Exhibit 10.13
Execution Copy
AMENDMENT NO. 6 TO
THE
LOAN AND SECURITY
AGREEMENT
Dated as of October 17,
2008
AMENDMENT NO. 6 TO THE LOAN AND
SECURITY AGREEMENT (this
“ Amendment ”) by and between Residential
Funding Company, LLC, a Delaware limited liability company, as
borrower (“ RFC ”), GMAC Mortgage, LLC, a
Delaware limited liability company, as borrower (“
GMACM ” 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
”).
PRELIMINARY STATEMENTS
:
(1) The Borrowers and the Lender
have entered into a Loan and Security Agreement dated as of
April 18, 2008 (the “ Loan and Security Agreement
”). Capitalized terms not otherwise defined in this Amendment
have the same meanings as specified in the Loan and Security
Agreement.
(2) The Borrowers and the Lender
have entered into an Amendment No. 1 to the Loan and Security
Agreement dated May 21, 2008.
(3) The Borrowers and the Lender
have entered into an Amendment No. 2 to the Loan and Security
Agreement dated May 22, 2008.
(4) The Borrowers and the Lender
have entered into an Amendment No. 3 to the Loan and Security
Agreement dated June 2, 2008.
(5) The Borrowers and the Lender
have entered into an Amendment No. 4 to the Loan and Security
Agreement dated July 25, 2008.
(6) The Borrowers and the Lender
have entered into an Amendment No. 5 to the Loan and Security
Agreement dated October 3, 2008.
(7) The Guarantor executed a
guarantee (the “ Guarantee ”) dated as of
April 18, 2008 in favor of the Lender in connection with the
Loan and Security Agreement.
(8) The Borrowers have requested the
Lender to amend, and the Lender has agreed to amend, the Loan and
Security Agreement on the terms and conditions set forth herein,
and the Guarantor has agreed to be a party to this
Amendment.
For good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Deferral of Borrowing
Base Deficiency . The Lender hereby defers until 3 p.m. (EST)
on October 22, 2008 (the “ Deferral Date ”)
the requirement that the Borrowers repay $84,000,0000 of the
Borrowing Base Deficiency described in that certain Notice of
Borrowing Base Deficiency dated as of October 10, 2008 (the
“ Notice of Deficiency ”) delivered by the
Lender to the Borrowers, together with interest thereon. This
deferral is limited to the extent described in the preceding
sentence and shall in no way constitute a waiver or forbearance of
the Lender’s right to demand payment of such Borrowing Base
Deficiency or any other rights and remedies available to the Lender
under the Loan Agreement or any other Facility Document, and the
Lender hereby expressly reserves the right to demand payment of
such amount on or after the Deferral Date.
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SECTION 2. Amendments to the Loan
and Security Agreement . The Loan and Security Agreement is,
effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 2 hereof,
hereby amended as follows:
(a) Clause (a) of the
definition of “Attributed Rate” is hereby amended and
restated in full to read as follows:
“(a) With respect to Eligible
Servicing Rights, and for the period of effectiveness for each
Borrowing Base Report, a fraction, (i) the numerator of which
is equal to (A) $1,200,000,000 less (B) the Commitment
Reduction Amount as of the date of such Borrowing Base Report, and
(ii) the denominator of which is the Borrower’s book
value of Eligible Servicing Rights as set forth in the September
2008 Borrowing Base Report (which, for the avoidance of doubt, is
$1,214,132,395.00); provided however that the Attributed Rate for
any Eligible Servicing Rights pledged in accordance with
Section 7.01(h) shall be determined by the Lender in
its sole and absolute discretion.”
(b) The definition of
“Commitment Amount” is hereby amended and restated in
full to read as follows:
“ Commitment Amount
” means at any time the excess of (x) $1,200,000,000,
over (y) the Commitment Reduction Amount. The Borrowers may
elect to further reduce the Commitment Amount in accordance with
Section 2.10 .”
(c) The new definition set forth
below is added to Section 1.01 in the correct
alphabetical order:
“ Commitment Reduction
Amount ” means, at any time, an amount equal to the sum
of (x) $84,000,000, plus (y) after October 22, 2008,
$84,000,000, plus (z) the amount of any capital contribution
made by the Lender to ResCap in the form of forgiveness of the
principal amount of Loans outstanding under this Agreement on or
after October 1, 2008.”
(d) The definition of “Loan
Repayment Date” is hereby amended and restated in full to
read as follows:
“ Loan Repayment Date
” means the earlier of (i) May 1, 2009, or if such
day is not a Business Day, the immediately preceding Business Day,
(ii) upon the Borrowers’ receipt of a commitment from a
third-party lender for a replacement facility to be secured by the
Collateral, the day specified by either the Borrowers or the Lender
upon at least 20 Business Days’ written notice, or
(iii) such earlier date as may be notified by Lender in
accordance with Section 8.02(a); provided however that
the Loan Repayment Date may be extended or accelerated by the
mutual agreement of the Lender and Borrowers.
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(e) The definition of “Adverse
Servicing Event” is hereby amended and restated in full to
read as follows:
“‘ Adverse Servicing
Event ’ means (1) the failure of either Borrower to
be an approved servicer under any Servicing Contract with respect
to which any Eligible Servicing Rights pledged under this Agreement
relate, (2) either Borrower fails to service in accordance
with any Servicing Contract in any material respect,
(3) either Borrower is terminated as servicer with respect to
any Eligible Servicing Rights (except if the provisions of
Section 7.01(m)(iii)(a)-(b) are met), or
(4) receipt by either Borrower of a notice from any MBS
Trustee indicating material breach, default or material
non-compliance by such Borrower which the Lender reasonably
determines may entitle such MBS Trustee to terminate such Borrower,
which notice has not been rescinded or nullified within five
(5) Business Days of its receipt by such Borrower or such
lesser time as Lender believes is necessary to protect its interest
and provides such Borrower with written notice thereof, as the case
may be.”
(f) Section 4.04(a) is hereby
amended by replacing the period at the end of subsection
(iii) with “; and” and inserting subsection
(iv) after subsection (iii), which subsection (iv) shall
read as follows:
“(iv) if and to the extent not
prohibited by a legally enforceable provision of the relevant
Servicing Contract, negotiate and arrange for the transfer of any
servicing rights under any Servicing Contract to another asset
manager, servicer, special servicer or sub-servicer and for the
payment of any sums in respect thereto to the Lender (for
application to the Obligations).”
(g) Section 4.05 is hereby
amended and restated in full to read as follows:
“The Lender shall have the
right, in its sole discretion, to solicit, negotiate with and
contract with a party or parties of the Lender’s choosing to
serve as a backup servicer to either or both of the Borrowers and
with respect to all or such portion of the Servicing Contracts as
the Lender may choose. Each Borrower covenants and agrees that it
will fully cooperate and use its best efforts to assist the Lender
in exercising this right in all respects,
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including the provision of such
information to any such backup servicer as may be required in
connection with the negotiation of a backup servicing agreement or
for the performance of its duties as backup servicer, the execution
of a backup servicing agreement and obtaining from the relevant MBS
Trustee, Investors and, if applicable, any bond insurers, a consent
to such backup servicing arrangements.”
(h) Subsection 6.02(e) is hereby
amended and restated to read as follows:
“(e) The Lender has a duly
perfected first priority security interest in all Servicing Rights
that are included in the Borrowing Base or (to the extent they
remain outstanding) have at any time been included in the Borrowing
Base.”
(i) Section 6.01(r) is hereby
amended and restated in full to read as follows:
“(r) Investor Set Off
Rights . Neither Borrower has any actual notice, including any
notice received from any Investor, or any reason to believe, that,
other than in the normal course of such Borrower’s business,
any circumstances exist that would result in such Borrower being
liable to any Investor for any amount due by reason of:
(i) any breach of servicing obligations or breach of mortgage
selling warranty to any Investor under the related Servicing
Contract or any other similar contracts relating to such
Borrower’s entire servicing portfolio with such Investor
(including without limitation any unmet mortgage repurchase
obligation), (ii) any unperformed obligation with respect to
mortgages in an MBS pool that such Borrower is servicing for any
Investor under the regular servicing option or other mortgages
subject to recourse agreements, (iii) any loss or damage to
any Investor by reason of any inability to transfer to a purchaser
of the Servicing Rights such Borrower’s selling and servicing
representations, warranties and obligations, as well as any
existing MBS recourse (regular servicing option) obligations, or
other recourse obligations, and (iv) any other unmet
obligations to any Investor under the related Servicing Contract or
any other similar contracts relating to the Borrower’s entire
servicing portfolio with such Investor.”
(j) Section 7.01(h) is hereby
amended and restated in full to read as follows:
“The Borrowers covenant and
agree to use their best efforts to pledge, no later than
November 30, 2
