AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF FF-TSY HOLDING COMPANY II, LLC
Exhibit
3.2
AMENDED
AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
FF-TSY
HOLDING COMPANY II, LLC
This
Amended and Restated Limited Liability Company Agreement (this “Agreement”) of
FF-TSY Holding Company II, LLC (the “LLC”) is entered into as of March 27, 2007
by FF-TSY Holding Company, Inc. (the “Member”), the sole member of the
LLC.
W I T N E S S E T H:
WHEREAS,
the LLC has been formed under the Delaware Limited Liability Company Act
(6
Del.C.
§ 18-101, et seq.
and, as
it may be amended from time to time, the “DLLCA”), by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, an
authorized person, by the filing of a certificate of formation (the “Certificate
of Formation”) with the Delaware Secretary of State on February 21, 2007;
WHEREAS,
on February 26, 2007, TSY-FF Acquisition Company, Inc. (“Acquisition”) became
the sole member of the LLC as successor to Trustreet Properties, Inc., the
original member of the LLC (“Trustreet”), by way of merger as a result of the
merger of Trustreet with and into Acquisition;
WHEREAS,
pursuant to a Plan of Liquidation and Dissolution (the “Plan”), Acquisition has
been liquidated and, pursuant to the Plan, the Member, as the sole common
stockholder of Acquisition, acquired all of Acquisitions assets, including
all
of the membership interests in the LLC; and
WHEREAS,
the Member desires to amend and restate the original Limited Liability Company
Agreement of the LLC by this Agreement to set forth certain rights and
obligations of the Member with respect to the LLC.
NOW,
THEREFORE, the Member hereby declares as follows:
ARTICLE
I
ORGANIZATIONAL
AND OTHER MATTERS
SECTION
1.01. Formation;
Admission.
By its
execution and delivery of this Agreement, the Member hereby ratifies the
formation of the LLC under the provisions of the DLLCA. The rights and
liabilities of the Member shall be determined pursuant to the DLLCA and this
Agreement. To the extent that the rights or obligations of the Member are
different by reason of any provision of this Agreement than they would be
in the
absence of such provision, this Agreement shall, to the extent permitted
by the
DLLCA, control. Any person or entity hereafter admitted as a member of the
LLC
pursuant to Article VII of this Agreement shall thereafter be deemed a “Member”
for all purposes under this Agreement.
SECTION
1.02. Name
and Offices.
The
name of the LLC shall be FF-TSY Holding Company II, LLC and the business
of the
LLC shall be conducted under such name or such other name or names as the
Member
may from time to time determine. The principal offices of the LLC shall be
located at c/o General Electric Capital Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other place or places as the
Member
may from time to time determine.
SECTION
1.03. Term.
The LLC
shall continue until the dissolution of the LLC as provided by the DLLCA
or this
Agreement.
SECTION
1.04. Limited
Liability.
Except
as otherwise provided by the DLLCA, the debts, obligations and liabilities
of
the LLC, whether arising in contract, tort or otherwise, shall be the debts,
obligations and liabilities solely of the LLC, and the Member shall not be
personally liable or otherwise obligated with respect to any such debt,
obligation or liability of the LLC solely by reason of being a Member of
the
LLC.
SECTION
1.05. Registered
Agent.
The
address of the registered agent for service of process on the LLC in the
State
of Delaware is c/o The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the LLC’s registered agent at such address shall
be The Corporation Trust Company. The Member may, from time to time, appoint
a
new registered agent for the LLC.
SECTION
1.06. Additional
Filings Concerning the Certificate of Formation.
If the
laws of any jurisdiction in which the LLC transacts business so require,
the
Member shall file with the appropriate office in that jurisdiction a copy
of the
Certificate of Formation and any other documents necessary for the LLC to
qualify to transact business in such jurisdiction and shall use its best
efforts
to file with the appropriate office in that jurisdiction a copy of other
documents necessary to establish and maintain the Member’s limited liability in
such jurisdiction. The Member also shall cause to be filed, in the place
or
places and in the manner prescribed by law, the Certificate of Formation
or any
amendments thereto as may be required, either by the DLLCA, by the laws of
a
jurisdiction in which the LLC transacts business or by this Agreement, to
reflect changes in the information contained therein or otherwise to comply
with
the requirements of law for the continuation, preservation and operation
of the
LLC as a limited liability company under the DLLCA.
ARTICLE
II
PURPOSE
AND POWERS
SECTION
2.01. Purpose
of the LLC.
The
purposes of the LLC shall be to carry on any lawful business, purpose or
activity permitted by the DLLCA.
SECTION
2.02. Powers
of the LLC.
The LLC
shall have the power to do any and all acts and things necessary, appropriate,
advisable, or convenient for the furtherance and accomplishment of the purposes
of the LLC, including, without limitation, to engage in any kind of activity
and
to enter into and perform obligations of any kind necessary to or in connection
with, or incidental to, the accomplishment of the purposes of the LLC, so
long
as said activities and obligations may be lawfully engaged in or performed
by a
limited liability company under the DLLCA.
SECTION
2.03. Right
to Rely on Managers.
Any
Person dealing with the LLC shall be entitled to rely (without further duty
of
inquiry) upon a certificate signed by any Manager or officer of the LLC,
as
to:
| (a) |
the
identity of the Member or any Manager or
officer;
|
| (b) |
the
existence or nonexistence of any fact or facts that constitute a
condition
precedent to acts on behalf of the LLC by the Member or any Manager
or
officer or that are in any other manner germane to the affairs of
the
LLC;
|
| (c) |
the
Persons who are authorized to execute and deliver any instrument
or
document of the LLC; or
|
| (d) |
any
other matter whatsoever involving the LLC.
|
As
used
herein, the term “Person” shall mean a natural person, partnership (whether
general or limited), trust, estate, association, corporation, limited liability
company, unincorporated organization, custodian, nominee or any other individual
or entity in its own or any representative capacity, and the term “Manager”
shall mean a Person named in Section 5.03 as a Manager of the LLC or
hereafter appointed as a Manager pursuant to the terms of this
Agreement.
ARTICLE
III
FUNDING
CONTRIBUTIONS
Any
investment in the LLC will be made 100% by the Member.
ARTICLE
IV
MEMBERSHIP
INTEREST; DISTRIBUTION OF PROCEEDS
The
Member shall own 100% of the membership interests in the LLC. The Member
shall
decide whether and in what amounts the proceeds received by the LLC shall
be
distributed to the Member. All such proceeds, if any, shall be distributed
100%
to the Member.
ARTICLE
V
MANAGEMENT
OF THE LLC
SECTION
5.01. Management.
The
business and affairs of the LLC shall be managed by its Board of Managers.
Subject to any nonwaivable provisions of applicable law, the Board of Managers
shall have full and complete authority, power, and discretion to manage and
control the business, affairs, and properties of the LLC, to make all decisions
regarding those matters and to perform any and all other acts or activities
customary or incident to the management of the LLC’s business.
SECTION
5.02. Number,
Tenure and Qualifications of Managers.
The LLC
shall as of the date hereof have three Managers. The number of Managers that
will comprise the entire Board of Managers shall be fixed from time to time
by
the Member, but in no instance shall there be less than one Manager. Each
Manager shall hold office until he or she resigns, dies or becomes
incapacitated, or is removed as provided herein. The Member may remove any
of
the Managers at any time and from time to time, with or without cause, and
may
designate a person to serve as a successor Manager in the event of the death,
incapacity, resignation or removal of a Manager. Each person appointed to
serve
as a Manager shall serve until a successor Manager is appointed as provided
hereunder or until such person’s earlier death, resignation or removal.
SECTION
5.03. Initial
Managers.
The
initial Managers shall be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ and Stefaan
D'Hoore.
SECTION
5.04. Meetings.
Meetings of the Board of Managers may be called by any Manager entitled to
participate in the meeting or the President, and shall be called by the
President upon the request of the Member, upon at least 24 hours’ notice to all
Managers entitled to participate in the meeting in writing or by telephone.
Meetings may be held by telephone or any other communication by means of
which
all participating Managers can simultaneously hear each other during the
meeting.
SECTION
5.05. Quorum.
No
action may be taken at a meeting of the Board of Managers unless a quorum
consisting of a majority of Managers entitled to participate in the meeting
is
present.
SECTION
5.06. Required
Vote; Voting Rights.
Except
where a greater percentage is expressly required by this Agreement, to be
approved, any action by the Board of Managers taken at a meeting must be
approved by the affirmative vote of Managers with a majority of the votes
cast
at a meeting at which a quorum exists. Each Manager present at a meeting
and
entitled to participate in such meeting shall be entitled to one vote with
respect to any action.
SECTION
5.07. Action by Written Consent.
Any
action to be taken by the Board of Managers may be taken without a meeting
if
consents in writing setting forth the action so taken are signed by the Managers
having not less than the minimum number of votes that would be necessary
to
authorize or take such action at a meeting.
SECTION
5.8. Compensation
of Managers.
The
Managers shall be reimbursed for all reasonable expenses incurred in connection
with the performance of their duties as Managers.
SECTION
5.9. Managers
Not Agents.
The
Managers shall have no authority to act in the name of and for the LLC solely
by
virtue of being managers of the LLC.
SECTION
5.10. Officers
of the LLC Generally.
The
Board of Managers (or, in the case of the officers as of the date hereof,
the
Member) may appoint such officers of the LLC as the Board of Managers sees
fit
and upon terms and conditions the Board of Managers deems necessary and
appropriate. Any officer shall hold his or her respective office unless and
until such officer is removed by the Board of Managers.
SECTION
5.11 President.
The
Board of Managers may designate a president. The president shall be the chief
executive officer. He or she may execute any deed, mortgage, bond, contract
or
other instrument, except in cases where the execution thereof shall be expressly
delegated by the Board of Managers or by this Agreement to some other officer
or
agent of the LLC or shall be required by law to be otherwise executed; and
in
general shall perform all duties incident to the office of president and
such
other duties as may be prescribed by the Board of Managers from time to
time.
SECTION
5.12.
Chief
Financial Officer.
The
Board of Managers may designate a chief financial officer. The chief financial
officer shall have the responsibilities and duties as set forth by the Board
of
Managers or the President.
SECTION
5.13. Vice
Presidents.
The
Board of Managers may designate one or more vice presidents. In the absence
of
the president or in the event of a vacancy in such office, the vice president
(or in the event there be more than one vice president, the vice presidents
in
the order designated at the time of their election 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; and shall perform such other duties
as
from time to time may be assigned to such vice president by the president
or by
the Board of Managers. The Board of Managers may designate one or more vice
presidents as executive vice president or as vice president for particular
areas
of responsibility.
SECTION
5.14. Secretary.
The
Board of Managers may designate a secretary. The secretary shall (a) keep
the minutes of the proceedings of the Board of Managers in one or more books
provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of this Agreement or as required by law;
(c) be custodian of the records; and (d) in general perform such other
duties as from time to time may be assigned to him by the president or by
the
Board of Managers.
SECTION
5.15.
Treasurer.
The
Board of Managers may designate a treasurer. The treasurer shall have the
custody of the funds and securities of the LLC and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the LLC and
shall
deposit all moneys and other valuable effects in the name and to the credit
of
the LLC in such depositories as may be designated by the Board of Managers.
In
the absence of a designation of a chief financial officer by the Board of
Managers, the treasurer shall be the chief financial officer of the
LLC.
SECTION
5.16. Assistant
Secretaries and Assistant Treasurers.
The
Board of Managers may designate assistant secretaries and assistant treasurers.
The assistant secretaries and assistant treasurers, in general, shall perform
such duties as shall be assigned to them by the secretary or treasurer,
respectively, or by the president or the Board of Managers.
SECTION
5.17. Officers.
The
initial officers of the LLC as of the date hereof shall be:
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇: President
▇▇▇▇
▇.
▇▇▇▇▇▇▇:
Secretary
and Vice President
▇▇▇▇
▇.
▇▇▇▇▇:
Assistant
Secretary and Vice President
▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇:
Assistant
Secretary and Vice President
▇▇▇
▇.
▇▇▇▇▇▇:
Assistant
Secretary and Vice President
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇▇▇:
Treasurer,
Chief Financial Officer and Vice President
▇▇▇▇▇▇▇▇
▇.
▇▇▇▇▇:
Assistant
Treasurer and Vice President—Tax
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇:
Vice
President—Tax
▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇: Vice
President and Chief
Accounting Officer
▇▇▇▇
▇.
▇▇▇▇▇▇:
Assistant
Secretary and Vice President
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇: Assistant
Secretary and Vice President
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇, ▇▇.: Assistant
Secretary and Vice President
SECTION
5.18. Removal
of Officers; Vacancies.
Any
officer may be removed with or without cause, at any time, by the Board of
Managers. Vacancies in all offices shall be filled by the Board of
Managers.
ARTICLE
VI
INDEMNIFICATION
The
LLC
shall indemnify any person who was, is, or is threatened to be made a party
to a
proceeding (as hereinafter defined) by reason of the fact that he, she, or
it
(i) is or was a Member, manager, officer, employee or agent of the LLC or
(ii) while a Member, manager, officer, employee or agent of the LLC, is or
was serving at the request of the LLC as a managers, director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic limited liability company, corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan, or other
enterprise, to the fullest extent permitted under the DLLCA. Such right shall
be
a contract right and as such shall run to the benefit of any Member, manager,
officer, employee or agent of the LLC. Any repeal or amendment of this Article
VI shall be prospective only and shall not limit the rights of any such Member,
manager, officer, employee or agent or the obligations of the LLC with respect
to any claim arising from or related to the services of such Member, manager,
officer, employee or agent in any of the foregoing capacities prior to any
such
repeal or amendment to this Article VI. Such right shall include the right
to be
paid by the LLC expenses incurred in investigating or defending any such
proceeding in advance of its final disposition to the maximum extent permitted
under the DLLCA, as the same exists or may hereafter be amended. If a claim
for
indemnification or advancement of expenses hereunder is not paid in full
by the
LLC within sixty (60) days after a written claim has been received by the
LLC,
the claimant may at any time thereafter bring suit against the LLC to recover
the unpaid amount of the claim, and if successful in whole or in part, the
claimant shall also be entitled to be paid the expenses of prosecuting such
claim. It shall be a defense to any such action that such indemnification
or
advancement of costs of defense are not permitted under the DLLCA, but the
burden of proving such defense shall be on the LLC. Neither the failure of
the
LLC (including any managers or directors or committee thereof, independent
legal
counsel, or members) to have made its determination prior to the commencement
of
such action that indemnification of, or advancement of costs of defense to,
the
claimant is permissible in the circumstances nor an actual determination
by the
LLC (including any managers, directors or committee thereof, independent
legal
counsel, or members) that such indemnification or advancement is not permissible
shall be a defense to the action or create a presumption that such
indemnification or advancement is not permissible. In the event of the death
of
any person having a right of indemnification under the foregoing provisions,
such right shall inure to the benefit of his or her heirs, executors,
administrators and personal representatives. The rights conferred above shall
not be exclusive of any other right which any person may have or hereafter
acquire under any statute, resolution, agreement, or otherwise.
The
LLC
may additionally indemnify any employee or agent of the LLC to the fullest
extent permitted by law.
As
used
herein, the term “proceeding” means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
ARTICLE
VII
TRANSFER
OF MEMBERSHIP INTEREST
The
Member may transfer its membership interest in the LLC at any time to any
person
or entity in total, or in part, and upon the execution of a Membership Interest
Transfer Power substantially in the form attached hereto as Exhibit
A,
without
any further action by the Member or assignee of the membership interest,
such
assignee of the Member’s membership interest shall be admitted as a Member of
the LLC, and in the event of the assignment of the Member’s entire Membership
Interest in the LLC, the assignor shall be withdrawn as a Member of the LLC,
and
such assignee shall thereafter be deemed the Member for all purposes under
this
Agreement.
ARTICLE
VIII
DISSOLUTION
AND LIQUIDATION
SECTION
8.01. Events
Causing Dissolution.
The LLC
shall be dissolved and its affairs wound up on the first to occur of the
following events:
(i) any
event
that, under the DLLCA, would cause the dissolution of the LLC or would make
it
unlawful for the business of the LLC to be continued;
(ii) the
sale
or other disposition of all or substantially all of the property of the LLC
for
cash; or
(iii) the
election of the Member.
SECTION
8.02. Effect
of Dissolution.
Upon
dissolution, the LLC shall cease carrying on its business but shall not
terminate until the winding up of the affairs of the LLC is completed, the
assets of the LLC shall have been distributed as provided below and a
Certificate of Cancellation of the LLC under the DLLCA has been filed with
the
Secretary of State of the State of Delaware.
SECTION
8.03. Liquidation
Upon Dissolution.
Upon
the dissolution of the LLC, sole and plenary authority to effectuate the
liquidation of the assets of the LLC shall be vested in the Member, which
shall
have full power and authority to sell, assign and encumber any and all of
the
LLC’s assets and to wind up and liquidate the affairs of the LLC in an orderly
and business-like manner. The proceeds of liquidation of the assets of the
LLC
distributable upon a dissolution and winding up of the LLC shall be applied
in
the following order of priority:
(i) first,
to
the creditors of the LLC, which may include the Member as a creditor, in
the
order of priority provided by law, in satisfaction of all liabilities and
obligations of the LLC (of any nature whatsoever, including, without limitation,
fixed or contingent, matured or unmatured, legal or equitable, secured or
unsecured), whether by payment or the making of reasonable provision for
payment
thereof; and
(ii) thereafter,
100% to the Member.
SECTION
8.04. Winding
Up and Certificate of Cancellation.
The
winding up of the LLC shall be completed when all of its debts, liabilities
and
obligations have been paid and discharged or reasonably adequate provision
therefor has been made, and all of the remaining property and assets of the
LLC
have been distributed to the Member. Upon the completion of the winding up
of
the LLC, a Certificate of Cancellation of the LLC shall be filed with the
Secretary of State of the State of Delaware.
ARTICLE
IX
AMENDMENT
This
Agreement may be amended or modified by a written instrument executed by
the
Member.
ARTICLE
X
MISCELLANEOUS
SECTION
10.1. Section
Headings and References.
The
Article and Section headings used in this Agreement are for reference purposes
only and should not be used in construing this Agreement. Unless specified
otherwise, references herein to a “Section” or an “Article” shall mean the
specified Section or Article of this Agreement.
SECTION
10.2. Gender
and Number.
Wherever from the context it appears appropriate, each term in this Agreement
stated in either the singular or the plural shall include the singular and
the
plural, and pronouns stated in either the masculine, feminine or the neuter
gender shall include the masculine, the feminine and the neuter. The term
“person” means any individual, corporation, partnership, trust or other
entity.
SECTION
10.3. Exhibit
A.
Exhibit
A
attached
to this Agreement is incorporated herein by reference and expressly made
a part
of this Agreement for all purposes.
SECTION
10.4. Severability.
If any
provision of this Agreement or portion thereof, or the application of such
provision or portion thereof to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
or portion thereof to persons or circumstances other than those to which
it is
held invalid, shall not be affected thereby.
SECTION
10.5. Successors
and Assigns.
Except
as otherwise herein provided, this Agreement shall be binding upon and inure
to
the benefit of the party hereto and its successors and assigns, and all other
persons hereafter having or holding an interest in the LLC, whether as
assignees, transferees, substitute Member or otherwise.
SECTION
10.6. Governing
Law.
This
Agreement and the rights of the parties hereunder shall be governed by and
construed in accordance with the laws of the State of Delaware without regard
to
the conflict of laws or rules thereof.
SECTION
10.7. No
Third Party Beneficiaries.
The
provisions of this Agreement shall not be for the benefit of, nor shall they
be
enforceable by, any person who is not a party to this Agreement.
IN
WITNESS WHEREOF, the Member has executed this Agreement as of the date first
written above.
FF-TSY
Holding Company, Inc.
By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Title: President
EXHIBIT
A
MEMBERSHIP
INTEREST TRANSFER POWER
FOR
VALUE
RECEIVED, the undersigned hereby sells, transfers and assigns to
_________________________________ (the “Assignee”), [ ] units of its membership
interest in FF-TSY Holding Company II, LLC, a Delaware limited liability
company
(the “Company”) and the Assignee is hereby admitted as the Member of the
Company.
Should
such amount equal 100% of the undersigned’s membership interest in the Company,
in accordance with the Company’s Limited Liability Company Agreement and the
Limited Liability Company Act of the State of Delaware, the undersigned hereby
withdraws as the Member of the Company.
[ ]
Member
By:
Name:
[
]
Title:
[
]
ACCEPTED
AND AGREED
[ASSIGNEE]