Exhibit 3.1
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
WACHOVIA MORTGAGE LOAN TRUST, LLC
This Amended and Restated Limited Liability Company Agreement (together
with the schedules attached hereto, this "Agreement"), dated as of August 24,
2005, of Wachovia Mortgage Loan Trust, LLC (the "Company"), is entered into by
Wachovia Bank, National Association, as the sole equity member (together with
its successors and assigns in such capacity, the "Member"), and Xxxxxxx
Xxxxxxxx, as the Special Member (as defined on Schedule A hereto). Capitalized
terms used and not otherwise defined herein have the meanings set forth on
Schedule A hereto.
The Member, by execution of the Limited Liability Company Agreement
dated as of June 15, 2005 (the "Initial Agreement") and the filing of the
Certificate of Formation defined on Schedule A for the Company, formed the
Company as a limited liability company pursuant to and in accordance with the
Delaware Limited Liability Company Act, 6 Del. C. ss.18-101 et seq., as
amended from time to time (the "Act"), and the Initial Agreement. The Member and
Xxxxxxx Xxxxxxxx hereby agree to amend and restate the Initial Agreement and
continue the Company without dissolution as follows:
Section 1. Formation; Name.
(a) The Certificate of Formation has been filed with the Secretary of
State of the State of Delaware on June 15, 2005. The parties to this Agreement
hereby ratify the execution and filing of the Certificate of Formation.
(b) The name of the limited liability company is Wachovia Mortgage Loan
Trust, LLC.
Section 2. Principal Business Office.
The principal business office of the Company shall be located at 000 X.
Xxxxxxx Xxxxxx, Xxxxx X, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, or such other
location as may hereafter be determined by the Board.
Section 3. Registered Office.
The address of the registered office of the Company in the State of
Delaware is Wachovia Mortgage Loan Trust, LLC, c/o Corporation Service Company,
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
Section 4. Registered Agent.
The name and address of the registered agent of the Company for service
of process on the Company in the State of Delaware is Corporation Service
Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000.
Section 5. Members.
(a) The mailing address of the Member is set forth on Schedule B attached
hereto. The Member continues as a member of the Company upon its execution of a
counterpart signature page to this Agreement.
(b) Subject to Section 9(j), the Member may act by written consent.
(c) Upon the occurrence of any event that causes the Member to cease to be a
member of the Company (other than upon continuation of the Company without
dissolution upon (i) an assignment by the Member of all of its limited liability
company interest in the Company and the admission of the transferee pursuant to
Sections 21 and 23, or (ii) the resignation of the Member and the admission of a
successor member of the Company pursuant to Sections 22 and 23), each person
acting as an Independent Director pursuant to Section 10 shall, without any
action of any Person and simultaneously with the Member ceasing to be a member
of the Company, automatically be admitted to the Company as a Special Member and
shall continue the Company without dissolution. No Special Member may resign
from the Company or transfer its rights as Special Member unless (i) a successor
Special Member has been admitted to the Company as Special Member by executing a
counterpart to this Agreement, and (ii) such successor has also accepted its
appointment as Independent Director pursuant to Section 10; provided, however,
each Special Member shall automatically cease to be a member of the Company upon
the admission to the Company of a substitute Member; provided, further, that
notice of any successor Special Member shall be given to each Rating Agency.
Each Special Member shall be a member of the Company that has no interest in the
profits, losses and capital of the Company and has no right to receive any
distributions of Company assets. Pursuant to Section 18-301 of the Act, each
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. Each Special Member, in its capacity as Special Member, may not bind
the Company. Except as required by any mandatory provision of the Act, each
Special Member, in its capacity as Special Member, shall have no right to vote
on, approve or otherwise consent to any action by, or matter relating to, the
Company, including, without limitation, the merger, consolidation or conversion
of the Company. In order to implement the admission to the Company of each
Special Member, each person acting as an Independent Director pursuant to
Section 10 shall execute a counterpart to this Agreement. Prior to its admission
to the Company as Special Member, each person acting as an Independent Director
pursuant to Section 10 shall not be a member of the Company.
Section 6. Certificates.
Xxxxx X. Xxxxxxx was an "authorized person" within the meaning of the
Act, and executed, delivered and filed the Certificate of Formation of the
Company with the Secretary of State of the State of Delaware. Upon the filing of
the Certificate of Formation with the Secretary of State of the State of
Delaware, his powers as an "authorized person" ceased, and the Member thereupon
became the designated "authorized person" and shall continue as the designated
"authorized person" within the meaning of the Act. An Officer shall execute,
deliver and file any other certificates (and any amendments and/or restatements
thereof) necessary for the Company to qualify to do business in any other
jurisdiction in which the Company may wish to conduct business.
The existence of the Company as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in the Act.
Section 7. Purposes.
The purpose to be conducted or promoted by the Company is to engage in
the following activities:
(a)
(i) to execute, deliver and perform its rights and
obligations under the terms of one or more mortgage
loan purchase agreements (each such agreement, as from
time to time amended, supplemented or otherwise
modified, a "Mortgage Loan Purchase Agreement"), to
purchase or otherwise acquire mortgage loans
(including, without limitation, first lien mortgage
loans, home equity loans, home improvement contracts
and land sale contracts) unsecured home improvement
loans, manufactured housing installment sales
contracts, installment loan agreements, and other
related assets (the "Purchased Assets") from Wachovia
Bank, National Association or another Person, in
accordance with the Mortgage Loan Purchase Agreements
and the other Basic Documents, to execute, deliver and
perform its obligations under any amendments and or
supplements, including any supplemental conveyances
relating to the Mortgage Loan Purchase Agreements, and
to engage in any activities necessary, appropriate or
convenient in connection with the rights and
obligations of the Company under the Mortgage Loan
Purchase Agreements and in connection with the
acquisition of the Purchased Assets and to authorize,
execute, deliver and perform any other agreement,
notice or document, in connection with, relating to or
contemplated by the Mortgage Loan Purchase Agreements
or the acquisition of the Purchased Assets;
(ii) to purchase, acquire, own, hold, sell, dispose of,
endorse, transfer, assign, pledge and finance the
Purchased Assets including, without limitation, to
grant a security interest in the Purchased Assets;
(iii) to engage in any activities necessary to hold,
receive, exchange, otherwise dispose of and otherwise
deal in and exercise all rights, powers, privileges,
and all other incidents of ownership or possession
with respect to, all of the Company's property,
including without limitation, the Purchased Assets
and any property or interest which may be acquired by
the Company as a result of any distribution in
respect of the Purchased Assets and any property
received by the Company as a contribution from the
Member;
(iv) to execute, deliver and perform all of its rights and
obligations as depositor under the terms of one or
more pooling and servicing agreements by and among
the Company, as depositor, Wachovia Bank, National
Association or another Person, as servicer, Wachovia
Bank, National Association or another Person, as
certificate administrator, and a financial
institution, as trustee (each such financial
institution, a "Trustee") (each such agreement, as
such may be amended, supplemented or otherwise
modified from time to time, a "Pooling and Servicing
Agreement");
(v) to execute, deliver and perform all of its rights and
obligations as depositor under the terms of one or
more sale and servicing agreements by and among the
Company, as depositor, a statutory trust or similar
special purpose entity (each such entity, a "Trust"),
as issuer, Wachovia Bank, National Association or
another Person, as servicer, and a financial
institution, as indenture trustee (each such
financial institution, an "Indenture Trustee") (each
such agreement, as such may be amended, supplemented
or otherwise modified from time to time, a "Sale and
Servicing Agreement");
(vi) to execute, deliver and perform all of its rights and
obligations as depositor under the terms of one or
more trust agreements which relate to a Trust by and
among the Company, as depositor, and a financial
institution, as owner trustee (each such agreement,
as such may be amended, supplemented or otherwise
modified from time to time, a "Trust Agreement") and
under the terms of one or more indentures by and
among a Trust, as issuer, an Indenture Trustee, and a
paying agent (each such agreement, as such may be
amended, supplemented or otherwise modified from time
to time, an "Indenture");
(vii) to execute, deliver and perform all of the rights and
obligations of the depositor under and with respect
to notes, certificates, or other documents or
agreements related to a Trust and obligations issued
by the Trust ("Trust Obligations");
(viii) to execute, deliver and perform all of its rights and
obligations under the terms of one or more
underwriting, purchase or placement agency agreements
by and among the Company and the underwriters,
purchasers or placement agents named therein (each
such entity, an "Underwriter") (each such agreement,
as such may be amended, supplemented or otherwise
modified from time to time, an "Underwriting
Agreement");
(ix) to sell or otherwise transfer all or any of the
Purchased Assets to the Trusts, the Trustees and/or the
Indenture Trustees in connection with a Pooling and
Servicing Agreement, a Sale and Servicing Agreement, a
Trust Agreement or an Indenture, to execute, deliver,
and perform its obligations under any amendments,
supplements or assignments, reassignments or
reconveyances of assets related to a Pooling and
Servicing Agreement, a Sale and Servicing Agreement, a
Trust Agreement or an Indenture, to provide for the
execution and delivery of additional documents related
to the issuance of Trust Obligations and to engage in
any activities necessary, appropriate or convenient in
connection with a Mortgage Loan Purchase Agreement, a
Pooling and Servicing Agreement, a Sale and Servicing
Agreement, a Trust Agreement or an Indenture and the
purchase, acquisition, sale, disposition, endorsement,
transfer, assignment, pledge or financing of the
Purchased Assets, and to authorize, execute, deliver
and perform any other agreement, notice or document in
connection with, relating to or contemplated by a
Mortgage Loan Purchase Agreement, a Pooling and
Servicing Agreement, a Sale and Servicing Agreement, an
Indenture, a Trust Agreement, an Underwriting Agreement
or the Administrative Services and Premises Agreement;
(x) to acquire, hold, enjoy, transfer and grant rights in
all of the rights and privileges of any certificate,
interest, other indicia of beneficial ownership, or
other security issued by a Trust to the Company
pursuant to any Trust Agreement, Mortgage Loan
Purchase Agreement, Pooling and Servicing Agreement,
Sale and Servicing Agreement, Indenture or other
document;
(xi) to enter into and perform its obligations under the
Basic Documents and any other documents, agreements
or instruments contemplated thereby;
(xii) to engage in any lawful act or activity and to
exercise any powers permitted to limited liability
companies organized under the laws of the State of
Delaware that are related or incidental to and
necessary, convenient or advisable for the
accomplishment of the above-mentioned purposes
(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), including the filing of any notices,
applications, financing statements, continuation
statements, amendments to financing statements, and
other documents necessary, advisable or convenient to
comply with any applicable laws, statutes, rules and
regulations;
(xiii) to acquire, own, accept as a capital contribution,
hold, sell, transfer, service, convey, safekeep,
dispose of, pledge, assign, borrow money against,
finance, refinance or otherwise deal with, publicly
or privately issued securities and whether with
unrelated third parties or with affiliated entities
in accordance with the Basic Documents;
(xiv) to take any and all other actions necessary to
maintain the existence of the Company as a limited
liability company in good standing under the laws of
the State of Delaware and/or to qualify the Company
to do business as a foreign limited liability company
in any other state in which such qualification, in
the opinion of the Board, is required.
(b) The Company is hereby authorized to execute, deliver and perform, and any
Director or Officer on behalf of the Company is hereby authorized to execute and
deliver the Basic Documents and all documents, agreements, certificates, or
financing statements contemplated thereby or related thereto, and any amendments
thereto, all without any further act, vote or approval of any Member, Director,
Officer or other Person notwithstanding any other provision of this Agreement.
The foregoing authorization shall not be deemed a restriction on the powers of
any Director or Officer to enter into other agreements on behalf of the Company.
Section 8. Powers.
Subject to Section 9(j), the Company, and the Board of Directors and
the Officers of the Company on behalf of the Company, (i) shall have and
exercise all powers necessary, convenient or incidental to accomplish its
purposes as set forth in Section 7 and (ii) shall have and exercise all of the
powers and rights conferred upon limited liability companies formed pursuant to
the Act.
Section 9. Management.
(a) Board of Directors. Subject to Section 9(j), the business and affairs
of the Company shall be managed by or under the direction of a Board consisting
of one or more Directors designated by the Member. Subject to Section 10, the
Member may determine at any time in its sole and absolute discretion the number
of Directors to constitute the Board. The authorized number of Directors may be
increased or decreased by the Member at any time in its sole and absolute
discretion, upon notice to all Directors, and subject in all cases to Section
10. The number of Directors as of the date hereof shall be three (3), one of
which shall be an Independent Director pursuant to Section 10. Each Director
elected, designated or appointed by the Member shall hold office until a
successor is elected and qualified or until such Director's earlier death,
resignation, expulsion or removal. Each Director shall execute and deliver the
Management Agreement. Directors need not be members. The Directors designated by
the Member as of the date hereof are listed on Schedule D hereto.
(b) Powers. Subject to Section 9(j), the Board of Directors shall have the
power to do any and all acts necessary, convenient or incidental to or for the
furtherance of the purposes described herein, including all powers, statutory or
otherwise. Subject to Sections 7 and 9, the Board of Directors has the authority
to bind the Company.
(c) Meeting of the Board of Directors. The Board of Directors of the
Company may hold meetings, both regular and special, within or outside the State
of Delaware. Regular meetings of the Board may be held without notice at such
time and at such place as shall from time to time be determined by the Board.
Special meetings of the Board may be called by the President on not less than
one day's notice to each Director by telephone, facsimile, mail, telegram or any
other means of communication, and special meetings shall be called by the
President or Secretary in like manner and with like notice upon the written
request of any one or more of the Directors.
(d) Quorum: Acts of the Board. At all meetings of the Board, a majority of
the Directors shall constitute a quorum for the transaction of business and,
except as otherwise provided in any other provision of this Agreement, the act
of a majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board. If a quorum shall not be present at any meeting
of the Board, the Directors present at such meeting may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee, as the case may be.
(e) Electronic Communications. Members of the Board, or any committee
designated by the Board, may participate in meetings of the Board, or any
committee, by means of telephone conference or similar communications equipment
that allows all Persons participating in the meeting to hear each other, and
such participation in a meeting shall constitute presence in person at the
meeting. If all the participants are participating by telephone conference or
similar communications equipment, the meeting shall be deemed to be held at the
principal place of business of the Company.
(f) Committees of Directors.
(i) The Board may, by resolution passed by a majority of
the whole Board, designate one or more committees,
each committee to consist of one or more of the
Directors of the Company. The Board may designate one
or more Directors as alternate members of any
committee, who may replace any absent or disqualified
member at any meeting of the committee.
(ii) In the absence or disqualification of a member of a
committee, the member or members thereof present at
any meeting and not disqualified from voting, whether
or not such members constitute a quorum, may
unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or
disqualified member.
(iii) Any such committee, to the extent provided in the
resolution of the Board, and subject to, in all
cases, Sections 9(j) and 10, shall have and may
exercise all the powers and authority of the Board in
the management of the business and affairs of the
Company. Such committee or committees shall have such
name or names as may be determined from time to time
by resolution adopted by the Board. Each committee
shall keep regular minutes of its meetings and report
the same to the Board when required.
(g) Compensation of Directors; Expenses. The Board shall have the authority
to fix the compensation of Directors. The Directors may be paid their expenses,
if any, of attendance at meetings of the Board, which may be a fixed sum for
attendance at each meeting of the Board or a stated salary as Director. No such
payment shall preclude any Director from serving the Company in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
(h) Removal of Directors. Unless otherwise restricted by law, any Director
or the entire Board of Directors may be removed or expelled, with or without
cause, at any time by the Member, and, subject to Section 10, any vacancy caused
by any such removal or expulsion may be filled by action of the Member.
(i) Directors as Agents. To the extent of their powers set forth in this
Agreement and subject to Section 9(j), the Directors are agents of the Company
for the purpose of the Company's business, and the actions of the Directors
taken in accordance with such powers set forth in this Agreement shall bind the
Company. Notwithstanding the provisions of Section 18-402 of the Act, except as
provided in this Agreement or in a resolution of the Board, a Director may not
bind the Company.
(j) Limitations on the Company's Activities.
(i) This Section 9(j) is being adopted in order to comply
with certain provisions required in order to qualify
the Company as a "special purpose" entity.
(ii) The Member shall not, so long as any Obligation is
outstanding, amend, alter, change or repeal the
definition of "Independent Director" or Sections 5(c)
, 7, 8, 9, 10, 16, 20, 21, 22, 23, 24, 25, 26, 29, 30
or 31 or Schedule A of this Agreement without the
unanimous written consent of the Board (including the
Independent Director). Subject to this Section 9(j),
the Member reserves the right to amend, alter, change
or repeal any provisions contained in this Agreement
in accordance with Section 31.
(iii) Notwithstanding any other provision of this Agreement
and any provision of law that otherwise so empowers the
Company, the Member, the Board, any Officer or any
other Person, so long as any Obligation is outstanding,
neither the Member nor the Board nor any Officer nor
any other Person shall be authorized or empowered to,
nor shall they permit the Company to, and the Company
shall not, without the prior unanimous written consent
of the Member and the Board (including the Independent
Director), take any Material Action; provided, however,
that, so long as any Obligation is outstanding, the
Board may not vote on, or authorize the taking of, any
Material Action, unless there is at least one
Independent Director then serving in such capacity.
(iv) The Board shall cause the Company to do or cause to
be done all things necessary to preserve and keep in
full force and effect its existence, rights (charter
and statutory) and franchises; provided, however,
that the Company shall not be required to preserve
any such right or franchise if the Board shall
determine that the preservation thereof is no longer
desirable for the conduct of its business and that
the loss thereof is not disadvantageous in any
material respect to the Company. The Board also shall
cause the Company to:
(A) maintain its own separate books and records and bank
accounts;
(B) at all times hold itself out to the public and all
other Persons as a legal entity separate from the
Member and any other Person;
(C) have a Board of Directors separate from that of the
Member and any other Person other than any Affiliate
of the Company that is a special-purpose bankruptcy
remote entity;
(D) file its own tax returns, if any, as may be required
under applicable law, to the extent (1) not part of
a consolidated group filing a consolidated return or
returns or (2) not treated as a division for tax
purposes of another taxpayer, and pay any taxes so
required to be paid under applicable law;
(E) except as contemplated by the Basic Documents, not
commingle its assets with assets of any other
Person;
(F) conduct its business in its own name and comply with
all organizational formalities to maintain its
separate existence;
(G) maintain separate financial statements;
(H) except as contemplated by the Basic Documents, pay
its own liabilities only out of its own funds,
provided, however, that the foregoing shall not
require the Member to make any additional capital
contributions to the Company;
(I) maintain an arm's length relationship with its
Affiliates and the Member;
(J) pay the salaries of its own employees, if any,
provided, however, that the foregoing shall not
require the Member to make any additional capital
contributions to the Company;
(K) not hold out its credit or assets as being available
to satisfy the obligations of others;
(L) allocate fairly and reasonably any overhead for
shared office space;
(M) use separate stationery, invoices and checks;
(N) except as contemplated by the Basic Documents, not
pledge its assets for the benefit of any other
Person;
(O) correct any known misunderstanding regarding its
separate identity;
(P) maintain adequate capital in light of its
contemplated business purpose, transactions and
liabilities; provided, however, that the Member
shall not be obligated to make any additional
capital contribution to the Company;
(Q) cause its Board of Directors to meet at least
annually or act pursuant to written consent and keep
minutes of such meetings and actions and observe all
other Delaware limited liability company
formalities;
(R) not acquire any securities of the Member; and
(S) cause the Directors, Officers, agents and other
representatives of the Company to act at all times
with respect to the Company consistently and in
furtherance of the foregoing and in the best
interests of the Company.
Failure of the Company, the Member, or the Board on
behalf of the Company, to comply with any of the
foregoing covenants or any other covenants contained in
this Agreement shall not affect the status of the
Company as a separate legal entity or the limited
liability of the Member or the Directors.
(v) So long as any Obligation is outstanding, the Board
shall not cause or permit the Company to:
(A) except as contemplated by the Basic Documents,
guarantee any obligation of any Person, including
any Affiliate;
(B) engage, directly or indirectly, in any business
other than the actions required or permitted to be
performed under Section 7, the Basic Documents or
this Section 9(j);
(C) incur, create or assume any indebtedness other than
as contemplated by the Basic Documents;
(D) make or permit to remain outstanding any loan or
advance to, or own or acquire any stock or
securities of, any Person (other than a Trust),
except that the Company may invest in those
investments permitted under the Basic Documents and
may make any advance contemplated by the Basic
Documents and permit the same to remain outstanding
in accordance therewith;
(E) to the fullest extent permitted by law, engage in
any dissolution, liquidation, consolidation, merger,
asset sale or transfer of ownership interests other
than such activities as are contemplated by the
Basic Documents; or
(F) form, acquire or hold any subsidiary (whether
corporate, partnership, limited liability company or
other), other than a Trust and any subsidiary that
is a special-purpose, bankruptcy-remote entity.
Section 10. Independent Director.
So long as any Obligation is outstanding, the Member shall cause the
Company at all times to have at least one Independent Director who will be
appointed by the Member. To the fullest extent permitted by law, including
Section 18-1101(c) of the Act, the Independent Director shall consider only the
interests of the Company, including its respective creditors, in acting or
otherwise voting on the matters referred to in Section 9(j)(iii). No resignation
or removal of an Independent Director, and no appointment of a successor
Independent Director, shall be effective until such successor (i) shall have
accepted his or her appointment as an Independent Director by a written
instrument, which may be a counterpart signature page to the Management
Agreement, and (ii) shall have executed a counterpart to this Agreement as
required by Section 5(c). In the event of a vacancy in the position of
Independent Director, the Member shall, as soon as practicable, appoint a
successor Independent Director. All right, power and authority of the
Independent Director shall be limited to the extent necessary to exercise those
rights and perform those duties specifically set forth in this Agreement. Except
as provided in the second sentence of this Section 10, in exercising their
rights and performing their duties under this Agreement, any Independent
Director shall have fiduciary duties identical to those of a director of a
business corporation organized under the General Corporation Law of the State of
Delaware. No Independent Director shall at any time serve as trustee in
bankruptcy for any Affiliate of the Company.
Section 11. Officers.
(a) Officers. The initial Officers of the Company have been designated
by the Member under the Initial Agreement and are listed on Schedule E hereto.
The Officers of the Company shall consist of at least a President, a Secretary
and a Treasurer. The Board of Directors may also choose one or more Vice
Presidents, Assistant Secretaries and Assistant Treasurers. The additional or
successor Officers of the Company shall be chosen by the Board. Any number of
offices may be held by the same person. The Board may appoint such other
Officers and agents as it shall deem necessary or advisable who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board. The salaries of all Officers
and agents of the Company shall be fixed by or in the manner prescribed by the
Board. The Officers of the Company shall hold office until their successors are
chosen and qualified. Any Officer may be removed at any time, with or without
cause, by the affirmative vote of a majority of the Board. Any vacancy occurring
in any office of the Company shall be filled by the Board.
(b) President. The President shall be the chief executive officer of
the Company, shall preside at all meetings of the Board, shall be responsible
for the general and active management of the business of the Company and shall
see that all orders and resolutions of the Board are carried into effect. The
President or any other Officer authorized by the President or the Board shall
execute all bonds, mortgages and other contracts, except: (i) where required or
permitted by law or this Agreement to be otherwise signed and executed,
including Section 7(b); (ii) where signing and execution thereof shall be
expressly delegated by the Board to some other Officer or agent of the Company;
and (iii) as otherwise permitted in Section 11(c).
(c) Vice President. In the absence of the President or in the event of
the President's inability to act, the Vice President, if any (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated by the Directors, or in the absence of any designation, then in the
order of their election), shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the President. The Vice Presidents, if any, shall perform such other duties and
have such other powers as the Board may from time to time prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall be
responsible for filing legal documents and maintaining records for the Company.
The Secretary shall attend all meetings of the Board and record all the
proceedings of the meetings of the Member and of the Board in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. The Secretary shall give, or shall cause to be given, notice of all
meetings of the Member, if any, and special meetings of the Board, and shall
perform such other duties as may be prescribed by the Board or the President,
under whose supervision the Secretary shall serve. The Assistant Secretary, or
if there be more than one, the Assistant Secretaries in the order determined by
the Board (or if there be no such determination, then in order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board may from time to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall have the
custody of the Company funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the Board.
The Treasurer shall disburse the funds of the Company as may be ordered by the
Board, taking proper vouchers for such disbursements, and shall render to the
President and to the Board, at its regular meetings or when the Board so
requires, an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability to
act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe.
(f) Officers as Agents. The Officers, to the extent of their powers set
forth in this Agreement or otherwise vested in them by action of the Board not
inconsistent with this Agreement, are agents of the Company for the purpose of
the Company's business and, subject to Section 9(j), the actions of the Officers
taken in accordance with such powers shall bind the Company.
(g) Duties of Board and Officers. Except to the extent otherwise
provided herein, each Director and Officer shall have fiduciary duties identical
to those of directors and officers of business corporations organized under the
General Corporation Law of the State of Delaware.
Section 12. Limited Liability.
Except as otherwise expressly provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be the debts, obligations and liabilities solely of the
Company, and neither the Member nor the Special Member nor any Director shall be
obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a Member, Special Member or Director of the Company.
Section 13. Capital Contributions.
The Member has made a capital contribution to the Company. In
accordance with Section 5(c), the Special Member shall not be required to make
any capital contributions to the Company.
Section 14. Additional Contributions.
The Member is not required to make any additional capital contribution
to the Company. However, the Member may make additional capital contributions to
the Company at any time upon the written consent of such Member. The provisions
of this Agreement, including this Section 14, are intended to benefit the Member
and the Special 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 the Member and the Special Member shall not have any duty or
obligation to any creditor of the Company to make any contribution to the
Company or to issue any call for capital pursuant to this Agreement.
Section 15. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the Member.
Section 16. Distributions.
Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Board, in its sole discretion.
Notwithstanding any provision to the contrary contained in this Agreement, the
Company shall not be required to make a distribution to the Member on account of
its interest in the Company if such distribution would violate the Act or any
other applicable law or any Basic Document.
Section 17. Books and Records.
The Board shall keep or cause to be kept complete and accurate books of
account and records with respect to the Company's business. The books of the
Company shall at all times be maintained by the Board. The Member and its duly
authorized representatives shall have the right to examine the Company books,
records and documents during normal business hours. The Company's books of
account shall be kept using the method of accounting determined by the Board.
The Company, and the Board on behalf of the Company, shall not have the right to
keep confidential from the Member any information that the Board would otherwise
be permitted to keep confidential from the Member pursuant to Section 18-305(c)
of the Act. The Company's independent auditor, if any, shall be an independent
public accounting firm selected by the Board.
Section 18. Reports.
(a) Within 60 days after the end of each fiscal quarter, the Board shall
cause to be prepared an unaudited report setting forth as of the end of such
fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a balance
sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter, an
income statement of the Company for such fiscal quarter.
(b) The Board shall use diligent efforts to cause to be prepared within 90
days after the end of each fiscal year, an audited or unaudited report setting
forth as of the end of such fiscal year:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such fiscal year;
and
(iii) a statement of the Member's capital account.
(c) The Board shall, after the end of each fiscal year, use reasonable
efforts to cause the Company or its independent accountants, if any, to prepare
and transmit to the Member as promptly as possible any tax information as may be
reasonably necessary to enable the Member to prepare its federal, state and
local income tax returns relating to such fiscal year.
Section 19. Other Business.
Notwithstanding any duty to the contrary at law or in equity, the
Member, the Special Member, any Officer, Director, employee or agent of the
Company and any Affiliate of the Member or the Special Member may engage in or
possess an interest in other business ventures (unconnected with the Company) of
every kind and description, independently or with others. The Company shall not
have any rights in or to such independent ventures or the income or profits
therefrom by virtue of this Agreement.
Section 20. Exculpation and Indemnification.
(a) To the fullest extent permitted by law, neither the Member nor the
Special Member nor any Officer, Director, employee, administrator or agent of
the Company nor any employee, representative, agent or Affiliate of the Member
or the Special Member (collectively, the "Covered Persons") shall be liable to
the Company or any other Person who has an interest in or claim against the
Company for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Covered Person in good faith on behalf of the
Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Covered Person by this Agreement, except that a
Covered Person shall be liable for any such loss, damage or claim incurred by
reason of such Covered Person's fraud, gross negligence or willful misconduct.
(b) To the fullest extent permitted by applicable law, a Covered Person
shall be entitled to indemnification from the Company for any loss, damage or
claim incurred by such Covered Person by reason of any act or omission performed
or omitted by such Covered Person in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the authority conferred
on such Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Covered Person by reason of such Covered Person's fraud, gross negligence
or willful misconduct with respect to such acts or omissions; provided, however,
that any indemnity under this Section 20 by the Company shall be provided out of
and to the extent of Company assets only, and the Member and the Special Member
shall not have personal liability on account thereof; and provided, further,
that so long as any Obligation is outstanding, no indemnity payment from funds
of the Company (as distinct from funds from other sources, such as insurance) of
any indemnity under this Section 20 shall be payable from amounts allocable to
any other Person pursuant to the Basic Documents.
(c) To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by a Covered Person defending any claim, demand, action,
suit or proceeding shall, from time to time, be advanced by the Company prior to
the final disposition of such claim, demand, action, suit or proceeding upon
receipt by the Company of an undertaking by or on behalf of the Covered Person
to repay such amount if it shall be determined that the Covered Person is not
entitled to be indemnified as authorized in this Section 20.
(d) A Covered Person shall be fully protected in relying in good faith upon
the records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the Covered
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Company, including information, opinions, reports or statements as to the value
and amount of the assets or liabilities of the Company, or any other facts
pertinent to the existence and amount of assets from which distributions to the
Member might properly be paid.
(e) The provisions of this Agreement, to the extent that they restrict or
eliminate the duties and liabilities of a Covered Person to the Company or its
members otherwise existing at law or in equity, are agreed by the parties hereto
to replace such other duties and liabilities of such Covered Person.
(f) The foregoing provisions of this Section 20 shall survive any
termination of this Agreement.
Section 21. Assignments.
Subject to Section 23, the Member may assign in whole or in part its
limited liability company interest in the Company. Subject to Section 23, the
transferee of a limited liability company interest in the Company shall be
admitted to the Company as a member of the Company upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement, which instrument may be a counterpart signature page to this
Agreement. If the Member transfers all of its limited liability company interest
in the Company pursuant to this Section 21, such admission shall be deemed
effective immediately prior to the transfer and, immediately following such
admission, the transferor Member shall cease to be a member of the Company.
Notwithstanding anything in this Agreement to the contrary, any successor to the
Member by merger or consolidation shall, without further act, be the Member
hereunder, and such merger or consolidation shall not constitute an assignment
for purposes of this Agreement and the Company shall continue without
dissolution.
Section 22. Resignation.
So long as any Obligation is outstanding, the Member may not resign,
except in compliance with the Basic Documents and if the Rating Agency Condition
is satisfied. If the Member is permitted to resign pursuant to this Section 22,
a successor member of the Company shall be admitted to the Company upon its
execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement, which instrument may be a counterpart signature
page to this Agreement. Such admission shall be deemed effective immediately
prior to the resignation and, immediately following such admission, the
resigning Member shall cease to be a member of the Company.
Section 23. Admission of Additional Members.
One or more additional Members of the Company may be admitted to the
Company with the written consent of the Member.
Section 24. Dissolution.
(a) The Company shall be dissolved, and its affairs shall be wound up upon
the first to occur of the following: (i) the termination of the legal existence
of the last remaining member of the Company or the occurrence of any other event
which terminates the continued membership of the last remaining member of the
Company in the Company unless the Company is continued without dissolution in a
manner permitted by this Agreement or the Act or (ii) the entry of a decree of
judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any
event that causes the last remaining member of the Company to cease to be a
member of the Company or that causes the Member to cease to be a member of the
Company (other than upon continuation of the Company without dissolution upon
(i) an assignment by the Member of all of its limited liability company interest
in the Company and the admission of the transferee pursuant to Sections 21 and
23, or (ii) the resignation of the Member and the admission of a successor
member of the Company pursuant to Section 22 and 23), 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 such member in the Company.
(b) Notwithstanding any other provision of this Agreement, the Bankruptcy
of the Member or the Special Member shall not cause the Member or the Special
Member, respectively, to cease to be a member of the Company and upon the
occurrence of such an event, the Company shall continue without dissolution.
(c) Notwithstanding any other provision of this Agreement, each of the
Member and the Special Member waives any right it might have to agree to
dissolve the Company upon the Bankruptcy of the Member or the Special Member, or
the occurrence of an event that causes the Member or the Special Member to cease
to be a member of the Company.
(d) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the Company in an orderly manner), and the assets of the Company shall
be applied in the manner, and in the order of priority, set forth in Section
18-804 of the Act.
(e) The Company shall terminate when (i) all of the assets of the Company,
after payment of or due provision for all debts, liabilities and obligations of
the Company, shall have been distributed to the Member in the manner provided
for in this Agreement and (ii) the Certificate of Formation shall have been
canceled in the manner required by the Act.
Section 25. Waiver of Partition; Nature of Interest.
Except as otherwise expressly provided in this Agreement, to the
fullest extent permitted by law, each of the Member and the Special Member
hereby irrevocably waives any right or power that such Person might have to
cause the Company or any of its assets to be partitioned, to cause the
appointment of a receiver for all or any portion of the assets of the Company,
to compel any sale of all or any portion of the assets of the Company pursuant
to any applicable law or to file a complaint or to institute any proceeding at
law or in equity to cause the dissolution, liquidation, winding up or
termination of the Company. The Member shall not have any interest in any
specific assets of the Company, and the Member shall not have the status of a
creditor with respect to any distribution pursuant to Section 16 hereof. The
interest of the Member in the Company is personal property.
Section 26. Benefits of Agreement; No Third-Party Rights.
None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditor of the Company or by any creditor of the Member or
the Special Member. Nothing in this Agreement shall be deemed to create any
right in any Person (other than Covered Persons) not a party hereto, and this
Agreement shall not be construed in any respect to be a contract in whole or in
part for the benefit of any third Person (other than Covered Persons and except
as provided in Section 29).
Section 27. Severability of Provisions.
Each provision of this Agreement shall be considered severable and if
for any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those
portions of this Agreement which are valid, enforceable and legal.
Section 28. Entire Agreement.
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
Section 29. Binding Agreement.
Notwithstanding any other provision of this Agreement, the Member
agrees that this Agreement, including, without limitation, Sections 7, 8, 9, 10,
20, 21, 22, 23, 24, 26, 29 and 31, constitutes a legal, valid and binding
agreement of the Member, and is enforceable against the Member by the
Independent Director, in accordance with its terms.
Section 30. Governing Law.
This Agreement shall be governed by and construed under the laws of the
State of Delaware (without regard to conflict of laws principles), all rights
and remedies with respect to this Agreement being governed by said laws.
Section 31. Amendments.
Subject to Section 9(j), this Agreement may be modified, altered,
supplemented or amended pursuant to a written agreement executed and delivered
by the Member. Notwithstanding anything to the contrary in this Agreement, so
long as any Obligation is outstanding, this Agreement may not be modified,
altered, supplemented or amended unless the Rating Agency Condition is satisfied
except: (i) to cure any ambiguity or (ii) to change or supplement any provision
in a manner consistent with the intent of this Agreement and the other Basic
Documents.
Section 32. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Agreement and all of which together
shall constitute one and the same instrument.
Section 33. Notices.
Any notices required to be delivered hereunder shall be in writing and
personally delivered, mailed or sent by telecopy, electronic mail or other
similar form of rapid transmission, and shall be deemed to have been duly given
upon receipt (a) in the case of the Company, to the Company at its address in
Section 2, (b) in the case of the Member, to the Member at its address as listed
on Schedule B attached hereto and (c) in the case of either of the foregoing, at
such other address as may be designated by written notice to the other party.
[SIGNATURE PAGE FOLLOWS]
[Signature Page to Amended and Restated Limited Liability Company Agreement]
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have duly executed this Amended and Restated Limited Liability Company
Agreement as of the 24th day of August, 2005.
MEMBER:
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
----------------------
Name:
Title:
SPECIAL MEMBER:
By:
----------------------
Name: Xxxxxxx Xxxxxxxx
SCHEDULE A
Definitions
A. Definitions
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly Controlling or Controlled by or under direct or indirect
common Control with such Person.
"Administrative Services and Premises Agreement" shall mean the
Administrative Services and Premises Agreement, dated as of August 24, 2005,
among Wachovia Bank, National Association and the Company, as the same may be
amended or otherwise modified from time to time.
"Agreement" means this Amended and Restated Limited Liability Company
Agreement of the Company, together with the schedules attached hereto, as
amended, restated or supplemented or otherwise modified from time to time.
"Bankruptcy" means, with respect to any Person, if such Person (i)
makes an assignment for the benefit of creditors, (ii) files a voluntary
petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has
entered against it an order for relief, in any bankruptcy or insolvency
proceedings, (iv) files a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, (v) files an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against it in any proceeding of this nature, (vi) seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator of the Person
or of all or any substantial part of its properties, or (vii) if 120 days after
the commencement of any proceeding against the Person seeking reorganization,
arrangement, composition, readjustment, liquidation or similar relief under any
statute, law or regulation, 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 if 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(l) and
18-304 of the Act.
"Basic Documents" means (i) the Administrative Services and Premises
Agreement; (ii) each Mortgage Loan Purchase Agreement; (iii) each Trust
Agreement; (iv) each Pooling and Servicing Agreement; (v) each Sale and
Servicing Agreement; (vi) each Underwriting Agreement; (vii) each note purchase
agreement; (viii) any revolving credit, subordinated note or similar agreements
executed and delivered to extend financing to the Company for the purpose of
funding a portion of the aggregate purchase price of any Purchased Assets
purchased pursuant to any Mortgage Loan Purchase Agreement; and (ix) all
documents and certificates contemplated thereby or delivered in connection
therewith, each as amended and supplemented from time to time.
"Board" or "Board of Directors" means the Board of Directors of the
Company.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on June 15,
2005 as amended or amended and restated from time to time.
"Company" means Wachovia Mortgage Loan Trust, LLC, a Delaware limited
liability company.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or general partnership or managing
member interests, by contract or otherwise. "Controlling" and "Controlled" shall
have correlative meanings. Without limiting the generality of the foregoing, a
Person shall be deemed to Control any other Person in which it owns, directly or
indirectly, a majority of the ownership interests.
"Covered Persons" has the meaning set forth in Section 20(a).
"Directors" means the Persons elected to the Board of Directors from
time to time by the Member, including the Independent Director, in their
capacity as managers of the Company. A Director is hereby designated as a
"Manager" of the Company within the meaning of Section 18-101(10) of the Act.
"Indenture" has the meaning set forth in Section 7.
"Independent Director" means a natural person who, for the five-year
period prior to his or her appointment as Independent Director has not been, and
during the continuation of his or her service as Independent Director is not:
(i) an employee, director, stockholder, partner, manager, contractor or officer
of the Company or any of its Affiliates (other than his or her service as an
Independent Director of the Company or an Affiliate of the Company that is a
special purpose bankruptcy remote entity); (ii) a supplier of the Company or any
of its Affiliates (other than an Independent Director provided by a corporate
services company that provides independent directors in the ordinary course of
its business); (iii) any member of the immediate family of a person described in
(i) or (ii); or (iv) a Person who controls (directly, indirectly or otherwise)
the Company or its Affiliates or any Person described in (i) or (ii).
"Management Agreement" means the agreement of the Directors in the form
attached hereto as Schedule C. The Management Agreement shall be deemed
incorporated into, and a part of, this Agreement.
"Material Action" means to consolidate or merge the Company with or
into any Person, or sell all or substantially all of the assets of the Company
(except as contemplated by the Basic Documents), or to institute proceedings to
have the Company be adjudicated bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Company or file
a petition seeking, or consent to, reorganization or relief with respect to the
Company under any applicable federal or state law relating to bankruptcy, or
consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or a substantial part of
its property, or make any assignment for the benefit of creditors of the
Company, or admit in writing the Company's inability to pay its debts generally
as they become due, or take action in furtherance of any such action, or, to the
fullest extent permitted by law, dissolve or liquidate the Company.
"Member" means Wachovia Bank, National Association, as the initial
member of the Company, and includes any Person admitted as an additional,
successor or substitute member of the Company pursuant to the provisions of this
Agreement, each in its capacity as a member of the Company; provided, however,
the term "Member" shall not include the Special Member.
"Mortgage Loan Purchase Agreement" has the meaning set forth in Section
7.
"Obligations" shall mean the indebtedness, liabilities and obligations
of the Company under the Basic Documents as of any date of determination.
"Officer" means an officer of the Company described in Section 11.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association, joint
stock company, trust, unincorporated organization, or other organization or
entity, whether or not a legal entity, and any governmental authority.
"Pooling and Servicing Agreement" has the meaning set forth in Section
7.
"Rating Agency" means each of Standard & Poor's, Xxxxx'x and Fitch as
such terms are defined in the Basic Documents.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have notified the Company in writing that such action will
not result in a reduction or withdrawal of the rating of any series or class of
securities issued by the related Trust with respect to which it is a Rating
Agency.
"Sale and Servicing Agreement" has the meaning set forth in Section 7.
"Special Member" means, upon such person's admission to the Company as
a member of the Company pursuant to Section 5(c), a person acting as Independent
Director, in such person's capacity as a member of the Company. A Special Member
shall only have the rights and duties expressly set forth in this Agreement.
"Trust" has the meaning set forth in Section 7.
"Trust Agreement" has the meaning set forth in Section 7.
"Trustee" has the meaning set forth in Section 7.
"Underwriting Agreement" has the meaning set forth in Section 7.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and
plural forms of the defined terms. The words "include" and "including" shall be
deemed to be followed by the phrase "without limitation." The terms "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section, paragraph or
subdivision. The Section titles appear as a matter of convenience only and shall
not affect the interpretation of this Agreement. All Section, paragraph, clause,
Exhibit or Schedule references not attributed to a particular document shall be
references to such parts of this Agreement.
SCHEDULE B
Member
-------------------------- -------------------------- --------------------------
Membership
Name Mailing Address Interest
-------------------------- -------------------------- --------------------------
Wachovia Bank, [301 Xxxxx Xxxxxxx Xxxxxx 100%
National Association Xxxxxxxxx, XX 00000]
-------------------------- -------------------------- --------------------------
SCHEDULE C
Management Agreement
August 24, 2005
Wachovia Mortgage Loan Trust, LLC
[301 X. Xxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, XX 00000-0000]
Re: Management Agreement - Wachovia Mortgage Loan Trust, LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned Persons,
who have been designated as directors of Wachovia Mortgage Loan Trust, LLC, a
Delaware limited liability company (the "Company"), in accordance with the
Amended and Restated Limited Liability Company Agreement of the Company, dated
as of August 24, 2005, as it may be amended or restated from time to time (the
"Company Agreement"), hereby agree as follows:
1. Each of the undersigned accepts such Person's rights and authority
as a Director under the Company Agreement and agrees to perform and discharge
such Person's duties and obligations as a Director under the Company Agreement,
and further agrees that such rights, authorities, duties and obligations under
the Company Agreement shall continue until such Person's successor as a Director
is designated or until such Person's resignation or removal as a Director in
accordance with the Company Agreement. Each of the undersigned agrees and
acknowledges that it has been designated as a "manager" of the Company within
the meaning of the Delaware Limited Liability Company Act.
2. So long as any Obligation is outstanding, each of the undersigned
agrees, solely in its capacity as a creditor of the Company on account of any
indemnification or other payment owing to the undersigned by the Company, not to
acquiesce, petition or otherwise invoke or cause the Company to invoke the
process of any court or governmental authority for the purpose of commencing or
sustaining an involuntary case against the Company under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Company or any substantial part of the property of the Company, or ordering the
winding up or liquidation of the affairs of the Company.
3. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Capitalized terms used and not otherwise defined herein have the
meanings set forth in the Company Agreement.
This Management Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Management
Agreement and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the date first above written.
--------------------------
Xxxxxx Xxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxxx
--------------------------
Xxxxxxx Xxxxxxxx
[Signature Page to Management Agreement]
SCHEDULE D
DIRECTORS
----------
Xxxxxx Xxxxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxxxx Xxxxxxxx
SCHEDULE E
OFFICERS TITLE
-------- ------
Xxxx X. Xxxxxxx Assistant Secretary
Xxxxx Xxxxxxx Associate
Xxxxxx X. Xxxxxx Director
Xxxx X. Xxxxxxx Treasurer, Controller and Managing
Director
Xxxxx X. Xxxxxx Secretary
Xxxxx X. Xxxxxxxxx Managing Director
Xxxxxx Xxxxxxxx President and Managing Director
Xxxxxxx X. Xxxxxxx Senior Vice President and Assistant
Secretary
Xxxxx X. Xxxxxxx Senior Vice President and Assistant
Secretary
Xxxxx Xxxxxx Assistant Secretary
