Exhibit 3.8
EXECUTION COPY
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HONDA TITLING B LLC
LIMITED LIABILITY COMPANY AGREEMENT
Between
AMERICAN HONDA FINANCE CORPORATION
and
HONDA TITLING INC.
as Members
Dated as of July 17, 1997
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions......................................................1
Section 1.02. Other Definitional Provisions....................................3
ARTICLE TWO
ORGANIZATION OF COMPANY
Section 2.01. Formation........................................................3
Section 2.02. Name and Office..................................................3
Section 2.03. Duration.........................................................4
Section 2.04. Registered Office and Registered Agent...........................4
Section 2.05. Execution, Delivery and Filing of Certificate....................4
ARTICLE THREE
PURPOSES
Section 3.01. Purposes.........................................................4
Section 3.02. Power and Authority..............................................5
Section 3.03. Limitations on Powers............................................5
Section 3.04. Company Opportunity..............................................6
ARTICLE FOUR
CAPITAL CONTRIBUTIONS; BORROWINGS
Section 4.01. Admission and Initial Contributions of Members...................6
Section 4.02. Additional Capital Contributions.................................7
Section 4.03. Withdrawals......................................................7
Section 4.04. Borrowings.......................................................7
Section 4.05. Additional Members...............................................7
ARTICLE FIVE
MANAGEMENT
Section 5.01. Powers of the Members............................................7
Section 5.02. Limitations on Powers of Members.................................8
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Section 5.03. Self Dealing.....................................................9
Section 5.04. Standard of Care; Liability......................................9
Section 5.05. Compensation.....................................................9
Section 5.06. Meetings of Members..............................................9
Section 5.07. Consent..........................................................9
Section 5.08. Independent Member..............................................10
Section 5.09. Managers........................................................10
ARTICLE SIX
POWER TO INSTITUTE BANKRUPTCY OR INSOLVENCY PROCEEDINGS
Section 6.01. Unanimous Vote Required.........................................10
Section 6.02. Voting on Bankruptcy or Insolvency..............................11
ARTICLE SEVEN
CAPITAL ACCOUNTS; PROFITS AND LOSSES; DISTRIBUTIONS
Section 7.01. Capital Accounts................................................11
Section 7.02. Allocation of Profits and Losses................................11
Section 7.03. Distributions...................................................11
ARTICLE EIGHT
EXCULPATION OF LIABILITY; INDEMNIFICATION
Section 8.01. Exculpation of Liability........................................12
Section 8.02. Indemnification.................................................12
Section 8.03. Fiduciary Duty..................................................12
ARTICLE NINE
TERM OF COMPANY
Section 9.01. Commencement....................................................12
Section 9.02. Dissolution.....................................................13
ARTICLE TEN
APPLICATION OF ASSETS
Section 10.01. Application of Assets...........................................13
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Section 10.02. Termination.....................................................13
Section 10.03. Claims of the Members...........................................13
ARTICLE ELEVEN
RESTRICTION ON TRANSFERS OF INTERESTS
Section 11.01. Restriction on Transfers of Interests...........................14
ARTICLE TWELVE
INVESTMENT REPRESENTATION
Section 12.01. Investment Representation.......................................14
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
Section 13.01. Limitations on Amendment........................................14
Section 13.02. Books of Account; Reports.......................................14
Section 13.03. Bank Accounts and Investment of Funds...........................15
Section 13.04. Accounting Decisions............................................15
Section 13.05. Federal Income Tax Elections....................................15
Section 13.06. Entire Agreement................................................15
Section 13.07. Notices.........................................................15
Section 13.08. Consent of Members..............................................16
Section 13.09. Further Execution...............................................16
Section 13.10. Binding Effect..................................................16
Section 13.11. Severability....................................................16
Section 13.12. Captions........................................................16
Section 13.13. Counterparts....................................................16
Section 13.14. Delaware Law to Control.........................................16
EXHIBITS
Exhibit A Members; Capital Contributions; Membership Percentages.........A-1
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This Limited Liability Company Agreement of Honda Titling B LLC, a Delaware
limited liability company (the "Company"), dated as of July 17, 1997, is between
American Honda Finance Corporation ("AHFC"), a California corporation, and Honda
Titling Inc., a Delaware corporation (the "Independent Member" and, together
with AHFC, the "Members").
WHEREAS, the Members desire to form a limited liability company under and
pursuant to the Delaware Limited Liability Company Act for the purposes set
forth in this Agreement by causing a Certificate of Formation of the Company to
be filed with the office of the Secretary of State of the State of Delaware, and
by entering into this Agreement;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree to form the Company in accordance with the Delaware
Limited Liability Company Act and subject to the terms and provisions of this
Agreement.
ARTICLE ONE
DEFINITIONS
Section 1.01. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
"ACT" means the Delaware Limited Liability Company Act (6 DEL. C.
ss.18-101, eT Seq.), as amended from time to time.
"AFFILIATE" of any person means any other person that (i) directly or
indirectly controls, is controlled by or is under common control with such
person (excluding any trustee under, or any committee with responsibility for
administering, any employee benefit plan) or (ii) is an officer or director of
such person. For purposes of this definition, a person shall be deemed to be
"controlled by" another person if such other person possesses, directly or
indirectly, the power (i) to vote 5% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election of directors,
members or managing partners of such person or (ii) to direct or cause the
direction of the management and policies of such person, whether by contract or
otherwise.
"AGREEMENT" means this Limited Liability Company Agreement of the Company
as it may be amended, restated or supplemented from time to time.
"CAPITAL ACCOUNTS" shall have the meaning set forth in Section 7.01.
"CAPITAL CONTRIBUTIONS" means the amount of all cash (whether in the form
of money, a note payable upon demand or a combination thereof) or the agreed
upon value of other property or services contributed by the Members to the
Company.
"CERTIFICATE" means the Certificate of Formation of the Company, including
any restatements or amendments, which are filed with the Delaware Secretary of
State.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" shall have the meaning set forth in Section 3.01(b).
"COVERED PERSON" shall have the meaning set forth in Section 8.03.
"DELAWARE SECRETARY OF STATE" means the Secretary of State of the State of
Delaware.
"FISCAL YEAR" means the taxable year of the holder of the Majority
Interest.
"INDEPENDENT DIRECTOR" means an individual who is not (i) a director,
officer or employee of any Affiliate of AHFC (other than any limited or special
purpose corporation or limited liability company similar to the Company); (ii) a
person related to any officer or director of any Affiliate of AHFC; (iii) a
direct or indirect holder of more than 10% of any voting securities of any
Affiliate of AHFC; or (iv) a person related to a direct or indirect holder of
more than 10% of any voting securities of any Affiliate of AHFC.
"INDEPENDENT MEMBER" shall have the meaning set forth in Section 5.08.
"MAJORITY INTEREST" means the interest in the Company of AHFC.
"MAJORITY OF THE REMAINING MEMBERS" means those Members holding more than
50% of the Membership Percentages and more than 50% of the Capital Account
balances of the Members.
"MANAGERS" means Honda Titling Inc. and such other persons or entities that
may be designated from time to time by the Members as managers of the Company to
perform such functions for the Company as may be determined from time to time by
the Members. A Manager shall be deemed to be a "manager" of the Company within
the meaning of Section 18-101 of the Act.
"MEMBERS" are the persons or entities designated as Members of the Company
in Exhibit A. Any reference to a Member shall, unless the context clearly
requires otherwise, include a reference to its predecessors and successors in
interest.
"MEMBERSHIP PERCENTAGES" means the Members' respective limited liability
company interests in the Company as set forth in Exhibit A.
"ORIGINATION TRUST" means Honda Lease Trust, a Delaware business trust.
"PROFITS" and "LOSSES" mean the Company's taxable income or loss for each
Fiscal Year (or other period) determined in accordance with the accounting
methods followed by the Company for federal income tax purposes, except that any
income of the Company that is exempt from federal income tax and not otherwise
taken into account in computing Profits and Losses shall be added to such
taxable income or loss.
"RECEIVABLES" shall have the meaning set forth in Section 3.01(a).
"SECURITIES" shall have the meaning set forth in Section 3.01(d).
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"SUBI" shall have the meaning set forth in Section 3.01(c).
"TRUST" shall have the meaning set forth in Section 3.01(c).
"TRUSTEE" shall have the meaning set forth in Section 6.01.
"UTI" shall have the meaning set forth in Section 3.01(c).
Section 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (i) terms used herein
include, as appropriate, all genders and the plural as well as the singular,
(ii) references to words such as "herein", "hereof" and the like shall refer to
this Agreement as a whole and not to any particular part, article or section
within this Agreement, (iii) references to a section such as "Section 1.01" and
the like shall refer to the applicable section of this Agreement, (iv) the term
"include" and all variations thereof shall mean "include without limitation" and
(v) the term "or" shall include "and/or".
(b) As used in this Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles in effect from time to time. To the
extent that the definitions of accounting terms in this Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under such generally accepted accounting principles, the definitions contained
in this Agreement or in any such certificate or other document shall control.
ARTICLE TWO
ORGANIZATION OF COMPANY
Section 2.01. FORMATION. The parties hereby form a limited liability
company pursuant to the provisions of the Act and this Agreement, and agree that
the rights, duties and liabilities of the Members and Managers shall be as
provided in the Act, except as otherwise provided in this Agreement. Pursuant to
Section 18-201(d) of the Act, this Agreement shall become effective as of the
formation of the Company.
Section 2.02. NAME AND OFFICE. The name of the Company shall be Honda
Titling B LLC, and its office shall be located at 000 Xxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, or such other place as the Members may determine from time to
time.
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Section 2.03. DURATION. The term of the Company shall commence on the date
the Certificate is filed in the office of the Delaware Secretary of State and
shall continue until March 31, 2027, unless the Company is dissolved before such
date in accordance with the provisions of this Agreement. The existence of the
Company as a separate legal entity shall continue until cancellation of the
Certificate in the manner required by the Act.
Section 2.04. REGISTERED OFFICE AND REGISTERED AGENT. The Company's initial
registered office shall be at the office of its registered agent at Corporation
Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, 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 in
accordance with the Act. If the registered agent shall ever resign, the Company
shall promptly appoint a successor.
Section 2.05. EXECUTION, DELIVERY AND FILING OF CERTIFICATE. X. Xxxxxx, as
an "authorized person" within the meaning of the Act, shall execute, deliver and
file the Certificate with the Delaware Secretary of State.
ARTICLE THREE
PURPOSES
Section 3.01. PURPOSES. The purposes for which the Company is formed are:
(a) to acquire, own, hold, service, sell, assign, pledge, finance,
refinance and otherwise deal with from time to time (i) leases; (ii) installment
obligations; (iii) motor vehicle retail installment sale or conditional sale
contracts; (iv) motor vehicle wholesale inventory loans or sales contracts
secured by, among other things, new or used motor vehicles; (v) dealer rental
car loans or sales contracts including dealer rental car loans or sales
contracts secured by, among other things, new or used motor vehicles; (vi)
receivables, including any right to payment from a person or entity, whether
constituting an account, chattel paper, instrument or general intangible,
arising out of or relating to the sale of new or used motor vehicles or related
products and supplies; (vii) interests in any of the foregoing; and (viii) any
proceeds or other monies due under any of the foregoing, any related fees and
charges, security interests in the foregoing or other property securing payment
thereof and related agreements, instruments, documents and rights (collectively,
the "Receivables");
(b) to acquire, own, hold, service, sell, assign, pledge, finance,
refinance and otherwise deal with Receivables, any collateral securing the
Receivables, related insurance policies, related agreements with affiliates,
agreements with motor vehicle dealers, manufacturers and lessors and other
originators or servicers of Receivables and any proceeds or further rights
associated therewith (collectively, the "Collateral");
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(c) to sell, assign, pledge or otherwise transfer Receivables, Collateral,
Securities and notes or beneficial interests in any of the foregoing, undivided
trust interests ("UTIs") and special units of beneficial interests ("SUBIs") to
trusts or other entities established by or on behalf of the Company or one of
its affiliates (each, a "Trust") or to Affiliates of the Company;
(d) to authorize, sell and deliver or participate in the issuance of one or
more series or classes of participation certificates, bonds, notes or other
evidences of interest or indebtedness (collectively, "Securities"), in either
case issued by Trusts;
(e) to acquire Securities, UTIs or SUBIs or other property of a Trust,
including remainder interests in collateral or reserve accounts;
(f) to issue, authorize, sell and deliver Securities, UTIs, SUBIs or other
instruments secured, Collateral collateralized by or evidencing beneficial
interests in Receivables or Securities;
(g) to hold, and to enjoy all of the rights and privileges as a holder or
beneficial owner of, any Securities, Collateral, UTIs or SUBIs;
(h) to negotiate, authorize, execute, deliver or assume or perform the
obligations under any agreement, instrument or document relating to the
activities set forth in subsections (a) through (g) above, including but not
limited to any trust agreement, sale and servicing agreement, pooling and
servicing agreement, indenture, reimbursement agreement, credit support
agreement, receivables purchase agreement, indemnification agreement, placement
agreement or underwriting agreement or any other documents or agreements
contemplated thereby or specifically described therein; and
(i) to engage in any activity and to exercise any powers permitted to
limited liability companies under the laws of the State of Delaware that are
related or incidental to the foregoing and necessary, convenient or advisable to
accomplish the foregoing.
Section 3.02. POWER AND AUTHORITY. The Company shall have the power and
authority to take any and all actions necessary, appropriate, proper, advisable,
incidental or convenient to accomplish or for the furtherance of the purposes
set forth in Section 3.01. The Company may serve as a general partner of Honda
Titling B L.P. The Company, and Honda Titling Inc. or X. Xxxxxx, on behalf of
the Company, may enter into and perform the Limited Partnership Agreement of
Honda Titling B L.P. without any further act, vote or approval of any Member,
Manager or other person, notwithstanding any other provision of this Agreement,
the Act or other applicable law, rule or regulation.
Section 3.03. LIMITATIONS ON POWERS. Notwithstanding any other provision of
this Agreement and any provision of law, the Company shall not do any of the
following:
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(a) engage in any business or activity other than as set forth in this
Agreement;
(b) without the unanimous affirmative vote of the Members, (i)
dissolve or liquidate, in whole or in part, or institute proceedings to be
adjudicated bankrupt or insolvent, (ii) consent to the institution of bankruptcy
or insolvency proceedings against it, (iii) file a petition seeking or consent
for reorganization or relief under any applicable federal or state law relating
to bankruptcy, (iv) consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or a
substantial part of its property, (v) make any assignment for the benefit of
creditors, (vi) admit in writing its inability to pay its debts generally as
they become due; (vii) institute or join in any institution of, any bankruptcy,
insolvency, liquidation, reorganization or arrangement proceedings or other
proceedings under any federal or state bankruptcy or similar law, against any
entity in which the Company holds an ownership interest; or (viii) take any
limited liability company action in furtherance of the actions set forth in
clauses (i) through (vii) above;
(c) without the unanimous affirmative vote of the Members, take or
cause to be taken any of the actions referred to in clauses (i) through (vii) of
subparagraph (b) above with respect to any entity of which the Company is a
partner or member; or
(d) without the unanimous affirmative vote of the Members, merge or
consolidate with any other corporation, company or entity or sell all or
substantially all of its assets or acquire all or substantially all of the
assets or capital stock or other ownership interest of any other corporation,
company or entity.
Section 3.04. COMPANY OPPORTUNITY. No Member need afford the Company or any
other Member the opportunity of investing or otherwise participating in any
other enterprise, regardless of whether such enterprises, but for this sentence,
would be deemed an opportunity of the Company. Nothing in this Agreement shall
prohibit any Member from engaging in any other business activity, whether or not
competitive with, similar to, or within the scope of the activities conducted by
or on behalf of the Company.
ARTICLE FOUR
CAPITAL CONTRIBUTIONS; BORROWINGS
Section 4.01. ADMISSION AND INITIAL CONTRIBUTIONS OF MEMBERS.
(a) Each of AHFC and the Independent Member shall be admitted as a member
of the Company at the time such entity (i) executes this Agreement or a
counterpart signature page to this Agreement and (ii) is listed as a Member on
Exhibit A attached hereto.
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(b) The Members shall make the Capital Contributions set forth next to
their names in Exhibit A upon the formation of the Company. No interest shall
accrue on any Capital Contribution made to the Company.
Section 4.02. ADDITIONAL CAPITAL CONTRIBUTIONS. The Members shall not be
obligated to make additional Capital Contributions except upon the consent of
all Members.
Section 4.03. WITHDRAWALS. No Member shall be entitled to be repaid any
portion of its Capital Account or withdraw from the Company without the consent
of all Members or as otherwise provided in this Agreement.
Section 4.04. BORROWINGS. The Company may borrow sums to be used for any of
the business purposes described in Section 3.01; provided, however, that any
such borrowing shall require the prior approval of a Majority Interest and shall
not be prohibited by this Agreement, any applicable law, regulation or
agreement. Any Member may advance such sums to the Company as approved in
writing by a Majority Interest. Any amounts borrowed from a Member shall not
constitute a contribution to the capital of the Company but shall constitute a
debt of the Company which shall be repaid before any distributions to the
Members.
Section 4.05. ADDITIONAL MEMBERS. No additional Members shall be admitted
to the Company without the unanimous consent of the Members.
ARTICLE FIVE
MANAGEMENT
Section 5.01. POWERS OF THE MEMBERS.
(a) The Company shall be managed by its Members. Subject to the other
provisions of this Article and Article Six, each Member shall have the
authority, on behalf of the Company, to do all things appropriate for the
accomplishment of the purposes of the Company, including, but not limited to,
(i) acquiring and selling, assigning and transferring installment obligations,
leases, retail installment sale or conditional sale contracts, inventory loans,
motor vehicle wholesale inventory sales contracts, dealer rental car loans or
sales contracts, promissory notes, security agreements and receivables; (ii)
disbursing Company funds for Company purposes; (iii) investing and reinvesting
Company funds; (iv) executing contracts, notes, mortgages and other agreements
and instruments; (v) employing attorneys, accountants, Managers or other agents,
which may include Affiliates of the Company; (vi) paying all Company
obligations; (vii) performing all ministerial acts and duties relating to the
payment of all indebtedness, taxes and assessments due or to become due with
regard to any property of the Company; (viii) purchasing and maintaining
insurance on behalf of the Company against any liability or expense asserted
against or incurred by or on behalf of the Company; (ix) transacting the
Company's business under an assumed name or name other than its name as set
forth in the Certificate; (x) appointing
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any Member or other person as agent for service of process on the Company as
required by the law of any jurisdiction in which the Company transacts business;
(xi) commencing, prosecuting or defending any proceeding in the Company's name;
and (xii) doing such other acts as may facilitate the Company's exercise of its
powers; provided, however, that all such acts shall fall within the purposes of
the Company as set forth in Section 3.01.
(b) Notwithstanding anything in this Agreement to the contrary, the Company
shall at all times have at least one Independent Member, and no action of the
type described in Article Six shall occur without the consent of each
Independent Member.
(c) Each Member irrevocably appoints the other Members as its
attorney-in-fact on its behalf and in its stead to execute and swear to any
amendment to the Certificate and file any writing, and to give any notice which
may be required by any rule or law and which may be necessary or appropriate in
order to effect any action by or on behalf of the Company or the Members taken
as provided in this Agreement or which may be necessary or appropriate to
correct any errors or omissions. This power of attorney is coupled with an
interest and shall not be revoked by the act of any Member. This power of
attorney shall survive and not be affected by an assignment by any Member of its
limited liability company interest in the Company; provided, however, that where
a Member's entire limited liability company interest is assigned to an assignee
who becomes a substitute Member in its stead, such power shall survive for the
sole purpose of enabling such Member to effect such substitution. Each Member
shall provide seven days' prior written notice of actions to be taken as
attorney-in-fact on behalf of another Member and the acting Member shall be
authorized to take such actions unless the other Member objects in writing
during such notice period.
(d) A copy of the Certificate or amendments to the Certificate will be
provided to each Member upon written request to the Company.
(e) Subject to the other provisions of this Article and Article Six, the
Members shall have full power to act for and to bind the Company to the extent
provided by Delaware law. Every contract, note, mortgage, lease, deed or other
instrument or agreement executed by any Member shall be conclusive evidence that
at the time of execution, the Company was then in existence, that this Agreement
had not theretofore been terminated or amended in any manner and that the
execution and delivery of such instrument was duly authorized by the Members. A
Manager may bind the Company only to the extent authorized by the Members.
Section 5.02. LIMITATIONS ON POWERS OF MEMBERS. Notwithstanding any other
provision of this Agreement, no act shall be taken, sum expended, decision made,
obligation incurred or power exercised by any Member on behalf of the Company,
without prior written notice to all Members outlining the proposed action
followed by the written consent of a Majority Interest with respect to: (i) any
mortgage, grant of security interest, pledge or encumbrance of any asset of the
Company; (ii) any merger of the Company with another entity; (iii) a transaction
involving an actual or potential conflict of interest between a Member and the
Company; (iv) any material change in the character of the business and affairs
of the Company; or (v) any act that would contravene in a material respect any
provision of this Agreement or the Act.
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Section 5.03. SELF DEALING. Any Member and any Affiliate thereof may deal
with the Company, directly or indirectly, as vendor, purchaser, employee, agent
or otherwise. No contract or other act of the Company shall be voidable or
affected in any manner by the fact that a Member or an Affiliate thereof is
directly or indirectly interested in such contract or other act apart from its
interest as a Member, nor shall any Member or an Affiliate thereof be
accountable to the Company or the other Members in respect of any profits
directly or indirectly realized by reason of such contract or other act, and
such interested Member shall be eligible to vote or take any other action as a
Member in respect of such contract or other act as it would be entitled were it
or its Affiliate not interested therein. Notwithstanding the foregoing, (i) any
direct or indirect interest of a Member or an Affiliate thereof in any contract
or other act, other than its interest as a Member, shall be disclosed to all
other Members, (ii) such contract or other act shall be approved by a Majority
Interest unless the same is specifically authorized herein and (iii) the Members
shall not receive or hold any property of the Company as collateral security in
respect of any claim against the Company.
Section 5.04. STANDARD OF CARE; LIABILITY. Each Member and its respective
directors, officers, stockholders and Affiliates shall discharge its duties in
good faith, with the care an ordinarily prudent person in a like position would
exercise under similar circumstances, and in a manner he reasonably believes to
be in the best interests of the Company as required by this Agreement or the
Act. A Member shall not be liable for monetary damages to the Company for any
breach of any such duties except for receipt of a financial benefit to which the
Member is not entitled, voting for or assenting to a distribution to Members in
violation of this Agreement or the Act, or a knowing violation of the law.
Section 5.05. COMPENSATION. The Company shall reimburse each Member for any
reasonable out-of-pocket expenses incurred on behalf of the Company. In
addition, any Member may receive reasonable compensation for any services
rendered to the Company approved by the Majority Interest.
Section 5.06. MEETINGS OF MEMBERS. All Members shall be entitled to vote on
any matter submitted to a vote of the Members. Unless a greater vote is required
by the Act or this Agreement, the affirmative vote of a Majority Interest shall
be required. Meetings of Members for the transaction of such business as may
properly come before the Members may be held at such place, on such date and at
such time as the Majority Interest shall determine. Special meetings of Members
for any proper purpose or purposes may be called at any time by the holders of
at least 25% of the Membership Percentages of all Members. The Company shall
deliver or mail written notice stating the date, time, place and purposes of any
meeting to each Member entitled to vote at the meeting. Such notice shall be
given not less than 10 nor more than 60 days before the date of the meeting.
Section 5.07. CONSENT. Any action required or permitted to be taken at an
annual or special meeting of the Members may be taken without a meeting, if the
Members unanimously consent, in writing, to take the proposed action. Every
written consent shall bear the date of consent in lieu of meeting and the
signature of each Member who signs the consent.
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Section 5.08. INDEPENDENT MEMBER. The Company shall at all times have at
least one Member (each, an "Independent Member") that shall be a special purpose
corporation formed pursuant to a charter or articles of incorporation that (i)
limits its business purposes and activities and (ii) requires the unanimous
consent of its entire board of directors (without any vacancies), including the
affirmative vote of all Independent Directors before such member may approve,
permit or take any action, or cause any action to be taken in respect of the
following actions with respect to any limited liability company of which it is a
member, to (a) institute proceedings to have itself adjudicated bankrupt or
insolvent, (b) consent to the institution of bankruptcy or insolvency
proceedings against it, (c) file a petition seeking, or consent to, such
member's or limited liability company's 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 such member or limited liability company or a substantial
part of its property, (e) make any assignment for the benefit of its creditors,
admit in writing its inability to pay its debts generally as they become due,
(f) institute, or join in any institution of, any bankruptcy, insolvency,
liquidation, reorganization or arrangement proceedings or other proceedings
under any federal or state bankruptcy or similar law, against any entity in
which such member or limited liability company holds an ownership interest or
(g) take any action in furtherance of the actions set forth in clauses (a)
through (f) above.
Section 5.09. MANAGERS. Except as otherwise provided by the Act:
(a) the debts, obligations and liabilities of the Company, whether arising
in contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and no Manager shall be obligated personally for any
such debt, obligation, or liability of the Company solely by reason of being a
Manager of the Company;
(b) no Manager shall be required to make any Capital Contribution in the
form of cash to the Company; and
(c) no Manager shall be (i) entitled to receive any Profits or (ii) liable
for any Losses.
ARTICLE SIX
POWER TO INSTITUTE BANKRUPTCY OR INSOLVENCY PROCEEDINGS
Section 6.01. UNANIMOUS VOTE REQUIRED. Notwithstanding any other provision
of this Agreement and any provision of law that otherwise so empowers the
Company, the Company shall not, without (i) the prior written consent of each
trustee from time to time (each, a "Trustee") under any pooling and servicing
agreement, indenture, trust agreement or similar agreement between the Company,
a Trustee and a servicer, if any, pursuant to which the Company shall issue
certificates and/or notes and (ii) the affirmative vote of 100% of the Members
of the Company, including the Independent Member, institute proceedings to be
adjudicated a bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency
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proceedings against it, or file a petition seeking, or consent to,
reorganization or relief under any applicable federal or state law relating to
bankruptcy, or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or a substantial
part of its property, or make any assignment for the benefit of creditors, or
admit in writing its inability to pay its debts generally as they become due, or
take any limited liability company action in furtherance of any such action.
Section 6.02. VOTING ON BANKRUPTCY OR INSOLVENCY. All Members, including
each Independent Member, shall be entitled to vote on any proposal of the type
described in Section 6.01. The affirmative vote of 100% of the Members,
including each Independent Member, entitled to vote on such a proposal shall be
required for such a proposal to be adopted.
ARTICLE SEVEN
CAPITAL ACCOUNTS; PROFITS AND LOSSES; DISTRIBUTIONS
Section 7.01. CAPITAL ACCOUNTS. A capital account shall be maintained for
each Member (each, a "Capital Account"), to which contributions and Profits
shall be credited and against which distributions and Losses shall be charged.
Capital Accounts shall be maintained in accordance with the accounting
principles of Code Section 704 and the Treasury Regulations thereunder.
Section 7.02. ALLOCATION OF PROFITS AND LOSSES.
The Profits and Losses of the Company shall be determined as of the end of
each Fiscal Year of the Company and shall be allocated to AHFC. Honda Titling
Inc. will have no interest in the Profits and Losses.
Section 7.03. DISTRIBUTIONS.
(a) The Company shall distribute to AHFC such sums as the Majority Interest
determines to be available for distribution and not required to provide for
current or anticipated Company needs. All distributions shall be made to AHFC.
(b) No distributions shall be declared and paid unless, after the
distribution is made, the Company would be able to pay its debts as they become
due in the usual course of business and the assets of the Company are in excess
of the sum of (i) the Company's liabilities, plus (ii) the amount that would be
needed to satisfy the preferential rights of other Members upon dissolution that
are superior to the rights of the Members receiving the distribution.
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(c) The Company shall not be required to make a distribution to a Member on
account of its interest in the Company if such distribution would violate
Section 18-607 of the Act or other applicable law.
ARTICLE EIGHT
EXCULPATION OF LIABILITY; INDEMNIFICATION
Section 8.01. EXCULPATION OF LIABILITY. Except as otherwise provided by the
Act, the debts, obligations and liabilities of the Company, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and no Member shall be obligated personally for any
such debt, obligation or liability of the Company solely by reason of being a
Member of the Company.
Section 8.02. INDEMNIFICATION. The Company hereby agrees to indemnify each
Member, Manager, employee or agent of the Company, and each director, officer,
employee or Affiliate of a Member, 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) by reason of
the fact that such person is or was a Member, employee or agent of the Company
against expenses (including reasonable 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.
Section 8.03. FIDUCIARY DUTY. To the extent that, at law or in equity, a
Member, director, officer, employee or Affiliate of a Member, or a Manager
(each, a "Covered Person") has duties (including fiduciary duties) and
liabilities relating thereto to the Company or to any other Covered Person, a
Covered 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 a Covered Person otherwise existing at law or in equity, are
agreed by the Members to replace such other duties and liabilities of such
Covered Person.
ARTICLE NINE
TERM OF COMPANY
Section 9.01. COMMENCEMENT. The term of the Company shall commence upon the
filing of the Certificate with the Delaware Secretary of State. The bankruptcy
of a Member or the occurrence of any other event under Section 18-304 of the Act
shall not cause a Member to cease to be a Member of the Company and upon the
occurrence of such an event, the business of the Company shall continue without
dissolution.
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Section 9.02. DISSOLUTION. The Company shall be dissolved and its affairs
wound up upon the occurrence of any of the following events: (i) the sale or
other disposition of substantially all of the assets of the Company; (ii) the
written consent thereto of all of the Members; (iii) the retirement, expulsion
or dissolution of a Member; provided, however, that the Company shall not
dissolve and be wound up if within 90 days after such event, all remaining
Members agree in writing to continue the business of the Company and to admit
one or more Members as necessary or desired; or (iv) the entry of a decree of
judicial dissolution pursuant to Section 18-802 of the Act.
ARTICLE TEN
APPLICATION OF ASSETS
Section 10.01. APPLICATION OF ASSETS. Upon dissolution of the Company, the
Company shall cease carrying on its business and affairs and shall commence
winding up of the Company's business and affairs and complete the winding up as
soon as practicable. The Company's affairs shall be concluded by a Member or
Members selected in writing by the Majority Interest. Except when the Company
has rated obligations outstanding, the assets of the Company may be liquidated
or distributed in kind, as determined by the Majority Interest, and the same
shall first be applied to the payment of, or to a reasonable reserve for the
payment of, the Company's liabilities (including such provision for contingent,
conditional or unmatured liabilities as the Majority Interest shall deem
appropriate) and then to AHFC. If the Company has rated obligations outstanding,
the Company will not liquidate any assets which are subject to a security
interest in favor of the holders of such rated obligations without the consent
of such holders. If the assets of the Company shall not be sufficient to pay all
of the liabilities of the Company, to the fullest extent permitted by the Act,
no assets of the Company may be sold or disposed of without the written consent
of all of the holders of outstanding securities issued by any trust formed in
respect of a transaction to which the Company is a party. To the extent that
Company assets cannot either be sold without undue loss or readily divided for
distribution in kind to the Members, then the Company may, as determined by the
Majority Interest, convey those assets to a trust or other suitable holding
entity established for the benefit of the Members in order to permit the assets
to be sold without undue loss and the proceeds thereof distributed to the
Members at a future date. The legal form of the holding entity, the identity of
the trustee or other fiduciary and the terms of its governing instrument shall
be determined by the Majority Interest.
Section 10.02. TERMINATION. The Company shall terminate when all the assets
of the Company, after payment of or due provision for all debts, liabilities and
obligations of the Company, shall have been distributed to the Members in the
manner provided for in this Article and the Certificate shall have been
cancelled in the manner required by the Act.
Section 10.03. CLAIMS OF THE MEMBERS. The Members and former Members shall
look solely to the Company's assets for the return of their Capital
Contributions, and if the assets of the Company remaining after payment of or
due provision for all debts, liabilities and obligations of the Company are
insufficient to return such Capital Contributions, the Members and former
Members shall not have recourse against the Company or any other Member.
13
ARTICLE ELEVEN
RESTRICTION ON TRANSFERS OF INTERESTS
Section 11.01. RESTRICTION ON TRANSFERS OF INTERESTS. No Member may assign,
pledge or otherwise transfer its interest in the Company in whole or part. Any
attempt by a Member to transfer its interest shall be null and void.
ARTICLE TWELVE
INVESTMENT REPRESENTATION
Section 12.01. INVESTMENT REPRESENTATION. The Members represent to each
other and to the Company that they are acquiring their respective interests in
the Company for their own accounts, and without a view to selling or pledging
them.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
Section 13.01. LIMITATIONS ON AMENDMENT. The Company shall not, without the
prior written consent of each nationally recognized rating agency that has rated
any securities issued and outstanding pursuant to any pooling and servicing
agreement, indenture, trust agreement or other similar agreement entered into by
the Company or any Affiliate of the Company, amend, alter, change or repeal
Article Three, Section 5.08, Article Six or this Section. Subject to the
foregoing limitation, the Company reserves the right to amend, alter, change or
repeal any provision contained in this Agreement in the manner now or hereafter
prescribed by statute or applicable law, and all rights conferred upon Members
herein are granted subject to this reservation.
Section 13.02. BOOKS OF ACCOUNT; REPORTS.
(a) The Company shall keep true and complete books of account and records
of all Company transactions. The books of account and records shall be kept at
the principal office of the Company. The Company shall maintain at such office
(i) a list of names and addresses of all Members; (ii) a copy of the
Certificate; (iii) copies of the Company's federal, state and local income tax
returns and reports for the three most recent years; (iv) copies of this
Agreement; and (v) copies of the financial statements of the Company for the
three most recent years. Such Company records shall be available to any Member
or its designated representative during ordinary business hours at the
reasonable request and expense of such Member.
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(b) The Company will use its best efforts to furnish, or cause to be
furnished, to Members the following items on the date indicated: (i) annually by
June 30, (A) an annual report consisting of an income statement for the prior
year and a balance sheet as of the year ended, and (B) Member information tax
returns (Schedule K-1), and (ii) as required, such other information concerning
the Company and the property of the Company as may be appropriate in order to
make full and fair disclosure to the Members of the current financial and
operating conditions of the Company.
Section 13.03. BANK ACCOUNTS AND INVESTMENT OF FUNDS. All funds of the
Company shall be deposited in its name in such checking accounts, savings
accounts, time deposits or certificates of deposit or shall be invested in such
other manner, as shall be designated by the Majority Interest from time to time.
Withdrawals shall be made upon such signature or signatures as the Majority
Interest may designate.
Section 13.04. ACCOUNTING DECISIONS. All decisions as to accounting
matters, except as specifically provided to the contrary herein, shall be made
by the Majority Interest in accordance with generally accepted accounting
principles consistently applied. Such decisions shall be acceptable to the
accountants retained by the Company, and the Majority Interest may rely upon the
advice of the accountants as to whether such decisions are in accordance with
generally accepted accounting principles.
Section 13.05. FEDERAL INCOME TAX ELECTIONS. The Company shall, to the
extent permitted by applicable law and regulations and upon obtaining any
necessary approval of the Commissioner of Internal Revenue, elect to use such
methods of depreciation, and make all other federal income tax elections in such
manner, as the Majority Interest determines to be most favorable to the Members.
The Majority Interest may rely upon the advice of the accountants retained by
the Company as to the availability and effect of all such elections. The
Majority Interest shall elect to treat the Company as a single member entity
formed as an agent of AHFC and not as a separate corporation or partnership for
federal and applicable state income tax purposes
Section 13.06. ENTIRE AGREEMENT. This Agreement constitutes the entire
Agreement between the parties and may be modified only as provided herein. No
representations or oral or implied agreements have been made by any party hereto
or its agent, and no party to this Agreement has relied upon any representation
or agreement not set forth herein. This Agreement supersedes any and all other
agreements, either oral or written, among the Company and its Members.
Section 13.07. NOTICES. Except as provided below, all communications and
notices provided for hereunder shall be in writing (including telecopy or
electronic facsimile transmission or similar writing) and shall be given to the
other party at its address or telecopy numbers set forth on Exhibit A hereto, or
at such other address or telecopy number as such party may hereafter specify for
the purposes of notice to the other party hereto. Each such notice or other
communication shall be effective (i) if given by telecopy, upon receipt thereof,
(ii) if given by mail, three business days after the time such communication is
deposited in the mails with
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first-class postage prepaid or (iii) if given by any other means, when received
at the address specified in this Section.
Section 13.08. CONSENT OF MEMBERS. Various provisions of this Agreement
require or permit the consent, agreement, approval or disapproval, written or
otherwise, of the Members or some specified proportion thereof. In any such
case, the Company may give all Members written notice that any Member who does
not indicate its disapproval by written notice to the Company within a specified
period of time (not less than 30 days after mailing of the notice) shall be
deemed to have given its consent or approval to the action or event or to have
made the agreement referred to in the notice. In such event, any Member who does
not indicate its disapproval by written notice to the Company within the time
specified shall be deemed to have given its written consent, approval,
disapproval or agreement.
Section 13.09. FURTHER EXECUTION. Upon request of the Company from time to
time, the Members shall execute and swear to or acknowledge any amended
Certificate and any other writing which may be required by any rule or law or
which may be appropriate to the effecting of any action by or on behalf of the
Company or the Members which has been taken in accordance with the provisions of
this Agreement.
Section 13.10. BINDING EFFECT. This Agreement shall be binding upon and
shall inure to the benefit of the parties, their successors and permitted
assigns. None of the provisions of this Agreement shall be construed as for the
benefit of or as enforceable by any creditor of the Company or the Members or
any other person not a party to this Agreement.
Section 13.11. SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of any security or
the rights of the holders thereof.
Section 13.12. CAPTIONS. All 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 13.13. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one instrument. The Company shall have custody of the counterparts
executed in the aggregate by all Members.
Section 13.14. DELAWARE LAW TO CONTROL. This Agreement shall be governed
by, and all questions with respect to the construction of this Agreement and the
rights and liabilities of the
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parties hereto shall be determined in accordance with, the internal laws of the
State of Delaware, without regard to any otherwise applicable principles of
conflicts of laws.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.
AMERICAN HONDA FINANCE
CORPORATION, as Member
By: /s/ X. Xxxxxx
-------------------------------------
Name: X. Xxxxxx
Title: President
HONDA TITLING INC., as Independent Member
By: /s/ X. Xxxxxx
-------------------------------------
Name: X. Xxxxxx
Title: President
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EXHIBIT A
Capital Membership
Member's Name and Address Contributions Percentages
------------------------- ------------- -----------
American Honda Finance Corporation
000 Xxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000 $ 0 100%
Honda Titling Inc.
000 Xxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000 -0- 0%
--- ---
Total $ 0 100%
--- ---
--- ---
A-1
