Exhibit 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
WORLD OMNI LEASE SECURITIZATION LLC
A Delaware Limited Liability Company
THIS LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") is executed
as of the 18th day of September, 1998 by the undersigned, the sole member, to
form a limited liability company under the laws of the State of Delaware for the
purposes and upon the terms and conditions hereinafter set forth. The Company
(as defined below) joins in the execution of this Agreement so as to be bound by
this Agreement.
World Omni Financial Corp., as the sole member (the "Member"), by
execution of this Agreement, hereby forms a limited liability company pursuant
to and in accordance with the Delaware Limited Liability Company Act (6 Del.C.
ss.18-101, et seq.), as amended from time to time (the "Act"), and hereby
desires that this Agreement be, and hereby is, the sole governing document of
the Company, superseding all prior agreements and hereby agrees as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement the following
terms shall have the meanings respectively assigned to them in this Article I
unless otherwise expressly provided herein or unless the context otherwise
requires:
Act: "Act" shall mean the Delaware Limited Liability Company Act, 6
Del. X.xx.xx. 18-101 et seq., as amended from time to time.
Affiliate: "Affiliate" of another Person shall mean any Person directly
or indirectly controlling, controlled by, or under common control with, such
other person.
Agreed Value "Agreed Value" shall mean the fair market value of
Contributed Property or services rendered as agreed to by the contributing
Member and the Company, using such reasonable method of valuation as they may
adopt.
Agreement: "Agreement" shall mean this Amended and Restated Limited
Liability Company Agreement of the Company as the same may be amended or
restated from time to time in accordance with its terms.
Assignee: "Assignee" shall mean a Person who has acquired a share of
the Company's profits and losses and such rights to receive distributions from
the Company as are assigned to that Person, but who is not a Substitute Member.
Bankrupt Member: "Bankrupt Member" shall mean any member (a) that (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 such Member an order for relief, in any bankruptcy or insolvency
proceedings; (iv) files a petition or answer seeking for the Member any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
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 the Member in any proceeding of the type described in
subclauses (i) through (iv) of this clause (a); or (vi) seeks, consents to, or
acquiesces in the appointment of a trustee, receiver or liquidator of the Member
or of all or any substantial part of the Member's properties; or (b) against
which, a proceeding seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any statute, law
or regulation has been commenced and one hundred twenty (120) days have expired
without dismissal thereof or with respect to which, without the Member's consent
or acquiescence, a trustee, receiver or liquidator of the Member or of all or
any substantial part of the Member's properties has been appointed and ninety
(90) days have expired without the appointment having been vacated or stayed, or
ninety (90) days have expired after the date of expiration of a stay, if the
appointment has not previously been vacated. The foregoing is intended to and
shall supersede and replace the events of bankruptcy described in Sections
18-304(a) and (b) of the Act.
Capital Contribution: "Capital Contribution" shall mean the amount in
cash contributed and the Agreed Value of other property contributed by each
Member (or its predecessors in interest) to the capital of the Company for such
Member's Membership Interest.
Cash Flow: "Cash Flow" for any period shall mean operating cash flow,
which shall be defined according to generally accepted accounting principles,
before deduction for depreciation, cost recovery or other noncash expenses of
the Company during that period.
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Certificates: "Certificates" has the meaning set forth in Section
3.1(a).
Code: "Code" shall mean the Internal Revenue Code of 1986, as amended.
Company: "Company" shall mean World Omni Lease Securitization LLC, the
Delaware limited liability company formed pursuant to the Act and this
Agreement.
Director: "Director" has the meaning set forth in Section 7.2.
Dispose, Disposing or Disposition: "Dispose," "Disposing" or
"Disposition" shall mean a sale, assignment, transfer, exchange, mortgage,
pledge, grant of a security interest, or other disposition or encumbrance
(including, without limitation, by operation of law), or any act thereof.
Independent Director "Independent Director" shall mean a Director of
the Company who shall at no time be (i) a director, officer, employee or former
employee of any Affiliate, (ii) a natural person related to any director,
officer, employee or former employee of any Affiliate, (iii) a holder (directly
or indirectly) of any voting securities of any Affiliate, or (iv) a natural
person related to a holder (directly or indirectly) of any voting securities of
any Affiliate. For purposes of this definition only, "Affiliate" shall mean any
entity other than the Company or any similarly organized special purpose finance
subsidiary of an Affiliate (i) which owns beneficially, directly or indirectly,
more than 10% of the aggregate Membership Interests of the Company, (ii) which
is in control of the Company, as currently defined under ss. 230.405 of the
Rules and Regulations of the Securities and Exchange Commission, 17 C.F.R. ss.
230.405, (iii) of which 10% or more of the aggregate Membership Interests is
owned beneficially, directly or indirectly, by any entity described in clause
(i) or (ii) above, or (iv) which is controlled by an entity described in clause
(i) or (ii) above, as currently defined under ss. 230.405 of the rules and
Regulations of the Securities and Exchange Commission, 17 C.F.R. ss. 230.405.
IRS: "IRS" shall mean the Internal Revenue Service.
Managing Member: "Managing Member" shall mean the Member and any
successor Managing Member appointed pursuant to this Agreement, each in its
capacity as a managing member of the Company.
Member: "Member" shall mean World Omni Financial Corp. in its capacity
as a managing member of the Company.
Membership Interest: "Membership Interest" shall mean the limited
liability company interest of the Member in the Company, including, without
limitation, rights in the
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capital of the Company, rights to receive distributions (liquidating or
otherwise) and allocations of profits and losses. The Member's Membership
Interest shall be expressed as a percentage which shall equal the ratio that the
value of the Capital Contributions made by such Member bears to the Capital
Contributions of all members. The Member's initial Membership interest shall be
one hundred percent (100%).
Origination Trust: "Origination Trust" has the meaning set forth in
Section 3.1 (a).
Origination Trust Agreement: "Origination Trust Agreement" has the
meaning set forth in Section 3.1(a).
Origination Trust Interest: "Origination Trust Interest" has the
meaning set forth in Section 3.1(a).
Partnership: "Partnership" has the meaning set forth in Section 3.1(a).
Person: "Person" shall have the meaning given that term in Section
18-102(12) of the Act.
Securitization Trust: "Securitization Trust" has the meaning set forth
in Section 3.1(a).
Securitized Financing: "Securitized Financing" has the meaning set
forth in the Origination Trust Agreement.
SUBIs: "SUBIs" has the meaning set forth in Section 3.1(b).
Substitute Member: "Substitute Member" shall mean any Person to whom
the Membership Interest in the Company has been transferred and who was not the
Member immediately prior to such transfer and who has been admitted to the
Company as the Member pursuant to and in accordance with the provisions of
Article IV of this Agreement.
UTIs: "UTIs" has the meaning set forth in Section 3.1(b).
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ARTICLE II
ORGANIZATION
Section 2.1 Formation. The Member hereby executes this Agreement for
the purpose of setting forth the rights and obligations of the Member.
Section 2.2 Name. The name of the limited liability company formed
hereby is World Omni Lease Securitization LLC.
Section 2.3 Certificate of Formation; Foreign Qualification. Xxxxxx X.
Xxxxxx, as an authorized person, within the meaning of the Act, shall execute,
deliver and file, or cause the execution, delivery and filing of, the
Certificate of Formation of the Company which is to be filed as of the date
hereof in the office of the Secretary of State of the State of Delaware, in
accordance with the Act. Immediately following such filing, the Managing Member
is hereby designated as an authorized person, with the meaning of the Act, to
execute, deliver and file, or to cause the execution, delivery and filing of,
all certificates (and any amendments and/or restatements thereof) required or
permitted by the Act to be filed in the office of the Secretary of State of the
State of Delaware. Prior to the Company's conducting business in any
jurisdiction other than the State of Delaware, the Managing Member of the
Company shall cause the Company to comply, to the extent procedures are
available and those matters are reasonably within the control of the Managing
Member, with all requirements necessary to qualify the Company as a foreign
limited liability company in that jurisdiction. At the request of the Managing
Member of the Company, each Member shall execute, acknowledge, swear to, and
deliver all certificates and other instruments conforming with this Agreement
that are necessary or appropriate to qualify, continue and terminate the
qualification of the Company as a foreign limited liability company in all such
jurisdictions in which the Company may conduct business.
Section 2.4 No State Law Partnership; Liability to Third Parties;
Federal Taxation. The Member intends that the Company not be a partnership
(including, without limitation, a limited partnership) or joint venture, and
that no Member be a partner or joint venturer of any other Member, for any
purpose including federal and state tax purposes, and that this Agreement not be
construed to suggest otherwise. The Member, on behalf of the Company, will elect
for the Company to be a nonentity for federal tax purposes. Except as otherwise
specifically provided in the Act, no Member shall be liable for the debts,
obligations or liabilities of the Company or any other Member, including under a
judgment, decree or order of a court.
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ARTICLE III
PURPOSES AND POWERS, PRINCIPAL OFFICE, REGISTERED
AGENT, PERIOD OF DURATION AND MEMBER LIST
Section 3.1 Purposes and Powers. The Company has been formed solely for
the purpose of engaging in only the following activities:
(a) To (i) act as a general partner (and from time to time a
limited partner) of one or more limited partnerships (each, a "Partnership"), a
limited partner of which will be the Member, including without limitation World
Omni Lease Securitization L.P. ("XXXX XX"), which Partnerships may engage in any
of the activities in which the Company is permitted to engage, and (ii) act as
settlor or grantor of one or more additional trusts (each a "Securitization
Trust") formed pursuant to a trust agreement or other agreement for the purpose
of acquiring interests in World Omni LT, an Alabama trust (the "Origination
Trust") originally formed under a Trust Agreement dated as of November 1, 1993,
as amended and restated pursuant to an Amended and Restated Trust Agreement
dated as of June 1, 1994 and a Second Amended and Restated Trust Agreement dated
as of July 1, 1994, as amended and supplemented to date (as the same may be
further amended or supplemented from time to time, the "Origination Trust
Agreement") now among Auto Lease Finance L.P., a Delaware limited partnership,
VT Inc., an Alabama corporation, and U.S. Bank National Association (f/k/a First
Bank National Association and successor to Bank of America Illinois, an Illinois
banking corporation f/k/a Continental Bank, successor to Continental Bank
National Association), which Origination Trust originally was formed to issue
beneficial interests ("Origination Trust Interests") representing interests in
various retail closed-end lease contracts of motor vehicles, those related
leased vehicles, and other related rights and assets, as may be transferred
directly or indirectly to the Origination Trust, and which Securitization Trust
may issue certificates ("Certificates") of beneficial interest in the assets of
such Securitization Trust;
(b) To acquire, own, hold, sell, transfer, convey, dispose of,
pledge, assign, borrow money against, finance, refinance or otherwise deal with,
publicly or privately and whether with unrelated third parties or with
affiliated entities, Origination Trust Interests, including without limitation
any undivided trust interests ("UTIs") or special units of beneficial interest
("SUBIs") created with respect to the Origination Trust, and Certificates;
(c) To loan or otherwise invest funds received as a result of
the Company's interest in any Origination Trust Interests or Certificates and
any other income, as determined by the Company's Board of Directors from time to
time;
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(d) To borrow money other than pursuant to subsection (b)
above, but only to the extent that any such borrowing is permitted by the terms
of the transactions contemplated by subsections (a) and (b); and
(e) To engage in any lawful act or activity and to exercise
any powers permitted to limited liability companies organized under the Act that
are incidental to and necessary or convenient for the accomplishment of the
foregoing purposes.
The Company is not otherwise authorized to engage in any
activity except the foregoing.
Section 3.2 Principal Office. The initial principal office of the
Company is located at 0000 Xxxx Xxxx Xxxxx, Xxxxxx, XX 00000. The principal
office of the Company may be relocated from time to time by determination of the
Managing Member.
Section 3.3 Registered Agent. The registered agent for service of
process on the Company in the State of Delaware shall be The Corporation Trust
Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000.
Section 3.4 Period of Duration. The term of the Company shall continue
in perpetuity, unless the Company is earlier dissolved pursuant to law or the
provisions of this Agreement.
Section 3.5 Merger. Notwithstanding anything to the contrary in this
Agreement and without the vote, consent or approval of any Person, the Company
is hereby authorized to merge with World Omni Lease Securitization, Inc., a
Delaware corporation, with the Company being the surviving entity (the
"Merger").
ARTICLE IV
MEMBERSHIP AND DISPOSITIONS OF INTERESTS
Section 4.1 Members. The name and the mailing address of the Member are
as follows:
Name Address
---- -------
World Omni Financial Corp. 000 XX 00xx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Attn: Corporate Treasurer
Section 4.2 Elimination of Preemptive Rights. No Member shall be
entitled as such, as a matter of right, to subscribe for or purchase interests
in the Company of any class, now or hereafter authorized.
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Section 4.3 Resignation. Except as otherwise provided in this
Agreement, a Member does not have the right or power to resign from the Company
as a Member.
Section 4.4 Restriction on the Disposition of the Membership Interest.
(a) Subject to compliance with all applicable provisions of
this Section 4.4, any Member may Dispose of all or any part of its Membership
Interest. The Person to whom such Disposition is made shall be an Assignee of
such interest but shall not be a Substitute Member unless admitted as a
Substitute Member in accordance with Section 4.4(b).
(b) The Person to whom a Disposition is made as described in
Section 4.4(a) shall have the right to become a Substitute Member only if (i)
the Member making such Disposition grants the transferee the right to be a
Substitute Member (which grant (subject to the following clause (ii)) is hereby
permitted) and (ii) such admission as a Substitute Member is consented to by all
of the Members and, until all Securitized Financings involving a SUBI and
involving the Company or a Partnership are paid and satisfied in full, all
members of the Board of Directors (as hereinafter defined), which consent may
not be unreasonably withheld.
(c) The Company shall not recognize for any purpose any
purported Disposition of all or part of the Member's Membership Interest or any
right or interest appertaining thereto unless and until the Company has received
a document (i) executed by both the Member effecting the Disposition and the
Person acquiring such Membership Interest or part thereof, (ii) including the
notice address of any Person to be admitted to the Company as a Substitute
Member and such Person's agreement to be bound by this Agreement in respect of
the Membership Interest or part thereof being obtained, (iii) setting forth the
Membership Interest of the parties to the Disposition after the Disposition, and
(iv) containing a warranty and representation that the Disposition was made in
accordance with this Agreement and all applicable laws and regulations. Each
Disposition and, if applicable, admission complying with the provisions of this
Section 4.4 is effective as of the date of the document described in this
Section 4.4(c), but only if the other requirements of this Section 4.4 have been
met.
Section 4.5 Bankrupt Member. A Member shall not cease to be a Member
as a result of such Member becoming a Bankrupt Member and, upon the occurrence
of such event, the Company shall continue without dissolution.
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ARTICLE V
CAPITAL CONTRIBUTIONS
Section 5.1 Admission and Initial Capital Contributions. The Managing
Member is deemed admitted as the Member of the Company upon its execution and
delivery of this Agreement. The Member has contributed $1000.00, in cash, and no
other property, to the Company and may contribute in the future any additional
capital deemed necessary by the Managing Member, in its sole discretion, for the
operation of the Company. No other Person shall be admitted as an additional
member of the Company without the approval of the Member and the unanimous
approvals of all members of the Board of Directors, including, without
limitation, the affirmative vote of the Independent Directors.
Section 5.2 Additional Capital; Adjustment of Membership Interests.
Except as specifically set forth elsewhere in this Agreement, no Member shall be
required to contribute capital to the company in excess of such Member's initial
Capital Contribution. The Membership Interests of the Members shall be adjusted
to reflect (i) additional capital contributed to the Company by one or more
Members, (ii) the transfer of Membership Interests, or (iii) the withdrawal of a
Member. As of the time of an event specified in the immediately preceding
sentence, the Membership Interest of the Members may be adjusted by the Managing
Member, in its discretion, to reflect the relative Capital Accounts of the
Members after giving effect to any additional capital contributed to, or amounts
distributed by, the Company, as the case may be, and any appreciation or
depreciation in the fair market value of the Company's property.
Section 5.3 Return of Contributions. A Member is not entitled to
demand the return of any part of its Capital Contribution or to payment of
interest in respect of either its Capital Account or its Capital Contribution.
Except as otherwise expressly set forth in this Agreement, neither the Company
nor any Member has any obligation to return the Capital Contribution of an
Member.
ARTICLE VI
ACCOUNTING AND DISTRIBUTION
Section 6.1 Books; Fiscal Year; Accounting Terms.
(a) The books of the Company shall be kept on the accrual
basis and in accordance with generally accepted accounting principles
consistently applied.
(b) The fiscal year of the Company for financial and tax
reporting Purposes shall end on December 31 of each year.
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Section 6.2 Distributions of Cash Flow. From time to time, the
Managing Member shall determine to what extent (if any) there exists sufficient
Cash Flow, after taking into account such working capital, capital expenditures
and debt service reserves as it deems necessary, to permit a distribution of
Cash Flow to the Members. Any such distribution shall be made to the Members
proportionately in accordance with their Membership Interests and shall be
subject to Section 18-607 of the Act and other applicable law.
ARTICLE VII
MANAGEMENT, LIABILITY OF MEMBERS,
RIGHTS TO OBTAIN INFORMATION
Section 7.1 Managing Member. Except as otherwise specifically provided
in this Agreement, the Managing Member shall have the authority to, and shall,
conduct the affairs of the Company.`
Section 7.2 Board of Directors. (a) The Company shall have a Board of
Managers which shall be designated as the Company's "Board of Directors" and
each member of the Board of Directors shall be designated as a "Director." The
Board of Directors shall have the authority set forth in this Agreement. The
Directors are not "managers" within the meaning of the Act. The initial members
of the Board of Directors shall be the Member or its designees and the
Independent Directors. Members of the Board of Directors may be appointed and
removed from time to time by the Managing Member, in its sole discretion,
provided, however, that as long as any Securitized Financing involving a SUBI
and involving the Company or a Partnership is outstanding, the Company shall
have at least two Independent Directors. The Board of Directors shall hold
meetings, at such times and places to be agreed upon by a majority of the Board
of Directors.
Section 7.3 Action by Directors. (a) Except as set forth in Subsection
(b) of this Section, any action required by this Agreement to be taken by the
Directors shall require the agreement of not less than a majority of the
Directors.
(b) Until all Securitized Financings involving a SUBI and
involving the Company or a Partnership are paid and satisfied in full, the
Company may take the following actions only with approval of the Member and
unanimous approvals of all members of the Board of Directors, including, without
limitation, the affirmative vote of the Independent Directors:
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(i) make an assignment for the benefit of creditors;
(ii) file a voluntary petition in bankruptcy;
(iii) file a petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation;
(iv) file an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against
the Company in any proceeding of the type described in subclauses (i)
through (iii) of this Subsection (b);
(v) seek, consent to, or acquiesce in the appointment
of a trustee, receiver or liquidator of the Company or of all or any
substantial part of the Company's properties;
(vi) voluntarily dissolve and wind up, or consolidate
or merge with or into another entity (except for the Merger) or sell
all or substantially all of the assets of the Company;
(vii) engage in any business activity not set forth
in Section 3.1 of this Agreement; and
(viii) take any action that would cause XXXX XX to:
(a) dissolve or liquidate, in whole or in part, or institute
proceedings to be adjudicated bankrupt or insolvent; (b) consent to the
institution of bankruptcy or insolvency proceedings against it; (c)
file a petition seeking, or consent to, reorganization or relief under
any applicable Federal or state law relating to bankruptcy; (d) consent
to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of it or a substantial part of
its property; (e) make a general assignment for the benefit of
creditors; (f) admit in writing its inability to pay debts generally as
they become; or (g) take any partnership action in furtherance of the
actions set forth in clauses (a) through (f) above, provided however
that the Company shall in no event consent to the institution of
bankruptcy or insolvency proceedings against XXXX XX so long as XXXX XX
is solvent.
(c) Until all Securitized Financings involving a SUBI and
involving the Company or a Partnership are paid and satisfied in full, the
Company may not amend, alter or repeal the definition of Independent Director,
Section 7.2, subsections (b), (c) or (d) of this Section 7.3 or Section 11.1
without the approval of the Member and the majority vote of the full Board of
Directors, including, without limitation, the votes of the Independent Directors
and such additional approvals, if any, as may be required under each Securitized
Financing with regard to amendment of documents or instruments with respect
thereto.
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Except as may be specifically required by applicable law, no
member of the Board of Directors shall be guilty of breaching any fiduciary duty
to any Member or any limited partner of XXXX XX by refusing to consent to any of
the listed actions in subsections (b) or (c) of this Section 7.3.
(d) In the event of the insolvency of the Company or of XXXX
XX and with regard to any action contemplated by subsection (b) or (c) above, no
Independent Director will owe a fiduciary duty to any Person who holds a
Membership Interest or any limited partner of XXXX XX (except as may be
specifically required by applicable law), but any fiduciary duty of such
Independent Director with regard to such action shall be owed instead to the
creditors of the Company or XXXX XX, as the case may be. No Independent Director
shall serve as a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company, any Affiliate of the Company, or a substantial
part of its respective property.
Section 7.4 Officers. (a) The Company shall have an officer designated
as the Company's President who shall be appointed from time to time by the
Managing Member. The President shall be the chief operating officer of the
Company. The President of the Company is hereby delegated the power, authority
and responsibility of the day-to-day management, administrative, financial and
implementive acts of the Company's business. The President of the Company shall
have the right and power to bind the Company and to make the final determination
on questions relative to the usual and customary daily business decisions,
affairs and acts of the Company. Other primary management functions of the
Company shall be assigned by the Managing Member.
(b) The Company shall also have officers designated as vice
presidents who shall be appointed from time to time by the Managing Member. The
vice presidents shall have such powers and duties as may from time to time be
assigned to them by the Managing Member or the president. At the request of the
president, or in the case of his absence or disability, the vice president
designated by the president (or in the absence of such designation, the vice
president designated by the Managing Member) shall perform all the duties of the
president and when so acting, shall have all the powers of the president.
(c) The Managing Member may appoint such other officers as it
may deem advisable from time to time. Each officer of the Company shall hold
office at the pleasure of the Managing Member, and the Managing Member may
remove any officer at any time, with or without cause. If appointed by the
Managing Member, the officers shall have the duties assigned to them by the
Managing Member.
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Section 7.5 Indemnification.
(a) General. Except as otherwise provided in this Section 7.5,
the Company shall indemnify the Member and any Director or officer and may
indemnify any employee or agent of the Company who was or is a party or is
threatened to be made a party to a threatened, pending, or completed action,
suit, or proceeding (whether civil, criminal, administrative, or investigative
and whether formal or informal) other than an action by or in the right of the
Company, where such Person is a party because such Person is or was a Member,
Director, officer, employee, or agent of the Company. Except as otherwise
provided in this Section 7.5, the Company shall indemnify its Member and
Directors against expenses, including, attorney fees, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by a
Director in connection with an action, suit or proceeding relating to acts or
omissions of that Director regarding the items set forth in Section 7.3(b) of
this Agreement.
(b) Permissive Indemnification. Except as otherwise provided
in this Section 7.5, the Company shall indemnify such Member, Director or
officer and may indemnify such employee or agent against expenses, including
attorneys fees, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with the action,
suit or proceeding. To the fullest extent permitted by law, the Company shall
indemnify such Member, Director or officer and may indemnify such employee or
agent if the Person acted in good faith and did not engage in willful misconduct
or gross negligence. With respect to a criminal action or proceeding, the Person
must have had no reasonable cause to believe such Person's misconduct was
unlawful. Unless ordered by a court, any indemnification permitted under this
Section 7.5(b) shall be made by the Company only as the Company authorizes in
the specific case after (i) determining that the indemnification is proper under
the circumstances because the person to be indemnified has met the applicable
standard of conduct and (ii) evaluating the reasonableness of the expenses and
of the amounts paid in settlement. This determination and evaluation shall be
made by a majority vote of the Members who are not parties or threatened to be
made parties to the action, suit or proceeding or, if there is only one Member,
by that Member. However, no indemnification shall be provided to any Member,
Director, officer, employee, or agent of the Company for or in connection with
(i) the receipt of a financial benefit to which the person is not entitled; (ii)
voting for or assenting to a distribution to Members in violation of this
Agreement or the Act; (iii) a knowing violation of law; or (iv) acts or
omissions of such Person constituting willful misconduct or gross negligence.
(c) Mandatory Indemnification. To the extent that a Member,
Director, officer, employee, or agent of the Company has been successful on the
merits or otherwise in defense of an action, suit, or proceeding described in
Section 7.5(a) or in defense of any claim, issue, or other matter in such
action, suit or proceeding, such person shall be indemnified against actual and
reasonable expenses, including reasonable attorney fees, incurred by such person
in connection with the action, suit, proceeding and any action, suit or
proceeding brought to enforce such mandatory indemnification.
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Section 7.6 Exculpation; Duties.
(a) No Member, Director or officer of the Company shall be
liable to the Company or any other Person who has an interest in the Company for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Member, Director or officer in good faith on behalf of the
Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Member, Director or officer by this Agreement,
except that a Member, Director or officer shall be liable for any such loss,
damage or claim incurred by reason of such Member's, Director's or officer's
willful misconduct or gross negligence.
(b) To the extent that at law or in equity, the Managing
Member or a Director, officer, employee or agent of the Company (each, an
"Indemnified Person") has duties (including fiduciary duties) and liabilities
relating thereto to the Company or to any Member, any such Indemnified Person
acting under this Agreement shall not be liable to the Company or to any Member
for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity, are agreed by
the Members to replace such other duties and liabilities of such Indemnified
Person.
(c) Whenever in this Agreement the Managing Member is
permitted or required to make a decision (i) in its "sole discretion", or
"discretion" or under a grant of similar authority or latitude, the Managing
Member shall be entitled to consider only such interests and factors as it
desires, including its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting the Company or
any other Member, or (ii) in its "good faith" or under another expressed
standard, the Managing Member shall act under such express standard and shall
not be subject to any other or different standards imposed by this Agreement or
any other agreement contemplated herein or by relevant provisions of law or in
equity or otherwise.
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ARTICLE VIII
DISSOLUTION, LIQUIDATION AND TERMINATION OF THE COMPANY
Section 8.1 Dissolution. The Company shall be dissolved and its
affairs wound up only upon (i) the written consent of all the Members and, as
long as any Securitized Financing involving a SUBI and involving the Company or
a Partnership is outstanding, all members of the Board of Directors, including,
without limitation, the Independent Directors and (ii) the entry of a decree of
judicial dissolution under Section 18-802 of the Act. The Company shall not be
dissolved as a result of there no longer being any Members of the Company if the
Company is continued in accordance with Section 18-801(a)(4) of the Act.
Notwithstanding anything in this Agreement to the contrary, the Company shall
not be dissolved as long as any Securitized Financing involving a SUBI and
involving the Company or a Partnership is outstanding.
Section 8.2 Liquidation and Termination. On dissolution of the
Company, the Managing Member shall appoint one or more Persons, which appointee
or appointees may include itself, to act as a liquidator. The liquidator shall
proceed diligently to wind up the affairs of the Company and make final
distributions as provided herein and in the Act. The costs of liquidation shall
be borne as a Company expense. Until final distribution, the liquidator shall
continue to operate the Company properties with all of the power and authority
of the Managing Member. A reasonable time shall be allowed for the orderly
liquidation of the assets of the Company and the discharge of liabilities to
creditors so as to enable the liquidator to minimize any losses resulting from
liquidation. The liquidator, as promptly as possible after dissolution and again
after final liquidation, shall cause a proper accounting to be made by a
nationally recognized firm of certified public accountants of the Company's
assets, liabilities, and operations through the last day of the calendar month
in which the dissolution occurs or the final liquidation is completed, as
applicable, and shall apply the proceeds of liquidation as set forth in the
remaining sections of this Article VIII.
Section 8.3 Payment of Debts. The assets shall first be applied to the
satisfaction of the liabilities of the Company (including any loans or advances
that may have been made by Members to the Company and the expenses of
liquidation).
Section 8.4 Remaining Distribution. The remaining assets shall then be
distributed to the Members in accordance with the Members' positive capital
account balances.
Section 8.5 Reserve. Notwithstanding anything to the contrary in
Section 8.4, the liquidator may retain such amount as it deems necessary as a
reserve for any contingent, conditional or unmatured liabilities or obligations
of the Company, which reserve, after the passage of a reasonable period of time
as determined by the liquidator, shall be distributed in accordance with this
Article VIII.
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Section 8.6 Final Accounting. Each of the Members shall be furnished
with a statement prepared by the Company's certified public accountants, which
shall set forth the assets and liabilities of the Company as of the date of the
complete liquidation. Upon compliance by the liquidator with the foregoing
distribution plan, the liquidator shall execute and cause to be filed a
Certificate of Cancellation and any and all other documents necessary with
respect to termination and cancellation of the Company under the Act. The
existence of the Company as a separate legal entity shall continue until the
cancellation of its Certificate of Formation.
ARTICLE IX
AMENDMENTS
Section 9.1 Authority to Amend. Subject to Section 7.3, this Agreement
may only be amended with approval of the Managing Member and the majority vote
of the members of the full Board of Directors and such additional approvals, if
any, as may be required under each Securitized Financing involving a SUBI and
involving the Company or a Partnership with regard to amendment of documents or
instruments with respect thereto. The Managing Member shall provide prior
written notice of any proposed amendment to each nationally recognized
statistical rating agency then rating any class of security issued in any
Securitized Financing involving a SUBI and involving the Company or a
Partnership, but only if such rating initially was provided at the request of
the Company, the Partnership or an affiliate thereof.
ARTICLE X
POWER OF ATTORNEY
Section 10.1 Power. Each member irrevocably constitutes and appoints
the Managing Member as his true and lawful attorney in his name, place and xxxxx
to make, execute, swear to, acknowledge, deliver and file:
(a) Any certificates or other instruments which may be
required to be filed by the Company under the laws of the State of Delaware or
of any other state or jurisdiction in which the Managing Member shall deem it
advisable;
(b) Any documents, certificates or other instruments,
including but not limited to, any and all amendments and modifications of this
Agreement or of the instruments described in Subsection 10.1(a) which may be
required or deemed desirable by the Managing Member to effectuate the provisions
of any part of this Agreement, and, by way of extension and not in limitation,
to do all such other things as shall be necessary to continue and to carry on
the business of the Company; and
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(c) All documents, certificates or other instruments which may
be required to effectuate the dissolution and termination of the Company, to the
extent such dissolution and termination is authorized hereby. The power of
attorney granted hereby shall not constitute a waiver of, or be used to avoid,
the rights of the Members to approve certain amendments to this Agreement
pursuant to Subsection 9.1 or be used in any other manner inconsistent with the
status of the Company as a limited liability company or inconsistent with the
provisions of this Agreement.
Section 10.2 Survival of Power. It is expressly intended by each
Member that the foregoing power of attorney is coupled with an interest, is
irrevocable and shall survive the death, retirement or adjudication of
incompetency of such Member. The foregoing power of attorney shall survive the
delivery of an assignment by the Member of its entire interest in the Company,
except that where an assignee of such entire interest has become a Substitute
Member, then the foregoing power of attorney of the assignor Member shall
survive the delivery of such assignment for the sole purpose of enabling the
Managing Member to execute, acknowledge and file any and all instruments
necessary to effectuate such substitution.
ARTICLE XI
SEPARATE LEGAL ENTITY
Section 11.1 Separate Legal Entity. The Company shall not commingle
any of its funds or other assets with the funds or assets of any other entity or
person. The Company shall maintain its financial and accounting books and
records separate from those of any other entity or person. The Company shall pay
from its assets all obligations and indebtedness of any kind incurred by the
Company, and shall not pay from its assets any obligations or indebtedness of
any other entity or person, other than expenses, obligations or indebtedness of
the Origination Trust, any Securitization Trust, any trustee of any of the
foregoing with respect thereto, and any Partnership.
ARTICLE XII
MISCELLANEOUS
Section 12.1 Method of Giving Consent. Any consent of the Member
required by this Agreement may be given by a written consent, given by the
consenting Member and received by the Person soliciting such consent. Any
consent of a member of the Board of Director's required by this Agreement may be
given by a written consent given by the consenting member of the Board of
Directors and received by the Person soliciting such consent.
Section 12.2 Governing Law. This Agreement and the rights and duties
of the Members shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to principles of conflict of laws.
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Section 12.3 Agreement for Further Execution. At any time or times
upon the request of the Managing Member, each Member agrees to sign and swear to
any certificate, any amendment to or cancellation of such certificate,
acknowledge similar certificates or affidavits or certificates of fictitious
firm name or the like (and any amendments or cancellations thereof) required by
the laws of the State of Delaware, or any other jurisdiction in which the
Company does, or proposes to do, business. This Section 12.3 shall not prejudice
or affect the rights of the Members to approve amendments to this Agreement
pursuant to Section 9.1.
Section 12.4 Entire Agreement. This Agreement contains the entire
understanding between the parties and supersedes any prior understandings or
agreements between them respecting the within subject matter. There are no
representations, agreements, arrangements or understandings, oral or written,
between the parties hereto relating to the subject matter of this Agreement
which are not fully expressed.
Section 12.5. Severability. This Agreement is intended to be performed
in accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations of the jurisdictions in which the Company does
business. If any provision of this Agreement or the application thereof to any
Person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected thereby, but
rather shall be enforced to the greatest extent permitted by law.
Section 12.6. Notices. Notices to Members or to the Company shall be
deemed to have been given when personally delivered or mailed, by prepaid
registered or certified mail, addressed as set forth in this Agreement, unless a
notice of change of address has previously been given in writing by the
addressee to the addressor, in which case such notice shall be addressed to the
address set forth in such notice of change of address.
Section 12.7 Counterparts. This Agreement may be executed in multiple
counterparts, each one of which shall constitute an original executed copy of
this Agreement.
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Section 12.8 Pronouns. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the person or persons may require.
Section 12.9. Titles and Captions. All titles and captions are for
convenience only, do not form a substantive part of this Agreement, and shall
not restrict or enlarge any substantive provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have hereunto set their hands as of
the day and year first above written.
WORLD OMNI FINANCIAL CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assitant Treasurer
WORLD OMNI LEASE SECURITIZATION LLC
By: World Omni Financial Corp.,
its sole member
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Treasurer
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