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Exhibit 3.1
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
AMSOUTH AUTO RECEIVABLES LLC
This Amended and Restated Limited Liability Company Agreement (together
with the schedules attached hereto, this "Agreement") of AmSouth Auto
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Receivables LLC (the "Company"), is entered into by AmSouth Bank, as the sole
equity member (the "Member"), and Juliana C. Johnson and Susan Burdick-Brennan,
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as the Special Members (as defined on Schedule A hereto). Capitalized terms used
and not otherwise defined herein have the meanings set forth on Schedule A
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hereto.
The Member, by execution of this Agreement, hereby continues the Company as
a limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act (6 Del. C. (S) 18-101 et seq.), as amended from
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time to time (the "Act"), and this Agreement, and hereby desires that this
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Agreement be, and hereby is, the sole governing document of the Company,
superseding all prior agreements. The Member and Juliana C. Johnson and Susan
Burdick-Brennan hereby agree as follows:
Section 1. Name.
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The name of the limited liability company formed and continued hereby is
AmSouth Auto Receivables LLC.
Section 2. Principal Business Office.
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The principal business office of the Company shall be located at 1900 Fifth
Avenue North, AmSouth Sonat Tower, Birmingham, Alabama 35203 or such other
location as may hereafter be determined by the Member.
Section 3. Registered Office.
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The address of the registered office of the Company in the State of
Delaware is The Corporation Trust Company, 1209 Orange Street, Corporate Trust
Center, in the City of Wilmington, County of New Castle, Delaware 19801.
Section 4. Registered Agent.
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The name and address of the registered agent of the Company for service of
process on the Company in the State of Delaware is The Corporation Trust
Company, 1209 Orange Street, Corporate Trust Center, in the City of Wilmington,
County of New Castle, Delaware 19801.
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Section 5. Members.
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(a) The mailing address of the Member is set forth on Schedule B
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attached hereto.
(b) Subject to Section 9(j), the Member may act by written consent.
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(c) Upon the occurrence of any event that causes the Member to cease to
be a member of the Company (other than (i) upon an assignment by the Member of
all of its limited liability company interest in the Company and the admission
of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the
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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
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Section 10 shall, without any action of any Person and simultaneously with the
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Member ceasing to be a member of the Company, automatically be admitted to the
Company as a Special Member and shall continue the Company without dissolution.
No Special Member may resign from the Company or transfer its rights as Special
Member unless (i) a successor Special Member has been admitted to the Company as
Special Member by executing a counterpart to this Agreement, and (ii) such
successor has also accepted its appointment as Independent Director pursuant to
Section 10; provided, however, the Special Members shall automatically cease to
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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
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Act, a Special Member shall not be required to make any capital contributions to
the Company and shall not receive a limited liability company interest in the
Company. A Special Member, in its capacity as Special Member, may not bind the
Company. Except as required by any mandatory provision of the Act, each Special
Member, in its capacity as Special Member, shall have no right to vote on,
approve or otherwise consent to any action by, or matter relating to, the
Company, including, without limitation, the merger, consolidation or conversion
of the Company. In order to implement the admission to the Company of each
Special Member, each person acting as an Independent Director pursuant to
Section 10 shall execute a counterpart to this Agreement. Prior to its
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admission to the Company as Special Member, each person acting as an Independent
Director pursuant to Section 10 shall not be a member of the Company.
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Section 6. Certificates.
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Paul E. Frost, 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 New York, Alabama and in any other jurisdiction in which the
Company may wish to conduct business.
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The existence of the Company as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in the Act.
Section 7. Purposes. The purpose to be conducted or promoted by the Company
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is to engage in the following activities:
(1) (i) to purchase, accept capital contributions of or otherwise
acquire (A) motor vehicle retail installment sale contracts
and motor vehicle loans, whether such contracts or loans
constitute accounts, chattel paper, instruments or general
intangibles, and including rights to payment of any
interest, finance charges or fees and any other rights with
respect thereto (the "Receivables"), (B) security interests
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in the motor vehicles financed by the Receivables (the
"Financed Vehicles") and any accessions thereto; (C) the
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rights to proceeds with respect to the Receivables from
claims on insurance policies covering the Financed Vehicles
and any rights of an originator of the Receivables in any
rebates of premiums and other amounts relating to insurance
policies and other items financed under the Receivables; (D)
any property that shall have secured a Receivable; (E) any
rights of an originator with respect to any agreement under
which such originator has acquired Receivables originated by
or through a motor vehicle dealer; (F) any rights of an
originator of the Receivables in any documents or
instruments or other property appurtenant or relating to the
Receivables; and (G) any and all proceeds of the foregoing
(the property described in clauses (B) through (G) above
being called the "Related Assets");
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(ii) to own, hold, service, sell, assign, transfer, pledge, grant
security interests in or otherwise exercise ownership rights
with respect to the Receivables and Related Assets;
(iii) to issue and sell one or more series of Securities;
(iv) to act as settlor or depositor of trusts or other entities
or to own equity interests in other limited liability
companies or partnerships (whose purposes are restricted to
those set forth in this Section), each of which is formed to
issue Securities (each, a "Trust");
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(v) to acquire, own, hold, transfer, assign, pledge, sell and
otherwise deal with any interests in a Trust or Securities
issued by a Trust;
(vi) to enter into, execute and deliver any sale and servicing
agreement, pooling and servicing agreement, trust agreement,
purchase agreement, administration agreement, custodial
agreement or any other agreement which may be required or
advisable to effect the administration or servicing of the
Receivables and Related Assets or the issuance and sale of
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any Securities (each, a "Securitization Agreement"), and to
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perform its obligations under each Securitization Agreement
to which it is a party;
(vii) to establish any reserve account, spread account or other
credit enhancement for the benefit of Securities issued by
the Company or any Trust and to loan, transfer or otherwise
invest any proceeds from Receivables and Related Assets and
any other income as determined by the Board;
(viii) to purchase financial guaranty insurance policies for the
benefit of any Security issued by the Company or any Trust;
(ix) to enter into any interest rate or basis swap, cap, floor or
collar agreements, currency exchange agreements or similar
hedging transactions relating to any Receivables and Related
Assets or for the benefit of any Security issued by the
Company or any Trust;
(x) to prepare, execute and file with the Securities and
Exchange Commission registration statements, including a
prospectus and forms of prospectus supplements, relating to
Securities;
(xi) to prepare private placement memorandums relating to
Securities to be offered and sold privately;
(xii) for federal, state or local tax purposes, to serve as
general partner of any Trust; and
(xiii) to engage in any lawful act or activity and to exercise any
powers permitted to limited liability companies organized
under the laws of the State of Delaware that are related or
incidental to and necessary, convenient or advisable for the
accomplishment of the above-mentioned purposes.
(b) The Company, by or through the Member, or any Director or Officer
on behalf of the Company, may enter into and perform the Basic Documents and all
documents, agreements, certificates, or financing statements contemplated
thereby or related thereto, all without any further act, vote or approval of any
other Person notwithstanding any other provision of this Agreement, the Act or
applicable law, rule or regulation. The foregoing authorization shall not be
deemed a restriction on the powers of the Member or any Director or Officer to
enter into other agreements on behalf of the Company.
Section 8. Powers.
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Subject to Section 9(j), the Company, and the Board of Directors and the
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Officers of the Company on behalf of the Company, (i) shall have and exercise
all powers necessary, convenient
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or incidental to accomplish its purposes as set forth in Section 7 and (ii)
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shall have and exercise all of the powers and rights conferred upon limited
liability companies formed pursuant to the Act.
Section 9. Management.
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(a) Board of Directors. Subject to Section 9(j), the business and
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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
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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
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10. The initial number of Directors shall be five, two of which shall be
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Independent Directors pursuant to Section 10. Each Director elected, designated
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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 initial Directors designated by the Member
are listed on Schedule D hereto.
(b) Powers. Subject to Section 9(j), the Board of Directors shall have
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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
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authority to bind the Company.
(c) Meeting of the Board of Directors. The Board of Directors of the
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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
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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.
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(e) Electronic Communications. Members of the Board, or any committee
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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.
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(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)
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and 10, shall have and may exercise all the powers and
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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
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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
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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
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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
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this Agreement and subject to Section 9(j), the Directors are agents of the
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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
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Agreement shall bind the Company. Notwithstanding the last sentence of Section
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18-402 of the Act, except as provided in this Agreement or in a resolution of
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the Directors, a Director may not bind the Company.
(j) Limitations on the Company's Activities.
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(i) This Section 9(j) is being adopted in order to comply with
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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,
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20, 21, 22, 23, 24, 25, 26 or 31 or Schedule A of this
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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,
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change or repeal any provisions contained in this Agreement
in accordance with Section 31.
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(iii) Notwithstanding any other provision of this Agreement and
any provision of law that otherwise so empowers the Company,
the Member, the Board, any Officer or any other Person,
neither the Member nor the Board nor any Officer nor any
other Person shall be authorized or empowered, nor shall
they permit the Company, without the prior unanimous written
consent of the Member and the Board (including all
Independent Directors), to take any Material Action,
provided, however, that the Board may not vote on, or
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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; provided, however, that the
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Company shall not be required to preserve any such right or
franchise if: (1) the Board shall determine that the
preservation thereof is no longer desirable for the conduct
of its business and that the loss thereof is not
disadvantageous in any material respect to the Company and
(2) the Rating Agency Condition is satisfied. The Board also
shall cause the Company to:
(A) maintain its own separate books and records and bank
accounts;
(B) at all times hold itself out to the public and all
other Persons as a legal entity separate from the
Member and any other Person;
(C) have a Board of Directors separate from that of the
Member and any other Person;
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(D) file its own tax returns, if any, as may be required
under applicable law, to the extent (1) not part of a
consolidated group filing a consolidated return or
returns or (2) not treated as a division for tax
purposes of another taxpayer, and pay any taxes so
required to be paid under applicable law;
(E) except as contemplated by the Basic Documents, not
commingle its assets with assets of any other Person;
(F) conduct its business in its own name and strictly
comply with all organizational formalities to maintain
its separate existence;
(G) maintain separate financial statements;
(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) to the extent its office is located in the offices of
any Affiliate pay fair market rent for its office space
located therein, and otherwise allocate fairly and
reasonably any overhead expenses shared with any
Affiliate, and not engage in any business transaction
with any Affiliate unless on an arm's-length basis;
(M) use separate stationery, invoices and checks;
(N) except as contemplated by the Basic Documents, not
pledge its assets for the benefit of any other Person;
(O) correct any known misunderstanding regarding its
separate identity;
(P) maintain adequate capital in light of its contemplated
business purpose, transactions and liabilities;
(Q) cause its Board of Directors to meet at least annually
or act pursuant to written consent and keep minutes of
such meetings and
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actions and observe all other Delaware limited
liability company formalities;
(R) not acquire any securities of the Member; and
(S) cause the Directors, Officers, agents and other
representatives of the Company to act at all times with
respect to the Company consistently and in furtherance
of the foregoing and in the best interests of the
Company.
Failure of the Company, or the Member or Board on behalf of the Company, to
comply with any of the foregoing covenants or any other covenants contained in
this Agreement shall not affect the status of the Company as a separate legal
entity or the limited liability of the Member or the Directors.
(v) So long as any Obligation is outstanding, the Board shall
not cause or permit the Company to:
(A) except as contemplated by the Basic Documents,
guarantee any obligation of any Person, including any
Affiliate;
(B) engage, directly or indirectly, in any business other
than the actions required or permitted to be performed
under Section 7, the Basic Documents or this Section
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9(j);
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(C) incur, create or assume any indebtedness other than as
expressly permitted under the Basic Documents;
(D) make or permit to remain outstanding any loan or
advance to, or own or acquire any stock or securities
of, any Person, except that the Company may invest in
those investments permitted under the Basic Documents
and may make any advance required or expressly
permitted to be made pursuant to any provisions of the
Basic Documents and permit the same to remain
outstanding in accordance with such provisions;
(E) to the fullest extent permitted by law, engage in any
dissolution, liquidation, consolidation, merger, asset
sale or transfer of ownership interests other than such
activities as are expressly permitted pursuant to any
provision of the Basic Documents; or
(F) except as contemplated by the Basic Documents, form,
acquire or hold any subsidiary (whether corporate,
partnership, limited liability company or other).
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Section 10. Independent Director.
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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
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interests of the Company, including its respective creditors, in acting or
otherwise voting on the matters referred to in Section 9(j)(iii). No
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resignation or removal of an Independent Director, and no appointment of a
successor Independent Director, shall be effective until such successor (i)
shall have accepted his or her appointment as an Independent Director by a
written instrument, which may be a counterpart signature page to the Management
Agreement, and (ii) shall have executed a counterpart to this Agreement as
required by Section 5(c). In the event of a vacancy in the position of
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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
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their rights and performing their duties under this Agreement, any Independent
Director shall have a fiduciary duty of loyalty and care similar to that of a
director of a business corporation organized under the General Corporation Law
of the State of Delaware. No Independent Director shall at any time serve as
trustee in bankruptcy for any Affiliate of the Company.
Section 11. Officers.
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(a) Officers. The initial Officers of the Company shall be designated
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by the Member. The additional or successor Officers of the Company shall be
chosen by the Board and shall consist of at least a President, a Secretary and a
Treasurer. The Board of Directors may also choose one or more Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Any number of offices may be
held by the same person. The Board shall choose a President, a Secretary and a
Treasurer. The Board may appoint such other Officers and agents as it shall deem
necessary or advisable who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board. The salaries of all Officers and agents of the Company shall
be fixed by or in the manner prescribed by the Board. The Officers of the
Company shall hold office until their successors are chosen and qualified. Any
Officer may be removed at any time, with or without cause, by the affirmative
vote of a majority of the Board. Any vacancy occurring in any office of the
Company shall be filled by the Board. The initial Officers of the Company
designated by the Member are listed on Schedule E hereto.
(b) President. The President shall be the chief executive officer of
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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
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expressly delegated by the Board to some other Officer or agent of the Company,
and (iii) as otherwise permitted in Section 11(c).
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(c) Vice President. In the absence of the President or in the event of
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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
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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
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custody of the Company funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the Board.
The Treasurer shall disburse the funds of the Company as may be ordered by the
Board, taking proper vouchers for such disbursements, and shall render to the
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
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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
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Officers taken in accordance with such powers shall bind the Company.
(g) Duties of Board and Officers. Except to the extent otherwise
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provided herein, each Director and Officer shall have a fiduciary duty of
loyalty and care similar to that of
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directors and officers of business corporations organized under the General
Corporation Law of the State of Delaware.
Section 12. Limited Liability.
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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.
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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
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Special Members shall not be required to make any capital contributions to the
Company.
Section 14. Additional Contributions.
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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
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Agreement, including this Section 14, are intended to benefit the Member and the
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Special Members and, to the fullest extent permitted by law, shall not be
construed as conferring any benefit upon any creditor of the Company (and no
such creditor of the Company shall be a third-party beneficiary of this
Agreement) and the Member and the Special Members shall not have any duty or
obligation to any creditor of the Company to make any contribution to the
Company or to issue any call for capital pursuant to this Agreement.
Section 15. Allocation of Profits and Losses.
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The Company's profits and losses shall be allocated to the Member.
Section 16. Distributions.
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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
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or any Basic Document.
Section 17. Books and Records.
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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
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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.
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(a) Within 60 days after the end of each fiscal quarter, the Board
shall cause to be prepared an unaudited report setting forth as of the end of
such fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a balance
sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter, an income
statement of the Company for such fiscal quarter.
(b) The Board shall use diligent efforts to cause to be prepared and
mailed to the Member, within 90 days after the end of each fiscal year, an
audited or unaudited report setting forth as of the end of such fiscal year:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such fiscal year; and
(iii) a statement of the Member's capital account.
(c) The Board shall, after the end of each fiscal year, use reasonable
efforts to cause the Company's independent accountants, if any, to prepare and
transmit to the Member as promptly as possible any such tax information as may
be reasonably necessary to enable the Member to prepare its federal, state and
local income tax returns relating to such fiscal year.
Section 19. Other Business.
--------------
The Member, the Special Members and any Affiliate of the Member or the
Special Members may engage in or possess an interest in other business ventures
(unconnected with the Company) of every kind and description, independently or
with others. The Company shall not have any rights in or to such independent
ventures or the income or profits therefrom by virtue of this Agreement.
Section 20. Exculpation and Indemnification.
-------------------------------
13
<PAGE>
(a) Neither the Member nor the Special Members nor any Officer,
Director, employee or agent of the Company nor any employee, representative,
agent or Affiliate of the Member or the Special Members (collectively, the
"Covered Persons") shall be liable to the Company or any other Person who has
---------------
an interest in or claim against the Company for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such Covered
Person in good faith on behalf of the Company and in a manner reasonably
believed to be within the scope of the authority conferred on such Covered
Person by this Agreement, except that a Covered Person shall be liable for any
such loss, damage or claim incurred by reason of such Covered Person's gross
negligence or willful misconduct.
(b) To the fullest extent permitted by applicable law, a Covered Person
shall be entitled to indemnification from the Company for any loss, damage or
claim incurred by such Covered Person by reason of any act or omission performed
or omitted by such Covered Person in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the authority conferred
on such Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Covered Person by reason of such Covered Person's gross negligence or
willful misconduct with respect to such acts or omissions; provided, however,
-------- -------
that any indemnity under this Section 20 by the Company shall be provided out of
----------
and to the extent of Company assets only, and the Member and the Special Members
shall not have personal liability on account thereof; and provided further, that
-------- -------
so long as any Obligation is outstanding, no indemnity payment from funds of the
Company (as distinct from funds from other sources, such as insurance) of any
indemnity under this Section 20 shall be payable from amounts allocable to any
----------
other Person pursuant to the Basic Documents.
(c) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Company
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Company of an undertaking by or on behalf of the Covered
Person to repay 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
14
<PAGE>
authorization granted by the Company or any other Covered Person. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities
of a Covered Person otherwise existing at law or in equity, are agreed by the
Member and the Special Members to replace such other duties and liabilities of
such Covered Person.
(f) The foregoing provisions of this Section 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 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.
-----------
(a) Subject to Section 9(j) and the following sentence, the Company
------------
shall be dissolved, and its affairs shall be wound up upon the first to occur of
the following: (i) the
15
<PAGE>
termination of the legal existence of the last remaining member of the Company
or the occurrence of any other event which terminates the continued membership
of the last remaining member of the Company in the Company unless the business
of the Company is continued in a manner permitted by this Agreement or the Act
or (ii) the entry of a decree of judicial dissolution under Section 18-802 of
--------------
the Act. Upon the occurrence of any event that causes the last remaining member
of the Company to cease to be a member of the Company, to the fullest extent
permitted by law, the personal representative of such member is hereby
authorized to, and shall, within 90 days after the occurrence of the event that
terminated the continued membership of such member in the Company, agree in
writing (i) to continue the Company and (ii) to the admission of the personal
representative or its nominee or designee, as the case may be, as a substitute
member of the Company, effective as of the occurrence of the event that
terminated the continued membership of the last remaining member of the Company
in the Company.
(b) Notwithstanding any other provision of this Agreement, the
Bankruptcy of the Member or a Special Member shall not cause the Member or
Special Member, respectively, to cease to be a member of the Company and upon
the occurrence of such an event, the business of the Company shall continue
without dissolution.
(c) Notwithstanding any other provision of this Agreement, each of the
Member and the Special Members waives any right it might have to agree in
writing to dissolve the Company upon the Bankruptcy of the Member or a Special
Member, or the occurrence of an event that causes the Member or a Special Member
to cease to be a member of the Company.
(d) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the Company in an orderly manner), and the assets of the Company shall
be applied in the manner, and in the order of priority, set forth in Section 18-
----------
804 of the Act.
---
(e) The Company shall terminate when (i) all of the assets of the
Company, after payment of or due provision for all debts, liabilities and
obligations of the Company (including all Obligations of the Company), ( shall
have been distributed to the Member in the manner provided for in this Agreement
and (ii) the Certificate of Formation shall have been canceled in the manner
required by the Act.
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
16
<PAGE>
with respect to any distribution pursuant to Section 16 hereof. The interest of
----------
the Member in the Company is personal property.
Section 26. Benefits of Agreement; No Third-Party Rights.
--------------------------------------------
None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditor of the Company or by any creditor of the Member or a
Special Member. Nothing in this Agreement shall be deemed to create any right in
any Person (other than Covered Persons) not a party hereto, and this Agreement
shall not be construed in any respect to be a contract in whole or in part for
the benefit of any third Person (except as provided in Section 29).
----------
Section 27. Severability of Provisions.
--------------------------
Each provision of this Agreement shall be considered severable and if for
any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those
portions of this Agreement 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 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
17
<PAGE>
supplement any provision in a manner consistent with the intent of this
Agreement and the other Basic 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 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. Effectiveness.
-------------
Pursuant to Section 18-201 (d) of the Act, this Agreement shall be
------------------
effective as of the date hereof.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
has duly executed this Limited Liability Company Agreement as of the 23rd day of
August, 2000.
MEMBER:
AMSOUTH BANK
By: /S/ R. MARK GRAF
--------------------------
Name: R. Mark Graf
---------------------
Title: SVP
--------------------
SPECIAL MEMBERS:
/S/ JULIANA C. JOHNSON
--------------------------------
Name: Juliana C. Johnson
/S/ EVELYN ECCHEVARRIA
--------------------------------
Name: Evelyn Ecchevarria
<PAGE>
SCHEDULE A
Definitions
-----------
A. Definitions
-----------
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
---
"Affiliate" means, with respect to any Person, any other Person directly or
---------
indirectly Controlling or Controlled by or under direct or indirect common
Control with such Person.
"Agreement" means this Limited Liability Company Agreement of the Company,
---------
together with the schedules attached hereto, as amended, restated or
supplemented or otherwise modified from time to time.
"Bankruptcy" means, with respect to any Person, if such Person (i) makes an
----------
assignment for the benefit of creditors, (ii) files a voluntary petition in
bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it
an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, (v) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding of this nature, (vi) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all or any
substantial part of its properties, or (vii) if 120 days after the commencement
of any proceeding against the Person seeking reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, if the proceeding has not been dismissed, or if within 90 days
after the appointment without such Person's consent or acquiescence of a
trustee, receiver or liquidator of such Person or of all or any substantial part
of its properties, the appointment is not vacated or stayed, or within 90 days
after the expiration of any such stay, the appointment is not vacated. The
foregoing definition of "Bankruptcy" is intended to replace and shall supersede
and replace the definition of"Bankruptcy" set forth in Sections 18-101(1) and
------------------
18-304 of the Act.
------
"Basic Documents" means this Agreement, the Management Agreement, any
---------------
Securitization Agreement and all documents and certificates contemplated thereby
or delivered 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 June 2,
2000, as amended or amended and restated from time to time.
A-1
<PAGE>
"Company" means AmSouth Auto Receivables 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.
------------------
"Financed Vehicle" has the meaning set forth in Section 7(a)(i).
---------------- ---------------
"Independent Director" means a natural person who, for the five-year period
--------------------
prior to his or her appointment as Independent Director has not been, and during
the continuation of his or her service as Independent Director is not: (i) an
employee, director, stockholder, partner or officer of the Company or any of its
Affiliates (other than his or her service as an Independent Director of the
Company); (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).
"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 AmSouth Bank, as the initial member of the Company, and
------
includes any Person admitted as an additional member of the Company or a
substitute member of the
A-2
<PAGE>
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 any Securities and the indebtedness, liabilities
-----------
and obligations of the Company under or in connection with this Agreement, the
other Basic Documents or any related document in effect as of any date of
determination.
"Officer" means an officer of the Company described in Section 11.
------- ----------
"Officer's Certificate" means a certificate signed by any Officer of the
---------------------
Company who is authorized to act for the Company in matters relating to the
Company.
"Person" means any individual, corporation, partnership, joint venture,
------
limited liability company, limited liability partnership, association, joint
stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.
"Rating Agency" means any nationally recognized statistical rating
-------------
organization currently rating any Security.
"Rating Agency Condition" means, with respect to any action, that each
-----------------------
Rating Agency shall have been given ten days prior notice thereof and that each
of the Rating Agencies shall have notified the Company in writing that such
action will not result in a reduction or withdrawal of the then current rating
by such Rating Agency of any of the Securities.
"Receivables" has the meaning set forth in Section 7(a)(i).
----------- ---------------
"Related Assets" has the meaning set forth in Section 7(a)(i).
-------------- ---------------
"Security" means any bond, note, certificate or other security issued by
--------
the Company or a Trust and secured primarily by or evidencing beneficial
ownership interest in the Receivables and Related Assets;
"Securitization Agreement" has the meaning set forth in Section 7(a)(vi).
------------------------ ----------------
"Special Member" means, upon such person's admission to the Company as a
--------------
member of the Company pursuant to Section 5(c), a person acting as Independent
------------
Director, in such person's capacity as a member of the Company. A Special Member
shall only have the rights and duties expressly set forth in this Agreement.
"Trust" has the meaning set forth in Section 7(a)(iv).
----- ----------------
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
A-3
<PAGE>
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
<PAGE>
SCHEDULE B
Member
------
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------
Agreed Value of Membership
Name Mailing Address Capital Contribution Interest
---- --------------- -------------------- ----------
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
AmSouth Bank 1900 Fifth Avenue North
AmSouth Sonat Tower $100.00 100%
Birmingham, Alabama 35203
-------------------------------------------------------------------------------------------------
</TABLE>
B-1
<PAGE>
SCHEDULE C
Management Agreement
--------------------
August 23, 2000
AmSouth Auto Receivables LLC
1900 Fifth Avenue North
AmSouth Sonat Tower
Birmingham, Alabama 35203
Re: Management Agreement -- AmSouth Auto Receivables LLC
----------------------------------------------------
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned Persons, who
have been designated as directors of AmSouth Auto Receivables LLC, a Delaware
limited liability company (the "Company"), in accordance with the Limited
Liability Company Agreement of the Company, dated as of August 23, 2000, 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 a case against the Company under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Company or any
substantial part of the property of the Company, or ordering the winding up or
liquidation of the affairs of the Company.
3. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
C-1
<PAGE>
AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
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.
By:______________________________________
R. Mark Graf
By:______________________________________
John D. Kottmeyer
By:______________________________________
T. Kurt Miller
By:______________________________________
Juliana C. Johnson
By:______________________________________
Evelyn Ecchevarria
C-2
<PAGE>
SCHEDULE D
DIRECTORS
---------
1. R. Mark Graf
2. John D. Kottmeyer
3. T. Kurt Miller
4. Juliana C. Johnson
5. Evelyn Ecchevarria
D-1
<PAGE>
SCHEDULE E
OFFICERS TITLE
-------- -----
1. R. Mark Graf President
2. John D. Kottmeyer Treasurer
3. T. Kurt Miller Secretary
E-1
