EXHIBIT 10.1
OPERATING AGREEMENT
AGREEMENT, dated as of June 24, 2005, by and between GENERAL MOTORS
CORPORATION, a Delaware corporation ("GM"), GENERAL MOTORS ACCEPTANCE
CORPORATION ("GMAC"), a Delaware corporation and a wholly-owned Subsidiary of
GM, and RESIDENTIAL CAPITAL CORPORATION ("RESCAP"), a Delaware corporation and
an indirect wholly-owned Subsidiary of GMAC.
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 any and all shares, interests,
participations or other equivalents (however designated) of corporate
stock, including any preferred stock.
"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 the date of this Agreement 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.
"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)).
"EXCLUDED PREPAYMENTS" shall have the meaning set forth in Section
2(e).
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"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.
"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.
"GMAC SUBORDINATED DEBT" means any indebtedness owed by ResCap or any
of its Subsidiaries to any GMAC Affiliate that is subordinated to Rated
Indebtedness in right of payment of principal, interest and premium, if
any.
"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
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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.
"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.
"PREPAYMENT" means any payment of principal in respect of GMAC
Subordinated Debt prior to the stated maturity thereof.
"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 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.
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 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 on a
royalty-free basis and on such 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 GM and 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 among ResCap, GM 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
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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 the
date of this Agreement shall not exceed:
(a) 50% of ResCap's Cumulative Net Income at the time such
Dividend is declared and paid minus
(b) to the extent a positive number, the cumulative amount of
any Prepayments made under section 2(e)(i) below, other than Excluded
Prepayments, minus 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.
(vi) Promptly after the declaration of any 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) Without limiting the applicable provisions in the relevant
underlying loan documents, ResCap shall not make any Prepayment of any GMAC
Subordinated Debt, except from (i) ResCap's Cumulative Net Income at the
time such Prepayment is made, less any Dividends previously paid after the
date of this Agreement and any Prepayments of GMAC Subordinated Debt made
after the date of this Agreement (to the extent that such Prepayment was
made from ResCap's Cumulative Net Income), other than Excluded Prepayments,
(ii) the net proceeds to ResCap from the issuance of Capital Stock or
indebtedness to any Person (other than a GMAC Affiliate) that is
subordinated in right of payment of principal, interest and premium, if
any, to Rated Indebtedness, or (iii) 50% of the net proceeds to Rescap from
the issuance or incurrence of indebtedness to any Person (other than a GMAC
Affiliate) that ranks pari passu with Rated Indebtedness in right of
payment of principal, interest and premium, if any. Notwithstanding the
foregoing, ResCap may make Prepayments of GMAC Subordinated Debt of up to a
cumulative amount of $500 million after the date of this Agreement
("Excluded Prepayments").
(f) 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;
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(vii) conduct or cause to be conducted the business operations of itself
and its Subsidiaries by its or their own employees and officers, who will
not also be employees or officers of any GMAC Affiliates; (viii) not
commingle, or permit its Subsidiaries to commingle, the funds and other
assets of ResCap and its Subsidiaries with those of any GMAC Affiliate;
(ix) 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 (x) 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)(ix) above.
(g) (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 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
Incorporation, 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 Incorporation or
Bylaws or any provision of law that otherwise so empowers ResCap,
ResCap's stockholders, 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 Incorporation or Bylaws or any
provision of law that otherwise so empowers ResCap, ResCap's
stockholders or ResCap's Board of Directors, ResCap shall not be
authorized or empowered to amend Article VI of its Bylaws 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.
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(h) 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.
(i) 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
If to GMAC:
General Motors Acceptance Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Corporate Secretary
If to ResCap:
Residential Capital Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attn: General Counsel
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.
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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. 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.
SECTION 10. 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 11. 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 12. 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 13. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York.
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SECTION 14. 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.
* * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
GENERAL MOTORS CORPORATION
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
GENERAL MOTORS ACCEPTANCE
CORPORATION
By: /s/ XXXXXX XXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
RESIDENTIAL CAPITAL CORPORATION
By: /s/ XXXXX X. XXXXX
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer and
Director
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The independent directors have, in reliance on the benefits conferred upon
them under this Operating Agreement, and the obligations placed on the
Corporation, accepted their appointment as Independent Directors of the
Corporation, as evidenced by their signature below.
INDEPENDENT DIRECTORS:
By: /s/ XXXXXX XXXXX
------------------------------------
By: /s/ XXXXXX X. XXXXXX
------------------------------------
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