EXECUTION COPY
THIS
ASSIGNMENT,
ASSUMPTION AND
RECOGNITION
AGREEMENT (this
"Assignment"),
dated of July 1, 2008, is
entered into among Credit Suisse First Boston Mortgage
Acceptance Corp. (the "Assignee"),
having an address at 11
Madison Avenue, 4th Floor, New York, New York, 10010,
Chimera Investment
Corporation (the "Assignor"),
having an
address at 1211 Avenue of the Americas,
Suite 2902, New York, New York 10036, PHH Mortgage Corporation,
as seller
(in such
capacity,
the
"Seller")
and as
servicer
(in such
capacity,
the
"Servicer")
under
the
Agreement
referenced
below,
having an address at 3000 Leadenhall Road, Mt. Laurel,
New Jersey
08504, and acknowledged and
agreed to by Wells Fargo Bank, N.A., as master servicer (the
"Master
Servicer") and securities
administrator (the
"Securities Administrator").
RECITALS
WHEREAS the Assignor,
the Seller,
Bishop's Gate
Residential
Mortgage Trust
("Bishop's
Gate") and the
Servicer
have entered into a certain
Mortgage
Loan Flow
Purchase,
Sale and
Servicing
Agreement,
dated as of
December
14, 2007 (as amended or modified to the date
hereof,
the
"Agreement"),
pursuant to which the Assignor
has acquired
certain
Mortgage
Loans
pursuant to the terms of the
Agreement
and Servicer has agreed to service
such Mortgage Loans; and
WHEREAS the
Assignee has agreed,
on the terms and
conditions
contained
herein,
to purchase
from the
Assignor
certain of the Mortgage
Loans (the
"Specified
Mortgage
Loans") which are subject to the provisions of
the Agreement and are listed on the mortgage loan schedule
attached as Exhibit I hereto (the "Specified
Mortgage
Loan Schedule");
NOW,
THEREFORE,
in
consideration
of the mutual promises
contained
herein and other good and valuable
consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties agree as follows:
1.
Assignment and Assumption
1.
On and as of the date hereof,
the Assignor
hereby sells,
assigns and transfers to the Assignee
all of its right,
title and interest in the Specified
Mortgage Loans and all rights
related
thereto as provided
under the Agreement to the extent
relating to the Specified
Mortgage
Loans,
including
without
limitation
the
right of the Assignor to require the Seller to repurchase
the Specified
Mortgage
Loans pursuant to Section 3.04,
the Assignee hereby accepts such assignment from the Assignor,
and the Seller hereby
acknowledges such assignment
and assumption.
2.
On and as of the date hereof,
the
Assignor
represents
and
warrants to the Assignee
that the
Assignor
has not taken any action that would serve to impair or encumber
the
Assignee's
ownership
interests in
the Specified Mortgage Loans since the date of the Assignor's
acquisition of the Specified Mortgage Loans.
2.
Recognition of Assignee
From and
after
the date
hereof,
both the
Assignee
and the
Seller
shall
note the
transfer
of the
Specified
Mortgage Loans to the Assignee in their
respective
books and records and shall
recognize the Assignee
1
as the owner of the Specified
Mortgage
Loans,
and Servicer
shall service the Specified
Mortgage
Loans for the
benefit of the Assignee
pursuant to the Agreement,
the terms of which are
incorporated
herein by reference.
It
is the intention of the Seller,
the Servicer,
the Assignee and the Assignor that the Assignment
shall be binding
upon and inure to the benefit of the Assignee and the Assignor and
their successors and assigns.
3.
Representations and Warranties
1.
The Assignor
represents
and warrants to, and covenants
with,
the
Assignee,
the Servicer and
the Seller as of the date hereof:
(a)
Attached
hereto as Exhibit II is a true and accurate copy of the Agreement,
which
agreement is
in full
force
and
effect
as of the date
hereof
and the
provisions
of which
have not been
waived,
amended
or
modified
in any
respect,
nor has any
notice of
termination
been given
thereunder;
(b)
Assignor has good title to each and every
Specified
Mortgage
Loan,
is the lawful owner of the
Specified
Mortgage
Loans and has full right to transfer the
Specified
Mortgage
Loans and any
and all of its
interests,
rights and
obligations
under the
Agreement
as they
relate to the
Specified Mortgage Loans, free and clear from any and all claims
and encumbrances;
(c)
Assignor
is
duly
organized,
validly
existing
and in good
standing
under
the
laws of the
jurisdiction
of its
incorporation,
and has all requisite
power and authority to acquire,
own
and sell the Specified Mortgage Loans;
(d)
Assignor has full corporate
power and authority to execute,
deliver and perform its obligations
under this Assignment,
and to consummate the transactions set forth herein.
The consummation of
the
transactions
contemplated
by this
Assignment
is in the
ordinary
course
of
Assignor's
business and will not conflict
with,
or result in a breach of, any of the terms,
conditions or
provisions of Assignor's charter or by-laws or any legal
restriction,
or any material agreement
or
instrument
to
which
Assignor
is now a party or by which it is
bound,
or
result
in the
violation
of any law,
rule,
regulation,
order,
judgment
or decree to which
Assignor or its
property is subject.
The execution,
delivery and performance by Assignor of this Assignment and
the
consummation by it of the
transactions
contemplated
hereby,
have been duly authorized by
all necessary
corporate
action on the part of Assignor.
This Assignment has been duly executed
and delivered by Assignor and,
upon the due
authorization,
execution and delivery by Assignee,
Servicer and the Seller,
will
constitute the valid and legally
binding
obligation of Assignor
enforceable
against
Assignor
in
accordance
with its terms
except as
enforceability
may be
limited by
bankruptcy,
reorganization,
insolvency,
moratorium
or other
similar
laws now or
hereafter
in effect
relating to
creditors'
rights
generally,
and by general
principles
of
equity regardless of whether enforceability is considered in a
proceeding in equity or at law;
2
(e)
No consent,
approval,
order or authorization of, or declaration,
filing or registration
with,
any
governmental
entity is required to be obtained or made by Assignor in
connection
with the
execution,
delivery or performance by Assignor of this Assignment,
or the consummation by it of
the transactions contemplated hereby;
(f)
Assignor
hereby
covenants to promptly
deliver to the
Assignee or its
designee any
Specified
Mortgage Loan
document
received by the Assignor from the Servicer with respect to the
Specified
Mortgage Loans;
(g)
No legal or
governmental
proceedings
are pending to which the
Assignor is a party or of which
any
property of the
Assignor is the
subject,
which if
determined
adversely
to the Assignor
would,
individually
or in the
aggregate,
have a
material
adverse
effect
on the
financial
position,
shareholders' equity or results of operations of the Assignor;
and to the best of the
Assignor's
knowledge,
no such
proceedings
are
threatened
or
contemplated
by
governmental
authorities or threatened by others; and
(h)
The Assignor possesses,
and will possess,
all material licenses,
certificates,
authorities or
permits
issued by the
appropriate
state,
federal or
foreign
regulatory
agencies
or bodies
necessary to conduct the business now
conducted by it,
except to the extent that the failure to
have such
licenses,
certificates,
authorities
or
permits
does not have a
material
adverse
effect
on the
Notes or the
financial
condition
of the
Assignor,
and the
Assignor
has not
received,
nor will have received as of the Closing Date, any notice of
proceedings
relating to
the
revocation
or
modification
of any such license,
certificate,
authority or permit which,
singly or in the aggregate,
if the subject of an unfavorable decision,
ruling or finding, would
materially and adversely affect the conduct of its business,
operations or financial condition.
2.
Assignee
warrants and represents to, and covenants with,
Assignor,
the Servicer and the Seller
as of the date hereof:
(a)
Assignee
is
duly
organized,
validly
existing
and in good
standing
under
the
laws of the
jurisdiction of its
organization
and has all requisite power and authority to acquire,
own and
purchase the Specified Mortgage Loans;
(b)
Assignee has full corporate
power and authority to execute,
deliver and perform its obligations
under this Assignment,
and to consummate the transactions set forth herein.
The consummation of
the
transactions
contemplated
by this
Assignment
is in the
ordinary
course
of
Assignee's
business and will not conflict
with,
or result in a breach of, any of the terms,
conditions or
provisions of Assignee's charter or by-laws or any legal
restriction,
or any material agreement
or
instrument
to
which
Assignee
is now a party or by which it is
bound,
or
result
in the
violation
of any law,
rule,
regulation,
order,
judgment
or decree to which
Assignee or its
property is subject.
The execution,
delivery and performance by Assignee of this Assignment and
the
consummation by it of the
transactions
contemplated
hereby,
have been duly authorized by
3
all necessary
corporate
action on the part of Assignee.
This Assignment has been duly executed
and delivered by Assignee and,
upon the due
authorization,
execution and delivery by Assignor,
Servicer and the Seller,
will
constitute the valid and legally
binding
obligation of Assignee
enforceable
against
Assignee
in
accordance
with its terms
except as
enforceability
may be
limited by
bankruptcy,
reorganization,
insolvency,
moratorium
or other
similar
laws now or
hereafter
in effect
relating to
creditors'
rights
generally,
and by general
principles
of
equity regardless of whether enforceability is considered in a
proceeding in equity or at law;
(c)
No consent,
approval,
order or authorization of, or declaration,
filing or registration
with,
any
governmental
entity is required to be obtained or made by Assignee in
connection
with the
execution,
delivery or performance by Assignee of this Assignment,
or the consummation by it of
the transactions contemplated hereby; and
(d)
Assignee
agrees to be bound by all of the terms,
covenants and conditions of the Agreement with
respect to the Specified
Mortgage Loans,
and from and after the date hereof,
Assignee
assumes
for the benefit of Assignor all of Assignor's
obligations
thereunder but solely with respect to
such Specified Mortgage Loans.
3.
Servicer warrants and represents to, and covenants with, Assignor,
and Assignee,
as of the date
hereof:
(a)
Attached
hereto as Exhibit II is a true and accurate copy of the Agreement,
which
agreement is
in full
force
and
effect
as of the date
hereof
and the
provisions
of which
have not been
waived,
amended
or
modified
in any
respect,
nor has any
notice of
termination
been given
thereunder;
(b)
Servicer
is
duly
organized,
validly
existing
and in good
standing
under
the
laws of the
jurisdiction
of its
incorporation,
and has all
requisite
power and
authority to service the
Specified
Mortgage
Loans and
otherwise to perform its
obligations
under the
Agreement
with
respect to the Specified Mortgage Loans;
(c)
Servicer has full corporate
power and authority to execute,
deliver and perform its obligations
under this Assignment,
and to consummate the transactions set forth herein.
The consummation of
the
transactions
contemplated
by this
Assignment
is in the
ordinary
course
of
Servicer's
business and will not conflict
with,
or result in a breach of, any of the terms,
conditions or
provisions of Servicer's charter or by-laws or any legal
restriction,
or any material agreement
or
instrument
to
which
Servicer
is now a party or by which it is
bound,
or
result
in the
violation
of any law,
rule,
regulation,
order,
judgment
or decree to which
Servicer or its
property is subject.
The
execution,
delivery and
performance
by Servicer of this
Assignment
and the consummation by it of the
transactions
contemplated
hereby,
have been duly authorized
by all
necessary
corporate
action
on the part of
Servicer.
This
Assignment
has been
duly
executed and delivered by Servicer,
and, upon the due
authorization,
execution and delivery by
Assignor,
Assignee
and Seller will
constitute
the valid and
legally
binding
obligation
of
4
Servicer,
enforceable
against
Servicer in accordance
with its terms except as
enforceability
may be limited by bankruptcy,
reorganization,
insolvency,
moratorium or other similar laws now
or hereafter in effect
relating to creditors'
rights
generally,
and by general
principles of
equity regardless of whether enforceability is considered in a
proceeding in equity or at law;
(d)
No consent,
approval,
order or authorization of, or declaration,
filing or registration
with,
any
governmental
entity is required to be obtained or made by Servicer in
connection
with the
execution,
delivery or performance by Servicer of this Assignment,
or the consummation by it of
the transactions contemplated hereby;
(e)
The Servicer
hereby
restates the
representations
and warranties made by it in Section 3.02 of
the
Agreement
with
respect
to
itself
as
Servicer
as of
the
Closing
Date,
as
if
such
representations
and
warranties
were set forth herein in full.
In the event of a breach of any
such representations and warranties,
the Assignee, or its assignee,
shall be entitled to all of
the remedies given to the Assignor under the Agreement as a result
of such breach; and
(f)
Servicer has
established
the
Collection
Account and Escrow
Account under the Agreement
with
respect
to
the
Specified
Mortgage
Loans
as
required
in the
Agreement,
and
shall
remit
collections
received
on the
Specified
Mortgage
Loans to such
accounts
as
required
by the
Agreement.
4.
The Seller warrants and represents to, and covenants with, Assignor
and Assignee, as of the date hereof:
(a)
Attached
hereto as Exhibit II is a true and accurate copy of the Agreement,
which
agreement is
in full
force
and
effect
as of the date
hereof
and the
provisions
of which
have not been
waived,
amended
or
modified
in any
respect,
nor has any
notice of
termination
been given
thereunder;
(b)
Seller
is
duly
organized,
validly
existing
and in
good
standing
under
the
laws
of the
jurisdiction
of its
formation,
and has all
requisite
power
and
authority
to
perform
its
obligations under the Assignment;
(c)
Seller has full
entity
power and
authority
to execute,
deliver
and perform its
obligations
under this Assignment,
and to consummate the transactions set forth herein.
The consummation of
the transactions
contemplated by this Assignment is in the ordinary course of
Seller's
business
and will
not
conflict
with,
or
result
in a
breach
of,
any of the
terms,
conditions
or
provisions
of
Seller's
organizational
document
or any
legal
restriction,
or any
material
agreement
or
instrument
to which
Seller is now a party or by which it is bound,
or result in
the
violation of any law,
rule,
regulation,
order,
judgment or decree to which Seller or its
property is subject.
The execution,
delivery and
performance by Seller of this
Assignment and
the
consummation by it of the
transactions
contemplated
hereby,
have been duly authorized by
5
all necessary
entity action on the part of Seller.
This
Assignment
has been duly executed and
delivered
by Seller,
and,
upon the due
authorization,
execution
and
delivery by
Assignor,
Servicer,
the
other
Seller
and
Assignee,
will
constitute
the valid
and
legally
binding
obligation
of
Seller,
enforceable
against
Seller
in
accordance
with its
terms
except as
enforceability
may be limited by
bankruptcy,
reorganization,
insolvency,
moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights
generally,
and by general
principles
of equity
regardless
of whether
enforceability
is
considered
in a proceeding in
equity or at law;
(d)
No consent,
approval,
order or authorization of, or declaration,
filing or registration
with,
any
governmental
entity is required to be
obtained
or made by Seller in
connection
with the
execution,
delivery or performance by Seller of this
Assignment,
or the
consummation by it of
the transactions contemplated hereby;
(e)
All of the information
set forth on the Specified
Mortgage Loan Schedule is true and correct as
of the Closing Date in all material respects;
(f)
The Seller hereby
restates the
representations
and warranties in Sections 3.01 and 3.03 of the
Agreement
with respect to the Specified
Mortgage Loans sold by it under the Agreement as of the
Closing Date, as if such representations and warranties were set
forth herein in full; and
(g)
In the event of a breach of any
representations
and
warranties
set forth in Section
3(e) and
3(f) of this Assignment,
the Assignee and its assigns,
shall be entitled to all of the remedies
given to the Assignor pursuant to Section 3.04 of the Agreement as
a result of such breach.
5.
Modification of Servicing Agreement
The Seller and Assignor
hereby
modify the
Agreement
with respect to the
Specified
Mortgage
Loans as
follows:
(a)
The following
definitions in Section 1.01 of the Agreement are hereby
modified by deleting each
definition in its entirety and replacing it with the following:
"Collection
Account":
The
collection
account
entitled
"Custodial
Account,
PHH
Mortgage
Corporation,
as Servicer,
in trust for the holders of the PHH Mortgage Trust
2008-CIM2
Mortgage Backed
Notes"
"Eligible
Account":
Either
(i) an
account
or
accounts
maintained
with a federal
or state
chartered
depository
institution
or trust
company
(which may be the
Servicer or an
Affiliate of the
Servicer
or which may be the
trustee or an
Affiliate
of the
trustee)
the short term
unsecured
debt
obligations
of which (or, in the case of a depository
institution or trust company that is the principal
subsidiary of a holding
company,
the short term unsecured debt
obligations of such holding company) are
rated by each of the applicable
Rating
Agencies not lower than P-1 in the case of Moody's and A-2 in the
case of
Standard
&
Poor's;
provided,
however,
that if the
federal
or
state
chartered
depository
6
institution
or trust
company at which such account is maintained
fails to satisfy the ratings
criteria
set forth in this clause
(i),
such
account
shall be moved to a federal or state
chartered
depository
institution
or trust
company that
satisfies
such
criteria
within 30 calendar
days;
or (ii) a trust
account or
accounts
maintained
with the trust
department
of a federal or state
chartered
depository
institution
or trust company
acting in its fiduciary
capacity,
provided that any such state
chartered
depository
institution is subject to regulation regarding funds on deposit
substantially
similar to the
regulations set forth in 12 C.F.R. § 9.10(b).
"Prepayment
Interest
Shortfall
Amount":
With respect to any Mortgage Loan that was subject to
a voluntary (not including
discounted
payoffs and short sales)
Principal
Prepayment in full or in part
during any Principal
Prepayment
Period,
which
Principal
Prepayment
was applied to such Mortgage Loan
prior to such
Mortgage
Loan's Due Date in the
related Due
Period,
the amount of interest
(net of the
related
Servicing
Fee for Principal
Prepayments
in full only) that would have accrued on the amount of
such Principal
Prepayment during the period commencing on the date as of which
such Principal
Prepayment
was applied to such Mortgage Loan and ending on the day immediately
preceding such Due Date, inclusive.
"Principal Prepayment Period":
The calendar month preceding the related Remittance Date.
"Repurchase
Price": As to (a) any Defective
Mortgage Loan required to be repurchased
hereunder
with respect to which a breach
occurred or (b) any Mortgage Loan required to be
repurchased
pursuant to
Section 3.04 and/or
Section 7.02, an amount equal to (1) the product of (x) the
percentage of par stated
in the related
Purchase Price and Purchase Price and Terms Letter
("Percentage
of Par") minus 100%, (y)
the lesser of (A) the Unpaid
Principal
Balance of the Mortgage Loan at the time of repurchase or (B) the
Unpaid
Principal
Balance as of the Cut-off Date, and (z) (A) if the repurchase
occurs before the end of
the sixth month
following the related
Closing Date,
one, (B) if the repurchase
occurs after the end of
the sixth
month,
but before the end of the
twenty-fourth
month
following
the related
Closing Date a
ratio,
the
numerator of which shall be
twenty-three
minus the number of months that have elapsed since
the Closing
Date and the
denominator
of which shall be 18, and (C) if the
repurchase
occurs after the
twenty-fourth
month
following
the Closing Date,
zero;
plus (2) the Unpaid
Principal
Balance of such
Mortgage Loan at the time of repurchase;
plus (3) interest on such Mortgage Loan at the
applicable
Note
Rate from the last date through which interest has been paid and
distributed
to the Purchaser
hereunder
to the date of
repurchase;
plus (4) any
costs
and
damages
incurred
by the
Purchaser
or any of its
assignees in respect of a breach or defect in
connection
with any violation by such Mortgage Loan of any
predatory- or
abusive-lending
laws; minus (5) any amounts received in respect of such Defective
Mortgage
Loan which are being held in the Collection Account for future
remittance."
Any capitalized term used but not defined in this Assignment has
the same meaning as in the Agreement.
(b)
The following definitions shall be added to Section 1.01 of the
Agreement:
7
Closing Date:
July 25, 2008.
Capitalization
Reimbursement
Amount: For any Remittance Date, the aggregate amount added to the
Scheduled
Principal
Balance of the
Mortgage
Loans during the related Due Period
representing
amounts
reimbursable to the Servicer on or prior to such
Remittance
Date in connection with the
modification of
Mortgage Loans and reimbursed to the Servicer during the related
Due Period.
Trust:
PHH Mortgage Trust, Series 2008-CIM2.
(c)
[reserved];
(d)
The definition of "Permitted
Investments"
is hereby
modified by deleting
clause (f) from such
definition and replacing such clauses with the following:
"(f) reserved;"
(e)
The following clause (8) is hereby added to Section 5.05 of the
Agreement:
"(8)
to
reimburse
itself
for
Capitalization
Reimbursement
Amounts,
from the
principal
portion of Monthly Payments,
Principal Prepayments,
Payoffs, Liquidation Proceeds and Insurance Proceeds
on the Mortgage Loans in any loan group."
(f)
The following clause (74) is hereby added to Section 3.03 of the
Agreement:
"None of the Mortgage
Loans are governed by the Georgia Fair Lending Act, if such
Mortgage Loan
was originated on or after October 1, 2002 through March 6, 2003."
(g)
Section 6.02 of the
Agreement is hereby
amended by deleting the first
sentence of such section
in its entirety and replacing it with the following:
"Within five (5) calendar
days
following
each Record Date,
the Servicer
shall deliver to the
Purchaser
monthly
accounting
reports in the form of Exhibits
6.02(a) through
6.02(i)
attached hereto
with respect to the most recently ended Due Period."
(h)
Section
6.03(1) of the Agreement is hereby
amended by deleting such section in its entirety and
replacing it with the following:
"Not later than the close of business on the Business Day
immediately
preceding each Remittance
Date,
the Servicer shall deposit in the
Collection
Account an amount equal to all Monthly
Payments not
previously
advanced by the Servicer
(with interest
adjusted to the Remittance
Rate) that were due on a
Mortgage Loan and
delinquent
at the close of business on the related
Determination
Date,
plus amounts
representing
assumed
Monthly
Payments on any REO
Property to the extent not covered by any current net
income on the related REO
Property.
Any such amounts
advanced by the Servicer on a Mortgage
Loan shall
be reduced to reflect any related
servicing
modifications
previously made to such Mortgage
Loans.
The
Servicer
may reduce the total
amount to be
deposited
in the
Collection
Account
as
required
by the
foregoing
sentence
by the
amount
of
funds in the
Collection
Account
which
are to be
remitted
to
Purchaser
on a Remittance
Date or Dates
subsequent
to the related Due Period
pursuant to the terms of
this Agreement."
8
(i)
Section
8.02(2) of the
Agreement
is hereby
amended by
deleting
the first
sentence
of such
section in its entirety and replacing it with the following:
"Additional
Reports;
Further
Assurances.
Within five (5) calendar days
following each Record
Date,
the Servicer shall deliver to the Purchaser (i) a report,
acceptable to the Purchaser,
describing
in
reasonable
detail
all
Mortgage
Loans
that
are 90
days
or more
delinquent
and the
Servicer's
activities
in
connection
with
such
delinquencies
and
(ii) a
report
(substantially
in the form of
Exhibits 6.02(h) and 6.02(i) attached hereto) with respect to
delinquent Mortgage Loans."
(j)
Section
10.01(1) of the
Agreement
is hereby
amended by deleting
such section in its entirety
and replacing it with the following:
"any
failure by the
Servicer to remit to the
Purchaser
any payment
required to be made under
the terms of this Agreement which continues unremedied for a period
of two (2) Business Days;"
(k)
Section
13.03(d) of the
Agreement
is hereby
amended by deleting
such section in its entirety
and replacing it with the following:
"For the purpose of satisfying
the reporting
obligation
under the Exchange Act with respect to
any
class
of
asset-backed
securities,
the
Servicer
shall
(or
shall
cause
each
Subservicer
and
Third-Party
Originator
to)
(i) provide
prompt
notice to the
Purchaser,
any Master
Servicer and any
Depositor in writing of (A) any material
litigation or governmental
proceedings
involving the Servicer,
any
Subservicer
or any
Third-Party
Originator;
(B) any
affiliations
or
relationships
that develop
following the closing date of a Securitization
Transaction
between the Servicer,
any Subservicer or any
Third-Party
Originator and any of the parties
specified in clause (D) of
paragraph (a)
of this Section
(and
any
other
parties
identified
in
writing
by
the
requesting
party)
with
respect
to
such
Securitization
Transaction,
(C) any
Event
of
Default
under
the
terms
of
this
Agreement
or
any
Reconstitution
Agreement,
(D) any merger,
consolidation or sale of
substantially
all of the assets of
the Servicer,
and (E) the
Servicer's
entry into an agreement with a Subservicer to perform or assist in
the
performance
of any
of
the
Servicer's
obligations
under
this
Agreement
or any
Reconstitution
Agreement
and
(ii) provide
to the
Purchaser
and any
Depositor
a
description
of such
proceedings,
affiliations or relationships."
(l)
Section
13.03(e) of the
Agreement
is hereby
amended by
inserting
the phrase
", any
Master
Servicer" immediately after the phrase "the Purchaser" in clause
(ii)(x) of such Section.
(m)
The second paragraph of Section 13.03(e) of the Agreement is hereby
deleted in its entirety.
(n)
A new Section
13.03(f)
of the
Agreement
is hereby
added to the
Agreement
and shall read as
follows:
9
"In addition to such information as PHH Mortgage,
as servicer,
is obligated to provide pursuant
to other
provisions
of this
Agreement,
not later than ten days prior to the
deadline for the
filing of any
distribution
report on Form 10-D in
respect
of any
Securitization
Transaction
that
includes
any of the
Mortgage
Loans
serviced
by the
Servicer or any
Subservicer,
the
Servicer
or
such
Subservicer,
as
applicable,
shall,
to the
extent
the
Servicer
or such
Subservicer has knowledge,
provide to the party
responsible for filing such report
(including,
if
applicable,
the Master
Servicer)
notice of the
occurrence of any of the following
events
along
with all
information,
data,
and
materials
related
thereto as may be
required
to be
included in the related
distribution
report on Form 10-D (as
specified
in the
provisions
of
Regulation AB referenced below):
(i)
any material
modifications,
extensions or waivers of pool asset terms,
fees,
penalties or payments during the distribution
period or that have
cumulatively
become material
over time (Item 1121(a)(11) of Regulation AB);
(ii)
material
breaches of pool asset
representations
or warranties or transaction
covenants (Item 1121(a)(12) of Regulation AB); and
(iii)
information regarding new asset-backed
securities issuances backed by the same
pool assets, any pool asset changes (such as, additions,
substitutions or repurchases),
and any
material
changes in origination,
underwriting or other criteria for acquisition or selection of
pool assets (Item 1121(a)(14) of Regulation AB)."
(o)
Section
13.03(g) of the
Agreement
is hereby
amended by deleting
such section in its entirety
and replacing it with the following:
"The
Servicer
shall
provide to the
Purchaser,
any Master
Servicer and any
Depositor,
such
additional
information as such party may reasonably
request,
including evidence of the authorization of
the person
signing any
certification
or statement,
copies or other evidence of Fidelity Bond Insurance
and Errors and Omissions
Insurance Policy,
financial
information and reports and such other information
related to the Servicer or any Subservicer or the Seller or such
Subservicer's performance hereunder."
(p)
Section
13.04 of the
Agreement is hereby
amended by deleting
such section in its entirety and
replacing it with the following:
"On or before March 1 of each calendar
year,
commencing in 2009,
the Servicer shall deliver to
the
Purchaser,
any Master
Servicer
and any
Depositor
a
statement
of
compliance
addressed
to the
Purchaser,
such Master
Servicer and such Depositor and signed by an authorized
officer of the Servicer,
to the effect that (i) a review of the Servicer's
activities
during the immediately
preceding
calendar
year (or
applicable
portion
thereof) and of its
performance
under this
Agreement and any
applicable
Reconstitution
Agreement during such period has been made under such officer's
supervision,
and (ii) to
the best of such
officers'
knowledge,
based on such
review,
the
Servicer
has
fulfilled
all of its
obligations
under this Agreement and any
applicable
Reconstitution
Agreement in all material
respects
10
throughout such calendar year (or applicable
portion
thereof) or, if there has been a failure to fulfill
any such
obligation in any material
respect,
specifically
identifying
each such failure known to such
officer and the nature and the status thereof."
(q)
Section
13.05(a) of the
Agreement
is hereby
amended by deleting
such section in its entirety
and replacing it with the following:
"(a) On or before March 1 of each calendar year, commencing in
2009, the Seller shall:
(i)
deliver to the
Purchaser,
any Master
Servicer and any Depositor a report (in
form and
substance
reasonably
satisfactory
to the
Purchaser,
such Master
Servicer and such
Depositor)
regarding the Servicer's
assessment of compliance with the Servicing Criteria during
the
immediately
preceding
calendar
year,
as required
under
Rules
13a-18 and 15d-18 of the
Exchange Act and
Item 1122 of
Regulation
AB. Such report shall be addressed to the
Purchaser,
such Master
Servicer and such
Depositor
and signed by an
authorized
officer of the Servicer,
and shall address each of the
Servicing
Criteria
indicated on Exhibit 12
hereto as applicable
to the Servicer;
(ii)
deliver to the Purchaser,
any Master
Servicer and any Depositor a report of a
registered
public accounting firm reasonably
acceptable to the Purchaser,
such Master Servicer
and such
Depositor
that attests to, and reports on, the
assessment of
compliance
made by the
Servicer
and
delivered
pursuant
to the
preceding
paragraph.
Such
attestation
shall be in
accordance with
Rules 1-02(a)(3)
and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act;
(iii)
cause each
Subservicer,
and each
Subcontractor
determined
by the
Servicer
pursuant to Section 13.06(b) to be "participating
in the servicing
function" within the meaning
of Item 1122 of
Regulation
AB,
to
deliver
to the
Purchaser,
any
Master
Servicer
and any
Depositor an
assessment
of
compliance
and
accountants'
attestation
as and when provided in
paragraphs (i) and (ii) of this Section; and
(iv)
deliver,
and cause each
Subservicer
and
Subcontractor
described
in clause
(iii) to provide,
to the
Purchaser,
any Master
Servicer,
any
Depositor and any other Person
that will be responsible for signing the certification (a "Sarbanes
Certification")
required by
Rules
13a-14(d)
and
15d-14(d)
under
the
Exchange
Act
(pursuant
to
Section
302
of
the
Sarbanes-Oxley
Act
of
2002)
on
behalf
of
an
asset-backed
issuer
with
respect
to
a
Securitization
Transaction a certification
signed by the
appropriate
officer of the Seller in
the form attached hereto as Exhibit 11.
The Servicer
acknowledges that the parties
identified in
clause (a)(iv)
above may rely on the
certification
provided by the Servicer
pursuant to such clause in signing a Sarbanes
Certification
and
11
filing such with the
Commission.
Neither the
Purchaser
nor any
Depositor
will request
delivery of a
certification
under clause
(a)(iv)
above unless a Depositor is required
under the Exchange Act to file
an annual
report on Form 10-K with
respect to an issuing
entity
whose
asset
pool
includes
Mortgage
Loans."
(r)
Section
13.06(a) of the
Agreement
is hereby
amended by deleting
the second
sentence of such
section in its entirety and replacing it with the following:
"The Servicer shall cause any Subservicer
used by the Servicer (or by any
Subservicer)
for the
benefit of the
Purchaser
and any
Depositor
to comply
with the
provisions
of this
Section
and with
Sections 13.02,
13.03(c),
(e), (f) and (g), 13.04,
13.05 and 13.07 of this Agreement to the same extent
as if such
Subservicer
were the Servicer,
and to provide the information
required with respect to such
Subservicer under Section 13.03(d) of this Agreement."
(s)
Section
13.06(b) of the
Agreement
is hereby
amended by deleting
such section in its entirety
and replacing it with the following:
"It shall not be
necessary
for the
Servicer to seek the consent of the
Purchaser,
any Master
Servicer or any
Depositor to the
utilization
of any
Subcontractor.
The Servicer
shall
promptly upon
request
provide
to the
Purchaser,
any
Master
Servicer
and any
Depositor
(or any
designee
of the
Depositor,
such as an
administrator)
a written
description (in form and substance
satisfactory to the
Purchaser,
such Master
Servicer
and such
Depositor)
of the role and
function
of each
Subcontractor
utilized by the
Servicer or any
Subservicer,
specifying
(i) the
identity of each such
Subcontractor,
(ii) which
(if any) of such
Subcontractors
are
"participating
in the servicing
function"
within the
meaning
of Item 1122 of
Regulation
AB, and (iii)
which
elements
of the
Servicing
Criteria
will be
addressed in assessments of compliance
provided by each Subcontractor
identified pursuant to clause (ii)
of this paragraph.
As a condition to the utilization of any
Subcontractor
determined to be
"participating
in the
servicing
function"
within the meaning of Item 1122 of Regulation
AB, the Servicer shall cause any such
Subcontractor
used by the
Servicer
(or by any
Subservicer)
for the benefit of the
Purchaser
and any
Depositor to comply with the
provisions of Sections
13.05 and 13.07 of this Agreement to the same extent
as if such
Subcontractor
were the Servicer.
The Servicer shall be
responsible
for obtaining from each
Subcontractor
and
delivering
to the Purchaser
and any
Depositor
any
assessment
of
compliance
and
attestation
and the other
certifications
required to be delivered by such
Subcontractor
under Section
13.05, in each case as and when required to be delivered."
(t)
The first
paragraph
of Section
13.07(a) of the
Agreement is hereby
amended by inserting
the
phrase "and affiliates"
immediately after "employees" and by inserting "claims,"
immediately prior to "losses" in
such paragraph.
(u)
Section 13.07(a)(i)(A)
of the
Agreement
is hereby
amended by
inserting
"data,"
immediately
following "certification," and by deleting the phrase "in written
or electronic form".
12
(v)
The following sentence is hereby added to the end of Section
13.07(a) of the Agreement:
"This
indemnification
shall survive the termination of this Agreement or the termination
of any
party to this Agreement."
(w)
Section
13.07(b)(i)
of the Agreement is hereby amended by deleting such section in its
entirety
and replacing it with the following:
"(i)
Any
failure
by
PHH
Mortgage,
any
Subservicer,
any
Subcontractor
or any
Third-Party
Originator to deliver any information,
report,
certification,
accountants' letter
or other
material
when and as required
under this Article
XIII, or any breach by PHH Mortgage
of a
representation
or
warranty
set
forth in
Section
13.02(a)
or in a
writing
furnished
pursuant
to Section
13.02(b)
and made as of a date prior to the
closing
date of the
related
Securitization
Transaction,
to the extent that such breach is not cured by such
closing
date,
or any breach by PHH Mortgage of a
representation
or warranty in a writing
furnished
pursuant
to Section
13.02(b) to the extent made as of a date
subsequent
to such
closing
date,
shall,
except as provided in clause
(ii) of this
paragraph,
immediately
and
automatically,
without
notice or grace period,
constitute
an Event of Default with respect to PHH Mortgage
under this
Agreement
and any
applicable
Reconstitution
Agreement,
and shall
entitle the
Purchaser
or
Depositor,
as applicable,
in its sole discretion to terminate the rights and obligations of
PHH
Mortgage
as
servicer
under this
Agreement
and/or
any
applicable
Reconstitution
Agreement
without
payment
(notwithstanding
anything in this Agreement or any
applicable
Reconstitution
Agreement
to the
contrary)
of any
compensation
to
PHH
Mortgage
(and
if the
Servicer
is
servicing
any of the
Mortgage
Loans
in a
Securitization
Transaction,
appoint
a
successor
servicer
reasonably
acceptable
to any Master
Servicer for such
Securitization
Transaction);
provided
that
to the
extent
that
any
provision
of this
Agreement
and/or
any
applicable
Reconstitution
Agreement
expressly
provides for the survival of certain
rights or obligations
following termination of PHH Mortgage as servicer, such provision
shall be given effect.
(x)
Section
13.07(b)(ii)
of the
Agreement
is hereby
amended
by
deleting
such
section
in its
entirety and replacing it with the following:
(i)
Any failure by PHH Mortgage,
any Subservicer or any
Subcontractor
to deliver
any
information,
report,
certification
or
accountants'
letter
when and as
required
under
Section
13.04 or 13.05,
including
(except as provided
below) any
failure by PHH
Mortgage to
identify
pursuant
to
Section 13.06(b)
any
Subcontractor
"participating
in
the
servicing
function"
within the meaning of Item 1122 of Regulation AB, which
continues
unremedied for ten
calendar days after the date on which such
information,
report,
certification
or accountants'
letter was required to be delivered
shall
constitute an Event of Default
(notwithstanding
any
other provision in this Agreement or any
Reconstitution
Agreement to the contrary) with respect
to PHH Mortgage
under this
Agreement and any
applicable
Reconstitution
Agreement,
and shall
13
entitle
the
Purchaser,
any
Master
Servicer
or any
Depositor,
as
applicable,
in its sole
discretion
to
terminate
the rights and
obligations
of PHH
Mortgage as
servicer
under this
Agreement
and/or
any
applicable
Reconstitution
Agreement
without
payment
(notwithstanding
anything in this Agreement to the contrary) of any
compensation
to PHH Mortgage;
provided that
to the
extent
that
any
provision
of this
Agreement
and/or
any
applicable
Reconstitution
Agreement
expressly
provides
for the
survival
of
certain
rights or
obligations
following
termination of PHH Mortgage as servicer, such provision shall be
given effect."
(y)
A new Section 13.08 of the Agreement is hereby added to the
Agreement and shall read as follows:
"Section 13.08.
Third Party Beneficiary.
For
purposes of this
Article
XIII and any
related
provisions
thereto,
each Master
Servicer
shall be considered a third-party
beneficiary of this
Agreement,
entitled to all the
rights and benefits hereof as if it were a direct party to this
Agreement."
(z)
The Servicer
shall
deliver all reports
(including
all reports
required
under
Regulation AB
pursuant to Article XIII of the Agreement)
required to be delivered
under the Agreement to the Master Servicer or
Securities
Administrator,
as
applicable,
at the
address
set forth in
Section 7 herein.
Notwithstanding
any
provision in the Agreement to the
contrary,
the Servicer
agrees that it will report to the Master
Servicer on a
monthly basis on the date specified in the Agreement
using the formats
attached
hereto as Exhibit III or in such
other formats as mutually agreed to by the Servicer and the Master
Servicer.
(aa)
The
Agreement is hereby
amended by deleting
Exhibit 12 in its
entirety and
replacing it with
Exhibit IV attached hereto.
6.
Continuing Effect
Except as
contemplated
hereby,
the Agreement
shall remain in full force and effect in accordance
with
its terms.
7.
Governing Law
This
Assignment
and the
rights
and
obligations
hereunder
shall
be
governed
by and
construed
in
accordance
with the
internal
laws of the State of New York (other than
Section 5-1401
of the New York
General
Obligations Law).
8.
Notices
Any notices or other
communications
permitted or required under the Agreement or this
Assignment
shall
be in writing and shall be given as follows:
•
In the case of a Seller or the Servicer,
14
PHH Mortgage Corporation
3000 Leadenhall Road
Mt. Laurel, NJ
08054
Attention:
Vice President, Servicing
•
In the case of the Assignee,
Credit Suisse First Boston Mortgage Acceptance Corp.
11 Madison Avenue, 4th Floor
New York, New York 10010
Attention:
Peter Sack
•
In the case of the Assignor,
Chimera Investment Corporation
1211 Avenue of the Americas, Suite 2902
New York, New York
10036
Attention: PHHMC 2008-CIM2
•
In the case of Master Servicer or Securities Administrator,
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Client Manager - PHHMC 2008-CIM2
Telecopier: (410) 715-2380
9.
Counterparts
This
Agreement may be executed in
counterparts,
each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one
and the same instrument.
10.
Miscellaneous
(a)
The Servicer
hereby
acknowledges
that the Specified
Mortgage Loans and the rights assigned to
the
Assignee
under this
Assignment
will be assigned to PHH
Mortgage
Trust,
Series
2008-CIM2
(the
"Trust")
pursuant
to the Sale and
Servicing
Agreement.
The
Servicer
agrees that such rights will be for the benefit of
the Trust and the Owner Tr
