PHH CORPORATION
EXECUTIVE DEFERRED COMPENSATION PLAN
1. PREAMBLE
This Executive Deferred Compensation Plan enables designated executives of
the Corporation to defer voluntarily the receipt of compensation until
retirement or other termination of employment. It also enables any such
designated executive who is limited under the terms of the PHH Corporation
Employee Investment Plan from contributing the maximum salary deferral
contributions permissible under section 402(g) of the Internal Revenue Code
to receive a credit hereunder equal to any matching contributions that the
Corporation would have contributed to the Employee Investment Plan for the
account of such executive, but for such limitation.
The Plan is unfunded and is maintained by the Corporation primarily for the
purpose of providing deferred compensation for a select group of highly
compensated employees. As such, the Plan is exempt from Part 2
(participation and funding), Part 3 (funding) and Part 4 (fiduciary
responsibility) of the Employee Retirement Income Security Act of 1974 and
is subject to limited reporting and disclosure rules under Part 1 of such
Act.
2. DEFINITIONS
The following terms shall have the following meanings, unless a different
meaning is plainly required by the context:
(a) "Account" means the bookkeeping account established with
respect to a Participant pursuant to Section 6.
(b) "Board of Directors" means the Board of Directors of the
Corporation.
(c) "Committee" means the Compensation Committee of the Board
of Directors.
(d) "Compensation" means, for any Plan Year, the aggregate of a
Participant's salary earned and payable in that Year and awards payable
under any of the Corporation's incentive plans in that Year, but only to the
extent such salary and awards are payable in cash.
(e) "Corporation" means PHH Corporation and any successor
thereto. Any reference to a Participant's employment with the Corporation
shall be deemed to refer to the Participant's employment with PHH
Corporation or any of its subsidiaries or affiliates.
(f) "Designated Beneficiary(ies)" means that person or persons
(including individuals, trusts or the estate of the Participant) designated
on the Beneficiary Designation Election form attached hereto as Exhibit A to
receive benefits hereunder in the event of a Participant's death. Exhibit A
and each election made on Exhibit A shall be an integral part of this Plan.
(g) "Effective Date" means the Effective Date of the Plan,
which shall be March 1, 1994. The effective date of any amendment to the
Plan shall be such date as is specified in the amendment.
(h) "Employee Investment Plan" means the PHH Corporation
Employee Investment Plan, as amended from time to time.
(i) "ERISA" means the Employee Retirement Income Security Act
of 1974.
(j) "Investment Funds" means such mutual fund or funds as may
from time to time be available under the Employee
Investment Plan; provided, however, that the P H H
Stock Fund shall not be an Investment Fund under this Plan.
(k) "Optional Deferral Election" means an election made by a
Participant pursuant to Section 4 to reduce a portion of his or her
Compensation and have an equivalent amount deferred under this Plan. An
Optional Deferral Election shall be made substantially in the form attached
hereto as Exhibit B. Exhibit B and each election made on Exhibit B shall be
an integral part of this Plan.
(l) "Participant" means an executive of the Corporation who
participates in this Plan.
(m) "Payment Election" means an election made by a Participant
pursuant to Section 7 wherein he or she elects when benefits shall be
payable and whether they shall be payable in the form of a single sum or
installments. A Payment Election shall be made substantially in the form
attached hereto as Exhibit C. Exhibit C and each election made on Exhibit C
shall be an integral part of this Plan.
(n) "Plan" means this Executive Deferred Compensation Plan, as
it may be amended from time to time.
(o) "Plan Year" means the calendar year.
(p) " Secretary" means the person holding the office of
secretary of the Corporation.
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3. PARTICIPATION
(a) Commencement. The Participants in the Plan as of the
Effective Date shall be those executives designated in
Appendix A attached hereto. From time to time, and in its
sole discretion, the Committee may amend Appendix A to add
or delete executives, effective as of such date as is
specified by the Committee; provided that the addition of
any executive of the Corporation does not cause the Plan to
fail to be a "top hat" plan, as that term is defined under
ERISA.
(b) Termination. Deferral of compensation under the Plan may
continue as to any participant until the earliest of any of
the following: (i) he or she terminates his or her
Optional Deferral Election pursuant to the terms hereof, in
which event such deferral shall terminate effective at the
end of the Plan Year in which the termination notice is
received; (ii) the Committee amends Appendix A to eliminate
the Participant; or (iii) the date the Participant ceases
to be an active employee of the Corporation. Termination
of deferrals under this Section 3(b) shall create no right
to distribution unless otherwise provided under this Plan.
4. OPTIONAL DEFERRALS
(a) General Rule. In accordance with such Optional Deferral
Election form(s) as approved by Committee, and subject to such limitations
as the Committee may impose with respect to any Participant, a Participant
may make an Optional Deferral Election with respect to all or any portion of
his or her Compensation for the Plan Year or partial Plan Year to which the
Optional Deferral Election relates. Optional deferrals shall be credited to
the Participant's Account as of each date Compensation subject to an
Optional Deferral Election otherwise would be payable. A Participant shall
be 100 percent vested in the portion of his or her Account attributable to
optional deferrals at all times.
(b) Time of Optional Deferral Election. To be effective for
any Plan Year, an Optional Deferral Election form to defer Compensation must
be received by the Committee prior to January 1 of the Plan Year to which it
relates. However, if an individual becomes a Participant on or after the
Effective Date and on a date other than January 1, the individual may submit
an Optional Deferral Election form for the remainder of the Plan Year in
which he or she becomes a Participant if the form is submitted within thirty
(30) days after becoming a Participant; provided, however, that the Optional
Deferral Election shall apply only to Compensation relating to the period
following the date the Optional Deferral Election is submitted.
(c) Optional Deferral Election Irrevocable. Once submitted, an
Optional Deferral Election is irrevocable for the Plan Year to which it
applies. 3
(d) Continuing Effectiveness of Optional Deferral Elections.
Once submitted, a Participant's Optional Deferral Election shall continue in
effect for subsequent Plan Years unless the Participant submits a new
Optional Deferral Election form in accordance with the terms of this Plan
and such administrative rules and policy as the Committee shall establish,
or unless, pursuant to Section 3(b) hereof, the Participant is no longer
permitted to defer. Notwithstanding the above, and subject to such
administrative rules as are established by the Committee, a Participant may
change the apportionment of his or her Optional Deferral Election among the
Investment Funds.
5. MATCHING CONTRIBUTIONS RELATING TO EMPLOYEE INVESTMENT PLAN
(a) General Rule. For any Plan Year in which a Participant is
limited under the terms of the Employee Investment Plan from contributing
the maximum salary deferral contributions permissible under section 402(g)
of the Internal Revenue Code, a Participant shall have credited to his
Account the amount of any matching contributions the Corporation would have
credited to the Participant's account under the Employee Investment Plan but
for such limitation; provided that the Participant has made to the Plan an
optional deferral in the amount to be matched. Matching contributions shall
be credited to a Participant's Account as of the dates they would have been
credited under the Employee Investment Plan. This provision shall not
affect any limitations on benefits imposed by sections 401(a)(17) and 415 of
the Internal Revenue Code.
The following example illustrates the effect of this
Section: Assume the Corporation meets its Employee Investment Plan profit
targets and makes, under the Employee Investment Plan, a 100% Matching
Contribution on the first 3% of deferrals and 100% Matching Contribution on
the second 3% of deferrals so that all deferrals under the Employee
Investment Plan up to 6% are matched. Assume further that the Participant
has Compensation in excess of the Internal Revenue Code Section 401(a)(17)
limits ($150,000 as indexed). If the Participant contributes the maximum
amount (6%) permitted to be deferred under the Employee Investment Plan,
$9,000 of his deferrals ($150,000 x 6%) would be subject to the base and
profit share Matching Contributions under the Employee Investment Plan. If
the Participant had been limited to contributing 5% under the Employee
Investment Plan ($7,500), the base Matching Contribution would be $4,500 and
the profit share Matching Contribution would be $3,000, for a total Matching
Contribution under the Employee Investment Plan of $7,500. If the
Participant had contributed the excluded 1% or $1,500 ($9,000 match limit
minus the $7,500 limit imposed by the Corporation under the Employee
Investment Plan) under this Plan, a match of $1,500
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($9,000 Matching Contribution at 6% less the $7,500 Matching Contribution
made under the Employee Investment Plan) would be made to the Participant's
Account under this Plan.
(b) Vesting. A Participant shall become vested in the portion
of his or her Account attributable to matching contributions in accordance
with the vesting schedule applicable to Company Accounts under the Employee
Investment Plan; provided that such matching contributions are subject to
forfeiture under the events set forth in Section 10 hereof.
6. ACCOUNTS
(a) General. An Account shall be established in the name of
each Participant. Within each Account, there shall be two sub-accounts, one
reflecting a Participant's interests attributable to optional deferrals made
pursuant to Section 4, and the other reflecting a Participant's interests
attributable to matching contributions made pursuant to Section 5.
(b) Hypothetical Investment. For purposes of determining the
value of a Participant's Account, it shall be assumed that: (i) optional
deferrals credited to the Participant's Account under Section 4 are invested
in the Investment Funds in accordance with the Participant's instructions as
set forth in the election form approved by the Committee; and (ii) matching
contributions under Section 5 are invested in the money market Investment
Fund or in such other Investment Fund as the Committee shall determine. The
Participant's Account shall be credited on a daily basis with the investment
gain or loss that would have been credited to his or her account under the
Employee Investment Plan, had the amounts credited to the Participant's
Account instead been contributed to the Employee Investment Plan.
(c) Value of Account. Whenever it is necessary to determine
the value of a Participant's Account, the value as of the day immediately
preceding the date the determination is being made shall be used.
(d) Bookkeeping Account Only. The Account established in a
Participant's name is for bookkeeping purposes only. It is the intention of
the parties that the Plan and any trust hereunder, and any Account, be
unfunded for purposes of the Internal Revenue Code and the Employee
Retirement Income Security Act of 1974 and that benefits shall be paid
solely from the general assets of the Corporation.
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(e) Unsecured Creditors. Participants in this Plan have the
status of unsecured creditors of the Corporation, and the Plan constitutes a
mere unsecured promise by the Corporation to make benefit payments in the
future.
(f) Trust or Other Vehicles. Notwithstanding the foregoing, to
assist it in meeting its obligations hereunder, the Corporation may
establish a grantor trust or custodial account, purchase one or more
insurance policies, or use any other vehicle that it deems appropriate for
such purpose; provided, however, that no such vehicle shall be for the
benefit of, or cause amounts to be set aside for the benefit of, any one or
group of Participants.
7. DISTRIBUTIONS
(a) Distributable Event. Subject to subsection (b), a
Participant (or his Designated Beneficiary(ies)) shall become entitled to a
distribution under the Plan upon the date the Participant ceases employment
with the Corporation for any reason; provided that the Committee may, in its
sole discretion, defer payment of such distribution until any date up to the
later of (i) such time as the Participant ceases to be subject to any
reporting requirements as to his or her compensation under the Securities
Exchange Act of 1934, or (ii) such time as the Participant ceases to be
classified as an executive officer, the deductibility of whose compensation
by the Corporation is limited under Section 162(m) of the Internal Revenue
Code.
(b) Commencement of Distribution. Distribution to a
Participant of his or her vested interest shall be made or commence as of
such date specified in the last Payment Election form submitted by the
Participant; provided, however, that no change in a Payment Election will be
effective unless it has been made at least twelve (12) months before
distribution would have been made or begun in the absence of the change.
Notwithstanding the foregoing, actual distributions of a Participant's lump
sum or initial installment payment may be deferred for a period not in
excess of sixty (60) days following the date a lump sum or initial
installment becomes payable, without the requirement to pay any interest or
other amount on account of the deferral.
(c) Form of Distribution. Distribution either may be made in a
lump sum or in monthly, quarterly or annual installments for a period of
time not to exceed ten (10) years, as specified in the last Payment Election
form submitted by the Participant; provided, however, that no change in a
Payment Election will be effective unless it has been made at least twelve
(12) months before distribution would have been made or begun in the absence
of such a change. If distributions are made in installments, investment
gain and loss shall continue to be credited in accordance with
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Section 6(b) hereof until complete distribution has been made. All
distributions shall be made in cash.
(d) Death. If a Participant dies before receiving 100 percent
of his or her vested interest, the unpaid balance of the Participant's
Account shall become 100 percent vested and shall be paid as soon as
practicable after death to the Participant's Designated Beneficiary(ies) in
the form (lump sum or installments) as specified in the last Payment
Election Form submitted by the Participant; provided that no change in a
Payment Election will be effective unless made at least twelve (12) months
before the Participant's death.
(e) Emergency Distributions. If the Committee, in its sole
discretion, determines that a Participant has incurred an unforeseeable
emergency that would result in severe financial hardship to the Participant
if a distribution from the Plan were not made, the Committee may distribute
to the Participant such portion of the Participant's Account as it, in its
sole discretion, determines is necessary to meet the emergency.
(f) Acceleration because of Taxable Event. If the Committee,
in its sole discretion, determines that a Participant has become subject to
income tax on all or any portion of his Account, the taxable portion shall
be distributed to the Participant.
8. CLAIMS PROCEDURE
(a) I n i t i a l Claim. If a Participant or Designated
Beneficiary(ies) (hereinafter referred to as a "Claimant") is denied all or
a portion of an expected benefit under this Plan for any reason, he or she
may file a claim with the Committee. The Committee shall review the claim
itself or appoint a person to review the claim. The Claimant shall be
notified within sixty (60) days after his or her claim is filed whether the
claim is allowed or denied, unless the Claimant receives written notice
prior to the end of the sixty (60) day period stating that special
circumstances require an extension of the time for decision. The notice of
the decision shall be in writing, sent by mail to the Claimant's last known
address, and, if a denial of the claim, shall contain the following
information:
(1) the specific reasons for the denial;
(2) specific reference to pertinent provisions of
the Plan on which the denial is based; and
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(3) if applicable, a
description of any additional information or
material necessary to perfect the claim, an
explanation of why such information or material is
necessary, and an explanation of the claims review
procedure.
(b) Review Procedure. A Claimant is entitled to request a
review by the Committee of any denial of the Claimant's claim. The request
for review must be submitted to the Committee in writing within sixty (60)
days of mailing of notice of the denial. Absent a request for review within
the sixty (60) day period, the claim will be deemed to be conclusively
denied. The review of a denial of a claim shall be conducted by the
Committee or an individual or entity appointed by the Committee. The
reviewer shall afford the Claimant an opportunity to review all pertinent
documents and submit issues and comments in writing and shall render a
review decision in writing, all within sixty (60) days after receipt of a
request for a review, provided that, unless prohibited by law, the reviewer
may extend the time for decision by not more than sixty (60) days upon
written notice to the Claimant. The Claimant shall receive written notice
of the reviewer's decision, together with specific reasons for the decision
and reference to the pertinent provisions of the Plan.
9. CLAIMS AGAINST ACCOUNT
A Participant's rights to benefit payments under the Plan are not subject in
any manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors of the Participant, the
Participant's Designated Beneficiary(ies) or the Participant's estate.
Nothing contained in this Plan shall give any Participant or beneficiary any
interest, lien or claim against any specific assets of the Corporation. No
Participant or beneficiary shall have any rights other than as a general
creditor of the Corporation.
10. FORFEITURE OF RIGHT TO MATCHING CONTRIBUTIONS
Notwithstanding any other provision of this Plan, and at the sole and
absolute discretion of the Board of Directors of the Corporation, a
Participant will forfeit all right to receive matching contributions
credited to his Account pursuant to Section 5 hereof and all investment gain
thereon and will be immediately obligated to return to the Corporation the
amount of any such matching contributions previously distributed to the
Participant or other beneficiary if (a) such Participant, within a period of
two years from the date his or her employment with the Corporation or its
affiliates terminates, directly or indirectly, either individually or as
owner, partner, agent, employee, consultant or otherwise, except for the
account of and on behalf of the Corporation or an affiliate of the
Corporation, engages in any activity competitive with the business of the
Corporation or an affiliate of the Corporation, or in competition with the
Corporation or one of its affiliates, solicits or otherwise attempts to
establish for himself or herself or for any other person, firm or entity,
any business relationships with any person, firm or corporation which was,
at the time the Participant's employment terminates or within one year prior
thereto, a customer
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of the Corporation or one of its affiliates or (b) a
Participant's employment is terminated because of willful misconduct or
gross negligence in the performance of his or her duties and the Committee
determines in its sole and absolute discretion that such matching
contributions shall be forfeited.
If Participant is determined by the Board of Directors, in its sole and
absolute discretion, to have committed or threatened to commit an act set
forth above, the Participant, by his or her participation herein,
acknowledges that such act will cause irreparable injury to the Corporation
and that money damages alone will not provide an adequate remedy to the
Corporation, and the Board of Directors may, in its sole and absolute
discretion, determine that the Corporation is entitled to an injunction
against such act and direct the appropriate representatives of the
Corporation to seek such an injunction.
1. ADMINISTRATION
(a) General. The Plan shall be administered by the Committee,
and any question regarding the proper administration of the Plan or the
construction of any term hereof shall be resolved by it, in its sole
discretion. The Committee shall act by a majority of its members then in
office, except that the members thereof may authorize any one or more of
their number or any officer of the Corporation to execute and deliver
documents on behalf of the Committee or otherwise to perform the duties of
the Committee.
(b) Agents. The Committee may delegate the performance of such
functions as are necessary or appropriate for it to properly administer and
construe the Plan to agents including, but not limited to, appropriate
officers of the Corporation or any subcommittee of the Committee. In
addition, the Committee (directly, or through its agents) may retain
attorneys, accountants, and such other experts as are necessary or
appropriate to properly administer and construe the Plan.
(c) Liability. To the extent permitted by law, neither the
Committee, nor any other person performing duties under this Plan, shall
incur any liability for any act done, determination made or failure to act,
if in good faith, and the Corporation shall indemnify the Committee, its
members and such other persons against any and all liability that is
incurred as a result of the good faith performance or non-performance of
their duties hereunder. The Corporation may, but shall not be obligated to,
purchase liability insurance to protect such persons with respect to their
duties under the Plan.
(d) Expenses. The Corporation shall pay all expenses
associated with the establishment, maintenance and termination of this Plan.
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12. AMENDMENT AND TERMINATION
The Board of Directors may amend, suspend or terminate this Plan at any
time, in any manner and for any reason; provided, however, that no
alteration, amendment, suspension, termination or similar action shall
reduce or impair the rights of a Participant accrued prior to such action.
To the extent permitted by law, the Board of Directors, in its discretion,
may delegate all or any of its authority under this Section 12 to the
Committee.
13. MISCELLANEOUS
(a) Recordkeeping and Benefit Statements. The Corporation
shall keep accurate and detailed records of all transactions under this
Plan. Within 60 days following the close of each quarter of Plan Year
during which an individual is a Participant, the Corporation shall issue to
the Participant a statement showing the amounts allocated to the sub
accounts within that Participant's Account as of the close of such quarter
of the Plan Year, the percentage vested, and other appropriate information.
(b) Effectiveness of Optional Deferral Elections, Other
Notices. Any Optional Deferral Election by a Participant under this Plan
must either be completed in full, signed by the Participant and received by
the Secretary or be made by telephonic instructions from the Participant to
the extent permitted under such administrative rules or policy as shall be
established by the Committee.
(c) Limitation of Rights. Nothing contained in this Plan shall
be construed to limit in any way the right of the Corporation to terminate a
Participant's employment at any time, or be evidence of any agreement or
understanding, express or implied, that a Participant will be employed in a
particular position or at any particular rate of remuneration.
(d) Severability. Any provision of this Plan prohibited by law
shall be ineffective to the extent of any such prohibition, without
invalidating the Plan's remaining provisions.
(d) Applicable State Law. To the extent not preempted by the
Employee Retirement Income Security Act of 1974, this Plan shall be governed
by, and construed in accordance with, the laws of the State of Maryland
other than the conflicts of laws rules thereof.
(e) Construction. This Plan shall be construed and
administered as an unfunded plan maintained primarily for the purpose of
providing deferred compensation to a select group of management or highly
compensated employees, as those terms are used in the Employee Retirement
Income Security Act of 1974.
[Approved by the Board of Directors on February 28, 1994]
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TRUST AGREEMENT
Between
______________________________________________
PHH CORPORATION
And
FIDELITY MANAGEMENT TRUST COMPANY
______________________________________________
PHH CORPORATION EXECUTIVE
DEFERRED COMPENSATION PLAN TRUST
Dated as of February 28, 1994
TABLE OF CONTENTS
Section Page
1 Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(a) Establishment
(b) Grantor Trust
(c) Trust Assets
(d) Non-Assignment
(e) Change in Control
2 Payments to Sponsor . . . . . . . . . . . . . . . . . . . . . . . . 3
3 Disbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Directions from Administrator
(b) Limitations
4 Investment of Trust . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) Selection of Investment Options
(b) Available Investment Options
(c) Investment Directions
(d) Mutual Funds
(e) Trustee Responsibility and Powers
5 Recordkeeping and Administrative Services to Be Performed... . . . . 7
(a) General
(b) Accounts
(c) Inspection and Audit
(d) Effect of Plan Amendment
(e) Returns, Reports and Information
6 Compensation and Expenses . . . . . . . . . . . . . . . . . . . . . 8
7 Directions and Indemnification . . . . . . . . . . . . . . . . . . . 9
(a) Identity of Administrator
(b) Directions from Administrator
(c) Directions from Participants
(d) Indemnification
(e) Survival
8 Resignation or Removal of Trustee . . . . . . . . . . . . . . . . 10
(a) Resignation
(b) Removal
(c) Upon a Change of Control
(d) Transfer of Trust Assets
i
TABLE OF CONTENTS
(Continued)
Section Page
9 Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . .11
(a) Appointment
(b) Acceptance
(c) Corporate Action
10 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
11 Resignation, Removal, and Termination Notices . . . . . . . . . . .12
12 Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
13 Insolvency of Sponsor . . . . . . . . . . . . . . . . . . . . . . .12
14 Amendment or Modification . . . . . . . . . . . . . . . . . . . . .13
15 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
(a) Performance by Trustee, its Agent or Affiliates
(b) Entire Agreement
(c) Waiver
(d) Successors and Assigns
(e) Partial Invalidity
(f) Section Headings
16 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . .15
(a) Massachusetts Controls
(b) Trust Agreement Controls
Schedules
A. Recordkeeping and Administrative Services
B. Fee Schedule
C. Administrator's Authorization Letter
ii
TRUST AGREEMENT, dated as of the 28th day of February, 1994, between
PHH Corporation, a Maryland corporation, having an office at 11333 McCormick
Road, Hunt Valley, Maryland 21031 (the "Sponsor"), and FIDELITY MANAGEMENT
TRUST COMPANY, a Massachusetts trust company, having an office at 82
Devonshire Street, Boston, Massachusetts 02109 (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the PHH Corporation Executive
Deferred Compensation Plan (the "Plan"); and
WHEREAS, the Sponsor wishes to establish an irrevocable trust and to
contribute to the trust assets that shall be held therein, subject to the
claims of Sponsor's creditors in the event of Sponsor's Insolvency, as
herein defined, until paid to Plan participants and their beneficiaries in
such manner and at such times as specified in the Plan; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the
Plan as an unfunded nonqualified plan maintained for the purpose of
providing deferred compensation for a select group of management or highly
compensated employees for purposes of Title I of the Employee Retirement
Income Security Act of 1974 ("ERISA"); and
WHEREAS, it is the intention of the Sponsor to make contributions to
the trust to provide itself with a source of funds to assist it in the
meeting of its liabilities under the Plan; and
WHEREAS, the Trustee is willing to hold and invest the aforesaid plan
assets in trust among several investment options selected by the Sponsor to
be allocated in a manner selected by the Sponsor; and
WHEREAS, the Sponsor wishes to have the Trustee perform certain
ministerial recordkeeping and administrative functions under the Plan; and
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WHEREAS, the Compensation Committee of the Sponsor's Board of
Directors (the "Administrator") is the administrator of the Plan; and
WHEREAS, the Trustee is willing to perform recordkeeping and
administrative services for the Plan if the services are purely ministerial
in nature and are provided within a framework of plan provisions, guidelines
and interpretations conveyed in writing to the Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth below, the Sponsor and the Trustee
agree as follows:
Section 1. Trust.
(a) Establishment. The Sponsor hereby establishes the PHH
Corporation Executive Deferred Compensation Plan Trust (the "Trust"), with
the Trustee. The Trust shall consist of an initial contribution of money or
other property acceptable to the Trustee in its sole discretion, made by the
Sponsor or transferred from a previous trustee under the Plan, such
additional sums of money as shall from time to time be delivered to the
Trustee under the Plan, all investments made therewith and proceeds thereof,
and all earnings and profits thereon, less the payments that are made by the
Trustee as provided herein, without distinction between principal and
income. The Trustee hereby accepts the Trust on the terms and conditions
set forth in this Agreement. In accepting this Trust, the Trustee shall be
accountable for the assets received by it, subject to the terms and
conditions of this Agreement.
(b) Grantor Trust. The Trust is intended to be a grantor
trust, of which the Sponsor is the grantor, within the meaning of subpart E,
part I, subchapter J, chapter 1, subtitle A of the Internal Revenue Code of
1986, as amended, and shall be construed accordingly.
The Sponsor shall make irrevocable deposits of cash or
other property with the Trustee equal to deferrals under the Plan, and to
the Sponsor matching contributions under the Plan, as of such dates as made
to participant's accounts under the terms of the Plan. If there is a
forfeiture of any portion of a participant's account pursuant to the Plan,
the Sponsor may offset subsequent deposits to the extent of assets of the
Trust attributable to such forfeiture.
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(c) Trust Assets. The principal of the Trust, and any
earnings thereon shall be held separate and apart from other funds of the
Sponsor and shall be used exclusively for the uses and purposes of Plan
participants and general creditors as herein set forth. Plan participants
and their beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of the Trust. Any rights created under
the Plan and this Trust Agreement shall be mere unsecured contractual rights
of Plan participants and their beneficiaries against the Sponsor. Any
assets held by the Trust will be subject to the claims of the Sponsor's
general creditors under federal and state law in the event of Insolvency, as
defined in Section 13(a).
(d) Non-Assignment. Benefit payments to Plan participants and
their beneficiaries funded under this Trust may not be anticipated, assigned
(either at law or in equity), alienated, pledged, encumbered, or subjected
to attachment, garnishment, levy, execution, or other legal or equitable
process.
(e) Change in Control. Upon a Change of Control, the Sponsor
shall, as soon as possible but in no event later than 15 days following the
Change of Control, as defined herein, make an irrevocable contribution to
the Trust in an amount that will be sufficient to the Trust to pay the
benefits to which Plan participants or their beneficiaries would be entitled
pursuant to the terms of the Plan, as of the date on which the Change of
Control occurred.
Section 2. Payments to Sponsor. Except as provided under Section 13, the
Sponsor shall have no right to retain or divert to others any of the Trust
assets before all payment of benefits have been made to the participants and
their beneficiaries pursuant to the terms of the Plan.
Section 3. Disbursements.
(a) Directions from Administrator. The Trustee shall disburse
monies to the Sponsor for benefit payments in the amounts that the
Administrator directs from time to time in writing. The Trustee shall have
no responsibility to ascertain any direction's compliance with the terms of
the Plan or of any applicable law. The Trustee shall not be responsible for
making benefit payments to participants under the Plan, nor shall the
Trustee be responsible for any Federal, State or local income tax reporting
or withholding with respect to such Plan benefits.
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(b) Limitations. The Trustee shall not be required to make
any disbursement in excess of the net realizable value of the assets of the
Trust at the time of the disbursement. The Trustee shall not be required to
make any disbursement in cash unless the Administrator has provided a
written direction as to the assets to be converted to cash for the purpose
of making the disbursement. Except as provided either in Section 13 hereof
(with respect to Insolvency of the Sponsor) or as provided in the Plan (with
respect to forfeiture of Sponsor matching contributions), and except as
necessary to satisfy the employee portion of FICA taxes due, the Sponsor
shall have no right or power to direct the Trustee to return to the Sponsor
or divert to others any of the Trust assets before all payment of benefits
have been made to Plan participants or their beneficiaries pursuant to the
terms of the Plan.
Section 4. Investment of Trust.
(a) Selection of Investment Options. The Trustee shall have
no responsibility for the selection of investment options under the Trust
and shall not render investment advice to any person in connection with the
selection of such options.
(b) Available Investment Options. The Sponsor shall initially
direct the Trustee as to the investment options in which Trust assets shall
be invested, subject to the following limitations. The Sponsor may
determine to use as investment options only securities issued by the
investment companies advised by Fidelity Management & Research Company
("Mutual Funds") identified on Schedules "A" attached hereto; provided,
however, that the Trustee shall not be considered a fiduciary with
investment discretion. The Sponsor may add or delete investment options
upon mutual amendment of this Trust Agreement and the Schedule "A" thereto
to reflect such addition(s) or deletion(s).
(c) Investment Directions. In order to provide for an
accumulation of assets comparable to the contractual liabilities accruing
under the Plan, the Sponsor may direct the Trustee in writing how to invest
the assets held in the Trust. In accordance with the above, directions may
be provided directly by Plan participants with respect for their own account
under the Trust by use of the telephone exchange system maintained for such
purposes by the Trustee or its agent. In the event that the Trustee fails
to receive a proper direction from the Sponsor or
4
from Participants, the
assets in question shall be invested in Fidelity Retirement Money Market
Fund until the Trustee receives a proper direction.
(d) Mutual Funds. The Sponsor hereby acknowledges that it has
received from the Trustee a copy of the prospectus for each Mutual Fund
selected by the Sponsor as a Plan investment option. Trust investments in
Mutual Funds shall be subject to the following limitations:
(i) Execution of Purchases and Sales. Purchases and
sales of Mutual Funds (other than for Exchanges) shall be made on the date
on which the Trustee receives from the Sponsor in good order all information
and documentation necessary to accurately effect such purchases and sales
(or in the case of a purchase, the subsequent date on which the Trustee has
received a wire transfer of funds necessary to make such purchase).
Exchanges of Mutual Funds shall be made on the same business day that the
Trustee receives a proper direction if received before 4:00 p.m. eastern
time; if the direction is received after 4:00 p.m. eastern time, the
exchange shall be made the following day.
(ii) Voting. At the time of mailing of notice of each
annual or special stockholders' meeting of any Mutual Fund, the Trustee
shall send a copy of the notice and all proxy solicitation materials to each
Plan participant who has shares of the Mutual Fund credited to the
participant's accounts under the Trust, together with a voting direction
form for return to the Trustee or its designee. The participant shall have
the right to direct the Trustee as to the manner in which the Trustee is to
vote the shares credited to the participant's accounts (both vested and
unvested). The Trustee shall vote the shares as directed by the
participant. The Trustee shall not vote shares for which it has received no
directions from the participant. With respect to all rights other than the
right to vote, the Trustee shall follow the directions of the participant
and if no such directions are received, the directions of the Sponsor. The
Trustee shall have no additional duty to solicit directions from
participants or the Sponsor.
(e) Trustee Responsibility and Powers. The Trustee shall act
with the care, skill, prudence and diligence under the circumstances then
prevailing that a prudent person acting in like capacity and familiar with
such matters would use in the conduct of an enterprise of a like character
and with like aims. The Trustee shall have the following powers and
authority:
5
(i) Subject to paragraphs (b), (c) and (d) of this
Section 4, to sell, exchange, convey, transfer, or otherwise dispose of any
property held in the Trust, by private contract or at public auction. No
person dealing with the Trustee shall be bound to see to the application of
the purchase money or other property delivered to the Trustee or to inquire
into the validity, expediency, or propriety of any such sale or other
disposition.
(ii) To cause any securities or other property held as
part of the Trust to be registered in the Trustee's own name, in the name of
one or more of its nominees, or in the Trustee's account with the Depository
Trust Company of New York and to hold any investments in bearer form, but
the books and records of the Trustee shall at all times show that all such
investments are part of the Trust.
(iii) To keep that
portion of the Trust in cash or cash balances as the Sponsor or
Administrator may, from time to time, deem to be in the best interest of the
Trust.
(iv) To make, execute, acknowledge, and deliver any and
all documents of transfer or conveyance and to carry out the powers herein
granted.
(v) To settle, compromise, or submit to arbitration any
claims, debts, or damages due to or arising from the Trust; to commence or
defend suits or legal or administrative proceedings; to represent the Trust
in all suits and legal and administrative hearings; and to pay all
reasonable expenses arising from any such action, from the Trust if not paid
by the Sponsor.
(vi) To employ legal, accounting, clerical, and other
assistance as may be required in carrying out the provisions of this
Agreement and to pay their reasonable expenses and compensation from the
Trust if not paid by the Sponsor.
(vii) To do all other acts although not specifically
mentioned herein, as the Trustee may deem necessary to carry out any of the
foregoing powers and the purposes of the Trust.
6
Notwithstanding any powers granted to Trustee pursuant to this
Trust Agreement or to applicable law, Trustee shall not have any power that
could give this Trust the objective of carrying on a business and dividing
the gains therefrom, within the meaning of Section 301.7701-2 of the
Procedure and Administrative Regulations promulgated pursuant to the
Internal Revenue Code. The Sponsor shall provide the Trustee with an
opinion of counsel whether an annual fiduciary tax return should be filed
for the Trust; in the absence of such opinion, Trustee may consult with
counsel to the extent it deems appropriate on this issue, and any resulting
counsel fees shall be charged to the Trust to the extent not paid by the
Sponsor.
Section 5. Recordkeeping and Administrative Services to Be Performed.
(a) General. The Trustee shall perform those recordkeeping
and administrative functions described in Schedule "A" attached hereto.
These recordkeeping and administrative functions shall be performed within
the framework of the Administrator's written directions regarding the Plan's
provisions, guidelines and interpretations.
(b) Accounts. The Trustee shall keep accurate accounts of all
investments, receipts, disbursements, and other transactions hereunder, and
shall report the value of the assets held for the account of each
participant in the Trust as of the last day of each calendar quarter of the
Plan and, if not on the last day of a calendar quarter, the date on which
the Trustee resigns or is removed as provided in Section 8 of this Agreement
or is terminated as provided in Section 10 (the "Reporting Date"). Within
thirty (30) days following each Reporting Date or within sixty (60) days in
the case of a Reporting Date caused by the resignation or removal of the
Trustee, or the termination of this Agreement, the Trustee shall file with
the Administrator a written account setting forth all investments, receipts,
disbursements, and other transactions effected by the Trustee between the
Reporting Date and the prior Reporting Date, and setting forth the value of
the Trust as of the Reporting Date. Except as otherwise required under
applicable law, upon the expiration of one year from the date of filing such
account with the Administrator, the Trustee shall have no liability or
further accountability to anyone with respect to the propriety of its acts
or transactions shown in such account, except with respect to such acts or
transactions as to which the Sponsor shall within such one year period file
with the Trustee written objections, and except in the case of gross
negligence or willful misconduct of the Trustee.
7
(c) Inspection and Audit. All records generated by the
Trustee in accordance with paragraphs (a) and (b) shall be open to
inspection and audit, during the Trustee's regular business hours prior to
the termination of this Agreement, by the Administrator or any person
designated by the Administrator. Upon the resignation or removal of the
Trustee or the termination of this Agreement, the Trustee shall provide to
the Administrator, at no expense to the Sponsor, in the format regularly
provided to the Administrator, a statement of each participant's accounts as
of the resignation, removal, or termination, and the Trustee shall provide
to the Administrator or the Plan's new recordkeeper such further records as
are reasonable, at the Sponsor's expense.
(d) Effect of Plan Amendment. The Trustee's provision of the
recordkeeping and administrative services set forth in this Section 5 shall
be conditioned on the Sponsor delivering to the Trustee a copy of any
amendment to the Plan as soon as administratively feasible following the
amendment's adoption, and on the Administrator providing the Trustee on a
timely basis with all the information the Administrator deems necessary for
the Trustee to perform the recordkeeping and administrative services and
such other information as the Trustee may reasonably request.
(e) Returns, Reports and Information. The Administrator shall
be responsible for the preparation and filing of all returns, reports, and
information required of the Trust or Plan by law. The Trustee shall provide
the Administrator with such information as the Administrator may reasonably
request to make these filings. The Administrator shall also be responsible
for making any disclosures to participants required by law.
Section 6. Compensation and Expenses. Within thirty (30) days of receipt
of the Trustee's bill, which shall be computed and billed in accordance with
Schedule "B" attached hereto and made a part hereof, as amended from time to
time, the Sponsor shall send to the Trustee a payment in such amount or the
Sponsor may direct the Trustee to deduct such amount from participants'
accounts. All expenses of the Trustee relating directly to the acquisition
and disposition of investments constituting part of the Trust, and all taxes
of any kind whatsoever that may be levied or assessed under existing or
future laws upon or in respect of the Trust or the income thereof, shall be
a charge against and paid from the appropriate Plan participants' accounts.
8
Section 7. Directions and Indemnification.
(a) Identity of Administrator. The Trustee shall be fully
protected in relying on the fact that the Administrator under the Plan is
the individual or persons named as such above or such other individuals or
persons as the Sponsor may notify the Trustee in writing. The Administrator
may from time to time delegate to others its authority to provide directions
to the Trustee hereunder, and the Trustee shall be fully protected in
relying upon directions by any such person provided that the Administrator
has informed the Trustee and Sponsor in writing of such delegation.
(b) Directions from Administrator. Whenever the Administrator
provides a direction to the Trustee, the Trustee shall not be liable for any
loss, or by reason of any breach, arising from the direction if the
direction is contained in a writing (or is oral and immediately confirmed in
a writing) signed by any individual whose name and signature have been
submitted (and not withdrawn) in writing to the Trustee by the Administrator
in the form attached hereto as Schedule "C", provided the Trustee reasonably
believes the signature of the individual to be genuine. Such direction may
be made via EDT in accordance with procedures agreed to by the Administrator
and the Trustee; provided, however, that the Trustee shall be fully
protected in relying on such direction as if it were a direction made in
writing by the Administrator. The Trustee shall have no responsibility to
ascertain any direction's (i) accuracy, (ii) compliance with the terms of
the Plan or any applicable law, or (iii) effect for tax purposes or
otherwise.
(c) Directions from Participants. The Trustee shall not be
liable for any loss which arises from any participant's exercise or non-
exercise of rights under this Section 4 over the assets in the participant's
accounts.
(d) Indemnification. The Sponsor shall indemnify the Trustee
against, and hold the Trustee harmless from, any and all loss, damage,
penalty, liability, cost, and expense, including without limitation,
reasonable attorneys' fees and disbursements, that may be incurred by,
imposed upon, or asserted against the Trustee by reason of any claim,
regulatory proceeding, or litigation arising from any act done or omitted to
be done by any individual or person with respect
9
to the Plan or Trust,
excepting only any and all loss, etc., arising solely from the Trustee's
negligence or bad faith.
(e) Survival. The provisions of this Section 7 shall survive
the termination of this Agreement.
Section 8. Resignation or Removal of Trustee.
(a) Resignation. The Trustee may resign at any time upon
sixty (60) days' notice in writing to the Sponsor, unless a shorter period
of notice is agreed upon by the Sponsor.
(b) Removal. The Sponsor may remove the Trustee at any time
upon sixty (60) days' notice in writing to the Trustee, unless a shorter
period of notice is agreed upon by the Trustee.
(c) Upon a Change of Control. Upon a Change of Control, as
defined herein, the Trustee may not be removed by the Sponsor for a period
of one year unless seventy-five percent (75%) of the number of participants
in the Plan (or their surviving beneficiaries, as the case may be) consent
in writing to the removal of the Trustee and the identity of the successor
Trustee. If the Trustee resigns within one year following a Change of
Control, as defined herein, the choice of the successor Trustee shall be
subject to the condition that seventy-five percent (75%) of the number of
participants in the Plan (or their surviving beneficiaries, as the case may
be) consent in writing to the identity of the successor Trustee. The
purpose of these provisions is to ensure that, following a Change of
Control, the Trust continues to be administered for the purpose of providing
benefits to the participants and beneficiaries covered by the Plan.
For purposes of this Trust, the term "Change of Control"
shall mean the earlier to occur of either of the following events: (1) a
third person, including a "group" as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, becomes the beneficial owner of shares of
the Company having 20% or more of the total number of votes that may be cast
for the election of directors of the Sponsor, or (ii) as the result of, or
in connection with, any cash tender or exchange offer, merger or other
business combination, sale of assets or contested election, or any
combination of the foregoing transactions (a "Transaction"), the persons who
were directors
10
of the Sponsor before the Transaction cease to constitute a
majority of the Board of Directors of the Sponsor or any successor to the
Sponsor. Unless the Trustee has actual knowledge of a Change in Control,
the Trustee shall have no duty to inquire whether a Change in Control has
occurred unless it has received notice from the Sponsor of a Change in
Control.
(d) Transfer of Trust Assets. Upon the resignation or removal
of the Trustee and the appointment of a successor Trustee, all assets shall
subsequently be transferred to the successor Trustee. The transfer shall be
completed within sixty (60) days after receipt of notice or resignation,
removal or transfer, unless the Sponsor extends the time limit.
Section 9. Successor Trustee.
(a) Appointment. If the office of Trustee becomes vacant for
any reason, the Sponsor may in writing appoint a successor trustee under
this Agreement. The successor trustee shall have all of the rights, powers,
privileges, obligations, duties, liabilities, and immunities granted to the
Trustee under this Agreement. The successor trustee and predecessor trustee
shall not be liable for the acts or omissions of the other with respect to
the Trust.
(b) Acceptance. When the successor trustee accepts its
appointment under this Agreement, title to and possession of the Trust
assets shall immediately vest in the successor trustee without any further
action on the part of the predecessor trustee. The predecessor trustee
shall execute all instruments and do all acts that reasonably may be
necessary or reasonably may be requested in writing by the Sponsor or the
successor trustee to vest title to all Trust assets in the successor trustee
or to deliver all Trust assets to the successor trustee.
(c) Corporate Action. Any successor of the Trustee or
successor trustee, through sale or transfer of the business or trust
department of the Trustee or successor trustee, or through reorganization,
consolidation, or merger, or any similar transaction, shall, upon
consummation of the transaction, become the successor trustee under this
Agreement.
Section 10. Termination. This Agreement may be terminated at any time by
the Sponsor upon sixty (60) days' notice in writing to the Trustee. On the
date of the termination of this Agreement, the Trustee shall forthwith
transfer and deliver to such individual or entity as the Sponsor shall
11
designate, all cash and assets then constituting the Trust. If, by the
termination date, the Sponsor has not notified the Trustee in writing as to
whom the assets and cash are to be transferred and delivered, the Trustee
may bring an appropriate action or proceeding for leave to deposit the
assets and cash in a court of competent jurisdiction. The Trustee shall be
reimbursed by the Sponsor for all costs and expenses of the action or
proceeding including, without limitation, reasonable attorneys' fees and
disbursements.
Section 11. Resignation, Removal, and Termination Notices. All notices of
resignation, removal, or termination under this Agreement must be in writing
and mailed to the party to which the notice is being given by certified or
registered mail, return receipt requested, to the Sponsor c/o Ms. Patricia
Muncy, Manager, Retirement Planning and Operations, PHH Corporation, 11333
McCormick Road, Hunt Valley, Maryland 21031, and to the Trustee c/o John M.
Kimpel, Fidelity Investments, 82 Devonshire Street, Boston, Massachusetts
02109, or to such other addresses as the parties have notified each other of
in the foregoing manner.
Section 12. Duration. This Trust shall continue in effect without limit as
to time, subject, however, to the provisions of this Agreement relating to
amendment, modification, and termination thereof.
Section 13. Insolvency of Sponsor.
(a) Trustee shall cease disbursement of funds for payment of
benefits to Plan participants and their beneficiaries if the Sponsor is
Insolvent. Sponsor shall be considered "Insolvent" for purposes of this
Trust Agreement if (i) Sponsor is unable to pay its debts as they become
due, or (ii) Sponsor is subject to a pending proceeding as a debtor under
the United States Bankruptcy Code.
(b) All times during the continuance of this Trust, the
principal and income of the Trust shall be subject to claims of general
creditors of the Sponsor under federal and state law as set forth below.
(i) The Board of Directors and the Chief Executive
Officer of the Sponsor shall have the duty to inform Trustee in writing of
Sponsor's Insolvency. If a person claiming to be a
12
creditor of the Sponsor
alleges in writing to Trustee that Sponsor has become Insolvent, Trustee
shall determine whether Sponsor is Insolvent and, pending such
determination, Trustee shall discontinue disbursements for payment of
benefits to Plan participants or their beneficiaries.
(ii) Unless Trustee has
actual knowledge of Sponsor's Insolvency, or has received notice from
Sponsor or a person claiming to be a creditor alleging that Company is
Insolvent, Trustee shall have no duty to inquire whether Sponsor is
Insolvent. Trustee may in all events rely on such evidence concerning
Sponsor's solvency as may be furnished to Trustee and that provides Trustee
with a reasonable basis for making a determination concerning Sponsor's
solvency.
(iii) If any time
Trustee has determined that Sponsor is Insolvent, Trustee shall discontinue
disbursements for payments to Plan participants or their beneficiaries and
shall hold the assets of the Trust for the benefit of Sponsor's general
creditors. Nothing in this Trust Agreement shall in any way diminish any
rights of Plan participants or their beneficiaries to pursue their rights as
general creditors of Sponsor with respect to benefits due under the Plan or
otherwise.
(iv) Trustee shall
resume disbursement for the payment of benefits to Plan participants or
their beneficiaries in accordance with Section 2 of this Trust Agreement
only after Trustee has determined that Sponsor is not Insolvent (or is no
longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee
discontinues the payment of benefits from the Trust pursuant to (a) hereof
and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to
Plan participants or their beneficiaries under the terms of the Plan for the
period of such discontinuance, less the aggregate amount of any payments
made to Plan participants or their beneficiaries by Sponsor is lieu of the
payments provided for hereunder during any such period of discontinuance.
Section 14. Amendment or Modification. This Agreement may be amended or
modified at any time and from time to time only by an instrument executed by
both the Sponsor and the Trustee.
13
Notwithstanding the foregoing, to reflect
increased operating costs the Trustee may once each calendar year amend
Schedule "B" without the Sponsor's consent upon seventy-five (75) days'
written notice to the Sponsor; provided that no such increase shall occur
within the first year of this Agreement.
Section 15. General.
(a) Performance by Trustee, its Agents or Affiliates. The
Sponsor acknowledges and authorizes that the services to be provided under
this Agreement shall be provided by the Trustee, its agents or affiliates,
including Fidelity Investments Institutional Operations Company or its
successor, and that certain of such services may be provided pursuant to one
or more other contractual agreements or relationships.
(b) Entire Agreement. This Agreement contains all of the
terms agreed upon between the parties with respect to the subject matter
hereof.
(c) Waiver. No waiver by either party of any failure or
refusal to comply with an obligation hereunder shall be deemed a waiver of
any other or subsequent failure or refusal to so comply.
(d) Successors and Assigns. The stipulations in this
Agreement shall inure to the benefit of, and shall bind, the successors and
assigns of the respective parties.
(e) Partial Invalidity. If any term or provision of this
Agreement or the application thereof to any person or circumstances shall,
to any extent, be invalid or unenforceable, the remainder of this Agreement,
or the application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not
be affected thereby, and each term and provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
(f) Section Headings. The headings of the various sections
and subsections of this Agreement have been inserted only for the purposes
of convenience and are not part of this Agreement and shall not be deemed in
any manner to modify, explain, expand or restrict any of the provisions of
this Agreement.
14
Section 16. Governing Law.
(a) Massachusetts Law Controls. This Agreement is being
made in the Commonwealth of Massachusetts, and the Trust shall be
administered as a Massachusetts trust. The validity, construction, effect,
and administration of this Agreement shall be governed by and interpreted in
accordance with the laws of the Commonwealth of Massachusetts, except to the
extent those laws are superseded under section 514 of ERISA.
(b) Trust Agreement Controls. The Trustee is not a party
to the Plan, and in the event of any conflict between the provisions of the
Plan and the provisions of this Agreement, the provisions of this Agreement
shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers as of the day and year first
above written.
PHH CORPORATION
Attest: ______________________ By: ______________________
Secretary Vice President
FIDELITY MANAGEMENT TRUST
COMPANY
Attest: ______________________ By ________________________
Assistant Clerk Senior Vice President
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