AMENDED AND RESTATED UNITED STATES CONSUMER FINANCING SERVICES AGREEMENT

CONFIDENTIAL TREATMENT

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Exhibit 10.4

 

AMENDED AND RESTATED

UNITED STATES CONSUMER FINANCING SERVICES AGREEMENT

between

GMAC LLC

AND

GENERAL MOTORS CORPORATION

Dated as of May 22, 2009

 

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AMENDED AND RESTATED UNITED STATES CONSUMER FINANCING SERVICES AGREEMENT

Parties

This Amended and Restated United States Consumer Financing Services Agreement (this “ Agreement ”) is dated as of May 22, 2009, and is made effective as of December 29, 2008, by and between General Motors Corporation, a Delaware corporation (“ GM ”), and GMAC LLC, a Delaware limited liability company (“ GMAC ”).

Recitals

A. GM, directly and through its Subsidiaries, is a worldwide manufacturer, distributor, marketer, and seller of motor vehicles, including used vehicles, and related goods and services (“ GM Products ”), offered for sale to retail Consumers through a network of dealers authorized by GM and its Subsidiaries (“ GM Dealers ”), including certain dealers that are wholly- or partially-owned by GM or its Subsidiaries.

B. GMAC is a worldwide diversified financial services company that directly, and through its Subsidiaries, provides automotive and non-automotive finance and lease, insurance, banking, mortgage lending, and other services to a variety of affiliated and unaffiliated Consumers (“ GMAC Products ”).

C. GM and GMAC provide significant services and resources to each other. The transactions, relationships, interactions, and dealings between GM and GMAC (“ Dealings ”) , contribute significantly to the success of GM and GMAC, generally providing efficiencies and enhanced results for each of them, including business opportunities and referrals, data and resource sharing, economies of scale, leveraging staff expertise, and administrative conveniences. These efficiencies flow from, among other things, four aspects of their relationship: (1) the formal ownership structure that existed historically, resulting in tax, legal, and administrative efficiencies; (2) propinquity—their history, familiarity, proximity, and common corporate culture and industry experience – allowing informal and simplified interactions including infrastructure sharing; (3) sound business practices, including economies of scale and leveraging of resources; and (4) their “shared”/”common” customers (i.e., GM Dealers and purchasers of GM Products). Combined, these efficiencies result in highly valuable and significant organizational, operational, business, and financial synergies (“ Synergies ”). Although specific aspects of the Dealings may benefit one party more than the other from time to time, the Synergies produce net positive effects for GM and GMAC jointly and individually.

D. As a part of its business, GMAC supports the sale of GM Products by purchasing from GM Dealers, at market rates and below market rates, retail installment sale contracts and Finance Lease contracts (collectively, “ Retail Financing ”) and Operating Lease contracts (collectively “ Consumer Financing ”).

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E. The parties entered into that certain United States Consumer Financing Services Agreement, dated as of November 30, 2006 (as amended, supplemented and otherwise modified prior to the date hereof, the “ Original US CFSA ”), which established certain terms and conditions that apply to certain of the Dealings related to Consumer Financing in the United States and established a framework for negotiating, documenting, administering, and enforcing future Dealings related to Consumer Financing in the United States.

F. On December 24, 2008, in connection with the conversion of GMAC Bank, a wholly owned Subsidiary of GMAC, from a Utah industrial loan company to a Utah commercial bank, the Board of Governors of the Federal Reserve System approved (the “ Approval ”) the application of GMAC to become a bank holding company under Section 3 of the Bank Holding Company Act of 1956, as amended. Pursuant to a letter agreement entered into between GM and GMAC, dated as of December 29, 2008 (the “ Letter Agreement ”), in connection with the Approval, GM and GMAC agreed to amend and restate the Original US CFSA in accordance with the terms set forth in the Letter Agreement.

G. NOW, THEREFORE, in consideration of the premises and the mutual agreements herein provided, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the parties agrees that the Original US CFSA is hereby amended and restated in its entirety to read as follows:

ARTICLE I

DEFINITIONS

SECTION 1.1 Definitions . The words in this Agreement have the meanings usually and customarily ascribed to them in commercial contracts, except that words that are defined below have the respective meanings ascribed to such words below or elsewhere in this Agreement.

“ ALG ” means the Residual Value Lease Guide , a publication of Automotive Lease Guide (alg), Inc.

“ Application ” means a credit application completed by a Consumer in connection with the purchase or lease of a new GM vehicle that a GM Dealer submits for GMAC’s assessment and credit decision as to whether GMAC would purchase a retail installment sale or lease contract that the GM Dealer enters into with that Consumer, if the Dealer were to offer it for sale to GMAC.

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“ Business Day(s) ” means a day other than Saturday or Sunday on which commercial banks are open for business in New York City.

 

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“ Capital Markets Disruption ” means a state of the global credit markets, continuing for at least three months, such that credit is not available on commercially reasonable terms to borrowers with credit standing similar to GMAC.

“ Confidential Information ” means any information (including data developed from any such information) in any format that meets all of the following criteria: (i) GM, GMAC, or their respective Subsidiaries or Representatives (the “ receiving party ”) obtains the information from the other party (the “ disclosing party ”) or the disclosing party’s Subsidiaries or Representatives before or after the execution of this Agreement; (ii) the information relates to the business or financial activities of the disclosing party or its Subsidiaries; and (iii) the information is available to the receiving party solely to facilitate the parties’ performance of this Agreement or otherwise as a result of the relationship between GM and GMAC, and includes information relating to customers and dealerships, pricing, methods, operations, processes, trade secrets, credit programs, financial data, business and financial relationships, technical data, statistics, technical specifications, documentation, research, development or related information, computer systems, employees, and any results or compilations of the foregoing. “ Confidential Information ” does not include any information that: (i) is or becomes publicly available by any means other than a breach of this Agreement; (ii) was known by the receiving party before its receipt from disclosing party; (iii) is independently developed by the receiving party without using information from the disclosing party.

“ Confidential Personal Information ” means all information about Consumers that are natural Persons, including names, addresses, telephone numbers, account numbers and lists thereof, and demographic, financial and transaction information for, such Consumers.

“ Consumer ” means (i) an individual who obtains GM Products or GMAC Products at retail primarily for personal, family, or household purposes, or (ii) a Person who obtains GM Products or GMAC Products at retail for business, commercial, or similar purposes.

“ Control ”, when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the term “controlled” has a correlative meaning.

“ current ” means as of November 30, 2006.

“ Finance Lease ” means a finance product in the form of a lease where the lessor does not have the normal residual risk associated with the historical Operating Lease product.

“ GM Special Program ” means any incentive program offered by GM to Consumers for Consumer Financing products, such as “interest free” periods, finance charge subsidies, capitalized cost reductions, etc.

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“ Governmental Authority ” means any supranational, international, national, federal, state or local court, government, department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority.

“ historical ” refers to a period, as appropriate in the applicable context, prior to November 30, 2006, and “ historically ” has a correlative meaning.

“ Including ”, “ includes ” and derivatives thereof mean including or includes, as the case may be, without limitation.

“ Operating Lease ” means a lease where the lessor is exposed to residual risk as has been done historically.

“ Person ” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any Government Authority.

“ Rate Support ” means the rate subsidies paid by GM to GMAC under this Agreement in connection with Consumer Financing for GM Special Programs.

“ Representatives ” means directors, officers, and employees of a party or its Subsidiaries and their respective agents, representatives, auditors, and professional advisors.

“ Subsidiary ” means, with respect to any Person, any other Person of which a majority of the voting interests is owned, directly or indirectly, by such Person, except that in the case of GM, Subsidiary excludes GMAC and its Subsidiaries.

“ Support Rate ” means the interest rate GMAC offers to GM in connection with a GM Special Program.

“ Third Party Program ” means a GM Special Program that GM offers through a finance source other than GMAC or any of its Subsidiaries.

“ Third Party Support Rate ” means the interest rate a third party finance source offers to GM in connection with a Third Party Program.

 

 

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ARTICLE II

FRAMEWORK

SECTION 2.1 Contractual Framework .

(a) This Agreement memorializes the Dealings related to Consumer Financing in the United States and establishes the contractual framework for negotiating, documenting, administering, and enforcing future Dealings in the United States related to Consumer Financing. GMAC will provide Consumer Financing services to GM Consumers in accordance with the terms of this Agreement. Such terms are intended to preserve the customer loyalty and dealer support benefits that historically accrued to GM as a manufacturer with an exclusive financing arm while at the same time assure that GMAC receives a competitive level of return. GMAC recognizes GM’s desire to grow its automotive business and will continue to support GM in that effort to the extent that it is in keeping with GMAC’s business interests.

 

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(b) The overriding principles that govern the interpretation, administration, and implementation of this Agreement, and that reflect GM’s and GMAC’s core intent as to their business relationship under this Agreement, are as follows (“ Overriding Principles ”):

(i) The pricing of Retail Financing contracts under this Agreement will be based on a [***]. [***]. [***].

(ii) Subject to applicable and/or appropriate safety and soundness standards:

(A) GMAC’s primary business objectives will continue to include supporting the distribution, marketing, and sale of GM Products to enhance GM’s profits; and

(B) GMAC will continuously use commercially reasonable best efforts to minimize its costs of doing business to help maximize competitive Rate Support pricing.

(iii) GMAC will continue to provide broad support to GM.

(c) The Overriding Principles form binding, affirmative obligations of the parties and apply to all Dealings under this Agreement, unless (i) otherwise indicated herein, or (ii) GM and GMAC specifically agree to exclude one or more Dealings from application of the Overriding Principles. The Overriding Principle described in Section 2.1(b)(i):

(i) does not apply to any Dealings or portions thereof that relate to Operating Leases;

(ii) will not be deemed to have been breached or otherwise violated if GMAC voluntary chooses to price Retail Financing contracts below the prices at which it is entitled to price in accordance with the terms of Exhibit B ; and

(iii) will not be applied for the purposes of either:

(A) Amending or otherwise modifying the terms of any Consumer Financing contract after it is booked or program terms or other arrangements between GM and GMAC related thereto; or

(B) Providing for any “true-up” or other form of payment or compensation the purpose of which is to compensate either GMAC or GM in the event that any item projected in connection with a Consumer Financing contract is subsequently determined after such contract is booked to be different from such projected amount because the underlying factual assumptions on which such projected amounts were based (including assumed interest rates, vehicle sales rates, funding availability, capital requirements and general economic conditions) are determined to have been inaccurate. [***]. The provisions of this paragraph

 

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(B) do not prohibit or limit a payment made for any other purpose, including any payment made to correct a typographical error made in calculating amounts determined in connection with the pricing of a Consumer Financing contract.

(d) Subject to Section 2.1(c) above and except as otherwise described herein, as deemed necessary or appropriate by either party, GM and GMAC will periodically revisit the terms of this Agreement to assess whether they continue to achieve the Overriding Principles, notwithstanding any market factors, mistakes in documentation, errors in calculation, or other unanticipated facts and circumstances.

(i) If any such assessment reveals that the terms of this Agreement are not achieving the Overriding Principles, then GM and GMAC will negotiate revised terms and amend this Agreement as reasonably necessary to achieve the Overriding Principles. Any such amendment shall be retroactively effective back to the date on which the Coordinating Committee first formally addressed such amendment.

(ii) The Coordinating Committee will review and discuss changes contemplated by this Section 2.1(d).

(iii) Any Dispute as to whether a change to this Agreement is necessary or appropriate under this Section 2.1(d) will be the subject of the Dispute resolution process of Section 10.7 of this Agreement.

SECTION 2.2 Financing to Other Automobile Manufacturers . Nothing in this Agreement precludes GMAC from providing or continuing to provide any financial services to vehicle manufacturers other than GM or dealers other than GM Dealers, or from providing or continuing to provide mortgage, insurance, banking, or other non-automotive financial services in the ordinary course of business.

SECTION 2.3 Documentation . The terms and conditions related to individual Dealings in the United States involving Consumer Financing will be arm’s length and reasonably documented using written forms, contracts, or instruments (“ Implementing Agreements ”). The nature and extent of such Dealings will be publicly disclosed to the extent required by law and as otherwise provided by this Agreement.

SECTION 2.4 Process Integrity . The parties will develop processes and promulgate policies to implement this Agreement and to take corrective action for failures to adhere to them. The Dealings (including compliance with the Overriding Principles) will be subject to regular compliance verification by the parties and their outside auditors (“ Compliance Audits ”).

SECTION 2.5 Compliance . GM and GMAC will comply, in all material respects, with all applicable laws and legal requirements in connection with the services contemplated by this Agreement, including obtaining and maintaining all required licenses, authorizations, and permits.

 

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SECTION 2.6 Cooperation . GM and GMAC will reasonably cooperate with and assist each other in carrying out the other’s obligations under this Agreement and will execute and deliver all documents and instruments necessary and appropriate to do so.

SECTION 2.7 Information and Reports . GM and GMAC will prepare and deliver to each other on a regular, timely basis, such information and reports as the other reasonably requests or requires from time to time regarding any and all aspects of the Dealings (including compliance with the Overriding Principles) under this Agreement.

SECTION 2.8 Scope; Subsidiaries . This Agreement applies to Dealings related to Consumer Financing in the United States only, including Puerto Rico. The respective Subsidiaries of GM and GMAC are not parties to this Agreement and may not be legally bound by this Agreement unless and until they agree to be so bound. GM and GMAC will use their reasonable best efforts to cause their Subsidiaries that have Dealings related to Consumer Financing in the United States to agree to be bound by this Agreement by executing the opt in letter (an “ Opt-in Letter ”) in the form of Exhibit A attached to this Agreement. If the Subsidiaries agree to be bound by this Agreement, the terms party, parties, GM, and GMAC will be interpreted to include the relevant GM Subsidiary and GMAC Subsidiary, as appropriate. Until such time, both GM and GMAC will use their best efforts to cause their Subsidiaries engaged in Dealings related to Consumer Financing to honor and perform the obligations set forth in this Agreement as if they were parties to this Agreement. If any Subsidiary ceases to be a Subsidiary of GM or GMAC, the other party may terminate all rights under this Section with respect to such Subsidiary and the former Subsidiary’s rights and obligations under any Opt-in Letter effective upon 180 days notice. Any Implementing Agreement to which such entity is a party continues in accordance with its terms.

SECTION 2.9 Coordinating Committee .

(a) Responsibilities . GM and GMAC hereby create a committee to be responsible for considerations around joint policies and programs, and for coordination of joint activities between the parties in the United States (“ Coordinating Committee ”). Also, any disputes under this Agreement that cannot be resolved between the parties at the working level will in the first instance be referred to this Committee. The Committee will, in normal course, receive such information from GM and GMAC as is necessary and appropriate to facilitate their work together. The Members of the Coordinating Committee may share such information as appropriate within their respective organizations.

(b) Composition . An approximately equal number of Coordinating Committee Members will be designated by each of GM and GMAC, with the total membership being between six and 10 members, as agreed from time to time by the Committee. Additionally, each of GM and GMAC may designate up to five ad hoc “ex officio” members. Guests with applicable expertise may attend meetings by invitation of the Committee. Unless agreed otherwise by the Committee, Members and ex officio members will be employees of GM or GMAC with a reasonable level of decision-making authority in order to facilitate prompt and efficient resolution of matters before the Committee. Exhibit D sets forth Members, Lead Members, and other designations by GM and GMAC to the Committee, as of the date hereof.

 

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(c) Principal Contacts . Each of GM and GMAC will designate one of their Coordinating Committee Members to be the Lead Member who will be the principal point of contact and coordination outside of formal meetings of the Committee.

(d) Chair . One Member will be appointed Chair of the Committee for purposes of coordinating meeting discussions. The position of Chair will rotate between Members designated by GM and those designated by GMAC each April 1 unless otherwise agreed by the Committee.

(e) Secretary . There will be a Secretary to the Committee who may be a Member, ex officio member or other employee of GM or GMAC as agreed by the Committee. The Secretary will work with the Lead Members to prepare an agenda for each meeting, and will prepare minutes of meetings which will be circulated to the Lead Members for approval in advance of being finalized and distributed to the Coordinating Committee and ad hoc members.

(f) Meetings . The Committee will generally meet in formal session on a monthly basis; an annual calendar of meetings will be established by them and kept by the Secretary. Special meetings may be called as appropriate by the Lead Members. Attendance at any meeting may be by phone.

(g) Voting . Committee decisions will be by consensus; i.e., GM Members collectively have one “vote” and GMAC Members collectively have one “vote”, with consensus required for action to be taken. At least two Members from each of GM and GMAC will be necessary for a quorum at any meeting, whether regularly scheduled or special, and minutes will be made to record all decisions. If the person then designated as Chair or Secretary is not present at any meeting, replacement(s) may be established for purposes of that meeting.

ARTICLE III

CONSUMER FINANCING

SECTION 3.1 General Service Obligations and Standards .

(a) Recognizing its historical role as the primary Consumer Financing source through which GM provides GM Special Programs to support the marketing and sale of GM Products, and taking into account the Synergies, subject to Section 3.5 below, GMAC will provide full and fair consideration of Applications and used vehicle applications received from GM Dealers, applying credit risk underwriting standards that are consistent with current and historical practices, and GMAC will purchase such contracts, if appropriate, in GMAC’s sole discretion:

(i) In accordance with its usual and customary standards for creditworthiness; and

 

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(ii) Spanning a broad spectrum of prime and non-prime Consumers, consistent with current and historical practice.

(b) Notwithstanding anything in this Agreement to the contrary, GMAC’s decision whether to provide Consumer Financing to any Consumer in any case will be made in its sole and absolute discretion and pursuant to its business judgment, without influence by GM.

(c) GMAC will further provide assistance to GM Dealers to finalize Consumer contracts related to Consumer Financing consistent with current and historical practice and will not take any measures that are inconsistent with market practice that reduce the likelihood of Consumers seeking to buy or lease vehicles through GMAC Consumer Financing (for example, onerous application fees, etc.).

(d) GMAC will continue to provide high levels of service to GM, GM Dealers, and Consumers consistent with current and historical practice. GMAC will actively work to increase the ease of doing business, completing transactions, and resolving disputes with GM, GM Dealers, and Consumers. Neither GM nor GMAC will take any corporate-wide actions that adversely impact the image of the other party.

(e) GM will set all terms and conditions of all GM Special Programs, including Consumer eligibility, program dates, covered GM Products, applicable Consumer credit tiers, lending duration of offered Consumer Financing products (e.g., 24 months, 36 months, etc.) and geography. A GM Special Program may contain any terms and conditions determined by GM (e.g., it may relate to one or more GM Products, one or more GM Nameplates, and one or more Consumer credit tiers), except that:

(i) No GM Special Program may contain more than one type of underlying financial product (e.g., a single GM Special Program may not contain both Operating Lease and retail installment sale contract products); and

(ii) GM may not intentionally design a GM Special Program with the intent of excluding GMAC’s participation in it. If GMAC believes GM has done such a thing, it can invoke the Dispute resolution process as outlined in Section 10.7. The fact that GMAC is unwilling or unable to participate in a GM Special Program, or the fact that GMAC does not find the terms of a GM Special Program attractive, do not, in and of themselves, mean that GM has intentionally designed a GM Special Program with the intent of excluding GMAC’s participation.

 

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SECTION 3.2 Exclusivity and Related Terms for Certain GM Special Programs . Subject to the principles and exceptions outlined in this Section 3.2, whenever GM offers a GM Special Program regarding a Retail Financing product, it will do so exclusively through GMAC. The terms of this Section 3.2 shall not apply to any GM Special Program that relates to Operating Leases.

(a) As an overriding principle (different from the Overriding Principles defined in Section 2.1 above) that governs the interpretation, administration, and implementation of this Section 3.2, and reflecting GM’s and GMAC’s core intent as to Retail Financing exclusivity, GM and GMAC will work together with third parties regarding Third Party Programs, and GM shall be permitted to enter into Third Party Programs, in pursuit of opportunities to increase GM’s sales and profits in ways that are mutually beneficial to both GM and GMAC.

(i) In this regard, GM and GMAC will cooperate regarding Third Party Programs, and GM shall be permitted to enter into Third Party Programs, where only one party benefits, so long as the other party is not negatively affected, or under other circumstances, including the following non-exhaustive list of arrangements that are acceptable:

(A) Capital Markets Disruption . During a Capital Markets Disruption, [***], then GM has the right to provide such GM Special Program through a Third Party Program. In such a case, GM would not [***], but GMAC’s exclusivity payment would be reduced on a pro-rata basis for the duration of the Third Party Program using the calculation in Section 3.3(b) below. GM shall terminate any such Third Party Program within [***] after the earlier of:

(1) The end of the Capital Markets Disruption, as determined pursuant to Section 3.5; and

(2) The provision by GMAC to GM of a written notice, including by e-mail and other electronic means, that it is [***].

(B) Non-Routine Products . If no Capital Markets Disruption exists and [***], then GM has the right to offer such GM Special Program through a Third Party Program. In such a case, GM would not [***], but GMAC’s exclusivity payment would be reduced on a pro-rata basis for the duration of the Third Party Program using the calculation in Section 3.3(b) below. GM will terminate any such Third Party Program within [***] after the provision by GMAC to GM of a written notice that it is [***].

 

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(C) [***] . If no Capital Markets Disruption exists and [***], then GM could provide that GM Special Program through a Third Party Program where it would benefit GM, so long as it would not have a material negative effect on GMAC. In such a case, GM and GMAC will negotiate the terms and conditions of such Third Party Program, including reductions in GMAC’s exclusivity payment, in good faith for a period of up to five Business Days and GMAC will not unreasonably withhold its agreement. If GM and GMAC fail to reach an agreement by the expiration of such five Business Day period, GM may begin offering such Third Party Program under reasonable terms and conditions determined by it, and GMAC shall have the right to Dispute the offering of such program under the Dispute resolution process in Section 10.7. [***].

(ii) [***].

(A) If a GM Special Program has terms consistent in all material respects, with a prior GM Special Program, GM may choose to notify GMAC of the terms of such GM Special Program either (1) orally or (2) in writing (including by e-mail or other electronic means). GMAC will have a period of one Business Day following such notification to respond to GM regarding [***]. If GM originally notified GMAC of such GM Special Program orally, then GMAC may respond orally or in writing (including by e-mail or other electronic means). If GM originally notified GMAC of such GM Special Program in writing (including by e-mail or other electronic means), then GMAC must respond in writing (including by e-mail or other electronic means).

(B) If a GM Special Program has terms that are not consistent in all material respects, with a prior GM Special Program, GM shall notify GMAC of the terms of such GM Special Program in writing (including by e-mail or other electronic means). GMAC will have a period of three Business Days following such notification to respond to GM regarding [***]. Such response of GMAC shall be in writing (including by e-mail or other electronic means).

(b) In addition to any Third Party Program that is permitted under Section 3.2(a) above, and regardless of whether or not a Capital Markets Disruption shall be in effect, the following additional Third Party Programs are permitted as exceptions to GM’s general exclusivity obligations:

(i) With regard to Consumer Financing of Consumers of the Saturn brand (“ Saturn ”), Saturn may maintain its current practice of offering finance programs through GMAC, Americredit (“ Americredit ”) or JP Morgan Chase Bank (“ Chase ”), so long as the program parameters offered to Chase or to Americredit are no better than those offered to GMAC and the subsidies offered through Chase or through Americredit result in no more favorable (to the Consumer) required down payments or monthly payments (based solely on Saturn’s program requirements) than those offered through GMAC. Nothing in this Agreement precludes GMAC, Chase or Americredit from offering additional incentives to Consumers of Saturn in addition to what is offered by Saturn.

 

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(ii) Through December 31, 2010, GM will be permitted to offer Third Party Programs under the following terms and conditions (this Section 3.2(b)(ii) does not apply to or limit (A) GM Special Programs offered under Section 3.2(a) above or (B) GM Special Programs offered through Americredit or Chase under Section 3.2(b)(i) above):

(A) [***]

(1) Notwithstanding Section 9.1 of this Agreement, GM may share GMAC’s Support Rates and financing program descriptions, with prospective third parties, on the express conditions that:

(a) GM’s disclosure of, and such third party’s receipt and use of, such information is for the sole purpose of determining whether such third party can meet the [***]; and

(b) Such third party has agreed in a writing substantially in the form of Exhibit G hereto to be bound by nondisclosure and use obligations with respect to such information.

(2) To the extent reasonably practicable in the circumstances, [***] and the GMAC Lead Member of the Coordinating Committee that GM is considering [***] at least one Business Day before GM sends the relevant [***] to the [***].

(3) Prior to the implementation of any Third Party Program under this Section 3.2(b)(ii), [***].

(4) [***].

(5) GMAC will notify each member of the [***] in writing that they are not to disclose any information received in connection with the [***], other than the GMAC Board of Directors and its Audit Committee, unless required by law or compulsory legal process (e.g., subpoena) as reasonably determined by GMAC’s Legal Staff or external legal counsel, and that they are not to use any such information for any purpose other than [***]. Such written notice will be substantially in the form of Exhibit H . The members of the [***] will not have responsibility for the operation of GMAC’s automotive finance business for so long as they have responsibility for [***]. Such [***] members can be contract employees, as long as they are subject to the same disclosure restrictions as permanent members of the [***]. GMAC will establish appropriate “firewalls” within GMAC to prevent the sharing of [***] outside of the members of the [***], except as provided in this Agreement.

 

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(B) [***].

If GM exceeds the [***], then GM will have breached the provisions of this Section 3.2(b)(ii). The Dispute resulting from such breach (if pursued by GMAC) will follow the Dispute resolution process set forth in Section 10.7 and the consequences will be determined through this Dispute resolution process.

(C) [***].

(D) Each [***] established under this Section 3.2(b)(ii) will ha