EXCHANGE AGREEMENT
Exhibit 10.1
This Exchange Agreement (this “Agreement”), dated and effective as of March 31, 2008,
is entered into by and among GMAC LLC, a Delaware limited liability company (“GMAC”),
Residential Capital, LLC, a Delaware limited liability company (“ResCap”), and IB Finance
Holding Company, LLC, a Delaware limited liability Company (“IB Finance”).
WHEREAS, GMAC is the holder of [650,000] units (the “ResCap Preferred Units”) of
preferred membership interests of ResCap pursuant to the Amended and Restated Limited Liability
Company Agreement of ResCap Capital, LLC, dated as of March 31, 2008 (the “ResCap
Agreement”);
WHEREAS, IB Finance has a class of preferred membership interests, consisting of [650,000]
units (the “IB Finance Preferred Units”), authorized by the Amended and Restated Limited
Liability Company Agreement of IB Finance Holding Company, LLC, dated as of March 31, 2008, and
none of such units are issued and outstanding as of the date hereof; and
WHEREAS, the parties hereto desire to enter into this Agreement to provide GMAC with the
option to elect, at any time after January 1, 2009, subject to the terms and conditions of this
Agreement, to exchange all (but not less than all) of the ResCap Preferred Units for an equivalent
number of IB Finance Preferred Units on a one-for-one basis (the “Exchange”).
NOW, THEREFORE, in consideration of the mutual promises contained herein, it is hereby agreed
as follows:
1. Exchange. At any time after January 1, 2009, GMAC may elect to exchange all (but
not less than all) of its ResCap Preferred Units into an equivalent number of IB Finance Preferred
Units by delivering a written notice (the “Exchange Notice”) at least 5 business days prior
to the effective date of the Exchange (the “Exchange Date”) specified in such notice to
each of ResCap and IB Finance. The Exchange Notice shall set forth the number of ResCap Preferred
Units then outstanding (the “Outstanding Number”). GMAC’s right to deliver an Exchange
Notice and cause such exchange of its ResCap Preferred Units shall automatically terminate if a
Bankruptcy Proceeding occurs prior to January 1, 2009. For purposes of this Agreement,
“Bankruptcy Proceeding” shall mean that ResCap or any of its significant subsidiaries (as
defined in Rule 1-02(w) of Regulation S-X under the federal securities laws) (i) has voluntarily
initiated proceedings of any nature under the federal Bankruptcy Code, or any similar state,
federal or foreign law for the relief of debtors, (ii) has made a general assignment for the
benefit of creditors, (iii) is the subject of an involuntary proceeding under the federal
Bankruptcy Code, or any similar federal, state or foreign law for the relief of debtors, or (iv)
has had all or any substantial part of its assets be the subject of attachment or other judicial
seizure.
2. Exchange Notice. The Exchange Notice shall be delivered to ResCap and IB Finance
at their respective addresses set forth below. The Exchange Notice shall be deemed to have been
duly given if personally delivered or sent by overnight mail or courier or by facsimile
transmission, and shall be deemed received (i) if sent by overnight mail or courier, when actually
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received, (ii) if sent by facsimile transmission, on the date sent, and (iii) if delivered by
hand, on the date of receipt.
To ResCap:
0 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attention:
Facsimile:
Xxxxxxxxxxx, XX 00000
Attention:
Facsimile:
With a copy to:
Xxxxx Xxxxx LLP
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxx X. May
Facsimile: 000-000-0000
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxx X. May
Facsimile: 000-000-0000
To IB Finance:
000 Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention:
Facsimile:
Xxxxxxx, XX 00000
Attention:
Facsimile:
With a copy to:
Xxxxx Xxxxx LLP
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxx X. May
Facsimile: 000-000-0000
00 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxx X. May
Facsimile: 000-000-0000
3. Conversion. On the Exchange Date, IB Finance will convert the Outstanding Number
of IB Finance common units then held by ResCap into the Outstanding Number of IB Finance Preferred
Units and deliver such units to GMAC (or such wholly-owned direct or indirect affiliate of GMAC as
is specified in the Exchange Notice) and GMAC (or such other specified person) will become a member
of IB Finance.
4. Assignment. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns; provided that, except
with the written consent of the other parties, no assignment of this Agreement or any rights or
obligations hereunder, by operation of law or otherwise, may be made by any party (except that if
GMAC assigns its ResCap Preferred Units to another person as permitted by Section 19 of the
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ResCap Agreement, GMAC may assign its rights and obligations under this Agreement to that same
person).
5. Entire Agreement. This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof.
6. Governing Law. This Agreement shall be governed by, and construed under, the laws
of the State of Delaware (without regard to conflict of laws principles).
7. Amendment. This Agreement may not be modified, altered, supplemented or amended
except pursuant to a written agreement executed and delivered by all the parties hereto.
8. Counterparts. This Agreement may be executed in two or more counterparts, each of
which is deemed to be an original, but all of which together constitutes one and the same
instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed
this Agreement as of the date first written above.
GMAC LLC | ||||
By: | /s/ Xxxxx X. Xxxxxxxxxxx | |||
Name: Xxxxx X. Xxxxxxxxxxx | ||||
Title: Secretary | ||||
RESIDENTIAL CAPITAL, LLC | ||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: Xxxxx X. Xxxxx | ||||
Title: Chief Financial Officer | ||||
IB FINANCE HOLDING COMPANY, LLC | ||||
By: | /s/ Xxxxx X. Xxxxxxxxxxx | |||
Name: Xxxxx X. Xxxxxxxxxxx | ||||
Title: Secretary |
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