ex10-1.htm


    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 2006-2 Indenture 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

    114
      West
      47th Street,
      Suite 1715

    New
      York,
      New York 10036

    Attention:  Andrew
      Stidd

    Telephone:  (212)
      302-8330

    Telecopy:  (212)
      302-8767

    


    with
      a
      copy to:

    


    ABN
      AMRO
      BANK, N.V.

    Structured
      Finance, Asset Securitization

    540
      West
      Madison Street, 27th Floor

    Chicago,
      Illinois  60661

    Attention:  Windmill-Administrator

    Telephone:  (312)
      904-6263

    Telecopy:  (312)
      992-1527

    


    


    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.

    

      
        	
                CHESAPEAKE
                  FUNDING LLC

              
	 
	
                By:  /s/
                  Mark E. Johnson

              
	 	
                Name:
                  Mark E. Johnson

              
	 	
                Title:  Vice
                  President and Treasurer

              
	 	 
	
                PHH
                  VEHICLE MANAGEMENT SERVICES, LLC

              
	 
	
                By:  /s/
                  Mark E. Johnson

              
	 	
                Name:
                  Mark E. Johnson

              
	 	
                Title:  Vice
                  President and Treasurer

              
	 	 
	
                THE
                  BANK OF NEW YORK, as Indenture Trustee

              
	 
	
                By:  /s/
                  Scott J. Tepper

              
	 	
                Name:
                  Scott J. Tepper

              
	 	
                Title:  Vice
                  President

              


      



    



    
      
         

      

      
         

        
          

        

      

      
         

      

    

    

      
        	
                JPMORGAN
                  CHASE BANK, N.A., as Administrative Agent

              
	 
	
                By:  /s/
                  Jill T. Lane

              
	
                Name:
                  Jill T. Lane

              
	
                Title:  Vice
                  President

              
	 
	 
	
                PARK
                  AVENUE RECEIVABLES COMPANY, LLC, as a CP Conduit
                  Purchaser

              
	 
	
                By:  JPMorgan
                  Chase Bank, N.A., its attorney-in-fact

              
	 
	
                By:  /s/
                  Jill T. Lane

              
	
                Name:
                  Jill T. Lane

              
	
                Title:  Vice
                  President

              
	 
	 
	
                JPMORGAN
                  CHASE BANK, N.A., as an APA Bank

              
	 
	
                By:  /s/
                  Jill T. Lane

              
	
                Name:
                  Jill T. Lane

              
	
                Title:  Vice
                  President

              


      



     


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    
      	
              VARIABLE
                FUNDING CAPITAL COMPANY LLC, as a CP Conduit Purchaser

            
	 
	
              By:  WACHOVIA
                CAPITAL MARKETS, LLC,

            
	
              As
                Attorney-in-Fact

            
	 
	
              By:  /s/
                Haojin Wu

            
	
              Name:
                Haokin Wu

            
	
              Title:
                Vice President

            
	 
	
              WACHOVIA
                BANK, NATIONAL ASSOCIATION, as an APA Bank

            
	 
	
              By:  /s/
                Andrew W. Riebe

            
	
              Name:
                Andrew W. Riebe

            
	
              Title:  Director

            


    



    
      
         

      

      
         

        
          

        

      

      
         

      

    

    

      
        	
                YC
                  SUSI TRUST, as a CP Conduit Purchaser

              
	 
	 
	
                By:  Bank
                  of America, National Association, as 

                Administrative
                  Trustee

              
	 
	
                By:  /s/
                  Leif E. Rauer

              
	
                Name:
                  Leif E. Rauer

              
	
                Title:
                  Vice President

              
	 
	
                BANK
                  OF AMERICA, NATIONAL ASSOCIATION, as an APA Bank

              
	 
	 
	
                By:  /s/
                  Leif E. Rauer

              
	
                Name:
                  Leif E. Rauer

              
	
                Title:
                  Vice President

              


      




    
      
         

      

      
         

        
          

        

      

      
         

      

    


    
      	
              LIBERTY
                STREET FUNDING LLC, as a CP 

              Conduit
                Purchaser

            
	 
	
              By:   /s/
                Jill A. Gordon

            
	 	
              Name:  Jill
                A. Gordon

            
	 	
              Title:   Vice
                President

            
	 	 
	
              THE
                BANK OF NOVA SCOTIA, as an APA Bank

            
	 
	 
	
              By:   /s/
                Michael Eden

            
	 	
              Name:  Michael
                Eden

            
	 	
              Title:    Director

            


    



    
      
         

      

      
         

        
          

        

      

      
         

      

    


    
      	
              PARADIGM
                FUNDING, LLC, as a CP Conduit 

              Purchaser

            
	 	 
	
              By:
                /s/ Doris J. Hearn

            
	 	
              Name:  Doris
                J. Hearn

            
	 	
              Title:    Vice
                President

            
	 	 
	 	 
	
              WESTLB
                AG, NEW YORK BRANCH, as an APA Bank

            
	 
	
              By:  /s/
                Matthew F. Tallow

            
	 	
              Name:
                Matthew F. Tallow

            
	 	
              Title:
                Director

            
	 	 
	
              By:  /s/
                Llyin Liang

            
	 	
              Name:
                Llyin Liang

            
	 	
              Title:
                Director

            


    



    
      
         

      

      
         

        
          

        

      

      
         

      

    


    
      	
              CHARTA,
                LLC, as a CP Conduit Purchaser

            
	 
	
              By:  CITICORP
                NORTH AMERICA, INC.,

            
	
                       as
                Attorney-in-Fact

            
	 
	
              By:  /s/
                Richard C. Simons

            
	 	
              Name:  Richard
                C. Simons

            
	 	
              Title:    Vice
                President

            
	 	 
	 	 
	
              CITIBANK,
                N.A., as an APA Bank

            
	 
	 
	
              By:  /s/
                Richard C. Simons

            
	 	
              Name:  Richard
                C. Simons

            
	 	
              Title:    Vice
                President

            


    


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    
      	
              SHEFFIELD
                RECEIVABLES CORPORATION, as a 

              CP
                Conduit Purchaser

            
	 	 
	 	 
	
              By:   /s/
                David Mira

            
	 	
              Name:  David
                Mira

            
	 	
              Title:    Associate
                Director

            
	 	 
	 	 
	
              BARCLAYS
                BANK PLC, as an APA Bank

            
	 	 
	 	 
	
              By:   /s/
                Jeffrey Goldberg

            
	 	
              Name:  Jeffrey
                Goldberg

            
	 	
              Title:    Associate
                Director

            


    

     

     


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    
      	
              ATLANTIC
                ASSET SECURITIZATION LLC, as a 

              CP
                Conduit Purchaser

            
	 
	
              By:  /s/
                Sam Pilcer

            
	
              Name:
                Sam Pilcer

            
	
              Title:
                Managing Director

            
	 
	
              By:  /s/
                Konstantina Kourmpetis

            
	
              Name:
                Konstantina Kourmpetis

            
	
              Title:
                Managing Director

            
	 
	
              CALYON
                NEW YORK BRANCH, as an APA Bank

            
	 
	
              By:  /s/
                Sam Pilcer

            
	
              Name:
                Sam Pilcer

            
	
              Title:
                Managing Director

            
	 
	
              By:  /s/
                Konstantina Kourmpetis

            
	
              Name:
                Konstantina Kourmpetis

            
	
              Title:
                Managing Director

            


    


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    
      	
              SARATOGA
                FUNDING CORP. LLC, as CP

            
	
                    Conduit
                Purchaser of the Exiting Purchaser Group

            
	 	 
	 	 
	
              By:   /s/
                Lori Gebron

            	 
	
              Name:
                Lori Gebron

            	 
	
              Title:   Vice
                President

            	 
	 	 
	 	 
	
              DEUTSCHE
                BANK AG, NEW YORK BRANCH, as

            
	
                     APA
                Bank of the Exiting Purchaser Group

            
	 	 
	 	 
	
              By:   /s/
                Sergey Moiseyenko

            	
              /s/
                Sumeet Wadhera

            
	
              Name:  Sergey
                Moiseyenko

            	
              Sumeet
                Wadhera

            
	
              Title:    Vice
                President

            	
              Director

            


    


    
      
         

      

      
         

        
          

        

      

      
         

      

    




    
      	
              WINDMILL
                FUNDING CORPORATION, as CP

            
	 	
              Conduit
                Purchaser of the Acquiring Purchaser

            
	 	
              Group

            
	 	 
	 	 
	
              By:   /s/
                Jill A. Gordon

            
	 	
              Name:
                Jill A. Gordon

            
	 	
              Title:   Vice
                President

            
	 	 
	 	 
	
              ABN
                AMRO BANK N.V., as APA Bank and

            
	 	
              Funding
                Agent of the Acquiring Purchaser

            
	 	
              Group

            
	 	 
	 	 
	
              By:   /s/
                David J. Donofrio

            
	 	
              Name:
                David J. Donofrio

            
	 	
              Title:   Director

            
	 	 
	 	 
	
              /s/
                Adnan Bhanpuri

            
	 	
               Name:
                Adnan Bhanpuri

            
	 	
                     Title:   Vice
                President