MEMBERSHIP
INTEREST SUBSCRIPTION AGREEMENT dated as of December 29, 2008
(this “ Agreement ”) between GMAC LLC, a
Delaware limited liability company (the “ Company
”), GENERAL MOTORS CORPORATION (“ GM ”)
and FIM HOLDINGS LLC (“ FIM ”).
WHEREAS,
GM and FIM, respectively, wishes to subscribe for and purchase, and
the Company desires to issue and sell, the GM Interest (as
hereinafter defined) and FIM Interest (as hereinafter defined),
respectively, on the terms and subject to the conditions set forth
herein; and
WHEREAS,
capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Amended and Restated Limited
Liability Company Operating Agreement of GMAC, dated as of
November 30, 2006, as amended (the “ LLC
Agreement ”).
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as
follows:
Subject to the
terms and conditions herein set forth, the Company agrees to issue
and sell to GM and FIM, respectively, and GM and FIM, respectively,
agrees to purchase from the Company, the GM Interest and FIM
Interest, respectively, for the aggregate GM Purchase Price and
aggregate FIM Purchase Price, respectively, on the Closing Date.
The GM Interest and FIM Interest shall be issued to each of GM and
FIM, respectively, pursuant to Article II hereof and
shall be subject to the terms and provisions of the LLC Agreement.
The obligations of GM and FIM herein shall be several and not
joint.
Section 2.1
Purchase and Sale . (a) Upon the terms and subject to
the conditions of this Agreement, the Company agrees to issue and
sell to FIM, and FIM agrees to purchase from the Company, at the
Closing, a number of Class A Membership Interests up to
137,680 Class A Membership Interests (the “ FIM
Interest ”), which actual number to be purchased (in
excess of 53,992 Class A Membership Interests, if any) shall
be in the sole discretion of FIM and set forth in a
Section 6.1 Notice (as defined below); provided that
the FIM Interest shall not be less than 53,992 Class A
Membership Interests. Each such Class A
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Membership
Interest shall be purchased by FIM for a purchase price equal to
$4,630 per Class A Membership Interest (the “ FIM
Purchase Price ”).
(b) Upon
the terms and subject to the conditions of this Agreement, the
Company agrees to issue and sell to GM, and GM agrees to purchase
from the Company, at the Closing, a number of Class B Membership
Interests equal to 215,968 Class B Membership Interests less
the number of Class A Membership Interests set forth in the
Section 6.1 Notice of FIM in excess of 53,992 (the “
GM Interest ”). Each such Class B Membership
Interest shall be purchased by GM for a purchase price equal to
$4,630 per Class B Membership Interest (the “ GM
Purchase Price ”), and shall be issued by the Company to
GM Finance Co. Holdings LLC, on behalf of GM.
Section 2.2
Payment of Purchase Price; Closing . The Company will
deliver the FIM Interest and GM Interest to FIM and GM,
respectively, against payment by or on behalf of FIM and GM,
respectively, of the aggregate FIM Purchase Price and aggregate GM
Purchase Price, respectively and in each case, as set forth above
in Section 2.1 , by wire transfer in immediately
available funds to the account designated by the Company on
Annex A . The time and date of such delivery and payment
shall be 9 a.m., New York City time, on January 16, 2009 or
such other date or time as the parties shall mutually agree (such
time being referred to herein as the “ Closing Date
,” and the closing of the transactions contemplated by this
Agreement, the “ Closing ”). The Closing shall
take place at the offices of Wachtell, Lipton, Rosen & Katz, 51
W. 52nd St., New York, New York 10019, at which time the parties
shall make the deliveries described below.
(a)
Deliveries by the Company . At the Closing, the Company
shall deliver or cause to be delivered to each of GM and FIM, a
certificate, dated the Closing Date, of an executive officer of the
Company, certifying that, as of such date, the representations and
warranties of the Company contained herein are accurate, true and
correct with the same force and effect as though made on and as of
such date and that the books and records of the Company have been
adjusted to reflect the issuance of the GM Interest to GM Finance
Co. Holdings LLC and the FIM Interest to FIM.
(b)
Deliveries by GM . At the Closing, GM shall deliver or cause
to be delivered the following to the Company:
(i) the
aggregate GM Purchase Price;
(ii) a
certificate, dated the Closing Date, of an executive officer of GM,
certifying that, as of such date, the representations and
warranties of GM are accurate, true and correct with the same force
and effect as though made on and as of such date.
(c)
Deliveries by FIM . At the Closing, FIM shall deliver or
cause to be delivered the following to the Company:
(i) the
aggregate FIM Purchase Price;
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(ii) a
certificate, dated the Closing Date, of an executive officer or
other authorized signatory of FIM, certifying that, as of such
date, the representations and warranties of FIM are accurate, true
and correct with the same force and effect as though made on and as
of such date.
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY
The
Company represents and warrants to each of GM and FIM as of the
date hereof and as of the Closing that:
Section 3.1
Due Organization . The Company has been duly formed and is
validly existing as a Delaware limited liability company in good
standing under the laws of the State of Delaware.
Section 3.2
Authorization . The Company has the requisite power to enter
into this Agreement and the transactions and agreements
contemplated hereby (the “ Transactions ”) and
to carry out its obligations hereunder and thereunder. This
Agreement has been duly authorized, and this Agreement has been
duly executed and delivered by the Company and constitutes a valid
and binding agreement enforceable in accordance with its terms,
except, to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other laws
affecting the enforcement of creditors rights generally or by
general equitable principles. Neither the execution and delivery of
this Agreement, the consummation of the Transactions, nor
compliance with the terms, conditions or provisions of this
Agreement will be a violation of any of the terms, conditions or
provisions of the Company’s Certificate of Formation or the
LLC Agreement (as amended through the Closing Date).
Section 3.3
Due Issuance . The Interests have been duly authorized, and
when issued and delivered against payment therefor as provided
herein, will be duly and validly issued, fully paid and
non-assessable.
REPRESENTATIONS AND WARRANTIES OF
GM AND FIM
Each
of GM and FIM (each, a “ Purchaser ”) represents
and warrants to the Company as of the date hereof and as of the
Closing that:
Section 4.1
Due Organization . Purchaser is duly organized and is
validly existing and in good standing under the laws of its
jurisdiction of formation.
Section 4.2
Authorization . Purchaser has the requisite power to enter
into this Agreement and the Transactions and to carry out its
obligations hereunder and thereunder. This Agreement has been duly
authorized, executed and delivered by Purchaser and constitutes a
valid
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and binding
agreement of Purchaser enforceable in accordance with its terms,
except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other laws
affecting the enforcement of creditors rights generally or by
general equitable principles. Neither the execution and delivery of
this Agreement, consummation of the Transactions, nor compliance
with the terms, conditions or provisions of this Agreement, will be
a violation of any of the terms, conditions or provisions of
Purchaser’s charter and bylaws or comparable organizational
documents.
Section 4.3
Access to Information . Purchaser has been supplied with and
has had access to such information as it deems relevant to entering
into this Agreement and has had the opportunity to inquire of
management of the Company as to any such information.
Section 4.4
Sophistication . Although such Purchaser (or its affiliates)
is an existing member of the Company, such Purchaser hereby
acknowledges that (i) the Company may be in possession of
material, nonpublic information regarding itself, its financial
condition, results of operations, businesses, regulatory status,
properties, assets, liabilities, managements, projections,
appraisals, and plans, proposals and prospects; (ii) such
information may be materially adverse to such Purchaser’s
interests; and (iii) if such Purchaser were in possession of
some or all of such information it might not be wi
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