Exhibit 3.1
EXECUTION COPY
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
M&I DEALER AUTO SECURITIZATION, LLC
This Amended and Restated Limited Liability Company Agreement (together
with the schedules attached hereto, this "Agreement") of M&I Dealer Auto
Securitization, LLC (the "Company") which amends and restates that certain
Limited Liability Company Agreement of M&I Dealer Auto Securitization, LLC,
dated as of November 29, 2001, is entered into by M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Bank, as
the sole equity member (the "Member"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇,
as the Special Members (as defined on Schedule A hereto). Capitalized terms used
and not otherwise defined herein have the meanings set forth on Schedule A
hereto.
The Member, by execution of this Agreement, hereby continues the
Company as a limited liability company pursuant to and in accordance with the
Delaware Limited Liability Company Act (6 Del. C. (S) 18-101 et seq.), as
amended from time to time (the "Act"), and this Agreement, and hereby desires
that this Agreement be, and hereby is, the sole governing document of the
Company, superseding all prior agreements. The Special Members and Member,
hereby agree as follows:
Section 1. Name.
The name of the limited liability company continued hereby is M&I
Dealer Auto Securitization, LLC
Section 2. Principal Business Office.
The principal business office of the Company shall be located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as may
hereafter be determined by the Member.
Section 3. Registered Office.
The address of the registered office of the Company in the State of
Delaware is The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Trust
Center, in the City of Wilmington, County of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 4. Registered Agent.
The name and address of the registered agent of the Company for service
of process on the Company in the State of Delaware is The Corporation Trust
Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Trust Center, in the City of Wilmington,
County of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
MIDAS LLC Agreement
Section 5. Members.
(a) The mailing address of the Member is set forth on Schedule B
attached hereto.
(b) Subject to Section 9(j), the Member may act by written consent.
(c) Upon the occurrence of any event that causes the Member to cease
to be a member of the Company (other than (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 Sections 22 and 24, or (ii) the
resignation of the Member and the admission of an additional member of the
Company pursuant to Sections 23 and 24), each person acting as an Independent
Director pursuant to Section 10 shall, without any action of any Person and
simultaneously with the Member ceasing to be a member of the Company,
automatically be admitted to the Company as a Special Member and shall continue
the Company without dissolution. No Special Member may resign from the Company
or transfer its rights as Special Member unless (i) a successor Special Member
has been admitted to the Company as Special Member by executing a counterpart to
this Agreement, and (ii) such successor has also accepted its appointment as
Independent Director pursuant to Section 10; provided, however, 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
Director pursuant to Section 10 shall execute a counterpart to this Agreement.
Prior to its admission to the Company as Special Member, each person acting as
an Independent Director pursuant to Section 10 shall not be a member of the
Company.
Section 6. Certificates.
▇▇▇▇▇ Warns is hereby designated as an "authorized person" within the
meaning of the Act, and has executed, delivered and filed the Certificate of
Formation of the Company with the Secretary of State of the State of Delaware.
Upon the filing of the Certificate of Formation with the Secretary of State of
the State of Delaware, his powers as an "authorized person" ceased, and the
Member thereupon became the designated "authorized person" and shall continue as
the designated "authorized person" within the meaning of the Act. The Member or
an Officer shall execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in New York, Wisconsin and in any other jurisdiction in which the
Company may wish to conduct business.
The existence of the Company as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in the Act.
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Section 7. Purposes. The purpose to be conducted or promoted by the Company
is to engage in the following activities:
(a) (i) to purchase, accept capital contributions of or otherwise
acquire (A) motor vehicle retail installment sale contracts and motor vehicle
loans, including rights to payment of any interest, finance charges or fees and
any other rights with respect thereto (the "Receivables"), (B) security
interests in the motor vehicles financed by the Receivables (the "Financed
Vehicles") and any accessions thereto; (C) the rights to proceeds with respect
to the Receivables from claims on insurance policies covering the Financed
Vehicles and any rights of an originator of the Receivables in any rebates of
premiums and other amounts relating to insurance policies and other items
financed under the Receivables; (D) any property that shall have secured a
Receivable; (E) any rights of an originator with respect to any agreement under
which such originator has acquired Receivables originated by or through a motor
vehicle dealer; (F) any rights of an originator of the Receivables in any
documents or instruments or other property appurtenant or relating to the
Receivables; and (G) any and all proceeds of the foregoing (the property
described in clauses (B) through (G) above being called the "Related Assets");
(ii) to own, hold, service, sell, assign, transfer, pledge,
grant security interests in or otherwise exercise ownership
rights with respect to the Receivables and Related Assets;
(iii) to issue and sell one or more series of Securities;
(iv) to act as settlor or depositor of trusts or other entities
or to own equity interests in other limited liability
companies (whose purposes are restricted to those set forth
in this Section 7(a)), each of which is formed to issue
Securities (each, an "Issuer");
(v) to acquire, own, hold, transfer, assign, pledge, sell and
otherwise deal with any interests in an Issuer or
Securities issued by an Issuer;
(vi) to enter into, execute and deliver any underwriting
agreement, purchase or placement agreement relating to the
sale or placement of any securities issued by an Issuer,
any sale and servicing agreement, pooling and servicing
agreement, trust agreement, purchase agreement,
administration agreement, custodial agreement, insurance
agreement or any other agreement which may be required or
advisable to effect the administration or servicing of the
Receivables and Related Assets or the issuance and sale of
any Securities (each, a "Securitization Agreement"), and to
perform its obligations under each Securitization Agreement
to which it is a party;
(vii) to establish any reserve account, spread account or other
credit enhancement for the benefit of Securities issued by
the Company or any Issuer and to loan, transfer or
otherwise invest any proceeds from Receivables and Related
Assets and any other income as determined by the Board;
3 MIDAS LLC Agreement
(viii) to purchase financial guaranty insurance policies for the
benefit of any Security issued by the Company or any
Issuer;
(ix) to enter into any interest rate or basis swap, cap, floor
or collar agreements, currency exchange agreements or
similar hedging transactions relating to any Receivables
and Related Assets or for the benefit of any Security
issued by the Company or any Issuer;
(x) to prepare, execute and file with the Securities and
Exchange Commission registration statements, including a
prospectus and forms of prospectus supplements, relating to
Securities;
(xi) to prepare private placement memorandums relating to
Securities to be offered and sold privately;
(xii) for federal, state or local tax purposes, to serve as
"general partner" of any Issuer;
(xiii) to engage in any lawful act or activity and to exercise any
powers permitted to limited liability companies organized
under the laws of the State of Delaware that are related or
incidental to and necessary, convenient or advisable for
the accomplishment of the above-mentioned purposes.
(b) The Company, by or through the Member, or any Director or Officer
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, 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 Member or
any Director or Officer to enter into other agreements on behalf of the Company.
Section 8. Powers.
Subject to Section 9(j), the Company, and the Board of Directors and
the Officers of the Company on behalf of the Company, (i) shall have and
exercise all powers necessary, convenient or incidental to accomplish its
purposes as set forth in Section 7 and (ii) shall have and exercise all of the
powers and rights conferred upon limited liability companies formed pursuant to
the Act; provided, however, that neither the Company nor the Board of Directors
or officers of the Company on behalf of the Company shall have or exercise any
powers not permitted of "Qualifying SPEs" (within the meaning of the Statement
of Financial Accounting Standard No. 140 ("FAS 140")) under FAS 140 or any
successor accounting standard thereto.
Section 9. Management.
(a) Board of Directors. Subject to Section 9(j), the business and
affairs of the Company shall be managed by or under the direction of a Board of
one or more Directors designated by the Member. Subject to Section 10, the
Member may determine at any time in its
4 MIDAS LLC Agreement
sole and absolute discretion the number of Directors to constitute the Board.
The authorized number of Directors may be increased or decreased by the Member
at any time in its sole and absolute discretion, upon notice to all Directors,
and subject in all cases to Section 10. The initial number of Directors shall be
five, two of which shall be Independent Directors pursuant to Section 10. Each
Director elected, designated or appointed by the Member shall hold office until
a successor is elected and qualified or until such Director's earlier death,
resignation, expulsion or removal. Each Director shall execute and deliver the
Director Agreement. Directors need not be a Member. The initial Directors
designated by the Member are listed on Schedule D hereto.
(b) Powers. Subject to Section 9(j), the Board of Directors shall have the
power to do any and all acts necessary, convenient or incidental to or for the
furtherance of the purposes described herein, including all powers, statutory or
otherwise. Subject to Section 7, the Board of Directors has the authority to
bind the Company.
(c) Meeting of the Board of Directors. The Board of Directors of the
Company may hold meetings, both regular and special, within or outside the State
of Delaware. Regular meetings of the Board may be held without notice at such
time and at such place as shall from time to time be determined by the Board.
Special meetings of the Board may be called by the President on not less than
one day's notice to each Director by telephone, facsimile, mail, telegram or any
other means of communication, and special meetings shall be called by the
President or Secretary in like manner and with like notice upon the written
request of any one or more of the Directors.
(d) Quorum: Acts of the Board. At all meetings of the Board, a majority of
the Directors shall constitute a quorum for the transaction of business and,
except as otherwise provided in any other provision of this Agreement, the act
of a majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board. If a quorum shall not be present at any meeting
of the Board, the Directors present at such meeting may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee, as the case may be.
(e) Electronic Communications. Members of the Board, or any committee
designated by the Board, may participate in meetings of the Board, or any
committee, by means of telephone conference or similar communications equipment
that allows all Persons participating in the meeting to hear each other, and
such participation in a meeting shall constitute presence in Person at the
meeting. If all the participants are participating by telephone conference or
similar communications equipment, the meeting shall be deemed to be held at the
principal place of business of the Company.
(f) Committees of Directors.
(i) The Board may, by resolution passed by a majority of the whole
Board, designate one or more committees, each committee to
consist of one or more of the Directors of the Company. The Board
may designate one or
5 MIDAS LLC Agreement
more Directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the
committee.
(ii) In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not
disqualified from voting, whether or not such members constitute
a quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or
disqualified member.
(iii) Any such committee, to the extent provided in the resolution of
the Board, and subject to, in all cases, Sections 9(j) and 10,
shall have and may exercise all the powers and authority of the
Board in the management of the business and affairs of the
Company. Such committee or committees shall have such name or
names as may be determined from time to time by resolution
adopted by the Board. Each committee shall keep regular minutes
of its meetings and report the same to the Board when required.
(g) Compensation of Directors; Expenses. The Board shall have the
authority to fix the compensation of Directors. The Directors may be paid their
expenses, if any, of attendance at meetings of the Board, which may be a fixed
sum for attendance at each meeting of the Board or a stated salary as Director.
No such payment shall preclude any Director from serving the Company in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
(h) Removal of Directors. Unless otherwise restricted by law, any Director
or the entire Board of Directors may be removed or expelled, with or without
cause, at any time by the Member, and, subject to Section 10, any vacancy caused
by any such removal or expulsion may be filled by action of the Member.
(i) Directors as Agents. To the extent of their powers set forth in this
Agreement and subject to Section 9(j), the Directors are agents of the Company
for the purpose of the Company's business, and the actions of the Directors
taken in accordance with such powers set forth in this Agreement shall bind the
Company. Notwithstanding the last sentence of Section 18-402 of the Act, except
as provided in this Agreement or in a resolution of the Directors, a Director
may not bind the Company.
(j) Limitations on the Company's Activities.
(i) This Section 9(j) is being adopted in order to comply with
certain provisions required in order to qualify the Company as a
"special purpose" entity.
(ii) The Member shall not, so long as any Obligation is outstanding,
amend, alter, change or repeal the definition of "Independent
Director" or Sections 5(c), 7, 8, 9, 10, 16, 21, 22, 23, 24, 25,
26, 27, 31 or 32 or Schedule A of this Agreement without the
unanimous written consent of the Board (including all
Independent Directors). Subject to this Section 9(j), the
6 MIDAS LLC Agreement
Member reserves the right to amend, alter, change or repeal any
provisions contained in this Agreement in accordance with
Section 32.
(iii) Notwithstanding any other provision of this Agreement and any
provision of law that otherwise so empowers the Company, the
Member, the Board, any Officer or any other Person, 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 all Independent Directors), to take any
Material Action, provided, however, that the Board may not vote
on, or authorize the taking of, any Material Action, unless
there are at least two Independent Directors then serving in
such capacity.
(iv) 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 any such right or franchise if: (1) 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 (2) the Rating Agency Condition is satisfied. The
Board also shall cause the Company to:
(A) maintain its own books and records and bank accounts
separate from the Member or any other person;
(B) at all times hold itself out to the public and all other
Persons as a legal entity separate from the Member and any
other Person;
(C) have a Board of Directors separate from that of the Member
and any other Person;
(D) file its own tax returns, if any, as may be required under
applicable law, to the extent (1) not part of a consolidated
group filing a consolidated return or returns or (2) not
treated as a division for tax purposes of another taxpayer,
and pay any taxes so required to be paid under applicable
law;
(E) except as contemplated by the Transaction Documents, not
commingle its assets with assets of the Member or any other
Person;
(F) conduct its business in its own name and strictly comply
with all organizational formalities to maintain its separate
existence;
(G) maintain separate financial statements;
(H) pay its own liabilities only out of its own funds;
7 MIDAS LLC Agreement
(I) maintain an arm's length relationship with its Affiliates
and the Member;
(J) pay the salaries of its own employees, if any;
(K) not hold out its credit or assets as being available to
satisfy the obligations of others;
(L) 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;
(M) use separate stationery, invoices and checks;
(N) 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;
(O) correct any known misunderstanding regarding its separate
identity;
(P) maintain adequate capital in light of its contemplated
business purpose, transactions and liabilities;
(Q) cause its Board of Directors to meet at least annually or
act pursuant to written consent and keep minutes of such
meetings and actions and observe all other Delaware limited
liability company formalities;
(R) not acquire any securities of the Member; and
(S) cause the Directors, Officers, agents and other
representatives of the Company to act at all times with
respect to the Company consistently and in furtherance of
the foregoing and in the best interests of the Company.
Failure of the Company, 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.
(v) So long as any Obligation is outstanding, the Board shall not
cause or permit the Company to:
8 MIDAS LLC Agreement
(A) except as contemplated by the Transaction Documents,
guarantee or become obligated for the debts of any Person,
including any Affiliate;
(B) engage, directly or indirectly, in any business other than
the actions required or permitted to be performed under
Section 7, the Transaction Documents or this Section 9(j);
(C) incur, create or assume any indebtedness other than as
expressly permitted hereunder and under the Transaction
Documents;
(D) 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;
(E) to the fullest extent permitted by law, engage in any
dissolution, liquidation, consolidation, merger, asset sale
or transfer of ownership interests other than such
activities as are expressly permitted pursuant to any
provision of the Transaction Documents; or
(F) except as contemplated by Section 7(a), form, acquire or
hold any subsidiary (whether corporate, partnership, limited
liability company or other).
Section 10. Independent Director.
As long as any Obligation is outstanding, the Member shall cause the
Company at all times to have at least two Independent Directors who will be
appointed by the Member. To the fullest extent permitted by law, including
Section 18-1101(c) of the Act, the Independent Directors shall consider only the
interests of the Company, including its respective creditors, in acting or
otherwise voting on the matters referred to in Section 9(j)(iii). No resignation
or removal of an Independent Director, and no appointment of a successor
Independent Director, shall be effective until such successor (i) shall have
accepted his or her appointment as an Independent Director by a written
instrument, which may be a counterpart signature page to the Director Agreement,
and (ii) shall have executed a counterpart to this Agreement as required by
Section 5(c). In the event of a vacancy in the position of Independent Director,
the Member shall, as soon as practicable, appoint a successor Independent
Director. All right, power and authority of the Independent Directors shall be
limited to the extent necessary to exercise those rights and perform those
duties specifically set forth in this Agreement. Except as provided in the
second sentence of this Section 10, in exercising their rights and performing
their duties under this Agreement, any Independent Director shall have a
fiduciary duty of loyalty and care similar to that of a director of a business
corporation organized under the General Corporation
9 MIDAS LLC Agreement
Law of the State of Delaware. No Independent Director shall at any time serve as
trustee in bankruptcy for any Affiliate of the Company. The initial independent
directors of the Company are ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇.
Section 11. Officers.
(a) Officers. The initial Officers of the Company shall be designated
by the Member. The additional or successor Officers of the Company shall be
chosen by the Board and shall consist of at least a President, a Secretary and a
Treasurer. The Board of Directors may also choose one or more Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Any number of offices may be
held by the same person. The Board shall choose a President, a Secretary and a
Treasurer. The Board may appoint such other Officers and agents as it shall deem
necessary or advisable who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board. The salaries of all Officers and agents of the Company shall
be fixed by or in the manner prescribed by the Board. The Officers of the
Company shall hold office until their successors are chosen and qualified. Any
Officer may be removed at any time, with or without cause, by the affirmative
vote of a majority of the Board. Any vacancy occurring in any office of the
Company shall be filled by the Board. The initial Officers of the Company
designated by the Member are listed on Schedule E hereto.
(b) President. The President shall be the chief executive officer of
the Company, shall preside at all meetings of the Board, shall be responsible
for the general and active management of the business of the Company and shall
see that all orders and resolutions of the Board are carried into effect. The
President or any other Officer authorized by the President or the Board shall
execute all bonds, mortgages and other contracts, except: (i) where required or
permitted by law or this Agreement to be otherwise signed and executed,
including Section 7(b); (ii) where signing and execution thereof shall be
expressly delegated by the Board to some other Officer or agent of the Company,
and (iii) as otherwise permitted in Section 11(c).
(c) Vice President. In the absence of the President or in the event of
the President's inability to act, the Vice President, if any (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated by the Directors, or in the absence of any designation, then in the
order of their election), shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the President. The Vice Presidents, if any, shall perform such other duties and
have such other powers as the Board may from time to time prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall be
responsible for filing legal documents and maintaining records for the Company.
The Secretary shall attend all meetings of the Board and record all the
proceedings of the meetings of the Company and of the Board in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. The Secretary shall give, or shall cause to be given, notice of all
meetings of the Member, if any, and special meetings of the Board, and shall
perform such other duties as may be prescribed by the Board or the President,
under whose supervision the Secretary shall serve. The Assistant Secretary, or
if there be more than one, the Assistant Secretaries in the order determined by
the Board (or if there be no such determination, then in order of their
10 MIDAS LLC Agreement
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board may from time to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall have the
custody of the Company funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the Board.
The Treasurer shall disburse the funds of the Company as may be ordered by the
Board, taking proper vouchers for such disbursements, and shall render to the
President and to the Board, at its regular meetings or when the Board so
requires, an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability to
act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe.
(f) Officers as Agents. The Officers, to the extent of their powers set
forth in this Agreement or otherwise vested in them by action of the Board not
inconsistent with this Agreement, are agents of the Company for the purpose of
the Company's business and, subject to Section 9(j), the actions of the Officers
taken in accordance with such powers shall bind the Company.
(g) Duties of Board and Officers. Except to the extent otherwise
provided herein, each Director and Officer shall have a fiduciary duty of
loyalty and care similar to that of directors and officers of business
corporations organized under the General Corporation Law of the State of
Delaware.
Section 12. Limited Liability.
Except as otherwise expressly provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be the debts, obligations and liabilities solely of the
Company, and neither the Member nor the Special Members nor any Director shall
be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a Member, Special Member or Director of the
Company.
Section 13. Capital Contributions.
The Member has contributed to the Company property of an agreed value as
listed on Schedule B attached hereto. In accordance with Section 5(c), the
Special Members shall not be required to make any capital contributions to the
Company.
Section 14. Additional Contributions.
The Member is not required to make any additional capital contribution
to the Company. However, the Member may make additional capital contributions to
the Company at any time. To the extent that the Member makes an additional
capital contribution to the Company, the
11 MIDAS LLC Agreement
Member shall revise Schedule B of this Agreement. The provisions of this
Agreement, including this Section 14, are intended to benefit the 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 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.
Section 15. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the Member.
Section 16. Distributions.
Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Board. 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 Section 18-607 of the Act or any other applicable law
or any Transaction Document.
Section 17. Books and Records.
The Board shall keep or cause to be kept complete and accurate books of
account and records with respect to the Company's business. The books of the
Company shall at all times be maintained by the Board. The Member and its duly
authorized representatives shall have the right to examine the Company books,
records and documents during normal business hours. The Company, and the Board
on behalf of the Company, shall not have the right to keep confidential from the
Member any information that the Board would otherwise be permitted to keep
confidential from the Member pursuant to Section 18-305(c) of the Act. The
Company's 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 18. Reports.
(a) Within 60 days after the end of each fiscal quarter, the Board
shall cause to be prepared an unaudited report setting forth as of the end of
such fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a balance
sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter, an income
statement of the Company for such fiscal quarter.
(b) The Board shall use diligent efforts to cause to be prepared and
mailed 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:
12 MIDAS LLC Agreement
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such fiscal year; and
(iii) a statement of the Member's capital account.
(c) The Board of Directors shall, after the end of each fiscal year,
use reasonable efforts to cause the Company's independent 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 Nothing
in this Section 18 shall limit the Company from hiring a person or company to
perform its bookkeeping, accounting or other related services.
Section 19. Tax Classification.
Notwithstanding any other provision of this Agreement, no member shall
take any action inconsistent with the classification as a disregarded entity for
purposes of Treasury Regulation 301,7701-3.
Section 20. Other Business.
The Member, the Special Members and any Affiliate of the Member or the
Special Members may engage in or possess an interest in other business ventures
(unconnected with the Company) of every kind and description, independently or
with others. The Company shall not have any rights in or to such independent
ventures or the income or profits therefrom by virtue of this Agreement.
Section 21. Exculpation and Indemnification.
(a) Neither the Member nor the Special Members nor any Officer,
Director, employee or agent of the Company nor any employee, representative,
agent or Affiliate of the Member or the Special Members (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 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 21 by the Company shall be provided out of
and to the extent of Company assets
13 MIDAS LLC Agreement
only, and the Member and the Special Members 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
21 shall be payable from amounts allocable to any other Person pursuant to the
Transaction 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 21.
(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 Members to replace such other duties and liabilities of
such Covered Person.
(f) The foregoing provisions of this Section 21 shall survive any
termination of this Agreement.
Section 22. Assignments.
Subject to Section 24, the Member may assign all of 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 22,
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 Transaction 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.
14 MIDAS LLC Agreement
Section 23. Resignation.
So long as any Obligation is outstanding, the Member may not resign,
except as permitted under the Transaction Documents and if the Rating Agency
Condition is satisfied. If the Member is permitted to resign pursuant to this
Section 23, an additional member of the Company shall be admitted to the
Company, subject to Section 24, 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 24. 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 25. Dissolution.
(a) Subject to Section 9(j) 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 or 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 Sections 22 and 24, or
(ii) the resignation of the Member and the admission of an additional member of
the Company pursuant to Sections 23 and 24), to the fullest extent permitted by
law, the personal representative of such member is hereby authorized to, and
shall, within 90 days after the occurrence of the event that terminated the
continued membership of such member in the Company, agree in writing (i) to
continue the Company and (ii) to the admission of the personal representative or
its nominee or designee, as the case may be, as a substitute member of the
Company, effective as of the occurrence of the event that terminated the
continued membership of the last remaining member of the Company or the Member
in the Company.
(b) Notwithstanding any other provision of this Agreement, 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.
(c) Notwithstanding any other provision of this Agreement, each of the
Member and the Special Members waives any right it might have to agree in
writing to dissolve the Company
15 MIDAS LLC Agreement
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.
(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 Member in the manner provided for in this Agreement
and (ii) the Certificate of Formation shall have been canceled in the manner
required by the Act.
Section 26. 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 Members hereby
irrevocably waives any right or power that such Person might have to cause the
Company or any of its assets to be partitioned, to cause the appointment of a
receiver for all or any portion of the assets of the Company, to compel any sale
of all or any portion of the assets of the Company pursuant to any applicable
law or to file a complaint or to institute any proceeding at law or in equity to
cause the dissolution, liquidation, winding up or termination of the Company.
The Member shall not have any interest in any specific assets of the Company,
and the Member shall not have the status of a creditor with respect to any
distribution pursuant to Section 16 hereof. The interest of the Member in the
Company is personal property.
Section 27. 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 except for the provisions of Sections 5(c), 9(j), 10, 21(b), 24,
25(b) and 32(b) (such provisions the "Third Party Benefit Provisions"). Nothing
in this Agreement other than the Third Party Benefit Provisions shall be deemed
to create any right in any Person (other than Covered Persons) not a party
hereto, and this Agreement shall not be construed in any respect to be a
contract in whole or in part for the benefit of any third Person (except as
provided in Section 30 and except for the Third Party Benefit provisions).
Section 28. 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.
16 MIDAS LLC Agreement
Section 29. Entire Agreement.
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
Section 30. Binding Agreement.
Notwithstanding any other provision of this Agreement, the Member
agrees that this Agreement, including, without limitation, Sections 7, 8, 9, 10,
21, 22, 23, 24, 26, 27, 30 and 32, constitutes a legal, valid and binding
agreement of the Member, and is enforceable against the Member by the
Independent Directors, in accordance with its terms. In addition, the
Independent Directors shall be intended beneficiaries of this Agreement.
Section 31. Governing Law.
This Agreement shall be governed by and construed under the laws of the
State of Delaware (without regard to conflict of laws principles), all rights
and remedies being governed by said laws.
Section 32. Amendments.
Subject to Section 9(j), this Agreement may be modified, altered,
supplemented or amended pursuant to a written agreement executed and delivered
by the Member. Notwithstanding anything to the contrary in this Agreement, so
long as any Obligation is outstanding, this Agreement may not be modified,
altered, supplemented or amended without the consent of a Majority in Interest
and 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.
Notwithstanding any other provision of this Agreement, the Company may
amend Schedule B hereto without the prior written consent of any party.
Section 33. 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 34. Notices.
Any notices required to be delivered hereunder shall be in writing and
personally delivered, mailed or sent by telecopy, electronic mail or other
similar form of rapid transmission, and shall be deemed to have been duly given
upon receipt (a) in the case of the Company, to the Company at its address in
Section 2, (b) in the case of the Member, to the Member at its address as listed
on Schedule B attached hereto and (c) in the case of either of the foregoing, at
such other address as may be designated by written notice to the other party.
17 MIDAS LLC Agreement
Section 35. Effectiveness.
Pursuant to Section 18-201 (d) of the Act, this Agreement shall be
effective as of the date hereof.
18 MIDAS LLC Agreement
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Amended and Restated Limited Liability Company
Agreement as of the 10th day of October 2002.
MEMBER:
M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
S-1 MIDAS LLC Agreement
SPECIAL MEMBERS:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
S-2 MIDAS LLC Agreement
SCHEDULE A
Definitions
A. Definitions
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly Controlling or Controlled by or under direct or indirect common
Control with such Person.
"Agreement" means this Amended and Restated Limited Liability Company
Agreement of the Company, together with the schedules attached hereto, as
amended, restated or supplemented or otherwise modified from time to time.
"Bankruptcy" means, with respect to any Person, if such Person (i) makes
an assignment for the benefit of creditors, (ii) files a voluntary petition in
bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it
an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, (v) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding of this nature, (vi) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all or any
substantial part of its properties, or (vii) if 120 days after the commencement
of any proceeding against the Person seeking reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, 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 Directors" means the Board of Directors of the
Company.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on November
29, 2001, as amended or amended and restated from time to time.
"Company" means M&I Dealer Auto Securitization, LLC, a Delaware limited
liability company.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or general partnership or managing
member interests, by contract or otherwise. "Controlling" and "Controlled" shall
have correlative meanings. Without limiting the generality
Sch. A-1 MIDAS LLC Agreement
of the foregoing, a Person shall be deemed to Control any other Person in which
it owns, directly or indirectly, a majority of the ownership interests.
"Covered Persons" has the meaning set forth in Section 21(a).
"Debt Obligation" means, as of any date of determination, debt securities
issued by and loans in respect of money borrowed by the Company, provided,
however, that "Debt Obligation" does not include debt securities held by or
loans from the Member or its Affiliates.
"Director Agreement" means the agreement of the Directors in the form
attached hereto as Schedule C. The Director Agreement shall be deemed
incorporated into, and a part of, this Agreement.
"Directors" means the Persons elected to the Board of Directors from time
to time by the Member, including the Independent Directors, in their capacity as
managers of the Company. A Director is hereby designated as a "manager" of the
Company within the meaning of Section 18-101(10) of the Act.
"Financed Vehicle" has the meaning set forth in Section 7(a)(i).
"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 or any Affiliate whose purposes are restricted to those
substantially similar to those in Section 7); (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).
"Issuer" has the meaning set forth in Section 7(a)(iv).
"Majority in Interest" means the holders of Debt Obligations evidencing
more than 50% by outstanding principal amount of all Debt Obligations.
"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 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 M&I ▇▇▇▇▇▇▇▇ & Ilsley Bank, 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
Sch. A-2 MIDAS LLC Agreement
member of the Company; provided, however, the term "Member" shall not include
the Special Members.
"Obligations" shall mean any Securities and the indebtedness, liabilities
and obligations of the Company under or in connection with this Agreement, the
other Transaction Documents or any related document in effect as of any date of
determination.
"Officer" means an officer of the Company described in Section 11.
"Officer's Certificate" means a certificate signed by any Officer of the
Company who is authorized to act for the Company in matters relating to the
Company.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association, joint
stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.
"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 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 or qualification of the then
current rating by such Rating Agency of any of the Securities.
"Receivables" has the meaning set forth in Section 7(a)(i).
"Related Assets" has the meaning set forth in Section 7(a)(i).
"Security" means any bond, note, certificate or other security issued by
the Company or an Issuer and secured primarily by or evidencing beneficial
ownership interest in the Receivables and Related Assets;
"Securitization Agreement" has the meaning set forth in Section 7(a)(vi).
"Special Member" means, upon such person's admission to the Company as a
member of the Company pursuant to Section 5(c), a person acting as Independent
Director, in such person's capacity as a member of the Company. A Special Member
shall only have the rights and duties expressly set forth in this Agreement.
"Transaction Documents" means this Agreement, the Director Agreement, any
Securitization Agreement and all documents and certificates contemplated thereby
or delivered in connection therewith.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and
plural forms of the defined terms. The words "include" and "including" shall be
deemed to be followed by the phrase "without limitation." The terms "herein,"
"hereof" and "hereunder" and other words of
Sch. A-3 MIDAS LLC Agreement
similar import refer to this Agreement as a whole and not to any particular
Section, paragraph or subdivision. The Section titles appear as a matter of
convenience only and shall not affect the interpretation of this Agreement. All
Section, paragraph, clause, Exhibit or Schedule references not attributed to a
particular document shall be references to such parts of this Agreement.
Sch. A-4 MIDAS LLC Agreement
SCHEDULE B
Member
-----------------------------------------------------------------------------------------------------
Name Mailing Address Agreed Value of Membership
---- --------------- Capital Contribution Interest
-----------------------------------------------------------------------------------------------------
M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ $100.00 100%
-----------------------------------------------------------------------------------------------------
Sch. B-1 MIDAS LLC Agreement
SCHEDULE C
DIRECTOR AGREEMENT
October 10, 2002
M&I Dealer Auto Securitization, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Director Agreement
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned Persons,
who have been designated as directors of M&I Dealer Auto Securitization, LLC, a
Delaware limited liability company (the "Company"), in accordance with the
Amended and Restated Limited Liability Company Agreement of the Company, dated
as of October 10, 2002, as it may be amended or restated from time to time (the
"LLC Agreement"), hereby agree as follows:
1. Each of the undersigned accepts such Person's rights and authority
as a Director under the LLC Agreement and agrees to perform and discharge such
Person's duties and obligations as a Director under the LLC Agreement, and
further agrees that such rights, authorities, duties and obligations under the
LLC 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 LLC Agreement. Each of the undersigned agrees and
acknowledges that it has been designated as a "manager" of the Company within
the meaning of the Delaware Limited Liability Company Act.
2. So long as any Obligation is outstanding, each of the undersigned
agrees, solely in its capacity as a creditor of the Company on account of any
indemnification or other payment owing to the undersigned by the Company, not to
acquiesce, petition or otherwise invoke or cause the Company to invoke the
process of any court or governmental authority for the purpose of commencing or
sustaining 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 DIRECTOR AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Initially capitalized terms used and not otherwise defined herein have
the meanings set forth in the LLC Agreement.
This Director Agreement may be executed in any number of counterparts,
each of which shall be deemed an original of this Director Agreement and all of
which together shall constitute one and the same instrument.
[Signature page follows.]
2 Director Agreement of Seller
IN WITNESS WHEREOF, the undersigned have executed this Director
Agreement as of the day and year first above written.
By:___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By:___________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
By:___________________________________
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
S-1 Director Agreement of Seller
Sch. C-1 MIDAS LLC Agreement
SCHEDULE D
Directors
1. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
2. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
3. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
4. ▇▇▇▇▇ ▇▇▇▇▇▇▇
5. ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Sch. D-1 MIDAS LLC Agreement
SCHEDULE E
Officers
Officer Title
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Vice President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Treasurer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Secretary
Sch. E-1 MIDAS LLC Agreement