Exhibit 3.1
EXECUTION COPY
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
BOND SECURITIZATION, L.L.C.
This Second Amended and Restated Limited Liability Company Agreement
(together with the schedules attached hereto, this "Agreement") of Bond
Securitization, L.L.C. (the "Company") which amends and restates that certain
Amended and Restated Limited Liability Company Agreement of Bond
Securitization, L.L.C., dated as of August 31, 2001, is entered into by Bank
One Financial Corporation, as the sole equity member (the "Member"), and ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as the Special Members (as defined on
Schedule A hereto). 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 continues the
Company as 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"), and this Agreement, and hereby desires
that this Agreement be, and hereby is, the sole governing document of the
Company, superseding all prior agreements. The Special Members and Member,
hereby agree as follows:
63. Name.
The name of the limited liability company formed and continued hereby
is Bond Securitization, L.L.C.
64. Principal Business Office.
The principal business office of the Company shall be located at ▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as may
hereafter be determined by the Member.
65. Registered Office.
The address of the registered office of the Company in the State of
Delaware is The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Trust
Center, in the City of Wilmington, County of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
66. 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, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Trust Center, in the City of
Wilmington, County of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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67. Members.
A. The mailing address of the Member is set forth on Schedule B
attached hereto.
B. Subject to Section 9(j), the Member 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 (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 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 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 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.
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.
68. Certificates.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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
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restatements thereof) necessary for the Company to qualify to do business in
New York, Illinois and 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.
69. Purposes. The purpose to be conducted or promoted by the Company is
to engage in the following activities:
(a)
1. To authorize, issue, sell, deliver, purchase and
invest in (and enter into agreements in connection
with), and/or to engage in the establishment of one or
more trusts (each, a "Trust") which will issue and
sell, bonds, notes debt or equity securities,
obligations, and other securities and instruments (in
one or more series, each of which series may consist
of one or more classes) ("Securities"), which
Securities will be collateralized or otherwise secured
or backed by, or otherwise represent interests in,
among other things (A) one or more pools of
Receivables; (B) pass-through certificates (the
"Pass-Through Certificates") evidencing a fractional
undivided ownership interest in one or more grantor
trusts that own or hold, among other things, one or
more pools of Receivables, or participations or
certificates of participation or beneficial ownership
in one or more pools of Receivables ("Participation
Certificates"); or (C) other collateral (the
Receivables, the Pass-Through Certificates,
Participation Certificates and other collateral
pledged as security for or otherwise supporting the
Securities and the proceeds thereof are collectively
referred to herein as the "Collateral"); in each case
the Securities of a series which are distributed
through one or more public offerings (with the
exception of the Subordinated Securities of such
series, which may or may not be rated) shall, when
issued, be rated in one of the four highest rating
categories by any one or more nationally recognized
rating agencies;
2. in connection with the issuance and sale of the
Securities or otherwise, to purchase or otherwise
acquire, own, hold, transfer, convey, pledge, assign,
sell (or otherwise dispose of), service, finance,
refinance or otherwise deal in or with the
Pass-Through Certificates, the Participation
Certificates and the Receivables (and any assets to
which such Receivables relate) and related Collateral
and to enter into contractual arrangements,
transactions and agreements with respect to the
Receivables and with the providers or obligors
respecting such Collateral, including agreements with
originators of Receivables, sellers or servicers of
Receivables or dealers in any assets to which the
Receivables relate; for purposes of this Agreement,
the term "Receivables" means the right to payment
under, and other rights of a holder with respect to,
various promissory notes, leases, loan agreements,
installment sales contracts, drafts (including bank
and commercial drafts), trade documents, certificates
of participation, accounts receivable,
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accounts, account balances, certificates of beneficial
ownership, bankers' acceptance and other agreements
and instruments evidencing indebtedness or payment
obligations, any or all of which may be secured or
unsecured, that arise in connection with one or more
of the following: (i) the sale or lease of
automobiles, recreational vehicles, boats, trucks or
other motor vehicles, equipment, merchandise, home
improvement and other personal property and financings
or re-financings secured thereby, (ii) credit card
purchases or cash advances, (iii) the sale, licensing
or other commercial provision of services, rights,
intellectual properties and other intangibles, (iv)
trade financing, with or without whole or partial
guarantees of payment by the Export-Import Bank of the
United States or any comparable domestic, foreign or
international authority, (v) loans secured by first or
junior mortgages on real estate or manufactured
housing, (vi) loans to employee stock ownership plans,
and (vii) any and all other commercial transactions
and commercial, sovereign, student and consumer loans
and indebtedness;
3. to arrange or otherwise provide for support any series
of Securities to be issued by the Company or any Trust
by various forms of credit enhancement including
collections and/or distributions on the Receivables
which are to be remitted to certain accounts to be
established under the indenture or participation,
pooling or other similar agreement relating to such
series, cash deposits, insurance policies, guaranteed
investment contracts, investment agreements, letters
of credit, minimum payment agreements, guarantees and
other forms of credit enhancement including
arrangements whereby, for a given series, payments on
one or more classes of Securities ("Subordinated
Securities") are subordinated to, and constitute
additional security for payments due on one or more
other classes of Securities in such series;
4. to enter into any interest rate or basis swap, cap,
floor or collar agreements, currency exchange
agreements or similar hedging transactions relating to
any Collateral or for the benefit of any series of
Securities issued by the Company or any Trust;
5. to invest certain proceeds from Receivables and
related Collateral as determined by the Company's
Board of Directors;
6. to authorize, issue, sell and deliver instruments
evidencing the Company's indebtedness which is
completely subordinated to any Securities, and to
enter into agreements by which the Company incurs such
indebtedness; and
7. 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,
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convenient or advisable for the accomplishment of the
above-mentioned purposes.
B. The Company, by or through the Member, 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 Member or
any Director or Officer to enter into other agreements
on behalf of the Company.
70. 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.
71. 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
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 be three, 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 Director Agreement.
Directors need not be a Member. The initial Directors
designated by the Member are listed on Schedule D hereto.
▇. ▇▇▇▇▇▇. 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
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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. At all meetings 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
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.
1. 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.
2. 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.
3. 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
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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.
J. Limitations on the Company's Activities.
1. 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.
2. 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, 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 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 32.
3. 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, 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 the Board
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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.
4. 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; 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:
maintain its own books and records and bank accounts
separate from the Member or any other person;
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;
have a Board of Directors separate from that of the Member
and any other Person;
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;
except as contemplated by the Transaction Documents, not
commingle its assets with assets of the Member or any
other Person;
conduct its business in its own name and strictly comply
with all organizational formalities to maintain its
separate existence;
maintain separate financial statements;
pay its own liabilities only out of its own funds;
maintain an arm's length relationship with its Affiliates
and the Member;
pay the salaries of its own employees, if any;
not hold out its credit or assets as being available to
satisfy the obligations of others;
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,
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and not engage in any business transaction with any
Affiliate unless on an arm's-length basis;
use separate stationery, invoices and checks;
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;
correct any known misunderstanding regarding its separate
identity;
maintain adequate capital in light of its contemplated
business purpose, transactions and liabilities;
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;
not acquire any securities of the Member; and
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 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 liability of the Member or the Directors.
5. So long as any Obligation is outstanding, the Board shall
not cause or permit the Company to:
except as contemplated by the Transaction Documents,
guarantee or become obligated for the debts of any
Person, including any Affiliate;
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);
incur, create or assume any indebtedness other than as
expressly permitted hereunder and under the Transaction
Documents;
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
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be made pursuant to any provisions of the Transaction
Documents and permit the same to remain outstanding in
accordance with such provisions;
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
except as contemplated by Section 7(a), form, acquire or
hold any subsidiary (whether corporate, partnership,
limited liability company or other).
72. Independent Director.
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 Director
Agreement, and (ii) shall have executed a counterpart to 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
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. The
independent directors of the Company as of the date of this amendment and
restatement are ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
73. Officers.
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 shall choose
a President, a Secretary and a Treasurer. 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
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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
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 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 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 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
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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.
74. 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.
75. 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.
76. 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. 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 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 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.
13
77. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the Member.
78. 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 Section 18-607 of the Act or any other
applicable law or any Transaction Document.
79. 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.
80. 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:
1. unless such quarter is the last fiscal quarter, a balance
sheet of the Company; and
2. 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 Member, 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:
1. a balance sheet of the Company;
2. an income statement of the Company for such fiscal year; and
3. a statement of the 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
14
transmit to the Member as promptly as possible any such tax
information as may be reasonably necessary to enable the 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.
81. 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.
82. Other Business.
The Member, the Special Members 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.
83. Exculpation and Indemnification.
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 has an interest in or
claim against the Company 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 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
15
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
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.
F. The foregoing provisions of this Section 21 shall survive any
termination of this Agreement.
84. Assignments.
Subject to Section 24, the Member may assign all of its limited
liability company interest in the Company. If the 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
the Member by merger or consolidation in compliance with the Transaction
Documents shall, without further act, be the Member hereunder, and such merger
or
16
consolidation shall not constitute an assignment for purposes of this
Agreement and the Company shall continue without dissolution.
85. Resignation.
So long as any Obligation is outstanding, the Member may not resign,
except as permitted under the Transaction Documents and if the Rating Agency
Condition is satisfied. If the 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.
86. Admission of Additional Members.
One or more additional members of the Company may be admitted to the
Company with the 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.
87. 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 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, 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 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
17
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 (including all
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.
88. 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 the dissolution, liquidation, winding up or
termination of the Company. The Member shall not have 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.
89. 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 except for the provisions of Sections 5(c), 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).
90. 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.
91. Entire Agreement.
18
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
92. Binding Agreement.
Notwithstanding any other provision of this Agreement, the 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
Independent Directors, in accordance with its terms. In addition, the
Independent Directors shall be intended beneficiaries of this Agreement.
93. 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.
94. 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:
(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.
95. 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.
96. 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
19
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.
97. Effectiveness.
Pursuant to Section 18-201(d) of the Act, this Agreement shall be
effective as of the date hereof.
20
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Second Amended and Restated Limited Liability
Company Agreement as of the 26th day of April 2002.
MEMBER:
BANC ONE FINANCIAL
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
S-1
SPECIAL MEMBERS:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
S-2
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 June 18,
2001, as amended or amended and restated from time to time.
"Collateral" has the meaning set forth in Section 7(a)(i).
"Company" means Bond Securitization, L.L.C., a Delaware limited
liability company.
A-1
"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).
"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 the Member or its Affiliates.
"Director Agreement" means the agreement of the Directors in the form
attached hereto as Schedule C. The Director Agreement shall be deemed
incorporated into, and a part of, this Agreement.
"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.
"Financed Vehicle" has the meaning set forth in Section 7(a)(i).
"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 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.
A-2
"Member" means Banc One Financial Corporation, 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 Members.
"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.
"Participation Certificates" has the meaning set forth in Section
7(a)(i).
"Pass-Through Certificates" has the meaning set forth in Section
7(a)(i).
"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)(ii).
"Securities" has the meaning set forth in Section 7(a)(i).
"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
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.
"Subordinated Securities" has the meaning set forth in Section
7(a)(iii).
"Transaction Documents" means this Agreement, the Director Agreement,
any Securitization Agreement and all documents and certificates contemplated
thereby or delivered in connection therewith.
A-3
"Trust" has the meaning set forth in Section 7(a)(i).
A-4
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-5
SCHEDULE B
Member
-------------------------------------------------------------------------------
Agreed Value
of Capital Membership
Name Mailing Address Contribution Interest
-------------------------------------------------------------------------------
Banc One Financial 1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ $100 100%
-------------------------------------------------------------------------------
▇-▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇-▇
▇▇▇▇▇▇▇▇ ▇
Directors
---------
1. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
2. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
3. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
D-1
SCHEDULE E
Officers
--------
Officer Title
------- -----
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ President
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Treasurer
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Secretary
D-2