Exhibit 3.2
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
GREENPOINT MORTGAGE SECURITIES LLC
This Limited Liability Company Operating Agreement, dated and effective
as of September 27, 2003 (the "OPERATING AGREEMENT"), is adopted by and between
GreenPoint Mortgage Securities Inc., a Delaware corporation ("GMSI"), as manager
(in such capacity, the "MANAGER") and GreenPoint Mortgage Funding, Inc., a New
York corporation ("GMFI"), as the sole member (in such capacity, the "SOLE
MEMBER"). Each capitalized term used herein and not defined shall have the
meaning given to such term in Article II of this Agreement.
WHEREAS, the Certificate of Formation of the GreenPoint Mortgage
Securities LLC (the "COMPANY") was filed with the Secretary of State of the
State of Delaware on September 26, 2003 (which filing is hereby approved and
ratified in all respects);
WHEREAS, the Sole Member and the Manager hereby wish to enter into this
Operating Agreement governing the operation of the Company which shall
constitute the Company's "limited liability company agreement" under the Act.
NOW, THEREFORE, the Sole Member and the Manager hereby adopt the
following:
ARTICLE I
FORMATION OF LIMITED LIABILITY COMPANY
Section 1.1. FORMATION OF LIMITED LIABILITY COMPANY. The Sole Member has
heretofore formed the Company as a Delaware limited liability company pursuant
to the Act. The Manager and each person from time to time serving as an officer
or director of the Manager shall be, and hereby is, designated as an "authorized
person" within the meaning of Section 18-204 of the Act, authorized and
empowered to execute certificates to be filed with the Secretary under the Act.
The Sole Member shall be the sole member of the Company, and the Sole Member's
Interest in the Company shall be, and hereby is, authorized and issued.
Section 1.2. COMPANY NAME AND PRINCIPAL OFFICE. The name of the Company shall be
"GreenPoint Mortgage Securities LLC". The Manager shall have the power at any
time to change the name of the Company. The principal business office of the
Company shall be 000 Xxxx Xxxxxx Xxxxx, Xxxxxxxx #00000, Xxxxxx, Xxxxxxxxxx
00000. The business of the Company may also be conducted at such additional
place or places as the Sole Member may determine.
Section 1.3. OFFICE OF AND AGENT FOR SERVICE OF PROCESS. The registered office
of the Company in Delaware shall be maintained at Corporation Trust Center, 0000
Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle. The Company's
agent for service of process on the Company at such address shall be The
Corporation Trust Company. The Manager shall have the power and the authority,
and is hereby authorized and empowered to change, at any time and from time to
time, the location of such registered office and/or such registered agent upon
compliance with the Act.
Section 1.4. TERM OF COMPANY. The Company shall be formed and commence on the
date the Certificate of Formation is filed with the Secretary (the "EFFECTIVE
DATE"). The Company shall have a perpetual existence as a separate legal entity
until cancellation of the Company's Certificate of Formation.
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Section 1.5. PURPOSE OF COMPANY. The nature of the business to be
conducted or promoted is limited solely to the following, to be conducted
directly by the Company or through one or more subsidiaries:
(a) to acquire mortgage loans and participations therein and
mortgage securities ("Mortgage Assets") from time to time by
contribution or purchase for the purpose of effecting the
securitization thereof, either directly or through other entities, and
whether such securitization involves the issuance of securities
("Securities") backed by or evidencing an interest in, such Mortgage
Assets;
(b) to enter into agreements for the servicing and administration
of Mortgage Assets;
(c) to hold, sell, transfer, pledge or otherwise dispose of
interests in Mortgage Assets and the proceeds thereof from time to
time;
(d) to issue debt secured by Mortgage Assets;
(e) to hold, pledge or otherwise deal with Securities and to loan
or invest or otherwise apply proceeds from Mortgage Assets, funds
received in respect of Securities and any other income as determined by
the Manager of the Company; and
(f) to engage in any activity and to exercise any powers permitted
to limited liability companies under the laws of the State of Delaware,
PROVIDED that they are incident to the foregoing and necessary or
convenient to accomplish the foregoing.
The Company shall have the power and authority, and is hereby
authorized and empowered, to engage in the activities set forth in this Section
1.5, and activities that are required or convenient for the performance of any
of its obligations pursuant to any agreements or other documents entered into by
the Company in connection with its activities approved in accordance with
Section 5.5 (the "APPROVED COMPANY AGREEMENTS").
Section 1.6. ADDRESS OF THE SOLE MEMBER AND MANAGER. The addresses of
the Sole Member and the Manager are set forth in EXHIBIT A.
Section 1.7. EXCLUSIVITY. No Person may be admitted to the Company as
an additional or substitute member, except as expressly set forth in this
Agreement.
Section 1.8. AUTHORIZATION. The Company, and the Manager or any officer
of the Company on behalf of the Company, are hereby authorized to enter into,
execute, deliver and perform the Approved Company Agreements and such other
agreements as the Manager or officer executing such agreement deems necessary
and appropriate and from time to time to prepare and file registration
statements with the Securities and Exchange Commission and to do all things
necessary and appropriate to the declaration of effectiveness of such
registration statements as the Manager and officers directing such preparation
and filing deem necessary, notwithstanding any other provision of this
Agreement, the Act or other applicable law, rule or regulation, and without any
further act, vote or approval of any person. The foregoing authorization shall
not be deemed a restriction on the power of the Manager or officers of the
Company to enter into other agreements on behalf of the Company.
Section 1.9. FISCAL YEAR. The Company's fiscal year shall be based on the
calendar year and shall commence on January 1st and end on December 31st of each
year.
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ARTICLE II
DEFINITIONS
Section 2.1. DEFINED TERMS.
"ACT" means the Delaware Limited Liability Company Act, Delaware Code
Title 6, Sections 18-101 ET SEQ., as amended or supplemented from time to time.
"AFFILIATE" when used with respect to a Person shall mean any other
Person controlling, controlled by, or under common control with, such Person.
"AGREEMENT" shall mean this Limited Liability Company Operating
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.
"APPROVED COMPANY AGREEMENTS" shall have the meaning set forth in
Section 1.5.
"CAPITAL CONTRIBUTIONS" shall mean the amount of cash and the fair
market value of property (as determined by the Manager and net of any
liabilities to which such property is subject or which is deemed assumed by the
Company) contributed to the Company by the Sole Member.
"COMPANY" shall mean the limited liability company governed by this
Agreement and formed by the filing of the Certificate of Formation of the
Company with the Secretary.
"GREENPOINT PERSON" shall mean the Company and each Affiliate or
subsidiary of the Company and any charitable organization to which the Company
or any of its Affiliates or subsidiaries make charitable contributions.
"INDEMNIFIED PARTY" means (i) the Sole Member and any successor member
of the Company, (ii) the Manager and any successor manager of the Company, (iii)
any officer, agent, shareholder, director, employee or incorporator of the Sole
Member, any successor member, or the Manager or any successor manager, and (iv)
any officer, employee, organizer or agent of the Company.
"INDEPENDENT DIRECTOR" shall mean an individual who is not (and is not
an associate of) any direct, indirect or beneficial stockholder, officer,
director, employee, Affiliate, associate, customer, advisor or supplier of
GreenPoint Mortgage Funding, Inc., a New York corporation ("GMFI"), or any
Affiliate or subsidiary of GMFI or of any charitable organization to which GMFI
or any of its Affiliates or subsidiaries make charitable contributions,
provided, however, that notwithstanding the foregoing, any individual who would
otherwise qualify as an Independent Director except for his or her acting as a
director of a limited purpose, bankruptcy remote entity formed by GMFI, or any
Affiliate of GMFI, shall be deemed to qualify as an Independent Director;
"associate" shall mean, when used to indicate a relationship with any Person (a)
any corporation, limited liability company or organization of which such Person
is an officer, manager, director or partner or is, directly or indirectly, the
beneficial owner of 10% or more of any class of equity securities or of 10% or
more of any membership interest, (b) any trust or other estate in which such
Person serves as trustee or in a similar capacity, and (c) any relative or
spouse of such Person, or any relative of such spouse, who resides at the same
address as such Person; "Affiliate" shall not include GMSI or any entity wholly
owned, directly or indirectly, by GMSI, including the Company; and "subsidiary"
shall mean any corporation a majority of the voting stock of which is owned,
directly or indirectly, through one or more other subsidiaries, by GMFI, but
excluding GMSI and any entity wholly owned by GMSI.
"INSOLVENCY EVENT" shall mean with respect to the Sole Member or any
successor member: (i) the entry of a decree or order by a court, agency or
supervisory authority having jurisdiction in the premises
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for the appointment of a conservator, receiver or liquidator for such member, in
any insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of such member's
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 90 consecutive days; (ii) the consent by such member to the
appointment of a conservator, receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to such member or of or relating to substantially all
of such member's property; or (iii) if such member shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations. The foregoing definition of "Insolvency Event" is intended to
replace and shall supersede and replace the definition of "Bankruptcy" set forth
in Sections 18-304 of the Act.
"INTEREST" shall mean the Sole Member's ownership interest in the
Company, including, without limitation, the right of the Sole Member to the
profits and losses of the Company and to receive distributions of the Company's
assets, together with the obligations of the Sole Member to comply with all the
terms and provisions of this Agreement.
"MANAGER" shall mean the Manager and any other Person selected from
time to time by the Sole Member pursuant to Section 5.1 as a manager of the
Company. The "Manager" shall be a manager of the Company within the meaning of
the Act.
"MORTGAGE ASSETS" shall have the meaning set forth in Section 1.5.
"NET CASH FLOW" shall mean, as of any date, any and all amounts
received by the Company on or before such date (other than Capital
Contributions), less (i) amounts previously distributed under Section 4.1, (ii)
unpaid costs and accrued expenses pursuant to Section 4.2 and any reasonable
reserves therefor and (iii) all other cash expenditures made by or on behalf of
the Company.
"OUTSTANDING SECURITIES" shall have the meaning set forth in Section
5.1(c).
"PERSON" shall mean any individual, partnership, corporation, trust,
limited liability company, association, joint venture, estate, governmental
entity or other legal person.
"SECRETARY" means the Secretary of State of the State of Delaware.
"SECURITIES" shall have the meaning set forth in Section 1.5.
"SOLE MEMBER" shall have the meaning set forth in the preamble to this
Agreement.
"SPECIAL MEMBER" means, upon such Person's admission to the Company as
a member of the Company pursuant to Section 6.4, the Person acting as the
Manager, in such Person's capacity as a member of the Company. A Special Member
shall only have the rights and duties expressly set forth in this Agreement. A
Special Member is not the "Sole Member" for purposes of this Agreement.
ARTICLE III
CAPITAL CONTRIBUTIONS
Section 3.1. CONTRIBUTIONS. The Sole Member shall contribute
concurrently with the execution of this Agreement or has already contributed the
property described in EXHIBIT B as its Capital Contribution to the Company and
shall from time to time contribute such other property as is described from time
to time in the Approved Company Agreements, as the same may be amended from time
to time. Such contribution is an absolute transfer and assignment of such
property to the Company, without
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recourse or warranty. The Manager has not made and shall not make any Capital
Contributions to the Company.
Section 3.2. ADDITIONAL CONTRIBUTIONS. The Sole Member shall have no
obligation to make additional contributions after the date hereof, but may elect
to do so from time to time.
ARTICLE IV
DISTRIBUTIONS
Section 4.1. DISTRIBUTIONS OF NET CASH FLOW. Distributions of Net Cash
Flow shall be made to the Sole Member by the Manager at such times and in such
amounts as determined by the Manager, acting alone, provided such distributions
are not prohibited by any agreement to which the Company is a party or the Act
or other applicable law. The Manager shall not receive any distribution of Net
Cash Flow.
Section 4.2. EXPENSES OF THE COMPANY. The Company shall pay all costs and
expenses incurred in connection with the Company's affairs (or shall reimburse
the Manager for having incurred any such out-of-pocket expenses), including,
without limitation, all expenses of conducting the business of the Company.
ARTICLE V
MANAGEMENT
Section 5.1. MANAGER.
(a) The Manager shall not be a member of the Company and shall not own
any Interest or any portion thereof, or any other ownership interest in the
Company, and, as such, shall not share in the distributions of Net Cash Flow or
the profits or losses of the Company. The Manager shall be (i) a special purpose
entity with at least two Independent Directors on its board of directors and
(ii) selected by the Sole Member from time to time or at such time as a vacancy
for any reason shall occur, and shall serve until a successor is selected or
qualified. The Sole Member hereby selects GMSI as the initial Manager.
(b) The Manager, acting alone, without the approval or authorization of
the Sole Member, shall have full and exclusive management and control of the
business of the Company, including, without limitation, the power to appoint
Persons to act on behalf of the Company, to hire employees and agents and
appoint officers and committees of the Company to perform such functions as from
time to time shall be delegated to such employees, agents, officers and
committees by the Manager and to determine the compensation of any employees,
agents and officers of the Company or to delegate some or all compensation
decisions to officers or employees of the Company.
(c) There shall be no change of Manager without the prior confirmation
from Xxxxx'x Investors Service, Inc. and Standard & Poor's Rating Services that
such change will not result in either a downgrade or a withdrawal of the then
current ratings of any outstanding securities issued by the Company or any
subsidiary of the Company (the "OUTSTANDING SECURITIES").
Section 5.2. RESIGNATION. The Manager may resign at any time by giving
written notice to the Sole Member; PROVIDED that the Manager may resign only
after a successor Manager meeting the requirements and having similar
restrictions in its certificate of incorporation or other charter documents set
forth in Section 5.1 has been appointed, has executed a counterpart to this
Agreement and has assumed the duties of the resigning Manager and such
resignation will not result in either a downgrade or a withdrawal of the then
current ratings of the Outstanding Securities.
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Section 5.3. REMOVAL. The Manager may be removed with or without cause
by the Sole Member; PROVIDED that the Sole Member shall not remove the Manager
unless a successor manager meeting the requirements and having similar
restrictions in its certificate of incorporation or other charter documents set
forth in Section 5.1 has been appointed, has executed a counterpart to this
Agreement and has assumed the duties and obligations of the removed Manager and
such removal and succession will not result in either a downgrade or a
withdrawal of the then current ratings of the Outstanding Securities.
Section 5.4. COMPENSATION. The Manager shall receive such compensation
as shall from time to time be determined by the Sole Member and shall be
reimbursed by the Company for any reasonable out-of-pocket expenses incurred by
the Manager on behalf of the Company.
Section 5.5. LIMITATION ON ACTIONS
(a) Notwithstanding any other provision of this Agreement and, to the
fullest extent permitted by law, any provision of law that otherwise so empowers
the Manager, the Manager shall not have the power or authority, and shall not be
authorized or empowered, without the prior written unanimous consent of all of
the directors of the Manager (including at least two Independent Directors) to
cause the Company to do any of the following:
(A) engage in any business or activity, including, without
limitation, the incurrence of any indebtedness, other than as
contemplated by the Approved Company Agreements or amend, alter, change
or repeal Section 1.5 of this Agreement hereto or this Section 5.5.
(B) enter into any transaction with any GreenPoint Person.
(C) consolidate, merge or sell all or substantially all of the
Company's assets, except as set forth in Article IX, unless (A) the
entity (other than the Company) formed or surviving the consolidation
or merger or which acquires the properties and assets of the Company,
is organized and existing under the laws of the State of Delaware,
expressly assumes the due and punctual payment of, and all obligations
of the Company, (B) immediately after giving effect to the transaction,
no default or event of default has occurred and is continuing under any
indebtedness of the Company or any agreements relating to such
indebtedness, (C) the Company receives written confirmation from each
rating agency that ratify any Outstanding Securities that such merger
or consolidation will not result in the downgrade or withdrawal of the
rating then assigned to any Securities then rated by such rating
agency, and (D) permitted by or in compliance with the provisions of
the Approved Company Agreements.
(D) dissolve or liquidate, in whole or in part, except as set
forth in Article IX, file a voluntary petition that commences a case
under Title 11 of the United States Code (or any successor statutes)
with respect to the Company, or consent to the institution of
bankruptcy or insolvency proceedings against the Company or file a
petition seeking, or consent to, 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 the property of the
Company, or make any assignment for the benefit of creditors, or admit
in writing its inability to pay the debts of the Company generally as
they become due, or take action in furtherance of any of the foregoing.
(E) issue, assume or guarantee any debt securities or
undertake any direct or indirect debt obligations of any kind other
than (i) indebtedness contemplated by the Approved Company Agreements
and the performance of its obligations under the Approved Company
Agreements; and (ii) indebtedness incurred in the ordinary course of
the business of the Company; PROVIDED, HOWEVER, that the Company shall
not issue, assume or guarantee any debt or other liability
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(regardless of Manager approval) unless such debt or other liability
will not result in the downgrade or withdrawal of the rating then
assigned to any Outstanding Securities then rated by any rating agency.
(b) No Manager nor any director of the Manager pursuant to the
requirements of this Section 5.5 shall, with regard to any matter described in
this Section 5.5, owe a fiduciary duty or other obligation to the Sole Member
(except as may specifically be required by any applicable law); instead, such
Manager or director's fiduciary duty and other obligations with regard to any
matter described in this Section 5.5 shall, to the fullest extent permitted by
law, be owed to the Company including, without limitation, the Company's
creditors. Every member of the Company shall be deemed to have consented to the
foregoing by virtue of such member's acceptance of interests therein, and no
further act or deed of any member of the Company shall be required to evidence
such consent. In addition, no Independent Director of the Manager may be removed
unless his or her successor has been duly elected.
(c) No election shall be made by the Manager or any other person to
classify the Company as an association taxable as a corporation pursuant to ss.
301.7701-3 of the Treasury regulations.
Section 5.6. AMENDMENT TO CERTIFICATE OF FORMATION. Without the
affirmative vote of each member of the Manager's Board of Directors, including,
without limitation, the affirmative vote of the Independent Directors of the
Manager, and prior notice to Xxxxx'x Investors Service, Inc. and Standard &
Poor's Rating Services, the Company shall not amend either this Agreement or the
Company's Certificate of Formation, as amended or restated from time to time.
Section 5.7. BINDING AUTHORITY. Only the Manager or its delegates
pursuant to Section 5.1 shall have the power and authority (subject to the terms
and conditions of this Agreement) to bind the Company.
Section 5.8. COMPANY SEPARATENESS. In addition to the foregoing, the
Manager shall conduct the affairs of the Company in the following manner so
that:
(i) the Company will observe all limited liability company
formalities and will maintain separate bank accounts, company records,
books of account and financial statements and shall maintain its books,
records, resolutions and agreements as official records;
(ii) the Company will pay from its funds and assets all
obligations and indebtedness incurred by it; PROVIDED that the
organizational expenses of the Company may be initially paid by
Affiliates of the Company so long as they are promptly reimbursed by
the Company;
(iii) the Company's assets shall not be commingled with those
of any other entity except as permitted by the Approved Company
Agreements; PROVIDED, that such restriction shall not preclude the
Company from repaying indebtedness or making distributions to any
member of the Company, so long as all such transactions are properly
reflected on the books and records of the Company;
(iv) if the Company maintains offices in the office of any
Affiliate of the Company, the Company shall pay fair market rent for
any such office space of such Affiliate;
(v) the Company shall maintain an arm's length relationship
with its Affiliates;
(vi) the Company shall not guarantee or become obligated for
the debts of any other entity or hold out its credit as being available
to satisfy the obligations of others except as may be required in
connection with conducting its business in accordance with Section 1.5;
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(vii) the Company shall not acquire obligations or securities
of its Affiliates except in connection with conducting its business in
accordance with Section 1.5;
(viii) the Company shall use separate stationery, invoices,
and checks;
(ix) the Company shall not pledge its assets for the benefit
of any other entity or make any loans or advances to any entity except
as contemplated by the Approved Company Agreements;
(x) the Company shall hold itself out as a separate entity and
the Company shall correct any known misunderstanding regarding its
separate entity;
(xi) the Company shall maintain adequate capital in light of
its contemplated business operations;
(xii) the Company shall not identify itself or any of its
Affiliates as a division or part of the other; and
(xiii) the Company shall conduct its own business in its own
name.
ARTICLE VI
OBLIGATIONS AND/OR RIGHTS OF THE SOLE MEMBER AND MANAGER
Section 6.1. LIABILITY OF THE SOLE MEMBER AND MANAGER. Neither the Sole
Member nor the Manager shall be personally liable for any of the debts,
liabilities, contracts or other obligations of the Company solely by reason of
being the Sole Member or Manager of the Company.
Section 6.2. NO MANAGEMENT RESPONSIBILITY. The Sole Member, in such
capacity, shall not take part in the management of the business or the affairs,
or transact any business for, the Company, except to the extent that its
approval or consent is expressly required under this Agreement for the taking of
any actions by or on behalf of the Company or of the Manager.
Section 6.3. NO AUTHORITY TO ACT. The Sole Member shall not have the
authority to act on behalf of or bind the Company in such capacity.
Section 6.4. SPECIAL MEMBER. Upon the occurrence of any event that
causes the Sole Member to cease to be a member of the Company (other than (i)
upon an assignment by the Sole Member of all of its limited liability company
interest in the Company and the admission of the transferee pursuant to Article
VIII, or (ii) the resignation of the member and the admission of an additional
member of the Company pursuant to Article VIII), the Person acting as the
Manager pursuant to Section 5.1 shall, without any action of any Person and
simultaneously with the Sole Member's ceasing to be a member of the Company,
automatically be admitted to the Company as a Special Member and shall continue
the Company without dissolution. The Special Member may not resign from the
Company or transfer its rights as Special Member unless (i) a successor Special
Member has been admitted to the Company as Special Member by executing a
counterpart to this Agreement, and (ii) such successor has also accepted its
appointment as Manager pursuant to Section 5.1. The Special Member shall 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, the Special Member shall not be required
to make any capital contributions to the Company and shall not receive a limited
liability company interest in the Company. The Special Member, in its capacity
as Special Member, may not bind the Company. Except as required by any mandatory
provision of the Act, the Special Member, in its capacity as Special Member,
shall have no right to vote on, approve or otherwise consent to any action
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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 the Special Member, the Person acting as the Manager
pursuant to Section 5.1 shall execute a counterpart to this Agreement. Prior to
its admission to the Company as Special Member, the Person acting as the Manager
pursuant to Section 5.1 shall not be a member of the Company.
ARTICLE VII
INDEMNIFICATION
Section 7.1. EXCULPATION AND INDEMNIFICATION OF THE SOLE MEMBER AND
MANAGER.
(a) No Indemnified Party shall be liable to the Company for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Party in connection with any matter arising from, or related
to, or in connection with this Agreement or the Company's business or affairs;
PROVIDED, HOWEVER, that the foregoing shall not eliminate or limit the liability
of any Indemnified Party if a judgment or other final adjudication adverse to
the Indemnified Party establishes that the Indemnified Party's acts or omissions
were in bad faith or involved intentional misconduct or a knowing violation of
law or that the Indemnified Party personally gained in fact a financial profit
or other advantage to which the Indemnified Party was not legally entitled.
(b) The Company shall, to the fullest extent permitted by the Act,
indemnify and hold harmless each Indemnified Party against any losses, claims,
damages or liabilities to which the Indemnified Party may become subject in
connection with any matter arising from, related to, or in connection with, this
Agreement or the Company's business or affairs; PROVIDED, HOWEVER, that no
indemnification may be made to or on behalf of any Indemnified Party if a
judgment or other final adjudication adverse to the Indemnified Party
establishes (i) that the Indemnified Party's acts or omissions giving rise to
such losses, claims, damages or liabilities were committed in bad faith or
involved intentional misconduct or knowing violation of law and were material to
the cause of action so adjudicated or (ii) that the Indemnified Party personally
gained in fact a financial profit or other advantage to which the Indemnified
Party was not legally entitled; PROVIDED, FURTHER, that such indemnification
shall be subject to the terms of, and shall be subordinate to the obligations
payable under the Approved Company Agreements.
(c) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Party defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the
Company prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Company of an undertaking by or on behalf of the
Indemnified Party to repay such amount if it shall be determined that the
Indemnified Party is not entitled to be indemnified as authorized in this
Section 7.1.
(d) Notwithstanding anything else contained in this Agreement, the
indemnity obligations of the Company under paragraph (b), above, shall:
(i) be in addition to any liability that the Company may
otherwise have;
(ii) inure to the benefit of the successors, assigns, heirs
and personal representatives of each Indemnified Party, and
(iii) be limited to the assets of the Company.
(e) This Article VII shall survive any termination of this Agreement
and the dissolution of the Company.
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ARTICLE VIII
TRANSFERABILITY OF SOLE MEMBER'S INTERESTS
Section 8.1. RESTRICTION ON TRANSFER. The Sole Member may not transfer
its Interest unless such transfer is involuntary or by operation of law, is not
prohibited by any of the Approved Company Agreements, does not cause the total
number of beneficial owners of Interests to exceed ninety-nine (99) and does not
cause the assets of the Company to be considered "plan assets" for purposes of
the Employee Retirement Income Security Act of 1974, as amended, or Section 4975
of the Internal Revenue Code of 1986, as amended.
Section 8.2. TRANSFER FOR SECURITY. The Sole Member may not pledge,
mortgage or otherwise hypothecate all or any part of its right, title and
interest in cash distributions to be received from the Company, except as
provided by the Approved Company Agreements.
Section 8.3. SUBSTITUTE MEMBER. If the Sole Member assigns all or any
part of its Interest pursuant to Section 8.1, the assignee shall be admitted to
the Company as a member of the Company upon the assignee's obtaining the consent
of the Manager to such admission and the assignee's executing a counterpart of
this Agreement, provided that prior notice is given to Xxxxx'x Investors
Service, Inc. and Standard & Poor's Ratings Services of any transfer. If the
Sole Member assigns all of its interest pursuant to Section 8.1, the Sole Member
shall cease to be a member of the Company immediately after the admission of the
assignee to the Company as member of the Company and the Company shall be
continued without dissolution.
Section 8.4. RESIGNATION. Other than as set forth in Section 8.1, the
Sole Member shall not resign from the Company.
ARTICLE IX
DISSOLUTION AND LIQUIDATION
Section 9.1. DISSOLUTION. The Company shall be dissolved and its
affairs shall be wound up solely upon the occurrence of any of the following
events; PROVIDED, HOWEVER, to the fullest extent permitted by law, that the
Company may not dissolve so long as there are any Outstanding Securities:
(a) the happening of any event that makes it unlawful to carry
on the business of the Company;
(b) judicial dissolution pursuant to the Act;
(c) at any time there are no members of the Company, unless
the Company is continued without dissolution in accordance with the Act
or Section 9.2 below; or
(d) subject to the requirements of the Approved Company
Agreements, the Company is dissolved by the Manager with the unanimous
written consent of its entire board of directors (including at least
two Independent Directors). To the fullest extent permitted by law, the
Sole Member shall not have the power or authority, acting alone, to
dissolve the Company and wind up its affairs.
Section 9.2. CONTINUATION OF COMPANY. Notwithstanding any other
provision of this Agreement, the occurrence of an Insolvency Event with respect
to the Sole Member shall not cause the Sole Member to cease to be a member of
the Company and upon the occurrence of such an event, the business of the
Company shall continue without dissolution. In the event of an Insolvency Event
with respect to the Sole Member or the occurrence of any other event that causes
the Sole Member to cease to
10
be a member of the Company at a time when the Sole Member is the only member of
the Company, the Special Member shall become a member of the Company pursuant to
Section 6.4. Upon such admission, the Company shall be continued without
dissolution.
Section 9.3. WINDING UP AND LIQUIDATION OF THE COMPANY. Upon
dissolution, the Company shall continue solely for the purpose of winding up its
affairs in an orderly manner, liquidating its assets and satisfying the claims
of creditors and the Sole Member. Upon dissolution, a full accounting of the
assets and liabilities of the Company shall be taken, and the Company assets
shall be distributed as promptly as possible as hereinafter provided:
(a) first, to the satisfaction (or the making of reasonable
provision for the satisfaction) of such debts and liabilities of the
Company (or reserves therefor), including any necessary expenses of
liquidation, except any debts, liabilities and loans that may be due to
the Sole Member, in the order of priority as provided by law; and
(b) second, to the satisfaction (or the making of reasonable
provision for the satisfaction) of any debts and liabilities that may
be due to the Sole Member and to the satisfaction (or the making of
reasonable provision for the satisfaction) of the unpaid principal
balance and the interest accrued thereon on loans, if any, made by the
Sole Member to the Company.
All of the remaining assets of the Company shall be distributed to the Sole
Member.
ARTICLE X
POWER OF ATTORNEY
Section 10.1. MANAGER AS ATTORNEY-IN-FACT. The Sole Member hereby
makes, constitutes, and appoints the Manager with full power of substitution and
resubstitution, its true and lawful attorney-in-fact for it and in its name,
place, and stead and for its use and benefit, to sign, execute, certify,
acknowledge, swear to, file, and record (a) all limited liability company
certificates, assumed name or similar certificates, and other certificates and
instruments (including counterparts of this Agreement) which the Manager deems
necessary in its reasonable discretion to be filed by the Company under the laws
of the State of Delaware or any other state or jurisdiction in which the Company
is doing business; (b) any and all amendments or changes to the instruments
described in clause (a), as now or hereafter amended, which the Manager may deem
necessary in its reasonable discretion to effect a change or modification of the
Company in accordance with the terms of this Agreement, including, without
limitation, amendments or changes to reflect any amendments adopted by the Sole
Member in accordance with the terms of this Agreement; (c) all certificates of
cancellation and other instruments which the Manager deems necessary in its
reasonable discretion to effect the dissolution and termination of the Company
pursuant to the terms of this Agreement; and (d) any other instrument which is
now or may hereafter be required by law to be filed on behalf of the Company or
is deemed necessary by the Manager in its reasonable discretion to carry out
fully the provisions of this Agreement in accordance with its terms, in each
case, however, subject to the provisions of Section 5.5. The Sole Member
authorizes such attorney-in-fact to take any further action which such
attorney-in-fact shall reasonably consider necessary in connection with any of
the foregoing, hereby giving such attorney-in-fact full power and authority to
do so and perform each and every act or thing whatsoever requisite or advisable
to be done in connection with the foregoing as fully as the Sole Member might or
could do personally, and hereby ratifying and confirming all that any such
attorney-in-fact shall lawfully do or cause to be done by virtue thereof or
hereof.
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Section 10.2. NATURE OF SPECIAL POWER. The power of attorney granted
pursuant to this Article X:
(a) is a special power of attorney coupled with an interest
and is irrevocable;
(b) may be exercised by such attorney-in-fact by executing any
agreement, certificate, instrument or other document with the single
signature of any authorized officer of such attorney-in-fact for the
Sole Member; and
(c) shall not be affected by and shall survive the bankruptcy,
insolvency, dissolution, disability, incapacity or cessation of
existence of the Sole Member and shall survive the delivery of an
assignment by the Sole Member of its interest in the Company, except
that where an assignee of the Sole Member is admitted as a substituted
member, the power of attorney shall survive the delivery of such
assignment for the sole purpose of enabling any such attorney-in-fact
to effect such substitution.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. NOTICES. Any notices or communications hereunder shall be
in writing, and may be either delivered personally (which shall include
deliveries by courier), by facsimile transmission or mailed, postage prepaid, by
certified or registered mail, return receipt requested, directed to the parties
at their respective addresses or fax numbers set forth in EXHIBIT A. Any party
hereto may designate a different address to which notices and demands shall
thereafter be directed by written notice given in the same manner and directed
to the Company at is office hereinabove set forth.
Section 11.2. AMENDMENTS. Subject to Section 5.5 and Section 5.6, this
Agreement shall be amended only by the written consent of the Sole Member and
the Manager.
Section 11.3. HEADINGS. The headings of the various Articles and
Sections herein are for the convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
Section 11.4. SEVERABILITY. If any one or more of the provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such provisions or terms shall be deemed severable from the remaining provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 11.5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 11.6. COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts together constitute
one and the same instrument.
Section 11.7. EFFECT OF AGREEMENT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto, and their respective successors
and assigns.
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Section 11.8. INTEGRATION. This Agreement constitutes the entire
agreement among the parties pertaining to the subject matter thereof and
supersedes all prior agreements and understandings and contemporaneous
agreements and understandings pertaining thereto.
Section 11.9. ENFORCEABILITY. Notwithstanding any other provision of
this Agreement, the Sole Member agrees that this Agreement constitutes a legal,
valid and binding agreement of the Sole Member, and is enforceable against the
Sole Member by the Manager and the Independent Directors, in accordance with its
terms. In addition, the Independent Directors shall be intended beneficiaries of
this Agreement.
IN WITNESS WHEREOF, this Limited Liability Company Operating Agreement
has been executed as of the date first above written.
GREENPOINT MORTGAGE FUNDING, INC.,
as Sole Member
By: /s/ XXXXX XXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
GREENPOINT MORTGAGE SECURITIES INC.
as Manager
By: /s/ XXXXXX XXXXXX
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
EXHIBIT A
ADDRESSES OF THE SOLE MEMBER AND THE MANAGER
ADDRESS:
Sole Member: GreenPoint Mortgage Funding, Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxxxxx #00000
Xxxxxx, Xxxxxxxxxx 00000
Manager: GreenPoint Mortgage Securities Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxxxxx #00000
Xxxxxx, Xxxxxxxxxx 00000
EXHIBIT B
CAPITAL CONTRIBUTION OF SOLE MEMBER
1. Cash in the amount of $1,000.00.
