PARTIAL RELEASE OF LIABILITY AGREEMENT

This Partial Release of Liability Agreement (the “Agreement”) is dated as of March 17, 2010 (the “Settlement Date”), by and among: (i) Federal Home Loan Mortgage Corporation (“Freddie Mac”); GMAC Mortgage, LLC, a Delaware limited liability company (“GMACM”); and (iii) Residential Funding Company, LLC, a Delaware limited liability company (“RFC”) (the foregoing are hereinafter referred to individually as a “Party”, and collectively as the “Parties”).

WHEREAS, GMACM and RFC (individually, a “GMAC Seller/Servicer” and collectively, the “GMAC Seller/Servicers”) are each: (i) an indirect subsidiary of GMAC Inc., a Delaware corporation (“GMAC Inc.”) (ii) an approved Freddie Mac seller/servicer, and (iii) subject to all the provisions of Freddie Mac’s Single-Family Seller/Servicer Guide (the “Guide”), and all other agreements and mortgage purchase and servicing obligations between Freddie Mac and the applicable GMAC Seller/Servicer, including, but not limited to, a Master Agreement and any Master Commitments thereunder (collectively, as to each of the GMAC Seller/Servicers, the “Purchase Documents”, as more fully described in Exhibit A attached hereto and incorporated herein by this reference); and

WHEREAS, pursuant to a Pledge Agreement dated on or about October 10, 2008, made by GMACM in favor of Freddie Mac (the “Pledge Agreement”). GMACM pledged certain collateral (the “Pledged Collateral”) having a value of not less than Thirty Million U.S. Dollars ($30,000,000) to secure obligations of GMACM to Freddie Mac (the “Pledger Obligations”); and

WHEREAS, GMACM has offered to pay to Freddie Mac the sum of Three Hundred Twenty-five Million U.S. Dollars ($325,000,000) (the “Settlement Amount”), as such amount may be adjusted as provided in Section 5 hereof, in consideration for (a) the release by Freddie Mac of the GMAC Seller/Servicers’ liability for the Released Obligations (as defined below); (b) the release by Freddie Mac of certain of the Pledged Collateral; and (c) the ability of the GMAC Seller/Servicers to continue to be considered to be Freddie Mac-approved seller/servicers; and

WHEREAS, Freddie Mac is willing to accept the Settlement Amount (as the same may be adjusted pursuant to the terms of this Agreement) from GMACM (and other benefits to Freddie Mac under or in connection with this Agreement, including, without limitation, the receipt by Freddie Mac from GMAC Inc. of the hereafter-referenced Guaranty) in satisfaction of such Released Obligations, and in consideration of releasing certain of the Pledged Collateral and allowing the GMAC Seller/Servicers to continue to be considered to be Freddie Mac-approved seller/servicers, pursuant to the terms and condition set forth in this Agreement; and

WHEREAS, Freddie Mac has required that, concurrently with the Parties’ execution of this Agreement, GMAC Inc. enter into a Guaranty (the “Guaranty”) substantially in the form attached hereto and incorporated herein by reference as Attachment 1.

NOW, THEREFORE, in consideration of the agreements and undertakings set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to the conditions set forth herein, the Parties hereto agree as follows:

1. Incorporation of Recitals; Definitions. All of the foregoing Recitals are hereby incorporated herein by reference. As used in this Agreement, the following terms shall have the following meanings:

“Affiliate” means, with respect to any GMAC Seller/Servicer, another person or entity that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common

Control with such GMAC Seller/Servicer. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person or other entity, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“Charter” has the meaning set forth in Section 4(i) below.

“Guaranty” has the meaning set forth in the last “Whereas” clause of the Recitals above.

“GMAC Seller/Servicers” has the meaning set forth in the first “Whereas” clause on the first page of this Agreement.

“Guide” has the meaning set forth in the first “Whereas” clause on the first page of this Agreement.

“Ineligible Mortgage” has the meaning set forth in Section 4(i) below.

“Initial Payment Amount” has the meaning set forth in Section 5 below.

“Loss” has the meaning set forth in Section 4(ii) below.

“Mortgage” means a “Mortgage” sold or serviced pursuant to the Purchase Documents. References in this Agreement to the “sale” or “purchase” of a Mortgage shall include any mortgage purchased by Freddie Mac in exchange for cash or securities.

“Non-Released Obligations” has the meaning set forth in Section 3(i) below.

 

“Payment Amount” has the meaning set forth in Section 5 below.

“Pledge Agreement” has the meaning set forth in the second “Whereas” clause on the first page of this Agreement.

“Pledged Collateral” has the meaning set forth in the second “Whereas” clause on the first page of this Agreement.

“Pledgor Obligations” has the meaning set forth in the second “Whereas” clause on the first page of this Agreement.

“Purchase Documents” shall refer to the agreements and documents listed in the attached Exhibit A, the Pledge Agreement and this Agreement.

“Released Obligations” has the meaning set forth in Section 3(i) below.

“Settlement Amount” has the meaning set forth in the third “Whereas” clause of the Recitals to this Agreement.

“Solvent”, with respect to a GMAC Seller/Servicer, means that the sum of the value of the GMAC Seller/Servicer’s assets, taking into account the fair value of assets accounted for on a fair value basis and the carrying value of other assets, exceeds its indebtedness and other probable liabilities (including contingent liabilities and the fair value of liabilities related to term securitizations reported (in accordance with generally accepted accounting principles, consistently applied) on the GMAC Seller/Servicer’s balance sheet); “fair value” means the value which would be realized in an exchange or series of exchanges between a willing buyer and a willing seller, within a commercially reasonable period of time, neither being under compulsion, each having reasonable knowledge of all relevant facts; and such person is able to realize upon its assets and pay its debts and other liabilities as they mature, assuming an orderly disposition within a period of not more than eighteen (18) months.

“Systemic Fraud” refers to a fraudulent scheme that: (i) involves a group of twenty-five (25) or more Mortgages that were originated and/or are serviced by a GMAC Seller/Servicer and, absent such Systemic Fraud, would be subject to the provisions regarding “Released Obligations” under this Agreement; and (2) had one or more perpetrators (whose acts or omissions were fraudulent) in common for the entire group of such Mortgages. For the purposes of the foregoing, a “perpetrator” is an individual involved in the origination or sale of the Mortgage (including, without limitation, a

borrower, mortgage broker, loan officer, appraiser, title or closing agent, etc.).

All other capitalized terms used in this Agreement and not otherwise defined shall have the respective meanings set forth in the Guide and/or the other Purchase Documents.

 

(i) On the Settlement Date, GMACM shall wire transfer, or cause to be wire transferred, to Freddie Mac the Initial Payment Amount, pursuant to the wire transfer instructions attached hereto and incorporated herein by this reference as Exhibit B.

(ii) Freddie Mac’s obligations and duties under this Agreement are expressly contingent upon: (a) the receipt of the Initial Payment Amount pursuant to subsection (i) immediately above, and (b) the execution and delivery by GMAC Inc. to Freddie Mac of the Guaranty. The Guaranty sets forth GMAC Inc.’s unconditional guaranty of certain obligations of the GMAC Seller/Servicers under this Agreement.

(iii) If fraud was committed in connection with the origination of a Mortgage, but such fraud does not satisfy the requirements of the definition of “Systemic Fraud”, it is understood and agreed by the Parties that the applicable GMAC Seller/Servicer shall exercise commercially reasonable efforts to assist Freddie Mac in exercising any rights or remedies available to Freddie Mac against any applicable third party that may have aided, abetted or participated in the fraudulent activity (including, for example but not by way of limitation, any applicable broker, appraiser, title company, realtor, or other applicable person or entity), Freddie Mac will, upon request, reimburse the applicable GMAC Seller/Servicer for its reasonable out-of-pocket costs and expenses incurred in connection with providing such assistance; provided, however, that (a) the GMAC Seller/Servicer submits reasonable evidence (satisfactory to Freddie Mac in its exercise of its reasonable discretion) of such costs and expenses, and (b) it is understood and agreed that the GMAC Seller/Servicer shall not seek reimbursement of internal, administrative or overhead costs or expenses.

 

(i) Upon receipt by Freddie Mac of the Initial Payment Amount and notwithstanding anything to the contrary in the applicable Purchase Documents, or any other agreement, Freddie Mac shall be deemed to have released each GMAC Seller/Servicer from liability for all “loan-level” (as defined in subsection (d) of this subsection 3(i)) representations, warranties, covenants and/or other obligations made or undertaken by any GMAC Seller/Servicer with respect to the Mortgages purchased (or guaranteed) by Freddie Mac prior to January 1, 2009 (the obligations of the GMAC Seller/Servicers for which liability is released by Freddie Mac pursuant to this Agreement are collectively referred to as the “Released Obligations”). Such Released Obligations shall not, however, include any of the obligations described in subsections (a) through (d) immediately below (such obligations being herein referred to as the “Non-Released Obligations”):

(a) To the extent provided in the Purchase Documents other than this Agreement, and other than with respect to any Mortgage described in Subsection (ii) of Section 2 above:

(1) The repurchase, pursuant to Guide Section 22.18.1, of any Mortgage that is designated as “high-cost,” “high-risk” or a similar designation under applicable law, which Mortgage is secured by Mortgaged Premises located in any of the states listed in Section 22.18.1 of the Guide;

(2) The repurchase of any Mortgage that is part of a Systemic Fraud (as defined herein); and

(3) The repurchase of any Ineligible Mortgage (any such repurchase is subject, however, to any applicable terms of Section 4 below).

(b) Obligations of any GMAC Seller/Servicer (under any applicable Purchase Document) with respect to representations, warranties, covenants and/or other agreements relating to the performance of servicing duties or functions with respect to any Mortgage, but exclusive of any servicer liability for representations, warranties, covenants and/or other obligations pertaining solely to the sale or eligibility of Mortgages for sale, securitization or guaranty to, by or through Freddie Mac (for example, but not by way of limitation, if a Mortgage failed to satisfy Guide requirements for hazard insurance as of the date of sale of such Mortgage by a GMAC Seller/Servicer to Freddie Mac, such GMAC Seller/Servicer would be released under this Agreement from liability for any selling representations and warranties regarding such failure; if, however, such Mortgage was subsequently serviced by a GMAC Seller/Servicer, and such defect regarding hazard insurance was not subsequently remedied in accordance with Guide servicing requirements, the failure of such Mortgage to have hazard insurance in compliance with Guide requirements could become a breach of a servicing representation and warranty, for which such GMAC Seller/Servicer would retain liability to Freddie Mac under this Agreement);

(c) Obligations of any GMAC Seller/Servicer (under any applicable Purchase Document) with respect to Mortgages sold or transferred to Freddie Mac on or after January 1, 2009;

 

(d) Obligations of any GMAC Seller/Servicer (under any applicable Purchase Document), which obligations are not “loan-level” representations, warranties, covenants or agreements (as used herein, “loan-level” representations, warranties, covenants and agreements are representations, warranties, covenants and agreements that relate only to a specific Mortgage, including multiple individual Mortgages, a breach of which would give rise to a repurchase obligation or other remedy under the Guide); each GMAC Seller/Servicer shall remain obligated and liable to Freddie Mac for all non loan-level representations, warranties, covenants and agreements (and Freddie Mac expressly reserves its rights and remedies in connection therewith). For example, non loan-level representations, warranties, covenants and agreements include (but are not limited to) obligations relating to: (i) unacceptable refinancing practices pursuant to Guide Section 8.10(b); (ii) institutional eligibility requirements pursuant to Chapter 4, Volume 1 of the Guide; and (iii) Guide requirements relating to Freddie Mac’s Exclusionary List; (the obligations described immediately above in subsections (a) through (d) of Section 3(i) are considered to be obligations of the respective GMAC Seller/Servicers under this Agreement).

(ii) If Freddie Mac does not receive the Initial Payment Amount as required by Subsection 2(i) above, the GMAC Seller/Servicers shall remain obligated in all respects for the Released Obligations, and Freddie Mac shall have the right to exercise any and all rights and remedies at law, in equity, and/or under the Purchase Documents.

 

(i) Subject to the terms of the other subsections of this Section 4 (to the extent that such other subsections are applicable), each applicable GMAC Seller/Servicer shall, at the request of Freddie Mac, repurchase any Mortgage that is the subject of a breach of a representation or warranty such that (a) at the time Freddie Mac purchased the Mortgage, the Mortgage was

ineligible for purchase under the applicable Purchase Documents, and (b) such violation results in a determination by Freddie Mac (in Freddie Mac’s sole discretion) that such Mortgage was also ineligible for purchase under Freddie Mac’s statutory charter (12 USC Sections 1451 et seq., hereafter called the “Charter”) (any such Mortgage is herein called an “Ineligible Mortgage”). Any Freddie Mac request for such a repurchase of an Ineligible Mortgage will specify the representation, warranty, covenant or agreement (under the applicable Purchase Documents) that has been breached and will specify how that breach caused the Mortgage to be an Ineligible Mortgage. The repurchase price for the repurchase of any Ineligible Mortgage  

shall be determined pursuant to subsections (ii) or (iii) immediately below, as applicable.

(ii) In the event that mortgage insurance (relating to a Mortgage that is subject to this Agreement) was relied upon by Freddie Mac (in connection with Freddie Mac’s purchase or guaranty of such Mortgage) for compliance with the Charter’s provisions relating to the maximum allowable loan to value ratio applicable to such Mortgage, and such insurance is rescinded, denied or otherwise is not available or ceases to be available to Freddie Mac (and such rescission, denial or unavailability is not for a reason that independently would cause the Mortgage to be an Ineligible Mortgage under subsection (iii) below), such rescission, denial or unavailability of mortgage insurance (if not cured by the applicable GMAC Seller/Servicer) shall cause the applicable Mortgage to be an Ineligible Mortgage subject (upon Freddie Mac’s demand) to repurchase pursuant to Section 72.3 of the Guide; provided, however, that with respect to any such Ineligible Mortgage repurchased by a GMAC Seller/Servicer pursuant to this subsection 4(ii), Freddie Mac will reimburse the repurchasing GMAC Seller/Servicer for any actual Loss that such GMAC Seller/Servicer reasonably may incur as a result of loss mitigation with respect to that Mortgage or foreclosure of that Mortgage, so long as any loss mitigation and foreclosure activities are conducted by the applicable GMAC Seller/Servicer in a manner consistent with the Guide. “Loss” for purposes of this Agreement means the excess, if any, of the amount defined in clause (I) below over the amount defined in clause (II) below (all as evidenced by documentation satisfactory to Freddie Mac):

 

(A) The amount paid by the applicable GMAC Seller/Servicer to repurchase the Mortgage;

(B) Interest accrued on the unpaid principal balance of the Mortgage after repurchase, at a rate equal to the rate stated in the mortgage note;

(C) Amounts advanced by the applicable GMAC Seller/Servicer (and not reimbursed to such GMAC Seller/Servicer) to pay taxes, insurance premiums, homeowners association or condominium association dues with respect to the collateral property that is the subject of the Mortgage (the “Mortgaged Property”);

(D) Costs of foreclosure or other acquisition of the Mortgaged Property;

 

(E) Reasonable, out-of-pocket costs of repairing and maintaining the Mortgaged Property;

(F) Reasonable, out-of-pocket costs of disposing of the Mortgaged Property: and

(G) Any other out-of-pocket costs or expenses reasonably incurred in connection with the ownership and/or servicing of such repurchased Mortgage or the Mortgaged Property (including the cost of satisfying any senior liens).

 

(A) Amounts collected from the borrower pursuant to the Mortgage, including but not limited to principal, interest, and prepayment penalties;

(B) Amounts collected from any third party with respect to the Mortgage, including but not limited to proceeds of mortgage insurance, title insurance or any guaranty, and rebates of insurance premiums or taxes;

(C) Any escrows and unapplied funds held by the applicable GMAC Seller/Servicer as servicer, together with interest earned on such funds, which such GMAC Seller/Servicer as servicer is entitled to apply to amounts due under the Mortgage;

(D) Proceeds of the disposition of the Mortgaged Property;

(E) Income, if any, from rental of the Mortgaged Property; and

(F) Proceeds of insurance or condemnation.

If in lieu of liquidating a Mortgage, the applicable GMAC Seller/Servicer wishes to enter into a modification, workout or repayment plan, any such modification must be approved in writing by Freddie Mac.

 

(iii) In the event that mortgage insurance is required (under a GMAC Seller/Servicer’s Purchase Documents) to be provided in connection with a Mortgage, and such mortgage insurance is rescinded, denied or otherwise is not available or ceases to be available to Freddie Mac for any reason that causes such Mortgage to be an Ineligible Mortgage, but not an Ineligible Mortgage that qualifies for treatment under subsection (ii) immediately above, such rescission, denial or unavailability of mortgage insurance (if not cured by the applicable GMAC Seller/Servicer) shall cause the applicable Mortgage to be subject to repurchase at the repurchase price specified in Section 72.3 of the Guide. For example, but not by way of limitation, any rescission, denial or unavailability of mortgage insurance attributable to the fact that a Mortgage is secured by property that, at the time the Mortgage was purchased (or guaranteed) by Freddie Mac, was primarily commercial rather than residential in nature would cause the applicable Mortgage to be an Ineligible Mortgage subject (upon Freddie Mac’s demand) to repurchase at the repurchase price specified in Section 72.3 of the Guide. In the event that a Mortgage is an Ineligible Mortgage for a reason that is unrelated to mortgage insurance (e.g., such Mortgage is secured by a property that is primarily commercial rather than residential in nature), such Mortgage is subject (upon Freddie Mac’s demand) to repurchase at the repurchase price specified in Section 72.3 of the Guide.

(iv) Upon Freddie Mac’s request, each of the GMAC Seller/Servicers covenants: (1) to cooperate fully with, and to assist, Freddie Mac in any attempt by Freddie Mac to contest any action by a private mortgage insurer, which action results in the rescission, denial or unavailability of mortgage insurance with respect to a Mortgage (irrespective of whether there has been a breach by the applicable GMAC Seller/Servicer of any representation, warranty, covenant or agreement related to such Mortgage), and (2) that the efforts undertaken by each GMAC Seller/Servicer in connection with (1) immediately above will be no less than the efforts made by such GMAC Seller/Servicer in contesting the rescission, denial or unavailability of mortgage insurance in connection with mortgage loans held or serviced for its own account (and upon request from Freddie Mac, such GMAC Seller/Servicer shall provide reasonable evidence of such efforts). Freddie Mac will, upon request, reimburse the applicable GMAC Seller/Servicer for its reasonable out-of-pocket costs and expenses incurred in connection with providing such assistance; provided, however, that (a) the GMAC Seller/Servicer submits reasonable evidence (satisfactory to Freddie Mac in its exercise of its reasonable discretion) of such costs and expenses, and (b) it is understood and agreed that the

GMAC Seller/Servicer shall not seek reimbursement of internal, administrative or overhead costs or expenses.

 

 

(i) The Parties agree that Freddie Mac, at any time prior to the execution of this Agreement, may liquidate in a commercially reasonable manner and apply any Collateral under the Pledge Agreement to any and all Pledger Obligations (as “Collateral” and “Pledgor” are defined in the Pledge Agreement), and nothing in this Agreement alters or diminishes Freddie Mac’s rights or remedies under the Pledge Agreement; provided, however, that on the Settlement Date, the Settlement Amount shall be reduced by an amount equal to the outstanding balance of such Collateral as of the Settlement Date, and Freddie Mac will be entitled to direct the escrow agent to forward such proceeds to Freddie Mac (and Freddie Mac shall be entitled to retain such proceeds).

(ii) The amount payable on the Settlement Date pursuant to Section 2(i) above (herein called the “Initial Payment Amount”) is the amount determined pursuant to the following calculation: (a) the Settlement Amount, minus (b) $12,400,570 (which is the aggregate amount of payments made to Freddie Mac from January 7, 2010, through March 5, 2010, by the GMAC Seller/Servicers in connection with repurchase or indemnification obligations under their respective Purchase Documents), plus $2,743,045 (which is the aggregate amount of payments requested, on or after January 7, 2010, and through and including March 5, 2010. by Freddie Mac to be made by the GMAC Seller/Servicers in connection with the GMAC Seller/Servicers’ respective repurchase or indemnification obligations under their respective Purchase Documents), minus (if applicable) (c) any adjustment required to be made pursuant to the terms of subsection 5(i) immediately hereinabove.

(iii) The Parties hereby agree that upon final liquidation or other final disposition of all Mortgages sold or transferred to Freddie Mac by the GMAC Seller/Servicers before January 1, 2009, and repurchased by the applicable GMAC Seller/Servicer at Freddie Mac’s request on or after January 7, 2010, but prior to the Settlement Date, Freddie Mac will pay to the repurchasing GMAC Seller/Servicers any applicable Loss with respect to such Mortgage, provided, however, that (a) the applicable GMAC Seller/Servicer provides to each Borrower on a repurchased Mortgage the opportunity to modify such Borrower’s Mortgage in accordance with terms consistent with the terms that are otherwise available for other Freddie Mac Borrowers for similarly-situated transactions, and (b) the applicable Mortgage was not repurchased for a reason that would qualify it as a Non-Released Obligation hereunder (subject to the foregoing, a complete listing of such Mortgages that may be eligible for payment of Losses is attached hereto and incorporated herein by reference as Exhibit C). For the purpose of this provision, “final liquidation or other final disposition” means an REO sale, or a short sale in lieu of foreclosure, which short sale resulted in a positive net present value (NPV), as determined with tools and terms provided by Freddie Mac for similarly-situated Borrowers. The applicable GMAC Seller/Servicer will provide all information that Freddie Mac reasonably requests concerning the details of such final liquidation or other final disposition and the related proceeds, and all final liquidations or other final dispositions must be concluded by February 28, 2011.

 

(i) Each GMAC Seller/Servicer hereby waives: (a) any defense based on any claim that the its obligations under this Agreement exceed or are more burdensome than the obligations to Freddie Mac of the other GMAC Seller/Servicer; (b) any benefit of and any right to participate in any security from any Affiliate of such GMAC Seller/Servicer, which security is now or

hereafter held by Freddie Mac; and (c) to the fullest extent permitted by law, any and all other defenses to its obligations under this Agreement, which defenses may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties.

(ii) The obligations of each GMAC Seller/Servicer hereunder and under the other Purchase Documents to which such GMAC Seller/Servicer is a signatory are those of a primary obligor, and not merely as surety, and are independent of the obligations of any Affiliate of such GMAC Seller/Servicer, and a separate action may be brought against such GMAC Seller/Servicer to enforce this Agreement and any other Purchase Document to which such GMAC Seller/Servicer is a signatory, whether or not any Affiliate of such GMAC Seller/Servicer is joined as a party.

(iii) Notwithstanding the foregoing terms of this Section 6 or anything to the contrary elsewhere in this Agreement, it is understood and agreed that the terms of subsections (i) and (ii) of this Section 6 shall not be deemed to alter or amend any of a GMAC Seller/Servicer’s rights or obligations expressly set forth in any other Purchase Document.

7. Advice of Counsel. Each Party to this Agreement has reviewed the Agreement independently and with counsel, is fully informed of the terms and effect of this Agreement, and has not relied in any way on any inducement, representation, or advice of any other Party hereto in deciding to enter into the Agreement, except as herein contained.

8. Representations and Warranties of Parties. Each of the Parties hereby represents and warrants as follows: (i) it has entered into this Agreement voluntarily and not as a result of coercion or duress; and (ii) all approvals and authorizations required by law or by bylaw or resolution for the execution or enforceability of this Agreement by such Party have been obtained. Each of the GMAC Seller/Servicers represents and warrants that it: (a) is not entering into the transactions contemplated hereby with the intent of hindering, delaying or defrauding any of its respective current or future creditor or creditors; (b) the Released Obligations attributable to such GMAC Seller/Servicer (and the other benefits to such GMAC Seller/Servicer under this Agreement) constitute the reasonably equivalent value of and the fair consideration for the obligations of such GMAC Seller/Servicer under this Agreement; and (iii) is (and after giving effect to the transactions contemplated by this Agreement, will be) Solvent.

9. Governing Law. This Agreement shall be construed in accordance with, and the obligations and rights of the parties hereunder shall be determined in accordance with the laws of the United States. Insofar as there may be no applicable precedent, and insofar as to do so would not frustrate any provision of this Agreement or the transactions governed thereby, the laws of the State of New York shall be deemed reflective of the laws of the United States.

10. Construction of Agreement. In the event of a dispute regarding the meaning of any language contained in this Agreement, the Parties agree that the same should be accorded a reasonable construction and should not be construed more strongly against one Party than against any other Party by reason of such Party’s or its counsel’s role in the drafting of this Agreement.

11. Further Assurances. The Parties shall, from time to time, execute, acknowledge and deliver such supplements to this Agreement and such further instruments as may reasonably be required for carrying out the intention of or facilitating the performance of this Agreement, including but not limited to any amendments to agreements between any GMAC Seller/Servicer and Freddie Mac, which amendments any Party may deem necessary to conform those agreements to the terms of this Agreement.

12. Non-Admission. The resolution of this matter is voluntary and does not constitute an admission of negligence, breach of contract, or any other basis for liability by any of the Parties, or an admission of the existence of any facts upon which liability could be based.

13. Confidentiality. Except as otherwise expressly agreed in writing by the other Parties hereto, no

Party to this Agreement shall issue or cause to be issued any announcement, press release, or other statement, or shall voluntarily disclose information concerning this Agreement to the press or the general public. The foregoing shall not be deemed to prevent a Party from disclosing this Agreement or the terms hereof: (i) in response to a court order, subpoena, or other demand or request made in accordance with applicable law by a governmental or quasi-governmental body having jurisdiction over such Party (including, without limitation, the Federal Housing Finance Agency), or as otherwise required by applicable law (including, without limitation, applicable Federal securities law), or as that Party may deem reasonably necessary as part of its filings of SEC Forms 8-K, 10-Q or 10-K and related disclosures to investors (each Party will provide an advance copy to the other of appropriate excerpts of any such disclosure relating to this Agreement); or (ii) to such Party’s subsidiaries, affiliates, officers, agents, representatives, attorneys, accountants, auditors, successors, and assigns, and to qualified bidders or investors in connection with the sale of such Party or its assets, who have a need to know.

 

15. Entire Agreement. This Agreement and the other documents referenced herein constitute the entire agreement between the Parties hereto with respect to the subject matter contained herein. This Agreement may not be amended or modified orally.

16. Notices. All notices that are required or are permitted hereunder shall be in writing and shall be: (i) hand- delivered, (ii) mailed by certified or registered U.S. Mail, return receipt requested, first class postage prepaid, or (iii) telecopied to the Parties as follows:

 

or to such other address or telecopier number as any Party shall designate by written notice to the other Parties in the manner provided herein.

17. Counterparts; Effective Date. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall be deemed signed and effective on the date that all of the Parties exchange facsimile copies of the executed signature pages, which shall be supplemented by original

signatures within seven (7) calendar days after such date.

 

 

(i) All terms and conditions of this Agreement shall be binding upon and inure to the benefit of successors and assigns of the Parties.

(ii) Nothing expressed or referred to in this Agreement is intended or shall be construed to give any person or entity other than the Parties, their respective successors and assigns, any legal or equitable right, remedy or claim under or with respect to this Agreement, or any provisions contained herein, it being the intention of the Parties hereto that this Agreement, the obligations and statements of responsibilities hereunder, and all other conditions and provisions hereof are for the sole and exclusive benefit of the Parties, their respective successors and assigns, and for the benefit of no other person or entity.

20. Captions. The captions assigned to provisions of this Agreement are for convenience only and shall be disregarded in construing this Agreement.

IN WITNESS WHEREOF, intending to be legally bound hereby, the Parties have executed this Agreement as of the day and year first above written.

 

 

With respect to each Mortgage for which any GMAC Seller/Servicer was a Freddie Mac seller or servicer, the “Purchase Documents” consist of the following:

Volumes I and II of the Freddie Mac Single-Family Seller/Servicer Guide (the “Guide”), including any Freddie Mac Bulletins amending the Guide.

With respect to each Mortgage, the Master Agreement and/or Master Commitment Contract entered into between Freddie Mac and the seller of the Mortgage, under which the Mortgage was delivered and sold to Freddie Mac, as well as the Freddie Mac Forms 1, 2, 3, 4, 5 and 9 and any applicable purchase contract confirmations issued in connection with the sale of the Mortgage.

Any agreement pursuant to which the seller of a Mortgage provided a guaranty or any form of credit enhancement in connection with the sale of the Mortgage to Freddie Mac.

Any additional terms applicable to the sale of Mortgages, such as written waivers. amendments or supplements to the Guide made available to the seller of a Mortgage through electronic or other means including sources designated by Freddie Mac for distribution of the Guide.

Any Form 960 – Agreement for Concurrent Transfer of Servicing or Form 981 - Agreement for Subsequent Transfer of Servicing applicable to the Mortgages with respect to which any GMAC Seller/Servicer is the transferee servicer.

 

Freddie Mac’s wire transfer instructions are as follows:

JP Morgan

New York, New York

ABA # 021000021

Account # 9102447498

Attn: Loss Recovery Proceeds

 

 

 

 

 

 

 

 

THIS GUARANTY (the “Guaranty”), dated this      day of                      , 2010, is made by GMAC Inc. (“Guarantor”), a Delaware corporation, in favor of Federal Home Loan Mortgage Corporation (“Freddie Mac”).

WHEREAS, GMAC Mortgage, LLC¹ and Residential Funding Company, LLC² (each, a “Seller/Servicer”, and collectively, the “Seller/Servicers”) are each: (i) an indirect subsidiary or an affiliate of Guarantor, (ii) an approved Freddie Mac seller/servicer, and (iii) subject to all the provisions of Freddie Mac’s Single-Family Seller/Servicer Guide (the “Guide”), and all other agreements and mortgage purchase and servicing obligations between Freddie Mac and the respective Seller/Servicer, including, but not limited to, a Master Agreement and any Master Commitments thereunder (collectively, as to each Seller/Servicer, the “Purchase Documents”); and

WHEREAS, Freddie Mac has determined that the Seller/Servicers’ warranty obligations are disproportionate to their respective capital and/or assets and that the Seller/Servicers’ respective financial status could materially and adversely affect Freddie Mac (the “Bases for Disqualification”); and

WHEREAS, concurrently with Guarantor’s execution and delivery of this Guaranty, Freddie Mac and the Seller/Servicers are entering into that certain Partial Release of Liability Agreement of even date herewith (the “Partial Release Agreement”, a true and correct copy of which is attached hereto and incorporated herein by reference as Exhibit A), whereby (among other things) Freddie Mac will receive a cash payment in consideration for the release of certain duties and obligations of the Seller/Servicers under the Purchase Documents; and

WHEREAS, as additional consideration for Freddie Mac’s entry into the Partial Release Agreement, and for Freddie Mac’s willingness to continue to recognize the Seller/Servicers as approved Freddie Mac seller/servicers, Freddie Mac has required this Guaranty from the Guarantor.

WHEREAS, to induce Freddie Mac to (i) enter into the Partial Release Agreement and (ii) continue to recognize the Seller/Servicers as approved Freddie Mac seller/servicers, Guarantor is willing to give certain financial accommodations to Freddie Mac.

 

NOW THEREFORE, in consideration of the premises and to induce Freddie Mac to continue its approval of the Seller/Servicers as seller/servicers, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as follows:

SECTION 1. Incorporation of Recitals; Defined Terms; Guaranty.

(a) The recitals set forth above are hereby incorporated into this Guaranty by reference.

(b) Capitalized terms used herein and not otherwise defined have the meanings set forth in the Partial Release Agreement.

(c) Effective immediately, the Guarantor hereby absolutely and unconditionally (except as explicitly stated in Section 3(a) below) guarantees to Freddie Mac the performance of the Non- Released Obligations (but only those Non-Released Obligations) under the Partial Release Agreement, which Non-Released Obligations are described in Sections 3(i)(a)(1), 3(i)(a)(2), and/or 4(iii) of the Partial Release Agreement (collectively, the “Obligations”). If a Seller/Servicer defaults in the performance of any of the Obligations, the Guarantor shall be, upon demand by Freddie Mac, responsible for the performance of the Obligations and shall pay to Freddie Mac all amounts owed to Freddie Mac, including any and all damages, costs and/or expenses (including, without limitation, reasonable attorneys’ fees and costs) that Freddie Mac may incur in connection with a Seller/Servicer’s default. This remedy is in addition to, and not in lieu of, any remedies otherwise available to Freddie Mac with respect to the Guarantor or a Seller/Servicer under the Purchase Documents.

SECTION 2. Guaranty Absolute. The Guarantor guarantees that the Obligations will be performed in strict accordance with the terms of the Purchase Documents regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting the terms or rights of Freddie Mac with respect thereto. Except as set forth in Section 3(a) below, the Guarantor’s liability under this Guaranty shall be absolute and unconditional irrespective of:

(a) any lack of validity or enforceability of any one or more of the Purchase Documents or any other agreement or instrument relating thereto;

(b) any change in the time, manner or place of performance of, or in any other term of, the Obligations, or any other amendment or waiver of the terms of the Purchase Documents;

(c) any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of, or consent to, or departure from any other guaranty, for the Obligations; or

(d) any circumstance that might otherwise constitute a defense to or a discharge of the Guarantor in respect of the Obligations or this Guaranty.

 

SECTION 3. Guaranty Continuing. This Guaranty is a continuing guaranty and shall:

 

(i) Freddie Mac has determined (in its sole and absolute discretion) and notified Guarantor in writing that the Bases for Disqualification have been remediated and that the Seller/Servicers comply with all requirements of the Purchase Documents and are otherwise capable of discharging the Obligations and all of their other duties to Freddie Mac; or

(ii) the Seller/Servicers have each, with Freddie Mac’s prior written approval pursuant to the Guide, transferred all Freddie Mac servicing to a new entity;

 

 

SECTION 4. Waiver by Guarantor. The Guarantor hereby waives promptness, diligence, notice of acceptance and any other notice with respect to the Obligations and this Guaranty and any requirement that Freddie Mac exhaust any right or take any action against a Seller/Servicer or any other person or entity or any collateral. In addition, if the Guarantor shall pay any amount to Freddie Mac to fulfill any undertaking of the Guarantor hereunder, the Guarantor agrees that it will be deemed to have waived any right of subrogation to the rights of Freddie Mac against a Seller/Servicer that would have been available to the

Guarantor in the absence of such waiver.

SECTION 5. Representations, Warranties and Covenants. The Guarantor hereby represents and warrants to, and covenants with, Freddie Mac as follows:

(a) The Guarantor is duly organized, validly existing and in good standing under the laws of the State of Delaware.

(b) The execution, delivery and performance by the Guarantor of this Guaranty are within the Guarantor’s corporate powers, have been duly authorized by all necessary corporate action and do not contravene (i) the Guarantor’s charter or by-laws or (ii) any law or any contractual restriction binding on or affecting the Guarantor.

(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Guarantor of this Guaranty.

 

(d) This Guaranty is the legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally.

SECTION 6. Financial Statements. Annually, or whenever requested by Freddie Mac, the Guarantor shall provide Freddie Mac with copies of the Guarantor’s audited financial statements and/or any other documents relating to its financial condition or regulatory status.

SECTION 7. Amendments. No amendment of this Guaranty shall be effective unless it is in writing, signed by Freddie Mac, and expressly states that it amends this Guaranty.

SECTION 8. Notices. All notices and other communications provided for hereunder shall be in writing and, if to the Guarantor, Attn: General Counsel, faxed to: 313 ###-###-####, or mailed or delivered to: 200 Renaissance Drive, Detroit, Ml 48265, and if to Freddie Mac, Attn: Director - Counterparty Credit Risk Management, faxed to 571 ###-###-####, or mailed or delivered to 1551 Park Run Drive, McLean, VA 22102 (with a copy to Legal Division, Freddie Mac, Attn: Vice President and Deputy General Counsel, Mortgage Law, faxed to 703 ###-###-####, or mailed or delivered to 8200 Jones Branch Drive, MS 210, McLean, VA 22102), or as to each party at such other address as it shall designate in a written notice to each other party complying with delivery with the terms of this Section. All such notices and other communications shall, when mailed, faxed (if promptly thereafter confirmed in writing) or delivered, respectively, be effective when deposited in the mails or faxed or when actually delivered, respectively, addressed as aforesaid.

SECTION 9. No Waiver; Remedies. No failure of Freddie Mac to exercise or to delay in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude Freddie Mac from any other or further exercise thereof or the exercise of any other right. The remedies provided herein are cumulative and not exclusive of any remedies provided by law or otherwise. This Guaranty shall not create upon Freddie Mac any obligation to waive any eligibility or other requirement relating to a Seller/Servicer.

SECTION 10. Reinstatement. If any payment received by Freddie Mac from a Seller/Servicer in respect of the Obligations is subsequently recovered from or repaid by Freddie Mac as the result of any bankruptcy, dissolution, reorganization, arrangement, or liquidation proceedings (or proceedings similar thereto), the Guarantor’s payment obligation hereunder shall continue to be effective as though such payment had not been made. The provisions of this Section 10 of this Guaranty shall survive termination of this Guaranty.

SECTION 11. Consent. The Guarantor hereby consents that from time to time, and without further notice to or consent of the Guarantor, Freddie Mac may take any or all of the following actions without affecting the

liability of the Guarantor hereunder: (i) extend, renew, modify, compromise, settle, or release any or all of the Obligations; (ii) release or compromise any liability of any party or parties with respect to the Obligations; (iii) release any security interest in any collateral securing any of the Obligations, or exchange, surrender, or otherwise deal with such collateral as Freddie Mac may determine; or (iv) exercise or refrain from exercising any right or remedy of Freddie Mac.

SECTION 12. No Third Party Beneficiary. The Guarantor and Freddie Mac do not intend the benefits of this Guaranty to inure to the benefit of any third party, and notwithstanding any term, condition or provision hereof or in any of the applicable Purchase Documents, no third party, including (without limitation) any Seller/Servicer, shall have any right or entitlement under this Guaranty.

SECTION 13. Governing Law. This Guaranty shall be governed by, and construed in accordance with, the governing laws under the Purchase Documents, as provided in the Guide.

IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and delivered by its duly authorized officer.