GUARANTEE OF
RESIDENTIAL CAPITAL, LLC
Guarantee, dated
as of April 18, 2008, by Residential Capital, LLC, a Delaware
limited liability company (“ Guarantor ”), in
favor of GMAC LLC, as lender pursuant to the Loan Agreement defined
below (the “ Guaranteed Party ”).
1. Unconditional Guarantee . To induce the Guaranteed
Party to enter into a Loan and Security Agreement, dated as of
April 18, 2008 (as amended, supplemented or otherwise modified
from time to time, the “ Loan Agreement ”), with
Guarantor’s affiliates Residential Funding Company, LLC
(“ RFC ”), and GMAC Mortgage, LLC (“
GMAC Mortgage ” and together with RFC and including
any surviving entity in the event of a merger, amalgamation or
consolidation of the same, each, an “ Obligor ”
and collectively, the “ Obligors ”), the
Guarantor absolutely, unconditionally and irrevocably guarantees to
the Guaranteed Party and its successors and permitted assigns from
the date hereof the prompt and complete payment and performance
when due (whether at stated maturity, by acceleration or
otherwise), of all existing and future obligations of the Obligor
to the Guaranteed Party arising pursuant to Loan Documents, in
accordance with the terms, being collectively called the “
Obligations ”), when the same shall be required to be
performed or observed under the Loan Documents (subject to any
applicable grace period with respect to such Obligations set forth
in the Loan Documents); and the Guarantor unconditionally and
irrevocably agrees that it shall ensure an Obligor, the Guarantor
or some other Person shall duly and punctually perform and observe
each Obligation (provided that acceptance of any such other
Person’s performance shall not constitute a novation of this
Guarantee). It shall not be a condition to the obligation of the
Guarantor hereunder to guarantee and ensure the performance or
observance of any of the Obligations that the Guaranteed Party
shall have first made any request of or demand upon or given any
notice to the Guarantor or any other Person or have instituted any
action or proceeding against the Guarantor or any other Person in
respect thereof.
2. DEFINITIONS . Capitalized terms used but not defined
in this Guarantee shall have the meanings set forth in the Loan
Agreement.
“
Requirements of Law ”, as to any Person, the
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation (including the Investment Company Act of 1940, as
amended) or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any
of its property is subject.
3. Nature
of Guarantee . Guarantor’s obligations hereunder are
unconditional and shall not be affected by the existence, validity,
enforceability, perfection or extent of any
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collateral, the
validity, regularity or enforceability of the Loan Documents, the
absence of any action to enforce an Obligor’s obligations
under any of the Loan Documents, any waiver or consent by an
Obligor with respect to any provisions of the Loan Agreement or any
other Loan Document or by any other circumstance relating to the
Obligations that might otherwise constitute a legal or equitable
discharge of or defense to this Guarantee (excluding the defense of
payment or statute of limitations, neither of which is waived).
This is a guarantee of payment and not a guarantee of collections,
and Guarantor agrees that the Guaranteed Party may resort to
Guarantor for performance of any of the Obligations owed to it
whether or not the Guaranteed Party shall have resorted to any
Collateral therefor or shall have proceeded against either Obligor
principally or secondarily liable for any of the Obligations,
including the Obligors, and whether or not the Guaranteed Party has
pursued any other remedy available to it. The Guaranteed Party
shall not be obligated to file any claim relating to the
Obligations in the event that an Obligor becomes subject to a
bankruptcy, reorganization or similar proceeding, and the failure
of the Guaranteed Party to so file shall not affect
Guarantor’s obligations hereunder. In the event that any
payment to the Guaranteed Party in respect of any Obligations owed
to it is rescinded or must otherwise be returned for any reason
whatsoever (other than by reason of any circumstance, other than
bankruptcy or insolvency, that constitutes a legal or equitable
defense available to an Obligor), Guarantor shall remain liable
hereunder with respect to such Obligations as if such payment had
not been made and the Guarantee shall be reinstated, if applicable.
At any time and from time to time, upon the written request of the
Guaranteed Party, and at the sole expense of Guarantor, Guarantor
will furnish such information regarding the financial well-being of
Guarantor as may be reasonably requested by the Guaranteed
Party.
4. Changes in Obligations, Collateral therefor and
Agreements Relating Thereto; Waiver of Certain Notices .
Guarantor agrees that the Guaranteed Party may at any time and from
time to time, either before or after the maturity thereof, with
notice to and consent of the Guarantor, extend the time of payment
of, exchange or surrender any Collateral (except as permitted by
the Loan Agreement) for, or renew any of the Obligations, and may
also make any agreement with the Obligors for the extension,
renewal, payment, compromise, discharge or release thereof, in
whole or in part, or for any modification of the terms thereof or
of any agreement between the Guaranteed Party and the Obligors
without in any way impairing or affecting this Guarantee. Guarantor
authorizes the Guaranteed Party, without notice or demand and
without affecting its liability hereunder, from time to time, to
forbear, indulge or take other action or inaction in respect of
this Guarantee or the Obligations, or to exercise or not exercise
any right or remedy hereunder or otherwise with respect to the
Obligations. Guarantor waives notice of the acceptance of this
Guarantee and of the creation, renewal, extension or accrual of
Obligations, presentment, demand for payment, non-payment, notice
of dishonor and protest.
5. Expenses . Guarantor agrees to pay on demand all
fees and out of pocket expenses (including the reasonable fees and
expenses of the Guaranteed Party’s counsel) in any way
relating to the enforcement or protection of the rights of the
Guaranteed Party hereunder; provided, that Guarantor shall not be
liable for any expenses of the Guaranteed Party if no payment under
this Guarantee is or was due.
6. Subrogation . The Guarantor shall not exercise any
rights which it may have or acquire by way of subrogation until all
of the Obligations owed to it are paid in full to the Guaranteed
Party. If any amounts are paid to the Guarantor in violation of the
foregoing
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limitation,
then such amounts shall be held in trust for the benefit of the
Guaranteed Party and shall forthwith be paid to the Guaranteed
Party to reduce the amount of outstanding Obligations, whether
matured or unmatured. Subject to the foregoing, upon payment of any
of the Obligations, Guarantor shall be subrogated to the rights of
the Guaranteed Party against the Obligors with respect to such
Obligations, and the Guaranteed Party agrees to take at
Guarantor’s expense such steps as Guarantor may reasonably
request to implement such subrogation.
7. Taxes . All payments by the Guarantor hereunder will
be made in full without set- off or counterclaim and free and clear
of and without withholding or deduction for or on account of any
present or future taxes, duties or other charges, unless the
withholding or deduction of such taxes or duties is required by
law. In any such event, however, the Guarantor shall
(a) promptly notify the Guaranteed Party, in writing, of such
requirement, (b) pay to the relevant authorities the full
amount required to be deducted or withheld (including the full
amount required to be deducted or withheld from any additional
amount paid to the Guaranteed Party pursuant to this paragraph),
(c) promptly forward to the Guaranteed Party an official receipt
(or a certified copy) evidencing such payment, and (d) pay to
the Guaranteed Party such additional amounts as may be necessary in
order that the net amount received by the Guaranteed Party after
such withholding or deduction shall equal the full amounts of
moneys which would have been received by the Guaranteed Party in
the absence of such withholding or deduction. The Guarantor will
pay all stamp, transfer, registration, documentation, or other
similar taxes payable in connection with this Guarantee and will
keep the Guaranteed Party indemnified against failure to pay the
same.
8. No
Waiver; Cumulative Rights . No failure on the part of the
Guaranteed Party to exercise, and no delay in exercising, any
right, remedy or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise by the Guaranteed Party of
any right, remedy or power hereunder preclude any other or future
exercise of any right, remedy or power. Each and every right,
remedy and power hereby granted to the Guaranteed Party or allowed
it by law or other agreement shall be cumulative and not exclusive
of any other, and may be exercised by the Guaranteed Party at any
time or from time to time. This Guarantee shall remain in full
force and effect until the Obligations are paid in full. None of
the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified, and no consent with respect to
any departure by the Guarantor from the terms hereof shall be
effective, except as set forth in a written instrument executed by
the Guarantor and the Guaranteed Party.
9. Payments The Guarantor hereby guarantees that the
Obligations will be paid to the Guaranteed Party without set off or
counterclaim, in lawful currency of the United States of America at
the offices of the Guaranteed Party specified by the Guaranteed
Party for such payment. The obligations of the Guarantor hereunder
shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any
currency except to the extent to which such tender or recovery
shall result in the effective receipt by the Guaranteed Party of
the full amount of the currency or currencies owing under this
Guarantee and the Guarantor shall indemnify the Guaranteed Party
(as an alternative or additional cause of action) for the amount
(if any) by which such effective receipt shall fall short of the
full amount of currency or currencies owning under this Guarantee
and such obligation to indemnify shall not be affected by judgment
being obtained for any other sums due hereunder.
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11. Representations, Warranties and
Covenants
A. Guarantor hereby represents and warrants that:
(a) Guarantor
is an organization duly organized or formed, validly existing and
in good standing under the laws of the State of Delaware and is
duly qualified to do business, and is in good standing in, every
jurisdiction in which the nature of its business requires it to be
so qualified, except where the failure to be so qualified would not
reasonably be expected to have a Material Adverse Effect (as
defined below);
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