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
2
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
3
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;
4
(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;
5
(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
6
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
7
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.
8
(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;
9
(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);
10
(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
11
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
12
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 ___ day of _________________, 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
-------------------------------------------------------------------------------
Capital Limited Liability
Name Mailing Address 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
