Waiver and Amendment Agreement
Exhibit 10.83
THIS WAIVER AND AMENDMENT AGREEMENT (this “Agreement”) is dated as of March 14, 2007,
and is between PHH Mortgage Corporation, a New Jersey corporation (formerly Cendant Mortgage
Corporation) (“PMC”) and Xxxxxxx Xxxxx Credit Corporation, a Delaware corporation
(“Xxxxxxx”).
WHEREAS, PMC and Xxxxxxx have previously entered into the Origination Assistance Agreement
dated December 15, 2000, as amended (the “Origination Agreement”);
WHEREAS, PMC and Xxxxxxx have previously entered into the Loan Purchase and Sale Agreement
dated December 15, 2000, as amended (the “Loan Purchase Agreement”);
WHEREAS, PMC and Xxxxxxx have previously entered into the Portfolio Servicing Agreement dated
January 28, 2000, as amended (the “Portfolio Servicing Agreement”);
WHEREAS, PMC and Xxxxxxx have previously entered into the Equity Access and Omega Loan
Subservicing Agreement dated June 6, 2002, as amended (the “Subservicing Agreement”);
WHEREAS, PMC and Xxxxxxx have previously entered into the Servicing Rights Purchase and Sale
Agreement dated January 28, 2000, as amended (the “Servicing Rights Purchase Agreement”,
and together with the Origination Agreement, the Loan Purchase Agreement, the Portfolio Servicing
Agreement and the Subservicing Agreement, the “Xxxxxxx Xxxxx Agreements”);
WHEREAS, PHH Corporation (“PHH”) intends to enter into an Agreement and Plan of Merger
(the “Merger Agreement”) with General Electric Capital Corporation, a Delaware corporation
(“GECC”) and Jade Merger Sub, Inc., a Maryland corporation and a wholly owned subsidiary of
GECC (“Merger Sub”), pursuant to which GECC will become the sole shareholder of PHH
pursuant to a merger of Merger Sub with and into PHH (together with the other transactions related
thereto, the “Merger”), with PHH as the surviving corporation (the “Surviving
Corporation”);
WHEREAS, GECC, Merger Sub and Pearl Mortgage Acquisition 2 L.L.C., a newly formed Delaware
limited liability company controlled by affiliates of The Blackstone Group (“Holdco”),
intend to enter into a Sale and Purchase Agreement (the “Mortgage Business Purchase
Agreement”), pursuant to which GECC intends, immediately following the Merger, to cause the
Surviving Corporation to sell to Holdco, among other things, all of the outstanding shares of
capital stock of PMC, following which PMC will be a wholly owned subsidiary of Holdco (together
with the other transactions related thereto, the “Mortgage Business Sale”);
WHEREAS, pursuant to the terms of the Xxxxxxx Xxxxx Agreements, Xxxxxxx has certain rights in
connection with the occurrence of a PHH Change of Control or a Subservicer Change of Control (as
defined in the applicable Xxxxxxx Xxxxx Agreement), under the Xxxxxxx Xxxxx Agreements and PMC and
Holdco desire to obtain from Xxxxxxx a waiver of such rights in connection with the Merger and the
Mortgage Business Sale on the terms set forth herein; and
WHEREAS, in furtherance of its existing business relationship with PMC, Xxxxxxx has agreed to
provide such a waiver on the terms set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
hereinafter contained, the parties hereby agree as follows:
| [***] | INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. |
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1. Waiver. Subject to the terms hereof, Xxxxxxx agrees to waive its rights in
connection with the occurrence of a PHH Change of Control or a Subservicer Change of Control, as
applicable, under the Xxxxxxx Xxxxx Agreements as a result of the Merger and the Mortgage Business
Sale.
2. Amendment. Provided that the Mortgage Business Sale occurs prior to the
termination of this Agreement, Section 22 of the Origination Agreement shall be amended, effective
as of the closing of the Mortgage Business Sale, by inserting the following proviso at the end of
the second sentence of such section:
[***]
3. Further Negotiations. Between the date hereof and the consummation of the Mortgage
Business Sale, Xxxxxxx, PMC, and Holdco each agree to negotiate in good faith with respect to
reasonable amendments to the Xxxxxxx Xxxxx Agreements proposed by any thereof, provided that the
failure of the parties to agree to any such amendments shall have no impact on the effectiveness of
the waiver contained in paragraph 1 above. The effectiveness of any such amendments agreed upon by
Xxxxxxx, PMC, and Holdco shall be conditioned upon the consummation of the Mortgage Business Sale
prior to the termination of this Agreement. The forgoing obligations of Xxxxxxx are expressly
conditioned on Holdco executing an appropriate confidentiality agreement in favor of Xxxxxxx.
4. Termination. This Agreement shall terminate and be void upon the termination of
the Merger Agreement. PMC shall promptly notify Xxxxxxx in the event of a termination of the
Merger Agreement.
5. No Other Waivers. Except as specifically provided in paragraph 1 above, nothing in
this Agreement shall constitute a waiver of any of Xxxxxxx’x rights under any Xxxxxxx Xxxxx
Agreement or any other agreement between Xxxxxxx or any of its affiliates and PMC or any of its
affiliates. Any delay or failure by Xxxxxxx to exercise any of its rights under any Xxxxxxx Xxxxx
Agreement or otherwise shall not constitute a waiver thereof by Xxxxxxx. Xxxxxxx’x rights under
this Agreement are in addition to any and all other rights and remedies available to Xxxxxxx under
any Xxxxxxx Xxxxx Agreement or any other agreement, whether at law, in equity, or otherwise.
6. Ratification. Except as herein provided, the Xxxxxxx Xxxxx Agreements shall remain
in full force and effect and are ratified in all respects. On and after the effectiveness of the
amendment set forth in paragraph 2 above, each reference in the Origination Agreement to “this
Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference to the
Origination Agreement in any other agreements, documents or instruments executed and delivered
pursuant to the Origination Agreement, shall mean and be a reference to the Origination Agreement
as amended by this Agreement.
7. Counterparts. This Agreement may be executed in several counterparts, each of
which will be deemed an original but all of which will constitute one and the same.
8. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
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| [***] | INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, effective as of the date
first written above.
| PHH MORTGAGE CORPORATION | ||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxxx | ||||||
| Title: President & CEO | ||||||
| XXXXXXX XXXXX CREDIT CORPORATION | ||||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxxxx | |||||
| Name: Xxxxxxxx X. Xxxxxxxxxx | ||||||
| Title: Chairman & CEO | ||||||
Agreed to and Acknowledged as of this
14th day of March, 2007:
14th day of March, 2007:
PEARL MORTGAGE ACQUISITION 2 L.L.C.
By:
|
/s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Vice President |
