Exhibit 99.1
FORM OF
LIMITED LIABILITY COMPANY AGREEMENT
OF
[ ] AUTO RECEIVABLES 200[ ] - [ ], LLC
This Amended and Restated Limited Liability Company Agreement (together
with the schedules attached hereto, this "Agreement") of [ ] Auto Receivables
200[ ] - [ ], LLC (the "Company"), is entered into by [____________] as the sole
equity member (the "Member"), and ____________________ and ____________________,
as the Special Members (as defined on Schedule A hereto). Capitalized terms used
and not otherwise defined herein have the meanings set forth on Schedule A
hereto.
The Member, by execution of this Agreement, hereby continues the Company
as a limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act (6 Del. C. Section 18-101 et seq.), as amended
from time to time (the "Act"), and this Agreement, and hereby desires that this
Agreement be, and hereby is, the sole governing document of the Company,
superseding all prior agreements. The Member and __________ and
_________________ hereby agree as follows:
Section 1. Name.
The name of the limited liability company formed hereby is [ ] Auto
Receivables 200[ ] - [ ], LLC.
Section 2. Principal Business Office.
The principal business office of the Company shall be located at
[_____________________] or such other location as may hereafter be determined by
the Member.
Section 3. Registered Office.
The address of the registered office of the Company in the State of
Delaware is [________].
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 Corporation Service Company.
Section 5. Members.
(a) The mailing address of the Member is set forth on Schedule B attached
hereto.
(b) Subject to Section 9(j), the Member may act by written consent.
(c) Upon the occurrence of any event that causes the Member to cease to be
a member of the Company (other than (i) upon an assignment by the Member of all
of its limited liability company interest in the Company and the admission of
the transferee pursuant to Sections 22 and 24, or (ii) the resignation of the
Member and the admission of an additional member of the Company pursuant to
Sections 23 and 24), each person acting as an Independent Director pursuant to
Section 10 shall, without any action of any Person and simultaneously with the
Member ceasing to be a member of the Company, automatically be admitted to the
Company as a Special Member and shall continue the Company without dissolution.
No Special Member may resign from the Company or transfer its rights as Special
Member unless (i) a successor Special Member has been admitted to the Company as
Special Member by executing a counterpart to this Agreement, and (ii) such
successor has also accepted its appointment as Independent Director pursuant to
Section 10; provided, however, the Special Members shall automatically cease to
be members of the Company upon the admission to the Company of a substitute
Member. Each Special Member shall be a member of the Company that has no
interest in the profits, losses and capital of the Company and has no right to
receive any distributions of Company assets. Pursuant to Section 18-301 of the
Act, a Special Member shall not be required to make any capital contributions to
the Company and shall not receive a limited liability company interest in the
Company. A Special Member, in its capacity as Special Member, may not bind the
Company. Except as required by any mandatory provision of the Act, each Special
Member, in its capacity as Special Member, shall have no right to vote on,
approve or otherwise consent to any action by, or matter relating to, the
Company, including, without limitation, the merger, consolidation or conversion
of the Company. In order to implement the admission to the Company of each
Special Member, each person acting as an Independent Director pursuant to
Section 10 shall execute a counterpart to this Agreement. Prior to its admission
to the Company as Special Member, each person acting as an Independent Director
pursuant to Section 10 shall not be a member of the Company.
Section 6. Certificates.
____________, is hereby designated as an "authorized person" within the
meaning of the Act, and has executed, delivered and filed the Certificate of
Formation of the Company with the Secretary of State of the State of Delaware.
Upon the filing of the Certificate of Formation with the Secretary of State of
the State of Delaware, his powers as an "authorized person" ceased, and the
Member thereupon became the designated "authorized person" and shall continue as
the designated "authorized person" within the meaning of the Act. The Member or
an Officer shall execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in North Carolina, New York 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 purpose to be conducted or promoted by the
Company is to engage in the following activities:
(a) (i) to purchase, accept capital contributions of or otherwise
acquire (A) motor vehicle retail installment sale contracts
and motor vehicle loans, including
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rights to payment of any interest, finance charges or fees
and any other rights with respect thereto (the
"Receivables"), (B) security interests in the motor vehicles
financed by the Receivables (the "Financed Vehicles") and any
accessions thereto; (C) the rights to proceeds with respect
to the Receivables from claims on insurance policies covering
the Financed Vehicles and any rights of an originator of the
Receivables in any rebates of premiums and other amounts
relating to insurance policies and other items financed under
the Receivables; (D) any property that shall have secured a
Receivable; (E) any rights of an originator with respect to
any agreement under which such originator has acquired
Receivables originated by or through a motor vehicle dealer;
(F) any rights of an originator of the Receivables in any
documents or instruments or other property appurtenant or
relating to the Receivables; and (G) any and all proceeds of
the foregoing (the property described in clauses (B) through
(G) above being called the "Related Assets");
(i) to own, hold, service, sell, assign, transfer, pledge, grant
security interests in or otherwise exercise ownership rights
with respect to the Receivables and Related Assets;
(ii) to issue and sell one or more series of Securities;
(iii) to act as settlor or depositor of trusts or other entities or
to own equity interests in other limited liability companies
(whose purposes are restricted to those set forth in this
Section 7(a)), each of which is formed to issue Securities
(each, an "Issuer");
(iv) to acquire, own, hold, transfer, assign, pledge, sell and
otherwise deal with any interests in an Issuer or Securities
issued by an Issuer;
(v) to enter into, execute and deliver any underwriting
agreement, purchase or placement agreement relating to the
sale or placement of any securities issued by an Issuer, any
sale and servicing agreement, pooling and servicing
agreement, trust agreement, purchase agreement,
administration agreement, custodial agreement, insurance
agreement or any other agreement which may be required or
advisable to effect the administration or servicing of the
Receivables and Related Assets or the issuance and sale of
any Securities (each, a "Securitization Agreement"), and to
perform its obligations under each Securitization Agreement
to which it is a party;
(vi) to establish any reserve account, spread account or other
credit or cash flow enhancement for the benefit of Securities
issued by the Company or any Issuer and to loan, transfer or
otherwise invest any proceeds from Receivables and Related
Assets and any other income as determined by the Board;
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(vii) to purchase financial guaranty insurance policies for the
benefit of any Security issued by the Company or any Issuer;
(viii) to enter into any interest rate or basis swap, cap, floor or
collar agreements, currency exchange agreements or similar
hedging transactions relating to any Receivables and Related
Assets or for the benefit of any Security issued by the
Company or any Issuer;
(ix) to prepare, execute and file with the Securities and Exchange
Commission registration statements, including a prospectus
and forms of prospectus supplements, relating to Securities;
(x) to prepare private placement memorandums relating to
Securities to be offered and sold privately;
(xi) for federal, state or local tax purposes, to serve as
"general partner" of any Issuer; and
(xii) to engage in any lawful act or activity and to exercise any
powers permitted to limited liability companies organized
under the laws of the State of Delaware that are related or
incidental to and necessary, convenient or advisable for the
accomplishment of the above-mentioned purposes.
(b) The Company, by or through the Member, or any Director or Officer on
behalf of the Company, may enter into and perform the Transaction Documents and
all documents, agreements, certificates, or financing statements contemplated
thereby or related thereto, all without any further act, vote or approval of any
other Person notwithstanding any other provision of this Agreement, the Act or
applicable law, rule or regulation. The foregoing authorization shall not be
deemed a restriction on the powers of the Member or any Director or Officer to
enter into other agreements on behalf of the Company.
Section 8. Powers.
Subject to Section 9(j), the Company, and the Board of Directors and the
Officers of the Company on behalf of the Company, (i) shall have and exercise
all powers necessary, convenient or incidental to accomplish its purposes as set
forth in Section 7 and (ii) shall have and exercise all of the powers and rights
conferred upon limited liability companies formed pursuant to the Act.
Section 9. Management.
(a) Board of Directors. Subject to Section 9(j), the business and affairs
of the Company shall be managed by or under the direction of a Board of one or
more Directors designated by the Member. Subject to Section 10, the Member may
determine at any time in its 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
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initial number of Directors shall be three, at least one of which shall be an
Independent Director pursuant to Section 10. Each Director elected, designated
or appointed by the Member shall hold office until a successor is elected and
qualified or until such Director's earlier death, resignation, expulsion or
removal. Directors need not be a Member. The initial Directors designated by the
Member are listed on Schedule C hereto.
(b) Powers. Subject to Section 9(j), the Board of Directors shall have the
power to do any and all acts necessary, convenient or incidental to or for the
furtherance of the purposes described herein, including all powers, statutory or
otherwise. Subject to Section 7, the Board of Directors has the authority to
bind the Company.
(c) Meeting of the Board of Directors. The Board of Directors of the
Company may hold meetings, both regular and special, within or outside the State
of Delaware. Regular meetings of the Board may be held without notice at such
time and at such place as shall from time to time be determined by the Board.
Special meetings of the Board may be called by the President on not less than
one day's notice to each Director by telephone, facsimile, mail, telegram or any
other means of communication, and special meetings shall be called by the
President or Secretary in like manner and with like notice upon the written
request of any one or more of the Directors.
(d) Quorum: Acts of the Board. At all meetings of the Board, a majority of
the Directors shall constitute a quorum for the transaction of business and,
except as otherwise provided in any other provision of this Agreement, the act
of a majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board. If a quorum shall not be present at any meeting
of the Board, the Directors present at such meeting may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee, as the case may be.
(e) Electronic Communications. Members of the Board, or any committee
designated by the Board, may participate in meetings of the Board, or any
committee, by means of telephone conference or similar communications equipment
that allows all Persons participating in the meeting to hear each other, and
such participation in a meeting shall constitute presence in Person at the
meeting. If all the participants are participating by telephone conference or
similar communications equipment, the meeting shall be deemed to be held at the
principal place of business of the Company.
(f) Committees of Directors.
(i) The Board may, by resolution passed by a majority of the whole
Board, designate one or more committees, each committee to
consist of one or more of the Directors of the Company. The
Board may designate one or more Directors as alternate members
of any committee, who may replace any absent or disqualified
member at any meeting of the committee.
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(ii) In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not
disqualified from voting, whether or not such members
constitute a quorum, may unanimously appoint another member of
the Board to act at the meeting in the place of any such
absent or disqualified member.
(iii) Any such committee, to the extent provided in the resolution
of the Board, and subject to, in all cases, Sections 9(j) and
10, shall have and may exercise all the powers and authority
of the Board in the management of the business and affairs of
the Company. Such committee or committees shall have such name
or names as may be determined from time to time by resolution
adopted by the Board. Each committee shall keep regular
minutes of its meetings and report the same to the Board when
required.
(g) Compensation of Directors; Expenses. The Board shall have the
authority to fix the compensation of Directors. The Directors may be paid their
expenses, if any, of attendance at meetings of the Board, which may be a fixed
sum for attendance at each meeting of the Board or a stated salary as Director.
No such payment shall preclude any Director from serving the Company in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
(h) Removal of Directors. Unless otherwise restricted by law, any Director
or the entire Board of Directors may be removed or expelled, with or without
cause, at any time by the Member, and, subject to Section 10, any vacancy caused
by any such removal or expulsion may be filled by action of the Member.
(i) Directors as Agents. To the extent of their powers set forth in this
Agreement and subject to Section 9(j), the Directors are agents of the Company
for the purpose of the Company's business, and the actions of the Directors
taken in accordance with such powers set forth in this Agreement shall bind the
Company. Notwithstanding the last sentence of Section 18-402 of the Act, except
as provided in this Agreement or in a resolution of the Directors, a Director
may not bind the Company.
(j) Limitations on the Company's Activities.
(i) This Section 9(j) is being adopted in order to comply with
certain provisions required in order to qualify the Company as
a "special purpose" entity.
(ii) The Member shall not, so long as any Obligation is
outstanding, amend, alter, change or repeal the definition of
"Independent Director" or Sections 5(c), 7, 8, 9, 10, 16, 20,
21, 22, 23, 24, 25, 26, 27, 31 or 32 or Schedule A of this
Agreement without the unanimous written consent of the Board
(including all Independent Directors). Subject to this Section
9(j), the Member reserves the right to amend, alter, change or
repeal any provisions contained in this Agreement in
accordance with Section 32.
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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 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 is at least one Independent Director then
serving in such capacity.
(iv) The Board and the Member shall cause the Company to do or
cause to be done all things necessary to preserve and keep in
full force and effect its existence, rights (charter and
statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such right or franchise
if: (1) the Board shall determine that the preservation
thereof is no longer desirable for the conduct of its business
and that the loss thereof is not disadvantageous in any
material respect to the Company and (2) the Rating Agency
Condition is satisfied. The Board also shall cause the Company
to:
(A) maintain its own separate 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 Transaction 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;
(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;
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(K) not hold out its credit or assets as being available
to satisfy the obligations of others;
(L) to the extent its office is located in the offices of
any Affiliate pay fair market rent for its office space
located therein, and otherwise allocate fairly and
reasonably any overhead expenses shared with any
Affiliate, and not engage in any business transaction
with any Affiliate unless on an arm's-length basis;
(M) use separate stationery, invoices and checks;
(N) except as contemplated by the Transaction Documents, not
pledge its assets for the benefit of any other Person or
make any loans or advances to any other Person;
(O) correct any known misunderstanding regarding its
separate identity;
(P) maintain adequate capital in light of its
contemplated business purpose, transactions and
liabilities;
(Q) cause its Board of Directors to meet at least annually
or act pursuant to written consent and keep minutes of
such meetings and actions and observe all other Delaware
limited liability company formalities;
(R) not acquire any securities of the Member; and
(S) cause the Directors, Officers, agents and other
representatives of the Company to act at all times with
respect to the Company consistently and in furtherance
of the foregoing and in the best interests of the
Company.
Failure of the Company, or the Member or Board on behalf of the Company, to
comply with any of the foregoing covenants or any other covenants contained in
this Agreement shall not affect the status of the Company as a separate legal
entity or the limited liability of the Member or the Directors.
(v) So long as any Obligation is outstanding, the Board shall
not cause or permit the Company to:
(A) except as contemplated by the Transaction Documents,
guarantee or become obligated for the debts of any
Person, including any Affiliate;
(B) engage, directly or indirectly, in any business other
than the actions required or permitted to be performed
under Section 7, the Transaction Documents
or this Section 9(j);
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(C) incur, create or assume any indebtedness other than as
expressly permitted hereunder and under the Transaction
Documents;
(D) make or permit to remain outstanding any loan or
advance to, or own or acquire any stock or securities
of, any Person, except that the Company may invest in
those investments permitted under the Transaction
Documents and may make any advance required or
expressly permitted to be made pursuant to any
provisions of the Transaction Documents and permit
the same to remain outstanding in accordance with
such provisions;
(E) to the fullest extent permitted by law, engage in any
dissolution, liquidation, consolidation, merger, asset
sale or transfer of ownership interests other than such
activities as are expressly permitted pursuant to any
provision of the Transaction Documents; or
(F) except as contemplated by Section 7(a), form, acquire or
hold any subsidiary (whether corporate, partnership,
limited liability company or other).
Section 10. Independent Director.
As long as any Obligation is outstanding, the Member shall cause the
Company at all times to have at least one Independent Director 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, 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. The initial Officers of the Company shall be designated by
the Member. The additional or successor Officers of the Company shall be chosen
by the Board and shall consist of at least a President, a Secretary and a
Treasurer. The Board of Directors may also choose one or more Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Any
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number of offices may be held by the same person. The Board shall choose a
President, a Secretary and a Treasurer. The Board may appoint such other
Officers and agents as it shall deem necessary or advisable who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board. The salaries of all Officers
and agents of the Company shall be fixed by or in the manner prescribed by the
Board. The Officers of the Company shall hold office until their successors are
chosen and qualified. Any Officer may be removed at any time, with or without
cause, by the affirmative vote of a majority of the Board. Any vacancy occurring
in any office of the Company shall be filled by the Board. The initial Officers
of the Company designated by the Member are listed on Schedule D hereto.
(b) President. The President shall be the chief executive officer of the
Company, shall preside at all meetings of the Board, shall be responsible for
the general and active management of the business of the Company and shall see
that all orders and resolutions of the Board are carried into effect. The
President or any other Officer authorized by the President or the Board shall
execute all bonds, mortgages and other contracts, except: (i) where required or
permitted by law or this Agreement to be otherwise signed and executed,
including Section 7(b); (ii) where signing and execution thereof shall be
expressly delegated by the Board to some other Officer or agent of the Company,
and (iii) as otherwise permitted in Section 11(c).
(c) Vice President. In the absence of the President or in the event of the
President's inability to act, the Vice President, if any (or in the event there
be more than one Vice President, the Vice Presidents in the order designated by
the Directors, or in the absence of any designation, then in the order of their
election), shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents, if any, shall perform such other duties and have
such other powers as the Board may from time to time prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall be responsible
for filing legal documents and maintaining records for the Company. The
Secretary shall attend all meetings of the Board and record all the proceedings
of the meetings of the Company and of the Board in a book to be kept for that
purpose and shall perform like duties for the standing committees when required.
The Secretary shall give, or shall cause to be given, notice of all meetings of
the Member, if any, and special meetings of the Board, and shall perform such
other duties as may be prescribed by the Board or the President, under whose
supervision the Secretary shall serve. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order determined by the Board
(or if there be no such determination, then in order of their election), shall,
in the absence of the Secretary or in the event of the Secretary's inability to
act, perform the duties and exercise the powers of the Secretary and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall have the
custody of the Company funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the Board.
The Treasurer shall disburse the funds of the Company as may be ordered by the
Board, taking proper vouchers for such disbursements, and shall render to the
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President and to the Board, at its regular meetings or when the Board so
requires, an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability to
act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe.
(f) Officers as Agents. The Officers, to the extent of their powers set
forth in this Agreement or otherwise vested in them by action of the Board not
inconsistent with this Agreement, are agents of the Company for the purpose of
the Company's business and, subject to Section 9(j), the actions of the Officers
taken in accordance with such powers shall bind the Company.
(g) Duties of Board and Officers. Except to the extent otherwise provided
herein, each Director and Officer shall have a fiduciary duty of loyalty and
care similar to that of directors and officers of business corporations
organized under the General Corporation Law of the State of Delaware.
Section 12. Limited Liability.
Except as otherwise expressly provided by the Act, the debts, obligations
and liabilities of the Company, whether arising in contract, tort or otherwise,
shall be the debts, obligations and liabilities solely of the Company, and
neither the Member nor the Special Members nor any Director shall be obligated
personally for any such debt, obligation or liability of the Company solely by
reason of being a Member, Special Member or Director of the Company.
Section 13. Capital Contributions.
The Member has contributed to the Company property of an agreed value as
listed on Schedule B attached hereto. In accordance with Section 5(c), the
Special Members shall not be required to make any capital contributions to the
Company.
Section 14. Additional Contributions.
The Member is not required to make any additional capital contribution to
the Company. However, the Member may make additional capital contributions to
the Company at any time. To the extent that the Member makes an additional
capital contribution to the Company, the 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.
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Section 15. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the Member.
Section 16. Distributions.
Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Board. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not be required to make
a distribution to the Member on account of its interest in the Company if such
distribution would violate Section 18-607 of the Act or any other applicable law
or any Transaction Document.
Section 17. Books and Records.
The Board shall keep or cause to be kept complete and accurate books of
account and records with respect to the Company's business. The books of the
Company shall at all times be maintained by the Board. The Member and its duly
authorized representatives shall have the right to examine the Company books,
records and documents during normal business hours. The Company, and the Board
on behalf of the Company, shall not have the right to keep confidential from the
Member any information that the Board would otherwise be permitted to keep
confidential from the Member pursuant to Section 18-305(c) of the Act. The
Company's books of account shall be kept using the method of accounting
determined by the Member. The Company's independent auditor, if any, shall be an
independent public accounting firm selected by the Member.
Section 18. Reports.
(a) Within 60 days after the end of each fiscal quarter, the Board shall
cause to be prepared an unaudited report setting forth as of the end of such
fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a balance
sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter, an income
statement of the Company for such fiscal quarter.
(b) The Board shall use diligent efforts to cause to be prepared and
mailed to the Member, within 90 days after the end of each fiscal year, an
audited or unaudited report setting forth as of the end of such fiscal year:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such fiscal year; and
(iii) a statement of the Member's capital account.
(c) The Board 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
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promptly as possible any such tax information as may be reasonably necessary to
enable the Member to prepare its federal, state and local income tax returns
relating to such fiscal year. Nothing in this Section 18 shall limit the Company
from hiring a person or company to perform its bookkeeping, accounting or other
related services.
Section 19. Tax Classification.
Notwithstanding any other provision of this Agreement, no member shall
take any action inconsistent with the classification as a disregarded entity for
purposes of Treasury Regulation 301,7001-3.
Section 20. Other Business.
The Member, the Special Members and any Affiliate of the Member or the
Special Members may engage in or possess an interest in other business ventures
(unconnected with the Company) of every kind and description, independently or
with others. The Company shall not have any rights in or to such independent
ventures or the income or profits therefrom by virtue of this Agreement.
Section 21. Exculpation and Indemnification.
(a) Neither the Member nor the Special Members nor any Officer, Director,
employee or agent of the Company nor any employee, representative, agent or
Affiliate of the Member or the Special Members (collectively, the "Covered
Persons") shall be liable to the Company or any other Person who has an interest
in or claim against the Company for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Covered Person in good faith
on behalf of the Company and in a manner reasonably believed to be within the
scope of the authority conferred on such Covered Person by this Agreement,
except that a Covered Person shall be liable for any such loss, damage or claim
incurred by reason of such Covered Person's gross negligence or willful
misconduct.
(b) To the fullest extent permitted by applicable law, a Covered Person
shall be entitled to indemnification from the Company for any loss, damage or
claim incurred by such Covered Person by reason of any act or omission performed
or omitted by such Covered Person in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the authority conferred
on such Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Covered Person by reason of such Covered Person's gross negligence or
willful misconduct with respect to such acts or omissions; provided, however,
that any indemnity under this Section 21 by the Company shall be provided out of
and to the extent of Company assets only, and the Member and the Special Members
shall not have personal liability on account thereof; and provided further, that
so long as any Obligation is outstanding, no indemnity payment from funds of the
Company (as distinct from funds from other sources, such as insurance) of any
indemnity under this Section 21 shall be payable from amounts allocable to any
other Person pursuant to the Transaction Documents.
(c) To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by a Covered Person defending any claim, demand, action,
suit or proceeding shall,
13
from time to time, be advanced by the Company prior to the final disposition of
such claim, demand, action, suit or proceeding upon receipt by the Company of an
undertaking by or on behalf of the Covered Person to repay such amount if it
shall be determined that the Covered Person is not entitled to be indemnified as
authorized in this Section 21.
(d) A Covered Person shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the Covered
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Company, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
(e) To the extent that, at law or in equity, a Covered Person has duties
(including fiduciary duties) and liabilities relating thereto to the Company or
to any other Covered Person, a Covered Person acting under this Agreement shall
not be liable to the Company or to any other Covered Person for its good faith
reliance on the provisions of this Agreement or any approval or authorization
granted by the Company or any other Covered Person. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the Member
and the Special Members to replace such other duties and liabilities of such
Covered Person.
(f) The foregoing provisions of this Section 21 shall survive any
termination of this Agreement.
Section 22. Assignments.
Subject to Section 24, the Member may assign all of its limited liability
company interest in the Company. If the Member transfers all of its limited
liability company interest in the Company pursuant to this Section 22, the
transferee shall be admitted to the Company as a member of the Company upon its
execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement, which instrument may be a counterpart signature
page to this Agreement. Such admission shall be deemed effective immediately
prior to the transfer and, immediately following such admission, the transferor
Member shall cease to be a member of the Company. Notwithstanding anything in
this Agreement to the contrary, any successor to the Member by merger or
consolidation in compliance with the Transaction Documents shall, without
further act, be the Member hereunder, and such merger or consolidation shall not
constitute an assignment for purposes of this Agreement and the Company shall
continue without dissolution.
Section 23. Resignation.
So long as any Obligation is outstanding, the Member may not resign,
except as permitted under the Transaction Documents and if the Rating Agency
Condition is satisfied. If the Member is permitted to resign pursuant to this
Section 23, an additional member of the Company shall be admitted to the
Company, subject to Section 24, upon its execution of an instrument signifying
its agreement to be bound by the terms and conditions of this Agreement,
14
which instrument may be a counterpart signature page to this Agreement. Such
admission shall be deemed effective immediately prior to the resignation and,
immediately following such admission, the resigning Member shall cease to be a
member of the Company.
Section 24. Admission of Additional Members.
One or more additional members of the Company may be admitted to the
Company with the written consent of the Member; provided, however, that,
notwithstanding the foregoing, so long as any Obligation remains outstanding, no
additional Member may be admitted to the Company unless the Rating Agency
Condition is satisfied.
Section 25. Dissolution.
(a) Subject to Section 9(j) and the following sentence, the Company shall
be dissolved, and its affairs shall be wound up upon the first to occur of the
following: (i) the termination of the legal existence of the last remaining
member of the Company or the occurrence of any other event which terminates the
continued membership of the last remaining member of the Company in the Company
unless the business of the Company is continued in a manner permitted by this
Agreement or the Act or (ii) the entry of a decree of judicial dissolution under
Section 18-802 of the Act. Upon the occurrence of any event that causes the last
remaining member of the Company to cease to be a member of the Company, 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) Notwithstanding any other provision of this Agreement, each of the
Member and the Special Members waives any right it might have to agree in
writing to dissolve the Company upon the Bankruptcy of the Member or a Special
Member, or the occurrence of an event that causes the Member or a Special Member
to cease to be a member of the Company.
(d) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the Company in an orderly manner), and the assets of the Company shall
be applied in the manner, and in the order of priority, set forth in Section
18-804 of the Act.
(e) The Company shall terminate when (i) all of the assets of the Company,
after payment of or due provision for all debts, liabilities and obligations of
the Company (including all Obligations of the Company), ( shall have been
distributed to the Member in the manner provided for in this Agreement and (ii)
the Certificate of Formation shall have been canceled in the manner required by
the Act.
15
Section 26. Waiver of Partition; Nature of Interest.
Except as otherwise expressly provided in this Agreement, to the fullest
extent permitted by law, each of the Member and the Special Members hereby
irrevocably waives any right or power that such Person might have to cause the
Company or any of its assets to be partitioned, to cause the appointment of a
receiver for all or any portion of the assets of the Company, to compel any sale
of all or any portion of the assets of the Company pursuant to any applicable
law or to file a complaint or to institute any proceeding at law or in equity to
cause the dissolution, liquidation, winding up or termination of the Company.
The Member shall not have any interest in any specific assets of the Company,
and the Member shall not have the status of a creditor with respect to any
distribution pursuant to Section 16 hereof. The interest of the Member in the
Company is personal property.
Section 27. Benefits of Agreement; No Third-Party Rights.
None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditor of the Company or by any creditor of the Member or a
Special Member except for the provisions of Sections 5(c), 9(j), 10, 21(b), 24,
25(b) and 32(b) (such provisions the "Third Party Benefit Provisions"). Nothing
in this Agreement other than the Third Party Benefit Provisions shall be deemed
to create any right in any Person (other than Covered Persons) not a party
hereto, and this Agreement shall not be construed in any respect to be a
contract in whole or in part for the benefit of any third Person (except as
provided in Section 30 and except for the Third Party Benefit provisions).
Section 28. Severability of Provisions.
Each provision of this Agreement shall be considered severable and if for
any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those
portions of this Agreement which are valid, enforceable and legal.
Section 29. Entire Agreement.
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
Section 30. Binding Agreement.
Notwithstanding any other provision of this Agreement, the Member agrees
that this Agreement, including, without limitation, Sections 7, 8, 9, 10, 20,
21, 22, 23, 24, 26, 27, 30 and 32, constitutes a legal, valid and binding
agreement of the Member, and is enforceable against the Member by the
Independent Directors, in accordance with its terms. In addition, the
Independent Directors shall be intended beneficiaries of this Agreement.
16
Section 31. Governing Law.
This Agreement shall be governed by and construed under the laws of the
State of Delaware (without regard to conflict of laws principles), all rights
and remedies being governed by said laws.
Section 32. Amendments.
Subject to Section 9(j), this Agreement may be modified, altered,
supplemented or amended pursuant to a written agreement executed and delivered
by the Member. Notwithstanding anything to the contrary in this Agreement, so
long as any Obligation is outstanding, this Agreement may not be modified,
altered, supplemented or amended unless the Rating Agency Condition is
satisfied:
(a) unless the Rating Agency Condition is satisfied except: (i) to cure
any ambiguity or (ii) to convert or supplement any provision in a manner
consistent with the intent of this Agreement and the other Transaction
Documents, and
(b) without the consent of a Majority in Interest except: (i) to cure any
ambiguity or (ii) to convert or supplement any provision in a manner consistent
with the intent of this Agreement and the Transaction Documents.
Notwithstanding any other provision of this Agreement, the Company may
amend Schedule B hereto without the prior written consent of any party.
Section 33. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Agreement and all of which together
shall constitute one and the same instrument.
Section 34. Notices.
Any notices required to be delivered hereunder shall be in writing and
personally delivered, mailed or sent by telecopy, electronic mail or other
similar form of rapid transmission, and shall be deemed to have been duly given
upon receipt (a) in the case of the Company, to the Company at its address in
Section 2, (b) in the case of the Member, to the Member at its address as listed
on Schedule B attached hereto and (c) in the case of either of the foregoing, at
such other address as may be designated by written notice to the other party.
Section 35. Effectiveness.
Pursuant to Section 18-201 (d) of the Act, this Agreement shall be
effective as of the date hereof.
17
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
has duly executed this Limited Liability Company Agreement as of the ____ day of
_____, 200_.
MEMBER:
[ ]
------------------------------
By:
------------------------------------
Name:
------------------------------
Title:
------------------------------
SPECIAL MEMBER:
Name:
----------------------------------
Name:
----------------------------------
S-1
SCHEDULE A
Definitions
A. Definitions
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly Controlling or Controlled by or under direct or indirect common
Control with such Person.
"Agreement" means this Limited Liability Company Agreement of the Company,
together with the schedules attached hereto, as amended, restated or
supplemented or otherwise modified from time to time.
"Bankruptcy" means, with respect to any Person, if such Person (i) makes
an assignment for the benefit of creditors, (ii) files a voluntary petition in
bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it
an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, (v) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding of this nature, (vi) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all or any
substantial part of its properties, or (vii) if 120 days after the commencement
of any proceeding against the Person seeking reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, if the proceeding has not been dismissed, or if within 90 days
after the appointment without such Person's consent or acquiescence of a
trustee, receiver or liquidator of such Person or of all or any substantial part
of its properties, the appointment is not vacated or stayed, or within 90 days
after the expiration of any such stay, the appointment is not vacated. The
foregoing definition of "Bankruptcy" is intended to replace and shall supersede
and replace the definition of "Bankruptcy" set forth in Sections 18-101(1) and
18-304 of the Act.
"Board" or "Board of Directors" means the Board of Directors of the
Company.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on _______,
200_, as amended or amended and restated from time to time.
"Company" means [ ] Auto Receivables 200[ ] - [ ], LLC, a Delaware limited
liability company.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or general partnership or managing
member interests, by contract or otherwise.
A-1
"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 21(a).
"Debt Obligation" means, as of any date of determination, debt securities
issued by and loans in respect of money borrowed by the Company, provided,
however, that "Debt Obligation" does not include debt securities held by or
loans from the Member or its Affiliates.
"Directors" means the Persons elected to the Board of Directors from time
to time by the Member, including the Independent Directors, in their capacity as
managers of the Company. A Director is hereby designated as a "manager" of the
Company within the meaning of Section 18-101(10) of the Act.
"Financed Vehicle" has the meaning set forth in Section 7(a)(i).
"Independent Director" means a natural person who, for the five-year
period prior to his or her appointment as Independent Director has not been, and
during the continuation of his or her service as Independent Director is not:
(i) an employee, director, stockholder, partner or officer of the Company or any
of its Affiliates (other than his or her service as an Independent Director of
the Company or any Affiliate whose purposes are restricted to those
substantially similar to those in Section 7); (ii) a customer or supplier of the
Company or any of its Affiliates; or (iii) any member of the immediate family of
a person described in (i) or (ii).
"Issuer" has the meaning set forth in Section 7(a)(iv).
"Majority in Interest" means the holders of Debt Obligations evidencing
more than 50% by outstanding principal amount of all Debt Obligations.
"Material Action" means to consolidate or merge the Company with or into
any Person, or sell all or substantially all of the assets of the Company, or to
institute proceedings to have the Company be adjudicated bankrupt or insolvent,
or consent to the institution of bankruptcy or insolvency proceedings against
the Company or file a petition seeking, or consent to, reorganization or relief
with respect to the Company under any applicable federal or state law relating
to bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company or a
substantial part of its property, or make any assignment for the benefit of
creditors of the Company, or admit in writing the Company's inability to pay its
debts generally as they become due, or take action in furtherance of any such
action, or, to the fullest extent permitted by law, dissolve or liquidate the
Company.
"Member" means [________], 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.
A-2
"Obligations" shall mean any Securities and the indebtedness, liabilities
and obligations of the Company under or in connection with this Agreement, the
other Basic Documents or any related document in effect as of any date of
determination.
"Officer" means an officer of the Company described in Section 11.
"Officer's Certificate" means a certificate signed by any Officer of the
Company who is authorized to act for the Company in matters relating to the
Company.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association, joint
stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.
"Rating Agency" means any nationally recognized statistical rating
organization currently rating any Security.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given ten days prior notice thereof and that each
of the Rating Agencies shall have notified the Company in writing that such
action will not result in a reduction or withdrawal or qualification of the then
current rating by such Rating Agency of any of the Securities.
"Receivables" has the meaning set forth in Section 7(a)(i).
"Related Assets" has the meaning set forth in Section 7(a)(i).
"Security" means any bond, note, certificate or other security issued by
the Company or an Issuer and secured primarily by or evidencing beneficial
ownership interest in the Receivables and Related Assets;
"Securitization Agreement" has the meaning set forth in Section 7(a)(vi).
"Special Member" means, upon such person's admission to the Company as a
member of the Company pursuant to Section 5(c), a person acting as Independent
Director, in such person's capacity as a member of the Company. A Special Member
shall only have the rights and duties expressly set forth in this Agreement.
"Transaction Documents" means this Agreement, any Securitization Agreement
and all documents and certificates contemplated thereby or delivered in
connection therewith.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and
plural forms of the defined terms. The words "include" and "including" shall be
deemed to be followed by the phrase "without limitation." The terms "herein,"
"hereof" and "hereunder" and other words of 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
A-3
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.
A-4
SCHEDULE B
Member
B-1
SCHEDULE C
Directors
C-1
SCHEDULE D
Officers
Officer Title
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D-1
