Exhibit 3.21
LIMITED LIABILITY COMPANY AGREEMENT
OF
XXXXXX EXPRESS LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of Xxxxxx
Express LLC (the "Company"), dated as of this 18th day of June, 1999, by PHH
Holdings Corporation, a Texas corporation, as the sole member of the Company
(the "Member").
RECITAL
The Member has formed the Company as a limited liability company
under the laws of the State of Delaware and desires to enter into a written
agreement, in accordance with the provisions of the Delaware Limited Liability
Company Act and any successor statute, as amended from time to time (the "Act"),
governing the affairs of the Company and the conduct of its business.
ARTICLE 1
The Limited Liability Company
1.1 Formation. The Member has previously formed the Company as a
limited liability company pursuant to the provisions of the Act. A Certificate
of Formation for the Company (the "Certificate of Formation") has been filed in
the Office of the Secretary of State of the State of Delaware in conformity with
the Act. Express authorization is hereby given to Xxxxxxx X. Xxxxxx for the
exclusive purpose of executing the Certificate of Formation of the Company which
has been filed in the Office of the Secretary of State of Delaware.
1.2 Name. The name of the Company shall be "Xxxxxx Express LLC" and
its business shall be carried on in such name with such variations and changes
as the Board (as hereinafter defined) shall determine or deem necessary to
comply with requirements of the jurisdictions in which the Company's operations
are conducted.
1.3 Business Purpose; Powers. The Company is formed for the purpose
of engaging in any lawful business, purpose or activity for which limited
liability companies may be formed under the Act. The Company shall possess and
may exercise all the powers and privileges granted by the Act or by any other
law or by this Agreement, together with any powers incidental thereto, so far as
such powers and privileges are necessary or convenient to the conduct, promotion
or attainment of the business purposes or activities of the Company.
1.4 Registered Office and Agent. The location of the registered
office of the Company shall be Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000. The Company's Registered Agent at such address shall
be The Corporation Trust Company.
1.5 Term. Subject to the provisions of Articles 7 and 9 below, the
Company shall have perpetual existence.
1.6 Principal Place of Business. The principal place of business of
the Company shall be at such location as the Board may, from time to time,
select.
1.7 Title to Company Property. Legal title to all property of the
Company shall be held and vested and conveyed in the name of the Company and no
real or other property of the Company shall be deemed to be owned by the Member
individually. The Common Interests (as hereinafter defined) of the Member shall
constitute personal property.
1.8 Business Transactions of the Member with the Company. In
accordance with Section 18-107 of the Act, the Member may transact business with
the Company and, subject to applicable law, shall have the same rights and
obligations with respect to any such matter as a person who is not a member.
1.9 Fiscal Year. The fiscal year of the Company (the "Fiscal Year")
for financial statement purposes shall be determined by the Board.
2
ARTICLE 2
The Member
2.1 The Member. The name and address of the Member is as follows:
Name Address
---- -------
PHH Holdings Corporation 000 Xxxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000-0000
2.2 Member Meetings.
(a) Actions by the Member; Meetings. The Member may approve a
matter or take any action at a meeting or without a meeting by the written
consent of the Member pursuant to subparagraph (b) below. Meetings of the Member
may be called at any time by the Member.
(b) Action by Written Consent. Any action may be taken by the
Member without a meeting if authorized by the written consent of the Member. In
no instance where action is authorized by written consent of the Member will a
meeting of the Member be called or notice be given. However, a copy of the
action taken by written consent shall be filed with the records of the Company.
2.3 Liability of the Member. All debts, obligations and liabilities
of the Company, whether arising in contract, tort or otherwise, shall be solely
the debts, obligations and liabilities of the Company, and the Member shall not
be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a member.
2.4 Power to Bind the Company. The Member (acting in its capacity as
such) shall have the authority to bind the Company to any third party with
respect to any matter.
2.5 Admission of Members. New members shall be admitted only upon
the approval of the Member.
3
ARTICLE 3
The Board
3.1 Management By Board of Managers.
(a) Subject to such matters which are expressly reserved
hereunder or under the Act to the Member for decision, the business and affairs
of the Company shall be managed by a board of managers (the "Board"), which
shall be responsible for policy setting and approving the overall direction of
the Company. The Board shall consist of one (1) to seven (7) individuals (the
"Managers"), the exact number of Managers to be determined from time to time by
resolution of the Member or the Board. The initial Board of Managers shall
consist of three (3) individuals who shall be Xxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxx and Xxxxxxx X. Xxxxxx.
(b) Each Manager shall be elected by the Member and shall
serve until his or her successor has been duly elected and qualified, or until
his or her earlier removal, resignation, death or disability. The Member may
remove any Manager from the Board or from any other capacity with the Company at
any time, with or without cause. A Manager may resign at any time upon written
notice to the Board.
(c) Any vacancy occurring on the Board as a result of the
resignation, removal, death or disability of a Manger or an increase in the size
of the Board shall be filled by a majority of the remaining Mangers. A Manager
chosen to fill a vacancy resulting from the resignation, removal, death or
disability of a Manager shall serve the unexpired term of his or her predecessor
in office.
3.2 Meetings of the Board.
(a) The Board shall meet at such times as may be necessary for
the Company's business on at least two (2) days' prior written notice of the
time and place of such meeting. A majority of the Managers shall constitute a
quorum for the transaction of business by the Board.
(b) Notice of any Board meeting may be waived by any Manager
before or after such meeting.
4
(c) All actions of the Board shall require the affirmative
vote of a majority of the Managers. Each Manager shall be entitled to one vote
on all matters. A Manager who is present at a meeting of the Board when action
is taken shall be deemed to have assented to the action taken unless: (i) the
Manager objects at the beginning of the meeting, or promptly upon his or her
arrival, to holding the meeting or transacting business thereat, (ii) the
Manager's dissent or abstention from the action taken is entered in the minutes
of the meeting; or (iii) the Manager delivers written notice of his or her
dissent or abstention to the presiding officer of the meeting before its
adjournment or to the Secretary of the Company immediately after adjournment of
the meeting. The right of dissent or abstention shall not be available to a
Manager who votes in favor of the action taken.
(d) Meetings of the Board may be conducted in person or by
conference telephone facilities and each Manager shall be entitled to
participate in any meeting of the Board by telephone. Any action required or
permitted to be taken at any meeting of the Board may be taken without a meeting
if such number of Managers sufficient to approve such action pursuant to the
terms of this Agreement consent thereto in writing. The writing or writings
effectuating such written consent must be filed with the minutes of proceedings
of the Board.
3.3 Power to Bind Company. No Manager (acting in his capacity as
such) shall have any authority to bind the Company to any third party with
respect to any matter except pursuant to a resolution expressly authorizing such
action which resolution is duly adopted by the Board by the affirmative vote
required for such matter pursuant to this Agreement.
3.4 Officers and Related Persons. The Board shall have the authority
to appoint and terminate officers of the Company and retain and terminate
employees, agents and consultants of the Company and to delegate such duties to
any such officers, employees, agents and consultants as the Board deems
appropriate, including the power, acting individually or jointly, to represent
and bind the Company in all matters, in accordance with the scope of their
respective duties.
ARTICLE 4
Capital Structure and Contributions
4.1 Capital Structure. The capital structure of the Company shall
consist of one class of common interests (the "Common Interests"). All Common
5
Interests shall be identical with each other in every respect. Initially, the
Member shall own one hundred (100) Common Interests.
4.2 Capital Contributions. From time to time, the Board may
determine that the Company requires capital and may request the Member to make
capital contribution(s) in an amount determined by the Board. A capital account
shall be maintained for the Member, to which contributions and profits shall be
credited and against which distributions and losses shall be charged.
ARTICLE 5
Profits, Losses and Distributions
5.1 Profits and Losses. For financial accounting purposes, the
Company's net profits or net losses shall be determined on an annual basis in
accordance with generally accepted accounting principles. In each year, profits
and losses shall be allocated entirely to the Member.
5.2 Distributions. The Board shall determine profits available for
distribution and the amount, if any, to be distributed to the Member, and shall
authorize and distribute on the Common Interests the determined amount when, as
and if declared by the Board. Any distributions by the Company shall be
allocated entirely to the Member.
ARTICLE 6
Accounts; Tax Returns; Tax Characterization
6.1 Books. The Board shall cause to be maintained complete and
accurate books of account of the Company's affairs at the Company's principal
place of business. Such books shall be kept on such method of accounting as the
Board shall select. The Company's accounting period shall be as determined by
the Board.
6.2 Company Tax Returns. The Member shall cause to be prepared and
timely filed all tax returns required to be filed for the Company. Subject to
Section 6.3, the Member may, in its sole discretion, make or refrain from making
any tax election for the Company that it deems necessary.
6
6.3 Tax Treatment. To the extent the Member is the sole member of
the Company, (i) it is the intention of the Member that, for income tax
purposes, the Company be treated as an entity that is disregarded as an entity
separate from its owner and (ii) the Member and the Company shall timely make
all necessary elections and filings, if any, for income tax purposes such that
it will not be treated as a separate entity, but, instead, will be treated for
income tax purposes as an entity that is disregarded as an entity separate from
its owner.
ARTICLE 7
Events of Dissolution
The Company shall be dissolved upon the occurrence of any of
the following events (each, an "Event of Dissolution"):
(a) The Member votes for dissolution; or
(b) A judicial dissolution of the Company under Section 18-802
of the Act.
No other event, including the retirement, withdrawal,
insolvency, liquidation, dissolution, insanity, resignation, expulsion,
bankruptcy, death, incapacity or adjudication of incompetency of the Member,
shall cause the existence of the Company to terminate.
ARTICLE 8
Transfer of Interests in the Company
The Member may sell, assign, transfer, convey, gift, exchange
or otherwise dispose of any or all of its Common Interests and, upon receipt by
the Company of a written agreement by the person or entity to whom such Common
Interests are to be transferred agreeing to be bound by the terms of this
Agreement, such person shall be admitted as a member of the Company.
7
ARTICLE 9
Termination
9.1 Liquidation. In the event that an Event of Dissolution shall
occur, then the Company shall be liquidated and its affairs shall be wound up.
All proceeds from such liquidation shall be distributed in accordance with the
provisions of Section 18-804 of the Act, and all Common Interests in the Company
shall be cancelled.
9.2 Final Accounting. In the event of the dissolution of the
Company, prior to any liquidation, a proper accounting shall be made to the
Member from the date of the last previous accounting to the date of dissolution.
9.3 Distribution in Kind. All or any portion of the Company's assets
may be distributed in kind to the Member in the event the Board determines that
such distribution is in the best interest of the Company.
9.4 Cancellation of Certificate. Upon the completion of the winding
up of the Company and the distribution of the Company's assets, the Company
shall be terminated and the Member shall cause the Company to execute and file a
Certificate of Cancellation in accordance with Section 18-203 of the Act.
ARTICLE 10
Exculpation and Indemnification
10.1 Exculpation. Notwithstanding any other provision of this
Agreement, whether express or implied, or obligation or duty at law or in
equity, none of the Member or any officers, directors, stockholders, managers,
partners, employees, affiliates, representatives or agents of the Member, nor
any Manager, officer, employee, representative or agent of the Company or any of
its affiliates (individually, a "Covered Person" and, collectively, the "Covered
Persons") shall 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 in good faith
by a Covered Person in the reasonable belief that such act or omission was in or
was not contrary to the best interests of the Company, and was within the scope
of authority granted to such Covered Person by this Agreement, the Act, the
Member or the Managers, provided
8
such act or omission does not constitute fraud, willful misconduct, bad faith or
gross negligence.
10.2 Indemnification. To the fullest extent permitted by law, the
Company shall indemnify and hold harmless each Member, Manager and each
director, stockholder, manager and partner of the Member (collectively,
"Indemnified Parties") from and against any and all losses, claims, demands,
liabilities, expenses, judgments, fines, settlements and other amounts arising
from any and all claims, demands, actions, suits or proceedings, civil,
criminal, administrative or investigative ("Claims"), in which such Indemnified
Party may be involved, or threatened to be involved, as a party or otherwise, by
reason of its management of the affairs of the Company or which relates to or
arises out of the Company or its property, business or affairs. Notwithstanding
the foregoing, none of the Indemnified Parties shall be entitled to
indemnification under this Section 10.2 with respect to any Claim with respect
to which such Indemnified Party has engaged in fraud, willful misconduct, bad
faith or gross negligence. The Company may, but shall not be required to,
provide indemnification rights to officers, employees, representatives, agents
and affiliates of the Company or the Member to the same extent provided to
Indemnified Parties pursuant to this Section 10.2, when as, and if determined by
the Board, in its sole discretion.
10.3 Advancement of Expenses. The Company may pay for in advance or
reimburse as incurred the reasonable expenses, including reasonable attorneys'
fees, incurred by a Indemnified Party in such proceeding referred to in Section
10.2, or otherwise reimburse such expenses in advance of the final disposition
of such proceeding, or, where appropriate, may assume the defense of any such
Indemnified Party at the Company's expense upon the receipt by the Company of an
undertaking by such Indemnified Party to repay any such amounts if such
Indemnified Party is ultimately determined not to be entitled to indemnification
pursuant to Section 10.2 hereof.
10.4 Indemnification Not Exclusive. The indemnification and
advancement of expenses provided for in this Article 10 shall not exclude, limit
or preclude any other rights to which any such Indemnified Party seeking
indemnification or advancement of expenses may be entitled under the Act, any
agreement or contract, any other applicable law or otherwise, and shall continue
as to a Indemnified Party who has ceased to serve as a Member (or director,
stockholder, manager or partner of the Member) or Manager of the Company, or in
any other indemnified
9
capacity, and shall inure to the benefit of the heirs, executors, and
administrators of any such Indemnified Party.
10.5 Insurance. The Company may purchase and maintain insurance on
behalf of any Indemnified Party against any liability asserted against or
incurred by such Indemnified Party in any capacity or arising out of his or her
status as such, whether or not the Company has the obligation or power to
indemnify such Indemnified against such liability pursuant to the provisions of
this Article 10, the Act, or otherwise.
10.6 Continuation of Indemnity. The provisions of this Article 10
shall continue to apply to any proceeding specified in Section 10.2 made or
commenced against any Indemnified Party who has ceased to be a Indemnified Party
entitled to indemnification hereunder and shall inure to the benefit of the
estate, heirs and personal representatives of such Indemnified Party.
10.7 Amendments. Any repeal or modification of this Article 10 by
the Member shall not adversely affect any rights of such Indemnified Party
pursuant to this Article 10, including the right to indemnification and to the
advancement of expenses of a 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.
ARTICLE 11
Amendment to Agreement
Amendments to this Agreement and to the Certificate of Formation
must be approved in writing by the Member. An amendment shall become effective
as of the date specified in the approval of the Member or if none is specified
as of the date of such approval or as otherwise provided in the Act.
ARTICLE 12
General Provisions
12.1 Notices. Unless otherwise specifically provided in this
Agreement, all notices and other communications required or permitted to be
given hereunder shall be in writing and shall be (i) delivered by hand, (ii)
delivered by a nationally recognized commercial overnight delivery service,
(iii) mailed postage
10
prepaid by first class mail in any such case directed or addressed to the
address set forth below or (iv) transmitted by facsimile to:
If to the Member, to:
PHH Holdings Corporation
000 Xxxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000-0000
Such notices shall be effective: (a) in the case of hand deliveries, when
received; (b) in the case of an overnight delivery service, on the next business
day after being placed in the possession of such delivery service, with delivery
charges prepaid; (c) in the case of mail, seven (7) days after deposit in the
postal system, first class mail, postage prepaid; and (d) in the case of
facsimile notices, when electronic indication of receipt is received. Any party
may change its address and telecopy number by written notice to the other given
in accordance with this Section 12.1.
12.2 Construction Principles. As used in this Agreement, words in
any gender shall be deemed to include all other genders. The singular shall be
deemed to include the plural and vice versa. The captions and article and
section headings in this Agreement are inserted for convenience of reference
only and are not intended to have significance for the interpretation of or
construction of the provisions of this Agreement.
12.3 Severability. If any provision of this Agreement is held to be
invalid or unenforceable for any reason, such provision shall be ineffective to
the extent of such invalidity or unenforceability; provided, however, that the
remaining provisions will continue in full force without being impaired or
invalidated in any way unless such invalid or unenforceable provision or clause
shall be so significant as to materially affect the expectations of the Member
regarding this Agreement. Otherwise, any invalid or unenforceable provision
shall be replaced by the Member with a valid provision which most closely
approximates the intent and economic effect of the invalid or unenforceable
provision.
12.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the principles of conflicts of laws thereof.
11
12.5 Binding Effect. This Agreement shall be binding upon, and inure
to the benefit of, the Member.
12.6 Additional Documents and Acts. The Member agrees to execute and
deliver such additional documents and instruments and to perform such additional
acts as may be necessary or appropriate to effectuate, carry out and perform all
of the terms, provisions, and conditions of this Agreement and of the
transactions contemplated hereby.
12.7 No Third-Party Beneficiary. This Agreement is made solely for
the benefit of the Member and no other person shall have any rights, interest,
or claims hereunder or otherwise be entitled to any benefits under or on account
of this Agreement as a third-party beneficiary or otherwise.
12.8 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.
[SIGNATURE PAGE FOLLOWS]
12
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement
as of the day first above written.
PHH HOLDINGS CORPORATION
By: /s/ [Illegible]
-------------------------------
Name:
Title:
