SUPPLEMENTAL INDENTURE
Exhibit
10.2
SUPPLEMENTAL
INDENTURE, dated as of August 11, 2006 (this “Supplemental
Indenture”),
between XXXXXX’X GATE RESIDENTIAL MORTGAGE TRUST (the “Trust”)
and
THE BANK OF NEW YORK, as Indenture Trustee (the “Trustee”).
W I T N E S S E T H
:
WHEREAS,
the Trust and the Trustee are parties to that certain Base Indenture, dated
as
of December 11, 1998 (the “Base
Indenture”),
as
supplemented by the Series 1999-1 Supplement, dated as of November 22, 1999,
the
Series 2001-1 Supplement, dated as of March 30, 2001 and the Series 2001-2
Supplement, dated as of November 20, 2001 (collectively with the Base Indenture,
the “Indenture”);
WHEREAS,
certain Events of Default have occurred under Section 9.1(i)(i) of the Indenture
as a result of the Trust’s failure to provide to the Trustee (i) the audited
annual financial statements of the Trust, the Seller and PHH within 105 days
after the end of the most recent fiscal year of the Trust and the Seller as
required by Section 8.3(a) of the Base Indenture; and (ii) the unaudited
financial statements of PHH within 60 days of the most recent quarter end as
required by Section 8.3(a) of the Base Indenture;
WHEREAS,
the Trustee has notified the Servicer, the Seller, the Collateral Agent and
the
holders of the Residential Mortgage Loan Medium-Term Notes, Variable Rate Notes,
Series 1999-1, Due 2006 and Variable Rate Notes, Series 2001-2, Due 2008 issued
under the Indenture that the foregoing Events of Default have
occurred;
WHEREAS,
pursuant to and in accordance with Sections 9.5 and 12.2 of the Base Indenture,
the Trust has obtained, as of the date hereof, the consent of the Required
Noteholders to the waivers to certain provisions of the Indenture as more
particularly described in this Supplemental Indenture; and
WHEREAS,
the Trustee and the Required Noteholders have agreed to consent to the requested
waivers and modifications, but only on the terms and subject to the conditions
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 Base Indenture and
used
herein (and in the recitals hereto) as defined terms are used as so defined.
For
purposes of this Supplemental Indenture, “Disclosure Documents” shall mean the
collective reference to PHH’s (i) Form 8-K, filed on Xxxxx 0, 0000, (xx) Form
8-K, filed on Xxxxx 00, 0000, (xxx) Form 8-K, filed on May 11, 2006, (iv) Form
8-K, filed on June 12, 2006, and (v) Form 8-K, filed on July 21,
2006.
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2. Waiver.
Notwithstanding anything in the Indenture to the contrary, the Trustee, on
behalf of the Holders, hereby waives, (i) any Event of Default arising under
Section 8.10 of the Base Indenture or as a result of the inaccuracy when made
of
the representations and warranties contained in Article 7 of the Base Indenture,
solely to the extent that any inaccuracy of such representations and warranties
arises out of the matters disclosed by PHH in the Disclosure Documents, and
(ii)
any Event of Default arising under Section 8.3(a) of the Base Indenture as
a
result of the Trust’s failure to provide to the Trustee, or arising as a result
of the Trust's failure to provide to any other Person under a Program Document,
the audited annual financial statements of each of the Trust, the Seller and
PHH
for the fiscal year ended December 31, 2005 and the unaudited financial
statements of PHH for the fiscal quarters ended March 31, 2006, June 30, 2006
and September 30, 2006 provided,
in each
case, that such financial statements are delivered to the Trustee, Xxxxx’x,
S&P and Fitch on or before the earlier of (A) December 31, 2006 or (B) the
date on or after September 30, 2006 by which such financial statements are
required to be delivered to the holders of pari
passu
obligations of the Trust (other than the Notes) under their Program Documents
(after giving effect to any applicable waiver); provided,
at any
time that such Program Documents are no longer in effect, such date shall be
deemed to be December 31, 2006.
3. Representations
and Warranties.
On and
as of the date hereof, the Trust hereby confirms, reaffirms and restates the
representations and warranties set forth in Article 7 of the Base Indenture
mutatis mutandis,
except
to the extent that such representations and warranties (i) are the subject
of
the waiver contained in Section 2(i) above or (ii) expressly relate to a
specific earlier date in which case the Trust hereby confirms, reaffirms and
restates such representations and warranties as of such earlier
date.
4. Effectiveness
of Supplemental Indenture.
This
Supplemental Indenture shall become effective as of the date the Trustee shall
have received (a) evidence satisfactory to the Trustee that the Required
Noteholders have consented to the Trustee’s execution of this Supplemental
Indenture; and (b) counterparts of this Supplemental Indenture duly executed
by
the Trust and the Trustee. Upon this Supplemental Indenture becoming effective,
each Event of Default specified above shall be deemed to have been cured for
every purpose of the Indenture.
5. Continuing
Effect; No Other Waivers.
Except
as expressly provided herein, all of the terms and provisions of the Indenture
are and shall remain in full force and effect. The waivers provided for herein
are limited to the specific subsections of the Indenture specified herein and
shall not constitute a consent, waiver or amendment of, or an indication of
the
Trustee’s or the Holders’ willingness to consent to any action requiring consent
under any other provisions of the Indenture or the same Section for any other
date or time period other those specified herein.
6. Expenses.
The
Trust agrees to pay and reimburse the Trustee for all its reasonable costs
and
out-of-pocket expenses incurred in connection with the preparation and delivery
of this Supplemental Indenture, including, without limitation, the reasonable
fees and disbursements of counsel to the Trustee.
7. Counterparts.
This
Supplemental Indenture 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.
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8. GOVERNING
LAW.
THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9. Trustee
Makes No Representation.
The
Trustee makes no representation as to the validity or sufficiency of this
Supplemental Indenture.
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IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed and delivered by their proper and duly authorized officers
as
of the day and year first above written.
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XXXXXX’X
GATE RESIDENTIAL MORTGAGE TRUST
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By:
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DELAWARE
TRUST COMPANY,
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NATIONAL
ASSOCIATION, not in its
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individual
capacity, but solely as Owner
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Trustee
under the Trust Agreement
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By:
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/s/
Xxxxxxxx X. Xxxxxxx
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Name:
Xxxxxxxx X. Xxxxxxx
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Title:
Vice President
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THE
BANK OF NEW YORK, as Indenture Trustee
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By:
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/s/
Xxxxxx X. Xxxxxxxxxx
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Name:
Xxxxxx X. Xxxxxxxxxx
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Title:
Vice President
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