AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
USAA ACCEPTANCE, LLC
This Amended and Restated Limited Liability Company Agreement (together
with the schedules attached hereto, this "Agreement") of USAA Acceptance, LLC
(the "Company"), is entered into by USAA Federal Savings Bank, a federally
chartered savings association, as the sole equity member (the "Member"), and
Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxx, as the Independent Directors (as
defined on Schedule A hereto). Capitalized terms used and not otherwise defined
herein have the meanings set forth on Schedule A hereto.
WHEREAS, the Member has heretofore formed the Company pursuant to the
Delaware Limited Liability Company Act, 6 Del. C. ss.18-101, et seq., as
amended from time to time (the "Act"), by filing the Certificate of Formation
with the office of the Secretary of State of the State of Delaware on July 22,
2002, entering into a Limited Liability Company Agreement of the Company, dated
as of July 22, 2002 (the "Original Limited Liability Company Agreement"),
entering into an Amended and Restated Limited Liability Company Agreement,
dated as of September 27, 2002 (the "September 27, 2002 Agreement"); and
entering into an Amended and Restated Limited Liability Company Agreement,
dated as of February 25, 2004 (the "February 25, 2004 Agreement"); and
WHEREAS, the Member desires to continue the Company as a limited
liability company under the Act and to amend and restate the September 27, 2002
Agreement in its entirety.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
Section 1. Name.
The name of the limited liability company heretofore formed and continued
hereby is USAA Acceptance, LLC.
Section 2. Principal Business Office.
The principal business office of the Company shall be located at 0000
Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000, ATTN: Vice President,
Legal Counsel, or such other location as may hereafter be determined by the
Company Directors.
Section 3. Registered Office.
The address of the registered office of the Company in the State of
Delaware is c/o Wilmington Trust SP Services, Inc., 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxx xx Xxxxxxxx, 00000.
Section 4. Registered Agent.
The name and address of the registered agent of the Company for service
of process on the Company in the State of Delaware is Wilmington Trust SP
Services, Inc., 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxx xx Xxxxxxxxxx,
Xxxxxx of Xxx Xxxxxx, Xxxxx xx Xxxxxxxx, 00000.
Section 5. Members.
(a) The mailing address of the Member is set forth on Schedule B
attached hereto. The Member was admitted to the Company as a member
of the Company upon its execution of the Original Limited Liability
Company Agreement and shall continue as a member of the Company
upon its execution of a counterpart signature page to this
Agreement.
(b) Subject to Section 9(j), the Member may act by written consent.
(c) Upon the occurrence of any event that causes the Member to cease to
be a member of the Company (other than (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 21
and 23, or (ii) the resignation of the Member and the admission of
an additional member of the Company pursuant to Sections 22 and
23), each person acting as an Independent Director pursuant to
Section 10 shall, without any action of any Person and
simultaneously with the Member ceasing to be a member of the
Company, automatically be admitted to the Company as a Special
Member and shall continue the Company without dissolution. No
Special Member may resign from the Company or transfer its rights
as Special Member unless (i) a successor Special Member has been
admitted to the Company as Special Member by executing a
counterpart to this Agreement, and (ii) such successor has also
accepted its appointment as Independent Director pursuant to
Section 10; provided, however, the Special Members shall
automatically cease to be members of the Company upon the admission
to the Company of a substitute Member appointed by the personal
representative of the Person who was the last remaining 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 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.
Xxxxxxx X. Broker 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.
An Officer may 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, Texas 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.
Section 7. Purposes.
The Company is formed for the object and purpose of purchasing and
selling Contracts, acting as depositor for one or more trusts, and causing the
issuance of asset-backed securities by such trusts.
Section 8. Powers.
In furtherance of its purposes, but subject to all of the provisions of
this Agreement, the Company shall have the power and is hereby authorized:
(a)
(i) to execute and deliver, and to perform its obligations under
one or more receivables purchase agreements with the Member
(such receivables purchase agreements, as from time to time
amended, supplemented or otherwise modified, the "Purchase
Agreements"), to purchase or otherwise acquire Contracts from
the Member, to execute and deliver and to perform its
obligations under any
amendments or supplements, including any supplemental
conveyances relating to one or more of the Purchase
Agreements, to engage in any activities necessary,
appropriate or convenient in connection with the rights and
obligations of the Company under the Purchase Agreements and
the acquisition of Contracts from the Member, and to execute,
deliver and perform any other agreement, notice or document
in connection with, relating to or contemplated by the
Purchase Agreements or the acquisition of Contracts from the
Member;
(ii) to purchase, acquire, own, hold, sell, dispose of, endorse,
transfer, assign, pledge and finance the Contracts (as
described in each of the Purchase Agreements) including,
without limitation, to grant a security interest in the
Contracts;
(iii) to engage in any activities necessary to hold, receive,
exchange, sell, transfer, otherwise dispose of and otherwise
deal in and exercise all rights, powers, privileges, and all
other incidents of ownership or possession with respect to,
all of the Company's property, including the Contracts and
any property or interest that may be acquired by the Company
as a result of any distribution in respect of the Contracts
and any property received by the Company as a contribution
from the Member;
(iv) to execute and deliver, and to perform its obligations as
depositor or in any other capacity under one or more trust
agreements (as amended from time to time, the "Trust
Agreements"), to sell or otherwise transfer all or any of the
Contracts to one or more trusts formedby such Trust
Agreements ("Trusts") for the purpose of issuing and selling
from time to time in public or private offerings (including
to any affiliate of the Member) series of consumer loan
backed certificates or debt securities ("Securities")
representing undivided interests in, or debt secured by,
Contracts, to execute and deliver, and to perform its
obligations under, any amendments, supplements or
assignments, reassignments or reconveyances of Contracts and
other assets related to the Trust Agreements, to provide for
the issuance of additional obligations under the Trust
Agreements and other documents related to the issuance of
such obligations, and to engage in any activities necessary,
appropriate or convenient to the operation of the Trusts
formed by such
Trust Agreements, and to execute, deliver and perform any
other agreement, notice or document in connection with,
relating to, or contemplated by the Trust Agreements;
(v) in its name as registrant and as depositor of the Trusts, to
execute and file with the Securities and Exchange Commission
("Commission") one or more registration statements on the
appropriate form (collectively, the "Registration Statement")
for the registration under the Securities Act of 1933, as
amended ("Securities Act"), of the Securities to be issued by
the Trusts and to execute and file such amendment or
amendments (both pre-effective and post-effective) and
schedules and exhibits to the Registration Statement as may
be deemed necessary or appropriate and to prepare and file
with the Commission prospectuses and prospectus supplements
relating to the issuance of the Securities and supplements
thereto;
(vi) in its name or as depositor for any Trust, to file with the
New York Stock Exchange or any other stock exchange, The
Nasdaq Stock Market or any other market (each, an "Exchange")
and execute, deliver and perform one or more listing
applications and all other applications, statements,
certificates, agreements and other instruments as shall be
necessary or desirable to cause any of the Securities to be
listed on any of the Exchanges; to execute, deliver, file and
perform such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and
other papers and documents as shall be necessary or desirable
to register any of the Securities under the securities or
"Blue Sky" laws of such jurisdictions as may be deemed
necessary or desirable; and to execute, deliver and perform
letters or documents to, or instruments for filing with, a
depository relating to any of the Securities;
(vii) to prepare or cause the preparation of, and execute and
deliver disclosure documents relating to the offer and sale
of the Securities;
(viii) to execute and deliver, and to perform its obligations
under, one or more servicing agreements, sale and servicing
agreements, pooling and servicing agreements, indentures, and
underwriting, purchase or placement agreements or similar
agreements (collectively, the "Trust Documents"), pursuant to
which Contracts will be sold to Trusts and will
be serviced and Securities will be issued or sold, to execute
and deliver, and to perform its obligations under, any
amendments, supplements or assignments, reassignments or
reconveyances of receivables and other assets related to any
of the Trust Documents, and to engage in any activities
necessary, appropriate or convenient to, and to execute,
deliver and perform any other agreement, notice or documents
in connection with, relating to or contemplated by, the Trust
Documents;
(ix) to execute and deliver, and to perform its obligations under
one or more cash collateral account agreements, letter of
credit agreements, reimbursement agreements, swap agreements
or other forms of agreement providing credit or payment
enhancement (and any related documents, certificates and
instruments) with respect to the Contracts sold to the Trust
(collectively, "Credit Enhancement Agreements") with any
bank, insurance company or other person or entity;
(x) to execute and deliver, and to perform its obligations under,
each document or agreement to which it becomes a party, and
to execute and deliver, and to perform its obligations under,
any amendments or supplements related to the foregoing, and
to engage in any activities necessary, appropriate or
convenient to, and to execute, deliver and perform any other
agreement, notice or document in connection with, relating to
or contemplated by, the foregoing;
(xi) to acquire, hold, enjoy, sell or otherwise transfer and grant
rights in all of the rights and privileges of any
certificate, interest or other indicia of beneficial
ownership or any Securities issued by any Trust or any other
person or entity to the Company pursuant to any Purchase
Agreement, Trust Agreement, Trust Document, Credit
Enhancement Agreement or other document, and to transfer such
certificate, interest or other indicia of beneficial
ownership interest or Security to another person or entity;
(xii) to engage in any activities necessary, appropriate or
convenient to, and to execute, deliver and perform any other
agreement, notice or document in connection with or relating
to, the activities described above, including the filing of
any notices, applications, financing statements and other
documents necessary, advisable or convenient to
comply with any applicable laws, statutes, rules or
regulations;
(xiii) to acquire, own, hold, sell, transfer, service, convey, safe
keep, dispose of, pledge, assign, borrow money against,
finance, refinance or otherwise deal with, publicly or
privately issued asset backed securities (whether with
unrelated third parties or with affiliated entities); and
(xiv) 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, or necessary, convenient or advisable for the
accomplishment of, the above-mentioned purposes (including
the entering into of referral, management, servicing and
administration agreements).
(b) to enter into the Basic Documents and all documents, agreements,
certificates, assignments, reassignments, amendments, supplements
or financing statements contemplated thereby or related thereto,
all without any further act, vote or approval of any Member,
Director, Officer or other person notwithstanding any other
provision of this Agreement, the Act or applicable law, rule or
regulation. The foregoing authorization shall not be deemed a
restriction on the powers of any Director or Officer to enter into
other agreements on behalf of the Company.
Section 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 one or more Company Directors designated by the Member. Subject
to Section 10, the Member may determine at any time in its sole and
absolute discretion the number of Directors to constitute the
Board. The authorized number of Directors may be increased or
decreased by the Member at any time in its sole and absolute
discretion, upon notice to all Directors, and subject in all cases
to Section 10. The number of Directors on the date hereof shall be
five, two of whom shall be Independent Directors pursuant to
Section 10. Each Director elected 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 Directors elected by the Member on the date
hereof are listed on Schedule D hereto.
(b) Powers. Subject to Section 9(j), the Company 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 8, the Company
Directors have the authority to bind the Company.
(c) Meetings of the Board of Directors and the Company Directors. The
Board of Directors and the Company Directors may hold separate
meetings, both regular and special, within or outside the State of
Delaware. Regular meetings of the Board or the Company Directors
may be held without notice at such time and at such place as shall
from time to time be determined by the Board or the Company
Directors, as the case may be. Special meetings of the Board or the
Company Directors may be called by the President on not less than
one day's notice to each relevant 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 and the Company Directors. 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. At all meetings of the
Company Directors, a majority of the Company 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 Company 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 or the
Company Directors, 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, or the Company Directors, may be
taken without a meeting if all members of the Board or committee,
or all Company Directors, 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, or the Company Directors, as
the case may be.
(e) Electronic Communications. Members of the Board, or any committee
designated by the Board, or the Company Directors may participate
in meetings of the Board, or any committee, or the Company
Directors, 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
Board, designate one or more committees, each committee to
consist of one or more of the Directors. The Board may
designate one or more Directors as alternate members of any
committee, who may replace any absent or disqualified member
at any meeting of the committee.
(ii) In the absence or disqualification of a member of a
committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not such
members constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of any
such absent or disqualified member.
(iii) Any such committee, to the extent provided in the resolution
of the Board, and subject to, in all cases, Sections 9(j) and
10, shall have and may exercise all the powers and authority
of the Board in the management of the business and affairs
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 Company Directors 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 or the Company Directors, which may be a
fixed sum for attendance at each meeting of the Board or the
Company Directors, 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 Company Directors
are agents of the Company for the purpose of the Company's
business, and the actions of the Company 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 Company 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 Trust Obligation is
outstanding, amend, alter, change or repeal the definition of
"Independent Director" or Sections 5(c), 7, 8, 9, 10, 16, 20,
21, 22, 23, 24, 25, 26, 29 or 31 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 Member reserves the right to amend, alter,
change or repeal any provisions contained in this Agreement
in accordance with Section 31.
(iii) Notwithstanding any other provision of this Agreement and any
provision of law that otherwise so empowers the Company, the
Member, the Board, any Officer or any other Person, 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 all members of 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 Company Directors 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 Company Directors 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
Company Directors also shall cause the Company to:
(A) maintain its own separate office, books and records and
bank accounts;
(B) at all times hold itself out to the public and all
other Persons as a legal entity separate from the
Member and any other Person;
(C) have a Board of Directors separate from that of the
Member and any other Person;
(D) file its own tax returns, if any, as may be required
under applicable law, to the extent (1) not part of a
consolidated group filing a consolidated return or
returns or (2) not treated as a division for tax
purposes of another taxpayer, and pay any taxes so
required to be paid under applicable law;
(E) except as contemplated by the Basic Documents, not
commingle its assets with assets of any other Person;
(F) conduct its business in its own name and strictly
comply with all organizational formalities to maintain
its separate existence;
(G) maintain separate financial statements and prepare and
maintain its financial records in accordance with
generally accepted accounting principles;
(H) pay its own liabilities only out of its own funds;
(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) allocate fairly and reasonably any overhead for shared
office space;
(M) use separate stationery, invoices and checks;
(N) except as contemplated by the Basic Documents, not
pledge its assets for the benefit of any other Person;
(O) correct any known misunderstanding regarding its
separate identity;
(P) maintain adequate capital in light of its contemplated
business purpose, transactions and
liabilities;
(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 Company Directors 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 Trust Obligation is outstanding, the Company
Directors shall not cause or permit the Company to:
(A) except as contemplated by the Basic Documents,
guarantee any obligation of any Person, including any
Affiliate;
(B) engage, directly or indirectly, in any business other
than the actions required or permitted to be performed
under Section 7, Section 8, the Basic Documents or this
Section 9(j);
(C) incur, create or assume any indebtedness other than as
expressly permitted under the Basic Documents;
(D) make or permit to remain outstanding any loan or
advance to, or own or acquire any stock or securities
of, any Person, 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;
(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 Basic Documents; or
(F) form, acquire or hold any subsidiary (whether
corporate, partnership, limited liability company or
other).
Section 10. Independent Directors.
As long as any Trust 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 Management
Agreement, and (ii) shall have executed a counterpart to this Agreement as
required by Section 5(c). In the event of a vacancy in the position of
Independent Director, the Member shall, as soon as practicable, appoint a
successor Independent Director. All right, power and authority of the
Independent 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 Law
of the State of Delaware. No Independent Director shall at any time serve as
trustee in Bankruptcy for any Affiliate of the Company.
Section 11. Officers.
(a) Officers. Subject to the immediately following sentence, the
Officers shall be designated by the Company Directors and shall
consist of at least a President, a Secretary and a Treasurer. The
initial Officers are set forth on Schedule E hereto. The Company
Directors may also choose, without limitation, one or more Vice
Presidents, Assistant Secretaries and Assistant Treasurers. Any
additional or successor Officers shall be chosen by the Company
Directors. Any number of offices may be held by the same person.
The Company Directors 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 Company
Directors.
The salaries of all Officers and agents of the Company shall be
fixed by or in the manner prescribed by the Company Directors. The
Officers 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 Company
Directors. Any vacancy occurring in any office of the Company shall
be filled by the Company Directors.
(b) President. The President shall be the chief executive officer of
the Company, shall preside at all meetings of the Board and the
Company Directors, 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 and the Company Directors are
carried into effect. The President or any other Officer authorized
by the President or the Company Directors shall execute all
contracts or agreements of the Company, except: (i) where required
or permitted by law or this Agreement to be otherwise signed and
executed, including Section 8(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 Company 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 Company
Directors 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 the Company Directors, and record all the proceedings of the
meetings of the Company, of the Board and of the Company Directors
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 meetings of the Board and the Company
Directors, and shall perform such other duties as may be prescribed
by the Board, the Company Directors 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 Company Directors (or if there be no such
determination, then in order of their election), shall, in the
absence of the Secretary or in the event of the Secretary's
inability to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and
have such other powers as the Company Directors 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 Company Directors. The
Treasurer shall disburse the funds of the Company as may be ordered
by the Company Directors, taking proper vouchers for such
disbursements, and shall render to the President and to the Company
Directors, at its regular meetings or when the Company Directors so
require, an account of all of the Treasurer's transactions and of
the financial condition of the Company. The Assistant Treasurer, or
if there shall be more than one, the Assistant Treasurers in the
order determined by the Company Directors (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 Company Directors 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 Company Directors 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.
(h) Specific Officer Authorizations. To accomplish the Company's
purposes, but notwithstanding any other provision of this
Agreement, the Officers without the vote, act or approval of any
other Person, except as otherwise specified below, are authorized
as follows:
(i) The Treasurer, with the written approval of either the
Chairman of the Board or the President and Chief Executive
Officer, and subject to any other limitations specified in
this Agreement, is authorized to form or cause to be formed,
from time to time, one or more Trusts for the purpose of
issuing and selling the Securities, and determine the terms
of the Securities, including, without limitation, the
relative principal amounts, underwriting discounts,
placement fees, the stated rate or rates of interest, the
maturity dates and the offering prices to the public or
private purchasers.
(ii) The President and the Treasurer of the Company (each, an
"Executive Officer"), and any other Executive Vice, Senior
Vice, Vice or Assistant Vice President of the Company
designated as an authorized officer for purposes of one or
more transactions contemplated by the Company's powers and
authorities stated in this Agreement, by a written instrument
signed by an Executive Officer (which written instrument
shall conclusively establish and evidence such designation
until revoked by any Executive Officer), are designated as a
"Proper Officer" for all purposes and authorizations set
forth in this Agreement. The Proper Officers are, and each of
them acting singly is, authorized on behalf of the Company or
on behalf of the Company as depositor of the Trusts, without
any further act, vote or approval of any Person:
(A) to negotiate, execute and deliver Purchase Agreements,
Trust Agreements, Trust Documents, Credit Enhancement
Agreements or other agreements or arrangements with
such underwriters or other Persons as shall be
specified in the Registration Statement or other
offering material or circular, providing for the sale
of the Securities and containing such representations,
conditions, covenants and agreements as the Proper
Officer executing the same shall approve, the execution
thereof by such Proper Officer to be conclusive
evidence of such approval; and that the Proper Officers
are, and each of them is, acting singly, authorized and
empowered to execute and deliver or cause to be
executed and delivered any and all certificates,
documents and instruments as any Proper Officer may
approve as necessary or desirable in order to enable
the Company or the Company on behalf of the Trusts
fully and properly to perform its obligations under any
such agreements or arrangements, the execution of any
such certificate, document or instrument to be
conclusive evidence of such approval;
(B) to cause to be prepared, executed and filed all listing
applications, indemnity agreements and other documents
for the listing of the Securities on any securities
exchange and the registration of the Securities under
the Securities Exchange Act of 1934, as amended
("Exchange Act"), to cause to be prepared, executed and
filed all applications, reports, surety bonds,
irrevocable consents and appointments of attorneys for
service of process,
documents and instruments as may be deemed necessary or
appropriate in order to register or qualify the
Securities for issuance and sale or to exempt the
issuance and sale under the securities laws of the
various jurisdictions in which the Securities are to be
sold and to cause to be prepared, executed,
acknowledged, verified, filed, delivered or
acknowledged such applications, reports, undertakings,
resolutions, and other papers and instruments, and
requests for rulings from appropriate federal and state
banking, tax, securities and other agencies having
jurisdiction as may be necessary or appropriate to
provide for the issuance of the Securities and to
accomplish the purpose and intent of this Agreement;
(C) from time to time to do, or cause to be done, all such
other acts and things and to execute and deliver or
cause to be executed and delivered all such
instruments, agreements, certificates and documents, as
each such officer shall deem necessary, desirable, or
appropriate to carry out the purpose and intent of this
Agreement;
(D) to enter into, on behalf of the Company, one or more
Credit Enhancement Agreements with such bank, insurance
company or other financial institution as shall be
selected by the Proper Officers, with such terms and
conditions as may be approved by the Proper Officer
executing the same, the execution and delivery of which
shall evidence conclusively the Company's approval of
the terms and conditions thereof;
(E) to prepare, execute and file with the Commission under
the Securities Act of 1933 one or more Registration
Statements, such amendment or amendments (both
pre-effective and post-effective) and schedules and
exhibits thereto and such prospectuses and prospectus
supplements relating to the issuance of the Securities
and such supplements thereto, all as they may deem
necessary or appropriate;ereto, all as they may deem
necessary or appropriate;
(F) to prepare or cause the preparation of, and execute and
deliver disclosure documents relating to the offer and
sale of the Securities; to prepare or cause the
preparation of and execute, deliver, file and perform
with any securities exchange or market a listing
application and all other applications, statements,
certificates, agreements, and other instruments as
shall be necessary or desirable to cause any
of the Securities to be listed on such exchange or
market; to prepare, execute and file, such
applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of
process and other papers and documents deemed necessary
or desirable to register any of the Securities under,
or obtain for any of the Securities an exemption from,
the securities or "blue sky" laws of any jurisdiction;
and to execute, deliver and perform letters or
documents to, or instruments for filing with, a
depository relating to any of the Securities; and
(G) to execute and deliver on behalf of the Company and in
its name and on behalf of each director of the Company
a power of attorney, appointing Xxxx X. Xxxxxx,
President and Chief Executive Officer, Xxxxxxxx X.
Xxxxxxxx, Senior Vice President, Treasurer, Xxxxxxx X.
Broker, Vice President, and Xxxxx X. XxXxxxxxx, Vice
President of the Company, or any one of them, to act as
attorneys-in-fact for the purpose of executing and
filing with the Commission the Registration Statement
and any and all amendments (both pre-effective and
post-effective) or supplements thereto with any
schedules and exhibits and other documents, and to act
as agents for service of process by the Commission to
be named as such in the Registration Statement with all
the powers incident to such appointments.
(iii) All actions taken and expenses incurred by any Officers prior
to the effective date of this Agreement in furtherance of any
of the purposes stated or actions authorized in this
Agreement are ratified, confirmed, adopted and approved.
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 upon the written consent of such Member. To the extent
that the Member makes an additional capital contribution to the Company, the
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 Company Directors. 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 Basic Document.
Section 17. Books and Records.
The Company Directors 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 Company
Directors. 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 Company Directors on behalf of the
Company, shall not have the right to keep confidential from the Member any
information that the Company Directors 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 Company Directors. The Company's independent auditor, if any,
shall be an independent public accounting firm selected by the Company
Directors.
Section 18. Reports.
(a) Within 60 days after the end of each fiscal quarter, the Company
Directors 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 Company Directors 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:
(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 Company 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.
Section 19. 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 20. 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
20 by the Company shall be provided out of and to the extent of
Company assets only, and the Member and the Special Members shall
not have personal liability on account thereof; and provided
further, that so long as any Trust Obligation is outstanding, no
indemnity payment from funds of the Company (as distinct from funds
from other sources, such as insurance) of any indemnity under this
Section 20 shall be payable from amounts allocable to any other
Person pursuant to the Basic Documents.
(c) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person defending any
claim, demand, action, suit or proceeding shall, from time to time,
be advanced by the Company prior to the final disposition of such
claim, demand, action, suit or proceeding upon receipt by the
Company of an undertaking by or on behalf of the Covered Person to
repay such amount if it shall be determined that the Covered Person
is not entitled to be indemnified as authorized in this Section 20.
(d) A Covered Person shall be fully protected in relying in good faith
upon the records of the Company and upon such information,
opinions, reports or statements presented to the Company by any
Person as to matters the Covered Person reasonably believes are
within such other Person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the
Company, including information, opinions, reports or statements as
to the value and amount of the assets and liabilities of the
Company, or any other facts pertinent to the existence and amount
of assets from which distributions to the Member might properly be
paid.
(e) 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 that is a
party to or is otherwise bound by this Agreement, a Covered Person
acting under this Agreement shall not be liable to the Company or
to any such other Covered Person for its good faith reliance on the
provisions of this Agreement or any such 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) So long as any Trust Obligation is outstanding, no expense of the
Company shall be payable from amounts allocable to any other Person
pursuant to the Basic Documents.
(g) The foregoing provisions of this Section 20 shall survive any
termination of this Agreement.
Section 21. Assignments.
Subject to Section 23, the Member may assign in whole or in part its
limited liability company interest in the Company with notification to each
Rating Agency. If the Member transfers all of its limited liability company
interest in the Company pursuant to this Section 21, 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 22. Resignation.
So long as any Trust Obligation is outstanding, the Member may not
resign, except if the Rating Agency Condition is satisfied. If the Member is
permitted to resign pursuant to this Section 22, an additional member of the
Company shall be admitted to the Company, subject to Section 23, upon its
execution of an instrument signifying its agreement to be bound by the terms
and conditions of this Agreement, which instrument may be a counterpart
signature page to this Agreement. Such admission shall be deemed
effective immediately prior to the resignation and, immediately following such
admission, the resigning Member shall cease to be a member of the Company.
Section 23. Admission of Additional Members.
One or more additional members of the Company may be admitted to the
Company with the written consent of the Member; provided, however, that,
notwithstanding the foregoing, so long as any Trust Obligation remains
outstanding, no additional Member may be admitted to the Company unless the
Rating Agency Condition is satisfied.
Section 24. Dissolution.
(a) The Company shall be dissolved, and its affairs shall be wound up
upon the first to occur of the following: (i) the termination of
the legal existence of the last remaining member of the Company or
the occurrence of any other event which terminates the continued
membership of the last remaining member of the Company in the
Company unless the business of the Company is continued in a manner
permitted by this Agreement or the Act or (ii) the entry of a
decree of judicial dissolution under Section 18-802 of the Act.
Upon the occurrence of any event that causes the last remaining
Member of the Company to cease to be a member of the Company, to
the fullest extent permitted by law, the personal representative of
such Member is hereby authorized to, and shall, within 90 days
after the occurrence of the event that terminated the continued
membership of such Member in the Company, agree in writing (i) to
continue the Company and (ii) to the admission of the personal
representative or its nominee or designee, as the case may be, as a
substitute member of the Company, effective as of the occurrence of
the event that terminated the continued membership of the last
remaining Member of the Company in the Company.
(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) 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.
(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 Certificate of
Formation shall have been canceled in the manner required by the
Act.
Section 25. Waiver of Partition; Nature of Interest.
Except as otherwise expressly provided in this Agreement, to the fullest
extent permitted by law, each of the Member and the Special 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 26. Benefits of Agreement; No Third-Party Rights.
None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditor of the Company or by any creditor of the Member or
a Special Member. Nothing in this Agreement shall be deemed to create any right
in any Person (other than Covered Persons) not a party hereto, and this
Agreement shall not be construed in any respect to be a contract in whole or in
part for the benefit of any third Person (except as provided in Section 29).
Section 27. Severability of Provisions.
Each provision of this Agreement shall be considered severable and if for
any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect
those portions of this Agreement that are valid, enforceable and legal.
Section 28. Entire Agreement.
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
Section 29. Binding Agreement.
Notwithstanding any other provision of this Agreement, the Member agrees
that this Agreement, including, without limitation, Sections 7, 8, 9, 10, 20,
21, 22, 23, 24, 26, 29 and 31, constitutes a legal, valid and binding agreement
of the Member, and is enforceable against the Member by the Independent
Directors, in accordance with its
terms. In addition, the Independent Directors shall be intended beneficiaries
of this Agreement.
Section 30. Governing Law.
This Agreement shall be governed by and construed under the laws of the
State of Delaware (without regard to conflict of laws principles), all rights
and remedies being governed by said laws.
Section 31. Amendments.
Subject to Section 9(j), this Agreement may be modified, altered,
supplemented or amended pursuant to a written agreement executed and delivered
by the Member. Notwithstanding anything to the contrary in this Agreement, so
long as any Trust Obligation is outstanding, this Agreement may not be
modified, altered, supplemented or amended unless the Rating Agency Condition
is satisfied, except to cure any ambiguity.
Section 32. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Agreement and all of which together
shall constitute one and the same instrument.
Section 33. Notices.
Any notices required to be delivered hereunder shall be in writing and
personally delivered, mailed or sent by telecopy, electronic mail or other
similar form of rapid transmission, and shall be deemed to have been duly given
upon receipt (a) in the case of the Company, to the Company at its address in
Section 2, (b) in the case of the Member, to the Member at its address as
listed on Schedule B attached hereto and (c) in the case of either of the
foregoing, at such other address as may be designated by written notice to the
other party.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have duly executed this Agreement as of the 8th day of July, 2004.
MEMBER:
USAA Federal Savings Bank
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive
Officer
INDEPENDENT DIRECTORS
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
SCHEDULE A
Definitions
-----------
A. Definitions
When used in this Agreement, the following terms not otherwise defined in
this Agreement have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
"Administration Agreement" means the Administration Agreement by and
among the Administrator, the Trust and the Indenture Trustee.
"Administrator" means the Bank, in its capacity as administrator under
the Administration Agreement, or any successor Administrator thereunder.
"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 Second 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.
"Bank" means USAA Federal Savings Bank, a federally chartered savings
association, together with any successor in interest by merger or otherwise.
"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.
"Basic Documents" means (i) this Agreement, (ii) the Management
Agreement, (iii) Purchase Agreements, (iv) the Trust Agreements, (v) all other
agreements referred to in this Agreement as an agreement to which the Company
may enter into, and (vi) all documents and certificates contemplated thereby or
delivered in connection therewith, and all amendments thereto.
"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 July 22,
2002, as amended or amended and restated from time to time.
"Commission" has the meaning assigned in Section 8(a).
"Company" means USAA Acceptance, LLC, a Delaware limited liability
company.
"Company Director" means a Person other than an Independent Director
elected to the Board of Directors from time to time by the Member.
"Contract" means one or more motor vehicle installment loan contracts and
all proceeds thereof and payments thereunder, including but not limited to (i)
the security interests in the Financed Vehicles granted by Obligors pursuant to
the motor vehicle installment loan contracts and any other interest of the
Member in the Financed Vehicles; (ii) rights to receive proceeds with respect
to the motor vehicle installment loan contracts from claims on any theft,
physical damage, credit life, credit disability, or other insurance policies
covering the Financed Vehicles or Obligors; (iii) all property (including the
right to receive Liquidation Proceeds) securing a motor vehicle installment
loan contract; (iv) rebates of premiums and other amounts relating to insurance
policies and other items financed under the motor vehicle installment loan
contract; and (v) all present and future claims, demands, causes of action and
choses in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in respect of any
or all of the foregoing, including all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel
paper, checks, deposit accounts, insurance proceeds, condemnation awards,
rights to payment of any and every kind and other forms of obligations and
receivables, instruments and other property which at any time constitute all or
part of or are included in the proceeds of any of the foregoing.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities or general partnership or
managing member interests, by contract or otherwise. "Controlling" and
"Controlled" shall have correlative meanings. Without limiting the generality
of the foregoing, a Person shall be deemed to Control any
other Person in which it owns, directly or indirectly, a majority of the
ownership interests.
"Covered Persons" has the meaning set forth in Section 20(a).
"Credit Agreement" means the Revolving Credit Agreement entered into by
the Bank and the Company, as from time to time amended, supplemented or
otherwise modified.
"Credit Enhancement Agreements" has the meaning assigned in Section 8(a).
"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.
"Exchange" has the meaning assigned in Section 8(a).
"Exchange Act" has the meaning assigned in Section 11(h).
"Executive Officer" has the meaning set forth in Section 11(h).
"Financed Vehicle" means a new or used automobile or light-duty truck,
together with all accessions thereto, securing an Obligor's indebtedness under
the respective motor vehicle installment loan contract.
"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 of its Affiliates); (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).
"Liquidation Proceeds" means with respect to any motor vehicle
installment loan contract (a) insurance proceeds and (b) monies collected
pursuant to any sale and servicing agreement from whatever source, including
but not limited to proceeds of Financed Vehicles after repossession, net of any
payments required by law to be remitted to the Obligor.
"Management Agreement" means the agreement of the Directors in the form
attached hereto as Schedule C. The Management Agreement shall be deemed
incorporated into, and a part of, this Agreement.
"Material Action" means to change the business purposes of the company,
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.
"Member" means USAA Federal Savings 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 member of the Company; provided,
however, the term "Member" shall not include the Special Members.
"Obligor" on a motor vehicle installment loan contract shall mean the
purchaser or co-purchasers of the Financed Vehicle or any other Person who owes
payments under the motor vehicle installment loan contract.
"Officer" means an officer of the Company described in Section 11(h).
"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.
"Proper Officer" has the meaning assigned in Section 11(h).
"Purchase Agreements" has the meaning set forth in Section 8(a).
"Rating Agency" has the meaning assigned to that term in the Trust
Agreements.
"Rating Agency Condition" has the meaning assigned to that term in the
Trust Agreements.
"Registration Statement" has the meaning assigned in Section 8(a).
"Securities" has the meaning assigned in Section 8(a).
"Securities Act" has the meaning assigned in Section 8(a).
"Seller" has the meaning assigned thereto in the Sale and Servicing
Agreements.
"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.
"Trusts" has the meaning assigned in Section 8(a).
"Trust Agreements" has the meaning assigned in Section 8(a).
"Trust Documents" has the meaning assigned in Section 8(a).
"Trust Obligation" means any and all obligations of the Trusts.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and
plural forms of the defined terms. The words "include" and "including" shall be
deemed to be followed by the phrase "without limitation." The terms "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section, paragraph or
subdivision. The Section titles appear as a matter of convenience only and
shall not affect the interpretation of this Agreement. All Section, paragraph,
clause, Exhibit or Schedule references not attributed to a particular document
shall be references to such parts of this Agreement.
SCHEDULE B
Member
------
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Limited Liability
Name Mailing Address Capital Contribution Company
---- --------------- --------------------
Interest
--------
-------------------------------------------------------------------------------------------------
USAA Federal 00000 XxXxxxxxx Xxx $ 100.00 100%
Savings Bank Xxx Xxxxxxx, Xxxxx 00000
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SCHEDULE C
Management Agreement
--------------------
July __, 2004
USAA ACCEPTANCE, LLC
Xxxxx 000
0000 Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Re: Management Agreement - USAA ACCEPTANCE, LLC
-------------------------------------------
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned Persons, who
have been designated as directors of USAA ACCEPTANCE, 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 July __, 2004,
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 he or she has been designated as a "manager" of the Company
within the meaning of the Delaware Limited Liability Company Act.
2. So long as any Trust 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 DELAWARE, AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Capitalized terms used and not otherwise defined herein have the meanings
set forth in the LLC Agreement.
This Management Agreement may be executed in any number of counterparts,
each of which shall be deemed an original of this Management Agreement and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
_________________________________
Name: Xxxx X. Xxxxxx
Title: Director
_________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Director
_________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Director
_________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Director
_________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Director
SCHEDULE D
DIRECTORS
---------
1. Xxxx X. Xxxxxx (Chairman) (Company Director)
2. Xxxxxxxx X. Xxxxxxxx (Company Director)
3. Xxxxxx X. Xxxxxxx (Company Director)
4. Xxxxxx X. Xxxxxxx (Independent Director)
5. Xxxxxxx X. Xxxxxx (Independent Director)
SCHEDULE E
OFFICERS
Xxxx X. Xxxxxx President
Xxxxxxxx X. Xxxxxxxx Senior Vice President and Treasurer
Xxxxxx X. Xxxxxxx Senior Vice President and Secretary
Xxxxxxx X. Broker Vice President
Xxxxx X. XxXxxxxxx Vice President
FIRST AMENDMENT
TO THE
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
USAA ACCEPTANCE, LLC
This First Amendment to the Amended and Restated Limited Liability
Company Agreement of USAA Acceptance, LLC (the "Company"), dated as of November
12, 2004 (this "Amendment"), is entered into by USAA Federal Savings Bank, as
the sole equity member of the Company (the "Member").
WHEREAS, the parties thereto entered into an Amended and Restated Limited
Liability Company Agreement of the Company, dated as of July 8, 2004 (the "LLC
Agreement") intending to amend and restate the Amended and Restated Limited
Liability Company Agreement of the Company, dated as of February 25, 2004 (the
"February 25, 2004 Agreement");
WHEREAS, the second recital of the LLC Agreement is ambiguous because it
states that the Member desires to amend and restate the September 27, 2002
Agreement (as defined in the LLC Agreement), not the February 25, 2004
Agreement;
WHEREAS, the parties to the LLC Agreement intended to amend and restate
the February 25, 2004 Agreement, and the Member is entering into this Amendment
to clarify the ambiguity in the LLC Agreement; and
WHEREAS, the Member is the sole equity member of the Company.
NOW, THEREFORE, the Member, as the sole equity member of the Company,
hereby agrees as follows:
I. Amendment.
The second recital of the LLC Agreement is hereby amended by deleting the
reference to the "September 27, 2002 Agreement" contained therein and replacing
such reference with the "February 25, 2004 Agreement".
II. Miscellaneous.
A. Binding Effect. This Amendment constitutes a legal, valid and
binding agreement of the parties to the Agreement, as amended from time to
time, and is enforceable against such parties, in accordance with its terms.
B. Agreement in Effect. Except as hereby amended, the LLC Agreement
shall remain in full force and effect.
C. Governing Law. This Amendment shall be governed by and construed
under the laws of the State of Delaware (without regard to conflict of laws
principles), all rights and
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remedies being governed by said laws.
D. Severability of Provisions. Each provision of this Amendment 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 Amendment which
are valid, enforceable and legal.
IN WITNESS WHEREOF, the undersigned has caused this Amendment to be duly
executed as of the day and year first written above.
USAA FEDERAL SAVINGS BANK
By: /s/ Xxxxxxx X. Broker
--------------------------------------
Name: Xxxxxxx X. Broker
Title: Vice President
SECOND AMENDMENT
TO THE
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
USAA ACCEPTANCE, LLC
This Second Amendment to the Amended and Restated Limited Liability
Company Agreement of USAA Acceptance, LLC (the "Company"), dated as of September
30, 2005 (this "Amendment"), is entered into by USAA Federal Savings Bank, as
the sole equity member of the Company (the "Member"). Capitalized terms used
and not otherwise defined herein have the meanings set forth in the "LLC
Agreement" (as defined below).
WHEREAS, the parties thereto entered into an Amended and Restated Limited
Liability Company Agreement of the Company, dated as of July 8, 2004 (the
"Amended LLC Agreement") to amend and restate the Amended and Restated Limited
Liability Company Agreement of the Company, dated as of February 25, 2004 (the
"February 25, 2004 Agreement");
WHEREAS, the parties thereto entered into a First Amendment to the
Amended and Restated Limited Liability Company Agreement of the Company, dated
as of November 12, 2004 (the "First Amendment") (the Amended LLC Agreement
and the First Amendment are hereafter referred to collectively as the "LLC
Agreement");
WHEREAS, there is an ambiguity in the LLC Agreement involving Section
11(h)(ii)(G) of the LLC Agreement because Section 11(h)(ii)(G) appoints
certain named individuals, acting in their capacities as certain Officers of
the Company, to act as attorneys-in-fact for the purpose of executing and
filing with the Commission the Registration Statement and for other purposes
specified in such subsection; however, Section 11(h)(ii)(G) of the LLC
Agreement does not provide for a mechanism to appoint new attorneys-in-fact
should any of the named individuals resign from the Company or change their
position as Officer.
WHEREAS, this Amendment shall identify two individuals to replace those
who have resigned, to be appointed as attorneys-in-fact for the purposes stated
in Section 11(h)(ii)(G) of the LLC Agreement, to clarify the ambiguity of the
LLC Agreement; and
WHEREAS, the Member is the sole equity member of the Company.
NOW, THEREFORE, the Member, as the sole equity member of the Company,
hereby agrees as follows:
I. Amendment.
Section 11(h)(ii)(G) of the LLC Agreement is hereby amended by deleting
the references to "Xxxx X. Xxxxxx" and "Xxxxxxxx X. Xxxxxxxx" contained therein
and replacing such references, respectively, with "Xxxxxxx X. Xxxx" and
"Xxxxx X. Xxxxx".
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II. Miscellaneous.
A. Binding Effect. This Amendment constitutes a legal, valid and
binding agreement of the parties to the Agreement, as amended from time to
time, and is enforceable against such parties, in accordance with its terms.
B. Agreement in Effect. Except as hereby amended, the LLC Agreement
shall remain in full force and effect.
C. Governing Law. This Amendment 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.
D. Severability of Provisions. Each provision of this Amendment 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 Amendment which
are valid, enforceable and legal.
IN WITNESS WHEREOF, the undersigned has caused this Amendment to be duly
executed as of the day and year first written above.
USAA FEDERAL SAVINGS BANK
By: /s/ Xxxxxxx X. Broker
--------------------------------------
Name: Xxxxxxx X. Broker
Title: Vice President
