Exhibit 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
TRIAD FINANCIAL SPECIAL PURPOSE LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
BY
TRIAD FINANCIAL CORPORATION,
AS MEMBER
DATED AS OF JULY 15, 2002
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS........................................................... 1
Section 1.1 Definitions.......................................... 1
ARTICLE II ORGANIZATION......................................................... 4
Section 2.1 Name, Location of Office............................. 4
Section 2.2 Registered Office in Delaware........................ 4
Section 2.3 Registered Agent..................................... 4
Section 2.4 Purposes and Powers.................................. 4
Section 2.5 Conduct of Business.................................. 5
Section 2.6 Tax Reporting and Characterization................... 9
Section 2.7 Term................................................. 9
ARTICLE III THE MEMBER.......................................................... 9
Section 3.1 The Member........................................... 9
Section 3.2 Powers of Member..................................... 9
Section 3.3 Limited Liability of the Member...................... 10
Section 3.4 Special Member....................................... 10
ARTICLE IV MANAGEMENT OF THE COMPANY; THE BOARD OF MANAGERS; OFFICERS........... 10
Section 4.1 General Management of the Company.................... 10
Section 4.2 Appointment and Term................................. 11
Section 4.3 Number: Independent Manager.......................... 11
Section 4.4 Power to Bind Company................................ 14
Section 4.5 Restrictions on the Power of the Managers............ 14
Section 4.6 Duties and Obligations of the Managers............... 14
Section 4.7 Resignation.......................................... 15
Section 4.8 Removal of Managers.................................. 15
Section 4.9 Filling of Vacancies................................. 15
Section 4.10 Managers' Compensation............................... 15
Section 4.11 Officers............................................. 15
Section 4.12 Duties of Managers and Officers...................... 16
ARTICLE V CAPITAL STRUCTURE AND CONTRIBUTIONS,.................................. 16
Section 5.1 Capital Structure.................................... 16
Section 5.2 Capital Contributions................................ 16
ARTICLE VI PROFITS AND LOSSES; DISTRIBUTIONS.................................... 16
Section 6.1 Profits and Losses................................... 16
Section 6.2 Distributions........................................ 16
ARTICLE VII EXCULPATION; LIABILITIES; INDEMNIFICATION........................... 16
Section 7.1 Exculpation.......................................... 16
Section 7.2 Liabilities: Indemnification......................... 17
Section 7.3 Amendments; Indemnification.......................... 18
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ARTICLE VIII MISCELLANEOUS...................................................... 19
Section 8.1 Dissolution of the Company........................... 19
Section 8.2 Amendments........................................... 19
Section 8.3 Assignments; Additional Members...................... 19
Section 8.4 Severability......................................... 20
Section 8.5 Successors and Assigns............................... 20
Section 8.6 Limited Liability Company............................ 20
Section 8.7 Waiver of Partition; Nature of Interest.............. 20
Section 8.8 Benefits of Agreement No Third-Party Rights.......... 21
Section 8.9 Binding: Agreement................................... 21
Section 8.10 Headings............................................. 21
Section 8.11 Governing Law........................................ 21
Section 8.12 Counterparts......................................... 21
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LIMITED LIABILITY COMPANY AGREEMENT
OF
TRIAD FINANCIAL SPECIAL PURPOSE LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
THIS LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of TRIAD
FINANCIAL SPECIAL PURPOSE LLC, a Delaware limited liability company (the
"Company"), dated as of July 15, 2002, by TRIAD FINANCIAL CORPORATION a
California corporation, as the sole member of the Company (the "Member").
RECITALS
A. The Member formed the Company under the name Triad Financial Special
Purpose LLC as a limited liability company under the laws of Delaware pursuant
to a Certificate of Formation dated as of July 12, 2002 (the "Certificate"), and
filed in the office of the Secretary of State on July 15, 2002, in accordance
with the provisions of the Delaware Limited Liability Company Act, 6 Del. C.
Sections 18-101 et seq. (as amended and in effect from time to time, and any
successor statute, the "Act").
B. The Member agrees as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement, capitalized
terms have the meanings assigned to them herein. All references herein to "this
Agreement" are to this Limited Liability Company Agreement, and all references
herein to Articles, Sections and subsections are to Articles, Sections and
subsections of this Agreement unless otherwise specified.
"Act" has the meaning set forth in the Recitals to this Agreement.
"Affiliate" means, in respect of any specified Person, any other Person
that directly or indirectly controls, is controlled by or is under direct or
indirect common control with the specified Person. For purposes of this
Agreement, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control"), as used with respect to any Person,
means the possession directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided, however,
that the term "Affiliate" does not include any bankruptcy-remote, single-purpose
entity.
"Agreement" has the meaning set forth in the preamble to this Agreement.
"Basic Documents" means this Agreement, any Transfer Agreement, Indenture,
trust agreement, receivables purchase agreement, administration agreement, note
depositary agreement and other agreements relating to the issuance of
Securities, including the other
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documents and certificates delivered in connection with such agreements. as such
agreements may be amended from time to time.
"Board of Managers" has the meaning set forth in Section 4.1.
"Certificate" has the meaning set forth in Recital A to this Agreement:
"Certificates" has the meaning set forth in Section 2.4(a)(vi).
"Code" means the Internal Revenue Code of 1986, as amended (or any
successor law).
"Company" has the meaning set forth in the preamble to this Agreement.
"Company Assets" means, as of any date of determination, all right, title
and interest of the Company in, to and under the Designated Assets and any
related property and all other property acquired by the Company from time to
time as of such date of determination and all proceeds thereof.
"Control" has the meaning set forth in the definition of the term
"Affiliate" above.
"Damages" has the meaning set forth in Section 7.2(a).
"Designated Assets" has the meaning specified in Section 2.4(a)(iii).
"Fiscal Year" means unless the Member at any. time determines otherwise
pursuant to the requirements of the Code, for each year, the period commencing
on January 1 and ending on December 31.
"Indemnified Party" has the meaning set forth in Section 7.2(a).
"Indenture" has the meaning set forth in Section 2.4(a)(viii).
"Independent Manager" has the meaning set forth in Section 4.3(b).
"Insolvency Event" means, with respect to any Person, (i) the making of a
general assignment for the benefit of creditors, (ii) the filing of a voluntary
petition in bankruptcy, (iii) being adjudged a bankrupt or insolvent, or having
had entered against such Person an order for relief in any bankruptcy or
,insolvency proceeding, (iv) the filing by such Person of a petition or answer
seeking reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation, (v) the
filing by such Person of an answer other pleading admitting or failing to
contest the material allegations of a petition filed against such Person in any
proceeding specified in clause (vii) below, (vi) seeking, consenting to or
acquiescing in the appointment of a trustee, receiver or liquidator of such
Person or of all or any substantial part of the assets of such Person or (vii)
the failure to obtain dismissal within 60 days or the commencement of any
proceeding against such Person seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute, law
or regulation, or the entry of any order appointing a trustee, liquidator or
receiver of such Person or of such Person's assets or any substantial portion
thereof. The foregoing
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definition of "Insolvency Event" supersedes and replaces the definition of
"Bankruptcy" set forth in Sections 18-101(1) and 18-304 of the Act.
"Manager" has the meaning set forth in Section 4.2.
"Member" means Triad Financial Corporation and its successors and
permitted assigns, as herein provided, including a Substitute Member, each in
its capacity as a member of the Company", provided, however, that the term
"Member" does not include a Special Member.
"Notes" has the meaning set forth in Section 2.4(a)(vi).
"Percentage Interest" has the meaning set forth in Section 5.1.
"Permitted Transaction" has the meaning set forth in Section 2.4(a)(ix).
"Person" means a legal person, including any individual, corporation,
estate, partnership (limited or general), joint venture, association, joint
stock company, limited liability company, limited liability partnership, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity of whatever nature.
"Rating Agency" means, with respect to any outstanding Securities, each
statistical rating agency selected by the Company to rate such Securities.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency has been given at least ten days' prior notice thereof and that
each of the Rating Agencies has notified the Company and the servicer and the
trustees under the related Transfer and Servicing Agreements and Indentures in
writing that such action will not result in a reduction or withdrawal of the
rating of any outstanding Securities with respect to which it is a Rating
Agency.
"Receivables" has the meaning set forth in Section 2.4(a)(i).
"Receivables-backed Interests" has the meaning set forth in Section
2.4(a)(iii).
"Securities" has the meaning set forth in Section 2.4(a)(vi).
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Special Member" means, upon such Person's admission to the Company as a
member of the Company pursuant to Section 3.4, a Person acting as an Independent
Manager, in such Person's capacity as a member of the Company. A Special Member
shall have only the rights and duties expressly set forth in this Agreement.
"Substitute Member" means a Person appointed as a substitute member of the
Company pursuant to Section 3.4, in such Person's capacity as a member of the
Company.
"Transfer and Servicing Agreements" has the meaning set forth in Section
2.4(a)(v).
"Triad" means Triad Financial Corporation.
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"Trusts" has the meaning set forth in Section 2.4(a)(v).
ARTICLE II
ORGANIZATION
Section 2.1 Name, Location of Office. The business of the Company will be
carried on under the name "Triad Financial Special Purpose LLC" with such
variations and changes as the Board of Managers determines or deems necessary to
comply with requirements of the jurisdictions in which the Company's operations
are conducted. The principal place of business of the Company is 0000 Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxxxx or such other place or places in
the State of California as the Board of Managers may from time to time
designate.
Section 2.2 Registered Office in Delaware. The registered office of the
Company in the State of Delaware is located at 0000 Xxxxxx Xxxxxx, xx xxx Xxxx
xx Xxxxxxxxxx, Xxxxxx of New Castle.
Section 2.3 Registered Agent. The name and address of the registered agent
of the Company for service of process on the Company in the State of Delaware is
The Corporation Trust Company, 0000 Xxxxxx Xxxxxx in the City of Wilmington,
County of New Castle.
Section 2.4 Purposes and Powers. (a) The limited purposes for which the
Company is organized are to engage in the following activities, all in
accordance with the terms of this Agreement:
(i) to acquire from time to time all right, title and interest
in and to receivables or leases arising out of or relating to the
sale or lease of new or used motor vehicles and farm or industrial
equipment, including automobiles, light and heavy duty trucks,
tractors and recreational vehicles, monies due thereunder, security
interests in the motor vehicles or equipment financed thereby,
proceeds from claims on insurance policies related thereto, and
related rights (collectively, "Receivables");
(ii) to acquire, own, hold, service, sell, assign, pledge and
otherwise deal with the Receivables, collateral securing the
Receivables, related insurance policies, agreements with motor
vehicles or equipment dealers or lessors or other originators or
servicers of Receivables and any proceeds or further rights
associated with any of the foregoing;
(iii) to acquire from time to time all right, title and
interest in and to participations, certificates or notes or other
indebtedness representing beneficial ownership interests in, or
secured by, Receivables (collectively, "Receivables-backed
Interests" and, together with the Receivables, the "Designated
Assets");
(iv) to acquire, own, hold, service, sell, assign, pledge and
otherwise deal with the Receivables-backed Interests, assets backing
and/or collateral securing the Receivables-backed Interests, related
agreements pursuant to which
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the Receivables-backed Interests are issued or otherwise relating to
rights relating thereto, and any proceeds or further rights
associated with any of the foregoing;
(v) to transfer Designated Assets to trusts (the "Trusts")
pursuant to one or more transfer and servicing agreements, pooling
and servicing agreements, sale and servicing agreements or other
agreements (the "Transfer and Servicing Agreements") to be entered
into by and among, among others, the Company, each trustee and/or
other transferee named therein and any entity acting as servicer of
the Designated Assets;
(vi) to authorize, issue, sell and deliver one or more series
or classes of bonds, notes or other evidences of indebtedness (the
"Notes") or certificate (the "Certificates"); or other securities
(collectively, the "Securities") only if issued by or through the
Trusts and secured or collateralized by the Designated Assets;
provided that the Company will have no liability under any such
Securities except to the extent of the Receivables or
Receivables-backed Interests securing or collateralizing such
Securities; and provided, further, that each series of Securities
issued by a Trust will bear its own trustee fees and servicer fees;
(vii) to hold and enjoy all of the rights and privileges of
any Certificates issued by the Trusts to the Company and to hold and
enjoy all of the rights and privileges of any class of Notes,
including any class of Certificates or Notes that may be
subordinated to any other class of Certificates or Notes;
(viii) to perform its obligations under the Transfer and
Servicing Agreements and any indenture or other agreement (each an
"Indenture") pursuant to which any Securities are issued; and
(ix) to engage in any activity and to exercise any powers
permitted to limited liability companies under the laws of the State
of Delaware that are related or incidental to the foregoing and
necessary, convenient or advisable to accomplish the foregoing (such
business, activities and transactions specified in this Section
2.4(a) collectively referred to in this Agreement as "Permitted
Transactions").
(b) The Company, by or through any Manager or any officer of the
Company on behalf of the Company, may enter into and perform the Basic Documents
and all documents, agreements, certificates or financing statements contemplated
thereby or related thereto, all without any further act, vote or approval of any
other Person notwithstanding any other provision of this Agreement, the Act or
applicable law, rule or regulation. The foregoing authorization is not to be
deemed a restriction on the powers of any Manager or any officer of the Company
to enter into other agreements on behalf of the Company.
Section 2.5 Conduct of Business.
(a) Notwithstanding any other provision of this Agreement and any
provision of law that otherwise so empowers the Company, the Company may not,
without the prior
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written confirmation of each applicable Rating Agency that the Rating Agency
Condition has been satisfied with respect to such action, do any of the
following:
(i) engage in any business or activity other than a Permitted
Transaction;
(ii) create, incur or assume any indebtedness or issue any
security or sell or transfer any receivables or other designated
assets (including the Designated Assets) to a Trust or other Person
which issues a security in respect of any such receivables or other
designated assets unless any such indebtedness or security (A) has
no recourse to any assets of the Company other than the assets to
which such indebtedness or security relates and (B) does not
constitute a claim against the Company if cash flow from the assets
securing or collateralizing such indebtedness or security is
insufficient to repay the debt, and in the event such indebtedness
or security is deemed to constitute a claim against the Company
generally or against other assets securing or collateralizing any
other indebtedness or security of the Company, such claim shall be
subordinate to the claims of such other indebtedness or security to
which those assets relate;
(iii) create, incur or assume any indebtedness or issue any
security or sell or transfer any receivables or other designated
assets (including the Designated Assets) to a Trust or other Person
which issues a security in respect of any such receivables or other
designated assets unless the holders thereof (A) agree or are deemed
to have agreed that the debt, liabilities and obligations incurred,
contracted for or otherwise existing with respect to such
indebtedness will be enforceable against the assets securing or
collateralizing such indebtedness or security only, and not against
the assets of the Company generally or against any other assets
security or collateralizing any other indebtedness or security of
the Company, and (B) agree or are deemed to have agreed that to the
extent such debt holders are deemed to have any interest in the
assets of the Company generally or any other assets collateralizing
or securing any other indebtedness or security of the Company, their
interest in those assets will be subordinate to claims or rights of
each other debt holders to those assets and, further, that such
agreement will constitute a subordination agreement for purposes of
Section 510(a) of the Bankruptcy Code;
(iv) become or remain liable, directly or contingently, in
connection with any indebtedness or other liability of any other
Person, whether by guarantee, endorsement (other than endorsements
of negotiable instruments for deposit or collection in the 'ordinary
course of business), agreement to purchase, agreement to supply or
advance funds, or otherwise, except in connection with Permitted
Transactions;
(v) make or suffer to exist any loans or advances to, or
extend any credit to, or make any investments (by way of transfer of
property, contributions to capital, purchase of stock or securities
or evidences of indebtedness, acquisition of the business or assets,
or otherwise) in any Affiliate other than in connection
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with Permitted Transactions; provided, however, that the Company is not
prohibited under this clause (a)(v) from causing a distribution of cash to its
Member;
(vi) enter into any transaction or merger or consolidation with or into
any other entity, or convey its properties and assets substantially as an
entirety to any entity, other than with respect to a Permitted Transaction,
unless (A) the entity (if other than the Company) formed as a result of or
surviving such consolidation or merger, or which acquires the properties and
assets of the Company is (i) organized and existing under the laws of the State
of Delaware, (ii) expressly assumes all of the Company's obligations under the
Basic Documents and (iii) is governed under a charter document containing
provisions substantially identical to the provisions of Sections 2.4 and 2.5 of
this Agreement; (B) the Rating Agencies and the trustees under the Basic
Documents have received at least 10 days' prior notice of any such merger,
consolidation or sale of assets; (C) such merger, consolidation or sale of
assets will not conflict with any provisions of the Certificate of the Company;
and (D) immediately after giving effect to such merger, consolidation or sale of
assets, no default or event of default by or relating to the Company has
occurred and is continuing under any material agreement to which the Company is
a party;
(vii) become party to, or permit any of its properties to be bound by, any
indenture, mortgage, instrument, contract, agreement, lease or other
undertaking, with the exception of the Basic Documents or any other documents
relating to a Permitted Transaction; and
(viii) amend, modify, alter, change or repeal any provision of Section 2.4
or Section 2.5 of this Agreement; provided, however, the Company reserves the
right to amend, alter, change or repeal any provision contained in its
Certificate or this Agreement in a manner now or hereafter prescribed by the
Act, and all rights conferred upon the Member herein are granted subject to this
reservation.
(b) The Company must at all times:
(i) maintain its existence as a limited liability company and remain in
good standing under the laws of the State of Delaware;
(ii) observe all limited liability company' procedures required by this
Agreement and such others, if any, as may be from time to time required by the
Act;
(iii) ensure that (x) the business and affairs of the Company are at all
times managed by or under the direction of the Board of Managers, (y) the Board
of Managers has duly authorized all actions requiring such authorization and,
(z) when required by law or by this Agreement, the Company has obtained the
proper authorization for action from its Member;
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(iv) maintain the Company's books, financial statements accounting records
and other limited liability company documents and records separate from those of
the Member, any Affiliate thereof or any other entity;
(v) not commingle the Company Assets with those of the Member or any
Affiliate thereof, and not hold itself out as being liable for the debts of
another;
(vi) maintain its bank accounts, books of account and payroll (if any)
separate from those of its Affiliates, the Member or any of the Member's
Affiliates or any other Person; and ensure that its funds and other assets are
at all times readily distinguishable from the funds and other assets of its
Affiliates, the Member and any of the Member's Affiliates or any other Person;
(vii) act solely in its limited liability company name and through its own
managers and agents so as not to mislead others as to its identity or the
identity of any Affiliate and correct any known misunderstanding regarding its
separate identity, and conduct all oral and written Communications of the
Company, including without limitation letters, invoices, contracts, statements
and applications solely in the name of the Company;
(viii) separately manage its liabilities from those of the Member or any
Affiliate thereof and pay its own liabilities, including all administrative
expenses, from its own separate assets, provided that the Member or any
Affiliate thereof may pay certain of the organizational costs of the Company,
and the Company will reimburse the Member, or any such Affiliate for its
allocable portion of shared expenses paid by the Member or such Affiliate; and
provided, further, that the Member may pay fees and expenses and indemnify
parties pursuant to Section 2.5(d);
(ix) at all times maintain an arm's-length relationship with any
Affiliates;
(x) not create, incur or assume any indebtedness other than the Securities
and other obligations permitted pursuant to the Basic Documents unless such
indebtedness is rated by each Rating Agency then rating the outstanding
Securities at the request of the Company, or unless such Rating Agencies have
confirmed in writing that the issuance of such indebtedness will not adversely
affect the then current rating of the outstanding Securities;
(xi) not create, incur or assume any indebtedness or issue any security or
sell or transfer, any receivables or other designated assets (including the
Designated Assets) to a Trust or other Person which issues a security in respect
of any such receivables or other designated assets unless the debt holders
thereof agree or are deemed to have agreed to not file or join in filing any
bankruptcy petition against the Company prior to the end of the period that is
one year and one day after all of the debt of the Company and all of the debt
issued through the
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Trusts is paid in full and agree or are deemed to have agreed that
they will not cooperate with or encourage others to file a
bankruptcy petition against the Company during the same period;
(xii) operate in such a manner that it would not be
substantively consolidated for purposes of applicable bankruptcy
laws with any other entity;
(xiii) have a sufficient number of Managers and any other
authorized agents to manage its operations; and
(xiv) maintain adequate capital in light of its contemplated,
business operations.
(c) The Company will abide by all limited liability company
formalities, including the maintenance of current minute books, and cause its
financial statements to be prepared in accordance with generally accepted
accounting principles in a manner that indicates the separate existence of the
Company and its assets and liabilities. The Company will not assume the
liabilities of the Member or any Affiliate thereof and will not guarantee the
liabilities of the Member or any Affiliate thereof. The Board of Managers of the
Company will make decisions with respect to the business and operations of the
Company independent of, and not dictated by, the Member or any Affiliate
thereof.
(d) Notwithstanding any provision in this Agreement to the
contrary, the Member in its own capacity (i) may pay fees and expenses of, and
indemnify, trustees relating to the Trusts and (ii) may indemnify any
underwriter, placement agent, initial purchaser for resale or other Person
performing similar functions in connection with the issuance of any Securities.
Section 2.6 Tax Reporting and Characterization. It is the Member's express
intention that the Company not constitute a separate entity for purposes of
federal income tax or state or local income, franchise or other taxes.
Section 2.7 Term. Unless terminated in accordance with this Agreement and
the Act, the Company will have perpetual existence.
ARTICLE III
THE MEMBER
Section 3.1 The Member. The name and address of the Member is as follows:
Triad Financial Corporation
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Section 3.2 Powers of Member. The Member (acting in its capacity as such)
has the authority to take all actions specifically enumerated in the Certificate
or this Agreement.
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Section 3.3 Limited Liability of the Member. Unless otherwise expressly
provided in any Basic Document, all debts, obligations and liabilities of the
Company, whether arising in contract, tort or otherwise, will be solely the
debts, obligations and liabilities of the Company, and the Member will not be
obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a member of the Company.
Section 3.4 Special Member. Upon the occurrence of any event that causes
the Member to cease to be a member of the Company (other than (i) upon an
assignment by the Member of all of its Percentage Interest and the admission of
the assignee pursuant to Section 8.3, or (ii) the resignation of the Member and
the admission of an additional member of the Company pursuant to Section 8.3),
each individual acting as an Independent Manager pursuant to Section 4.3 will,
without any action of any Person and simultaneously with the Member ceasing to
be a member of the Company, automatically be admitted to the Company as a
Special Member and will continue the Company without dissolution. No Special
Member may resign from the Company or transfer its rights as a Special Member;
provided, however, that such Special Member will automatically cease to be a
member of the Company upon the admission to the Company of a Substitute Member;
and provided, further, that such admission of a Substitute Member will not, in
and of itself cause a Special Member to cease to be an Independent Manager.
Notwithstanding any provision in this Agreement to the contrary, upon the
occurrence of any event that causes the last remaining Member to cease to be a
member of the Company, the personal representative of such Member is hereby
authorized to, and will, within 90 days after the occurrence of the event that
terminated the continued membership of such Member in the Company, appoint a
Person as a substitute member of the Company (the "Substitute Member"). Each
Special Member will be a member of the Company that has no interest in the
profits, losses and capital of the Company and has no right to receive any
distributions of Company Assets. Pursuant to Section 18-301 of the Act, a
Special Member is not required to make any capital contributions to the Company
and will not receive a limited liability company interest in the Company. A
Special Member, in its capacity as a Special Member, may not bind the Company.
Except as required by any mandatory provision of the Act, a Special Member, in
its capacity as a Special Member, has no right to vote on, approve or otherwise
consent to any action by, Or matter relating to, the Company, including, without
limitation, the merger, consolidation or conversion of the Company. In order to
implement the admission to the Company of each Special Member, the individual
acting as an Independent Manager pursuant to Section 4.3 is to execute a
counterpart to this Agreement. Prior to his or her admission to the Company as a
Special Member, the individual acting as an Independent Manager pursuant to
Section 4.3 will not be a member of the Company.
ARTICLE IV
MANAGEMENT OF THE COMPANY; THE BOARD OF MANAGERS; OFFICERS
Section 4.1 General Management of the Company. Subject to such matters
which are expressly reserved hereunder or under the Act to the Member for
decision, the business, properties and affairs of the Company will be managed by
a board of managers (the "Board of Managers") which, without limiting the
generality of the foregoing, has the power to appoint officers of the Company,
to appoint and direct, agents, to grant general or limited authority to
officers, employees and agents of the Company, and to make, execute and deliver
contracts and other instruments and documents in the name and on behalf of the
Company.
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Section 4.2 Appointment and Term. The Member is entitled to appoint from
time to time individuals to serve as the managers (each, a "Manager") on the
Board of Managers. Managers serve until their respective successors are
appointed by the Member or until their earlier death, disability, resignation,
retirement or removal. Each Manager is hereby designated a "manager" of the
Company within the meaning of Section 18-101(10) of the Act.
Section 4.3 Number; Independent Manager.
(a) The number of Managers which constitutes the whole Board of
Managers is not less than three nor more than five. The number may be increased
or reduced from time to time by amendment of this Agreement. The initial Board
of Managers will consist of the following three individuals, one of whom is an
Independent Manager:
Xxxxx X. Xxxxx
Xxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxx, as Independent Manager
(b) The Board of Managers of the Company must include at least one
Manager who is all Independent Manager. So long as any Securities are
outstanding, this Section 4.3(b) may not be amended without the affirmative vote
of 100% of the members of the Board of Managers (including the Independent
Manager). When voting on matters subject to the vote of the Board of Managers,
including those matters specified in Section 4.3(c), notwithstanding that the
Company is not then insolvent, the Independent Manager is to take into account
the interests of the creditors of the Company and the Trusts as well as the
interests of the Company. Except as provided in this Section 4.3(b) or Section
4.3(c), any action permitted or required to be taken by the Board of Managers
may be taken by a simple majority of the members of the Board of Managers
excluding the Independent Manager; provided, however, that the Board of Managers
may delegate the day-to-day management of the Company to a Person that may or
may not be a Manager. The actions set forth in this Section 4.3(b) and Section
4.3(c) are the only actions by the Board of Managers that require the
affirmative vote of 100% of the members of the Board of Managers including the
Independent Manager.
For purposes of this Section 4.3 (b) the following terms have the meanings
set forth below:
(i) An "Independent Manager" is an individual who: (A) is
not and has not been employed by Triad or any of its Affiliates as a
director, officer or employee within the five years immediately
prior to such individual's appointment as an Independent Manager
(other than his or her capacity as an Independent Manager or other
similar capacity); (B) is not and has not been affiliated with a
significant customer or supplier of Triad or any of its Affiliates
within the five years immediately prior to such individual's
appointment as an Independent Manager (other than his or her
capacity as an independent Manager or other similar capacity); (C)
is not, and was not within the five years immediately prior to such
individual's appointment as an Independent Manager (other than his
or her capacity as an Independent Manager or other similar
capacity), affiliated with a
11
company of which Triad or any of its Affiliates is 'a significant customer or
supplier; (D) does not have, and has not within the five years immediately prior
to such individual's appointment as an Independent Manager (other than his or
her capacity as an Independent Manager or other similar capacity), had
significant personal services contract(s) with Triad or any of its Affiliates;
(E) is not; and was not within the five years immediately prior to such
individual's appointment as an Independent Manager, affiliated with a tax-exempt
entity that receives significant contributions from Triad or any of its
Affiliates; (F) is not the beneficial owner at the time of such individual's
appointment as an Independent Manager, or at any time thereafter while serving
as an Independent Manager, of such number of shares of any class of common stock
of Triad or any Affiliate the value of which constitutes more than 3% of such
individual's net worth; (G) is not a spouse, parent, sibling or child of any
individual described by (A) through (F); and (H) is not, and was not within the
five years prior to such appointment as an Independent Manager, a major creditor
of Triad or any of its Affiliates.
(ii) A "significant customer of Triad or any of its Affiliates" means a
customer from which Triad and any of its Affiliates collectively in the last
fiscal year of Triad received payments in consideration for the products and
services of Triad and its Affiliates which are in excess of 1 % of the
consolidated gross revenues of Triad and its Affiliates during such fiscal year.
(iii) A "significant supplier of Triad or any of its Affiliates" means a
supplier to which Triad and any of its Affiliates collectively in the last
fiscal year of Triad made payments in consideration for the supplier's products
and services in excess of 3% of the consolidated gross revenues of Triad and its
Affiliates during such fiscal year.
(iv) Triad or any of its Affiliates will be deemed a "significant
customer" of a company if Triad and any of its Affiliates collectively were the
direct source during such company's last fiscal year in excess of 3% of the
gross revenues which such company received from the sale of its products and
services during such fiscal year.
(v) Triad or any of its Affiliates will be deemed a "significant supplier"
of a company if Triad and any of its Affiliates collectively received in such
company's fiscal year payments from such company in excess of 3% of the gross
revenues which such company received during such fiscal year for the sale of its
products and services.
(vi) An individual will be deemed to have "significant personal services
contracts with Triad or any of its Affiliates" if the fees and other
compensation received by the individual pursuant to personal services
contract(s) with Triad and any of its Affiliates exceeded or would exceed 3% of
his or her gross revenues during the last calendar year.
12
(vii) A tax-exempt entity will be deemed to receive
"significant contributions from Triad or any of its Affiliates" if
such tax-exempt entity received during its last fiscal year, or
expects to receive during its current fiscal year, contributions
from Triad or its Affiliates in excess of the lesser of (i) 3% of
the consolidated gross revenues of Triad and its Affiliates during
such fiscal year and (ii) 1% of the contributions received by the
tax-exempt entity during such fiscal year.
(viii) A Person will be deemed to be a "major creditor of
Triad or any of its Affiliates" if Triad or such Affiliate owes to
such Person outstanding indebtedness for borrowed money in a sum
exceeding more than 5% of Triad's total consolidated assets.
(c) Notwithstanding any other provision of this Agreement and any
provision of law that otherwise so empowers the Company, the Member, the Board
of Managers or any Person on behalf of the Company, none of the Company, the
Member, the Board of Managers or any Person on behalf of the Company may,
without the affirmative vote of 100% of the members of the Board of Managers
(including the Independent Manager), do any of the following:
(i) amend Section 2.4 to permit the Company to engage in any
business or activity other than those set forth in Section 2.4 prior
to any such amendment;
(ii) engage in any business or activity other than those set
forth in Section 2.4;
(iii) to the fullest extent permitted by law, dissolve or
liquidate, in whole or in part, consolidate or merge with or into
any other entity or conveyor transfer the Company's properties and
assets substantially as an entirety to any entity; or
(iv) institute proceedings to be adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against the Company or file a petition seeking, or
consent to, reorganization or relief under any applicable federal or
state law relating to bankruptcy, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or a substantial part of its
property, or make any assignment for the benefit of creditors, or
admit in writing the Company's inability to pay its debts generally
as they become due, or take corporate action in furtherance of any
such action.
(d) Meetings of the Board of Managers may be conducted in person
or by conference telephone facilities. Any action required or permitted to be
taken at any meeting of the Board of Managers may be taken without a meeting and
without prior notice if such number of Managers sufficient to approve such
action pursuant to the terms of this Agreement consent thereto in writing.
13
Section 4.4 Power to Bind Company. Notwithstanding the last sentence of
Section 18-402 of the Act, only the Managers (other than the Independent
Manager) and officers of the Company (acting in their capacity as such) have
authority to bind the Company to any third party with respect to any matter.
Section 4.5 Restrictions on the Power of the Managers. The Board of
Managers does not have the authority to:
(a) cause the Company to do any acts in violation of or in breach
of any Basic Document or any other agreement entered into by the Company;
(b) take any action in contravention of the Act, the Certificate
or this Agreement (each as may be amended);
(c) to the fullest extent permitted by law, take any action that
would make it impossible to carry on the ordinary business of the Company;
(d) admit any Person as a member of the Company;
(e) knowingly perform any act that would subject the Member to
loss of limited liability in any jurisdiction; or
(f) except as permitted under Section 8.2, take any action to
amend or modify the Certificate or this Agreement.
Section 4.6 Duties and Obligations of the Managers.
(a) Subject to Section 4.3(c)(iii), as long as any Securities are
outstanding, the Board of Managers will take "all action that may be necessary
or appropriate for the continuation of the company's valid existence as a
limited liability company under the taws of the State of Delaware (and each
other jurisdiction in which such existence is necessary to protect the limited
liability of the Member or to enable the Company to conduct the business in
which it is engaged).
(b) Each Manager will devote to the Company such time as he or she
deems necessary to conduct the Company's business and affairs in an appropriate
manner.
(c) The Board of Managers will use their best efforts, in the
conduct of the Company's activities and business, to put all Persons with whom
the Company deals on notice that the Member is not liable for the Company's
obligations, and all agreements to which the Company is a party are to include a
statement to the effect that the Company is a limited liability company formed
under the Act; provided, however, the failure to include such a statement in an
agreement to which the Company is a party will not affect the Company's power
and authority or authorization to enter into such agreement.
(d) The Board of Managers will prepare or cause to be prepared and
file or cause to be filed on or before the due date (or any extension thereof)
any federal, state or local tax returns required to be filed by the Company. The
Board of Managers will cause the Company
14
to pay any taxes payable by the Company; provided, however, that the Managers
are not required to cause the Company to pay any tax so long as the Company is
contesting in good faith and by appropriate legal proceedings the validity,
applicability or amount thereof and such contest does not materially endanger
any right or interest of the Company.
(e) The Board of Managers will, from time to time, submit, or
cause to be submitted, to any appropriate state securities administrator all
documents, papers, statistics and reports required to be filed with or submitted
to such state securities administrator.
(f) The Board of Managers will use their best efforts to cause the
Company to be formed, reformed, or qualified to engage in investment activities,
or be registered under any applicable assumed or fictitious name statute or
similar law in any state in which the Company then makes investments or
transacts business, if such formation, reformation, qualification or
registration is necessary or desirable in order to protect the limited liability
of the Member or to permit the Company lawfully to own or make investments or
transact business.
Section 4.7 Resignation. Any Manager may resign at any time upon written
notice of resignation to the Member. Any resignation is effective immediately
unless a date certain is specified for it to take effect, in which event it will
be effective upon such date, and acceptance of any resignation is not necessary
to make it effective, irrespective of whether the resignation is tendered
subject to such acceptance.
Section 4.8 Removal of Managers. Any Manager may be removed, either for or
without cause, by the Member; provided that if there is no Independent Manager
after such removal, such Manager shall be replaced by an Independent Manager.
Section 4.9 Filling of Vacancies. In the case of any increase in the
number of Managers, or of any vacancy in the Board of Managers, the additional
Manager shall be appointed by the Member.
Section 4.10 Managers' Compensation. Any or all Managers may receive such
reasonable compensation for their services, whether in the form of salary or
otherwise, with expenses if any, as the Board of Managers and the Member may
from time to time determine.
Section 4.11 Officers. (a) The Board of Managers, by a simple majority,
may from time to time appoint authorized officers of the Company who may, on
behalf of the Company execute agreements to which the Company is a party and any
document or certificate to be delivered in connection herewith or pursuant
hereto.
(b) Each authorized officer will have the right and authority to
take all actions specifically enumerated in the Certificate or this Agreement
that may be taken by the Company or that the authorized officer otherwise deems
necessary, useful or appropriate for the day-to-day management and conduct of
the Company's business. All instruments, contracts, agreements and documents
providing for the acquisition, mortgage or disposition of property of the
Company will be valid and binding on the Company only if executed by an
authorized officer of the Company.
15
Section 4.12 Duties of Managers and Officers. Except to the extent
otherwise provided in this Agreement, each Manager and officer of the Company
has a fiduciary duty of loyalty and care similar to that of directors and
officers of for profit business organizations organized under the General
Corporate Law of the State of Delaware.
ARTICLE V
CAPITAL STRUCTURE AND CONTRIBUTIONS
Section 5.1 Capital Structure. Triad has heretofore been admitted as the
sole member of the Company with an interest of 100% (as such percentage may
change from time to time, a "Percentage Interest").
Section 5.2 Capital Contributions. From time to time, the Board of
Managers may determine that the Company requires capital and may request the
Member to make capital contributions in an amount determined by the Board of
Managers. The Member may, but is not required to, make such additional capital
contributions as it may determine in its sole discretion. A capital account is
to be maintained for the Member, to which contributions and profits are credited
and against which distributions and losses are to be charged.
ARTICLE VI
PROFITS AND LOSSES; DISTRIBUTIONS
Section 6.1 Profits and Losses. For financial accounting and tax purposes,
the Company's net profits or net losses are determined on an annual basis in the
manner determined by the Board of Managers. In each year, profits and losses
will be allocated entirely to the Member.
Section 6.2 Distributions. From time to time, the Board of Managers will
cause the Company to distribute any cash held by it which (i) is not reasonably
necessary for the operation of the Company or the performance of its obligations
under the Basic Documents or in connection with any Permitted Transactions and
(ii) would not result in a violation of Section 18-607 or Section 18-804 of the
Act. The distributions of the Company will be allocated entirely to the Member.
ARTICLE VII
EXCULPATION; LIABILITIES; INDEMNIFICATION
Section 7.1 Exculpation. Notwithstanding any other provisions of this
Agreement, whether express or implied, or any obligation or duty at law or in
equity, none of the Member, the Managers, or any officers, directors,
stockholders, partners, employees, representatives or agents of any of the
foregoing, or any officer, employee, representative or agent of the Company or
any of its Affiliates will be liable to the Company or any other Person for any
act or omission (in relation to the Company, this Agreement, any related
document or any transaction contemplated hereby or thereby) taken or omitted by
such Person bound by this Agreement in the reasonable belief that such act or
omission is in, or not contrary to, the best interests of the Company and is
within the scope of authority granted to such Person by this Agreement; provided
such act or omission does not constitute fraud, willful misconduct, bad faith or
gross negligence.
16
Section 7.2 Liabilities: Indemnification.
(a) Subject to Section 7.2(f), any Person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a Member, Manager, officer,
employee, agent or legal representative of the Company (each, an "Indemnified
Party'), will be indemnified and held harmless by the Company to the fullest
extent legally permissible against all expenses, claims, damages, liabilities
and losses (including, without limitation, judgments, interest on judgments,
fines, charges, costs, amounts paid in settlement, expenses and attorneys' fees
incurred in investigating, preparing or defending any action, claim suit,
inquiry, proceeding, investigation or any appeal taken from the foregoing by or
before any court or governmental, administrative or other regulatory agency,
body or commission), whether pending or merely threatened, whether or not such
Indemnified Party is or may be a party thereto, including interest on any of the
foregoing (collectively, "Damages"), arising out of, or in connection with, the
management or conduct of the business and affairs of the Company, except for any
Damages to the extent that they are found by a court of competent jurisdiction
to have resulted from the gross negligence or willful misconduct of such
Indemnified Party or willful violations of the express provisions hereof by such
Indemnified Party. Each Indemnified Party may consult with counsel and
accountants with respect to the affairs of the Company and will be fully
protected and justified, to the extent allowed by law, in acting, or failing to
act, if such action or failure to act is in accordance with the advice or
opinion of such counselor accountants.
(b) Each Indemnified Party is required to give prompt notice to
the Company of any action commenced against it with respect to which
indemnification may be sought under this Section 7.2, but failure to do so will
not relieve the Company from any liability which it may have hereunder unless it
has been materially prejudiced by such failure to notify or from any liability
that it may otherwise have other than on account of this Section 7.2. In no
event will the Company be liable for the fees and expenses of more than one
counsel for all the Indemnified Parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general obligations or circumstances, unless (i) if the defendants in
any such action include one or more Indemnified Parties and the Company, one or
more of the Indemnified Parties have employed separate counsel after having
reasonably concluded that there may be legal defenses available to it or them
that are different from or additional to those available to the Company or to
one or more of the other Indemnified Parties or (ii) the Company has not
employed counsel reasonably acceptable to an Indemnified Party to represent such
Indemnified Party within a reasonable time after notice of the commencement of
the action.
(c) The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, will not, of itself create a presumption that the Person seeking
indemnification did not act in good faith and in a manner which such Person
reasonably believed to be in, or not opposed to, the best interest of the
Company and, with respect to any criminal action or proceeding, had reasonable
cause to believe that such Person's conduct was unlawful entry of a judgment by
consent as part of a settlement will not be deemed a final adjudication of
liability for negligence or misconduct in the performance of duty, or of any
other issue or matter.
17
(d) Subject to Section 7.2(g), expenses (including attorneys' fees
and disbursements) incurred by an Indemnified Party in defending any civil,
criminal, administrative or investigative action, suit or proceeding may be paid
by the Company in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Managers in the specific case upon
receipt of an undertaking by or on behalf of such Indemnified Party to repay
such amount unless it ultimately is determined that such Person is entitled to
be indemnified by the Company. Expenses (including attorneys' fees and
disbursements) incurred by other employees or agents of the Company in defending
in any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the Company upon such terms and conditions, if any, as
the Board of Managers deems appropriate.
(e) No Manager of the Company will be personally liable to the
Company for monetary damages for any breach of fiduciary duty by such person as
a Manager. Notwithstanding the foregoing sentence, a Manager will be liable to
the extent provided by applicable law for (i) breach of the Manager's duty of
loyalty to the Company or the Member, (ii) acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law or (iii)
any transaction from which the Manager derived an improper personal benefit.
(f) The indemnification and advancement of expenses provided by
this Section 7.2 are not to be deemed exclusive of any other rights to which
those seeking indemnification or advancement may be entitled under any
agreement, vote of the Board of Managers or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office, and will continue as to a Person who has ceased to be a Manager,
employee or agent and inure to the benefit of the heirs, executors and
administrators of such Person.
(g) Any amounts payable by the Company in accordance with this
Section 7.2 will be paid solely to the extent of funds available therefor and
actually received by the Company under the Basic Documents, from capital
contributions or in connection with other Permitted Transactions. The Company's
obligations under this Section 7.2 will not constitute a claim against the
Company to the extent that the Company does not have funds sufficient to make
payment of such obligations. Any claim that an Indemnified party may have at any
time against the Company that it may seek to enforce under this Agreement will,
if the Company becomes a debtor or debtor-in-possession in a case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, be subordinate to the
payment in full, including post-petition interest, of the claims of the holders
of any Securities which are collateralized or secured by assets of the Company.
Section 7.3 Amendments; Indemnification. The indemnities contained in
Section 7.2 will survive the resignation, removal or termination of any
Indemnified Party or the termination of this Agreement. Any repeal or
modification of this Article VII will not adversely affect any rights of such
Indemnified Party pursuant to this Article VII, including the right to
indemnification and to the advancement of expenses of an Indemnified Party
existing at the time of such repeal or modification with respect to any acts or
omissions occurring prior to such repeal or modification.
18
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Dissolution of the Company.
(a) The Company will be dissolved upon any of the following
events:
(i) the termination of the legal existence of the last
remaining member of the Company or the occurrence of any other event
which terminates the continued membership of the last remaining
member of the Company in the Company unless the business of the
Company is continued in a manner permitted by this Agreement or the
Act; or
(ii) the entry of a decree of judicial dissolution under the
Act.
(b) Upon the occurrence of any event that causes the last
remaining member of the Company to cease to be a member of the Company, to the
fullest extent permitted by law, the personal representative of such member is
hereby authorized to, and will, within 90 days after the occurrence of the event
that terminated the continued membership of such 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 or the event that
terminated the continued membership of the last remaining member of the Company
in the Company.
(c) Notwithstanding any provision to the contrary contained in
this Agreement, an Insolvency Event with respect to the Member or a
Special-Member will not cause the Member or Special Member, respectively, to
cease to be a member of the Company and upon the occurrence of such an event,
the business of the Company will continue without dissolution.
(d) Notwithstanding any provision to the commonly contained in
this Agreement, each of the Member and the Special Members waives any right it
might have to agree in writing to dissolve the Company upon an Insolvency Event
with respect to the Member or a Special Member, or the occurrence of an event
that causes the Member or a Special Member to cease to be a member of the
Company.
Section 8.2 Amendments. Except with respect to amendments required by law
as contemplated in Section 4.6(f), this Agreement and the Certificate may be
amended only in writing by the Member existing at the time of this Agreement;
provided that, if any Securities issued by any Trusts are outstanding, no such
amendment will be effective without satisfaction of the Rating Agency Condition;
and provided, further, that the provisions of Sections 4.3(b) and 4.3(0) hereof
may be amended only with the unanimous written consent of 100% of the Board of
Managers including the Independent Manager. An amendment becomes effective as of
the date specified in the approval of the Member or, if no date is Specified, as
of the date of such approval or as otherwise provided in the Act.
Section 8.3 Assignments; Additional Members. (a) The Member may sell,
assign or transfer in whole but not in part its Percentage Interest without the
consent of the Board of Managers or any other Person; provided, however, that
for so long as any Securities issued by
19
any Trust are outstanding, the Member may not sell, assign or transfer its
Percentage Interest unless the Rating Agency Condition is satisfied. Upon the
assignment by the Member of all of its limited liability company interest in the
Company pursuant to this Section 8.3(a), the assignee will be admitted to the
Company as a member of the Company upon its execution of an instrument
signifying its agreement to be bound by the terms and conditions of this
Agreement, which instrument maybe counterpart signature page to this Agreement.
Such admission will be deemed effective immediately prior to the assignment and,
immediately following such admission, the assign or Member will cease to be
member of the Company. Notwithstanding anything in this Agreement to the
contrary, any successor to the Member by merger or consolidation in compliance
with the Basic Documents and this Agreement will, without any further act, be
the Member hereunder, and such merger or consolidation will not constitute an
assignment for purposes of this Agreement and the Company will continue without
dissolution.
(b) So long as any Securities issued by any Trust or by the
Company are outstanding, the Member may not resign, except as permitted under
the Basic Documents and the Rating Agency Condition is satisfied. If the Member
is permitted to resign pursuant to this Section 8.3(b), an additional member of
the Company will be admitted to the Company with the consent of the resigning
Member, upon its execution of 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. Such admission will be deemed
effective immediately prior to the resignation and, immediately following such
admission, the resigning Member win cease to be a member of the Company.
(c) One or more additional members of the Company may be admitted
to the Company with the written consent of the Member; provided, however, that,
notwithstanding the foregoing, so long as any Securities issued by any Trusts
are outstanding, no additional Member may be admitted to the Company unless the
Rating Agency Condition is satisfied.
Section 8.4 Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement is for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms will be deemed severable
from the remaining covenants, agreements, provisions or terms of this Agreement
and will in no way affect the validity or enforceability of the other provisions
of this Agreement.
Section 8.5 Successors and Assigns. All covenants and agreements contained
herein will be binding upon, and inure to the benefit of, the Member and its
successors and permitted assigns, all as herein provided.
Section 8.6 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.
Section 8.7 Waiver of Partition; Nature of Interest. Except as otherwise
expressly provided in this Agreement, to the fullest extent permitted by law,
each of the Member and the Special Members hereby irrevocably waives any right
or power that such Person might have the cause the Company or any of its assets
to be partitioned, to cause the appointment of a receiver for all or any portion
of the assets of the Company, to compel any sale of all or any portion of the
20
assets of the Company pursuant to any applicable law or to file a complaint or
to institute any proceeding at law or in equity to cause the dissolution,
liquidation, winding up or termination of the Company. The Member will not have
any interest in any specific assets of the Company, and the Member will not have
the status of a creditor with respect to any distribution pursuant to Section
6.2. The interest of the Member in the Company is personal property.
Section 8.8 Benefits of Agreement No Third-Party Rights. None of the
provisions of this Agreement (including Section 5.2) is for the benefit of or
enforceable by any creditor of the Company or by any creditor of the Member or a
Special Member. Nothing in this Agreement is to be deemed to create any right in
any Person (other than the Indemnified Parties) not a party to this Agreement,
and this Agreement is not to be construed in any respect to be a contract in
whole or in part for the benefit of any third Person (except as provided in
Section 8.9).
Section 8.9 Binding Agreement. Notwithstanding any other provision of this
Agreement, the Member agrees that this Agreement, including, without limitation,
Sections 2.4, 2.5 and 4.3, constitutes a legal, valid and binding agreement of
the Member, and is enforceable against the Member by the Independent Manager, in
accordance with its terms. In addition, the Independent Manager are intended
beneficiaries of this Agreement.
Section 8.10 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and are not to define or limit any
of the terms or provisions hereof.
Section 8.11 Governing Law. THIS AGREEMENT IS TO BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
Section 8.12 Counterparts. This Agreement may be executed in counterparts,
each of which when so executed will be an original, but all of which together
will constitute but one and the same agreement.
21
IN WITNESS WHEREOF, the undersigned Member and the Independent
Manager have duly executed this Agreement as of the 15th day of July, 2002.
TRIAD FINANCIAL SPECIAL PURPOSE
LLC
By: TRIAD FINANCIAL CORPORATION,
as Member.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
INDEPENDENT MANAGER
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Xxxxxxx Xxxxxxxx
As Independent Manager
22
