EXHIBIT 3.4
LIMITED LIABILITY COMPANY AGREEMENT
OF
DEALER AUTO RECEIVABLES COMPANY, LLC
This Limited Liability Company Agreement (this "AGREEMENT") of Dealer Auto
Receivables Company, LLC (the "COMPANY"), is entered into by Premier Auto
Finance, L.P., an Illinois limited partnership, as the sole member (the
"MEMBER") and Xxxxxx Xxxxxxx, as the Special Member (as defined on Schedule A
hereto).
WHEREAS, Dealer Auto Receivables Corp. (the "CORPORATION"), was formed as a
Delaware corporation on February 28, 2000;
WHEREAS, by unanimous written consent, the board of directors of the
Corporation adopted a resolution adopting and approving the conversion of the
Corporation to a Delaware limited liability company and the execution of this
Agreement, and recommending the adoption of such conversion and this Agreement
to the sole stockholder of the Corporation, pursuant to Section 266 of the
General Corporation law of the State of Delaware (the "GCL");
WHEREAS, by written consent, the sole stockholder of the Corporation
adopted and approved the conversion of the Corporation to a limited liability
company and the execution of this Agreement pursuant to Section 266 of the GCL;
WHEREAS, on the date hereof, the Corporation was converted to a limited
liability company pursuant to Section 18-214 of the Delaware Limited
Liability Company Act (6 DEL.C. Section 18-101 ET. SEQ.), as amended from
time to time (the "ACT") and Section 266 of the GCL by causing the filing
with the Secretary of State of the State of Delaware of a Certificate of
Conversion to Limited Liability Company (the "CERTIFICATE OF CONVERSION") and
a Certificate of Formation of the Company (the "CERTIFICATE") (together, the
"CONVERSION"); and
WHEREAS, pursuant to this Agreement and the Conversion, the sole
stockholder of the Corporation is admitted as a member of the Company owning all
of the limited liability company interests in the Company.
The Member and Xxxxxx Xxxxxxx, by execution of this Agreement, hereby agree
as follows:
Section 1. DEFINITIONS.
Capitalized terms used and not otherwise defined herein have the meanings
set forth on SCHEDULE A hereto.
Section 2. FORMATION.
The Member hereby agrees to form a limited liability company under and
pursuant to the terms of the Act; and the rights and obligations of the Member
shall be as provided therein except as otherwise expressly provided in this
Agreement.
Section 3. NAME.
The name of the limited liability company formed by this Agreement is
Dealer Auto Receivables Company, LLC
Section 4. PRINCIPAL BUSINESS OFFICE.
The principal business office of the Company shall be located at 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 or such other location as may hereafter
be determined by the Member.
Section 5. REGISTERED AGENT AND REGISTERED OFFICE.
The address of the registered agent of the Company for service of process
on 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 New Castle, Delaware. The name of its registered agent at such address is The
Corporation Trust Company. 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 New Castle, Delaware.
Section 6. MEMBER.
The mailing address of the Member is set forth on SCHEDULE B.
Section 7. FORMATION OF THE COMPANY; CONVERSION OF THE CORPORATION.
Effective as of the time of the Conversion (i) the Certificate of
Incorporation of the Corporation, dated as of February 28, 2000, as amended, and
the By-Laws of the Corporation, as amended, are replaced and superseded in their
entirety by this Agreement in respect of all periods beginning on or after the
Conversion, (ii) the sole stockholder of the Corporation is hereby automatically
admitted as a member of the Company owning all of the limited liability company
interests in the Company, (iii) the Member is continuing the business of the
Corporation without dissolution in the form of a Delaware limited liability
company governed by this Agreement, and (iv) in accordance with Section
18-214(g) of the Act, the Company shall constitute a continuation of the
existence of the Corporation in the form of a Delaware limited liability company
and, for all purposes of the laws of the State of Delaware, shall be deemed to
be the same entity as the Corporation. Xxxxx X. Xxxxx, is hereby designated as
an "AUTHORIZED PERSON" within the meaning of the Act, and has executed,
delivered and filed the Certificate and the Certificate of Conversion with the
Secretary of State of the State of Delaware. Upon the filing of the Certificate
and the Certificate of Conversion with the Secretary of State of the State of
Delaware, his powers as an "AUTHORIZED PERSON" ceased, and the Member and any
Officer, acting alone, thereupon became a designated "AUTHORIZED PERSON" within
the meaning of the Act.
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The Member or an Officer, acting alone, shall execute, deliver and file any
other certificates, affidavits and other documentation (and any amendments
and/or restatements thereof) necessary to qualify the Company as a foreign
limited liability company in any state or other jurisdiction in which such
qualification is required by law.
The existence of the company as a separate legal entity shall continue
until cancellation of the Certificate as provided in the Act.
Section 8. PURPOSES.
(a) The purposes and activities of the Company shall be limited to the
following:
(i) to purchase or otherwise acquire, own, hold pursuant to certain
transfer agreements (the "TRANSFER AGREEMENTS"), transfer or sell interests
in, or interests in pools of, accounts, drafts, notes receivable,
installment sale agreements, conditional sale agreements, promissory notes
with or without related security agreements, operating and finance leases,
installment payment agreements and similar types of financing agreements or
obligations or rights to payment thereunder or arising in connection
therewith, including monies paid, due or to become due thereunder or in
connection therewith, and together with any related collateral security or
contract rights, whether constituting real or personal property, securing
such agreements or obligations or supporting the payment thereof (including
the acquisition of ownership interests in real or personal property the
subject of leases) (collectively, any of the foregoing the "ASSETS");
(ii) to enter into, and perform its obligations under, any agreements
with affiliates relating to or effecting the transfers and conveyances of
Assets as described above;
(iii) to transfer the Assets or interests therein (including for the
purpose of establishing, forming or funding one or more trusts ("TRUSTS")),
pursuant to one or more indentures, pooling agreements, pooling and
servicing agreements, sale agreements, receivables purchase agreements,
sale and servicing agreements or other agreements ("AGREEMENTS") entered
into by and among, among others, the Company, any trustee or trustees or
collateral agent named therein (a "TRUSTEE"), and any entity acting as
servicer for the Assets, as well as certain other financing entities
(collectively hereinafter referred to as the "ENTITIES"), and to perform
its obligations under any such Agreements;
(iv) to hold and enjoy any and all of the rights and privileges of any
certificates ("CERTIFICATES"), notes ("NOTES"), participation interests
("PARTICIPATION INTERESTS"), deferred payments ("DEFERRED PAYMENTS") or
other ownership interests ("OWNERSHIP INTERESTS") issued by or sold by the
Entities to the Company under the related Agreements and to hold and enjoy
all of the rights and privileges of any class of any series of
Certificates, Notes, Participation Interests, Deferred Payments or
Ownership Interests including any class of Certificates, Notes,
Participation Interests, Deferred Payments or Ownership Interests which may
be subordinate to any other class of Certificates, Notes, Participation
Interests, Deferred Payments or Ownership Interests and except to the
extent otherwise provided in any Certificates, Notes, Participation
Interests, Deferred
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Pavements, Ownership Interests or Agreement, to sell, assign, pledge or
otherwise transfer any such Certificates, Notes, Participation Interests,
Deferred Payments or Ownership Interests or any interest therein
(collectively, the "OBLIGATIONS");
(v) to issue, sell, authorize and deliver one or more series and/or
classes of certificates, bonds, notes or other evidences of indebtedness
secured or collateralized by, or otherwise representing interests in, one
or more pools of Assets (or by notes or certificates of any series or class
issued by one or more Trusts established or funded by the Company)
(collectively, any of the foregoing being "SECURITIES");
(vi) to perform its obligations under the Agreements pursuant to which
any Certificates, Notes, Participation Interests, Deferred Payments or
other Ownership Interests are issued, sold or serviced;
(vii) to invest the proceeds derived from the sale or ownership of the
Assets as determined by the Company's Board of Directors; and
(viii) to engage in any activity and to exercise any powers permitted
to limited liability companies under the laws of the State of Delaware that
are related or incidental to the foregoing and necessary, convenient or
advisable to accomplish the foregoing.
(b) The Company, by or through the Member, or any Director or Officer on
behalf of the Company, may enter into and perform, or authorize and direct a
Trust established by the Company to enter into and perform, as applicable, the
Transaction Documents, and all other documents, agreements or financing
statements contemplated thereby or related thereto, all without any further act,
vote, or approval of the Member or any Director or Officer notwithstanding any
other provision of this Agreement, the Act or applicable law, rule or
regulation. The foregoing authorization shall not be deemed a restriction on the
powers of the Member, a Director or an Officer to enter into, or direct a Trust
to enter into, other agreements on behalf of the Company or such Trust, as
applicable, in each case in connection with permitted activities and purposes of
the Company or such Trust.
Section 9. POWERS.
Subject to Sections 8 and 10(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 8 and (ii) shall have and exercise all of the
powers and rights conferred upon limited liability companies formed pursuant to
the Act.
Section 10. MANAGEMENT.
(a) BOARD OF DIRECTORS. Subject to Section 10(j), the business and affairs
of the Company shall be managed by or under the direction of a Board of one or
more Directors. Subject to Section 11, 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
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to all Directors, and subject in all cases to Section 11. The initial number of
Directors shall be three, one of which shall be an Independent Director as and
to the extent required by Section 11. Each Director elected, designated or
appointed 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. A Director is hereby designated as a "MANAGER" of the Company within the
meaning of Section 18-101(10) of the Act. Xxxxx Xxxx and Xxxxxx X. Xxxxxx are
hereby designated and appointed initial Directors of the Company.
(b) POWERS. Subject to Section 10(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 8, 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 Section 10(j) or in any other provision of this
Agreement, the act of a majority of the Directors present at any meeting at
which there is a quorum shall be the act of the Board. If a quorum shall not be
present at any meeting of the Board, the Directors present at such meeting may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present. Any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee, as the case may be.
(e) ELECTRONIC COMMUNICATIONS. Members of the Board, or any committee
designated by the Board, may participate in meetings of the Board, or any
committee, by means of telephone conference or similar communications equipment
that allows all persons participating in the meeting to hear each other, and
such participation in a meeting shall constitute presence in person at the
meeting. If all the participants are participating by telephone conference or
similar communications equipment, the meeting shall be deemed to be held at the
principal place of business of the Company.
(f) COMMITTEES OF DIRECTORS.
(i) Subject to Section 10(j), 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
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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 Section 10(j), 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 11, 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 10(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.
(j) LIMITATIONS ON THE COMPANY'S ACTIVITIES.
(i) This Section 10(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 an SPE Condition exists, amend,
alter, change or repeal the definition of "INDEPENDENT DIRECTOR" or Sections 8,
9, 10, 11, 17, 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 each
Independent Director). Subject to this Section 10(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 or the
Board, neither the Member nor the Board shall be authorized or empowered, nor
shall they permit the Company, without the
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prior unanimous written consent of the Member and the Board (including each
Independent Director) and written confirmation from each nationally recognized
rating agency which has rated Securities issued by the Company or by any Trust
established or funded by the Company that the then current ratings on such
Securities will not be reduced or withdrawn as a result thereof, to do the
following:
(A) engage in any business or activity other than those set
forth in Section 8;
(B) incur any indebtedness for borrowed money, or assume or
guaranty any indebtedness of any other entity, other than (x)
indebtedness evidenced by, or incurred in connection with, any issue
of Securities, (y) indebtedness not exceeding 1% of the Company's
total assets at such time on account of incidentals or services
supplied or furnished to the Company in the ordinary course of its
business, and (z) indebtedness to Aon Corporation or any affiliate
thereof incurred in connection with the acquisition of Assets, which
indebtedness shall be subordinated to all obligations under the
Agreements;
(C) to the fullest extent permitted by law, dissolve or
liquidate, in whole or in part; or consolidate or merge with or into
any other entity or convey, transfer or lease its properties and
assets substantially as an entirety to any entity, or permit any
entity to merge into it or convey, transfer or lease its properties
and assets substantially as an entirety to it, unless:
(y) the entity (if other than the Company) formed or surviving
the consolidation or merger or which acquires the properties and
assets of the Company is organized and existing under the laws of any
State of the United States or the District of Columbia; expressly
assumes the due and punctual payment of, and all obligations of the
Company, including those obligations of the Company under any
Transaction Document; and has a Certificate of Incorporation or other
formation document containing provisions substantially identical to
the provisions of Section 8 and Section 10; and
(z) immediately after giving effect to the transaction, no
default or event of default has occurred and is continuing under any
indebtedness of the Company or any agreement relating to such
indebtedness.
(iv) Notwithstanding any other provision of the Certificate of
Formation, this Agreement or any provision of law that otherwise so empowers the
Company, the Company shall not, and no Member, Director, Officer or any other
Person on behalf of the Company shall, without the prior unanimous written
consent of the Board of Directors of the Company (including the Independent
Director), (i) institute proceedings to be adjudicated bankrupt or insolvent,
(ii) consent to the institution of bankruptcy or insolvency proceedings against
it, (iii) file a petition seeking or consent to reorganization or relief under
any applicable federal or state law relating to bankruptcy, (iv) seek or consent
to the appointment of a receiver, liquidator, assignee, trustee, or sequestrator
(or other similar official) of the Company or a substantial part of its
property, (v) make any assignment for the benefit of creditors or admit its
inability to pay
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its debts generally as they become due, or (vi) authorize or take action in
furtherance of any such action. If there shall not be, as and to the extent
required by this Section 10, an Independent Director then in office and acting
as required by this Section 10, a vote on any matter set forth in this paragraph
(iv) shall not be taken unless and until an Independent Director meeting the
requirements of this Section 10 shall have been appointed and qualified.
(v) The Board and the Member shall cause the Company to do or cause
to be done all things necessary to preserve and keep in full force and effect
its existence, rights (charter and statutory) and franchises; PROVIDED, HOWEVER,
that the Company shall not be required to preserve any such right or franchise
if: (1) the Board shall determine that the preservation thereof is no longer
desirable for the conduct of its business and that the loss thereof is not
disadvantageous in any material respect to the Company and (2) the Rating Agency
Condition and/or Holder Condition, as applicable, is satisfied. The Board also
shall cause the Company to:
(1) maintain its own separate books and records and bank
accounts;
(2) 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;
(3) have a Board of Directors separate from that of the Member
and any other Person;
(4) 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;
(5) except as contemplated by the Transaction Documents, not
commingle its assets with assets of any other Person, and
hold all of its assets in its own name;
(6) conduct its business in its own name and strictly comply
with all organizational formalities;
(7) maintain separate financial statements, showing its assets
and liabilities separate and apart from any other person or
entity;
(8) pay its own liabilities only out of its own funds;
(9) maintain an arm's length and commercially reasonable
relationship with its Affiliates and the Member;
(10) not identify itself as a division of any other person or
entity;
(11) pay the salaries of its own employees, if any;
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(12) not hold out its credit or assets as being available to
satisfy the obligations of others;
(13) allocate fairly and reasonably any overhead, including
overhead for shared office space;
(14) use separate stationery, invoices and checks;
(15) except as contemplated by the Transaction Documents, not
pledge its assets as security for the obligations of any
other Person;
(16) correct any known misunderstanding regarding its separate
identity;
(17) maintain adequate capital in light of its contemplated
business purpose, transactions and liabilities;
(18) 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;
(19) not acquire any securities of its Affiliates or the Member;
(20) 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; and
(21) hold itself out as a separate entity; and
(22) not form, acquire or hold any subsidiary.
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.
(vi) So long as an SPE Condition exists, the Board shall not cause or
permit the Company to:
(1) except as contemplated by the Transaction Documents,
guarantee any obligation of any Person, including any
Affiliate;
(2) engage, directly or indirectly, in any business other than
the actions required or permitted to be performed under
Section 8 or this Section 10(j);
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(3) incur, create or assume any indebtedness other than
indebtedness represented by Securities or as otherwise
expressly permitted under the Transaction Documents;
(4) make or permit to remain outstanding any loan or advance to,
or own or acquire any stock or securities of, any Person,
except that the Company may invest in those investments
permitted under the Transaction Documents and may make any
advance required or expressly permitted to be made pursuant
to any provisions of the Transaction Documents and permit
the same to remain outstanding in accordance with such
provisions; or
(5) 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 contemplated in Section 8, Section
10(j)(iii)(C) and related applicable Transaction Documents.
Section 11. INDEPENDENT DIRECTOR.
As long as an SPE Condition exists, the Member shall cause the Company at
all times to have at least one Independent Director who will be appointed by the
Member. To the fullest extent permitted by law, including Section 18-1101(c) of
the Act, the Independent Director shall consider only the interests of the
Company, including its respective creditors, in acting or otherwise voting on
the matters referred to in Section 10(j)(iv). Upon the death, resignation or
removal of the Independent Director, the Member shall appoint a successor
Independent Director. No resignation or removal of the Independent Director, and
no appointment of a successor Independent Director, shall be effective until the
successor Independent Director shall have accepted his or her appointment by a
written instrument, which may be a counterpart signature page to the Management
Agreement. All right, power and authority of the Independent Director 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 11, in exercising their rights and performing
their duties under this Agreement, the 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. The Independent Director shall not at any time serve as trustee in
bankruptcy for any Affiliate of the Company. Xxxxxx Xxxxxxx is hereby designated
and appointed the initial Independent Director of the Company.
Section 12. OFFICERS.
(a) OFFICERS. The Officers of the Company shall be chosen by the Board and
shall consist of at least a President, a Secretary and a Treasurer. The Board of
Directors may also choose one or more Vice Presidents, Assistant Vice
Presidents, 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
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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 elected or appointed by the Board 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.
(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 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 12(c).
(c) VICE PRESIDENT AND ASSISTANT 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. The Assistant Vice President, or if there be more than
one, the Assistant Vice Presidents 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 Vice President or in the event of the Vice President's inability
to act, perform the duties and exercise the powers of the Vice President and
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
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designated by the Board. The Treasurer shall disburse the funds of the Company
as may be ordered by the Board, taking proper vouchers for such disbursements,
and shall render to the 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 10(j), the actions of the
Officers taken in accordance with such powers shall bind the Company.
(g) DUTIES OF BOARD AND OFFICERS. Except to the extent otherwise provided
herein, each Director and Officer shall have a fiduciary duty of loyalty and
care similar to that of directors and officers of business corporations
organized under the General Corporation Law of the State of Delaware.
Section 13. 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 any Director or Officer shall be obligated personally for
any such debt, obligation or liability of the Company solely by reason of being
a Member or Director or Officer of the Company.
Section 14. CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS.
(a) The Member has contributed to the Company property of an agreed value
as listed on SCHEDULE B attached hereto. The Member, in its discretion, may
transfer additional cash or property to the Company from time to time, as
contributions to the capital of the Company. Except as provided in this Section
14, the Member shall not be required to make any additional contributions to the
capital of the Company.
(b) Except as specifically provided in this Agreement, the Member shall
not be entitled to the return of its capital contribution to the Company.
(c) The Company shall not pay interest on capital contributions or
undistributed profits.
Section 15. 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
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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
15, are intended solely to benefit the Member 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 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 16. ALLOCATION OF PROFITS AND LOSSES.
(a) All Profits and Losses (including all items of income and expense
entering into the determination of such Profits and Losses), shall be allocated
entirely to the Member. For so long as the Member is the sole member of the
Company, the Company shall be characterized as a sole proprietorship conducted
by the Member for federal income tax purposes and, to the extent consistent with
applicable law, for all applicable state and local income tax purposes.
(b) Unless otherwise required by the Code, any tax credits of the Company
shall be allocated entirely to the Member.
Section 17. DISTRIBUTIONS.
Distributions shall be made to the Member at the times and in the aggregate
amounts determined by the Board. Notwithstanding any provision to the contrary
contained in this Agreement, the Company shall not be required to make a
distribution to the Member on account of its interest in the Company if such
distribution would violate Section 18-607 of the Act or any other applicable law
or any Transaction Document.
Section 18. 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 19. OTHER BUSINESS.
The Member and any Affiliate of the Member 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.
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Section 20. EXCULPATION AND INDEMNIFICATION.
(a) Neither the Member nor any Officer, Director, employee or agent of the
Company and no employee, representative, agent or Affiliate of the Member
(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 shall not have personal
liability on account thereof; and PROVIDED FURTHER, that no indemnity payment
from funds of the Company (as distinct from funds from other sources, such as
insurance) in respect of any indemnity under this Section 20 shall be payable
from amounts allocable to any other Person pursuant to any applicable
Transaction Document.
(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, liabilities, or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
(e) To the extent that, at law or in equity, a Covered Person has duties
(including fiduciary duties) and liabilities relating thereto to the Company or
to any other Covered Person, a Covered Person acting under this Agreement shall
not be liable to the Company or to any other Covered Person for its good faith
reliance on the provisions of this Agreement or any approval or authorization
granted by the Company or any other Covered Person. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise
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existing at law or in equity, are agreed by the Member to replace such other
duties and liabilities of such Covered Person.
(f) 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. 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 applicable Transaction
Documents shall, without further act, be the Member hereunder, and such merger
or consolidation shall not constitute an assignment for purposes of this
Agreement.
Section 22. RESIGNATION.
So long as any Obligation is outstanding, the Member may not resign, except
as permitted under all applicable Transaction Documents and if the Rating Agency
Condition and/or the Holder Condition, as applicable, 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, no additional Member may be admitted to the
Company unless the Rating Agency Condition and/or the Holder Condition, as
applicable, is satisfied.
Section 24. DISSOLUTION.
(a) Subject to Section 10(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
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(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) The Bankruptcy of the Member or the Special Member shall not cause the
Member or the Special Member, respectively to cease to be a member of the
Company and upon the occurrence of such an event, the business of the Company
shall continue without dissolution.
(c) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the Company in an orderly manner), and the assets of the Company shall
be applied in the manner, and in the order of priority, set forth in Section
18-804 of the Act.
(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, the Member hereby irrevocably waives any right or power
that the Member 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 17 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.
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.
Section 27. SEVERABILITY OF PROVISIONS.
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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.
Section 29. BINDING AGREEMENT.
Notwithstanding any other provision of this Agreement, the Member agrees
that this Agreement, including, without limitation, Sections 8, 9, 10, 11, 20,
21, 22, 23, 24, 26 and 31, constitutes a legal, valid and binding agreement of
the Member, and is enforceable against the Member by the Independent Director,
in accordance with its terms. In addition, the Independent Director shall be an
intended beneficiary 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 10(j), this Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by the Member. Notwithstanding anything to the contrary in this
Agreement, so long as an SPE Condition exists, this Agreement may not be
modified, altered, supplemented or amended unless the Rating Agency Condition
and/or the Holder Condition, as applicable, 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 existing Transaction Documents.
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 4, (b) in the case of the Member, to the Member at its address
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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. EFFECTIVENESS.
Pursuant to Section 18-201(d) of the Act, this Agreement shall be effective
as of the time of the filing of the Certificate of Formation with the Office of
the Delaware Secretary of State on May 30, 2001.
Section 35. Special Member.
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
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 21
AND 23), each person acting as an Independent Director pursuant to SECTION 11
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 11; PROVIDED, HOWEVER, the Special Member shall automatically cease to
be a member 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 the 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 11 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 11 shall not be a member of the Company.
[signature page follows]
-18-
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Limited Liability Company Agreement as of the
30th day of May, 2001.
MEMBER:
PREMIER AUTO FINANCE, L.P.
By: The Auto Conduit Corporation
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Printed Name: Xxxxxxx X. Xxxxxx
Title: Vice President
INDEPENDENT DIRECTOR/SPECIAL MEMBER
By: /s/ Xxxxxx Xxxxxxx
------------------
Printed Name: Xxxxxx Xxxxxxx
Title: Independent Director/Special Member
-19-
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 Section 2 of this Agreement.
"AFFILIATE" means, with respect to any Person, any other Person directly or
indirectly Controlling or Controlled by or under direct or indirect common
Control with such Person.
"AGREEMENT" means this Limited Liability Company Agreement of the Company,
together with the schedules attached hereto, as amended, restated or
supplemented or otherwise modified from time to time.
"ASSETS" has the meaning set forth in Section 8(a)(i) of this Agreement.
"BANKRUPTCY" means, with respect to any Person, if such Person (i) makes an
assignment for the benefit of creditors, (ii) files a voluntary petition in
bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it
an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, (v) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding of this nature, (vi) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all or any
substantial part of its properties, or (vii) if 120 days after the commencement
of any proceeding against the Person seeking reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, if the proceeding has not been dismissed, or if within 90 days
after the appointment without such Person's consent or acquiescence of a
trustee, receiver or liquidator of such Person or of all or any substantial part
of its properties, the appointment is not vacated or stayed, or within 90 days
after the expiration of any such stay, the appointment is not vacated. The
foregoing definition of "BANKRUPTCY" is intended to replace and shall supersede
and replace the definition of "BANKRUPTCY" set forth in Sections 18-101(1) and
18-304 of the Act.
"BOARD" or "BOARD OF DIRECTORS" means the Board of Directors of the
Company.
"CERTIFICATE OF FORMATION" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on May 30,
2001, as amended or amended and restated from time to time.
-20-
"COMPANY" means Dealer Auto Receivables Company, LLC, a Delaware limited
liability company.
"CONTROL" means the possession, directly or indirectly, or 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 directors elected to the Board of Directors from time
to time by the Member, including any Independent Director.
"HOLDER CONDITION" means, with respect to any action, that the requisite
holders of (or authorized representative of holders of) Interests and/or
Securities (or outstanding commitments to purchase or otherwise acquire an
interest therein), as described in clause (ii) of the definition of SPE
Condition below (and with the level or amount of such requisite holders or the
authorization of such representative to be determined in accordance with the
relevant Transaction Document[s] establishing, providing for or governing such
purchases, acquisitions or commitments) shall have been given prior notice
thereof and that such requisite holders or authorized representative, as
applicable, shall have notified the Company in writing that such action is
permissible.
"INDEPENDENT DIRECTOR" means an individual who (i) is not and has not been
employed by Aon Corporation ("AON CORPORATION") or any of its subsidiaries or
affiliates, as a director, officer, employee, partner, attorney or counsel
within the five years immediately prior to such individual's appointment as an
Independent Director; (ii) is not (and is not affiliated with a company or a
firm that is) a significant advisor or consultant to Aon Corporation or any of
its subsidiaries and affiliates; (iii) is not affiliated with a significant
customer or supplier of Aon Corporation or any of its subsidiaries or
affiliates; (iv) is not affiliated with a company of which Aon Corporation or
any of its subsidiaries and affiliates is a significant customer or supplier,
(v) does not have significant personal services contract(s) with Aon Corporation
or any of its subsidiaries or affiliates; (vi) is not affiliated with a
tax-exempt entity that receives significant contributions from Aon Corporation
or any of its subsidiaries or affiliates; (vii) is not the beneficial owner at
the time of such individual's appointment as an Independent Director, or at any
time thereafter while serving as an Independent Director, of such number of
shares of any classes of common stock of Aon Corporation the value of which
constitutes more than 5% of the outstanding common stock of Aon Corporation;
(viii) does not at any time hold any beneficial or economic interest in the
Company; and (ix) is not a spouse, parent, sibling or child of any person
described in clauses (i) through (viii).
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As used in this definition, the following terms, phrases or concepts shall
have the following meanings:
(i) an "AFFILIATE" of a person, or a person "AFFILIATED WITH," a
specified person, shall mean a person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, the specified person.
(ii) The term "CONTROL" (including the terms "CONTROLLING,"
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH") shall mean the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of
voting securities, by contract, or otherwise; provided, however, that a
person shall not be deemed to control another person solely because he or
she is a director of such other person.
(iii) The term "PERSON" shall mean any individual, partnership, firm,
corporation, association, trust, unincorporated organization or other
entity, as well as any syndicate or group deemed to be a person pursuant to
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, as in
effect on the date of formation of the Company.
(iv) A "SUBSIDIARY" of Aon Corporation shall mean any corporation a
majority of the voting stock of which is owned, directly or indirectly
through one or more other subsidiaries by Aon Corporation.
(v) A person shall be deemed to be, or to be affiliated with, a
company or firm that is a "SIGNIFICANT ADVISOR OR CONSULTANT TO AON
CORPORATION OR ANY OF ITS SUBSIDIARIES OR AFFILIATES" if he, she, or it, as
the case may be, received or would receive fees or similar compensation
from Aon Corporation or any of its subsidiaries or affiliates in excess of
the lesser of (A) 3% of the consolidated gross revenues which Aon
Corporation and its subsidiaries received for the sale of their products
and services during the last fiscal year of Aon Corporation; (B) 5% of the
gross revenues of the person during the last calendar year if such person
is a self-employed individual; and (C) 5% of the consolidated gross
revenues received by such company or firm for the sale of its products and
services during its last fiscal year, if the person is a company or firm;
PROVIDED, HOWEVER, that director's fees and expense reimbursements shall
not be included in the gross revenues of an individual for purposes of this
determination.
(vi) A "SIGNIFICANT CUSTOMER OF AON CORPORATION OR ANY OF ITS
SUBSIDIARIES OR AFFILIATES" shall mean a customer from which Aon
Corporation and any of its subsidiaries or affiliates collectively in the
last fiscal year of Aon Corporation received payments in consideration for
the products and services of Aon Corporation and its subsidiaries or
affiliates which are in excess of 3% of the consolidated gross revenues of
Aon Corporation and its subsidiaries during such fiscal year.
-22-
(vii) A "SIGNIFICANT SUPPLIER OF AON CORPORATION OR ANY OF ITS
SUBSIDIARIES OR AFFILIATES" shall mean a supplier to which Aon Corporation
and any of its subsidiaries or affiliates collectively in the last fiscal
year of Aon Corporation made payments in consideration for the supplier's
products and services in excess of 3% of the consolidated gross revenues of
Aon Corporation and its subsidiaries during such fiscal year.
(viii) Aon Corporation or any of its subsidiaries and affiliated shall
be deemed a "SIGNIFICANT CUSTOMER" of a company if Aon Corporation and any
of its subsidiaries and affiliates collectively were the direct source
during such company's last fiscal year of in excess of 5% of the gross
revenues which such company received for the sale of its products and
services during such fiscal year.
(ix) Aon Corporation or any of its subsidiaries and affiliates shall
be deemed a "SIGNIFICANT SUPPLIER" of a company if Aon Corporation and any
of its subsidiaries and affiliates collectively received in such company's
last fiscal year payments from such company in excess of 5% of the gross
revenues which such company received during such fiscal year for the sale
of its products and services.
(x) A person shall be deemed to have "SIGNIFICANT PERSONAL SERVICES
CONTRACT(S) WHICH AON CORPORATION OR ANY OF ITS SUBSIDIARIES OR AFFILIATES"
if the fees and other compensation received by the person pursuant to
personal services contract(s) with Aon Corporation and any of its
subsidiaries or affiliates exceed or would exceed 5% of his or her gross
revenues during the last calendar year.
(xi) A tax-exempt entity shall be deemed to receive "SIGNIFICANT
CONTRIBUTIONS FROM AON CORPORATION OR ANY OF ITS SUBSIDIARIES OR
AFFILIATES" if such tax-exempt entity received during its last fiscal year
contributions from Aon Corporation or its subsidiaries or affiliates in
excess of the lesser of (A) 3% of the consolidated gross revenues of Aon
Corporation and its subsidiaries during such fiscal year and (B) 5% of the
contributions received by the tax-exempt entity during such fiscal year.
"INTERESTS" has the meaning set forth in Section 8(a)(iv) of this
Agreement.
"MANAGEMENT AGREEMENT" means the agreement of the Directors in the form
attached hereto as SCHEDULE C.
"MEMBER" means Premier Auto Finance, L.P., an Illinois limited partnership,
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; PROVIDED, HOWEVER, the term "MEMBER" shall
not include the Special Member.
"OFFICER" means an officer of the Company described in Section 12.
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"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.
"PROFITS AND LOSSES" means the net income or loss of the Company for
federal income tax purposes as finally determined by the Company for each fiscal
year of the Company, as well as, where the context requires, related federal tax
items such as tax preferences and credits, in each case, appropriately adjusted
with respect to final determination of any of the foregoing for federal income
tax purposes.
"RATING AGENCY" means any nationally recognized rating agency which has
issued and is maintaining a rating with respect to an outstanding Security.
"RATING AGENCY CONDITION" means, with respect to any action, that each
Rating Agency shall have been given ten days prior notice thereof and that each
Rating Agency shall have notified the Company in writing that such action will
not result in a reduction or withdrawal of the then current rating by such
Rating Agency if any.
"SECURITIES" has the meaning set forth in Section 8(a)(v) of this
Agreement.
"SPECIAL MEMBER" means, upon such person's admission to the Company as a
member of the Company pursuant to Section 35, 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.
"SPE CONDITION" means, as of any time of determination, that any of the
following have occurred and are continuing:
(i) the Company has issued and has outstanding, or any Trust
established or funded by the Company has issued and has outstanding, any
series or class of Securities which is then rated by a Rating Agency, or
(ii) the Company has otherwise assigned and conveyed outstanding
Interests, or otherwise has issued and has outstanding (including through a
Trust as described in clause (i) above) any series or class of Securities,
in either case with respect to which the holder or holders thereof (or any
party which has an outstanding commitment to purchase or otherwise acquire
such an Interest or Security) have required (by agreement to such effect
and/or as a condition to the purchase, commitment to purchase or holding of
such Interests or Securities, including by virtue of such an agreement or
condition requiring that this Agreement be executed and/or in effect in
this form) that the provisions relating to Independent Directors or the
provisions in Section 10(j) set forth herein shall be in effect as to the
Company.
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"TRANSFER AGREEMENT" has the meaning set forth in Section 8(a)(i) of this
Agreement.
"TRANSACTION DOCUMENTS" means this Agreement, each Transfer Agreement, each
agreement entered into by the Company or by a Trust at the direction of the
Company from time to time in connection with the acquisition of Assets or the
creation, funding or financing of Interests and/or Securities, and all other
documents, instruments and certificates delivered in connection therewith.
"TRUSTEE" has the meaning set forth in Section 8(a)(iii) of this Agreement.
"TRUSTS" has the meaning set forth in Section 8(a)(iii) of this Agreement.
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.
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SCHEDULE B
MEMBER
Name Mailing Address Agreed Value of Membership
---- --------------- Capital Contribution Interest
-------------------- --------
Premier Auto Finance, L.P.. 000 Xxxx Xxxxxx Xxxxxx, $1,000 100%
Xxxxxxx, Xxxxxxxx 00000
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SCHEDULE C
MANAGEMENT AGREEMENT
May __, 2001
Dealer Auto Receivables Company, LLC
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: MANAGEMENT AGREEMENT - DEALER AUTO RECEIVABLES COMPANY, LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned persons, who
have been designated as directors of Dealer Auto Receivables Company, LLC, a
Delaware limited liability company (the "COMPANY"), in accordance with the
Limited Liability Company Agreement of the Company, dated as of May __, 2001, 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 (as defined in the LLC Agreement) 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. Until the date which is both (i) one year and one day after the date
on which no Security or Interest (as defined in the LLC Agreement) remains
outstanding, and (ii) a date on which no commitment to purchase or increase
funding in respect of the same under any Transaction Document remains
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, (A) 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, and (B) not to join with or cooperate or encourage any other Person to
do any of the foregoing.
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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.
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.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned have executed this Management Agreement
as of the day and year first above written.
By:_______________________________
Name:
By:_______________________________
Name:
By:_______________________________
Name:
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