EXHIBIT 3.2
BNP PARIBAS MORTGAGE SECURITIES LLC
LIMITED LIABILITY COMPANY AGREEMENT
This LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of BNP
Paribas Mortgage Securities LLC, a Delaware limited liability company (the
"Company"), is made and entered into as of the 18th day of January, 2006, by and
between BNP Paribas Mortgage Corp., a Delaware corporation (the "Member"), and
the Company.
RECITALS
A. Reference is made to the Certificate of Formation for the Company
filed January 18, 2006 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 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) "Board" or "Board of Managers" shall mean the Board of Managers of
the Company.
(e) "Capital Cash Flow" shall mean, for purposes of this Agreement and
for a given period of time, the net proceeds received by the Company from
Company borrowings and the net proceeds of the sale of Company assets, in each
instance less reasonable reserves required in the sole discretion of the Board
of Managers.
(f) "Capital Contribution" shall mean any contribution to the capital
of the Company by the Member in cash, other property or services rendered, or a
promissory note or other obligation to contribute cash or property or to perform
services.
(g) "Certificate" shall have the meaning as described in Recital A
hereto.
(h) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, or any corresponding provisions of succeeding law.
(i) "Company" shall mean BNP Paribas Mortgage Securities LLC, a
Delaware limited liability company.
(j) "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.
(k) "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.
(l) "Liquidating Agent" shall have the meaning given it in Section
8.2(a).
(m) "Member" shall mean BNP Paribas Mortgage Corp., a Delaware
corporation, and its successors.
(n) "Officer" shall mean an officer of the Company as described in
Section 4.1.
(o) "Operating Cash Flow" shall mean, for purposes of this Agreement
and for a given period of time, all cash received by the Company from any source
(but excluding net proceeds from borrowings of the Company and the net proceeds
from the sale or other disposition of the Company's assets) less cash expended
for the debts and expenses of the Company, principal and interest payments on
any indebtedness of the Company, capital expenditures and, in each instance,
reasonable reserves required in the sole determination of the Member.
(p) "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.
(q) "Transaction Documents" shall have the meaning given it in Section
3.1.
(r) "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 January 18,
2006, 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 BNP Paribas Mortgage Securities
LLC, provided that the Member may elect to transact business in other names in
those jurisdictions where it deems it necessary for purposes of complying with
the requirements of local law.
2.3 PRINCIPAL PLACE OF BUSINESS. The principal place of business of the
Company shall be located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 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 Corporation
Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, in the City of Wilmington,
County of New Castle, and the name of its initial registered agent at such
address shall be Corporation Service Company. The registered office and
registered agent may be changed from time to time by filing the address of the
new registered office and/or the name of the new registered agent with the
Delaware Secretary of State pursuant to the Act.
2.5 TERM. The term of the Company shall commence on the date the
Certificate is filed with the Delaware Secretary of State in accordance with the
provisions of the Act and shall continue until the Company is dissolved pursuant
to Article VIII. The existence of the Company as a separate legal entity shall
be perpetual and shall continue until cancellation of the Certificate as
provided in the Act.
2.6 LIMITED LIABILITY COMPANY INTEREST. The interest of the Member will
be designated as the "Limited Liability Company Interest" and may be expressed
as a 100% percentage interest. The Limited Liability Company Interest is
personal property and the Member has no interest in specific property of the
Company.
2.7 CERTIFICATE. Xxxx X. Xxxxxxx 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, 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
(the "Transaction Documents"); and
(c) Taking any action necessary or reasonable to enable the Company to
engage in any lawful act or activity and to exercise any powers permitted under
the laws of the State of Delaware that are related or incidental to and
necessary, convenient or advisable to accomplish any of the foregoing.
3.2 RESTRICTIONS ON ACTIVITIES. Notwithstanding any other provision
contained in this Agreement:
(1) The Company will maintain financial statements, bank accounts,
records, payroll and books of account separate and apart from the Member, any
Affiliate or other Person;
(2) Funds and other assets of the Company shall be separately
identified and segregated. All of the Company's assets shall at all times be
held by or on behalf of the Company, and, if held by another Person, shall at
all times be kept identifiable (in accordance with customary usages) as assets
owned by the Company. In no event shall any of the Company's assets be held on
its behalf by any Affiliate;
(3) The Company will pay from its own funds and assets all obligations
and indebtedness incurred by it and shall not pay the general overhead and
expenses of the Member of the Company;
(4) Each of the Company and the Member of the Company will conduct its
business solely in its own name so as not to mislead others as to the identity
of the Member of the Company or the identity of the Company; (5) The Company
shall not guarantee the obligations or liabilities of any Person including the
Member or any 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 any Affiliate of the Company;
(6) All business transactions entered into by the Company with an
Affiliate will be on terms and conditions that are not more or less favorable to
the Company than terms and conditions available at the time to the Company for
comparable transactions with Persons who are not Affiliates of the Company;
(7) The Company will at all times hold itself out to the public
(including any Affiliate's creditors) as a separate and distinct entity
operating under the Company's own name and the Company shall act solely in its
own name and through its own authorized representatives;
(8) The Company will have a sufficient number of employees, or will
contract for the use of a sufficient number of employees, in light of its stated
business purpose, and will compensate all employees, in light of its stated
business purpose, and will compensate all employees, consultants and agents
directly, from the Company's bank accounts, for services provided to the Company
by such employees, consultants and agents, except to the extent that any
employee, consultant or agent of the Company is also an employee, consultant or
agent of any Affiliate(s) and the compensation of such employee, consultant or
agent is allocated between the Company and such Affiliate(s) on a basis which
reflects the services rendered to the Company and such Affiliate(s), and
otherwise will pay from its own funds and assets all obligations and
indebtedness incurred by it;
(9) The Company shall not pay the general overhead and expenses of the
Member or Affiliates of the Company and shall not permit the Member or
Affiliates to pay any of the Company's overhead or expenses; provided, that
overhead expenses (including, without limitation, telephone and other utility
charges) may be shared between the Company and the Member or such Affiliate so
long as such items are allocated between the Company and the Member or such
Affiliate on the basis of actual use to the extent practicable and, to the
extent such allocation is not practicable, on a basis reasonably related to
actual use;
(10) The Company shall have separate stationery, invoices and checks in
its own name;
(11) The Company shall observe all formalities as a distinct entity,
and ensure that all appropriate actions are duly authorized by its Member;
(12) The Company shall correct any misunderstanding known to the
Company regarding the separate identity of the Company;
(13) The Company shall maintain adequate capital in light of its
contemplated business operations;
(14) The Company shall not incur any indebtedness or liabilities except
for (i) liabilities incurred in the ordinary course of the Company's business;
(ii) liabilities permitted to be incurred by any Transaction Documents; and
(iii) unsecured loans from Affiliates of the Company in order to accommodate the
Company's normal cash management procedures; and
(15) So long as the obligations of the Company under any Transaction
Documents are outstanding,
(a) the Company shall not (i) consolidate, merge or acquire all or
substantially all of the assets of a Person (except for consolidations or
mergers where the Company is the surviving Person and all the other restrictions
set forth in this Section 3.2 continue to be met) or (ii) sell or dispose of all
or substantially all of its assets, except in either case to the extent
permitted by any Transaction Documents;
(b) the Company shall not engage in any business other than that set
forth in Section 3.1 of this Agreement; and
(c) the Company shall not acquire any property or own assets other than
in furtherance of the Company's purposes 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 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.
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 or 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 initial Managers of the Company shall be Xxxxxxxx Xxxxx and Xxxxxxx
Xxxxxxxxx. The initial Independent Manager shall be Xxxx Xxxxxxx.
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 Managers.
The initial Officers of the Company shall be as follows, each to hold
office until his successor is elected by the Board:
President: Xxxxxxxx Xxxxx
Secretary: Xxxxxx Xxxx
Assistant Secretary: Xxxxxx Xxxxxxx
Treasurer: Xxxxxxx Xxxxxxxxx
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.
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 solely and directly
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 any 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;
(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.
6.2 DISTRIBUTIONS OF OPERATING AND CAPITAL CASH FLOW.
(a) Subject to Section 6.2(c) below, distributions of Operating Cash
Flow shall be made at least annually at such time or times as the Board of
Managers shall determine. All operating Cash Flow shall be distributed to the
Member.
(b) Subject to Section 6.2(c) below, distributions of Capital Cash Flow
shall be made at such time or times as the Board of Managers 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;
(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 windup the affairs of the
Company and liquidate its assets as promptly as is consistent with obtaining the
fair value thereof. In connection with any such winding up and liquidation, a
financial statement of the Company as of the date of dissolution will be
prepared by the Liquidating Agent.
(b) Authority of Liquidating Agent. In connection with the winding up
and liquidation of the Company, the Liquidating Agent will have all of the
rights and powers with respect to the assets and liabilities of the Company that
an authorized Member or a 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 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.
9.5 AMENDMENTS. So long as the obligations of the Company under any
Transaction Documents are outstanding, Sections 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.
9.14 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original but all of which shall constitute once and
the same instrument.
IN WITNESS WHEREOF, this Limited Liability Company Agreement is
executed and delivered as of the date first written above by the undersigned,
being the Member, which does hereby agree to be bound by the terms and
provisions set forth in this Agreement.
BNP PARIBAS MORTGAGE CORP.,
as Member
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Treasurer
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 BNP Paribas Mortgage Securities LLC
adopted by the Member of the Company in order to be effective as of January 18,
2006.
BNP PARIBAS MORTGAGE CORP.
"Member"
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Treasurer
Address for Notice Purposes:
000 Xxxxxxx Xxxxxx - 0xx Xxxxx
Attn: Fixed Income Mortgage Desk
Xxx Xxxx, Xxx Xxxx 00000
BNP PARIBAS MORTGAGE SECURITIES LLC
"Company"
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Treasurer
Address for Notice Purposes:
000 Xxxxxxx Xxxxxx - 0xx Xxxxx
Attn: Fixed Income Mortgage Xxxx
Xxx Xxxx, Xxx Xxxx 00000
