Exhibit 3.2
================================================================================
WFS FINANCIAL INC,
as Member,
and
▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
as Special Member
----------------------------
WDS RECEIVABLES LLC
OPERATING AGREEMENT
Dated as of February 27, 2006
----------------------------
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions....................................................1
Section 1.02. Other Definitional Provisions..................................4
ARTICLE TWO
ORGANIZATION OF COMPANY
Section 2.01. Name and Office................................................4
Section 2.02. Registered Office..............................................4
Section 2.03. Registered Agent...............................................4
Section 2.04. Members........................................................5
Section 2.05. Execution, Delivery and Filing of Articles.....................5
Section 2.06. Execution of Instruments.......................................6
ARTICLE THREE
PURPOSES
Section 3.01. Purposes.......................................................6
Section 3.02. Powers.........................................................7
ARTICLE FOUR
MANAGEMENT
Section 4.01. Board of Directors.............................................7
Section 4.02. Powers.........................................................8
Section 4.03. Meeting of the Board of Directors..............................8
Section 4.04. Quorum; Acts of the Board......................................8
Section 4.05. Electronic Communications......................................8
Section 4.06. Committees of Directors........................................8
Section 4.07. Compensation of Directors; Expenses............................9
Section 4.08. Removal of Directors...........................................9
Section 4.09. Directors as Agents............................................9
Section 4.10. Limitations on the Company's Activities........................9
Section 4.11. Independent Director..........................................12
Section 4.12. Officers......................................................12
i
Page
----
ARTICLE FIVE
CONTRIBUTIONS; PROFITS AND LOSSES; DISTRIBUTIONS
Section 5.01. Capital Contributions.........................................13
Section 5.02. Additional Contributions......................................13
Section 5.03. Allocation of Profits and Losses..............................13
Section 5.04. Distributions.................................................13
ARTICLE SIX
BOOKS AND RECORDS; REPORTS
Section 6.01. Books and Records.............................................13
Section 6.02. Reports.......................................................14
ARTICLE SEVEN
EXCULPATION AND INDEMNIFICATION; LIMITED LIABILITY
Section 7.01. Exculpation and Indemnification...............................14
Section 7.02. Limited Liability.............................................15
Section 7.03. Other Business................................................15
ARTICLE EIGHT
ASSIGNMENT; RESIGNATION; DISSOLUTION
Section 8.01. Assignments...................................................16
Section 8.02. Resignation...................................................16
Section 8.03. Admission of Additional Members...............................16
Section 8.04. Dissolution...................................................16
Section 8.05. Waiver of Partition, Nature of Interest.......................17
ARTICLE NINE
MISCELLANEOUS
Section 9.01. Amendments....................................................17
Section 9.02. Benefits of Agreement; No Third-Party Rights..................17
Section 9.03. Severability of Provisions....................................18
Section 9.04. Entire Agreement..............................................18
Section 9.05. Binding Agreement.............................................18
Section 9.06. Governing Law.................................................18
Section 9.07. Counterparts..................................................18
Section 9.08. Notices.......................................................18
Section 9.09. Effectiveness.................................................18
ii
Page
----
EXHIBITS
Exhibit A - Members; Capital Contributions; Membership Interest........A-1
Exhibit B - Management Agreement.......................................B-1
Exhibit C - Directors..................................................C-1
iii
OPERATING AGREEMENT
This Operating Agreement, dated as of February 27, 2006, is between WFS
Financial Inc, as the sole equity member (the "Member"), and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as
the Special Member (as defined in Section 1.01).
RECITALS
WHEREAS, the parties desire to form WDS Receivables LLC (the "Company")
as a limited liability company pursuant to and in accordance with Chapter 86 of
the Nevada Revised Statutes (2003).
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. As used herein, the following terms shall
have the following meanings:
"Affiliate" of any Person means any other Person that (i) directly or
indirectly controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any employee benefit plan) or (ii) is an officer, director,
member or partner of such Person. For purposes of this definition, a Person
shall be deemed to be "controlled by" another Person if such other Person
possesses, directly or indirectly, the power (i) to vote 5% or more of the
securities (on a fully diluted basis) having ordinary voting power for the
election of directors, members or managing partners of such Person or (ii) to
direct or cause the direction of the management and policies of such Person,
whether by contract or otherwise.
"Agreement" means this Operating Agreement, together with the Exhibits
hereto.
"Articles of Organization" means the Articles of Organization of the
Company filed with the Nevada Secretary of State on February 27, 2006.
"Asset-Backed Securities" has the meaning set forth in Section 3.01(b).
"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 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 Chapter 86.031 of the NRS.
"Basic Documents" means this Agreement, the Management Agreement and
all documents and certificates contemplated thereby or delivered in connection
this Agreement, the Management Agreement, the formation of a Securitization
Trust or the issuance of Securities.
"Board" or "Board of Directors" means the Board of Directors of the
Company.
"Company" means WDS Receivables LLC, a Nevada limited liability
company.
"Covered Persons" has the meaning set forth in Section 7.01(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. Each Director is hereby designated as a
"manager" of the Company within the meaning of Chapters 86.071 and 86.291 of the
NRS.
"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 or officer of the Company or any of
its Affiliates (other than his or her service as an Independent Director of the
Company), (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).
An individual that otherwise satisfies the foregoing shall not be disqualified
from serving as an Independent Director of the Company if such individual is at
the time of initial appointment, or at any time while serving as an Independent
Director of the Company, an Independent Director of a Special Purpose Entity
affiliated with the Company or the Member.
"Management Agreement" means the agreement of the Directors
substantially in the form attached hereto as Exhibit B.
"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,
or to institute proceedings to have the Company be adjudicated bankrupt or
insolvent, or consent to the institution of Bankruptcy 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
2
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 WFS Financial Inc, as the initial member of the Company,
and includes any Person admitted as an additional member of the Company or a
substitute member of the Company pursuant to the provisions of this Agreement,
each in its capacity as a member of the Company; provided, however, the term
"Member" shall not include the Special Member.
"Nevada Secretary of State" means the Secretary of State of the State
of Nevada.
"NRS" means the Nevada Revised Statutes (2003).
"Obligations" shall mean the indebtedness, liabilities and obligations
of the Company under or in connection with this Agreement, the other Basic
Documents or any related document in effect as of any date of determination.
"Officer" means an officer of the Company described in Section 4.12.
"Officer's Certificate" means a certificate signed by any Officer who
is authorized to act for the Company in matters relating to the Company.
"Person" means any natural or legal person, including any individual,
corporation, partnership, joint venture, association, limited liability company,
joint stock company, trust, business trust, bank, trust company, estate
(including any beneficiaries thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"Rating Agency" means each nationally recognized rating agency that has
rated any Securities at the request of the Company or any Affiliate thereof that
have been issued and are outstanding pursuant to any pooling and servicing
agreement, indenture, trust agreement or other similar agreement entered into by
the Company or any of its Affiliates.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given ten days' prior notice thereof and that each
of the Rating Agencies shall have notified the Company in writing that such
action will not result in a reduction or withdrawal of its-then current rating
of any Securities.
"Receivables" has the meaning set forth in Section 3.01(b).
"Securities" has the meaning set forth in Section 3.01(c).
"Securitization Trust" has the meaning set forth in Section 3.01(c).
"Special Member" means, upon such person's admission to the Company as
a member of the Company pursuant to Section 2.04(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 and shall be a Noneconomic Member as defined in NRS 86.095.
3
"Special Purpose Entity" is an entity whose organizational documents
contain restrictions on its activities and impose requirements intended to
preserve its separateness that are substantially similar to those of the
Company, and provide, inter alia, that it is (i) organized for a limited
purpose, (ii) has restrictions on its ability to incur indebtedness, dissolve,
liquidate, consolidate, merge and/or sell assets, (iii) may not file voluntarily
a bankruptcy petition on its own behalf (and/or on behalf of certain Affiliates)
without the consent of the Independent Director(s) and (iv) shall conduct itself
(and/or cause certain Affiliates to conduct themselves) in accordance with
certain "separateness covenants," including, but not limited to, the maintenance
of books, records, bank accounts and assets separate from those of any other
Person.
Section 1.02. Other Definitional Provisions. When used in this
Agreement and in any certificate or other document made or delivered pursuant
hereto, unless a contrary intention appears: (i) a term has the meaning assigned
to it; (ii) an accounting term not otherwise defined has the meaning assigned to
it in accordance with generally accepted accounting principles in effect in the
United States from time to time; (iii) "or" is not exclusive; (iv) "including"
means including without limitation; (v) words in the singular include the plural
and words in the plural include the singular; (vi) any agreement, instrument or
statute defined or referred to herein or in any instrument or certificate
delivered in connection herewith means such agreement, instrument or statute as
from time to time amended, modified or supplemented and includes (in the case of
agreements or instruments) references to all attachments thereto and instruments
incorporated therein; (vii) references to a Person are also to its successors
and permitted assigns; (viii) the words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision hereof; (ix) references
contained herein to Section, Schedule and Exhibit, as applicable, are references
to Sections, Schedules and Exhibits in this Agreement unless otherwise
specified; and (x) references to "writing" include printing, typing, lithography
and other means of reproducing words in a visible form.
ARTICLE TWO
ORGANIZATION OF COMPANY
Section 2.01. Name and Office. The name of the limited liability
company formed hereby is WDS Receivables LLC, and its office shall be located at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ or such other location as may
hereafter be determined by the Member.
Section 2.02. Registered Office. The address of the registered office
of the Company in the State of Nevada is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇.
Section 2.03. Registered Agent. The name and address of the registered
agent of the Company for service of process on the Company in the State of
Nevada is Corporation Trust Company of Nevada, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇.
4
Section 2.04. Members.
(a) The mailing address of the Member is set forth on Exhibit A hereto.
The Member was admitted to the Company as a member of the Company upon its
execution of a counterpart signature page to this Agreement.
(b) Subject to Section 4.10, 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 (i) upon an assignment by the Member of
all of its limited liability company interest in the Company and the admission
of the transferee pursuant to Section 8.01 or (ii) the resignation of the Member
and the admission of an additional member of the Company pursuant to Sections
8.02 and 8.03), each person acting as an Independent Director pursuant to
Section 4.11 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 4.11; provided, however, the Special Member shall automatically cease to
be a member of the Company upon the admission to the Company of a substitute
Member. The 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. 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 NRS, a 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 the merger, consolidation or
conversion of the Company. In order to implement the admission to the Company of
the Special Member, the person acting as an Independent Director pursuant to
Section 4.11 shall execute a counterpart to this Agreement. Prior to its
admission to the Company as Special Member, the person acting as an Independent
Director pursuant to Section 4.11 shall not be a member of the Company.
Section 2.05. Execution, Delivery and Filing of Articles.
(a) ▇▇▇▇▇▇ ▇▇▇▇▇ was authorized to and has executed, delivered and
filed the Articles of Organization with the Nevada Secretary of State. Upon the
execution of this Agreement, her authorization ceased, and the Member and any
officer thereof described in Section 2.06, thereupon became authorized to take
any further actions with respect to the execution, delivery and filing of any
other certificates (and any amendments and/or restatements thereof) necessary
for the Company to qualify to do business in any jurisdiction in which the
Company may wish to conduct business.
(b) The existence of the Company as a separate legal entity shall
continue until cancellation of the Articles of Organization as provided in the
NRS.
5
Section 2.06. Execution of Instruments. All agreements, repurchase
agreements, reverse repurchase agreements, swap or forward agreements,
indentures, mortgages, deeds, conveyances, transfers, certificates,
declarations, receipts, discharges, releases, satisfactions, settlements,
petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and
other instruments or documents may be signed, executed, acknowledged, verified,
delivered or accepted on behalf of the Company by the President, any Vice
President, any Assistant Vice President, or the Secretary or any Assistant
Secretary; provided, however, that where required, any such instrument shall be
attested by one of such Officers other than the Officer executing such
instrument. Any such instrument may also be executed, acknowledged, verified,
delivered or accepted on behalf of the Company in such other manner and by such
other Officers as the Board of Directors may from time to time direct. The
provisions of this Section are supplementary to any other provisions of this
Agreement. Except as may otherwise be required by law, any such agreements,
repurchase agreements, reverse repurchase agreements, swap or forward
agreements, indentures, mortgages, deeds, conveyances, transfers, certificates,
declarations, receipts, discharges, releases, satisfactions, settlements,
petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and
other instruments or documents executed and delivered as aforesaid shall be
binding on the Company and shall be deemed to be authorized by the Board of
Directors.
ARTICLE THREE
PURPOSES
Section 3.01. Purposes. The purpose to be conducted or promoted by the
Company is to engage in the following activities:
(a) to file, as registrant, one or more registration
statements on Form S-1 or Form S-3 and any pre- or post-effective
amendments thereto with the Securities and Exchange Commission with
regard to the Securities described below;
(b) to acquire from time to time, own, hold, sell, assign,
pledge and otherwise deal in retail installment sales contracts and
installment loans (including participation interests in such contracts
and loans), purchase money notes or other notes between motor vehicle
dealers or lenders and purchasers of new and used automobiles,
minivans, sport utility vehicles, light-duty trucks, motorcycles or
commercial vehicles (the "Receivables") and/or securities issued by
trusts or special purpose entities sponsored by one or more Affiliates
of the Company, the assets of which primarily consist, directly or
indirectly, of Receivables (the "Asset-Backed Securities");
(c) to act as settlor or grantor of one or more trusts or
special purpose entities (each, a "Securitization Trust") formed
pursuant to a trust agreement or other agreement for the purpose of
issuing one or more series or classes of certificates, bonds, notes or
other evidences of interest or indebtedness (collectively,
"Securities") secured by or representing beneficial interests in the
Receivables and Asset-Backed Securities;
(d) to acquire, lease, own, hold, sell, transfer, convey,
dispose of, pledge, assign, borrow money against, finance, refinance or
otherwise deal with, publicly or privately and whether with unrelated
third parties or with affiliated entities, retail
6
installment sales contracts, installment loans, purchase money notes or
other notes between motor vehicle dealers or lenders and purchasers of
Receivables;
(e) to acquire Securities or other property of a
Securitization Trust (including remainder interests in collateral or
reserve accounts) or any interest in any of the foregoing;
(f) to issue, authorize, sell and deliver Securities or other
instruments secured or collateralized by the Securities;
(g) to own equity interests in other limited liability
companies or partnerships whose purposes are substantially restricted
to those described in clauses (a) through (f) above;
(h) to borrow money but only to the extent that such borrowing
is permitted by the terms of the transactions contemplated by clauses
(a) through (g) above; and
(i) to (i) negotiate, authorize, execute, deliver or assume or
perform the obligations under any agreement, instrument or document
relating to the activities set forth in clauses (a) through (h) above,
including the Basic Documents and (ii) 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 Nevada that are
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.
Section 3.02. Powers. Subject to Section 4.10, the Company,
and the Board of Directors and the Officers on behalf of the Company,
shall have and exercise all (i) powers necessary, convenient or
incidental to accomplish its purposes as set forth in Section 3.01 and
(ii) the powers and rights conferred upon limited liability companies
formed pursuant to the NRS.
ARTICLE FOUR
MANAGEMENT
Section 4.01. Board of Directors. Subject to Section 4.10, the business
and affairs of the Company shall be managed by or under the direction of a Board
of one or more Directors designated by the Member. Subject to Section 4.11, 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
4.11. The initial number of Directors shall be three, one of whom shall be an
Independent Director. 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. A Director need not be a
Member. The initial Directors designated by the Member are listed on Exhibit C
hereto.
7
Section 4.02. Powers. Subject to Section 4.10, 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 Section 3.01, the Board of Directors
has the authority to bind the Company.
Section 4.03. Meeting of the Board of Directors. 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 or the Secretary 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.
Section 4.04. 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.
Section 4.05. 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.
Section 4.06. Committees of Directors.
(a) 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.
(b) 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.
(c) Any such committee, to the extent provided in the resolution of the
Board adopted pursuant to Section 4.06(a), and subject to, in all cases,
Sections 4.10 and 4.11, shall have and may exercise all the powers and authority
of the Board in the management of the business and
8
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.
Section 4.07. 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.
Section 4.08. 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 4.11, any
vacancy caused by any such removal or expulsion may be filled by action of the
Member.
Section 4.09. Directors as Agents. To the extent of their powers set
forth in this Agreement and subject to Section 4.10, 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. Except as provided in this Agreement or in a resolution of the
Directors, a Director may not bind the Company.
Section 4.10. Limitations on the Company's Activities.
(a) This Section is being adopted in order to comply with certain
provisions required in order to qualify the Company as a "special purpose"
entity.
(b) The Member shall not, so long as any Obligation is outstanding,
amend, alter, change or repeal the definition of "Independent Director", Article
One or Sections 2.04(c), 3.01, 3.02, 4.01, 4.02, 4.03, 4.05, 4.06, 4.07, 4.08,
4.09, 4.10, 4.11, 5.04, 7.01, 8.01, 8.02, 8.03, 8.04, 8.05, 9.01 or 9.02 of this
Agreement without the unanimous written consent of the Board (including the
Independent Director). Subject to this Section, the Member reserves the right to
amend, alter, change or repeal any provisions contained in this Agreement in
accordance with Section 9.01.
(c) 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, neither the Member nor the Board 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 Member
and the Board (including the Independent Director), to take any Material Action;
provided, however, that 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.
(d) The Board and the 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
9
any such right or franchise if: (i) 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 and (ii) the Rating Agency Condition is satisfied. The Board also shall
cause the Company to:
(1) maintain its own separate books and records and bank
accounts;
(2) 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;
(3) have a Board of Directors separate from that of the Member
and any other Person;
(4) cause to be filed its own tax returns, if any, as may be
required under applicable law, to the extent (A) not part of a
consolidated group filing a consolidated return or returns or (B) not
treated as a division for tax purposes of another taxpayer, and pay any
taxes so required to be paid under applicable law;
(5) except as contemplated by the Basic Documents, not
commingle its assets with assets of any other Person;
(6) conduct its business in its own name and strictly comply
with all organizational formalities to maintain its separate existence;
(7) maintain separate financial statements;
(8) pay its own liabilities;
(9) maintain an arm's length relationship with its Affiliates
and the Member;
(10) pay the salaries of its own employees, if any;
(11) not hold out its credit or assets as being available to
satisfy the obligations of others;
(12) allocate fairly and reasonably any overhead for shared
office space;
(13) use separate stationery, invoices and checks;
(14) except as contemplated by the Basic Documents, not pledge
its assets for the benefit of any other Person;
(15) correct any known misunderstanding regarding its separate
identity and refrain from engaging in any activity that compromises the
separate legal identity of the Company;
(16) maintain adequate capital in light of its contemplated
business purpose, transactions and liabilities;
10
(17) 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 Nevada limited liability company
formalities;
(18) not acquire any securities or assume any obligation or
liability of the Member; and
(19) 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.
The failure of the Company, or the Member or 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.
(e) So long as any Obligation is outstanding, the Board shall not cause
or permit the Company to:
(1) except as contemplated by the Basic Documents, guarantee
any obligation of any Person, including any Affiliate;
(2) engage, directly or indirectly, in any business other than
the actions required or permitted to be performed under Section 3.01,
the Basic Documents or this Section;
(3) incur, create or assume any indebtedness other than as
expressly permitted under the Basic Documents;
(4) 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
Basic Documents and may make any advance required or expressly
permitted to be made pursuant to any provisions of the Basic Documents
and permit the same to remain outstanding in accordance with such
provisions;
(5) 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 Basic Documents;
(6) form, acquire or hold any subsidiary (whether corporate,
partnership, limited liability company or other); or
(7) sell, pledge, transfer, assign or otherwise convey the
interest of the Member.
11
Section 4.11. Independent Director. As 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, 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 4.10. No resignation or
removal of an Independent Director, and no appointment of a successor
Independent Director, shall be effective until such successor shall have (i)
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) executed a counterpart to this Agreement as required by
Section 2.04(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, in exercising his rights and performing his
duties under this Agreement, the Independent Director shall have a fiduciary
duty of loyalty and care similar to that of a director of a business corporation
organized under the Chapter 78 of the NRS. No Independent Director shall at any
time serve as trustee in bankruptcy for any Affiliate of the Company.
Section 4.12. Officers.
(a) Officers of the Company. The Officers of the Company shall consist
of a President, a Secretary, a Treasurer and such Vice Presidents, Assistant
Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers
as the Board of Directors may from time to time elect. Any two or more offices
may be held by the same person, but no Officer may act in more than one capacity
where action of two or more Officers is required.
(b) Election and Term. The Officers of the Company shall be elected by
the Board of Directors or in such other manner as may be approved by the Board
of Directors, and each Officer shall hold office until his death, resignation,
retirement, removal, or disqualification or until his successor shall have been
elected and qualified.
(c) Compensation of Officers. The compensation of all Officers of the
Company shall be fixed by the Board of Directors or in such other manner as may
be approved by the Board of Directors and no Officer shall serve the Company in
any other capacity and receive compensation therefor unless such additional
compensation is authorized by the Board of Directors.
(d) Removal. Any Officer or agent elected or appointed by the Board of
Directors may be removed with or without cause or for any reason whatsoever.
(e) Bonds. The Company may require any Officer, agent or employee of
the Company to give bond to the Company, with sufficient sureties, conditioned
on the faithful performance of the duties of his respective office or position,
and to comply with such other conditions as may from time to time be required by
the Company.
(f) Officers Acting as Assistant Secretaries. Notwithstanding anything
contained in this Agreement, any Vice President (including any Senior Vice
President or any Assistant Vice
12
President) shall have, by virtue of his office, and by authority of this
Section, the authority, from time to time, to act as an Assistant Secretary of
the Company, and to such extent, said Officers are appointed to the office of
Assistant Secretary.
(g) 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 4.10, the actions of the Officers
taken in accordance with such powers shall bind the Company.
(h) Duties of Board and Officers. Except to the extent otherwise
provided herein, each Director and Officer shall have a fiduciary duty of
loyalty and care similar to that of directors and officers of business
corporations organized under the Title 7 of the NRS.
ARTICLE FIVE
CONTRIBUTIONS; PROFITS AND LOSSES; DISTRIBUTIONS
Section 5.01. Capital Contributions. The Member has contributed to the
Company property of an agreed value as listed on Exhibit A hereto. In accordance
with Section 2.04(c), the Special Member shall not be required to make any
capital contributions to the Company.
Section 5.02. 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. To the extent
that the Member makes an additional capital contribution to the Company, the
Member shall revise Exhibit A. The provisions of this Agreement, including this
Section, 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 5.03. Allocation of Profits and Losses. The Company's profits
and losses shall be allocated to the Member.
Section 5.04. Distributions. Distributions shall be made to the Member
at the times and in the aggregate amounts determined by the Board.
Notwithstanding any provision to the contrary contained in this Agreement, the
Company shall not be required to make a distribution to the Member on account of
its interest in the Company if such distribution would violate Chapter 86.343 of
the NRS or any other applicable law or any Basic Document.
ARTICLE SIX
BOOKS AND RECORDS; REPORTS
Section 6.01. 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
13
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, 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 applicable law. The Company's
books of account shall be kept using the method of accounting determined by the
Member. The Company's independent auditor, if any, shall be an independent
public accounting firm selected by the Member.
Section 6.02. Reports.
(a) The Board shall use diligent efforts to cause to be prepared and
delivered to the Member, 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:
(1) a balance sheet of the Company;
(2) an income statement of the Company for such fiscal year; and
(3) a statement of the Member's capital account.
(b) The Board shall, after the end of each fiscal year, use reasonable
efforts to cause the Company's accountants, if any, to prepare and transmit to
the Member as promptly as possible any such 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.
ARTICLE SEVEN
EXCULPATION AND INDEMNIFICATION; LIMITED LIABILITY
Section 7.01. Exculpation and Indemnification.
(a) Neither the Member nor the Special Member nor any Officer,
Director, employee 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 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
14
incurred by such Covered Person by reason of such Covered Person's gross
negligence or willful misconduct with respect to such acts or omissions;
provided, however, that any indemnity under this Section 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 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.
(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, liabilities or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
(e) To the extent that, at law or in equity, a Covered Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Company or to any other Covered Person, a Covered Person acting under this
Agreement shall not be liable to the Company or to any other Covered Person for
its good faith reliance on the provisions of this Agreement or any approval or
authorization granted by the Company or any other Covered Person. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities
of a Covered Person otherwise existing at law or in equity, are agreed by the
Member and the Special Member to replace such other duties and liabilities of
such Covered Person.
(f) The provisions of this Section shall survive any termination of
this Agreement,
Section 7.02. Limited Liability. Except as otherwise expressly provided
by the NRS, 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, 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 7.03. Other Business. The Member, the Special Member and any of
their respective Affiliates 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.
15
ARTICLE EIGHT
ASSIGNMENT; RESIGNATION; DISSOLUTION
Section 8.01. Assignments. Subject to Section 8.03, the Member may
assign in whole or in part its limited liability company interest in the
Company. If the Member transfers all of its limited liability company interest
in the Company pursuant to this Section, the transferee 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. 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 in
compliance with the Basic Documents 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 8.02. Resignation. So long as any Obligation is outstanding,
the Member may not resign, except as permitted under the Basic Documents and if
the Rating Agency Condition is satisfied. If the Member is permitted to resign
pursuant to this Section, an additional member of the Company shall be admitted
to the Company, subject to Section 8.03, 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 8.03. 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; provided, however, that notwithstanding the foregoing, so long as
any Obligation remains outstanding, no additional Member may be admitted to the
Company unless the Rating Agency Condition is satisfied.
Section 8.04. Dissolution.
(a) Subject to Section 4.10, 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 NRS
or (ii) the entry of a decree of judicial dissolution under Chapter 86.495 of
the NRS. Upon the occurrence of any event that causes the last remaining member
of the Company to cease to be a member of the Company, to the fullest extent
permitted by law, the personal representative of such member is hereby
authorized to, and shall, within 90 days after the occurrence of the event that
terminated the continued membership of such member in the Company, agree in
writing (i) to continue the Company and (ii) to the admission of the personal
representative or its nominee or designee, as the case may be, as a substitute
member of the Company, effective as of
16
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, (i) the
Bankruptcy of the Member or a Special Member shall not cause the 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 and (ii) each of the Member and the Special Member waives
any right it might have to agree in writing to dissolve the Company upon the
Bankruptcy of the Member or a Special Member, or the occurrence of an event that
causes the Member or a Special Member to cease to be a member of the Company.
(c) 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 Chapter
86.521 of the NRS.
(d) 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 Articles of Organization
shall have been canceled in the manner required by the NRS.
Section 8.05. 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 5.04. The interest of the Member in the Company is personal
property.
ARTICLE NINE
MISCELLANEOUS
Section 9.01. Amendments. Subject to Section 4.10, this Agreement maybe
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 convert or
supplement any provision in a manner consistent with the intent of this
Agreement and the other Basic Documents.
Section 9.02. 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 a Special Member.
Nothing in this Agreement shall be deemed to
17
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 (except as provided in
Section 9.05).
Section 9.03. 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 9.04. Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof.
Section 9.05. Binding Agreement. Notwithstanding any other provision of
this Agreement, the Member agrees that this Agreement, including Sections 3.01,
3.02, 4.01, 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 7.01,
8.01, 8.02, 8.03, 8.04, 9.01, 9.02 and 9.05, 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. In addition, the Independent
Director shall be an intended beneficiary of this Agreement.
Section 9.06. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Nevada (without regard to conflict of
laws principles), all rights and remedies being governed by said laws.
Section 9.07. 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 9.08. 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 2.01, (b) in the case of the Member, to the
Member at its address as listed on Exhibit A 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.
Section 9.09. Effectiveness. Pursuant to Chapter 86.286(2) of the NRS,
this Agreement shall be effective as of February 27, 2006.
18
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Agreement as of the 27th day of February 2006.
MEMBER:
WFS FINANCIAL INC
By: J. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
SPECIAL MEMBER:
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
EXHIBIT A
NAME OF MEMBER
Agreed Value of
Name Mailing Address Capital Contribution Membership Interest
---- --------------- -------------------- -------------------
WFS Financial Inc 23 Pasteur $1,000.00 100%
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
A-1
EXHIBIT B
MANAGEMENT AGREEMENT
February 27, 2006
WDS Receivables LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Re: WDS Receivables LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned (each, a
"Person"), who have been designated as directors of WDS Receivables LLC, a
Nevada limited liability company (the "Company"), in accordance with the
Operating Agreement of the Company, dated as of February 27 2006, as it may be
amended or restated from time to time (the "Operating Agreement"), hereby agree
as follows:
1._______Each of the undersigned accepts such Person's rights and
authority as a Director under the Operating Agreement and agrees to perform and
discharge such Person's duties and obligations as a Director under the Operating
Agreement, and further agrees that such rights, authorities, duties and
obligations under the Operating 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 Operating Agreement. Each of the
undersigned agrees and acknowledges that it has been designated as a "manager"
of the Company within the meaning of Chapter 86.291 of the Nevada Revised
Statutes (2003).
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 a 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 NEVADA AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Capitalized terms used herein that are not otherwise defined herein
shall have the meanings ascribed thereto in the Operating Agreement.
B-1
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 day and year first above written.
--------------------------------
--------------------------------
--------------------------------
B-2
EXHIBIT C
DIRECTORS
C-1