SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF IB FINANCE HOLDING COMPANY, LLC
SECOND
AMENDED AND RESTATED
OF
IB
FINANCE HOLDING COMPANY, LLC
Second
Amended and Restated Limited Liability Company Agreement
of
IB
Finance Holding Company, LLC
This
Second Amended and Restated Limited Liability Company Agreement (this “Agreement”) of IB
Finance Holding Company, LLC (the “Company”) is made and
entered into as of January 30, 2009, by and among the Company, GMAC LLC, a
Delaware limited liability company (“GMAC”), and
Residential Capital, LLC, a Delaware limited liability company (“ResCap”). GMAC
and ResCap are referred to herein as the “Members.”
WHEREAS,
the Company was organized pursuant to that certain Limited Liability Company
Agreement, dated as of November 20, 2006;
WHEREAS,
in connection with the execution of that certain Amended and Restated Limited
Liability Company Agreement of the Company, dated March 31, 2008 (the “Prior Agreement”),
GMAC, ResCap and the Company entered into an Exchange Agreement, dated as of
March 31, 2008 (the “Exchange Agreement”),
pursuant to which the holder of certain preferred membership interests of ResCap
may, at any time after January 1, 2009, subject to the terms and conditions
thereof, elect to exchange all (but not less than all) of such preferred
membership interests into an equivalent number of the Class M Preferred Units
(as defined below) of the Company on a one-for-one basis (the “Exchange”);
NOW,
THEREFORE, the Members agree as follows:
ARTICLE
I
1.1 Formation. Pursuant
to the Delaware Limited Liability Company Act (the “Act”), as amended
from time to time, GMAC has formed a Delaware limited liability company
effective upon the filing of the Certificate of Formation for the Company with
the Delaware Secretary of State’s Office.
(a) The
principal office of the Company is located at 000 Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxx, XX 00000 or such other place as GMAC may select from time to
time.
(b) The
registered office of the Company is at the office of its registered agent at The
Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000. The name of the initial registered agent
of the Company is The Corporation Trust Company. The principal
office, registered office and registered agent of the Company may be changed by
GMAC from time to time in accordance with the then applicable provisions of the
Act. If the registered agent resigns, the Company will promptly
appoint a successor.
(a) The
term of the Company commenced upon the filing of the Certificate of Formation
for the Company.
(b) The
term of the Company ends, and the Company will dissolve, on the first to occur
of the following events:
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(1)
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the
consent of the Members to dissolve the
Company;
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(2)
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any
event which, under this Agreement or the Act, results in the dissolution
of the Company; or
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(3)
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upon
the entry of a final judgment, order or decree of a court of competent
jurisdiction adjudicating the Company to be bankrupt, and the expiration
of the period, if any, allowed by applicable law in which to appeal
therefrom.
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ARTICLE
II
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(i) The
Company shall have one class of non-voting, non-cumulative, non-participating,
perpetual preferred interests (the “Class M Preferred
Units”, and collectively with the Common Units, the “Units”). The
Company shall be deemed to have issued 806,344 Class M Preferred Units to
GMAC.
(ii) The
Class M Preferred Units shall, with respect to distribution rights and rights
upon liquidation, winding up or dissolution of the Company, rank senior to the
Class M Common Units. The Class M Preferred Units shall have no
claims to any distributions (including distributions upon liquidation, winding
up or dissolution) of the Company attributable to the GMAC Business Unit (as
defined below). For the avoidance of doubt, all distributions
(including distributions upon liquidation, winding up or dissolution) of the
Company attributable to the GMAC Business Unit shall be made solely to GMAC in
its capacity as the holder of Class A Common Units.
(iii) The
Company shall, if so directed by GMAC, redeem the Class M Preferred Units then
outstanding, in whole or in part, on any Distribution Payment Date, by
delivering at least 30 but not more than 60 days prior written notice to the
holder of such Class M Preferred Units. Any such redemption shall be for cash at
a redemption price equal to $1,000 per Class M Preferred Unit (the “Class M Preferred Unit
Redemption Price”), plus any authorized but unpaid Preferred
Distributions (as defined below). The Class M Preferred Units may
only be redeemed from the proceeds of a Special Contribution; provided that, for
so long as ResCap is a Member of the Company, its board of directors (including
a majority of the ResCap Independent Directors), consents in
writing. For purposes hereof, the “ResCap Independent
Directors” are the “independent directors” ResCap must at all times have
within the meaning of that certain Amended and Restated Operating Agreement,
dated November 27, 2006, among General Motors Corporation, GMAC and
ResCap.
(c) The
outstanding number of Units held by each Member on the date hereof is listed on
Schedule I
attached hereto, and such schedule shall be amended from time to time by GMAC to
reflect any change in the number of Units held by each Member in accordance with
this Agreement.
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(b) The
Company will distribute Distributable Cash to the Members holding Common Units
on a quarterly basis or as otherwise approved by the Members holding Common
Units; provided that no distributions shall be made to any Member holding Class
M Common Units so long as any Class M Preferred Units are outstanding and any
Preferred Distributions for the then-current Distribution Period have not been
authorized or any Preferred Distributions that have been authorized (whether or
not for the then-current Distribution Period) remain unpaid (and sufficient
funds have not been set aside for such payments).
(c) Notwithstanding
any provision of this Agreement to the contrary, no distributions shall be
declared or paid if and when the Company is Insolvent or would be rendered
Insolvent by the distribution. For purposes of this Section 2.5, “Insolvent” means such
time as when the value of the Company’s assets become less than the sum of its
liabilities or the Company becomes unable to pay its debts as they become due in
the usual course of business.
(d) For
purposes of this Section 2.5, “Distributable Cash”
means that portion of the cash and cash equivalent assets of the Company which,
in light of the Company’s then current and foreseeable sources of, and needs
for, cash, exceeds the amount of cash needed by the Company, as determined by a
majority of the Board, to (i) service its debts and obligations in a timely
fashion, (ii) maintain adequate working capital and reserves, and (iii) conduct
its business and carry out its purposes.
ARTICLE
III
3.1 Responsibility; Meetings of
the Members; Delegation of Responsibility to a Board of Directors; Delegation of
Responsibility to a Committee.
(a) Except
as otherwise provided in this Agreement or the Act, all of the business and
affairs of the Company will be managed solely by GMAC, and no other Member shall
have any voting rights, consent rights or other rights of approval or
disapproval. Except as otherwise provided in the Act, the holder of
the Class M Preferred Units shall not have any voting rights or other rights to
participate in the management or control of the Company’s business or act for or
bind the Company. The Members of the Company are not required to hold
an annual meeting of the Members.
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(b) At
its sole discretion, GMAC may delegate the management of the business and
affairs of the Company to a Board of Directors (the “Board”), consisting
of one or more persons selected by GMAC. Whether to delegate
management to a Board and, if so, the composition of the Board, will be
determined from time to time by GMAC in its sole discretion. GMAC may, however,
in its sole discretion, disband the Board and resume management of the Company
at any time. GMAC has determined to delegate management
responsibility to a Board until such time as GMAC, in its sole discretion,
determines otherwise. As of the date hereof the Board consists of the
individual listed on Exhibit A attached
hereto.
(c) The
Board may, by resolution passed by a majority of the Board, designate one or
more committees (“Committees”), which
may consist of one or more of the members of the Board. To the extent
provided in any resolution of the Board and to the extent permissible under the
laws of the State of Delaware, any such Committee has and may exercise all the
powers and authority expressly delegated by the Board in the management of the
business and affairs of the Company. The members of such Committees
may be elected at such time as the Board may determine in its sole
discretion. Vacancies in any Committee may be filled at such time and
in such manner as the Board determines. Except to the extent
otherwise provided in this Agreement or any resolution of the Board, each
Committee may fix its own rules of procedure, including (but not limited to)
rules of procedure relating to quorum, vote required for action, the holding of
meetings, and similar matters.
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(a) The
Board will annually elect one of its members to be Chairman of the Board and
will fill any vacancy in the position of Chairman of the Board at such time and
in such manner as the Board determines. The Chairman of the Board may
but need not be an officer of, or employed in an executive or any other capacity
by, the Company.
(b) The
Chairman of the Board will preside at meetings of the Board and lead the Board
in fulfilling its responsibilities.
(c) The
Board may also elect one of its members as Vice Chairman of the Board who will
have such duties and responsibilities as are provided by this Agreement or may
be directed by the Board or the Chairman of the Board.
(d) In
the absence of the Chairman of the Board, the Vice Chairman, or in his absence,
a Board member selected by the Board members present, will preside at meetings
of the Board. The Secretary of the Company will act as secretary of
the meetings of the Board, but in his absence the presiding officer may appoint
a secretary for the meeting.
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ARTICLE
IV
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ARTICLE
V
(a) Any
officer or director may resign at any time by giving written notice to the
Chairman of the Board, the President, or the Secretary. Unless
otherwise stated in a notice of resignation, the acceptance of such notice is
not necessary to make it effective; and such notice of resignation will take
effect at the time specified therein or, in the absence of such specification,
it will take effect upon the receipt thereof. Any director or officer
may be removed by GMAC at any time, with or without cause.
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(b) Any
officer elected by the Board may be suspended or removed at any time by the
affirmative vote of a majority of the whole Board. Any subordinate
officer of the Company appointed by the Board or the President may be suspended
or removed at any time by a majority vote of a quorum of the Board or by the
President or any other officer to whom such subordinate officer
reports.
(c) The
President may suspend the powers, authority, responsibilities, and compensation
of any elected officer or appointed subordinate officer for a period of time
sufficient to permit the Board a reasonable opportunity to consider and act upon
a resolution relating to the reinstatement, further suspension, or removal of
such person.
(d) As
appropriate, the Board and/or the President may fill any vacancy created by the
resignation, death, retirement, or removal of an officer in the same manner as
provided for the election or appointment of such person.
ARTICLE
VI
(a) Subject
to the other provisions of this Article VI, the Company will indemnify and
advance expenses to every Board member and every officer of the Company
appointed pursuant to Article V, and may indemnify and advance expenses to an
employee of the Company who is not a Board member or officer appointed pursuant
to Article V (and to such person’s heirs, executors, administrators or other
legal representatives) in the manner, and to the fullest extent permitted by
applicable law as it presently exists, or may hereafter be amended, against any
and all amounts (including judgments, fines, payments in settlement, attorneys’
fees and other expenses) actually and reasonably incurred by or on behalf of
such person in connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative, investigative, formal or
informal (other than an action by or in the right of the Company) (a “Proceeding”), in
which such Board member or officer was or is made or is threatened to be made a
party or is otherwise involved by reason of the fact that such person is or was
a Board member or officer of the Company, or is or was serving at the request of
the Company as a Board member, officer, employee, fiduciary or member of any
other corporation, partnership, joint venture, trust, organization or other
enterprise. The Company is not required to indemnify a person in
connection with a proceeding initiated by such person if the proceeding was not
authorized by the Board. Notwithstanding the foregoing to the
contrary, no indemnification will be provided to any Board member, officer or
employee for or in connection with (i) actions taken in violation of this
Agreement; (ii) actions constituting fraud, willful misconduct, or gross
negligence; (iii) receipt of a financial benefit to which such Board member,
officer or employee is not entitled; or (iv) a knowing violation of
law.
(b) Notwithstanding
any provision of this Agreement to the contrary, any indemnification will be
fully subordinated to any obligations respecting the property or assets of the
Company and will not constitute a claim against the Company if cash flow is
insufficient to pay such obligations.
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ARTICLE
VII
Upon the
dissolution of the Company, GMAC will wind up the affairs of the Company,
liquidate the property and assets of the Company, and apply and distribute the
proceeds of such liquidation in the following priority:
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(1)
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to
the expenses of liquidation;
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(2)
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to
the payment of all debts and liabilities of the Company, including debts
owed to the Members and taxes;
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(3)
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to
the establishment of such reserves as GMAC deems necessary or advisable to
provide for any contingent or unforeseen liabilities or obligations of the
Company, except, that after the expiration of such period of time as GMAC
deems appropriate, the balance of such reserves remaining after payment of
such contingencies will be distributed in the manner hereinafter set
forth;
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(4)
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to
the holder of the Class M Preferred Units in an amount equal to the Class
M Preferred Unit Redemption Price, multiplied by the number of Class M
Preferred Units then held by such person, plus any authorized but unpaid
Preferred Distributions; and
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(5)
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any
remaining proceeds will be distributed on a pro rata basis to GMAC (in its
capacity as the holder of the Class A Common Units) and the holders of
Class M Common Units (including GMAC in its capacity as a holder of Class
M Common Units) based on the amounts in each Member’s capital account at
the time of dissolution.
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7.2 Certificate of
Cancellation. After the affairs of the Company have been wound
up and the Company terminated, the Company will execute and file a certificate
of cancellation with the Secretary of State of Delaware.
ARTICLE
VIII
8.1 Notice. Any
notice required to be given by this Agreement may be given personally, by
facsimile, or in writing by delivery to the United States postal system in a
postpaid envelope directed to such address as appears in the records of the
Company, or, in default of other address, to the general post office in
Wilmington, New Castle County, Delaware. Such notice will be deemed to be given
at the time of receipt of such notice, except as otherwise provided in this
Agreement.
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8.8 Governing
Law. This Agreement is governed by, and construed and enforced
in accordance
with, the laws of Delaware.
(signature
page to follow)
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GMAC
LLC
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a
Delaware limited liability company, Member
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By:
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/s/ Xxxxxx X. Xxxx |
Name: Xxxxxx X. Xxxx
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Title: EVP and Chief Financial Officer
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a
Delaware limited liability company, Member
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By:
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/s/ Xxxxx X. Xxxxx |
Name: Xxxxx X. Xxxxx
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Title: Chief Financial
Officer
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EXHIBIT
A
Board of
Directors
As of January 30,
2009
Xxxxxxx
X. Xxxx
EXHIBIT
B
Officers
As of January 30,
2009
Xxxxxxx
X. Xxxx
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President
and Chairman of the Board
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Xxxxx
X. Xxxxxxxxxxx
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Secretary
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SCHEDULE
I
Outstanding Units Held by
Members
As of January 30,
2009
Class of Units
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Name and Address
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Number of Units
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Class
A Common
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GMAC
LLC
000
0xx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
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2,000,000 | ||||
Class
M Common
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0
Xxxxxxxx Xxxxxxxxx,
Xxxxxxxxxxx,
XX 00000
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1,193,656 | ||||
Class
M Preferred
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GMAC
LLC
000
0xx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
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806,344 |