EXHIBIT 3.2
-----------
LIMITED LIABILITY COMPANY AGREEMENT
FOR
BMW FS SECURITIES LLC,
a Delaware limited liability company
TABLE OF CONTENTS
Page
Article I - Definitions................................................................................1
Section 1.1........................................................................................."Act\ 1
Section 1.2..................................................................................."Affiliate\ 1
Section 1.3.................................................................................."Bankruptcy" 1
Section 1.4......................................................................................"BMW FS\ 2
Section 1.5........................................................................"Capital Contribution\ 2
Section 1.6................................................................................."Certificate\ 2
Section 1.7........................................................................................"Code\ 2
Section 1.8....................................................................................."Company\ 2
Section 1.9.........................................................................."Distributable Cash\ 2
Section 1.10................................................................................"Fiscal Year\ 2
Section 1.11......................................................................"Independent Directors\ 2
Section 1.12.............................................................................."LLC Agreement\ 2
Section 1.13............................................................................"Managing Member\ 3
Section 1.14..............................................................."Managing Membership Interest\ 3
Section 1.15...................................................................................."Members\ 3
Section 1.16........................................................................"Membership Interest\ 3
Section 1.17..............................................................."Net Profits" and "Net Losses\ 3
Section 1.18........................................................................"Percentage Interest\ 3
Section 1.19....................................................................."Permitted Indebtedness\ 3
Section 1.20....................................................................................."Person\ 3
Section 1.21........................................................................."Purchase Agreement\ 3
Section 1.22................................................................................"Receivables\ 3
Section 1.23.........................................................................."Receivables Corp.\ 3
Section 1.24................................................................................"Regulations\ 4
Section 1.25............................................................................."Special Member\ 4
Section 1.26................................................................"Special Membership Interest\ 4
Article II - Organizational Matters.....................................................................4
Section 2.1....................................................................................Formation. 4
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TABLE OF CONTENTS
(continued)
Page
Section 2.2..........................................................................................Name 4
Section 2.3..........................................................................................Term 5
Section 2.4.........................................Registered Office; Registered Agent; Principal Office 5
Section 2.5............................................................................Address of Members 5
Section 2.6............................................................................Purpose of Company 5
Section 2.7............................................................Limited Liability Company Interest 10
Article III - Capital Contributions.....................................................................10
Section 3.1..................................................................Initial Capital Contribution 10
Section 3.2..............................................................Additional Capital Contributions 10
Section 3.3...................................................................................No Interest 10
Section 3.4...............................................................................Capital Account 11
Section 3.5.........................................................No Withdrawal of Capital Contribution 11
Section 3.6......................................No Personal Liability for Return of Capital Contribution 11
Section 3.7...........................................................Negative Balance in Capital Account 11
Section 3.8.........................................................................................Loans 11
Article IV - Member....................................................................................11
Section 4.1...............................................................Admission of Additional Members 11
Section 4.2..................................................................................Resignations 11
Section 4.3..................................................................Transaction With the Company 12
Section 4.4........................................................................Remuneration to Member 12
Section 4.5.................................................................................Voting Rights 12
Section 4.6........................................................................Meetings of the Member 12
Article V - Management And Control Of The Company; Limited Liability..................................12
Section 5.1...........................................................Management of the Company by Member 12
Section 5.2..............................................Powers With Respect to Management of the Company 12
Section 5.3.........................................................................Special Member Powers 13
Section 5.4...................................................Performance of Duties; Liability of Members 13
Section 5.5.............................................................................Limited Liability 13
Article VI - Allocations Of Net Profits And Net Losses And Distributions...............................13
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TABLE OF CONTENTS
(continued)
Page
Section 6.1.....................................................Allocations of Net Profits and Net Losses 13
Section 6.2..................................................................Distributions of the Company 13
Section 6.3..........................................................................Form of Distribution 14
Section 6.4.......................................................................Return of Distributions 14
Article VII - Transfer Of Interests.....................................................................14
Article VIII - Accounting, Records, Reporting By Members.................................................14
Section 8.1.............................................................................Books and Records 14
Section 8.2.............................................................Delivery to Member and Inspection 15
Section 8.3.............................................................................Annual Statements 15
Section 8.4.......................................................................................Filings 15
Section 8.5.................................................................................Bank Accounts 15
Section 8.6...................................................Accounting Decisions and Reliance on Others 15
Section 8.7.................................................Tax Matters for the Company Handled by Member 16
Article IX - Dissolution And Winding-Up................................................................16
Section 9.1...................................................................................Dissolution 16
Section 9.2....................................................................................Winding-Up 16
Section 9.3..............................................Order of Payment of Liabilities Upon Dissolution 17
Section 9.4........................................................................No Deficit Restoration 17
Section 9.5...................................................................Certificate of Cancellation 17
Section 9.6.....................................................................No Action for Dissolution 17
Article X - Indemnification...........................................................................17
Section 10.1..............................................................................Indemnification 17
Article XI - Miscellaneous.............................................................................18
Section 11.1...........................................................................Complete Agreement 18
Section 11.2...............................................................................Binding Effect 18
Section 11.3..........................................................................Parties in Interest 18
Section 11.4...............................................................Pronouns; Statutory References 18
Section 11.5.....................................................................................Headings 18
Section 11.6.............................................................References to this LLC Agreement 18
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TABLE OF CONTENTS
(continued)
Page
Section 11.7.................................................................................Severability 19
Section 11.8................................................................Additional Documents and Acts 19
Section 11.9......................................................................................Notices 19
Section 11.10..................................................................................Amendments 19
Section 11.11.......................................................................Multiple Counterparts 19
Section 11.12.........................................................................Remedies Cumulative 19
Section 11.13...............................................................................Choice of Law 19
Section 11.14...............................................................Federal Income Tax Allocation 19
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LIMITED LIABILITY COMPANY AGREEMENT
FOR
BMW FS SECURITIES LLC,
a Delaware limited liability company
This Limited Liability Company Agreement is made as of and is
effective the __ day of , 2001 ("LLC Agreement"), by BMW Financial Services NA,
LLC, a Delaware limited liability company ("BMW FS"), as the primary member and
BMW FS Receivables Corporation, a Delaware Corporation ("Receivables Corp."), as
the second member with reference to the following:
RECITALS
--------
A. The Certificate of Formation for BMW FS Securities LLC (the
"Company") was filed on February 27, 2001, with the Delaware Secretary of State.
B. BMW FS and Receivables Corp. now desire to adopt and
approve a Limited Liability Company Agreement for the Company.
AGREEMENT
---------
NOW, THEREFORE, BMW FS and Receivables Corp., adopt and
approve the LLC Agreement for the Company under the laws of the State of
Delaware upon the terms and subject to the conditions of this LLC Agreement.
Article I - Definitions
-----------------------
When used in this LLC Agreement, the following terms shall
have the meanings set forth below (terms used in this LLC Agreement that are not
defined in this Article 1 shall have the meanings set forth elsewhere in this
LLC Agreement or in Section 18-101 of the Act, as defined below):
Section 1.1 "Act" shall mean the Delaware Limited Liability
Company Act (6 Del. C. Section 18-101 et. seq.), as the same may be amended from
time to time.
Section 1.2 "Affiliate" shall mean a Person or Persons
directly or indirectly, through one or more intermediaries, controlling,
controlled by or under common control with the Person or Persons in question.
The term "control", as used in the immediately preceding sentence, shall mean,
with respect to a Person that is a corporation, the right to exercise, directly
or indirectly, more than 50% of the voting rights attributable to the shares of
the controlled corporation and, with respect to a Person that is not a
corporation, the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of the controlled Person.
Section 1.3 "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 or to
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.
Section 1.4 "BMW FS" means BMW Financial Services NA, LLC, a
Delaware limited liability company.
Section 1.5 "Capital Contribution" shall mean the total of
cash and other assets contributed to the Company by the Managing Member.
Section 1.6 "Certificate" shall mean the Certificate of
Formation of the Company, filed with the Delaware Secretary of State on February
27, 2001 (which is hereby ratified and approved in all respects), as amended
from time to time.
Section 1.7 "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time, the provisions of succeeding law, and to the
extent applicable, the Regulations.
Section 1.8 "Company" shall mean BMW FS Securities LLC, a
Delaware limited liability company.
Section 1.9 "Distributable Cash" shall mean the amount of cash
which the Managing Member deems available for distribution, taking into account
all the Company's debts, liabilities, and obligations then due (including,
without limitation, any agreement to purchase or sell Receivables) and amounts
necessary to place into reserves for customary and usual claims with respect to
the Company's business.
Section 1.10 "Fiscal Year" shall mean the Company's fiscal
year, which shall end on December 31st of each year.
Section 1.11 "Independent Directors" shall have the meaning
set forth in Section 2.6(c) hereof.
Section 1.12 "LLC Agreement" shall mean this Limited Liability
Company Agreement dated as of __, 2001, for BMW FS Securities LLC, as originally
executed and as amended from time to time.
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Section 1.13 "Managing Member" shall mean BMW FS in its
capacity as a member of the Company or any other Person that succeeds BMW FS in
that capacity, who is hereby appointed and designated as sole "manager" within
the meaning of the Act.
Section 1.14 "Managing Membership Interest" shall mean all of
the Managing Member's right, title and interest in, to and against the Company
(including its limited liability company interest in the Company), including
rights to Distributable Cash of the Company and all other rights of the Managing
Member to participate in the business, affairs and management of the Company,
including without limitation, the right to vote on or grant consent or approval
with respect to matters coming before the Company.
Section 1.15 "Members" shall mean the Managing Member and the
Special Member.
Section 1.16 "Membership Interest" shall mean the Special
Membership Interest and the Managing Membership Interest.
Section 1.17 "Net Profits" and "Net Losses" shall mean the net
profits and net losses of the Company for a period (or from a transaction) as
determined in accordance with generally accepted accounting principles,
consistently applied.
Section 1.18 "Percentage Interest" shall mean the limited
liability company interest in the Company expressed as a percentage of the total
limited liability company interests outstanding. The Percentage Interest of the
Managing Member is 100.0%. The Percentage Interest of the Special Member is
0.0%.
Section 1.19 "Permitted Indebtedness" shall mean the
indebtedness permitted under Section 2.6(b)(iv) hereof.
Section 1.20 "Person" shall mean any individual, sole
proprietorship, corporation, general partnership, limited partnership, limited
liability company or partnership, joint venture, association, joint stock
company, bank, trust, estate, unincorporated organization, any federal, state,
county or municipal government (or any agency or political subdivision thereof),
endowment fund or any other form of entity.
Section 1.21 "Purchase Agreement" shall mean any purchase
agreement entered into by the Company with respect to the purchase of
Receivables.
Section 1.22 "Receivables" shall have the meaning set forth in
Section 2.6(a)(i) hereof.
Section 1.23 "Receivables Corp." shall mean BMW FS Receivables
Corporation, a Delaware corporation.
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Section 1.24 "Regulations" shall, unless the context clearly
indicates otherwise, mean the regulations currently in force as formal or
temporary that have been issued by the U.S. Department of Treasury pursuant to
its authority under the Code.
Section 1.25 "Special Member" shall mean Receivables Corp. in
its capacity as a member of the Company or any other Person that succeeds
Receivables Corp. in that capacity.
Section 1.26 "Special Membership Interest" shall mean the
Special Member's limited right to manage the Company with respect to voting on
the certain matters specified in Section 2.6(d) hereof and the limited right to
manage the Company in the event the Managing Member is the subject of a
bankruptcy proceeding and is incapable of carrying out its management
responsibilities hereunder. The Special Member has no right to any distributions
hereunder and has no economic interest in the Company.
Article II - Organizational Matters
-----------------------------------
Section 2.1 Formation. Pursuant to the Act, BMW FS and Norbert
Mayer, as an authorized person within the meaning of the Act, formed a limited
liability company under the laws of the State of Delaware by filing the
Certificate with the Delaware Secretary of State and otherwise complying with
the requirements of the Act for the formation of limited liability companies.
Upon the filing of the Certificate, Norbert Mayer's powers as an authorized
person ceased. The filing of the Certificate of the Company with the Delaware
Secretary of State is hereby ratified and approved in all respects. BMW FS and
Receivables Corp. (and any successors thereto as Members) are each hereby
designated an authorized person, within the meaning of the Act, to execute,
deliver and file with the Delaware Secretary of State any amendments and/or
restatements of the Certificate of the Company. Without the need for the consent
of any Person, BMW FS is hereby admitted to the Company as the Managing Member
of the Company and Receivables Corp. is hereby admitted to the Company as the
Special Member of the Company. The rights and liabilities of each Member shall
be determined pursuant to the Act and this LLC Agreement. To the extent that the
rights or obligations of each Member are different by reason of any provision of
this LLC Agreement than they would be in the absence of such provision, this LLC
Agreement shall control, to the extent permitted by the Act.
Section 2.2 Name. The name of the Company shall be "BMW FS
Securities LLC". The business of the Company may be conducted under that name
or, upon compliance with applicable laws, any other name that the Managing
Member deems appropriate or advisable. The Managing Member shall qualify the
Company to do business in New Jersey and shall file any qualification
instruments and fictitious name certificates and similar filings, and any
amendments thereto, as necessary to qualify the Company to conduct business in
the State of New Jersey or which the Managing Member otherwise considers
appropriate or advisable in accordance with Article 5 of this LLC Agreement.
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Section 2.3 Term. The term of the Company shall commence from
the date as set forth in the introductory paragraph and shall continue until
dissolution of the Company, as hereinafter provided.
Section 2.4 Registered Office; Registered Agent; Principal
Office. The Company shall continuously maintain a registered office and
registered agent in the State of Delaware as required by the Act. At the time of
its formation, the registered office and registered agent of the Company in
Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange
Street, Wilmington, County of New Castle, Delaware 19801. In addition, the
Company shall maintain its principal office at 300 Chestnut Ridge Road,
Woodcliff Lake, New Jersey 07677, or at such other place as the Managing Member
may determine. The registered office, registered agent and principal office of
the Company may be changed at any time and from time to time by the Managing
Member.
Section 2.5 Address of Members. The address of BMW FS as the
initial Managing Member as of the date of this LLC Agreement is 300 Chestnut
Ridge Road, Woodcliff, New Jersey 07677, Attention: General Counsel. The address
of Receivables Corp. as the initial Special Member as of the date of this LLC
Agreement is 300 Chestnut Ridge Road, Woodcliff, New Jersey 07677, Attention
General Counsel. Any successor Member who is admitted shall notify BMW FS,
Receivables Corp. and the Company of its address upon admission as a member of
the Company. Each Member shall provide notice of a change in its address to the
Managing Member and the Company.
Section 2.6 Purpose of Company.
(a) The nature of the business or purposes to be
conducted or promoted by the Company is to engage solely in the following
activities:
(i) to acquire from time to time all right, title
and interest in and to receivables or leases arising out of or relating to the
financing, sale or lease of new or used motor vehicles or industrial equipment,
including automobiles, sports utility vehicles, light and heavy duty trucks,
motorcycles and recreational vehicles, monies due thereunder, security interests
in the motor vehicles or equipment financed thereby, proceeds from claims on
insurance policies related thereto, and related rights (collectively,
"Receivables");
(ii) to acquire, own, hold, service, sell, assign,
pledge and otherwise deal with the Receivables, collateral securing the
Receivables, related insurance policies, agreements with motor vehicle or
equipment dealers or lessors or other obligors, originators or servicers of
Receivables and any proceeds or further rights associated with any of the
foregoing;
(iii) to transfer Receivables to corporations,
trusts (the "Trusts") or other entities (each a "Transferee") pursuant to one or
more receivables purchase agreements, pooling and servicing agreements, sale and
servicing agreements or other agreements (the "Agreements") to be entered into
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by and among, among others, the Company, the Transferee named therein and any
entity acting as collection agent or servicer of the Receivables;
(iv) to sell Receivables to, or to finance
ownership of Receivables through, one or more Transferees established to fund
the transfer of Receivables through the issuance of commercial paper notes (such
Transferee's commercial paper notes issued to fund such Receivables, the
"Commercial Paper") pursuant to one or more Agreements to be entered into by and
among, among others, the Company, such Transferee and any entity acting as
collection agent or servicer of the Receivables;
(v) to authorize, sell and deliver, or to
participate in the issuance and sale of, any class of certificates or other
securities (collectively, the "Certificates") issued by a Trust or other
Transferee under the related Agreements;
(vi) to acquire certificates or other interests
(including special units of beneficial interest) issued by one or more trusts
owning (or established to acquire) Receivables directly or indirectly;
(vii) to issue, sell, authorize and deliver, or to
participate in the issuance and sale of, one or more series and classes of
bonds, notes or other evidence of indebtedness secured or collateralized by one
or more pools of Receivables or by certificates of any class issued by one or
more trusts including certificates of any class issued by a trust established,
or interests in which are acquired, by BMW FS or Receivables Corp.
(collectively, the "Notes");
(viii) to hold and enjoy all of the rights and
privileges of any Certificates issued by the Trusts to the Company under the
related Agreements and to hold and enjoy all of the rights and privileges of any
class of any series of Notes, or Certificates, including any class of Notes or
Certificates which may be subordinate to any other class of Notes or
Certificates, respectively;
(ix) to perform its obligations under the
Agreements and any indenture or other agreement (each, an "Indenture") pursuant
to which any Certificates or Notes are issued; and
(x) transact any and all lawful business that is
reasonably necessary, proper or incidental or convenient to the conduct,
promotion or attainment or for the furtherance of the purposes, activities and
businesses described in this Section 2.6(a) and for the protection of the
Company. In furtherance of such purposes, the Company shall have the power, and
is hereby authorized to buy and sell Receivables.
(b) Notwithstanding any other provision of this LLC
Agreement to the contrary, and any provision of law that otherwise so empowers
the Company, the Company shall not do any of the following:
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(i) own any asset or property other than (A) the
Receivables, and (B) incidental personal and intangible property relating to the
ownership of the Receivables;
(ii) engage in any business other than those set
forth in subsection (a) above;
(iii) enter into any contract or agreement with
any Affiliate of the Company, any constituent party of the Company, or any
Affiliate of any constituent party, except in the ordinary course of business
and upon terms and conditions that are substantially similar to those that would
be available on an arms-length basis with third parties;
(iv) incur any indebtedness, or assume or
guarantee any indebtedness of any other entity, secured or unsecured, direct or
indirect, absolute or contingent other than (A) any indebtedness incurred in
connection with any Commercial Paper, Certificates or Notes, and (B) any
indebtedness to BMW FS or any Affiliate thereof incurred in connection with the
acquisition of Receivables, which indebtedness shall be subordinated to all
other obligations of the Company and shall be nonrecourse debt of the Company,
except with respect to proceeds of the Receivables in excess of such proceeds
necessary to pay all obligations in relation to the Commercial Paper,
Certificates or Notes ("Excess Proceeds"), and shall not constitute a claim
against the Company to the extent that Excess Proceeds are insufficient to pay
such indebtedness (provided that such indebtedness is also expressly authorized
by the Special Member, including all of its Independent Directors), or endeavor
to obtain credit or incur any other obligations (other than with respect to
Receivables) to any Person based on the assets of any Person other than itself
or pledge its assets for the benefit of any other Person; or fail to correct
promptly any known misunderstanding with respect to the foregoing;
(v) become insolvent or not pay its debts and
liabilities (including operating expenses, employment and overhead expenses)
from its assets as the same shall become due;
(vi) fail to do or cause to be done all things
necessary to observe organizational formalities and preserve its existence, or
amend, modify, or otherwise change the organizational documents of the Company
without the prior written authorization of all its Members, including that of
all the Independent Directors of the Special Member;
(vii) fail to maintain all of its books, records,
and bank accounts separate from those of its Affiliates and any constituent
party or fail to prepare separate financial statements (even if consolidated
financial statements are also prepared) audited by independent certified public
accountants, and file its own tax returns (except to the extent consolidation is
required as a matter of law);
(viii) fail to hold itself out to the public as a
legal entity separate and distinct from any other Person (including any of its
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Affiliates, any of its constituent parties, or any Affiliate of any constituent
party), fail to conduct business in its own name or fail to maintain and utilize
separate invoices and checks;
(ix) fail to maintain adequate capital, taking
into account anticipated excess interest income on assets over interest expense
in liabilities, in light of its contemplated business purpose;
(x) commingle or pool Company funds and assets
with those of any other Person;
(xi) fail to maintain its assets in such a manner
that it will not be costly or difficult to segregate, ascertain or identify its
individual assets from those of any Affiliate or constituent party or any
Affiliate of any constituent party or any other Person;
(xii) hold itself out to be responsible for or
guaranty the debts or obligations of any other Person;
(xiii) seek to merge into or consolidate with any
Person or, subject to Section 9.1 hereof, dissolve (in whole or in part), wind
up (in whole or in part), terminate, convert to a different form of business
association (or otherwise change its legal structure) including, but not limited
to, transfer of the limited liability company interests of any Member, in whole
or in part, or liquidate (in whole or in part), transfer or otherwise dispose of
all or substantially all of its assets, unless:
(A) the entity (if other than the Company) formed
or surviving the consolidation or merger or which acquires the
properties and assets of the Company is organized and existing under
the laws of the State of Delaware, expressly assumes the due and
punctual payment of, and all obligations of the Company, including
those obligations of the Company under any Agreement and any Indenture,
and has a certificate of incorporation, limited liability company
agreement or other controlling document containing provisions identical
to the provision of this Section 2.6; and
(B) immediately after giving effect to the
transaction, no default or event of default has occurred and is
continuing under any indebtedness of the Company or any agreements
relating to such indebtedness; and
(C) the entity (if other than the Company) formed
or surviving the consolidation or merger or which acquires the
properties and assets of the Company agrees that (i) it shall maintain
its funds or assets as identifiable and not commingle its funds or
assets with those of any direct or ultimate parent of such entity and
pay from its assets all obligations and indebtedness of any kind
incurred by it, (ii) it shall maintain separate bank accounts, company
records and books of account from those of any direct or ultimate
parent of such entity and (iii) the business affairs of such entity
will be managed by or under the direction of its Board of Directors,
Managing Board, Managing Member, or other governing board and it will
8
conduct its business from an office separate from any direct or
ultimate parent of such entity; and
(D) the organizational and constituent documents
and the surviving entity's organizational documents continue to have
provisions identical to the provisions of this Section 2.6;
(xiv) file or consent to the filing of any
petition, either voluntary or involuntary, for insolvency, bankruptcy,
liquidation, receivership, or reorganization under any laws or regulations, or
make an assignment for the benefit of creditors or, except as required by law,
admit in writing its inability to pay its debts as they come due, except as
contemplated by Section 2.6(d) of this LLC Agreement;
(xv) take any action that could reasonably be
expected to cause the Company to be treated as an association taxable as a
corporation for federal, state or local tax purposes, or
(xvi) fail to fairly allocate and apportion any
overhead (including costs of office space, utilities and routine services) or
other expenses (including employee salaries and benefits) shared between the
Company and any other Person.
Failure of the Company to comply with any of the foregoing
restrictions shall not affect the status of the Company as a separate legal
entity or adversely affect the limited liability of a Member.
(c) The Special Member of the Company shall at all
times, except as noted hereafter, cause there to be at least one duly appointed
director of its Board of Directors who is an independent director (an
"Independent Director") who is not (i) a director, officer or employee of any
affiliate of the Company; (ii) a person related to any officer or director of
any affiliate of the Company; (iii) a holder (directly or indirectly) of more
than 10% of any voting securities of any affiliate of the Company; or (iv) a
person related to a holder (directly or indirectly) of more than 10% of any
voting securities of any affiliate of the Company; and in the event of the
death, incapacity, resignation or removal of all Independent Directors, the
Board of Directors shall promptly appoint an Independent Director for each
Independent Director whose death, incapacity, resignation or removal caused the
related vacancy on the Board of Directors, provided, however, that the Board of
Directors shall not vote on any matter unless and until at least one Independent
Director has been duly appointed to serve on the Board of Directors.
(d) Notwithstanding any other provision of this LLC
Agreement or the Certificate or of law that otherwise so empowers the Company,
the Company shall not, without the unanimous affirmative vote of all of the
Members, which vote must include the vote of all of the Independent Directors of
the Special Member, take any of the following actions: (i) to the fullest extent
permitted by law, the dissolution, winding up, liquidation, consolidation,
conversion to another form of business association, or change in the legal
9
structure of the Company including, but not limited to, transfer of the limited
liability company interests of any Member in whole or in part, or the merger of
the Company; (ii) the engagement by Company in any business other than as
specified in Section 2.6(a); or (iii) the amendment or modification of this
Section 2.6. Notwithstanding another provision of this LLC Agreement or the
Certificate or of law that otherwise so empowers the Company, the Company shall
not, without the unanimous affirmative vote of all of the Members, which vote
must include the vote of all of the Independent Directors of the Special Member,
take any of the following actions: (A) institute proceedings to be adjudicated
bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against it, or file a petition seeking or consenting to
reorganization or relief 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, or except as required by law, admit in writing its inability to pay
its debts generally as they become due, or take Company action in furtherance of
any such action; or (B) the material amendment or modification of any provision
of this LLC Agreement (other than this Section 2.6, amendment of which by the
Company is prohibited by the prior sentence of this Section 2.6(d)) or the
Certificate; and any purported action of the Company which violates this
sentence shall be void ab initio and of no force or effect.
(e) The Company shall have no liabilities, contingent or
otherwise, other than the Permitted Indebtedness.
Section 2.7 Limited Liability Company Interest. BMW FS shall,
on the execution hereof, sell, transfer or contribute to the Company from time
to time all its right, title and interest in and to a pool of Receivables and
related assets in a related Purchase Agreement (a "Transaction"). BMW FS will
represent, warrant and covenant in each Purchase Agreement to the Company that
the Receivable sold thereby will be free and clear of all liens and
encumbrances, except for those which constitute Permitted Indebtedness and that
the sale, transfer or contribution of the Receivables and related assets and the
consummation of the transactions contemplated by this LLC Agreement and the
related Purchase Agreement were duly authorized.
Article III - Capital Contributions
-----------------------------------
Section 3.1 Initial Capital Contribution. The Managing Member
shall, on the execution hereof, contribute $100.00 to the Company. The Managing
Member shall execute any additional assignments and documents necessary to
evidence the foregoing assignment to Company.
Section 3.2 Additional Capital Contributions. The Managing
Member may contribute additional capital to the Company in such amounts and at
such times as Managing Member shall determine in its sole and absolute
discretion.
Section 3.3 No Interest. The Managing Member shall not be
entitled to receive interest on any Capital Contributions.
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Section 3.4 Capital Account. The Company shall establish and
maintain a capital account for the Managing Member to which it shall credit the
amount of its Capital Contributions and Net Profits of the Company from time to
time and to which it shall charge the Managing Member's share of distributions
and Net Losses. The initial capital account of the Managing Member shall be
equal to $100.00.
Section 3.5 No Withdrawal of Capital Contribution. Except as
otherwise provided in this LLC Agreement, the Managing Member shall not withdraw
any Capital Contributions without the consent of all the Members. The Managing
Member shall not receive any drawing with respect to its Capital Contributions
except as otherwise provided in this LLC Agreement.
Section 3.6 No Personal Liability for Return of Capital
Contribution. Notwithstanding anything to the contrary contained herein, no
Member shall be personally liable for the return of Capital Contributions or the
return of any additions to the capital accounts of the other Members or the
return of any portion of such Capital Contributions or capital account, it being
expressly agreed that any return of Capital Contributions as may be made at any
time, or from time to time, shall be made solely from the assets of the Company
and only in accordance with the term hereof.
Section 3.7 Negative Balance in Capital Account. Except as may
be required by law, at no time during the term of the Company, or upon the
dissolution or liquidation thereof, shall the Managing Member have any
obligation to the Company or any other Member to restore any negative balance in
its capital account.
Section 3.8 Loans. The Managing Member may, but shall not be
required to, make loans to the Company and in respect of such loans shall be
treated as a creditor of the Company. Such loans shall be repaid as and when the
Company has funds available therefor, and such loans and interest thereon (at
rates to be agreed upon by the Managing Member and the Company) shall constitute
obligations of the Company. Any such loan shall not increase the Managing
Member's capital account, entitle the Managing Member to any increase in its
share of the Net Profits or to any greater proportion of Net Losses which the
Company may sustain.
Article IV - Member
-------------------
Section 4.1 Admission of Additional Members. No additional
members shall be admitted to the Company without the unanimous agreement of all
the Members, it being the intent of the Members that the Company shall at all
times be a two member limited liability company. Without the need for the
consent of any Person, upon a transfer of the limited liability company interest
in accordance with this LLC Agreement the transferee shall be deemed admitted as
a member of the Company upon the effective date of, and immediately prior to,
such transfer.
Section 4.2 Resignations. The Members shall not resign as the
members of the Company.
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Section 4.3 Transaction With the Company. Subject to any
limitations set forth in this LLC Agreement, including without limitation,
Section 2.6 hereof, the Managing Member may lend money to, act as a surety,
guarantor or endorser for, guarantee or assume one or more obligations of,
provide collateral for, and transact other business with the Company. Subject to
this LLC Agreement and applicable law, the Managing Member has the same rights
and obligations with respect to any transaction with Company as a person or
entity who is not a member or manager.
Section 4.4 Remuneration to Member. Except as otherwise
authorized in or pursuant to this LLC Agreement, the Members are not entitled to
remuneration for acting on Company business.
Section 4.5 Voting Rights. Except as expressly modified in
this LLC Agreement, each Member shall have the voting, approval and consent
rights provided in the Act.
Section 4.6 Meetings of the Member. No annual or regular
meeting of the Members is required.
Article V - Management And Control Of The Company; Limited Liability
--------------------------------------------------------------------
Section 5.1 Management of the Company by Member. The business,
property and affairs of the Company shall be managed solely by or under the
direction of the Managing Member and all powers of the Company shall be
exercised by or under the direction of Managing Member, except only for the
powers which require the vote of the Special Member under this Article 5. The
Managing Member shall conduct the affairs of the Company in the best interest of
the Company and the Members, including the safekeeping and use of all Company
funds for the benefit of the Company and the Members.
Section 5.2 Powers With Respect to Management of the Company.
Subject to the limitations set forth in Section 2.6 and in Section 5.3 or
expressly provided elsewhere in this LLC Agreement, the Managing Member shall
have all necessary powers to manage and carry out the management of the Company
and the power to sign contracts and obligations on behalf of the Company,
including without limitation, the power to exercise on behalf and in the name of
the Company all of the powers of a manager described in the Act. The Managing
Member, in its capacity as a manager of the Company, has the authority to bind
the Company. Except as otherwise provided herein, the Special Member, in its
capacity as a member of the Company, does not have the authority to bind the
Company. Notwithstanding any other provision of this LLC Agreement, the Company,
and the Managing Member on behalf of the Company, may execute, enter into and
perform such agreements as are necessary to carry out the purposes of the
Company without any further act, vote or approval.
Section 5.3 Special Member Powers. Subject to the terms of the
Act and as otherwise provided under this Section 5, the Company shall be managed
by the Special Member to the extent, and only to the extent, of the matters
described in Section 2.6(d) hereof, and any action taken by the Special Member
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to approve or ratify any action described in Section 2.6(d) shall require the
unanimous approval of all the Members (including all the Independent Directors
of the Special Member). The Special Member is hereby designated as a manager
within the meaning of the Act but shall have only the rights and powers as are
set forth in this Section 5.3 and shall not have the authority to bind the
Company.
Section 5.4 Performance of Duties; Liability of Members.
Neither the Managing Member nor the Special Member shall be liable to Company
for any loss or damage sustained by Company, unless the loss or damage shall
have been the result of an act performed, or omitted to be performed, in bad
faith or with gross negligence or willful misconduct by the Managing Member or
by the Special Member, as the case may be. To the extent that, at law or in
equity, the Managing Member or the Special Member has duties (including
fiduciary duties) and liabilities relating thereto to the Company or to the
other Member, the Managing Member and the Special Member acting under this LLC
Agreement shall not be liable to the Company or to the other Member for its good
faith reliance on the provisions of this LLC Agreement. The provisions of this
LLC Agreement, to the extent that they restrict the duties and liabilities of
the Managing Member or the Special Member otherwise existing at law or in
equity, are agreed by the parties hereto to replace, to the fullest extent
permitted by law, such other duties and liabilities of the Managing Member and
the Special Member.
Section 5.5 Limited Liability. Except as otherwise required by
the Act, the debts, obligations and liabilities of the Company, whether arising
in contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and neither the Managing Member nor the Special
Member shall be obligated personally for any such debt, obligation or liability
of the Company solely by reason of being a manager or member of the Company.
Article VI - Allocations Of Net Profits And Net Losses And Distributions
------------------------------------------------------------------------
Section 6.1 Allocations of Net Profits and Net Losses. Net
Profits and Net Losses shall be allocated solely to the Managing Members as the
holder of 100% of the Percentage Interest.
Section 6.2 Distributions of the Company. Distributable Cash
shall be distributed solely to the Managing Member. All such distributions shall
be made only to the Person who, according to the books and records of the
Company, is the holder of record of the Managing Membership Interest in respect
of which such distributions are made on the actual date of distribution.
Notwithstanding any provision to the contrary contained in this LLC Agreement,
the Company shall not make a distribution which would violate the Act or other
applicable law. Neither the Company nor the Managing Member shall incur any
liability for making distributions in good faith in accordance with Section 2.6
and this Section 6.2.
Section 6.3 Form of Distribution. The Managing Member has no
right to demand and receive any distribution from the Company in any form other
than money. Except upon a dissolution and winding-up of the Company, the
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Managing Member may not be compelled to accept from the Company a distribution
of any asset in kind.
Section 6.4 Return of Distributions. Except for distributions
made in violation of the Act, other applicable law, or this LLC Agreement, the
Managing Member shall not be obligated to return any distribution to the Company
or pay the amount of any distribution for the account of the Company or to any
creditor of the Company. The amount of any distribution returned to the Company
by the Managing Member or paid by the Managing Member for the account of the
Company or to a creditor of the Company shall be added to the account or
accounts from which it was subtracted when it was distributed to the Managing
Member.
Article VII - Transfer Of Interests
-----------------------------------
Subject to Section 2.6, the Members shall not be entitled to
directly or indirectly transfer, assign, convey, sell, encumber or in any way
alienate all or any part of their Membership Interest (a "Transfer"). To the
fullest extent permitted by law, transfers in violation of this Article 7 shall
be null and void ab initio.
Article VIII - Accounting, Records, Reporting By Members
--------------------------------------------------------
Section 8.1 Books and Records. The books and records of the
Company shall be kept, and the financial position and the results of its
operations recorded, in accordance with generally accepted accounting principles
or such other commonly accepted accounting methods, consistently applied, as may
be selected by the Managing Member from time to time. The books and records of
the Company shall reflect all the Company transactions and shall be appropriate
and adequate for the Company's business. The Company shall maintain at its
principal office all of the following:
(1) Members. A record of the full name and last known business
address of each Member, together with the capital account, Capital
Contributions, and Percentage Interest of such Member;
(2) Certificate. A copy of the Certificate and any and all
amendments thereto together with executed copies of any powers of attorney
pursuant to which the Certificate or any amendments thereto have been executed;
(3) Tax Returns. Copies of the Company's federal, state, and
local income tax or information returns and reports, if any;
(4) LLC Agreement. A copy of this LLC Agreement and any and
all amendments thereto together with executed copies of any powers of attorney
pursuant to which this LLC Agreement or any amendments thereto have been
executed;
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(5) Financial Statements. Copies of the financial statements
of the Company, if any, for the six (6) most recent Fiscal Years (but if for
less than six (6) years, then for the number of Fiscal Years the Company has
been in existence); and
(6) Books and Records. The Company's books and records as they
relate to the affairs of the Company (including, without limitation, accounting
records, leases, contracts and other agreements) for at least the current and
past six (6) Fiscal Years (but if for less than six (6) years, then for the
number of Fiscal Years the Company has been in existence).
Section 8.2 Delivery to Member and Inspection. Each Member has
the right to inspect and copy during normal business hours any of the Company
records described in Sections 8.1(1) through (6).
Section 8.3 Annual Statements. The Managing Member shall cause
to be prepared at least annually, at the Company's expense, information
necessary for the preparation of each Member's federal and state income tax
returns. Within ninety (90) days after the end of each Fiscal Year, such
information as is necessary to complete federal and state income tax or
information returns shall be made available to each Member, and a copy of the
Company's federal, state, and local income tax or information returns, if any,
for that year.
Section 8.4 Filings. The Managing Member, at the Company's
expense, shall cause the income tax and information returns, if any, for the
Company to be prepared and timely filed with the appropriate authorities. The
Managing Member, at the Company's expense, shall also cause to be prepared and
timely filed, with appropriate federal and state regulatory and administrative
bodies, amendments to or restatements of the Certificate and all reports
required to be filed by the Company with those entities under the Act or other
then current applicable laws, rules, and regulations.
Section 8.5 Bank Accounts. Subject to the requirements under
Section 2.6 of this LLC Agreement, the Managing Member shall maintain the funds
of the Company in one or more separate bank accounts.
Section 8.6 Accounting Decisions and Reliance on Others. All
decisions as to accounting matters, except as otherwise specifically set forth
herein, shall be made by the Managing Member. The Managing Member may rely upon
the advice of its accountants as to whether such decisions are in accordance
with generally accepted accounting principles or other accounting methods
appropriate for the Company and authorized hereby.
Section 8.7 Tax Matters for the Company Handled by Member. The
Managing Member shall from time to time cause the Company to make such tax
elections, if any, as it deems to be in the best interests of the Company and
the Members. The Managing Member shall be the "Tax Matters Partner" as defined
in Code Section 6231, shall represent the Company (at the Company's expense) in
connection with all examinations of the Company's affairs by tax authorities,
including resulting judicial and administrative proceedings, and shall expend
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the Company funds for professional services and costs associated therewith. The
Managing Member shall oversee the Company tax affairs in the overall best
interests of the Company and the Members.
Article IX - Dissolution And Winding-Up
---------------------------------------
Section 9.1 Dissolution
(a) The Company shall be dissolved, and its affairs
shall be wound up upon the first to occur of the following: (i) the termination
of the legal existence of the last remaining Member of the Company or the
occurrence of any other event which terminates the continued membership of the
last remaining Member of the Company in the Company unless the Company is
continued in a manner permitted by this LLC Agreement or the Act, (ii) the entry
of a decree of judicial dissolution under Section 18-802 of the Act or (iii) the
unanimous written consent of the Members subject to Section 2.6(d). 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 LLC
Agreement, the Bankruptcy of a Member (including the Special Member) shall not
cause such Member (including the Special Member) 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.
Section 9.2 Winding-Up. Upon the dissolution of the Company,
the Company shall continue solely for the purpose of winding-up its affairs in
an orderly manner, liquidating its assets, and satisfying the claims of its
creditors. The Managing Member shall be responsible for overseeing the
winding-up and liquidation of the Company, shall take full account of the
liabilities of the Company and its assets, shall either cause its assets to be
sold or distributed (as provided in Section 9.3 hereof), and if sold (as
promptly as is consistent with obtaining the fair market value thereof) shall
cause the proceeds therefrom, to the extent sufficient therefor, to be applied
and distributed as provided in Section 9.3 hereof.
Section 9.3 Order of Payment of Liabilities Upon Dissolution.
Upon dissolution, the assets of the Company shall be liquidated, and the
proceeds from such liquidation shall be allocated and distributed in the
following order of priority:
(a) First, to the satisfaction of creditors of the
Company, including the Managing Member if a creditor, to the extent otherwise
permitted by law, in satisfaction of the liabilities of the Company (whether by
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payment or the making of reasonable provision for payment thereof);
(b) Second, to the satisfaction of all debts,
liabilities and other obligations owed to the Managing Member and not paid
pursuant to clause (a) above (whether by payment or the making of reasonable
provision for payment thereof); and
(c) The balance to the Managing Member.
Section 9.4 No Deficit Restoration. If, upon liquidation, the
Managing Member has a deficit balance in its capital account, after taking into
account all capital account adjustments for the Company's Fiscal Year during
which liquidation occurs, neither the Managing Member nor the Special Member
shall have any obligation to contribute cash to the capital of the Company to
restore such deficit balance.
Section 9.5 Certificate of Cancellation. The Managing Member
shall cause to be filed in the office of, and on a form prescribed by, the
Delaware Secretary of State, a certificate of cancellation of the Certificate
upon completion of the winding-up of the affairs of the Company to terminate the
Company. The existence of the Company as a separate legal entity shall continue
until the cancellation of the Certificate as provided in the Act.
Section 9.6 No Action for Dissolution. To the fullest extent
permitted by law, neither the Managing Member nor the Special Member shall take
any voluntary action that directly or indirectly causes a dissolution of the
Company. The Members acknowledge that irreparable damage would be done to the
goodwill and reputation of the Company if the Members should bring an action in
court to dissolve the Company under circumstances where dissolution is not
required by Section 9.1.
This LLC Agreement has been drawn carefully to provide fair
treatment of all parties and equitable payment in liquidation of the Membership
Interests. Accordingly, to the fullest extent permitted by law, each Member
hereby waives and renounces its right to initiate legal action to seek the
appointment of a receiver or trustee to liquidate the Company or to seek a
decree of judicial dissolution of the Company (including, but not limited to,
any right which any Member may have under Section 18-802 of the Act).
Article X - Indemnification
---------------------------
Section 10.1 Indemnification. The Company shall defend,
indemnify and save harmless each Member (including in its capacity as Managing
Member or Special Member) from and against all claims, losses, damages, cost,
expense, demands, liabilities, obligations, liens, encumbrances, rights of
action or attorneys' fees ("Claims") sustained by reason of any act performed,
or omitted to be performed, in good faith and without gross negligence or
willful misconduct, within the scope of its authority expressly conferred by
this LLC Agreement, to the fullest extent permitted by applicable law in effect
on the date hereof and to such greater extent as applicable law may hereafter
17
from time to time permit, to the extent of available funds, otherwise it shall
be subordinated. Such indemnity shall not be construed to limit or diminish the
coverage of each Member under any insurance obtained by the Company. Payment
shall not be a condition precedent to any indemnification provided in this LLC
Agreement.
Article XI - Miscellaneous
--------------------------
Section 11.1 Complete Agreement. This LLC Agreement and the
Certificate constitute the complete and exclusive statement of agreement of the
Members with respect to the subject matter herein and therein and replace and
supersede all prior written and oral agreements or statements by the Members. No
representation, statement, condition or warranty not contained in this LLC
Agreement or the Certificate will be binding on any Member or has any force or
effect whatsoever.
Section 11.2 Binding Effect. Subject to the provisions of this
LLC Agreement relating to transferability, this LLC Agreement will be binding
upon and inure to the benefit of each Member, and its respective successors and
assigns.
Section 11.3 Parties in Interest. Except as expressly provided
in the Act or in this LLC Agreement, nothing in this LLC Agreement shall confer
any rights or remedies under or by reason of this LLC Agreement on any Person
other than each Member and its successors and assigns nor shall anything in this
LLC Agreement relieve or discharge the obligation or liability of any third
Person to the Company or any party to this LLC Agreement, nor shall any
provision hereof give any third Person any right of subrogation or action over
or against Company or any party to this LLC Agreement.
Section 11.4 Pronouns; Statutory References. All pronouns and
all variations thereof shall be deemed to refer to the masculine, feminine, or
neuter, singular or plural, as the context in which they are used may require.
Any reference to the Code, the Regulations, the Act, or other statutes or laws
will include all amendments, modifications, or replacements of the specific
sections and provisions concerned.
Section 11.5 Headings. All headings herein are inserted only
for convenience and ease of reference and are not to be considered in the
construction or interpretation of any provision of this LLC Agreement.
Section 11.6 References to this LLC Agreement. Numbered or
lettered articles, sections and subsections herein contained refer to articles,
sections and subsections of this LLC Agreement unless otherwise expressly
stated.
Section 11.7 Severability. If any provision of this LLC
Agreement or the application of such provision to any Person or circumstance
shall be held invalid, the remainder of this LLC Agreement or the application of
such provision to Persons or circumstances other than those to which it is held
invalid shall not be affected thereby.
Section 11.8 Additional Documents and Acts. The Members agree
to execute and deliver such additional documents and instruments and to perform
such additional acts as may be necessary or appropriate to effectuate, carry out
18
and perform all of the terms, provisions, and conditions of this LLC Agreement
and the transactions contemplated hereby.
Section 11.9 Notices. Any notice which the Company or the
Managing Member or Special Member is required or may desire to give the others
shall be in writing and may be personally delivered or given by United States
registered or certified mail, return receipt requested, addressed as provided
under Section 2.5 above (subject to the right of such Person to designate a
different address for itself by notice similarly given). Any notice so given by
United States mail shall be deemed to have been given on the third day after the
same is deposited in the United States mail as a registered or certified matter,
return receipt requested, addressed as above provided, with postage thereon
fully prepaid. Any notice not given by registered or certified mail as aforesaid
shall be deemed to be given upon actual receipt of the same by the Person to
whom the same is to be given, provided that the refusal by such Person to
receive any such notice shall be deemed such Person's receipt of the same.
Section 11.10 Amendments. Subject to Section 2.6, all
amendments to this LLC Agreement will be in writing and signed by all of the
Members.
Section 11.11 Multiple Counterparts. This LLC Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which shall constitute one and the same instrument.
Section 11.12 Remedies Cumulative. The remedies under this LLC
Agreement are cumulative and shall not exclude any other remedies to which any
person may be lawfully entitled.
Section 11.13 Choice of Law. This LLC Agreement shall be
governed by, and shall be construed in accordance with, the laws of the State of
Delaware (without regard to conflict of laws principles).
Section 11.14 Federal Income Tax Allocation. It is the
intention of the parties hereto that, for federal income tax purposes, the
Company shall be disregarded as an entity apart from the Managing Member, as
long as the Managing Member is the holder of all the beneficial interest in the
Company for federal income tax purposes, or treated as a partnership if the
Managing Member is not the holder of all the beneficial interest in the Company
for federal income tax purposes. The parties agree that, unless otherwise
required by appropriate tax authorities, the Managing Member will file or cause
to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Company as a division of the
Managing Member, or as a partnership, as the case may be, for such tax purposes.
For so long as the Managing Member's Percentage Interest is
100%, the Company shall be disregarded as an entity separate from the Managing
Member for federal income tax purposes and all net income of the Company for any
month as determined solely for federal income tax purposes (and each item of
income, gain, loss, credit and deduction entering into the computation thereof)
19
shall be allocated to the Managing Member and treated in the same manner as if
the Company were a division or branch of the Managing Member.
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IN WITNESS WHEREOF, each Member has executed this LLC
Agreement, effective as of the date first written above.
BMW FINANCIAL SERVICES NA, LLC
By:________________________
Name:
Title:
By:________________________
Name:
Title:
BMW FS RECEIVABLES CORPORATION
By:_________________________
Name:
Title:
By:________________________
Name:
Title:
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