Supplemental Indenture, dated as of August 11, 2006 among The Bank of New York, as Indenture Trustee, and Bishops Gate

 

 

SUPPLEMENTAL INDENTURE, dated as of August 11, 2006 (this “Supplemental Indenture”), between BISHOP’S 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 March 1, 2006, (ii) Form 8-K, filed on March 17, 2006, (iii) 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.

 

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, Moody’s, 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.

 

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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