
issued by an insurer that meets the requirements of FNMA and FHLMC in which the owner or servicer of the Mortgage
Loan is responsible for the premiums associated with such mortgage insurance policy.
Master Servicer: Xxxxx Fargo Bank, N.A., or its successor in interest or assigns.
Maximum Mortgage Interest Rate: With respect to each adjustable-rate Mortgage Loan, an interest
rate that is set forth on the mortgage loan schedule and in the related Mortgage Note and that is the maximum
interest rate to which the Mortgage Interest Rate on such Mortgage Loan may be increased on any Adjustment Date.
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MERS: Mortgage Electronic Registration Systems, Inc., a corporation organized and existing
under the laws of the State of Delaware, or any successor thereto.
MERS System: The system of recording transfers of Mortgages electronically maintained by MERS.
MIN: The mortgage identification number of Mortgage Loans registered with MERS on the MERS
System.
Minimum Mortgage Interest Rate: With respect to each adjustable-rate Mortgage Loan, an interest
rate that is set forth on the mortgage loan schedule and in the related Mortgage Note and that is the minimum
interest rate to which the Mortgage Interest Rate on such Mortgage Loan may be decreased on any Adjustment Date.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for the
originator of such Mortgage Loan and its successors and assigns.
Monthly Payment: With respect to any Mortgage Loan, the scheduled combined payment of principal
and interest, and taxes and insurance, if applicable, payable by a Mortgagor under the related Mortgage Note or
under a bankruptcy or forbearance plan on each Due Date.
Mortgage: The mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first lien on an estate in fee simple in real property securing the Mortgage Note.
Mortgage Interest Rate: With respect to each Mortgage Loan, the annual rate that interest
accrues on such Mortgage Loan from time to time in accordance with the provisions of the related Mortgage Note.
Mortgage Loan: Each mortgage loan or Cooperative Loan identified on the Mortgage Loan Schedule
attached hereto as Exhibit 10.
Mortgage Loan Schedule: The schedule of Mortgage Loans to be delivered by the Depositor to the
Custodian and the Servicer (with a copy to the Indenture Trustee) two (2) Business Days prior to the Closing Date
and to be annexed hereto as Exhibit 10, such schedule setting forth the following information (or such other
information as provided to the Custodian or the Servicer), with respect to each Mortgage Loan:
(i) the loan number of the Loan and the last name of the related Mortgagor;
(ii) the street address of the Mortgaged Property including city, state and zip code;
(iii) the original Mortgage Interest Rate;
(iv) the original term of the related Mortgage Note;
(v) the maturity date of the related Mortgage Note;
(vi) the original Principal Balance;
(vii) the first payment date;
(viii) the Monthly Payment in effect as of the Cut-Off Date;
(ix) the date of the last paid installment of interest;
(x) the unpaid Principal Balance as of the close of business on the Cut-Off Date;
(xi) the Original Loan-to-Value ratio;
(xii) the type of property and the Original Value of the Mortgaged Property;
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(xiii) whether a primary mortgage insurance policy is in effect as of the Cut-Off Date;
(xiv) the nature of occupancy at origination;
(xv) the first Adjustment Date;
(xvi) the Gross Margin;
(xvii) the Maximum Mortgage Interest Rate under the terms of the Mortgage Note;
(xviii) the Minimum Mortgage Interest Rate under the terms of the Mortgage Note;
(xix) the Periodic Rate Cap;
(xx) the first Adjustment Date immediately following the Cut-off Date;
(xxi) the Index;
(xxii) [reserved];
(xxiii) the Servicer;
(xxiv) the Servicing Fee Rate;
(xxv) the Custodian;
(xxvi) the Mortgagor's first and last name;
(xxvii) a code indicating whether the Mortgaged Property is owner-occupied;
(xxviii) the original months to maturity;
(xxix) the original date of the Mortgage Loan and the remaining months to maturity from the
Cut-off Date based on the original amortization schedule;
(xxx) the Mortgage Interest Rate in effect immediately following the Cut-off Date;
(xxxi) the amount of the Monthly Payment at origination;
(xxxii) the last Due Date on which a Monthly Payment was actually applied to the unpaid
stated principal balance;
(xxxiii) the scheduled principal balance of the Mortgage Loan as of the close of business on
the Cut-off Date;
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(xxxiv) a code indicating the purpose of the loan (i.e., purchase financing, rate/term
refinancing, cash-out refinancing);
(xxxv) a code indicating the documentation style (i.e., full, stated or limited);
(xxxvi) a code indicating if the Mortgage Loan is subject to a Primary Insurance Policy or
LPMI Policy;
(xxxvii) the Appraised Value of the Mortgaged Property;
(xxxviii) the sale price of the Mortgaged Property, if applicable;
(xxxix) a code indicating whether the Mortgage Loan is subject to a prepayment penalty, the
term of such penalty and the amount of such penalty;
(xl) the product type (e.g., 2/28, etc.); and
(xli) the Mortgagor's debt to income ratio.
Mortgage Note: The note or other evidence of the indebtedness of a Mortgagor with respect to a
Mortgage Loan.
Mortgaged Property: The real property securing repayment of the debt evidenced by a Mortgage
Note or, with respect to a Cooperative Loan, the related Cooperative shares and Proprietary Lease.
Mortgagor: The obligor on a Mortgage Note, the owner of the Mortgaged Property and the grantor
or borrower named in the related Mortgage and such grantor's or borrower's successors in title to the Mortgaged
Property.
Officer's Certificate: A certificate signed by the Chairman of the Board or the Vice Chairman
of the Board or the President or a Vice President and by the Treasurer or the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Person delivering such certificate.
Original Loan-to-Value Ratio: With respect to any Mortgage Loan as of any date of origination,
the ratio on such date of the original principal amount of the Mortgage Loan to the Appraised Value of the
Mortgaged Property.
Original Value: With respect to any Loan other than a Loan originated for the purpose of
refinancing an existing mortgage debt, the lesser of (a) the Appraised Value (if any) of the Mortgaged Property
at the time the Loan was originated or (b) the purchase price paid for the Mortgaged Property by the Mortgagor.
With respect to a Loan originated for the purpose of refinancing existing mortgage debt, the Original Value shall
be equal to the lesser of (a) the Appraised Value of the Mortgaged Property at the time the Loan was originated
or (b) the appraised value at the time the refinanced mortgage debt was incurred.
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Periodic Rate Cap: With respect to each adjustable-rate Mortgage Loan and any Adjustment Date
therefor, a number of percentage points per annum that is set forth in the Mortgage Loan Schedule and in the
related Mortgage Note, which is the maximum amount by which the Mortgage Interest Rate for such Mortgage Loan may
increase (without regard to the Maximum Mortgage Interest Rate) or decrease (without regard to the Minimum
Mortgage Interest Rate) on such Adjustment Date from the Mortgage Interest Rate in effect immediately prior to
such Adjustment Date.
Person: Any individual, corporation, partnership, joint venture, association, joint-stock
company, trust, limited liability company, unincorporated organization, government or any agency or political
subdivision thereof.
Pledge Instruments: With respect to each Cooperative Loan, the Stock Power, the Assignment of
Proprietary Lease and the Security Agreement.
Primary Insurance Policy: A policy of primary mortgage guaranty insurance issued by an insurer
that meets the requirements of FNMA and FHLMC.
Proprietary Lease: The lease on a Cooperative Unit evidencing the possessory interest of the
owner of the Cooperative Shares in such Cooperative Unit.
Recognition Agreement: An agreement among a Cooperative Corporation, a lender and a Mortgagor
with respect to a Cooperative Loan whereby such parties (i) acknowledge that such lender may make, or intends to
make, such Cooperative Loan and (ii) make certain agreements with respect to such Cooperative Loan.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which were not used to purchase the
related Mortgaged Property.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and
interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan 7, 2005)) or by the staff of the Commission,
or as may be provided by the Commission or its staff from time to time.
REO Property: A Mortgaged Property related to a Mortgage Loan, title to which has been acquired
by the Servicer on behalf of the Trust through foreclosure, deed in lieu of foreclosure or otherwise.
Requesting Party: Shall have the meaning set forth in Section 25 herein.
Residential Dwelling: Any one of the following: (i) a one-family dwelling, (ii) a two-to
four-family dwelling, (iii) a one-family dwelling unit in a FNMA eligible condominium project, (iv) a one-family
dwelling in a planned unit development or (v) a co-operative, none of which is a commercial property or a
mixed-use property.
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Security Agreement: With respect to a Cooperative Loan, the agreement or mortgage creating a
security interest in favor of the originator of the Cooperative Loan in the related Cooperative Shares.
Seller: As defined in the recitals hereto.
Servicer: PHH Mortgage Corporation or any successor in interest or assigns.
Servicing Fee Rate: With respect to each Loan, the related per annum rate for such Mortgage
Loan, as set forth on the Loan Schedule.
Stock Power: With respect to a Cooperative Loan, an assignment of the stock certificate or an
assignment of the Cooperative Shares issued by the Cooperative Corporation.
Subcontractor: Any vendor, subcontractor or other Person that is not responsible for the
overall servicing (as "servicing" is commonly understood by participants in the mortgage-backed securities
market) of Mortgage Loans but performs one or more discrete functions identified in Item 1122(d) of Regulation AB
with respect to Mortgage Loans under the direction or authority of the Custodian.
Substitute Mortgage Loan: As defined on Exhibit 11 hereto.
Trust: As defined in the recitals hereto.
Trust Receipt and Initial Certification: A Trust receipt and certification, in the form
annexed hereto as Exhibit 1, which Trust Receipt and Initial Certification is delivered to the Indenture Trustee
by the Custodian pursuant to the requirements of Section 3 below.
Section 2. Delivery of Custodial Files.
With respect to each Mortgage Loan identified in the Mortgage Loan Schedule, the Depositor has
delivered and released, or will cause to be delivered and released, to the Custodian on or prior to the Closing
Date the documents or instruments described in Schedule B-1 of the Purchase and Servicing Agreement.
From time to time, the Servicer shall forward or cause to be forwarded to the Custodian
additional original documents, or additional original documents evidencing an assumption, modification,
consolidation or extension of a Mortgage Loan. All such mortgage documents held by the Custodian as to each
Mortgage Loan shall constitute the "Custodial File".
The Custodian agrees to execute and deliver to the Depositor and the Issuer on or prior to the
Closing Date an acknowledgment of receipt of the original Mortgage Note (with any exceptions noted),
substantially in the form attached as Exhibit 13 hereto.
The Custodian hereby agrees to its duties set forth in Sections 2 and 3 of Exhibit 11 annexed
hereto with respect to Substitute Mortgage Loans.
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If a Mortgage Note or Mortgage is required in connection with a prepayment, the Custodian shall
fax or send by overnight mail a copy of such document to the Servicer within two (2) Business Days of such
Servicer's request therefor. Neither the Custodian nor the Servicer shall be liable for such Servicer's failure
to collect prepayment charges for which it is unable to obtain the requisite documents to review.
Section 3. Custodian's Receipt, Examination and Certification of Mortgage Files; Initial
Trust Receipt Delivered by the Custodian.
Not later than the Closing Date, the Custodian shall deliver to the Indenture Trustee and the
Servicer a Trust Receipt and Initial Certification, wherein the Custodian shall state that other than as
identified on the exception report attached to such Trust Receipt and Initial Certification, as to each Mortgage
Loan: (i) a Mortgage Note is present and has been endorsed in accordance with the requirements of Section 2 of
this Agreement; (ii) that is not a Cooperative Loan, each intervening endorsement or intervening assignment of
mortgage is present in accordance with the requirements of this Agreement; (iii) that is not a Cooperative Loan,
an Assignment of Mortgage has been delivered in accordance with the requirements of this Agreement; (iv) that is
a Cooperative Loan, the Cooperative Shares and Stock Power have been delivered in accordance with the
requirements of this Agreement; (v) that is a Cooperative Loan, the Proprietary Lease and Assignment of
Proprietary Lease have been delivered in accordance with the requirements of this Agreement; and (vi) based upon
such examination of the Mortgage Note only, the information set forth in items (i), (ii), (iii), (v), (vi), (vii)
and (xxvi) of the definition of Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects the
information on the Mortgage Loan Schedule. With respect to each Mortgage Loan, the Custodian shall indicate on
the exception report attached to the Trust Receipt and Initial Certification whether (i) any of the documents
required to be delivered pursuant to Section 2 above are not present and (ii) the power of attorney delivered
pursuant to Section 2 is not an original.
The Custodian makes no representations as to (i) the validity, legality, enforceability,
recordability or genuineness of any of the Custodial Files identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any Mortgage Loan. The Custodian shall not conduct
an independent review of the Custodial File other than as expressly provided in this Agreement. In addition to
the foregoing, the document exception report referenced herein shall also be delivered to the Indenture Trustee
in an electronic form acceptable to the Indenture Trustee.
Section 4. Obligations of the Custodian.
(a) With respect to the Mortgage Note, the Mortgage and the Assignment of Mortgage and
other documents constituting each Custodial File, which either (i) are delivered to the Custodian or (ii) come
into the possession of the Custodian, the Custodian is the custodian for the Indenture Trustee exclusively. The
Custodian shall hold all mortgage documents received by it constituting the Custodial File for the exclusive use
and benefit of the Indenture Trustee, and shall make disposition thereof only in accordance with this Agreement
and the instructions furnished by the Indenture Trustee. The Custodian shall segregate and maintain continuous
custody of all mortgage documents constituting the Custodial File in secure and fire-resistant facilities in
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accordance with customary standards for such custody. The Custodian shall not be responsible to verify (i) the
validity, legality, enforceability, sufficiency, due authorization or genuineness of any document in each
Custodial File or of any of the Mortgage Loans or (ii) the collectability, insurability, effectiveness or
suitability of any Mortgage Loan. The Custodian shall not execute any endorsements on the Mortgage Notes and
Assignments of Mortgages without the prior written consent of the Indenture Trustee, except as otherwise set
forth in Section 2 of this Agreement or as otherwise agreed to in writing between the Indenture Trustee and the
Custodian.
(b) On or before March 1st of each calendar year beginning with March 1, 2009, the
Custodian shall, at its own expense, cause a firm of independent public accountants (who may also render other
services to Custodian), which is a member of the American Institute of Certified Public Accountants, to furnish
to the Master Servicer and the Depositor a report to the effect that such firm attests to and reports on, the
assessment made by such asserting party pursuant to the following paragraph, which report shall be made in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Exchange Act.
On or before March 1st of each calendar year, beginning with March 1, 2009, the Custodian shall
deliver to the Master Servicer, a report regarding its assessment of compliance with the servicing criteria
identified in Exhibit 12 attached hereto, as of and for the fiscal year ending no later than December 31 of the
year prior to the year of delivery of the report, as required under Rules 13a-18 and 15d-18 of the Exchange Act
and Item 1122 of Regulation AB. Each such report shall include (a) a statement of the party's responsibility for
assessing compliance with the servicing criteria applicable to such party, (b) a statement that such party used
the criteria identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to assess compliance with the applicable
servicing criteria, (c) disclosure of any material instance of noncompliance identified by such party, and (d) a
statement that a registered public accounting firm has issued an attestation report on such party's assessment of
compliance with the applicable servicing criteria, which report shall be delivered by the Custodian as provided
in this Section 4.
The Custodian has not and shall not engage any Subcontractor which is "participating in the
servicing function " within the meaning of Item 1122 of Regulation AB, unless such Subcontractor provides,
beginning March 1, 2008, a report and a statement of a registered public accounting firm certifying its
compliance with the applicable servicing criteria in Item 1122(d) of Regulation AB.
The Custodian agrees to indemnify the Depositor, the Indenture Trustee, the Master Servicer and
the Securities Administrator and each of their respective directors, officers and employees and the Trust fund
(each an "Indemnified Party") and hold each harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees, expenses and related costs, judgments, and any other costs, fees and expenses that any
of them may sustain directly relating to (a) any breach by the Custodian of its obligations under this
Section 4(b), including particularly its obligations to provide any assessment of compliance or attestation report
required to be included in any 1934 Act report, (b) any misstatement or omission in any assessment of compliance
or attestation report provided by the Custodian or any Subcontractor, or (c) the negligence, bad faith or willful
misconduct of the Custodian in connection with its performance under this Section 4(b). If the indemnification
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provided for herein is unavailable or insufficient to hold harmless any Indemnified Party, then the Custodian
agrees that it shall contribute to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party in such proportion as is appropriate to
reflect the relative fault of such Indemnified Party on the one hand and the Custodian on the other. This
indemnification shall survive the termination of this Agreement or the termination of the Custodian.
If so requested by the Master Servicer, Securities Administrator, Depositor or Indenture
Trustee, on any date following the Closing Date, the Custodian shall within (5) five Business Days following such
request, confirm in accuracy of the representations and warranties set forth in Section 28 or, if any such
representation and warranty is not accurate as of the date of such confirmation, provide reasonably adequate
disclosure of the pertinent facts, in writing, to the requesting party. Any such request shall not be given more
than once each calendar quarter, unless such requesting party has a reasonable basis for a determination that any
of the representations and warranties may not be accurate.
For so long as the Notes are outstanding, for the purpose of satisfying the Depositor's, Master
Servicer's and Securities Administrator's reporting obligations under the Exchange Act with respect to any class
of Notes, the Custodian shall (a) notify the Depositor, Master Servicer and Securities Administrator in writing
of any material litigation or governmental proceedings pending against the Custodian that would be material to
the holder of a Note, and (b) provide to the Depositor, Master Servicer and Securities Administrator, a written
description of such proceedings. Any notices and descriptions required under this paragraph shall be given no
later than five Business Days prior to the Determination Date following the month in which the Custodian has
knowledge of the occurrence of the relevant event. As of the date the Depositor, Master Servicer or Securities
Administrator files each Report on Form 10-D or Form 10-K with respect to the Notes, the Custodian will be deemed
to represent that any information previously provided under this Section 4, if any, is materially correct and
does not have any material omissions unless the Custodian has provided an update to such information.
Section 5. Final Trust Receipt.
Within one hundred twenty (120) days after the Closing Date the Custodian shall review with
respect to each Custodial File that the Depositor has delivered and released to the Custodian, the documents or
instruments described in Schedule 1 attached hereto.
Within one hundred twenty (120) days after the Closing Date, the Custodian, following such
review, shall deliver to the Indenture Trustee (with a copy to the Depositor, the Master Servicer, the Servicer and
the Seller), a Final Trust Receipt to the effect that, as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan (a) paid in full, or (b) specifically identified on such Final Trust Receipt
as not covered by such Final Trust Receipt), (i) all documents required to be delivered to it pursuant to Section 5
of this Agreement are in its possession; (ii) such documents have been reviewed by it and appear regular on their
face and relate to such Mortgage Loan; (iii) based on its examination and only as to the foregoing documents, the
information set forth in items (i), (ii), (iii), (v), (vi), (vii), and (xxvi) of the definition of Mortgage Loan
Schedule respecting such Mortgage Loan accurately reflects the information on the Mortgage Loan
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Schedule; and (v) each Mortgage Note has been endorsed as provided in Section 5 of this Agreement and each
Mortgage has been assigned in accordance with Section 5 of this Agreement.
Section 6. Future Defects.
During the term of this Agreement, if the Custodian discovers any defect with respect to the
Custodial File, the Custodian shall give written specification of such defect to the Master Servicer, the
Depositor, the Servicer and the Indenture Trustee. The Custodian shall not be responsible or liable for
completing or correcting any missing, incomplete or inconsistent documents, causing any other person or entity to
do so or notifying any person that any such action has or has not been taken.
Section 7. Release for Servicing.
From time to time and as appropriate for the foreclosure or servicing of any of the Mortgage
Loans, the Custodian shall, upon receipt of two copies (or electronic receipt) from the Servicer of a request for
release of Custodial File and receipt in the form similar to the form annexed hereto as Exhibit 3, or such other
form in electronic format acceptable to the Custodian, within five (5) Business Days release to the Servicer, the
related Custodial File. All Custodial Files so released to the Servicer shall be held in trust by the Servicer
for the sole benefit of the Indenture Trustee in accordance with the terms of this Agreement. The Servicer shall
return to the Custodian the Custodial File when the Servicer's need therefor in connection with such foreclosure
or servicing no longer exists, unless the Mortgage Loan shall be liquidated in which case, upon receipt of an
additional request for release of Custodial File and receipt certifying such liquidation in the form similar to
the form annexed hereto as Exhibit 3, or such other form in electronic format acceptable to the Custodian, the
request and receipt submitted pursuant to the first sentence of this Section 7 shall be released by the Custodian
to the Servicer. In connection with the Servicer's processing of a payoff request for a Mortgage Loan, if
required by the Servicer in order to calculate the prepayment penalties, if any, to be charged in connection with
such payoff, the Servicer may submit a request for release of Custodial File and receipt in the form similar to
the form annexed hereto as Exhibit 3, with item (5) checked (or some other form in electronic format acceptable
to the Custodian, indicating the same information) and stating that the Servicer requests a copy of the note
rider or other document in the Custodial File describing the prepayment penalty. The Custodian will provide to
the Servicer a facsimile (or other electronic copy) of the document so requested within 48 hours following the
receipt of such request, however the Custodian will use reasonable efforts to provide such requested documents as
soon as possible following receipt of such requests; provided that, if the Custodian receives more than fifty
(50) such payoff requests on any single Business Day, the Custodian will use reasonable efforts to provide such
requested documents as soon as practicable following receipt of such requests.
In addition, from time to time and as requested by the Indenture Trustee, the Custodian is
hereby authorized, upon written receipt of two copies (or electronic receipt) from the Indenture Trustee, of a
request for release of Custodial File in substantially the form annexed hereto as Exhibit 3, or such other form
in electronic format acceptable to the Custodian, to release to the Indenture Trustee or its designee the related
Custodial File. In order to facilitate the administration of certain customary servicing functions with respect
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to any Mortgage Loans for which the related Mortgage has been assigned to the Indenture Trustee as provided
herein, the Indenture Trustee shall simultaneously with the execution and delivery of this Agreement, and
thereafter from time to time upon request of the Servicer, execute and deliver a reasonable number of originals
of a limited power of attorney, appointing as attorney-in-fact either the Servicer or, at the Servicer's
discretion, an agent of the Servicer, substantially in the form attached hereto as Exhibit 9. The Servicer shall
indemnify the Trust fund, the Indenture Trustee and its officers, directors and agents for any and all
liabilities, obligations, losses, compensatory damages, payments, costs or expenses of any kind whatsoever,
including reasonable attorney's fees, that may be imposed on, incurred by or asserted against the Trust fund or
the Indenture Trustee as a result of the Servicer's misuse of such power of attorney and/or the release of any
Mortgage Loans or Custodial Files to the Servicer or the retention of the Mortgage Loans and Custodial Files by
the Servicer or any of its Affiliates; provided, however, the Servicer shall not be liable to any of the
foregoing Persons for any amount and any portion of any such amount resulting from the willful misfeasance, bad
faith or negligence of such Person. The provisions of this Section 7 shall survive the termination of this
Agreement and/or the termination or resignation of the Servicer.
In addition to the foregoing releases, the Custodian shall, upon receipt of two copies (or
electronic receipt) from a Seller of a request for release in the form annexed hereto as Exhibit 3, or such other
form in electronic format acceptable to the Custodian, within five (5) Business Days release to such Seller the
Custodial File for each Mortgage Loan for purposes of submitting such assignment for recordation.
Section 8. Release for Payment.
Upon receipt by the Custodian of two copies (or electronic receipt) from the Servicer of the
Servicer's request for release of Custodial File and receipt in the form similar to the form annexed hereto as
Exhibit 3, or such other form (which may be in electronic format) acceptable to the Custodian, (which
certification shall include a statement to the effect that all amounts received or to be received in connection
with such payment, repurchase or liquidation have been or will be credited to the related custodial account), the
Custodian shall within five (5) Business Days release the related Custodial File to the Servicer.
In the event that the Servicer does not request the release of the mortgage files, then upon
receipt by the Custodian of two copies (or electronic receipt) from the Master Servicer of the Master Servicer's
request for release of Custodial File and receipt in the form annexed hereto as Exhibit 3, or such other form
acceptable to the Custodian, (which certification shall include a statement to the effect that all amounts
received or to be received in connection with such payment, repurchase or liquidation have been or will be
credited to the Distribution Account), the Custodian shall within five (5) Business Days release the related
Custodial File to the Master Servicer.
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Section 9. Fees and Expenses of Custodian.
The Custodian's fees in connection herewith shall be paid by the Master Servicer. The payment
of the Custodian's expenses in connection herewith, shall be solely the obligation of the Trust fund.
Section 10. Removal of Custodian.
The Indenture Trustee may upon at least sixty (60) days' notice remove and discharge the
Custodian, with cause, from the performance of its duties under this Agreement by written notice from the
Indenture Trustee to the Custodian, with a copy to the Servicer; provided however, if the Custodian fails to
deliver any information, certifications or reports required under Section 4, the Indenture Trustee may remove and
discharge the Custodian immediately upon written notice to the Custodian with a copy to the Servicer. Having
given notice of such removal, the Indenture Trustee promptly shall appoint a successor Custodian to act on behalf
of the Indenture Trustee by written instrument, one original counterpart of which instrument shall be retained by
the Indenture Trustee, with a copy to the Servicer, and an original to the successor Custodian. In the event of
any such removal, the Custodian shall, upon the Indenture Trustee's surrender of the Trust Receipt and Initial
Certification and Final Trust Receipt, as applicable, promptly transfer to the successor Custodian, as directed,
all Custodial Files being administered under this Agreement. In the event of any such removal and appointment
the Trust fund shall be responsible for the fees and expenses of the existing and successor Custodian.
Section 11. Transfer of Custodial Files.
Upon two (2) Business Days' prior written or electronic notification from the Indenture Trustee
to the Custodian, the Custodian shall release to such persons as the Indenture Trustee shall designate all or a
portion of the Custodial Files relating to the Mortgage Loans subject to the Trust Receipt and Initial
Certification or Final Trust Receipt, as applicable; provided, however, if the Custodian is provided written or
electronic notification from the Indenture Trustee on the day the transfer is requested, prior to 12:00 P.M.
Pacific Time on such day, the Custodian shall transfer not more than one hundred (100) Custodial Files or such
other amount mutually agreed upon in writing by the Indenture Trustee and the Custodian.
Section 12. Examination of Custodial Files.
Upon two (2) Business Days' prior written notice to the Custodian and at the requesting party's
expense, the parties to this Custodial Agreement, and each of their respective agents, accountants, attorneys and
auditors, will be permitted during normal business hours to examine, inspect, and make copies of, the Custodial
Files and any and all documents, records and other instruments or information in the possession of or under the
control of the Custodian relating to any or all of the Mortgage Loans.
Section 13. Insurance of Custodian.
At its own expense, the Custodian shall maintain at all times during the existence of this
Agreement and keep in full force and effect such insurance in amounts, with standard coverage and subject to
deductibles, all as is customary for insurance typically maintained by banks which act as a custodian. The
15
minimum coverage under any such bond and insurance policies shall be at least equal to the corresponding amounts
required by FNMA in the FNMA Servicing Guide or by FHLMC in the FHLMC Sellers' & Servicers' Guide. Upon request,
the Indenture Trustee shall be entitled to receive evidence satisfactory to the Indenture Trustee that such
insurance is in full force and effect.
Section 14. Counterparts.
For the purpose of facilitating the execution of this Agreement as herein provided and for
other purposes, this Agreement may be executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall constitute and be one and the same
instrument.
Section 15. Periodic Statements.
Upon the written request of the Indenture Trustee, the Custodian shall provide to the Indenture
Trustee a list of all the Mortgage Loans for which the Custodian holds a Custodial File pursuant to this
Agreement. Such list may be in the form of a copy of the Mortgage Loan Schedule with manual deletions to
specifically denote any Mortgage Loans paid off, repurchased or sold since the date of this Agreement.
Section 16. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW),
AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 17. Copies of Mortgage Documents.
Upon the written request of the Indenture Trustee or a Servicer and at the cost and expense of
the Trust fund, the Custodian shall provide the Indenture Trustee with copies of the Mortgage Notes, Mortgages,
Assignments of Mortgage, lender's title insurance policy and other documents relating to one or more of the
Mortgage Loans.
Section 18. No Adverse Interest of Custodian.
By execution of this Agreement, the Custodian represents and warrants that it currently holds,
and during the existence of this Agreement shall hold, no interest adverse to the Indenture Trustee, by way of
security or otherwise, in any Mortgage Loan, and hereby waives and releases any such interest which it may have
in any Mortgage Loan as of the date hereof.
Section 19. Termination by Xxxxxxxxx.
The Custodian may terminate its obligations under this Agreement upon at least sixty (60) days'
prior notice to the Servicer and the Indenture Trustee. In the event of such termination, the Indenture Trustee
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shall appoint a successor Xxxxxxxxx. The payment of the existing Custodian's or such successor Custodian's fees
and expenses shall be solely the responsibility of the Trust. Upon such appointment, the Custodian shall
promptly transfer to the successor Custodian, as directed, all Custodial Files being administered under this
Agreement.
Section 20. Term of Agreement.
Unless terminated pursuant to Section 10 or Section 19 hereof, this Agreement shall terminate
upon the final payment or other liquidation (or advance with respect thereto) of the last Mortgage Loan or the
disposition of all property acquired upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan, and
the final remittance of all funds due under the Sale and Servicing Agreement. In such event all documents
remaining in the Custodial Files shall be released in accordance with the written instructions of the Indenture
Trustee.
Section 21. Notices.
All demands, notices and communications hereunder shall be in writing and shall be deemed to
have been duly given when received by the recipient party (i) in the case of the Seller and the Servicer, 0000
Xxxxxxxxxx Xxxx, Xx. Laurel, NJ 08054, Attention: Vice President Servicing - PHHMC 2008-CIM2, (ii) in the case of
the Depositor, Credit Suisse First Boston Mortgage Acceptance Corp., 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx, 00000 Attention: Xxxxx Xxxx, (iii) in the case of the Custodian, at the address shown on the first page
hereof, (iv) in the case of the Indenture Trustee, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: CTLA —
PHHMC 2008-CIM2, and (v) in the case of the Master Servicer, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: PHHMC 2008-CIM2, or in any case, at such other addresses as may hereafter be
furnished to the other party by like notice. Any such demand, notice or communication hereunder shall be deemed
to have been received on the date delivered to or received at the premises of the addressee.
Section 22. Successors and Assigns.
This Agreement shall inure to the benefit of the successors and assigns of the parties hereto;
provided however, that the form of any assignment by any party of its interests hereunder shall be in a form
reasonably acceptable to the Indenture Trustee, the Servicer and the Custodian. Such assignment shall be executed
by an authorized representative of the assignor and any assignee shall forward a list of authorized
representatives to each party to this Agreement pursuant to Section 26 of this Agreement.
Section 23. Indemnification of Custodian.
The Custodian and its directors, officers, agents and employees shall be indemnified and held
harmless by the Trust against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable
attorney's fees, that may be imposed on, incurred by, or asserted against it or them in any way relating to or
arising out of this Custodial Agreement or any action taken or not taken by it or them hereunder unless such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements
were imposed on, incurred by or asserted against the Custodian because of the breach by the Custodian of its
17
obligations hereunder, which breach was caused by negligence, lack of good faith or willful misconduct on the
part of the Custodian or any of its directors, officers, agents or employees. In no event shall the Custodian or
its directors, officers, agents and employees be held liable for any special, indirect or consequential damages
from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of
the possibility of such damages. The indemnification set forth in this section shall survive any termination or
assignment of this Custodial Agreement and the termination or removal of the Custodian.
Section 24. Reliance of Custodian.
(a) The Custodian may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any request, instructions, certificate, opinion or other
document furnished to the Custodian, reasonably believed by the Custodian to be genuine and to have been signed
or presented by the proper party or parties and conforming to the requirements of this Agreement; but in the case
of any loan document or other request, instruction, document or certificate which by any provision hereof is
specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same
to determine, subject to the limitations on the Custodian's obligations set forth herein, whether or not it
conforms to the requirements of this Agreement.
(b) The Custodian shall have no duties or responsibilities except those that are
specifically set forth in this Agreement. The Custodian shall have no responsibility nor duty with respect to any
Custodial File while such Custodial File is not in its possession. If the Custodian requests instructions from
the Indenture Trustee with respect to any act, action or failure to act in connection with this Agreement, the
Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and
until the Custodian shall have received written instructions from the Indenture Trustee with respect to a
Custodial File without incurring any liability therefor to the Indenture Trustee or any other Person.
(c) Other than as provided herein, neither the Custodian nor any of its directors,
officers, agents or employees shall be liable for any action or omission to act hereunder except for its or their
own negligence or lack of good faith or willful misconduct. In no event shall the Custodian or any of its
directors, officers, agents or employees have any responsibility to ascertain or take action except as expressly
provided herein.
(d) Neither the Custodian nor any of its directors, officers, agents or employees shall be
liable for any action taken or not taken by it or them in good faith in the performance of its obligations under
this Agreement. The obligations of the Custodian or any of its directors, officers, agents or employees shall be
determined solely by the express provisions of this Agreement. No representation, warranty, covenant, agreement,
obligation or duty of the Custodian or any of its directors, officers, agents or employees shall be implied with
respect to this Agreement or the Custodian's services hereunder.
(e) The Custodian, its directors, officers, agents and employees shall be under no duty or
obligation to inspect, review or examine the Custodial Files to determine that the contents thereof are genuine,
enforceable or appropriate for the represented purpose or that they have been actually recorded or that they are
other than what they purport to be on their face.
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(f) The Custodian may consult with counsel selected by the Custodian with regard to legal
questions arising out of or in connection with this Agreement, and the advice or opinion of such counsel shall be
full and complete authorization and protection in respect of any action reasonably taken, omitted or suffered by
the Custodian in good faith and in accordance therewith.
(g) No provision of this Agreement shall require the Custodian to expend or risk its own
funds or otherwise incur financial liability (other than expenses or liabilities otherwise required to be
incurred by the express terms of this Agreement) in the performance of its duties under this Agreement if it
shall have reasonable grounds for believing that repayment of such funds or adequate indemnity is not reasonably
assured to it.
(h) Any corporation into which the Custodian may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the
Custodian shall be a party, or any corporation succeeding to the business of the Custodian shall be the successor
of the Custodian hereunder without the execution or filing of any paper with any party hereto or any further act
on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law
to effect such succession, anything herein to the contrary notwithstanding.
Section 25. Transmission of Custodial Files.
Written or electronic instructions as to the method of shipment and shipper(s), which the
Custodian is directed to utilize in connection with transmission of mortgage files and loan documents in the
performance of the Custodian's duties hereunder, shall be delivered by the applicable Servicer or the Indenture
Trustee (each a "Requesting Party") to the Custodian prior to any shipment of any mortgage files and loan
documents hereunder; and the cost of transmitting such files shall be reimbursable from the Trust fund. Without
limiting the generality of the provisions of Section 23 above, it is expressly agreed that in no event shall the
Custodian have any liability for any losses or damages to any person, including without limitation, any
Requesting Party, arising out of actions of the Custodian consistent with instructions of the Requesting Party.
Section 26. Authorized Representatives.
Each individual designated as an authorized representative of the Indenture Trustee, the
Custodian and the Servicer respectively (an "Authorized Representative"), is authorized to give and receive
notices, requests and instructions and to deliver certificates and documents in connection with this Agreement on
behalf of the Indenture Trustee, the Custodian and the Servicer, as the case may be, and the specimen signature
for each such Authorized Representative of the Indenture Trustee, the Custodian and the Servicer initially
authorized hereunder, as set forth on Exhibit 4, Exhibit 5 and Exhibit 6 hereof, respectively. From time to time
the parties hereto may change the information previously given pursuant to this Section 26 by delivering a
revised exhibit to (i) all parties with respect to the Custodian and the Indenture Trustee or (ii) the Custodian
and the Indenture Trustee with respect to the Servicer; provided; however, each of the parties hereto shall be
entitled to rely conclusively on the then current exhibit until receipt of a superseding exhibit.
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Section 27. Reproduction of Documents.
This Custodial Agreement and all documents relating thereto except with respect to the
Custodial File, including, without limitation, (a) consents, waivers and modifications which may hereafter be
executed, and (b) certificates and other information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, microcard, miniature photographic or other similar process. The parties
agree that any such reproduction shall be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence and whether or not such reproduction was
made by a party in the regular course of business, and that any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence.
Section 28. Custodian Representations.
The Custodian shall be deemed to represent to the Depositor, Master Servicer, Securities
Administrator and Indenture Trustee as of the date hereof and on each date on which information is provided to
such parties under Section 4 that, except as disclosed in writing prior to such date: (A) there are no aspects
of its financial condition that could have a material adverse effect on the performance by it of its Custodian
obligations under this Agreement or any other similar asset backed securitization transaction as to which it is
the custodian; (B) there are no material legal proceedings pending against it or any material governmental
proceedings pending (or known to be contemplated) against it; and (C) there are no affiliations, relationships or
transactions relating to the Custodian with respect to the Depositor, Master Servicer, Securities Administrator
or Indenture Trustee or any sponsor, issuing entity, servicer, originator, significant obligor, enhancement or
support provider or other material transaction party (as such terms are used in Regulation AB) relating to the
securitization transaction contemplated by this Agreement.
Section 29. Amendment.
This Custodial Agreement may be amended from time to time by written agreement signed by the
Servicer, the Indenture Trustee and the Custodian.
Section 30. Limitations on the Responsibilities of the Custodian.
(a) Neither the Custodian nor any of its Affiliates, directors, officers, agents, counsel,
attorneys-in-fact, and employees shall be liable for any action or omission to act hereunder except for its own
or such person's gross negligence or willful misconduct. Notwithstanding the foregoing sentence, in no event
shall the Custodian or its Affiliates, directors, officers, agents, counsel, attorneys-in-fact, and employees be
held liable for any special, indirect, punitive or consequential damages resulting from any action taken or
omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such
damages. The provisions of this Section 30 shall survive the resignation or removal of the Custodian and the
termination of this Agreement.
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(b) The Custodian shall not be responsible for preparing or filing any reports or returns
relating to federal, state or local income taxes with respect to this Agreement, other than for the Custodian's
compensation or for reimbursement of expenses.
(c) The Custodian shall not be responsible or liable for, and makes no representation or
warranty with respect to, the validity, adequacy or perfection of any lien upon or security interest in any
Mortgage Loan.
(d) The Custodian shall not be responsible for delays or failures in performance resulting
from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts,
riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental
regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures,
earthquakes or other disasters of similar nature, provided however, the Custodian shall take reasonably
appropriate measures to prevent any such acts from causing delays and failures in performance under this
Agreement.
(e) The duties and obligations of the Custodian shall only be such as are expressly set
forth in this Agreement or as set forth in a written amendment to this Agreement executed by the parties hereto
or their successors and assigns. In the event that any provision of this Agreement implies or requires that
action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from
acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from
acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly
provided herein.
(f) Nothing in this Agreement shall be deemed to impose on the Custodian any duty to
qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage Loan is or may be
held by the Custodian from time to time hereunder, and (ii) any jurisdiction where its ownership of property or
conduct of business requires such qualification and where failure to qualify could have a material adverse effect
on the Custodian or its property or business or on the ability of the Custodian to perform it duties hereunder.
(g) The Custodian shall have no duty to ascertain whether or not any cash amount or
payment has been received by the Indenture Trustee, any Servicer or any third person.
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IN WITNESS WHEREOF, the Indenture Trustee, the Custodian and the Servicer have caused their
names to be duly signed hereto by their respective officers thereunto duly authorized, all as of the date first
above written.
HSBC BANK USA, NATIONAL ASSOCIATION, PHH MORTGAGE CORPORATION,
as Indenture Trustee for the PHH Mortgage Trust, as Servicer
Series 2008-CIM2, Mortgage-Backed Notes
By: ________________________________
By: ________________________________ Name: ______________________________
Name: ______________________________ Title: ________________________________
Title: ________________________________
XXXXX FARGO BANK, N.A.,
as Custodian
By: __________________________________
Name: ________________________________
Title: _________________________________
SCHEDULE 1
DOCUMENTS TO REVIEW
With respect to each Custodial File, the Custodian will review:
1. the Mortgage Note and the Mortgage each appear to bear an original signature or signatures
purporting to be the signature or signatures of the Person or Persons named as the maker and
Mortgagor, or in the case of copies of the Mortgage permitted under Section 5 of the Agreement,
that such copies bear a reproduction of such signature;
2. amount of the Mortgage Note is the same as the amount specified on the related Mortgage and
Loan Schedule;
3. the mortgagee is the same as the payee on the Mortgage Note;
4. the Mortgage contains a legal description other than address, city and state on the page and
has evidence of recording thereon provided that Custodian shall have no responsibility for the
accuracy or completeness of such legal description;
5. the notary section (acknowledgment) is present and attached to the related Mortgage and is
signed;
6. neither the original Mortgage Note, nor the copy of the Mortgage delivered pursuant to the
Agreement, nor the original Assignment of Mortgage contain any notations on their face which
appear in the good faith judgment of Custodian to evidence any claims, liens, security
interests, encumbrances or restrictions on transfer;
7. the Mortgage Note is endorsed in blank by the last holder or payee thereof;
8. each original Assignment of Mortgage in blank, except in the case of such loan is MERS, and any
intervening assignment of mortgage, (or in the case of a MERS designated mortgage loan, MERS)
if applicable, appears to bear the original signature of the named mortgagee or beneficiary
including any subsequent assignors, as applicable, or in the case of copies permitted under
Section 5 of the Agreement, that such copies appear to bear a reproduction of such signature of
signatures, and the intervening assignments of mortgage evidence a complete chain of assignment
and transfer of the related Mortgage from the originating Person to last holder;
9. the notary section (acknowledgment) is present and attached to each intervening assignment and
is signed; and
10. based upon a review of the Mortgage Note, the loan identification number, the borrower name,
the property address (including, street address, city, state and zip code), the original loan
amount, the interest rate, the date of the Mortgage Note, the first payment date and the
maturity date for each asset class as set forth in the Mortgage Loan Schedule delivered by
Seller to Custodian are correct.
2
EXHIBIT 1
FORM OF TRUST RECEIPT AND INITIAL CERTIFICATION
_________________, 200_
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PHH Mortgage Corporation
0000 Xxxxxxxxxx Xxxx
Xx. Laurel, NJ 08054
Re: Custodial Agreement, dated as of July 1, 2008, among HSBC Bank USA, National
Association, as the Indenture Trustee, Xxxxx Fargo Bank, N.A., as the Custodian, and
PHH Mortgage Corporation, as the Servicer
Ladies and Gentlemen:
In accordance with the provisions of Section 3 of the above-referenced Custodial Agreement, the
undersigned, as the Custodian, hereby certifies that as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan listed on the attachment hereto) it has
reviewed the Custodial Files and has determined that (i) all documents required to be delivered to it pursuant to
Sections 2 of the Custodial Agreement are in its possession; (ii) such documents have been reviewed by it and
appear regular on their face and related to such Mortgage Loan; (iii) based on its examination and only as to the
foregoing documents, the information set forth in items (i), (ii), (iii), (v), (vi), (vii) and (xxvi) of the
definition of Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects the information on the
Mortgage Loan Schedule; and (iv) each Mortgage Note has been endorsed as provided in Section 2 of the Custodial
Agreement and each Mortgage has been assigned in accordance with Section 2 of the Custodial Agreement. The
Custodian makes no representations as to (i) the validity, legality, enforceability, sufficiency, due
authorization or genuineness of any of the documents contained in each Custodial File or of any of the Mortgage
Loans or (ii) the collectability, insurability, effectiveness or suitability of any such Mortgage Loan.
The Custodian hereby confirms that it is holding each such Custodial File as agent and bailee
of and custodian for the exclusive use and benefit of the Indenture Trustee pursuant to the terms of the
Custodial Agreement.
Capitalized terms used herein shall have the meaning ascribed to them in the Custodial
Agreement.
XXXXX FARGO BANK, N.A.
(Custodian)
By:___________________________
Name: ________________________
Title: _________________________
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EXHIBIT 2
FORM OF FINAL TRUST RECEIPT
_________ __, 200_
Aggregate Amount of Mortgage Loans: _____
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Mortgage Acceptance Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, N.A.
P.O. Box 98
Columbia, Maryland 21046
PHH Mortgage Corporation
0000 Xxxxxxxxxx Xxxx
Xx. Laurel, NJ 08054
Re: Custodial Agreement, dated as of July 1, 2008, among HSBC Bank USA, National
Association, as the Indenture Trustee, Xxxxx Fargo Bank, N.A., as the Custodian, and
PHH Mortgage Corporation, as the Servicer
Ladies and Gentlemen:
In accordance with the provisions of Section 5 of the above-referenced Custodial Agreement, the
undersigned, as the Custodian, hereby certifies that as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan listed on the attachment hereto) it has
reviewed the Custodial Files and has determined that (i) all documents required to be delivered to it pursuant to
Section 5 of the Custodial Agreement are in its possession (notwithstanding anything herein to the contrary, the
Custodian shall not be responsible for verifying any endorsements or riders associated with the title policy);
(ii) such documents have been reviewed by it and appear regular on their face and related to such Mortgage Loan;
(iii) based on its examination and only as to the foregoing documents, the information set forth in items (i),
(ii), (iii), (v), (vi), (vii) and (xxvi) of the definition of Mortgage Loan Schedule respecting such Mortgage
Loan accurately reflects the information on the Mortgage Loan Schedule; and (iv) each Mortgage Note has been
endorsed as provided in Section 5 of the Custodial Agreement and each Mortgage has been assigned in accordance
with Section 5 of the Custodial Agreement. The Custodian makes no representations as to (i) the validity,
legality, enforceability, sufficiency, due authorization or genuineness of any of the documents contained in each
Custodial File or of any of the Mortgage Loans or (ii) the collectability, insurability, effectiveness or
suitability of any such Mortgage Loan.
The Custodian hereby confirms that it is holding each such Custodial File as agent and bailee
of, and custodian for the exclusive use and benefit, and subject to the sole direction, of the Indenture Trustee
pursuant to the terms and conditions of the Custodial Agreement.
Capitalized terms used herein shall have the meaning ascribed to them in the Custodial
Agreement.
XXXXX FARGO BANK, N.A.
(Custodian)
By:___________________________
Name: ________________________
Title: _________________________
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EXHIBIT 3
FORM OF REQUEST FOR RELEASE OF CUSTODIAL FILE
To: Xxxxx Fargo Bank, N.A.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: [Manager- PHHMC 2008-CIM2]
Re: Custodial Agreement, dated as of July 1, 2008, among HSBC Bank USA, National
Association, as the Indenture Trustee, Xxxxx Fargo Bank, N.A., as the Custodian, and
PHH Mortgage Corporation, as the Servicer
All Capitalized terms used herein shall have the meaning ascribed to them in the Custodial
Agreement (the "Agreement") referenced above.
In connection with the administration of the Mortgage Loans held by you as Custodian for the
Indenture Trustee pursuant to the above-captioned Custodial Agreement, we request the release, and hereby
acknowledge receipt, of the Custodial File for the Mortgage Loan described below, for the reason indicated.
Mortgagor Name, Address & Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one):
_______ 1. Mortgage Paid in Full
_______ 2. Foreclosure
_______ 3. Substitution
_______ 4. Other Liquidation (Repurchases, etc.)
_______ 5. Nonliquidation Reason:___________________________
Address to which Custodian should
Deliver the Custodial File: __________________________________________
__________________________________________
__________________________________________
By:_____________________________________
(authorized signer)
Issuer:___________________________________
Address:__________________________________
__________________________________
Date:____________________________________
Custodian
Xxxxx Fargo Bank, N.A.
Please acknowledge the execution of the above request by your signature and date below:
Signature Date
________________________________________________ ________________________________________________
Documents returned to Custodian:
Custodian Date
________________________________________________ ________________________________________________
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EXHIBIT 4
AUTHORIZED REPRESENTATIVES OF THE INDENTURE TRUSTEE
NAME SPECIMEN SIGNATURE
_________________________ _________________________
_________________________ _________________________
_________________________ _________________________
_________________________ _________________________
EXHIBIT 5
AUTHORIZED REPRESENTATIVES OF THE CUSTODIAN
NAME SPECIMEN SIGNATURE
_________________________ _________________________
_________________________ _________________________
_________________________ _________________________
_________________________ _________________________
EXHIBIT 6
AUTHORIZED REPRESENTATIVES OF THE SERVICER
NAME SPECIMEN SIGNATURE
_________________________ _________________________
_________________________ _________________________
_________________________ _________________________
_________________________ _________________________
EXHIBIT 7
[RESERVED]
EXHIBIT 8
[RESERVED]
EXHIBIT 9
FORM OF LIMITED POWER OF ATTORNEY
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that HSBC Bank USA, National Association, a national banking
association, having a place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as Indenture Trustee (the
"Indenture Trustee") pursuant to that certain Custodial Agreement, dated as of July 1, 2008 by and among the
Indenture Trustee, Xxxxx Fargo Bank, N.A. and PHH Mortgage Corporation (the "Agreement") hereby constitutes and
appoints PHH Mortgage Corporation (the "Servicer"), by and through the Servicer's officers, as the Indenture
Trustee's true and lawful attorney-in-fact, in the Indenture Trustee's name, place and stead and for the
Indenture Trustee's benefit, in connection with all Mortgage Loans serviced by the Servicer subject to the
Agreement, for the purpose of performing all acts and executing all documents in the name of the Indenture
Trustee as may be customarily and reasonably necessary and appropriate to effectuate the following enumerated
transactions in respect of any of the mortgages or deeds of trust (each a "Mortgage" or a "Deed of Trust"
respectively) and promissory notes secured thereby (each a "Mortgage Note") for which the undersigned is acting
as Indenture Trustee pursuant to the Agreement (whether the undersigned is named therein as mortgagee or
beneficiary or has become mortgagee by virtue of endorsement of the Mortgage Note secured by any such Mortgage or
Deed of Trust) and for which the Servicer is acting as servicer, all subject to the terms of the Agreement.
This appointment shall apply to the following enumerated transactions only:
1. The modification or re-recording of a Mortgage or Deed of Trust, where the modification or
re-recording is to correct the Mortgage or Deed of Trust to conform same to the original intent
of the parties thereto or to correct title errors discovered after such title insurance was
issued and the modification or re-recording, in either instance, does not adversely affect the
lien of the Mortgage or Deed of Trust as insured.
2. The subordination of the lien of a Mortgage or Deed of Trust to an easement in favor of a
public utility company or any governmental agency of the United States or any state or
political subdivision thereof or agency thereof or other entity having powers of eminent
domain; this section shall include, without limitation, the execution of partial
satisfaction/release, partial reconveyances or the execution of requests to trustees to
accomplish same.
3. The conveyance of the properties to the mortgage insurer, or the closing of the title to the
property to be acquired as real estate owned, or conveyance of title to real estate owned.
4. The completion of loan assumption agreements.
5. The execution and delivery of any quitclaim, special warranty, limited warranty, statutory or
grant deed in connection with the disposition of REO property.
6. The full satisfaction/release of a Mortgage or Deed of Trust or full reconveyance upon payment
and discharge of all sums secured thereby, including, without limitation, cancellation of the
related Mortgage Note.
7. The assignment of any Mortgage or Deed of Trust and the related Mortgage Note, in connection
with the repurchase of the mortgage loan secured and evidenced thereby.
8. The full assignment of a Mortgage or Deed of Trust upon payment and discharge of all sums
secured thereby in conjunction with the refinancing thereof, including, without limitation, the
assignment of the related Mortgage Note.
9. With respect to a Mortgage or Deed of Trust, the foreclosure, the taking of a deed in lieu of
foreclosure, or the completion of judicial or non-judicial foreclosure or termination,
cancellation or rescission of any such foreclosure, including, without limitation, any and all
of the following acts:
(a) the substitution of trustee(s) serving under a Deed of Trust, in accordance with state
law and the Deed of Trust;
(b) the preparation and issuance of statements of breach or non-performance;
(c) the preparation and filing of notices of default and/or notices of sale;
(d) the cancellation/rescission of notices of default and/or notices of sale;
(e) the taking of a deed in lieu of foreclosure; and
(f) the preparation and execution of such other documents and performance of such other
actions as may be necessary under the terms of the Mortgage, Deed of Trust or state
law to expeditiously complete said transactions in paragraphs 9(a) through 9(e) above.
The undersigned gives its attorney-in-fact full power and authority to execute such instruments
and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers
granted by or under this Limited Power of Attorney, each subject to the terms and conditions set forth in the
Agreement and in accordance with the standard of care applicable to servicers as fully as the undersigned might
or could do, and hereby does ratify and confirm to all that its said attorney-in-fact shall lawfully do or cause
to be done by authority hereof. This Limited Power of Attorney shall be effective as of the date set forth below.
Any third party without actual notice of fact to the contrary may rely upon the exercise of the
power granted under this Limited Power of Attorney; and may be satisfied that this Limited Power of Attorney
shall continue in full force and effect and has not been revoked unless an instrument of revocation has been made
in writing by the undersigned, and such third party put on notice thereof.
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IN WITNESS WHEREOF, HSBC Bank USA, National Association, as Indenture Trustee pursuant to the
Agreement, has caused its corporate seal to be hereto affixed and these presents to be signed and acknowledged in
its name and behalf by ______________________, its duly elected and authorized _________________________ this ___
day of _________________, 200__.
HSBC BANK USA, NATIONAL ASSOCIATION, as Indenture Trustee
By:___________________________
Name: ___________________________
Title: ___________________________
STATE OF ________________
COUNTY OF ______________
On _____________________, 200__, before me, the undersigned, a Notary Public in and for said
state, personally appeared _______________________, as ____________________of HSBC BANK USA, NATIONAL ASSOCIATION
as Indenture Trustee, personally known to me to be the person whose name is subscribed to the within instrument
and acknowledged to me that he/she executed that same in his/her authorized capacity, and that by his/her
signature on the instrument the entity upon behalf of which the person acted and executed the instrument.
WITNESS my hand and official seal.
(SEAL)
________________________________
Notary Public
EXHIBIT 10
MORTGAGE LOAN SCHEDULE
ON FILE WITH THE INDENTURE TRUSTEE
EXHIBIT 11
SUBSTITUTE MORTGAGE LOANS
1. For purposes of this Exhibit 11, the following capitalized terms have the respective meanings set forth
below:
Administration Fee Rate: With respect to each Loan will be equal to the sum of (i) the Servicing Fee
Rate, (ii) the Master Servicing Fee Rate and (iii) the Group I Owner Trustee Fee Rate or the Group II
Owner Trustee Fee Rate, as applicable.
Advance: Either (i) a Monthly Advance made by the Servicer as such term is defined in and pursuant to
the Mortgage Loan Purchase and Servicing Agreement or (ii) an advance made by the Master Servicer.
Deleted Loan: A Mortgage Loan replaced or to be replaced by a Substitute Mortgage Loan.
Distribution Date: The 25th day (or, if such 25th day is not a Business Day, the Business Day
immediately succeeding such 25th day) of each month, with the first such date being in May 2008.
Monthly Advance: As to any Loan or REO Property, any advance made by the Servicer in respect of any
Determination Date or in respect of any Distribution Date by a successor Servicer (including the Master
Servicer) or by the Master Servicer or Indenture Trustee (which advances shall not include principal or
interest shortfalls due to bankruptcy proceedings or application of the Relief Act or similar state or
local laws).
Net Mortgage Rate: For each Loan and for any date of determination, a per annum rate equal to the
Mortgage Interest Rate for such Loan less the Administration Fee Rate.
Nonrecoverable Advance: With respect to any Loan, any Advance or Servicing Advance which the Servicer
shall have determined to be a Nonrecoverable Advance as defined in and pursuant to the Mortgage Loan
Purchase and Servicing Agreement, or which the Master Servicer (including the Indenture Trustee as
successor Master Servicer) shall have determined to be nonrecoverable as defined in the Sale and
Servicing Agreement and which was or is proposed to be made by the Servicer or the Master Servicer
(including the Indenture Trustee as successor Master Servicer).
Servicing Advances: The customary reasonable and necessary "out-of-pocket" costs and expenses incurred
by the Servicer in connection with a default, delinquency or other unanticipated event by the Servicer
in the performance of its servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, in respect of a particular Mortgage Loan and (iii) the management
(including reasonable fees in connection therewith) and liquidation of any REO Property. The Servicer
shall not be required to make any Servicing Advance in respect of a Loan or REO Property that, in the
good faith business judgment of the Servicer, would not be ultimately recoverable from related insurance
proceeds or liquidation proceeds on such Mortgage Loan or REO Property.
Substitute Loan: A Mortgage Loan substituted by the Originator for a Deleted Mortgage Loan which must,
on the date of such substitution, (i) have a Principal Balance, after deduction of all Monthly Payments
due and received in the month of substitution, not in excess of the Principal Balance of the Deleted
Mortgage Loan and not less than ninety percent (90%) of the Principal Balance of the Deleted Mortgage
Loan, (ii) have a remaining term to maturity not greater than (and not more than one year less than)
that of the Deleted Mortgage Loan, (iii) have a Mortgage Rate not less than (and not more than one
percentage point greater than) the Mortgage Rate of the Deleted Mortgage Loan, (iv) with respect to each
Substitute Loan for Loan Group I, have a Minimum Rate not less than that of the Deleted Mortgage Loan,
(v) with respect to each Substitute Loan for Loan Group I, have a Maximum Rate not less than that of the
Deleted Mortgage Loan and not more than one (1) percentage points above that of the Deleted Mortgage
Loan, (vi) with respect to each Substitute Loan for Loan Group I, have a gross margin not less than that
of the Deleted Mortgage Loan, (vii) with respect to each Substitute Loan for Loan Group I, have a
periodic rate cap equal to that of the Deleted Mortgage Loan, (viii) have a Loan-to-Value Ratio at the
time of substitution equal to or less than the Loan-to-Value Ratio of the Deleted Mortgage Loan at the
time of substitution, (ix) with respect to each Substitute Loan for Loan Group I, have the same
Adjustment Date as that of the Deleted Mortgage Loan, (x) with respect to each Substitute Loan for Loan
Group I, have the same index as that of the Deleted Mortgage Loan, (xi) comply as of the date of
substitution with each representation and warranty set forth in Sections 3.01, 3.02 and 3.03 of the
Purchase and Servicing Agreement, (xii) be in the same credit grade category as the Deleted Mortgage
Loan and (xiii) have the same Due Date as the Deleted Mortgage Loan; (xiv) be current as of the date of
substitution (xv) have been underwritten or reunderwritten in accordance with the same underwriting
criteria and guidelines as the Deleted Mortgage Loan, (xvi) have the same lien status as the Deleted
Mortgage Loan; (xvii) have a credit score not less than that of the Deleted Mortgage Loan. In the event
that one or more mortgage loans are substituted for one or more Deleted Mortgage Loans, the amounts
described in clause (i) hereof shall be determined on the basis of aggregate principal balances, the
terms described in clauses, (ii), (vi) and (xvii) hereof shall be determined on the basis of weighted
average remaining term to maturity, Loan-to-Value Ratio and credit score, except to the extent otherwise
provided in this sentence, the representations and warranties described in clause (x) hereof must be
satisfied as to each Qualified Substitute Mortgage Loan or in the aggregate, as the case may be.
2. As to any Deleted Loan for which a Seller substitutes a Substitute Mortgage Loan(s), such substitution
shall be effected by such Seller delivering to the Indenture Trustee or the Custodian on behalf of the Indenture
Trustee for such Substitute Mortgage Loan(s), the Mortgage Note, the Mortgage, the Assignment of Mortgage to the
Indenture Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are
required by Section 2 of this Agreement, as applicable, together with an Officers' Certificate providing that
each such Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall
Amount (as described below), if any, in connection with such substitution. The Custodian on behalf of the
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Indenture Trustee shall acknowledge receipt of such Substitute Mortgage Loan(s) and, within ten (10) Business
Days thereafter, review such documents and deliver to the Depositor, the Indenture Trustee and the Master
Servicer, with respect to such Substitute Mortgage Loan(s), an initial certification pursuant to this Agreement,
with any applicable exceptions noted thereon. Within one year of the date of substitution, the Custodian on
behalf of the Indenture Trustee shall deliver to the Depositor, the Indenture Trustee and the Master Servicer a
final certification pursuant to this Agreement with respect to such Substitute Mortgage Loan(s), with any
applicable exceptions noted thereon.
3. For any month in which a Seller substitutes one or more Substitute Mortgage Loans for one or more
Deleted Loans, the Master Servicer shall determine the amount (the "Substitution Shortfall Amount"), if any, by
which the aggregate purchase price of all such Deleted Loans exceeds the aggregate of, as to each such Substitute
Mortgage Loan, the scheduled principal balance thereof as of the Due Date in the month of substitution, together
with one month's interest on such scheduled principal balance at the applicable Net Mortgage Rate, plus all
outstanding Advances and Servicing Advances (including Nonrecoverable Advances) related thereto. On the date of
such substitution, the applicable Seller shall deliver or cause to be delivered to the Securities Administrator
for deposit in the Distribution Account an amount equal to the Substitution Shortfall Amount, if any, and the
Indenture Trustee or the Custodian on behalf of the Indenture Trustee, upon receipt of the related Substitute
Mortgage Loan(s) and certification by the Securities Administrator of such deposit and receipt by the Custodian
of a properly completed request for release for such Mortgage Loan in the form annexed hereto as Exhibit 3, shall
release to such Seller the related Custodial File(s) and the Indenture Trustee shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, representation or warranty, as such Seller
shall deliver to it and as shall be necessary to vest therein any Deleted Loan released pursuant hereto.
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EXHIBIT 12
Assessments of Compliance and Attestation Reports Servicing Criteria(1)
______________________________________________________________________
Reg. AB Item 1122(d) Servicing Criteria Custodian
______________________________________________________________________
(1) General Servicing Considerations
______________________________________________________________________
(i) monitoring performance or other triggers and
events of default
______________________________________________________________________
(ii) monitoring performance of vendors of
activities outsourced
______________________________________________________________________
(ii) maintenance of back-up servicer for pool
assets
______________________________________________________________________
(iv) fidelity bond and E&O policies in effect
______________________________________________________________________
(2) Cash Collection and Administration
______________________________________________________________________
(i) timing of deposits to custodial account
______________________________________________________________________
(ii) wire transfers to investors by authorized
personnel
______________________________________________________________________
(iii)advances or guarantees made, reviewed and
approved as required
______________________________________________________________________
(iv) accounts maintained as required
______________________________________________________________________
(v) accounts at federally insured depository
institutions
______________________________________________________________________
(vi) unissued checks safeguarded
______________________________________________________________________
(vii)monthly reconciliations of accounts
______________________________________________________________________
(3) Investor Remittances and Reporting
______________________________________________________________________
(i) investor reports
______________________________________________________________________
(ii) remittances
______________________________________________________________________
(iii)proper posting of distributions
______________________________________________________________________
(iv) reconciliation of remittances and payment
statements
______________________________________________________________________
(4) Pool Asset Administration
______________________________________________________________________
(i) maintenance of pool collateral X
______________________________________________________________________
(ii) safeguarding of pool assets/documents X
______________________________________________________________________
(iii)additions, removals and substitutions of
pool assets
______________________________________________________________________
(iv) posting and allocation of pool asset
payments to pool assets
______________________________________________________________________
(v) reconciliation of servicer records
______________________________________________________________________
(vi) modifications or other changes to terms of
pool assets
______________________________________________________________________
(vii)loss mitigation and recovery actions
______________________________________________________________________
(viii)records regarding collection efforts
______________________________________________________________________
(ix) adjustments to variable interest rates on
pool assets
___________________________
(1) The descriptions of the Item 1122(d) servicing criteria use key words and phrases and are not verbatim
recitations of the servicing criteria. Refer to Regulation AB, Item 1122 for a full description of servicing
criteria.
______________________________________________________________________
(x) matters relating to funds held in trust for
obligors
______________________________________________________________________
(xi) payments made on behalf of obligors (such as
for taxes or insurance)
______________________________________________________________________
(xii)late payment penalties with respect to
payments made on behalf of obligors
______________________________________________________________________
(xiii)records with respect to payments made on
behalf of obligors
______________________________________________________________________
(xiv)recognition and recording of delinquencies,
charge-offs and uncollectible accounts
______________________________________________________________________
(xv) maintenance of external credit enhancement
or other support
______________________________________________________________________
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EXHIBIT 13
RECEIPT OF MORTGAGE NOTES
Credit Suisse First Boston Mortgage Acceptance Corp.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: PHH Mortgage Trust, Series 2008-CIM2
Mortgage Backed Notes, Series 2008-CIM2
Ladies and Gentlemen:
Pursuant to Section 2 of the Custodial Agreement dated as of July 1, 2008, among HSBC Bank USA, National
Association, as indenture trustee for the PHH Mortgage Trust, Series 2008-CIM2, Mortgaged Backed Notes, Xxxxx
Fargo Bank, N.A., as custodian and PHH Mortgage Corporation, as servicer, we hereby acknowledge the receipt of
the original Mortgage Notes with respect to each Mortgage Loan listed on Exhibit 10.
XXXXX FARGO BANK, N.A.,
as Custodian
By:___________________________
Name:
Title:
Dated: _________________, 2008
