LIMITED LIABILITY COMPANY
AGREEMENT
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,
by written consent, the sole stockholder of the Corporation adopted
and approved the conversion of the Corporation to a limited
liability company and the adoption of this Agreement pursuant to
Sections 228 and 266 of 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
WHEREAS,
pursuant to this Agreement and the Conversion, the sole stockholder
of the Corporation is admitted as a member of the Company owning
100% of the limited liability company interests in the
Company.
NOW,
THEREFORE, the Member, by execution of this Agreement, hereby
agrees as follows:
1.
Name . The name of the limited liability company
formed hereby is Residential Capital, LLC.
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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By-Laws of the Corporation, as amended, are replaced and superseded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;
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(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.
5.
Principal Business Office . The principal business
office of the Company shall be located at 8400 Normandale Lake
Blvd., Suite 250, Minneapolis, MN 55437, or at such other
location as the Board may designate from time to time in a writing
to be filed with the records of the Company.
6.
Registered Office . The address of the registered
office of the Company in the State of Delaware is c/o Corporation
Service Company, 2711 Centerville Road, Suite 400,
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Wilmington, New
Castle County, Delaware 19808, or such other office as the Board
may designate from time to time in accordance with the
Act.
7.
Registered Agent . The name and address of the
registered agent of the Company for service of process on the
Company in the State of Delaware are Corporation Service Company,
2711 Centerville Road, Suite 400, Wilmington, New Castle
County, Delaware 19808, or such other agent as the Board may
designate from time to time in accordance with the Act.
8.
Members . The name and the mailing address of the
Member are as set forth on Schedule A attached hereto. The
Member shall have the power to exercise any and all rights or
powers granted to the Member pursuant to the express terms of this
Agreement. The Member shall not have the authority to act for or
bind the Company by virtue of its status as the Member, except as
expressly provided in this Agreement. Except as otherwise provided
by the Act, there shall be no requirement to hold an annual meeting
of the Member.
9.
Limited Liability . Except as otherwise provided by
the Act, the debts, obligations and liabilities of the Company,
whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and the Member
shall not be obligated personally for any such debt, obligation or
liability of the Company solely by reason of being a member of the
Company.
10.
Capital Contributions . Capital contributions were
previously made in connection with the issuance of capital stock by
the Corporation. The Member is deemed admitted as the Member of the
Company upon its execution and delivery of this
Agreement.
11.
Additional Contributions . The Member is not required
to make any additional capital contribution to the Company.
However, the Member may at any time make additional capital
contributions to the Company.
12.
Allocation of Profits and Losses . The
Company’s profits and losses shall be allocated solely to the
Member.
13.
Distributions . Distributions shall be made to the
Member at the times and in the aggregate amounts determined by the
board of directors of the Company (the “Board”).
Notwithstanding any provision to the contrary contained in this
Agreement, the Company shall not make a distribution to the Member
on account of its interest in the Company if such distribution
would violate the Act or other applicable law.
a.
Managers . In accordance with Section 18-402 of
the Act, management of the Company shall be vested exclusively in
the Board, subject to any delegation to the Officers as provided
hereunder or any other delegation contemplated hereby. Directors
(as defined in Section 14(b) below) shall constitute
“managers” within the meaning of the Act and may, but
need not, be
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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.
b.
Election, Number and Term of Directors . The Member may,
from time to time as it deems advisable, elect natural persons as
directors of the Company (each a “Director”). The
directors serving on behalf of the Corporation immediately prior to
the Conversion shall continue as the Directors of the Company upon
the effectiveness of the Conversion; provided that the number of
Directors may be fixed from time to time exclusively pursuant to a
resolution adopted by a majority of the Board. Each Director shall
hold office until resignation, removal or death, or until his or
her successor shall have been duly elected and qualified. Any
Director may be removed with or without cause by the Member. Unless
otherwise provided by law or this Agreement, any newly created
directorship or any vacancy occurring in the Board for any cause
may be filled by a majority of the remaining members of the Board,
although such majority is less than a quorum, or by the Member in
accordance with the first sentence of this Section 14(b), and
each Director so elected shall hold office until the expiration of
the term of office of the Director whom he or she has replaced or
until his or her successor is elected and qualified.
c.
Committees . The Board may, by resolution or resolutions
passed by a majority of the Board, designate one or more
committees, each committee to consist of one or more Directors. Any
such committee, to the extent provided in the resolution of the
Board, or in this Agreement, shall have and may exercise all the
powers and authority of the Board in the management of the business
and affairs of the Company, and may authorize the seal of the
Company to be affixed to all papers which may require it. Any
committee of the Corporation consisting of Directors that existed
immediately prior to the Conversion shall continue as a committee
of the Board after the Conversion, with the same composition and
authority previously delegated, including, without limitation, by
the Corporation. Any committee established by the Board pursuant to
this Section 14(c) may be revoked or altered at any time by the
Board.
d.
Compensation of Directors . Except as otherwise authorized
by the Board, Directors shall not receive any stated salary for
their services as Directors or as members of committees, but by
resolution of the Board a fixed fee and expenses of attendance may
be allowed for attendance at each meeting. Any compensation for any
Director previously authorized by or on behalf of the Corporation
prior to the Conversion shall continue after the Conversion, except
as may be altered at any time by the Board. Nothing herein
contained shall be construed to preclude any Director from serving
the Company or its affiliates in any other capacity as an Officer,
agent or otherwise, and receiving compensation
therefore.
15.
Meeting of the Board of Directors; Voting
.
a.
Meetings . Regular meetings of the Board may be held without
notice at such places and times as shall be determined by
resolution of the Board. Special meetings of the Board may be
called by the President or Chief Executive Officer, or by the
Secretary on the written request of any Director, on at least one
day’s notice to each Director (except that notice to any
Director may
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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.
b.
Quorum . A majority of the Directors shall constitute a
quorum for the transaction of business. If at any meeting of the
Board there shall be less than a quorum present, a majority of
those present may adjourn the meeting from time to time until a
quorum is obtained, and no further notice thereof need be given
other than by announcement at the meeting which shall be so
adjourned. The vote of the majority of the Directors present at a
meeting at which a quorum is present shall be the act of the Board
unless this Agreement shall require the vote of a greater
number.
c.
Director Voting . On each matter before the Board, each
Director shall have one vote with respect to any matter to be
considered by the Board.
d.
Action Without Board of Directors Meeting . Any action
required or permitted to be taken at any meeting of the Board may
be taken without a meeting if written consent thereto is signed by
Directors having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at
which all Directors entitled to vote thereon were present and
voted, and such written consent is filed with the minutes of
proceedings of the Board.
e.
Waiver of Notice . Attendance of a Director at a meeting
shall constitute a waiver of notice of such meeting, except when
the Director attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or
convened.
16.
Officers . The Board may, from time to time as it
deems advisable, elect natural persons who are employees or agents
of the Company and designate them as officers of the Company (the
“Officers”) and assign titles (including, without
limitation, President, Vice President, Secretary, and Treasurer) to
any such person. Unless the Board decides otherwise, if the title
is one commonly used for officers of a business corporation formed
under the GCL, the assignment of such title shall constitute the
delegation to such person of the authorities and duties that are
normally associated with that office. The officers serving on
behalf of the Corporation immediately prior to the Conversion shall
continue as Officers of the Company after the Conversion, holding
the same positions (with the same authorities and duties previously
delegated to them, including, without limitation, by the
Corporation) as they held immediately prior to the Conversion. Any
delegation pursuant to this Section 16 may be revoked at any
time by the Board. An Officer may be removed with or without cause
by the Board.
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17.
Exculpation . Neither the Member nor any Director,
Officer or employee of the Company nor any subsidiary of the
Company or the foregoing (each a “Covered Person”)
shall be liable to the Company or any other person or entity who is
bound by this Agreement for any loss, damage or claim incurred by
reason of any act or omission 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 Agreement, except that the Covered
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