Third Amendment Agreement



 Exhibit 10.28 
 EXECUTION COPY 
 THIRD AMENDMENT AGREEMENT 
 To Omnibus 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 
 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, as Credit Agent under the Credit Agreement 
 and as a Secured Party 
  


					
		  		  	 Third Amendment Agreement to
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 This THIRD 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”); 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 of RAHI, PATI, ResCap, and RFC, 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 under the Loan Agreement, as Lender under the MSR Loan Agreement, as Credit Agent under the Credit Agreement and as a Secured Party. 
 Reference is hereby made to the Omnibus Pledge and Security Agreement and Irrevocable Proxy dated as of March 18, 2009 among the Grantors, GMAC IM
and the Omnibus Agent (as amended and modified through the date hereof, the “Omnibus Security Agreement”). 
 RECITALS

 1. Each of the parties hereto is a party to the Omnibus Security Agreement. 
 2. The parties hereto desire to make certain amendments to the Omnibus 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 Omnibus Security Agreement. 
  


					
		  		  	 Third Amendment Agreement to
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 ARTICLE II 
 AMENDMENTS TO THE OMNIBUS 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. 
 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 Omnibus Security Agreement is hereby amended and restated to read as follows: 
 “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 Mortgage Loans and all assets, rights or property related thereto; 
 (b) all Pledged Shares of each Pledged Share Issuer identified in Exhibit B of Schedule IV hereto and all assets, rights or
property related thereto; 
 (c) (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) (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; 
 (e) (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; 
 (f) 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; 
 (g) 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; 
 (h) 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; 
 (i) (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) 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, GX II Security Documents, Warehouse Loans, Warehouse
Facility Documents or Pledged Mortgage Loans; 
 (k) all Proceeds, products, offspring, rents, issues, profits and returns of
and from, and all distributions on any of the foregoing; 
 (l) all MSR Collateral; and 
 (m) 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. 
 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 the GX II Notes and the related GX II Security Documents to the Omnibus Agent.” 
 SECTION 2.3
Amendments to Schedule IV. 
 (a) Exhibit C to Schedule IV of the Omnibus Security Agreement is hereby amended by inserting the
following: 
  

					
	 Pledged Note Issuer
	  	 Pledged Note
	  	 Pledged Note Holder

	GX CE Funding II B.V.	  	All GX II Notes, including, without limitation, that certain GX II Initial Note constituted by and issued pursuant to the GX II VFLN Agreement dated as of June 5, 2009, and made between GX CE
Funding II B.V., Residential Capital, LLC, Stichting Security Trustee GX CE Funding II, GMAC-RFC Investments B.V. and GMAC RFC Nederland B.V.	  	Passive Asset Transactions, LLC

  


					
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 SECTION 2.4 Amendment to Schedule V. Schedule V of the Omnibus Security Agreement is hereby
amended and restated as follows: 
 “First Savings Warehouse Note 
 Provident Warehouse Note 
 Flume No. 8
Notes 
 RAHI A, LLC Membership Interest 
 PATI A, LLC Membership Interest 
 GX II Notes” 
 SECTION 2.5 Collateral Addition Designation Notice. This Agreement shall constitute a Collateral Addition Designation Notice (as defined in the Loan Agreement) with respect to the GX II Security Documents and
the foregoing shall, to the extent the foregoing constitute Eligible Assets (as defined in the Loan Agreement), constitute Approved Additional Collateral (as defined in the Loan Agreement) as of the Amendment Effective Date. 
 ARTICLE III 
 CONDITIONS TO EFFECTIVENESS

 SECTION 3.1 Amendment Effective Date. This Agreement and the provisions contained herein shall become effective as of the Amendment
Effective Date. 
 SECTION 3.2 UCC Financing Statements. The effectiveness of this Agreement shall be subject to the filing of proper
financing statements (Form UCC-1 or Form UCC-3, as the case may be), naming each Borrower, each Guarantor and each Grantor as debtor and the Omnibus Agent as the secured party, or other, similar instruments or documents, and the taking of all
actions under the UCC or any Requirements of Law (including under English law and Dutch law) as necessary or reasonably requested by the Lender Agent to perfect the Omnibus Agent’s security interest in the Collateral. 
 SECTION 3.3 Opinions. The Obligors shall deliver, on the date hereof, opinions of counsel to the Borrowers, the Guarantors and Grantors with
respect to the transactions contemplated hereby, which opinions shall be in form and substance satisfactory to the Omnibus Agent. 
 SECTION
3.4 Other. The Obligors shall deliver, on the date hereof, such other opinions and documents as the Lender Agent may reasonably request, which opinions and documents will be in form and substance satisfactory to the Omnibus Agent. 

 


					
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 ARTICLE IV 
 ACKNOWLEDGEMENTS, CONSENTS, NOTICE, CONFIRMATION AND 
 REPRESENTATIONS AND WARRANTIES 
 SECTION 4.1 Notice. Each party hereto hereby acknowledges timely notice of the execution of this Agreement and of the transactions and amendments
contemplated hereby. Each party hereto hereby waives any notice requirement contained in the Omnibus Security Agreement or the Specified Documents with respect to the execution of this Agreement. 
 SECTION 4.2 Confirmation of the Omnibus Security Agreement. The Grantors each hereby acknowledge and agree that the Omnibus Security Agreement and
each other Specified Document are each ratified and confirmed in all respects and shall remain in full force and effect in accordance with their respective terms. Without limiting the foregoing, each Grantor reaffirms its grant of a security
interest in all the Collateral pledged by it, and agrees that such security interest secures all Obligations as defined in the Omnibus Security Agreement. As of the Amendment Effective Date, each reference in the Omnibus Security Agreement to
“this Agreement” or in any other Specified Document to the “Omnibus Security Agreement” shall mean the Omnibus Security Agreement as amended by this Agreement, and as hereinafter amended or restated. 
 SECTION 4.3 Representations and Warranties. By its signature hereto, each Grantor hereby represents and warrants that, before and after giving
effect to this Agreement, as follows: 
 (a) Its representations and warranties set forth in the Specified Documents are true
and correct as if made on the date hereof, except to the extent they expressly relate to an earlier date; and 
 (b) No
Default has occurred and is continuing. 
 ARTICLE V 
 MISCELLANEOUS 
 SECTION 5.1 GOVERNING LAW. 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). 
 SECTION 5.2 Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original (whether such counterpart is originally executed or an electronic copy of an original and each party hereto expressly waives its rights to receive originally executed
documents) and all of which when taken together shall constitute one and the same agreement. 
  


					
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 SECTION 5.3 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO A TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. 
 SECTION 5.4 Entire Agreement.
This Agreement, the Security Agreement and the other Facility Documents embody the entire agreement and understanding of the parties hereto and supersede any and all prior agreements, arrangements and understanding relating to the matters provided
for herein. 
 SECTION 5.5 Captions. The various captions in this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. 
 SECTION 5.6 Severability. If any provision of this Agreement, or the
application thereof to any party or any circumstance, is held to be unenforceable, invalid or illegal (in whole or in part) for any reason (in any jurisdiction), the remaining terms of this Agreement, modified by the deletion of the unenforceable
invalid or illegal portion (in any relevant jurisdiction), will continue in full force and effect, and such unenforceability, invalidity or illegality will not otherwise affect the enforceability, validity or legality of the remaining terms of this
Agreement so long as this Agreement, as so modified, continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the deletion of such portion of this Agreement will not substantially
impair the respective expectations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. 
 SECTION 5.7 SUBMISSION TO JURISDICTION. EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY OF MANHATTAN OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO HEREBY CONSENTS TO PROCESS BEING SERVED IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, OR ANY DOCUMENT DELIVERED PURSUANT HERETO BY
THE MAILING OF A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO ITS RESPECTIVE ADDRESS SPECIFIED AT THE TIME FOR NOTICES UNDER THIS AGREEMENT OR TO ANY OTHER ADDRESS OF WHICH IT SHALL HAVE GIVEN WRITTEN
OR ELECTRONIC NOTICE TO THE OTHER PARTIES. THE FOREGOING SHALL NOT LIMIT THE ABILITY OF ANY PARTY HERETO TO BRING SUIT IN THE COURTS OF ANY JURISDICTION. 
  


					
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 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above written. 
  

			
	 RFC ASSET HOLDINGS II, LLC,
 as
Grantor

		
	By:	 	/s/ John M. Peterson
	Name:	 	John M. Peterson
	Title:	 	Treasurer


  


					
		  	S-1	  	 Third Amendment Agreement to
 Omnibus Pledge and Security Agreement











			
	 PASSIVE ASSET TRANSACTIONS, LLC,
 as Grantor


		
	By:	 	/s/ John M. Peterson
	Name:	 	John M. Peterson
	Title:	 	Treasurer


  


					
		  	S-2	  	 Third Amendment Agreement to
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	 RESIDENTIAL CAPITAL, LLC,
 as
Grantor

		
	By:	 	/s/ John M. Peterson
	Name:	 	John M. Peterson
	Title:	 	Assistant Treasurer


  


					
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	 RESIDENTIAL FUNDING COMPANY, LLC,
 as Grantor


		
	By:	 	/s/ John M. Peterson
	Name:	 	John M. Peterson
	Title:	 	Treasurer


  


					
		  	S-4	  	 Third Amendment Agreement to
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	 GMAC MORTGAGE, LLC,
 as
Grantor

		
	By:	 	/s/ John M. Peterson
	Name:	 	John M. Peterson
	Title:	 	Treasurer


  


					
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	 GMAC LLC,
 as Omnibus Agent,
 as Lender Agent under the Loan Agreement,
 as Lender under the MSR Loan
Agreement,
 as Credit Agent under the Credit Agreement and
 as
Secured Party

		
	By:	 	/s/ David C. Walker
	Name:	 	David C. Walker
	Title:	 	Business Unit Treasury Executive


  


					
		  	S-6	  	 Third Amendment Agreement to
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	 GMAC INVESTMENT MANAGEMENT LLC,
 as Secured
Party

		
	By:	 	/s/ Melissa Melvin
	Name:	 	Melissa Melvin
	Title:	 	Assistant Secretary


  


					
		  	S-7	  	 Third Amendment Agreement to
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 ACKNOWLEDGEMENT AND AGREEMENT BY THE SENIOR DEBT AGENT 
 The Senior Debt Agent hereby acknowledges and agrees with the Omnibus Agent that none of the Collateral is subject to the lien created by the Senior Debt
Security Documents. The Senior Debt Agent further agrees, upon request of the Omnibus Agent, to take such actions as are reasonably necessary to cause Wells Fargo Bank, N.A., as First Priority Collateral Agent under the Senior Debt Loan Agreement,
to confirm that no lien exists with respect to such Collateral pursuant to the Senior Debt Security Documents. 
  

			
	 GMAC LLC,
 as Senior Debt
Agent

		
	By:	 	/s/ David C. Walker
	Name:	 	David C. Walker
	Title:	 	Business Unit Treasury Executive


  


					
		  	S-8	  	 Third Amendment Agreement to
 Omnibus Pledge and Security Agreement