Exhibit 10.12
EXECUTION COPY
WAIVER AND SEVENTH AMENDMENT TO LOAN
AGREEMENT
THIS WAIVER AND SEVENTH AMENDMENT TO
LOAN AGREEMENT (“ Waiver and Amendment Agreement
”) is made as of May 27, 2009 with respect to the Loan
Agreement, dated as of November 20, 2008 (as amended through
the date hereof, the “ Loan Agreement ”) among
Passive Asset Transactions, LLC, a Delaware limited liability
company (“ PATI ”), RFC Asset Holdings II, LLC,
a Delaware limited liability company
(“ RAHI ” and,
together with PATI, each a “ Borrower ” and
collectively, the “ Borrowers ”), Residential
Capital, LLC, a Delaware limited liability company (“
ResCap ”), Residential Funding Company, LLC, a
Delaware limited liability company (“ RFC ”),
GMAC Mortgage, LLC, a Delaware limited liability company (“
GMAC Mortgage ”, and together with RFC and ResCap,
each a “ Guarantor ” and collectively, the
“ Guarantors ”), GMAC, LLC, a Delaware limited
liability company, as Lender Agent and Initial Lender
(“ GMAC ”), and
certain other financial institutions and Persons from time to time
party thereto as Lenders. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings given
to them in the Loan Agreement.
WHEREAS, significant equity
investments have been and may be made directly and indirectly by
the U.S. Department of Treasury (“ UST ”) into
GMAC and certain other ownership and governance changes with
respect to GMAC have, will or may take place in the form of
(1) the direct acquisition by the UST of equity interests in
GMAC; (2) the contribution (directly or indirectly) by General
Motors Corporation (“ GM ”) of GMAC equity (a
portion of which was purchased with the proceeds of a loan made by
the UST to GM) into one or more trusts naming GM as beneficiary
(the “ GM Trusts ”); (3) disposition by GM
of its beneficial interest in the GM Trusts; and (4) any
transactions or agreements entered into in connection therewith
including the appointment, designation or election of directors (or
the equivalent) (collectively, the “ Specified
Transactions ”); and
WHEREAS, the Specified Transactions
will enhance the creditworthiness of GMAC, and with respect to
which the parties agree that the Change of Control provision should
not apply with respect thereto and the definition of Change of
Control should therefore be amended as provided below;
NOW, THEREFORE, in consideration of
the premises set forth above, the terms and conditions contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
have agreed to enter into this Waiver and Amendment
Agreement.
1. Waiver . The Lenders and
Lender Agent hereby agree that, notwithstanding any provision of
the Loan Agreement to the contrary, the occurrence of any or all of
the Specified Transactions shall not be deemed to be a Change of
Control under the Loan Agreement.
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T-223 Waiver and
Amendment
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2. Amendments . In
furtherance of paragraph 1 above, (a) The definition of
“Change of Control” in the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
“ Change of Control
” means the occurrence of any of the following events:
(i) any “person” or “group” (within
the meaning of Rule 13d-5 of the Exchange Act), other than the
Investors, the United States Department of the Treasury, the GM
Trusts, or any purchaser of the bene
