SECOND AMENDED AND RESTATED
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LIMITED LIABILITY COMPANY AGREEMENT
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OF
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WODFI LLC
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A Delaware Limited Liability Company
THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
(this "Agreement") is executed as of the 31st day of March, 2000, by the
undersigned, the sole member, to continue the Company (as defined below) under
the laws of the State of Delaware for the purposes and upon the terms and
conditions hereinafter set forth. The Company, the Independent Directors and the
Springing Members (each as defined below) join in the execution of this
Agreement so as to be bound by this Agreement.
World Omni Financial Corp., as the sole member (the "Member"), by
execution of this Agreement, hereby continues the Company (as defined below) to
and in accordance with the Delaware Limited Liability Company Act (6 Del.C.
ss.18-101, et seq.), as amended from time to time, and hereby desires that this
Agreement be, and hereby is, the sole governing document of the Company,
superseding all prior agreements and hereby agrees as follows:
ARTICLE I
DEFINITIONS
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Section 1.1. Definitions. Whenever used in this Agreement the following
terms shall have the meanings respectively assigned to them in this Article I
unless otherwise expressly provided herein or unless the context otherwise
requires:
Act: "Act" shall mean the Delaware Limited Liability Company Act, 6
Del. C.ss.ss. 18-101 et seq., as amended from time to time.
Affiliate: "Affiliate" of another Person shall mean any Person directly
or indirectly controlling, controlled by, or under common control with, such
other person.
Agreed Value: "Agreed Value" shall mean the fair market value of
Contributed Property or services rendered as agreed to by the contributing
Member and the Company, using such reasonable method of valuation as they may
adopt.
Agreement: "Agreement" shall mean this Second Amended and Restated
Limited Liability Company Agreement of the Company as the same may be amended or
restated from time to time in accordance with its terms.
Assignee: "Assignee" shall mean a Person who has acquired a share of
the Company's profits and losses and such rights to receive distributions from
the Company as are assigned to that Person, but who is not a Substitute Member.
Bankrupt Member: "Bankrupt Member" shall mean any member (a) that (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 such Member an order for relief, in any bankruptcy or insolvency
proceedings; (iv) files a petition or answer seeking for the Member any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
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 the Member in any proceeding of the type described in
subclauses (i) through (iv) of this clause (a); or (vi) seeks, consents to, or
acquiesces in the appointment of a trustee, receiver or liquidator of the Member
or of all or any substantial part of the Member's properties; or (b) against
which, a proceeding seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any statute, law
or regulation has been commenced and one hundred twenty (120) days have expired
without dismissal thereof or with respect to which, without the Member's consent
or acquiescence, a trustee, receiver or liquidator of the Member or of all or
any substantial part of the Member's properties has been appointed and ninety
(90) days have expired without the appointment having been vacated or stayed, or
ninety (90) days have expired after the date of expiration of a stay, if the
appointment has not previously been vacated. The foregoing is intended to and
shall supersede and replace the events of bankruptcy described in Sections
18-304(a) and (b) of the Act.
Bankruptcy: "Bankruptcy" means, with respect to any Person, if such
Person (i) makes an assignment for the benefit of creditors, (ii) files a
voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or
has entered against it an order for relief, in any bankruptcy or insolvency
proceedings, (iv) files a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, (v) files an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against it in any proceeding of this nature, (vi) seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator of the Person
or of all or any substantial part of its properties, or (vii) if 120 days after
the commencement of any proceeding against the Person seeking reorganization,
arrangement, composition, readjustment, liquidation or similar relief under any
statute, law or regulation, if the proceeding has not been dismissed, or if
within 90 days after the appointment without such Person's consent or
acquiescence of a trustee, receiver or liquidator of such Person or of all or
any substantial part of its properties, the appointment is not vacated or
stayed, or within 90 days after the expiration of any such stay, the appointment
is not vacated. The foregoing definition of "Bankruptcy" is intended to replace
and shall supersede and replace the definition of "Bankruptcy" set forth in
Section 18-101(1) and 18-304 of the Act.
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Capital Contribution: "Capital Contribution" shall mean the amount in
cash contributed and the Agreed Value of other property contributed by each
Member (or its predecessors in interest) to the capital of the Company for such
Member's Membership Interest.
Cash Flow: "Cash Flow" for any period shall mean operating cash flow,
which shall be defined according to generally accepted accounting principles,
before deduction for depreciation, cost recovery or other noncash expenses of
the Company during that period.
Code: "Code" shall mean the Internal Revenue Code of 1986, as amended.
Company: "Company" shall mean WODFI LLC, the Delaware limited liability
company formed pursuant to the Act and this Agreement.
Contributed Property: "Contributed Property" shall mean each Member's
interest in property or other consideration (excluding services and cash)
contributed to the Company by such Member.
Director: "Director" has the meaning set forth in Section 7.2.
Dispose, Disposing or Disposition: "Dispose," "Disposing" or
"Disposition" shall mean a sale, assignment, transfer, exchange, mortgage,
pledge, grant of a security interest, or other disposition or encumbrance
(including, without limitation, by operation of law), or any act thereof.
Independent Director: "Independent Director" shall mean a Director of
the Company who shall at no time be (i) a director, officer, employee or former
employee of any Affiliate, (ii) a natural person related to any director,
officer, employee or former employee of any Affiliate, (iii) a holder (directly
or indirectly) of any voting securities of any Affiliate, or (iv) a natural
person related to a holder (directly or indirectly) of any voting securities of
any Affiliate. For purposes of this definition only, "Affiliate" shall mean any
entity other than the Company or any similarly organized special purpose finance
subsidiary of an Affiliate (i) which owns beneficially, directly or indirectly,
more than 10% of the aggregate Membership Interests of the Company, (ii) which
is in control of the Company, as currently defined under ss. 230.405 of the
Rules and Regulations of the Securities and Exchange Commission, 17 C.F.R. ss.
230.405, (iii) of which 10% or more of the aggregate Membership Interests is
owned beneficially, directly or indirectly, by any entity described in clause
(i) or (ii) above, or (iv) which is controlled by an entity described in clause
(i) or (ii) above, as currently defined under ss. 230.405 of the rules and
Regulations of the Securities and Exchange Commission, 17 C.F.R. ss. 230.405.
IRS: "IRS" shall mean the Internal Revenue Service.
Managing Member: "Managing Member" shall mean the Member and any
successor Managing Member appointed pursuant to this Agreement, each in its
capacity as a managing member of the Company.
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Member: "Member" shall mean World Omni Financial Corp. in its capacity
as a managing member of the Company and includes any Person admitted as an
additional Member of the Company or a Substitute Member of the Company pursuant
to the provisions of this Agreement, each in its capacity as a member of the
Company
Membership Interest: "Membership Interest" shall mean the limited
liability company interest of a Member in the Company, including, without
limitation, rights in the capital of the Company, rights to receive
distributions (liquidating or otherwise) and allocations of profits and losses.
The Member's Membership Interest shall be expressed as a percentage which shall
equal the ratio that the value of the Capital Contributions made by such Member
bears to the Capital Contributions of all members. The initial Member's initial
Membership Interest shall be one hundred percent (100%).
Person: "Person" shall have the meaning given that term in Section
18-101(12) of the Act.
Rating Agency: "Rating Agency" shall mean any nationally recognized
statistical rating origination that has been requested to rate a Securitized
Financing.
Securities: "Securities" shall include Trust Securities, Subordinated
Interests, and Supplemental Certificate Facility.
Securitized Financing: "Securitized Financing" shall mean any
transaction in which Securities are issued and counsel to the Company or to any
maker has issued an opinion that the Company will not be substantively
consolidated with the Member in the event of bankruptcy of the Member.
Springing Member: "Springing Member means, upon such person's admission
to the Company as a member of the Company pursuant to Section 8.2, a Person
acting as Springing Member, in such Person's capacity as a member of the
Company. A Springing Member shall only have the rights and duties expressly set
forth in this Agreement.
Substitute Member: "Substitute Member" shall mean any Person to whom
the Membership Interest in the Company has been transferred and who was not the
Member immediately prior to such transfer and who has been admitted to the
Company as the Member pursuant to and in accordance with the provisions of
Article IV of this Agreement.
ARTICLE II
ORGANIZATION
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Section 2.1. Formation. The Member hereby executes this Agreement for
the purpose of setting forth the rights and obligations of the Member, the
Springing Member and the Independent Directors.
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Section 2.2. Name. The name of the limited liability company continued
hereby is WODFI LLC.
Section 2.3. Certificate of Formation; Foreign Qualification. Jon A.
Brilliant, as an authorized person, within the meaning of the Act, caused the
execution, delivery and filing of, the Certificate of Formation of the Company
in the office of the Secretary of State of the State of Delaware, in accordance
with the Act on July 7, 1999. Immediately following such filing, the Managing
Member is hereby designated as an authorized person, with the meaning of the
Act, to execute, deliver and file, or to cause the execution, delivery and
filing of, all certificates (and any amendments and/or restatements thereof)
required or permitted by the Act to be filed in the office of the Secretary of
State of the State of Delaware. Prior to the Company's conducting business in
any jurisdiction other than the State of Delaware, the Managing Member of the
Company shall cause the Company to comply, to the extent procedures are
available and those matters are reasonably within the control of the Managing
Member, with all requirements necessary to qualify the Company as a foreign
limited liability company in that jurisdiction. At the request of the Managing
Member of the Company, each Member shall execute, acknowledge, swear to, and
deliver all certificates and other instruments conforming with this Agreement
that are necessary or appropriate to qualify, continue and terminate the
qualification of the Company as a foreign limited liability company in all such
jurisdictions in which the Company may conduct business.
Section 2.4. No State Law Partnership; Liability to Third Parties;
Federal Taxation. The Member intends that the Company not be a partnership
(including, without limitation, a limited partnership) or joint venture, and
that no Member be a partner or joint venturer of any other Member, for any
purpose including federal and state tax purposes, and that this Agreement not be
construed to suggest otherwise. The Member, on behalf of the Company, will elect
for the Company to be a nonentity for federal tax purposes. Except as otherwise
specifically provided in the Act, no Member shall be liable for the debts,
obligations or liabilities of the Company or any other Member, including under a
judgment, decree or order of a court.
ARTICLE III
PURPOSES AND POWERS, PRINCIPAL OFFICE, REGISTERED
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AGENT, REGISTERED OFFICE, PERIOD OF DURATION AND MEMBER LIST
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Section 3.1. Purposes and Powers. The Company has been formed solely
for the purpose of engaging in only the following activities:
(a) to acquire, own and hold, and to sell, transfer or pledge
to the trusts described below, or otherwise dispose of, interests in
loans made by World Omni Financial Corp., a Florida corporation
("WOFCO"), or any subsidiary of WOFCO, under master wholesale notes
issued by dealers to WOFCO (or other extensions of credit by WOFCO to
dealers) to finance new and used automobiles and light duty trucks
("Receivables"), and any related contracts, collateral or agreements
("Related Property");
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(b) to act as settlor or depositor of a trust (the "Trust")
formed under a trust agreement, pooling and servicing agreement or
other agreement to hold Receivables and Related Property;
(c) to acquire trust certificates, notes or other securities
issued by the Trust ("Trust Securities"), to enter into any other
agreement providing for the authorization, issuance, sale and delivery
of such Trust Securities and to take any other actions necessary to
effectuate a public offering, private placement or other distribution
of Trust Securities;
(d) to enter into subscription or other agreements in the
nature of a revolving loan agreement with one or more financial
institutions to whom the Company may sell Securities representing
fluctuating interests in the assets of the Trust described above;
(e) to enter into and perform the Trust Agreement of the
Trust, dated as of November 22, 1999, between the Company, as
transferor, and Chase Manhattan Bank Delaware, as owner trustee, as
amended from time to time and the Receivables Purchase Agreement, dated
as of November 22, 1999, between WOFCO and the Company, as amended from
time to time, the Trust Sale and Servicing Agreement, dated as of
November 22, 1999, among WOFCO, the Company and the Trust, as amended
from time to time, the Series 2000-1 Floating Rate Automobile Dealer
Floorplan Asset Backed Notes, Class A Underwriting Agreement, dated as
of March 22, 2000, and the Series 2000-1 Floating Rate Automoblie
Dealer Floorplan Asset Backed Notes, Class B Underwriting Agreement,
dated as of March 29, 2000.
(f) to hold, pledge, transfer or otherwise deal with and to
enjoy all of the rights and privileges of any Securities, including
Securities representing subordinated or residual interests in
Receivables ("Subordinated Interests");
(g) to loan or otherwise invest proceeds from Receivables,
funds received in respect of the Supplemental Certificate Facility,
Securities or Subordinated Interests and any other income, as
determined by the Company's Board of Directors;
(h) to issue its own securities backed by Receivables or Trust
Securities ("Direct Securities"), and to enter into any other agreement
providing for the authorization, issuance, sale and delivery of such
Direct Securities;
(i) to borrow money to facilitate any activity authorized
herein including, without limitation, obtaining loans from WOFCO to
enable the Company to acquire Receivables and Related Property ("Master
Loans");
(j) for so long as any outstanding Securities are rated by any
Rating Agency, the Company shall not issue notes or otherwise borrow
money (including the Master Loans) or otherwise engage in any of the
activities listed in items (d), (e), (f), (g), (h) and (i) above,
unless (i) such Securities, notes or borrowings are rated by the Rating
Agency the same as or higher than the rating afforded such rated
Securities, or (ii) such Securities, notes or borrowings (A) are fully
subordinated (and shall provide for payment only after payment in
respect of all outstanding rated Securities) or are nonrecourse against
any assets of the Company other than the assets pledged to secure such
Securities, notes or borrowings, (B) do not constitute a claim against
the Company in the event such assets are insufficient to pay such
Securities, notes or borrowings, and (C) where either such Securities,
notes or borrowings are secured by Subordinated Interests, are fully
subordinated (and which shall provide for payment only after payment in
respect of all outstanding rated Securities) to such Subordinated
Interests or each Rating Agency has confirmed that the issuance of such
Securities, notes or borrowings will not result in the downgrade of any
rated Securities; and
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(k) to engage in any lawful act or activity and to exercise
any powers permitted to limited liability companies organized under the
Act that are incidental to and necessary or convenient for the
accomplishment of the foregoing purposes.
The Company is not otherwise authorized to engage in any
activity except the foregoing.
Section 3.2. Principal Office. The initial principal office of the
Company is located at 120 N.W. 12th Avenue, Deerfield Beach, Florida 33442. The
principal office of the Company may be relocated from time to time by
determination of the Managing Member.
Section 3.3. Registered Office;Registered Agent. The Registered Office
of the Company shall be located at: c/o Corporation Service Company, 1013 Centre
Road, Wilmington, New Castle County, Delaware 19805 and the registered agent for
service of process on the Company in the State of Delaware shall be Corporation
Service Company located at such address.
Section 3.4. Period of Duration. The term of the Company shall continue
in perpetuity, unless the Company is earlier dissolved pursuant to law or the
provisions of this Agreement.
ARTICLE IV
MEMBERSHIP AND DISPOSITIONS OF INTERESTS
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Section 4.1. Members. The name and the mailing address of the initial
Member are as follows:
Name Address
World Omni Financial Corp. 120 NW 12th Avenue
Deerfield Beach, FL 33442
Attn: Corporate Treasurer
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Section 4.2. Elimination of Preemptive Rights. No Member shall be
entitled as such, as a matter of right, to subscribe for or purchase interests
in the Company of any class, now or hereafter authorized.
Section 4.3. Resignation. Except as otherwise provided in this
Agreement, a Member does not have the right or power to resign from the Company
as a Member.
Section 4.4. Restriction on the Disposition of the Membership Interest.
(a) Subject to compliance with all applicable provisions of
this Section 4.4, any Member may Dispose of all or any part of its Membership
Interest. The Person to whom such Disposition is made shall be an Assignee of
such interest but shall not be a Substitute Member unless admitted as a
Substitute Member in accordance with Section 4.4(b). For purposes of the second
sentence of this Section 4.4(c), the term Disposition does not include the
mortgage, pledge or grant of a security interest in, all or any part of the
Member's Membership Interest.
(b) The Person to whom a Disposition is made as described in
Section 4.4(a) shall have the right to become a Substitute Member only if (i)
the Member making such Disposition grants the transferee the right to be a
Substitute Member (which grant (subject to the following clause (ii)) is hereby
permitted) and (ii) such admission as a Substitute Member is consented to by all
of the Members and, until all Securitized Financings are paid and satisfied in
full, all members of the Board of Directors (as hereinafter defined), which
consent may not be unreasonably withheld.
(c) The Company shall not recognize for any purpose any
purported Disposition of all or part of the Member's Membership Interest or any
right or interest appertaining thereto unless and until the Company has received
a document (i) executed by both the Member effecting the Disposition and the
Person acquiring such Membership Interest or part thereof, (ii) including the
notice address of any Person to be admitted to the Company as a Substitute
Member and such Person's agreement to be bound by this Agreement in respect of
the Membership Interest or part thereof being obtained, (iii) setting forth the
Membership Interest of the parties to the Disposition after the Disposition, and
(iv) containing a warranty and representation that the Disposition was made in
accordance with this Agreement and all applicable laws and regulations. Each
Disposition and, if applicable, admission complying with the provisions of this
Section 4.4 is effective as of the date of the document described in this
Section 4.4(c), but only if the other requirements of this Section 4.4 have been
met.
Section 4.6. Bankrupt Member. A Member shall not cease to be a Member
or terminate the Member's Membership Interest in the Company as a result of
becoming a Bankrupt Member and, upon the occurrence of such event, the Company
shall continue without dissolution. In the event of a Bankruptcy of the Member,
the Member hereby agrees to waive any right to reject this Agreement under the
federal bankruptcy laws.
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Section 4.7. Dissolution. Upon the occurrence of any event that causes
the Member or 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.
ARTICLE V
CAPITAL CONTRIBUTIONS
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Section 5.1. Admission and Initial Capital Contributions. The Member
has been admitted as the initial Member of the Company. The Member has
contributed $1000.00, in cash, and no other property, to the Company and may
contribute in the future any additional capital deemed necessary by the Managing
Member, in its sole discretion, for the operation of the Company. In accordance
with Section 4.4 hereof, no other Person shall be admitted as an additional
member of the Company without the approval of the Member and the unanimous
approvals of all members of the Board of Directors, including, without
limitation, the affirmative vote of the Independent Directors.
Section 5.2. Additional Capital; Adjustment of Membership Interests.
Except as specifically set forth elsewhere in this Agreement, no Member shall be
required to contribute capital to the Company in excess of such Member's initial
Capital Contribution. The Membership Interests of the Members shall be adjusted
to reflect (i) additional capital contributed to the Company by one or more
Members, (ii) the transfer of Membership Interests, or (iii) the withdrawal of a
Member. As of the time of an event specified in the immediately preceding
sentence, the Membership Interest of the Members may be adjusted by the Managing
Member, in its discretion, to reflect the relative Capital Accounts of the
Members after giving effect to any additional capital contributed to, or amounts
distributed by, the Company, as the case may be, and any appreciation or
depreciation in the fair market value of the Company's property.
Section 5.3. Return of Contributions. A Member is not entitled to
demand the return of any part of its Capital Contribution or to payment of
interest in respect of either its Capital Account or its Capital Contribution.
Except as otherwise expressly set forth in this Agreement, neither the Company
nor any Member has any obligation to return the Capital Contribution of a
Member.
ARTICLE VI
ACCOUNTING AND DISTRIBUTION
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Section 6.1. Books; Fiscal Year; Accounting Terms.
(a) The books of the Company shall be kept on the accrual
basis and in accordance with generally accepted accounting principles
consistently applied.
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(b) The fiscal year of the Company for financial and tax
reporting purposes shall end on December 31 of each year.
Section 6.2. Distributions of Cash Flow. From time to time, the
Managing Member shall determine to what extent (if any) there exists sufficient
Cash Flow, after taking into account such working capital, capital expenditures
and debt service reserves as it deems necessary, to permit a distribution of
Cash Flow to the Members. Any such distribution shall be made to the Members
proportionately in accordance with their Membership Interests and shall be
subject to Section 18-607 of the Act and other applicable law.
ARTICLE VII
MANAGEMENT, LIABILITY OF MEMBERS,
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RIGHTS TO OBTAIN INFORMATION
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Section 7.1. Managing Member. Except as otherwise specifically provided
in this Agreement, the Managing Member shall have the authority to, and shall,
conduct the affairs of the Company.
Section 7.2. Board of Directors. (a) The Company shall have a Board of
Managers which shall be designated as the Company's "Board of Directors" and
each member of the Board of Directors shall be designated as a "Director." All
Company powers shall be by or under the authority of, and the business and
affairs of the Company managed under the direction of, its Board of Directors.
The Board of Directors shall also have such other authority set forth in this
Agreement. The Directors are not "managers" within the meaning of the Act. The
Board of Directors in place prior to the execution of this Agreement shall
continue as the Board of Directors of the Company. Members of the Board of
Directors may be appointed and removed from time to time by the Managing Member,
in its sole discretion except as provided in Section 7.2(b). The Board of
Directors shall hold meetings, at such times and places to be agreed upon by a
majority of the Board of Directors.
(b) As long as any Securitized Financing is outstanding, the
Member shall cause the Company at all times to have at least two Independent
Directors who will be appointed by the Member. To the fullest extent permitted
by law, including Section 18-1101(c) of the Act, the Independent Directors shall
consider only the interests of the Company, including its respective creditors,
in acting or otherwise voting on any action set forth in Section 7.3(b). No
resignation or removal of an Independent Director, and no appointment of a
successor Independent Director, shall be effective until such successor shall
have accepted his or her appointment as an Independent Director by executing a
counterpart to this Agreement. In the event of a vacancy in the position of an
Independent Director, the Member shall, as soon as practicable, appoint a
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successor Independent Director to replace the Independent Director ceasing to be
an Independent Director. All right, power and authority of the Independent
Directors shall be limited to the extent necessary to exercise those rights and
perform those duties specifically set forth in this Agreement. Except as
provided in the second sentence of this subsection, in exercising his or her
rights and performing his or her duties under this Agreement, each Independent
Director shall have a fiduciary duty of loyalty and care similar to that of a
director of a business corporation organized under the General Corporation Law
of the State of Delaware, as amended.
Section 7.3. Action by Directors. (a) Except as set forth in Subsection
(b) of this Section, any action required by this Agreement to be taken by the
Directors shall require the agreement of not less than a majority of the
Directors.
(b) Until all Securitized Financings are paid and satisfied in
full, the Company may take the following actions only with the affirmative vote
of the Member and the unanimous affirmative vote of all members of the Board of
Directors, including, without limitation, the affirmative vote of each of the
Independent Directors, provided, however, that the Board of Directors may not
vote on, or authorize the taking of any of the following actions, unless there
are two Independent Directors then serving in such capacity:
(i) make an assignment for the benefit of creditors;
(ii) file a voluntary petition in bankruptcy;
(iii) file a petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation;
(iv) file an answer or other pleading admitting or
failing to contest the material allegations of a petition filed
against the Company in any proceeding of the type described in
subclauses (i) through (iii) of this Subsection (b);
(v) seek, consent to, or acquiesce in the appointment
of a trustee, receiver or liquidator of the Company or of all or any
substantial part of the Company's properties;
(vi) voluntarily dissolve and wind up, or consolidate
or merge with or into another entity or sell all or substantially
all of the assets of the Company; and
(vii) engage in any business activity not set forth
in Section 3.1 of this Agreement;
(c) Until all Securitized Financings are paid and satisfied in
full, the Company may not amend, alter or repeal the definition of Independent
Director, Section 7.2, subsections (b), (c) or (d) of this Section 7.3 or
Section 11.1 without the approval of the Member and the majority vote of the
full Board of Directors, including, without limitation, the affirmative votes of
the Independent Directors and such additional approvals, if any, as may be
required under each Securitized Financing with regard to amendment of documents
or instruments with respect thereto.
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Except as may be specifically required by applicable law, no
member of the Board of Directors shall be guilty of breaching any fiduciary duty
to any Member by refusing to consent to any of the listed actions in subsections
(b) or (c) of this Section 7.3.
(d) In the event of the insolvency of the Company and with
regard to any action contemplated by subsection (b) or (c) above, no Independent
Director will owe a fiduciary duty to any Person who holds a Membership Interest
(except as may be specifically required by applicable law), but any fiduciary
duty of such Independent Director with regard to such action shall be owed
instead to the creditors of the Company. No Independent Director shall serve as
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company, any Affiliate of the Company, any Affiliate of the
Company, or a substantial part of its respective property.
Section 7.4. Officers. (a) The Company shall also have an officer
designated as the Company's president (the "President") who shall be appointed
from time to time by the Managing Member. The President shall be the chief
operating officer of the Company. The President of the Company is hereby
delegated the power, authority and responsibility of the day-to-day management,
administrative, financial and implementive acts of the Company's business. The
President of the Company shall have the right and power to bind the Company and
to make the final determination on questions relative to the usual and customary
daily business decisions, affairs and acts of the Company. Other primary
management functions of the Company shall be assigned by the Managing Member.
(b) The Company shall also have officers designated as vice
presidents (the "Vice Presidents") who shall be appointed from time to time by
the Managing Member. The Vice Presidents shall have such powers and duties as
may from time to time be assigned to them by the Managing Member or the
President. At the request of the President, or in the case of his absence or
disability, the Vice President designated by the President (or in the absence of
such designation, the Vice President designated by the Managing Member) shall
perform all the duties of the President and when so acting, shall have all the
powers of the President.
(c) The Managing Member may appoint such other officers as it
may deem advisable from time to time. Each officer of the Company shall hold
office at the pleasure of the Managing Member, and the Managing Member may
remove any officer at any time, with or without cause. If appointed by the
Managing Member, the officers shall have the duties assigned to them by the
Managing Member.
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Section 7.5. Indemnification.
(a) General. Except as otherwise provided in this Section 7.5
and to the fullest extent permitted by applicable law, the Company shall
indemnify the Member and any Director or officer and may indemnify any employee
or agent of the Company who was or is a party or is threatened to be made a
party to a threatened, pending, or completed action, suit, or proceeding
(whether civil, criminal, administrative, or investigative and whether formal or
informal) other than an action by or in the right of the Company, where such
Person is a party because such Person is or was a Member, Director, officer,
employee, or agent of the Company. Except as otherwise provided in this Section
7.5 and to the fullest extent permitted by applicable law, the Company shall
indemnify its Member and Directors against expenses, including, attorney fees,
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by a Director in connection with an action, suit or
proceeding relating to acts or omissions of that Director regarding the items
set forth in Section 7.3(b) of this Agreement.
(b) Permissive Indemnification. Except as otherwise provided
in this Section 7.5 and to the fullest extent permitted by applicable law, the
Company shall indemnify such Member, Director or officer and may indemnify such
employee or agent against expenses, including attorneys fees, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with the action, suit or proceeding. To the fullest
extent permitted by law, the Company shall indemnify such Member, Director or
officer and may indemnify such employee or agent if the Person acted in good
faith and did not engage in willful misconduct or gross negligence. With respect
to a criminal action or proceeding, the Person must have had no reasonable cause
to believe such Person's misconduct was unlawful. Unless ordered by a court, any
indemnification permitted under this Section 7.5(b) shall be made by the Company
only as the Company authorizes in the specific case after (i) determining that
the indemnification is proper under the circumstances because the person to be
indemnified has met the applicable standard of conduct and (ii) evaluating the
reasonableness of the expenses and of the amounts paid in settlement. This
determination and evaluation shall be made by a majority vote of the Members who
are not parties or threatened to be made parties to the action, suit or
proceeding or, if there is only one Member, by that Member. However, no
indemnification shall be provided to any Member, Director, officer, employee, or
agent of the Company for or in connection with (i) the receipt of a financial
benefit to which the person is not entitled; (ii) voting for or assenting to a
distribution to Members in violation of this Agreement or the Act; (iii) a
knowing violation of law; or (iv) acts or omissions of such Person constituting
willful misconduct or gross negligence.
(c) Mandatory Indemnification. To the extent that a Member,
Director, officer, employee, or agent of the Company has been successful on the
merits or otherwise in defense of an action, suit, or proceeding described in
Section 7.5(a) or in defense of any claim, issue, or other matter in such
action, suit or proceeding, such person shall be indemnified against actual and
reasonable expenses, including reasonable attorney fees, incurred by such person
in connection with the action, suit, proceeding and any action, suit or
proceeding brought to enforce such mandatory indemnification.
(d) The Trust will not have any obligation to make payments
under this Section 7.5 until one year and one day after all outstanding rated
securities issued by the Trust have been paid in full.
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Section 7.6. Exculpation; Duties.
(a) No Member, Director or officer of the Company shall be
liable to the Company or any other Person who has an interest in the Company for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Member, Director or officer 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 Member, Director or officer by this Agreement,
except that a Member, Director or officer shall be liable for any such loss,
damage or claim incurred by reason of such Member's, Director's or officer's
willful misconduct or gross negligence.
(b) To the extent that at law or in equity, the Managing
Member or a Director, officer, employee or agent of the Company (each, an
"Indemnified Person") has duties (including fiduciary duties) and liabilities
relating thereto to the Company or to any Member, any such Indemnified 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 an Indemnified Person otherwise existing at law or in equity, are agreed by
the Members to replace such other duties and liabilities of such Indemnified
Person.
(c) Whenever in this Agreement the Managing Member is
permitted or required to make a decision (i) in its "sole discretion", or
"discretion" or under a grant of similar authority or latitude, the Managing
Member shall be entitled to consider only such interests and factors as it
desires, including its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting the Company or
any other Member, or (ii) in its "good faith" or under another expressed
standard, the Managing Member shall act under such express standard and shall
not be subject to any other or different standards imposed by this Agreement or
any other agreement contemplated herein or by relevant provisions of law or in
equity or otherwise.
ARTICLE VIII
DISSOLUTION, LIQUIDATION AND TERMINATION OF THE COMPANY
-------------------------------------------------------
Section 8.1. Dissolution. The Company shall be dissolved and its
affairs wound up only upon (i) the written consent of all the Members and, so
long as any Securitized Financing is outstanding, all members of the Board of
Directors, including, without limitation, the Independent Directors or (ii) the
entry of a decree of judicial dissolution under Section 18-802 of the Act. The
Company shall not be dissolved as a result of there no longer being any Members
of the Company if the Company is continued in accordance with Section 4.7 of
this Agreement and Section 18-801(a)(4) of the Act. Notwithstanding anything in
this Agreement to the contrary, the Company shall not be dissolved as long as
any Securitized Financing is outstanding.
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Section 8.2. Upon the occurrence of any event that causes the Member
to cease to be a member of the Company (other than upon an assignment by the
Member of all of its limited liability company interest in the Company and the
admission of the transferee pursuant to Section 4.4), World Omni Receivables,
Inc. 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 Springing Member and shall continue the Company without dissolution. Each
Springing Member shall be a Member of the Company, but have no interest in the
profits, losses and capital of the Company, and has no right to receive any
distributions of Company assets. Pursuant to Section 18-301 of the Act, a
Springing 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. Except as required by any mandatory provision of the Act, each
Springing Member, in its capacity as Springing 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. A Springing Member, in its capacity as Springing
Member, may not bind the Company. No Springing Member may resign from the
Company or transfer its rights as Springing Member unless a successor Springing
Member has been admitted to the Company as Springing Member by executing a
counterpart to this Agreement; provided, however, the Springing Member shall
automatically cease to be members of the Company upon the admission to the
Company of a substitute Member. In order to implement the admission to the
Company of the Springing Member, the Springing Member shall execute a
counterpart to this Agreement. Prior to its admission to the Company as
Springing Member, the Springing Member shall not be a member of the Company. In
the event that the Springing Member dissolves or otherwise ceases to be able to
act as Springing Member, the Member shall appoint a substitute Springing Member
and such substitute Springing Member shall execute a counterpart to this
Agreement.
Section 8.3. Liquidation and Termination. On dissolution of the
Company, the Managing Member shall appoint one or more Persons, which appointee
or appointees may include itself, to act as a liquidator. The liquidator shall
proceed diligently to wind up the affairs of the Company and make final
distributions as provided herein and in the Act. The costs of liquidation shall
be borne as a Company expense; provided, however, that the Trust will not have
any obligation to make payments under this Section 8.2 until one year and one
day after all outstanding rated Securities issued by the Trust have been paid in
full. Until final distribution, the liquidator shall continue to operate the
Company properties with all of the power and authority of the Managing Member. A
reasonable time shall be allowed for the orderly liquidation of the assets of
the Company and the discharge of liabilities to creditors so as to enable the
liquidator to minimize any losses resulting from liquidation. The liquidator, as
promptly as possible after dissolution and again after final liquidation, shall
cause a proper accounting to be made by a nationally recognized firm of
certified public accountants of the Company's assets, liabilities, and
operations through the last day of the calendar month in which the dissolution
occurs or the final liquidation is completed, as applicable, and shall apply the
proceeds of liquidation as set forth in the remaining sections of this Article
VIII.
Section 8.4. Payment of Debts. The assets shall first be applied to
the satisfaction of the liabilities of the Company (including any loans or
advances that may have been made by Members to the Company and the expenses of
liquidation); provided, however, that the Trust will not have any obligation to
make payments under this Section 8.3 until one year and one day after all
outstanding rated Securities issued by the Trust have been paid in full.
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Section 8.5. Remaining Distribution. The remaining assets shall then
be distributed to the Member in accordance with the Member's positive capital
account balances.
Section 8.6. Reserve. Notwithstanding anything to the contrary in
Section 8.4, the liquidator may retain such amount as it deems necessary as a
reserve for any contingent, conditional or unmatured liabilities or obligations
of the Company, which reserve, after the passage of a reasonable period of time
as determined by the liquidator, shall be distributed in accordance with this
Article VIII.
Section 8.7. Final Accounting. Each of the Members shall be furnished
with a statement prepared by the Company's certified public accountants, which
shall set forth the assets and liabilities of the Company as of the date of the
complete liquidation. Upon compliance by the liquidator with the foregoing
distribution plan, the liquidator shall execute and cause to be filed a
Certificate of Cancellation and any and all other documents necessary with
respect to termination and cancellation of the Company under the Act. The
existence of the Company as a separate legal entity shall continue until the
cancellation of its Certificate of Formation.
ARTICLE IX
AMENDMENTS
----------
Section 9.1. Authority to Amend. Subject to Section 7.3, this
Agreement may only be amended with approval of the Managing Member and the
majority vote of the members of the full Board of Directors and such additional
approvals, if any, as may be required under each Securitized Financing with
regard to amendment of documents or instruments with respect thereto. The
Managing Member shall provide prior written notice of any proposed amendment to
each nationally recognized statistical rating agency then rating any class of
security issued in any Securitized Financing.
ARTICLE X
POWER OF ATTORNEY
-----------------
Section 10.1. Power. Each member irrevocably constitutes and appoints
the Managing Member as his true and lawful attorney in his name, place and stead
to make, execute, swear to, acknowledge, deliver and file:
(a) Any certificates or other instruments which may be
required to be filed by the Company under the laws of the State of Delaware or
of any other state or jurisdiction in which the Managing Member shall deem it
advisable;
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(b) Any documents, certificates or other instruments,
including but not limited to, any and all amendments and modifications of this
Agreement or of the instruments described in Subsection 10.1(a) which may be
required or deemed desirable by the Managing Member to effectuate the provisions
of any part of this Agreement, and, by way of extension and not in limitation,
to do all such other things as shall be necessary to continue and to carry on
the business of the Company; and
(c) All documents, certificates or other instruments which may
be required to effectuate the dissolution and termination of the Company, to the
extent such dissolution and termination is authorized hereby. The power of
attorney granted hereby shall not constitute a waiver of, or be used to avoid,
the rights of the Members to approve certain amendments to this Agreement
pursuant to Subsection 9.1 or be used in any other manner inconsistent with the
status of the Company as a limited liability company or inconsistent with the
provisions of this Agreement.
Section 10.2. Survival of Power. It is expressly intended by each
Member that the foregoing power of attorney is coupled with an interest, is
irrevocable and shall survive the death, retirement or adjudication of
incompetency of such Member. The foregoing power of attorney shall survive the
delivery of an assignment by the Member of its entire interest in the Company,
except that where an assignee of such entire interest has become a Substitute
Member, then the foregoing power of attorney of the assignor Member shall
survive the delivery of such assignment for the sole purpose of enabling the
Managing Member to execute, acknowledge and file any and all instruments
necessary to effectuate such substitution.
ARTICLE XI
SEPARATE LEGAL ENTITY
---------------------
Section 11.1. Separate Legal Entity. The Company shall not commingle
any of its funds or other assets with the funds or assets of any other entity or
person. The Company shall maintain its financial and accounting books and
records separate from those of any other entity or person. The Company shall pay
from its assets all obligations and indebtedness of any kind incurred by the
Company, and shall not pay from its assets any obligations or indebtedness of
any other entity or person, other than expenses, obligations or indebtedness of
any New Trust or any trustee of any of the foregoing with respect thereto.
ARTICLE XII
MISCELLANEOUS
-------------
Section 12.1. Method of Giving Consent. Any consent of the Member
required by this Agreement may be given by a written consent, given by the
consenting Member and received by the Person soliciting such consent. Any
consent of a member of the Board of Director's required by this Agreement may be
given by a written consent given by the consenting member of the Board of
Directors and received by the Person soliciting such consent.
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Section 12.2. Governing Law. This Agreement and the rights and duties
of the Members shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to principles of conflict of laws.
Section 12.3. Agreement for Further Execution. At any time or times
upon the request of the Managing Member, each Member agrees to sign and swear to
any certificate, any amendment to or cancellation of such certificate,
acknowledge similar certificates or affidavits or certificates of fictitious
firm name or the like (and any amendments or cancellations thereof) required by
the laws of the State of Delaware, or any other jurisdiction in which the
Company does, or proposes to do, business. This Section 12.3 shall not prejudice
or affect the rights of the Members to approve amendments to this Agreement
pursuant to Section 9.1.
Section 12.4. Entire Agreement. This Agreement contains the entire
understanding between the parties and supersedes any prior understandings or
agreements between them respecting the within subject matter. There are no
representations, agreements, arrangements or understandings, oral or written,
between the parties hereto relating to the subject matter of this Agreement
which are not fully expressed.
Section 12.5. Severability. This Agreement is intended to be performed
in accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations of the jurisdictions in which the Company does
business. If any provision of this Agreement or the application thereof to any
Person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected thereby, but
rather shall be enforced to the greatest extent permitted by law.
Section 12.6. Notices. Notices to Members or to the Company shall be
deemed to have been given when personally delivered or mailed, by prepaid
registered or certified mail, addressed as set forth in this Agreement, unless a
notice of change of address has previously been given in writing by the
addressee to the addressor, in which case such notice shall be addressed to the
address set forth in such notice of change of address.
Section 12.7. Counterparts. This Agreement may be executed in multiple
counterparts, each one of which shall constitute an original executed copy of
this Agreement.
Section 12.8. Pronouns. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the person or persons may require.
Section 12.9. Titles and Captions. All titles and 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.
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IN WITNESS WHEREOF, the parties have hereunto set their hands as of
the day and year first above written.
WORLD OMNI FINANCIAL CORP.
By:
-----------------------------------
Name: Patrick C. Ossenbeck
Title: Assistant Treasurer
WODFI LLC
By : World Omni Financial Corp.,
its sole member
By:
----------------------------------
Name: Patrick C. Ossenbeck
Title: Assistant Treasurer
INDEPENDENT DIRECTOR
By:
----------------------------------
Jeffrey B. Shapiro
INDEPENDENT DIRECTOR
By:
----------------------------------
Christopher C. Wheeler
SPRINGING MEMBER
WORLD OMNI RECEIVABLES, INC.
By:
----------------------------------
Brick A. Toifel
President
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