Contract
Exhibit
10.1
FIRST
AMENDMENT,
dated as of February 22, 2007 (this “Amendment”),
to
the 364-Day Revolving Credit Agreement, dated as of April 6, 2006 (as previously
amended by the letter agreement dated July 21, 2006 and as further amended,
supplemented or otherwise modified from time to time, the “Credit
Agreement”),
among
PHH CORPORATION, a Maryland corporation (the “Borrower”),
the
several lenders from time to time parties thereto (collectively, the
“Lenders”)
and
JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders (in such
capacity, the “Administrative
Agent”).
W
I T
N E S S E T H
:
WHEREAS,
the Borrower, the Lenders and the Administrative Agent are parties to the Credit
Agreement;
WHEREAS,
the Borrower has requested that certain provisions of the Credit Agreement
be
amended as set forth herein; and
WHEREAS,
the Lenders are willing to agree to such amendments on the terms set forth
herein;
NOW,
THEREFORE, in consideration of the premises contained herein, the parties hereto
agree as follows:
1. Defined
Terms.
Unless
otherwise defined herein, terms which are defined in the Credit Agreement and
used herein (and in the recitals hereto) as defined terms are so used as so
defined.
2. Amendments
to the Table of Contents.
The
Table of Contents of the Credit Agreement is hereby amended by adding references
to the following new Exhibits F and G (attached as Annexes 1 and 2 hereto,
respectively):
F Form
of
New Lender Supplement
G
Form
of
Commitment Increase Supplement
3. Amendment
to Section 1 (Definitions).
Section
1 of the Credit Agreement is hereby amended as follows:
(i)
by
deleting the following defined terms in their entirety:
“Commitment
Utilization Percentage”;
“Excess
Utilization Day”
“Utilization
Fee”;
and
“Utilization
Fee Percentage”;
(ii)
by
deleting the words “, the Utilization Fee” appearing subsequent to the words
“the Facility Fee” and prior to the words “and all other monetary” on the third
line of the definition of the term “Obligations”;
and
(iii)
by
deleting the following defined term in its entirety and substituting in lieu
thereof the following new definition:
“Termination
Date”
shall
mean December 15, 2007.
4. Amendment
to Section 2.8 (Fees).
Section
2.8 of the Credit Agreement is hereby amended by deleting the text of paragraph
(b) therein and replacing it with the word “[reserved]”.
5. Amendments
to Section 2.13 (Termination and Reduction of Commitments).
Section
2.13 of the Credit Agreement is hereby amended as follows:
(a)
by
adding to the title, after “Termination of and Reduction of Commitments”, the
following clause:
“;
Increase of Commitments”;
(b)
by
deleting from the second sentence of paragraph (d) therein (i) the “,” between
the words “Total Commitment” and words “the Facility Fees” and (ii) the words
“and the Utilization Fees” subsequent to the words “the Facility Fees” and prior
to the words “on the amount”; and
(c)
by
inserting the following new paragraphs (e), (f), (g) and (h):
(e)
In
the
event that the Borrower wishes to increase the Total Commitment at any time
when
no Default or Event of Default has occurred and is continuing, it shall notify
the Administrative Agent in writing of the amount (the “Offered Increase
Amount”) of such proposed increase (such notice, a “Commitment Increase
Notice”), and the Administrative Agent shall notify each Lender of such proposed
increase and provide such additional information regarding such proposed
increase as any Lender may reasonably request. The Borrower may, at its election
and with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld), (i) offer one or more of the Lenders the opportunity
to
participate in all or a portion of the Offered Increase Amount pursuant to
paragraph (g) below and/or (ii) offer one or more additional banks, financial
institutions or other entities the opportunity to participate in all or a
portion of the Offered Increase Amount pursuant to paragraph (f) below. Each
Commitment Increase Notice shall specify which entities the Borrower desires
to
participate in such Commitment increase. The Borrower or, if requested by the
Borrower, the Administrative Agent, will notify such Lenders and/or banks,
financial institutions or other entities of such offer.
(f)
Any
additional bank, financial institution or other entity which the Borrower
selects to offer participation in the increased Commitments and which elects
to
become a party to this Agreement and provide a Commitment in an amount so
offered and accepted by it pursuant to Section 2.13(e)(ii) shall execute a
New
Lender Supplement with the Borrower and the Administrative Agent, substantially
in the form of Exhibit F, whereupon such bank, financial institution or other
entity (herein called a “New Lender”) shall become a Lender for all purposes and
to the same extent as if originally a party hereto and shall be bound by and
entitled to the benefits of this Agreement, and Schedule 1.1A shall be deemed
to
be amended to add the name and Commitment of such New Lender, provided that
the
Commitment of any such new Lender shall be in an amount not less than
$5,000,000.
(g)
Any
Lender which accepts an offer to it by the Borrower to increase its Commitment
pursuant to Section 2.13(e)(i) shall, in each case, execute a Commitment
Increase Supplement with the Borrower and the Administrative Agent,
substantially in the form of Exhibit G, whereupon such Lender shall be bound
by
and entitled to the benefits of this Agreement with respect to the full amount
of its Commitment as so increased, and Schedule 1.1A shall be deemed to be
amended to so increase the Commitment of such Lender.
(h)
Notwithstanding anything to the contrary in this Section 2.13, (i) in no event
shall any transaction effected pursuant to this Section 2.13 cause the Total
Commitment to exceed $500,000,000 and (ii) no Lender shall have any obligation
to increase its Commitment unless it agrees to do so in its sole
discretion.
6. Amendment
to Section 2.16 (Reserve Requirements; Change in Circumstances).
Section
2.16 of the Credit Agreement is hereby amended by deleting the words “,
Utilization Fee” subsequent to the words “Facility Fees” and prior to the words
“and all other” on the third to last line of paragraph (f) thereof.
7. Amendment
to Section 2.23 (Certain Pricing Adjustments).
Section
2.23 of the Credit Agreement is hereby amended by deleting the existing text
contained therein in its entirety and inserting in lieu thereof the following
new text :
“The
Facility Fee, the applicable LIBOR Spread and the applicable FFR Spread in
effect from
time
to time shall be determined in accordance with the following table:
|
Level
|
“S&P/Xxxxx’x
Rating Equivalent of the Borrower’s senior unsecured
long-term
debt
|
Facility
Fee
(in
Basis Points)
|
Applicable
LIBOR
Spread
(in
Basis Points)
|
Applicable
FFR
Spread
(in
Basis Points)
|
|||||||||
|
Level
I
|
|
|
BBB/Baa3
orBBB-/Baa2
or
better
|
12.0
|
|
|
75.5
|
|
|
75.5
|
|
||
|
Level
II
|
|
|
BBB-/Baa3
|
|
|
17.5
|
|
|
82.5
|
|
|
82.5
|
|
|
Level
III
|
|
|
BBB-/Ba1
or BB+/Baa3
|
|
|
20.0
|
|
|
105.0
|
|
|
105.0
|
|
|
Level
IV
|
|
|
BB+/Ba1
or worse
|
|
|
22.5
|
|
|
127.5
|
|
|
127.5
|
|
With
respect to Level I or Level II in the table above, in the event the S&P and
Xxxxx’x ratings on the Borrower’s senior non-credit enhanced unsecured long-term
debt are not equivalent to each other, the higher rating of S&P and Xxxxx’x
will determine the Facility Fee, the applicable LIBOR Spread and the applicable
FFR Spread, unless the ratings are more than one level apart, in which case
the
rating one level below the higher rating of S&P or Xxxxx’x will be
determinative. In the event that (a) the Borrower’s senior non-credit enhanced
unsecured long-term debt is not rated by both of S&P or Xxxxx’x (for any
reason, including if S&P or Xxxxx’x shall cease to be in the business of
rating corporate debt obligations) or (b) if the rating system of either of
S&P or Xxxxx’x shall change, then an amendment shall be negotiated in good
faith (and shall be effective only upon approval by the Borrower and the
Majority Lenders) to the references to specific ratings in the table above
to
reflect such changed rating system or the unavailability of ratings from such
rating agency (including an amendment to provide for the substitution of an
equivalent or successor ratings agency). In the event that the Borrower’s senior
non-credit enhanced unsecured long-term debt is not rated by either of S&P
and Xxxxx’x, then the Facility Fee, the applicable LIBOR Spread and the
applicable FFR Spread shall be deemed to be
calculated
as if the lowest rating category set forth above applied until such time as
an
amendment to the table above shall be agreed to. Any increase in the Facility
Fee, the applicable LIBOR Spread or the applicable FFR Spread determined in
accordance with the foregoing table shall become effective on the date of
announcement or publication by the Borrower or the applicable rating agency
of a
reduction in such rating or, in the absence of such announcement or publication,
on the effective date of such decreased rating, or on the date of any request
by
the Borrower to the applicable rating agency not to rate its senior non-credit
enhanced unsecured long-term debt or on the date any of such rating agencies
announces it shall no longer rate the Borrower’s senior non-credit enhanced
unsecured long-term debt. Any decrease in the Facility Fee, the applicable
LIBOR
Spread or the applicable FFR Spread shall be effective on the date of
announcement or publication by any of such rating agencies of an increase in
rating or in the absence of announcement or publication on the effective date
of
such increase in rating.”
8. Amendment
to Section 8.2 of the Credit Agreement (Advances and Payments). Section
8.2 of the Credit Agreement is hereby amended by deleting the words “and
Utilization Fees” from the clause “first”
in
paragraph (b) therein.
9. Amendment
to Section 10.9 of the Credit Agreement (Amendments, etc.).
Section
10.9 of the Credit Agreement is hereby amended by deleting the words “or the
Utilization Fees” from the clause (y) in paragraph (a) therein.
10. Representations
and Warranties.
On and
as of the date hereof, the Borrower hereby confirms, reaffirms and restates
the
representations and warranties set forth in Section 3 of the Credit Agreement
mutatis mutandis,
except
to the extent that such representations and warranties (i) are the subject
of
that certain Waiver, dated as of December 21, 2006, to the Credit Agreement
or
(ii) expressly relate to a specific earlier date in which case the Borrower
hereby confirms, reaffirms and restates such representations and warranties
as
of such earlier date.
11. Partial
Termination of Commitments.
The
outstanding Commitments under the Credit Agreement shall automatically be
reduced to $200,000,000 upon the effectiveness of this Amendment.
12. Effectiveness
of Amendment.
This
Amendment shall become effective as of the date:
(a)
the
Administrative Agent shall have received counterparts of this Amendment duly
executed by the Borrower and each Lender; and
(b)
the
Administrative Agent and each Lender shall have received all fees due and
payable by the Borrower on or prior to the effectiveness of this Amendment
in
connection herewith.
13. Continuing
Effect; No Other Amendments.
Except
as expressly provided herein, all of the terms and provisions of the Credit
Agreement are and shall remain in full force and effect.
14. Expenses.
The
Borrower agrees to pay and reimburse the Administrative Agent for all its
reasonable costs and out-of-pocket expenses incurred in connection with the
preparation and delivery of this Amendment, including, without limitation,
the
reasonable fees and disbursements of counsel to the Administrative Agent.
15. Counterparts.
This
Amendment may be executed in any number of counterparts by the parties hereto
(including by facsimile or electronic transmission), each of which counterparts
when so
executed
shall be an original, but all the counterparts shall together constitute one
and
the same instrument.
16. GOVERNING
LAW.
THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered in New York, New York by their proper and duly authorized
officers as of the day and year first above written.
PHH
CORPORATION
By:
/s/
Xxxx X. Xxxxxxx
Name:
Xxxx X. Xxxxxxx
Title:
Vice President & Treasurer
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent and as
a Lender
By:
/s/
Xxxxxxx X. Xxxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxxx
Title:
Vice President
CITICORP
USA, INC., as a Lender
By:
/s/
Xxxxx X. Xxx
Name:
Xxxxx
X.
Xxx
Title:
Vice President
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
a
Lender
By:
/s/
Xxxxx X. Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Vice President
THE
BANK
OF NOVA SCOTIA, as a Lender
By:
/s/
Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Managing Director
