LIMITED LIABILITY COMPANY AGREEMENT OF RESIDENTIAL CAPITAL, LLC
Exhibit 3.3
OF
RESIDENTIAL CAPITAL, LLC
This Limited Liability Company Agreement (this “Agreement”) of Residential Capital, LLC (the
“Company”), dated and effective as of October 24, 2006, is entered into by GMAC Mortgage Group LLC,
as the sole member (the “Member”).
WHEREAS, Residential Capital Corporation (the “Corporation”) was incorporated as a Delaware
corporation on August 20, 2004;
WHEREAS, the board of directors of the Corporation adopted resolutions adopting and approving
the conversion of the Corporation to a Delaware limited liability company and the adoption of this
Agreement, and recommending the adoption of such conversion and this Agreement to the sole
stockholder of the Corporation, pursuant to Sections 141 and 266 of the General Corporation Law of
the State of Delaware (8 Del. C. § 101 et seq.), as amended from time to
time (the “GCL”);
WHEREAS, on the date hereof, the Corporation was converted to a limited liability company
pursuant to Section 18-214 of the Delaware Limited Liability Company Act (6 Del. C. §
18-101 et seq.), as amended from time to time (the “Act”) and Section 266 of the
GCL (the “Conversion”), by causing the filing with the Secretary of State of the State of Delaware
(the “Delaware Secretary of State”) of a Certificate of Conversion to Limited Liability Company
(the “Certificate of Conversion”) and a Certificate of Formation (the “Certificate”); and
1. Name. The name of the limited liability company formed hereby is Residential
Capital, LLC.
1
2. Certificates. Effective as of the time of the Conversion, (i) the Certificate of
Incorporation of the Corporation, dated as of August 20, 2004, as amended, and the By-Laws of the
Corporation, as amended, are replaced and superseded in their entirety by the Certificate and this
Agreement in respect of all periods beginning on or after the Conversion, (ii) all the shares of
capital stock of the Corporation issued and outstanding immediately prior to the Conversion,
pursuant to the Conversion, are hereby converted into limited liability company interests in the
Company and the sole stockholder of the Corporation is hereby automatically admitted as a member of
the Company owning 100% of the limited liability company interests in the Company, (iii) the Member
continues the business of the Corporation without dissolution in the form of a Delaware limited
liability company governed by this Agreement and the Act, and (iv) in accordance with Section
18-214(g) of the Act, the Company shall constitute a continuation of the existence of the
Corporation in the form of a Delaware limited liability company and, for all purposes of the laws
of the State of Delaware, the Company shall be deemed to be the same entity as the Corporation.
Any officer authorized by the Corporation is hereby designated as an “authorized person” within the
meaning of the Act, and such authorized officer of the Corporation, as “authorized person,” has
executed, delivered and filed the Certificate and the Certificate of Conversion with the Delaware
Secretary of State. Upon the filing of the Certificate and the Certificate of Conversion with the
Delaware Secretary of State, the powers as an “authorized person” of each such authorized officer
of the Corporation ceased, and any Officer (as defined in Section 16 below), acting alone,
thereupon became a designated “authorized person” of the Company to execute, deliver and file any
amendments and/or restatements of the Certificate and any other certificates (and any amendments
and/or restatements thereof) permitted or required to be filed with the Delaware Secretary of State
and shall continue as the designated “authorized person” within the meaning of the Act. An Officer
shall execute, deliver and file, or cause the execution, delivery and filing of any certificates
(and any amendments and/or restatements thereof) necessary for the Company (i) to qualify to do
business in any other jurisdiction in which the Company may wish to conduct business and (ii) to
obtain professional licensure necessary or desirable.
3. Purposes. The Company is formed for the object and purpose of, and the nature of
the business to be conducted and promoted by the Company is, engaging in any lawful act or activity
for which limited liability companies may be formed under the Act, as such acts or activities may
be determined by the Board (as herein defined) from time to time.
4. Powers. In furtherance of its purposes, but subject to all of the provisions of
this Agreement, the Company shall have the power and is hereby authorized to:
(a) Acquire by purchase, lease, contribution of property or otherwise, own, hold, sell,
convey, transfer or dispose of any real or personal property that may be necessary, convenient or
incidental to the accomplishment of the purposes of the Company;
(b) Act as a trustee, executor, nominee, bailee, director, officer, agent or in some other
fiduciary capacity for any person or entity and to exercise all of the powers, duties, rights and
responsibilities associated therewith;
2
(c) Take any and all actions necessary, convenient or appropriate as trustee, executor,
nominee, bailee, director, officer, agent or other fiduciary, including the granting or approval of
waivers, consents or amendments of rights or powers relating thereto and the execution of
appropriate documents to evidence such waivers, consents or amendments;
(d) Operate, purchase, maintain, finance, improve, own, sell, convey, assign, mortgage, lease
or demolish or otherwise dispose of any real or personal property that may be necessary, convenient
or incidental to the accomplishment of the purposes of the Company;
(e) Borrow money and issue evidences of indebtedness in furtherance of any or all of the
purposes of the Company, and secure the same by mortgage, pledge or other lien on the assets of the
Company;
(f) Invest any funds of the Company pending distribution or payment of the same pursuant to
the provisions of this Agreement;
(g) Prepay, in whole or in part, refinance, recast, increase, modify or extend any
indebtedness of the Company and, in connection therewith, execute any extensions, renewals or
modifications of any mortgage or security agreement securing such indebtedness;
(h) Enter into, perform and carry out contracts of any kind, including, without limitation,
contracts with any person or entity affiliated with the Member, necessary to, in connection with,
convenient to, or incidental to the accomplishment of the purposes of the Company;
(i) Employ or otherwise engage employees, managers, contractors, advisors, attorneys and
consultants and pay reasonable compensation for such services;
(j) Enter into partnerships, limited liability companies, trusts, associations, corporations
or other ventures with other persons or entities in furtherance of the purposes of the Company; and
(k) Do such other things and engage in such other activities related to the foregoing as may
be necessary, convenient or incidental to the conduct of the business of the Company, and have and
exercise all of the powers and rights conferred upon limited liability companies formed pursuant to
the Act.
3
Wilmington, New Castle County, Delaware 19808, or such other office as the Board may designate
from time to time in accordance with the Act.
4
Members. Subject to the delegation to the Officers of the Company provided herein and any
delegation otherwise herein contemplated, the business and affairs of the Company shall be
managed by or under the direction of the Board.
5
be waived in writing by such Director) and shall be held at such place or places as may be
determined by the Board, or as shall be stated in the call of the meeting. Unless otherwise
restricted by this Agreement, members of the Board may participate in any meeting of the Board by
means of a conference telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
6
i. Each Covered Person shall be indemnified by the Company for any loss, damage or claim
incurred by such Covered Person by reason of any act or omission performed or omitted by such
Covered Person in conformance with the Applicable Standard (as defined in Section 18(g)(vi) below),
including, without limitation, if the Covered Person is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that the Covered Person is or was or has
agreed to serve at the request of the Company as a Director, Officer or employee of the Company or
any subsidiary of the Company, or while serving as such or by reason of any action alleged to have
been taken or omitted in such capacity; provided, however, that any indemnity under this Section 18
shall be provided out of and to the extent of Company assets only, and the Member shall not have
personal liability on account thereof.
ii. The indemnification provided by paragraphs (i) and (iii) of this Section 18(a) shall be
from and against expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the Covered Person or on the Covered Person’s behalf
in connection with such action, suit or proceeding and any appeal therefrom.
iii. Notwithstanding Section 18(a)(i), in the case of any threatened, pending or completed
action or suit by or in the right of the Company to procure a judgment in its favor by reason of
the fact that the Covered Person is or was a Director, Officer, or employee of the Company, no
indemnification shall be made in respect of any claim, issue or matter as to which the Covered
Person shall have been adjudged to be liable to the Company unless, and only to the extent that,
the Delaware Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, the Covered Person is fairly and reasonably entitled to indemnity for
such expenses which the Delaware Court of Chancery or such other court shall deem proper.
7
iv. The termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Covered Person did not act in conformance with the Applicable Standard.
If the Covered Person is entitled under any provision of this Section 18 to indemnification by
the Company for some or a portion of the expenses (including attorneys’ fees), judgments, fines or
amounts paid in settlement actually and reasonably incurred by the Covered Person or on the Covered
Person’s behalf in connection with any action, suit, proceeding or investigation, or in defense of
any claim, issue or matter therein, and any appeal therefrom but not, however, for the total amount
thereof, the Company shall nevertheless indemnify the Covered Person for the portion of such
expenses (including attorneys’ fees), judgments, fines or amounts paid in settlement to which the
Covered Person is entitled.
i. Expenses (including attorneys’ fees) incurred by the Covered Person in defending a
threatened or pending civil, criminal, administrative or investigative action, suit or proceeding,
or in connection with an enforcement action pursuant to Section 18(e)(ii), shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding within thirty (30)
days after receipt by the Company of (x) a statement or statements from the Covered Person
requesting such advance or advances from time to time, with a copy of the xxxx for the related
expenses, and (y) an undertaking by or on behalf of the Covered Person to repay all such amounts
8
advanced, only if, and to the extent that, it should ultimately be determined that the Covered
Person is not entitled to be indemnified by the Company as authorized by this Agreement or
otherwise. Such undertaking shall be accepted without reference to the financial ability of the
Covered Person to make such repayment. Advances shall be unsecured and interest-free.
ii. If the Company shall be obligated to pay the expenses of the Covered Person with respect
to an action, suit or proceeding, as provided in this Section 18, the Company, if appropriate, may
assume the defense of such action, suit or proceeding, with counsel reasonably acceptable to the
Covered Person. After approval of such counsel by the Covered Person and the retention of such
counsel by the Company, the Company will not be liable to the Covered Person under this Section 18
for any fees of counsel subsequently incurred by the Covered Person with respect to the same
action, suit or proceeding, provided that the Covered Person shall have the ability to employ the
Covered Person’s own counsel in such action, suit or proceeding (x) at the Covered Person’s expense
upon the prior written consent of the Company, or (y) if (1) counsel to the Company or the Covered
Person shall have reasonably concluded that there may be a conflict of interest or position, or
reasonably believes that a conflict is likely to arise, on any significant issue between the
Company and the Covered Person in the conduct of any such defense or (2) the Company shall not, in
fact, have employed counsel to assume the defense of such action, suit or proceeding, in which case
the fees and expenses of the Covered Person’s counsel shall be at the expense of the Company,
except as otherwise expressly provided by this Section 18. The Company shall not be entitled,
without the consent of the Covered Person, to assume the defense of any claim brought by or in the
right of the Company or as to which counsel for the Company or the Covered Person shall have
reasonably made the conclusion provided for in clause (1) above.
iii. Notwithstanding any other provision of this Agreement to the contrary, to the extent that
the Covered Person is, by reason of the Covered Person’s service as a Director, Officer or employee
of the Company, a witness or otherwise participates in any action, suit or proceeding at a time
when the Covered Person is not a party in the action, suit or proceeding, the Company shall pay or
cause to be paid on behalf of the Covered Person against, or shall otherwise cause to be paid, all
expenses (including attorneys’ fees) actually and reasonably incurred by the Covered Person or on
the Covered Person’s behalf in connection therewith.
i. The Company shall, promptly upon receipt of a request for indemnification from a Covered
Person, advise the Board in writing that the Covered Person has requested indemnification.
ii. The Company’s determination whether to grant the Covered Person’s indemnification request
shall be made promptly, and in any event within 90 days following receipt of a request for
indemnification pursuant to Section 18(e)(i). The right to indemnification as granted by this
Section 18 shall be enforceable by the Covered Person in any state or Federal court of competent
jurisdiction located in the State of Delaware if the Company denies such request, in whole or in
part, or fails to respond within such 90-day period. It shall be a defense to any such
9
action (other than an action brought to enforce a claim for the advance of costs, charges and expenses
under Section 18(d) hereof where the required undertaking, if any, has been received by the
Company) that the Covered Person has not met the Applicable Standard set forth in this Section 18,
but the burden of proving such defense by clear and convincing evidence shall be on the Company.
Neither the failure of the
Company (including its Board or one of its committees, and its independent legal counsel) to
have made a determination prior to the commencement of such action that indemnification of the
Covered Person is proper in the circumstances because the Covered Person has met the Applicable
Standard set forth in this Section 18, nor the fact that there has been an actual determination by
the Company (including its Board or one of its committees, and its independent legal counsel) that
the Covered Person has not met such Applicable Standard of conduct, shall be a defense to the
action or create a presumption that the Covered Person has or has not met the Applicable Standard.
The Covered Person’s expenses (including attorneys’ fees) incurred in connection with successfully
establishing the Covered Person’s right to indemnification, in whole or in part, in any such
proceeding or otherwise shall also be indemnified by the Company.
i. The Company may purchase and maintain (itself or through its affiliates) insurance on
behalf of the Covered Person who has agreed to serve at the request of the Company as a Director,
Officer or employee of the Company against any liability asserted against, and incurred by, the
Covered Person or on the Covered Person’s behalf, or arising out of the Covered Person’s status as
a Director, Officer or employee, whether or not the Company would have the power to indemnify the
Covered Person against such liability under the provisions of this Section 18. If the Company has
such insurance in effect at the time the Company receives from the Covered Person any notice of the
commencement of a claim, the Company shall give prompt notice of the commencement of such claim to
the insurers in accordance with the procedures set forth in the policy. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the
Covered Person, all amounts payable as a result of such proceeding in accordance with the terms of
such policy.
ii. In the event of any payment by the Company under this Agreement, the Company shall, to the
extent permissible, be subrogated to the extent of such payment to all of the rights of recovery of
the Covered Person with respect to any insurance policy, which Covered Person shall
execute all papers required and take all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to bring suit to enforce such
rights in accordance with the terms of such insurance policy. The Company shall pay or reimburse
all expenses actually and reasonably incurred by the Covered Person in connection with such
subrogation.
iii. The Company shall not be liable under this Section 18 to make any payment of amounts
otherwise indemnifiable hereunder (including, but not limited to, judgments, fines, ERISA excise
taxes or penalties, and amounts paid in settlement) if and to the extent that the Covered Person
has otherwise actually received such payment under this Section 18 or any insurance policy,
contract, agreement or otherwise.
10
i. The term “action, suit or proceeding” shall be broadly construed and shall include, without
limitation, the investigation, preparation, prosecution, defense, settlement, arbitration and
appeal of, and the giving of testimony in, any threatened, pending or completed claim, action, suit
or proceeding, whether civil, criminal, administrative or investigative.
ii. The term “by reason of the fact that the Covered Person is or was a Director, Officer or
employee of the Company” shall be broadly construed and shall include, without limitation, any
actual or alleged act or omission to act.
iii. The term “expenses” shall be broadly and reasonably construed and shall include, without
limitation, all direct and indirect costs of any type or nature whatsoever (including, without
limitation, all reasonable attorneys’ fees and related disbursements, appeal bonds, other
out-of-pocket costs and reasonable compensation for time spent by the Covered Person for which the
Covered Person is not otherwise compensated by the Company or any third party, provided that the
rate of compensation and estimated time involved is approved by the Board, which approval shall not
be unreasonably withheld), actually and reasonably incurred by the Covered Person in connection
with either the investigation, defense or appeal of a proceeding or establishing or enforcing a
right to indemnification under this Agreement, the Act or otherwise.
iv. The term “judgments, fines and amounts paid in settlement” shall be broadly construed and
shall include, without limitation, all direct and indirect payments of any type or nature
whatsoever (including, without limitation, all penalties and amounts required to be forfeited or
reimbursed to the Company), as well as any penalties or excise taxes assessed on a person with
respect to an employee benefit plan.
v. The term “Company” shall include, without limitation and in addition to the resulting
business entity, any constituent business entity (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had continued, would have
had power and authority to indemnify its members, if any, directors, officers, and employees, so
that any person who is or was a member, director, officer or employee of such constituent business
entity, or is or was serving at the request of such constituent business entity as a director,
officer or employee of another business entity, partnership, joint venture, trust, employee benefit
plan or other enterprise, shall stand in the same position under the provisions of this Agreement
with respect to the resulting or surviving business entity as he or she would have with respect to
such constituent business entity if its separate existence had continued.
vi. The term “Applicable Standard” shall mean, with respect to the act or omission of a
Covered Person, the standard of conduct that such act or omission was performed or omitted by such
Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be
within the scope of authority conferred on such Covered Person by this
11
Agreement, except that the
Covered Person shall not be indemnified for any such loss, damage or claim incurred by reason of
such Covered Person’s willful misconduct or bad faith with respect to such acts or omissions.
12
whether civil, criminal, administrative or investigative, including an action by or in
the right of the Company, to the full extent permitted by any applicable portion of this Section 18
that shall not have been invalidated and to the full extent permitted by applicable law.
13
conditions of this Agreement. Such admission shall be deemed effective immediately prior to the
transfer, and, immediately following such admission, the transferor Member shall cease to be a
member of the Company.
(a) The Company shall dissolve and its affairs shall be wound up upon the first to occur of
the following: (i) the written consent of the Member, (ii) at any time there are no members of the
Company unless the Company is continued in accordance with the Act, or (iii) the entry of a decree
of judicial dissolution under Section 18-802 of the Act.
(b) The bankruptcy (within the meaning of Sections 18-101(1) and 18-304 of the Act) of the
Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of
such an event, the business of the Company shall continue without dissolution.
(c) In the event of dissolution, the Company shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of the Company in an orderly
manner), and the assets of the Company shall be applied in the manner, and in the order of
priority, set forth in Section 18-804 of the Act.
(d) Upon the cancellation of the Certificate in accordance with the Act, the Company and this
Agreement shall terminate.
14
[SIGNATURE PAGE FOLLOWS]
15
GMAC MORTGAGE GROUP LLC | ||||||
By: | /s/ X. X. Xxxxxxxxxxx
|
|||||
Title: Secretary |
16
Schedule A
SOLE MEMBER
Name
|
Mailing Address | Percentage | ||
GMAC Mortgage Group LLC
|
000 Xxxxxxxxxxx Xxxxxx | 000% | ||
Xxxxxxx, Xxxxxxxx 00000 |
17