AMENDMENT NO. 1 TO AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF GMAC LLC
EXHIBIT 3.1
Execution Copy
Execution Copy
This AMENDMENT NO. 1, dated as of April 16, 2007 (this “Amendment”), to the Amended
and Restated Limited Liability Company Operating Agreement of GMAC LLC, dated as of November 30,
2006 (as in effect from time to time, the “LLC Agreement”), by and among GM Finance Co.
Holdings LLC, a Delaware limited liability company (“GM Holdco”), FIM Holdings LLC, a
Delaware limited liability company (“FIM”), GMAC Management LLC, a Delaware limited
liability company, and GM Preferred Finance Co. Holdings Inc., a Delaware corporation, as members
of GMAC LLC, a Delaware limited liability company (“GMAC”), and each other person who at
any time becomes a member of GMAC in accordance with the terms of the LLC Agreement, is made by and
between GM Holdco and FIM, in their capacity as the Joint Majority Holders. Capitalized terms used
but not defined herein shall have the meanings set forth in the LLC Agreement.
WHEREAS, GM Holdco and FIM constitute the Joint Majority Holders and all of the parties to the
LLC Agreement that are required, pursuant to Sections 7.10(a)(viii) and 14.1 thereof, to amend
certain of the terms of the LLC Agreement as set forth in this Amendment;
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment. The LLC Agreement is amended as follows:
(a) Recital G of the LLC Agreement is hereby amended by replacing it with the following:
“The Company has agreed to allot and issue to Management Company up to 5,820 Class C
Membership Interests of the Company, to be issued in one or more series from time to
time.”
(b) Section 4.5(a)(i)(C) of the LLC Agreement is hereby amended by deleting “thirteen” and
replacing it with “twelve.”
(c) Section 5.1(a) of the LLC Agreement is hereby amended by replacing it with the following:
“Subject to the Act, except as set forth in Section 5.2, and subject to
the right of the Board of Managers to suspend the payment of the Preferred Accrued
Distribution Amount with respect to any one or more Fiscal Quarters with the
consent of the Joint Majority Holders, Distributions of the Preferred Accrued
Distribution Amount with respect to the immediately preceding Fiscal Quarter
shall be made in cash, except as otherwise may be permitted pursuant to
Section 5.5, to the Preferred Holders no later than the tenth Business Day
following (i) with respect to the first three Fiscal Quarters in each Fiscal Year,
the delivery of the financial statements required to be delivered by the Company
pursuant to
Section 4.5(a)(iii) with respect to such Fiscal Quarter, and (ii)
with respect to the fourth Fiscal Quarter in each Fiscal Year, the delivery of the
financial statements required to be delivered by the Company pursuant to
Section 4.5(a)(v) with respect to such Fiscal Year, in each case, ratably
among such Preferred Holders in proportion to the aggregate Preferred Accrued
Distribution Amount with respect to the Preferred Membership Interests then held
by each such Preferred Holder either (A) immediately prior to such Distribution
or, if applicable, (B) on the record date set by the Board of Managers pursuant to
Section 7.9 with respect to such Distribution; provided that the
Board of Managers may reduce any such Distribution to the extent required to avoid
a reduction of the equity capital of the Company below the Required Capital
Amount, as determined in good faith by the Board of Managers. The Company shall
use its commercially reasonable efforts to give written notice to each Preferred
Holder at least three Business Days prior to any Distribution pursuant to this
Section 5.1(a). Notwithstanding the other provisions of this Agreement,
in the event that the Company fails to make the full amount of Distributions of
the Preferred Accrued Distribution Amount pursuant to this Section 5.1(a)
with respect to any Fiscal Quarter, then the Company shall not make any
Distributions pursuant to (1) Section 5.1(b) or Section 5.1(c)
with respect to Financial Book Income earned in such Fiscal Quarter and (2)
Section 5.3, in each case, until such time as the Company has made a full
Distribution of the Preferred Accrued Distribution Amount pursuant to this
Section 5.1(a) with respect to a subsequent Fiscal Quarter.”
(d) Section 14.5 of the LLC Agreement is hereby amended by replacing it with the following:
Assignment. This Agreement shall be binding upon and inure to the benefit
of the Members and their respective permitted assigns. No rights, interests or
obligations of any Member herein may be assigned without the prior written consent
of the Joint Majority Holders except for Transfers in compliance with the terms of
Article IX. No assignment of this Agreement or any rights hereunder shall
be made without the assignee, as a condition of such assignment, assuming in writing
its assignor’s obligations under this Agreement, to the extent applicable to such
assignment. Notwithstanding anything to the contrary contained in this Agreement,
each Member may contingently assign, or grant a security interest in, its Membership
Interests and other interests and rights under this Agreement (including the pledge
of its Membership Interests) for the benefit of its creditors; provided,
however, that a foreclosure of a contingent assignment of Membership
Interests for the benefit of creditors shall be deemed a Transfer, which Transfer
may only be made in compliance with the terms of Article IX (including the right of
first offer and co-sale rights set forth in Section 9.2 thereof), and, upon such
Transfer, the assignee thereof shall assume in writing its assignor’s obligations
under this Agreement.
2. Effect of Amendment. Except as expressly set forth herein, this Amendment shall
not alter, modify, amend or in any way affect any of the terms, conditions,
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covenants, obligations or agreements contained in the LLC Agreement, all of which are ratified
and affirmed in all respects and shall continue to be in full force and effect.
3. Counterparts. This Amendment may be executed in any number of counterparts, which
taken together shall be deemed to constitute one and the same agreement and each of which
individually shall be deemed to be an original, with the same effect as if the signature on each
counterpart were on the same original.
4. Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to conflicts of laws principles.
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SIGNATURE PAGE TO
AMENDMENT NO. 1 TO
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
GMAC LLC
AMENDMENT NO. 1 TO
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
GMAC LLC
IN WITNESS WHEREOF, the undersigned have executed this Amendment dated as of the date first
written above.
THE JOINT MAJORITY HOLDERS: | ||||
FIM HOLDINGS LLC | ||||
By: | /s/ Xxxx X. Xxxxxxx | |||
Name: | Xxxx X. Plattue | |||
Title: | Managing Director | |||
GM FINANCE CO. HOLDINGS LLC | ||||
By: | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | Vice President |