Exhibit 10.27
EXECUTION COPY
FOURTH AMENDMENT
AGREEMENT
To Pledge and Security Agreement and Irrevocable
Proxy
Dated as of June 5,
2009
by and among
RFC ASSET HOLDINGS II,
LLC,
PASSIVE ASSET TRANSACTIONS, LLC
AND CERTAIN
AFFILIATES THEREOF FROM
TIME TO TIME PARTY HERETO,
as Grantors,
and
GMAC LLC,
as Lender Agent
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Fourth Amendment Agreement to
Pledge and Security
Agreement
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This FOURTH AMENDMENT AGREEMENT
(this “ Agreement ”) dated as of June 5,
2009 (the “ Amendment Effective Date ”), is by
and among RFC Asset Holdings II, LLC, a Delaware limited
liability company (“ RAHI ”), and Passive Asset
Transactions, LLC, a Delaware limited liability company
(“ PATI ”; and together with RAHI, each a
“ Borrower ” and collectively, the “
Borrowers ”); Residential Capital, LLC, a Delaware
limited liability company (“ ResCap ”),
Residential Funding Company, LLC, a Delaware limited liability
company (“ RFC ”), and GMAC Mortgage, LLC, a
Delaware limited liability company (“
GMAC Mortgage ”; and together with ResCap and
RFC, each herein a “ Guarantor ” and
collectively, the “ Guarantors ”), and the other
parties hereto as Grantors (each, together with each Borrower and
each Guarantor, a “ Grantor ” and collectively,
the “ Grantors ”); and GMAC LLC, a Delaware
limited liability company, as Lender Agent for the Lender
Parties.
Reference is hereby made to the
Pledge and Security Agreement and Irrevocable Proxy dated as of
November 20, 2008 among the Grantors and the Lender Agent (as
amended and modified through the date hereof, the “
Security Agreement ”).
RECITALS
1. Each of the parties hereto is a
party to the Security Agreement.
2. The parties hereto desire to make
certain amendments to the Security Agreement.
3. Each of the parties hereto, by
its signature hereto, hereby acknowledges, consents and agrees to
the changes set forth herein.
4. In consideration of the promises
and mutual agreements herein contained and for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1 Capitalized terms used
herein and not otherwise defined shall have the meaning set forth
in the Security Agreement.
ARTICLE II
AMENDMENTS TO THE SECURITY AGREEMENT
SECTION 2.1 Amendment to
Section 1 . The following definitions are hereby amended
and restated in their entirety to read as follows:
“ Contribution
Agreement means, as the case may be, (a) that certain
Contribution Agreement dated as of November 20, 2008, among
ResCap, GMAC Residential Holding Company, LLC, GMAC Mortgage, and
PATI; (b) that certain Contribution Agreement dated as of
November 20, 2008, among RAHI, PATI, RAHI A, LLC and PATI A,
LLC; or (c) that certain Contribution Agreement dated as of
June 2, 2009, among ResCap, GMAC Residential Holding Company,
LLC, GMAC Mortgage, and PATI, in each case as the same may be
amended, supplemented, restated or otherwise modified from time to
time; and Contribution Agreements means all of them.
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Fourth Amendment Agreement to
Pledge and Security
Agreement
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GX II Security
Documents means the GX II
Administration Agreement, the GX II Guaranteed Investment Contract,
the GX II Trust Deed, GX II VFLN Agreement, the GX II
Notes and each other document, agreement and deed entered into by
ResCap, its Subsidiary, GX II SPE and/or the Stichting
Security Trustee GX CE Funding II in connection with the purchase
of certain residential mortgage loans and related assets,
the issuance of the GX II Notes and creation of security in
respect of the GX II Notes in favor of the Stichting Security
Trustee GX CE Funding II, in each case, by the GX II SPE, as all of
the foregoing may be amended, supplemented, restated or otherwise
modified from time to time, and in each case if and to the extent
any of the foregoing evidence or relate to the GX II
Notes.”
SECTION 2.2 Amendment to
Section 2 . Section 2 of the Security Agreement is
hereby amended and restated as follows:
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“2.
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Grant of
Security Interest by Borrowers and Guarantors
. As security for the prompt payment
in full in cash and performance of all Obligations, each of the
Borrowers and Guarantors hereby pledges to the Lender Agent for the
benefit of the Lender Parties, and hereby grants a continuing
security interest to the Lender Agent for the benefit of the Lender
Parties in, all of each such Borrower’s or Guarantor’s
right, title and interest, in, to, and under, whether now or
hereafter existing, owned or acquired and wherever located and
howsoever created, arising or evidenced, all of the
following:
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(a)
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all Pledged
Mortgage Loans and all assets, rights or property related
thereto;
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(b)
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all Pledged
Shares of each Pledged Share Issuer identified in Exhibit B of
Schedule IV hereto and all assets, rights or property related
thereto;
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(c)
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(i) all Flume
No. 8 Notes, all GX II Notes, all First Savings Warehouse
Notes, all Provident Warehouse Notes and all other Pledged Notes
(including, without limitation, the Flume No. 8 Initial Note
and the GX II Initial Note), and (ii) all assets, rights or
property related thereto (including, without limitation, the Flume
No. 8 Facility Documents, the Warehouse Loans, the Warehouse
Facility Documents, the GX II Security Documents, and all Pledged
Note Liens, if and to the extent the foregoing evidence or relate
to the Flume No. 8 Notes, the GX II Notes or such other
Pledged Notes);
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(d)
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(i) all Pledged
Interests (including, without limitation, the equity interests
owned by RAHI in RAHI A, LLC, a Delaware limited liability company,
by PATI in PATI A, LLC, a Delaware limited liability company and by
RFC in Equity Investment I, LLC, a Delaware limited liability
company), and (ii) all assets, rights or property related
thereto;
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2
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Fourth Amendment Agreement to
Pledge and Security
Agreement
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(e)
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(i) all
Dividends, Distributions, interest, and (ii) other payments
and rights, in each case if and to the extent evidencing or
related to the Pledged Shares, Pledged Notes and Pledged Note
Liens, Pledged Interests, Flume No. 8 Facility Documents, GX
II Security Documents, Warehouse Loans, Warehouse Facility
Documents or Pledged Mortgage Loans;
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(f)
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all Deposit
Accounts, including, without limitation, all Deposit Accounts
identified on Exhibit A of Schedule IV , and all
Property deposited or carried therein or credited thereto, in each
case if and to the extent related to any Pledged Shares, Pledged
Notes and Pledged Note Liens, Pledged Interests, Flume No. 8
Facility Documents, GX II Security Documents, Warehouse Loans,
Warehouse Facility Documents or Pledged Mortgage Loans;
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(g)
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all Securities
Accounts including, without limitation, all Securities Accounts
identified on Exhibit A of Schedule IV , and all
Property, including all Investment Property and Financial Assets,
deposited or carried therein or credited thereto, and all permitted
investments acquired with funds on deposit in or carried in or
credited to such Securities Accounts, in each case if and to the
extent related to any Pledged Shares, Pledged Notes and Pledged
Note Liens, Pledged Interests, Flume No. 8 Facility Documents,
GX II Security Documents, Warehouse Loans, Warehouse Facility
Documents or Pledged Mortgage Loans;
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(h)
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to the extent
not included in the foregoing, the Contribution Agreements and all
other agreements, contracts, documents and instruments if and to
the extent evidencing or related to any Pledged Shares, Pledged
Notes and Pledged Note Liens, Pledged Interests, Flume No. 8
Facility Documents, GX II Security Documents, Warehouse Loans,
Warehouse Facility Documents or Pledged Mortgage Loans;
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(i)
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(i) all books,
records, writings, data bases, information and other property
relating to or evidencing any Pledged Shares, Pledged Notes and
Pledged Note Liens, Pledged Interests, Flume No. 8 Facility
Documents, GX II Security Documents, Warehouse Loans, Warehouse
Facility Documents or Pledged Mortgage Loans, and (ii) all
insurance policies, claims and/or insurance proceeds arising out of
the loss, nonconformity or any interference with the use of, or any
defect or infringement of rights in, or damage to, any of the
foregoing, in each case if and to the extent evidencing or related
to any Pledged Shares, Pledged Notes and Pledged Note Liens,
Pledged Interests, Flume No. 8 Facility Documents, GX II
Security Documents, Warehouse Loans, Warehouse Facility Documents
or Pledged Mortgage Loans;
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(j)
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to the extent not included in the
foregoing, all Accounts, Chattel Paper, Commercial Tort Claims,
Deposit Accounts, Documents, General Intangibles (including Payment
Intangibles), Goods, Instruments, Investment Property,
Letter-of-Credit Rights, Letters of Credit, Supporting Obligations,
Money and all other personal assets and property of any kind
or
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3
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Fourth Amendment Agreement to
Pledge and Security
Agreement
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description, in each case if and to
the extent related to any Pledged Shares, Pledged Notes and Pledged
Note Liens, Pledged Interests, Flume No. 8 Facility Documents,
GX II Security Documents, Warehouse Loans, Warehouse Facility
Documents or Pledged Mortgage Loans; and
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(k)
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all Proceeds,
products, offspring, rents, issues, profits and returns of and
from, and all distributions on any of the foregoing.
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Each of the Grantors hereby
covenants and agrees, no later than the date hereof, to pledge, or
as the case may be, to pledge in advance, all of its rights, titles
and interests in, to and under&n
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