This Parent
Company Agreement (Agreement), is made and entered into as of
July 21, 2008, by and among Cerberus FIM, LLC , a
limited liability company with headquarters at 299 Park Avenue New
York, New York 10171 (“CF”); Cerberus FIM Investors,
LLC , a limited liability company with headquarters at 299 Park
Avenue New York, New York 10171 (“CF Investors”);
FIM Holdings LLC , a limited liability company with
headquarters at 299 Park Avenue New York, New York 10171
(“FIM”); GMAC LLC , a limited liability company
with headquarters at 200 Renaissance Center, Detroit, MI 48235
(“GMAC”); IB Finance Holding Company, LLC , a
limited liability company with headquarters at 200 Renaissance
Center, Detroit, MI 48265 (“IB Finance”);
(collectively, CF, CF Investors, FIM, GMAC, and IB Finance are
herein referred to as the “Parent Companies”) GMAC
Bank , a Utah-chartered, nonmember, industrial bank located at
6985 Union Park Center, Midvale, UT 84047 (formerly known as GMAC
Automotive Bank and herein referred to as the “Bank”),
and the Federal Deposit Insurance Corporation , a Federal
banking agency headquartered in Washington, D.C. (the
“FDIC”).
WHEREAS,
generally, pursuant to the Change in Bank Control Act, 12 U.S.C.
§ 1817(j), no person may acquire control of a state-chartered,
nonmember bank unless it gives the FDIC at least sixty days prior
written notice and unless the FDIC does not disapprove the proposed
acquisition; and
WHEREAS, on
May, 31, 2006, Mr. Stephen A. Feinberg
(“Mr. Feinberg”), Citigroup Inc.
(“Citigroup”), an Aozora Bank Limited
(“Aozora”) submitted an Interagency Notice of Change in
Control with respect to the acquisition of indirect control of the
Bank which notice was subsequently amended to add The PNC Financial
Services Group, Inc. (“PNC”) as an additional
notificant (said notice, as amended, is herein referred to as the
“Notice”); and
WHEREAS,
pursuant to the Notice, four investor groups including
Mr. Feinberg (acting through CF and CF Investors), Citigroup,
Aozora and PNC, acting together through FIM, proposed to acquire
fifty-one percent of the voting shares of GMAC, a parent company of
the Bank; and
WHEREAS, on
July 28, 2006, the Board of Directors of the FDIC
(“Board”) imposed a six-month moratorium on deposit
insurance applications and change in control notices with respect
to industrial banks; and
WHEREAS, on
November 15,2006 the Board authorized staff to issue, and
staff issued, a letter of intent not to disapprove the Notice
(“Letter of Non-Disapproval”) subject to a number of
conditions, including specifically a Two-Year Disposition Agreement
by and among CF, CF Investors, FIM, and the FDIC dated
November 16, 2006 (the “Disposition Agreement”);
and
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WHEREAS, the
Disposition Agreement generally requires that CF, CF Investors, and
FIM complete one of four specified actions no later than
November 30, 2008: (A) become depository institution
holding companies, (B) divest control of the Bank,
(C) terminate the Bank’s insured status, or (D) obtain a
waiver of the requirement to take any of the foregoing actions
(“Waiver”), and
WHEREAS, on
February 1, 2008 CF, CF Investors, and FIM submitted to the
FDIC their request for a Waiver pursuant to paragraph 1(D) of the
Disposition Agreement, and
WHEREAS, this
Agreement will enable the FDIC to better identify, evaluate, and
control the potential risks to the Bank and to the Deposit
Insurance Fund; and
WHEREAS, the
FDIC may decide to deny the request for a Waiver unless the Parent
Companies and the Bank enter into this Agreement;
NOW, THEREFORE,
if the FDIC addresses the Waiver request through the execution of
an extended disposition agreement with CF, CF Investors, and FIM
which extends for ten years the requirement to complete one of four
actions specified in the Disposition Agreement (the “Extended
Disposition Agreement”), the Parent Companies and the Bank
agree to comply with the following:
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A.
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hereby consent to such examinations
by the FDIC as the FDIC deems necessary of each Parent Company and
each of their subsidiaries to monitor compliance with the
provisions of the Extended Disposition Agreement, any amended
non-disapproval; any agreements executed in connection with the
Extended Disposition Agreement or any non-disapproval, the Federal
Deposit Insurance Act (the “FDI Act”) and any other
federal law that the FDIC has specific jurisdiction to enforce
against such company or subsidiary including, without limitation,
those laws and regulations governing transactions and relationships
between any depository institution subsidiary and its
affiliates;
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B.
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except for GMAC and IB Finance,
shall each submit to the FDIC an initial listing of all of its
affiliates and update the list annually;
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C.
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shall each submit to the FDIC an
annual report regarding its operations and activities, in the form
and manner prescribed by the FDIC, and such other reports as may be
requested by the FDIC to keep the FDIC informed as to financial
condition, systems for monitoring and controlling financial and
operating risks, and transactions with the Bank; and compliance by
such Parent Company and its subsidiaries with applicable provisions
of the Extended Disposition Agreement, any amended non-disapproval,
the agreements executed in connection with the Extended Disposition
Agreement or any amended non-disapproval, the FDI Act, and any
other
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Federal laws
that the FDIC has specific jurisdiction to enforce against such
company or subsidiary;
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D.
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shall cause an independent annual
audit of the Bank to be performed during the first seven years of
operation after the effective date of the Extended Disposition
Agreement;
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E.
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shall each provide written
notification to the FDIC within thirty days of becoming aware of
any person who acquires control, directly or indirectly, of 10
percent or more of the voting shares or member’s interests of
any of the Parent Companies;
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F.
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shall obtain written approval from
the New York Regional Director of the FDIC (“Regional
Director”) prior to adding a member to the Bank’s board
of directors during the first seven years of operation after the
effective date of the Extended Disposition Agreement;
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G.
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shall each serve as a source of
strength to the Bank;
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H.
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shall maintain the Bank’s
capital at such levels as the FDIC deems appropriate, as reflected
in the terms of a Capital and Liquidity Maintenance Agreement
(“CALMA”) entered into by the Parent Companies, the
FDIC, the Bank, and such other parties as the FDIC deems
appropriate, and/or take such other actions as the FDIC deems
appropriate to provide the Bank with a resource for additional
capital and liquidity;
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I.
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shall each notify the FDIC within
five days of any non-compliance with any of the covenants in any
agreements with (i) its lenders, including credit agreements,
bond indenture, or similar documents, and (ii) any funding or
related agreements including those related to securitizations and
issuances of preferred securities (such covenants are herein
collectively referred to as “Covenants”);
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J.
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shall each provide the FDIC with
copies of any executed agreements with its lenders within thirty
days after execution, and if any Covenants are modified after the
effective date of the Extended Disposition Agreement, each affected
company shall notify the FDIC of the modification within thirty
days after execution of the modification;
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K.
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shall each notify the FDIC within
thirty days after incurring any additional debt, other than
borrowings in the normal course of business;
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L.
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shall each provide written notice to
the FDIC within thirty days after the transfer of any of its assets
(including any interest in the Bank or any other subsidiary) to any
other party, except any transfers in the normal course of business,
and except any transfer of an interest in the Bank that is subject
to the notice requirements of the Change in Bank Control Act, 12
U.S.C. § 18 i 7(j);
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M.
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shall each obtain the Regional
Director’s approval prior to transferring any interest in the
Bank amounting to control of the Bank to any entity directly or
indirectly controlled by Mr. Feinberg (a “Feinberg
Entity”) and
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N.
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shall each maintain such records as
the FDIC may deem necessary to assess the risks to the Bank or to
the Deposit Insurance Fund.
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II.
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In
addition to its obligations under section I above, GMAC
shall
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A.
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within 10 days after execution
of this Agreement, provide to the Bank a list of all companies
controlled, directly or indirectly, by GMAC (collectively,
“GMAC Companies”), and shall provide to the Bank annual
updates of any changes to this list;
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B.
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at
such intervals as the FDIC deems appropriate, provide the FDIC with
such information as
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