AMENDED AND RESTATED OPERATING AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED
AGREEMENT, dated as of November 27, 2006, by and between General Motors Corporation, a
Delaware corporation (“GM”), GMAC LLC, a Delaware limited liability company (f/k/a General Motors
Acceptance Corporation, a Delaware corporation and a wholly-owned subsidiary of GM (“GMAC”)), and
Residential Capital, LLC, a Delaware limited liability company (f/k/a Residential Capital
Corporation, a Delaware corporation and an indirect wholly-owned subsidiary of GMAC (“ResCap”)).
The parties agree as follows:
Section 1. Definitions. For purposes of this Agreement, the following terms shall
have the meanings assigned in this section:
“Affiliate” means, with respect to any Person, any other Person directly or indirectly
Controlling or Controlled by or under direct or indirect common Control with such Person.
“Bank Agent” means, with respect to any senior unsecured credit facility under which
ResCap is a borrower, the administrative agent under such facility, or if there is no such
agent, each lender under such facility.
“Capital Stock” of any Person means: (i) in the case of a corporation, corporate stock;
(ii) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock; and
(iii) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests.
“Class” means, with respect to any Rated Indebtedness, all such Rated Indebtedness
designated as belonging to the same class, series or issue or otherwise having substantially
the same material terms and governed by substantially the same instruments.
“Class Agent” means, in the case of Rated Indebtedness evidenced by an indenture or
other similar agreement, the trustee or other fiduciary or agent authorized to act for such
Class (upon direction or otherwise), and, in all other cases, the holders of a majority in
principal amount of the outstanding Rated Indebtedness of such Class.
“Control” means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the ownership of
voting securities or general partnership or managing member interests, by contract or
otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting
the generality of the foregoing, a Person shall be deemed to Control any other Person in
which it owns, directly or indirectly, a majority of the ownership interests.
“Cumulative Net Income” means the net income of ResCap and its Subsidiaries on a
consolidated basis determined in accordance with GAAP for the period beginning with the
first day of the first fiscal quarter beginning after June 24, 2005 and ending on the last
day of the fiscal quarter ending immediately preceding the date as of which a determination
of Cumulative Net Income is required minus an amount equal to the net increase in
equity resulting from the release of all tax-related accounts of ResCap and certain of its
domestic Subsidiaries (on a consolidated basis) as a result of the conversion of such
entities to become limited liability companies and their subsequent election to be treated
as a multi-member limited liability company for federal income tax purposes.
“Disqualified Stock” means any Capital Stock that by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or
in part.
“Dividend” means any dividend or distribution of cash or property by ResCap on account
of its Capital Stock or the repurchase by ResCap of its Capital Stock (other than dividends,
distributions or repurchases payable in Capital Stock (other than Disqualified Stock)).
“GAAP” means generally accepted accounting principles as in effect in the United States
from time to time, applied on a consistent basis.
“GM Affiliate” means GM and any Person that is an Affiliate of GM, other than GMAC and
its Subsidiaries.
“GM Affiliate Business” means all businesses and operations (whether or not such
businesses or operations are terminated, divested or discontinued) of the GM Affiliates as
conducted from time to time.
“GM Indemnifiable Liabilities” means all Liabilities of any GM Affiliate to the extent
such Liabilities (a) relate to, (b) arise out of or (c) result principally from any of the
following items:
(i) the failure of any GM Affiliate to pay, perform or otherwise promptly
discharge any Liabilities of such GM Affiliate in accordance with their terms; or
(ii) the GM Affiliate Business.
“GMAC Affiliate” means GM, GMAC and any Person that is an Affiliate of GM or GMAC,
other than ResCap and its Subsidiaries.
“GMAC Affiliate Business” means all businesses and operations (whether or not such
businesses or operations are terminated, divested or discontinued) of the GMAC Affiliates as
conducted from time to time.
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“GMAC Indemnifiable Liabilities” means all Liabilities of any GMAC Affiliate to the
extent such Liabilities (a) relate to, (b) arise out of or (c) result principally from any
of the following items:
(i) the failure of any GMAC Affiliate to pay, perform or otherwise promptly
discharge any Liabilities of such GMAC Affiliate in accordance with their terms; or
(ii) the GMAC Affiliate Business.
“Governmental Authority” means any supranational, international, national, federal,
state or local court, government, department, commission, board, bureau, agency, official or
other regulatory, administrative or governmental authority.
“Independent Director” means an individual who: (A) is not and has not been an officer,
director or employee, and has no immediate family member that is or has been an officer, of
any GMAC Affiliate within the three years immediately prior to such individual’s appointment
as an Independent Director; (B) has not received, and has no immediate family member who has
received, during any twelve-month period in the three years immediately prior to such
individual’s appointment as an Independent Director, more than $100,000 in direct
compensation from any GMAC Affiliate, other than director fees and pension and other forms
of deferred compensation for prior service that is not contingent in any way on continued
service; (C) is not employed by, and has no immediate family member that is an officer of,
any Person that has made payments to, or received payments from, any GMAC Affiliate for
property or services in an amount which, in any of the last three fiscal years, exceeds the
greater of $1 million or 2% of ResCap’s consolidated gross revenues; and (D) is reasonably
believed by the then current directors of ResCap to be financially sophisticated and
otherwise qualified to fulfill the obligations of an Independent Director as set forth in
this Agreement. For purposes of this definition, “immediate family member” means an
individual’s spouse, parents and parents-in-law, siblings and siblings-in-law, children and
children-in-law and anyone (other than domestic employees) who shares such individual’s
home. Notwithstanding anything contained in clauses (A) through (D) above, any Independent
Director may serve or have served as an Independent Director of one or more limited purpose
entities organized for the purpose of acquiring, financing or otherwise investing, directly
or indirectly, in assets or receivables originated, owned or serviced by any GMAC Affiliate
or ResCap Subsidiary or holding equity beneficial interest in trusts formed by any GMAC
Affiliate or ResCap Subsidiary.
“Investment” in any Person means any loan, advance or other extension of credit (other
than in the ordinary course of business) to such Person (whether in cash or property) or any
capital contribution or purchase or acquisition of any Capital Stock or indebtedness of such
Person (whether in cash or property); provided, however, that the term “Investment” shall
not include any purchase of securities issued by a GMAC Affiliate through the use of funds
in a custodial account held by ResCap or its Subsidiaries relating to the sale of financial
assets by ResCap or its Subsidiaries.
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“Liabilities” means all debts, liabilities, obligations, responsibilities, response
actions, losses, damages (whether compensatory, punitive or treble), fines, penalties and
sanctions, absolute or contingent, matured or unmatured, liquidated or unliquidated,
foreseen or unforeseen, joint, several or individual, asserted or unasserted, accrued or
unaccrued, known or unknown, whenever arising, including those arising under or in
connection with any law, statute, ordinance, regulation, rule or other pronouncements of
Governmental Authorities having the effect of law, Proceeding, threatened Proceeding, order
or consent decree of any Governmental Authority or any award of any arbitration tribunal,
and those arising under any contract, guarantee, commitment or undertaking, whether sought
to be imposed by a Governmental Authority, a party to this agreement or any other Person,
whether based in contract, tort, implied or express warranty, strict liability, criminal or
civil statute, or otherwise, and including any costs, expenses, interest, external
attorneys’ fees, disbursements and expense of external counsel, expert and consulting fees
and costs related thereto or to the investigation or defense thereof.
“Losses” means all losses, liabilities, penalties, claims, damages, demands, costs and
expenses (including reasonable external attorneys’ fees, investigation expenses,
out-of-pocket expenses, interest and punitive or consequential damages) and other
Liabilities of any kind.
“Person” means any individual, corporation, partnership, joint venture, limited
liability company, limited liability partnership, association, joint stock company, trust,
unincorporated organization, or other organization, whether or not a legal entity, and any
Governmental Authority.
“Proceeding” means any past, present or future suit, counter suit, action, arbitration,
mediation, alternative dispute resolution process, claim, counterclaim, demand, proceeding,
inquiry or investigation by or before any Governmental Authority or any arbitration or
mediation tribunal.
“Rating Agencies” means Standard & Poor’s Ratings Services, Xxxxx’x Investors Service,
Inc., Fitch Ratings, Inc. and Dominion Bond Rating Service, or, if any such agency shall
cease to perform the functions of a statistical rating agency, a replacement therefor that
is a nationally recognized statistical rating agency in the United States and is designated
by GMAC and ResCap.
“Rated Indebtedness” means any senior long-term unsecured debt of ResCap, that, at the
relevant time, is outstanding and not defeased in accordance with its terms and that is at
the time of its issuance rated by at least two of the Rating Agencies, unless the
instruments governing such indebtedness provide that they are not entitled to the benefits
of this Agreement.
“ResCap Business” means all businesses and operations (whether or not such businesses
or operations are terminated, divested or discontinued) of ResCap or its Subsidiaries as
conducted from time to time.
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“ResCap Indemnifiable Liabilities” means all Liabilities of ResCap or any of its
Subsidiaries to the extent such Liabilities (a) relate to, (b) arise out of or (c) result
principally from any of the following items:
(i) the failure of ResCap or any of its Subsidiaries to pay, perform or
otherwise promptly discharge any Liabilities of ResCap or such Subsidiary, as the
case may be, in accordance with their terms; or
(ii) the ResCap Business.
“Stockholder’s Equity” means, at any time of determination, the amount which would be
shown as stockholder’s equity or member’s equity, as the case may be, on the consolidated
balance sheet of ResCap as of such time prepared in accordance with GAAP.
“Subsidiary” means, with respect to any Person, any other Person of which a majority of
the voting interests is owned, directly or indirectly, by such Person; provided, however,
that the term “Subsidiary” shall not include any securitization trusts or similar Person
established by any ResCap Subsidiary.
“Tax Dividend” means a Dividend identified at the time of its declaration by ResCap’s
Board of directors (or any committee thereof) as a tax-related dividend for purposes of this
Agreement in an amount equal to the net increase in equity resulting from the release of all
tax-related accounts of ResCap and certain of its domestic Subsidiaries (on a consolidated
basis) as a result of the conversion of such entities to become limited liability companies
and their subsequent election to be treated as a multi-member limited liability company for
federal income tax purposes.
Section 2. Covenants. Each of GMAC and ResCap, as applicable, agrees as follows:
(a) ResCap shall not, nor shall it permit any of its Subsidiaries to:
(i) guarantee any indebtedness of any GMAC Affiliate; or
(ii) make any Investment in any GMAC Affiliate.
(b) Except as provided in Section 2(c), ResCap shall not, nor shall it permit any of
its Subsidiaries to, engage in material transactions with or originated through any
GMAC Affiliate unless such transactions are on terms and conditions that are
consistent with those that parties at arm’s-length would agree to and for fair
value; provided that in addition:
(i) all financing arrangements and intercompany debt obligations between ResCap
or any of its Subsidiaries and GMAC Affiliates must be in writing;
(ii) any agreement between ResCap and/or any of its Subsidiaries and any GMAC
Affiliate(s) that involve the payment by ResCap or any of its
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Subsidiaries or by any GMAC Affiliate of more than $25 million per year or the
provisions of goods or services by ResCap and/or any of its Subsidiaries or by any
GMAC Affiliate(s) valued in excess of $25 million per year must be in writing; and
(iii) ResCap and GMAC shall maintain in effect an income tax allocation
agreement that shall provide for two-way sharing payments based on the separately
calculated tax liability or benefit of ResCap.
(c) Notwithstanding the requirements of Section 2(b):
(i) ResCap shall maintain in effect a licensing agreement providing for the use
by ResCap and its Subsidiaries of certain trademarks, trade names and other
intellectual property of GMAC Affiliates, with royalties, if any, calculated on an
arm’s length basis and on such other terms as may be agreed to from time to time
between ResCap and GMAC.
(ii) ResCap shall maintain in effect a services and facilities agreement
providing for the provision of certain services by GMAC to ResCap and its
Subsidiaries and the provision of certain services by ResCap to GMAC Affiliates on
such terms as may be agreed from time to time between ResCap and GMAC.
(iii) ResCap and its Subsidiaries may provide residential mortgage financing
and other services to employees of any GMAC Affiliate on substantially similar terms
as they make to employees of ResCap and its Subsidiaries and the GMAC Affiliates may
provide automobile discounts and other services or discounts to employees of ResCap
or any of its Subsidiaries on substantially similar terms as they make to employees
of any GMAC Affiliate.
(d) (i) Subject to Sections 2(d)(iii) and (iv), ResCap shall not, directly or
indirectly, declare or make any Dividend unless at the time such Dividend is
declared and paid Stockholder’s Equity exceeds $6.5 billion.
(ii) If ResCap is permitted to declare or make any Dividend under Section
2(d)(i) above, the cumulative amount of Dividends paid after June 24, 2005
(excluding any Tax Dividend) shall not exceed 50% of ResCap’s Cumulative Net Income
at the time such Dividend is declared and paid.
(iii) The provisions of this Section 2(d) shall not prohibit the payment of any
Dividend within 60 days after the date of declaration thereof if, as of such date of
declaration, such payment would comply with the restrictions set forth in this
Section 2(d).
(iv) The restrictions set forth in this Section 2(d) shall cease to be
effective upon the occurrence of Stockholder’s Equity exceeding $12.0 billion as of
the end of each of two consecutive fiscal quarters.
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(v) Promptly after the declaration of any Dividend (other than a Tax Dividend),
the Chief Financial Officer or Treasurer of ResCap shall provide a certificate to
any Class Agent or Bank Agent certifying as to ResCap’s compliance with this
Agreement as of such date based on the latest available published financial
statements of ResCap.
(e) ResCap shall at all times (i) maintain, or cause to be maintained, books,
records and financial statements for itself and its Subsidiaries separate from those
of any and all GMAC Affiliates; (ii) maintain, or cause to be maintained, its assets
and the assets of its Subsidiaries in such a manner that it would not be costly or
difficult to segregate, ascertain or identify such assets from those of any and all
GMAC Affiliates; (iii) maintain, or cause to be maintained, bank accounts and cash
management and account receivable collection systems for itself and its Subsidiaries
separate from those of any and all GMAC Affiliates; (iv) maintain, or cause to be
maintained, its own asset investment, risk management and hedging programs and
systems for itself and its Subsidiaries separate from those of any and all GMAC
Affiliates (which may be similar to or the same as those maintained by GMAC); (v)
pay its own liabilities only out of its own funds or promptly reimburse any GMAC
Affiliate for ResCap’s share of any expenses relating to amounts owing under the
Services and Facilities Agreement or master vendor contracts or similar arrangements
paid on behalf of ResCap by such GMAC Affiliate; (vi) use its own stationary,
invoices, checks and business forms; (vii) not commingle, or permit its Subsidiaries
to commingle, the funds and other assets of ResCap and its Subsidiaries with those
of any GMAC Affiliate; (viii) at all times hold itself out, and cause its
Subsidiaries to hold themselves out, to the public as a legal entity separate and
distinct from any and all GMAC Affiliates and undertake to correct any known
misunderstanding regarding its separate identity; and (ix) otherwise take, or cause
to be taken, such reasonable and customary action so that ResCap will maintain its
separate legal existence and identity; provided, however, that the foregoing shall
not prohibit ResCap and its Subsidiaries from using trademarks and names of GMAC
Affiliates, it being understood that such use shall not be violative of or otherwise
inconsistent with Section 2(f)(viii) above.
(f) (i) GMAC shall vote for, and ResCap shall at all times have, at least two
Independent Directors. In the event of a vacancy in the position of an Independent
Director, whether as a result of resignation, removal, or otherwise, GMAC shall, as
promptly as practicable, elect a successor Independent Director. No appointment of
an Independent Director or successor Independent Director, shall be effective until
such Independent Director or successor shall have (y) accepted his or her
appointment as an Independent Director by a written instrument, which may be a
counterpart signature page to this Agreement, and (z) executed a counterpart to this
Agreement. In acting or otherwise voting on matters referred to in Section
2(g)(iii), to the fullest extent permitted by law, the Independent Directors shall
consider only the interest of ResCap, including its creditors. GMAC agrees that it
will not bring any legal action, including actions asserting claims for breach of
fiduciary duty, against any Independent Director for
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acting in accordance with Sections 2(g)(i), 2(g)(iii), 4 or 8, or for any claims
against which such Independent Directors are exculpated pursuant to the terms of
ResCap’s Certificate of Formation and the Limited Liability Company Agreement, as in
effect on the date hereof.
(ii) The chairperson of the Audit Committee of the Board of Directors shall be
an Independent Director.
(iii) Notwithstanding ResCap’s Certificate of Formation and the Limited
Liability Company Agreement or any provision of law that otherwise so empowers
ResCap, holders of ResCap’s Capital Stock, ResCap’s Board of Directors, any officer
of ResCap or any other Person, none of GMAC, ResCap or any officer of ResCap shall
be authorized or empowered, nor shall they permit ResCap to (A) institute
proceedings to have ResCap be adjudicated bankrupt or insolvent, (B) consent to the
institution of bankruptcy or insolvency proceedings against ResCap, (C) file a
petition seeking, or consent to, the appointment of a receiver, assignee, trustee,
sequestrator or other similar official of ResCap or a substantial part of its
assets, (D) make any assignment for the benefit of creditors of ResCap, or (E) take
action in furtherance of any such action, in each case to the fullest extent
permitted by law, in each case if such action is being taken in connection with the
commencement or pendency of a bankruptcy or insolvency proceeding of any GMAC
Affiliate, unless the action is authorized by the prior approval of ResCap’s Board
of Directors (including the approval of a majority of the Independent Directors).
ResCap’s Board of Directors shall not vote on, or authorize the taking of, any of
the foregoing actions unless there is at least one Independent Director then serving
in such capacity. Further, notwithstanding ResCap’s Certificate of Formation and
the Limited Liability Company Agreement or any provision of law that otherwise so
empowers ResCap, holders of ResCap’s Capital Stock or ResCap’s Board of Directors,
ResCap shall not be authorized or empowered to amend Sections 17 or 18 of its
Limited Liability Company Agreement without the approval of the majority of the
Independent Directors.
(iv) ResCap shall maintain or have in effect directors and officers insurance,
errors and omissions insurance and comprehensive general liability insurance
covering its Independent Directors in amounts and on such terms as are usual and
customary for a company similar in size to ResCap and engaged in a business similar
to that engaged in by ResCap.
(g) In accordance with GAAP and the rules and regulations of the Securities and
Exchange Commission, GMAC shall prepare consolidated financial statements that
include ResCap. The supplemental disclosures to such financial statements shall
provide that ResCap’s creditors will be entitled to be satisfied out of ResCap’s
assets prior to ResCap’s equity holders and that GMAC conducts its residential
mortgage operations and related businesses through ResCap.
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(h) GMAC shall otherwise hold out ResCap and ResCap’s Subsidiaries as legal entities
separate and distinct and correct any known misunderstanding about ResCap’s separate
identity from GMAC.
Section 3. Indemnification.
(a) GM will, to the fullest extent permitted by law, indemnify, defend and hold
harmless ResCap and its Subsidiaries from and against any Losses related to GM Indemnifiable
Liabilities.
(b) GMAC will, to the fullest extent permitted by law, indemnify, defend and hold
harmless ResCap and its Subsidiaries from and against any Losses related to GMAC
Indemnifiable Liabilities (other than GM Indemnifiable Liabilities).
(c) ResCap will, to the fullest extent permitted by law, indemnify, defend and hold
harmless the GM Affiliates and the GMAC Affiliates from and against any losses related to
ResCap Indemnifiable Liabilities.
Section 4. Termination. This Agreement shall terminate at such time as ResCap ceases
to be a direct or indirect Subsidiary of GMAC; provided that ResCap, GM and GMAC may agree to
terminate this Agreement earlier if such termination has been approved by a majority of the members
of ResCap’s Board of Directors, including a majority of the Independent Directors. In acting or
otherwise voting on matters referred to in this Section 4, to the fullest extent permitted by law,
the Independent Directors shall consider only the interest of ResCap, including its creditors. To
the extent that such approval is required, ResCap’s Board of Directors shall not vote on, or
authorize, the termination of this Agreement unless there is at least one Independent Director then
serving in such capacity.
Section 5. Notices. All notices and other communications given or made pursuant to
this Agreement shall be in writing and shall be deemed to have been duly given when received at the
addresses or telecopy numbers specified below (or at such other address or telecopy number for a
party as shall be specified by like notice):
If to GM:
General Motors Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Corporate Secretary
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Corporate Secretary
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to GMAC:
GMAC LLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Corporate Secretary
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Corporate Secretary
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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If to ResCap:
Residential Capital, LLC
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attn: General Counsel
Telephone: (000) 000-0000
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attn: General Counsel
Telephone: (000) 000-0000
Section 6. Entire Agreement. This Agreement constitutes the entire agreement of the
parties and supersedes all prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matters hereof.
Section 7. No Guarantee. This Agreement is not, and shall not be construed to be, a
guarantee by GM or GMAC of any indebtedness of ResCap or an agreement by GM or GMAC to contribute
additional capital to ResCap. GMAC’s sole obligation under this Agreement (except as set forth in
Section 3) is to comply with the Independent Director provisions of Section 2(g) and the provisions
of Sections 2(h) and 2(i) and the sole remedy against GMAC for breach of those sections is specific
performance. GM’s sole obligation under this Agreement is as set forth in Section 3. Under no
circumstances shall GM or GMAC be liable for damages for breach of this Agreement (other than
Section 3).
Section 8. Amendment and Waiver. The provisions of this Agreement may not be amended
or waived except by an instrument in writing signed by the parties hereto; provided that no
amendment or waiver that materially and adversely affects the rights of any Class of Rated
Indebtedness shall become effective unless such amendment or waiver has been approved by a majority
of the members of ResCap’s Board of Directors, including a majority of the Independent Directors.
In acting or otherwise voting on matters referred to in this Section 8 that materially and
adversely affect the rights of any Class of Rated Indebtedness, to the fullest extent permitted by
law, the Independent Directors shall consider only the interest of ResCap, including its creditors.
ResCap shall provide to each Class Agent and Bank Agent a copy of any amendment or waiver of this
Agreement. ResCap’s Board of Directors shall not vote on, or authorize, any amendment to this
Agreement unless there is at least one Independent Director then serving in such capacity.
Section 9. Removal of GM as a Party. GM shall be released from all of its obligations
under this Agreement and have no further obligations or rights hereunder with respect to the period
from and after November 30, 2006, but shall remain liable for any liabilities or obligations
related to the period prior to such date.
Section 10. Assignment. This Agreement may not be assigned, except in connection with
a merger or consolidation and except that all or any of the rights of GM hereunder may be assigned
to any other GM Affiliate and any rights of GMAC hereunder may be assigned to any other GMAC
Affiliate. No such assignment shall relieve the assigning party of its obligations hereunder.
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Section 11. Transfer of ResCap to a GM Affiliate. GMAC may not sell, convey or
otherwise transfer a majority ownership interest in ResCap to one or more GM Affiliates in a single
transaction or series of transactions, unless GM and the applicable GM Affiliate(s) enter into an
agreement substantially identical to this Agreement prior to the time that ResCap ceases to be a
direct or indirect Subsidiary of GMAC.
Section 12. Successors and Assigns. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and its respective successors and permitted assigns, and
nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person
any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement;
provided that the holders of Rated Indebtedness and any lenders under any credit facility under
which ResCap is a borrower shall be deemed third party beneficiaries of this Agreement; provided,
further, that the remedies of such holders or lenders hereunder shall be limited to specific
enforcement of the provisions of this Agreement as the same may be amended and waived pursuant to
Section 8 hereof; and, provided, further, that any action to enforce the rights of the holders of
Rated Indebtedness of any Class or any lenders under any credit facility under which ResCap is a
borrower as third party beneficiaries shall be undertaken only by the Class Agent for such Class or
any Bank Agent, as applicable.
Section 13. Delay and Waiver. No failure or delay on the part of any party hereto in
the exercise of any right hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any agreement herein, nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or of any other right. Except as
provided in Section 11, all rights and remedies existing under this Agreement are cumulative to,
and not exclusive of, any other rights or remedies that any party hereto may have.
Section 14. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
Section 15. Counterparts. This Agreement may be executed in counterparts, each of
which when executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| GENERAL MOTORS CORPORATION |
||||
| By: | /s/ Xxxxx Bama | |||
| Name: | Xxxxx Bama | |||
| Title: | Attorney-in-fact | |||
| GMAC LLC |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Attorney-in-fact | |||
| RESIDENTIAL CAPITAL, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
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