FORM OF LIMITED LIABILITY COMPANY AGREEMENT OF [VOLKSWAGEN AUTO LOAN ENHANCED, LLC 20[ ]-[ ]]
Exhibit 99.1
This Limited Liability Company Agreement (together with the schedules attached hereto, this
“Agreement”) of [Volkswagen Auto Loan Enhanced, LLC 20[ ]-[ ]] (the “Company”), is
entered into by Volkswagen Auto Lease/Loan Underwritten Funding, LLC, a Delaware limited liability
company, as the sole equity member (the “Member”),
and , as the Special
Member (as defined on Schedule A hereto). Capitalized terms used and not otherwise defined
herein have the meanings set forth on Schedule A hereto.
The Member, by execution of this Agreement, hereby forms the Company as a limited liability
company pursuant to and in accordance with the Delaware Limited Liability Company Act (6 Del.
C. § 18-101 et seq.), as amended from time to time (the “Act”), and
this Agreement, and the Member and hereby agree as follows:
Section 1. Name.
The name of the limited liability company formed hereby is [Volkswagen Auto Loan Enhanced, LLC
20[ ]-[ ]].
Section 2. Principal Business Office.
The principal business office of the Company shall be located at c/o [VW Credit, Inc., 0000
Xxxxxxxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000], or such other location as may hereafter be
determined by the Member.
Section 3. Registered Office.
The address of the registered office of the Company in the State of Delaware is c/o [The
Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx,
Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000].
Section 4. Registered Agent.
The name and address of the registered agent of the Company for service of process on the
Company in the State of Delaware is [The Corporation Trust Company, Corporation Trust Center, 0000
Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000].
Section 5. Members; Special Member.
(a) The mailing address of the Member is set forth on Schedule B attached hereto. The
Member was admitted to the Company as a member of the Company upon its execution of a counterpart
signature page to this Agreement.
(b) Subject to Section 9(j), the Member may act by written consent.
(c) Upon the occurrence of any event that causes the Member to cease to be a member of the
Company (other than (i) upon an assignment by the Member of all of its limited liability company
interest in the Company and the admission of the transferee pursuant to Sections 21 and 23,
or (ii) the resignation of the Member and the admission of an additional member of the Company
pursuant to Sections 22 and 23), the person acting as an Independent Director pursuant to
Section 10 shall, without any action of any Person and simultaneously with the Member
ceasing to be a member of the Company, automatically be admitted to the Company as the Special
Member and shall continue the Company without dissolution. The Special Member may not 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 Member shall automatically cease to be a
member of the Company upon the admission to the Company of a new Member or a substitute Special
Member. The Special Member shall be a member of the Company that has no interest in the profits,
losses and capital of the Company and has no right to receive any distributions of Company assets.
Pursuant to Section 18-301 of the Act, the 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. The Special Member, in its capacity as Special Member, may not bind the Company. Except
as required by any mandatory provision of the Act, the 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 the Special Member, the person
acting as an Independent Director pursuant to Section 10 shall execute a counterpart to
this Agreement. Prior to its admission to the Company as Special Member, the person acting as an
Independent Director pursuant to Section 10 shall not be a member of the Company.
Section 6. Certificates.
is hereby designated as an “authorized person” within the meaning of the Act,
and has executed, delivered and filed the Certificate of Formation of the Company with the
Secretary of State of the State of Delaware. Upon the filing of the Certificate of Formation with
the Secretary of State of the State of Delaware, his powers as an “authorized person” ceased, and
the Member thereupon became the designated “authorized person” and shall continue as the designated
“authorized person” within the meaning of the Act. The Member or an Officer shall execute, deliver
and file any other certificates (and any amendments and/or restatements thereof) necessary for the
Company to qualify to do business in any jurisdiction in which the Company may wish to conduct
business. The Member or an Officer shall also execute, deliver and file any application or similar
document necessary for the Company to obtain any license or registration required to conduct its
business in any jurisdiction in which the Company may wish to conduct business.
The existence of the Company as a separate legal entity shall continue until cancellation of
the Certificate of Formation as provided in the Act.
-2-
Section 7. Purposes.
(a) The purpose to be conducted or promoted by the Company is to engage in the following
business and financial activities:
| (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 in the motor vehicles financed by the Receivables (the “Financed Vehicles”) and any accessions thereto; (C) the 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; (G) any and all proceeds of the foregoing (the property described in clauses (B) through (G) above being called the “Related Assets”);] [ (A) special units of beneficial interest in VW Credit Leasing, Ltd. representing portfolios of motor vehicle leases, the related vehicles and related property (the “SUBI Assets”)]; | ||
| (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 enter into, execute and deliver any sale and servicing 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 any Securities (each, a “Securitization Agreement”), and to perform its obligations under each Securitization Agreement to which it is a party; | ||
| (v) | 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] [SUBI Assets] and any other income as determined by the Board; | ||
| (vi) | to purchase financial guaranty insurance policies for the benefit of any Security issued by the Company; | ||
| (vii) | to enter into any interest rate or basis swap, cap, floor or collar agreements, currency exchange agreements or similar hedging transactions relating to any |
-3-
| [Receivables and Related Assets] [SUBI Assets] or for the benefit of any Security issued by the Company; |
| (viii) | to prepare private placement memorandums relating to Securities to be offered and sold privately; and | ||
| (ix) | 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.
Subject to Section 9(j), the Company, and the Board of Directors and the Officers of
the Company on behalf of the Company, (i) shall have and exercise all powers necessary, convenient
or incidental to accomplish its purposes as set forth in Section 7 and (ii) shall have and
exercise all of the powers and rights conferred upon limited liability companies formed pursuant to
the Act.
Section 9. Management.
(a) Board of Directors. Subject to Section 9(j), the business and affairs of
the Company shall be managed by or under the direction of a Board of one or more Directors
designated by the Member. Subject to Section 10, the Member may determine at any time in
its sole and absolute discretion the number of Directors to constitute the Board. The authorized
number of Directors may be increased or decreased by the Member at any time in its sole and
absolute discretion, upon notice to all Directors, and subject in all cases to Section 10.
The initial number of Directors shall be [four], at least one of which shall be an Independent
Director pursuant to Section 10. Each Director elected, designated or appointed by the
Member shall hold office until a successor is elected and qualified or until such Director’s
earlier death, resignation, expulsion or removal. Each Director shall execute and deliver the
Directors’ 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 the
power to do any and all acts necessary, convenient or incidental to or for the furtherance of the
purposes described herein, including all powers, statutory or otherwise. Subject to Section
7, the Board of Directors has the authority to bind the Company.
-4-
(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 three days’ notice to each Director by telephone, facsimile, mail, telegram or any other means
of communication, and special meetings shall be called by the President or Secretary in like manner
and with like notice upon the written request of any one or more of the Directors.
(d) Quorum: Acts of the Board. At all meetings of the Board, a majority of the
Directors shall constitute a quorum for the transaction of business and, except as otherwise
provided in any other provision of this Agreement, the act of a majority of the Directors present
at any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be
present at any meeting of the Board, the Directors present at such meeting may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until a quorum shall be
present. Any action required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee, as the case may be.
(e) Electronic Communications. Members of the Board, or any committee designated by
the Board, may participate in meetings of the Board, or any committee, by means of telephone
conference or similar communications equipment that allows all Persons participating in the meeting
to hear each other, and such participation in a meeting shall constitute presence in Person at the
meeting. If all the participants are participating by telephone conference or similar
communications equipment, the meeting shall be deemed to be held at the principal place of business
of the Company.
(f) Committees of Directors.
| (i) | The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Company. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. | ||
| (ii) | In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. | ||
| (iii) | Any such committee, to the extent provided in the resolution of the Board, and subject to, in all cases, Sections 9(j) and 10, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. |
-5-
| Each committee shall keep regular minutes of its meetings and report the same to the Board when required. |
| (iv) | For the avoidance of doubt, any committee of the Board shall not have any power or powers prohibited the Board under Section 9(j). |
(g) Compensation of Directors; Expenses. The Board shall have the authority to fix
the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at
meetings of the Board, which may be a fixed sum for attendance at each meeting of the Board or a
stated salary as Director. No such payment shall preclude any Director from serving the Company in
any other capacity and receiving compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee meetings.
(h) Removal of Directors. Unless otherwise restricted by law, any Director or the
entire Board of Directors may be removed or expelled, with or without cause, at any time by the
Member, and, subject to Section 10, any vacancy caused by any such removal or expulsion may
be filled by action of the Member.
(i) Directors as Agents. To the extent of their powers set forth in this Agreement
and subject to Section 9(j), the Directors are agents of the Company for the purpose of the
Company’s business, and the actions of the Directors taken in accordance with such powers set forth
in this Agreement shall bind the Company. Notwithstanding the last sentence of Section 18-402 of
the Act, except as provided in this Agreement or in a resolution of the Directors, a Director may
not bind the Company.
(j) Limitations on the Company’s Activities.
| (i) | This Section 9(j) is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity. | ||
| (ii) | The Member shall not, so long as any Obligation is outstanding, amend, alter, change or repeal the definition of “Independent Director” or Sections 7, 8, 9, 10, 16, 20, 21, 22, 23, 24, 25, 26, 29 or 31 or Schedule A of this Agreement without the unanimous written consent of the Board (including the Independent Director). Subject to this Section 9(j), the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 31. | ||
| (iii) | Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Board, any Officer or any other Person, neither the Member nor the Board nor any Officer nor any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior unanimous written consent of the Member and the Board (including the Independent Director), to take any Material Action, provided, however, that the Board may not vote on, or authorize the taking of, any Material Action, unless there is at least one Independent Director then serving in such capacity. |
-6-
| (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, subject to the terms of the Basic Documents, 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 is satisfied. The Board also shall cause the Company to: |
| (A) | have its own business office (which, however, may be within the premises of and leased from the Member) at which will be maintained its own separate limited liability company books and records; | ||
| (B) | observe all requirements of the Delaware Limited Liability Company Act, the Company’s certificate of formation and this Agreement; | ||
| (C) | compensate all consultants and agents directly, from its own bank account, for services provided to it by such consultants and agents; | ||
| (D) | readily identify and allocate any sharing of overhead expenses between the Company and the Member; | ||
| (E) | preserve its limited liability company form and hold itself out to the public and all other Persons as a separate legal entity from the Member and all other Persons; | ||
| (F) | strictly observe and maintain separate financial records which are and will continue to be maintained to reflect its assets and liabilities which will be subject to audit by independent public accountants; | ||
| (G) | declare and pay all dividends in accordance with law, the provisions of its organic documents, and the provisions of the Basic Documents; | ||
| (H) | maintain its assets and liabilities in such a manner that its individual assets and liabilities can be readily and inexpensively identified from those of the Member or any other Person, including any other subsidiary or Affiliate of the Member; | ||
| (I) | maintain its own books of account and records separate from the Member or any other subsidiary or Affiliate of the Member; | ||
| (J) | avoid commingling or pooling of its funds or other assets or liabilities with those of the Member or any other subsidiary or Affiliate of the Member, except with respect to the temporary commingling of collections and except with respect to the Member’s retention of certain books and records of the Company and except to the extent that the provisions of the Basic Documents permit such commingling; |
-7-
| (K) | properly reflect in its financial records all monetary transactions between it and the Member or any other subsidiary or Affiliate of the Member; | ||
| (L) | maintain an arm’s length relationship with its Affiliates and the Member; | ||
| (M) | not hold out its credit or assets as being available to satisfy the obligations of others; | ||
| (N) | use separate stationery, invoices and checks; | ||
| (O) | except as contemplated by the Basic Documents, not pledge its assets for the benefit of any other Person; | ||
| (P) | maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; and | ||
| (Q) | 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 9(j); | ||
| (C) | incur, create or assume any indebtedness other than as expressly permitted hereunder and 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 |
-8-
| interests other than such activities as are expressly permitted pursuant to any provision of the Basic Documents; or |
| (F) | except as contemplated by Section 7(a), form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other). |
Section 10. Independent Director.
So long as any Obligation is outstanding, 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 9(j)(iii). No resignation or removal of the
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 the Independent Director by
a written instrument, which may be a counterpart signature page to the Directors’ Agreement, and
(ii) shall have executed a counterpart to this Agreement as required by Section 5(c). In
the event of a vacancy in the position of Independent Director, the Member shall, as soon as
practicable, appoint a successor Independent Director. All right, power and authority of the
Independent 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 10, in exercising his rights and performing his 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 the
Company or any Affiliate of the Company. The initial Independent Director of the Company
designated by the Member is .
Section 11. Officers.
(a) Officers. The initial Officers of the Company shall be designated by the Member.
The additional or successor Officers of the Company shall be chosen by the Board and shall consist
of at least a President, a Secretary and a Treasurer. The Board of Directors may also choose one
or more Vice Presidents, Assistant Secretaries and Assistant Treasurers. Any number of offices may
be held by the same person. The Board may appoint such other Officers and agents as it shall deem
necessary or advisable who shall hold their offices for such terms and shall exercise such powers
and perform such duties as shall be determined from time to time by the Board. The salaries of all
Officers and agents of the Company shall be fixed by or in the manner prescribed by the Board. The
Officers of the Company shall hold office until their successors are chosen and qualified. Any
Officer may be removed at any time, with or without cause, by the affirmative vote of a majority of
the Board. Any vacancy occurring in any office of the Company shall be filled by the Board. The
initial Officers of the Company designated by the Member are listed on Schedule E hereto.
(b) President. The President shall be the chief executive officer of the Company,
shall preside at all meetings of the Board, shall be responsible for the general and active
-9-
management of the business of the Company and shall see that all orders and resolutions of the
Board are carried into effect. The President or any other Officer authorized by the President or
the Board shall execute all bonds, mortgages and other contracts, except: (i) where required or
permitted by law or this Agreement to be otherwise signed and executed, including Section
7(b); (ii) where signing and execution thereof shall be expressly delegated by the Board to
some other Officer or agent of the Company, and (iii) as otherwise permitted in Section
11(c).
(c) Vice President. In the absence of the President or in the event of the
President’s inability to act, the Vice President, if any (or in the event there be more than one
Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of
any designation, then in the order of their election), shall perform the duties of the President,
and when so acting, shall have all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents, if any, shall perform such other duties and have such other powers
as the Board may from time to time prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall be responsible for filing
legal documents and maintaining records for the Company. The Secretary shall attend all meetings
of the Board and record all the proceedings of the meetings of the Company and of the Board in a
book to be kept for that purpose and shall perform like duties for the standing committees when
required. The Secretary shall give, or shall cause to be given, notice of all meetings of the
Member, if any, and special meetings of the Board, and shall perform such other duties as may be
prescribed by the Board or the President, under whose supervision the Secretary shall serve. The
Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order
determined by the Board (or if there be no such determination, then in order of their election),
shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform
the duties and exercise the powers of the Secretary and shall perform such other duties and have
such other powers as the Board may from time to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the
Company funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Company and shall deposit all moneys and other valuable
effects in the name and to the credit of the Company in such depositories as may be designated by
the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board,
taking proper vouchers for such disbursements, and shall render to the President and to the Board,
at its regular meetings or when the Board so requires, an account of all of the Treasurer’s
transactions and of the financial condition of the Company. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there
be no such determination, then in the order of their election), shall, in the absence of the
Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have such other powers as the Board
may from time to time prescribe.
(f) Officers as Agents. The Officers, to the extent of their powers set forth in this
Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement,
are agents of the Company for the purpose of the Company’s business and, subject to Section
9(j), the actions of the Officers taken in accordance with such powers shall bind the Company.
-10-
(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 12. Limited Liability.
Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of
the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and
liabilities solely of the Company, and neither the Member nor the Special Member nor any Director
shall be obligated personally for any such debt, obligation or liability of the Company solely by
reason of being a Member, Special Member or Director of the Company.
Section 13. Capital Contributions.
The Member has contributed to the Company property of an agreed value as listed on
Schedule B attached hereto. In accordance with Section 5(c), the Special Member
shall not be required to make any capital contributions to the Company.
Section 14. Additional Contributions.
The Member is not required to make any additional capital contribution to the Company.
However, the Member may make additional capital contributions to the Company at any time. The
provisions of this Section 14, are intended to benefit the Member and the Special 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 and the Special 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 15. Allocation of Profits and Losses.
The Company’s profits and losses shall be allocated to the Member.
Section 16. Distributions.
Distributions shall be made to the Member at the times and in the aggregate amounts determined
by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the
Company shall not be required to make a distribution to the Member on account of its interest in
the Company if such distribution would violate Section 18-607 of the Act or any other applicable
law or any Basic Document.
Section 17. Books and Records.
The Company, under the direction of 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 under the direction of the Board. The Member and its duly authorized
representatives shall have the right to examine the Company books, records and
-11-
documents during normal business hours. The Company, and the Board on behalf of the Company,
shall not have the right to keep confidential from the Member any information that the Board would
otherwise be permitted to keep confidential from the Member pursuant to Section 18-305(c) of the
Act. The Company’s books of account shall be kept using the method of accounting determined by the
Member. The Company’s independent auditor, if any, shall be an independent public accounting firm
selected by the Member.
Section 18. Reports.
(a) Within 60 days after the end of each fiscal quarter, the Company shall prepare an
unaudited report setting forth as of the end of such fiscal quarter:
| (i) | unless such quarter is the last fiscal quarter, a balance sheet of the Company; and | ||
| (ii) | unless such quarter is the last fiscal quarter, an income statement of the Company for such fiscal quarter. |
(b) The Company shall use diligent efforts to cause to prepare and mail to the Member, within
90 days after the end of each fiscal year, an audited or unaudited report setting forth as of the
end of such fiscal year:
| (i) | a balance sheet of the Company; | ||
| (ii) | an income statement of the Company for such fiscal year; and | ||
| (iii) | a statement of the Member’s capital account. |
(c) The Company 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. Nothing in this
Section 18 shall limit the Company from hiring a person or company to perform its
bookkeeping, accounting or other related services.
Section 19. Other Business.
The Member, the Special Member and any Affiliate of the Member or the Special 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.
Section 20. Exculpation and Indemnification.
(a) To the fullest extent permitted by law, neither the Member nor the Special Member nor any
Officer, Director, employee or agent of the Company nor any employee, representative, agent or
Affiliate of the Member or the Special Member (collectively, the “Covered Persons”) shall
be liable to the Company or any other Person who has an interest in or
-12-
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.
(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 Member 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; 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 Member 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.
(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.
-13-
(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), the Company shall be dissolved, and its affairs shall be
wound up upon the first to occur of the following: (i) the termination of the legal existence of
the last remaining member of the Company or the occurrence of any other event which terminates the
continued membership of the last remaining member of the Company in the Company unless the business
of the Company is continued in a manner permitted by this Agreement or the Act or (ii) the entry of
a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event
that causes the last remaining Member 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)
-14-
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 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
Member waives any right it might have to agree in writing to dissolve the Company upon the
Bankruptcy of the Member or the Special Member, or the occurrence of an event that causes the
Member or the 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 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 Member hereby irrevocably waives any right or power that
such Person might have to cause the Company or any of its assets to be partitioned, to cause the
appointment of a receiver for all or any portion of the assets of the Company, to compel any sale
of all or any portion of the assets of the Company pursuant to any applicable law or to file a
complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation,
winding up or termination of the Company. The Member shall not have any interest in any specific
assets of the Company, and the Member shall not have the status of a creditor with respect to any
distribution pursuant to Section 16 hereof. The interest of the Member in the Company is
personal property.
Section 26. Benefits of Agreement; No Third-Party Rights.
None of the provisions of this Agreement shall be for the benefit of or enforceable by any
creditor of the Company or by any creditor of the Member or the Special Member except for the
provisions of Sections 5(c), 9(j), 10, 20(b), 21,
22, 23, 24(b) and (c), 26 and 31(b) (such
provisions, the “Third-Party Benefit Provisions”). Nothing in this Agreement other than
the Third-Party Benefit Provisions 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 and except for the Third-Party Benefit Provisions).
-15-
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 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 9(j), this Agreement may be modified, altered, supplemented or
amended pursuant to a written agreement executed and delivered by the Member. Notwithstanding
anything to the contrary in this Agreement, so long as any Obligation is outstanding, this
Agreement may not be modified, altered, supplemented or amended unless the Rating Agency Condition
is satisfied except: (i) to cure any ambiguity or (ii) to convert or supplement any provision in a
manner consistent with the intent of this Agreement and the Basic Documents.
Notwithstanding any other provision of this Agreement, Schedule B hereto may be
amended without the prior written consent of any party.
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.
-16-
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 time of
the filing of the Certificate of Formation with the Office of the Delaware Secretary of State on
_____________.
[signature page follows]
-17-
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed
this Limited Liability Company Agreement as of the day of .
| MEMBER:
VOLKSWAGEN AUTO LEASE/LOAN UNDERWRITTEN FUNDING, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| SPECIAL MEMBER:
|
||||
| Name: | ||||
LLC Agreement
S-1
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 which directly or
indirectly controls, is controlled by, or is under common control with, such Person. The term
“control” means the possession, directly or indirectly, 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, and the term “controlled” shall have a meaning correlative to
the foregoing.
“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 the Agreement, the Directors’ Agreement, any Securitization
Agreement and all documents and certificates contemplated thereby or delivered in connection
therewith.
A-1
“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 _____________, as amended or amended and
restated from time to time.
“Company” means [Volkswagen Auto Loan Enhanced, LLC 20[ ]-[ ]], a Delaware limited
liability company.
“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.
“Directors’ Agreement” means the agreement of the Directors in the form attached
hereto as Schedule C. The Directors’ Agreement shall be deemed incorporated into, and a
part of, this Agreement.
“Independent Director” means a natural person who, for the five-year period prior to
his or her appointment as Independent Director has not been, and during the continuation of his or
her service as Independent Director is not: (i) an employee, director, stockholder, partner or
officer of the Company or any of its Affiliates (other than his or her service as an Independent
Director of the Company or any of its Affiliates); (ii) a customer or supplier of the Company or
any of its Affiliates; or (iii) any member of the immediate family of a person described in (i) or
(ii).
“Issuer” has the meaning assigned to such term in Section 7(a)(iv).
“Material Action” means 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, to the fullest extent permitted by law, take action in
furtherance of any such action.
“Member” means Volkswagen Auto Lease/Loan Underwritten Funding, LLC, as the initial
member of the Company, and includes any Person admitted as an additional member of the Company or a
substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity
as a member of the Company; provided, however, the term “Member” shall not include any Special
Member.
A-2
“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 an individual, partnership, joint venture, corporation, national
banking association, trust, limited liability company, other entity, association or unincorporated
organization, and a government or agency or political subdivision thereof.
“Rating Agencies” means, at any time, Standard & Poor’s Ratings Services and Xxxxx’x
Investors Services, Inc., or any successor to any such corporation’s business of rating securities
which is then providing a rating for any rated Securities.
“Rating Agency Condition” means, with respect to any action, (a) with respect to
Standard & Poor’s Ratings Services or any Rating Agency other than Xxxxx’x Investors Services,
Inc., written confirmation by such Rating Agency that the occurrence of such action will not cause
it to downgrade or withdraw its rating assigned to any rated Securities and (b) with respect to
Xxxxx’x Investors Services, Inc., that such Rating Agency shall have been given notice of such
action at least ten days prior to such action and shall not have advised the Company that such
action will cause it to downgrade or withdraw its rating assigned to any rated Securities.
“Receivables Assets” has the meaning assigned to such term in Section 7(a)(i).
“Securities” means any bond, note, certificate or other security secured primarily by
or evidencing beneficial ownership in any Receivables Assets or SUBI Assets.
“Securitization Agreements” has the meaning assigned to such term 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.
“SUBI Assets” has the meaning assigned to such term in Section 7(a)(i).
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
A-3
similar
import refer to this Agreement as a whole and not to any particular Section, paragraph or
subdivision. The Section titles appear as a matter of convenience only and shall not affect
the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule
references not attributed to a particular document shall be references to such parts of this
Agreement.
A-4
SCHEDULE B
Member
| Agreed Value | ||||||
| of Initial | Membership | |||||
| Name | Mailing Address | Capital Contribution | Interest | |||
Volkswagen Auto |
2200 Xxxxxxxxx Xxxxxxx | $ | 100% | |||
Lease/Loan |
Drive | |||||
Underwritten |
Xxxxxxx, XX 00000 | |||||
Funding, LLC |
B-1
SCHEDULE C
Directors’ Agreement
, 200
[Volkswagen Auto Loan Enhanced, LLC 20[ ]-[ ]]
0000 Xxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
0000 Xxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Re: Directors’ Agreement — [Volkswagen Auto Loan Enhanced, LLC 200 - ]
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned Persons, who have been designated
as directors of [Volkswagen Auto Loan Enhanced, LLC 2000 - ], a Delaware limited liability
company (the “Company”), in accordance with the Limited Liability Company Agreement of the
Company, dated as of , 200 , 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 one year and one day after the date on which no Obligation (as
defined in the LLC Agreement) 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.
C-1
3. THIS DIRECTORS’ 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.
Initially capitalized terms used and not otherwise defined herein have the meanings set forth
in the LLC Agreement.
This Directors’ Agreement may be executed in any number of counterparts, each of which shall
be deemed an original of this Directors’ Agreement and all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Directors’ Agreement as of the day and
year first above written.
C-2
SCHEDULE D
DIRECTORS
1.
2.
3.
4.
D-1
SCHEDULE E
| OFFICERS | TITLE | |
| President | ||
| Treasurer | ||
| Vice President / Chief Financial Officer | ||
| Secretary | ||
| Assistant Secretary | ||
| Assistant Treasurer |
E-1
