Exhibit 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
BCAP LLC
LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of BCAP LLC (the
"Company"), made and entered into as of August 25, 2005 by Barclays Bank PLC
(the "Member") and such other persons as may hereafter be admitted from time to
time as members hereunder each in such person or entities capacity as a member
of the Company (collectively referred to in this Agreement as the "Member").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Company was formed pursuant to Section 18-201 of the Limited
Liability Company Act of the State of Delaware (as the same may be amended from
time to time, the "Act"), by filing of a Certificate of Formation with the
Secretary of State of the State of Delaware on and as of August 25, 2005; and
WHEREAS, the Member desires to provide for its respective rights, duties and
obligations and the operation and management of the Company for the purposes
stated herein.
NOW, THEREFORE, the party hereto forms the Company in accordance with the Act
and subject to the terms of this Agreement.
1. NAME
The name of the Company shall be BCAP LLC, and its business shall be
carried on in such name, or in such other names as the Member may from
time to time determine.
2. FORMATION
The Company was formed on August 25, 2005. Xxxxx X. Xxxxxx, Xx. is hereby
designated as an "authorized person" within the meaning of the Act, and
has executed, delivered and filed the Certificate of Formation of the
Company with the Secretary of State of the State of Delaware. Upon the
filing of the Certificate of Formation with the Secretary of State of the
State of Delaware, his powers as an "authorized person" ceased, and the
Member thereupon became the designated "authorized person" and shall
continue as the designated "authorized person" within the meaning of the
Act. The Member or any Officer (as such term is defined in this Agreement)
of the Company to whom such authority is delegated, shall hereafter
execute, or cause to be executed, all other instruments, certificates,
notices and documents, and shall do, or cause to be done, all such
filings, recordings, publications and other acts, in each case, as may be
necessary or appropriate from time to time to comply with all applicable
requirements of the Act and under the laws of all other jurisdictions in
which the Company does or desires to conduct business.
The existence of the Company as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in the Act.
3. PURPOSE
The Company is formed for the object and purpose of acting on behalf of
the Member in connection with the Member's whole loan acquisition and
securitization business, including the purchase of various types of
single-family and multifamily residential
mortgage loans, home improvement contracts, cooperative apartment loans or
manufactured housing sales contracts, installment loan agreements or
beneficial interests in them, and home equity lines of credit and retail
installment sale and installment loan contracts secured by, or closed-end
or open-end lease contracts on, new or used automobiles, light duty
trucks, motorcycles, recreational vehicles, sport utility vehicles and
vans, and claims on related insurance policies (collectively, the "Asset
Pools") and the issue and offer and sale of securities backed by the Asset
Pools through trust funds or otherwise. The Company shall also have the
authority to engage in any lawful business or activity that now or
hereafter may be necessary, incidental, proper or advisable or convenient
to accomplish the foregoing purposes.
4. REGISTERED OFFICE OF THE COMPANY
The name and address of the registered agent and the address of the
registered office of the Company are as follows:
Name: Address:
The Corporation Trust Corporation Trust Center
Company 0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
5. MEMBER
5.1 Member
The name and the business, residence, or mailing address of the Member of
the Company is as follows:
Name: Address:
Barclays Bank PLC 00 Xxxxxxx Xxxxxx Xxxxxx,
Xxxxxxx XX0X 0XX XX
The Member shall have the rights and obligations of a "member" within the
meaning of Section 18-101(11) of the Act and shall be the holder of a
limited liability company interest in the Company within the meaning of
Section 18-101(8) of the Act. The entire "limited liability company
interest" within the meaning of Section 18-101(8) of the Act in the
Company shall be divided into 100 equal portions (each such portion
hereinafter referred to as a "Share."). The number of Shares may be
increased in accordance with Section 7(b) of this Agreement.
(a) Power. Except as delegated by the Member to any Officer or other
persons or entities ("Delegates") or delegated by any Officer to a
Delegate pursuant to Section 6.3 of this Agreement, the business of
the Company shall be conducted under the exclusive management of the
Member, who shall have exclusive authority to act for the Company in
all matters. The Member shall individually have the power and
authority to take any and all action necessary, appropriate, proper,
advisable, incidental or convenient to or for the furtherance of the
purpose set forth in Section 3 of this Agreement, including but not
limited to the power and authority to:
(i) conduct its business, carry on its operations, and have and
exercise the powers granted to a limited liability company
by the Act in any state,
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territory, district or possession of the United States, or
in any foreign country that may be necessary, convenient, or
incidental to the accomplishment of the purpose of the
Company;
(ii) to acquire, by purchase, lease, contribution of property or
otherwise, and to own, hold, operate, maintain, finance,
improve, sell, transfer, assign, convey, exchange, lend,
lease, sublease, mortgage, charge, pledge, grant security
interests in, demolish or otherwise dispose of or deal with
all or any part of the Company's interest in the assets of
the Company;
(iii) in furtherance of the Company's purposes and business,
acquire Asset Pools from the Member, establish trust funds
for the issue, offer and sale of securities, and issue,
offer and sell securities, and other obligations of the
Company in the United States and elsewhere;
(iv) perform, or cause to be performed, all of the Company's
obligations under any agreement of any kind, including,
without limitation, contracts with the Member or any person
or other entity that directly or indirectly controls, is
controlled by, or is under common control with the Member
("Affiliates"), and including this Agreement;
(v) lend, advance or deposit proceeds from the issue or sale of
securities or other obligations of the Company to the Member
or any of its Affiliates;
(vi) on behalf of the Company, xxx and be sued, complain and
defend and participate in administrative or other
proceedings, in its name;
(vii) execute and deliver such documents on behalf of the Company
as the Member may deem necessary or desirable for the
Company's business, including the execution of agreements of
merger and consolidation;
(viii) employ such accountants, attorneys or other persons as shall
be necessary for the proper operation of the Company;
(ix) indemnify any person or entity and to obtain all types of
insurance;
(x) open and maintain bank accounts for the Company's funds; and
(xi) do any act which is necessary or desirable to carry out any
of the foregoing.
(b) Members Consent in Lieu of Meeting. Any action required or permitted
to be taken at any meeting of the Member may be taken without a
vote, if a consent in writing, setting forth the action so taken,
shall be signed by all of the Members and such consent is filed with
the minutes of the proceedings of the Member.
(c) The Company, and the Member, or any Officer or Delegate on behalf of
the Company, may enter into and perform the Transaction Documents
and all documents, agreements, certificates, or financing statements
contemplated thereby or related thereto, all without any further
act, vote or approval of any Member, Officer, Delegate or other
Person notwithstanding any other provision of this Agreement, the
Act or applicable law, rule or regulation. The foregoing
authorization shall not be deemed a restriction on the powers of the
Member, or any Officer, or Delegate to enter into other agreements
on behalf of the Company.
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(d) "Transaction Documents" shall mean this Agreement and all documents
and certificates contemplated thereby or delivered in connection
therewith.
5.2 Outside Interests
The Member may engage, invest and participate in, and otherwise enter
into, other business ventures of any kind, nature and description, whether
or not any such business venture competes with the business of the Company
notwithstanding any provision to the contrary at law or in equity, and the
Company shall not have any right in any such activities or the income or
profits derived therefrom.
6. OFFICERS
6.1 Appointment. The Member may, but shall not have obligation to, elect one
or more of the following officers (the "Officers") to supervise operations
of the Company on a day-to-day basis: a president, one or more senior
vice-presidents, vice-presidents, secretary, assistant secretaries,
treasurer, assistant treasurers and such other Officers as the Member may
determine. The Member shall determine the powers, duties and salaries of
such Officers and other relevant terms and conditions regarding such
offices. All Officers shall be subject to the supervision and direction of
the Member. The authority, duties or responsibilities of any Officer may
be suspended by the president of the Company with or without cause. Any
Officer elected by the Member may be removed by the Member with or without
cause. Any Officer may resign at any time upon written notice to the
Company. The resignation shall be effective upon receipt thereof by the
Company or at such subsequent time as may be specified in the notice of
resignation.
6.2 Election, Term of Office and Resignations.
(a) Unless otherwise determined by the Member, the Officers of the
Company, except those elected by delegated authority pursuant to
Section 6.3 of this Agreement, shall be elected by the Member. Each
Officer shall hold office for the term for which he or she is
elected and until a successor has been selected and qualified or
until his or her earlier death, incapacity, resignation, or removal.
(b) Any Officer may resign at any time upon written notice to the
Company. The resignation shall be effective upon receipt by the
Company of, or at such subsequent time as may be specified in the
notice of resignation.
6.3 Subordinate Officers, Committees and Agents. The Member may from time to
time elect such other Officers and appoint such committees, Delegates,
employees, or other agents as the business of the Company may require
(including, without limitation, one or more assistant secretaries or
assistant treasurers), each of whom shall hold office for such period,
have such authority, and perform such duties as are provided in this
Agreement, or as the Member may from time to time determine. The Member
may delegate to any Officer or committee the power to elect subordinate
officers and to retain or appoint Delegates, employees or other agents, or
committees thereof, and to prescribe the authority and duties of such
subordinate officers, committees, Delegates, employees, or other agents.
6.4 Removal of Officers and Agents. Any Officer, Delegate, employee or agent
of the Company may be removed by the Member with or without cause. The
removal shall be without prejudice to the contract rights, if any, of any
person so removed. Election or appointment of an Officer, Delegate,
employee or agent shall not of itself create contract rights.
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6.5 Vacancies. A vacancy in any office because of death, incapacity,
resignation, removal, disqualification, or any other cause, may be filled
by the Member.
6.6 Salaries. The salaries, if any, of the Officers elected by the Member
shall be fixed from time to time by the Member. The salaries or other
compensation of any other Officers, Delegates, employees and other agents
shall be fixed from time to time by the Officer or committee to which the
power to elect such Officers or to retain or appoint such Delegates,
employees or other agents has been delegated pursuant to Section 6.3. No
Officer, Delegate, employee or agent shall be prevented from receiving
such salary or other compensation by reason of the fact that the Officer
is also an Officer of the sole Member of the Company.
7. CAPITAL CONTRIBUTIONS
(a) Existing Contributions. Simultaneously with the execution and
delivery of this Agreement, the Member's contribution to the
Corporation shall be deemed to have been a contribution to the
Company and such contribution amounts to 100 Shares.
(b) Future Contributions. The Member may, but is not obligated to,
contribute the amounts in cash to the Company and shall receive in
return for such investments one Share for each $1 (one dollar) of
cash contribution made. Each such Share received by the Member shall
result in an equivalent increase in the total number of Shares.
8. ACCOUNTS, BOOKS AND RECORDS AND COMPANY SEAL
The fiscal year of the Company shall be fixed by the Member. The secretary
of the Company shall keep the records required to be kept pursuant to the
Act, and any other books and records with respect to the Company as the
Member in its sole discretion shall deem necessary or desirable. The books
and records shall at all times be maintained at the principal office of
the Company and shall be open to reasonable inspection and examination of
the Member pursuant to Section 18-305 of the Act. A Company seal shall not
be a requisite to the validity of any instrument by or on behalf of the
Company, but may be used.
9. CERTIFICATE OF LIMITED LIABILITY COMPANY INTERESTS
The Company shall issue to the Member, a certificate of limited liability
company interest, pursuant to Section 18 702 of the Act. The Shares are
governed by Article 8 of the Uniform Commercial code of the State of
Delaware.
Each limited liability company interest in the Company (an "Interest")
shall constitute a "security" within the meaning of, and governed by, (i)
Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15)
thereof) as in effect from time to time in the State of Delaware, and (ii)
Article 8 of the Uniform Commercial Code of any other applicable
jurisdiction that now or hereafter substantially includes the 1994
revisions to Article 8 thereof as adopted by the American Law Institute
and the National Conference of Commissioners on Uniform State Laws and
approved by the American Bar Association on February 14, 1995.
Notwithstanding any provision of this Agreement to the contrary, to the
extent that any provision of this Agreement is inconsistent with any
non-waivable provision of Article 8 of the Uniform Commercial Code as in
effect in the State of Delaware (6 Del. C. ss. 8-101, et seq.) (the
"UCC"), such provision of Article 8 of the UCC shall control. The Company
shall maintain books for the purpose of registering the transfer of
Interests. A transfer of Interests shall require delivery of an endorsed
certificate.
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10. ALLOCATION OF PROFIT AND LOSS DISTRIBUTIONS
10.1 The Company's profits and losses shall be allocated entirely to the
Member, as the sole and exclusive Member of the Company. Notwithstanding
any provision to the contrary contained in this Agreement, the Company
shall not be required to make a distribution to the Member on account of
its interest in the Company if such distribution would violate Section
18-607 of the Act or any other applicable law.
10.2 The income and assets of the Company belong beneficially to the Company.
Upon liquidation of the Company, liquidating distributions shall, subject
to the Act, be made in accordance with Section 10.1 above.
11. ADMISSION OF ADDITIONAL MEMBERS
It is the intention of the Member that the Company shall constitute a
single member limited liability company that shall be disregarded as an
entity separate from the Member for United States Federal income tax
purposes within the meaning of Treasury Regulation ss.301.7701-2 and
ss.301.7701-3, promulgated under the Internal Revenue Code of 1986, as
amended and currently in effect. Accordingly, unless and until this
Agreement shall be amended to provide for the contrary, no additional
members may be admitted to the Company.
12. LIABILITY OF MEMBER
The Member shall not have any liability for the obligations or liabilities
of the Company solely by reason of being a member of the Company except to
the extent provided in the Act.
13. VOLUNTARY WITHDRAWAL OF MEMBER
The Member may withdraw from the Company in accordance with the Act.
14. TERM, WINDING UP, LIQUIDATION, AND DISTRIBUTION OF ASSETS
14.1 The existence of the Company shall be perpetual, provided that it
continues to have at least one Member and except as otherwise required by
law.
14.2 The Company shall be dissolved and its affairs shall be wound up upon the
first to occur of the following events:
(a) the written consent of the Member;
(b) the entry of a decree of judicial dissolution under ss.18-802 of the
Act; or
(c) the bankruptcy, insolvency, withdrawal or dissolution of the Member
or the occurrence of any other event that terminates the continued
membership of the Member.
14.3 In the event of a dissolution of the Company, the Member shall proceed
with reasonable promptness to sell all or some of the assets owned by the
Company and to liquidate the business of the Company in accordance with
the Act. Upon dissolution, the assets of the Company and the proceeds of
the liquidation of its business shall be used and distributed in the
following order:
(a) any liabilities and liquidating expenses of the Company will first
be satisfied (whether by payment or the making of reasonable
provision for payment thereof); and
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(b) the amount then remaining shall be paid or distributed to the
Member.
Non-cash assets of the Company, including, without limitation, financial
instruments, upon the approval of the Member, may be distributed in kind
on the basis of their fair market values as determined by the Member.
15. TRANSFER OF INTERESTS
15.1 In accordance with Section 9 of this Agreement. The Member may sell,
transfer, assign, exchange, mortgage, pledge, grant a security interest
in, or otherwise dispose of or encumber all or any part of its Shares or
economic interest in the Company (including, without limitation, the right
to receive distributions and allocations) in its sole discretion.
15.2 In the event of any transfer of all or any part of an interest in the
Company in accordance with Section 15.1, the transferee shall be deemed,
and shall be admitted as, a substitute Member upon the transferee's
execution and delivery to the Company of a counterpart of this Agreement,
evidencing the transferee's agreement to be bound by all of the terms and
conditions of this Agreement. Immediately following such admission the
transferor Member shall cease to be a member of the Company. Any such
transferee may be admitted to the Company as a Member and may receive
interest in the Company without making a contribution or being obligated
to make a contribution to the Company.
16. LIABILITY OF THE MEMBER
To the fullest extent permitted by law, the Member shall not be personally
liable either for the obligations, contracts, debts or liabilities of the
Company solely by reason of being a Member of the Company. The failure of
the Company to observe any formalities or requirements relating to the
exercise of its powers or management of its business or affairs under this
Agreement or the Act shall not be grounds for imposing personal liability
on the Member for liabilities of the Company.
17. INDEMNIFICATION; RELIANCE
17.1 To the fullest extent permitted by law, the Company shall indemnify, hold
harmless, protect and defend each of the former or current Officers,
Member and, at the discretion of the Member, any current or former
Delegate, employee or agent of the Company (collectively, the "Covered
Persons"), against any losses, claims, damages or liabilities (whether
civil, criminal, administrative, investigative or otherwise), including,
without limitation, legal or other expenses incurred in investigating or
defending against any such loss, claim, damages or liability, and any
judgements, fines or amounts expended in settlement of any claim (whether
civil, criminal, administrative, investigative or otherwise) threatened,
pending or completed by reason of the fact that he or she was a Member,
Officer, Delegate, employee, or agent of the Company or is or was serving
at the request of the Company as a director, officer, employee, or agent
of another corporation, partnership, joint venture, limited liability
company, trust or other enterprise.
17.2 A Covered Person shall be fully protected in relying in good faith upon
the records of the Company and upon such information, opinions, reports or
statements presented to the Company by any person or entity as to matters
the Covered Person reasonably believes are within the professional or
expert competence of such person or entity and who or which has been
selected with reasonable care by or on behalf of the Company, including
information, opinions, reports or statements as to the value and amount of
the assets, liabilities, profits,
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losses, or any other facts pertinent to the existence and amount of assets
from which distributions to the Member might properly be paid.
18. NOTICES
All notices, demands, consents, approvals, requests or other
communications which any of the parties to this Agreement may desire or be
required to give hereunder (collectively, "Notices") shall be in writing
and shall be given by registered or certified mail, return receipt
requested, with postage paid, or by a nationally recognized overnight
courier addressed as follows:
(a) If to the Company to:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
(b) If to the Member, at the address set forth in Section 5.1 of this
Agreement. Any Member may designate another addressee (and/or change
its address) for Notices hereunder by a Notice given pursuant to
this Section. A Notice sent in compliance with the provisions of
this Section 18 shall be deemed given on the second (2nd) business
day next succeeding the day on which it is sent if sent by
registered or certified mail or on the first (1st) business day
following the day on which the notice was delivered to the overnight
courier.
19. AMENDMENT
The Member, acting by a majority vote, may alter, amend or repeal this
Agreement.
20. INVESTOR REPRESENTATION
The Member represents and warrants to the Company that it is acquiring its
Shares for the Member's own account as an investment and without an intent
to distribute the interest. The Member acknowledges that its Shares have
not been registered under the Securities Act of 1933, as amended, or any
state securities laws, and may not be resold or transferred by the Member
without appropriate registration or the availability of an exemption from
such requirements.
21. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the parties hereto and their
respective executors, administrators, legal representative, heirs,
successors and permitted assigns, and shall inure to the benefit of the
parties hereto and, except as otherwise provided herein, their respective
executors, administrators, legal representatives, heirs, successors and
permitted assigns.
22. SEVERABILITY
In case any one or more of the provisions contained in this Agreement or
any application thereof shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein and other application thereof shall not in any
way be affected or impaired thereby.
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23. HEADINGS
The headings in this Agreement are for convenience only and shall not
affect the meaning, construction or effect of this Agreement.
24. GOVERNING LAW
This Agreement shall be governed by, and construed under, the laws of the
State of Delaware (without regard to conflict of laws principles), all
rights and remedies being governed by said laws.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has
duly executed this Agreement as of the date first above written.
Barclays Bank PLC,
as sole Member
By:
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Name:
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TABLE OF CONTENTS
Page
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1. NAME.................................................................1
2. FORMATION............................................................1
3. PURPOSE..............................................................1
4. REGISTERED OFFICE OF THE COMPANY.....................................2
5. MEMBER...............................................................2
6. OFFICERS.............................................................4
7. CAPITAL CONTRIBUTIONS................................................5
8. ACCOUNTS, BOOKS AND RECORDS AND COMPANY SEAL.........................5
9. CERTIFICATE OF LIMITED LIABILITY COMPANY INTERESTS...................5
10. ALLOCATION OF PROFIT AND LOSS DISTRIBUTIONS..........................6
11. ADMISSION OF ADDITIONAL MEMBERS......................................6
12. LIABILITY OF MEMBER..................................................6
13. VOLUNTARY WITHDRAWAL OF MEMBER.......................................6
14. TERM, WINDING UP, LIQUIDATION, AND DISTRIBUTION OF ASSETS............6
15. TRANSFER OF INTERESTS................................................7
16. LIABILITY OF THE MEMBER..............................................7
17. INDEMNIFICATION; RELIANCE............................................7
18. NOTICES..............................................................8
19. AMENDMENT............................................................8
20. INVESTOR REPRESENTATION..............................................8
21. SUCCESSORS AND ASSIGNS...............................................8
22. SEVERABILITY.........................................................8
23. HEADINGS.............................................................9
24. GOVERNING LAW........................................................9
Execution Copy
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LIMITED LIABILITY COMPANY AGREEMENT
OF
BCAP LLC
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