EXHIBIT 2(a)(2)
LIMITED LIABILITY COMPANY AGREEMENT
OF
X.X. XXXXXX MULTI-STRATEGY FUND, L.L.C.
This Limited Liability Company Agreement (this "Agreement") of
X.X. Xxxxxx Multi-Strategy Fund, L.L.C., dated and effective as of April 6,
2004, is entered into by Xxxx Xxxxxxx as the sole member (the "Member").
The Member, by execution of this Agreement, hereby forms a
limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act (6 Del.C. Sections 18-101, et seq.), as amended
from time to time (the "Act"), and hereby agrees as follows:
1. NAME. The name of the limited liability company formed
hereby is X.X. Xxxxxx Multi-Strategy Fund, L.L.C. (the "Company").
2. CERTIFICATES. The designation of Xxxxxx X. Xxxx as an
"authorized person" within the meaning of the Act, and the execution, delivery
and filing of the Certificate of Formation of the Company by Xxxxxx X. Xxxx with
the Secretary of State of the State of Delaware is hereby ratified. Upon the
filing of the Certificate of Formation with the Secretary of State of the State
of Delaware, her powers as an "authorized person" ceased, and thereupon the
Member and Xxxx X. Xxxxx each became a designated "authorized person" and each
shall continue as a designated "authorized person" within the meaning of the
Act. The Member and Xxxx X. Xxxxx are each hereby authorized severally to
execute, deliver and file any certificates (and any amendments and/or
restatements thereof) (i) to be filed in the office of the Secretary of State of
the State of Delaware, or (ii) necessary for the Company to qualify to do
business in any jurisdiction in which the Company may wish to conduct business.
3. PURPOSES. The Company is formed for the object and purpose
of, and the nature of the business to be conducted and promoted by the Company
is, engaging in any lawful act or activity for which limited liability companies
may be formed under the Act.
4. POWERS. In furtherance of its purposes, but subject to all
of the provisions of this Agreement, the Company shall have the power and is
hereby authorized to:
(a) acquire by purchase, lease, contribution of
property or otherwise own, hold, sell, convey, transfer or dispose of any real
or personal property that may be necessary, convenient or incidental to the
accomplishment of the purposes of the Company;
(b) act as a trustee, executor, nominee, bailee,
director, officer, agent or in some other fiduciary capacity for any person or
entity and to exercise all of the powers, duties, rights and responsibilities
associated therewith;
(c) take any and all actions necessary, convenient or
appropriate as trustee, executor, nominee, bailee, director, officer, agent or
other fiduciary, including the granting or approval of waivers, consents or
amendments of rights or powers relating thereto and the execution of appropriate
documents to evidence such waivers, consents or amendments;
(d) operate, purchase, maintain, finance, improve,
own, sell, convey, assign, mortgage, lease or demolish or otherwise dispose of
any real or personal property that may be necessary, convenient or incidental to
the accomplishment of the purposes of the Company;
(e) borrow money and issue evidences of indebtedness
in furtherance of any or all of the purposes of the Company, and secure the same
by mortgage, pledge or other lien on the assets of the Company;
(f) invest any funds of the Company pending
distribution or payment of the same pursuant to the provisions of this
Agreement;
(g) prepay, in whole or in part, refinance, recast,
increase, modify or extend any indebtedness of the Company and, in connection
therewith, execute any extensions, renewals or modifications of any mortgage or
security agreement securing such indebtedness;
(h) enter into, perform and carry out contracts of
any kind, including, without limitation, contracts with any person or entity
affiliated with the Member, necessary to, in connection with, convenient to, or
incidental to the accomplishment of the purposes of the Company;
(i) employ or otherwise engage employees, managers,
contractors, advisors, attorneys and consultants and pay reasonable compensation
for such services;
(j) enter into partnerships, limited liability
companies, trusts, associations, corporations or other ventures with other
persons or entities in furtherance of the purposes of the Company; and
(k) do such other things and engage in such other
activities related to the foregoing as may be necessary, convenient or
incidental to the conduct of the business of the Company, and have and exercise
all of the powers and rights conferred upon limited liability companies formed
pursuant to the Act.
5. PRINCIPAL BUSINESS OFFICE. The principal business office of
the Company shall be located at such location as may hereafter be determined by
the Member.
6. REGISTERED OFFICE. The address of the registered office of
the Company in the State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000.
7. REGISTERED AGENT. The name and address of the registered
agent of the Company for service of process on the Company in the State of
Delaware are The Corporation Trust
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Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000.
8. MEMBERS. The name and the mailing address of the Member are
as follows:
Name Address
Xxxx Xxxxxxx X.X. Xxxxxx Alternative Asset Management, Inc.
000 Xxxxx Xxxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
9. LIMITED LIABILITY. Except as otherwise required by the Act,
the debts, obligations and liabilities of the Company, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and the Member shall not be obligated personally for
any such debt, obligation or liability of the Company solely by reason of being
a member of the Company.
10. CAPITAL CONTRIBUTIONS. The Member is admitted as a member
of the Company upon its execution and delivery of this Agreement. The Member has
contributed no cash or other property to the Company.
11. ADDITIONAL CONTRIBUTIONS. The Member is not required to
make any additional capital contribution to the Company. However, the Member may
at any time make additional capital contributions to the Company.
12. ALLOCATION OF PROFITS AND LOSSES. The Company's profits
and losses shall be allocated solely to the Member.
13. DISTRIBUTIONS. Distributions shall be made to the Member
at the times and in the aggregate amounts determined by the Member.
Notwithstanding any provision to the contrary contained in this Agreement, the
Company shall not be required to make a distribution to the Member on account of
its interest in the Company if such distribution would violate Section 18-607 of
the Act or other applicable law.
14. MANAGEMENT.
(a) In accordance with Section 18-402 of the Act, management
of the Company shall be vested in the Member. The Member shall have the power to
do any and all acts necessary, convenient or incidental to or for the
furtherance of the purposes described herein, including all powers, statutory or
otherwise, possessed by members of a limited liability company under the laws of
the State of Delaware. The Member has the authority to bind the Company and is
authorized to execute and deliver any document on behalf of the Company without
any vote or consent of any other person or entity.
(b) Notwithstanding any other provision of this Agreement, the
Member, Xxxx X. Xxxxx, and any Officer, as designated in writing by the Member
or Xxxx X. Xxxxx, are each hereby
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authorized, as an "authorized person" or "authorized signatory," (i) to file
with the Securities and Exchange Commission and execute, in each case on behalf
of the Company, a Registration Statement on Form N-2 or other appropriate form
(the "1940 Act Registration Statement"), including the related Form N-8A and any
pre-effective or post-effective amendments to the 1940 Act Registration
Statement, relating to registration under the Investment Company Act of 1940, as
amended; and (ii) to file and execute on behalf of the Company all applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and any other papers and documents that the Member may deem
necessary or incidental to the foregoing. The foregoing authorization shall not
be deemed a restriction on the powers of the Member or any Officer to enter into
other agreements on behalf of the Company.
15. OFFICERS. The Member may, from time to time as it deems
advisable, select natural persons who are employees or agents of the Company and
designate them as officers of the Company (the "Officers") and assign titles
(including, without limitation, President, Vice President, Secretary, and
Treasurer) to any such person. Unless the Member decides otherwise, if the title
is one commonly used for officers of a business corporation formed under the
Delaware General Corporation Law, the assignment of such title shall constitute
the delegation to such person of the authorities and duties that are normally
associated with that office. Any delegation pursuant to this Section 15 may be
revoked at any time by the Member. An Officer may be removed with or without
cause by the Member.
16. OTHER BUSINESS. Notwithstanding any duty otherwise
existing at law or in equity, the Member may engage in or possess an interest in
other business ventures of every kind and description, independently or with
others, and the Company shall not have any rights in or to such independent
ventures or the income or profits therefrom by virtue of this Agreement.
17. EXCULPATION AND INDEMNIFICATION. No Member, Officer,
"authorized person" or "authorized signatory", as defined under this Agreement
(each, an "Indemnified Party"), shall be liable to the Company or any person or
entity bound by this Agreement for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified Party 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 Indemnified Party by this
Agreement, except that an Indemnified Party shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Party's willful
misconduct. To the full extent permitted by applicable law, an Indemnified Party
shall be entitled to indemnification from the Company for any loss, damage or
claim incurred by such Indemnified Party by reason of any act or omission
performed or omitted by such Indemnified Party 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 Indemnified Party by this Agreement, except that no
Indemnified Party shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Party by reason of willful
misconduct with respect to such acts or omissions; provided, however, that any
indemnity under this Section 17 shall be provided out of and to the extent of
Company assets only, and the Member shall not have personal liability on account
thereof.
18. ASSIGNMENTS. The Member may at any time assign in whole or
in part its limited liability company interest in the Company. The transferee
shall be admitted to the Company
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as a member upon its execution of an instrument signifying its agreement to be
bound by the terms and conditions of this Agreement. If the Member transfers all
of its interest in the Company pursuant to this Section 18, such admission shall
be deemed effective immediately prior to the transfer, and, immediately
following such admission, the transferor Member shall cease to be a member of
the Company.
19. RESIGNATION. The Member may at any time resign from the
Company. If the Member resigns pursuant to this Section 19, an additional member
shall be admitted to the Company, subject to Section 20 hereof, upon its
execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement. Such admission shall be deemed effective
immediately prior to the resignation, and, immediately following such admission,
the resigning Member shall cease to be a member of the Company.
20. ADMISSION OF ADDITIONAL MEMBERS. One or more additional
members of the Company may be admitted to the Company with the written consent
of the Member.
21. DISSOLUTION.
(a) The Company shall dissolve and its affairs shall
be wound up upon the first to occur of the following: (i) the written consent of
the Member, (ii) at any time there are no members of the Company unless the
Company is continued in accordance with the Act, or (iii) the entry of a decree
of judicial dissolution under Section 18-802 of the Act.
(b) The bankruptcy (as defined at Sections 18-101 and
18-304 of the Act) of the Member shall not cause the 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.
(c) In the event of dissolution, the Company shall
conduct only such activities as are necessary to wind up its affairs (including
the sale of the assets of the Company in an orderly manner), and the assets of
the Company shall be applied in the manner, and in the order of priority, set
forth in Section 18-804 of the Act.
22. SEPARABILITY OF PROVISIONS. Each provision of this
Agreement shall be considered separable, and if for any reason any provision or
provisions herein are determined to be invalid, unenforceable or illegal under
any existing or future law, such invalidity, unenforceability or illegality
shall not impair the operation of or affect those portions of this Agreement
that are valid, enforceable and legal.
23. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the Member with respect to the subject matter hereof.
24. GOVERNING LAW. This Agreement is governed by, and shall be
construed under, the laws of the State of Delaware (without regard to conflict
of laws principles), all rights and remedies being governed by said laws.
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25. AMENDMENTS. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by the Member.
26. SOLE BENEFIT OF MEMBER. Except as expressly provided in
Section 17, the provisions of this Agreement (including Section 11) are intended
solely to benefit the Member and, to the fullest extent permitted by applicable
law, shall not be construed as conferring any benefit upon any creditor of the
Company (and no such creditor shall be a third-party beneficiary of this
Agreement), and no Member shall have any duty or obligation to any creditor of
the Company to make any contributions or payments to the Company.
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IN WITNESS WHEREOF, the undersigned, intending to be legally
bound hereby, has duly executed this Agreement as of the date first written
above.
MEMBER:
/s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Sole Member
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