Participation Agreement - GMAC LLC, General Motors Corp. and Cerberus ResCap Financing LLC
EXECUTION COPY
PARTICIPATION AGREEMENT
dated as of June 4, 2008
between
GMAC LLC, a Delaware limited liability company,
as Seller,
General Motors Corporation, a Delaware corporation,
as a Participant
and
Cerberus ResCap Financing LLC, a Delaware limited liability company,
as a Participant
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TABLE OF CONTENTS
Page
5206697 08048307
Section 1. Definitions................................................1
Section 2. Sale of Participation......................................5
Section 3. Unconditional Obligation...................................6
Section 4. Additional Payments........................................6
Section 5. Maximum Participant Commitment.............................6
Section 6. Representations and Warranties.............................7
Section 7. Payments to Participant....................................7
Section 8. Subordination of Participations............................8
Section 9. Administration.............................................9
Section 10. Non-Recourse; Independent Investigation...................10
Section 11. Expenses; Indemnity.......................................11
Section 12. Taxes.....................................................12
Section 13. Reimbursement.............................................12
Section 14. Set-off...................................................12
Section 15. Nature of Interest........................................13
Section 16. Miscellaneous.............................................13
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PARTICIPATION AGREEMENT
This PARTICIPATION AGREEMENT (this "Agreement") dated as of June 4, 2008
is between GMAC LLC, a Delaware limited liability company (the "Seller"),
General Motors Corporation, a Delaware corporation ("General Motors"), and
Cerberus ResCap Financing LLC, a Delaware limited liability company ("Cerberus
Fund", and together with General Motors, each a "Participant" and collectively,
the "Participants").
RECITALS
WHEREAS, pursuant to that certain Loan Agreement dated as of June 4, 2008
(the "Loan Agreement") by and among Residential Funding Company, LLC, a Delaware
limited liability company ("RFC"), GMAC Mortgage, LLC, a Delaware limited
liability company ("GMAC Mortgage" and together with RFC, each a "Borrower" and
collectively, the "Borrowers"), and Residential Capital, LLC, GMAC Residential
Holding Company, LLC, GMAC-RFC Holding Company, LLC, and Homecomings Financial,
LLC, as guarantors, the Seller, as the Initial Lender, and GMAC LLC, as the
Lender Agent, and other Persons from time to time party thereto, the Seller has
agreed to purchase certain existing term loans made to Residential Capital, LLC
and provide a revolving credit facility to the Borrowers; and
WHEREAS, to induce the Seller to enter into the Loan Agreement, each of
the Participants, who are the indirect owners of the Borrowers and who will
obtain benefits from the making of the Loans by the Seller to the Borrowers, has
agreed to purchase a participation in the Loans under the Loan Agreement upon
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, and intending to be legally bound, the Parties hereto agree as
follows:
Section 1. Definitions.
(a) Capitalized terms used herein and not otherwise defined herein shall
have the meanings specified in the Loan Agreement. In addition, as used herein,
the following capitalized terms shall have the following respective meanings:
"Additional Price" means, with respect to a Future Loan, either 51%, in
the case of Cerberus Fund, or 49%, in the case of General Motors, of the lesser
of (a) the amount of such Future Loan or (b) the amount by which the Outstanding
Aggregate Loan Amount, after giving effect to such Future Loan, would exceed the
$2,750,000,000; provided, however, that for the purposes of Section 4(b), each
Participant's Additional Price shall be the unused portion of such Participant's
Maximum Participant Commitment.
"Agreement" has the meaning given to it in the Preamble.
"Borrower" has the meaning given to it in the Recitals.
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"Business Day" means any day other than (a) a Saturday or Sunday, or (b) a
day on which banking institutions in the States of New York, Minnesota or
Pennsylvania are required or authorized by law to be closed.
"Cerberus Fund" has the meaning given to it in the first Preamble.
"Funded Participation Amount" for a Participant means, on any day, an
amount equal to (a) the Initial Price paid by such Participant, plus (b) the
aggregate of the Additional Prices paid by such Participant on or prior to such
day pursuant to Section 4 to purchase its Participation in the Loans, minus (c)
the aggregate amount of principal payments with respect to the Participation on
or prior to such day pursuant to Section 7, Section 8 or Section 14.
"Future Loan" means each Loan made pursuant to the Loan Agreement after
the Initial Funding Date.
"General Motors" has the meaning given to it in the Preamble.
"GMAC Mortgage" has the meaning given to it in the Recitals.
"Initial Funding Condition" means that the Outstanding Aggregate Loan
Amount exceeds $2,750,000,000.
"Initial Funding Date" means June 16, 2008 or such other Business Day
specified by the Seller upon not less than one Business Day's prior written
notice to the Participants; provided that the day so specified shall not be
earlier than June 16, 2008 unless an Event of Default shall have occurred;
provided, further, that, unless an Event of Default has occurred, at least one
Business Day prior to the Initial Funding Date, the Seller shall represent in
writing that the Initial Funding Condition will be met on the Initial Funding
Date after giving effect to Loans to be made on such date;
"Initial Price" means (a) with respect to Cerberus Fund, an amount equal
to 51% of the amount by which the Outstanding Aggregate Loan Amount on the
Initial Funding Date, plus the amount of any Loans to be made on such date,
exceeds $2,750,000,000; provided that if an Event of Default has occurred prior
to the Initial Funding Date, such Initial Price shall equal Cerberus Fund's
Maximum Participant Commitment, and (b) with respect to General Motors, an
amount equal to 49% of the amount by which the Outstanding Aggregate Loan Amount
on the Initial Funding Date plus the amount of any Loans to be made on such
date, exceeds $2,750,000,00; provided that if an Event of Default has occurred
prior to the Initial Funding Date, such Initial Price shall equal General
Motors' Maximum Participant Commitment. For the avoidance of doubt, the Initial
Price with respect to each of Cerberus Fund and General Motors shall not exceed
their respective Maximum Participant Commitment.
"Lender" means a "Lender" as defined in the Loan Agreement.
"Loan Agreement" has the meaning given to it in the Recitals.
"Loans" means the "Loans" as defined in the Loan Agreement, and includes
in each case the Notes evidencing such Loans.
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"Maximum Participant Commitment" means, as of any date: (a) with respect
to Cerberus Fund, an amount equal to $382,500,000; and (b), with respect to
General Motors, an amount equal to $367,500,000.
"Obligors" means, collectively, the Borrowers and each guarantor, pledgor,
subordinator or other Person directly or indirectly obligated in respect of the
Loans.
"Overnight LIBOR" means, for any day, the London interbank offered rate
for overnight deposits in U.S. Dollars appearing on Reuters Screen LIBOR01 at
approximately 11:00 a.m., London time, on such day, as reported by Bloomberg
Financial Markets Commodities News, or such page as may replace Reuters Page
LIBOR01, as determined by the Seller. In the event that such rate is not
available on any day which is a business day in London for any reason, then
Overnight LIBOR with respect to such day shall be determined by the Seller in a
manner then customary in the market for determining such rate. For a day that is
not a business day in London, the Overnight Rate shall be the rate determined as
of the immediately preceding day for which such rate is reported.
"Participant" has the meaning given to it in the Preamble.
"Participant's Account" means, with respect to a Participant, the account
specified for such Participant on Schedule 2, or such other account as such
Participant may designate in writing to the Seller from time to time.
"Participant's Interest Payment" means, with respect to each Interest
Period (or portion thereof) during which a Participant's Funded Participation
Amount is greater than zero (including any Interest Period after the occurrence
and during the continuation of an Event of Bankruptcy), an amount equal to the
sum of (a) interest accrued on such Funded Participation Amount at a rate per
annum equal to either (i) the LIBOR Rate for such Interest Period plus the
Applicable Margin or (ii) for any applicable portion of such Interest Period
that the Borrowers were required under the Facility Documents to pay interest at
the Default Rate, the Default Rate for such Interest Period, plus (b) such
Participant's Relative Percentage of interest accrued on the Seller's Percentage
Interest of the Outstanding Aggregate Loan Amount at a rate per annum equal to
(i) the Applicable Margin minus 100 basis points plus (ii) for any portion of
such Interest Period that the Borrowers were required under the Facility
Documents to pay interest at the Default Rate, 127 basis points, provided that
in the case of any Interest Period after the occurrence and during the
continuation of an Event of Bankruptcy, the "Participant's Interest Payment" for
such Interest Period shall be the product of (a) such amount as calculated
above, multiplied by (b) a percentage, the numerator of which is the amount of
interest payments allowed on the Loans for such Interest Period and the
denominator of which is the amount of interest payments that are due and payable
under the Loan Agreement for such Interest Period.
"Participant's Share" means, with respect to a Participant and any Loan or
payment, an amount equal to such Participant's Percentage Interest of the
principal amount of such Loan or the amount of such payment, as applicable.
"Participation" has the meaning given to it in Section 2.
"Party" means Cerberus Fund, General Motors or the Seller, as applicable.
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"Percentage Interest" means, at any time with respect to a Participant,
the number, expressed as a decimal (expressed to three decimal places), equal to
the fraction, (a) the numerator of which is such Participant's Funded
Participation Amount, and (b) the denominator of which is the Outstanding
Aggregate Loan Amount.
"Person" means any individual, corporation, estate, partnership, limited
liability company, limited liability partnership, joint venture, association,
joint-stock company, business trust, trust, unincorporated organization,
government or any agency or political subdivision thereof, or other entity of a
similar nature.
"Purchase Price" means either the Initial Price or an Additional Price, as
the context requires.
"Relative Percentage" means, at any time with respect to a Participant,
the number, expressed as a decimal (expressed to three decimal places), equal
to the fraction, (a) the numerator of which is such Participant's Funded
Participation Amount, and (b) the denominator of which is the sum of the Funded
Participation Amounts of both Participants.
"RFC" has the meaning given to it in the Recitals.
"Seller" has the meaning given to it in the Preamble.
"Seller's Account" means the account specified for the Seller on Schedule
2, or such other account as the Seller may designate in writing to the
Participants from time to time.
"Seller's Interest Payment" means (a) all interest accrued on the Loans
prior to the Initial Funding Date and (b) for each Interest Period or portion
thereof on and after the Initial Funding Date (including any Interest Period
after the occurrence and during the continuation of an Event of Bankruptcy),
interest accrued on the Seller's Percentage Interest of the Outstanding
Aggregate Loan Amount at a rate per annum equal to (i) the LIBOR Rate for such
Interest Period plus 100 basis points plus (ii) for any portion of such Interest
Period that the Borrowers were required under the Facility Documents to pay
interest at the Default Rate, 73 basis points, provided that in the case of any
Interest Period after the occurrence and during the continuation of an Event of
Bankruptcy, the "Seller's Interest Payment" for such Interest Period shall be
the product of (a) such amount as calculated above, multiplied by (b) a
percentage, the numerator of which is the amount of interest payments allowed on
the Loans for such Interest Period and the denominator of which is the amount of
interest payments that are due and payable under the Loan Agreement for such
Interest Period.
"Seller's Percentage Interest" means, at any time, (a) 100% minus (b) the
sum of the Percentage Interest for Cerberus Fund plus the Percentage Interest
for General Motors.
"Senior Interests" shall mean (a) the Seller's Percentage Interest of the
Outstanding Aggregate Loan Amount, (b) the Seller's Interest Payment, and (c)
any fees or other amounts due and payable now or in the future by the Borrowers
to the Seller pursuant to the Facility Documents (other than the portion of the
Upfront Fee payable to the Participants pursuant to Section 2(b)), together with
all costs and out-of-pocket expenses reasonably incurred by or on behalf of the
Seller in connection with the Facility Documents and the transactions
contemplated thereby which have not been paid or reimbursed by the Borrowers.
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"Subject Interest" has the meaning given to it in Section 14.
"Withholding Tax" has the meaning given to it in Section 12.
(b) The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
This Agreement includes the Schedules attached hereto. Unless otherwise stated
in this Agreement, in the computation of a period of time from a specified date
to a later specified date, the word "from" means "from and including" and the
words "to" and "until" each means "to but excluding". The words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation". The word "will" shall be construed to have the same meaning and
effect as the word "shall". Unless the context requires otherwise (i) any
definition of or reference to any agreement, instrument or other document herein
or any statute, law, order, rule or regulation shall be construed as referring
to such agreement, instrument, other document, statute, law, order, rule or
regulation as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (ii) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (iii) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, and
(iv) all references herein to Sections and Schedules shall be construed to refer
to Sections of, and Schedules to, this Agreement. Section, Schedule and other
headings and captions are included solely for convenience of reference and are
not intended to affect the interpretation of any provisions of this Agreement.
Section 2. Sale of Participation. (a) Subject to the terms and conditions
set forth in this Agreement, the Seller does hereby sell to each Participant,
without recourse to or representation or warranty whatsoever by the Seller
(except to the extent expressly provided herein), and each Participant does
hereby acquire and assume, a participation (each, a "Participation") consisting
of an undivided interest in the Seller's right, title and interest in, to and
under the following: (i) each Loan, whether now existing or hereafter made, to
the extent of such Participant's Percentage Interest, (ii) all accrued interest
on the Loans, to the extent of such Participant's Interest Payment, (iii) the
share of the Upfront Fee payable to such Participant pursuant to Section 2(b),
(iv) the amounts payable and obligations owed under Sections 2.07(b), 2.07(c)
and 3.02 of the Loan Agreement on account of increased costs, reductions in rate
of return, and taxes incurred by such Participant in connection with the
Participation, and (v) each of the following, to the extent of the Participation
in the foregoing interests described in clauses (i) through (iv): (A) the
Facility Documents, including the Guarantee; (B) all Collateral and other
security or credit support of any kind; (C) all cash, securities, or other
property, and all setoffs and recoupments, received, applied, or effected by or
for the account of the Seller under the Loans and other extensions of credit
under the Facility Documents (whether for principal, interest, fees,
reimbursement obligations, or otherwise) from and after the Initial Funding
Date, including all distributions obtained by or through redemption,
consummation of a plan of reorganization, restructuring, liquidation, or
otherwise of either Borrower, any Obligor or the Facility Documents, and all
cash, securities, interest, dividends, and other property that may be exchanged
for, or distributed or collected with respect to, any of the foregoing but
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excluding reimbursement for Seller's enforcement or Collateral maintenance
expenses; (D) all claims, suits, causes of action and any other right of the
Seller (in its capacity as a Lender), whether known or unknown, against the
Borrowers, any other Obligor or any of their respective affiliates, agents,
representatives, contractors, advisors or any other Person arising under or in
connection with the Facility Documents or that is in any way based on or related
to any of the foregoing or the loan transactions governed thereby, including
contract claims, tort claims, statutory claims and all other claims at law or in
equity related to the rights and obligations sold and purchased pursuant to this
Agreement; and (E) all proceeds of the foregoing. As consideration for such
participation, each Participant will pay to the Seller the applicable Initial
Price on the Initial Funding Date and will fund the amounts required to be
funded by it under Section 4 as and when due.
(b). On the Closing Date, the Seller shall remit from the upfront fee
received by the Seller pursuant to the Loan Agreement $7,140,000 to Cerberus
Fund and $6,860,000 to General Motors.
Section 3. Unconditional Obligation.
Subject to the other terms and conditions expressly set forth in this
Agreement, each Participant's obligation to pay the Initial Price to the Seller
on the Initial Funding Date and all amounts required to be paid by it under
Sections 4 and 14 shall be unconditional. Each Participant hereby expressly
acknowledges that its obligation to fund all amounts required to be paid by it
hereunder shall be unaffected by the existence of any Default or Event of
Default under the Loan Agreement.
Section 4. Additional Payments.
(a) The Seller shall notify each Participant promptly of its receipt of a
notice from the Borrowers requesting a Loan, specifying therein the amount and
the date of such Loan and, on and after the Initial Funding Date, the Initial
Price or Additional Price, as the case may be, required to be paid by such
Participant to purchase its Participation in such Loan. If, after giving effect
to a Future Loan, the Outstanding Aggregate Loan Amount will exceed
$2,750,000,000, then, not later than 10:00 a.m. (New York City time) on the date
specified for such Loan, each Participant shall pay to the Seller, by deposit
into the Seller's Account, the Purchase Price of its Participation in such Loan,
in like currency and immediately available funds, without set-off, counterclaim
or deduction of any kind. The effectiveness of the sale of a Participation in a
Loan to a Participant shall be subject to receipt by the Seller of the Purchase
Price from such Participant as provided herein.
(b) If an Event of Default shall occur and be continuing at a time when a
Participant's Funded Participation Amount is less than its Maximum Participation
Commitment, such Participant shall pay to the Seller, within one Business Day
following written demand from the Seller, an amount equal to the unused portion
of such Maximum Participation Commitment, as the Initial Price or Additional
Price, as the case may, for its Participation.
Section 5. Maximum Participant Commitment. A Participant shall not be
required to make any payment of Purchase Price to the extent that after giving
effect to such payment, such Participant's Funded Participation Amount would
exceed the Maximum Participant Commitment for such Participant on such date.
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Section 6. Representations and Warranties. (a) Each Party represents and
warrants to the other Parties (as of the date hereof and as of the Initial
Funding Date) that:
(i) such Party (A) is duly organized and validly existing under the
laws of its jurisdiction of organization or incorporation, (B) is in
good standing under such laws and (C) has full power and authority
to execute, deliver and perform its obligations under this
Agreement;
(ii) such Party's execution, delivery, and performance of this
Agreement have not resulted, and will not result, in a breach of any
provision of (A) such Party's organizational documents, (B) any
statute, law, writ, order, rule or regulation of any governmental
authority applicable to such Party, (C) any judgment, injunction,
decree or determination applicable to such Party or (D) any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument by which such Party may be bound or to which any of the
assets of such Party are subject; and
(iii) (A) this Agreement (1) has been duly and validly authorized,
executed, and delivered by such Party and (2) constitutes the legal,
valid, and binding obligation of such Party, enforceable against
such Party in accordance with its terms, except to the extent that
such enforceability may be limited by bankruptcy, insolvency, or
other similar laws of general applicability affecting the
enforcement of creditors' rights generally and by the court's
discretion in relation to equitable remedies; and (B) no notice to,
registration with, consent or approval of, or any other action by,
any relevant governmental authority or other Person is or will be
required for such Party to execute, deliver, and perform its
obligations under this Agreement.
(b) The Seller represents and warrants to each Participant (as of the
date hereof and as of each date that it sells a Participation to such
Participant hereunder) that the Seller is the sole legal and beneficial owner
of, and has good title to, the Loans free and clear of any lien or similar
encumbrance.
Section 7. Payments to Participant.
(a) Subject to Section 8, upon receipt by the Seller of (i) any payment of
principal of any Loan, the Seller shall remit to each Participant its
Participant's Share of such payment (determined as of the date that such payment
is remitted to the Participant) and (ii) any payment of accrued interest on any
Loan, the Seller shall remit to each Participant its Participant's Interest
Payment for the applicable Interest Period; provided that interest on any Loan
accrued prior to the Initial Funding Date shall be for the sole account of the
Seller.
(b) At a Participant's request and to the extent contemplated by the Loan
Agreement, the Seller shall make demand on the Borrowers for payment on account
of increased costs, break funding payments or expenses incurred by such
Participant in connection with the Participation and shall promptly remit to
such Participant all such payments as and when received. In addition, so long as
(i) a Participant has notified the Borrowers of its Participation and (ii) such
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Participant complies with its obligations under Section 12 and any similar
provisions in the Loan Agreement, the Seller shall promptly remit to such
Participant an amount equal to any payment received by the Seller from the
Borrowers under the Loan Agreement on account of taxes incurred by such
Participant in connection with the Participation. To the extent required by the
Loan Agreement, the Participant hereby agrees, for the benefit of the Borrowers,
to comply with the provisions of Section 3.02 of the Loan Agreement.
(c) All payments by the Seller to a Participant hereunder shall be made to
such Participant's Account in like funds and currency as received by the Seller.
(d) If a payment is received by the Seller not later than 12:00 noon (New
York City time) on any Business Day, the corresponding payment shall be made to
the Participants not later than 5:00 p.m. (New York City time) on such day, and
otherwise not later than 3:00 p.m. (New York City time) on the immediately
succeeding Business Day.
(e) Nothing in this Agreement shall entitle a Participant to share in any
fee or other payment under the Facility Documents except as expressly set forth
herein.
(f) The Seller shall be entitled to deduct from payments to be made by it
hereunder to a Participant any overdue amount payable by such Participant to the
Seller under this Agreement.
Section 8. Subordination of Participations. Each Participant hereby
irrevocably agrees that, to the extent provided below in this Section 8, its
rights to receive any payment in respect of its Funded Participation Amount and
its Participant's Interest Payment shall be subordinate and junior in right of
payment to the prior payment of the Senior Interests in full in cash:
(a) Until such time as the Seller's Percentage Interest in the Outstanding
Aggregate Loan Amount has been reduced to zero, the Seller shall retain all
payments of principal with respect to the Obligations and shall apply such
payments to the Seller's Percentage Interest in the Outstanding Aggregate Loan
Amount. If the Seller receives any payments of principal with respect to the
Loans at any time as the Seller's Percentage Interest is zero, subject to
Section 8(b), the Seller shall remit such payments to the Participants in
accordance with Section 7.
(b) If the Loans and other Obligations have been declared immediately due
and payable at such time as there shall have occurred and be continuing any
Event of Default, then the Seller shall distribute payments received under the
Loan Agreement, to the extent of the funds available, in the following order of
priority:
(i) to the Seller's Percentage Interest in the Outstanding Aggregate
Loan Amount until the Seller's Percentage Interest in the Outstanding
Aggregate Loan Amount has been reduced to zero;
(ii) to the Seller's Interest Payment until the accrued and unpaid
amount of the Seller's Interest Payment has been paid in full;
(iii) any fees or other amounts due and payable by the Borrowers to
the Seller pursuant to the Facility Documents, together with all costs and
out-of-pocket expenses reasonably incurred by or on behalf of the Seller
in connection with the Facility Documents and the transactions
contemplated thereby until such amounts have been reimbursed or paid in
full;
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(iv) to each Participant, pro rata on the basis of the amounts owed
under this clause (iv), its Percentage Interest in the Outstanding
Aggregate Loan Amount, until such amount has been reduced to zero;
(v) to each Participant, pro rata on the basis of the amounts owed
under this clause (v), its Participant's Interest Payment until the
accrued and unpaid amount of its Participant's Interest Payment has been
paid in full; and
(vi) to each Participant, pro rata on the basis of the amounts owed
under this clause (vi), any other amount due and payable to such
Participant pursuant to its Participation until such amounts have been
paid in full.
(c) In the event of any reorganization, arrangement, restructuring or
liquidation of a Borrower pursuant to any bankruptcy, insolvency or similar law,
rule, regulation or order, the Seller shall distribute payments received under
the Loan Agreement according to Section 8(b). In the event that the Seller
receives any payments as adequate protection or for similar purposes in any such
proceedings involving either of the Borrowers, the Seller shall distribute such
payments according to Section 8(b).
(d) Each Participant agrees that, in the event that it receives any
payment on its Participation in excess of the amount to which it is entitled
under this Section 8, it will hold such payments in trust for the Seller and
promptly turn over such amounts to the Seller for application to the Senior
Interests.
Section 9. Administration.
(a) The Participations shall be reflected in the Seller' books and
records, which, in the absence of manifest error, shall be presumed accurate
with respect thereto.
(b) Any payments received by or for the account of the Seller with respect
to the Obligations shall be applied to principal, interest, expenses or other
amounts in the order and manner set forth in the Facility Documents, or if the
Facility Documents do not require application in specific order or manner, as
determined by the Seller in its sole discretion. Any application to the Senior
Interests may be made in such order as the Seller from time to time in its sole
discretion determines.
(c) Each Participant agrees that the Seller may, in its sole discretion,
exercise or refrain from exercising any right, or take or refrain from taking
any action, which the Seller may be entitled to take or assert under any of the
Facility Documents or otherwise with respect to the obligations of the
Borrowers, the Obligors, any other guarantor or grantor of liens or security
interests, or other party thereunder or the enforcement thereof, all without
notice to the Participants and, without limiting the generality of the
foregoing, the Seller may take legal action to enforce the Participants' or the
Seller's interests with respect to any Loan or any of the Facility Documents. In
making and administering the Loans, the Seller shall exercise the same care as
it normally exercises with respect to loans or commitments in which no
participations are sold, but the Seller shall have no further responsibility to
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the Participants except as expressly provided herein, and, except to the extent
its own gross negligence or willful misconduct results in actual loss to the
Participants, the Seller shall have no responsibility to the Participants for
any action or failure to act by the Seller under the Facility Documents or
otherwise. Without limiting the foregoing, the Seller (i) may (but is not
obligated to) consult with legal counsel, independent public accountants,
appraisers and other experts reasonably selected by the Seller and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such persons; (ii) shall be entitled to rely on,
and shall incur no liability by acting upon, any notice, consent, certificate,
statement, order, or any instrument, document or other writing (including,
without limitation, facsimile, email or other telecommunication device)
reasonably believed by the Seller to be genuine and correct and to have been
signed, sent, or made by the proper person; and (iii) shall not be required to
make any inquiry concerning the observance or performance of any agreements
contained in, or conditions of, the Facility Documents, or to inspect the
property, books or records of the Borrowers, the Obligors or their subsidiaries
and affiliates. Notwithstanding anything in the foregoing to the contrary, in
any bankruptcy, insolvency or similar proceeding affecting either Borrower, the
Seller shall file a proof of claim for all amounts owing under the Facility
Documents in a timely manner and shall provide each Participant with a
reasonable opportunity (but in any event not less than five (5) Business Days)
to comment on such proof of claim prior to the filing thereof.
(d) The Seller shall deliver to the Participants copies of each amendment,
consent, waiver or notice of default delivered in connection with the Facility
Documents and such other documents received by the Seller from the Borrowers
under the Facility Documents that such Participant shall request in writing
within two Business Days of any such written request; provided, however, that
each Participant hereby acknowledges and agrees that the Seller shall not assume
responsibility with respect to the accuracy, authenticity, validity or
enforceability thereof. Other than such documents as may be furnished by the
Seller in accordance with the immediately preceding sentence, the Seller shall
have no responsibility to provide the Participants with any credit information
or other information concerning the affairs, financial condition or business of
the Borrowers or any other party which may come into the Seller's possession.
(e) Each Participant agrees that the Seller may, in its sole discretion,
without notice to or consent from such Participant, agree to the modification,
amendment or waiver of any of the terms of any of the Facility Documents or the
release of any Collateral, provided that the Seller shall not, without each
Participant's prior written consent, agree to any such modification, amendment
or waiver with respect to the Facility Documents that: (i) extends the due date
for any scheduled repayment or prepayment of principal of or interest on any
Loan, (ii) reduces the amount of any scheduled repayment or mandatory prepayment
of principal of or interest on any Loan or the rate of interest on any Loan
(iii) forgives any principal of or accrued interest on any Loan, or (iv)
releases all or substantially all of the Collateral or the Guarantors; provided
that, for the avoidance of doubt, this provision shall not be deemed to require
the Participants' consent with respect to any sales of Collateral expressly
permitted by the Facility Documents without the Lenders' consent.
Section 10. Non-Recourse; Independent Investigation. (a) Each Participant
acknowledges and agrees that its Participation is being acquired without
recourse to the Seller (other than for a breach of the Seller's obligation
hereunder to remit the Participants' portion of payments received under the
Facility Documents) and that it expressly assumes all risk of loss in connection
with the Participation. The Seller makes no representation or warranty, express
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or implied, and assumes no responsibility, with respect to the genuineness,
authorization, execution, delivery, validity, legality, value, sufficiency,
perfection, priority, enforceability or collectability of any of the Loans or
the Facility Documents. The Seller assumes no responsibility for (i) any
representation or warranty made by, or the accuracy, completeness, correctness
or sufficiency of any information (or the validity, completeness or adequate
disclosure of assumptions underlying any estimates, forecasts or projections
contained in such information) provided directly or indirectly by, the
Borrowers, any other Obligor or any other Person, (ii) the performance or
observance by the Borrowers or any other Obligor of any of the provisions of the
Facility Documents (whether on, before or after the Initial Funding Date), (iii)
the filing, recording, or taking of any action with respect to any of the
Facility Documents, (iv) the financial condition of the Borrowers, any other
Obligor or any other Person, (v) (except as otherwise expressly provided herein)
any other matter whatsoever relating to the Borrowers, any other Obligor, any
other Person, the Loans or the Participation or (vi) the income or withholding
tax status with respect to a Participant's interest in the Loans;
(b) Each Participant acknowledges that it has received a copy of the Loan
Agreement and the other Facility Documents executed and/or delivered by the
Borrowers and/or Obligors. Each Participant represents and warrants to the
Seller that such Participant (i) has full access to all such documents and
information (including any financial information) as it deems necessary to
review in order to enter into this Agreement, (ii) is a sophisticated buyer and
has made, independently and without reliance on the Seller, its own independent
investigation of the financial condition, operations, property, affairs, and
general creditworthiness of the Borrowers, the other Obligors and the Facility
Documents for the purpose of acquiring the Participation, (iii) has purchased
the Participation for the purpose of investment only and with no present
intention of reselling the same, and not with a view to, or for sale in
connection with, any distribution thereof and (iv) will continue its own
independent investigation of the financial condition and affairs of the
Borrowers and the Obligors.
Section 11. Expenses; Indemnity. (a) The Seller acknowledges that it shall
pay all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, and disbursements, including legal fees,
incurred by the Seller, or for which the Seller is responsible, in connection
with (i) the administration or enforcement of (A) the Loans or (B) the Loan
Agreement or any Facility Documents against the Obligors, and (ii) the
collection of the Loans (including, without limitation, those arising due to
suits, claims or counterclaims by a Borrowers, an Obligor or other parties
against the Seller or any agent of the Seller), and that neither Participant
shall be obligated to indemnify or reimburse the Seller for any such item;
provided that the Seller shall be entitled to be reimbursed for such expenses in
accordance with the Facility Documents. Each Participant shall pay to the Seller
all reasonable expenses, liabilities, costs and damages (including attorney's
fees) reasonably incurred by the Seller in connection with the enforcement and
collection of the obligations of such Participant under this Agreement.
(b) Each Participant agrees, within five Business Days of written request
from the Seller, to reimburse the Seller for, to indemnify and defend the Seller
against, and hold the Seller harmless from, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever, including but not limited to
reasonable attorneys' fees and expenses that may at any time be imposed on,
asserted against or incurred by, the Seller arising out of or in connection with
the breach of or inaccuracy in any of the representations and warranties of such
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Participant or any material breach of or failure by such Participant to perform
its covenants hereunder; provided, however, that a Participant shall not be
liable for the Seller' gross negligence or willful misconduct as determined by a
court of competent jurisdiction in a final, nonappealable order.
(c) The foregoing obligations of the Seller and the Participants shall
survive the termination of this Agreement.
Section 12. Taxes. Any taxes due and payable on any payments to be made to
a Participant hereunder shall be such Participant's sole responsibility. Each
Participant warrants that it is not subject to any taxes, charges, levies or
withholdings with respect to payments under this Agreement that are imposed by
means of withholding by any applicable taxing authority ("Withholding Tax").
Each Participant agrees to provide the Seller, from time to time upon the
Seller's request, completed and signed copies of any documents that may be
required by an applicable taxing authority to certify such Participant's
exemption from Withholding Tax with respect to payments to be made to such
Participant under this Agreement; and each Participant agrees to hold the Seller
harmless from any Withholding Tax imposed due to such Participant's failure to
establish that it is not subject to Withholding Tax.
Section 13. Reimbursement. In the event that (a) the Seller shall pay any
amount to a Participant pursuant hereto in the belief or expectation that a
related payment has been or will be received or collected by the Seller pursuant
to the Facility Documents and (b) such related payment is not received or
collected by the Seller, then the Participant receiving such payment, within
five Business Days of written request by the Seller, shall return such amount to
the Seller, together with interest thereon accruing at Overnight LIBOR for each
day from and including the date of such payment by the Seller to but excluding
the date of repayment to the Seller. If the Seller determines at any time that
any amount received or collected by the Seller pursuant to the Facility
Documents must be rescinded or otherwise returned to a Borrower or to any other
person or entity pursuant to any insolvency law or otherwise, then
notwithstanding any other provision of this Agreement, the Seller shall not be
required to remit any portion thereof to the Participants and each Participant,
within the earlier of (i) five Business Days of written request by the Seller or
(ii) the date the Seller is required to repay any such amount to a third party,
will repay to the Seller any portion thereof that such Participant received,
together with interest thereon at such rate, if any, as the Seller shall have
been required to pay to a Borrower, or such other person or entity, with respect
thereto. If, for any reason, a Participant shall at any time receive an amount
in excess of the amount which such Participant is entitled to receive pursuant
to this Agreement, then, promptly upon demand by the Seller, such Participant
shall forthwith return such excess to the Seller, together with interest thereon
accruing at Overnight LIBOR from the time of the overpayment to the date of
repayment to the Seller.
Section 14. Set-off. To the extent contemplated by the Loan Agreement and
permitted by law, the Participant shall be entitled to the benefits of any
provisions in the Loan Agreement providing for rights of set-off against the
Borrowers as though such Participant were a Lender. If, as a result of set-off
or otherwise, a Participant receives a payment (a "Subject Payment") in respect
of its Funded Participation Amount that would cause the aggregate principal
amount received by such Participant in respect of the Loans to exceed its
Percentage Interest of all repayments received by the Parties in respect of the
Loans (or its participation therein), such Participant shall purchase from each
of the other Parties a participation in the interests of the other Parties in
the Loans such that all of the Parties received the benefit of such Subject
Payment in proportion to their respective interests in the Loans before giving
effect to such Subject Payment.
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Section 15. Nature of Interest. Each Participant agrees that it will not
have, and will not assert or seek to exercise, any legal or equitable right or
remedy against the Borrowers or any Obligors with respect to the Loans or other
liabilities under the Facility Documents and the purchase of its Participation
hereunder. The Participant shall not, by reason of this Agreement and the
transactions contemplated hereby, be deemed to have any interest in (a) any
property taken as security for Borrower's obligations and liabilities under or
with respect to (i) the Loans, the Note or the Facility Documents or (ii) any
other credit, loan or financial accommodation from time to time made or
furnished to the Borrowers by the Seller, or (b) any property now or hereafter
in the possession of the Seller or under its or any agent's or
pledgee-in-possession's control which may be or might become security for
performance and payment of the Obligors' obligations under and in connection
with the Loans, the Note and the Facility Documents by reason of the general
description contained in any general loan or collateral agreement or collateral
note held by the Seller or by reason of any right of setoff, counterclaim,
banker's lien or otherwise; provided, however, that in the case of clause (a) or
(b) above, if such property, indebtedness, or the proceeds thereof shall be
applied by the Seller to the payment or reduction of any principal or interest
in any Loans, then, subject to Section 8, each Participant shall be entitled to
its Participant's Share of such application.
Section 16. Miscellaneous.
(a) Entire Agreement; Amendments; Exercise of Rights. This Agreement
constitutes the entire agreement of the Parties with respect to the respective
subject matters hereof and supersedes all previous and contemporaneous
negotiations, promises, covenants, agreements, understandings and
representations on such subjects, all of which have become merged and finally
integrated into this Agreement. No amendment of any provision of this Agreement
shall be effective unless it is in writing and signed by the Parties and no
waiver of any provision of this Agreement, nor consent to any departure by
either Party from it, shall be effective unless it is in writing and signed by
the affected Party, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given. No failure
on the part of a Party to exercise, and no delay in exercising, any right under
this Agreement shall operate as a waiver hereof by such Party, nor shall any
single or partial exercise of any right under this Agreement preclude any other
or further exercise thereof or the exercise of any other right. The rights and
remedies of each Party provided herein (a) are cumulative and are in addition
to, and are not exclusive of, any rights or remedies provided by law (except as
otherwise expressly set forth in this Agreement) and (b) are not conditional or
contingent on any attempt by such Party to exercise any of its rights under any
other related document against the other Party or any other Person.
(b) Survival; Successors and Assigns. All representations, warranties,
covenants, indemnities and other provisions made by the Parties shall be
considered to have been relied upon by the Parties, shall be true and correct as
of the date hereof and the Initial Funding Date, and shall survive the
execution, delivery, and performance of this Agreement. This Agreement,
including the representations, warranties, covenants and indemnities contained
in this Agreement, shall inure to the benefit of, be binding upon and be
enforceable by and against the Parties and their respective successors and
permitted assigns. Without prejudice to any restrictions or limitations in the
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Loan Agreement: (i) the Seller shall not assign any of the Commitment or the
Loans, except to a wholly owned subsidiary, without the prior written consent of
each Participant, which consent may not be unreasonably withheld; and (ii) a
Participation may not be sold, pledged, assigned, subparticipated, or otherwise
transferred (except for an assignment by General Motors to a wholly owned
subsidiary or an assignment by Cerberus Fund to an Affiliate of Cerberus Capital
Management L.P. or a fund or account advised or managed by Cerberus Capital
Management L.P. or by an Affiliate thereof), without the Seller's prior written
consent, which consent may not be unreasonably withheld. Any such purported
action described in the preceding sentence that occurs without the required
consent shall be null and void and of no effect. For the avoidance of doubt, it
is understood that it shall be reasonable for the Participants to withhold
consent to an assignment by the Seller if the assignment documents are in
conflict with or would prevent the Seller from complying with the terms and
conditions of this Agreement.
(c) Further Assurances. Each Party agrees (i) to execute and deliver, or
to cause to be executed and delivered, all such instruments and (ii) to take all
such actions that another Party may reasonably request to effectuate the intent
and purposes, and to carry out the terms, of this Agreement, including the
procurement of any third-party consents.
(d) Confidentiality. Each Participant agrees that, without the prior
written consent of the other Parties, it shall not disclose the contents of this
Agreement to any Person, except that any Participant may make any such
disclosure (a) as required to implement or enforce this Agreement, (b) if
required to do so by any law, court, or regulation, (c) to any governmental
authority or self-regulatory entity having or asserting jurisdiction over it,
(d) if its attorneys advise it that it has a legal obligation to do so or that
failure to do so may result in it incurring a liability to any other Person, (e)
to its professional advisors and auditors or (f) to any assignee or transferee
permitted hereunder. Each Participant agrees to comply with the requirements of
the Facility Documents regarding confidentiality as if it was a Lender, and
shall, upon the Seller's request, provide to the Seller a confidentiality
undertaking to such effect in accordance with the terms of the Facility
Documents. Each Participant further acknowledges that it may receive information
form the Seller that is "insider information" for purposes of Section 10(b) of
the Securities Exchange Act of 1934 and agrees that it will keep such
information confidential and will not sue such information in violation of
applicable securities laws. The provisions of this Section 16(d) shall survive
the termination of this Agreement.
(e) Parties' Other Relationships. Each Party and any of its affiliates may
engage in any kind of business or relationship with the Borrowers, any other
Obligor or any of their respective affiliates without liability to the other
Parties or any obligation to disclose such business or relationship to the other
Parties. Each Participant acknowledges that the Seller and its affiliates may
have commercial lending, and/or other business relationships, including
extensions of credit, financial advisory arrangements and deposits, with the
Borrowers, the Obligors and their respective affiliates in addition to the Loans
and the Participation.
(f) Relationship Between the Seller and the Participants. The relationship
between the Seller and each Participant shall be that of seller and buyer. A
Participant's interests in the Loans in which it purchases an interest hereunder
shall be a participation and shall not be deemed to be a direct assignment of
such Loans. No Party is a trustee or agent for any other Party, and no Party
shall have fiduciary obligations to any other Party. This Agreement shall not be
construed to create a partnership or joint venture between the Parties.
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(g) GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. (i)
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). 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.
(ii) 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.
(h) Severability; Interpretation. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement. This Agreement shall be
deemed to have been jointly drafted and no provision of it shall be interpreted
or construed for or against any Party because such Party purportedly prepared or
requested such provision, any other provision or this Agreement as a whole.
(i) No Third Party Beneficiaries. None of the provisions of this Agreement
will inure to the benefit of any Person other than the Seller and the
Participants. Without limiting the generality of the foregoing, neither the
Borrowers nor any other Person obligated to pay the Loans may rely hereon or
have any right to assert that the Seller or a Participant has failed to comply
with the provisions of this Agreement.
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(j) Subrogation. To the extent that the Seller enforces any claim for
indemnification or other claim or remedy against a Participant under this
Agreement and receives payment or another remedy from a Participant in respect
of such claim or remedy, the Parties agree that to the extent permitted by law
and the Facility Documents, without the need for further action on the part of
any Party, such Participant shall be subrogated to the rights of the Seller
against any other Person with respect to such claim or remedy to the extent of
such payment or other remedy; provided that it shall not exercise any such
subrogation right unless the Loan Repayment Date shall have occurred and all
obligations owed to the Seller in respect of the Loan Agreement shall have been
paid in full.
(k) Expenses. Except to the extent expressly provided in this Agreement,
each Party agrees to bear its own expenses in connection with this Agreement.
(l) Interest. If any Party fails to pay any amount (including interest, to
the fullest extent permitted by applicable law) payable by it hereunder when
due, then interest shall accrue and be payable immediately upon demand on such
unpaid amount at a per annum rate equal to Overnight LIBOR from and including
the date on which such amount became due to but excluding the date the same is
paid in full.
(m) Waiver of Punitive, Consequential, Special or Indirect Damages. Each
of the Parties waives any right it may have to seek punitive, consequential,
special or indirect damages from any of the other Parties with respect to any
and all issues presented in any action, proceeding, claim or counterclaim
brought by any of the Parties against any of the other Parties with respect to
any matter arising out of or in connection with this Agreement. This waiver is
knowingly and voluntarily given, and is intended to encompass each instance and
each issue for which the right to seek punitive, consequential, special or
indirect damages would otherwise apply. Each party hereto is authorized and
directed to submit this Agreement to any court having jurisdiction over the
subject matter and the parties to this Agreement as conclusive evidence of this
waiver of the right to seek punitive, consequential, special or indirect
damages.
(n) Notices. All notices and other communications provided for hereunder
shall, unless otherwise stated herein, be in writing (including facsimile
communication) and shall be personally delivered or sent by certified mail or
overnight air courier, postage prepaid, or by facsimile, to the intended Party
at the address or facsimile number of such Party set forth on Schedule 1 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).
(o) Counterparts. This Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. Delivery of an executed counterpart of a signature page to this
Agreement by telecopy or electronic mail shall be effective as delivery of a
manually executed counterpart of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Participation Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
GMAC LLC, as Seller
By:______________________________
Name:
Title:
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CERBERUS RESCAP FINANCING LLC
By Cerberus Partners, L.P., its Managing Member,
By Cerberus Associates, L.L.C., its General Partner,
By ____________________________________
Name:
Senior Managing Director
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GENERAL MOTORS CORPORATION, as a Participant
By:______________________________
Name:
Title:
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SCHEDULE 1
ADDRESSES FOR NOTICES
Seller's Address for Notices and Delivery
-----------------------------------------
GMAC LLC
200 Renaissance Center
Detroit, MI 48265
Attn: David Walker, Group VP and Treasurer
Phone: (313) 656-5400
Fax: (313) 656-5401
Email: david.walker@gmacfs.com
-----------------------
With copy to:
200 Renaissance Center
Detroit, MI 48265
Attn: William B. Solomon, VP and General Counsel
Phone: (313) 656-6128
Fax: (313) 656-6124
Email: William.b.solomon@gm.com
------------------------
Cerberus Fund's Address for Notices and Delivery
------------------------------------------------
Cerberus ResCap Financing LLC
c/o Cerberus Capital Management L.P.
299 Park Avenue
New York, NY 10178
Attention: Stephanie Chau
Telephone: (646) 885-3310
Facsimile: (646) 885-3311
e-mail: schau@cerberuscapital.com
-------------------------
with a copy to:
Cerberus Capital Management L.P.
299 Park Avenue
New York, NY 10178
Attention: Mark A. Neporent, Chief Operating Officer and General Counsel
Telephone: (212) 891-2153
Facsimile: (212) 891-1540
e-mail: mneporent@cerberuscapital.com
-----------------------------
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General Motor's Address for Notices and Delivery
------------------------------------------------
General Motors Corporation
767 Fifth Ave, 14th Floor
New York, NY 10153
Attn: Walter G. Borst, Treasurer
212-418-3500
212-418-3630 (fax)
walter.borst@gm.com
With copy to:
300 Renaissance Center
Detroit, MI 48265
Attn: Martin I. Darvick, General Motors Legal Staff
313-665-4922
313-665-4979 (fax)
martin.i.darvick@gm.com
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SCHEDULE 2
ACCOUNT INFORMATION
Seller's Account
----------------
JP Morgan Chase
ABA Number: 021000021
Account Number: 9102476646
Cerberus Fund's Account
-----------------------
JP Morgan Chase
ABA Number: 021000021
Account Number: 2747993133
Account Name: Cerberus ResCap Financing LLC
Swift Code: CHASUS33
General Motor's Account
-----------------------
JP Morgan Chase
ABA Number: 021000021
Account Number: 910-200-2095
Account Name: General Motors Corporation
Swift Code: CHASUS33
1