Contract
Exhibit
10.1
SECOND
AMENDMENT, dated as of November 30, 2007 (this “Second Amendment”), among
Chesapeake Funding LLC (the “Issuer”), PHH Vehicle Management Services,
LLC, as administrator (the “Administrator”), the several commercial paper
conduits listed as CP Conduit Purchasers on the signature pages of this Second
Amendment (the “CP Conduit Purchasers”), the banks listed as APA Banks on
the signature pages of this Second Amendment (the “APA Banks”), the agent
banks listed as Funding Agents on the signature pages of this Second Amendment
(the “Funding Agents”), JPMorgan Chase Bank, N.A., in its capacity as
administrative agent (the “Administrative Agent”) for the CP Conduit
Purchasers, the APA Banks and the Funding Agents, and The Bank of New York,
as
Indenture Trustee (the “Indenture Trustee”), to the Amended and Restated
Series 0000-0 Xxxxxxxxx Supplement, dated as of December 1, 2006, as amended
as
of March 6, 2007 (the “Indenture Supplement”), among the Issuer, the
Administrator, the several commercial paper conduits parties to the Indenture
Supplement on the date hereof (the “Existing CP Conduit Purchasers”), the
banks party to the Indenture Supplement on the date hereof with respect to
each
Existing CP Conduit Purchaser (the “Existing APA Banks”), the agent banks
party to the Indenture Supplement with respect to each Existing CP Conduit
Purchaser (the “Existing Funding Agents”), the Administrative Agent and
the Indenture Trustee, to the Base Indenture, dated as of March 7, 2006 (the
“Base Indenture”; the Base Indenture, as supplemented by the Indenture
Supplement, the “Indenture”), between the Issuer and the Indenture
Trustee pursuant to which the Series 2006-2 Investor Notes were issued to the
Existing CP Conduit Purchasers.
W
I T N E
S S E T H:
WHEREAS,
the Issuer has requested the Existing CP Conduit Purchaser and the Exiting
APA
Banks in each Purchaser Group (each an “Existing Purchaser Group”) to
extend the Scheduled Expiry Date with respect to such Existing Purchaser Group
and to agree to (i) modify the Program Fee Rate and the Commitment Fee Rate
set
forth in the Fee Letter and (ii) add an additional Amortization Event with
respect to the Series 2006-2 Investor Notes, in each case as set forth in this
Second Amendment; and
WHEREAS,
certain of the Existing Purchaser Groups are willing to agree to extend its
Scheduled Expiry Date and to (i) modify the Program Fee Rate and the Commitment
Fee Rate set forth in the Fee Letter and (ii) add an additional Amortization
Event with respect to the Series 2006-2 Investor Notes, in each case as set
forth herein;
WHEREAS,
the Exiting Purchaser Group (as defined below) wishes to transfer to the
Acquiring Purchaser Group (as defined below), and the Acquiring Purchaser Group
wishes to acquire, all of the Exiting Purchaser Group’s Commitment and other
rights and obligations under the Indenture on the Second Amendment Effective
Date (as defined below);
NOW,
THEREFORE, the parties hereto hereby agree as follows:
1. Defined
Terms. All capitalized terms defined in Schedule 1 to the Base
Indenture or the Indenture Supplement and used herein shall have the meanings
given to them therein.
2. Amendments
to Article 1(b) of the Indenture Supplement. (a) The
definition of “Scheduled Expiry Date” in Article 1(b) of the Indenture
Supplement is hereby amended by inserting “November 28, 2008” in lieu of the
date in clause (a) thereof.
(b) The
following definition is hereby added to Article 1(b) of the Indenture Supplement
in the appropriate alphabetical order:
““Change
in Control” means (i) the acquisition by any Person or group
(within the meaning of the Exchange Act and the rules of the Securities and
Exchange Commission thereunder as in effect on January 1, 2006), directly or
indirectly, beneficially or of record, of ownership or control of in excess
of
50% of the voting common stock of PHH on a fully diluted basis at any time
or
(ii) if at any time, individuals who on January 1, 2006 constituted the Board
of
Directors of PHH (together with any new directors whose election by such Board
of Directors or whose nomination for election by the shareholders of PHH, as
the
case may be, was approved by a vote of the majority of the directors then still
in office who were either directors on January 1, 2006 or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of PHH then in
office.”
3. Amendment
to Article 4 of the Indenture Supplement. Article 4 of the
Indenture Supplement is hereby amended by (i) deleting “or” at the end of clause
(u) thereof, (ii) inserting “or” at the end of clause (v) thereof, (iii)
inserting after clause (v) thereof, “(w) a Change in Control shall
occur;” and (iv) replacing “then, in the case of any event described in clause
(q) through (v) above” with “then, in the case of any event described in clause
(q) through (w) above” therein.
4. Amendment
to Schedule I. (a) Schedule I to the Indenture
Supplement is hereby amended and restated to read in its entirety as set forth
on Exhibit A to this Second Amendment.
(b) This
Second Amendment shall, for the purposes of Section 12.10(e) of the Indenture
Supplement, constitute a Purchaser Group Supplement, and the transfer of the
rights and obligations of the Exiting Purchaser Group (as defined herein) to
the
Acquiring Purchaser Group (as defined herein) hereunder shall constitute a
valid
transfer under the terms of Section 12.10(e).
5. Amendments
to the Fee Letter. The Fee Letter referred to in the Indenture
Supplement is hereby amended to provide that the Commitment Fee Rate and the
Program Fee Rate shall be as set forth on Exhibit B to this Second
Amendment.
6. Exiting
Purchaser Group and Acquiring Purchaser Group. As of the Second
Amendment Effective Date, (i) Windmill Funding Corporation and ABN AMRO N.V.
(collectively, the “Acquiring Purchaser Group”) shall be a CP Conduit
Purchaser and the APA Bank with respect to such CP Conduit Purchaser,
respectively, under the Indenture for all purposes thereof and shall be entitled
to all of the respective rights and privileges, and subject to all of the
respective duties and obligations thereof and (ii) Saratoga Funding Corp. LLC
and Deutsche Bank
AG,
New
York Branch (collectively, the “Exiting Purchaser Group”) shall
relinquish its rights and be released from its obligations under the
Indenture.
7. Assignment. (a) The
Exiting Purchaser Group hereby irrevocably sells, assigns and transfers to
the
Acquiring Purchaser Group, without recourse, representation or warranty (other
than as set forth in Section 7(d) hereof), and the Acquiring Purchaser Group
hereby irrevocably purchases, takes and assumes from the Exiting Purchaser
Group, all of the Transferor Purchaser Group’s Maximum Purchaser Group Invested
Amount and Purchaser Group Invested Amount under the Indenture Supplement,
in
each case upon receipt by the Exiting Purchaser Group of the purchase price
agreed to between the Exiting Purchaser Group and the Acquiring Purchaser
Group.
(b) From
and after the Second Amendment Effective Date, amounts that would otherwise
be
payable to or for the account of the Exiting Purchaser Group in respect of
the
Exiting Purchaser Group’s Maximum Purchaser Group Invested Amount and Purchaser
Group Invested Amount pursuant to the Indenture Supplement shall, instead,
be
payable to or for the account of the Acquiring Purchaser Group. The
Exiting Purchaser Group and the Acquiring Purchaser Group hereby agree that
all
Commitment Fees that accrued prior to the Second Amendment Effective Date in
respect of the Exiting Purchaser Group’s Maximum Purchaser Group Invested Amount
and all Series 2006-2 Monthly Interest that accrued prior to the Second
Amendment Effective Date in respect of the Exiting Purchaser Group’s Purchaser
Group Invested Amount shall be payable by the Administrative Agent to the
Exiting Purchaser Group on the December 2007 Payment Date.
(c) Each
of the Exiting Purchaser Group and the Acquiring Purchaser Group agrees that
at
any time and from time to time upon the written request of any other party,
it
will execute and deliver such further documents and do such further acts and
things as such other party may reasonably request in order to effect the
purposes of the assignment pursuant to this Section 7.
(d) By
executing and delivering this Second Amendment, the Exiting Purchaser Group
and
the Acquiring Purchaser Group confirm to and agree with each other as
follows: (i) other than the representation and warranty that it
is the legal and beneficial owner of the interest being assigned hereby free
and
clear of any adverse claim, the Exiting Purchaser Group makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Indenture
Supplement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Indenture, the Series 2006-2 Investor Notes, the
Transaction Documents or any instrument or document furnished pursuant thereto;
(ii) the Exiting Purchaser Group makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the Issuer,
Holdings, VMS or the Origination Trust or the performance or observance by
the
Issuer, Holdings, VMS or the Origination Trust of any of their obligations
under
the Indenture, the Transaction Documents or any other instrument or document
furnished pursuant hereto; (iii) the Acquiring Purchaser Group confirms
that it has received a copy of the Indenture and such other Transaction
Documents and other documents and information as it has deemed appropriate
to
make its own credit analysis and decision to enter into this Second Amendment;
(iv) the Acquiring Purchaser Group will, independently and without reliance
upon the Administrative Agent, the Exiting Purchaser Group or any other
Purchaser Group and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or
not taking action under the Indenture; (v) the Acquiring Purchaser Group
appoints and authorizes the Administrative Agent to take such action as agent
on
its behalf and to exercise such powers under the Indenture
Supplement
as are delegated to the Administrative Agent by the terms thereof, together
with
such powers as are reasonably incidental thereto, all in accordance with Article
10 of the Indenture Supplement; (vi) each member of the Acquiring Purchaser
Group appoints and authorizes the Funding Agent with respect to the Acquiring
Purchaser Group to take such action as agent on its behalf and to exercise
such
powers under the Indenture Supplement as are delegated to the Funding Agent
with
respect to the Acquiring Purchaser Group by the terms thereof, together with
such powers as are reasonably incidental thereto, all in accordance with Article
11 of the Indenture Supplement; (vii) each member of the Acquiring
Purchaser Group agrees that it will perform in accordance with their terms
all
of the obligations which by the terms of the Indenture are required to be
performed by it as a member of the Acquiring Purchaser Group and (viii) each
member of the Acquiring Purchaser Group confirms that it is an Eligible
Assignee.
(e) The
address of the Acquiring Purchaser Group for notices for the purposes of Section
12.9 of the Indenture Supplement is:
Windmill
Funding Corporation
c/o
Global Securitization Services, LLC
000
Xxxx
00xx Xxxxxx,
Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxx
Telephone: (000)
000-0000
Telecopy: (000)
000-0000
with
a
copy to:
ABN
AMRO
BANK, N.V.
Structured
Finance, Asset Securitization
000
Xxxx
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Windmill-Administrator
Telephone: (000)
000-0000
Telecopy: (000)
000-0000
8. Conditions
to Effectiveness. This Second Amendment shall become effective on
November 30, 2007 (the “Second Amendment Effective Date”), if each of the
following conditions precedent shall have been satisfied on or prior to such
day:
(a) The
Administrative Agent shall have received, with a copy for each Funding Agent,
this Second Amendment duly executed and delivered by the Issuer, the
Administrator, the CP Conduit Purchasers and the APA Banks (including the
Exiting Purchaser Group and the Acquiring Purchaser Group), the Administrative
Agent and the Indenture Trustee;
(b) The
representations and warranties of the Issuer and VMS contained in the
Transaction Documents to which each is a party shall be true and correct in
all
material respects as of the Second Amendment Effective Date as if made as of
the
Second Amendment Effective Date;
(c) The
Issuer shall pay to the Administrative Agent, (i) on behalf of each Purchaser
Group, the fee set forth on Exhibit B to this Second Amendment and (ii) all
other fees due and payable to the Administrative Agent; and
(d) The
Funding Agent with respect to the Exiting Purchaser Group shall have surrendered
the Series 2006-2 Investor Note issued in its name to the Indenture Trustee
for
cancellation and the Issuer shall have signed and directed the Indenture Trustee
to authenticate and deliver to the Funding Agent with respect to the Acquiring
Purchaser Group a new Series 2006-2 Investor Note in the name of such Funding
Agent in an amount equal to the Maximum Purchaser Group Invested Amount with
respect to the Acquiring Purchaser Group.
9. Miscellaneous.
(a) Payment
of Expenses. The Issuer agrees to pay or reimburse the Indenture
Trustee, the Administrative Agent, the CP Conduit Purchasers, the APA Banks
and
the Funding Agents for all of their respective out-of-pocket costs and
reasonable expenses incurred in connection with this Second Amendment,
including, without limitation, the reasonable fees and disbursements of their
respective counsel.
(b) No
Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Indenture Supplement
are
and shall remain in full force and effect.
(c) Governing
Law. THIS
SECOND AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(d) Counterparts. This
Second Amendment may be executed in two or more counterparts (and by different
parties on separate counterparts), each of which shall be an original, but
all
of which together shall constitute one and the same instrument. A set
of the copies of this Second Amendment signed by all the parties shall be lodged
with the Indenture Trustee. This Second Amendment may be delivered by
facsimile transmission of the relevant signature pages hereof.
IN
WITNESS WHEREOF, the Issuer, the Administrator, the Indenture Trustee, the
Administrative Agent, the CP Conduit Purchasers and the APA Banks have caused
this Second Amendment to be duly executed by their respective officers as of
the
day and year first above written.
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CHESAPEAKE
FUNDING LLC
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By: /s/
Xxxx X. Xxxxxxx
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Name:
Xxxx X. Xxxxxxx
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Title: Vice
President and Treasurer
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PHH
VEHICLE MANAGEMENT SERVICES, LLC
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By: /s/
Xxxx X. Xxxxxxx
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Name:
Xxxx X. Xxxxxxx
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Title: Vice
President and Treasurer
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THE
BANK OF NEW YORK, as Indenture Trustee
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By: /s/
Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title: Vice
President
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JPMORGAN
CHASE BANK, N.A., as Administrative Agent
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By: /s/
Xxxx X. Xxxx
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Name:
Xxxx X. Xxxx
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Title: Vice
President
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PARK
AVENUE RECEIVABLES COMPANY, LLC, as a CP Conduit
Purchaser
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By: JPMorgan
Chase Bank, N.A., its attorney-in-fact
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By: /s/
Xxxx X. Xxxx
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Name:
Xxxx X. Xxxx
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Title: Vice
President
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JPMORGAN
CHASE BANK, N.A., as an APA Bank
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By: /s/
Xxxx X. Xxxx
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Name:
Xxxx X. Xxxx
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Title: Vice
President
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VARIABLE
FUNDING CAPITAL COMPANY LLC, as a CP Conduit Purchaser
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By: WACHOVIA
CAPITAL MARKETS, LLC,
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As
Attorney-in-Fact
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By: /s/
Haojin Wu
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Name:
Haokin Wu
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Title:
Vice President
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WACHOVIA
BANK, NATIONAL ASSOCIATION, as an APA Bank
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By: /s/
Xxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxx
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Title: Director
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XX
XXXX TRUST, as a CP Conduit Purchaser
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By: Bank
of America, National Association, as
Administrative
Trustee
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By: /s/
Xxxx X. Xxxxx
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Name:
Xxxx X. Xxxxx
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Title:
Vice President
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BANK
OF AMERICA, NATIONAL ASSOCIATION, as an APA Bank
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By: /s/
Xxxx X. Xxxxx
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Name:
Xxxx X. Xxxxx
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Title:
Vice President
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LIBERTY
STREET FUNDING LLC, as a CP
Conduit
Purchaser
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By: /s/
Xxxx X. Xxxxxx
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Name: Xxxx
X. Xxxxxx
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Title: Vice
President
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THE
BANK OF NOVA SCOTIA, as an APA Bank
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By: /s/
Xxxxxxx Xxxx
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Name: Xxxxxxx
Xxxx
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Title: Director
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PARADIGM
FUNDING, LLC, as a CP Conduit
Purchaser
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By:
/s/ Xxxxx X. Xxxxx
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Name: Xxxxx
X. Xxxxx
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Title: Vice
President
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WESTLB
AG, NEW YORK BRANCH, as an APA Bank
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By: /s/
Xxxxxxx X. Tallow
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Name:
Xxxxxxx X. Tallow
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Title:
Director
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By: /s/
Llyin Liang
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Name:
Llyin Liang
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Title:
Director
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CHARTA,
LLC, as a CP Conduit Purchaser
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By: CITICORP
NORTH AMERICA, INC.,
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as
Attorney-in-Fact
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By: /s/
Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Vice
President
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CITIBANK,
N.A., as an APA Bank
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By: /s/
Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Vice
President
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SHEFFIELD
RECEIVABLES CORPORATION, as a
CP
Conduit Purchaser
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By: /s/
Xxxxx Xxxx
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Name: Xxxxx
Xxxx
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Title: Associate
Director
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BARCLAYS
BANK PLC, as an APA Bank
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By: /s/
Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx
Xxxxxxxx
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Title: Associate
Director
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ATLANTIC
ASSET SECURITIZATION LLC, as a
CP
Conduit Purchaser
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By: /s/
Xxx Xxxxxx
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Name:
Xxx Xxxxxx
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Title:
Managing Director
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By: /s/
Xxxxxxxxxxx Xxxxxxxxxx
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Name:
Xxxxxxxxxxx Xxxxxxxxxx
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Title:
Managing Director
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CALYON
NEW YORK BRANCH, as an APA Bank
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By: /s/
Xxx Xxxxxx
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Name:
Xxx Xxxxxx
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Title:
Managing Director
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By: /s/
Xxxxxxxxxxx Xxxxxxxxxx
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Name:
Xxxxxxxxxxx Xxxxxxxxxx
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Title:
Managing Director
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SARATOGA
FUNDING CORP. LLC, as CP
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Conduit
Purchaser of the Exiting Purchaser Group
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By: /s/
Xxxx Xxxxxx
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Name:
Xxxx Xxxxxx
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Title: Vice
President
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DEUTSCHE
BANK AG, NEW YORK BRANCH, as
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APA
Bank of the Exiting Purchaser Group
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By: /s/
Xxxxxx Xxxxxxxxxx
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/s/
Xxxxxx Xxxxxxx
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Name: Xxxxxx
Xxxxxxxxxx
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Xxxxxx
Xxxxxxx
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Title: Vice
President
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Director
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WINDMILL
FUNDING CORPORATION, as CP
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Conduit
Purchaser of the Acquiring Purchaser
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Group
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By: /s/
Xxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxxx
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Title: Vice
President
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ABN
AMRO BANK N.V., as APA Bank and
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Funding
Agent of the Acquiring Purchaser
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Group
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By: /s/
Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title: Director
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/s/
Xxxxx Xxxxxxxx
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Name:
Xxxxx Xxxxxxxx
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Title: Vice
President
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