Exhibit 10.31
EXECUTION COPY
AMENDMENT NO. 10 TO
THE
LOAN AND SECURITY
AGREEMENT
Dated as of June 12,
2009
THIS AMENDMENT NO. 10 TO THE LOAN
AND SECURITY AGREEMENT (this “ Amendment ”) is by
and among Residential Funding Company, LLC, a Delaware limited
liability company, as borrower (“ RFC ”), GMAC
Mortgage, LLC, a Delaware limited liability company, as borrower
(“ GMAC Mortgage ” and together with RFC, each a
“ Borrower ” and collectively, the “
Borrowers ”), Residential Capital, LLC, a Delaware
limited liability company, as guarantor (the “
Guarantor ”), and GMAC LLC, a Delaware limited
liability company, as lender (the “ Lender
”).
Reference is hereby made to the Loan
and Security Agreement, dated as of April 18, 2008, among the
Borrowers and the Lender (as amended and modified through the date
hereof, the “ Loan and Security Agreement ”) and
the Guarantee, dated as of April 18, 2008, executed by the
Guarantor in favor of the Lender in connection with the Loan and
Security Agreement (as amended and modified through the date
hereof, the “ Guarantee ”).
RECITALS
1. Each of the parties hereto is a
party to the Loan and Security Agreement.
2. The parties hereto desire to make
certain amendments to the Loan and Security Agreement.
3. Each of the parties hereto, by
its signature hereto, hereby acknowledges, consents and agrees to
the matters set forth herein.
4. In consideration of the premises
and mutual agreements herein contained and for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions .
Capitalized terms used herein and not otherwise defined in this
Amendment shall have the meaning set forth in the Loan and Security
Agreement.
SECTION 2. Amendments to the Loan
and Security Agreement . Each of the parties hereto hereby
consents and agrees that the Loan and Security Agreement shall be
amended as of the date hereof as follows:
(a) Section 2.03(b) of
the Loan and Security Agreement is hereby amended and restated in
full to read as follows:
“ Subsequent Borrower
Funding Requests, Subsequent Electronic Files and Collateral
Comparison Reports . After the Initial Funding Date, the
Borrowers may request the Lender to make a Loan on the related
Funding Date by delivering to the Lender an irrevocable Borrower
Funding Request, Borrowing Base Report and Borrowing Base
Certificate no later than 1:00 p.m. (New York City time)
one Business Day prior to such Funding Date. The amount of any
Loan requested pursuant to a Borrower Funding Request shall be
(i) not greater than the related Available Loan Amount and
(ii) not less than $5,000,000.
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Amendment No. 10 to MSR
Loan and Security
Agreement
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The Borrowers shall deliver to the
Lender on or prior to the third (3rd) Business Day of each
month a Subsequent Electronic File with respect to all Eligible
Servicing Rights that constitute the Collateral under the terms and
conditions of this Agreement, which shall include all updates to
the Collateral since the preceding Subsequent Electronic File. The
Borrowers shall deliver to the Lender on or prior to the tenth
(10 th
) Business Day of each month a
Collateral Comparison Report.”
(b) Section 2.04(b) of
the Loan and Security Agreement is hereby amended and restated in
full to read as follows:
“The Borrowers shall deliver
an updated Borrowing Base Report and Borrowing Base Certificate
(i) on the Thursday of each calendar week (or if Thursday is
not a Business Day, the immediately preceding Business Day) and
(ii) following a written request from the Lender for delivery
thereof, by 5 p.m. (New York City time) on the date such request is
received if such request is received prior to 11 a.m. (New York
City time), and otherwise on the Business Day immediately following
the date such request is received. Each Borrowing Base Report and
each Borrowing Base Certificate delivered by the Borrowers shall be
effective until such time as the Borrowers deliver a subsequent
Borrowing Base Report and Borrowing Base Certificate. For purposes
of preparing each Borrowing Base Report, the Borrower shall
calculate the Collateral Value of the Eligible Servicing Rights and
the Additional Collateral described in the Relevant Electronic File
in accordance with the definition of Collateral Value provided in
Schedule I .”
(c) Section 2.08(b) of
the Loan and Security Agreement is hereby amended by deleting the
phrase “pursuant to Section 2.04(b)
”.
(d) Section 2.08(b)(A)
of the Loan and Security Agreement is hereby amended and restated
in full to read as follows:
“(A) within one
(1) Business Day after the Borrowing Base Shortfall Day
(i) repay outstanding Loans, and/or (ii) pledge
additional Eligible Servicing Rights, and/or (iii) pledge
Additional Collateral, in an amount equal to the lesser of
(1) $50,000,000 and (2) the amount of the Borrowing Base
Deficiency specified in the notice provided to the Borrowers by the
Lender; provided that so long as the Borrowing Base
Deficiency is less than $5,000,000, the Borrowers shall not be
required take any such actions with respect to such Borrowing Base
Deficiency unless directed in writing by the Lender;
and”
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Amendment No. 10 to MSR
Loan and Security
Agreement
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(e) The second sentence of
Section 11.05 of the Loan and Security Agreement is
hereby amended and restated in full to read as follows:
“EACH PARTY HERETO HEREBY
IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK LOCATED IN THE CITY OF MANHATTAN OR IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION.”
(f) The following definitions in
Schedule I of the Loan and Security Agreement are hereby amended
and restated in full to read as follows:
“ Additional Forgiveness
Amount ” means the aggregate amount, as determined by the
Lender, of any capital contribution made by the Lender to ResCap on
or after June 12, 2009, in the form of forgiveness of the
principal amount of Loans outstanding under this
Agreement.
“ Additional Forgiveness
Date ” means the first date on or after June 12,
2009 on which the Lender makes a capital contribution to ResCap in
the form of forgiveness of the principal amount of Loans
outstanding under this Agreement.
“ Applicable Margin
” means, with respect to all Loans, 6.00% (600 basis
points).
“ Commitment Amount
” means (x) $400,000,000, minus (y) the Additional
Forgiveness Amount. The Borrowers may elect to further reduce the
Commitment Amount in accordance with Section 2.10
.
“ Collateral Value
” means, for purposes of determining the value of the
Borrowing Base on any day, (x) with respect to the Additional
Collateral, the Attributed Rate for such Additional Collateral
multiplied by the market value of such Additional Collateral on the
prior Business Day as determined by the Lender in its reasonable
sole discretion, and (y) with respect to the Eligible
Servicing Rights, the Attributed Rate for Eligible Servicing Rights
multiplied by the Borrowers’ book value of the Eligible
Servicing Rights on the prior Business Day as determined by the
Borrowers in good faith.
“ Relevant Electronic
File ” means, on any Business Day, the most recently
delivered Electronic File that was delivered at least seven
(7) Business Days prior to such Business Day (or such lesser
number of days as of the Lender may deem acceptable from time to
time in its sole discretion).
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Amendment No. 10 to MSR
Loan and Security
Agreement
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“ Subsequent Electronic
File ” means any electronic file, with the same
information and detail and in the same format, as the electronic
file delivered to the Lender on May 5, 2009 (or such other
information, detail or format as is acceptable to the Lender),
delivered by the Borrowers to the Lender subsequent to the Initial
Electronic File, pursuant to Section 2.03(b) , and
reflecting mortgage loans serviced by the Borrowers as of the close
of business no more than two (2) Business Days prior to the
date of its delivery, except with regard to the Subsequent
Electronic File delivered on or prior to the third Business Day of
each calendar month, which shall reflect such information as of the
close of business on the last Business Day of the preceding
calendar month.
(g) The definition of
“Attributed Rate” in Schedule I of the Loan and
Security Agreement is hereby amended by deleting clause
(a) thereof and replacing it with the following:
“(a) With respect to Eligible
Servicing Rights 40%; provided , however ,
if the Lender forgives any portion of the Loan subsequent to
June 12, 2009, for the period of effectiveness of each
Borrowing Base Report delivered on or after the Additional
Forgiveness Date, the Attributed Rate for the period over which
each Borrowing Base Report (or “ Benchmark Report
”) is effective shall be a fraction, (i) the numerator
of which is equal to (A) $400,000,000, minus (B) the
Additional Forgiveness Amount, and (ii) the denominator of
which is equal to the book value of the Borrower’s Eligible
Servicing Rights as set forth in the related Benchmark
Report;”
(h) The following definition is
hereby added to Schedule I of the Loan and Security Agreement in
the correct alphabetical order:
“ Collateral Comparison
Report ” means a report setting forth information with
respect to the changes in the pool of mortgage loans included in
the most recently delivered Electronic File from the pool of
mortgage loans included in the immediately preceding Electronic
File, which information, detail and format shall be reasonably
acceptable to the Lender, delivered by the Borrowers to the Lender
pursuant to Section 2.03(b).
(i) The definition of “Initial
Forgiveness Amount” in Schedule I of the Loan and Security
Agreement is hereby deleted.
SECTION 3. Effectiveness
.
(a) This Amendment and the
provisions contained herein shall become effe
