Amendment No. 11 to the Loan and Security Agreement



 Exhibit 10.38 
 EXECUTION COPY 
 AMENDMENT NO. 11 TO THE 
 LOAN AND SECURITY AGREEMENT 
 Dated as
of June 30, 2009 
 THIS AMENDMENT NO. 11 TO THE LOAN AND SECURITY AGREEMENT (this “Amendment”) is by and among
Residential Funding Company, LLC, a Delaware limited liability company, as borrower (“RFC”), GMAC Mortgage, LLC, a Delaware limited liability company, as borrower (“GMAC Mortgage” and together with RFC, each a
“Borrower” and collectively, the “Borrowers”), Residential Capital, LLC, a Delaware limited liability company, as guarantor (the “Guarantor”), and GMAC LLC, a Delaware limited liability
company, as lender (the “Lender”). 
 Reference is hereby made to the Loan and Security Agreement, dated as of
April 18, 2008, among the Borrowers and the Lender (as amended and modified through the date hereof, the “Loan and Security Agreement”) and the Guarantee, dated as of April 18, 2008, executed by the Guarantor in favor of
the Lender in connection with the Loan and Security Agreement (as amended and modified through the date hereof, the “Guarantee”). 
 RECITALS 
 1. Each of the parties hereto is a party to the Loan and Security Agreement. 

2. The parties hereto desire to make certain amendments to the Loan and Security Agreement. 
 3. Each of the parties hereto, by its signature hereto, hereby acknowledges, consents and agrees to the matters 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: 
 SECTION 1. Definitions. Capitalized terms used herein and not
otherwise defined in this Amendment shall have the meaning set forth in the Loan and Security Agreement. 
 SECTION 2. Amendments to the
Loan and Security Agreement. Each of the parties hereto hereby consents and agrees that the Loan and Security Agreement shall be amended as of the date hereof as follows: 
 (a) The definition of “Loan Repayment Date” in the Loan and Security Agreement is hereby amended by deleting the phrase
“June 30, 2009” where it appears therein and replacing it with “July 31, 2009”. 
 SECTION 3. Effectiveness.

 (a) This Amendment and the provisions contained herein shall become effective as of the date first above written.

  


					
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 (b) The Borrowers covenant and agree to deliver or cause to be delivered
(i) opinions of counsel to the Borrowers and the Guarantor with respect to the transactions contemplated hereby, which opinions shall be in form and substance satisfactory to the Lender, on or before July 8, 2009 and (ii) such other
documents, including but not limited to the Borrowers’ and Guarantor’s board resolutions approving this Agreement, as the Lender may reasonably request, which documents will be in form and substance satisfactory to the Lender, on or before
July 15, 2009. The Borrowers and the Guarantor acknowledge and agree that the Lender may, upon the failure to deliver any of the items set forth in clauses (i) and (ii) above in the timeframes set forth therein, declare an Event of
Default. 
 SECTION 4. Representations and Warranties of the Borrowers and the Guarantor. The Borrowers and the Guarantor each
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
(as applicable) the Loan and Security Agreement, as amended hereby, or the Guarantee 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 interest 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 Requirements of Law 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 and (as applicable) the Loan and Security Agreement, as amended hereby, and the Guarantee. 

(d) This Amendment has been duly executed and delivered by it. This Amendment and (as applicable) the Loan and Security Agreement, as
amended hereby, and the Guarantee 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. 
  


					
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 (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. 
 (f) The representations and warranties contained in the Guarantee (in the case of the Guarantor) or Section 6.01 of the Loan and
Security Agreement (in the case of the Borrowers), are true and correct as if made on the date hereof, except to the extent they expressly relate to an earlier date. 
 (g) No event has occurred and is continuing that constitutes a Default. 
 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, the Guarantee 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, and as hereinafter amended or restated. 
 (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. Notice. Each party hereto hereby acknowledges timely notice of the execution of this Amendment and of the transactions and amendments contemplated hereby. Each party hereto hereby waives any notice requirement contained in
the Loan and Security Agreement, the Guarantee or the other Facility Documents with respect to the execution of this Amendment. 
 SECTION 7.
Reservation of Rights. The Borrowers and the Guarantor each hereby acknowledge and agree that neither this Amendment nor the making of any Loan by the Lender and the Lender’s consent thereto either before or after the date hereof shall
constitute (w) an approval of the accuracy of all or any portion of any Borrower Funding Request, (x) a waiver or forbearance by the Lender or any of the Facility Documents, except as expressly set forth herein, (y) the acceptance by
the Lender of any course of conduct by either Borrower, the Guarantor or any other Person or (z) an agreement by the Lender to amend any of the Facility Documents without all required approvals. The Borrowers each hereby further acknowledge and
agree that the Lender reserves all 

  


					
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rights, remedies and options under the Facility Documents to require either Borrower to satisfy in all respects the conditions relating to the making of any
Loan under the Loan and Security Agreement and each Borrower and the Guarantor to perform all of its obligations under the Facility Documents which are then due and owing or are susceptible of performance, as the case may be. 
 SECTION 8. Confirmation of the Facility Documents. The Borrowers and the Guarantor each hereby acknowledge and agree that the Loan and Security
Agreement (as herein amended) the Guarantee 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
Borrower ratifies and reaffirms its grant of a security interest in all the Collateral pledged by it, and agrees that such security interest is a first priority perfected security interest securing all Obligations and the Borrowers and the Guarantor
each ratifies and reaffirms all of its other obligations under the Facility Documents executed and delivered by it. 
 SECTION 9.
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 10. GOVERNING LAW; SUBMISSION TO JURISDICTION. 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 OBLIGATION LAW, WHICH BY ITS TERMS APPLIES TO THIS AGREEMENT). EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO
THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY OF MANHATTAN OR IN 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 AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. 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. 
  


					
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 SECTION 11. 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 AMENDMENT. 
 SECTION 12. Entire
Agreement. This Amendment, the Loan and Security 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 13. Captions. The various captions in this Amendment are included for convenience only
and shall not affect the meaning or interpretation of any provision of this Amendment. 
 SECTION 14. Severability. If any provision
of this Amendment, 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 Amendment, 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 Amendment so long as this Amendment, 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 Amendment 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. 
 [signature pages follow] 
  


					
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 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
	as Lender
		
	By:	 	/s/ David C. Walker



			
	Name:	 	David C. Walker
	Title:	 	Business Unit Treasury Executive


  


					
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	 RESIDENTIAL CAPITAL, LLC
 a Delaware
limited liability company
 as Guarantor

		
	By:	 	/s/ John M. Peterson



			
	Name:	 	John M. Peterson
	Title:	 	Assistant Treasurer
	
	 RESIDENTIAL FUNDING COMPANY, LLC
 a
Delaware limited liability company
 as Borrower




			
		
	By:	 	/s/ Melissa White



			
	Name:	 	Melissa White
	Title:	 	Assistant Treasurer
	
	 GMAC MORTGAGE, LLC
 a Delaware limited
liability company
 as Borrower




			
		
	By:	 	/s/ Melissa White



			
	Name:	 	Melissa White
	Title:	 	Assistant Treasurer


  


					
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