OMNIBUS PLEDGE AND SECURITY AGREEMENT AND IRREVOCABLE PROXY

Exhibit 10.13

E XECUTION C OPY

OMNIBUS PLEDGE AND SECURITY AGREEMENT AND IRREVOCABLE PROXY

dated as of

March 18, 2009

among

RFC ASSET HOLDINGS II, LLC,

PASSIVE ASSET TRANSACTIONS, LLC

RESIDENTIAL CAPITAL, LLC

RESIDENTIAL FUNDING COMPANY, LLC

GMAC MORTGAGE, LLC

and certain of their Affiliates from time to time parties hereto,

as Grantors,

GMAC INVESTMENT MANAGEMENT LLC,

as a Secured Party

and

GMAC LLC,

as Omnibus Agent, as Lender Agent under the Loan Agreement, as Lender under the MSR Loan

Agreement and as a Secured Party

TABLE OF CONTENTS

 

 

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PLEDGE AND SECURITY AGREEMENT AND IRREVOCABLE PROXY

THIS OMNIBUS PLEDGE AND SECURITY AGREEMENT AND IRREVOCABLE PROXY (this “ Agreement ”) dated as of March 18, 2009, is among RFC Asset Holdings II, LLC, a Delaware limited liability company (“ RAHI ”), and Passive Asset Transactions, LLC, a Delaware limited liability company (“ PATI ”); 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 each other Person that agrees to become a “Grantor” by executing and delivering a Joinder Agreement pursuant to Section 14 (RAHI, PATI, ResCap, RFC, GMAC Mortgage and each such other Person, together with any successors and assigns, is herein a “ Grantor ” and collectively, the “ Grantors ”); GMAC Investment Management LLC, a Delaware limited liability company (together with its successors and assigns, “ GMAC IM ”), as a Secured Party; and GMAC LLC, a Delaware limited liability company, as agent for the Secured Parties (in such capacity, the “ Omnibus Agent ”), as Lender Agent, as Lender under the MSR Loan Agreement and as a Secured Party.

W I T N E S S E T H:

WHEREAS, GMAC IM may, from time to time, enter into one or more Derivative Transactions (as defined below) with ResCap, RFC, or GMAC Mortgage as counterparty (each in such capacity, together with any successors or assigns, a “ ResCap Counterparty ” and, collectively, the “ ResCap Counterparties ”);

WHEREAS, in connection with the Derivative Transactions, GMAC IM and the ResCap Counterparties have entered into a Guarantee and Master Netting Agreement, dated as of the date hereof (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ Master Netting Agreement ”);

WHEREAS, certain parties hereto are party to (i) a Loan Agreement, dated as of November 20, 2008 (as amended, supplemented, restated or otherwise modified from time to time, the “ Loan Agreement ”), among RAHI and PATI, as borrowers, ResCap, RFC, and GMAC Mortgage, as guarantors, and GMAC LLC, as Lender Agent and Initial Lender, and certain other financial institutions and Persons from time to time party thereto as Lenders, pursuant to which the Lenders thereunder have agreed to make loans to RAHI and PATI and (ii) the Security Documents, as defined in the Loan Agreement;

WHEREAS, certain of the parties hereto are party to a Loan and Security Agreement, dated as of April 18, 2008, among RFC and GMAC Mortgage, as borrowers, and GMAC LLC, as lender (as the same may be amended, supplemented, restated or otherwise modified from time to time, the “ MSR Loan Agreement ”);

WHEREAS, in exchange for consideration, the Grantors have agreed to cross-collateralize their respective obligations under the November Documents, the MSR Documents and the Derivative Documents (each as defined below);

WHEREAS, as a condition to the entry into the Derivative Transactions by GMAC IM, the Grantors are required to execute and deliver this Agreement;

WHEREAS, each Grantor has duly authorized the execution, delivery and performance of this Agreement; and

WHEREAS, it is in the best interests of each Grantor to execute this Agreement inasmuch as each Grantor will derive substantial direct and indirect benefits from the Derivative Transactions.

NOW, THEREFORE, for and in consideration of the entry by GMAC IM into each Derivative Transaction, and any payment thereunder heretofore or hereafter made to the ResCap Counterparties and/or the Grantors under or in connection with any Derivative Transaction, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Definitions . When used herein and unless the context otherwise requires, (a) capitalized terms which are not otherwise defined herein have the meanings assigned to such terms in Schedule 1.01 to the Loan Agreement; (b) unless otherwise defined herein, the capitalized terms Account, Account Debtor, Certificated Security, Chattel Paper, Commercial Tort Claims, Deposit Account, Document, Electronic Chattel Paper, Equipment, Financial Assets, Fixture, Goods, Instrument, Inventory, Investment Property, Letter of Credit, Letter-of-Credit Rights, Money, Payment Intangibles, Proceeds, Security, Security Entitlement, Securities Account, Supporting Obligations and Uncertificated Security have the respective meanings assigned thereto in Article 8 or Article 9 of the UCC (as defined below); (c) the provisions of clauses (c) through (g) of Section 1.01 of the Loan Agreement are hereby incorporated herein in their entirety; (d) all references herein to Articles, Sections, Exhibits and Schedules herein shall refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement as the same may be amended, supplemented, restated or otherwise modified from time to time; and (d) the following terms have the following meanings (such definitions to be applicable to both the singular and plural forms of such terms):

Additional Collateral has the meaning ascribed to such term in the MSR Loan Agreement.

Advance has the meaning ascribed to such term in the MSR Loan Agreement.

Ancillary Income has the meaning ascribed to such term in the MSR Loan Agreement.

Account Collateral means Deposit Accounts, Securities Accounts and other Collateral described in clauses (e)  and (f)  of the first sentence of Section 2 hereof.

Bailment Collateral means any Collateral that has been physically delivered to the Omnibus Agent or an agent, custodian, designee or bailee of the Omnibus Agent pursuant to any Specified Document, and for which the physical possession of such Collateral by the Omnibus Agent (or its agent, custodian, designee or bailee) acts to perfect or grant control over such Collateral to the Omnibus Agent for purposes of the UCC.

Collateral means, with respect to any Grantor, all property and rights of such Grantor in which a security interest is granted pursuant to the provisions of this Agreement, including without limitation Section 2 .

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,

 

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GMAC Mortgage, and PATI; or (b) that certain Contribution Agreement dated as of November 20, 2008, among RAHI, PATI, RAHI A, LLC and PATI A, LLC, in each case as the same may be amended, supplemented, restated or otherwise modified from time to time; and Contribution Agreements means both of them.

Custodial File means with respect to any Mortgage Loan, a file pertaining to such Mortgage Loan being held by the Custodian that contains the mortgage documents pertaining to such Mortgage Loan.

Custodian means any financial institution that holds documents for any of the Mortgage Loans on behalf of the Investor related thereto.

Default means (i) any Event of Default or (ii) any event that, with the giving of notice or lapse of time, or both, would become an Event of Default.

Derivative Agreement means (a) each agreement identified on Schedule X hereto and (b) each additional agreement between GMAC IM and any ResCap Counterparty that governs one or more Derivative Transactions entered into by GMAC IM and such ResCap Counterparty, which agreement shall consist of (i) a “Master Agreement” in a form published by the International Swaps and Derivatives Association, Inc., together with a “Schedule” thereto, each “Confirmation” thereunder confirming the specific terms of each such Derivative Transaction and each “Credit Support Annex” related to such Derivative Transaction or (ii) a “Master Securities Forward Transaction Agreement,” together with any applicable “Annexes” thereto and each “Confirmation” thereunder confirming the specific terms of such Derivative Transaction, as each is amended, supplemented, restated or otherwise modified from time to time.

Derivative Collateral means (a) any cash or other property posted or required to be posted as collateral by any ResCap Counterparty to GMAC IM pursuant to the terms of any Derivative Document, (b) all right, title and interest of each ResCap Counterparty in, to and under any Derivative Document, (c) all books, records, writings, data bases, information and other property relating to any Derivative Collateral and (d) all Proceeds, products, offspring, rents, issues, profits and returns of and from, and all distributions on any of the foregoing

Derivative Documents has the meaning ascribed to such term in the Loan Agreement and shall include, without limitation, the Derivative Agreements and the Master Netting Agreement.

Derivative Transaction means each interest rate swap, interest rate cap, currency swap, securities forward, “TBA” or other similar transaction between GMAC IM and one or more ResCap Counterparties that is entered into pursuant to and governed by a Derivative Agreement.

Distributions means all dividends of stock, membership interests or other ownership interests, liquidating dividends, shares of stock resulting from (or in connection with the exercise of) stock splits, reclassifications, warrants, options, non-cash dividends, mergers, consolidations, and all other distributions (whether similar or dissimilar to the foregoing) on or with respect to any Pledged Share, Pledged Interest or other shares of capital stock, member interest or other ownership interests or security entitlements in each case constituting Collateral, but shall not include Dividends.

 

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Dividends means cash dividends and cash distributions with respect to any Pledged Share or any Pledged Interest made in the ordinary course of business and not as a liquidating dividend.

Event of Default means (i) an “Event of Default” or “Termination Event” shall have occurred under any Derivative Agreement (as such terms are defined in the applicable Derivative Agreement), (ii) a “Default” shall have occurred under the Master Netting Agreement (as such term is defined in the Master Netting Agreement), (iii) an “Event of Default” shall have occurred under any Facility Document (as such term is defined in the Loan Agreement) or (iv) an “Event of Default” shall have occurred under any MSR Document (as such term is defined in the MSR Loan Agreement).

Excluded Collateral means all right, title and interest of either RFC or GMAC Mortgage, whether now owned or hereafter acquired, in, to and under its rights to reimbursement (a) for all Advances made under the Servicing Contracts and (b) all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds (including “proceeds” as defined in the Uniform Commercial Code in effect in all relevant jurisdictions), together with all rights of RFC or GMAC Mortgage, as applicable, to enforce such rights to reimbursement.

First Savings Warehouse Agreement has the meaning ascribed to such term in the Loan Agreement.

First Savings Warehouse Facility Documents means the First Savings Warehouse Agreement, the First Savings Warehouse Note and all other agreements, contracts, documents and instruments evidencing or relating to the First Savings Warehouse Note or the First Savings Warehouse Agreement.

First Savings Warehouse Note means that Promissory Note, dated as of April 1, 2005 and issued by First Savings Mortgage Corporation in favor of RFC, as the same may be amended, supplemented, restated or otherwise modified from time to time, and including any notes given in substitution or replacement therefor.

Flume No. 8 Administration Agreement means the Administration Agreement among the Flume No. 8 SPE, ResCap, GMAC-RFC Limited and the Flume No. 8 Security Trustee dated as of November 14, 2008, as the same may be amended, supplemented, restated or otherwise modified from time to time.

Flume No. 8 Bank Agreement means the Bank Agreement among the Flume No. 8 SPE, GMAC-RFC Limited, Barclays Bank PLC and the Flume No. 8 Security Trustee dated as of November 14, 2008, as the same may be amended, supplemented, restated or otherwise modified from time to time, and together with any successor agreement and any other agreement governing deposit accounts held in the name of the Flume No. 8 SPE.

Flume No. 8 Deed of Assignment means the Deed of Assignment, dated as of November 21, 2008, between PATI and the Lender Agent, as the same may be amended, supplemented, restated or otherwise modified from time to time.

 

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Flume No. 8 Deed of Charge and Assignment means the Deed of Charge and Assignment, dated as of November 14, 2008, between the Flume No. 8 SPE, the Flume No. 8 Security Trustee, ResCap, GMAC-RFC Limited, Barclays Bank PLC and SFM Corporate Services Limited.

Flume No. 8 Facility Documents means the Flume No. 8 Notes, the Flume No. 8 Security Documents and all other agreements, contracts, documents and instruments evidencing or relating to the Flume No. 8 Notes or the Flume No. 8 Security Documents.

Flume No. 8 GIC Agreement means the Guaranteed Investment Contract among the Flume No. 8 SPE, GMAC-RFC Limited, Barclays Bank PLC and the Flume No. 8 Security Trustee dated as of November 14, 2008, as the same may be amended, supplemented, restated or otherwise modified from time to time, and together with any successor agreement and any other agreement governing investments of the Flume No. 8 SPE which is not a Flume No. 8 Bank Agreement.

Flume No. 8 Initial Note means that certain Secured Zero Coupon Discount Note of Flume (No. 8) Limited dated as of November 14, 2008, constituted by and issued pursuant to the Flume No. 8 Note Issuance Facility Deed.

Flume No. 8 Loan Sale and Purchase Agreement means the loan sale and purchase agreement dated as of November 14, 2008 between the Flume No. 8 SPE, the Flume No. 8 Seller and the Flume No. 8 Security Trustee, as the same may be amended, supplemented, restated or otherwise modified from time to time.

Flume No. 8 Note means the Flume No. 8 Initial Note or any other note issued from time to time under and in accordance with the Flume No. 8 Note Issuance Facility Deed, as the same may be amended, supplemented, restated or otherwise modified from time to time, and including any notes given in substitution or replacement therefor; and Flume No. 8 Notes means, collectively, all of them.

Flume No. 8 Note Issuance Facility Deed means the note issuance facility deed dated as of November 14, 2008 between Flume No. 8 SPE, ResCap and the Flume No. 8 Security Trustee, as the same may be amended, supplemented, restated or otherwise modified from time to time.

Flume No. 8 Related Security means all collateral securing obligations of the Flume No. 8 SPE under the Flume No. 8 Notes and Flume No. 8 Facility Documents.

Flume No. 8 Security Documents means the Flume No. 8 Notes, the Flume No. 8 Loan Sale and Purchase Agreement, the Flume No. 8 Note Issuance Facility Deed, the Flume No. 8 Administration Agreement, the Flume No. 8 Bank Agreement, the Flume No. 8 GIC Agreement, the Flume No. 8 Deed of Assignment, the Flume No. 8 Deed of Charge and Assignment, and each and every other document, agreement and deed entered into by ResCap, its Subsidiary and/or the Flume No. 8 Security Trustee in connection with the purchase of certain residential mortgage loans, the issuance of the Flume No. 8 Notes and creation of security in respect of the Flume No. 8 Notes in favor of the Flume No. 8 Security Trustee, in each case, by the Flume No. 8 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 Flume No. 8 Notes.

 

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Flume No. 8 Security Trustee means Deutsche Trustee Company Limited (in its capacity as security trustee in respect of the Flume No. 8 Notes).

Flume No. 8 Seller means GMAC-RFC Limited.

Flume No. 8 SPE means Flume (No. 8) Limited.

Funding Date shall have the meaning ascribed to such term in the MSR Loan Agreement.

General Intangibles means, with respect to any Grantor, all of such Grantor’s “general intangibles” as defined in the UCC and, in any event, includes (without limitation) all of such Grantor’s licenses, franchises, tax refund claims, guarantee claims, security interests and rights to indemnification.

Grantor is defined in the preamble.

Investor means the trust owning mortgage loans that have been securitized or Persons who have purchased whole loans in servicing retained form.

Lender Agent means GMAC LLC, in its capacity as Lender Agent for the Lender Parties under the Loan Agreement.

Lender Parties shall have the meaning ascribed to such term in the Loan Agreement.

Loan Agreement is defined in the recitals.

Mortgage means a mortgage, mortgage deed, deed of trust, or other instrument creating a first lien on or first priority security interest in an estate in fee simple in real property securing a Mortgage Note including any riders, assumption agreements or modifications relating thereto.

Mortgage File means, with respect to any Mortgage Loan, a file or files pertaining to such Mortgage Loan that contains the mortgage documents pertaining to such Mortgage Loan and any additional mortgage documents pertaining to such Mortgage Loan required by GMAC LLC, as lender under the MSR Loan Agreement.

Mortgage Loan means any mortgage loan or installment sales contract or similar asset serviced by either RFC or GMAC Mortgage pursuant to a Servicing Contract.

Mortgage Note means any note or other evidence of indebtedness of a Mortgagor secured by a Mortgage pertaining to a Mortgage Loan.

Mortgagor means the obligor on a Mortgage Note.

MSR Collateral means (i) the Servicing Rights whether or not yet accrued, earned, due or payable as well as all other present and future rights and interests of RFC or GMAC Mortgage, as applicable, in such Servicing Rights, (ii) the Collection Accounts (as such term is defined in the MSR Loan Agreement), (iii) the Servicing Contracts and all rights and claims thereunder, (iv) all books and records, including computer disks and other records, related to the foregoing (but

 

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excluding computer programs), (v) any Additional Collateral pledged from time to time pursuant to Section 2.08(b) of the MSR Loan Agreement, and (vi) all monies due or to become due with respect to the foregoing and all Proceeds of the foregoing, but with respect to (i)-(v) above specifically excluding the Excluded Collateral.

MSR Documents means (a) the MSR Loan Agreement, (b) the “Notes,” the “Guarantee,” the “Account Control Agreements,” and the “Servicing Contracts” (each as defined in the MSR Loan Agreement) and (c) all notices, certificates, financing statements and other documents to be executed and delivered by RFC, GMAC Mortgage or ResCap in connection with the transactions contemplated by the MSR Loan Agreement.

MSR Loan Agreement is defined in the recitals.

Non-Tangible Collateral means, with respect to any Grantor, collectively, such portion of such Grantor’s Collateral that constitutes Accounts, Chattel Paper, Deposit Accounts, Documents, General Intangibles, Payment Intangibles, Investment Property, Letter-of-Credit Rights, Letters of Credit and Supporting Obligations.

November Collateral means the Collateral described in clauses (a) through (j) of Section 2 hereof.

November Documents means (a) the Loan Agreement, the Notes, the November Security Agreement, the Account Control Agreements, the GSAP Indenture Transaction Documents and the Flume No. 8 Security Documents, (b) after the Custodial Transfer Date, the Master Custody Agreement, (c) any document designated as a “Security Document” in any Collateral Addition Designation Notice, (d) all of the security agreements, pledges, collateral assignments, mortgages, deeds of trust, trust deeds or other instruments evidencing or creating or purporting to create any security interests in favor of the Lender Agent for its benefit and for the benefit of the Lender Parties, (e) the Contribution Agreements and (f) all notices, certificates, financing statements, agreements and other documents to be executed and delivered by RAHI, PATI, ResCap, RFC or GMAC Mortgage pursuant to the foregoing or otherwise in connection with the Loan Agreement or the extension of financing by the Lenders contemplated thereunder.

November Security Agreement means the Pledge and Security Agreement and Irrevocable Proxy, dated as of November 20, 2008, by and among RAHI, PATI, ResCap, RFC and GMAC Mortgage, as grantors, and GMAC LLC, as Lender Agent, as the same has been amended, restated or otherwise modified through the date hereof.

Obligations means obligations, indebtedness, fees, expenses (including, without limitation, attorneys’ fees and expenses ) and liabilities of any ResCap Counterparty or Grantor to any Secured Party under any Specified Document, now existing or hereafter arising under or in connection with the Specified Documents, whether monetary or otherwise, matured or unmatured, direct, indirect, related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several, or joint and several, and any interest accruing thereon (including any interest that accrues after the commencement of any proceeding by or against any ResCap Counterparty or any other Person under any bankruptcy, insolvency, liquidation, moratorium, receivership, reorganization or other debtor relief law) and all attorneys’ fees and other expenses incurred in the collection or enforcement thereof; including

 

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without limitation (a) the obligations, indebtedness and liabilities of the ResCap Counterparties under the Master Netting Agreement or otherwise pursuant to the terms of the other Derivative Documents, (b) all other “Obligations” as defined in the Loan Agreement; and (c) all other “Secured Obligations” as defined in the MSR Loan Agreement.

Permitted Liens means (a) Liens arising under this Agreement or the other Security Documents, (b) with respect to all “Collateral” as defined in the November Security Agreement, any Liens permitted under the Loan Agreement, (c) with respect to all Derivative Collateral, any Liens permitted under the Derivative Documents and (d) with respect to all “Collateral” as defined in the MSR Loan Agreement, any Liens permitted under the MSR Loan Agreement.

Pledged Interest Issuer means each Person identified in Exhibit D of Schedule IV hereto as a Pledged Interest Issuer.

Pledged Interests means (a) all member interests, general or limited partnership interests or other ownership interests of any Pledged Interest Issuer described in Exhibit D of Schedule IV hereto; and (b) all assets, rights or property related to the foregoing (including, without limitation, all registrations, certificates, articles or agreements governing or representing any such interests; all options and other rights, contractual or otherwise, related to such interests; and all Distributions, Dividends and other Property now or hereafter received, receivable or otherwise distributed in respect of or in exchange for any or all of such interests, in each case if and to the extent any of the foregoing evidence or relate to the items described in clause (a)  hereof).

Pledged Note Issuer means each Person identified in Exhibit C of Schedule IV hereto as the issuer of the Pledged Note identified opposite the name of such Person.

Pledged Note Lien means any and all liens or security interests securing the obligation of a Pledged Note Issuer evidenced by the applicable Pledged Note, and all collateral subject to such liens and security interests.

Pledged Notes means (a) all of the promissory notes described in Exhibit C of Schedule IV hereto, as such promissory notes are amended, restated, modified or supplemented from time to time, and any promissory note taken in extension or renewal thereof or substitution therefor; and (b) all assets, rights or property related thereto (including, without limitation, all instruments or agreements governing or representing all or any of such notes; all rights, contractual or otherwise, at any time existing with respect to such notes; and all Distributions, Dividends and other Property now or hereafter received, receivable or otherwise distributed in respect of or in exchange for any or all of such notes, in each case if and to the extent any of the foregoing evidence or relate to the items described in clause (a)  hereof).

Pledged Property means all Pledged Interests, all Pledged Notes, all Pledged Shares, all other securities, all assignments of any amounts due or to become due, all other instruments which are now being or have previously been delivered by any Grantor to a Secured Party or the Omnibus Agent or an agent, custodian, designee or bailee of the Omnibus Agent pursuant to any Specified Document, or may from time to time hereafter be delivered by any Grantor to the Omnibus Agent or an agent, custodian, designee or bailee of the Omnibus Agent pursuant to any Specified Document, for the purpose of pledge under this Agreement, the November Security Agreement or any other Specified Document.

 

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Pledged Share Issuer means each Person identified in Exhibit B of Schedule IV hereto as the issuer of the Pledged Shares identified opposite the name of such Person.

Pledged Shares means (a) all shares of capital stock of any Pledged Share Issuer identified in Exhibit B of Schedule IV hereto; and (b) all assets, rights or property related thereto (including, without limitation, all registrations, certificates, articles, or agreements governing or representing any such interest; all options and other rights, contractual or otherwise, at any time existing with respect to all or any of such shares; and all Distributions, Dividends and other Property now or hereafter received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares, in each case if and to the extent any of the foregoing evidence or relate to the items described in clause (a)  hereof).

Property means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, including, without limitation, cash, securities, accounts and contract rights.

Provident Warehouse Agreement shall have the meaning ascribed to such term in the Loan Agreement.

Provident Warehouse Facility Documents means the Provident Warehouse Agreement, the Provident Warehouse Note and all other agreements, contracts, documents and instruments evidencing or relating to the Provident Warehouse Agreement or the Provident Warehouse Note.

Provident Warehouse Note means that Servicing Facility Promissory Note, dated as of June 14, 2007, and issued by Provident Funding Associates, L.P. in favor of RFC, as the same may be amended, supplemented, restated or otherwise modified from time to time, and including any notes given in substitution or replacement therefor.

Related Escrow Account Balance means the balance, on the related Funding Date, of any escrow or impound accounts maintained by either RFC or GMAC Mortgage which relate to any Mortgage Loan, including, without limitation, items escrowed for mortgage insurance, property taxes (either real or personal), hazard insurance, flood insurance, ground rents, or any other escrow or impound items required by any Mortgage Note or Mortgage, reduced by any unpaid real estate taxes or insurance premiums required to be paid by RFC or GMAC Mortgage, as applicable, with respect to which amounts have been escrowed by the related Mortgagor.

Related Principal and Interest Custodial Account means all principal and interest custodial accounts maintained by either RFC or GMAC Mortgage that relate to any Mortgage Loan or pool of Mortgage Loans.

ResCap Counterparty has the meaning ascribed to it in the Loan Agreement.

Secured Parties means (i) GMAC IM, (ii) GMAC LLC, as lender under the MSR Loan Agreement, (iii) each “Indemnified Party” as defined in the MSR Loan Agreement, (iv) the Lender Agent, for the benefit of the Lender Parties under the Loan Agreement and (v) any other Person to whom any Obligation is owed.

 

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Secured Transactions means all transactions contemplated by the Specified Documents.

Senior Debt Agent means GMAC LLC, in its capacity as “Lender Agent” under the Senior Debt Security Documents.

Servicing Contract means either (i) any agreement, whether titled a “servicing agreement,” a “pooling and servicing agreement,” a “sale and servicing agreement,” or otherwise, pursuant to which either RFC or GMAC Mortgage is obligated to perform collection, enforcement or foreclosure services with respect to, or to maintain and remit any funds collected from persons obligated on any mortgage loan or pool of mortgage loans; provided, however that “Servicing Contracts” shall not include any such agreements (a) entered into with the Government National Mortgage Association, the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation, (b) identifying mortgage loans or pools of mortgage loans owned by either RFC or GMAC Mortgage or (c) identifying any mortgage loans or pools of mortgage loans transferred (whether absolutely or for security) pursuant to a master repurchase agreement to which either RFC or GMAC Mortgage is a party; and (ii) any agreement listed on Schedule II to the MSR Loan Agreement as such schedule may be amended from time to time.

Servicing Fee means the total amount of the fee payable to RFC or GMAC Mortgage as compensation for servicing and administering the Mortgage Loans.

Servicing Rights means each of RFC’s and GMAC Mortgage’s right, title and interest in, to and under each Servicing Contract, whether now or hereafter existing, acquired or created, whether or not yet accrued, earned, due or payable, as well as all other present and future right and interest under such Servicing Contract, including, without limitation, the right (i) to receive the Servicing Fee income payable after the related Funding Date (including without limitation, any Uncollected Fees), (ii) to receive reimbursement for any Advances, (iii) any and all Ancillary Income received after the related Funding Date, (iv) to hold and administer the Related Escrow Account Balances, (v) to hold and administer, in accordance with the applicable Servicing Contract, the Related Principal and Interest Custodial Account, the Custodial File, and the Mortgage File arising from or connected to the servicing of such Mortgage Loan under the MSR Loan Agreement and (vi) all proceeds, income, profits, rents and products of any of the foregoing; but with respect to (i)-(vi) above specifically excluding the Excluded Collateral.

Specified Documents means (i) each of the Derivative Documents, (ii) each of the November Documents, and (iii) each of the MSR Documents.

UCC means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that, as used in Section 7(a) hereof, “ UCC ” shall mean the Uniform Commercial Code as in effect from time to time in any applicable jurisdiction.

Uncollected Fees means, with respect to any Mortgage Loan, any accrued late charges, NSF fees, assumption fees, and other fees charged to Mortgagors in connection with the servicing of such Mortgage Loan which have not been collected by either RFC or GMAC Mortgage as of the related Funding Date.

 

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Underlying Documents has the meaning ascribed to such term in the Loan Agreement.

Warehouse Agreement means, as the context may require, the First Savings Warehouse Agreement or the Provident Warehouse Agreement; and Warehouse Agreements means both of them.

Warehouse Facility Document means, as the context may require, a First Savings Warehouse Facility Document or a Provident Warehouse Facility Document; and Warehouse Facility Documents means both of them.

Warehouse Loans mean loans made by RFC pursuant to a Warehouse Agreement to the borrower under such agreement.

2. Grant of Security Interest by Grantors . As security for the prompt payment in full in cash and performance of all Obligations, each of the Grantors hereby pledges to the Omnibus Agent and hereby grants a continuing security interest to the Omnibus Agent in all of each such Grantor’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:

(a) all Pledged Shares of each Pledged Share Issuer identified in Exhibit B of Schedule IV hereto and all assets, rights or property related thereto;

(b) (i) all Flume No. 8 Notes and all other Pledged Notes (including, without limitation, the Flume No. 8 Initial Note, the First Savings Warehouse Note and the Provident Warehouse 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 and all Pledged Note Liens, if and to the extent the foregoing evidence or relate to the Flume No. 8 Notes or such other Pledged Notes);

(c) (i) all Pledged Interests (including, without limitation, the equity interests owned by RAHI in RAHI A, LLC, a Delaware limited liability company and by PATI in PATI A, LLC, a Delaware limited liability company), and (ii) all assets, rights or property related thereto;

(d) (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, Warehouse Loans or Warehouse Facility Documents;

(e) 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, Warehouse Loans or Warehouse Facility Documents;

(f) 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

 

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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, Warehouse Loans or Warehouse Facility Documents;

(g) 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, Warehouse Loans or Warehouse Facility Documents;

(h) (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, Warehouse Loans or Warehouse Facility Documents, 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, Warehouse Loans or Warehouse Facility Documents;

(i) 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 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, Warehouse Loans or Warehouse Facility Documents;

(j) all Proceeds, products, offspring, rents, issues, profits and returns of and from, and all distributions on any of the foregoing;

(k) all MSR Collateral; and

(l) all Derivative Collateral.

Nothing herein shall release or otherwise impair any security interest granted under any of the other Specified Documents, each of which will remain in full force and effect in accordance with its terms.

3. Representations and Warranties .

(a) Each Grantor represents and warrants that:

(i) no financing statement (other than the UCC financing statements filed in connection with the Contribution Agreements or any other UCC financing statements which may have been filed on behalf of GMAC LLC, in any capacity, or in connection with Permitted Liens) covering any of the Collateral will be on file in any public office;

 

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(ii) (A) such Grantor is and will be the lawful owner of all Collateral in which it has rights, free of all Liens and claims whatsoever, other than the security interest hereunder and Permitted Liens, with full power and authority to execute and deliver this Agreement and perform such Grantor’s obligations hereunder, and to subject the Collateral to the security interest hereunder and (B) none of the Collateral of such Grantor that constitutes Collateral is subject to any Liens other than Permitted Liens;

(iii) all information with respect to the Collateral and Account Debtors set forth in any schedule, certificate or other writing at any time heretofore or hereafter furnished by such Grantor to the Omnibus Agent or any other Secured Party is and will be true and correct in all material respects as of the date specified therein (or, if no date is so specified, as of the date furnished);

(iv) such Grantor’s true legal name as registered in the jurisdiction in which such Grantor is organized or incorporated, jurisdiction of organization or incorporation, federal employer identification number, organizational identification number, if any, as designated by the state of its organization, formation or incorporation, chief executive office and principal place of business are as set forth on Schedule I hereto (and such Grantor has not maintained its chief executive office and principal place of business at any other location at any time after January 1, 2003 except as otherwise disclosed in writing to the Omnibus Agent);

(v) each other location where such Grantor maintains a place of business is set forth on Schedule II hereto or as otherwise disclosed in writing to the Omnibus Agent;

(vi) except as disclosed on Schedule III hereto, such Grantor is not now known and during the five years preceding the date hereof has not previously been known by any trade name;

(vii) except as disclosed on Schedule III hereto, during the five years preceding the date hereof such Grantor has not been known by any legal name different from the one set forth on the signature page of this Agreement nor has such Grantor been the subject of any merger or other corporate reorganization;

(viii) Schedule V hereto lists all Bailment Collateral that the Grantors are required to deliver to the Omnibus Agent as of the date hereof or as of such later date on which an update or supplement to such Schedule is hereafter delivered in accordance with the terms of this Agreement;

(ix) Schedule IX hereto contains a complete listing of all of such Grantor’s Commercial Tort Claims in excess of $10,000,000 in value;

(x) such Grantor is a corporation, limited partnership or limited liability company as specified in Schedule I hereto and is duly organized, validly existing and in good standing under the laws of the state of its incorporation, formation or organization;

(xi) the execution and delivery of this Agreement, the grant of the security interest, proxy and other rights granted herein and the performance by such Grantor of its

 

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obligations hereunder are within such Grantor’s corporate, partnership or limited liability company powers, have been duly authorized by all necessary corporate, partnership or limited liability company action, have received all necessary governmental approvals (if any shall be required), and do not and will not contravene or conflict with any provision of law or of the charter or by-laws or other organizational documents of such Grantor or any judgment, order or decree, which is binding upon such Grantor and will not cause a breach, default or event of default under of any agreement, indenture, instrument or other document to which such Grantor is a party;

(xii) this Agreement is a legal, valid and binding obligation of such Grantor, enforceable in accordance with its terms, except that the enforceability of this Agreement may be limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);

(xiii) such Grantor has not performed any act which might prevent the Omnibus Agent from enforcing the terms of this Agreement or which could limit the Omnibus Agent in any such enforcement;

(xiv) no Collateral is in the possession of any Person (other than such Grantor or a custodian, securities intermediary or account bank appointed by such Grantor) asserting any claim thereto or security interest therein (other than Permitted Liens), except that the Omnibus Agent or its designee or agent may have possession of Collateral as contemplated pursuant to the Specified Documents;

(xv) on or prior to the date hereof, (A) the Flume No. 8 Initial Note has been contributed by ResCap to GMAC Residential Holding Company, LLC, from GMAC Residential Holding Company, LLC to GMAC Mortgage, and from GMAC Mortgage to PATI; (B) the GSAP Class A-1 Preference Shares have been contributed by RAHI to RAHI A, LLC; and (C) the GSAP Class A-2 Preference Shares have been contributed by PATI to PATI A, LLC;

(xvi) this Agreement creates a valid security interest in the Collateral, securing the payment of the Obligations, and all filings and other actions necessary to perfect and protect such security interest under the UCC have been duly taken, and such security interest shall be prior to all other security interests covering the Collateral (except for Permitted Liens); provided that to the extent that no Specified Document requires a Deposit Account constituting Collateral to be perfected under the UCC at the time of the making of the representation in this clause (xvi) , the representation in this clause (xvi)  shall not apply to such Deposit Account;

(xvii) in the case of any Pledged Shares constituting Collateral, all of such Pledged Shares when issued will be duly authorized and validly issued, fully paid, and non-assessable, and constitute all of the issued and outstanding shares of capital stock of each Pledged Share Issuer owned by the Grantor set forth across from the name of such Pledged Share Issuer on Exhibit B of Schedule IV hereto, except as otherwise set forth thereon;

 

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(xviii) in the case of each Pledged Note and the Pledged Note Liens, all of such Pledged Notes and Pledged Note Liens, if any, when issued will be duly authorized, executed, endorsed, issued and delivered, and are the legal, valid and binding obligation of the issuers thereof, and are not in default; and each Pledged Note is issued by the Pledged Note Issuer so identified in Exhibit C to Schedule IV and is owned by the Pledged Note Holder so identified in Exhibit C to Schedule IV ;

(xix) in the case of any Pledged Interests constituting Collateral, such Pledged Interests constitute one hundred percent (100%) of the Grantor’s interest in the Pledged Interest Issuer and the percentage of the total membership, partnership or other equity interests in the Pledged Interest Issuer indicated on Exhibit D of Schedule IV hereto, except as otherwise set forth thereon. The Pledged Interests indicated on Exhibit D of Schedule IV hereto are duly registered in the permanent ownership records of the respective Pledged Interests Issuer, and such registration is maintained in the principal office of such issuer. Such registration continues valid and genuine and has not been altered. All Pledged Interests have been duly authorized and validly issued, are fully paid and non-assessable, and were not issued in violation of the preemptive rights, if any, of any Person or of any agreement by which any Grantor is bound. All documentary, stamp or other taxes or fees owing in connection with the registration, issuance, transfer or pledge of Collateral have been paid. No restrictions or conditions exist with respect to the registration, transfer, voting or pledge of any Pledged Interests (other than usual or customary securities laws or ERISA restrictions). All requisite formalities for the granting of a security interest in the Pledged Interests required pursuant to the organizational documents of the Grantors or the Pledged Interest Issuer have been complied with on or prior to the execution and delivery of this Agreement. Each Grantor represents that, as of the date hereof, none of the Pledged Interests is dealt with or traded on any securities exchange or in any securities market; and

(xx) in the case of any Deposit Account identified in Exhibit A of Schedule IV hereto, the only deposits that at any time will be made to such account will consist of proceeds of the Pledged Shares identified on Exhibit B of Schedule IV hereto or Pledged Notes identified on Exhibit C of Schedule IV hereto or Pledged Interests identified on Exhibit D of Schedule IV hereto or of other Collateral acceptable to the Omnibus Agent;

4. Grantor Remains Liable; Nature of Security Interest; Subrogation, etc .

(a) Anything herein to the contrary notwithstanding, (i) each Grantor shall remain liable under the contracts and agreements included in the Collateral to the extent set forth therein, and will perform all of its duties and obligations under such contracts and agreements to the same extent as if this Agreement had not been executed, (ii) the exercise by the Omnibus Agent of any of its rights hereunder shall not release any Grantor from any of its duties or obligations under any such contracts or agreements included in the Collateral, and (iii) neither the Omnibus Agent nor any other Secured Party shall have any obligation or liability under any contracts or agreements included in the Collateral by reason of this Agreement, nor shall the Omnibus Agent nor any other Secured Party be obligated to perform any of the obligations or duties of any Grantor thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.

 

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(b) This Agreement shall in all respects be a continuing, absolute, unconditional and irrevocable grant of security interest to the Omnibus Agent and shall remain in full force and effect until all Obligations have been paid in full in cash and all Secured Transactions have terminated. All rights of the Secured Parties and the security interests granted to the Omnibus Agent (for its benefit and the benefit of each other Secured Party) hereunder, and all obligations of the Grantors hereunder, shall, in each case, be absolute, unconditional and irrevocable irrespective of (i) any lack of validity, legality or enforceability of any Specified Document, (ii) the failure of any Secured Party (A) to assert any claim or demand or to enforce any right or remedy against any Grantor or any other Person under the provisions of any Specified Document or otherwise, or (B) to exercise any right or remedy against any other guarantor of, or collateral securing, any Obligations, (iii) any change in the time, manner or place of payment of, or in any other term of, all or any part of the Obligations, or any other extension, compromise or renewal of any Obligations, (iv) any reduction, limitation, impairment or termination of any Obligations (except until all Obligations have been paid in full in cash and all Secured Transactions have terminated) for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to (and each Grantor hereby waives any right to or claim of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other event or occurrence affecting, any Obligations or otherwise, (v) any amendment to, rescission, waiver, or other modification of, or any consent to or departure from, any of the terms of any Specified Document, (vi) any addition, exchange or release of any Collateral of the Obligations, or any surrender or non-perfection of any Collateral, or any amendment to or waiver or release or addition to, or consent to or departure from, any other guaranty held by the Omnibus Agent or any other Secured Party securing any of the Obligations, or (vii) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, any Grantor or any other Grantor, any surety or any guarantor.

(c) Until one year and one day after all Obligations have been paid in full in cash and all Secured Transactions under the Specified Documents have terminated, each Grantor hereby irrevocably waives any claim or other rights which it may now or hereafter acquire against any ResCap Counterparty or any other Grantor that arise from the existence, payment, performance or enforcement of such Grantor’s obligations under this Agreement or any other Specified Document, including any right of subrogation, reimbursement, exoneration or indemnification, any right to participate in any claim or remedy of the Omnibus Agent or any other Secured Party against any ResCap Counterparty or any other Grantor or any Collateral which the Omnibus Agent or any other Secured Party now has or hereafter acquires, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including the right to take or receive from any ResCap Counterparty or any other Grantor, directly or indirectly, in cash or other property or by set-off or in any manner, payment or security on account of such claim or other rights. If any amount shall be paid to any Grantor in violation of the preceding sentence and the Obligations shall not have been indefeasibly paid in full in cash or all Secured Transactions have not been terminated, then such amount shall be deemed to have been paid to such Grantor for the benefit of, and held in trust for, the Omnibus Agent (on behalf of the Secured Parties), and shall forthwith be paid to the Omnibus Agent to be credited and applied upon the Obligations, whether matured or unmatured. Each Grantor acknowledges that it will receive direct and indirect benefits from the transactions contemplated by the Specified Documents and that the waiver set forth in this Section 4(c) is knowingly made in contemplation of such benefits.

 

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(d) Except as otherwise provided in any Specified Agreement, if any Secured Party may, under applicable Requirements of Law, proceed to realize its benefits under this Agreement or any Specified Documents giving any Secured Party a lien upon any Collateral, either by judicial foreclosure or by non-judicial sale or enforcement, such Secured Party may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Agreement. If, in the exercise of any of its rights and remedies, any Secured Party shall forfeit any of its rights or remedies, including its right to enter a deficiency judgment against any Grantor or any other Grantor or any other Person, whether because of any applicable Requirements of Law pertaining to “election of remedies” or the like, each Grantor hereby consents to such action by such Secured Party and waives any claim based upon such action, even if such action by such Secured Party shall result in a full or partial loss of any rights of subrogation that such Grantor might otherwise have had but for such action by such Secured Party.

5. Collections, etc . Until such time during the existence of an Event of Default as the Omnibus Agent shall notify such Grantor of the revocation of such power and authority, each Grantor (a) will, at its own expense, endeavor to collect, as and when due, all amounts due under any of the Non-Tangible Collateral, including the taking of such action with respect to such collection as the Omnibus Agent may reasonably request or, in the absence of such request, as such Grantor may deem advisable; and (b) may grant, in the ordinary course of business, to any party obligated on any of the Non-Tangible Collateral, any rebate, refund or allowance to which such party may be lawfully entitled, and may accept, in connection therewith, the return of Goods, the sale or lease of which shall have given rise to such Collateral. The Omnibus Agent, however, may, at any time that an Event of Default has occurred and is continuing, whether before or after any revocation of such power and authority or the maturity of any of the Obligations, notify any party obligated on any of the Non-Tangible Collateral to make payment or otherwise render performance to or for the benefit of the Omnibus Agent and enforce, by suit or otherwise the obligations of any such party obligated on any Non-Tangible Collateral. In connection therewith, the Omnibus Agent may surrender, release or exchange all or any part thereof, or compromise or extend or renew for any period (whether or not longer than the original period) any indebtedness thereunder or evidenced thereby. Upon request of the Omnibus Agent following the occurrence and during the continuation of an Event of Default, each Grantor will, at its own expense, notify any party obligated on any of the Non-Tangible Collateral to make payment to the Omnibus Agent of any amounts due or to become due thereunder.

6. Release . Until all of the Obligations have been paid in full in cash and all Secured Transactions under the Specified Documents have been terminated, the Omnibus Agent may release Collateral from the security interest granted to the Omnibus Agent pursuant to this Agreement or any other agreement in its sole discretion. Notwithstanding the foregoing, the Omnibus Agent agrees that: (a) if the Lender Agent agrees to release its security interest with respect to any of the November Collateral (other than in connection with the termination of November Documents), the Omnibus Agent will also release its security interest on such released Collateral; (b) if GMAC LLC, as Lender under the MSR Loan Agreement agrees to release its security interest with respect to any of the MSR Collateral (other than in connection with the termination of MSR Documents), the Omnibus Agent will also release its security interest on such released MSR Collateral; and (c) if GMAC IM agrees to release its security interest with respect to any of the Derivative Collateral (other than in connection with the termination of the related Derivative Agreement), the Omnibus Agent will also release its security interest on such released Derivative Collateral. Upon any such

 

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release, the Omnibus Agent will, at the Grantors’ joint and several expense, deliver to the relevant Grantor, without any representations, warranties or recourse of any kind whatsoever, such released Collateral held by the Omnibus Agent hereunder, and execute and deliver to the Grantor such documents as such Grantor shall reasonably request to evidence such release.

7. Agreements of the Grantors . (a) Each Grantor:

(i) will execute and/or deliver such financing statements (or any equivalent filings in the United Kingdom or any other jurisdiction) and other documents (and pay the cost of filing or recording the same in all public offices reasonably determined to be appropriate by the Omnibus Agent) and do such other acts and things (including, without limitation, delivery to the Omnibus Agent of any Instruments and Certificated Securities which constitute Collateral), all as Omnibus Agent may from time to time reasonably request, to establish and maintain a valid perfected security interest in the Collateral (free of all other liens, claims and rights of third parties whatsoever, other than Permitted Liens) to secure the payment of the Obligations (and each Grantor authorizes the Omnibus Agent to file, without limitation, any financing statement (or any equivalent filings in the United Kingdom or any other jurisdiction) that (i) indicates the Collateral (x) as being of an equal or lesser scope or with greater detail, or (y) in any manner that the Omnibus Agent in good faith deems to be an appropriate or adequate description of the Collateral for purposes of perfection under the UCC or for purposes of notice, and (ii) contains any other information required by Section 5 of Article 9 of the UCC of the jurisdiction wherein such financing statement is filed regarding the sufficiency or filing office acceptance of any financing statement (or any equivalent filings in the United Kingdom), including