EXHIBIT 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
TACONIC ASSET ACCEPTANCE COMPANY, L.L.C.
This Limited Liability Company Agreement (together with the schedules
attached hereto, this "AGREEMENT") of Taconic Asset Acceptance Company, L.L.C.
(the "COMPANY") is entered into by Xxxxxxxxxx Securities, LP, a Delaware limited
partnership, as the initial member of the Company (the "INITIAL MEMBER" and
together with the other members of the Company from time to time (other than the
Special Member), the "MEMBERS"). Capitalized terms used and not otherwise
defined herein have the meanings set forth on SCHEDULE A hereto.
The Initial Member hereby forms a limited liability company pursuant to
and in accordance with the Delaware Limited Liability Company Act (6 DEL. C. ss.
18-101 ET SEQ.), as amended from time to time (the "ACT").
The Member hereby agrees as follows:
Section 1. NAME.
The name of the limited liability company formed hereby is Taconic
Asset Acceptance Company, L.L.C.
Section 2. PRINCIPAL BUSINESS OFFICE.
The principal business office of the Company shall be located at Nine
Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 or such other location as
may hereafter be determined by the Members.
Section 3. REGISTERED OFFICE.
The address of the registered office of the Company in the State of
Delaware is The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxx Trust
Center, in the City of Wilmington, County of Xxx Xxxxxx, Xxxxxxxx 00000.
Section 4. REGISTERED AGENT.
The name and address of the registered agent of the Company for service
of process on the Company in the State of Delaware is The Corporation Trust
Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxx Trust Center, in the City of Wilmington,
County of Xxx Xxxxxx, Xxxxxxxx 00000.
Section 5. MEMBERS.
(a) The mailing address of the Members is set forth on SCHEDULE B
attached hereto.
(b) Subject to SECTION 9(J), the Members may act by written consent.
(c) Upon the occurrence of any event that causes the Member to cease to
be a member of the Company (other than upon continuation of the Company without
dissolution upon (i) an assignment by the Member of all of its limited liability
company interest in the Company and the admission of the transferee pursuant to
SECTIONS 22 and 24, or (ii) the resignation of the Member and the admission of
an additional member of the Company pursuant to SECTIONS 23 and 24), each Person
acting as an Special Member/Independent Director pursuant to SECTION 10 shall,
without any action of any Person and simultaneously with the Member ceasing to
be a member of the Company, automatically be admitted to the Company as a
Special Member and shall continue the Company without dissolution. No Special
Member may 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 Special Member/Independent
Director pursuant to SECTION 10; PROVIDED, HOWEVER, the Special Members shall
automatically cease to be members of the Company upon the admission to the
Company of a substitute Member. Each 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, a 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. A Special Member, in its capacity as Special
Member, may not bind the Company. Except as required by any mandatory provision
of the Act, each Special Member, in its capacity as Special Member, shall have
no right to vote on, approve or otherwise consent to any action by, or matter
relating to, the Company, including, without limitation, the merger,
consolidation or conversion of the Company. In order to implement the admission
to the Company of each Special Member, each Person acting as an Special
Member/Independent Director pursuant to SECTION 10 shall execute a counterpart
to this Agreement. Prior to its admission to the Company as Special Member, each
Person acting as an Special Member/Independent Director pursuant to SECTION 10
shall not be a member of the Company.
Section 6. CERTIFICATES.
Xxxxxxx Xxxxx, 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, her 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 existence of the Company as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in the Act.
Section 7. PURPOSES. The purpose to be conducted or promoted by the
Company is to engage in the following activities:
(a) (i) to purchase, accept capital contributions of or otherwise
acquire (A) mortgage loans and home equity loans, including rights to
payment of any interest, finance charges or fees and any other rights
with respect thereto (the "RECEIVABLES"), (B) security interests in the
homes financed by the Receivables (the "FINANCED HOMES") and any
accessions thereto; (C) the rights to proceeds with respect to the
Receivables from claims on insurance policies covering the Financed
Homes and any rights of an originator of the Receivables in any rebates
of premiums and other amounts relating to insurance policies and other
items financed under the Receivables; (D) any property that shall have
secured a Receivable; (E) any rights of an originator with respect to
any agreement under which such originator has acquired Receivables
originated by or through a home finance entity; (F) any rights of an
originator of the Receivables in any documents or instruments or other
property appurtenant or relating to the Receivables; and (G) any and
all proceeds of the foregoing (the property described in clauses (B)
through (G) above being called the "RELATED ASSETS");
(ii) to own, hold, service, sell, assign, transfer, pledge,
grant security interests in or otherwise exercise ownership rights with
respect to the Receivables and Related Assets;
(iii) to issue and sell one or more series of Securities;
(iv) to act as settlor or depositor of trusts or other
entities or to own equity interests in other limited liability
companies (whose purposes are restricted to those set forth in this
SECTION 7(A)), to enter into and perform the limited liability company
agreements of such limited liability companies, each of which is formed
to issue Securities (each, an "ISSUER");
(v) to acquire, own, hold, transfer, assign, pledge, sell and
otherwise deal with any interests in an Issuer or Securities issued by
an Issuer;
(vi) to enter into, execute and deliver any underwriting
agreement, purchase or placement agreement relating to the sale or
placement of any securities issued by an Issuer, any sale and servicing
agreement, pooling and servicing agreement, trust agreement, purchase
agreement, administration agreement, custodial agreement, insurance
agreement or any other agreement which may be required or advisable to
effect the administration or servicing of the Receivables and Related
Assets or the issuance and sale of any Securities (each, a
"SECURITIZATION AGREEMENT"), and to perform its obligations under each
Securitization Agreement to which it is a party;
(vii) to establish any reserve account, spread account or
other credit enhancement for the benefit of Securities issued by the
Company or any Issuer and to loan, transfer or otherwise invest any
proceeds from Receivables and Related Assets and any other income as
determined by the Board;
(viii) to purchase financial guaranty insurance policies for
the benefit of any Security issued by the Company or any Issuer;
(ix) to enter into any interest rate or basis swap, cap, floor
or collar agreements, currency exchange agreements or similar hedging
transactions relating to any Receivables and Related Assets or for the
benefit of any Security issued by the Company or any Issuer;
(x) to prepare, execute and file with the Securities and
Exchange Commission registration statements, including a prospectus and
forms of prospectus supplements, relating to Securities;
(xi) to prepare private placement memorandums relating to
Securities to be offered and sold privately;
(xii) for federal, state or local tax purposes, to serve as
"general partner" of any Issuer;
(xiii) to engage in any lawful act or activity and to exercise
any powers permitted to limited liability companies organized under the
laws of the State of Delaware that are related or incidental to and
necessary, convenient or advisable for the accomplishment of the
above-mentioned purposes.
(b) The Company, by or through the Members, or any Director or Officer
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 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 Members or
any Director or Officer to enter into other agreements on behalf of the Company.
Section 8. POWERS.
Subject to SECTION 9(J), the Company, and the Board of Directors and
the Officers of the Company on behalf of the Company, (i) shall have and
exercise all powers necessary, convenient or incidental to accomplish its
purposes as set forth in SECTION 7 and (ii) shall have and exercise all of the
powers and rights conferred upon limited liability companies formed pursuant to
the Act; provided, however, that neither the Company nor the Board of Directors
or officers of the Company on behalf of the Company shall have or exercise any
powers not permitted of "Qualifying SPEs" (within the meaning of the Statement
of Financial Accounting Standard No. 140 ("FAS 140")) under FAS 140 or any
successor accounting standard thereto.
Section 9. MANAGEMENT.
(a) BOARD OF DIRECTORS. Subject to SECTION 9(J), the business and
affairs of the Company shall be managed by or under the direction of a Board of
one or more Directors designated by the Members. Subject to SECTION 10, the
Members may determine at any time in their sole and absolute discretion the
number of Directors to constitute the Board. The authorized number of Directors
may be increased or decreased by the Members at any time in their sole and
absolute discretion, upon notice to all Directors, and subject in all cases to
SECTION 10. The initial number of Directors shall be four, two of which shall be
Special Member/Independent Directors pursuant to SECTION 10. Each Director
elected, designated or appointed by the Members shall hold office until a
successor is elected and qualified or until such Director's earlier death,
resignation, expulsion or removal. Directors need not be Members. The initial
Directors designated by the Members are listed on SCHEDULE C hereto.
(b) POWERS. Subject to SECTION 9(J), the Board of Directors shall have
the power to do any and all acts necessary, convenient or incidental to or for
the furtherance of the purposes described herein, including all powers,
statutory or otherwise. Subject to SECTION 7, the Board of Directors has the
authority to bind the Company.
(c) MEETING OF THE BOARD OF DIRECTORS. The Board of Directors of the
Company may hold meetings, both regular and special, within or outside the State
of Delaware. Regular meetings of the Board may be held without notice at such
time and at such place as shall from time to time be determined by the Board.
Special meetings of the Board may be called by the President on not less than
one day's notice to each Director by telephone, facsimile, mail, telegram or any
other means of communication, and special meetings shall be called by the
President or Secretary in like manner and with like notice upon the written
request of any one or more of the Directors.
(d) QUORUM: ACTS OF THE BOARD. Subject to the last sentence of Section
10 of this Agreement, at all meetings of the Board, a majority of the Directors
(other than the Special Member/Independent Directors) shall constitute a quorum
for the transaction of business and, except as otherwise provided in any other
provision of this Agreement, the act of a majority of the Directors present at
any meeting at which there is a quorum shall be the act of the Board. If a
quorum shall not be present at any meeting of the Board, the Directors present
at such meeting may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present. Subject to
the last sentence of SECTION 10 of this Agreement, and except as otherwise
provided in any other provisions of this Agreement, any action required or
permitted to be taken at any meeting of the Board or of any committee thereof
may be taken without a meeting if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee, as the case may be.
(e) ELECTRONIC COMMUNICATIONS. Members of the Board, or any committee
designated by the Board, may participate in meetings of the Board, or any
committee, by means of telephone conference or similar communications equipment
that allows all Persons participating in the meeting to hear each other, and
such participation in a meeting shall constitute presence in Person at the
meeting. If all the participants are participating by telephone conference or
similar communications equipment, the meeting shall be deemed to be held at the
principal place of business of the Company.
(f) COMMITTEES OF DIRECTORS.
(i) The Board may, by resolution passed by a majority of the
whole Board (other than the Special Members/Independent Directors),
designate one or more committees, each committee to consist of one or
more of the Directors of the Company. The Board may designate one or
more Directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee.
(ii) In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such members constitute a
quorum, may unanimously appoint another member of the Board to act at
the meeting in the place of any such absent or disqualified member.
(iii) Any such committee, to the extent provided in the
resolution of the Board, and subject to, in all cases, SECTIONS 9(J)
and 10, shall have and may exercise all the powers and authority of the
Board in the management of the business and affairs of the Company.
Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board. Each
committee shall keep regular minutes of its meetings and report the
same to the Board when required.
(g) COMPENSATION OF DIRECTORS; EXPENSES. The Board shall have the
authority to fix the compensation of Directors. The Directors may be paid their
expenses, if any, of attendance at meetings of the Board, which may be a fixed
sum for attendance at each meeting of the Board or a stated salary as Director.
No such payment shall preclude any Director from serving the Company in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
(h) REMOVAL OF DIRECTORS. Unless otherwise restricted by law, any
Director or the entire Board of Directors may be removed or expelled, with or
without cause, at any time by the Members, and, subject to SECTION 10, any
vacancy caused by any such removal or expulsion may be filled by action of the
Members.
(i) DIRECTORS AS AGENTS. To the extent of their powers set forth in
this Agreement and subject to SECTION 9(J), the Directors are agents of the
Company for the purpose of the Company's business, and the actions of the
Directors taken in accordance with such powers set forth in this Agreement shall
bind the Company. Notwithstanding the last sentence of Section 18-402 of the
Act, except as provided in this Agreement or in a resolution of the Directors, a
Director may not bind the Company.
(j) LIMITATIONS ON THE COMPANY'S ACTIVITIES.
(i) This SECTION 9(J) is being adopted in order to comply with
certain provisions required in order to qualify the Company as a
"special purpose" entity.
(ii) The Members shall not, so long as any Obligation is
outstanding, amend, alter, change or repeal the definition of "Special
Member/Independent Director" or SECTIONS 7, 8, 9, 10, 16, 21, 22, 23,
24, 25, 26, 27, 31 or 32 or SCHEDULE A of this Agreement without the
unanimous written consent of the Board (including all Special
Members/Independent Directors). Subject to this SECTION 9(J), the
Members reserve the right to amend, alter, change or repeal any
provisions contained in this Agreement in accordance with SECTION 32.
(iii) Notwithstanding any other provision of this Agreement
and any provision of law that otherwise so empowers the Company, the
Members, the Board, any Officer or any other Person, neither the
Members nor the Board nor any Officer nor any other Person shall be
authorized or empowered, nor shall they permit the Company, without the
prior unanimous written consent of the Members and the Board (including
all Special Members/Independent Directors), to take any Material
Action, PROVIDED, HOWEVER, that the Board may not vote on, or authorize
the taking of, any Material Action, unless there are at least two
Special Members/Independent Directors then serving in such capacity.
(iv) The Board and the Members shall cause the Company to do
or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights (charter and statutory) and
franchises; PROVIDED, HOWEVER, that the Company shall not be required
to preserve any such right or franchise if: (1) the Board shall
determine that the preservation thereof is no longer desirable for the
conduct of its business and that the loss thereof is not
disadvantageous in any material respect to the Company and (2) the
Rating Agency Condition is satisfied. The Board also shall cause the
Company to:
(A) maintain its own books and records and bank
accounts separate from the Members or any other Person;
(B) at all times hold itself out to the public and
all other Persons as a legal entity separate from the Members
and any other Person;
(C) have a Board of Directors separate from that of
the Members and any other Person;
(D) file its own tax returns, if any, as may be
required under applicable law, to the extent (1) not part of a
consolidated group filing a consolidated return or returns or
(2) not treated as a division for tax purposes of another
taxpayer, and pay any taxes so required to be paid under
applicable law;
(E) except as contemplated by the Transaction
Documents, not commingle its assets with assets of the Members
or any other Person;
(F) conduct its business in its own name and strictly
comply with all organizational formalities to maintain its
separate existence;
(G) maintain separate financial statements;
(H) pay its own liabilities only out of its own
funds;
(I) maintain an arm's length relationship with its
Affiliates and the Members;
(J) pay the salaries of its own employees, if any;
(K) not hold out its credit or assets as being
available to satisfy the obligations of others;
(L) to the extent its office is located in the
offices of any Affiliate pay fair market rent for its office
space located therein, and otherwise allocate fairly and
reasonably any overhead expenses shared with any Affiliate,
and not engage in any business transaction with any Affiliate
unless on an arm's-length basis;
(M) use separate stationery, invoices and checks;
(N) except as contemplated by the Transaction
Documents, not pledge its assets for the benefit of any other
Person or make any loans or advances to any other Person;
(O) correct any known misunderstanding regarding its
separate identity;
(P) maintain adequate capital in light of its
contemplated business purpose, transactions and liabilities;
(Q) cause its Board of Directors to meet at least
annually or act pursuant to written consent and keep minutes
of such meetings and actions and observe all other Delaware
limited liability company formalities;
(R) not acquire any securities of the Members; and
(S) cause the Directors, Officers, agents and other
representatives of the Company to act at all times with
respect to the Company consistently and in furtherance of the
foregoing and in the best interests of the Company.
Failure of the Company, or the Members or Board on behalf of the Company, to
comply with any of the foregoing covenants or any other covenants contained in
this Agreement shall not affect the status of the Company as a separate legal
entity or the limited liability of the Members or the Directors.
(v) So long as any Obligation is outstanding, the Board shall
not cause or permit the Company to:
(A) except as contemplated by the Transaction
Documents, guarantee or become obligated for the debts of any
Person, including any Affiliate;
(B) engage, directly or indirectly, in any business
other than the actions required or permitted to be performed
under SECTION 7, the Transaction Documents or this SECTION
9(J);
(C) incur, create or assume any indebtedness other
than as expressly permitted hereunder and under the
Transaction Documents;
(D) make or permit to remain outstanding any loan or
advance to, or own or acquire any stock or securities of, any
Person, except that the Company may invest in those
investments permitted under the Transaction Documents and may
make any advance required or expressly permitted to be made
pursuant to any provisions of the Transaction Documents and
permit the same to remain outstanding in accordance with such
provisions;
(E) to the fullest extent permitted by law, engage in
any dissolution, liquidation, consolidation, merger, asset
sale or transfer of ownership interests other than such
activities as are expressly permitted pursuant to any
provision of the Transaction Documents; or
(F) except as contemplated by SECTION 7(A), form,
acquire or hold any subsidiary (whether corporate,
partnership, limited liability company or other).
Section 10. SPECIAL MEMBER/INDEPENDENT DIRECTOR.
Section 11. As long as any Obligation is outstanding, the Members shall
cause the Company at all times to have at least two Special Members/Independent
Directors who will be appointed by the Members. To the fullest extent permitted
by law, including Section 18-1101(c) of the Act, the Special Members/Independent
Directors shall consider only the interests of the Company, including its
respective creditors, in acting or otherwise voting on the matters referred to
in SECTION 9(J)(III). No resignation or removal of an Special Member/Independent
Director, and no appointment of a successor Special Member/Independent Director,
shall be effective until such successor shall have executed a counterpart to
this Agreement as required by SECTION 5(C). In the event of a vacancy in the
position of Special Member/Independent Director, the Members shall, as soon as
practicable, appoint a successor Special Member/Independent Director. All right,
power and authority of the Special Members/Independent Directors shall be
limited to the extent necessary to exercise those rights and perform those
duties specifically set forth in this Agreement. Except as provided in the
second sentence of this SECTION 10, in exercising their rights and performing
their duties under this Agreement, any Special Member/Independent Director shall
have a fiduciary duty of loyalty and care similar to that of a director of a
business corporation organized under the General Corporation Law of the State of
Delaware. No Special Member/Independent Director shall at any time serve as
trustee in bankruptcy for any Affiliate of the Company. The initial Special
Members/Independent Directors of the Company are Xxxxxxxx X. Abedine and Xxxxxxx
Xxxxxxxx. Notwithstanding any other provisions of this Agreement the Special
Members/Independent Directors, in their capacity as Special Members/Independent
Directors, may only vote on, or otherwise participate in, matters referred to in
SECTION 9(J)(II) and SECTION 9(J)(III).
Section 12. OFFICERS.
(a) OFFICERS. The initial Officers of the Company shall be designated
by the Members. The additional or successor Officers of the Company shall be
chosen by the Board and shall consist of at least a President, a Secretary and a
Treasurer. The Board of Directors may also choose one or more Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Any number of offices may be
held by the same person. The Board may appoint such other Officers and agents as
it shall deem necessary or advisable who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board. The salaries of all Officers and agents of the
Company shall be fixed by or in the manner prescribed by the Board. The Officers
of the Company shall hold office until their successors are chosen and
qualified. Any Officer may be removed at any time, with or without cause, by the
affirmative vote of a majority of the Board. Any vacancy occurring in any office
of the Company shall be filled by the Board. The initial Officers of the Company
designated by the Members are listed on SCHEDULE D hereto.
(b) PRESIDENT. The President shall be the chief executive officer of
the Company, shall preside at all meetings of the Board, shall be responsible
for the general and active management of the business of the Company and shall
see that all orders and resolutions of the Board are carried into effect. The
President or any other Officer authorized by the President or the Board shall
execute all bonds, mortgages and other contracts, except: (i) where required or
permitted by law or this Agreement to be otherwise signed and executed,
including SECTION 7(B); (ii) where signing and execution thereof shall be
expressly delegated by the Board to some other Officer or agent of the Company,
and (iii) as otherwise permitted in SECTION 11(C).
(c) VICE PRESIDENT. In the absence of the President or in the event of
the President's inability to act, the Vice President, if any (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated by the Directors, or in the absence of any designation, then in the
order of their election), shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the President. The Vice Presidents, if any, shall perform such other duties and
have such other powers as the Board may from time to time prescribe.
(d) SECRETARY AND ASSISTANT SECRETARY. The Secretary shall be
responsible for filing legal documents and maintaining records for the Company.
The Secretary shall attend all meetings of the Board and record all the
proceedings of the meetings of the Company and of the Board in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. The Secretary shall give, or shall cause to be given, notice of all
meetings of the Members, if any, and special meetings of the Board, and shall
perform such other duties as may be prescribed by the Board or the President,
under whose supervision the Secretary shall serve. The Assistant Secretary, or
if there be more than one, the Assistant Secretaries in the order determined by
the Board (or if there be no such determination, then in order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board may from time to time prescribe.
(e) TREASURER AND ASSISTANT TREASURER. The Treasurer shall have the
custody of the Company funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the Board.
The Treasurer shall disburse the funds of the Company as may be ordered by the
Board, taking proper vouchers for such disbursements, and shall render to the
President and to the Board, at its regular meetings or when the Board so
requires, an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability to
act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe.
(f) OFFICERS AS AGENTS. The Officers, to the extent of their powers set
forth in this Agreement or otherwise vested in them by action of the Board not
inconsistent with this Agreement, are agents of the Company for the purpose of
the Company's business and, subject to SECTION 9(J), the actions of the Officers
taken in accordance with such powers shall bind the Company.
(g) DUTIES OF BOARD AND OFFICERS. Except to the extent otherwise
provided herein, each Director and Officer shall have a fiduciary duty of
loyalty and care similar to that of directors and officers of business
corporations organized under the General Corporation Law of the State of
Delaware.
Section 13. LIMITED LIABILITY.
Except as otherwise expressly provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be the debts, obligations and liabilities solely of the
Company, and neither any Member nor any Special Members nor any Director shall
be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a Member, Special Member or Director of the
Company.
Section 14. CAPITAL CONTRIBUTIONS.
The Members have contributed to the Company property of an agreed value
as listed on SCHEDULE B attached hereto. In accordance with SECTION 5(C), the
Special Members shall not be required to make any capital contributions to the
Company.
Section 15. ADDITIONAL CONTRIBUTIONS.
The Members are not required to make any additional capital
contribution to the Company. However, the Members may make additional capital
contributions to the Company at any time. To the extent that the Members make an
additional capital contribution to the Company, the Members shall revise
SCHEDULE B of this Agreement. The provisions of this Agreement, including this
SECTION 14, are intended to benefit the Members and Special Members and, to the
fullest extent permitted by law, shall not be construed as conferring any
benefit upon any creditor of the Company (and no such creditor of the Company
shall be a third-party beneficiary of this Agreement) and the Members and
Special Members shall not have any duty or obligation to any creditor of the
Company to make any contribution to the Company or to issue any call for capital
pursuant to this Agreement.
Section 16. ALLOCATION OF PROFITS AND LOSSES.
The Company's profits and losses shall be allocated to the Members.
Section 17. DISTRIBUTIONS.
Distributions shall be made to the Members at the times and in the
aggregate amounts determined by the Board. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not be required to make
a distribution to the Members on account of their interest in the Company if
such distribution would violate Section 18-607 of the Act or any other
applicable law or any Transaction Document.
Section 18. BOOKS AND RECORDS.
The Board shall keep or cause to be kept complete and accurate books of
account and records with respect to the Company's business. The books of the
Company shall at all times be maintained by the Board. The Members and their
duly authorized representatives shall have the right to examine the Company
books, records and documents during normal business hours. The Company, and the
Board on behalf of the Company, shall not have the right to keep confidential
from the Members any information that the Board would otherwise be permitted to
keep confidential from the Members pursuant to Section 18-305(c) of the Act. The
Company's books of account shall be kept using the method of accounting
determined by the Members. The Company's independent auditor, if any, shall be
an independent public accounting firm selected by the Members.
Section 19. REPORTS.
(a) Within 60 days after the end of each fiscal quarter, the Board
shall cause to be prepared an unaudited report setting forth as of the end of
such fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a balance
sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter, an income
statement of the Company for such fiscal quarter.
(b) The Board shall use diligent efforts to cause to be prepared and
mailed to the Members, within 90 days after the end of each fiscal year, an
audited or unaudited report setting forth as of the end of such fiscal year:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such fiscal year;
and
(iii) a statement of each Member's capital account.
(c) The Board of Directors shall, after the end of each fiscal year,
use reasonable efforts to cause the Company's independent accountants, if any,
to prepare and transmit to the Members as promptly as possible any such tax
information as may be reasonably necessary to enable each Member to prepare its
federal, state and local income tax returns relating to such fiscal year.
Nothing in this SECTION 18 shall limit the Company from hiring a person or
company to perform its bookkeeping, accounting or other related services.
Section 20. TAX CLASSIFICATION.
Notwithstanding any other provision of this Agreement, no member shall
take any action inconsistent with the classification as a disregarded entity for
purposes of Treasury Regulation 301,7701-3.
Section 21. OTHER BUSINESS.
The Members, the Special Members and any Affiliate of the Members or
the Special Members may engage in or possess an interest in other business
ventures (unconnected with the Company) of every kind and description,
independently or with others notwithstanding any other provisions at law or
equity. The Company shall not have any rights in or to such independent ventures
or the income or profits therefrom by virtue of this Agreement.
Section 22. EXCULPATION AND INDEMNIFICATION.
(a) Neither the Members, nor the Special Members nor any Officer,
Director, employee or agent of the Company nor any employee, representative,
agent or Affiliate of the Members (collectively, the "COVERED PERSONS") shall,
to the fullest extent permitted by law, be liable to the Company or any other
Person who is a party to or is otherwise bound by this Agreement for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Covered Person in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on such
Covered Person by this Agreement, except that a Covered Person shall be liable
for any such loss, damage or claim incurred by reason of such Covered Person's
gross negligence or willful misconduct.
(b) To the fullest extent permitted by applicable law, a Covered Person
shall be entitled to indemnification from the Company for any loss, damage or
claim incurred by such Covered Person by reason of any act or omission performed
or omitted by such Covered Person in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the authority conferred
on such Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Covered Person by reason of such Covered Person's gross negligence or
willful misconduct with respect to such acts or omissions; PROVIDED, HOWEVER,
that any indemnity under this SECTION 21 by the Company shall be provided out of
and to the extent of Company assets only, and the Members and the Special
Members shall not have personal liability on account thereof; and PROVIDED
FURTHER, that so long as any Obligation is outstanding, no indemnity payment
from funds of the Company (as distinct from funds from other sources, such as
insurance) of any indemnity under this SECTION 21 shall be payable from amounts
allocable to any other Person pursuant to the Transaction Documents.
(c) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person 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 Covered
Person to repay such amount if it shall be determined that the Covered Person is
not entitled to be indemnified as authorized in this SECTION 21.
(d) 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 as to matters the Covered
Person reasonably believes are within such other Person's professional or expert
competence and who 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, or any other facts pertinent to the
existence and amount of assets from which distributions to the Members might
properly be paid.
(e) To the extent that, at law or in equity, a Covered Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Company or to any other Covered Person, a Covered Person acting under this
Agreement shall not be liable to the Company or to any other Covered Person for
its good faith reliance on the provisions of this Agreement or any approval or
authorization granted by the Company or any other Covered Person. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities
of a Covered Person otherwise existing at law or in equity, are agreed by the
Members and the Special Members to replace such other duties and liabilities of
such Covered Person.
(f) The foregoing provisions of this SECTION 21 shall survive any
termination of this Agreement.
Section 23. ASSIGNMENTS.
Subject to SECTION 24, the Members may assign all of their limited
liability company interest in the Company. If any Member transfers all of its
limited liability company interest in the Company pursuant to this SECTION 22,
the transferee shall be admitted to the Company as a member of the Company upon
its execution of an instrument signifying its agreement to be bound by the terms
and conditions of this Agreement, which instrument may be a counterpart
signature page to this Agreement. Such admission shall be deemed effective
immediately prior to the transfer and, immediately following such admission, the
transferor Member shall cease to be a member of the Company. Notwithstanding
anything in this Agreement to the contrary, any successor to a Member by merger
or consolidation in compliance with the Transaction Documents shall, without
further act, be the Member hereunder, and such merger or consolidation shall not
constitute an assignment for purposes of this Agreement and the Company shall
continue without dissolution.
Section 24. RESIGNATION.
So long as any Obligation is outstanding, no Member may resign, except
as permitted under the Transaction Documents and if the Rating Agency Condition
is satisfied. If a Member is permitted to resign pursuant to this SECTION 23, an
additional member of the Company shall be admitted to the Company, subject to
SECTION 24, upon its execution of an instrument signifying its agreement to be
bound by the terms and conditions of this Agreement, which instrument may be a
counterpart signature page to this Agreement. Such admission shall be deemed
effective immediately prior to the resignation and, immediately following such
admission, the resigning Member shall cease to be a member of the Company.
Section 25. ADMISSION OF ADDITIONAL MEMBERS.
One or more additional members of the Company may be admitted to the
Company with the written consent of the Members; PROVIDED, HOWEVER, that,
notwithstanding the foregoing, so long as any Obligation remains outstanding, no
additional Members may be admitted to the Company pursuant to SECTIONS 22, 23 or
24 unless the Rating Agency Condition is satisfied.
Section 26. DISSOLUTION.
(a) Subject to SECTION 9(J) and the following sentence, the Company
shall be dissolved, and its affairs shall be wound up upon the first to occur of
the following: (i) the termination of the legal existence of the last remaining
member of the Company or the occurrence of any other event which terminates the
continued membership of the last remaining member of the Company in the Company
unless the Company is continued without dissolution in a manner permitted by
this Agreement or the Act or (ii) the entry of a decree of judicial dissolution
under Section 18-802 of the Act. Upon the occurrence of any event that causes
the last remaining member of the Company to cease to be a member of the Company,
to the fullest extent permitted by law, the personal representative of such
member is hereby authorized to, and shall, within 90 days after the occurrence
of the event that terminated the continued membership of such member in the
Company, agree in writing (i) to continue the Company and (ii) to the admission
of the personal representative or its nominee or designee, as the case may be,
as a substitute member of the Company, effective as of the occurrence of the
event that terminated the continued membership of the last remaining member of
the Company in the Company.
(b) Notwithstanding any other provision of this Agreement, the
Bankruptcy of a Member or a Special Member shall not cause such Member or
Special Member to cease to be a member of the Company and upon the occurrence of
such an event, the Company shall continue without dissolution.
(c) Notwithstanding any other provision of this Agreement, each of the
Members and the Special Members waives any right it might have to agree in
writing to dissolve the Company upon the Bankruptcy of the Member or Special
Member, or the occurrence of an event that causes the Member or Special Member
to cease to be a member of the Company.
(d) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the Company in an orderly manner), and the assets of the Company shall
be applied in the manner, and in the order of priority, set forth in Section
18-804 of the Act.
(e) The Company shall terminate when (i) all of the assets of the
Company, after payment of or due provision for all debts, liabilities and
obligations of the Company (including all Obligations of the Company) shall have
been distributed to the Members in the manner provided for in this Agreement and
(ii) the Certificate of Formation shall have been canceled in the manner
required by the Act.
Section 27. WAIVER OF PARTITION; NATURE OF INTEREST.
Except as otherwise expressly provided in this Agreement, to the
fullest extent permitted by law, each of the Members and the Special Members
hereby irrevocably waives any right or power that such Person might have to
cause the Company or any of its assets to be partitioned, to cause the
appointment of a receiver for all or any portion of the assets of the Company,
to compel any sale of all or any portion of the assets of the Company pursuant
to any applicable law or to file a complaint or to institute any proceeding at
law or in equity to cause the dissolution, liquidation, winding up or
termination of the Company. The Members shall not have any interest in any
specific assets of the Company, and the Members shall not have the status of a
creditor with respect to any distribution pursuant to SECTION 16 hereof. The
interest of the Members in the Company is personal property.
Section 28. BENEFITS OF AGREEMENT; NO THIRD-PARTY RIGHTS.
None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditor of the Company or by any creditor of the Members or
Special Members except for the provisions of SECTIONS 9(J), 10, 21(B), 24, 25(B)
and 32(B) (such provisions the "THIRD PARTY BENEFIT PROVISIONS"). Nothing in
this Agreement other than the Third Party Benefit Provisions shall be deemed to
create any right in any Person (other than Covered Persons) not a party hereto,
and this Agreement shall not be construed in any respect to be a contract in
whole or in part for the benefit of any third Person (except as provided in
SECTION 30 and except for the Third Party Benefit provisions).
Section 29. SEVERABILITY OF PROVISIONS.
Each provision of this Agreement shall be considered severable and if
for any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those
portions of this Agreement which are valid, enforceable and legal.
Section 30. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
Section 31. BINDING AGREEMENT.
Notwithstanding any other provision of this Agreement, each Member
agrees that this Agreement, including, without limitation, SECTIONS 7, 8, 9, 10,
21, 22, 23, 24, 26, 27, 30 and 32, constitutes a legal, valid and binding
agreement of the Member, and is enforceable against the Member by the Special
Members/Independent Directors, in accordance with its terms. In addition, the
Special Members/Independent Directors shall be intended beneficiaries of this
Agreement.
Section 32. 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.
Section 33. AMENDMENTS.
Subject to SECTION 9(J), this Agreement may be modified, altered,
supplemented or amended pursuant to a written agreement executed and delivered
by the Members. Notwithstanding anything to the contrary in this Agreement, so
long as any Obligation is outstanding, this Agreement may not be modified,
altered, supplemented or amended unless the Rating Agency Condition is
satisfied:
(a) unless the Rating Agency Condition is satisfied except: (i) to cure
any ambiguity or (ii) to convert or supplement any provision in a manner
consistent with the intent of this Agreement and the other Transaction
Documents, and
(b) without the consent of a Majority in Interest except: (i) to cure
any ambiguity or (ii) to convert or supplement any provision in a manner
consistent with the intent of this Agreement and the Transaction Documents.
Notwithstanding any other provision of this Agreement, the Company may
amend SCHEDULE B hereto without the prior written consent of any party.
Section 34. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Agreement and all of which together
shall constitute one and the same instrument.
Section 35. NOTICES.
Any notices required to be delivered hereunder shall be in writing and
personally delivered, mailed or sent by telecopy, electronic mail or other
similar form of rapid transmission, and shall be deemed to have been duly given
upon receipt (a) in the case of the Company, to the Company at its address in
SECTION 2, (b) in the case of the Members, to the Member at its address as
listed on SCHEDULE B attached hereto and (c) in the case of either of the
foregoing, at such other address as may be designated by written notice to the
other party.
Section 36. EFFECTIVENESS.
Pursuant to Section 18-201 (d) of the Act, this Agreement shall be
effective as of the time of filing of the Certificate of Formation with the
Secretary of the State of Delaware on March 10, 2005.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Limited Liability Company Agreement as of the ___
day of March, 2005.
MEMBER:
XXXXXXXXXX SECURITIES, LP
By: /S/ XXXXX X. XXXX
----------------------------------
Name: Xxxxx X. Xxxx
Title: President
DIRECTORS:
By: /S/ XXXXX X. XXXX
----------------------------------
Name: Xxxxx X. Xxxx
Title: President
By: /S/ XXXXXX XXXXX
----------------------------------
Name: Xxxxxx Xxxxx
Title: Director
SPECIAL MEMBERS/INDEPENDENT DIRECTORS:
By: /S/ XXXXXXXX XXXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Special Member/Independent
Director
By: /S/ XXXXXXX XXXXXXXX
----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Special Member/Independent
Director
SCHEDULE A
DEFINITIONS
A. DEFINITIONS
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"ACT" has the meaning set forth in the preamble to this Agreement.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly Controlling or Controlled by or under direct or indirect
common Control with such Person.
"AGREEMENT" means this Amended and Restated Limited Liability Company
Agreement of the Company, together with the schedules attached hereto, as
amended, restated or supplemented or otherwise modified from time to time.
"BANKRUPTCY" means, with respect to any Person, if such Person (i)
makes an assignment for the benefit of creditors, (ii) files a voluntary
petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has
entered against it an order for relief, in any bankruptcy or insolvency
proceedings, (iv) files a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, (v) files an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against it in any proceeding of this nature, (vi) seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator of the Person
or of all or any substantial part of its properties, or (vii) if 120 days after
the commencement of any proceeding against the Person seeking reorganization,
arrangement, composition, readjustment, liquidation or similar relief under any
statute, law or regulation, if the proceeding has not been dismissed, or if
within 90 days after the appointment without such Person's consent or
acquiescence of a trustee, receiver or liquidator of such Person or of all or
any substantial part of its properties, the appointment is not vacated or
stayed, or within 90 days after the expiration of any such stay, the appointment
is not vacated. The foregoing definition of "Bankruptcy" is intended to replace
and shall supersede and replace the definition of "Bankruptcy" set forth in
Sections 18-101(1) and 18-304 of the Act.
"BOARD" or "BOARD OF DIRECTORS" means the Board of Directors of the
Company.
"CERTIFICATE OF FORMATION" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on March 10,
2005, as amended or amended and restated from time to time.
"COMPANY" has the meaning set forth in the preamble to this Agreement.
"CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or general partnership or managing
member interests, by contract or otherwise. "Controlling" and "Controlled" shall
have correlative meanings. Without limiting the generality of the foregoing, a
Person shall be deemed to Control any other Person in which it owns, directly or
indirectly, a majority of the ownership interests.
"COVERED PERSONS" has the meaning set forth in SECTION 21(A).
"DEBT OBLIGATION" means, as of any date of determination, debt
securities issued by and loans in respect of money borrowed by the Company,
provided, however, that "Debt Obligation" does not include debt securities held
by or loans from any Member or its Affiliates.
"DIRECTORS" means the Persons elected to the Board of Directors from
time to time by the Members, including the Special Member/Independent Directors,
in their capacity as managers of the Company. A Director is hereby designated as
a "manager" of the Company within the meaning of Section 18-101(10) of the Act.
"FINANCED HOME" has the meaning set forth in SECTION 7(A)(I).
"SPECIAL MEMBER/INDEPENDENT DIRECTOR" means a natural person who, for
the five-year period prior to his or her appointment as Special
Member/Independent Director has not been, and during the continuation of his or
her service as Special Member/Independent Director is not: (i) an employee,
director, stockholder, partner or officer of the Company or any of its
Affiliates (other than his or her service as an Special Member/Independent
Director of the Company or any Affiliate whose purposes are restricted to those
substantially similar to those in SECTION 7); (ii) a customer or supplier of the
Company or any of its Affiliates; or (iii) any member of the immediate family of
a person described in (i) or (ii).
"ISSUER" has the meaning set forth in SECTION 7(A)(IV).
"MAJORITY IN INTEREST" means the Holders of Debt Obligations evidencing
more than 50% by outstanding principal amount of all Debt Obligations.
"MATERIAL ACTION" means to consolidate or merge the Company with or
into any Person, or sell all or substantially all of the assets of the Company,
or to institute proceedings to have the Company be adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency proceedings
against the Company or file a petition seeking, or consent to, reorganization or
relief with respect to the Company under any applicable federal or state law
relating to bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company or a
substantial part of its property, or make any assignment for the benefit of
creditors of the Company, or admit in writing the Company's inability to pay its
debts generally as they become due, or take action in furtherance of any such
action, or, to the fullest extent permitted by law, dissolve or liquidate the
Company.
"MEMBERS" means Xxxxxxxxxx Securities, LP, as the initial member of the
Company, and includes any Person admitted as an additional member of the Company
or a substitute member of the Company pursuant to the provisions of this
Agreement, each in its capacity as a member of the Company PROVIDED, HOWEVER,
the term "Member" shall not include the Special Member.
"OBLIGATIONS" shall mean any Securities and the indebtedness,
liabilities and obligations of the Company under or in connection with this
Agreement, the other Transaction Documents or any related document in effect as
of any date of determination.
"OFFICER" means an officer of the Company described in SECTION 11.
"OFFICER'S CERTIFICATE" means a certificate signed by any Officer of
the Company who is authorized to act for the Company in matters relating to the
Company.
"PERSON" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association, joint
stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.
"RATING AGENCY" means any nationally recognized statistical rating
organization currently rating any Security.
"RATING AGENCY CONDITION" means, with respect to any action, that each
Rating Agency shall have been given ten days prior notice thereof and that each
of the Rating Agencies shall have notified the Company in writing that such
action will not result in a reduction or withdrawal or qualification of the then
current rating by such Rating Agency of any of the Securities.
"RECEIVABLES" has the meaning set forth in SECTION 7(A)(I).
"RELATED ASSETS" has the meaning set forth in SECTION 7(A)(I).
"SECURITY" means any bond, note, certificate or other security issued
by the Company or an Issuer and secured primarily by or evidencing beneficial
ownership interest in the Receivables and Related Assets;
"SECURITIZATION AGREEMENT" has the meaning set forth in SECTION
7(A)(VI).
"SPECIAL MEMBER" means, upon such person's admission to the Company as
a member of the Company pursuant to SECTION 5(C), a person acting as Special
Member/Independent Director, 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.
"TRANSACTION DOCUMENTS" means this Agreement any Securitization
Agreement and all documents and certificates contemplated thereby or delivered
in connection therewith.
B. RULES OF CONSTRUCTION
Definitions in this Agreement apply equally to both the singular and
plural forms of the defined terms. The words "include" and "including" shall be
deemed to be followed by the phrase "without limitation." The terms "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section, paragraph or
subdivision. The Section titles appear as a matter of convenience only and shall
not affect the interpretation of this Agreement. All Section, paragraph, clause,
Exhibit or Schedule references not attributed to a particular document shall be
references to such parts of this Agreement.
SCHEDULE B
MEMBERS
----------------------------- ------------------------------------------ ------------------------ ------------------
Name Mailing Address Agreed Value of Membership
Capital Contribution Interest
----------------------------- ------------------------------------------ ------------------------ ------------------
Xxxxxxxxxx Securities, LP Nine Greenwich Office Park $10.00 100%
Xxxxxxxxx, Xxxxxxxxxxx 00000
----------------------------- ------------------------------------------ ------------------------ ------------------
SCHEDULE C
DIRECTORS
1. Xxxxx X. Xxxx
2. Xxxxxx Xxxxx
3. Xxxxxxxx X. Abedine (Special Member/Independent Director)
4. Xxxxxxx Xxxxxxxx (Special Member/Independent Director)
SCHEDULE D
OFFICERS
OFFICER TITLE
------- -----
Xxxxx X. Xxxx President
Xxxxxx Xxxxx Vice President
Xxxxxx Xxxxx Secretary
Xxxxxx Xxxxx Treasurer
