PLEDGE AGREEMENT
Exhibit 10.11
CONFORMED COPY
THIS
PLEDGE AGREEMENT (this “Agreement”) dated as of February 21, 2008 is among
RESIDENTIAL FUNDING COMPANY, LLC, a Delaware limited liability company (the “Pledgor”) and
GMAC LLC, as Agent (“the Agent” or the “Secured Party”).
W I T N E S S E T H:
WHEREAS, the Pledgor, the Lenders from time to time party thereto and the Agent entered into a
Credit Agreement dated as of the date hereof (as amended or otherwise modified from time to time,
the “Credit Agreement”) pursuant to which the Pledgor agreed to borrow, and GMAC agreed to
lend, up to $750,000,000; and
WHEREAS, the Pledgor has issued, and may issue from time to time promissory notes, (as amended
or otherwise modified from time to time, the “Notes”) to the Lenders with a maximum
principal amount of $750,000,000;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. When used herein, (a) the capitalized terms used but not defined
herein have the meanings assigned to such terms in the Credit Agreement and (b) the following terms
have the following meanings (such meanings to be applicable to both the singular and plural forms
of such terms):
Collateral
- see Section 2.
Issuer means RFC Resort Funding, LLC, a Delaware limited liability company.
Liabilities means all obligations (monetary or otherwise) of the Pledgor under
the Credit Documents howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due.
Pledged
Membership Interests - see Section 2A.
2. Pledge. As security for the payment of the Liabilities, the Pledgor hereby
collaterally assigns and pledges to the Secured Party, and grants to the Secured Party, a
continuing security interest in, all of the following:
A. All of the membership or other ownership interests in the Issuer, all other rights
to acquire membership or other ownership interests in the Issuer, at any time or from time
to time acquired by the Pledgor, any certificates representing any of the foregoing
(including those in the Issuer as shown on Schedule I hereto), and all investment
property in respect of such interests, including, without limitation, the Pledgor’s interest
in (or allocation of) the profits, losses, income, gains, deductions, credits or similar
items of the Issuer and the right to receive distributions of the Issuer’s
cash, other property, assets and all options and warrants for the purchase of
membership interests, whether now existing or hereafter arising, whether arising under the
terms of the certificates of formation, the limited liability company agreements or any of
the other organizational documents of the Issuer, or at law or in equity, or otherwise and
any and all of the proceeds thereof (all of said membership interests, and certificates
being hereinafter collectively referred to as the “Pledged Membership Interests”)
delivered to the Secured Party in connection herewith, and all distributions, cash,
instruments, investment property and other property from time to time received, receivable
or otherwise distributed in respect of, or in exchange for, any or all of the Pledged
Membership Interests;
B. Any additional membership or ownership interests and other rights to acquire
membership or other ownership interests in the Issuer, described from time to time owned or
acquired by the Pledgor in any manner, any certificates representing the foregoing interests
(any such additional interests constitute part of the Pledged Membership Interests, and the
Secured Party is irrevocably authorized to unilaterally amend Schedule I to reflect
such additional interests), and all options, warrants, distributions, investment property,
cash, instruments and other rights and options from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such interests (it
being agreed that the Pledgor shall promptly thereafter deliver to the Secured Party a
certificate duly executed by the Pledgor describing such percentage interests, certificates,
units or options and certifying that the same have been duly pledged hereunder);
C. All of the Pledgor’s right, title and interest in the loans listed on Schedule II
hereto, as such Schedule II may be amended from time to time (the “Pledged Loans”)
and the Related Security, and all of its interests in obligations of guarantors that have
guaranteed the repayment of the Pledged Loans;
D. All of the Pledgor’s right, title and interest in the Collections;
E. All other property hereafter delivered to the Secured Party in substitution for or
in addition to any of the foregoing, all certificates and instruments representing or
evidencing such property, and all cash, securities, interest, dividends, distributions,
rights and other property at any time and from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all thereof; and
F. All products and proceeds of all of the foregoing.
All of the foregoing are herein collectively called the “Collateral”.
The Pledgor agrees to deliver to the Secured Party, promptly upon receipt and in due form for
transfer (i.e., endorsed in blank or accompanied by stock or bond powers executed in
blank), any Collateral (other than payments which the Pledgor is entitled to receive and retain
pursuant to Section 5 hereof) which may at any time or from time to time be in or come into
the possession or control of the Pledgor; and prior to the delivery thereof to the Secured Party,
such
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Collateral shall be held by the Pledgor separate and apart from its other property and in
express trust for the Secured Party.
3. Warranties; Further Assurances. The Pledgor warrants to the Secured Party for the
benefit of each holder of Liabilities, that:
(a) the Pledgor is (or at the time of any future delivery, pledge, assignment or transfer
thereof will be) the legal and equitable owner of the Collateral, and such Collateral is free and
clear of all liens, security interests and encumbrances of every description whatsoever other than
the security interest created hereunder;
(b) all membership interests referred to in Schedule I hereto are duly authorized,
validly issued, fully paid and non-assessable;
(c) the Issuer (i) has not provided in its operative documents that its equity interests are
governed by Article 8 of the Uniform Commercial Code, (ii) has no equity securities dealt in or
traded on securities exchanges or markets and (iii) is not an investment company;
(d) Security Interest in Collateral.
(i) This Agreement creates a valid and continuing security interest (as defined in the
UCC) in the Collateral and the proceeds thereof in favor of the Secured Party which security
interest, upon the filing of a financing statement is, in the case of existing Collateral
and the proceeds thereof, enforceable upon execution of this Agreement, as such as against
creditors of the purchasers from the Pledgor accordance with its terms, expect as such
enforceability may be limited by the Enforceability Exceptions;
(ii) The Pledged Loans constitutes accounts, chattel paper, instruments or general
intangibles within the meaning of the UCC;
(iii) On the date of each Loan, the Pledgor owns good and marketable title to, or has a
valid security interest in, the Collateral free of any liens other than liens created
pursuant the terms of this Agreement and Permitted Liens, immediately prior to the date of
the Loan on which such Collateral becomes subject to this Agreement;
(iv) The Pledgor has caused the filing of all appropriate financing statements in the
proper filing offices in the appropriate jurisdictions under applicable law in order to
perfect the security interest in the Collateral that can be perfected by filing a financing
statement granted to the Secured Party hereunder; and
(v) Other than the security interest granted to the Secured Party pursuant to this
Agreement or any other Permitted Lien, the Pledgor has not pledged, assigned, sold, granted
a security interest in, or otherwise conveyed any of the Collateral. The Pledgor has not
authorized the filing of and is not aware of any mortgage, deed of trust, financing
statement or other instrument similar in effect against the Pledgor, the Originator or any
Developer that include a description of collateral covering the Collateral other than any
filing (i) relating to the security interest granted to the Secured Party hereunder, (ii)
that has been terminated or (iv) constitutes a Permitted Lien.
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(e) The chief place of business and chief executive office of the Pledgor are located at the
address of the Pledgor referred to in Section 9.2 of the Credit Agreement and the Pledgor
has been organized under the laws of the State of Delaware; and there are no, and during the past
four months there have not been any, other jurisdictions where the Pledgor has been organized. The
locations of the offices where the Pledgor keeps all the Records are in Minneapolis, Minnesota and
Phoenix, Arizona.
(f) The Pledgor has trade names, fictitious names, assumed names or “doing business as” names.
(g) The Pledgor is solvent and will not be rendered insolvent by the transactions contemplated
by the Credit Documents and, after giving effect to such transactions, the Pledgor will not be left
with an unreasonably small capital for the business in which it is engaged for any business or
transaction in which it is about to engage, the Pledgor has not intended to incur, or believe that
is has incurred, debts beyond its ability to pay such debts as they mature, and the Company does
not contemplate the commencement of insolvency, bankruptcy, liquidation or other proceedings for
the appointment of a receiver, liquidator, conservator trustee or similar official in respect of
the Pledgor or any of its assets.
(h) The information set forth on Schedules I and II are true and correct with
respect to each Pledged Membership Interest and Pledged Loan, respectively described therein.
(i) The Pledgor does not have knowledge of any discharge, spill, uncontrolled loss or seepage
of any Contaminant onto the property comprising or adjoining any location of a Resort or any other
condition at any Resort which reasonably be expected could lead to (i) any environmental liability
for the Pledgor or any Affiliate of Pledgor (ii) material environmental liability for any owner of
any Resort or (iii) the imposition of a Lien (other than a Permitted Lien) on a Resort or Timeshare
under any Environmental Law.
(j) The Pledgor shall xxxx within 120 days of receipt thereof, the portions of the computer
files relating to the Pledged Loans in possession by, or on behalf of the Pledgor and subject to
this Agreement to be clearly and unambiguously marked to indicate that each such Pledged Loans
constitutes part of the Collateral. Such marking shall be in a form which can be readily
deciphered by an Person reading such computer files.
So long as any of the Liabilities (other than contingent indemnification obligations with
respect to which no claim has been made) shall be outstanding, the Pledgor:
(i) shall not, without the prior written consent of the Secured Party, sell, assign,
exchange, pledge or otherwise transfer, encumber, or grant any option, warrant or other right to
purchase the equity interests of the Issuer or any notes which are pledged hereunder or
otherwise diminish or impair any of its rights in, to or under any of the Collateral;
(ii) shall cause to be filed, and hereby authorizes the Secured Party to file, such Uniform
Commercial Code financing statements and other documents (and pay the costs of filing and
recording or re-filing and re-recording the same in all public offices reasonably deemed
necessary or appropriate by the Secured Party) and do such other acts and
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things, all as the Secured Party 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, other than Permitted Liens) to secure the performance and payment
of the Liabilities;
(iii) shall execute and deliver to the Secured Party such stock or bond powers and similar
documents relating to the Collateral, reasonably satisfactory in form and substance to the
Secured Party, as the Secured Party may reasonably request; and
(iv) shall furnish the Secured Party or any holder of any Liabilities such information
concerning the Collateral as the Secured Party or such holder may from time to time reasonably
request, and shall permit the Secured Party or any holder of any Liabilities or any designee of
the Secured Party or such holder, from time to time at reasonable times and on reasonable notice
(or at any time without notice at any time that an Event of Default has occurred and is
continuing), to inspect, audit and make copies of and extracts from all records and all other
papers in the possession of the Pledgor which pertain to the Collateral.
4. Holding in Name of Secured Party, etc. The Secured Party may from time to time
after the occurrence and during the continuance of an Event of Default, without notice to the
Pledgor, take all or any of the following actions, subject, in each case, to the rights of the Bank Facility Agent under the Bank Facility Agreement and the Subordination Agreement: (a) transfer all
or any part of the Collateral into the name of the Secured Party or any nominee or sub-agent for
the Secured Party, with or without disclosing that such Collateral is subject to the lien and
security interest hereunder, (b) appoint one or more sub-agents or nominees for the purpose of
retaining physical possession of the Collateral, (c) notify the parties obligated on any of the
Collateral to make payment to the Secured Party of any amounts due or to become due thereunder, (d)
endorse any checks, drafts or other writings in the name of the Pledgor to allow collection of the
Collateral, (e) enforce collection of any of the Collateral by suit or otherwise, and surrender,
release or exchange all or any part thereof, or compromise or renew for any period (whether or not
longer than the original period) any obligations of any nature of any party with respect thereto
and (f) take control of any proceeds of the Collateral.
5. Voting Rights, Dividends and Payments, etc. (a) Notwithstanding certain
provisions of Section 4 hereof, so long as the Secured Party has not given the notice
referred to in subsection (b) below:
A. The Pledgor shall be entitled to exercise any and all voting, membership or
consensual rights and powers and purchase, contribution or subscription rights relating or
pertaining to the Collateral or any part thereof for any purpose that is not in violation of
this Agreement or the Credit Agreement.
B. The Pledgor shall be entitled to receive and retain any and all lawful dividends,
payments of principal, interest and other cash payments payable in respect of the Collateral
which are paid in cash by the Issuer if such dividends, interest and other cash payments are
permitted by the Credit Agreement, but all dividends and distributions in respect of the
Collateral or any part thereof made in shares of stock or securities or
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other property or representing any return of capital, whether resulting from a
subdivision, combination or reclassification of Collateral or any part thereof or received
in exchange for Collateral or any part thereof or as a result of any merger, consolidation,
acquisition or other exchange of assets to which the Issuer may be a party or otherwise or
as a result of any exercise of any stock purchase or subscription right, shall be and become
part of the Collateral hereunder and, if received by the Pledgor, shall be forthwith
delivered to the Secured Party in due form for transfer (i.e., endorsed in blank or
accompanied by stock or bond powers executed in blank) to be held for the purposes of this
Agreement.
C. The Secured Party shall execute and deliver, or cause to be executed and delivered,
to the Pledgor, all such proxies, powers of attorney, dividend orders and other instruments
as the Pledgor may request for the purpose of enabling the Pledgor to exercise the rights
and powers which it is entitled to exercise pursuant to clause (A) above and to
receive the dividends, interest and payments which it is authorized to retain pursuant to
clause (B) above.
(b) Upon notice from the Secured Party to the Pledgor during the existence of an Event of
Default, and so long as the same shall be continuing, all rights and powers which the Pledgor are
entitled to exercise pursuant to Section 5(a)(A) hereof, and all rights of the Pledgor to
receive and retain dividends, interest and payments pursuant to Section 5(a)(B) hereof,
shall forthwith cease, and all such rights and powers shall thereupon become vested in the Secured
Party, which shall have, during the continuance of such Event of Default, the sole and exclusive
authority to exercise such rights and powers and to receive such dividends, interest and payments.
Any and all money and other property paid over to or received by the Secured Party pursuant to this
subsection (b) shall be retained by the Secured Party as additional Collateral hereunder
and applied in accordance with the provisions hereof and of the other Credit Documents.
6. Remedies. Whenever an Event of Default shall have occurred and be continuing, the
Secured Party may exercise from time to time any rights and remedies available to it under the
Uniform Commercial Code as in effect in New York or otherwise available to it. Without limiting
the foregoing, whenever an Event of Default shall have occurred and be continuing the Secured
Party (a) may, to the fullest extent permitted by applicable law but subject to the rights of the
Bank Facility Agent under the Bank Facility Agreement and the Subordination Agreement, without
notice, advertisement, hearing or process of law of any kind, (i) sell any or all of the
Collateral, free of all rights and claims of the Pledgor therein and thereto, at any public or
private sale or brokers’ board and (ii) bid for and purchase any or all of the Collateral at any
such public sale and (b) shall have the right, for and in the name, place and stead of the Pledgor,
to execute endorsements, assignments, stock powers and other instruments of conveyance or transfer
with respect to all or any of the Collateral. The Pledgor hereby expressly waives, to the fullest
extent permitted by applicable law, any and all notices, advertisements, hearings or process of law
in connection with the exercise by the Secured Party of any of its rights and remedies during the
continuance of an Event of Default. Any notification of intended disposition of any of the
Collateral shall be deemed reasonably and properly given if given at least ten days before such
disposition. Any proceeds of any of the Collateral may be applied by the Secured Party to the
payment of expenses in connection with the Collateral, including, without limitation, reasonable
fees and disbursements of counsel, and any balance of such proceeds shall be applied
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by the Secured Party toward the payment of such of the Liabilities, and in such order of
application, as the Secured Party may from time to time elect (and, after payment in full of all
Liabilities, any excess shall be delivered to the Pledgor or as a court of competent jurisdiction
shall direct).
The Secured Party is hereby authorized to comply with any limitation or restriction in
connection with any sale of Collateral as it may be advised by counsel is necessary in order to (a)
avoid any violation of applicable law (including, without limitation, compliance with such
procedures as may restrict the number of prospective bidders and purchasers and/or further restrict
such prospective bidders or purchasers to persons or entities who will represent and agree that
they are purchasing for their own account for investment and not with a view to the distribution or
resale of such Collateral) or (b) obtain any required approval of the sale or of the purchase by
any governmental regulatory authority or official, and the Pledgor agrees that such compliance
shall not result in such sale being considered or deemed not to have been made in a commercially
reasonable manner and that the Secured Party shall not be liable or accountable to the Pledgor for
any discount allowed by reason of the fact that such Collateral is sold in compliance with any such
limitation or restriction.
7. General. The Secured Party shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral if it takes such action for that purpose as the
Pledgor shall request in writing, but failure of the Secured Party to comply with any such request
shall not of itself be deemed a failure to exercise reasonable care, and no failure of the Secured
Party to preserve or protect any rights with respect to the Collateral against prior parties, or to
do any act with respect to preservation of the Collateral not so requested by the Pledgor, shall be
deemed a failure to exercise reasonable care in the custody or preservation of any Collateral.
No delay on the part of the Secured Party in exercising any right, power or remedy shall
operate as a waiver thereof, and no single or partial exercise of any such right, power or remedy
shall preclude any other or further exercise thereof, or the exercise of any other right, power or
remedy. No amendment, modification or waiver of, or consent with respect to, any provision of this
Agreement shall be effective unless the same shall be in writing and signed and delivered by the
Secured Party, and then such amendment, modification, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
All obligations of the Pledgor and all rights, powers and remedies of the Secured Party and
the holders of Liabilities expressed herein are in addition to all other rights, powers and
remedies possessed by them, including, without limitation, those provided by applicable law or in
any other written instrument or agreement relating to any of the Liabilities or any security
therefor.
Upon payment in full in cash of all Liabilities (other than contingent indemnification
obligations with respect to which no claim has been made), the security interest of the Secured
Party hereunder shall terminate, and the Pledgor shall be entitled to the return, upon its request
and at its expense, of such of the Collateral held by the Secured Party as shall not have been sold
or otherwise applied pursuant to the terms hereof and the Secured Party will, at the Pledgor’s
expense, execute and deliver (without representation or recourse whatsoever) to the Pledgor such
other documents as the Pledgor may reasonably request to evidence such termination. In
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connection with any sales of assets permitted under the Credit Agreement, and provided
adequate provision is made for the application of the proceeds thereof in a manner consistent with
the requirements of the Credit Agreement, the Secured Party will release and terminate the liens
and security interests granted under this Security Agreement with respect to such assets.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPALS THEREOF (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW). Wherever 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.
All notices hereunder shall be in writing (including facsimile transmission) and shall be sent
to the applicable party at, in the case of the Pledgor, the address set forth for the Pledgor in
Section 9.2 of the Credit Agreement and, in the case of the Secured Party, the Secured Party’s
address set forth in Section 9.2 of the Credit Agreement. Notices sent by facsimile transmission
shall be deemed to have been given when sent with confirmation of receipt; notices sent by mail
shall be deemed to have been given five Business Days after the date when sent by registered or
certified mail, postage prepaid; and notices sent by hand delivery or overnight courier shall be
deemed to have been given when received.
This Agreement shall be binding upon the Pledgor and the Secured Party and their respective
successors and assigns, and shall inure to the benefit of the Pledgor and the Secured Party and the
successors and permitted assigns of the Secured Party.
This Agreement may be executed in any number of counterparts and by the different parties
hereto on separate counterparts, and each such counterpart shall be deemed an original but all such
counterparts shall together constitute but one and the same Agreement. At any time after the date
hereof, one or more additional Persons may become parties hereto by executing and delivering to the
Secured Party a counterpart of this Agreement together with a supplement to Schedules I and
II hereto setting forth all relevant information with respect to such Person as of the date of
such delivery. Immediately upon such execution and delivery (and without any further action), each
such additional Person will become a party to, and will be bound by the terms of, this Agreement.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT, MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE PLEDGOR HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE. THE PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
BY REGISTERED MAIL, POSTAGE
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PREPAID, TO THE ADDRESS OF THE COMPANY SPECIFIED IN SECTION 9.2 OF THE CREDIT AGREEMENT, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE PLEDGOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE PLEDGOR, THE SECURED PARTY AND (BY ACCEPTING THE BENEFITS HEREOF) EACH HOLDER OF
LIABILITIES HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND
AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as of the day and year
first written above.
| RESIDENTIAL FUNDING COMPANY, LLC, as Pledgor | ||||||
| By: | /s/ Xxxxx Xxxxxx
|
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| Title: | Managing Director | |||||
| GMAC LLC, as Secured Party | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Title: | Group Vice President and Treasurer | |||||
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SCHEDULE I
TO PLEDGE AGREEMENT
TO PLEDGE AGREEMENT
PLEDGED MEMBERSHIP INTERESTS
100% Membership Interest in RFC Resort Funding, LLC, a Delaware limited liability company
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