EXHIBIT 3.2
CENDANT MORTGAGE CAPITAL LLC
LIMITED LIABILITY COMPANY AGREEMENT
This LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of
CENDANT MORTGAGE CAPITAL LLC, a Delaware limited liability company (the
"Company") is made and entered into as of the 31st day of August, 2001, by and
between CENDANT MORTGAGE CORPORATION, a NEW JERSEY corporation (the "Member")
and the Company.
R E C I T A L S
A. Reference is made to the Certificate of Formation for the
Company filed August 31, 2001 in the office of the Secretary of State for the
State of Delaware (as the same may hereafter be amended or restated from time to
time by amendments thereto filed as aforesaid, the "Certificate").
B. In entering into this Agreement, the parties hereto wish to
make a full statement of their agreement in respect to the Company in order
that, except to the extent the Agreement expressly incorporates by reference
provisions of the Act, the Code or the Treasury Regulations (as each is defined
below) or is expressly prohibited or ineffective under the Act, this Agreement
shall govern, even when inconsistent with, or different from, the provisions of
the Act or any other law or rule.
ARTICLE I
DEFINITIONS
Unless otherwise expressly provided herein, the following
terms used in this Limited Liability Company Agreement shall have the following
meanings:
(a) "Act" shall mean the Delaware Limited Liability Company
Act at Del. Code Xxx. Tit. 6,ss.ss.18-101 et seq., as it may be amended from
time to time.
(b) "Affiliate" shall mean any Person which directly or
indirectly through one or more intermediaries controls, is controlled by or is
under common control with the Member. For purposes hereof, the terms "control",
"controlled", or "controlling" shall include, without limitation, (i) the
ownership, control or power to vote ten percent (10%) or more of (x) the equity
ownership interests in the Member or (y) the limited liability company interest
in the Company or beneficial interests of the Member, directly or indirectly, or
acting through one or more Persons, (ii) the control of the election of more
than one manager of the Member, or (iii) the power to exercise, directly or
indirectly, control over the management or policies of the Member.
(c) "Bankruptcy" means, with respect to any Person, if such
Person (i) makes an assignment for the benefit of creditors, (ii) files a
voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or
has entered against it an order for relief, in any bankruptcy or insolvency
proceedings, (iv) files a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, (v) files an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against it in any proceeding of this nature, (vi) seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator of the Person
or of all or any substantial part of its properties, or (vii) if 120 days after
the commencement of any proceeding against the Person seeking reorganization,
arrangement, composition, readjustment, liquidation or similar relief under any
statute, law or regulation, if the proceeding has not been dismissed, or if
within 90 days after the appointment without such Person's consent or
acquiescence of a trustee, receiver or liquidator of such Person or of all or
any substantial part of its properties, the appointment is not vacated or
stayed, or within 90 days after the expiration of any such stay, the appointment
is not vacated. The foregoing definition of "Bankruptcy" is intended to replace
and shall supersede and replace the definition of "Bankruptcy" set forth in
Sections 18-101(1) and 18-304 of the Act.
(d) "Capital Cash Flow" shall mean, for purposes of this
Agreement and for a given period of time, the net proceeds received by the
Company from Company borrowings and the net proceeds of the sale of the Company
assets, in each instance less reasonable reserves required in the sole
discretion of the Managing Member.
(e) "Capital Contribution" shall mean any contribution to the
capital of the Company by the Member in cash, other property or services
rendered, or a promissory note or other obligation to contribute cash or
property or to perform services.
(f) "Certificate" shall have the meaning as described in
Recital A hereto.
(g) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, or any corresponding provisions of succeeding law.
(h) "Company" shall mean Cendant Mortgage Capital LLC, a
Delaware limited liability company.
(i) "Entity" shall mean any general partnership, limited
partnership, limited liability company, corporation, joint venture, trust,
business trust, cooperative or association or any foreign trust or foreign
business organization.
(j) "Limited Liability Company Interest" shall have the
meaning given it in Section 2.6, which Limited Liability Company Interest
reflects the interest of the Member in the Company.
(k) "Liquidating Agent" shall have the meaning given it in
Section 8.2(a).
(l) "Member" shall mean Cendant Mortgage Corporation, a New
Jersey Corporation, and its successors.
(m) "Operating Cash Flow" shall mean, for purposes of this
Agreement and for a given period of time, all cash received by the Company from
any source (but excluding net
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proceeds from borrowings of the Company and the net proceeds from the sale or
other disposition of the Company's assets) less cash expended for the debts and
expenses of the Company, principal and interest payments on any indebtedness of
the Company, capital expenditures and, in each instance, reasonable reserves
required in the sole determination of the Member.
(n) "Person" shall mean any individual or Entity, and the
heirs, executors, administrators, legal representatives, successors, and assigns
of such "Person" where the context so permits.
(o) "Property" shall mean that certain property which is named
in the attached Exhibit A and in which the Company owns a direct or indirect
equity interest.
(p) "Transaction Documents" shall have the meaning given it in
Section 3.1 hereafter.
(q) "Treasury Regulations" shall include proposed, temporary
and final regulations promulgated under the Code in effect as of the date of
filing the Certificate and the corresponding sections of any regulations
subsequently issued that amend or supersede such regulations.
ARTICLE II
FORMATION OF COMPANY
2.1 FORMATION. The Company is to be formed effective as of August 31,
2001, the date of filing of the Certificate in the office of the Secretary of
State for the State of Delaware in accordance with and pursuant to the Act. The
parties hereto do hereby confirm their intent and agreement that the Company
shall be governed by the terms of this Agreement as more particularly described
in Recital Paragraph B hereto, the terms and provisions of which are herein
incorporated.
2.2 NAME. The name of the Company is Cendant Mortgage Capital LLC,
provided that the Member may elect to transact business in other names in those
jurisdictions where it deems it necessary for purposes of complying with the
requirements of local law.
2.3 PRINCIPAL PLACE OF BUSINESS. The principal place of business of the
Company shall be c/o Cendant Mortgage Corporation, 0000 Xxxxxxxxxx Xxxx, Xx.
Xxxxxx, Xxx Xxxxxx 00000. The Company may relocate its principal place of
business to any other place or places as the Member may from time to time deem
advisable. Additional offices may be maintained and acts done at any other place
appropriate for accomplishing the purposes of the Company, all as determined by
the Member.
2.4 REGISTERED OFFICE AND REGISTERED AGENT. The Company's initial
registered office shall be at the office of its registered agent at The
Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx in the
City of Wilmington, County of New Castle, and the name of its initial registered
agent at such address shall be The Corporation Trust Company. The registered
office and registered agent may be changed from time to time by filing the
address of the new
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registered office and/or the name of the new registered agent with the Delaware
Secretary of State pursuant to the Act.
2.5 TERM. The term of the Company shall commence on the date the
Certificate is filed with the Delaware Secretary of State in accordance with the
provisions of the Act and shall continue until the Company is dissolved pursuant
to Article VIII. The existence of the Company as a separate legal entity shall
be perpetual and shall continue until cancellation of the Certificate as
provided in the Act.
2.6 LIMITED LIABILITY COMPANY INTEREST. The interest of the Member will
be designated as the "Limited Liability Company Interest" and may be expressed
as a 100% percentage interest. The Limited Liability Company Interest is
personal property and the Member has no interest in specific property of the
Company.
2.7 CERTIFICATE. Xxxxxxxx Xxxxx, is hereby designated as an "authorized
person" within the meaning of the Act, and has executed, delivered and filed the
Certificate with the Secretary of State of the State of Delaware. Upon the
filing of the Certificate with the Secretary of State of the State of Delaware,
his powers as an "authorized person" ceased, and the Member thereupon became the
designated "authorized person" and shall continue as the designated "authorized
person" within the meaning of the Act. The Member shall execute, deliver and
file any other certificates (and any amendments and/or restatements thereof)
necessary for the Company to qualify to do business in any jurisdiction in which
the Company may wish to conduct business.
ARTICLE III
BUSINESS OF COMPANY
3.1 PERMITTED ACTIVITIES. Subject to the limitations set forth herein,
the purpose for which the Company is formed is to engage solely in the
following activities:
(a) Acquiring as purchaser and/or by contribution to the capital of
the Company or otherwise, owning, holding, transferring,
assigning, selling, contributing to capital, pledging and
otherwise dealing with (i) mortgage notes and similar such
instruments, related real property, mortgages, deeds of trust and
other related agreements, documents, books and records, including
loans secured by cooperative apartments and by timeshare
interests, loans secured by securities accounts or by third party
guaranties as additional collateral, home equity loans and lines
of credit, and other secured and unsecured consumer loans and
receivables, (ii) related rights to payment, whether constituting
cash, account, chattel paper, instrument, general intangible or
otherwise, and any other related assets, property and rights,
including without limitation security interests, (iii) related
collection, deposit, custodial, trust and other accounts, lock
boxes and post office boxes and any amounts and other items from
time to time on deposit therein, (iv) real property and any
improvements thereon and personal property acquired by
foreclosure, deed-in-lieu thereof or otherwise in respect of any
of the foregoing, (v) certificates, notes, bonds or other
securities,
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instruments and documents evidencing ownership interests in or
obligations secured by all or any of the foregoing and (vi)
proceeds and other payments and distributions of any kind of, on
or in respect of any of the foregoing;
(b) Authorizing, issuing, selling and delivering, directly or
indirectly through corporations, partnerships, limited liability
companies, business trusts, common law trusts or other special
purpose entities established solely for such purpose,
certificates, notes, bonds and other securities, instruments and
documents evidencing ownership interests in or obligations
secured by all or any portion of the assets described in
foregoing paragraph (a), and in connection therewith entering
into servicing, insurance, credit enhancement, reimbursement,
swap agreements and other agreements related thereto; and
(c) Taking any action necessary or reasonable to enable the Company
to engage in any lawful act or activity and to exercise any
powers permitted under the laws of the State of Delaware that are
related or incidental to and necessary, convenient or advisable
to accomplish any of the foregoing.
3.2 RESTRICTIONS ON ACTIVITIES. Notwithstanding any other provision
contained in this Agreement:
(1) The Company will maintain financial statements, bank
accounts, records, payroll and books of account separate and apart from the
Member, any Affiliate or other Person;
(2) Funds and other assets of the Company shall be separately
identified and segregated. All of the Company's assets shall at all times be
held by or on behalf of the Company, and, if held by another Person, shall at
all times be kept identifiable (in accordance with customary usages) as assets
owned by the Company. In no event shall any of the Company's assets be held on
its behalf by any Affiliate;
(3) The Company will pay from its own funds and assets all
obligations and indebtedness incurred by it and shall not pay the general
overhead and expenses of the Member of the Company;
(4) Each of the Company and the Member of the Company will
conduct its business solely in its own name so as not to mislead others as to
the identity of the Member of the Company or the identity of the Company;
(5) The Company shall not guarantee the obligations or
liabilities of any Person including the Member or Affiliate of the Company nor
shall the Company hold out its credit as being available to satisfy the
obligations or liabilities of any Person including the Member or Affiliate of
the Company;
(6) All business transactions entered into by the Company with
an Affiliate will be on terms and conditions that are not more or less favorable
to the Company than terms and
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conditions available at the time to the Company for comparable transactions with
Persons who are not Affiliates of the Company;
(7) The Company will at all times hold itself out to the
public (including any Affiliate's creditors) as a separate and distinct entity
operating under the Company's own name and the Company shall act solely in its
own name and through its own authorized representatives;
(8) The Company will have a sufficient number of employees, or
will contract for the use of a sufficient number of employees, in light of its
stated business purpose, and will compensate all employees, in light of its
stated business purpose, and will compensate all employees, consultants and
agents directly, from the Company's bank accounts, for services provided to the
Company by such employees, consultants and agents, except to the extent that any
employee, consultant or agent of the Company is also an employee, consultant or
agent of any Affiliate(s) and the compensation of such employee, consultant or
agent is allocated between the Company and such Affiliate(s) on a basis which
reflects the services rendered to the Company and such Affiliate(s), and
otherwise will pay from its own funds and assets all obligations and
indebtedness incurred by it;
(9) The Company shall not pay the general overhead and
expenses of the Member or Affiliates of the Company and shall not permit the
Member or Affiliates to pay any of the Company's overhead or expenses; provided,
that overhead expenses (including, without limitation, telephone and other
utility charges) may be shared between the Company and the Member or such
Affiliate so long as such items are allocated between the Company and the Member
or such Affiliate on the basis of actual use to the extent practicable and, to
the extent such allocation is not practicable, on a basis reasonably related to
actual use;
(10) The Company shall have separate stationery, invoices and
checks in its own name;
(11) The Company shall observe all formalities as a distinct
entity, and ensure that all appropriate actions are duly authorized by its
Member;
(12) The Company shall correct any misunderstanding known to
the Company regarding the separate identity of the Company;
(13) The Company shall maintain adequate capital in light of
its contemplated business operations;
(14) The Company shall not incur any indebtedness or
liabilities except for (i) liabilities incurred in the ordinary course of the
Company's business; (ii) liabilities permitted to be incurred by any Transaction
Documents; and (iii) unsecured loans from Affiliates of the Company in order to
accommodate the Company's normal cash management procedures; and
(15) So long as the obligations of the Company under any
Transaction Documents are outstanding,
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(a) the Company shall not (i) consolidate, merge or
acquire all or substantially all of the assets of a Person
(except for consolidations or mergers where the Company is the
surviving Person and all the other restrictions set forth in
this Section 3.2 continue to be met) or (ii) sell or dispose
of all or substantially all of its assets, except in either
case to the extent permitted by any Transaction Documents;
(b) the Company shall not engage in any business
other than that set forth in Section 3.1 of the Agreement; and
(c) the Company shall not acquire any property or own
assets other than in furtherance of the Company's purpose set
forth in Section 3.1.
Failure of the Company, or the Member on behalf of the Company, to comply with
any of the foregoing covenants or any other covenants contained in this
Agreement, shall not affect the status of the Company as a separate legal entity
or the limited liability of the Member.
ARTICLE IV
RIGHTS AND DUTIES OF BOARD OF MANAGERS
4.1 MANAGEMENT. The Board of Managers is hereby appointed the manager
of the Company. The business and affairs of the Company shall be managed under
the exclusive direction and control of the Board of Managers, and all powers of
the Company shall be exercised by or under the authority of the Board of
Managers. The Board of Managers shall consist of three Persons appointed by the
Member; provided, however, that at all times at least one Person appointed to
the Board of Managers shall be an "Independent Manager." The Board of Managers
shall have no authority or power under this Agreement to take any action that it
knows violates laws or regulations applicable to the Company or the Property or
violates any Transaction Documents. The unanimous consent of the Board of
Managers (including the consent of the Independent Manager) shall be required
with respect to:
(a) the filing by the Company, or the Member or any other
Person on behalf of the Company, of a voluntary petition in bankruptcy or
otherwise seeking or consenting to relief under Title 11 of the United States
Code or any other successor statute thereto or under any similar applicable
state law;
(b) seeking or consenting to the appointment of any receiver,
liquidator, assignee, trustee, sequestrator, custodian or other similar official
for the Company or a substantial part of its property;
(c) the adoption of a resolution by the Member for the
voluntary dissolution or liquidation of the Company; or
(d) the admission in writing by the Company of its inability
to pay its debts generally as they become due or the taking of limited liability
company action in furtherance thereof.
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For purposes of this Agreement, "Independent Manager" shall mean an
individual who is not, at the time of initial appointment, nor has been, a
manager of any Affiliate of the Member (except that an individual who serves in
similar capacities for other "special purpose corporations" formed by the Member
or its Affiliates is not thereby disqualified from being an Independent Manager)
or is an officer of, employed by, a creditor, supplier or contractor of, or
holding any beneficial or economic interest in the Member or any Affiliate of
the Member, or is a family member of any of the foregoing.
The Board of Managers may, from time to time as it deems advisable,
appoint Officers of the Company and assign in writing titles (including, without
limitation, president, vice president, secretary, and treasurer) to any such
person. Unless the Board of Managers decides otherwise, if the title is one
commonly used for officers of a business corporation formed under the Delaware
General Corporation Law, the assignment of such title shall constitute the
delegation to such person of the authorities and duties that are normally
associated with that office. Any delegation pursuant to this Section 4.1 may be
revoked at any time by the Board of Mangers.
The Member is not an agent of the Company solely by virtue of being the
Member, and, except as provided herein, the Member has authority to act for the
Company solely by virtue of being the Member.
4.2 DUTY OF CARE. The duty of care in the discharge of a Manager's
duties to the Company is limited to refraining from engaging in gross negligence
or intentional misconduct. In discharging its duties, the Board of Managers
shall be fully protected in relying in good faith upon the records required to
be maintained under Article IX and upon such information, opinions, reports, or
statements by any of its agents, or by any other Person, as to matters the Board
of Managers reasonably believes are within such other Person's professional or
expert competence and who have been selected with reasonable care by or on
behalf of the Company, including information, opinions, reports, or statements
as to the value and amount of the assets, liabilities, profits, or losses of the
Company or any other facts pertinent to the existence and amount of assets from
which distributions to the Member might properly be paid.
4.3 NO EXCLUSIVE DUTY TO COMPANY. The Member may have other business
interests and may engage in other activities in addition to those relating to
the Company. Neither the Company nor the Member shall have any right, by virtue
of this Agreement, to share or participate in such other investments or
activities of the other or to the income or proceeds derived therefrom,
notwithstanding that such investments or activities may be competitive with the
business of the Company. The Member shall not incur any liability to the Company
as a result of engaging in any other business or venture. Subject to the
limitations set forth in Section 3.2 of this Agreement, the Board of Managers
may, in its sole discretion, on behalf of the Company, purchase, sell or lease
real or personal property from or to the Member or pay fees or compensation to
the Member for the efforts or commitments in connection with the business of the
Company or otherwise deal with the Member or any Person in which the Member is
directly or indirectly interested, and neither the Company nor the Board of
Managers shall have any rights in or to any income or profits received by the
Member in a transaction with the Company.
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4.4 INDEMNITY OF THE BOARD OF MANAGERS AND OF OTHERS. To the fullest
extent permitted by law, the Managers, or any Person who is or shall have been
serving at the request of the Company as a manager, officer, employee or agent
of another Entity, shall be indemnified and held harmless by the Company from
and against any and all losses, liabilities or claims attributable to such
status or for acts or failures to act in connection therewith, provided that the
scope of this indemnification and agreement to hold harmless shall not extend to
losses arising from the gross negligence or intentional misconduct of the
indemnitee and any indemnity under this Section 4.4 by the Company shall be
provided out of and to the extent of Company assets only, and no Manager shall
have personal liability on account thereof. The foregoing right of
indemnification shall not be deemed exclusive of any other rights to which a
Person seeking indemnification may be entitled under any other agreement, vote
of Board of Managers or otherwise. If authorized by the Board of Managers, the
Company may purchase and maintain insurance on behalf of any Person (including
the Board of Managers) to the full extent permitted by the Act.
4.5 RESIGNATION OR WITHDRAWAL. Any Manager of the Company may resign by
giving written notice to the Board of Managers and the Member. The resignation
of a Manager shall take effect upon occurrence of the foregoing or at such later
time as shall be specified in such notice; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective; provided, however, that the resignation of the Independent Manager
shall not be effective until his replacement shall have been effected.
So long as any obligations of the Company under any
Transaction Documents are outstanding, the Member of the Company may not resign
or withdraw as Member or transfer its interest in the Company, unless (i) a
succeeding Member is admitted to the Company which succeeding Member shall not
be an individual and who shall have executed an instrument signifying its
agreement to be bound by the terms and conditions of this Agreement (which
instrument may be a counterpart signature page to this Agreement) and (ii) the
resigning Member shall have obtained from each rating agency rating any then
outstanding securities in such Securitization a confirmation that such
resignation of the Member and admission of the succeeding Member will not result
in a downgrade, withdrawal or qualification of any of the then outstanding
securities issued in such Securitization. If no such Securitization is
outstanding, the Member may not resign unless the requirements of clause (i) of
the preceding sentence are satisfied. Any such admission of a succeeding Member
shall be deemed effective immediately prior to the resignation of the resigning
Member and, immediately following such resignation, the resigning Member shall
cease to be the Member of the Company.
4.6 RIGHT TO RELY ON THE BOARD OF MANAGERS. Any Person dealing with the
Company may rely (without duty of further inquiry) upon a certificate signed by
the Board of Managers as to:
(a) The identity of the Board of Managers;
(b) The existence or nonexistence of any fact or facts which
constitute a condition precedent to acts by the Board of Managers or which are
in any other manner germane to the affairs of the Company;
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(c) The Persons who are authorized to execute and deliver any
instrument or document of the Company; or
(d) Any act or failure to act by the Company or any other
matter whatsoever involving the Company or the Member.
ARTICLE V
RIGHTS AND OBLIGATIONS OF MEMBER
5.1 LIMITATION OF LIABILITY. The Member's liability shall be limited
as set forth in this Agreement, the Act and other applicable law.
5.2 LIABILITY OF THE MEMBER TO THE COMPANY. The Member shall be liable
for the return in whole or in part of its contribution to the Company only to
the extent, if any, provided by the Act.
ARTICLE VI
CONTRIBUTIONS TO THE COMPANY
6.1 MEMBER'S CAPITAL IN THE COMPANY.
(a) The Member shall contribute to the Company as its Capital
Contribution the amount determined by the Member in its sole discretion to be
necessary or convenient for carrying on the business and activities of the
Company. No interest shall be paid or accrue on any Capital Contribution, and
the Member shall not have the right to withdraw or be repaid any Capital
Contribution except as provided in the Agreement. Notwithstanding the foregoing,
the Member shall not be required to make any Capital Contribution.
(b) Anything in this Agreement to the contrary notwithstanding
and except as provided in the Act, the Member shall not have any personal
liability for liabilities or obligations of the Company, except that the Board
of Managers may have liability to the extent of its Capital Contributions made
to the Company as aforesaid, and, the Member shall not be required to make any
further or additional contributions to the capital of the Company or to lend or
advance funds to the Company for any purpose.
(c) The obligation, if any, of the Member to contribute to the
capital of the Company is solely and exclusively for the benefit of the Company
and the Member, and is not intended to confer rights on any third party (under
Section 18-502(b) of the Act or otherwise). Without limiting the generality of
the foregoing, no creditor of the Company shall be deemed a third party
beneficiary of any obligation of the Member to contribute capital or make
advances to the Company.
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6.2 DISTRIBUTIONS OF OPERATING AND CAPITAL CASH FLOW.
(a) Subject to Section 6.2(c) below, distributions of
Operating Cash Flow shall be made at least annually at such time or times as the
Managing Member shall determine. All operating Cash Flow shall be distributed to
the Member.
(b) Subject to Section 6.2(c) below, distributions of Capital
Cash Flow shall be made at such time or times as the Managing Member shall
determine. All Capital Cash Flow shall be distributed to the Member.
(c) In accordance with Section 18-607 of the Act, no
distribution shall be made unless, after the distribution is made, the assets of
the Company are in excess of all liabilities of the Company.
6.3 TAX ITEMS. All income, profit, gain, deduction, loss and credit of
the Company shall be allocated solely to the Member.
6.4 CLASSIFICATION FOR TAX PURPOSES. Notwithstanding anything contained
herein to the contrary, the Member and the Board of Managers recognize and
intend that, for federal income tax purposes, the Member shall constitute the
single owner of the Company and the Company shall constitute an entity with a
single owner, which for federal income tax purposes is disregarded as an entity
separate from the Member in accordance with Section 301.7701-3(b)(1)(ii) of the
Treasury Regulations. The Member and the Board of Managers will not make any
election or take any action which would cause the Company to be classified as an
association, a corporation or a partnership for federal income tax purposes.
ARTICLE VII
TRANSFERABILITY
7.1 The Member shall not sell, assign, pledge or otherwise transfer all
or any part of its interest in the Company and any such assignment, if made,
notwithstanding the provisions of this Agreement (whether voluntary or
involuntary), shall be void. No part of the interest of the Member shall be
subject to the claims of any creditor, any spouse for alimony or support, or to
legal process. Subject to Section 4.5, the Member shall not be permitted to
retire or withdraw from the Company.
ARTICLE VIII
DISSOLUTION AND TERMINATION
8.1 DISSOLUTION. The Company will be dissolved and its affairs
wound up upon the occurrence of any of the following events:
(a) So long as no obligations of the Company under any
Transaction Documents are outstanding, the written consent of the Member;
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(b) when the term of the Company shall expire pursuant to
Section 2.5 hereof;
(c) Upon the death or expulsion of the Member, or the
occurrence of any other event which terminates the membership of the Member,
unless the business of the Company is continued in a manner permitted by this
Agreement or the Act; or
(d) The entry of a decree of judicial dissolution under
Section 18-802 of the Act.
Upon the occurrence of any event that causes the Member to
cease to be the Member of the Company, to the fullest extent permitted by law,
the personal representative of the Member is hereby authorized to, and shall,
within 90 days of the occurrence of the event that terminated the continued
membership of the Member in the Company, agree in writing (i) to continue the
Company and (ii) to the admission of the personal representative or its nominee
or designee, as the case may be, as a substitute member of the Company,
effective as of the occurrence of the event that terminated the continued
membership of the Member in the Company.
Notwithstanding any other provision of this Agreement, the
Bankruptcy or dissolution of the Member shall not cause the Member to cease to
be a member of the Company or otherwise terminate its membership interest and
upon the occurrence of such an event, the business of the Company shall continue
without dissolution.
8.2 PROCEDURES.
(a) Liquidation of Assets. In the event of the dissolution of
the Company, the Board of Managers or such person required by law to wind up the
Company's affairs (the Board of Managers or other person being referred to
herein as the "Liquidating Agent") will commence to wind up the affairs of the
Company and liquidate its assets as promptly as is consistent with obtaining the
fair value thereof. In connection with any such winding up and liquidation, a
financial statement of the Company as of the date of dissolution will be
prepared by the Liquidating Agent.
(b) Authority of Liquidating Agent. In connection with the
winding up and liquidation of the Company, the Liquidating Agent will have all
of the rights and powers with respect to the assets and liabilities of the
Company that an authorized Member or a manager would have pursuant to the Act or
any other applicable law.
(c) Distribution of Assets. Following the satisfaction of, or
reasonable provision for, all debts and liabilities of the Company owed to
creditors and all expenses of liquidation, and subject to the right of the
Liquidating Agent to set up such cash reserves as the Liquidating Agent may deem
reasonably necessary for any contingent, conditional or unmatured liabilities or
obligations of the Company, the proceeds of the liquidation and any other funds
(or other remaining Company assets) of the Company will be distributed in cash
to the Member or its successor.
8.3 TERMINATION OF THE COMPANY. Upon the completion of the winding up of
the Company and the distribution of all assets of the Company and other funds,
the Liquidating Agent will have the authority to take or cause to be taken such
actions as are necessary or reasonable in
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order to file a certificate of cancellation of the Certificate of the Company as
well as any and all other documents required by the Act or any other applicable
law to effectuate the termination of the Company.
8.4 CERTIFICATE OF CANCELLATION. Upon the filing of the certificate of
cancellation, the existence of the Company shall cease. Subject to Section
18-804 of the Act, and prior to the filing of the certificate of cancellation,
the Liquidating Agent shall have authority to distribute any Company property
discovered after dissolution, convey real estate and take such other action as
may be necessary on behalf of and in the name of the Company.
8.5 RETURN OF CONTRIBUTION NONRECOURSE TO THE COMPANY. Except as
provided by law or as expressly provided in this Agreement, upon dissolution,
the Member shall look solely to the assets of the Company for the return of its
Capital Contribution. If the Company property remaining after the payment or
discharge of the debts and liabilities of the Company as provided herein is
insufficient to return the cash contribution of the Member, the Member shall
have no recourse against the Company.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 NOTICES. Any notice, request, demand, consent, approval or other
communication under this Agreement shall be in writing, and shall be deemed duly
given or made at the time and on the date when personally delivered as shown on
a receipt therefor (which shall include delivery by a nationally recognized
overnight delivery service), or when sent by facsimile, or three (3) business
days after being mailed by prepaid registered or certified mail, return receipt
requested, to the address for each party set forth at the conclusion of this
Agreement. The Member, by written notice to the other in the manner herein
provided, may designate an address different from that set forth at the
conclusion of this Agreement.
9.2 BOOKS OF ACCOUNT AND RECORDS. Proper and complete records and books
of account shall be kept or shall be caused to be kept by the Board of Managers
or such representatives as it may appoint in which shall be entered fully and
accurately all transactions and other matters relating to the Company's business
in such detail and completeness as is customary and usual for businesses of the
type engaged in by the Company. The books and records shall at all times be
maintained at the principal executive office of the Company.
9.3 APPLICATION OF DELAWARE LAW. This Agreement, and the application
and interpretation hereof, shall be governed exclusively by its terms and by the
laws of the State of Delaware (without regard to conflict of laws principles
thereof), and specifically the Act.
9.4 WAIVERS. The Member irrevocably waives during the term of the
Company (i) any right that it may have to maintain any action for partition with
respect to the property of the Company and (ii) any right to reject this
Agreement in the event of a bankruptcy of the Member.
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9.5 AMENDMENTS. So long as the obligations of the Company under any
Transaction Documents are outstanding, Section 3.1, 3.2, 4.1, 4.5, 7.1, 8.1 and
this Section 9.5 may not be amended or supplemented. All other provisions of
this Agreement may be amended and this Agreement may be supplemented by the
unanimous written agreement of the Board of Managers, including the Independent
Manager; provided, so long as the obligations of the Company under any
Transaction Documents are outstanding, that such amendment or supplement shall
not adversely affect the Company's existence as a single purpose entity for the
related transaction.
9.6 EXECUTION OF ADDITIONAL INSTRUMENTS. The Member hereby agrees to
execute such other and further statements of interest and holdings,
designations, powers of attorney and other instruments necessary to comply with
any laws, rules or regulations.
9.7 CONSTRUCTION. Whenever the singular number is used in this
Agreement and when required by the context, the same shall include the plural
and vice versa, and the masculine gender shall include the feminine and neuter
genders and vice versa.
9.8 HEADINGS AND PRONOUNS. The headings in this Agreement are inserted
for convenience only and are in no way intended to describe, interpret, define,
or limit the scope, extent or intent of this Agreement or any provision hereof.
All pronouns and any variations thereof shall be deemed to refer to masculine,
feminine, or neuter, singular or plural as the identity of the Person or Persons
may require.
9.9 WAIVERS. The failure of any party to seek redress for violation of
or to insist upon the strict performance of any covenant or condition of this
Agreement shall not prevent a subsequent act, which would have originally
constituted a violation, from having the effect of an original violation.
9.10 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided
by this Agreement are cumulative and the use of any right or remedy by any party
shall not preclude or waive the right to use any or all other remedies. Said
rights and remedies are given in addition to any other rights the parties may
have by law, statute, ordinance or otherwise.
9.11 SEVERABILITY. If any provision of this Agreement or the
application thereof to any Person or circumstance shall be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement and the application
thereof shall not be affected and shall be enforceable to the fullest extent
permitted by law.
9.12 HEIRS, SUCCESSORS AND ASSIGNS. Each and all of the covenants,
terms, provisions and agreements herein contained shall be binding upon and
inure to the benefit of the parties hereto and, to the extent permitted by this
Agreement, their respective heirs, legal representatives, successors and
assigns.
9.13 CREDITORS. None of the provisions of this Agreement shall be for
the benefit of or enforceable by any creditors of the Company or of the
Member.
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9.14 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original but all of which shall constitute once and
the same instrument.
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IN WITNESS WHEREOF, this Limited Liability Company Agreement is
executed and delivered as of the date first written above by the undersigned,
being the Member, which does hereby agree to be bound by the terms and
provisions set forth in this Agreement.
CENDANT MORTGAGE CORPORATION,
as Member
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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CERTIFICATE
Pursuant to Section 18-201(d) of the Act, the undersigned
hereby agree, acknowledge and certify that the foregoing Agreement constitutes
the Limited Liability Company Agreement of Cendant Mortgage Capital LLC adopted
by the Member of the Company in order to be effective as of August 31, 2001.
CENDANT MORTGAGE CORPORATION
"Member"
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Address for Notice Purposes:
0000 Xxxxxxxxxx Xxxx
Xx. Xxxxxx, Xxx Xxxxxx 00000.
CENDANT MORTGAGE CAPITAL LLC
"Company"
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Manager
Address for Notice Purposes:
0000 Xxxxxxxxxx Xxxx
Mail Stop LGL
Xx. Xxxxxx, Xxx Xxxxxx 00000
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