Exhibit 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
UNITED FIDELITY FINANCE, LLC
This Limited Liability Company Agreement (together with the schedules
attached hereto, this "Agreement") of United Fidelity Finance, LLC (the
"Company"), is entered into by United Fidelity Bank, FSB, as the sole equity
member (the "Member"). Capitalized terms used and not otherwise defined herein
have the meanings set forth on Schedule A hereto.
The Member, by execution of this Agreement, hereby forms the Company as a
limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act (6 Del. C. Section 18-101 et seq.), as amended
from time to time (the "Act"), and this Agreement, and the Member hereby agrees
as follows:
Section 1. Name.
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The name of the limited liability company formed hereby is United Fidelity
Finance, LLC.
Section 2. Principal Business Office.
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The principal business office of the Company shall be located at 18. N.W.
Fourth Street, P. O. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or such other
location as may hereafter be determined by the Member.
Section 3. Registered Office.
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The address of the registered office of the Company in the State of
Delaware is The Corporation Trust Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 4. Registered Agent.
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The name and address of the registered agent of the Company for service of
process on the Company in the State of Delaware are The Corporation Trust
Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 5. Members.
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(a) The mailing address of the Member is set forth on Schedule B attached
hereto. The Member was admitted to the Company as a member of the Company upon
its execution of a counterpart signature page to this Agreement.
(b) Subject to Section 9(j), the Member may act by written consent.
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(c) Upon the occurrence of any event that causes the Member to cease to be
a member of the Company (other than (i) upon 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 21 and 23, or (ii) the resignation of the
Member and the admission of an additional member of the Company pursuant to
Sections 22 and 23), each Person acting as an 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 or other document
pursuant to which such Person agrees to be bound by the terms and provisions of
this Agreement, and (ii) such successor has also accepted its appointment as
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 Independent
Director pursuant to Section 10 shall execute a counterpart to this Agreement or
other document pursuant to which such Person agrees to be bound by the terms and
provisions of this Agreement. Prior to its admission to the Company as Special
Member, each Person acting as an Independent Director pursuant to Section 10
shall not be a member of the Company.
Section 6. Certificates.
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▇▇▇▇▇▇ ▇. ▇▇▇▇ is hereby designated as an "authorized person" within the
meaning of the Act, and has executed, delivered and filed the Certificate of
Formation of the Company with the Secretary of State of the State of Delaware.
Upon the filing of the Certificate of Formation with the Secretary of State of
the State of Delaware, his powers as an "authorized person" ceased, and the
Member thereupon became the designated "authorized person" and shall continue as
the designated "authorized person" within the meaning of the Act. The Member or
an Officer shall execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in any other jurisdiction in which the Company may wish to conduct
business.
The existence of the Company as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in the Act.
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Section 7. Purpose. The purpose to be conducted or promoted by the Company is to
engage in the following activities:
(a) (i) Acquiring, owning, purchasing, holding, selling,
assigning, transferring, pledging, and otherwise
dealing with the automobile loan receivables
(including, without limitation, net proceeds derived
from a trust's issuance of securities and the right
to receive cash flows on, or a residual interest in,
automobile loan receivables held in a trust)
generated by the Member or one or more specified
trusts established by the Company or the Member (the
"Receivables") and entering into agreements for the
servicing of the Receivables;
(ii) Transferring the Receivables to, and reacquiring
Receivables from, the trusts of the Company or the
Member;
(iii) Acquiring, owning, purchasing, holding, selling,
assigning, transferring, pledging, and otherwise
dealing with the certificates or notes (the
"Securities") issued by trusts created by the Company
or the Member;
(iv) Using proceeds from the Receivables at the direction
of the Directors to make payments or loans to the
Member, to the extent such funds are not required to
fulfill the Company's obligations under the
agreements to which the Company acquires the
Receivables or sells the Securities; and
(v) 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, and the Member, or any Director or Officer on behalf of
the Company, may enter into and perform the Basic Documents and all documents,
agreements, certificates, or financing statements contemplated thereby or
related thereto and any amendments thereof, all without any further act, vote or
approval of any Member, Director, Officer or other Person notwithstanding any
other provision of this Agreement. The foregoing authorization shall not be
deemed a restriction on the powers of the Member 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.
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Section 9. Management.
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(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 Member. Subject to Section 10, the Member may
determine at any time in its sole and absolute discretion the number of
Directors to constitute the Board. The authorized number of Directors may be
increased or decreased by the Member at any time in its sole and absolute
discretion, upon notice to all Directors, and subject in all cases to Section
10. The initial number of Directors shall initially be three. Upon any
Obligations becoming outstanding, the number of directors shall be automatically
increased to five, two of which shall be Independent Directors pursuant to
Section 10. Each Director elected, designated or appointed by the Member shall
hold office until a successor is elected and qualified or until such Director's
earlier death, resignation, expulsion or removal. Each Director shall execute
and deliver the Management Agreement. Directors need not be a Member. The
initial Directors designated by the Member are listed on Schedule D 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 oeetings of the Board, a majority of the 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.
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
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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, 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 Member, and, subject to Section 10, any vacancy caused
by any such removal or expulsion may be filled by action of the Member.
(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.
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(j) Limitations on the Company's Activities.
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(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 Member shall not, so long as any Obligation is
outstanding, amend, alter, change or repeal the
definition of "Independent Director" or Sections
5(c), 7, 8, 9, 10, 16, 20, 21, 22, 23, 24, 25, 26 or
31 or Schedule A of this Agreement without the
unanimous written consent of the Board (including all
Independent Directors). Subject to this Section 9(j),
the Member reserves the right to amend, alter, change
or repeal any provisions contained in this Agreement
in accordance with Section 31.
(iii) Notwithstanding any other provision of this Agreement
and any provision of law that otherwise so empowers
the Company, the Member, the Board, any Officer or
any other Person, so long as any Obligation is
outstanding, neither the Member 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 Member and
the Board (including all Independent Directors), to
take any Material Action, provided, however, that, so
long as any Obligation is outstanding, the Board may
not vote on, or authorize the taking of, any Material
Action, unless there are at least two Independent
Directors then serving in such capacity.
(iv) The Board and the Member 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. The Board also shall cause the Company
to:
(A) maintain its own separate books and records
and bank accounts;
(B) at all times hold itself out to the public
and all other Persons as a legal entity
separate from the Member and any other
Person;
(C) have a Board of Directors separate from that
of the Member 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;
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(E) except as contemplated by the Basic
Documents, not commingle its assets with
assets of 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 Member;
(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) allocate fairly and reasonably any overhead
for shared office space;
(M) use separate stationery, invoices and
checks;
(N) except as contemplated by the Basic
Documents, not pledge its assets for the
benefit of 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 keep minutes
of any meetings and actions and observe all
other Delaware limited liability company
formalities;
(R) not acquire any securities of the Member;
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.
Failure of the Company, or the Member 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
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liability of the Member 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 Basic
Documents, guarantee any obligation 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 Basic Documents or this Section 9(j);
(C) incur, create or assume any indebtedness
other than as expressly permitted under the
Basic Documents;
(D) make or permit to remain outstanding any
loan or advance to any Person, except that
the Company may make any advance required or
expressly permitted to be made pursuant to
any provisions of the Basic Documents and
permit the same to remain outstanding in
accordance with such provisions; or
(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 Basic
Documents.
Section 10. Independent Directors.
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As long as any Obligation is outstanding, the Member shall cause the
Company at all times to have at least two Independent Directors who will be
appointed by the Member. To the fullest extent permitted by law, including
Section 18-1101(c) of the Act, the 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 Independent Director, and no appointment of a successor
Independent Director, shall be effective until such successor (i) shall have
accepted his or her appointment as an Independent Director by a written
instrument, which may be a counterpart signature page to the Management
Agreement, and (ii) shall have executed a counterpart to this Agreement or other
document pursuant to which such Person agrees to be bound by the terms and
provisions of this Agreement as required by Section 5(c). In the event of a
vacancy in the position of Independent Director, the Member shall, as soon as
practicable, appoint a successor Independent Director. All right, power and
authority of the 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
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
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Corporation Law of the State of Delaware. No Independent Director shall at any
time serve as trustee in bankruptcy for any Affiliate of the Company.
Section 11. Officers.
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(a) Officers. The initial Officers of the Company shall be designated by
the Member. 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 theosen 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 Member are listed on Schedule E
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 Boarcommittees when required. The
Secretary shall give, or shall cause to be given, notice of all meetings of the
Member, 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
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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 te 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 modified
herein, each Director and Officer shall have fiduciary duties identical to those
of directors and officers of business corporations organized under the General
Corporation Law of the State of Delaware.
Section 12. 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 the Member nor the 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 13. Capital Contributions. The Member has 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 14. Additional Contributions. The Member is not required to make any
additional capital contribution to the Company. However, the Member may make
additional capital contributions to the Company at any time upon the written
consent of such Member. To the extent that the Member makes an additional
capital contribution to the Company, the Member shall revise Schedule B of this
Agreement. The provisions of this Agreement, including this Section 14, are
intended to benefit the Member and the Special Members and, to the fullest
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extent permitted by law, shall not be construed as conferring any benefit upon
any cr-party beneficiary of this Agreement) and the Member and the 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 15. Allocation of Profits and Losses. The Company's profits and losses
shall be allocated to the Member.
Section 16. Distributions. Distributions shall be made to the Member 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 Member on account of its interest in the
Company if such distribution would violate the Act or any other applicable law
or any Basic Document.
Section 17. 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 Member and its 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 Member any information that the Board would
otherwise be permitted to keep confidential from the Member 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 Member. The Company's independent
auditor, if any, shall be an independent public accounting firm selected by the
Member.
Section 18. Reports. The Board 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 Member as promptly as possible any such tax
information as may be reasonably necessary to enable the Member to prepare its
fon 19. Other Business. The Member, the Special Members and any Officer,
Director, employee or agent of the Company and any Affiliate of the Member 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. 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 20. Exculpation and Indemnification.
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(a) Neither the Member nor the Special Members nor any Officer, Director,
employee or agent of the Company nor any employee, representative, agent or
Affiliate of the Member or the Special Members (collectively, the "Covered
Persons") shall be liable to the Company or any other Person who is 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
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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 20 by the Company shall be provided out of
and to the extent of Company assets only, and the Member 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 20 shall be payable from amounts allocable to any
other Person pursuant to the Basic Documents.
(c) To the fullest extent permitted by applicable law, expenses (including
reasonable legal fees) incurred by a Coverbe 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 20.
(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 Member 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 Member
and the Special Members to replace such other duties and liabilities of such
Covered Person.
12
(f) The foregoing provisions of this Section 20 shall survive any
termination of this Agreement.
Section 21. Assignments. The Member may assign in whole or in part its limited
liability company interest in the Company. Subject to Section 23, if the Member
transfers all of its limited liability company interest in the Company pursuant
to this Section 21, 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 the
Member by merger or consolidation in compliance with the Basic 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 22. Resignation. So long as any Obligation is outstanding, the Member
may not resign, except as permitted under the Basic Documents and if the Rating
Agency Condition is satisfied. If the Member is permitted to resign pursuant to
this Section 22, an additional member of the Company shall be admitted to the
Company, subject to Section 23, 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 23. Admission of Additional Membersthe written consent of the Member;
provided, however, that, notwithstanding the foregoing, so long as any
Obligation remains outstanding, no additional Member may be admitted to the
Company unless the Rating Agency Condition is satisfied.
Section 24. Dissolution.
-----------
(a) Subject to Section 9(j), 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 business
of the Company is continued 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 or that causes the Member
to cease to be a member of the Company (other than (i) upon 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 21 and 23, or (ii) the
resignation of the Member and the admission of an additional member of the
Company pursuant to Sections 22 and 23), to the fullest extent permitted by law,
13
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 such member in the Company.
(b) Notwithstanding any other provision of this Agreement, the Bankruptcy
of the Member or a Special Member shall not cause the Member or Special Member,
respectively, to cease to be a member of the Company and upon the occurrence of
such an event, the business of the Company shall continue without dissolution.
(c) Notwithstanding any other provision of this Agreement, each of the
Member 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 a Special
Member or the occurrence of an event that causes the Member or a 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 shall have been distributed to the Member 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 25. Waiver of Partition; Nature of Interest. Except as otherwise
expressly provided in this Agreement, to the fullest extent permitted by law,
each of the Member 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 thhave any interest in
any specific assets of the Company, and the Member shall not have the status of
a creditor with respect to any distribution pursuant to Section 16 hereof. The
interest of the Member in the Company is personal property.
Section 26. 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 Member or a Special Member. Nothing in
this Agreement 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 29).
14
Section 27. 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 28. Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof.
Section 29. Binding Agreement. Notwithstanding any other provision of this
Agreement, the Member agrees that this Agreement, including, without limitation,
Sections 7, 8, 9, 10, 20, 21, 22, 23, 24, 26, 29 and 31, constitutes a legal,
valid and binding agreement of the Member, and is enforceable against the Member
by the Independent Directors, in accordance with its terms. In addition, the
Independent Directors shall be intended beneficiaries of this Agreement.
Section 30. 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 31. 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 Member. 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 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
Basic Documents.
Section 32. Counterparts. This Agreement maytitute one and the same instrument.
Section 33. 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 Member, 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 34. Effectiveness. Pursuant to Section 18-201(d) of the Act, this
Agreement shall be effective as of the time of the filing of the Certificate of
Formation with the Office of the Delaware Secretary of State on November 13,
2001.
15
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
has duly executed this Limited Liability Company Agreement as of the 13th day of
November, 2001.
MEMBER:
UNITED FIDELITY BANK, FSB
By:
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, President
16
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 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, ▇▇▇▇▇ and replace the definition of"Bankruptcy" set forth in
Sections 18-101(1) and 18-304 of the Act.
"Basic Documents" means the Purchase Agreement between the Company and
the Member, the Trust and Servicing Agreement between the Company and the
Member, the Underwriting Agreement between the Company and City Securities
Corporation, any registration statements or other filings with the Securities
and Exchange Commission in connection with the Securities, and all documents and
certificates contemplated thereby or delivered in connection therewith.
"Board" or "Board of Directors" means the Board of Directors of the
Company.
A-1
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on November
13, 2001, as amended or amended and restated from time to time.
"Company" means United Fidelity Finance, LLC, a Delaware limited
liability company.
"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 20(a).
"Directors" means the Persons elected to the Board of Directors from
time to time by the Member, including the 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.
"Independent Director" means a natural person who, for the five-year
period prior to his or her appointment as Independent Director has not been, and
during the continuation of his or her service as 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 Independent Director of
the Company or any of its Affiliates); (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).
"Management Agreement" means the agreement of the Directors in the form
attached hereto as Schedulh 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.
"Member" means United Fidelity Bank, FSB, as the initial member of the
Company, and includes any Person admitted as an additional member of the Company
or a substitute member of
A-2
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 Members.
"Obligations" shall mean the indebtedness, liabilities and obligations
of the Company under or in connection with the Basic 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 Documents.
"Rating Agency Condition" means any applicable conditions of the Rating
Agency necessary to maintain the then current rating by such Rating Agency of
any of securities issued by the applicable securitization trust.
"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 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.
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.
A-3
SCHEDULE B
Member
----------------------------------------------------------------------------------------------------------------------------
Agreed Value of Membership
Name Mailing Address Capital Contribution Interest
----------------------------------------------------------------------------------------------------------------------------
United Fidelity ▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Bank, FSB P. O. Box 1347 $100 100%
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
----------------------------------------------------------------------------------------------------------------------------
B-1
SCHEDULE C
Management Agreement
November 13, 2001
United Fidelity Finance, LLC
18. N.W. Fourth Street
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Management Agreement -- United Fidelity Finance, LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned Persons,
who have been designated as directors of United Fidelity Finance, LLC, a
Delaware limited liability company (the "Company"), in accordance with the
Limited Liability Company Agreement of the Company, dated as of November 13,
2001, as it may be amended or restated from time to time (the "LLC Agreement"),
hereby agree as follows:
1. Each of the undersigned accepts such Person's rights and authority
as a Director under the LLC Agreement and agrees to perform and discharge such
Person's duties and obligations as a Director under the LLC Agreement, and
further agrees that such rights, authorities, duties and obligations under the
LLC Agreement shall continue until such Person's successor as a Director is
designated or until such Person's resignation or removal as a Director in
accordance with the LLC Agreement. Each of the undersigned agrees and
acknowledges that it has been designated as a "manager" of the Company within
the meaning of the Delaware Limited Liability Company Act.
2. So long as any Obligation is outstanding, each of the undersigned
agrees, solely in its capacity as a creditor of the Company on account of any
indemnification or other payment owing to the undersigned by the Company, not to
acquiesce, petition or otherwise invoke or cause the Company to invoke the
process of any court or governmental authority for the purpose of commencing or
sustaining an involuntary case against the Company under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Company or any substantial part of the property of the Company, or ordering the
winding up or liquidation of the affairs of the Company.
3. THIS MAD REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
C-1
Initially capitalized terms used and not otherwise defined herein have
the meanings set forth in the LLC Agreement.
This Management Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Management
Agreement and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Director
▇▇▇▇▇▇ ▇. ▇▇▇▇, Director
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, Director
C-2
SCHEDULE D
DIRECTORS
1. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
2. ▇▇▇▇▇▇ ▇. ▇▇▇▇
3. ▇▇▇▇ ▇. ▇▇▇▇▇▇
D-1
SCHEDULE E
OFFICERS TITLE
▇▇▇▇▇▇ ▇. ▇▇▇▇ President and Treasurer
▇▇▇ ▇▇▇▇▇▇ Executive Vice President and Secretary
E-1