Exhibit 3.2
NATIONAL CITY MORTGAGE CAPITAL LLC
LIMITED LIABILITY COMPANY AGREEMENT
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This LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of
National City Mortgage Capital LLC, a Delaware limited liability company (the
"Company") is made and entered into as of the 5th day of August, 2005, by and
between National City Mortgage Co., an Ohio corporation (the "Member") and the
Company.
RECITALS
A. Reference is made to the Certificate of Formation for
the Company filed August 5, 2005 in the office of the Secretary of State for the
State of Delaware (as the same may hereafter be amended or restated from time to
time by amendments thereto filed as aforesaid, the "Certificate").
B. In entering into this Agreement, the parties hereto
wish to make a full statement of their agreement in respect to the Company in
order that, except to the extent the Agreement expressly incorporates by
reference provisions of the Act, the Code or the Treasury Regulations (as each
is defined below) or is expressly prohibited or ineffective under the Act, this
Agreement shall govern, even when inconsistent with, or different from, the
provisions of the Act or any other law or rule.
C. The Member desires, in accordance with Section
18-201(d) of the Act, that this Agreement be effective as of the filing date of
the Certificate of Formation of the Company on August 5, 2005.
ARTICLE I
DEFINITIONS
Unless otherwise expressly provided herein, the following
terms used in this Limited Liability Company Agreement shall have the following
meanings:
(a) "Act" shall mean the Delaware Limited Liability
Company Act at Del. Code Xxx. Tit. 6, ss.ss.18-101 et seq., as it may be amended
from time to time.
(b) "Affiliate" shall mean any Person which directly or
indirectly through one or more intermediaries controls, is controlled by or is
under common control with the Member. For purposes hereof, the terms "control",
"controlled", or "controlling" shall include, without limitation, (i) the
ownership of, control of or power to vote ten percent (10%) or more of (x) the
equity ownership interests in the Member or (y) the limited liability company
interest in the Company or beneficial interests of the Member, directly or
indirectly, or acting through one or more Persons, (ii) the control of the
election of more than one director of the Member, or (iii) the power to
exercise, directly or indirectly, control over the management or policies of the
Member.
(c) "Bankruptcy" means, with respect to any Person, if
such Person (i) makes an assignment for the benefit of creditors, (ii) files a
voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or
has entered against it an order for relief, in any bankruptcy or insolvency
proceedings, (iv) files a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, (v) files an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against it in any proceeding of this nature, (vi) seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator of the Person
or of all or any substantial part of its properties, or (vii) if 120 days after
the commencement of any proceeding against the Person seeking reorganization,
arrangement, composition, readjustment, liquidation or similar relief under any
statute, law or regulation, if the proceeding has not been dismissed, or if
within 90 days after the appointment without such Person's consent or
acquiescence of a trustee, receiver or liquidator of such Person or of all or
any substantial part of its properties, the appointment is not vacated or
stayed, or within 90 days after the expiration of any such stay, the appointment
is not vacated. The foregoing definition of "Bankruptcy" is intended to replace
and shall supersede and replace the definition of "Bankruptcy" set forth in
Sections 18-101(1) and 18 304 of the Act.
(d) "Board" or "Board of Directors" shall mean the Board
of Directors of the Company.
(e) "Capital Cash Flow" shall mean, for purposes of this
Agreement and for a given period of time, the net proceeds received by the
Company from Company borrowings and the net proceeds of the sale of the Company
assets, in each instance less reasonable reserves required in the discretion of
the Board of Directors.
(f) "Capital Contribution" shall mean any contribution to
the capital of the Company by the Member in cash, other property or services
rendered, or a promissory note or other obligation to contribute cash or
property or to perform services.
(g) "Certificate" shall have the meaning as described in
Recital A hereto.
(h) "Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time, or any corresponding provisions of succeeding law.
(i) "Company" shall mean National City Mortgage Capital
LLC, a Delaware limited liability company.
(j) "Director" shall mean any director elected to the
Board of Directors from time to time by the Member. A Director is hereby
designated as a "manager" of the Company within the meaning of Section
18-101(10) of the Act.
(k) "Entity" shall mean any general partnership, limited
partnership, limited liability company, corporation, joint venture, trust,
business trust, cooperative or association or any foreign trust or foreign
business organization.
(l) "Limited Liability Company Interest" shall have the
meaning given it in Section 2.6, which Limited Liability Company Interest
reflects the interest of the Member in the Company.
(m) "Liquidating Agent" shall have the meaning given it
in Section 8.2(a).
(n) "Member" shall mean National City Mortgage Co., an
Ohio corporation, and its successors.
(o) "Officer" shall mean an officer of the Company as
described in Section 4.1.
(p) "Operating Cash Flow" shall mean, for purposes of
this Agreement and for a given period of time, all cash received by the Company
from any source (but excluding net proceeds from borrowings of the Company and
the net proceeds from the sale or other disposition of the Company's assets)
less cash expended for the debts and expenses of the Company, principal and
interest payments on any indebtedness of the Company, capital expenditures and,
in each instance, reasonable reserves required in the sole determination of the
Member.
(q) "Person" shall mean any individual or Entity, and the
heirs, executors, administrators, legal representatives, successors, and assigns
of such "Person" where the context so permits.
(r) "Transaction Documents" shall have the meaning given
it in Section 3.1 hereafter.
(s) "Treasury Regulations" shall include proposed,
temporary and final regulations promulgated under the Code in effect as of the
date of filing the Certificate and the corresponding sections of any regulations
subsequently issued that amend or supersede such regulations.
ARTICLE II
FORMATION OF COMPANY
2.1 FORMATION. The Company is to be formed effective as of August
5, 2005, the date of filing of the Certificate in the office of the Secretary of
State for the State of Delaware in accordance with and pursuant to the Act. The
parties hereto do hereby confirm their intent and agreement that the Company
shall be governed by the terms of this Agreement as more particularly described
in Recital Paragraph B hereto, the terms and provisions of which are herein
incorporated.
2.2 NAME. The name of the Company is National City Mortgage
Capital LLC, provided that the Member may elect to transact business in other
names in those jurisdictions where it deems it necessary for purposes of
complying with the requirements of local law.
2.3 PRINCIPAL PLACE OF BUSINESS. The principal place of business
of the Company shall be located at any place or places as the Member may from
time to time deem advisable. Additional offices may be maintained and acts done
at any other place appropriate for accomplishing the purposes of the Company,
all as determined by the Member.
2.4 REGISTERED OFFICE AND REGISTERED AGENT. The Company's initial
registered office shall be at the office of its registered agent at The
Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx in the
City of Wilmington, County of Xxx Xxxxxx, Xxxxxxxx 00000, and the name of its
initial registered agent at such address shall be The Corporation Trust Company.
The registered office and registered agent may be changed from time to time by
filing the address of the new registered office and/or the name of the new
registered agent with the Delaware Secretary of State pursuant to the Act.
2.5 TERM. The term of the Company shall commence on the date the
Certificate is filed with the Delaware Secretary of State in accordance with the
provisions of the Act and shall continue until the Company is dissolved pursuant
to Article VIII. The existence of the Company as a separate legal entity shall
be perpetual and shall continue until cancellation of the Certificate as
provided in the Act.
2.6 LIMITED LIABILITY COMPANY INTEREST. The interest of the Member
will be designated as the "Limited Liability Company Interest" and may be
expressed as a 100% percentage interest. The Limited Liability Company Interest
is personal property and the Member has no interest in specific property of the
Company.
2.7 CERTIFICATE. Xxxxxxx X. Xxxxxxx, Xx., is hereby designated as
an "authorized person" within the meaning of the Act, and has executed,
delivered and filed the Certificate with the Secretary of State of the State of
Delaware. Upon the filing of the Certificate with the Secretary of State of the
State of Delaware, his powers as an "authorized person" ceased, and the Member
thereupon became the designated "authorized person" and shall continue as the
designated "authorized person" within the meaning of the Act. The Member or an
Officer shall execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in any jurisdiction in which the Company may wish to conduct
business.
ARTICLE III
BUSINESS OF COMPANY
3.1 PERMITTED ACTIVITIES. Subject to the limitations set forth
herein, the purpose for which the Company is formed is to engage solely in the
following activities:
(a) Acquiring as purchaser and/or by contribution to the capital
of the Company or otherwise, owning, holding, transferring,
assigning, selling, contributing to capital, pledging,
granting a security interest in and otherwise dealing with (i)
mortgage notes and similar such instruments, related real
property, mortgages, deeds of trust and other related
agreements, documents, books and records, including loans
secured by cooperative apartments and by timeshare interests,
loans secured by securities accounts or by third party
guaranties as additional collateral, home equity loans and
lines of credit, and other secured and unsecured consumer
loans and receivables, (ii) related rights to payment, whether
constituting cash, account, chattel paper, instrument, general
intangible or otherwise, and any other related assets,
property and rights, including without limitation security
interests, (iii) related collection, deposit, custodial, trust
and other accounts, lock boxes and post office boxes and any
amounts and other items from time to time on deposit therein,
(iv) real property and any improvements thereon and personal
property acquired by foreclosure, deed in lieu thereof or
otherwise in respect of any of the foregoing, (v)
certificates, notes, bonds or other securities, instruments
and documents evidencing ownership interests in or obligations
secured by all or any of the foregoing and (vi) proceeds and
other payments and distributions of any kind of, on or in
respect of any of the foregoing;
(b) Authorizing, issuing, selling and delivering, directly or
indirectly through corporations, partnerships, limited
liability companies, business trusts, common law trusts or
other special purpose entities established solely for such
purpose, certificates, notes, bonds and other securities,
instruments and documents evidencing ownership interests in or
obligations secured by all or any portion of the assets
described in foregoing paragraph (a), and in connection
therewith entering into servicing, pooling and servicing,
trust, insurance, credit enhancement, reimbursement, swap,
underwriting, purchase, indemnity agreements and other
agreements related thereto (the "Transaction Documents"); and
(c) Taking any action necessary or reasonable to enable the
Company to engage in any lawful act or activity and to
exercise any powers permitted under the laws of the State of
Delaware that are related or incidental to and necessary,
convenient or advisable to accomplish any of the foregoing.
3.2 RESTRICTIONS ON ACTIVITIES. Notwithstanding any other
provision contained in this Agreement:
(1) The Company will maintain financial statements, bank
accounts, records, payroll and books of account separate and apart from the
Member, any Affiliate or other Person;
(2) Funds and other assets of the Company shall be
separately identified and segregated. All of the Company's assets shall at all
times be held by or on behalf of the Company, and, if held by another Person,
shall at all times be kept identifiable (in accordance with customary usages) as
assets owned by the Company. In no event shall any of the Company's assets be
held on its behalf by any Affiliate;
(3) The Company will pay from its own funds and assets
all obligations and indebtedness incurred by it and shall not pay the general
overhead and expenses of the Member of the Company;
(4) Each of the Company and the Member of the Company
will conduct its business solely in its own name so as not to mislead others as
to the identity of the Member of the Company or the identity of the Company;
(5) The Company shall not guarantee the obligations or
liabilities of any Person including the Member or Affiliate of the Company nor
shall the Company hold out its credit as being available to satisfy the
obligations or liabilities of any Person including the Member or Affiliate of
the Company;
(6) All business transactions entered into by the Company
with an Affiliate will be on terms and conditions that are not more or less
favorable to the Company than terms and conditions available at the time to the
Company for comparable transactions with Persons who are not Affiliates of the
Company;
(7) The Company will at all times hold itself out to the
public (including any Affiliate's creditors) as a separate and distinct entity
operating under the Company's own name and the Company shall act solely in its
own name and through its own authorized representatives;
(8) The Company will have a sufficient number of
employees, or will contract for the use of a sufficient number of employees, in
light of its stated business purpose, and will compensate all employees, in
light of its stated business purpose, and will compensate all employees,
consultants and agents directly, from the Company's bank accounts, for services
provided to the Company by such employees, consultants and agents, except to the
extent that any employee, consultant or agent of the Company is also an
employee, consultant or agent of any Affiliate(s) and the compensation of such
employee, consultant or agent is allocated between the Company and such
Affiliate(s) on a basis which reflects the services rendered to the Company and
such Affiliate(s), and otherwise will pay from its own funds and assets all
obligations and indebtedness incurred by it;
(9) The Company shall not pay the general overhead and
expenses of the Member or Affiliates of the Company and shall not permit the
Member or Affiliates to pay any of the Company's overhead or expenses; provided,
that overhead expenses (including, without limitation, telephone and other
utility charges) may be shared between the Company and the Member or such
Affiliate so long as such items are allocated between the Company and the Member
or such Affiliate on the basis of actual use to the extent practicable and, to
the extent such allocation is not practicable, on a basis reasonably related to
actual use;
(10) The Company shall have separate stationery, invoices
and checks in its own name;
(11) The Company shall observe all formalities as a
distinct entity, and ensure that all appropriate actions are duly authorized by
its Member;
(12) The Company shall correct any misunderstanding known
to the Company regarding the separate identity of the Company;
(13) The Company shall maintain adequate capital in light
of its contemplated business operations;
(14) The Company shall not incur any indebtedness or
liabilities except for (i) liabilities incurred in the ordinary course of the
Company's business; (ii) liabilities permitted to be incurred by any Transaction
Documents; and (iii) unsecured loans from Affiliates of the Company in order to
accommodate the Company's normal cash management procedures; and
(15) So long as the obligations of the Company under any
Transaction Documents are outstanding,
(a) the Company shall not (i)
consolidate, merge or acquire all or substantially
all of the assets of a Person (except for
consolidations or mergers where the Company is the
surviving Person and all the other restrictions set
forth in this Section 3.2 continue to be met) or (ii)
sell or dispose of all or substantially all of its
assets, except in either case to the extent permitted
by any Transaction Documents;
(b) the Company shall not engage in any
business other than that set forth in Section 3.1 of
the Agreement; and
(c) the Company shall not acquire any
property or own assets other than in furtherance of
the Company's purpose set forth in Section 3.1.
Failure of the Company, or the Member on behalf of the Company, to comply with
any of the foregoing covenants or any other covenants contained in this
Agreement, shall not affect the status of the Company as a separate legal entity
or the limited liability of the Member.
ARTICLE IV
RIGHTS AND DUTIES OF BOARD OF DIRECTORS
4.1 MANAGEMENT. The Board of Directors is hereby appointed the
manager of the Company. The business and affairs of the Company shall be managed
under the exclusive direction and control of the Board of Directors, and all
powers of the Company shall be exercised by or under the authority of the Board
of Directors. The Board of Directors shall have no authority or power under this
Agreement to take any action that it knows violates laws or regulations
applicable to the Company or violates any Transaction Documents.
The Board of Directors shall consist of three Persons appointed by the
Member; provided, however, that at all times at least one Person appointed to
the Board of Directors shall be an "Independent Director." A majority of the
Board of Directors at any time in office shall constitute a quorum. At any
meeting at which a quorum is present, the vote of a majority of the directors
present shall be the act of the Board of Directors unless the act of a greater
number is specifically required by law or this Agreement. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting, without prior notice and without a vote if a consent or
consents in writing, setting forth the action so taken, shall be signed by
members of the Board of 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 members of the Board of Directors entitled to vote thereon were
present and voted. Notwithstanding the foregoing, the unanimous consent of the
Board of Directors (including the consent of the Independent Director) shall be
required with respect to:
(a) the filing by the Company, or the Member or any other
Person on behalf of the Company, of a voluntary petition in bankruptcy or
otherwise seeking or consenting to relief under Title 11 of the United States
Code or any other successor statute thereto or under any similar applicable
state law;
(b) seeking or consenting to the appointment of any
receiver, liquidator, assignee, trustee, sequestrator, custodian or other
similar official for the Company or a substantial part of its property;
(c) the adoption of a resolution by the Member for the
voluntary dissolution or liquidation of the Company; or
(d) the admission in writing by the Company of its
inability to pay its debts generally as they become due or the taking of limited
liability company action in furtherance thereof.
For purposes of this Agreement, "Independent Director" shall mean an
individual who is not, at the time of initial appointment, nor has been during
the five year period prior to the date of this Agreement, a manager or director
of any Affiliate of the Member (except that an individual who serves in similar
capacities for other "special purpose entities" formed by the Member or its
Affiliates is not thereby disqualified from being an Independent Director) or is
an officer of, employed by, a creditor, supplier or contractor of, or holding
any beneficial or economic interest in the Member or any Affiliate of the
Member, or is a family member of any of the foregoing.
The initial Directors of the Company shall be Xxxx Xxxxxx and Xxxx X.
Xxxxxxx. The initial Independent Director shall be Xxxxxxx X. Xxxxxx.
The Board of Directors may, from time to time as it deems advisable,
appoint Officers of the Company and assign in writing titles (including, without
limitation, president, vice president, secretary, and treasurer) to any such
person. Unless the Board of Directors decides otherwise, if the title is one
commonly used for officers of a business corporation formed under the Delaware
General Corporation Law, the assignment of such title shall constitute the
delegation to such person of the authorities and duties that are normally
associated with that office. Any delegation pursuant to this Section 4.1 may be
revoked at any time by the Board of Directors.
The initial Officers of the Company shall be as follows, each to hold
office until his or her successor is elected by the Board:
President: Xxxx Xxxxxx
Vice President & Treasurer: Xxxx X. Xxxxxxx
Vice President & Secretary: Xxxxx X. Xxxxxxx
Vice President: Xxxxxxxx X. Xxxxx
Vice President: Xxxxxxx X. Xxxxxxx
The Member is not an agent of the Company solely by virtue of being the
Member, and, except as provided herein, the Member has authority to act for the
Company solely by virtue of being the Member.
4.2 DUTY OF CARE. The duty of care in the discharge of a
Director's duties to the Company is limited to refraining from engaging in gross
negligence or intentional misconduct. In discharging its duties, the Board of
Directors shall be fully protected in relying in good faith upon the records
required to be maintained under Article IX and upon such information, opinions,
reports, or statements by any of its agents, or by any other Person, as to
matters the Board of Directors reasonably believes are within such other
Person's professional or expert competence and who have been selected with
reasonable care by or on behalf of the Company, including information, opinions,
reports, or statements as to the value and amount of the assets, liabilities,
profits, or losses of the Company or any other facts pertinent to the existence
and amount of assets from which distributions to the Member might properly be
paid.
4.3 NO EXCLUSIVE DUTY TO COMPANY. The Member may have other
business interests and may engage in other activities in addition to those
relating to the Company. Neither the Company nor the Member shall have any
right, by virtue of this Agreement, to share or participate in such other
investments or activities of the other or to the income or proceeds derived
therefrom, notwithstanding that such investments or activities may be
competitive with the business of the Company. The Member shall not incur any
liability to the Company as a result of engaging in any other business or
venture. Subject to the limitations set forth in Section 3.2 of this Agreement,
the Board of Directors may, in its sole discretion, on behalf of the Company,
purchase, sell or lease real or personal property from or to the Member or pay
fees or compensation to the Member for the efforts or commitments in connection
with the business of the Company or otherwise deal with the Member or any Person
in which the Member is directly or indirectly interested, and neither the
Company nor the Board of Directors shall have any rights in or to any income or
profits received by the Member in a transaction with the Company.
4.4 INDEMNITY OF THE BOARD OF DIRECTORS AND OF OTHERS. To the
fullest extent permitted by law, the Directors, or any Person who is or shall
have been serving at the request of the Company as a director, officer, employee
or agent of another Entity, shall be indemnified and held harmless by the
Company from and against any and all losses, liabilities or claims attributable
to such status or for acts or failures to act in connection therewith, provided
that the scope of this indemnification and agreement to hold harmless shall not
extend to losses arising from the gross negligence or intentional misconduct of
the indemnitee and any indemnity under this Section 4.4 by the Company shall be
provided out of and to the extent of Company assets only, and no Director shall
have personal liability on account thereof. The foregoing right of
indemnification shall not be deemed exclusive of any other rights to which a
Person seeking indemnification may be entitled under any other agreement, vote
of Board of Directors or otherwise. If authorized by the Board of Directors, the
Company may purchase and maintain insurance on behalf of any Person (including
the Board of Directors) to the full extent permitted by the Act.
4.5 RESIGNATION OR WITHDRAWAL. Any Director of the Company may
resign by giving written notice to the Board of Directors and the Member. The
resignation of a Director shall take effect upon occurrence of the foregoing or
at such later time as shall be specified in such notice; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective; provided, however, that the resignation of the Independent
Director shall not be effective until his replacement shall have been effected.
So long as any obligations of the Company under any Transaction
Documents are outstanding, the Member of the Company may not resign or withdraw
as Member or transfer its interest in the Company, unless (i) a succeeding
Member is admitted to the Company which succeeding Member shall not be an
individual and who shall have executed an instrument signifying its agreement to
be bound by the terms and conditions of this Agreement (which instrument may be
a counterpart signature page to this Agreement) and (ii) the resigning Member
shall have obtained from each rating agency rating any then outstanding
securities in such securitization a confirmation that such resignation of the
Member and admission of the succeeding Member will not result in a downgrade,
withdrawal or qualification of any of the then outstanding securities issued in
such securitization. If no such securitization is outstanding, the Member may
not resign unless the requirements of clause (i) of the preceding sentence are
satisfied. Any such admission of a succeeding Member shall be deemed effective
immediately prior to the resignation of the resigning Member and, immediately
following such resignation, the resigning Member shall cease to be the Member of
the Company.
4.6 RIGHT TO RELY ON THE BOARD OF DIRECTORS. Any Person dealing
with the Company may rely (without duty of further inquiry) upon a certificate
signed by the Board of Directors or by the President or any Vice President of
the Company as to:
(a) The identity of the Board of Directors;
(b) The existence or nonexistence of any fact or facts
which constitute a condition precedent to acts by the Board of Directors or
which are in any other manner germane to the affairs of the Company;
(c) The Persons who are authorized to execute and deliver
any instrument or document of the Company; or
(d) Any act or failure to act by the Company or any other
matter whatsoever involving the Company or the Member.
ARTICLE V
RIGHTS AND OBLIGATIONS OF MEMBER
5.1 LIMITATION OF LIABILITY. The Member's liability shall be
limited as set forth in this Agreement, the Act and other applicable law.
5.2 LIABILITY OF THE MEMBER TO THE COMPANY. The Member shall be
liable for the return in whole or in part of its contribution to the Company
only to the extent, if any, provided by the Act.
ARTICLE VI
CONTRIBUTIONS TO THE COMPANY
6.1 MEMBER'S CAPITAL IN THE COMPANY.
(a) The Member shall contribute to the Company as its
Capital Contribution the amount determined by the Member in its sole discretion
to be necessary or convenient for carrying on the business and activities of the
Company. No interest shall be paid or accrue on any Capital Contribution, and
the Member shall not have the right to withdraw or be repaid any Capital
Contribution except as provided in the Agreement. Notwithstanding the foregoing,
the Member shall not be required to make any Capital Contribution.
(b) Anything in this Agreement to the contrary
notwithstanding and except as provided in the Act, the Member shall not have any
personal liability for liabilities or obligations of the Company, except that
the Board of Directors may have liability to the extent of its Capital
Contributions made to the Company as aforesaid, and the Member shall not be
required to make any further or additional contributions to the capital of the
Company or to lend or advance funds to the Company for any purpose.
(c) The obligation, if any, of the Member to contribute
to the capital of the Company is solely and exclusively for the benefit of the
Company and the Member, and is not intended to confer rights on any third party
(under Section 18-502(b) of the Act or otherwise). Without limiting the
generality of the foregoing, no creditor of the Company shall be deemed a third
party beneficiary of any obligation of the Member to contribute capital or make
advances to the Company.
6.2 DISTRIBUTIONS OF OPERATING AND CAPITAL CASH FLOW.
(a) Subject to Section 6.2(c) below, distributions of
Operating Cash Flow shall be made at least annually at such time or times as the
Board of Directors shall determine. All operating Cash Flow shall be distributed
to the Member.
(b) Subject to Section 6.2(c) below, distributions of
Capital Cash Flow shall be made at such time or times as the Board of Directors
shall determine. All Capital Cash Flow shall be distributed to the Member.
(c) In accordance with Section 18-607 of the Act, no
distribution shall be made unless, after the distribution is made, the assets of
the Company are in excess of all liabilities of the Company.
6.3 TAX ITEMS. All income, profit, gain, deduction, loss and
credit of the Company shall be allocated solely to the Member.
6.4 CLASSIFICATION FOR TAX PURPOSES. Notwithstanding anything
contained herein to the contrary, the Member and the Board of Directors
recognize and intend that, for federal income tax purposes, the Member shall
constitute the single owner of the Company and the Company shall constitute an
entity with a single owner, which for federal income tax purposes is disregarded
as an entity separate from the Member in accordance with Section 301.7701
3(b)(1)(ii) of the Treasury Regulations. The Member and the Board of Directors
will not make any election or take any action which would cause the Company to
be classified as an association, a corporation or a partnership for federal
income tax purposes.
ARTICLE VII
TRANSFERABILITY
7.1 The Member shall not sell, assign, pledge or otherwise
transfer all or any part of its interest in the Company and any such assignment,
if made, notwithstanding the provisions of this Agreement (whether voluntary or
involuntary), shall be void. No part of the interest of the Member shall be
subject to the claims of any creditor, any spouse for alimony or support, or to
legal process. Subject to Section 4.5, the Member shall not be permitted to
retire or withdraw from the Company.
ARTICLE VIII
DISSOLUTION AND TERMINATION
8.1 DISSOLUTION. The Company will be dissolved and its affairs
wound up upon the occurrence of any of the following events:
(a) So long as no obligations of the Company under any
Transaction Documents are outstanding, the written consent of the Member;
(b) When the term of the Company shall expire pursuant to
Section 2.5 hereof;
(c) Upon the death or expulsion of the Member, or the
occurrence of any other event which terminates the membership of the Member,
unless the business of the Company is continued in a manner permitted by this
Agreement or the Act; or
(d) The entry of a decree of judicial dissolution under
Section 18-802 of the Act.
Upon the occurrence of any event that causes the Member to cease to be
the Member of the Company, to the fullest extent permitted by law, the personal
representative of the Member is hereby authorized to, and shall, within 90 days
of the occurrence of the event that terminated the continued membership of the
Member in the Company, agree in writing (i) to continue the Company and (ii) to
the admission of the personal representative or its nominee or designee, as the
case may be, as a substitute member of the Company, effective as of the
occurrence of the event that terminated the continued membership of the Member
in the Company.
Notwithstanding any other provision of this Agreement, the Bankruptcy
or dissolution of the Member shall not cause the Member to cease to be a member
of the Company or otherwise terminate its membership interest and upon the
occurrence of such an event, the business of the Company shall continue without
dissolution.
8.2 PROCEDURES.
(a) Liquidation of Assets. In the event of the
dissolution of the Company, the Board of Directors or such person required by
law to wind up the Company's affairs (the Board of Directors or other person
being referred to herein as the "Liquidating Agent") will commence to windup the
affairs of the Company and liquidate its assets as promptly as is consistent
with obtaining the fair value thereof. In connection with any such winding up
and liquidation, a financial statement of the Company as of the date of
dissolution will be prepared by the Liquidating Agent.
(b) Authority of Liquidating Agent. In connection with
the winding up and liquidation of the Company, the Liquidating Agent will have
all of the rights and powers with respect to the assets and liabilities of the
Company that an authorized Member or a Director would have pursuant to the Act
or any other applicable law.
(c) Distribution of Assets. Following the satisfaction
of, or reasonable provision for, all debts and liabilities of the Company owed
to creditors and all expenses of liquidation, and subject to the right of the
Liquidating Agent to set up such cash reserves as the Liquidating Agent may deem
reasonably necessary for any contingent, conditional or unmatured liabilities or
obligations of the Company, the proceeds of the liquidation and any other funds
(or other remaining Company assets) of the Company will be distributed in cash
to the Member or its successor.
8.3 TERMINATION OF THE COMPANY. Upon the completion of the winding
up of the Company and the distribution of all assets of the Company and other
funds, the Liquidating Agent will have the authority to take or cause to be
taken such actions as are necessary or reasonable in order to file a certificate
of cancellation of the Certificate of the Company as well as any and all other
documents required by the Act or any other applicable law to effectuate the
termination of the Company.
8.4 CERTIFICATE OF CANCELLATION. Upon the filing of the
certificate of cancellation, the existence of the Company shall cease. Subject
to Section 18-804 of the Act, and prior to the filing of the certificate of
cancellation, the Liquidating Agent shall have authority to distribute any
Company property discovered after dissolution, convey real estate and take such
other action as may be necessary on behalf of and in the name of the Company.
8.5 RETURN OF CONTRIBUTION NONRECOURSE TO THE COMPANY. Except as
provided by law or as expressly provided in this Agreement, upon dissolution,
the Member shall look solely to the assets of the Company for the return of its
Capital Contribution. If the Company property remaining after the payment or
discharge of the debts and liabilities of the Company as provided herein is
insufficient to return the cash contribution of the Member, the Member shall
have no recourse against the Company.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 NOTICES. Any notice, request, demand, consent, approval or
other communication under this Agreement shall be in writing, and shall be
deemed duly given or made at the time and on the date when personally delivered
as shown on a receipt therefor (which shall include delivery by a nationally
recognized overnight delivery service), or when sent by facsimile, or three (3)
business days after being mailed by prepaid registered or certified mail, return
receipt requested, to the address for each party set forth at the conclusion of
this Agreement. The Member, by written notice to the other in the manner herein
provided, may designate an address different from that set forth at the
conclusion of this Agreement.
9.2 BOOKS OF ACCOUNT AND RECORDS. Proper and complete records and
books of account shall be kept or shall be caused to be kept by the Board of
Directors or such representatives as it may appoint in which shall be entered
fully and accurately all transactions and other matters relating to the
Company's business in such detail and completeness as is customary and usual for
businesses of the type engaged in by the Company. The books and records shall at
all times be maintained at the principal executive office of the Company.
9.3 APPLICATION OF DELAWARE LAW. This Agreement, and the
application and interpretation hereof, shall be governed exclusively by its
terms and by the laws of the State of Delaware (without regard to conflict of
laws principles thereof), and specifically the Act.
9.4 WAIVERS. The Member irrevocably waives during the term of the
Company (i) any right that it may have to maintain any action for partition with
respect to the property of the Company and (ii) any right to reject this
Agreement in the event of a bankruptcy of the Member.
9.5 AMENDMENTS. So long as the obligations of the Company under
any Transaction Documents are outstanding, Section 3.1, 3.2, 4.1, 4.5, 7.1, 8.1
and this Section 9.5 may not be amended or supplemented. All other provisions of
this Agreement may be amended and this Agreement may be supplemented by the
unanimous written agreement of the Member and the Board of Directors, including
the Independent Director; provided, so long as the obligations of the Company
under any Transaction Documents are outstanding, that such amendment or
supplement shall not adversely affect the Company's existence as a single
purpose entity for the related transaction.
9.6 EXECUTION OF ADDITIONAL INSTRUMENTS. The Member hereby agrees
to execute such other and further statements of interest and holdings,
designations, powers of attorney and other instruments necessary to comply with
any laws, rules or regulations.
9.7 CONSTRUCTION. Whenever the singular number is used in this
Agreement and when required by the context, the same shall include the plural
and vice versa, and the masculine gender shall include the feminine and neuter
genders and vice versa.
9.8 HEADINGS AND PRONOUNS. The headings in this Agreement are
inserted for convenience only and are in no way intended to describe, interpret,
define, or limit the scope, extent or intent of this Agreement or any provision
hereof. All pronouns and any variations thereof shall be deemed to refer to
masculine, feminine, or neuter, singular or plural as the identity of the Person
or Persons may require.
9.9 WAIVERS. The failure of any party to seek redress for
violation of or to insist upon the strict performance of any covenant or
condition of this Agreement shall not prevent a subsequent act, which would have
originally constituted a violation, from having the effect of an original
violation.
9.10 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies
provided by this Agreement are cumulative and the use of any right or remedy by
any party shall not preclude or waive the right to use any or all other
remedies. Said rights and remedies are given in addition to any other rights the
parties may have by law, statute, ordinance or otherwise.
9.11 SEVERABILITY. If any provision of this Agreement or the
application thereof to any Person or circumstance shall be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement and the application
thereof shall not be affected and shall be enforceable to the fullest extent
permitted by law.
9.12 HEIRS, SUCCESSORS AND ASSIGNS. Each and all of the covenants,
terms, provisions and agreements herein contained shall be binding upon and
inure to the benefit of the parties hereto and, to the extent permitted by this
Agreement, their respective heirs, legal representatives, successors and
assigns.
9.13 CREDITORS. None of the provisions of this Agreement shall be
for the benefit of or enforceable by any creditors of the Company or of the
Member.
9.14 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which shall constitute once
and the same instrument.
IN WITNESS WHEREOF, this Limited Liability Company Agreement is
executed and delivered as of the date first written above by the undersigned,
being the Member, which does hereby agree to be bound by the terms and
provisions set forth in this Agreement.
NATIONAL CITY MORTGAGE CO.
as Member
By: /S/ Xxxx X. Xxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxx
Title: President and COO
NATIONAL CITY MORTGAGE CAPITAL LLC
as Company
By: /S/ Xxxxx X. Xxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Secretary
