EXHIBIT 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
NISSAN AUTO LEASING LLC II
This Limited Liability Company Agreement of Nissan Auto Leasing LLC II,
a Delaware limited liability company (the "Company"), dated as of October 29,
2001, is entered into by Nissan Motor Acceptance Corporation, a California
corporation, as the sole member ("NMAC" or the "Member"), and H. Edward Matveld
and Cheryl A. Lawrence, as the Independent Managers.
WHEREAS, the Member desires to form a limited liability company under
and pursuant to Delaware's Limited Liability Company Act (6 Del. C. Section
18-101 et seq.) for the purposes set forth in this Agreement by causing a
Certificate of Formation of the Company to be filed with the office of the
Secretary of State of the State of Delaware and by entering into this Agreement;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, NMAC, intending to be legally
bound, agrees to form the Company in accordance with the Act and subject to the
terms and provisions of this Agreement.
ARTICLE ONE
DEFINITIONS
Section 1.01 Definitions. As used in this Agreement, the following
terms shall have the following meanings:
(a) "Act" means the Delaware Limited Liability Company Act, as
codified in Title 6 of the Delaware Code Sections 18-101 et seq., as amended
from time to time.
(b) "Administrative Agent" shall have the meaning set forth in
Section 3.02.
(c) "Agreement" means this Limited Liability Company Agreement of
the Company, as amended from time to time.
(d) "Bankruptcy" means, with respect to any Person, if (A) 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, or (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 (B)(i) 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, the proceeding has not been
dismissed, or (ii) 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.
(e) "Board" shall have the meaning set forth in Section 7.01.
(f) "Capital Accounts" shall have the meaning set forth in Section
10.01.
(g) "Capital Contributions" means the amount of all cash, money,
and notes payable on demand and the agreed upon value of other property or
services contributed by the Member to the Company.
(h) "Certificate of Formation" means the Certificate of Formation
of the Company, including any restatements thereof or amendments thereto, which
are filed with the Secretary of State.
(i) "Certificates" shall have the meaning set forth in Section
3.02.
(j) "Code" means the Internal Revenue Code of 1986.
(k) "Collateral" shall have the meaning set forth in Section 3.02.
(l) "Company" means Nissan Auto Leasing LLC II, a Delaware limited
liability company.
(m) "Covered Person" shall have the meaning set forth in Section
11.03.
(n) "Fiscal Year" means the taxable year of the Member.
(o) "Indemnified Persons" shall have the meaning set forth in
Section 11.01(b).
(p) "Independent Manager" shall have the meaning set forth in
Section 7.16.
(q) "Managers" means such persons or entities that may be
designated from time to time by the Member as managers of the Company to perform
such functions for the Company as may be determined from time to time by the
Member and for such term as shall be determined by the Member. A Manager shall
be deemed to be a "manager" of the Company within the meaning of the Act.
(r) "Member" means each Person who (i) is an initial signatory to
this Agreement, or (ii) has been admitted to the Company as a Member in
accordance with this Agreement or is an
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assignee who has become a Member in accordance with this Agreement and (iii) has
not ceased to be a Member pursuant to this Agreement or the Act.
(s) "NMAC" means Nissan Motor Acceptance Corporation, a California
corporation.
(t) "Notes" shall have the meaning set forth in Section 3.02.
(u) "Officers" means such persons or entities that may be
designated from time to time by the Board as officers of the Company to perform
such functions for the Company as may be determined from time to time by the
Board and for such term as shall be determined by the Board pursuant to Article
8 of this Agreement.
(v) "Person" shall mean any individual, partnership, firm,
corporation, association, trust, unincorporated organization or other entity, as
well as any syndicate or group deemed to be a person pursuant to Section
13(d)(3) of the Securities Exchange Act of 1934.
(w) "Pooling Agreements" shall have the meaning set forth in
Section 3.02.
(x) "Profits" and "Losses" mean the Company's taxable income or
loss for each Fiscal Year (or other period) determined in accordance with the
accounting methods followed by the Company for federal income tax purposes,
except that any income of the Company that is exempt from federal income tax and
not otherwise taken into account in computing Profits and Losses shall be added
to such taxable income or loss.
(y) "Purchase Agreement" shall have the meaning set forth in the
Section 3.02.
(z) "Rating Agency" shall have the meaning set forth in Section
5.04.
(aa) "Receivables" shall have the meaning set forth in Section
3.02.
(bb) "Secretary of State" means the Secretary of State of the State
of Delaware.
(cc) "Securities" shall have the meaning set forth in Section 3.02.
(dd) "Special Member" shall have the meaning set forth in Section
13.06.
(ee) "SUBIs" shall have the meaning set forth in Section 3.02.
(ff) "Substitute Member" shall have the meaning set forth in
Section 13.06.
(gg) "Trusts" shall have the meaning set forth in Section 3.02.
(hh) "Trustee" shall have the meaning set forth in Section 3.02.
Section 1.02 Other Definitional Provisions.
(a) For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, (i) terms used
herein include, as appropriate, all genders and the plural as well as the
singular, (ii) references to this Agreement include all Exhibits
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hereto, (iii) references to words such as "herein" and "hereof" shall refer to
this Agreement as a whole and not to any particular part, Article or Section
hereof, (iv) references to an Article or Section such as "Article One" or
"Section 1.01" shall refer to the applicable Article or Section of this
Agreement, (v) the term "include" and all variations thereof shall mean "include
without limitation", and (vi) the term "or" shall include "and/or."
(b) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under generally accepted accounting principles in effect from time
to time. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under such generally accepted accounting principles, the
definitions contained in this Agreement or in any such certificate or other
document shall control.
(c) Any reference in this Agreement to any agreement means such
agreement as it may be amended, restated, supplemented or otherwise modified
from time to time. Any reference in this Agreement to any law, statute,
regulation, rule or other legislative action shall mean such law, statute,
regulation, rule or other legislative action (and any successor thereto) as
amended, supplemented or otherwise modified from time to time, and shall include
any rule or regulation promulgated thereunder. Any reference in this Agreement
to a Person shall include the permitted successors or assignees of such Person.
ARTICLE TWO
ORGANIZATION OF COMPANY
Section 2.01 Formation. The Member hereby forms a limited liability
company pursuant to the provisions of the Act and this Agreement, and agrees
that the rights, duties and liabilities of the Member, Managers and Officers
shall be as provided in the Act, except as otherwise provided in this Agreement.
Pursuant to Section 18-201 of the Act, this Agreement shall become effective as
of the date specified in the first paragraph hereof.
Section 2.02 Name and Office. The name of the Company shall be NISSAN
AUTO LEASING LLC II, and its registered office in Delaware shall be c/o The
Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington,
Delaware 19808, or such other place as the Board may determine from time to
time.
Section 2.03 Service of Process. The name and address of the Company's
initial registered agent for service of process are:
The Corporation Service Company
2711 Centerville Road, Suite 400
Wilmington, Delaware 19808
Section 2.04 Execution, Delivery and Filing of Certificate. Tammy
Wong-Massey, as an "authorized person" within the meaning of the Act, executed,
delivered and filed the
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Certificate of Formation with the Secretary of State on October 24, 2001 (such
filing being hereby ratified and confirmed).
ARTICLE THREE
PURPOSES
Section 3.01 Purposes. Subject to Section 3.02 below, the purpose of
the Company is to engage in any lawful act or activity for which a limited
liability company may be organized under the Act.
Section 3.02 Limitations on Purposes. Notwithstanding Section 3.01
above, the purpose of the Company is limited to the following purposes and
activities incident and necessary or convenient to accomplish the following
purposes: (i) acquire from time to time from or sell from time to time to NMAC
or its dealers or affiliates all right, title and interest in and to (or
beneficial interests in and to) receivables or leases arising out of or relating
to the sale or lease of new, near-new or used motor vehicles (including
automobiles and light-duty trucks), moneys due thereunder, security interests in
the vehicles financed or leased thereby, proceeds from claims on insurance
policies related thereto and related rights (collectively, the "Receivables");
(ii) acquire from time to time from NMAC or any of its affiliates as may be the
holder of an undivided trust interest in a trust or other similar special
purpose entity originating leases with respect to new, near-new or used vehicles
(including automobiles and light-duty trucks), all right, title and interest in
and to one or more special units of beneficial interest representing interests
in a pool of leased vehicles allocated from any such undivided trust interest in
a trust or other similar special purpose entity, the lease contracts related to
the leased vehicles, moneys due under such leases, proceeds from the claims on
insurance policies related to such vehicles or leases and related rights
(collectively, "SUBIs"), and act as the beneficiary of any such SUBIs under the
terms of the documents creating such interests (including, without limitation,
enforce its rights and exercise available remedies thereunder), and sell from
time to time to NMAC or reallocate from time to time to the undivided interest
from which such SUBI was created certain of the leased vehicles, related leases
and interest therein comprising such SUBIs; (iii) acquire, own, hold, service,
sell, assign, pledge and otherwise deal with the Receivables and SUBIs, the
collateral securing the Receivables and SUBIs, related insurance policies,
agreements with motor vehicle dealers or lessors or other originators or
servicers of Receivables or other similar or related assets and any proceeds or
further rights associated with any of the foregoing (the "Collateral"); (iv)
transfer Receivables and SUBIs and/or related Collateral to trusts or other
Persons (collectively, the "Trusts") pursuant to one or more pooling and
servicing agreements, sale and servicing agreements or other agreements (the
"Pooling Agreements") to be entered into by, among others, the Company, the
trustee or other representative named therein (the "Trustee") and any Person
acting as servicer of the Receivables or SUBIs; (v) authorize, sell and deliver
any class of certificates or other securities (collectively, the "Certificates")
issued by the Trusts under the related Pooling Agreements; (vi) acquire from
NMAC Certificates issued by one or more Trusts to which NMAC or one of its
subsidiaries transferred Receivables; (vii) issue, sell, authorize and deliver
one or more series and classes of bonds, notes or other evidences of
indebtedness secured by or collateralized by one or more pools of Receivables,
SUBIs, Collateral or Certificates (collectively, the "Notes" and together with
the Certificates, the "Securities"); (viii) sell and issue Securities secured by
the
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SUBIs or the Receivables and related Collateral to certain purchasers, pursuant
to indentures, purchase agreements or other similar agreements (collectively,
the "Purchase Agreements"); (ix) hold and enjoy all of the rights and privileges
of any Securities, including any class of Securities that may be subordinate to
any other class of Securities; (x) loan to or borrow from affiliates or others
or otherwise invest or apply funds received as a result of the Company's
interest in any Securities and any other income, as determined by the Board of
Managers from time to time; (xi) perform its obligations under the Pooling
Agreements and Purchase Agreements, including entering into one or more interest
rate cap agreements to the extent permitted by and in accordance with the terms
of such Pooling Agreements or Purchase Agreements; and (xii) engage in any
activity and exercise any powers permitted to limited liability companies under
the laws of the State of Delaware that are related or incidental to the
foregoing and necessary, convenient or advisable to accomplish the foregoing,
including the entering into of interest rate or basis swap, cap, floor or collar
agreements, currency exchange agreements or similar hedging transactions and
referral, management, servicing and administration agreements.
So long as any outstanding debt of the Company or Securities are rated
by any Rating Agency, the Company shall not issue unsecured notes or otherwise
borrow money (except as provided in the foregoing paragraph) unless (a) the
Company has made a written request to the related Rating Agency to issue
unsecured notes or incur borrowings and such notes or borrowings are rated by
the related Rating Agency the same as or higher than the rating afforded any
outstanding rated debt or Securities, or (b) such notes or borrowings (1) are
fully subordinated (and which shall provide for payment only after payment in
respect of all outstanding rated debt and/or Securities) or are nonrecourse
against any assets of the Company other than the assets pledged to secure such
notes or borrowings, and (2) where such notes or borrowings are secured by the
rated debt or Securities, are fully subordinated (and which shall provide for
payment only after payment in respect of all outstanding rated debt and/or
Securities) to such rated debt or Securities, and in either case prior notice
and copies of the related instruments and agreements are provided to such Rating
Agency.
The Company, and the Member, or any Manager or Officer on behalf of the
Company, may enter into: (i) an Amended and Restated Trust Agreement between the
Company and Wilmington Trust Company, as owner trustee, establishing the Nissan
Auto Lease Trust 2001-A (the "Trust"); (ii) a Trust Administration Agreement
among the Trust, NMAC, as administrative agent, the Company, and U.S. Bank
National Association, as indenture trustee; (iii) a Trust SUBI Certificate
Transfer Agreement between the Company and the Trust; (iv) a SUBI Certificate
Transfer Agreement between the Company and NILT Trust, a Delaware business
trust; (v) a Back-up Security Agreement among NMAC, Nissan-Infiniti LT, a
Delaware business trust, NILT Trust, the Company, the Trust and U.S. Bank
National Association; (vi) a Control Agreement among the Company, the Trust, an
indenture trustee and a securities intermediary; (vii) a Purchase Agreement
among NMAC, the Company, and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
on behalf of certain financial institutions as initial purchasers, and one or
more forms of Purchase Agreements between NMAC, the Company, and certain
affiliates of Merrill Lynch, Pierce Fenner & Smith Incorporated (collectively,
the "Purchase Agreements"); and (viii) all documents, agreements, certificates,
or financing statements contemplated thereby or related thereto, all without any
further act, vote or approval of any Member, Manager, Officer or other Person
notwithstanding any other provision of this Agreement. The foregoing
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authorization shall not be deemed a restriction on the powers of the Member or
any Manager or Officer to enter into other agreements on behalf of the Company.
Section 3.03 Power and Authority. The Company shall have the power and
authority to take any and all actions necessary, appropriate, proper, advisable,
incidental or convenient to accomplish or for the furtherance of the purposes
set forth in this Article.
ARTICLE FOUR
INTERNAL AFFAIRS
Section 4.01 Internal Affairs. The Company shall insure at all times
that (a) it maintains separate records and books of account from those of NMAC,
and (b) except as permitted by contract between the Company and NMAC with
respect to deposits in certain accounts of collections of receivables of NMAC's
that were not sold to the Company pursuant to an agreement between them, which
will be promptly remitted to the owner thereof, none of the Company's assets
will be commingled with those of NMAC or any of its affiliates.
ARTICLE FIVE
BANKRUPTCY OR INSOLVENCY RELATED PROVISIONS
Section 5.01 Limitations on Powers. Notwithstanding any other provision
of this Agreement and any provision of law, the Company shall not engage in any
business or activity other than as set forth in this Agreement.
Section 5.02 Unanimous Vote Required. Notwithstanding any other
provision of this Agreement and notwithstanding any provision of law that
otherwise so empowers the Company, the Member, the Board, any Officer or any
other Person acting on behalf of the Company, the Company, the Member, the
Board, any Officer or any other Person acting on behalf of the Company shall not
be authorized or empowered, nor shall they permit the Company, without the prior
affirmative vote of 100% of the Managers of the Company, including all of the
Independent Managers, to do any of the following:
(a) merge or consolidate with any other corporation, company or
entity or sell all or substantially all of its assets, or acquire all or
substantially all of the assets, capital stock or other ownership interest of
any other corporation, company or entity, except in accordance with the terms of
Article Three herein, on which there shall be no restriction; or
(b) (i) to the fullest extent permitted by law, dissolve or
liquidate, in whole or in part, or institute proceedings to be adjudicated
bankrupt or insolvent; (ii) file, consent to the filing of or join in the filing
of, a bankruptcy or insolvency petition against the Company or otherwise
institute bankruptcy or insolvency proceedings; (iii) file a petition seeking or
consent to reorganization or relief under any applicable federal or state law
relating to bankruptcy or insolvency; (iv) consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or other similar official
as to the Company or all or substantially all of its property; or (v) make a
general assignment for the benefit of creditors.
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Section 5.03 Waiver of Right to Reject Executory Contract. To the
extent that this Agreement or any provision hereof is deemed by any court to be
an executory contract, the Member hereby waives, to the fullest extent
permissible by law, any right to reject any term of this Agreement in any
bankruptcy proceeding.
Section 5.04 Amendment of Bankruptcy Related Provisions. None of the
provisions of this Article shall be amended, altered or repealed without the
written consent of 100% of the Board, including the Independent Managers, and
notice to each nationally recognized statistical rating organization which has
been requested by the Company or its affiliates to rate one or more outstanding
classes of Securities issued by the Company or its affiliates or by a Trust, and
which is then rating such class or classes of securities (each a "Rating
Agency").
Section 5.05 Restriction on Merger or Consolidation. Notwithstanding
the provisions of Section 5.02, the Company shall not take any of the actions
described in Section 5.02(a) without prior written notice to each Rating Agency.
ARTICLE SIX
CAPITAL CONTRIBUTIONS; BORROWINGS
Section 6.01 Admission and Initial Contributions of Member. NMAC shall
be admitted as a member of the Company at the time it executes this Agreement or
a counterpart signature page to this Agreement. The Member shall make the
Capital Contribution set forth next to its name in Exhibit A upon the formation
of the Company. No interest shall be paid to NMAC based on any Capital
Contribution made to the Company.
Section 6.02 Additional Contributions. The Member is not required to
make any additional capital contributions to the Company. The provisions of this
Agreement, including this Section, are intended solely to benefit the Member
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 to the
fullest extent permitted by law, no Member shall have any duty or obligation to
any creditor of the Company to make any contribution to the Company or to issue
any call for capital pursuant to this Agreement.
Section 6.03 Withdrawals or Transfers. The Member shall not be entitled
to withdraw from the Company without the consent of the Board or as otherwise
provided in this Agreement. In the event of the Member's withdrawal from the
Company or transfer of all of its limited liability company interest in the
Company, the Member shall, pursuant to the terms of this Agreement, cause a
successor Member to be admitted to the Company as a member of the Company
effective immediately prior to the time of the withdrawal or transfer upon such
Person's execution of a counterpart signature page to this Agreement, and, where
such successor Member is not an Affiliate, shall be subject to the conditions
set forth in Section 6.04. The Company shall notify the Ratings Agencies of any
transfer of limited liability company interests in the Company or withdrawal of
the Member. The Member's withdrawal or transfer shall become effective
immediately following the admission of a successor Member.
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Section 6.04 Additional Members. Additional members of the Company may
be added with the written consent of the Member and, if other than any
Affiliates of the Members, with notice to the Ratings Agencies, and ratification
of 100% of the Board, including all of the Independent Managers. The rights of
any such additional member of the Company shall be specified in an amendment or
supplement to this Agreement executed by each current member. No other
additional Members shall be admitted to the Company other than in accordance
with the express terms of this Agreement, in particular Section 6.03.
ARTICLE SEVEN
MANAGEMENT
Section 7.01 Board of Managers. Subject to the limitations contained in
this Agreement and the Act, the business and affairs of the Company shall be
managed by or under the direction of a Board of Managers (the "Board").
Section 7.02 Powers of the Managers. The Board 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 the other provisions of this Agreement, the Board shall
have the authority, on behalf of the Company, to do all things necessary or
appropriate for the accomplishment of the purposes of the Company. Subject to
the other provisions of this Agreement, the Board shall have full power to act
for and to bind the Company to the extent provided by Delaware law.
Section 7.03 Number. The authorized number of Managers of the Company
shall be five, at least two of which shall be Independent Managers as defined in
Section 7.16. The number of Managers may be increased or decreased by the Member
from time to time to a number not less than three nor more than seven, subject
to the limitations contained in Sections 7.15 and 7.16.
Section 7.04 Election and Tenure of Office. Each Manager shall hold
office until the expiration of the term for which appointed by the Member and
until a successor is designated and qualified or until such Manager's death,
resignation or removal.
Section 7.05 Vacancies. Subject to Sections 7.15 and 7.16, vacancies on
the Board may be filled by the Member. The Member may at any time designate a
Manager to fill any vacancy, and may designate additional Managers upon
Amendment of this Agreement to provide for additional Managers. A vacancy or
vacancies shall be deemed to exist in case of the death, incapacity, resignation
or removal of any Manager, or if the Board shall increase the authorized number
of Managers.
Subject to Sections 7.15 and 7.16, if the Board accepts the resignation
of a Manager tendered to take effect at a future time, the Member shall have
power to designate a successor to take office when the resignation becomes
effective.
No reduction of the number of Managers shall have the effect of
removing any Manager prior to the expiration of his or her term of office.
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No resignation of an Independent Manager shall become effective until
the Member has designated a successor Independent Manager pursuant to the terms
of this Agreement.
Section 7.06 Removal of Managers. Subject to Sections 7.15 and 7.16,
the entire Board or any individual Manager may be removed with or without cause
from office by the Member.
Section 7.07 Place of Meetings; Telephonic Meetings. Meetings of the
Board shall be held at such place as may be designated for that purpose from
time to time by the President. Members of the Board may participate in a meeting
of the Board by means of conference telephone or similar communications
equipment permitting all persons participating in the meeting to hear each
other, and participation in a meeting by such means shall constitute presence in
person at such 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.
Section 7.08 Annual Meeting. The Board shall conduct an annual meeting,
to be held following notice by the President.
Section 7.09 Special Meetings - Notice. Special meetings of the Board
for any purpose may be called at any time by the President or by any two
Managers. Special meetings of the Board shall be held upon four days' written
notice or 48 hours notice given personally or by telephone, e-mail, facsimile or
other similar means of communication. Any such written notice shall be addressed
or delivered to each Manager at such Manager's address as it is shown upon the
records of the Company or may have been given to the Company by the Manager for
purposes of notice or, if such address is not shown on records or is not readily
ascertainable, at the place in which the meetings of the Board are regularly
held.
Written notice by mail shall be deemed to have been given at the time a
written notice is deposited in the United States mail, postage prepaid. Any
personal notice shall be deemed to have been given at the time it is personally
delivered to the recipient. Written notice by e-mail shall be deemed to have
been given at the time it is actually transmitted by the person giving the
notice by e-mail to the recipient.
Section 7.10 Waiver. Notice of a meeting need not be given to any
Manager who signs a waiver of notice or a consent to holding the meeting or an
approval of the minutes thereof, whether before or after the meeting, or who
attends the meeting without protesting the insufficiency of notice to such
Manager at its commencement. All such waivers, consents and approvals shall be
filed with the Company's records or made a part of the minutes of the meeting.
Section 7.11 Written Consent. Any action required or permitted to be
taken by the Board may be taken without a meeting if all members of the Board
shall individually or collectively consent in writing to such action. Such
written consent or consents shall be filed with the minutes of the proceedings
of the Board. Such action by written consent shall have the same force and
effect as a unanimous vote of such Managers. Any certificate or other document
filed which relates to action so taken shall state that the action was taken by
the unanimous
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written consent of the Board without a meeting and that this Agreement
authorizes the Managers to so act. Such statement shall be the prima facie
evidence of such authority.
Section 7.12 Notice of Adjournment. Notice of the time and place of
holding an adjourned meeting need not be given to absent Managers if the time
and place be fixed at the meeting adjourned.
Section 7.13 Quorum. A majority of the authorized number of Managers as
fixed in accordance with this Agreement shall be necessary to constitute a
quorum for the transaction of business, and, subject to the provisions of this
Agreement (including those that specify that approval by Independent Managers is
required with respect to certain actions), the action of a majority of the
Managers present at any meeting at which there is a quorum, when duly assembled,
is valid as an act of the Board.
Section 7.14 Fees and Compensation. Managers and Officers may receive
such compensation and fees, if any, for their services, and such reimbursement
for expenses, as may be determined by resolution of the Board.
Section 7.15 Independent Managers. Of the authorized number of Managers
provided in Section 7.03 hereof, the Board shall at all times have at least two
individuals who are Independent Managers (as defined in Section 7.16) who are
acting as Managers; provided that if the authorized number of Managers exceeds
five, at least three Managers shall be Independent Managers. If at any time the
Board does not have the requisite number of Independent Managers, no action
requiring the unanimous vote of the Board (including the Independent Managers)
shall be taken until a sufficient number of Independent Managers have been
elected and qualified. The initial Independent Managers shall be H. Edward
Matveld and Cheryl A. Lawrence.
Section 7.16 Definitions of Certain Terms Used in Section 7.15. For
purposes of Section 7.15 the following terms shall have the meanings set forth
in this Section:
(a) An "Independent Manager" shall be an individual who was not,
at the time of such appointment or at any other time in the preceding five
years: (i) a director, officer or employee of any affiliate of the Company
(other than any limited purpose or special purpose corporation or limited
liability company similar to the Company); (ii) a person related to any officer
or director of any affiliate of the Company (other than any limited purpose or
special purpose corporation or limited liability company similar to the
Company); (iii) a direct or indirect holder of more than 10% of any voting
securities of any affiliate of the Company; (iv) a person related to a direct or
indirect holder of more than 10% of any voting securities of any affiliate of
the Company; (v) a material creditor, material supplier, employee, officer,
director, family member, manager, or contractor of the Company or its
affiliates; or (vi) a person who controls (whether directly; indirectly, or
otherwise) the Company or its affiliates or any material creditor, material
supplier, employee, officer, director, manager or material contractor of the
Company or its affiliates.
Section 7.17 Amendment of Independent Manager Definition. So long as
any Securities are outstanding, the definition of "Independent Manager" and
Sections 7.15 and 7.16
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of this Agreement shall not be amended, altered, changed or repealed without the
unanimous written consent of the Board (including all of the Independent
Managers) with notice of such amendment provided promptly to each Rating Agency.
ARTICLE EIGHT
OFFICERS
Section 8.01 Officers. The Officers of the Company shall be a
president, a secretary and a chief financial officer/treasurer, which officers
shall be elected by, and hold office at the pleasure of, the Board. The Company
may also have, at the discretion of the Board, a Chairman of the Board, one or
more vice presidents, one or more assistant secretaries, one or more assistant
treasurers and such other officers as may be appointed in accordance with the
provisions of this Agreement.
Section 8.02 Election of Officers. The Board shall, from time to time,
elect a President from their own number, a Secretary and a Treasurer, and any
other officers determined to be necessary by the Board, who may, but need not,
be members of the Board. Any two or more of such offices, except those of
President and Secretary, may be held by the same person.
Section 8.03 Section 8.03. Tenure of Office. The tenure of office of
all the officers of the Company shall be fixed by the Board.
Section 8.04 Section 8.04. Removal and Resignation. Any officer may be
removed, either with or without cause, by the Board at any regular or special
meeting or by any officer upon whom such power of removal may be conferred by
the Board.
Any officer may resign at any time by giving written notice to the
Board or to the President, or to the Secretary of the Company. Any such
resignation shall take effect on the date of the receipt of such notice or at
any later time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 8.05 Vacancies. A vacancy in any office because of death,
incapacity, resignation, removal, disqualification or other cause shall be
filled in the manner prescribed in this Agreement for regular appointment to
such office.
Section 8.06 Chairman of the Board and President.
(a) Chairman of the Board. The Chairman of the Board, if there
shall be such an officer, shall, if present, preside at all meetings of the
Board, and exercise and perform such other powers and duties as may from time to
time be assigned to him by the Board as prescribed by this Agreement.
(b) President. The President shall be the chief executive officer
of the Company and shall, subject to the control of the Board, have general
supervision, direction and control of the business affairs of the Company. In
the absence of the Chairman of the Board, he or she shall preside at all
meetings of the Board. He or she shall be ex officio, a member of all the
standing
12
committees, including the executive committee, if any, and shall have the
general powers and duties as may be prescribed by the Board or this Agreement.
Section 8.07 Vice Presidents.
(a) Senior Vice Presidents. The Senior Vice Presidents, if any,
shall be the deputy chief executive officers of the Company and shall exercise
such authority over the activities of the Company as prescribed by the
President. In the absence or disability of the President, they shall, in the
order designated by the President or the Board, perform the duties and exercise
the powers of the President.
(b) Vice Presidents. The Vice Presidents, if any, shall exercise
authority over the activities of their assigned area of responsibility as
prescribed by the President and under the overall direction and control of the
President or Senior Vice Presidents.
Section 8.08 Secretary. The Secretary shall keep, or cause to be kept,
a book of minutes at the principal office or such other place as the Board may
order, of all meetings of the Board, with the time and place of holding, whether
regular or special, and if special, how authorized, the notice thereof given,
the names of those present at Managers' meetings, and the proceedings thereof.
The Secretary shall give, or cause to be given, notice of all the
meetings of the Board required by this Agreement or by law to be given, and
shall have such other powers and perform such other duties as may be prescribed
by the Board or this Agreement.
Section 8.09 Treasurer. The Treasurer shall receive and keep all the
funds of the Company, and pay them out only as authorized by the Board.
Section 8.10 Assistants. Any Assistant Secretary or Assistant
Treasurer, respectively, may exercise any of the powers of Secretary or
Treasurer, respectively, as provided in this Agreement or as directed by the
Board, and shall perform such other duties as are imposed upon them by this
Agreement or the Board.
Section 8.11 Subordinate Officers. The Board may from time to time
appoint such subordinate officers or agents as the business of the Company may
require, and fix their tenure of office.
ARTICLE NINE
EXECUTIVE AND OTHER COMMITTEES
Section 9.01 Executive and Other Committees. The Board may designate an
executive committee, and such other committees as may be necessary from time to
time, each consisting of two or more members and with such powers as it may
designate, consistent with this Agreement and the Act. Such committees shall
hold office at the pleasure of the Board.
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ARTICLE TEN
CAPITAL ACCOUNTS; PROFITS AND LOSSES; DISTRIBUTIONS
Section 10.01 Capital Accounts. A capital account shall be maintained
for the Member (a "Capital Account"), to which contributions and Profits shall
be credited and against which distributions and Losses shall be charged. Capital
Accounts shall be maintained in accordance with the accounting principles of
Code Section 704 and the Treasury Regulations thereunder.
Section 10.02 Allocation of Profits and Losses.
The Profits and Losses of the Company shall be determined as of the end
of each Fiscal Year of the Company and shall be allocated to the Member.
Section 10.03 Distributions.
(a) The Company shall distribute to the Member such sums as the
Board determines to be available for distribution and appropriate for
distribution and not required to provide for current or anticipated Company
needs. All distributions shall be made to the Member.
(b) No distributions shall be declared and paid unless, after the
distribution is made, the Company would be able to pay its debts as they become
due in the usual course of business and the assets of the Company are in excess
of the sum of the Company's liabilities.
(c) Notwithstanding any other provision of this Agreement, the
Company shall not make a distribution to a Member on account of its interest in
the Company if such distribution would violate this Agreement, any other
applicable agreements, any applicable Pooling Agreements or Purchase Agreements,
the Act or other applicable law.
ARTICLE ELEVEN
EXCULPATION OF LIABILITY; INDEMNIFICATION
Section 11.01 Limitation and Exculpation of Liability.
(a) 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 solely the debts, obligations and liabilities of the
Company, and no Member, Manager or Officer shall be obligated personally for any
such debt, obligation or liability of the Company solely by reason of being a
Member, Manager or Officer of the Company.
(b) Neither the Member nor the Special Members nor any Officer,
Manager, employee or agent of the Company nor any employee, representative,
agent or Affiliate of the Member or the Special Members (collectively, the
"Indemnified Persons") shall be liable to the Company or any other Person who is
bound by this Agreement for any loss, damage or claim incurred by reason of any
act or omission performed or omitted by such Indemnified 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 Indemnified Person by this Agreement, except
that an
14
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's gross negligence or willful misconduct.
Section 11.02 Indemnification. Subject to the following sentences, the
Company shall have the authority, to the maximum extent permitted by the Act and
other applicable law, and hereby does indemnify each of its Managers, Officers,
employees and agents to the fullest extent permissible under Delaware law and
this Agreement. Subject to the preceding and following sentences, the Company
shall indemnify its Officers and Managers against expenses, judgment, fines,
settlements and other amounts actually and reasonably incurred in connection
with any proceeding arising by reason of the fact that any such person is or was
an Officer or Manager of the Company, and shall advance to such Officer or
Manager expenses incurred in defending any such proceeding to the maximum extent
permitted by law. Notwithstanding the foregoing, if the Company has outstanding
any Securities, the Company's obligation to pay any amount as indemnification or
as an advance of expenses (other than amounts received from insurance policies)
shall be fully subordinated to payment of amounts then due on the Securities
and, in any case, (i) nonrecourse to any of the Company's assets pledged to
secure such Securities, and (ii) shall not constitute a claim against the
Company to the extent that funds are insufficient to pay such amounts. For
purposes of this section, an "Officer" or "Manager" of the Company shall mean
any person who is an Officer or Manager of the Company, or is serving at the
request of the Company as a director or officer of another corporation or other
enterprise.
Section 11.03 Fiduciary Duties. To the extent that, at law or in
equity, a Member, Manager, or agent of the Company or a director, officer,
employee or Affiliate of such person (each, 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 Member for its good faith reliance on the
provisions of this Agreement. The provisions of this Agreement, to the extent
that they restrict the duties and liabilities of a Covered Person otherwise
existing at law or in equity, are agreed by the Members to replace such other
duties and liabilities of such Covered Person.
ARTICLE TWELVE
CORPORATE RECORDS AND REPORTS - INSPECTION
Section 12.01 Records. The Company shall maintain adequate and correct
accounts, books and records of its business and properties. All of such books,
records and accounts shall be kept at its principal place of business, as fixed
by the Board from time to time.
Section 12.02 Inspection of Books and Records. All books and records
provided for in the appropriate sections of the Act shall be open to inspection
of the Member and each Manager from time to time and in the manner provided in
the Act.
Section 12.03 Certification and Inspection of Certificate of Formation
and LLC Agreement. The original or a copy of the Company's Certificate of
Formation and this Agreement, as amended or otherwise altered to date, certified
by the Secretary, shall be open to inspection by the Member and members of the
Board of the Company, as provided in the Act.
15
Section 12.04 Checks, Drafts, etc. All checks, drafts or other orders
for payment of money, notes or other evidences of indebtedness, issued in the
name of or payable to the Company, shall be signed or endorsed by such person or
persons and in such manner as shall be determined from time to time by
resolution of the Board.
Section 12.05 Contracts, etc. - How Executed. The Board, except as
otherwise provided in this Agreement, may authorize any Officer or Officers,
agent or agents, to enter into any contract or execute any instrument in the
name of and on behalf of the Company. Such authority many be general or confined
to specific instances.
ARTICLE THIRTEEN
TERM OF COMPANY
Section 13.01 Commencement. The term of the Company commenced upon the
filing of the Certificate of Formation with the Secretary of State.
Section 13.02 Duration. The term of the Company shall continue
perpetually, unless the Company is dissolved in accordance with the provisions
of this Agreement. The existence of the Company as a separate legal entity shall
continue until cancellation of the Certificate of Formation in the manner
required by the Act.
Section 13.03 Dissolution. The Company shall be dissolved and its
affairs wound up upon the occurrence of any of the following events: (i) upon
unanimous written consent of the Member and 100% of the Managers, including all
of the Independent Managers; (ii) at any time the Company contains no members;
or (iii) 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.
Section 13.04 Continuation of Company. The resignation, withdrawal,
expulsion, Bankruptcy, insolvency or dissolution of the Member or the occurrence
of any event that terminates the continued membership of the Member shall not,
in and of itself, cause the Company to be dissolved or its affairs to be wound
up, and upon the occurrence of any such event, the Company shall be continued
without dissolution as permitted by this Agreement and the Act.
Section 13.05 Bankruptcy or Insolvency of Member. Notwithstanding any
other provision of this Agreement, the Bankruptcy or insolvency of the Member
shall not cause the 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.
16
Section 13.06 Admission of Special Member. Notwithstanding any
provision in this Agreement to the contrary, 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 assignee as a member of the
Company, effective immediately prior to such transfer, or (ii) the resignation
of the Member and the admission of a successor member of the Company, effective
immediately prior to such resignation), (a) each Person acting as an Independent
Manager pursuant to Article Seven 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 member of the Company (each, a
"Special Member") and shall continue the Company without dissolution, and (b)
the personal representative of such Member is hereby authorized to, and shall,
to the fullest extent permitted by law, within 90 days after the occurrence of
the event that terminated the continued membership of such Member in the
Company, appoint a Person as a substitute member of the Company (the "Substitute
Member"). 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 Manager pursuant
to Article Seven; provided, however; the Special Members shall automatically
cease to be members of the Company upon the admission to the Company of a
Substitute Member but shall not thereby cease to be Independent Managers. 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. Each Special Member shall be entitled to the
benefits of the exculpation from liability and indemnification provisions
contained in Article Eleven. 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 Manager pursuant to Article Seven
shall execute a counterpart to this Agreement. Prior to its admission to the
Company as Special Member, each Person acting as an Independent Manager pursuant
to Article Seven shall not be a member of the Company. The admission to the
Company as a Special Member of a Person acting as an Independent Manager shall
not affect such Person's rights, powers, privileges or obligations as an
Independent Manager.
ARTICLE FOURTEEN
APPLICATION OF ASSETS
Section 14.01 Application of Assets. Upon dissolution of the Company,
the Company shall cease carrying on its business and affairs and shall commence
winding up of the Company's business and affairs and complete the winding up as
soon as practicable. The winding-up of the Company's business and affairs shall
be managed by the Managers. The assets of the Company may be liquidated or
distributed in kind, as determined by the Managers, and the same shall first be
applied to the satisfaction (whether by payment or the reasonable
17
provision for payment) of the Company's liabilities in accordance with the Act
and then to the Members. Subject to the terms of any applicable Pooling
Agreements, Purchase Agreements, or Securities, to the extent that Company
assets cannot either be sold without undue loss or readily divided for
distribution in kind to the Members, then the Company may, as determined by the
Managers, convey those assets to a suitable holding entity established for the
benefit of the Members in order to permit the assets to be sold without undue
loss and the proceeds thereof, subject to the Act, distributed to the Member at
a future date. The legal form of the holding entity, the identity of the trustee
or other fiduciary and the terms of its governing instrument shall be determined
by the Managers.
Section 14.02 Termination. The Company and this Agreement shall
terminate when all the assets of the Company, after payment of or due provision
for all debts, liabilities and obligations of the Company, shall have been
distributed to the Member in the manner provided for in this Article and the
Certificate of Formation shall have been cancelled in the manner required by the
Act.
Section 14.03 Claims of the Members. The Member shall look solely to
the Company's assets for the return of its Capital Contributions, and if the
assets of the Company remaining after payment of or due provision for all debts,
liabilities and obligations of the Company are insufficient to return such
Capital Contributions, the Member shall not have recourse against the Company.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
Section 15.01 Amendment of Agreement. Amendments to this Agreement may
be adopted, or this Agreement may be repealed or amended by majority vote of the
Board at any annual or special meeting. Notwithstanding the foregoing, Sections
6.03, 6.04, 7.15, 7.16, 7.17, 10.03, 11.02, this Section 15.01 and Articles
Three, Four, Five and Thirteen shall not be amended or repealed without
obtaining the written consent of 100% of the Board of Managers, including all of
the Independent Managers, or the further consents specified therein.
Section 15.02 Entire Agreement. This Agreement constitutes the entire
Agreement between the parties and may be modified only as provided herein. No
representations or oral or implied agreements have been made by any party hereto
or its agent, and no party to this Agreement has relied upon any representation
or agreement not set forth herein. This Agreement supersedes any and all other
agreements, either oral or written, among the Company and its Members.
Section 15.03 Further Execution. Upon request of the Company from time
to time, the Member, Managers and Officers shall execute and swear to or
acknowledge any amended Certificate of Formation and any other writing which may
be required by any rule or law or which may be appropriate to the effecting of
any action by or on behalf of the Company which has been taken in accordance
with the provisions of this Agreement.
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Section 15.04 Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties, their successors and permitted
assigns. None of the provisions of this Agreement shall be construed as for the
benefit of or as enforceable by any creditor of the Company or the Members or
any other Person not a party to this Agreement. Notwithstanding any other
provision of this Agreement, the Member agrees that this Agreement constitutes a
legal, valid and binding agreement of the Member, and is enforceable against the
Member by the Independent Managers, in accordance with its terms. In addition,
notwithstanding any other provision of this Agreement, the Independent Managers
shall be intended beneficiaries of this Agreement.
Section 15.05 Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of any security or
the rights of the holders thereof.
Section 15.06 Captions. All captions are for convenience only, do not
form a substantive part of this Agreement and shall not restrict or enlarge any
substantive provisions of this Agreement.
Section 15.07 Delaware Law to Control. This Agreement shall be governed
by, and all questions with respect to the construction of this Agreement and the
rights and liabilities of the parties hereto shall be determined in accordance
with the internal laws of the State of Delaware without regard to any otherwise
applicable principles of conflict of laws.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
MEMBER:
NISSAN MOTOR ACCEPTANCE CORPORATION
By: /s/ Joji Tagawa
---------------
Name: Joji Tagawa
Title: Treasurer
SPECIAL MEMBERS:
/s/ H. Edward Matveld
----------------------
H. Edward Matveld
/s/ Cheryl A Lawrence
----------------------
Cheryl A. Lawrence
S-1
EXHIBIT A
Limited Liability Company
Member Interest Capital Contribution
- ----------------------- ------------------------- --------------------
Nissan Motor Acceptance 100% economic interest $1,000
Corporation
A-1