FIRST AMENDMENT TO THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF RESIDENTIAL CAPITAL, LLC
FIRST AMENDMENT TO THE
AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT OF
RESIDENTIAL CAPITAL, LLC
This
First Amendment (the "Amendment") to the
Amended and Restated Limited Liability Company Agreement of Residential Capital,
LLC, a Delaware limited liability company (the "Company"), dated as
of March 31, 2008 (the "Agreement"), by GMAC
Mortgage Group LLC (the "GMAC Member") and
GMAC LLC ("GMAC" or the "Preferred Member",
and together with the GMAC Member, the "Members") is made as
of March 31, 2009. Capitalized terms not defined herein shall have
the meanings ascribed to them in the Agreement.
WHEREAS,
the GMAC Member desires to amend the Agreement to provide for additional
provisions regarding the certification of the Interests;
NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
GMAC Member hereby agrees as follows:
Section
1. Insertion
of Section 11(d). The following language is to be inserted as
Section 11(d):
"(d) Membership
Interests. The Company hereby irrevocably elects that all
Interests (as defined below) in the Company shall constitute equity "securities"
governed by (i) Article 8 of the Uniform Commercial Code in effect in the State
of Delaware and (ii) the Uniform Commercial Code of any other applicable
jurisdiction that now or hereafter substantially includes the 1994 revisions to
Article 8 thereof as adopted by the American Law Institute and the National
Conference of Commissioners on Uniform State Laws and approved by the American
Bar Association on February 14, 1995, and any subscription paid for such
Interests becomes the property of the Company and is available for its general
purposes. Notwithstanding any provision of this Agreement to the
contrary, to the extent that any provision of this Agreement is inconsistent
with any non-waivable provision of Article 8 of the Uniform Commercial Code,
such provision of Article 8 of the Uniform Commercial Code shall be
controlling. Each certificate evidencing membership interests in the
Company shall bear the following legend: "This certificate evidences
an equity interest in Residential Capital, LLC and shall be a security for
purposes of Article 8 of the Uniform Commercial Code." This provision
shall not be amended, and any purported amendment to this provision, shall not
take effect until all outstanding certificates have been surrendered for
cancellation."
Section
2. Insertion
of Section 11(e). The following language is to be inserted as
Section 11(e):
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"(e) Certificates.
(i) Right to Issue
Certificates. The ownership of an interest, either common or
preferred, in the Company (an "Interest") by a Member shall be evidenced by a
certificate (a "Certificate") issued by the Company.
(ii) Form of
Certificates. Certificates attesting to the ownership of
Interests in the Company shall be in substantially the form set forth in Exhibit
A hereto and shall state that the Company is a limited liability company formed
under the laws of the State of Delaware, the name of the Member to whom such
Certificate is issued and that the Certificate represents a limited liability
company interest within the meaning of Section 18-702(c) of the
Act. Each Certificate shall bear the following legend:
"This
Certificate evidences an equity Interest in Residential Capital, LLC (the
"Company") and shall be a security for purposes of Article 8 of the Uniform
Commercial Code. The Interest represented by this Certificate, and
any sale, pledge, hypothecation or transfer thereof, are subject to the
provisions of the Amended and Restated Limited Liability Company Agreement of
the Company dated as of March 31, 2008, as amended, which places certain
restrictions on the transfer of such Interest. Any Person accepting
the Interest represented by this Certificate shall agree to the provisions of
such Agreement. A copy of such Agreement will be furnished to the
record holder of this Certificate without charge upon written request to the
Company at its principal place of business."
(iii) Execution. Each
Certificate shall be signed by two Officers of the Company by either manual or
facsimile signature.
(iv) Registrar. The
Company shall maintain an office where Certificates may be presented for
registration of transfer or for exchange. Unless otherwise
designated, the Secretary of the Company shall act as registrar and shall keep a
register of the Certificates and of their transfer and exchange.
(v) Issuance. The
Certificates of the Company shall be numbered and registered in the interest
register or transfer books of the Company as they are issued.
(vi) Interest Holder
Lists. The Company shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all holders of Interests.
(vii) Transfer and
Exchange. When Certificates are presented to the Company with
a request to register a transfer, the Company shall register the transfer or
make the exchange on the register or transfer books of the Company if the
requirements set forth in Section 19 of this Agreement for such transactions are
met; provided, that any Certificates presented or surrendered for registration
of transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Company duly executed by the
holder thereof or his attorney duly authorized in writing. The
transferor shall bear the expenses related to a transfer.
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The
Company shall not be required to register the transfer, or exchange, any
Certificate if as a result the transfer of the Interest at issue would cause the
Company to violate the Securities Act, the Exchange Act, the Investment Company
Act, or the laws, rules, regulations, orders and other directives of any
Governmental Authority or otherwise violation the terms of this
Agreement.
(viii) Record
Holder. Except to the extent that the Company shall have
received written notice of an assignment of Interests and such assignment
complies with the requirements of Section 19 of this Agreement, the Company
shall be entitled to treat the individual or entity in whose name any
Certificates issued by the Company stand on the books of the Company as the
absolute owner thereof, and shall not be bound to recognize any equitable or
other claim to, or interest in, such Interests on the part of any other
individual or entity.
(ix) Replacement
Certificates. If any mutilated Certificate is surrendered to
the Company, or the Company receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, the Company shall issue a
replacement Certificate if the requirements of Section 8-405 of the Uniform
Commercial Code are met. If required by the Company, an indemnity
and/or the deposit of a bond in such form and in such sum, and with such surety
or sureties as the Company may direct, must be supplied by the holder of such
lost, destroyed or stolen Certificate that is sufficient in the judgment of the
Company to protect the Company from any loss that it may suffer if a Certificate
is replaced. The Company may charge for its expenses incurred in
connection with replacing a Certificate."
Section
3. Insertion
of Exhibit A. Exhibit A is to be inserted in the form attached
hereto as Annex
1.
Section
4. Binding
Effect. Except as specifically amended or modified herein, the
Agreement shall continue in full force and effect in accordance with the terms
thereof.
Section
5. Governing
Law. This Amendment is to be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard
to its conflicts of laws rules.
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Section
6. Captions. The
various captions in this Amendment are included for convenience only and shall
not affect the meaning or interpretation of any provision of this
Amendment.
Section
7. Counterparts. This
Amendment 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 and all of which taken together shall constitute but one and
the same agreement. Delivery of an executed counterpart of a
signature page to this Amendment by telecopier shall be effective as delivery of
a manually executed counterpart of this Amendment.
Section
8. Severability. If
any provision of this Amendment, 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
Amendment, 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
Amendment so long as this Amendment, 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 Amendment 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.
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IN
WITNESS WHEREOF, the undersigned, as the GMAC Member of the Company, has duly
executed this amendment as of the date first written above.
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GMAC
MORTGAGE GROUP LLC
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By:
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/s/ Xxxxx X.
Xxxxxxxxxxx
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Name:
Xxxxx X. Xxxxxxxxxxx
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Title: Secretary
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ANNEX
1
EXHIBIT
A
FORM OF
CERTIFICATE
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Number ___
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Interest _____
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a limited
liability company formed under the laws of the State of Delaware
Limited
Liability Company Interest
(within
the meaning of 6 Del. Co. §18-702(c))
THIS
CERTIFICATE EVIDENCES AN EQUITY INTEREST IN RESIDENTIAL CAPITAL, LLC (THE
"COMPANY") AND SHALL BE A SECURITY FOR PURPOSES OF ARTICLE 8 OF THE UNIFORM
COMMERCIAL CODE. THE INTEREST REPRESENTED BY THIS CERTIFICATE, AND
ANY SALE, PLEDGE, HYPOTHECATION OR TRANSFER THEREOF, ARE SUBJECT TO THE
PROVISIONS OF THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF
THE COMPANY DATED AS OF MARCH 31, 2008, AS AMENDED, WHICH PLACES CERTAIN
RESTRICTIONS ON THE TRANSFER OF SUCH INTEREST. ANY PERSON ACCEPTING
THE INTEREST REPRESENTED BY THIS CERTIFICATE SHALL AGREE TO THE PROVISIONS OF
SUCH AGREEMENT. A COPY OF SUCH AGREEMENT WILL BE FURNISHED TO THE
RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE
COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.
This
Certifies that __________
is, and has been since _______, a member and the owner of __________ fully paid and
non-assessable _____ Units of the above-named Company and is entitled to the
full benefits and privileges of such interest, subject to the duties and
obligations, as more fully set forth in the Amended and Restated Limited
Liability Company Agreement. This Certificate is
transferable on the books of the Company by the holder hereof in person or by
duly authorized Attorney upon surrender of this Certificate properly
endorsed.
In
Witness Whereof, the said Limited Liability Company has caused this Certificate,
and the interest it represents, to be signed by its duly authorized officers
this ___ day of _____, 2009.
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______________________________
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________________________________
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Chief
Financial Officer
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Secretary\Assistant
Secretary
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