LIMITED LIABILITY COMPANY AGREEMENT OF FIG ASSET CO. LLC
OF
FIG
ASSET CO.
LLC
THIS
LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of FIG Asset Co. LLC (the
"Company") effective as of the 17th day of January 2007, by Fortress Investment
Group Holdings LLC, as the sole member of the Company (the
"Member").
RECITAL
The
Member has formed the Company as a limited liability company under the laws of
the State of Delaware and desires to enter into a written agreement, in
accordance with the provisions of the Delaware Limited Liability Company Act
and any successor statute, as amended from time to time (the "Act"), governing
the affairs of the Company and the conduct of its business.
ARTICLE
1
The
Limited Liability Company
1.1 Formation. The
Member has previously formed the Company as a limited liability company
pursuant to the provisions of the Act. A certificate of formation for the
Company as described in Section 18-201 of the Act (the "Certificate of
Formation") has been filed in the Office of the Secretary of State of the State
of Delaware in conformity with the Act.
1.2 Name. The
name of the Company shall be "FIG Asset Co. LLC" and its business shall be
carried on in such name with such variations and changes as the Board (as
hereinafter defined) shall determine or deem necessary to comply with
requirements of the jurisdictions in which the Company's operations are
conducted.
1.3 Business
Purpose;
Powers. The
Company is formed for the purpose of engaging in any lawful business, purpose
or activity for which limited liability companies may be formed under the Act.
The Company shall possess and may exercise all the powers and privileges
granted by the Act or by any other law or by this Agreement, together with any
powers incidental thereto, so far as such powers and privileges are necessary
or convenient to the conduct, promotion or attainment of the business purposes
or activities of the Company.
1.4 Registered
Office and Agent. The
location of the registered office of the Company shall be 0000
Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle, 19801. The
Company's Registered Agent at such address shall be The Corporation Trust
Company.
1.5 Term.
Subject to the provisions of Article 6 below, the Company shall have perpetual
existence.
ARTICLE
2
The
Member
2.1 The
Member. The
name and address of the sole Member is as follows:
| Name | Address |
|
0000
Xxxxxx xx xxx Xxxxxxxx |
|
|
Xxx
Xxxx, Xxx Xxxx 00000 |
2.2 Actions
by the Member. The
Member may approve a matter or take any action by written consent.
2.3 Liability
of the Member. All
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.
2.4 Power
to Bind the Company. The
Member shall not have the authority to bind the Company to any third party with
respect to any matter.
2.5 Admission
of Members.
New
members shall be admitted only upon the approval of the Member.
ARTICLE
3
The
Board
3.1 Management
by the Board of Managers.
(a) Subject
to such matters which are expressly reserved hereunder or under the Act to the
Member for decision, the business and affairs of the Company shall be managed
by a board of managers (the "Board"), which shall be responsible for policy
setting, approving the overall direction of the Company and making all
decisions affecting the business and affairs of the Company. The Board shall
consist of one to ten individuals (the "Managers"), the exact number of
Managers to be determined from time to time by resolution of the Member. The
initial Board shall consist of five members, who shall be Xxxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxx Xxxxxxxx, Xxxxxx Xxxxxxx and Xxxxxxx Xxxxxxxxx.
(b) Each
Manager shall be elected by the Member and shall serve until his or her
successor has been duly elected and qualified, or until his or her
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earlier
removal, resignation, death or disability. The Member may remove any Manager
from the Board or from any other capacity with the Company at any time, with or
without cause. A Manager may resign at any time upon written notice to the
Member.
(c) Any
vacancy occurring on the Board as a result of the resignation, removal, death
or disability of a Manager or an increase in the size of the Board shall be
filled by the Member. A Manager chosen to fill a vacancy resulting from the
resignation, removal, death or disability of a Manager shall serve the
unexpired term of his or her predecessor in office.
3.2 Action
by the Board.
(a) Meetings
of the Board may be called by any Manager upon two (2) days prior written
notice to each Manager. The presence of a majority of the Managers then in
office shall constitute a quorum at any meeting of the Board. All actions of
the Board shall require the affirmative vote of a majority of the Managers then
in office.
(b) Meetings
of the Board may be conducted in person or by conference telephone facilities.
Any action required or permitted to be taken at any meeting of the Board may be
taken without a meeting if such number of Managers sufficient to approve such
action pursuant to the terms of this Agreement consent thereto in writing.
Notice of any meeting may be waived by any Manager.
3.3 Power
to Bind Company.
None of
the Managers (acting in their capacity as such) shall have authority to bind
the Company to any third party with respect to any matter unless the Board
shall have approved such matter and authorized such Manager(s) to bind the
Company with respect thereto.
3.4 Officers
and Related Persons. The
Board shall have the authority to appoint and terminate officers of the Company
and retain and terminate employees, agents and consultants of the Company and
to delegate such duties to any such officers, employees, agents and consultants
as the Board deems appropriate, including the power, acting individually or
jointly, to represent and bind the Company in all matters, in accordance with
the scope of their respective duties.
ARTICLE
4
Capital
Structure and Contributions
4.1 Capital
Structure. The
capital structure of the Company shall consist of one class of common interests
(the "Common Interests") and one class of preferred interests (the "Preferred
Interests"), and the Company shall have the authority to issue 500,000,000
Common Interests and 250,000,000 Preferred Interests. All Common Interests
shall be identical with each other in every respect. The Preferred Interests
may be issued by the Company in one or more classes, with such designations,
preferences, rights, powers and duties (which may be junior to, equivalent to,
or senior or superior to, any existing classes of Shares), as shall be fixed by
the Board of Directors and reflected
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in a
written action or actions approved by the Board of Directors (each, an
"Interest
Designation"),
including, without limitation (i) the right to share Company profits and losses
or items thereof; (ii) the right to share in Company distributions, the dates
distributions will be payable and whether distributions with respect to such
series will be cumulative or non-cumulative; (iii) rights upon dissolution and
liquidation of the Company; (iv) whether, and the terms and conditions upon
which, the Company may redeem the Preferred Interests; (v) whether such
Preferred Interests are issued with the privilege of conversion or exchange
and, if so, the terms and conditions of such conversion or exchange; (vi) the
terms and conditions upon which each Preferred Interest will be issued,
evidenced by certificates and assigned or transferred; (vii) the method for
determining the percentage interest as to such Preferred Interest; (viii) the
terms and amounts of any sinking fund provided for the purchase or redemption
of Preferred Interests of the series; (ix) whether there will be restrictions
on the issuance of Preferred Interests of the same series or any other class or
series; and (x) the right, if any, of the holder of each such Preferred
Interest to vote on Company matters, including matters relating to the relative
rights, preferences and privileges of such Preferred Interest. An Interest
Designation (or any resolution of the Board of Directors amending any Interest
Designation) shall be effective when a duly executed original of the same is
delivered to the Secretary of the Company for inclusion among the permanent
records of the Company, and shall be annexed to, and constitute part of, this
Agreement. Unless otherwise provided in the applicable Interest Designation,
the Board of Directors may at any time increase or decrease the amount of
Preferred Interests of any series, but not below the number of Preferred
Interests of such series then outstanding.
4.2 Capital
Contributions. From
time to time, the Board may determine that the Company requires capital and may
request the Member to make capital contribution(s) in an amount determined by
the Board. A capital account shall be maintained for the Member, to which
contributions and profits shall be credited and against which distributions and
losses shall be charged.
ARTICLE
5
Profits,
Losses and Distributions
5.1 Profits
and Losses. For
financial accounting and tax purposes, the Company's net profits or net losses
shall be determined on an annual basis in accordance with the manner determined
by the Board. In each year, profits and losses shall be allocated entirely to
the Member.
5.2 Distributions. The
Board shall determine profits available for distribution and the amount, if
any, to be distributed to the Member, and shall authorize and distribute on the
Common Interests, the determined amount when, as and if declared by the Board.
The distributions of the Company shall be allocated entirely to the Member.
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ARTICLE
6
Events
of Dissolution
The
Company shall be dissolved and its affairs wound up upon the determination of
the Member or upon judicial dissolution of the Company under Section 18-802 of
the Act.
ARTICLE
7
Transfer
of Interests in the Company
The
Member may sell, assign, transfer, convey, gift, exchange or otherwise dispose
of any or all of its Common Interests and, upon receipt by the Company of a
written agreement executed by the person or entity to whom such Common
Interests are to be transferred agreeing to be bound by the terms of this
Agreement, such person shall be admitted as a member.
ARTICLE
8
Exculpation
and Indemnification
8.1 Exculpation
and Indemnification.
Subject
to other applicable provisions of this Article 8, the Indemnified Persons (as
defined below) shall not be liable to the Company, any subsidiary of the
Company, any Manager, any Member or any holder of any equity interest in any
subsidiary of the Company, for any acts or omissions by any of the Indemnified
Persons arising from the performance of their duties and obligations in
connection with the Company, this Agreement or any investment made or held by
the Company, including with respect to any acts or omissions made while serving
at the request of the Company as an officer, director, member, partner, tax
matters partner, fiduciary or trustee of another person or entity or any
employee benefit plan, except by reason of acts or omissions constituting
fraud, willful misconduct or gross negligence. The Indemnified Persons shall be
indemnified by the Company, to the fullest extent permitted by law, against all
expenses and liabilities (including judgments, fines, penalties, interest,
amounts paid in settlement with the approval of the Company and counsel fees
and disbursements on a solicitor and client basis) arising from the performance
of their any of their obligations in connection with their service to the
Company or this Agreement, or any investment made or held by the Company or any
of its subsidiaries, including in connection with any civil, criminal,
administrative, investigative or other action, suit or proceeding to which any
such person or entity may hereafter be made party by reason of being or having
been a manager of the Company under Delaware law, a Manager or officer of the
Company, or an officer, director, member, partner, tax matters partner,
fiduciary or trustee of another person or entity or any employee benefit plan
at the request of the Company, except by reason of acts or omissions
constituting fraud, willful misconduct or gross negligence. Without limitation,
the foregoing indemnity shall extend to any liability of any Indemnified
Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the
Company or any subsidiary
5
of the
Company (including, without limitation, any indebtedness which the Company or
any subsidiary of the Company has assumed or taken subject to), and the
officers of the Company are hereby authorized and empowered, on behalf of the
Company, to enter into one or more indemnity agreements consistent with the
provisions of this Section 8.1 in favor of any Indemnified Person having or
potentially having liability for any such indebtedness. It is the intention of
this Section 8.1 that the Company indemnify each Indemnified Person to the
fullest extent permitted by law. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person committed an act or omission that constitutes fraud, willful
misconduct or gross negligence. "Indemnified
Person" means
(a) any person who is or was a Manager, officer or tax matters partner of the
Company, (b) any person who is or was serving at the request of the Company as
an officer, member, manager, partner, tax matters partner, fiduciary or trustee
of another person (including any subsidiary); provided, that a person shall not
be an Indemnified Person by reason of providing, on a fee-for-services basis,
trustee, fiduciary or custodial services, and (c) any person the Board of
Managers designates as an "Indemnified Person" for purposes of this
Agreement.
8.2 Amendments. Any
repeal or modification of this Article 8 by the Member shall not adversely
affect any rights of such Covered Person pursuant to this Article 8, including
the right to indemnification and to the advancement of expenses of a Covered
Person existing at the time of such repeal or modification with respect to any
acts or omissions occurring prior to such repeal or modification.
ARTICLE
9
Miscellaneous
9.1 Certification
of Membership Interests. Upon
the Company’s issuance of Common Interests to any person or entity,
the Company shall issue one or more certificates in the name of such person or
entity evidencing the number of such Common Interests being so issued.
Certificates shall be executed on behalf of the Company by any two
Managers.
9.2 Tax
Treatment. Unless
otherwise determined by the Member, the Company shall be a disregarded entity
for U.S. federal income tax purposes (as well as for any analogous state or
local tax purposes), and the Member and the Company shall timely make any and
all necessary elections and filings for the Company treated as a disregarded
entity for U.S. federal income tax purposes (as well as for any analogous state
or local tax purposes).
9.3 Amendments.
Amendments
to this Agreement and to the Certificate of Formation shall be approved in
writing by the Member. An amendment shall become effective as of the date
specified in the approval of the Member or if none is specified as of the date
of such approval or as otherwise provided in the Act.
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9.4 Severability. If any
provision of this Agreement is held to be invalid or unenforceable for any
reason, such provision shall be ineffective to the extent of such invalidity or
unenforceability; provided,
however, that
the remaining provisions will continue in full force without being impaired or
invalidated in any way unless such invalid or unenforceable provision or clause
shall be so significant as to materially affect the expectations of the Member
regarding this Agreement. Otherwise, any invalid or unenforceable provision
shall be replaced by the Member with a valid provision which most closely
approximates the intent and economic effect of the invalid or unenforceable
provision.
9.5 Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware without regard to the principles of conflicts of laws
thereof.
9.6 Limited
Liability Company. The
Member intends to form a limited liability company and does not intend to form
a partnership under the laws of the State of Delaware or any other
laws.
[Execution
Page Follows]
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IN
WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the day
first above written.
|
FORTRESS INVESTMENT
GROUP HOLDINGS
LLC |
||
| |
/s/ Xxxxxx X. Xxxxxxx |
|
| By: | Xxxxxx X. Xxxxxxx | |
| Title: | Chief Operating Officer and Secretary | |
| /s/ Xxxxxx X. Xxxx | ||
| By: | Xxxxxx X. Xxxx | |
| Title: | Chief Financial Officer | |
Signature
Page to FIG Asset Co. LLC Operating Agreement
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