FORM OF NOTE NOTE
Exhibit 10.12
FORM OF NOTE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), OR ANY STATE SECURITIES LAW, AND MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR
OTHERWISE DISPOSED OF BY THE HOLDER HEREOF UNLESS SUCH TRANSACTION IS EXEMPT FROM REGISTRATION
UNDER THE ACT AND SUCH STATE LAWS, AND WILL NOT GIVE RISE TO A NON-EXEMPT “PROHIBITED TRANSACTION”
UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) ASSUMING THAT NO
PORTION OF THE LOAN IS FUNDED WITH “PLAN ASSETS” WITHIN THE MEANING OF 29 C.F.R. SECTION
2510.3-101, AS MODIFIED BY SECTION 3(42) OF ERISA THAT WOULD GIVE RISE TO SUCH A NON-EXEMPT
PROHIBITED TRANSACTION. BY ACCEPTANCE OF THIS NOTE, THE HOLDER AGREES TO BE BOUND BY ALL THE TERMS
OF THE CREDIT AGREEMENT.
| $750,000,000 | February 21, 2008 |
FOR VALUE RECEIVED, the undersigned, Residential Funding Company, LLC, a Delaware limited
liability company, (the “Company”), subject to the provisions of Section 2.7(e) of the
Credit Agreement, promise to pay to the order of [Name of Lender], as Lender (the
“Lender”), on the Maturity Date and otherwise in accordance with the terms of (and subject
to the limitations on recourse in) the Credit Agreement (as hereinafter defined), the principal sum
of
SEVEN HUNDRED FIFTY MILLION
AND 00/100 DOLLARS ($750,000,000 or, if less, the aggregate unpaid principal
amount of all Loans shown on the schedule attached hereto (and any continuation thereof) and/or in
the records of the Lender made by any such Lender pursuant to that certain Credit Agreement, dated
as of February 21, 2008 (as it may be amended, restated, supplemented and/or otherwise modified
from time to time, the “Credit Agreement”), among the Company, the financial institutions
from time to time party thereto, as Lenders, and GMAC LLC, as agent (the “Agent”). Unless
otherwise defined, capitalized terms used herein have the meanings provided in the Credit
Agreement.
The Company also promise to pay interest on the unpaid principal amount hereof from time to
time outstanding from the date hereof until maturity (whether by acceleration or
otherwise) and, after maturity, until paid, at the rates per annum and on the dates specified
in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of the United States of
America in same day or immediately available funds to the account designated by the Lender pursuant
to the Credit Agreement.
This Note is one of the Notes referred to in, is subject to the terms and provisions of, and
evidences indebtedness incurred under, the Credit Agreement, and the holder hereof is entitled to
the benefits of the Credit Agreement and the Pledge Agreement, to which reference is made for a
description of the security for this Note and for a statement of the terms and conditions on which
the Company are permitted and required to make prepayments and repayments of principal of the
indebtedness evidenced by this Note and on which such indebtedness may be declared to be
immediately due and payable.
All parties hereto, whether as makers, endorsers, or otherwise, severally waive presentment
for payment, demand, protest and notice of dishonor.
As provided in the Credit Agreement and subject to certain limitations therein set forth, the
transfer of this Note is registrable in the Register, upon surrender of this Note for registration
of transfer at the office or agency of the Agent maintained by the Agent for that purpose, duly
endorsed by, or accompanied by a written instrument of transfer in the form satisfactory to the
Agent duly executed by, the holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in minimum denominations of
$5,000,000.00, unless each of the Company and the Agent otherwise consent. As provided in the
Credit Agreement and subject to certain limitations therein set forth, Notes are exchangeable for a
like aggregate principal amount of Notes of a different authorized denomination, as requested by
the holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company and the Agent and any agent of the Company or the Agent may treat the Person in
whose name this Note is registered as the owner hereof for all purposes, whether or not this Note
may be overdue, and neither the Company, the Agent nor any such agent shall be affected by notice
to the contrary.
[Remainder of Page Intentionally Left Blank.]
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK INCLUDING GENERAL OBLIGATIONS LAW 5-1401 BUT OTHERWISE WITHOUT REGARD TO ANY
OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
| RESIDENTIAL FUNDING COMPANY, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxx XXX | |||
| Name: | Xxxxxxx X. Xxxxx XXX | |||
| Title: | Sr. Managing Director & Treasurer | |||
Personally appeared before me [name of notary], in
[county], [state], the above-named
[name of person executing], known or proved to me to be the same
person who executed the foregoing instrument and to be the [title] of
[ ] and acknowledged to me that he executed the same as his
free act and deed and the free act and deed of [ ].
Subscribed and sworn before me this day of , 2008.
| NOTARY PUBLIC | ||||
| COUNTY OF | ||||
| STATE OF | ||||
| My commission expires the day of , . |
||||
Schedule Attached
to Note Dated February 21, 2008 of Residential
Funding Company, LLC payable to the
order of [GMAC LLC]
Date of
Loan
|
Amount of Loan | Amount of Repayment | ||
