Exhibit 10.25
EXECUTION COPY
AMENDMENT NO. 9 TO
THE
LOAN AND SECURITY
AGREEMENT
Dated as of June 1,
2009
AMENDMENT NO. 9 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 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.
(3) The Borrowers and the Lender
have entered into an Amendment No. 1 to the Loan and Security
Agreement dated May 21, 2008.
(4) The Borrowers and the Lender
have entered into an Amendment No. 2 to the Loan and Security
Agreement dated May 22, 2008.
(5) The Borrowers and the Lender
have entered into an Amendment No. 3 to the Loan and Security
Agreement dated June 2, 2008.
(6) The Borrowers and the Lender
have entered into an Amendment No. 4 to the Loan and Security
Agreement dated July 25, 2008.
(7) The Borrowers and the Lender
have entered into an Amendment No. 5 to the Loan and Security
Agreement dated October 3, 2008.
(8) The Borrowers, the Guarantor and
the Lender have entered into an Amendment No. 6 to the Loan
and Security Agreement dated October 17, 2008.
(9) The Borrowers, the Guarantor and
the Lender have entered into an Amendment No. 7 to the Loan
and Security Agreement dated December 10, 2008.
(10) The Borrowers, the Guarantor
and the Lender have entered into an Amendment No. 8 to the
Loan and Security Agreement dated March 18, 2009.
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Amendment No. 9 to MSR
Loan and Security
Agreement
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(11) 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. 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, (c) all
“Obligations” as defined in the Credit Agreement and
(d) 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 6.02(a) of the Loan
and Security Agreement is hereby amended and restated in full to
read as follows:
“(a) It has not assigned,
pledged, conveyed, or encumbered any Collateral to any other
Person, and immediately prior to the pledge of any such Collateral,
it was the sole owner of such Collateral and had good and
marketable title thereto, free and clear of all Liens, in each case
except for Liens to be released simultaneously with the Liens
granted in favor of the Lender hereunder, the Omnibus Agent under
the Omnibus Security Agreement or GMAC LLC under the Fourth
Security Agreement (as defined in the Credit Agreement) and no
Person, other than the Lender, the Omnibus Agent or GMAC LLC has
any Lien on any Collateral.”
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Amendment No. 9 to MSR
Loan and Security
Agreement
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(c) 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), (iii) an “Event of Default” shall have
occurred under any Facility Document (as such terms are defined in
the November Loan Agreement) or (iv) an “Event of
Default” shall have occurred under any Facility Document
(as such terms are defined in the Credit
Agreement).”
(d) Section 8.03(b) of the Loan
and Security Agreement is hereby amended by adding the following
sentence at the end of the section:
“Proceeds of Collateral shall
be allocated to the Secured Parties (as defined in the Omnibus
Security Agreement) in such manner as is determined by the Omnibus
Agent in its sole discretion.”
(e) Schedule I of the Loan and
Security Agreement is hereby amended to add the following
definition in proper alphabetical order:
“ Credit Agreement
means that certain Credit Agreement, dated as of June 1, 2009,
as amended, supplemented, restated or otherwise modified from time
to time, among RAHI and PATI, as borrowers, ResCap, RFC, and
GMAC Mortgage, as guarantors, and GMAC LLC, as agent and
initial lender, and certain other financial institutions and
Persons from time to time party thereto as lenders, pursuant to
which the lenders thereunder have agreed to make loans to RAHI and
PATI.”
SECTION 2. Effectiveness
.
(a) This Amendment and the
provisions contained herein shall become effective as of the date
first above written.
(b) On or before June 1, 2009,
the Borrowers shall deliver or cause to be delivered opinions of
counsel to the Borrowers and the Guarantor with respect to the
transactions contemplated hereby, which opinions shall be in form
and substance satisfactory to the Lender.
(c) On or before June 1, 2009,
the Borrowers shall deliver or cause to be delivered such other
documents as the Lender may reasonably request, which documents
will be in form and substance satisfactory to the
Lender.
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Amendment No. 9 to MSR
Loan and Security
Agreement
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SECTION 3. Consent to Security
Interest . Each of the Borrowers, the Guarantor and the Lender
hereby consent to the creation and existence of the security
interests in the Collateral created by the Pledge and Security
Agreement and Irrevocable Proxy, dated as of June 1, 2009,
among RFC Asset Holdings II, LLC, Passive Asset Transactions, LLC,
Residential Capital, LLC, Residential Funding Company, LLC,
GMAC Mortgage, LLC, as grantors, all other persons who
become a grantor thereunder, and GMAC LLC, as secured party, as the
same may be amended, supplemented, amended and restated or
otherwise modified from time to time.
SECTION 4. 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 contemp
