Exhibit 10.14
Execution Copy
AMENDMENT NO. 7 TO
THE
LOAN AND SECURITY
AGREEMENT
Dated as of December 10,
2008
AMENDMENT NO. 7 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 Borrowers and the Lender
have entered into an Amendment No. 6 to the Loan and Security
Agreement dated October 17, 2008.
(8) 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.
(9) 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. Capital
Contribution . As of November 30, 2008, the outstanding
principal amount of the Loans was $682,571,281.91. Lender hereby
confirms that Lender has forgiven a portion of the principal amount
of the Loans equal to $451,493,000 effective as of
November 30, 2008, so that the outstanding principal amount of
Loans as of the date hereof is $231,078,281.91. Such forgiveness
constitutes a capital contribution by the Lender to
ResCap.
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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 4 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 25.37%; provided , however , if the
Lender forgives any portion of the Loan subsequent to the date
hereof, 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,
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(i)
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the numerator
of which is equal to (A) $240,092,000, minus (B) the
Additional Forgiveness Amount, and
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(ii)
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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;”
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(b) The definition of
“Commitment Amount” is hereby amended and restated in
full to read as follows:
“ Commitment Amount
” means (x) $240,092,000, minus (y) the Additional
Forgiveness Amount. The Borrowers may elect to further reduce the
Commitment Amount in accordance with Section 2.10
.”
(c) Schedule I to the Loan
and Security Agreement is hereby amended by deleting the definition
of “Commitment Reduction Amount” contained
therein.
(d) Schedule I to the Loan
and Security Agreement is hereby amended by adding the following
new definitions in the proper alphabetical location
therein:
“ Additional Forgiveness
Amount ” means the aggregate amount, as determined by the
Lender, of any capital contribution (other than the capital
contribution consisting of the Initial Forgiveness Amount) made by
the Lender to ResCap after November 30, 2008, 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 the date hereof
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.
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Amendment No. 7
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to Loan and Security
Agreement
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“ Initial Forgiveness
Amount ” means $451,493,000.
(e) Section 7.01(h) is
hereby amended and restated in full to read as follows:
“ Intentionally Omitted
.”
SECTION 3. Waiver . The
Lender does hereby waive any Default or Event of Default under the
Loan and Security Agreement resulting from any failure of the
Borrowers to comply with the provisions of
Section 7.01(h) thereof prior to the date hereof. The
Lender does hereby waive, solely in connection with any Borrower
Funding Request delivered prior to December 31, 2008, the
requirement that the representations and warranties set forth in
Section 6.01(h) of the Loan and Security Agreement are
true and correct on and as of the date of such Borrower Funding
Request.
SECTION 4. Conditions of
Effectiveness . This Amendment shall become effective as of the
date first above written when, and only when, the Lender shall have
received:
(a) A copy of this Amendment, duly
executed by the parties hereto; and
(b) A certificate signed by a
Responsible Officer of each Borrower and the Guarantor stating
that:
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(i)
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The
representations and warranties contained Section 5
hereof and in the Guarantee (in the case of the Guarantor) or
Section 6.01 of the Loan and Security Agreement
(excluding Section 6.01(h) ), as amended hereby (in the
case of the Borrowers), are correct on and as of the date of such
certificate as though made on and as of such date; it being
understood that solely for the purpose of this Agreement and as of
the date hereof, the Borrowers shall not be required to make the
representations and warranties set forth in
Section 6.01(h) of the Loan and Servicing Agreement;
and
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(ii)
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No event has
occurred and is continuing that constitutes a Default.
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SECTION 5. Representations and
Warranties of the Borrowers and the Guarantor . The Borrowers
and the Guarantor each represents and warrants as
follows:
(a) It is a limited liability
company duly organized or formed, validly existing and in good
standing under the laws of Delaware.
(b) The execution, delivery and
performance by it of this Amendment and (as applicable) the Loan
and Security Agreement, as amended hereby, or the Guarantee and the
consummation of the transactions contemplated hereby and thereby
will not conflict with, result in any breach of any of the terms
and provisions of, or constitute (with or without notice, lapse of
time
