Execution
Copy



     

    


     

    THIRD
AMENDMENT

     

    Dated as
of January 30, 2009

     

    by and
among

     

    


     

    PASSIVE
ASSET TRANSACTIONS, LLC,

    as
Borrower,

     

    RFC ASSET
HOLDINGS II, LLC,

    as
Borrower,

     

    RESIDENTIAL
FUNDING COMPANY, LLC,

    as
Guarantor,

     

    


     

    GMAC
MORTGAGE, LLC,

    as
Guarantor,

     

    RESIDENTIAL
CAPITAL, LLC

    as
Guarantor,

     

    


     

    GMAC
LLC,

     

    as
Initial Lender and as Lender Agent

     

    and

     

    Certain
Other Financial Institutions and Persons from

    time to
time party hereto as Lenders

     

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    This
THIRD AMENDMENT (this “Agreement”) dated as
of January 30, 2009 (the “Amendment Effective
Date”), is by and 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 Funding Company, LLC, a Delaware limited liability company (“RFC”), Residential
Capital, LLC, a Delaware limited liability company (“ResCap”), 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 (the “Initial Lender”), the
financial institutions and other Persons that are or may from time to time
become parties hereto as Lenders (together with the Initial Lender and their
respective successors and assigns, each a “Lender” and
collectively, the “Lenders”) and GMAC
LLC, a Delaware limited liability company, as agent for the Lenders (in such
capacity together with its successors and assigns in such capacity, the “Lender
Agent”).

     

    Reference
is hereby made to the Loan Agreement (the “Loan Agreement”)
dated as of November 20, 2008 among the Borrowers, the Guarantors, the Lenders
and the Lender Agent, as amended by the First Amendment dated as of December 22,
2008, and the Second Amendment dated as of December 29, 2008, each among the
Borrowers, the Guarantors, the Lenders and the Lender Agent.

     

    RECITALS

     

    1.           Each
of the parties hereto is a party to the Loan Agreement.

     

    2.           The
parties hereto desire to make certain amendments to the Loan
Agreement.

     

    3.           Each
of the parties hereto, by its signature hereto, hereby acknowledges, consents
and agrees to the changes set forth herein.

     

    4.           In
consideration of the premises and mutual agreements herein contained and for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:

     

    ARTICLE
I

    DEFINED
TERMS

     

    SECTION
1.1  Capitalized terms used herein and not otherwise defined shall
have the meaning set forth in the Loan Agreement.  

     

    ARTICLE
II

    AMENDMENTS
TO THE AFFECTED DOCUMENTS

     

    SECTION
2.1  Amendments to
Definitions.

     

    (a)           The
definition of “Loan Repayment Date” in Schedule 1.01 to the
Loan Agreement is hereby amended and restated in full to read as
follows:

     

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    “Loan Repayment Date”
means the earliest to occur of (a) March 31, 2009; (b) the date that the Loans
are declared to be due and payable in accordance with Section 8.02(a); (c)
the date of the occurrence of an Event of Default described in Section 8.01(d); or
(d) the occurrence of a Citibank MSR Disposition Event; provided, however, that the
Loan Repayment Date may be extended or accelerated by the mutual agreement of
each Lender and the Borrowers.

     

    (b)           The
definition of “GMAC Bank Disposition Event” in Schedule 1.01 to the
Loan Agreement is hereby deleted in its entirety.

     

     

    ARTICLE
III

    CONDITIONS
TO EFFECTIVENESS

     

    SECTION
3.1  Amendment Effective
Date.  This Agreement and the provisions contained herein shall
become effective as of the Amendment Effective Date provided that the Lender
Agent  shall have, in form and substance satisfactory to them,
received the following:

     

    (a)           Agreement.  An
original counterpart (or counterparts) of this Agreement executed by the parties
hereto or other evidence satisfactory to the Lender Agent of the execution,
delivery and effectiveness of this Agreement.

     

    (b)           Other.  Such
other opinions and documents as the Lender Agent may reasonably request, which
opinions and documents will be in form and substance satisfactory to the Lender
Agent.

     

    ARTICLE
IV

    ACKNOWLEDGEMENTS,
CONSENTS, NOTICE, CONFIRMATION AND REPRESENTATIONS AND WARRANTIES

     

    SECTION
4.1  Notice.  Each
party hereto hereby acknowledges timely notice of the execution of this
Agreement and of the transactions and amendments contemplated
hereby.  Each party hereto hereby waives any notice requirement
contained in the Loan Agreement or the Facility Documents with respect to the
execution of this Agreement.

     

    SECTION
4.2  Confirmation of the Facility
Documents.  The Borrowers, the Guarantors and the Obligors each
hereby acknowledge and agree that, except as herein expressly amended, the Loan
Agreement and each other Facility Document are each ratified and confirmed in
all respects and shall remain in full force and effect in accordance with their
respective  terms.  Without limiting the foregoing, each
Obligor reaffirms its grant of a security interest in all the Collateral pledged
by it, and agrees that such security interest secures all
Obligations.  As of the Amendment Effective Date, each reference in
the Loan Agreement to “this Agreement” shall mean the Loan Agreement as amended
by this Agreement, and as hereinafter amended or restated.

     

     

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    SECTION
4.3  Representations and
Warranties.  By its signature hereto, each Borrower, each
Guarantor and each other Obligor hereby represents and warrants that, before and
after giving effect to this Agreement, as follows:

     

    (a)           Its
representations and warranties set forth in the Facility Documents are true and
correct as if made on the date hereof, except to the extent they expressly
relate to an earlier date; and

     

    (b)           After
giving effect to this Agreement, no Default has occurred and is
continuing.

     

    ARTICLE
V

    MISCELLANEOUS

     

    SECTION
5.1  GOVERNING
LAW.  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES (BUT WITH REFERENCE TO SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, WHICH BY ITS TERMS APPLIES TO THIS AGREEMENT).

     

    SECTION
5.2  Execution in
Counterparts.  This Agreement 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 (whether such
counterpart is originally executed or an electronic copy of an original and each
party hereto expressly waives its rights to receive originally executed
documents) and all of which when taken together shall constitute one and the
same agreement.

     

    SECTION
5.3  WAIVER
OF JURY TRIAL.  EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.

     

    SECTION
5.4  Entire
Agreement.  This Agreement, the Loan Agreement and the other
Facility Documents embody the entire agreement and understanding of the parties
hereto and supersede any and all prior agreements, arrangements and
understanding relating to the matters provided for herein.

     

    SECTION
5.5  Captions.  The
various captions in this Agreement are included for convenience only and shall
not affect the meaning or interpretation of any provision of this
Agreement.

    
       

    

    SECTION
5.6  Severability.  If
any provision of this Agreement, or the application thereof to any party or any
circumstance, is held to be unenforceable, invalid or illegal (in whole or in
part) for any reason (in any jurisdiction), the remaining terms of this
Agreement, modified by the deletion of the unenforceable invalid or illegal
portion (in any relevant jurisdiction), will continue in full force and effect,
and such unenforceability, invalidity or illegality will not otherwise affect
the enforceability, validity or legality of the remaining terms of this
Agreement so long as this Agreement, as so modified, continues to express,
without material change, the original intentions of the parties as to the
subject matter hereof and the deletion of such portion of this Agreement will
not substantially impair the respective expectations of the parties or the
practical realization of the benefits that would otherwise be conferred upon the
parties.

     

     

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    SECTION
5.7  SUBMISSION TO
JURISDICTION.  EACH PARTY HERETO HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.  EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.  EACH PARTY HERETO HEREBY CONSENTS TO PROCESS BEING SERVED IN
ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, OR ANY DOCUMENT
DELIVERED PURSUANT HERETO BY THE MAILING OF A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO ITS RESPECTIVE
ADDRESS SPECIFIED AT THE TIME FOR NOTICES UNDER THIS AGREEMENT OR TO ANY OTHER
ADDRESS OF WHICH IT SHALL HAVE GIVEN WRITTEN OR ELECTRONIC NOTICE TO THE OTHER
PARTIES.  THE FOREGOING SHALL NOT LIMIT THE ABILITY OF ANY PARTY
HERETO TO BRING SUIT IN THE COURTS OF ANY JURISDICTION.

     

    [REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]

     

     

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

     

    RFC ASSET
HOLDINGS II, LLC,

    as
Borrower

     

    By: /s/ Melissa
White                     

    Name:
Melissa White

    Title:
Assistant Treasurer

     

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    PASSIVE
ASSET TRANSACTIONS, LLC,

    as
Borrower

     

    By: /s/ Melissa
White                     

    Name:
Melissa White

    Title:
Assistant Treasurer

    
       

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    RESIDENTIAL
FUNDING COMPANY, LLC,

    as
Guarantor

     

    By: /s/ Melissa
White                     

    Name:
Melissa White

    Title:
Assistant Treasurer

     

     

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    GMAC
MORTGAGE, LLC,

    as
Guarantor

     

    By: /s/ Melissa
White                     

    Name:
Melissa White

    Title:
Assistant Treasurer

     

     

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    RESIDENTIAL
CAPITAL, LLC,

    as
Guarantor

     

    By: /s/ Melissa
White                     

    Name:
Melissa White

    Title:
Assistant Treasurer

     

    
       

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    GMAC
LLC,

    as Lender
Agent and Initial Lender

     

    By: /s/ David C.
Walker                         

    Name:
David C. Walker

    Title:
Group Vice President and Treasurer

     

    


    GMAC
LLC,

    as Lender
Agent and Initial Lender under the Senior Debt Loan Agreement

     

    By: /s/ David C.
Walker                         

    Name:
David C. Walker

    Title:
Group Vice President and Treasurer

     

    
       

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