Exhibit 3.1
LIMITED LIABILITY COMPANY AGREEMENT
OF
WORLD OMNI AUTO RECEIVABLES LLC
A Delaware Limited Liability Company
THIS LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") is
executed as of the 20th day of April, 2000, by the undersigned, the sole member,
to continue the Company (as defined below) under the laws of the State of
Delaware for the purposes and upon the terms and conditions hereinafter set
forth. The Company, the Independent Directors and the Springing Member (each as
defined below) join in the execution of this Agreement so as to be bound by this
Agreement.
World Omni Financial Corp., as the sole member (the "Member"), by
execution of this Agreement, hereby continues the Company pursuant to and in
accordance with the Delaware Limited Liability Company Act (6 Del.C. ss.18-101,
et seq.), as amended from time to time, and hereby desires that this Agreement
be, and hereby is, the sole governing document of the Company, superseding all
prior agreements and hereby agrees as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Whenever used in this Agreement the
following terms shall have the meanings respectively assigned to them in this
Article I unless otherwise expressly provided herein or unless the context
otherwise requires:
Act: "Act" shall mean the Delaware Limited Liability Company Act, 6
Del. X.xx.xx. 18-101 et seq., as amended from time to time.
Affiliate: "Affiliate" of another Person shall mean any Person
directly or indirectly controlling, controlled by, or under common control with,
such other person.
Agreed Value: "Agreed Value" shall mean the fair market value of
Contributed Property or services rendered as agreed to by the contributing
Member and the Company, using such reasonable method of valuation as they may
adopt.
Agreement: "Agreement" shall mean this Limited Liability Company
Agreement of the Company as the same may be amended or restated from time to
time in accordance with its terms.
Assignee: "Assignee" shall mean a Person who has acquired a share of
the Company's profits and losses and such rights to receive distributions from
the Company as are assigned to that Person, but who is not a Substitute Member.
Bankrupt Member: "Bankrupt Member" shall mean any member (a) that (i)
makes an assignment for the benefit of creditors; (ii) files a voluntary
petition in bankruptcy; (iii) is adjudged bankrupt or insolvent, or has entered
against such Member an order for relief, in any bankruptcy or insolvency
proceedings; (iv) files a petition or answer seeking for the Member any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
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 the Member in any proceeding of the type described in
subclauses (i) through (iv) of this clause (a); or (vi) seeks, consents to, or
acquiesces in the appointment of a trustee, receiver or liquidator of the Member
or of all or any substantial part of the Member's properties; or (b) against
which, a proceeding seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any statute, law
or regulation has been commenced and one hundred twenty (120) days have expired
without dismissal thereof or with respect to which, without the Member's consent
or acquiescence, a trustee, receiver or liquidator of the Member or of all or
any substantial part of the Member's properties has been appointed and ninety
(90) days have expired without the appointment having been vacated or stayed, or
ninety (90) days have expired after the date of expiration of a stay, if the
appointment has not previously been vacated. The foregoing is intended to and
shall supersede and replace the events of bankruptcy described in Sections
18-304(a) and (b) of the Act.
Bankruptcy: "Bankruptcy" shall mean, 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) file 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.
Capital Contribution: "Capital Contribution" shall mean the amount in
cash contributed and the Agreed Value of other property contributed by each
Member (or its
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predecessors in interest) to the capital of the Company for such Member's
Membership Interest.
Cash Flow: "Cash Flow" for any period shall mean operating cash flow,
which shall be defined according to generally accepted accounting principles,
before deduction for depreciation, cost recovery or other noncash expenses of
the Company during that period.
Code: "Code" shall mean the Internal Revenue Code of 1986, as amended.
Company: "Company" shall mean World Omni Auto Receivables LLC, the
Delaware limited liability company formed pursuant to the Act and this
Agreement.
Contributed Property: "Contributed Property" shall mean each Member's
interest in property or other consideration (excluding services and cash)
contributed to the Company by such Member.
Director: "Director" has the meaning set forth in Section 7.2.
Dispose, Disposing or Disposition: "Dispose," "Disposing" or
"Disposition" shall mean a sale, assignment, transfer, exchange, mortgage,
pledge, grant of a security interest, or other disposition or encumbrance
(including, without limitation, by operation of law), or any act thereof.
Independent Director: "Independent Director" shall mean a Director of
the Company who shall not at the present, at anytime during the preceding five
years nor while serving as Director be (i) a director (with the exception of
serving as the Independent Director of the Company), officer, partner, member,
attorney or counsel, employee or former employee of the Company or any
Affiliate, (ii) a holder (directly or indirectly) of any voting securities of
any Affiliate, (iii) a customer, supplier or other person who derives any of its
purchases or revenues from its activities with the Company, (iv) a natural
person related to any such director, officer, partner, member, attorney or
counsel, employee or former employee, customer, supplier, or holder (directly or
indirectly) of any voting securities of any Affiliate. For purposes of this
definition only, "Affiliate" shall mean any entity other than the Company (but
excluding any similarly organized special purpose finance subsidiary of an
Affiliate) (i) which owns beneficially, directly or indirectly, more than 10% of
the outstanding Membership Interests of the Company, (ii) which is in control of
the Company, as currently defined under ss. 230.405 of the Rules and Regulations
of the Securities and Exchange Commission, 17 C.F.R. ss. 230.405, (iii) of which
10% or more of the outstanding equity interests is owned beneficially, directly
or indirectly, by any entity described in clause (i) or (ii) above, or (iv)
which is controlled by an entity described in clause (i) or (ii) above, as
currently defined under ss. 230.405 of the rules and Regulations of the
Securities and Exchange Commission, 17 C.F.R. ss. 230.405.
IRS: "IRS" shall mean the Internal Revenue Service.
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Managing Member: "Managing Member" shall mean the Member and any
successor Managing Member appointed pursuant to this Agreement, each in its
capacity as a managing member of the Company.
Member: "Member" shall mean World Omni Financial Corp. in its capacity
as a managing member of the Company, and includes any Person admitted as an
additional member of the Company or a Substitute Member of the Company pursuant
to the provisions of this Agreement, each in its capacity as a member of the
Company.
Membership Interest: "Membership Interest" shall mean the limited
liability company interest of the Member in the Company, including, without
limitation, rights in the capital of the Company, rights to receive
distributions (liquidating or otherwise) and allocations of profits and losses.
The Member's Membership Interest shall be expressed as a percentage which shall
equal the ratio that the value of the Capital Contributions made by such Member
bears to the Capital Contributions of all members. The initial Member's initial
Membership Interest shall be one hundred percent (100%).
Person: "Person" shall have the meaning given that term in Section
18-101(12) of the Act.
Rating Agency: "Rating Agency" shall mean any nationally-recognized
statistical rating organization that provides a rating at the request of the
Company with respect to Securities.
Securities: "Securities" shall mean any certificate, notes or other
securities issued by a Trust.
Springing Member: "Springing Member" has the meaning set forth in
Section 8.1(b).
Substitute Member: "Substitute Member" shall mean any Person to whom
the Membership Interest in the Company has been transferred and who was not the
Member immediately prior to such transfer and who has been admitted to the
Company as the Member pursuant to and in accordance with the provisions of
Article IV of this Agreement.
Trust: "Trust" means any trust formed by the Company.
ARTICLE II
ORGANIZATION
Section 2.1. Formation. The Member hereby executes this Agreement for
the purpose of setting forth the rights and obligations of the Member, the
Springing Member and the Independent Directors.
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Section 2.2. Name. The name of the limited liability company continued
hereby is World Omni Auto Receivables LLC.
Section 2.3. Certificate of Formation; Foreign Qualification. Xxx X.
Brilliant, as an authorized person, within the meaning of the Act, caused the
execution, delivery and filing of the Certificate of Formation of the Company
(the "Certificate") in the office of the Secretary of State of the State of
Delaware, in accordance with the Act on April 13, 1999. Immediately following
such filing, the Managing Member is hereby designated as an authorized person,
within the meaning of the Act, to execute, deliver and file, or to cause the
execution, delivery and filing of, all certificates (and any amendments and/or
restatements thereof) required or permitted by the Act to be filed in the office
of the Secretary of State of the State of Delaware. Prior to the Company's
conducting business in any jurisdiction other than the State of Delaware, the
Managing Member of the Company shall cause the Company to comply, to the extent
procedures are available and those matters are reasonably within the control of
the Managing Member, with all requirements necessary to qualify the Company as a
foreign limited liability company in that jurisdiction. At the request of the
Managing Member of the Company, each Member shall execute, acknowledge, swear
to, and deliver all certificates and other instruments conforming with this
Agreement that are necessary or appropriate to qualify, continue and terminate
the qualification of the Company as a foreign limited liability company in all
such jurisdictions in which the Company may conduct business.
Section 2.4. No State Law Partnership; Liability to Third Parties;
Federal Taxation. The Member intends that the Company not be a partnership
(including, without limitation, a limited partnership) or joint venture, and
that no Member be a partner or joint venturer of any other Member, for any
purpose including federal and state tax purposes, and that this Agreement not be
construed to suggest otherwise. The Member, on behalf of the Company, will elect
for the Company to be a nonentity for federal tax purposes. Except as otherwise
specifically provided in the Act, no Member shall be liable for the debts,
obligations or liabilities of the Company or any other Member, including under a
judgment, decree or order of a court.
ARTICLE III
PURPOSES AND POWERS, PRINCIPAL OFFICE, REGISTERED
AGENT, PERIOD OF DURATION AND MEMBER LIST
Section 3.1. Purposes and Powers. The Company has been formed solely
for the following purposes:
(a) purchasing or otherwise acquiring from time to time all
right, title and interest in and to installment sale or lease contracts or
promissory notes arising out of or relating to the purchase or lease of motor
vehicles, monies due thereunder, the motor vehicles financed thereby or security
interests therein, proceeds from claims on insurance policies
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related thereto, liquidation proceeds thereof and related rights and other
property appurtenant thereto and proceeds of any of the foregoing (collectively,
"Assets");
(b) acquiring, owning, holding, servicing, selling, assigning,
pledging, granting security interests in, and otherwise dealing with the Assets,
collateral securing the Assets, related insurance policies, agreements with
motor vehicle dealers or lessors or other originators or servicers of the Assets
and any proceeds or further rights associated with any of the foregoing;
(c) forming Trusts and transferring from time to time the
Assets, or interests therein, to Trusts pursuant to one or more sale and
servicing agreements, trust agreements, pooling and servicing agreements or
other agreements and executing and delivering purchase agreements,
administration agreements, custodial agreements, and any other agreement
(collectively, the "Securitization Agreements"), which may be required or
advisable to effect issuances and sales of Securities;
(d) authorizing, selling, delivering and acquiring the
Securities;
(e) holding and enjoying all of the rights and privileges of
any subordinate or residual certificates issued under Securitization Agreements,
and selling and delivering any interests for a purchase price determined under
fair and commercially reasonable terms;
(f) preparing, executing and filing with the Securities
Exchange Commission a registration statement, including a prospectus and forms
of prospectus supplements relating to Securities;
(g) preparing private placement memorandums relating to
Securities to be offered and sold privately;
(h) performing its obligations under each Securitization
Agreement to which it is a party; and
(i) engaging in any activity and exercising any powers
permitted to limited liability companies organized under the Act that are
incidental to and necessary, suitable or convenient for the accomplishment of
the foregoing.
Section 3.2. Principal Office. The initial principal office of the
Company is located at 000 X.X. 00xx Xxxxxx, Xxxxxxxxx Xxxxx, XX 00000. The
principal office of the Company may be relocated from time to time by
determination of the Managing Member.
Section 3.3. Registered Office; Registered Agent. The address of the
registered office of the Company shall be c/o The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx
Xxxxxxxx, 00000 and the registered agent for service of process on the Company
in the State of Delaware shall be The Corporation Trust Company at such address.
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Section 3.4. Period of Duration. The term of the Company shall
continue in perpetuity, unless the Company is earlier dissolved pursuant to law
or the provisions of this Agreement.
ARTICLE IV
MEMBERSHIP AND DISPOSITIONS OF INTERESTS
Section 4.1. Members. The name and the mailing address of the initial
Member are as follows:
Name Address
---- -------
World Omni Financial Corp. 000 X.X. 00xx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Attn: Corporate Treasurer
Section 4.2. Elimination of Preemptive Rights. No Member shall be
entitled as such, as a matter of right, to subscribe for or purchase interests
in the Company of any class, now or hereafter authorized.
Section 4.3. Resignation. Except as otherwise provided in this
Agreement, a Member does not have the right or power to resign from the Company
as a Member.
Section 4.4. Restriction on the Disposition of the Membership
Interest.
(a) Subject to compliance with all applicable provisions of
this Section 4.4, any Member may Dispose of all or any part of its Membership
Interest. The Person to whom such Disposition is made shall be an Assignee of
such interest but shall not be a Substitute Member unless admitted as a
Substitute Member in accordance with Section 4.4(b).
(b) The Person to whom a Disposition is made as described in
Section 4.4(a) shall have the right to become a Substitute Member only if (i)
the Member making such Disposition grants the transferee the right to be a
Substitute Member (which grant (subject to the following clause (ii)) is hereby
permitted) and (ii) such admission as a Substitute Member is consented to by all
of the Members and all members of the Board of Directors (as hereinafter
defined), which consent may not be unreasonably withheld.
(c) The Company shall not recognize for any purpose any
purported Disposition of all or part of the Member's Membership Interest or any
right or interest appertaining thereto unless and until the Company has received
a document (i) executed by both the Member effecting the Disposition and the
Person acquiring such Membership Interest or part thereof, (ii) including the
notice address of any Person to be admitted to the Company
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as a Substitute Member and such Person's agreement to be bound by this Agreement
in respect of the Membership Interest or part thereof being obtained, (iii)
setting forth the Membership Interest of the parties to the Disposition after
the Disposition, (iv) containing a warranty and representation that the
Disposition was made in accordance with this Agreement and all applicable laws
and regulations, (v) delivering an acceptable nonconsolidation opinion to the
holder of the Mortgage Loan and to the applicable rating agencies concerning the
Company, the Person acquiring such Membership and/or their respective owners,
and (vi) the applicable rating agencies confirm that the transfer will not
result in a qualification, withdrawal or downgrade of any securities ratings.
Each Disposition and, if applicable, admission complying with the provisions of
this Section 4.4 is effective as of the date of the document described in this
Section 4.4(c), but only if the other requirements of this Section 4.4 have been
met.
Section 4.5. Bankrupt Member. A Member shall not cease to be a Member
as a result of such Member becoming a Bankrupt Member and, upon the occurrence
of such event, the Company shall continue without dissolution.
Section 4.6. Personal Representative. Upon the occurrence of any event
that causes the Member to cease to be a member (other than the assignment by the
Member of all its interest in the Company pursuant to Section 4.4 and the
simultaneous admission of the assignee as a Substitute Member and continuation
of the Company without dissolution) or the last remaining member to cease to be
a member of the Company, to the fullest extent permitted by law, the personal
representative of the last remaining member is hereby authorized to, and shall,
within 90 days after the occurrence of the event that terminated the continued
membership of the last remaining 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 the Substitute Member, effective
as of the occurrence of the event that terminated the continued membership of
the Member in the Company, and thereafter all references in this Agreement to
the last remaining member shall be deemed to refer to such Substitute Member.
ARTICLE V
CAPITAL CONTRIBUTIONS
Section 5.1. Admission and Initial Capital Contributions. World Omni
Financial Corp. has been admitted as the initial Member of the Company. The
Member has contributed $1000.00, in cash, and no other property, to the Company
and may contribute in the future any additional capital deemed necessary by the
Managing Member, in its sole discretion, for the operation of the Company. No
other Person shall be admitted as an additional member of the Company without
the approval of the Member and the unanimous approvals of all members of the
Board of Directors, including, without limitation, the affirmative vote of each
of the Independent Directors.
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Section 5.2. Additional Capital; Adjustment of Membership Interests.
Except as specifically set forth elsewhere in this Agreement, no Member shall be
required to contribute capital to the company in excess of such Member's initial
Capital Contribution. The Membership Interests of the Members shall be adjusted
to reflect (i) additional capital contributed to the Company by one or more
Members, (ii) the transfer of Membership Interests, or (iii) the withdrawal of a
Member. As of the time of an event specified in the immediately preceding
sentence, the Membership Interest of the Members may be adjusted by the Managing
Member, in its discretion, to reflect the relative Capital Accounts of the
Members after giving effect to any additional capital contributed to, or amounts
distributed by, the Company, as the case may be, and any appreciation or
depreciation in the fair market value of the Company's property.
Section 5.3. Return of Contributions. A Member is not entitled to
demand the return of any part of its Capital Contribution or to payment of
interest in respect of either its Capital Account or its Capital Contribution.
Except as otherwise expressly set forth in this Agreement, neither the Company
nor any Member has any obligation to return the Capital Contribution of a
Member.
ARTICLE VI
ACCOUNTING AND DISTRIBUTION
Section 6.1. Books; Fiscal Year; Accounting Terms.
(a) The books of the Company shall be kept on the accrual
basis and in accordance with generally accepted accounting principles
consistently applied.
(b) The fiscal year of the Company for financial and tax
reporting purposes shall end on December 31 of each year.
Section 6.2. Distributions of Cash Flow. From time to time, the
Managing Member shall determine to what extent (if any) there exists sufficient
Cash Flow, after taking into account such working capital, capital expenditures
and debt service reserves as it deems necessary, to permit a distribution of
Cash Flow to the Members. Any such distribution shall be made to the Members
proportionately in accordance with their Membership Interests and shall be
subject to Section 18-607 of the Act and other applicable law.
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ARTICLE VII
MANAGEMENT, LIABILITY OF MEMBERS,
RIGHTS TO OBTAIN INFORMATION
Section 7.1. Managing Member. Except as otherwise specifically
provided in this Agreement, the Managing Member shall have the authority to, and
shall, conduct the affairs of the Company.
Section 7.2. Board of Directors. The Company shall have a Board of
Managers which shall be designated as the Company's "Board of Directors" and
each member of the Board of Directors shall be designated as a "Director." All
Company powers shall be by or under the authority of, and the business and
affairs of the Company managed under the direction of, its Board of Directors.
The Board of Directors shall also have such other authority set forth in this
Agreement. The Directors are not "managers" within the meaning of the Act. The
Board of Directors in place prior to the execution of this Agreement shall
continue as the Board of Directors of the Company. For purposes of voting, the
Member shall have a total of three votes and the Independent Directors shall
each have one vote. Members of the Board of Directors may be appointed and
removed from time to time by the Managing Member, in its sole discretion,
provided, however, that the Company shall at all times have at least two
Independent Directors. The Board of Directors shall hold meetings, at such times
and places to be agreed upon by a majority of the Board of Directors.
Section 7.3. Action by Directors. (a) Except as set forth in
Subsection (d) of this Section, any action required by this Agreement to be
taken by the Directors shall require the agreement of not less than a majority
of the Directors.
(b) Anything elsewhere in this Agreement or in the Certificate
to the contrary notwithstanding, for so long as any Securities which are
assigned a rating by a Rating Agency remain outstanding, no Member shall
approve, nor shall the Company undertake (except as provided in the
Securitization Agreements): (i) the incurrence or assumption on behalf of the
Company, directly or indirectly, of any indebtedness; or (ii) the grant of a
security interest of any nature whatsoever in the Company's assets.
(c) Anything elsewhere in this Agreement or in the Certificate
to the contrary notwithstanding, to the fullest extent permitted by law, no
Member shall cause or permit the Company to, nor shall the Company (for so long
as any Securities which are assigned a rating by a Rating Agency remain
outstanding): (i) engage in any dissolution, liquidation, consolidation or
merger (with or into any other business entity) or, except as provided in
Section 3.1, sell all or substantially all of its assets; (ii) engage in any
business activity not described in Section 3 above; or (iii) amend, modify,
waive or terminate this Agreement or the Certificate (except as otherwise
expressly provided in this Agreement).
(d) The Company may take the following actions only with the
affirmative
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vote of the Member and unanimous affirmative vote of all members of the Board of
Directors, including, without limitation, the affirmative vote of each of the
Independent Directors; provided, however, that the Board of Directors may not
vote on, or authorize the taking of, any of the following actions, unless there
are two Independent Directors then serving in such capacity:
(i) make an assignment for the benefit of creditors;
(ii) file a voluntary petition in bankruptcy;
(iii) file a petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation;
(iv) file an answer or other pleading admitting or
failing to contest the material allegations of a petition filed
against the Company in any proceeding of the type described in
subclauses (i) through (iii) of this Subsection (d);
(v) seek, consent to, or acquiesce in the appointment
of a trustee, receiver or liquidator of the Company or of all or any
substantial part of the Company's properties;
(vi) voluntarily dissolve and wind up, or consolidate
or merge with or into another entity or sell all or substantially all
of the assets of the Company;
(vii) engage in any business activity not set forth
in Section 3.1 of this Agreement; and
(viii) to the fullest extent permitted by law, take
any action that would cause a Trust to: (a) dissolve or liquidate, in
whole or in part, or institute proceedings to be adjudicated bankrupt
or insolvent; (b) consent to the institution of bankruptcy or
insolvency proceedings against it; (c) file a petition seeking, or
consent to, reorganization or relief under any applicable Federal or
state law relating to bankruptcy; (d) consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of it or a substantial part of its property; (e)
make a general assignment for the benefit of creditors; (f) admit in
writing its inability to pay debts generally as they become; or (g)
take any action in furtherance of the actions set forth in clauses (a)
through (f) above.
(e) The Company may not amend, alter or repeal the definition
of Independent Director, Section 3.1, Section 4.4, Section 7.2, Section 7.3,
Section 8.1, Section 9.1 or Section 11.1 without the affirmative vote of the
Member and the unanimous affirmative vote of all members of the Board of
Directors, including, without limitation, the affirmative vote of each of the
Independent Directors and such additional approvals or consents, if any, as
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may be required under the Securitization Agreements.
Except as may be specifically required by applicable law, no
member of the Board of Directors shall be guilty of breaching any fiduciary duty
to any Member by refusing to consent to any of the listed actions in subsections
(d) or (e) of this Section 7.3.
(f) In the event of the insolvency of the Company and with
regard to any action contemplated by subsection (d) or (e) above, no Independent
Director will owe a fiduciary duty to any Person who holds a Membership Interest
(except as may be specifically required by applicable law), but any fiduciary
duty of such Independent Director with regard to such action shall be owed
instead to the creditors of the Company. No Independent Director shall serve as
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company, any Affiliate of the Company, or a substantial part of
their respective property.
(f) To the extent consistent with applicable law, when acting
on matters subject to the vote of the Board of Directors, the Board of
Directors, including the interests of the creditors as well as the members of
the Company.
Section 7.4. Officers. (a) The Company shall have an officer
designated as the Company's president (the "President") who shall be appointed
from time to time by the Managing Member. The President shall be the chief
operating officer of the Company. The President of the Company is hereby
delegated the power, authority and responsibility of the day-to-day management,
administrative, financial and implementive acts of the Company's business. The
President of the Company shall have the right and power to bind the Company and
to make the final determination on questions relative to the usual and customary
daily business decisions, affairs and acts of the Company. Other primary
management functions of the Company shall be assigned by the Managing Member.
(b) The Company shall also have officers designated as vice
presidents ("Vice Presidents") who shall be appointed from time to time by the
Managing Member. The Vice Presidents shall have such powers and duties as may
from time to time be assigned to them by the Managing Member or the President.
At the request of the President, or in the case of his absence or disability,
the Vice President designated by the President (or in the absence of such
designation, the Vice President designated by the Managing Member) shall perform
all the duties of the President and when so acting, shall have all the powers of
the President.
(c) The Managing Member may appoint such other officers as it
may deem advisable from time to time. Each officer of the Company shall hold
office at the pleasure of the Managing Member, and the Managing Member may
remove any officer at any time, with or without cause. If appointed by the
Managing Member, the officers shall have the duties assigned to them by the
Managing Member.
Section 7.5. Indemnification.
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(a) General. Except as otherwise provided in this Section 7.5,
and to the fullest extent permitted by applicable law, the Company shall
indemnify the Member and any Director or officer and may indemnify any employee
or agent of the Company who was or is a party or is threatened to be made a
party to a threatened, pending, or completed action, suit, or proceeding
(whether civil, criminal, administrative, or investigative and whether formal or
informal) other than an action by or in the right of the Company, where such
Person is a party because such Person is or was a Member, Director, officer,
employee, or agent of the Company. Except as otherwise provided in this Section
7.5, and to the fullest extent permitted by applicable law, the Company shall
indemnify its Member and Directors against expenses, including, attorney fees,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by a Director in connection with an action, suit or
proceeding relating to acts or omissions of that Director regarding the items
set forth in Section 7.3(c) of this Agreement.
(b) Permissive Indemnification. Except as otherwise provided
in this Section 7.5, and to the fullest extent permitted by applicable law, the
Company shall indemnify such Member, Director or officer and may indemnify such
employee or agent against expenses, including attorneys fees, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with the action, suit or proceeding. To the fullest
extent permitted by law, the Company shall indemnify such Member, Director or
officer and may indemnify such employee or agent if the Person acted in good
faith and did not engage in willful misconduct or gross negligence. With respect
to a criminal action or proceeding, the Person must have had no reasonable cause
to believe such Person's misconduct was unlawful. Unless ordered by a court, any
indemnification permitted under this Section 7.5(b) shall be made by the Company
only as the Company authorizes in the specific case after (i) determining that
the indemnification is proper under the circumstances because the person to be
indemnified has met the applicable standard of conduct and (ii) evaluating the
reasonableness of the expenses and of the amounts paid in settlement. This
determination and evaluation shall be made by a majority vote of the Members who
are not parties or threatened to be made parties to the action, suit or
proceeding or, if there is only one Member, by that Member. However, no
indemnification shall be provided to any Member, Director, officer, employee, or
agent of the Company for or in connection with (i) the receipt of a financial
benefit to which the person is not entitled; (ii) voting for or assenting to a
distribution to Members in violation of this Agreement or the Act; (iii) a
knowing violation of law; or (iv) acts or omissions of such Person constituting
willful misconduct or gross negligence.
(c) Mandatory Indemnification. To the extent that a Member,
Director, officer, employee, or agent of the Company has been successful on the
merits or otherwise in defense of an action, suit, or proceeding described in
Section 7.5(a) or in defense of any claim, issue, or other matter in such
action, suit or proceeding, such person shall be indemnified against actual and
reasonable expenses, including reasonable attorney fees, incurred by such person
in connection with the action, suit, proceeding and any action, suit or
proceeding brought to enforce such mandatory indemnification.
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Section 7.6. Exculpation; Duties.
(a) No Member, Director or officer of the Company shall be
liable to the Company or any other Person who has an interest in the Company for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Member, Director or officer in good faith on behalf of the
Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Member, Director or officer by this Agreement,
except that a Member, Director or officer shall be liable for any such loss,
damage or claim incurred by reason of such Member's, Director's or officer's
willful misconduct or gross negligence.
(b) To the extent that at law or in equity, the Managing
Member or a Director, officer, employee or agent of the Company (each, an
"Indemnified Person") has duties (including fiduciary duties) and liabilities
relating thereto to the Company or to any Member, any such Indemnified Person
acting under this Agreement shall not be liable to the Company or to any Member
for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity, are agreed by
the Members to replace such other duties and liabilities of such Indemnified
Person.
(c) Whenever in this Agreement the Managing Member is
permitted or required to make a decision (i) in its "sole discretion,"
"discretion" or under a grant of similar authority or latitude, the Managing
Member shall be entitled to consider only such interests and factors as it
desires, including its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting the Company or
any other Member, or (ii) in its "good faith" or under another expressed
standard, the Managing Member shall act under such express standard and shall
not be subject to any other or different standards imposed by this Agreement or
any other agreement contemplated herein or by relevant provisions of law or in
equity or otherwise.
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ARTICLE VIII
DISSOLUTION, LIQUIDATION AND TERMINATION OF THE COMPANY
Section 8.1. Dissolution.
(a) The Company shall be dissolved and its affairs wound up
only upon (i) the written consent of all the Members and all members of the
Board of Directors, including, without limitation, the Independent Directors or
(ii) the entry of a decree of judicial dissolution under Section 18-802 of the
Act. The Company shall not be dissolved as a result of there no longer being any
Members of the Company if the Company is continued in accordance with Section
4.7 of this Agreement and Section 18-801(a)(4) of the Act. Notwithstanding
anything in this Agreement to the contrary, and to the fullest extent permitted
by applicable law, the Company shall not be dissolved as long as any Securities
which are assigned a rating by a Rating Agency are outstanding.
(b) So long as any Securities which are assigned a rating by a
Rating Agency are outstanding, the Member shall cause the Company to have at all
times, one person who shall automatically become a member having no economic
interest in the Company (the "Springing Member"). Upon the dissolution of the
Member or upon the occurrence of any event that causes the Member to cease to be
a member of the Company (other than upon an assignment by the Member of all its
interest in the Company pursuant to Section 4.4 and the simultaneous admission
of the assignee as a Substitute Member and continuation of the Company without
dissolution), the Springing Member shall, without any further act or vote being
necessary and simultaneously with the Member ceasing to be a member of the
Company, automatically be admitted to the Company as a member having no economic
interest and the economic interest in the LLC shall pass to the recipient of the
assets of the single member in dissolution. The Springing Member shall have the
powers, rights and duties of a member and shall continue the Company without
dissolution. In order to implement such admission of the Springing Member, the
Springing Member has executed a counterpart to this Agreement as of the date
hereof. No Springing Member may resign from the Company or transfer its rights
as Springing Member unless (i) a successor Springing Member has been admitted to
the Company as Springing Member by executing a counterpart to this Agreement;
provided, however, the Springing Member shall automatically cease to be a member
of the Company upon the admission to the Company of a Substitute Member.
Section 8.2. Liquidation and Termination. On dissolution of the
Company, the Managing Member shall appoint one or more Persons, which appointee
or appointees may include itself, to act as a liquidator. The liquidator shall
proceed diligently to wind up the affairs of the Company and make final
distributions as provided herein and in the Act. The costs of liquidation shall
be borne as a Company expense. Until final distribution, the liquidator shall
continue to operate the Company properties with all of the power and authority
of the Managing Member. A reasonable time shall be allowed for the orderly
liquidation of the assets of the Company and the discharge of liabilities to
creditors so as to enable the liquidator to minimize any losses resulting from
liquidation. The liquidator, as promptly as
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possible after dissolution and again after final liquidation, shall cause a
proper accounting to be made by a nationally recognized firm of certified public
accountants of the Company's assets, liabilities, and operations through the
last day of the calendar month in which the dissolution occurs or the final
liquidation is completed, as applicable, and shall apply the proceeds of
liquidation as set forth in the remaining sections of this Article VIII.
Section 8.3. Payment of Debts. The assets shall first be applied to
the satisfaction of the liabilities of the Company (including any loans or
advances that may have been made by Members to the Company and the expenses of
liquidation).
Section 8.4. Remaining Distribution. The remaining assets shall then
be distributed to the Member in accordance with the Member's positive capital
account balances.
Section 8.5. Reserve. Notwithstanding anything to the contrary in
Section 8.4, the liquidator may retain such amount as it deems necessary as a
reserve for any contingent, conditional or unmatured liabilities or obligations
of the Company, which reserve, after the passage of a reasonable period of time
as determined by the liquidator, shall be distributed in accordance with this
Article VIII.
Section 8.6. Final Accounting. Each of the Members shall be furnished
with a statement prepared by the Company's certified public accountants, which
shall set forth the assets and liabilities of the Company as of the date of the
complete liquidation. Upon compliance by the liquidator with the foregoing
distribution plan, the liquidator shall execute and cause to be filed a
Certificate of Cancellation and any and all other documents necessary with
respect to termination and cancellation of the Company under the Act. The
existence of the Company as a separate legal entity shall continue until the
cancellation of its Certificate of Formation.
ARTICLE IX
AMENDMENTS
Section 9.1. Authority to Amend. Subject to Section 7.3, this
Agreement may only be amended with approval of the Managing Member and the
majority vote of the members of the full Board of Directors and such additional
approvals or consents, if any, as may be required under the Securitization
Agreements. The Managing Member shall provide prior written notice of any
proposed amendment to each Rating Agency then rating any Security that remains
outstanding, but only if such rating initially was provided at the request of
the Company, any Trust or an affiliate thereof.
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ARTICLE X
POWER OF ATTORNEY
Section 10.1. Power. Each member irrevocably constitutes and appoints
the Managing Member as his true and lawful attorney in his name, place and xxxxx
to make, execute, swear to, acknowledge, deliver and file:
(a) Any certificates or other instruments which may be
required to be filed by the Company under the laws of the State of Delaware or
of any other state or jurisdiction in which the Managing Member shall deem it
advisable;
(b) Any documents, certificates or other instruments,
including but not limited to, any and all amendments and modifications of this
Agreement or of the instruments described in Subsection 10.1(a) which may be
required or deemed desirable by the Managing Member to effectuate the provisions
of any part of this Agreement, and, by way of extension and not in limitation,
to do all such other things as shall be necessary to continue and to carry on
the business of the Company; and
(c) All documents, certificates or other instruments which may
be required to effectuate the dissolution and termination of the Company, to the
extent such dissolution and termination is authorized hereby. The power of
attorney granted hereby shall not constitute a waiver of, or be used to avoid,
the rights of the Members to approve certain amendments to this Agreement
pursuant to Subsection 9.1 or be used in any other manner inconsistent with the
status of the Company as a limited liability company or inconsistent with the
provisions of this Agreement.
Section 10.2. Survival of Power. It is expressly intended by each
Member that the foregoing power of attorney is coupled with an interest, is
irrevocable and shall survive the death, retirement or adjudication of
incompetency of such Member. The foregoing power of attorney shall survive the
delivery of an assignment by the Member of its entire interest in the Company,
except that where an assignee of such entire interest has become a Substitute
Member, then the foregoing power of attorney of the assignor Member shall
survive the delivery of such assignment for the sole purpose of enabling the
Managing Member to execute, acknowledge and file any and all instruments
necessary to effectuate such substitution.
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ARTICLE XI
SEPARATE LEGAL ENTITY
Section 11.1. Separate Legal Entity. Anything elsewhere in
this Agreement or in the Certificate to the contrary notwithstanding, for so
long as any Securities which are assigned a rating by a Rating Agency remain
outstanding, the Company covenants that:
(a) It shall not enter into any contractual obligation with
any Affiliate of the Company or the Managing Member, any constituent party of
the Company or any shareholder of the Managing Member, except upon terms and
conditions that are intrinsically fair and substantially similar to those that
would be available on an arm's-length and commercially reasonable basis with a
Person other than any such Affiliate, constituent party or shareholder.
(b) It shall: (i) maintain and prepare financial reports and
financial statements showing its assets and liabilities separate and apart from
those of any other person or entity and will not have its assets listed on the
financial statement of any other entity; (ii) maintain its books, records and
bank accounts separate from those of its Affiliates, any constituent party and
any other Person; and (iii) not permit any Affiliate or constituent party
independent access to its bank accounts.
(c) It shall not commingle any of the funds and other assets
of the Company with those of any Affiliate or constituent party or any other
Person and shall hold all of its assets in its own name.
(d) It shall conduct its own business in its own name.
(e) It is and will remain solvent and shall pay its own debts,
liabilities and expenses (including employment and overhead expenses) only out
of its own assets as the same shall become due.
(f) It has done, or caused to be done, and shall do, all
things necessary to observe limited liability company formalities, as
applicable, and other organizational formalities, and preserve its existence,
and it shall not, nor will it permit any constituent party to, amend, modify or
otherwise change the Certificate or this Agreement in a manner which would
adversely affect the existence of the Company as a single purpose entity.
(g) It shall pay the salaries of its own employees from its
own funds and maintain a sufficient number of employees in light of its
contemplated business operations.
(h) It shall compensate each of its consultants and agents
from its own funds for services provided to it and pay from its own assets all
obligations of any kind incurred.
(i) It does not, and shall not, guarantee, become obligated
for, or hold itself or its credit out to be responsible for or available to
satisfy, the debts or obligations of any other Person or the decisions or
actions respecting the daily business or affairs of any other Person (except as
the Member of the Company may be liable under the Act).
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(j) It shall not acquire obligations or securities of any
Affiliate or any of the Members. It shall not buy or hold any evidence of
indebtedness issued by any other Person (other than cash and investment-grade
securities).
(k) It shall allocate fairly and reasonably the cost of: (i)
any overhead expenses shared with any Member, Affiliate or with any Affiliate of
any Member; and (ii) any services (such as asset management, legal and
accounting) that are provided jointly to the Company and one or more Affiliates.
(l) It shall maintain and utilize separate stationery,
invoices and checks bearing its own name and allocate separate office space
(which may be a separately identified area in office space shared with one or
more Affiliates) and maintain a separate sign in the office directory (if
applicable) of the Company.
(m) It has not made any loans or advances to, or pledged its
assets (except as provided in the Securitization Agreements) for the benefit of,
and shall not make any loans or advances to, or pledge its assets (except as
provided in the Securitization Agreements) for the benefit of, any Person,
including, without limitation, any Affiliate, constituent party, or any
Affiliate of any constituent party.
(n) It shall, at all times, hold itself out to the public as a
legal entity separate and distinct from any other Person and shall correct any
known misunderstanding regarding its separate identity.
(o) It shall not identify itself as a division of any other
Person.
(p) It shall maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its size and character and
in light of its contemplated business operations.
(q) It has and shall maintain its assets in such a manner that
it will not be costly or difficult to segregate, ascertain or identify its
individual assets from those of any Affiliate or constituent party, any
guarantor, or any Affiliate of any constituent party or guarantor, or any other
Person.
(r) It shall at all times cause there to be at least two duly
appointed Independent Directors.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Method of Giving Consent. Any consent of the Member
required by this Agreement may be given by a written consent, given by the
consenting Member and
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received by the Person soliciting such consent. Any consent of a member of the
Board of Directors required by this Agreement may be given by a written consent
given by the consenting member of the Board of Directors and received by the
Person soliciting such consent.
Section 12.2. Governing Law. This Agreement and the rights and duties
of the Members shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to principles of conflict of laws.
Section 12.3. Agreement for Further Execution. At any time or times
upon the request of the Managing Member, each Member agrees to sign and swear to
any certificate, any amendment to or cancellation of such certificate,
acknowledge similar certificates or affidavits or certificates of fictitious
firm name or the like (and any amendments or cancellations thereof) required by
the laws of the State of Delaware, or any other jurisdiction in which the
Company does, or proposes to do, business. This Section 12.3 shall not prejudice
or affect the rights of the Members to approve amendments to this Agreement
pursuant to Section 9.1.
Section 12.4. Entire Agreement. This Agreement contains the entire
understanding between the parties and supersedes any prior understandings or
agreements between them respecting the within subject matter. There are no
representations, agreements, arrangements or understandings, oral or written,
between the parties hereto relating to the subject matter of this Agreement
which are not fully expressed.
Section 12.5. Severability. This Agreement is intended to be performed
in accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations of the jurisdictions in which the Company does
business. If any provision of this Agreement or the application thereof to any
Person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected thereby, but
rather shall be enforced to the greatest extent permitted by law.
Section 12.6. Notices. Notices to Members or to the Company shall be
deemed to have been given when personally delivered or mailed, by prepaid
registered or certified mail, addressed as set forth in this Agreement, unless a
notice of change of address has previously been given in writing by the
addressee to the addressor, in which case such notice shall be addressed to the
address set forth in such notice of change of address.
Section 12.7. Counterparts. This Agreement may be executed in multiple
counterparts, each one of which shall constitute an original executed copy of
this Agreement.
Section 12.8. Pronouns. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the person or persons may require.
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Section 12.9. Titles and Captions. All titles and captions are for
convenience only, do not form a substantive part of this Agreement, and shall
not restrict or enlarge any substantive provisions of this Agreement.
Section 12.9. Binding Agreement. Notwithstanding any other provision
of this Agreement, the Member agrees that this Agreement consitutes a legal,
valid and binding obligation of the Member, and is enforceable against the
Member by the Independent Directors, in accordance with its terms. In addition,
the Independent Directors shall be intended beneficiaries of this Agreement.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement as of April 20, 2000.
MEMBER:
WORLD OMNI FINANCIAL CORP.,
as sole Member
By: __________________________________
Name:
Title:
INDEPENDENT DIRECTOR:
By: __________________________________
Name:
INDEPENDENT DIRECTOR:
By: __________________________________
Name:
SPRINGING MEMBER:
By: ___________________________________
Name:
Title:
WORLD OMNI AUTO RECEIVABLE LLC:
By: World Omni Financial Corp.,
as sole member
By: ___________________________________
Name:
Title:
