Contract
Exhibit
10.1
Supplemental
Indenture No. 4
Supplemental
Indenture No. 4,
dated as
of August 31, 2006, between PHH Corporation, a corporation duly organized
and
existing under the laws of the State of Maryland (the “Company”), and X.X.
Xxxxxx Trust Company, N.A. (as successor in interest for Bank One Trust Company,
N.A.), a national banking association duly organized and existing under the
laws
of the United States of America (the “Trustee”), as trustee under the Senior
Debt Securities Indenture hereinafter mentioned.
WITNESSETH:
Whereas,
the
Company duly authorized the execution and delivery of a Senior Debt Securities
Indenture, dated as of November 6, 2000 (as amended and supplemented, the
“Senior Indenture”), providing for the issuance from time to time of Securities
of the Company, unlimited as to principal amount, to bear such rates of
interest, to mature at such time or times, to be issued in one or more series;
Whereas,
Section
902 of the Senior Indenture provides that the Company and the Trustee may
enter
into a supplemental indenture for the purposes of adding any provisions to
or
changing in any manner or eliminating any of the provisions of the Senior
Indenture or of modifying in any manner the rights of the Holders of Securities
with the consent of the Holders of not less than a majority in principal
amount
of the Outstanding Securities of each series affected by such supplemental
indenture;
Whereas,
the
Company desires to supplement or amend the Senior Indenture only with respect
to
the following Securities, all of which were issued after May 30, 2002 (the
“Affected Securities”):
|
Outstanding
Principal
Amount
|
Title
of Securities
|
CUSIP
|
Maturity
|
||
|
$
|
400,000,000
|
6.000%
Benchmark Issues
|
693320-AE-3
|
03/01/2008
|
|
|
$
|
600,000,000
|
7.125%
Benchmark Issues
|
693320-AF-0
|
03/01/2013
|
|
|
$
|
840,000
|
5.550%
Non-Callable Internotes
|
69334W-CK-5
|
01/15/2007
|
|
|
$
|
4,222,000
|
6.700%
Non-Callable Internotes
|
69334W-AB-7
|
06/15/2007
|
|
|
$
|
4,098,000
|
6.650%
Non-Callable Internotes
|
69334W-AF-8
|
06/15/2007
|
|
|
$
|
8,916,000
|
6.500%
Non-Callable Internotes
|
69334W-AK-7
|
06/15/2007
|
|
|
$
|
971,000
|
6.400%
Non-Callable Internotes
|
69334W-AP-6
|
07/15/2007
|
|
|
$
|
2,197,000
|
6.450%
Non-Callable Internotes
|
69334W-AT-8
|
07/15/2007
|
|
|
$
|
3,528,000
|
6.050%
Non-Callable Internotes
|
69334W-AX-9
|
08/15/2007
|
|
|
$
|
2,754,000
|
5.900%
Non-Callable Internotes
|
69334W-BB-6
|
08/15/2007
|
|
|
$
|
1,770,000
|
5.850%
Non-Callable Internotes
|
69334W-BF-7
|
09/15/2007
|
|
|
$
|
1,126,000
|
5.600%
Non-Callable Internotes
|
69334W-BK-6
|
09/15/2007
|
|
|
$
|
2,724,000
|
5.600%
Non-Callable Internotes
|
69334W-BP-5
|
09/15/2007
|
|
|
$
|
1,538,000
|
5.500%
Non-Callable Internotes
|
69334W-BT-7
|
09/15/2007
|
|
|
$
|
1,558,000
|
5.500%
Non-Callable Internotes
|
69334W-BX-8
|
10/15/2007
|
|
|
$
|
1,074,000
|
6.000%
Non-Callable Internotes
|
69334W-CB-5
|
11/15/2007
|
|
|
$
|
700,000
|
5.900%
Non-Callable Internotes
|
69334W-CF-6
|
11/15/2007
|
|
|
$
|
3,217,000
|
6.000%
Non-Callable Internotes
|
69334W-CP-4
|
01/15/2008
|
|
|
$
|
4,688,000
|
6.000%
Non-Callable Internotes
|
69334W-CT-6
|
01/15/2008
|
|
|
$
|
3,173,000
|
6.000%
Non-Callable Internotes
|
69334W-CX-7
|
01/15/2008
|
|
|
$
|
2,637,000
|
5.750%
Non-Callable Internotes
|
69334W-DB-4
|
03/15/2008
|
|
|
$
|
1,898,000
|
5.500%
Non-Callable Internotes
|
69334W-DF-5
|
03/15/2008
|
|
|
$
|
2,648,000
|
5.800%
Non-Callable Internotes
|
69334W-DK-4
|
03/15/2008
|
|
|
$
|
2,950,000
|
5.950%
Non-Callable Internotes
|
69334W-DP-3
|
04/15/2008
|
|
|
$
|
2,853,000
|
5.600%
Non-Callable Internotes
|
69334W-DU-2
|
04/15/2008
|
|
|
$
|
3,802,000
|
6.700%
Callable Internotes
|
69334W-DQ-1
|
04/15/2010
|
|
|
$
|
2,326,000
|
6.450%
Callable Internotes
|
69334W-DV-0
|
04/15/2010
|
|
|
$
|
6,098,000
|
7.850%
Callable Internotes
|
69334W-DR-9
|
04/15/2018
|
|
|
$
|
6,391,000
|
7.650%
Callable Internotes
|
69334W-DS-7
|
04/15/2018
|
Whereas,
pursuant to Section 3.01 of the Supplemental Indenture No. 3, dated as of
May
30, 2002 between the Company and the Trustee, all securities issued after
May
30, 2002 shall be deemed to constitute securities of a single series, and,
accordingly, the Senior Indenture may be amended with the consent of the
Holders
of a majority in principal amount of the Affected Securities voting as a
single
class;
Whereas,
the
Company and the Trustee have received written consents of the Holders of
not
less than a majority in principal amount of the Affected Securities to the
amendments to the Senior Indenture set forth in this Supplemental Indenture
No.
4 and related waivers with respect to such Affected Securities; and
Whereas,
all
conditions necessary to authorize the execution and delivery of this
Supplemental Indenture No. 4 and to make this Supplemental Indenture No.
4 valid
and binding have been complied with or have been done or performed.
Now,
Therefore,
in
consideration of the premises set forth above, it is mutually agreed by the
Company and the Trustee, for the equal and ratable benefit of all Holders
of the
Affected Securities, as follows:
ARTICLE
ONE
DEFINITIONS
Section
1.01 For
all
purposes of the Senior Indenture and this Supplemental Indenture No. 4, except
as otherwise expressly provided or unless the context otherwise requires:
|
a.
|
unless
indicated otherwise, “herein,” “hereof” and other words of similar import
refer to this Supplemental Indenture No. 4 as a whole and not to
any
particular Article, Section or other subdivision;
and
|
|
b.
|
all
capitalized terms used in this Supplemental Indenture No. 4 but
not
defined herein shall have the meanings assigned such terms in the
Senior
Indenture.
|
ARTICLE
TWO
AMENDMENTS
TO THE SENIOR INDENTURE
Section
2.01 Section
101 of the Senior Indenture is hereby amended to add the following definitions
in appropriate alphabetical order:
“Additional
Consent Fee” means the payment defined as such with respect to the Securities in
the Offer Documents.
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2 -
“Compliance
Certificate” means the certificate the Company is required to deliver pursuant
to Section 1005 of the Indenture.
“Covenant
Reversion Date” means the earliest
of 5:30
p.m., New York City time, on (i) the Business Day following the Company’s
failure to pay the Initial Consent Fee and consideration
for
tendered Securities, if due, in accordance with the Offer Documents, (ii)
the
Business Day following the Company’s failure to pay the Additional Consent Fee,
if due, in accordance with the Offer Documents and (iii) December 31,
2006.
“Initial
Consent Fee” means the payment defined as such with respect to the Securities in
the Offer Documents.
“Offer
Documents” means the Offer to Purchase and Consent Solicitation Statement dated
as of August
16, 2006
and the related Letter of Transmittal, each as may be amended and supplemented
from time to time.
“SEC
Reports” means the Company’s Annual Report on Form 10-K for the year ended
December 31, 2005 and Quarterly Reports on Form 10-Q for the three months
ended
March 31, 2006,
the six
months ended June 30, 2006
and
the nine months ended September 30, 2006,
and
other information, documents and reports which the Company may be required
to
file with the Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934.
Section
2.02 Section
501 of the Senior Indenture is hereby amended to add the following sentence
at
the end of the Section:
“Notwithstanding
any of the foregoing, the failure of the Company to comply with Sections
704
or
1005 of
this
Indenture or Section 314 of the Trust Indenture Act prior
to
the
Covenant Reversion Date shall not constitute a default
under
clause (4)
above;
provided,
however,
that any
foregoing failure to comply with Sections 704 or
1005
of
this
Indenture or Section 314 of the Trust Indenture Act shall constitute a
default
under
clause (4) above as of the Covenant Reversion Date if, as of 5:30 p.m., New
York
City time, on the Covenant Reversion Date, the Company shall have failed
to file
with the Commission the SEC Reports that are required to be filed by that
date
or
the
Company shall have failed to deliver the Compliance Certificate.”
ARTICLE
THREE
WAIVER
OF
PAST DEFAULTS
Section
3.03 Pursuant
to Section 513 of the Senior Indenture, the Holders of a majority in aggregate
principal amount of the Affected Securities have waived all defaults with
respect to any breaches of Sections 501(4), 704 or 1005 of the Senior Indenture
or Section 314 of the Trust Indenture Act of 1939 and any defaults that shall
have occurred prior to the effective date of this Supplemental Indenture
No. 4
are deemed to have been cured for all purposes.
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3 -
ARTICLE
FOUR
MISCELLANEOUS
Section
4.01 Except
as
otherwise provided herein, all of the terms and conditions of the Senior
Indenture shall remain in full force and effect.
Section
4.02 The
Trustee assumes no responsibility for the correctness of the recitals herein
contained, which shall be taken as the statements of the Company. The Trustee
makes no representation and shall have no responsibility as to the validity
of
this Supplemental Indenture No. 4. All of the provisions contained in the
Senior
Indenture in respect of the rights, privileges, immunities, powers and duties
of
the Trustee shall be applicable in respect of this Supplemental Indenture
No. 4
as fully and with like force and effect as though fully set forth herein.
The
Company agrees to pay all amounts due to the Trustee under Section 607 of
the
Senior Indenture arising under or in connection with this Supplemental Indenture
No. 4.
Section
4.03 If
any
provision in this Supplemental Indenture No. 4 shall be invalid, illegal
or
unenforceable, the validity, legality or enforceability of the remaining
provisions of this Supplemental Indenture No. 4 or the Senior Indenture shall
not in any way be affected or impaired thereby.
Section
4.04 This
Supplemental Indenture No. 4 may be executed in several counterparts, each
of
which shall be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
Section
4.05 This
Supplemental Indenture No. 4 shall be governed by and construed in accordance
with the laws of the State of New York. This Supplemental Indenture No. 4
is
subject to the provisions of the Trust Indenture Act of 1939 and shall, to
the
extent applicable, be governed by such provisions.
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4 -
In
Witness Whereof,
the
Company and the Trustee have caused this Supplemental Indenture No. 4 to
be duly
executed by their respective officers thereunto duly authorized all as of
the
day and the year first above written.
|
PHH
CORPORATION
|
|||
|
By:
|
/s/
Xxxx Xxxxxxx
|
||
|
Name:
|
Xxxx
Xxxxxxx
|
||
|
Title:
|
Vice
President and Treasurer
|
||
|
X.X.
XXXXXX TRUST COMPANY, N.A.,
|
|||
|
as
Trustee
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
||
|
|
Name:
|
Xxxxxx
X. Xxxxxx
|
|
|
|
Title:
|
Vice
President
|
|
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