Exhibit 3.1
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 Xxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxx, 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, and entering into a Limited Liability Company Agreement of the Company,
dated as of July 22, 2002 (the "Original Limited Liability Company
Agreement"); and
WHEREAS, the Member desires to continue the Company as a limited
liability company under the Act and to amend and restate the Original Limited
Liability Company 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 The Corporation Trust Company, Corporation Trust Center, 0000
Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx
00000.
Section 4. Registered Agent.
The name and address of the registered agent of the Company for
service of process on the Company in the State of Delaware is The Corporation
Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx
Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, 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
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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
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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 formed by 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;
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(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;
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(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
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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
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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.
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(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;
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(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);
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(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
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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
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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.
13
(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
14
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;
(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,
15
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.
16
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
17
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
18
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.
19
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.
20
(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.
21
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]
22
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have duly executed this Amended and Restated Limited Liability Company
Agreement as of the 27th day of September, 2002.
MEMBER:
USAA Federal Savings Bank
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive
Officer
INDEPENDENT DIRECTORS
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
23
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 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
24
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 contracts; 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).
25
"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.
26
"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).
"Sale and Servicing Agreement" means any sale and servicing agreement
by and between a Trust, as issuer, the Depositor, as seller, and the Bank, as
seller and servicer for the sale of Contracts to such Trust.
"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 Securities issued by a Trust.
27
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.
28
SCHEDULE B
Member
------
-------------------------------------------------------------------------------------------------
Limited Liability
Name Mailing Address Capital Contribution Company Interest
--------------------- ---------------------------- ------------------------ ---------------------
USAA Federal 00000 XxXxxxxxx Xxx $ 100.00 100%
Savings Bank Xxx Xxxxxxx, Xxxxx 00000
--------------------------------------------------------------------------------------------------
29
SCHEDULE C
Management Agreement
September ____, 2002
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
September ____, 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 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.
30
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: Xxxxxxx X. Xxxxxxxxx
Title: Director
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
31
SCHEDULE D
DIRECTORS
1. Xxxx X. Xxxxxx (Chairman) (Company Director)
2. Xxxxxxxx X. Xxxxxxxx (Company Director)
3. Xxxxxx X. Xxxxxxx (Company Director)
4. Xxxxxxx X. Xxxxxxxxx (Independent Director)
5. Xxxxxxx X. Xxxxx (Independent Director)
32
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
33
