Exhibit 3.2
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LIMITED LIABILITY COMPANY AGREEMENT
OF
BOND PRODUCTS DEPOSITOR LLC
LIMITED LIABILITY COMPANY AGREEMENT
of
Bond Products Depositor LLC
Effective May 7 , 2003
___________________________
The undersigned, being the sole initial member of Bond Products
Depositor LLC, a Delaware limited liability company (the "Company "), hereby
adopts this limited liability company agreement (this "Agreement") of the
Company as a Limited Liability Company Agreement pursuant to Delaware Limited
Liability Company Act (the "Delaware Limited Liability Act" or the "Act") ss.
18-101(7). The Company's Certificate of Formation (the "Certificate") was
filed with the Secretary of State of Delaware on April 22, 2003.
ARTICLE I
DURATION; OFFICES; BUSINESS; CAPITAL AND DISTRIBUTIONS
1.1 Perpetual Existence. The Company shall have perpetual
existence, beginning on the date of filing its Certificate, unless dissolved
under Section 5.1.
1.2 Office and Agent. The principal place of business of the
Company shall initially be at Bank of America Corporate Center, 100 North
Tryon Street, Charlotte, NC 28255. The Company may change such principal place
of business and have such other offices as the Board (as herein defined) may
designate or as the business of the Company may require. The Company shall
continuously maintain an office and registered agent in Delaware as required
by ss.ss.18-104 et seq. of the Act. The registered office and registered agent
shall be as stated in the Certificate or as otherwise determined by the Board.
1.3 Business of the Company. The nature of the business or purposes
to be conducted or promoted by the Company is to engage in any of the
following acts or activities:
(a) to establish of one or more trusts (each, a "Trust")
which will issue and sell certificates and other securities or
instruments in one or more series, each of which series may consist
of one or more classes (the "Securities"), which Securities will each
represent undivided beneficial interests in the assets of the related
Trust, and which assets may include any security or investment
contemplated by this Section 1.3, or other right to purchase or sell
the assets of each Trust;
(b) in connection with the issuance and sale of the
Securities or otherwise, to purchase, or otherwise acquire, own,
hold, transfer, convey, pledge, assign or sell (or otherwise dispose
of) (i) debt securities or asset backed securities or a pool of such
debt securities or asset backed securities issued by one or more
corporations, banking organizations, insurance companies or special
purpose vehicles (including trusts, limited liability companies,
partnerships or other special purpose entities), (ii) debt securities
or a pool of such debt securities which represent obligations issued or
guaranteed by a foreign government, political subdivision or agency
or instrumentality thereof, (iii) obligations of one or more foreign
private issuers or (iv) debt securities or a pool of such debt
securities which represent obligations of the United States, any
agency thereof for the payment of which the full faith credit of the
United States is pledged, or a United States governmental sponsored
organization created pursuant to a federal statute;
(c) to arrange for, or otherwise provide, various financial
instruments for any series of Securities issued by a Trust including
swap agreements, caps, floors, collars, puts, calls or other
arrangements or to subordinate payments on one or more classes of
Securities to payments due on one or more other classes of Securities
in such series;
(d) to arrange for, or otherwise provide, various forms of
credit enhancement including surety agreements, letters of credit and
other financial instruments intended to provide credit support for
the Securities;
(e) to invest certain proceeds received from the sale of the
Securities as determined by the Board of Managers of the Company (the
"Board");
(f) to enter into option agreements with third parties which
provide for the sale of all or a portion of the assets held by any
Trust formed by the Company or the sale of all or a portion of the
Securities issued by any Trust formed by the Company; and
(g) to authorize, issue, sell and deliver instruments
evidencing the Company's indebtedness which is completely
subordinated to any Securities and to enter into any agreements
pursuant to which the Company incurs such indebtedness;or
(h) to engage in any lawful act or activity and to exercise
any powers permitted to limited liability companies organized under
the Act to the extent such activities or the exercise of such powers
are incidental to and necessary or convenient for the accomplishment
of the above mentioned business and purposes.
1.4 Capital and Distributions.
(a) Capital. The Initial Member (as herein defined) hereby
agrees to make an initial equity contribution to the Company in the
amount of One Thousand Dollars ($1,000.00). No Member shall be
required to make an additional capital contribution to the Company.
However, a Member may make additional capital contributions at such
times and in such amounts as it may determine, provided that the
Board shall first consent to such additional capital contribution.
(b) Allocations and Distributions. The profits and losses of
the Company shall be allocated to each Member in accordance with its
respective interests in the Company as represented by any membership
interests issued to, or percentage interest owned by, such Member, or
as otherwise provided herein. The Members agree for themselves and
their successors and assigns that their participation is considered a
long- term investment, and that any return of capital before
termination and winding up of the Company is in the sole discretion
of the Board. Distributions shall be made to the Members at the times
and in the aggregate amounts determined by the Board. Notwithstanding
any provision to the contrary contained in this Agreement, the
Company shall not make a distribution to any Member on account of its
interest in the Company if such distribution would violate Section
18-607 of the Act or other applicable law.
1.5 Limited Liability. Except as otherwise 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 or Manager shall be obligated
personally for any such debt, obligation or liability of the Company solely by
reason of being a Member or Manager of the Company.
ARTICLE II
MEMBERS
2.1 Initial Member. The initial Member of the Company will be
NationsBanc Montgomery Holdings Corporation ("Initial Member;" and, together
with any other persons admitted as Members pursuant to Section 2.2,
"Members").
2.2 Admission of Additional Members. The Initial Member may admit to
the Company additional Members who will participate in the management, "net
profits," "net losses" and distributions of Company on such terms as are
determined by the Initial Member. Any other person who acquires an interest in
the Company, whether directly from the Company or by assignment, shall
thereafter be admitted to membership by the Board. As a condition to
membership, a new Member shall execute a document in which such new Member
affirms and accepts all the terms, conditions and provisions of this Agreement
and agrees to be bound to the same. A "person" shall include any individual,
corporation, partnership, limited liability company, association, trust,
institution or other entity or organization.
2.3 Resignation of Members. Any Member may resign as a Member of
Company upon thirty (30) days written notice to the remaining Members (so long
as there is at least one remaining Member), or such shorter period as the
remaining Member(s) may agree. Upon such resignation, such Member shall have
no further liability with respect to the Company under the Act or otherwise.
2.4 Actions by Member. No Member, without the written authorization
of the Board, shall (i) endorse any note or act as an accommodation party, or
otherwise become surety for any person in any transaction involving the
Company, (ii) on behalf of the Company borrow or lend money, or make, deliver
or accept any commercial paper, or execute any mortgage, security agreement,
bond, or lease, or purchase or contract to purchase, or sell or contract to
sell any property for or of the Company or (iii) mortgage, grant a security
interest in the assets or property of the Company, or do any act detrimental
to the best interests of the Company, or which would make it impossible to
carry on the ordinary purpose of the Company. Each Member shall be reimbursed
by the Company for all expenses it incurs on behalf of the Company.
ARTICLE III
MANAGEMENT; OFFICERS
3.1 Management Generally. The management, control and operation of
the Company shall be vested exclusively in a Board of Managers (the "Board"),
which shall have the authority to engage third parties to provide necessary
services to the Company and to perform any permissible activity and is further
authorized to delegate such duties and responsibilities to such third parties
as it deems necessary, proper and appropriate. The Members (other than those
which may be part of the Board) shall have no part in the management of the
Company, nor shall any Member have any authority or right to act on behalf of
the Company in connection with any matter. Employees of the Company shall have
authority to act on behalf and in the name of the Company to the extent
authorized by the Board or as expressly authorized by this Agreement.
3.2 Board Composition; Independent Manager. The Board shall be
comprised of six (6) individuals. At all times, at least one of the six (6)
Managers must be an Independent Manager. As used in this Agreement, the term
"Independent Manager" means a manager (a) who is not a current or former
employee, officer, member, creditor or customer of the Company or of any
affiliate of the Company, or current or former director or manager of any
affiliate of the Company, (b) is not a spouse, parent, brother, sister or
child of the Company or any affiliate of the Company and (c) who has not
received, and was not an employee, officer, director, partner, member or
shareholder of any person who has received, from any affiliate of the Company,
in any year within the five (5) years immediately preceding or any year during
such manager's incumbency as an Independent Manager, fees or other income
equal to or in excess of one-tenth of one percent (0.10%) of the gross income
of such person for any applicable year. However, an Independent Manager may
serve or may have served previously in such a capacity for any other special
purpose entity formed by any affiliate of the Company. No resignation or
removal of the Independent Manager shall be effective until a successor
Independent Manager has been elected to replace such Independent Manager in
accordance with the terms hereof.
3.3 Appointment. Each Manager who is not the Independent Manager
shall be appointed by the Members. The Independent Manager shall initially be
BSCS LXXII, Inc. (the "Initial Independent Manager").
3.4 Resignation; Removal. Each Manager shall serve until his or her
death, incapacity, resignation or removal. Each Manager (other than the
Independent Manager) may be removed with or without cause by the Initial
Member. The Independent Manager may be removed with or without cause by
consent of a majority of the Members.
3.5 Successor Managers. In the event of the death, incapacity,
resignation or removal of a Manager (other than the Independent Manager), the
Members shall appoint a successor in a meeting or by written consent. In the
event of the incapacity, resignation or removal of the Initial Independent
Manager, the successor Independent Manager shall be (i) such person as has
been nominated by the preceding Independent Manager prior to his or her death,
incapacity, resignation or removal, which successor must be approved by the
consent of a majority of the Members in writing or (ii) if no such person has
been nominated by the preceding Independent Manager (and approved by the
Members) , the successor Independent Manager shall be nominated and approved
by the consent of a majority of the Members in writing. Any appointment or
consent by a majority of the Members required hereunder shall be obtained
pursuant to procedures agreed upon by the Managers (including any Independent
Manager to the extent such Independent Manager has not yet been removed or
resigned) at such time.
3.6 Chairman. The Managers from time to time shall elect one of their
number to serve as Chairman.
3.7 Manager Compensation. No Manager shall receive compensation for
its services to the Company, provided, however, that the Independent Manager
shall be paid a reasonable fee by the Company not in excess of Four Thousand
Five Hundred Dollars ($4,500.00) per year (or such other reasonable fee to be
agreed upon from time to time between the Company and the Independent
Manager).
3.8 Officers. Subject to the foregoing, the day to day business of
the Company shall be conducted by its officers as provided in this Section 3.8
and Section 3.9. The officers of the Company shall include a President, a
Secretary, a Treasurer and such other officers as may be appointed, from time
to time, by the written consent of the Board. Such officers shall serve at the
pleasure of the Board. Writings by the Board consenting to the appointment of
officers shall be filed in the Minute Book of the Company. Unless the Board
decides otherwise, if the title is one commonly used for officers of a
business corporation formed under the Delaware General Corporation Law, the
assignment of such title shall constitute the delegation to such person of the
authorities and duties that are normally associated with that office. Any
delegation pursuant to this Section 3.8 may be revoked at any time by the
Board.
3.9 Execution of Instruments. All agreements, indentures, mortgages,
deeds, conveyances, transfers, contracts, checks, notes, drafts, lease
documents, loan documents, letters of credit, master agreements, swap
agreements, letters of credit, surety bonds, option contracts, guarantees of
signatures, certificates, declarations, receipts, discharges, releases,
satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds,
undertakings, proxies and other instruments or documents (including, without
limitation, any registration statement filed with the Securities and Exchange
Commission in respect of any Securities, any trust agreement and all
agreements or other documents executed in connection with the creation of one
or more Trusts, the issuance of the Securities of such Trusts and the
furtherance of the business of the Company set forth in Section 1.3 hereof)
may be signed, executed, acknowledged, verified, attested, delivered or
accepted on behalf of the Company by the Board or by any of the officers of
the Company. The provisions of this Section 3.9 are supplementary to any other
provision of this Agreement.
3.10 Unanimous Consent Provisions. Notwithstanding any other
provision of this Agreement and any provision of law that otherwise so
empowers the Company, the Members, the Board or any person on behalf of the
Company, none of the Company, the Members, the Board of Managers, the Officers
nor any other person on behalf of the Company shall, without the affirmative
vote or written consent of 100% of the Board (including the Independent
Manager), do any of the following:
a. amend Section 1.3 to permit the Company to engage in any
business or activity other than those set forth therein prior to any
such amendment (or to engage in any business or activity other than
those set forth in Section 1.3); or amend Section 3.2 or this Section
3.10;
b. to the fullest extent permitted by law, dissolve or
liquidate, in whole or in part, consolidate or merge with or into any
other entity or convey or transfer the Company's properties and
assets substantially as an entirety to any entity; or
c. institute proceedings to be adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against the Company or to file a petition seeking, or
consent 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 the
Company's property, or make any assignment for the benefit of
creditors, or admit in writing the Company's inability to pay the
Company's debts generally as they become due, or take corporate
action in furtherance of any such action.
3.11 Banking. All funds of the Company shall be deposited in its name
in such bank account or accounts as shall be designated by the Board. All
withdrawals therefrom are to be made upon the authority of such person or
persons as may be authorized by the Board from time to time.
3.12 Books. The Company books shall be maintained at its principal
office and each Member shall have access thereto. The fiscal year of the
Company shall be the calendar year, and the books shall be closed and balanced
at the end of each fiscal year. The Company will furnish annual financial
statements to the Members and prepare tax returns as required, in a timely
manner.
3.13 Exculpation.
(a) None of the Managers, any affiliate of the Managers, any
officers, directors, shareholders, or employees of any affiliate of
the Managers or the Members, officers or employees of the Company
(each, a "Covered Person") shall be liable to any Member or the
Company for any act or failure to act on behalf of the Company,
unless such act or failure to act resulted from the fraud, willful
misconduct, bad faith or gross negligence of the Covered Person. Each
Covered Person may consult with counsel, accountants or other
professionals in respect of Company affairs and shall be fully
protected and justified in any action or inaction which is reasonably
taken in accordance with the advice or opinion of such counsel,
accountants or other professionals. In addition, no Manager shall be
liable for the gross negligence, dishonesty or bad faith of any
officer, employee, or other agent selected by the Board with
reasonable care. Notwithstanding any of the foregoing to the
contrary, the provisions of this Section 3.13 shall not be construed
so as to relieve (or attempt to relieve) any Covered Person of any
liability, to the extent that such liability may not be waived,
modified or limited under applicable law, but shall be construed so
as to effectuate the provisions of this Section 3.13 to the fullest
extent permitted by law.
(b) To the fullest extent permitted by applicable law, the
Company shall indemnify and hold harmless each Covered Person from
and against any and all losses, claims, demands, liabilities,
expenses, judgments, fines, settlements and other amounts arising
from any and all claims, demands, actions, suits or proceedings,
civil, criminal, administrative or investigative, in which the
Covered Person may be involved, or threatened to be involved, as a
party or otherwise, by reason of its management of the affairs of the
Company or which relates to or arises out of the operation of the
Company or its property, business or affairs. A Covered Person shall
not be entitled to indemnification under this Section 3.13(b) with
respect to any claim, issue or matter in which it has engaged in
fraud, willful misconduct, bad faith or gross negligence.
(c) Whenever in this Agreement a Covered Person is permitted
or required to make a decision (i) in its "sole discretion" or
"discretion" or under a grant of similar authority or latitude, such
person shall be entitled to consider any such interests and factors
as it deems relevant in making such decision, including without
limitation, the best interests of the Company and its Members, or
(ii) in its "good faith" or under another express standard, such
Person shall act under such express standard and shall not be subject
to any other or different standard imposed by this Agreement or any
other agreement contemplated herein or other applicable law.
(d) To the extent that, at law or in equity, a Covered
Person has duties (including fiduciary duties) and liabilities
relating thereto to the Company or to any other Member, any Covered
Person acting under this Agreement or otherwise 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.
(e) Unless otherwise expressly provided herein, (i) whenever
a conflict of interest exists or arises between a Manager or any
other Covered Person, on the one hand, and the Company or a Member on
the other hand, or (ii) whenever this Agreement or any other
agreement contemplated herein provides that a Manager shall act in a
manner which is, or provide terms which are, fair and reasonable to
the Company, or any Member, such Manager shall resolve such conflict
of interest or take such action, considering in each case the
relative interest of each party (including its own interest) to such
conflict, agreement, transaction or situation and the benefits and
burdens relating to such interests, any customary or accepted
industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by such Manager,
the resolution, action or terms so made, taken or provided by such
Manager shall not constitute a breach of this Agreement or any other
agreement contemplated herein or of any duty or obligation of such
Manager at law or in equity or otherwise.
ARTICLE IV
TRANSFER AND ASSIGNMENT OF INTERESTS
4.1 Transfer and Assignment of Interests. A Member's interest in the
Company is freely transferable and assignable by the Member, notwithstanding
any provision to the contrary in ss. 18-702 of the Act.
ARTICLE V
DISSOLUTION AND WINDING UP; CONTINUATION
5.1 Conditions of Dissolution. The Company shall dissolve upon the
occurrence of any of the following events:
(a) Upon the entry of a decree of judicial dissolution
pursuant toss.18-802 of the Act;
(b) Upon the occurrence of the withdrawal, resignation,
bankruptcy or dissolution of the last remaining Member; or
(c) Upon a resolution therefor passed with the unanimous
consent of the Board.
5.2 Winding Up. Upon the dissolution of the Company, the Company's
assets shall be disposed of and its affairs wound up by the Board.
5.3 Distribution. Upon liquidation of the Company under Section 5.2,
the assets of the Company shall be distributed in the following order:
(a) To pay or provide for the payment of all Company
liabilities to creditors other than Members and all liquidating
expenses and obligations;
(b) To pay debts owing to the Members other than for capital
and profits;
(c) To pay the remaining funds to the Members in proportion
to their ownership interest.
5.4 Continuation. Upon the occurrence of a statutory event of
termination, the remaining Members have the right to continue the Company by
vote of a majority in interest unless a higher vote is required by state
statute to avoid the corporate characteristic of continuity of interest.
ARTICLE VI
MISCELLANEOUS
6.1 Governing Law. This Agreement shall be governed by the laws of
the state of Delaware (and for the purpose of interpreting this Agreement,
without regard to conflict of laws principles), all rights and remedies being
governed by said laws.
6.2 Amendment. This Agreement may be amended only by a writing signed
by all of the Members from time to time in their sole discretion.
6.3 Separability of Provisions. Each provision of this Agreement
shall be considered separable and if for any reason any provision or
provisions herein are determined to be invalid, unenforceable or illegal under
any existing or future law, such invalidity, unenforceability or illegality
shall not impair the operation of or affect those portions of this Agreement
which are valid, enforceable and legal.
6.4 Entire Agreement. This Agreement constitutes the entire agreement
of the Initial Member with respect to the subject matter hereof.
6.5 Consequence of Violation by Member. Any Member who violates this
agreement shall keep and save harmless the Company property and shall also
indemnify the other then Members from any and all claims, demands and actions
of every kind and nature whatsoever that may arise out of or by reason of such
violation.
IN WITNESS WHEREOF, the undersigned has executed this Agreement
effective as of the date first above written.
NATIONSBANC MONTGOMERY
HOLDINGS CORPORATION
By: /s/ Neil Cotty
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Neil Cotty, President
BSCS LXXII, Inc.
By: /s/ Lori Gebron
---------------------------------
Lori Gebron, Vice President
ACTION BY WRITTEN CONSENT
OF INITIAL MEMBER OF
BOND PRODUCTS DEPOSITOR LLC
dated
May 7, 2003
__________________________
The undersigned, being the Initial Member of Bond Products Depositor
LLC, a Delaware limited liability company, hereby adopts the following
resolution:
RESOLUTION RE APPOINTMENT OF BOARD OF MANAGERS
OF BOND PRODUCTS DEPOSITOR LLC
RESOLVED, that the following persons be, and they hereby are,
appointed as members of the Board of Managers of Bond Products Depositor LLC
(the "LLC"), to serve as Managers of the LLC in accordance with its Limited
Liability Company Agreement:
James R. Stenson, Chairman
George C. Carp
Corey B. Pinkston
Stephen K. Stegemeyer
David James Walker
NATIONSBANC MONTGOMERY
HOLDINGS CORPORATION
Initial Member
By: /s/ Neil Cotty
---------------------------------
Neil Cotty, President
ACTION BY WRITTEN CONSENT
OF BOARD OF MANAGERS OF
BOND PRODUCTS DEPOSITOR LLC
dated
May 7, 2003
________________________
The undersigned, being all of the members of the Board of Managers of
Bond Products Depositor LLC, a Delaware limited liability company (the
"Company"), hereby adopt the following resolution:
RESOLUTION RE APPOINTMENT OF OFFICERS
OF BOND PRODUCTS DEPOSITOR LLC
RESOLVED, that the following persons be, and they hereby are,
appointed to the offices set opposite their names below, to serve as officers
of the Company, in accordance with the Limited Liability Company Agreement of
the Company:
Name Office
- ---- ------
Corey B. Pinkston President and Chief Executive Officer
George C. Carp Executive Vice President and Chief Financial Officer
Stephen K. Stegemeyer Senior Vice President and Chief Accounting Officer
Gary S. Williams Senior Vice President and Tax Officer
David James Walker Treasurer
Marlene Sharland Secretary
Clara S. Blanding Assistant Secretary
IN WITNESS WHEREOF, the undersigned have executed this Action by
Written Consent effective as of the date first above written
/s/ James R. Stenson /s/ George C. Carp
- ---------------------------- -------------------------------
Name: James R. Stenson Name: George C. Carp
/s/ Corey B. Pinkston /s/ Stephen K. Stegemeyer
- ---------------------------- -------------------------------
Name: Corey B. Pinkston Name: Stephen K. Stegemeyer
/s/ David James Walker /s/ Lori Gebron
- ---------------------------- -------------------------------
Name: David James Walker Name: Lori Gebron