exv10w6






Exhibit 10.6




AMENDMENT NO. 4 TO THE

LOAN AND SECURITY AGREEMENT




Dated as July 25, 2008




     AMENDMENT NO. 4 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
(“GMACM” and together with RFC, each a “Borrower” and collectively, the
“Borrowers”) 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 Borrowers and the Lender have entered into an Amendment No. 1 to the Loan and Security
Agreement dated May 21, 2008.



     (3) The Borrowers and the Lender have entered into an Amendment No. 2 to the Loan and Security
Agreement dated May 22, 2008.



     (4) The Borrowers and the Lender have entered into an Amendment No. 3 to the Loan and Security
Agreement dated June 2, 2008.



     (5) The Borrowers and the Lender have agreed to amend the Loan and Security Agreement as
hereinafter set forth.



     SECTION 1. Amendments to the Loan and Security Agreement. The Loan and Security
Agreement is, effective as of the date hereof and subject to the satisfaction of the conditions
precedent set forth in Section 2 hereof, hereby amended as follows:



     (a) The first sentence of Section 7.01 is hereby amended and
restated to read as follows:




“Each Borrower (and for purposes of Section 7.01(i)(iii) only, Residential Capital,
LLC (“ResCap”)) covenants and agrees with the Lender that, so long as any Loan is
outstanding and until all Obligations have been paid in full:”



 









 





     (b) Section 7.01(i)(iii) is hereby amended and restated to read as follows:




“concurrently with the delivery of the financial statements referred to in
Subsections 7.01(i)(i) and (ii), Compliance Certificates, in the
forms attached hereto as Exhibit 7.01 and 7.01(a) executed by a Responsible
Officer.”



     (c) Section 8.01(j) is amended and restated in full to read as
follows:




“The failure or ResCap to comply with the financial covenants contained in the GMAC
Revolver.”



     (d) Section 11.02 is amended and restated in full to read as
follows:




“Notices, Etc. All notices and other communications provided for hereunder
shall, unless otherwise stated herein, be in writing (including facsimile
communication and electronic mail (including, without limitation, an intralinks site
)) and shall be personally delivered or sent by certified mail or overnight air
courier, postage prepaid, by facsimile or by electronic mail, to the intended party
at the address, facsimile number or e-mail address of such party set forth opposite
its name on Schedule 11.02 or at such other address or facsimile number as shall be
designated by such party in a written notice to the other parties hereto. All such
notices and communications shall be effective, (i) if personally delivered, when
received, (ii) if sent by overnight air courier, the next Business Day after
delivery to the related air courier service, if delivery is guaranteed as of the
next Business Day, (iii) if sent by certified mail, three Business Days after having
been deposited in the mail, postage prepaid, and (iv) if transmitted by facsimile,
when sent, receipt confirmed by telephone or electronic means, if sent during
business hours (if sent after business hours, then on the next Business Day).”



     (e) Exhibit 7.01 is hereby amended and restated in the form
attached hereto as Exhibit A.



     (f) A new Exhibit 7.01(a) is hereby attached to the Loan and
Security Agreement in the form attached hereto as Exhibit B.



     (g) The definition of “Compliance Certificate” contained in
Schedule I is hereby amended and restated to read as follows:




“Compliance Certificate” means a certificate in form acceptable to the
Lender substantially in the form of Exhibit 7.01 or Exhibit 7.01(a)
hereto.



 









 





     (h) The definition of “364-Day Agreement” is hereby deleted and the following
definition is substituted therefore:




“GMAC Revolver” means that certain the $3,500,000,000 loan agreement dated
as of June 4, 2008, by and among Borrowers, ResCap and other affiliates of Borrowers
party thereto as guarantors, various other parties signatory thereto as obligors,
Lender as initial lender and lender agent and Wells Fargo Bank, N.A., in its
capacity as First Priority Collateral Agent, as such agreement may be amended,
supplemented or modified from time to time, and any successor agreement or other
agreement replacing such agreement in its entirely.



     (i) The definition of “Responsible Officer” is amended as follows:




“Responsible Officer” means (a) with respect to each Borrower or ResCap, the
chief executive officer, president, chief financial officer, treasurer, assistant
vice president, assistant treasurer, secretary or assistant secretary of such
Borrower or ResCap, or any other officer having substantially the same authority and
responsibility; provided, that with respect specifically to the obligations of each
Borrower and ResCap set forth in Section 7.01(i) hereof, only the chief financial
officer, treasurer, assistant treasurer, or comptroller of such Borrower or ResCap
shall be deemed to be a Responsible Officer; and (b) with respect to the Lender, a
lending officer charged with responsibility for the day to day management of the
relationship of such institution with such Borrower.



     SECTION 2. Conditions of Effectiveness. This Amendment shall become effective as of
the date first above written when, and only when, the Lender shall have received:



     (a) A copy of this Amendment, duly executed by the parties hereto; and



     (b) A certificate signed by a Responsible Officer of each Borrower stating that:




	 	(i)	 	The representations and warranties contained in
Section 4 hereof are correct on and as of the date of such
certificate as though made on and as of such date; and
	 
	 	(ii)	 	No event has occurred and is continuing that constitutes a Default.





     SECTION 3. Reaffirmation of Security Interest. Each Borrower hereby reaffirms and
hereby grants a lien on the Collateral (as such term is defined in the Loan and Security Agreement)
in favor of the Lender subject to all of the terms set forth in the Loan and Security Agreement, as
amended.



     SECTION 4. Representations and Warranties of the Borrower. Each Borrower 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 the Loan and Security
Agreement, as amended hereby, and the consummation of the transactions contemplated hereby and
thereby will not conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice, lapse of time or both) a default under its organizational
documents, or any material indenture, loan agreement, mortgage, deed of trust, or other material
agreement or instrument to which it is a party or by which it is otherwise bound, or result in the
creation or imposition of any Lien upon any of its properties pursuant to the terms of any such
indenture, loan agreement, mortgage, deed of trust, or other agreement or instrument, other than
this Agreement, or violate any Legal Requirement applicable to it of any Governmental Authority
having jurisdiction over it or any of its properties if such violation, individually, or in the
aggregate, is reasonably likely to have a Material Adverse Effect.



     (c) No approval, consent, exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority or any other Person is necessary or required in connection
with execution, delivery or performance by it of this Amendment or the Loan and Security Agreement,
as amended hereby.



     (d) This Amendment has been duly executed and delivered by it. This Amendment and the Loan
and Security Agreement, as amended hereby, constitute, its legal, valid and binding obligations
enforceable against it in accordance with its respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement
of creditors’ rights generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.



     (e) There are no proceedings or investigations pending, or to the best of its knowledge
threatened in writing, against it before any court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality (i) asserting the invalidity of any Facility
Document, (ii) seeking to prevent the consummation of any of the transactions contemplated by any
Facility Document, or (iii) seeking any determination or ruling that could reasonably be expected
to have a Material Adverse Effect.



     SECTION 5. Reference to and Effect on the Loan Documents. (a) On and after the
effectiveness of this Amendment, each reference in the Loan and Security Agreement to “this
Agreement,” “hereunder,” “hereof” or words of like import referring to the Loan and Security
Agreement, and each reference in the Note and the other Facility Documents to “the Loan and
Security Agreement,” “thereunder,” “thereof” or words of like import referring to the Loan and
Security Agreement, shall mean and be a reference to the Loan and Security Agreement, as amended by
this Amendment.



     (b) The Loan and Security Agreement, the Guarantee, the Note and the other Facility Documents,
as specifically amended by this Amendment, are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed.



 









 





     (c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the Lender under any of
Facility Documents, nor constitute a waiver of any provision of any of the Facility Documents.



     SECTION 6. Execution in Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute but one
and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment
by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.



     SECTION 7.  Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.



 









 





     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 
	 	GMAC LLC

a Delaware limited liability company

 	 
	 	By:  	/s/ David Walker
 	 
	 	 	Name:  	David Walker 	 
	 	 	Title:  	Group VP and Treasurer 	 
	 



	 	 	 	 	 
	 	RESIDENTIAL CAPITAL, LLC

a Delaware limited liability company

 	 
	 	By:  	/s/ Elizabeth T. Kelly
 	 
	 	 	Name:  	Elizabeth T. Kelly 	 
	 	 	Title:  	Asst. Treasurer 	 
	 



	 	 	 	 	 
	 	RESIDENTIAL FUNDING COMPANY, LLC

a Delaware limited liability company

 	 
	 	By:  	/s/ Elizabeth T. Kelly
 	 
	 	 	Name:  	Elizabeth T. Kelly 	 
	 	 	Title:  	Asst. Treasurer 	 
	 



	 	 	 	 	 
	 	GMAC MORTGAGE, LLC

a Delaware limited liability company

 	 
	 	By:  	/s/ Elizabeth T. Kelly
 	 
	 	 	Name:  	Elizabeth T. Kelly 	 
	 	 	Title:  	Asst. Treasurer 	 



 









 






	 	 	 	 	 



EXHIBIT A




(see attached)




 









 





EXHIBIT 7.01




FORM OF COMPLIANCE CERTIFICATE




GMAC LLC

     as Lender

200 Renaissance Center

Detroit, MI 48265





     Re:                      Reporting Date



     Reference is made to the Loan and Security Agreement (the “Loan Agreement”) dated as
of April 18, 2008 as now in effect by and between Residential Funding Company, LLC (“RFC”),
and GMAC Mortgage, LLC (“GMAC Mortgage” and together with RFC, the “Borrowers”), and GMAC
LLC (the “Lender”). Terms defined in the Loan Agreement and not otherwise defined herein
are used herein as defined in the Loan Agreement.



     Pursuant to Section 7.01(i) of the Loan Agreement, the Borrowers are furnishing to you
herewith (or have most recently furnished to you) the financial statements of each Borrower for the
fiscal period ended as of the reporting date shown above (the “Reporting Date”). Such
financial statements have been prepared in accordance with generally accepted accounting principles
and present fairly, in all material respects, the financial position of each Borrower covered
thereby at the date thereof and the results of its operations for the period covered thereby,
subject in the case of interim statements only to normal year-end audit adjustments and the
addition of footnotes.



     Each of the undersigned Responsible Officers of the Borrowers has caused the provisions of the
Loan Agreement to be reviewed and certifies to the Lender that the undersigned has no knowledge of
any Default or Event of Default.



     The statements made herein shall be deemed to be representations and warranties made in a
document for the purposes of Section 6.01(j) of the Loan Agreement.



 









 





     IN WITNESS WHEREOF, the undersigned Responsible Officer of each Borrower has set [his/her]
hand this [•], 200[•].



	 	 	 	 	 
	 	RESIDENTIAL FUNDING COMPANY, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	GMAC MORTGAGE, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT 7.01(a)




FORM OF COMPLIANCE CERTIFICATE




GMAC LLC,

     as Lender

200 Renaissance Center

Detroit, MI 48265




Re:                      Reporting Date





     Reference is made to the Loan and Security Agreement (the “Loan Agreement”) dated as
of April 18, 2008 as now in effect by and between Residential Funding Company, LLC (“RFC”),
and GMAC Mortgage, LLC (“GMAC Mortgage” and together with RFC, the “Borrowers”),
and GMAC LLC (the “Lender”). Terms defined in the Loan Agreement and not otherwise defined
herein are used herein as defined in the Loan Agreement.



     The undersigned Responsible Officer of Residential Capital, LLC (“ResCap”) certifies
to the Lender that ResCap is in compliance with the GMAC Revolver financial covenants referenced in
Section 8.01(j) of the Loan Agreement as demonstrated on Exhibits A and B attached hereto;



     Attached as Exhibit A hereto are calculations demonstrating ResCap’s compliance with
the Consolidated Tangible Net Worth Covenant.



     Attached as Exhibit B hereto is a statement of the aggregate Consolidated Liquidity of
ResCap as of [•].



     IN WITNESS WHEREOF, the undersigned Responsible Officer of ResCap has set [his/her] hand this
[•], 200[•].



	 	 	 	 	 	 	 
	 	 	RESIDENTIAL CAPITAL, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






 









 






Exhibit A




 









 








Exhibit B