EXHIBIT 3.3
EXECUTION COPY
--------------
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
UNITED FIDELITY FINANCE, LLC
This Amended and Restated Limited Liability Company Agreement (together
with the schedules attached hereto, this "Agreement") of United Fidelity
Finance, LLC (the "Company"), is entered into by United Fidelity Bank, fsb, as
the sole equity member (the "Member"), and Xxxxxxx X. Xxxxxxxxx and Xxx X.
Xxxxxxxx, as the Independent Directors (as defined herein). Capitalized terms
used and not otherwise defined herein have the meanings set forth on Schedule A
hereto.
The parties hereto, by execution of this Agreement, hereby continue the
Company as a limited liability company pursuant to and in accordance with the
Delaware Limited Liability Company Act (6 Del. C. Section 18-101 et seq.), as
amended from time to time (the "Act"), and this Agreement, and hereby agree as
follows:
Section 1. Name.
----------------------
The name of the limited liability company continued hereby is United
Fidelity Finance, LLC.
Section 2. Principal Business Office.
-------------------------------------------
The principal business office of the Company shall be located at 18.
N.W. Fourth Street, P. O. Xxx 0000, Xxxxxxxxxx, Xxxxxxx 00000-0000 or such other
location as may hereafter be determined by the Member.
Section 3. Registered Office.
-----------------------------------
The address of the registered office of the Company in the State of
Delaware is The Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 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 are The Corporation Trust
Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000.
Section 5. Members.
-------------------------
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 a counterpart signature page to this Agreement.
1
Subject to Section 9(j), the Member may act by written consent.
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 or other document
pursuant to which such Person agrees to be bound by the terms and provisions of
this Agreement, and (ii) such successor has also accepted its appointment as
Independent Director pursuant to Section 10; provided, however, the Special
Members shall automatically cease to be members of the Company upon the
admission to the Company of a substitute Member. Each Special Member shall be a
member of the Company that has no interest in the profits, losses and capital of
the Company and has no right to receive any distributions of Company assets.
Pursuant to Section 18-301 of the Act, a Special Member shall not be required to
make any capital contributions to the Company and shall not receive a limited
liability company interest in the Company. A Special Member, in its capacity as
Special Member, may not bind the Company. Except as required by any mandatory
provision of the Act, each Special Member, in its capacity as Special Member,
shall have no right to vote on, approve or otherwise consent to any action by,
or matter relating to, the Company, including, without limitation, the merger,
consolidation or conversion of the Company. In order to implement the admission
to the Company of each Special Member, each Person acting as an Independent
Director pursuant to Section 10 shall execute a counterpart to this Agreement or
other document pursuant to which such Person agrees to be bound by the terms and
provisions of 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.
------------------------------
Xxxxxx X. Xxxx is hereby designated as an "authorized person" within
the meaning of the Act, and has executed, delivered and filed the Certificate of
Formation of the Company with the Secretary of State of the State of Delaware.
Upon the filing of the Certificate of Formation with the Secretary of State of
the State of Delaware, his powers as an "authorized person" ceased, and the
Member thereupon became the designated "authorized person" and shall continue as
the designated "authorized person" within the meaning of the Act. The Member or
an Officer shall execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in 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.
2
Section 7. Purpose.
-------------------------
The purpose to be conducted or promoted by the Company is to engage in
the following activities:
(i) Acquiring, owning, purchasing, holding, selling, assigning,
transferring, pledging, and otherwise dealing with the
automobile loan receivables (including, without limitation,
net proceeds derived from a trust's issuance of securities and
the right to receive cash flows on, or a residual interest in,
automobile loan receivables held in a trust) generated by the
Member or one or more specified trusts established by the
Company or the Member (the "Receivables") and entering into
agreements for the servicing of the Receivables;
(ii) Transferring the Receivables to, and reacquiring Receivables
from, the trusts of the Company or the Member;
(iii) Acquiring, owning, purchasing, holding, selling, assigning,
transferring, pledging, and otherwise dealing with the
certificates or notes (the "Securities") issued by trusts
created by the Company or the Member;
(iv) Using proceeds from the Receivables at the direction of the
Directors to make payments or loans to the Member, to the
extent such funds are not required to fulfill the Company's
obligations under the agreements to which the Company acquires
the Receivables or sells the Securities; and
(v) To engage in any lawful act or activity and to exercise any
powers permitted to limited liability companies organized
under the laws of the State of Delaware that are related or
incidental to and necessary, convenient or advisable for the
accomplishment of the above-mentioned purposes.
The Company, and the Member or any Director or Officer on behalf of the
Company, may enter into and perform the Basic Documents and all documents,
agreements, certificates, or financing statements contemplated thereby or
related thereto and any amendments thereof, all without any further act, vote or
approval of any Member, Director, Officer or other Person notwithstanding any
other provision of this Agreement, and the execution, delivery or performance of
any Basic Document prior to the date hereof is hereby ratified and confirmed.
The foregoing authorization shall not be deemed a restriction on the powers of
the Member or any Director or Officer to enter into other agreements on behalf
of the Company.
Section 8. Powers
------------------------
Subject to Section 9(j), the Company, and the Board of Directors and
the Officers of the Company on behalf of the Company, (i) shall have and
exercise all powers necessary, convenient or incidental to accomplish its
purposes as set forth in Section 7 and (ii) shall have and exercise all of the
powers and rights conferred upon limited liability companies formed pursuant to
the Act.
3
Section 9. Management.
----------------------------
(a) Board of Directors. Subject to Section 9(j), the business and
affairs of the Company shall be managed by or under the direction of a Board of
one or more Directors designated by the Member. Subject to Section 10, the
Member may determine at any time in its sole and absolute discretion the number
of Directors to constitute the Board. The authorized number of Directors may be
increased or decreased by the Member at any time in its sole and absolute
discretion, upon notice to all Directors, and subject in all cases to Section
10. The number of directors shall be five, two of which shall be Independent
Directors pursuant to Section 10. Each Director elected, designated or appointed
by the Member shall hold office until a successor is elected and qualified or
until such Director's earlier death, resignation, expulsion or removal. Each
Director shall execute and deliver the Management Agreement. Directors need not
be a Member. The Directors designated by the Member as of the date hereof are
listed on Schedule D hereto.
(b) Powers. Subject to Section 9(j), the Board of Directors shall have
the power to do any and all acts necessary, convenient or incidental to or for
the furtherance of the purposes described herein, including all powers,
statutory or otherwise. Subject to Section 7, the Board of Directors has the
authority to bind the Company.
(c) Meeting of the Board of Directors. The Board of Directors of the
Company may hold meetings, both regular and special, within or outside the State
of Delaware. Regular meetings of the Board may be held without notice at such
time and at such place as shall from time to time be determined by the Board.
Special meetings of the Board may be called by the President on not less than
one day's notice to each Director by telephone, facsimile, mail, telegram or any
other means of communication, and special meetings shall be called by the
President or Secretary in like manner and with like notice upon the written
request of any one or more of the Directors.
(d) Quorum: Acts of the Board. At all meetings of the Board, a majority
of the Directors shall constitute a quorum for the transaction of business and,
except as otherwise provided in any other provision of this Agreement, the act
of a majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board. If a quorum shall not be present at any meeting
of the Board, the Directors present at such meeting may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee, as the case may be.
(e) Electronic Communications. Members of the Board, or any committee
designated by the Board, may participate in meetings of the Board, or any
committee, by means of telephone conference or similar communications equipment
that allows all Persons participating in the meeting to hear each other, and
such participation in a meeting shall constitute presence in Person at the
meeting. If all the participants are participating by telephone conference or
similar communications equipment, the meeting shall be deemed to be held at the
principal place of business of the Company.
4
(f) Committees of Directors.
(i) The Board may, by resolution passed by a majority of the whole
Board, designate one or more committees, each committee to
consist of one or more of the Directors of the Company. The
Board may designate one or more Directors as alternate members
of any committee, who may replace any absent or disqualified
member at any meeting of the committee.
(ii) In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not
disqualified from voting, whether or not such members
constitute a quorum, may unanimously appoint another member of
the Board to act at the meeting in the place of any such
absent or disqualified member.
(iii) Any such committee, to the extent provided in the resolution
of the Board, and subject to, in all cases, Sections 9(j) and
10, shall have and may exercise all the powers and authority
of the Board in the management of the business and affairs of
the Company. Such committee or committees shall have such name
or names as may be determined from time to time by resolution
adopted by the Board. Each committee shall keep regular
minutes of its meetings and report the same to the Board when
required.
(g) Compensation of Directors; Expenses. The Board shall have the
authority to fix the compensation of Directors. The Directors may be paid their
expenses, if any, of attendance at meetings of the Board, which may be a fixed
sum for attendance at each meeting of the Board or a stated salary as Director.
No such payment shall preclude any Director from serving the Company in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
(h) Removal of Directors. Unless otherwise restricted by law, any
Director or the entire Board of Directors may be removed or expelled, with or
without cause, at any time by the Member, and, subject to Section 10, any
vacancy caused by any such removal or expulsion may be filled by action of the
Member.
(i) Directors as Agents. To the extent of their powers set forth in
this Agreement and subject to Section 9(j), the Directors are agents of the
Company for the purpose of the Company's business, and the actions of the
Directors taken in accordance with such powers set forth in this Agreement shall
bind the Company. Notwithstanding the last sentence of Section 18-402 of the
Act, except as provided in this Agreement or in a resolution of the Directors, a
Director may not bind the Company.
(j) Limitations on the Company's Activities.
5
(i) This Section 9(j) is being adopted in order to comply with
certain provisions required in order to qualify the Company as
a "special purpose" entity.
(ii) The Member shall not, so long as any Obligation is
outstanding, amend, alter, change or repeal the definition of
"Independent Director" or Sections 5(c), 7, 8, 9, 10, 16, 20,
21, 22, 23, 24, 25, 26, 31 or 34 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, so long as
any Obligation is outstanding, neither the Member nor the
Board nor any Officer nor any other Person shall be authorized
or empowered, nor shall they permit the Company, without the
prior unanimous written consent of the Member and the Board
(including all Independent Directors), to take any Material
Action, provided, however, that, so long as any Obligation is
outstanding, 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 Board and the Member shall cause the Company to do or
cause to be done all things necessary to preserve and keep in
full force and effect its existence, rights (charter and
statutory) and franchises. The Board also shall cause the
Company to:
(A) maintain its own separate books and records and bank
accounts;
(B) at all times hold itself out to the public and all
other Persons as a legal entity separate from the
Member and any other Person;
(C) have a Board of Directors separate from that of the
Member and any other Person;
(D) file its own tax returns, if any, as may be required
under applicable law, to the extent (1) not part of a
consolidated group filing a consolidated return or
returns or (2) not treated as a division for tax
purposes of another taxpayer, and pay any taxes so
required to be paid under applicable law;
(E) except as contemplated by the Basic Documents, not
commingle its assets with assets of any other Person;
6
(F) conduct its business in its own name and strictly
comply with all organizational formalities to
maintain its separate existence;
(G) maintain separate financial statements;
(H) pay its own liabilities only out of its own funds;
(I) maintain an arm's length relationship with its
Affiliates and the Member;
(J) pay the salaries of its own employees, if any;
(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 keep minutes of any
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. Failure of the Company,
or the Member or Board on behalf of the Company, to
comply with any of the foregoing covenants or any
other covenants contained in this Agreement shall not
affect the status of the Company as a separate legal
entity or the limited liability of the Member or the
Directors.
(v) So long as any Obligation is outstanding, the Board shall not
cause or permit the Company to:
(A) except as contemplated by the Basic Documents,
guarantee any obligation of any Person, including any
Affiliate;
7
(B) engage, directly or indirectly, in any business other
than the actions required or permitted to be
performed under Section 7, 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 any Person, except that the Company 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; or
(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.
Section 10. Independent Directors.
---------------------------------------
As long as any 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 or other
document pursuant to which such Person agrees to be bound by the terms and
provisions of this Agreement as required by Section 5(c). In the event of a
vacancy in the position of Independent Director, the Member shall, as soon as
practicable, appoint a successor Independent Director. All right, power and
authority of the Independent Directors shall be limited to the extent necessary
to exercise those rights and perform those duties specifically set forth in this
Agreement. Except as provided in the second sentence of this Section 10, in
exercising their rights and performing their duties under this Agreement, any
Independent Director shall have a fiduciary duty of loyalty and care similar to
that of a director of a business corporation organized under the General
Corporation Law of the State of Delaware. No Independent Director shall at any
time serve as trustee in bankruptcy for any Affiliate of the Company.
Section 11. Officers.
--------------------------
(a) Officers. The initial Officers of the Company shall be designated
by the Member. The additional or successor Officers of the Company shall be
chosen by the Board and shall consist of at least a President, a Secretary and a
Treasurer. The Board of Directors may also choose one or more Vice Presidents,
8
Assistant Secretaries and Assistant Treasurers. Any number of offices may be
held by the same person. The Board may appoint such other Officers and agents as
it shall deem necessary or advisable who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board. The salaries of all Officers and agents of the
Company shall be fixed by or in the manner prescribed by the Board. The Officers
of the Company shall hold office until their successors are chosen and
qualified. Any Officer may be removed at any time, with or without cause, by the
affirmative vote of a majority of the Board. Any vacancy occurring in any office
of the Company shall be filled by the Board. The initial Officers of the Company
designated by the Member are listed on Schedule E hereto.
(b) President. The President shall be the chief executive officer of
the Company, shall preside at all meetings of the Board, shall be responsible
for the general and active management of the business of the Company and shall
see that all orders and resolutions of the Board are carried into effect. The
President or any other Officer authorized by the President or the Board shall
execute all bonds, mortgages and other contracts, except: (i) where required or
permitted by law or this Agreement to be otherwise signed and executed,
including Section 7(b); (ii) where signing and execution thereof shall be
expressly delegated by the Board to some other Officer or agent of the Company,
and (iii) as otherwise permitted in Section 11(c).
(c) Vice President. In the absence of the President or in the event of
the President's inability to act, the Vice President, if any (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated by the Directors, or in the absence of any designation, then in the
order of their election), shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the President. The Vice Presidents, if any, shall perform such other duties and
have such other powers as the Board may from time to time prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall be
responsible for filing legal documents and maintaining records for the Company.
The Secretary shall attend all meetings of the Board and record all the
proceedings of the meetings of the Company and of the Board in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. The Secretary shall give, or shall cause to be given, notice of all
meetings of the Member, if any, and special meetings of the Board, and shall
perform such other duties as may be prescribed by the Board or the President,
under whose supervision the Secretary shall serve. The Assistant Secretary, or
if there be more than one, the Assistant Secretaries in the order determined by
the Board (or if there be no such determination, then in order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board may from time to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall have the
custody of the Company funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the Board.
The Treasurer shall disburse the funds of the Company as may be ordered by the
9
Board, taking proper vouchers for such disbursements, and shall render to the
President and to the Board, at its regular meetings or when the Board so
requires, an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability to
act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe.
(f) Officers as Agents. The Officers, to the extent of their powers set
forth in this Agreement or otherwise vested in them by action of the Board not
inconsistent with this Agreement, are agents of the Company for the purpose of
the Company's business and, subject to Section 9(j), the actions of the Officers
taken in accordance with such powers shall bind the Company.
(g) Duties of Board and Officers. Except to the extent otherwise
modified herein, each Director and Officer shall have fiduciary duties identical
to those of directors and officers of business corporations organized under the
General Corporation Law of the State of Delaware.
Section 12. Limited Liability.
-----------------------------------
Except as otherwise expressly provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be the debts, obligations and liabilities solely of the
Company, and neither the Member nor the Special Members nor any Director shall
be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a Member, Special Member or Director of the
Company.
Section 13. Capital Contributions.
---------------------------------------
The Member has contributed to the Company property of an agreed value
as listed on Schedule B attached hereto. In accordance with Section 5(c), the
Special Members shall not be required to make any capital contributions to the
Company.
Section 14. Additional Contributions.
------------------------------------------
The Member is not required to make any additional capital contribution
to the Company. However, the Member may make additional capital contributions to
the Company at any time 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.
10
Section 15. Allocation of Profits and Losses
--------------------------------------------------
The Company's profits and losses shall be allocated to the Member.
Section 16. Distributions.
-------------------------------
Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Board. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not be required to make
a distribution to the Member on account of its interest in the Company if such
distribution would violate the Act or any other applicable law or any Basic
Document.
Section 17. Books and Records.
-----------------------------------
The Board shall keep or cause to be kept complete and accurate books of
account and records with respect to the Company's business. The books of the
Company shall at all times be maintained by the Board. The Member and its duly
authorized representatives shall have the right to examine the Company books,
records and documents during normal business hours. The Company, and the Board
on behalf of the Company, shall not have the right to keep confidential from the
Member any information that the Board would otherwise be permitted to keep
confidential from the Member pursuant to Section 18-305(c) of the Act. The
Company's books of account shall be kept using the method of accounting
determined by the Member. The Company's independent auditor, if any, shall be an
independent public accounting firm selected by the Member.
Section 18. Reports.
-------------------------
The Board shall, after the end of each fiscal year, use reasonable
efforts to cause the Company's independent accountants, if any, to prepare and
transmit to the Member as 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 Officer, Director, employee or
agent of the Company 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.
-------------------------------------------------
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 is bound by
this Agreement 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
11
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.
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 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.
To the fullest extent permitted by applicable law, expenses (including
reasonable 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.
A Covered Person shall be fully protected in relying in good faith upon
the records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the Covered
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Company, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
To the extent that, at law or in equity, a Covered Person has duties
(including fiduciary duties) and liabilities relating thereto to the Company or
to any other Covered Person, a Covered Person acting under this Agreement shall
not be liable to the Company or to any other Covered Person for its good faith
reliance on the provisions of this Agreement or any approval or authorization
granted by the Company or any other Covered Person. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the Member
and the Special Members to replace such other duties and liabilities of such
Covered Person.
The foregoing provisions of this Section 20 shall survive any
termination of this Agreement.
12
Section 21. Assignments.
-----------------------------
The Member may assign in whole or in part its limited liability company
interest in the Company; provided, however, that so long as the Obligations are
outstanding all Rating Agency Conditions shall have been satisfied, except as
otherwise contemplated by the Basic Documents. Subject to Section 23, if the
Member transfers all of its limited liability company interest in the Company
pursuant to this Section 21, the transferee shall be admitted to the Company as
a member of the Company upon its execution of an instrument signifying its
agreement to be bound by the terms and conditions of this Agreement, which
instrument may be a counterpart signature page to this Agreement. Such admission
shall be deemed effective immediately prior to the transfer and, immediately
following such admission, the transferor Member shall cease to be a member of
the Company. Notwithstanding anything in this Agreement to the contrary, any
successor to the Member by merger or consolidation in compliance with the Basic
Documents shall, without further act, be the Member hereunder, and such merger
or consolidation shall not constitute an assignment for purposes of this
Agreement and the Company shall continue without dissolution.
Section 22. Resignation.
-----------------------------
So long as any Obligation is outstanding, the Member may not resign,
except as permitted under the Basic Documents and 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 Obligation remains outstanding, no
additional Member may be admitted to the Company unless the Rating Agency
Condition is satisfied.
Section 24. Dissolution.
-----------------------------
Subject to Section 9(j), 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 or 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
13
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), 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 such member in the Company.
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.
Notwithstanding any other provision of this Agreement, each of the
Member and the Special Members waives any right it might have to agree in
writing to dissolve the Company upon the Bankruptcy of the Member or a Special
Member or the occurrence of an event that causes the Member or a Special Member
to cease to be a member of the Company.
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.
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.
14
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 which 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 and supersedes and replaces any prior
understandings of the parties with respect to the subject matter hereof,
including the Limited Liability Company Agreement of the Company, dated as of
November 13, 2001.
Section 29. Binding Agreement.
-----------------------------------
Notwithstanding any other provision of this Agreement, the Member
agrees that this Agreement, including, without limitation, Sections 7, 8, 9, 10,
20, 21, 22, 23, 24, 26, 29 and 31, constitutes a legal, valid and binding
agreement of the Member, and is enforceable against the Member by the
Independent Directors, in accordance with its terms. In addition, the
Independent Directors shall be intended beneficiaries of this Agreement.
Section 30. Governing Law.
-------------------------------
This Agreement shall be governed by and construed under the laws of the
State of Delaware (without regard to conflict of laws principles), all rights
and remedies being governed by said laws.
Section 31. Amendments.
----------------------------
Subject to Section 9(j), this Agreement may be modified, altered,
supplemented or amended pursuant to a written agreement executed and delivered
by the Member. Notwithstanding anything to the contrary in this Agreement, so
long as any Obligation is outstanding, this Agreement may not be modified,
altered, supplemented or amended unless the Rating Agency Condition is satisfied
except: (i) to cure any ambiguity or (ii) to convert or supplement any provision
in a manner consistent with the intent of this Agreement and the other Basic
Documents.
15
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.
Section 34. Taxes.
-----------------------
(a) Tax Characterization of the Company. For so long as the Company has
a single owner for federal income tax purposes, it will, pursuant to Treasury
Regulations promulgated under section 7701 of the Code, be disregarded as an
entity distinct from the Member for all federal income tax purposes.
Accordingly, for federal income tax purposes, the Member will be treated as (i)
owning all assets owned by the Company, (ii) having incurred all liabilities
incurred by the Company and (iii) all transactions between the Company and the
Member will be disregarded. In the event that the Company has two equity owners
for federal income tax purposes, the Company will be treated as a partnership.
At any such time that the Company has two equity owners, this Agreement may need
to be amended, in accordance with Section 31 herein, and additional provisions
may need to be added so as to provide for treatment of the Company as a
partnership.
(b) Elections. The Board or the Member may make any tax elections for
the Company allowed under the Code or the tax laws of any state or other
jurisdiction having taxing jurisdiction over the Company. No election shall be
made by the Board or the Member to classify the Company as an association
taxable as a corporation on IRS Form 8832 or otherwise.
16
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 26th day of September, 2002.
MEMBER:
UNITED FIDELITY BANK, fsb
By: /s/ Xxxxxx X. Xxxx
------------------------------
Xxxxxx X. Xxxx, President
INDEPENDENT DIRECTORS/
POTENTIAL SPECIAL MEMBERS:
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
/s/ Xxx X. Xxxxxxxx
-----------------------------------
Name: Xxx X. Xxxxxxxx
17
SCHEDULE A
Definitions
A. Definitions.
---------------------
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly Controlling or Controlled by or under direct or indirect
common Control with such Person.
"Agreement" means this 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.
"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 the (a) the Purchase Agreement, dated on or
about August 1, 2002, between the Member and the Company, and any related
Subsequent Assignment, (b) the Sale and Servicing Agreement, dated on or about
August 1, 2002, among United Fidelity Auto Receivables Trust 2002-A (the
"Trust"), the Member, the Company, Xxxxx Fargo Bank Minnesota, National
Association (the "Collateral Agent") and any related Transfer Agreement, (c) the
Trust Agreement of the Trust, dated on or about August 1, 2002, between the
Company and Wilmington Trust Company, (d) the Master Spread Account Agreement,
dated on or about August 1, 2002, among the Company, Financial Security
Assurance Inc. ("FSA") and the Collateral Agent, and any related Series
Supplements, (e) the Insurance and Indemnity Agreement, dated on or about August
1, 2002, among FSA, the Member, the Company and the Trust, (f) the
Indemnification Agreement, dated on or about September 26, 2002, among FSA, the
Company and City Securities Corporation, (g) the Certificate Pledge and
Collateral Agency Agreement, dated on or about August 1, 2002, among the
Company, the Trust, FSA and the Collateral Agent, (h) the Pledge and Collateral
A-1
Agency Agreement, dated on or about September 26, 2002, among the Member, FSA,
the Collateral Agent and the Company, (i) the Underwriting Agreement, dated on
or about September 19, 2002, among the Member, the Company and City Securities
Corporation, (j) the Note Purchase Agreement, dated on or about September 19,
2002, among the Member, the Company and City Securities Corporation, (k) the
Lock Box Agreement, dated as of September 26, 2002, among Old National Bank, the
Company, the Member, the Collateral Agent and the Trust, (l) the trust
agreements of any other trusts formed by the Company or the Member, (m) any
agreements similar to any of the foregoing documents, and any registration
statements or other filings with the Securities and Exchange Commission or other
offering material, entered into in connection with the acquisition, purchase,
assignment, transfer, pledge or sale by the Company of Receivables and/or the
issuance of Securities by the Company or any trusts formed by the Company or the
Member, and (n) any amendments or restatements of any of the foregoing and any
agreements, documents, certificates or financing statements related thereto,
contemplated thereby or delivered or filed in connection therewith.
"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 November
13, 2001, as amended or amended and restated from time to time.
"Company" means United Fidelity Finance, LLC, a Delaware limited
liability company.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or general partnership or managing
member interests, by contract or otherwise. "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).
"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.
"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).
A-2
"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 consolidate or merge the Company with or
into any Person, or sell all or substantially all of the assets of the Company,
or to institute proceedings to have the Company be adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency proceedings
against the Company or file a petition seeking, or consent to, reorganization or
relief with respect to the Company under any applicable federal or state law
relating to bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company or a
substantial part of its property, or make any assignment for the benefit of
creditors of the Company, or admit in writing the Company's inability to pay its
debts generally as they become due, or take action in furtherance of any such
action, or, to the fullest extent permitted by law, dissolve or liquidate the
Company.
"Member" means United Fidelity Bank, fsb, 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.
"Obligations" shall mean the indebtedness, liabilities and obligations
of the Company or any trust formed by the Company under or in connection with
the Basic Documents or any related document in effect as of any date of
determination.
"Officer" means an officer of the Company described in Section 11.
"Officer's Certificate" means a certificate signed by any Officer of
the Company who is authorized to act for the Company in matters relating to the
Company.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association, joint
stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.
"Rating Agency" has the meaning assigned to that term in the Basic
Documents.
"Rating Agency Condition" means any applicable conditions of the Rating
Agency necessary to maintain the then current rating by such Rating Agency of
any of securities issued by the applicable securitization trust.
"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.
A-3
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.
A-4
SCHEDULE B
Member
-----------------------------------------------------------------------------------------------------------------
Agreed Value of Membership
Name Mailing Address Capital Contribution Interest
-----------------------------------------------------------------------------------------------------------------
United Fidelity Bank, fsb 00 X.X. Xxxxxx Xxxxxx
P. O. Box 1347 $100 100%
Xxxxxxxxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------------------------
B-1
SCHEDULE C
Management Agreement
September 26, 2002
United Fidelity Finance, LLC
18. N.W. Fourth Street
P. O. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Re: Management Agreement -- United Fidelity Finance, LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned Persons,
who have been designated as directors of United Fidelity Finance, 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 26, 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 it has been designated as a "manager" of the Company within
the meaning of the Delaware Limited Liability Company Act.
2. So long as any 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 an involuntary 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.
C-1
Initially 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.
/s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxxxx, Director
/s/ Xxxxxx X. Xxxx
-----------------------------------
Xxxxxx X. Xxxx, Director
/s/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx, Director
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxx X. Xxxxxxxx
-----------------------------------
Xxx X. Xxxxxxxx
C-2
SCHEDULE D
DIRECTORS
1. Xxxxx X. Xxxxxxxxxx
2. Xxxxxx X. Xxxx
3. Xxxx X. Xxxxxx
4. Xxxxxxx X. Xxxxxxxxx
5. Xxx X. Xxxxxxxx
D-1
SCHEDULE E
OFFICERS TITLE
-------- -----
Xxxxxx X. Xxxx President and Treasurer
Xxx Xxxxxx Executive Vice President and Secretary
E-1
