Exhibit 3.1
FORM OF 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.
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The name of the limited liability company heretofore formed and continued
hereby is USAA Acceptance, LLC.
Section 2. Principal Business Office.
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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.
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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.
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Section 4. Registered Agent.
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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.
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(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.
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Section 6. Certificates.
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Xxxxxxx X. Broker is hereby designated as an "authorized person" within
the meaning of the Act, and has executed, delivered and filed the Certificate
of Formation of the Company with the Secretary of State of the State of
Delaware. Upon the filing of the Certificate of Formation with the Secretary
of State of the State of Delaware, his powers as an "authorized person"
ceased, and the Member thereupon became the designated "authorized person" and
shall continue as the designated "authorized person" within the meaning of the
Act. An Officer may execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify
to do business in New York, Texas and in any other jurisdiction in which the
Company may wish to conduct business.
The existence of the Company as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in the Act.
Section 7. Purposes.
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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.
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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;
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(iii) to engage in any activities necessary to hold, receive,
exchange, sell, transfer, otherwise dispose of and otherwise
deal in and exercise all rights, powers, privileges, and all
other incidents of ownership or possession with respect to,
all of the Company's property, including the Contracts and any
property or interest that may be acquired by the Company as a
result of any distribution in respect of the Contracts and any
property received by the Company as a contribution from the
Member;
(iv) to execute and deliver, and to perform its obligations as
depositor or in any other capacity under one or more trust
agreements (as amended from time to time, the "Trust
Agreements"), to sell or otherwise transfer all or any of the
Contracts to one or more trusts 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
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instruments as shall be necessary or desirable to cause any of
the Securities to be listed on any of the Exchanges; to
execute, deliver, file and perform such applications, reports,
surety bonds, irrevocable consents, appointments of attorney
for service of process and other papers and documents as shall
be necessary or desirable to register any of the Securities
under the securities or "Blue Sky" laws of such jurisdictions
as may be deemed necessary or desirable; and to execute,
deliver and perform letters or documents to, or instruments for
filing with, a depository relating to any of the Securities;
(vii) to prepare or cause the preparation of, and execute and
deliver disclosure documents relating to the offer and sale of
the Securities;
(viii) to execute and deliver, and to perform its obligations under,
one or more servicing agreements, sale and servicing
agreements, pooling and servicing agreements, indentures, and
underwriting, purchase or placement agreements or similar
agreements (collectively, the "Trust Documents"), pursuant to
which Contracts will be sold to Trusts and will be serviced
and Securities will be issued or sold, to execute and deliver,
and to perform its obligations under, any amendments,
supplements or assignments, reassignments or reconveyances of
receivables and other assets related to any of the Trust
Documents, and to engage in any activities necessary,
appropriate or convenient to, and to execute, deliver and
perform any other agreement, notice or documents in connection
with, relating to or contemplated by, the Trust Documents;
(ix) to execute and deliver, and to perform its obligations under
one or more cash collateral account agreements, letter of
credit agreements, reimbursement agreements, swap agreements
or other forms of agreement providing credit or payment
enhancement (and any related documents, certificates and
instruments) with respect to the Contracts sold to the Trust
(collectively, "Credit Enhancement Agreements") with any bank,
insurance company or other person or entity;
(x) to execute and deliver, and to perform its obligations under,
each document or agreement to which it becomes a party, and to
execute and deliver, and to perform its obligations under, any
amendments or supplements related to the foregoing, and to
engage in any activities necessary, appropriate or convenient
to, and to execute, deliver and perform any other agreement,
notice or document in connection with, relating to or
contemplated by, the foregoing;
(xi) to acquire, hold, enjoy, sell or otherwise transfer and grant
rights in all of the rights and privileges of any certificate,
interest or other
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indicia of beneficial ownership or any Securities issued by any
Trust or any other person or entity to the Company pursuant to
any Purchase Agreement, Trust Agreement, Trust Document, Credit
Enhancement Agreement or other document, and to transfer such
certificate, interest or other indicia of beneficial ownership
interest or Security to another person or entity;
(xii) to engage in any activities necessary, appropriate or
convenient to, and to execute, deliver and perform any other
agreement, notice or document in connection with or relating
to, the activities described above, including the filing of
any notices, applications, financing statements and other
documents necessary, advisable or convenient to comply with
any applicable laws, statutes, rules or regulations;
(xiii) to acquire, own, hold, sell, transfer, service, convey, safe
keep, dispose of, pledge, assign, borrow money against,
finance, refinance or otherwise deal with, publicly or
privately issued asset backed securities (whether with
unrelated third parties or with affiliated entities); and
(xiv) to engage in any lawful act or activity and to exercise any
powers permitted to limited liability companies organized
under the laws of the State of Delaware that are related or
incidental to, or necessary, convenient or advisable for the
accomplishment of, the above-mentioned purposes (including the
entering into of referral, management, servicing and
administration agreements).
(b) to enter into the Basic Documents and all documents, agreements,
certificates, assignments, reassignments, amendments, supplements or
financing statements contemplated thereby or related thereto, all
without any further act, vote or approval of any Member, Director,
Officer or other person notwithstanding any other provision of this
Agreement, the Act or applicable law, rule or regulation. The
foregoing authorization shall not be deemed a restriction on the
powers of any Director or Officer to enter into other agreements on
behalf of the Company.
Section 9. Management.
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(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
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the Management Agreement. A Director need not be a Member. The
Directors elected by the Member on the date hereof are listed on
Schedule D hereto.
(b) Powers. Subject to Section 9(j), the Company Directors shall have
the power to do any and all acts necessary, convenient or incidental
to or for the furtherance of the purposes described herein,
including all powers, statutory or otherwise. Subject to Section 8,
the Company Directors have the authority to bind the Company.
(c) Meetings of the Board of Directors and the Company Directors. The
Board of Directors and the Company Directors may hold separate
meetings, both regular and special, within or outside the State of
Delaware. Regular meetings of the Board or the Company Directors may
be held without notice at such time and at such place as shall from
time to time be determined by the Board or the Company Directors, as
the case may be. Special meetings of the Board or the Company
Directors may be called by the President on not less than one day's
notice to each relevant Director by telephone, facsimile, mail,
telegram or any other means of communication, and special meetings
shall be called by the President or Secretary in like manner and
with like notice upon the written request of any one or more of the
Directors.
(d) Quorum: Acts of the Board and the Company Directors. At all meetings
of the Board, a majority of the Directors shall constitute a quorum
for the transaction of business and, except as otherwise provided in
any other provision of this Agreement, the act of a majority of the
Directors present at any meeting at which there is a quorum shall be
the act of the Board. At all meetings of the Company Directors, a
majority of the Company Directors shall constitute a quorum for the
transaction of business and, except as otherwise provided in any
other provision of this Agreement, the act of a majority of the
Company Directors present at any meeting at which there is a quorum
shall be the act of the Board. If a quorum shall not be present at
any meeting of the Board or the Company Directors, the Directors
present at such meeting may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a
quorum shall be present. Any action required or permitted to be
taken at any meeting of the Board or of any committee thereof, or
the Company Directors, may be taken without a meeting if all members
of the Board or committee, or all Company Directors, as the case may
be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board or committee, or
the Company Directors, as the case may be.
(e) Electronic Communications. Members of the Board, or any committee
designated by the Board, or the Company Directors may participate in
meetings of the Board, or any committee, or the Company Directors,
by means of telephone conference or similar communications equipment
that allows all Persons participating in the meeting to hear each
other, and such participation in a meeting shall constitute presence
in person at the meeting. If all the participants are participating
by telephone conference or similar communications equipment, the
meeting shall be deemed to be held at the principal place of
business of the Company.
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(f) Committees of Directors.
(i) The Board may, by resolution passed by a majority of the
Board, designate one or more committees, each committee to
consist of one or more of the Directors. The Board may
designate one or more Directors as alternate members of any
committee, who may replace any absent or disqualified member
at any meeting of the committee.
(ii) In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not
disqualified from voting, whether or not such members
constitute a quorum, may unanimously appoint another member of
the Board to act at the meeting in the place of any such
absent or disqualified member.
(iii) Any such committee, to the extent provided in the resolution
of the Board, and subject to, in all cases, Sections 9(j) and
10, shall have and may exercise all the powers and authority
of the Board in the management of the business and affairs
Company. Such committee or committees shall have such name or
names as may be determined from time to time by resolution
adopted by the Board. Each committee shall keep regular
minutes of its meetings and report the same to the Board when
required.
(g) Compensation of Directors; Expenses. The Company Directors shall
have the authority to fix the compensation of Directors. The
Directors may be paid their expenses, if any, of attendance at
meetings of the Board or the Company Directors, which may be a fixed
sum for attendance at each meeting of the Board or the Company
Directors, or a stated salary as Director. No such payment shall
preclude any Director from serving the Company in any other capacity
and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee
meetings.
(h) Removal of Directors. Unless otherwise restricted by law, any
Director or the entire Board of Directors may be removed or
expelled, with or without cause, at any time by the Member, and,
subject to Section 10, any vacancy caused by any such removal or
expulsion may be filled by action of the Member.
(i) Directors as Agents. To the extent of their powers set forth in this
Agreement and subject to Section 9(j), the Company Directors are
agents of the Company for the purpose of the Company's business, and
the actions of the Company Directors taken in accordance with such
powers set forth in this Agreement shall bind the Company.
Notwithstanding the last sentence of Section 18-402 of the Act,
except as provided in this Agreement or in a resolution of the
Company Directors, a Director may not bind the Company.
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(j) Limitations on the Company's Activities.
(i) This Section 9(j) is being adopted in order to comply with
certain provisions required in order to qualify the Company as
a "special purpose" entity.
(ii) The Member shall not, so long as any Trust Obligation is
outstanding, amend, alter, change or repeal the definition of
"Independent Director" or Sections 5(c), 7, 8, 9, 10, 16, 20,
21, 22, 23, 24, 25, 26, 29 or 31 or Schedule A of this
Agreement without the unanimous written consent of the Board
(including all Independent Directors). Subject to this Section
9(j), the Member reserves the right to amend, alter, change or
repeal any provisions contained in this Agreement in
accordance with Section 31.
(iii) Notwithstanding any other provision of this Agreement and any
provision of law that otherwise so empowers the Company, the
Member, the Board, any Officer or any other Person, neither
the Member nor the Board nor any Officer nor any other Person
shall be authorized or empowered, nor shall they permit the
Company, without the prior unanimous written consent of the
Member and all members of the Board (including all Independent
Directors), to take any Material Action, provided, however,
that the Board may not vote on, or authorize the taking of,
any Material Action, unless there are at least two Independent
Directors then serving in such capacity.
(iv) The Company Directors and the Member shall cause the Company
to do or cause to be done all things necessary to preserve and
keep in full force and effect its existence, rights (charter
and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or
franchise if: (1) the Company Directors shall determine that
the preservation thereof is no longer desirable for the
conduct of its business and that the loss thereof is not
disadvantageous in any material respect to the Company and (2)
the Rating Agency Condition is satisfied. The Company
Directors also shall cause the Company to:
(A) maintain its own separate office, books and records and
bank accounts;
(B) at all times hold itself out to the public and all other
Persons as a legal entity separate from the Member and any
other Person;
(C) have a Board of Directors separate from that of the Member
and any other Person;
(D) file its own tax returns, if any, as may be required under
applicable law, to the extent (1) not part of a
consolidated group filing a consolidated return or returns
or (2) not treated as a division for tax purposes of
another taxpayer, and pay any taxes so required to be paid
under applicable law;
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(E) except as contemplated by the Basic Documents, not
commingle its assets with assets of any other Person;
(F) conduct its business in its own name and strictly comply
with all organizational formalities to maintain its
separate existence;
(G) maintain separate financial statements and prepare and
maintain its financial records in accordance with
generally accepted accounting principles;
(H) pay its own liabilities only out of its own funds;
(I) maintain an arm's length relationship with its Affiliates
and the Member;
(J) pay the salaries of its own employees, if any;
(K) not hold out its credit or assets as being available to
satisfy the obligations of others;
(L) allocate fairly and reasonably any overhead for shared
office space;
(M) use separate stationery, invoices and checks;
(N) except as contemplated by the Basic Documents, not pledge
its assets for the benefit of any other Person;
(O) correct any known misunderstanding regarding its separate
identity;
(P) maintain adequate capital in light of its contemplated
business purpose, transactions and liabilities;
(Q) cause its Board of Directors to meet at least annually or
act pursuant to written consent and keep minutes of such
meetings and actions and observe all other Delaware
limited liability company formalities;
(R) not acquire any securities of the Member; and
(S) cause the Directors, Officers, agents and other
representatives of the Company to act at all times with
respect to the Company consistently and in furtherance of
the foregoing and in the best interests of the Company.
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Failure of the Company, or the Member or Company Directors on
behalf of the Company, to comply with any of the foregoing covenants
or any other covenants contained in this Agreement shall not affect
the status of the Company as a separate legal entity or the limited
liability of the Member or the Directors.
(v) So long as any Trust Obligation is outstanding, the Company
Directors shall not cause or permit the Company to:
(A) except as contemplated by the Basic Documents, guarantee
any obligation of any Person, including any Affiliate;
(B) engage, directly or indirectly, in any business other than
the actions required or permitted to be performed under
Section 7, Section 8, the Basic Documents or this Section
9(j);
(C) incur, create or assume any indebtedness other than as
expressly permitted under the Basic Documents;
(D) make or permit to remain outstanding any loan or advance
to, or own or acquire any stock or securities of, any
Person, except that the Company may invest in those
investments permitted under the Basic Documents and may
make any advance required or expressly permitted to be
made pursuant to any provisions of the Basic Documents and
permit the same to remain outstanding in accordance with
such provisions;
(E) to the fullest extent permitted by law, engage in any
dissolution, liquidation, consolidation, merger, asset
sale or transfer of ownership interests other than such
activities as are expressly permitted pursuant to any
provision of the Basic Documents; or
(F) form, acquire or hold any subsidiary (whether corporate,
partnership, limited liability company or other).
Section 10. Independent Directors.
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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
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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.
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(a) Officers. Subject to the immediately following sentence, the
Officers shall be designated by the Company Directors and shall
consist of at least a President, a Secretary and a Treasurer. The
initial Officers are set forth on Schedule E hereto. The Company
Directors may also choose, without limitation, one or more Vice
Presidents, Assistant Secretaries and Assistant Treasurers. Any
additional or successor Officers shall be chosen by the Company
Directors. Any number of offices may be held by the same person. The
Company Directors may appoint such other Officers and agents as it
shall deem necessary or advisable who shall hold their offices for
such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Company Directors. The
salaries of all Officers and agents of the Company shall be fixed by
or in the manner prescribed by the Company Directors. The Officers
shall hold office until their successors are chosen and qualified.
Any Officer may be removed at any time, with or without cause, by
the affirmative vote of a majority of the Company Directors. Any
vacancy occurring in any office of the Company shall be filled by
the Company Directors.
(b) President. The President shall be the chief executive officer of the
Company, shall preside at all meetings of the Board and the Company
Directors, shall be responsible for the general and active
management of the business of the Company and shall see that all
orders and resolutions of the Board and the Company Directors are
carried into effect. The President or any other Officer authorized
by the President or the Company Directors shall execute all
contracts or agreements of the Company, except: (i) where required
or permitted by law or this Agreement to be otherwise signed and
executed, including Section 8(b); (ii) where signing and execution
thereof shall be expressly delegated by the Board to some other
Officer or agent of the Company, and (iii) as otherwise permitted in
Section 11(c).
(c) Vice President. In the absence of the President or in the event of
the President's inability to act, the Vice President, if any (or in
the event there be more than one Vice President, the Vice Presidents
in the order designated by the Company Directors, or in the absence
of any designation, then in the order of their election), shall
perform the duties of the President, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents, if any, shall perform such other
duties and have such other powers as the Company Directors may from
time to time prescribe.
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(d) Secretary and Assistant Secretary. The Secretary shall be
responsible for filing legal documents and maintaining records for
the Company. The Secretary shall attend all meetings of the Board
and the Company Directors, and record all the proceedings of the
meetings of the Company, of the Board and of the Company Directors
in a book to be kept for that purpose and shall perform like duties
for the standing committees when required. The Secretary shall give,
or shall cause to be given, notice of all meetings of the Member, if
any, and meetings of the Board and the Company Directors, and shall
perform such other duties as may be prescribed by the Board, the
Company Directors or the President, under whose supervision the
Secretary shall serve. The Assistant Secretary, or if there be more
than one, the Assistant Secretaries in the order determined by the
Company Directors (or if there be no such determination, then in
order of their election), shall, in the absence of the Secretary or
in the event of the Secretary's inability to act, perform the duties
and exercise the powers of the Secretary and shall perform such
other duties and have such other powers as the Company Directors may
from time to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall have the
custody of the Company funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging
to the Company and shall deposit all moneys and other valuable
effects in the name and to the credit of the Company in such
depositories as may be designated by the Company Directors. The
Treasurer shall disburse the funds of the Company as may be ordered
by the Company Directors, taking proper vouchers for such
disbursements, and shall render to the President and to the Company
Directors, at its regular meetings or when the Company Directors so
require, an account of all of the Treasurer's transactions and of
the financial condition of the Company. The Assistant Treasurer, or
if there shall be more than one, the Assistant Treasurers in the
order determined by the Company Directors (or if there be no such
determination, then in the order of their election), shall, in the
absence of the Treasurer or in the event of the Treasurer's
inability to act, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other
powers as the Company Directors may from time to time prescribe.
(f) Officers as Agents. The Officers, to the extent of their powers set
forth in this Agreement or otherwise vested in them by action of the
Company Directors not inconsistent with this Agreement, are agents
of the Company for the purpose of the Company's business and,
subject to Section 9(j), the actions of the Officers taken in
accordance with such powers shall bind the Company.
(g) Duties of Board and Officers. Except to the extent otherwise
provided herein, each Director and Officer shall have a fiduciary
duty of loyalty and care similar to that of directors and officers
of business corporations organized under the General Corporation Law
of the State of Delaware.
(h) Specific Officer Authorizations. To accomplish the Company's
purposes, but notwithstanding any other provision of this Agreement,
the Officers without the
13
vote, act or approval of any other Person, except as otherwise
specified below, are authorized as follows:
(i) The Treasurer, with the written approval of either the
Chairman of the Board or the President and Chief Executive
Officer, and subject to any other limitations specified in
this Agreement, is authorized to form or cause to be formed,
from time to time, one or more Trusts for the purpose of
issuing and selling the Securities, and determine the terms of
the Securities, including, without limitation, the relative
principal amounts, underwriting discounts, placement fees, the
stated rate or rates of interest, the maturity dates and the
offering prices to the public or private purchasers.
(ii) The President and the Treasurer of the Company (each, an
"Executive Officer"), and any other Executive Vice, Senior
Vice, Vice or Assistant Vice President of the Company
designated as an authorized officer for purposes of one or
more transactions contemplated by the Company's powers and
authorities stated in this Agreement, by a written instrument
signed by an Executive Officer (which written instrument shall
conclusively establish and evidence such designation until
revoked by any Executive Officer), are designated as a "Proper
Officer" for all purposes and authorizations set forth in this
Agreement. The Proper Officers are, and each of them acting
singly is, authorized on behalf of the Company or on behalf of
the Company as depositor of the Trusts, without any further
act, vote or approval of any Person:
(A) to negotiate, execute and deliver Purchase Agreements,
Trust Agreements, Trust Documents, Credit Enhancement
Agreements or other agreements or arrangements with such
underwriters or other Persons as shall be specified in the
Registration Statement or other offering material or
circular, providing for the sale of the Securities and
containing such representations, conditions, covenants and
agreements as the Proper Officer executing the same shall
approve, the execution thereof by such Proper Officer to
be conclusive evidence of such approval; and that the
Proper Officers are, and each of them is, acting singly,
authorized and empowered to execute and deliver or cause
to be executed and delivered any and all certificates,
documents and instruments as any Proper Officer may
approve as necessary or desirable in order to enable the
Company or the Company on behalf of the Trusts fully and
properly to perform its obligations under any such
agreements or arrangements, the execution of any such
certificate, document or instrument to be conclusive
evidence of such approval;
(B) to cause to be prepared, executed and filed all listing
applications, indemnity agreements and other documents for
the listing of the Securities on any securities exchange
and the registration of the
14
Securities under the Securities Exchange Act of 1934, as
amended ("Exchange Act"), to cause to be prepared,
executed and filed all applications, reports, surety
bonds, irrevocable consents and appointments of attorneys
for service of process, documents and instruments as may
be deemed necessary or appropriate in order to register or
qualify the Securities for issuance and sale or to exempt
the issuance and sale under the securities laws of the
various jurisdictions in which the Securities are to be
sold and to cause to be prepared, executed, acknowledged,
verified, filed, delivered or acknowledged such
applications, reports, undertakings, resolutions, and
other papers and instruments, and requests for rulings
from appropriate federal and state banking, tax,
securities and other agencies having jurisdiction as may
be necessary or appropriate to provide for the issuance of
the Securities and to accomplish the purpose and intent of
this Agreement;
(C) from time to time to do, or cause to be done, all such
other acts and things and to execute and deliver or cause
to be executed and delivered all such instruments,
agreements, certificates and documents, as each such
officer shall deem necessary, desirable, or appropriate to
carry out the purpose and intent of this Agreement;
(D) to enter into, on behalf of the Company, one or more
Credit Enhancement Agreements with such bank, insurance
company or other financial institution as shall be
selected by the Proper Officers, with such terms and
conditions as may be approved by the Proper Officer
executing the same, the execution and delivery of which
shall evidence conclusively the Company's approval of the
terms and conditions thereof;
(E) to prepare, execute and file with the Commission under the
Securities Act of 1933 one or more Registration
Statements, such amendment or amendments (both
pre-effective and post-effective) and schedules and
exhibits thereto and such prospectuses and prospectus
supplements relating to the issuance of the Securities and
such supplements thereto, all as they may deem necessary
or appropriate;
(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
15
and documents deemed necessary or desirable to register
any of the Securities under, or obtain for any of the
Securities an exemption from, the securities or "blue sky"
laws of any jurisdiction; and to execute, deliver and
perform letters or documents to, or instruments for filing
with, a depository relating to any of the Securities; and
(G) to execute and deliver on behalf of the Company and in its
name and on behalf of each director of the Company a power
of attorney, appointing Xxxx X. Xxxxxx, President and
Chief Executive Officer, Xxxxxxxx X. Xxxxxxxx, Senior Vice
President, Treasurer, Xxxxxxx X. Broker, Vice President,
and Xxxxx X. XxXxxxxxx, Vice President of the Company, or
any one of them, to act as attorneys-in-fact for the
purpose of executing and filing with the Commission the
Registration Statement and any and all amendments (both
pre-effective and post-effective) or supplements thereto
with any schedules and exhibits and other documents, and
to act as agents for service of process by the Commission
to be named as such in the Registration Statement with all
the powers incident to such appointments.
(iii) All actions taken and expenses incurred by any Officers prior
to the effective date of this Agreement in furtherance of any
of the purposes stated or actions authorized in this Agreement
are ratified, confirmed, adopted and approved.
Section 12. Limited Liability.
-----------------
Except as otherwise expressly provided by the Act, the debts, obligations
and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be the debts, obligations and liabilities solely of the
Company, and neither the Member nor the Special Members nor any Director shall
be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a Member, Special Member or Director of the
Company.
Section 13. Capital Contributions.
---------------------
The Member has contributed to the Company property of an agreed value as
listed on Schedule B attached hereto. In accordance with Section 5(c), the
Special Members shall not be required to make any capital contributions to the
Company.
Section 14. Additional Contributions.
------------------------
The Member is not required to make any additional capital contribution to
the Company. However, the Member may make additional capital contributions to
the Company at any time upon the written consent of such Member. To the extent
that the Member makes an additional capital contribution to the Company, the
Member shall revise Schedule B of this Agreement. The provisions of this
Agreement, including this Section 14, are intended to benefit the Member and
the Special Members and, to the fullest extent permitted by law, shall not be
construed as
16
conferring any benefit upon any creditor of the Company (and no
such creditor of the Company shall be a third-party beneficiary of this
Agreement) and the Member and the Special Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the
Company or to issue any call for capital pursuant to this Agreement.
Section 15. Allocation of Profits and Losses.
--------------------------------
The Company's profits and losses shall be allocated to the Member.
Section 16. Distributions.
-------------
Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Company Directors. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not
be required to make a distribution to the Member on account of its interest in
the Company if such distribution would violate Section 18-607 of the Act or
any other applicable law or any Basic Document.
Section 17. Books and Records.
-----------------
The Company Directors shall keep or cause to be kept complete and
accurate books of account and records with respect to the Company's business.
The books of the Company shall at all times be maintained by the Company
Directors. The Member and its duly authorized representatives shall have the
right to examine the Company books, records and documents during normal
business hours. The Company, and the Company Directors on behalf of the
Company, shall not have the right to keep confidential from the Member any
information that the Company Directors would otherwise be permitted to keep
confidential from the Member pursuant to Section 18-305(c) of the Act. The
Company's books of account shall be kept using the method of accounting
determined by the Company Directors. The Company's independent auditor, if
any, shall be an independent public accounting firm selected by the Company
Directors.
Section 18. Reports.
-------
(a) Within 60 days after the end of each fiscal quarter, the Company
Directors shall cause to be prepared an unaudited report setting
forth as of the end of such fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a balance
sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter, an income
statement of the Company for such fiscal quarter.
(b) The Company Directors shall use diligent efforts to cause to be
prepared and mailed to the Member, within 90 days after the end of
each fiscal year, an audited or unaudited report setting forth as of
the end of such fiscal year:
(i) a balance sheet of the Company;
17
(ii) an income statement of the Company for such fiscal year; and
(iii) a statement of the Member's capital account.
(c) The Company Directors shall, after the end of each fiscal year, use
reasonable efforts to cause the Company's independent accountants,
if any, to prepare and transmit to the Member as promptly as
possible any such tax information as may be reasonably necessary to
enable the Member to prepare its federal, state and local income tax
returns relating to such fiscal year.
Section 19. Other Business.
--------------
The Member, the Special Members and any Affiliate of the Member or the
Special Members may engage in or possess an interest in other business
ventures (unconnected with the Company) of every kind and description,
independently or with others. The Company shall not have any rights in or to
such independent ventures or the income or profits therefrom by virtue of this
Agreement.
Section 20. Exculpation and Indemnification.
-------------------------------
(a) Neither the Member nor the Special Members nor any Officer,
Director, employee or agent of the Company nor any employee,
representative, agent or Affiliate of the Member or the Special
Members (collectively, the "Covered Persons") shall be liable to the
Company or any other Person who has an interest in or claim against
the Company for any loss, damage or claim incurred by reason of any
act or omission performed or omitted by such Covered Person in good
faith on behalf of the Company and in a manner reasonably believed
to be within the scope of the authority conferred on such Covered
Person by this Agreement, except that a Covered Person shall be
liable for any such loss, damage or claim incurred by reason of such
Covered Person's gross negligence or willful misconduct.
(b) To the fullest extent permitted by applicable law, a Covered Person
shall be entitled to indemnification from the Company for any loss,
damage or claim incurred by such Covered Person by reason of any act
or omission performed or omitted by such Covered Person in good
faith on behalf of the Company and in a manner reasonably believed
to be within the scope of the authority conferred on such Covered
Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim
incurred by such Covered Person by reason of such Covered Person's
gross negligence or willful misconduct with respect to such acts or
omissions; provided, however, that any indemnity under this Section
20 by the Company shall be provided out of and to the extent of
Company assets only, and the Member and the Special Members shall
not have personal liability on account thereof; and provided
further, that so long as any Trust Obligation is outstanding, no
indemnity payment from funds of the Company (as distinct from funds
from other sources, such as insurance) of any
18
indemnity under this Section 20 shall be payable from amounts
allocable to any other Person pursuant to the Basic Documents.
(c) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person defending any
claim, demand, action, suit or proceeding shall, from time to time,
be advanced by the Company prior to the final disposition of such
claim, demand, action, suit or proceeding upon receipt by the
Company of an undertaking by or on behalf of the Covered Person to
repay such amount if it shall be determined that the Covered Person
is not entitled to be indemnified as authorized in this Section 20.
(d) A Covered Person shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions,
reports or statements presented to the Company by any Person as to
matters the Covered Person reasonably believes are within such other
Person's professional or expert competence and who has been selected
with reasonable care by or on behalf of the Company, including
information, opinions, reports or statements as to the value and
amount of the assets and liabilities of the Company, or any other
facts pertinent to the existence and amount of assets from which
distributions to the Member might properly be paid.
(e) To the extent that, at law or in equity, a Covered Person has duties
(including fiduciary duties) and liabilities relating thereto to the
Company or to any other Covered Person that is a party to or is
otherwise bound by this Agreement, a Covered Person acting under
this Agreement shall not be liable to the Company or to any such
other Covered Person for its good faith reliance on the provisions
of this Agreement or any such approval or authorization granted by
the Company or any other Covered Person. The provisions of this
Agreement, to the extent that they restrict the duties and
liabilities of a Covered Person otherwise existing at law or in
equity, are agreed by the Member and the Special Members to replace
such other duties and liabilities of such Covered Person.
(f) So long as any Trust Obligation is outstanding, no expense of the
Company shall be payable from amounts allocable to any other Person
pursuant to the Basic Documents.
(g) The foregoing provisions of this Section 20 shall survive any
termination of this Agreement.
Section 21. Assignments.
-----------
Subject to Section 23, the Member may assign in whole or in part its
limited liability company interest in the Company with notification to each
Rating Agency. If the Member transfers all of its limited liability company
interest in the Company pursuant to this Section 21, the transferee shall be
admitted to the Company as a member of the Company upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement, which instrument may be a counterpart signature page to this
Agreement. Such admission shall be deemed effective immediately prior to the
transfer and, immediately
19
following such admission, the transferor Member shall cease to be a member of
the Company. Notwithstanding anything in this Agreement to the contrary, any
successor to the Member by merger or consolidation in compliance with the
Basic Documents shall, without further act, be the Member hereunder, and such
merger or consolidation shall not constitute an assignment for purposes of
this Agreement and the Company shall continue without dissolution.
Section 22. Resignation.
-----------
So long as any Trust Obligation is outstanding, the Member may not
resign, except if the Rating Agency Condition is satisfied. If the Member is
permitted to resign pursuant to this Section 22, an additional member of the
Company shall be admitted to the Company, subject to Section 23, upon its
execution of an instrument signifying its agreement to be bound by the terms
and conditions of this Agreement, which instrument may be a counterpart
signature page to this Agreement. Such admission shall be deemed effective
immediately prior to the resignation and, immediately following such
admission, the resigning Member shall cease to be a member of the Company.
Section 23. Admission of Additional Members.
-------------------------------
One or more additional members of the Company may be admitted to the
Company with the written consent of the Member; provided, however, that,
notwithstanding the foregoing, so long as any Trust Obligation remains
outstanding, no additional Member may be admitted to the Company unless the
Rating Agency Condition is satisfied.
Section 24. Dissolution.
-----------
(a) The Company shall be dissolved, and its affairs shall be wound up
upon the first to occur of the following: (i) the termination of the
legal existence of the last remaining member of the Company or the
occurrence of any other event which terminates the continued
membership of the last remaining member of the Company in the
Company unless the business of the Company is continued in a manner
permitted by this Agreement or the Act or (ii) the entry of a decree
of judicial dissolution under Section 18-802 of the Act. Upon the
occurrence of any event that causes the last remaining Member of the
Company to cease to be a member of the Company, to the fullest
extent permitted by law, the personal representative of such Member
is hereby authorized to, and shall, within 90 days after the
occurrence of the event that terminated the continued membership of
such Member in the Company, agree in writing (i) to continue the
Company and (ii) to the admission of the personal representative or
its nominee or designee, as the case may be, as a substitute member
of the Company, effective as of the occurrence of the event that
terminated the continued membership of the last remaining Member of
the Company in the Company.
(b) Notwithstanding any other provision of this Agreement, the
Bankruptcy of the Member or a Special Member shall not cause the
Member or Special Member, respectively, to cease to be a member of
the Company and upon the occurrence of such an event, the business
of the Company shall continue without dissolution.
20
(c) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the
sale of the assets of the Company in an orderly manner), and the
assets of the Company shall be applied in the manner, and in the
order of priority, set forth in Section 18-804 of the Act.
(d) The Company shall terminate when (i) all of the assets of the
Company, after payment of or due provision for all debts,
liabilities and obligations of the Company shall have been
distributed to the Member in the manner provided for in this
Agreement and (ii) the Certificate of Formation shall have been
canceled in the manner required by the Act.
Section 25. Waiver of Partition; Nature of Interest.
---------------------------------------
Except as otherwise expressly provided in this Agreement, to the fullest
extent permitted by law, each of the Member and the Special Members hereby
irrevocably waives any right or power that such Person might have to cause the
Company or any of its assets to be partitioned, to cause the appointment of a
receiver for all or any portion of the assets of the Company, to compel any
sale of all or any portion of the assets of the Company pursuant to any
applicable law or to file a complaint or to institute any proceeding at law or
in equity to cause the dissolution, liquidation, winding up or termination of
the Company. The Member shall not have any interest in any specific assets of
the Company, and the Member shall not have the status of a creditor with
respect to any distribution pursuant to Section 16 hereof. The interest of the
Member in the Company is personal property.
Section 26. Benefits of Agreement; No Third-Party Rights.
--------------------------------------------
None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditor of the Company or by any creditor of the Member or
a Special Member. Nothing in this Agreement shall be deemed to create any
right in any Person (other than Covered Persons) not a party hereto, and this
Agreement shall not be construed in any respect to be a contract in whole or
in part for the benefit of any third Person (except as provided in Section
29).
Section 27. Severability of Provisions.
--------------------------
Each provision of this Agreement shall be considered severable and if for
any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect
those portions of this Agreement that are valid, enforceable and legal.
Section 28. Entire Agreement.
----------------
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
Section 29. Binding Agreement.
-----------------
Notwithstanding any other provision of this Agreement, the Member agrees
that this Agreement, including, without limitation, Sections 7, 8, 9, 10, 20,
21, 22, 23, 24, 26, 29 and 31,
21
constitutes a legal, valid and binding agreement of the Member, and is
enforceable against the Member by the Independent Directors, in accordance
with its terms. In addition, the Independent Directors shall be intended
beneficiaries of this Agreement.
Section 30. Governing Law.
-------------
This Agreement shall be governed by and construed under the laws of the
State of Delaware (without regard to conflict of laws principles), all rights
and remedies being governed by said laws.
Section 31. Amendments.
----------
Subject to Section 9(j), this Agreement may be modified, altered,
supplemented or amended pursuant to a written agreement executed and delivered
by the Member. Notwithstanding anything to the contrary in this Agreement, so
long as any Trust Obligation is outstanding, this Agreement may not be
modified, altered, supplemented or amended unless the Rating Agency Condition
is satisfied, except to cure any ambiguity.
Section 32. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Agreement and all of which together
shall constitute one and the same instrument.
Section 33. Notices.
-------
Any notices required to be delivered hereunder shall be in writing and
personally delivered, mailed or sent by telecopy, electronic mail or other
similar form of rapid transmission, and shall be deemed to have been duly
given upon receipt (a) in the case of the Company, to the Company at its
address in Section 2, (b) in the case of the Member, to the Member at its
address as listed on Schedule B attached hereto and (c) in the case of either
of the foregoing, at such other address as may be designated by written notice
to the other party.
[SIGNATURE PAGES FOLLOW]
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: ___________________________________
Name: Xxxx X. Xxxxxx
Title: President and Chief
Executive Officer
INDEPENDENT DIRECTORS
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------------------
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.
24
"Basic Documents" means (i) this Agreement, (ii) the Management
Agreement, (iii) Purchase Agreements, (iv) the Trust Agreements, (v) all other
agreements referred to in this Agreement as an agreement to which the Company
may enter into, and (vi) all documents and certificates contemplated thereby
or delivered in connection therewith, and all amendments thereto.
"Board" or "Board of Directors" means the Board of Directors of the
Company.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on July 22,
2002, as amended or amended and restated from time to time.
"Commission" has the meaning assigned in Section 8(a).
"Company" means USAA Acceptance, LLC, a Delaware limited liability
company.
"Company Director" means a Person other than an Independent Director
elected to the Board of Directors from time to time by the Member.
"Contract" means one or more motor vehicle installment loan contracts and
all proceeds thereof and payments thereunder, including but not limited to (i)
the security interests in the Financed Vehicles granted by Obligors pursuant
to the motor vehicle installment loan contracts and any other interest of the
Member in the Financed Vehicles; (ii) rights to receive proceeds with respect
to the motor vehicle installment loan contracts from claims on any theft,
physical damage, credit life, credit disability, or other insurance policies
covering the Financed Vehicles or Obligors; (iii) all property (including the
right to receive Liquidation Proceeds) securing a motor vehicle installment
loan contract; (iv) rebates of premiums and other amounts relating to
insurance policies and other items financed under the motor vehicle
installment loan 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
25
other Person in which it owns, directly or indirectly, a majority of the
ownership interests.
"Covered Persons" has the meaning set forth in Section 20(a).
"Credit Agreement" means the Revolving Credit Agreement entered into by
the Bank and the Company, as from time to time amended, supplemented or
otherwise modified.
"Credit Enhancement Agreements" has the meaning assigned in Section 8(a).
"Directors" means the Persons elected to the Board of Directors from time
to time by the Member, including the Independent Directors, in their capacity
as managers of the Company. A Director is hereby designated as a "manager" of
the Company within the meaning of Section 18-101(10) of the Act.
"Exchange" has the meaning assigned in Section 8(a).
"Exchange Act" has the meaning assigned in Section 11(h).
"Executive Officer" has the meaning set forth in Section 11(h).
"Financed Vehicle" means a new or used automobile or light-duty truck,
together with all accessions thereto, securing an Obligor's indebtedness under
the respective motor vehicle installment loan contract.
"Independent Director" means a natural person who, for the five-year
period prior to his or her appointment as Independent Director has not been,
and during the continuation of his or her service as Independent Director is
not: (i) an employee, director, stockholder, partner or officer of the Company
or any of its Affiliates (other than his or her service as an independent
director of the Company or any of its Affiliates); (ii) a customer or supplier
of the Company or any of its Affiliates; or (iii) any member of the immediate
family of a person described in (i) or (ii).
"Liquidation Proceeds" means with respect to any motor vehicle
installment loan contract (a) insurance proceeds and (b) monies collected
pursuant to any sale and servicing agreement from whatever source, including
but not limited to proceeds of Financed Vehicles after repossession, net of
any payments required by law to be remitted to the Obligor.
"Management Agreement" means the agreement of the Directors in the form
attached hereto as Schedule C. The Management Agreement shall be deemed
incorporated into, and a part of, this Agreement.
"Material Action" means to change the business purposes of the company,
to consolidate or merge the Company with or into any Person, or sell all or
substantially all of the assets of the Company, or to institute proceedings to
have the Company be
26
adjudicated bankrupt or insolvent, or consent to the institution of Bankruptcy
or insolvency proceedings against the Company or file a petition seeking, or
consent to, reorganization or relief with respect to the Company under any
applicable federal or state law relating to Bankruptcy, or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or a substantial part of its property,
or make any assignment for the benefit of creditors of the Company, or admit
in writing the Company's inability to pay its debts generally as they become
due, or take action in furtherance of any such action.
"Member" means USAA Federal Savings Bank, as the initial member of the
Company, and includes any Person admitted as an additional member of the
Company or a substitute member of the Company pursuant to the provisions of
this Agreement, each in its capacity as a member of the Company; provided,
however, the term "Member" shall not include the Special Members.
"Obligor" on a motor vehicle installment loan contract shall mean the
purchaser or co-purchasers of the Financed Vehicle or any other Person who
owes payments under the motor vehicle installment loan contract.
"Officer" means an officer of the Company described in Section 11(h).
"Officer's Certificate" means a certificate signed by any Officer of the
Company who is authorized to act for the Company in matters relating to the
Company.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association, joint
stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.
"Proper Officer" has the meaning assigned in Section 11(h).
"Purchase Agreements" has the meaning set forth in Section 8(a).
"Rating Agency" has the meaning assigned to that term in the Trust
Agreements.
"Rating Agency Condition" has the meaning assigned to that term in the
Trust Agreements.
"Registration Statement" has the meaning assigned in Section 8(a).
"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.
27
"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.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and
plural forms of the defined terms. The words "include" and "including" shall
be deemed to be followed by the phrase "without limitation." The terms
"herein," "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Section, paragraph or
subdivision. The Section titles appear as a matter of convenience only and
shall not affect the interpretation of this Agreement. All Section, paragraph,
clause, Exhibit or Schedule references not attributed to a particular document
shall be references to such parts of this Agreement.
28
SCHEDULE B
Member
------
Limited
Liability
Company
Name Mailing Address Capital Contribution 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.
30
Capitalized terms used and not otherwise defined herein have the meanings
set forth in the LLC Agreement.
This Management Agreement may be executed in any number of counterparts,
each of which shall be deemed an original of this Management Agreement and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
----------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Director
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
----------------------------------
Name: 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
