Exhibit 10.16
E XECUTION C OPY
AMENDMENT NO. 8 TO
THE
LOAN AND SECURITY
AGREEMENT
Dated as of March 18,
2009
AMENDMENT NO. 8 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 (“ 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
”).
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, the Guarantor and
the Lender have entered into an Amendment No. 6 to the Loan
and Security Agreement dated October 17, 2008.
(8) The Borrowers, the Guarantor and
the Lender have entered into an Amendment No. 7 to the Loan
and Security Agreement dated December 10, 2008.
(9) 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.
(10) 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.
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Amendment No. 8
to Loan and Security
Agreement
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For good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Amendments to the Loan
and Security Agreement . The Loan and Security Agreement is,
effective as of the date hereof, hereby amended as
follows:
(a) Section 4.01 of the Loan
and Security Agreement is hereby amended and restated in full to
read as follows:
“ Security Interest .
As security for the prompt payment and performance of (a) all
of its obligations hereunder, under the Note and under the other
Facility Documents, (b) all “Obligations” as
defined in the November Loan Agreement and (c) all
obligations, indebtedness and liabilities of the ResCap
Counterparties under the Master Netting Agreement or other
Derivative Documents (collectively, the “ Secured
Obligations ”), each Borrower hereby assigns and pledges
to the Lender, and grants a security interest to the Lender in, all
of such Borrower’s right, title and interest, in, to, and
under, whether now owned or hereafter acquired, in all of the
following, whether now or hereafter existing and wherever located:
(i) the Servicing Rights whether or not yet accrued, earned,
due or payable as well as all other present and future rights and
interests of such Borrower in such Servicing Rights, (ii) the
Collection Accounts, (iii) the Servicing Contracts and all
rights and claims thereunder, (iv) all books and records,
including computer disks and other records, related to the
foregoing (but excluding computer programs), (v) any
Additional Collateral pledged from time to time pursuant to
Section 2.08(b) , and (vi) all monies due or to
become due with respect to the foregoing and all proceeds of the
foregoing, but with respect to (i)-(v) above specifically
excluding the Excluded Collateral (all of the foregoing,
collectively, the “ Collateral
“).”
(b) Section 8.01(e) of the Loan
and Security Agreement is hereby amended and restated in full to
read as follows:
“(e) (i) an “Event of
Default” or “Termination Event” shall have
occurred under any Derivative Agreement (as such terms are defined
in the applicable Derivative Agreement), (ii) a
“Default” shall have occurred under the Master Netting
Agreement (as such term is defined in the Master Netting Agreement)
or (iii) an “Event of Default” shall have occurred
under any Facility Document (as such term is defined in the
November Loan Agreement).”
(c) The definition of
“Facility Documents” in Schedule I of the Loan and
Security Agreement is hereby amended by adding the phrase
“the Omnibus Security Agreement” immediately after the
phrase “the Account Control Agreement”.
(d) The definition of “Loan
Repayment Date” in Schedule I of the Loan and Security
Agreement is hereby amended by deleting “May 1, 2009”
and replacing it with “June 30, 2009”.
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Amendment No. 8
to Loan and Security
Agreement
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(e) Schedule I of the Loan and
Security Agreement is hereby amended to add the following
definition in proper alphabetical order:
“ Derivative Agreement
” means (a) each agreement identified on Schedule
X to the Omnibus Security Agreement and (b) each
additional agreement between GMAC IM and any ResCap Counterparty
that governs one or more Derivative Transactions entered into by
GMAC IM and such ResCap Counterparty, which agreement shall consist
of (i) a “Master Agreement” in a form published by
the International Swaps and Derivatives Association, Inc., together
with a “Schedule” thereto, each
“Confirmation” thereunder confirming the specific terms
of each such Derivative Transaction and each “Credit Support
Annex” related to such Derivative Transaction or (ii) a
“Master Securities Forward Transaction Agreement,”
together with any applicable “Annexes” thereto and each
“Confirmation” thereunder confirming the specific terms
of such Derivative Transaction.
“ Derivative Documents
” shall mean (i) the Derivative Agreements;
(ii) the Master Netting Agreement and (iii) the Omnibus
Security Agreement.
“ Derivative
Transaction ” means each interest rate swap, interest
rate cap, currency swap, securities forward, “TBA” or
other similar transaction between GMAC IM and one or more ResCap
Counterparties that is entered into pursuant to and governed by a
Derivative Agreement.
“ GMAC IM ” means
GMAC Investment Management LLC, a Delaware limited liability
company.
“ Master Netting
Agreement ” means the Guarantee and Master Netting
Agreement dated as of March 18, 2009 among GMAC IM, GMAC LLC
and the ResCap Counterparties, as amended or modified from time to
time.
“ November Loan
Agreement ” means the Loan Agreement, dated as of
November 20, 2008 among RFC Asset Holdings II, LLC, Passive
Asset Transactions, LLC, as borrowers, ResCap, RFC, and GMAC
Mortgage, as guarantors, and GMAC LLC, as Lender Agent and Initial
Lender, and certain other financial institutions and persons from
time to time party thereto as lenders, as amended or modified from
time to time.”
“ Omnibus Agent ”
means GMAC, in its capacity as Omnibus Agent pursuant to the
Omnibus Security Agreement.”
“ Omnibus Security
Agreement ” means the Omnibus Security and Pledge
Agreement and Irrevocable Proxy, dated as of March 18, 2009
among the Obligors, GMAC IM and GMAC LLC as Omnibus Agent, Lender
Agent under the November Loan Agreement, as Lender under this
Agreement and as a Secured Party, as amended or modified from time
to time.”
“ ResCap Counterparty
” means ResCap, RFC and/or GMAC Mortgage, as counterparty
under a Derivative Transaction, and any successors or
assigns.
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Amendment No. 8
to Loan and Security
Agreement
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(f) Schedule II of the Loan
and Security Agreement is hereby amended to add the following
thereto:
All mortgage loans which either of
the Borrowers is obligated to perform collection, enforcement or
foreclosure services with respect to, or to maintain and remit any
funds collected from persons obligated on any mortgage loan or pool
of mortgage loans, pursuant to any agreement, whether titled a
“servicing agreement,” a “pooling and servicing
agreement,” a “sale and servicing agreement, but
excluding any such agreements (a) entered into with the
Government National Mortgage Association, the Federal National
Mortgage Association, or the Federal Home Loan Mortgage
Corporation, (b) identifying mortgage loans or pools of
mortgage loans owned by either of the Borrowers or
(c) identifying any mortgage loans or pools of mortgage loans
transferred (whether absolutely or for security) pursuant to a
master repurchase agreement to which either of the Borrowers is a
party.
SECTION 2. Effectiveness .
This Amendment and the provisions contained herein shall become
effective as of the date first above written.
SECTION 3. Representations and
Warranties of the Borrowers and the Guarantor . The Borrowers
and the Guarantor each represents and
