LIMITED LIABILITY COMPANY AGREEMENT
OF
GE-WMC MORTGAGE SECURITIES, L.L.C.
(A DELAWARE LIMITED LIABILITY COMPANY)
Dated July 29, 2005
GE-WMC MORTGAGE SECURITIES L.L.C.
LIMITED LIABILITY COMPANY AGREEMENT dated as of July 29, 2005,
adopted by GE Mortgage Holding, L.L.C. as the sole equity member (the "INITIAL
MEMBER").
PRELIMINARY STATEMENT
The Initial Member desires to form a limited liability company
under the Delaware Limited Liability Company Act (currently Chapter 18 of Title
6 of the Delaware Code, as amended from time to time (the "ACT")).
The Initial Member hereby adopts the following as the "Limited
Liability Company Agreement" of the Company within the meaning of Section
18-101(7) of the Act.
ARTICLE I
SECTION 1.1 DEFINITIONS. Capitalized terms used in this Agreement and
not otherwise defined herein shall have the meanings assigned to such terms in
the "DEFINITIONS ADDENDUM" attached to this Agreement and shall otherwise have
the meanings assigned to such terms in the Act.
ARTICLE II
SECTION 2.1 FORMATION. The Company was formed as a limited liability
company pursuant to the provisions of the Act on July 21, 2005, by the filing of
the Certificate of Formation with the office of the Secretary of State of
Delaware. The Initial Member adopts, confirms and ratifies said Certificate of
Formation and all acts taken in connection therewith.
ARTICLE III
SECTION 3.1 NAME. The name of the Company is GE-WMC Mortgage
Securities, L.L.C.
ARTICLE IV
SECTION 4.1 Purposes. Subject to the limitations set forth herein, the
purpose to be conducted or promoted by the Company is to engage in the following
activities:
(a) Acquiring as purchaser and/or by contribution to the
capital of the Company or otherwise, owning, holding, transferring,
assigning, selling, contributing to capital, pledging and otherwise
dealing with (i) mortgage notes and similar such instruments, related
real property, mortgages, deeds of trust and other related agreements,
documents, books and records, including loans secured by manufactured
housing, by cooperative apartments and by timeshare interests, loans
secured by securities accounts or by third party guaranties as
additional collateral, home improvement loans and other secured and
unsecured consumer loans and receivables, (ii) related rights to
payment, whether constituting cash, account, chattel paper, instrument,
general intangible or otherwise, and any other related assets, property
and rights, including without limitation security interests, (iii)
related collection, deposit, custodial, trust and other accounts, lock
boxes and post office boxes and any amounts and other items from time
to time on deposit therein, (iv) real property and any improvements
thereon and personal property acquired by foreclosure, deed-in-lieu
thereof or otherwise in respect of any of the foregoing, (v)
certificates, notes, bonds or other securities, instruments and
documents evidencing ownership interests in or obligations secured by
all or any of the foregoing and (vi) proceeds and other payments and
distributions of any kind of, on or in respect of any of the foregoing;
(b) Authorizing, issuing, selling and delivering, directly or
indirectly through corporations, partnerships, limited liability
companies, business trusts, common law trusts or other special purpose
entities established solely for such purpose, certificates, notes,
bonds and other securities, instruments and documents evidencing
ownership interests in or obligations secured by all or any portion of
the assets described in foregoing paragraph (a), and in connection
therewith entering into agreements governing the issuance of securities
or any servicing, trust, insurance, credit enhancement, reimbursement,
hedge, underwriting, purchase, indemnity and other agreements related
thereto (the "Transaction Documents");
(c) Issuing Membership Interests, on the terms and conditions
set forth herein;
(d) Taking any action necessary or reasonable to enable the
Company 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 to accomplish any of the foregoing;
and
(e) The Company, by or through the Initial Member, or any
Officer or Manager on behalf of the Company, may enter into and perform
the Transaction Documents and all documents, agreements, certificates,
or financing statements contemplated thereby or related thereto,
together with any amendments or supplements thereto, all without any
further act, vote or approval of any other Person notwithstanding any
other provision of this Agreement, the Act or applicable law, rule or
regulation. The foregoing authorization shall not be deemed a
restriction on the powers of the Initial Member or any Manager to enter
into other agreements on behalf of the Company.
ARTICLE V
SECTION 5.1 REGISTERED OFFICE; OTHER OFFICES. The address of the
registered office of the Company in the State of Delaware is 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx, 00000. The Initial Member may establish
other offices of the Company at such locations within or outside the State of
Delaware as the Initial Member may determine.
ARTICLE VI
SECTION 6.1 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 The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx Xxxxxx, Xxxxxxxx, 00000.
ARTICLE VII
SECTION 7.1 ADMISSION OF MEMBERS. (a) By execution of this Agreement,
the Initial Member is hereby admitted as a Member of the Company. The Initial
Member shall have such rights in and to the profits and losses of the Company
and rights to receive distributions of the Company's assets, and such other
rights and obligations, as provided herein.
(b) The Initial Member may cause the Company to issue
additional Membership Interests and thereby admit a new Member or new
Members, as the case may be, to the Company, only if such new Member
(i) has delivered to the Initial Member its capital contribution, (ii)
has agreed in writing to be bound by the terms of this Agreement by
becoming a party hereto and (iii) has delivered such additional
documentation as the Initial Member shall reasonably require to so
admit such new Member to the Company.
(c) Upon the occurrence of any event that causes the Initial
Member to cease to be a member of the Company (other than upon an
assignment by the Initial Member of all of its limited liability
company interest in the Company and the prior or simultaneous admission
of the transferee pursuant to Article XII), each person acting as an
Independent Manager pursuant to SECTION 8.3 shall, without any action
of any Person and simultaneously with the Initial 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 Manager pursuant to SECTION 8.3; PROVIDED, HOWEVER, the
Special Members shall automatically cease to be members of the Company
upon the admission to the Company of a substitute Member. 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, a Special Member shall not be required to make any capital
contributions to the Company and shall not receive a limited liability
company interest in the Company. A Special Member, in its capacity as
Special Member, may not bind the Company. Except as required by any
mandatory provision of the Act, each Special Member, in its capacity as
Special Member, shall have no right to vote on, approve or otherwise
consent to any action by, or matter relating to, the Company,
including, without limitation, the merger, consolidation or conversion
of the Company. In order to implement the admission to the Company of
each Special Member, each person acting as an Independent Manager
pursuant to SECTION 8.3 shall execute a counterpart to this Agreement.
Prior to its admission to the Company as Special Member, each person
acting as an Independent Manager pursuant to SECTION 8.3 shall not be a
member of the Company.
SECTION 7.2 INITIAL MEMBER. The name and the address of the Initial
Member of the Company is as follows:
GE Mortgage Holding, L.L.C.
c/o General Electric Capital Services, Inc.
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Capital Markets, Legal Department
With a copy to:
General Electric Capital Services, Inc.
c/o GE Mortgage Holding, L.L.C.
c/o WMC Mortgage Corp.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
ARTICLE VIII
SECTION 8.1 MANAGEMENT. (a) BOARD OF MANAGERS. The business and affairs
of the Company shall be managed by or under the direction of a Board of one or
more Managers (each, a "MANAGER") designated by the Initial Member. Subject to
SECTION 10, the Initial Member may determine at any time in its sole and
absolute discretion the number of Managers to constitute the Board. The
authorized number of Managers may be increased or decreased by the Initial
Member at any time in its sole and absolute discretion, upon notice to all
Managers, and subject in all cases to SECTION 8.3. The initial number of
Managers shall be 4. Each Manager elected, designated or appointed by the
Initial Member shall hold office until a successor is elected and qualified or
until such Manager's earlier death, resignation, expulsion or removal. A Manager
need not be a Special Member. The initial Managers designated by the Initial
Member are listed on SCHEDULE A hereto.
(b) POWERS. Subject to SECTION 8.4, the Board of Managers
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 SECTION 4.1,
the Board of Managers has the authority to bind the Company.
(c) MEETING OF THE BOARD OF MANAGERS. The Board of Managers 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
Manager 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 Managers.
(d) QUORUM: ACTS OF THE BOARD. At all meetings of the Board, a
majority of the Managers 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 Managers 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 Managers
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) COMPENSATION OF MANAGERS; EXPENSES. The Board shall have
the authority to fix the compensation of Managers. The Managers 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 Manager. No such payment shall preclude any Manager
from serving the Company in any other capacity and receiving
compensation therefor.
(g) REMOVAL OF MANAGERS. Unless otherwise restricted by law,
any Manager or the entire Board of Managers may be removed or expelled,
with or without cause, at any time by the Initial Member, and any
vacancy caused by any such removal or expulsion may be filled by action
of the Initial Member.
(h) MANAGERS AS AGENTS. To the extent of their powers set
forth in this Agreement and subject to SECTION 8.4, the Managers are
agents of the Company for the purpose of the Company's business, and
the actions of the Managers taken in accordance with such powers set
forth in this Agreement shall bind the Company. Notwithstanding the
last sentence of Section 18-402 of the Act, except as provided in this
Agreement or in a resolution of the Managers, a Manager may not bind
the Company.
SECTION 8.2 MANAGERS TO PROVIDE INFORMATION TO THE INITIAL MEMBER. It
shall be the duty of each Manager to keep the Initial Member reasonably informed
as to material events relating to the Company, including, without limitation,
all claims pending or threatened against the Company and the execution by such
Manager on behalf of the Company of any material agreements or instruments.
SECTION 8.3 INDEPENDENT MANAGER. As long as any Obligation is
outstanding, the Initial Member shall cause the Company at all times to have at
least one Independent Manager who will be appointed by the Initial Member. To
the fullest extent permitted by law, including SECTION 18-1101(C) of the Act, it
is intended that the Independent Managers shall consider only the interests of
the Company, including its respective creditors, in acting or otherwise voting
on the matters referred to in SECTION 8.4. No resignation or removal of an
Independent Manager, and no appointment of a successor Independent Manager,
shall be effective until such successor (i) shall have accepted his or her
appointment as an Independent Manager by a written instrument and (ii) shall
have executed a counterpart to this Agreement as required by SECTION 7.1(C). In
the event of a vacancy in the position of Independent Manager, the Initial
Member shall, as soon as practicable, appoint a successor Independent Manager.
All right, power and authority of the Independent Managers 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 8.3, in exercising their rights and performing their
duties under this Agreement, any Independent Manager 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. No
Independent Manager shall at any time serve as trustee in bankruptcy for any
Affiliate of the Company. The initial Independent Manager of the Company is
Xxxxx X. Xxxxx.
SECTION 8.4 LIMITATIONS ON THE COMPANY'S ACTIVITIES. (a) This SECTION
8.4 is being adopted in order to comply with certain provisions required in
order to qualify the Company as a "special purpose" entity.
(b) The Initial Member shall not, so long as any Obligation is
outstanding, amend, alter, change or repeal the definition of
"Independent Manager" or SECTIONS 4.1, 7.1, 8.1, 8.3, 8.4, 11.1, 12.1,
13.1, 14.1, 15.1, or 16.1 or the DEFINITIONS ADDENDUM of this Agreement
without the unanimous written consent of the Managers (including all
Independent Managers). Subject to this SECTION 8.4, the Initial Member
reserves the right to amend, alter, change or repeal any provisions
contained in this Agreement in accordance with SECTION 16.1.
(c) Notwithstanding any other provision of this Agreement and
any provision of law that otherwise so empowers the Company, the
Initial Member, the Managers, any Officer or any other Person, neither
the Initial Member nor the Managers nor any Officer nor any other
Person shall be authorized or empowered, nor shall they permit the
Company, without the prior unanimous written consent of the Initial
Member and the Managers (including all Independent Managers), to take
any Material Action; PROVIDED, HOWEVER, that as long as any Obligation
is outstanding, the Managers may not vote on, or authorize the taking
of, any Material Action, unless there is at least one Independent
Manager then serving in such capacity.
(d) The Managers and the Initial Member 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: (1) the
Managers 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 and (2) the
Rating Agency Condition is satisfied. The Managers also shall cause the
Company to:
(i) maintain its own books and records and bank
accounts separate from the Initial Member or any other Person;
(ii) at all times hold itself out to the public and
all other Persons as a legal entity separate from the Initial
Member and any other Person;
(iii) 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;
(iv) except as contemplated by the Transaction
Documents, not commingle its assets with assets of the Initial
Member or any other Person;
(v) conduct its business in its own name and strictly
comply with all organizational formalities to maintain its
separate existence;
(vi) maintain separate financial statements;
(vii) pay its own liabilities only out of its own
funds;
(viii) maintain an arm's length relationship with its
Affiliates and the Initial Member;
(ix) pay the salaries of its own employees, if any;
(x) not hold out its credit or assets as being
available to satisfy the obligations of others;
(xi) to the extent its office is located in the
offices of any Affiliate, pay fair market rent for its office
space located therein, and otherwise allocate fairly and
reasonably any overhead expenses shared with any Affiliate,
and not engage in any business transaction with any Affiliate
unless on an arm's-length basis;
(xii) use separate stationery, invoices and checks;
(xiii) except as contemplated by the Transaction
Documents, not pledge its assets for the benefit of any other
Person or make any loans or advances to any other Person;
(xiv) correct any known misunderstanding regarding
its separate identity;
(xv) maintain adequate capital in light of its
contemplated business purpose, transactions and liabilities;
(xvi) cause its Managers 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;
(xvii) not acquire any securities of the Initial
Member; and
(xviii) cause the Managers, 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, or the Initial Member or the Managers 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 Initial Member or the
Managers.
(e) So long as any Obligation is outstanding, the Managers
shall not cause or permit the Company to:
(i) except as contemplated by the Transaction
Documents, guarantee or become obligated for the debts of any
Person, including any Affiliate;
(ii) engage, directly or indirectly, in any business
other than the actions required or permitted to be performed
under SECTION 4.1, the Transaction Documents or this SECTION
8.4;
(iii) incur, create or assume any indebtedness other
than as expressly permitted hereunder and under the
Transaction Documents;
(iv) make or permit to remain outstanding any loan or
advance to, or own or acquire any stock or securities of, any
Person, except that the Company may invest in those
investments permitted under the Transaction Documents and may
make any advance required or expressly permitted to be made
pursuant to any provisions of the Transaction Documents and
permit the same to remain outstanding in accordance with such
provisions;
(v) 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 expressly permitted pursuant to any
provision of the Transaction Documents; or
(vi) except at contemplated by the Transaction
Documents, form, acquire or hold any subsidiary (whether
corporate, partnership, limited liability company or other).
SECTION 8.5 OFFICERS.
(a) OFFICERS. The initial Officers of the Company designated by the
Initial Member are listed on Schedule A attached hereto. The additional or
successor Officers of the Company shall be chosen by the Managers and shall
consist of at least a President, a Secretary and a Treasurer. The Managers may
also choose one or more Vice Presidents, Assistant Secretaries and Assistant
Treasurers. Any number of offices may be held by the same person. The Managers
may appoint such other Officers and agents as they 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
Managers. The salaries of all Officers and agents of the Company shall be fixed
by or in the manner prescribed by the Managers. 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 Managers. Any vacancy occurring in any office of the Company
shall be filled by the Managers.
(b) PRESIDENT. The President shall be the principal executive officer
of the Company, shall preside at all meetings of the Managers, 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 Managers are carried into
effect.
(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 Managers, 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 Managers 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 Managers and record all the
proceedings of the meetings of the Company and of the Managers 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 Initial Member, if any, and special meetings of the
Managers, and shall perform such other duties as may be prescribed by the
Managers 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 Managers (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 Managers may from time to time prescribe.
(e) TREASURER AND ASSISTANT TREASURER. The Treasurer shall be the
principal accounting officer of the Company and 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 Managers. The Treasurer
shall disburse the funds of the Company as may be ordered by the Managers,
taking proper vouchers for such disbursements, and shall render to the President
and to the Managers, at its regular meetings or when the Managers so require, 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 Managers (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 Managers may from time to time
prescribe.
(f) OFFICERS AS AGENTS. Any Officer shall be authorized to execute any
Transaction Document and all bonds, mortgages and other contracts, except: (i)
where required by law or this Agreement to be otherwise signed and executed,
including SECTION 4.1(B) and (ii) where signing and execution thereof shall be
expressly delegated by the Managers to some other Officer or agent of the
Company.
ARTICLE IX
SECTION 9.1 INITIAL CAPITAL CONTRIBUTIONS. An initial cash capital
contribution of $10,000 has been made by the Initial Member. The Special Members
shall not be required to make any capital contributions to the Company.
ARTICLE X
SECTION 10.1 ADDITIONAL CONTRIBUTIONS. The Members shall have no
obligation to make any additional capital contribution to the Company after the
date hereof, but the Initial Member may elect to do so from time to time. The
provisions of this Agreement, including this SECTION 10.1, are intended to
benefit the Initial Member and the Special Members 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 Initial Member and the
Special Members 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.
ARTICLE XI
SECTION 11.1 DISTRIBUTIONS. Distributions shall be made to the Members
at the times and in the aggregate amounts determined by the Initial Member,
subject to the limitations of the Act.
SECTION 11.2 DISTRIBUTION UPON WITHDRAWAL. Upon withdrawal, any
withdrawing Member shall not be entitled to receive any distribution and shall
not otherwise be entitled to receive the fair market value of its Membership
Interest.
ARTICLE XII
SECTION 12.1 TRANSFERS. (a) A Member other than the Initial Member may
not Transfer any part of its Membership Interest without the prior written
consent of the Initial Member, which consent may be withheld by the Initial
Member in its sole discretion. Any purported Transfer of any Membership Interest
in contravention of this SECTION 12.1 shall be null and void and of no force or
effect whatsoever.
(b) A transferee of a Member's Membership Interest shall be admitted to
the Company only if such transferee (i) has agreed in writing to be bound by the
terms of this Agreement by becoming a party hereto and (ii) has delivered such
additional documentation as the Initial Member shall reasonably require to so
admit such transferee to the Company. Notwithstanding anything contained herein
to the contrary, both the Company and the Initial Member shall be entitled to
treat the transferor of a Membership Interest as the absolute owner thereof in
all respects, and shall incur no liability for distributions of cash or other
property made in good faith to it, until such time as a written assignment or
other evidence of the consummation of a Transfer that conforms to the
requirements of this SECTION 12.1 and is reasonably satisfactory to the Initial
Member has been received by the Company. The effective date of any Transfer
permitted under this Agreement shall be the close of business on the day of
receipt thereof by the Company; provided, however, a Member may not transfer all
of its Membership Interest unless the transferee is admitted as a substitute
Member immediately prior thereto.
SECTION 12.2 RESTRICTIONS ON EXPULSION. No Member shall be expelled as
a Member under any circumstances.
ARTICLE XIII
SECTION 13.1 LIABILITY OF MEMBERS. Except as required by the Act, no
Member or any Manager, agent, shareholder, director, employee or incorporator of
any Member, in its capacity as such, will be liable for the debts, obligations
and liabilities of the Company or any other Member, whether arising in contract,
tort or otherwise, which debts, obligations and liabilities shall be solely the
debts, obligations and liabilities of the Company or such other Member, as
applicable.
ARTICLE XIV
SECTION 14.1 EXCULPATION AND INDEMNIFICATION OF MEMBERS AND MANAGERS.
(a) No Indemnified Party 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 performed or any act omitted by such Indemnified
Party in connection with any matter arising from, or related to, or in
connection with this Agreement or the Company's business or affairs; PROVIDED,
HOWEVER, that the foregoing shall not eliminate or limit the liability of any
Indemnified Party if a judgment or other final adjudication adverse to the
Indemnified Party establishes (i) that the Indemnified Party's acts or omissions
were in bad faith or involved intentional misconduct or a knowing violation of
law or (ii) that the Indemnified Party personally gained in fact a financial
profit or other advantage to which the Indemnified Party was not legally
entitled.
(b) The Company shall, to the fullest extent permitted by the Act,
indemnify and hold harmless, and advance expenses to, each Indemnified Party
against any losses, claims, damages or liabilities to which the Indemnified
Party may become subject in connection with any matter arising from, related to,
or in connection with, this Agreement or the Company's business or affairs;
PROVIDED, HOWEVER, that no indemnification may be made to or on behalf of any
Indemnified Party if a judgment or other final adjudication adverse to the
Indemnified Party establishes (i) that the Indemnified Party's acts were
committed in bad faith or were the result of active and deliberate dishonesty or
(ii) that the Indemnified Party personally gained in fact a financial profit or
other advantage to which the Indemnified Party was not legally entitled.
(c) Notwithstanding anything else contained in this Agreement, the
indemnity obligations of the Company under PARAGRAPH (B) above shall:
(i) be in addition to any liability that the Company may
otherwise have;
(ii) inure to the benefit of the successors, assigns, heirs
and personal representatives of each Indemnified Party; and
(iii) be limited to the assets of the Company that would
otherwise be available for distribution to the Members.
Notwithstanding any other provision of this Agreement, the Company shall not,
and shall not be obligated to, pay any amount pursuant to this SECTION 14.1
unless the Company has received funds which may be used to make such payment and
which funds are not required to repay any other obligations of the Company when
due. Any amount which the Company does not pay pursuant to the operation of the
preceding sentence shall not constitute a claim (as defined in ss. 101 of the
Bankruptcy Code) against, or corporate obligation of, the Company.
(d) This ARTICLE XIV shall survive any termination of this Agreement
and the dissolution of the Company.
ARTICLE XV
SECTION 15.1 DURATION AND DISSOLUTION. (a) Subject to SECTION 8.4 and
the following sentence, 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 business of the Company is
continued 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, 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 (A) to continue the
Company and (B) to admit the personal representative or its nominee or designee,
as the case may be, as a substitute member of the Company, effective as of the
occurrence of the event that terminated the continued membership of the last
remaining Member of the Company in the Company.
(b) Notwithstanding any other provision of this Agreement, the
Bankruptcy of any Member or a Special Member shall not cause such Member or
Special Member, respectively, to cease to be a member of the Company and upon
the occurrence of such an event, the business of the Company shall continue
without dissolution.
(c) Notwithstanding any other provision of this Agreement, each Member
and the Special Member waives any right it might have to agree in writing to
dissolve the Company upon the bankruptcy or insolvency of such Member or Special
Member, or the occurrence of an event that causes such Member or 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 (including all Obligations of the Company), shall
have been distributed to the Members 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.
ARTICLE XVI
SECTION 16.1 AMENDMENTS. Subject to SECTION 8.4, this Agreement may be
modified, altered, supplemented or amended pursuant to a written agreement
executed and delivered by the Initial 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 convert or supplement any provision in a manner consistent with the intent of
this Agreement and the other Transaction Documents.
SECTION 16.2 HEADINGS. The titles of Sections of this Agreement are for
convenience or reference only and shall not define or limit any of the
provisions of this Agreement.
SECTION 16.3 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO CONFLICTS OF LAW PRINCIPLES THEREOF.
SECTION 16.4 SEPARABILITY OF PROVISIONS. Each provision of this
Agreement shall be considered separable and if for any reason any provision or
provisions herein are determined to be invalid, unenforceable or illegal under
any existing or future law, such invalidity, unenforceability or illegality
shall not impair the operation of or affect those portions of this Agreement
which are valid, enforceable and legal.
SECTION 16.5 FURTHER ASSURANCES. The Initial Member shall execute and
deliver such further instruments and do such further acts and things as may be
required to carry out the intent and purposes of this Agreement.
SECTION 16.6 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original of this Agreement.
Executed counterparts may be delivered electronically.
SECTION 16.7 EFFECTIVENESS. Pursuant to Section 18-201(d) of the Act,
this Agreement shall be effective as of July 29, 2005.
[Signature Follows]
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound hereby, have duly executed this Agreement as of the date first above
written.
INITIAL MEMBER:
GE MORTGAGE HOLDING, L.L.C.
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: President
INDEPENDENT MANAGER (WHO MAY BECOME
A SPECIAL MEMBER):
/s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
DEFINITIONS ADDENDUM
TO THE
LIMITED LIABILITY COMPANY AGREEMENT
"ACT" is defined in the PRELIMINARY STATEMENT.
"AFFILIATE" means, with respect to any Person, any Person or group of
Persons acting in concert in respect of the Person in question that, directly or
indirectly, controls or is controlled by or is under common control with such
Person. For the purposes of this definition, "control" (including, with
correlative meaning, the terms "controlled by" and "under common control with")
as used with respect to any Person or group of Persons, shall mean the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
"AGREEMENT" means this Limited Liability Company Agreement, including
any actions amending, modifying or supplementing this Limited Liability Company
Agreement.
"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
Sections 18-101(1) and 18-304 of the Act.
"BOARD" or "BOARD OF MANAGERS" means the Board of Managers of the
Company.
"CERTIFICATE OF FORMATION" means the Certificate of Formation of GE-WMC
Mortgage Securities, L.L.C., as amended from time to time.
"COMPANY" means GE-WMC Mortgage Securities, L.L.C., a Delaware limited
liability company.
"INDEMNIFIED PARTY" means a Member, Manager, employee, organizer or
agent of the Company or any officer, agent, shareholder, director, employee or
incorporator of the Initial Member.
"INDEPENDENT MANAGER" means a natural person who, for the five-year
period prior to his or her appointment as Independent Manager has not been, and
during the continuation of his or her service as Independent Manager is not: (i)
an employee, director, stockholder, partner or officer of the Company or any of
its Affiliates (other than his or her service as an Independent Manager of the
Company or independent manager or independent director of any Affiliate whose
purposes are restricted to those substantially similar to those in SECTION 4);
(ii) a customer or supplier of the Company or any of its Affiliates; or (iii)
any member of the immediate family of a person described in (i) or (ii).
"INITIAL MEMBER" has the meaning assigned in the PREAMBLE.
"MANAGER" is defined in SECTION 8.1.
"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 pursuant to a Transaction Document), 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 any Person that is admitted as a member of the Company,
in each case for so long as such Person continues to be a member of the Company;
provided, however, the term "Member" shall not include the Special Member.
"MEMBERSHIP INTEREST" means the entire limited liability company
interest of a Member in the Company at any particular time, including the right
of such Member to any and all benefits to which a Member may be entitled as
provided in this Agreement, together with the obligations of such member to
comply with all the terms and provisions of this Agreement.
"OBLIGATIONS" shall mean any Securities and the indebtedness,
liabilities and obligations issued under or in connection with any of the
Transaction Documents or any related document in effect as of any date of
determination.
"OFFICER" means an officer of the Company described in SECTION 8.5.
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
association, joint venture, government or any agency or political subdivision
thereof or any other entity of whatever nature.
"RATING AGENCY" means any nationally recognized statistical rating
organization currently rating any Security.
"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 or qualification of the then current
rating by such Rating Agency of any of the Securities.
"SECURITIES" means any certificates, notes, bonds or other securities
issued by the Company, or another special purpose entity established by or on
behalf of the Company, and secured primarily by, or evidencing beneficial
ownership interest in, the mortgage assets described in Section 4.1(a).
"SPECIAL MEMBER" means, upon such person's admission to the Company as
a member of the Company pursuant to SECTION 7.1(C), a person acting as
Independent Manager, 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.
"TRANSACTION DOCUMENTS" means this Agreement, any agreement governing
the issuance of Securities or any servicing, insurance, credit enhancement,
reimbursement, swap and/or derivative agreements and all documents and
certificates contemplated thereby or delivered in connection therewith.
"TRANSFER" means (i), as a noun, any transfer, sale, assignment,
exchange, charge, pledge, gift, hypothecation, conveyance, encumbrance or other
disposition whether direct or indirect, voluntary or involuntary, by operation
of law or otherwise and (ii), as a verb, directly or indirectly, voluntarily or
involuntarily, by operation of law or otherwise, to transfer, sell, assign,
exchange, charge, pledge, give, hypothecate, convey, encumber or otherwise
dispose of.
SCHEDULE A
Managers and Officers
Officer Title
------- -----
Xxxx Xxxxxxx Principal Executive Officer and President
Xxxxxxx X. Xxxxxxxxxx Principal Accounting Officer, Principal
Financial Officer and Treasurer
Xxx Xxxxx Vice President
Xxxxxx Xxx Vice President
Xxxxx X. Xxxxxxx Vice President
Xxxxxxx X. Xxxxxxxx Secretary
Xxxx X. Oh Assistant Secretary
MANAGER
Xxxxxx X. Xxxxx Manager
Xxxxxxxxxxx X. Xxxxxxx Manager
Xxxx Xxxxxxx Manager
Xxxxx X. Xxxxx Independent Manager
