Exhibit 3.1
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
REGIONS ACCEPTANCE LLC
This Amended and Restated Limited Liability Company Agreement (together
with the schedules attached hereto, this "Agreement") of REGIONS ACCEPTANCE
LLC (the "Company"), is entered into by Regions Bank, an Alabama state banking
corporation, as the sole equity member (the "Member"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as the Independent Directors (as defined on Schedule A
hereto). Capitalized terms used and not otherwise defined herein have the
meanings set forth on Schedule A hereto.
WHEREAS, the Member has heretofore formed the Company pursuant to the
Delaware Limited Liability Company Act, 6 Del. C. ss. 18-101, et seq., as
amended from time to time (the "Act"), by filing the Certificate of Formation
with the office of the Secretary of State of the State of Delaware on October
3, 2002, and entering into a Limited Liability Company Agreement of the
Company, dated as of October 3, 2002 (the "Original Limited Liability Company
Agreement"); and
WHEREAS, the Member desires to continue the Company as a limited
liability company under the Act and to amend and restate the Original Limited
Liability Company Agreement in its entirety.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
Section 1. Name.
The name of the limited liability company heretofore formed and
continued hereby is Regions Acceptance LLC.
Section 2. Principal Business Office.
The principal business office of the Company shall be located at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other location as may
hereafter be determined by the Company Directors.
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, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
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Section 4. Registered Agent.
The name and address of the registered agent of the Company for service
of process on the Company in the State of Delaware are The Corporation Trust
Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 5. Members.
(a) The mailing address of the Member is set forth on Schedule B
attached hereto. The Member was admitted to the Company as a member of the
Company upon its execution of the Original Limited Liability Company
Agreement and shall continue as a member of the Company upon its execution of
a counterpart signature page to this Agreement.
(b) Subject to Section 9(j), the Member may act by written consent.
(c) Upon the occurrence of any event that causes the Member to cease to
be a member of the Company (other than upon the continuation of the Company
without dissolution upon (i) an assignment by the Member of all of its
limited liability company interest in the Company and the admission of the
transferee pursuant to Sections 21 and 23, or (ii) the resignation of the
Member and the admission of an additional member of the Company pursuant to
Sections 22 and 23), each Person acting as an Independent Director pursuant
to Section 10 shall, without any action of any Person and simultaneously with
the Member ceasing to be a member of the Company, automatically be admitted
to the Company as a Special Member and shall continue the Company without
dissolution. No Special Member may resign from the Company or transfer its
rights as Special Member unless (i) a successor Special Member has been
admitted to the Company as Special Member by executing a counterpart to this
Agreement, and (ii) such successor has also accepted its appointment as
Independent Director pursuant to Section 10; provided, however, the Special
Members shall automatically cease to be members of the Company upon the
admission to the Company of a substitute Member appointed by the personal
representative of the Person who was the last remaining Member. Each Special
Member shall be a member of the Company that has no interest in the profits,
losses and capital of the Company and has no right to receive any
distributions of Company assets. Pursuant to Section 18-301 of the Act, a
Special Member shall not be required to make any capital contributions to the
Company and shall not receive a limited liability company interest in the
Company. A Special Member, in its capacity as Special Member, may not bind
the Company. Except as required by any mandatory provision of the Act, each
Special Member, in its capacity as Special Member, shall have no right to
vote on, approve or otherwise consent to any action by, or matter relating
to, the Company, including the merger, consolidation or conversion of the
Company. In order to implement the admission to the Company of each Special
Member, each Person acting as an Independent Director pursuant to Section 10
shall execute a counterpart to this Agreement. Prior to its admission to the
Company as Special Member, each Person acting as an Independent Director
pursuant to Section 10 shall not be a member of the Company.
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Section 6. Certificates.
▇▇▇▇ Deer is hereby designated as an "authorized person" within the
meaning of the Act, and has executed, delivered and filed the Certificate of
Formation of the Company with the Secretary of State of the State of Delaware.
Upon the filing of the Certificate of Formation with the Secretary of State of
the State of Delaware, his powers as an "authorized person" ceased, and the
Member thereupon became the designated "authorized person" and shall continue
as the designated "authorized person" within the meaning of the Act. An
Officer may execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify
to do business in Alabama and in any other jurisdiction in which the Company
may wish to conduct business.
The existence of the Company as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in the Act.
Section 7. Purposes.
The Company is formed for the object and purpose of purchasing and
selling Contracts, acting as depositor for one or more trusts, and causing the
issuance of asset-backed securities by such trusts and engaging in all acts
necessary, incidental or related thereto.
Section 8. Powers.
(a) In furtherance of its purposes the Company shall have the power and
is hereby authorized:
(i) to execute and deliver, and to perform its obligations
under one or more receivables purchase agreements with the
Member (such receivables purchase agreements, as from time
to time amended, supplemented or otherwise modified, the
"Purchase Agreements"), to purchase or otherwise acquire
Contracts from the Member, to execute and deliver and to
perform its obligations under any amendments or
supplements, including any supplemental conveyances
relating to one or more of the Purchase Agreements, to
engage in any activities necessary, appropriate or
convenient in connection with the rights and obligations of
the Company under the Purchase Agreements and the
acquisition of Contracts from the Member, and to execute,
deliver and perform any other agreement, notice or document
in connection with, relating to or contemplated by the
Purchase Agreements or the acquisition of Contracts from
the Member;
(ii) to purchase, acquire, own, hold, sell, dispose of, endorse,
transfer, assign, pledge and finance the Contracts (as
described in each of the Purchase Agreements) including,
without limitation, to grant a security interest in the
Contracts;
(iii) to engage in any activities necessary to hold, receive,
exchange, sell, transfer, otherwise dispose of and otherwise
deal in and exercise all rights, powers, privileges, and all
other incidents of ownership or possession with
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respect to, all of the Company's property, including the
Contracts and any property or interest that may be acquired
by the Company as a result of any distribution in respect of
the Contracts and any property received by the Company as a
contribution from the Member;
(iv) to execute and deliver, and to perform its obligations as
depositor or in any other capacity under one or more trust
agreements (as amended from time to time, the "Trust
Agreements"), to sell or otherwise transfer all or any of
the Contracts to one or more trusts formed by such Trust
Agreements ("Trusts") for the purpose of issuing and selling
from time to time in public or private offerings (including
to any affiliate of the Member) series of consumer loan
backed certificates or debt securities ("Securities")
representing undivided interests in, or debt secured by,
Contracts, to execute and deliver, and to perform its
obligations under, any amendments, supplements or
assignments, reassignments or reconveyances of Contracts and
other assets related to the Trust Agreements, to provide for
the issuance of additional obligations under the Trust
Agreements and other documents related to the issuance of
such obligations, and to engage in any activities necessary,
appropriate or convenient to the operation of the Trusts
formed by such Trust Agreements, and to execute, deliver and
perform any other agreement, notice or document in
connection with, relating to, or contemplated by the Trust
Agreements;
(v) in its name as registrant and as depositor of the Trusts,
to execute and file with the Securities and Exchange
Commission ("Commission") one or more registration
statements on the appropriate form (collectively, the
"Registration Statement") for the registration under the
Securities Act of 1933, as amended ("Securities Act"), of
the Securities to be issued by the Trusts and to execute
and file such amendment or amendments (both pre-effective
and post-effective) and schedules and exhibits to the
Registration Statement as may be deemed necessary or
appropriate and to prepare and file with the Commission
prospectuses and prospectus supplements relating to the
issuance of the Securities and supplements thereto;
(vi) to prepare or cause the preparation of, and execute and
deliver an offering circular relating to the offer and sale
of the Securities; to prepare or cause the preparation of
and execute, deliver, file and perform with any securities
exchange or market a listing application and all other
applications, statements, certificates, agreements, and
other instruments as shall be necessary or desirable to
cause any of the Securities to be listed on such exchange or
market; to prepare, execute and file, such applications,
reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and
documents deemed necessary or desirable to register any of
the Securities under, or obtain for any of the Securities an
exemption from, the securities or "blue sky" laws of any
jurisdiction; and to execute, deliver and perform letters or
documents to,
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or instruments for filing with, a depository relating to any
of the Securities.
(vii) to execute and deliver, and to perform its obligations
under, one or more servicing agreements, sale and servicing
agreements, pooling and servicing agreements, indenture
agreements, underwriting purchase or placement agreements or
similar agreements (collectively, the "Trust Documents"),
pursuant to which Contracts will be sold to the Trusts and
will be serviced and Securities will be issued or sold, to
execute and deliver, and to perform its obligations under,
any amendments, supplements or assignments, reassignments or
reconveyances of receivables and other assets related to any
of the Trust Documents, and to engage in any activities
necessary, appropriate or convenient to, and to execute,
deliver and perform any other agreement, notice or documents
in connection with, relating to or contemplated by, the
Trust Documents;
(viii)to execute and deliver, and to perform its obligations
under one or more cash collateral account agreements, letter
of credit agreements, reimbursement agreements, swap
agreements or other forms of agreement providing credit or
payment enhancement (and any related documents, certificates
and instruments) with respect to the Contracts sold to the
Trusts (collectively, "Credit Enhancement Agreements") with
any bank, insurance company or other person or entity;
(ix) to execute and deliver, and to perform its obligations
under, each document or agreement to which it becomes a
party, and to execute and deliver, and to perform its
obligations under, any amendments or supplements related to
the foregoing, and to engage in any activities necessary,
appropriate or convenient to, and to execute, deliver and
perform any other agreement, notice or document in
connection with, relating to or contemplated by, the
foregoing;
(x) to acquire, hold, enjoy, sell or otherwise transfer and
grant rights in all of the rights and privileges of any
certificate, interest or other indicia of beneficial
ownership or any Securities issued by any Trust or any
other person or entity to the Company pursuant to any
Purchase Agreement, Trust Agreement, Trust Document, Credit
Enhancement Agreement or other document, and to transfer
such certificate, interest or other indicia of beneficial
ownership interest to another person or entity;
(xi) to engage in any activities necessary, appropriate or
convenient to, and to execute, deliver and perform any other
agreement, notice or document in connection with or relating
to, the activities described above, including the filing of
any notices, applications, financing statements and other
documents necessary, advisable or convenient to comply with
any applicable laws, statutes, rules or regulations;
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(xii) to acquire, own, hold, sell, transfer, service, convey,
safekeep, dispose of, pledge, assign, borrow money against,
finance, refinance or otherwise deal with, publicly or
privately issued asset backed securities (whether with
unrelated third parties or with affiliated entities); and
(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, or necessary, convenient or advisable for the
accomplishment of, the above-mentioned purposes (including
the entering into of referral, management, servicing and
administration agreements).
(b) The Company is hereby authorized to execute, deliver and perform,
and the Authorized Officers pursuant to Section 11 are hereby authorized to
execute and deliver, the Purchase Agreements, Trust Agreements, Trust
Documents, Credit Enhancement Agreements, the Basic Documents and all
documents, agreements, certificates, assignments, reassignments, amendments,
supplements or financing statements contemplated thereby or related thereto,
all without any further act, vote or approval of any Member, Director,
Officer or other Person notwithstanding any other provision of this
Agreement. The foregoing authorization shall not be deemed a restriction on
the powers of any Director or Officer to enter into other agreements on
behalf of the Company.
Section 9. Management.
(a) Board of Directors. Subject to Section 9(j), the business and
affairs of the Company shall be managed by or under the direction of one or
more Company Directors designated by the Member. Subject to Section 10, the
Member may determine at any time in its sole and absolute discretion the
number of Directors to constitute the Board. The authorized number of
Directors may be increased or decreased by the Member at any time in its sole
and absolute discretion, upon notice to all Directors, and subject in all
cases to Section 10. The number of Directors on the date hereof shall be
five, two of whom shall be Independent Directors pursuant to Section 10. Each
Director elected by the Member shall hold office until a successor is elected
and qualified or until such Director's earlier death, resignation, expulsion
or removal. Each Director shall execute and deliver the Management Agreement.
Directors need not be a Member. The Directors elected by the Member on the
date hereof are listed on Schedule D hereto.
(b) Powers. Subject to Section 9(j), the Company Directors shall have
the power to do any and all acts necessary, convenient or incidental to or
for the furtherance of the purposes described herein, including all powers,
statutory or otherwise. Subject to Sections 7, 8, and 9 the Company Directors
have the authority to bind the Company.
(c) Meetings of the Board of Directors and the Company Directors. The
Board of Directors and the Company Directors may hold separate meetings, both
regular and special, within or outside the State of Delaware. Regular
meetings of the Board or the Company Directors may be held without notice at
such time and at such place as shall from time to time be determined by the
Board or the Company Directors, as the case may be. Special meetings of
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the Board or the Company Directors may be called by the President on not less
than one day's notice to each relevant Director by telephone, facsimile, mail,
telegram or any other means of communication, and special meetings shall be
called by the President or Secretary in like manner and with like notice upon
the written request of any one or more of the Directors.
(d) Quorum: Acts of the Board and the Company Directors. At all meetings
of the Board, a majority of the Directors shall constitute a quorum for the
transaction of business and, except as otherwise provided in any other
provision of this Agreement, the act of a majority of the Directors present
at any meeting at which there is a quorum shall be the act of the Board. At
all meetings of the Company Directors, a majority of the Company Directors
shall constitute a quorum for the transaction of business and, except as
otherwise provided in any other provision of this Agreement, the act of a
majority of the Company Directors present at any meeting at which there is a
quorum shall be the act of the Company Directors. If a quorum shall not be
present at any meeting of the Board or the Company Directors, the Directors
present at such meeting may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be
present. Any action required or permitted to be taken at any meeting of the
Board or of any committee thereof, or the Company Directors, may be taken
without a meeting if all members of the Board or committee, or all Company
Directors, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee,
or the Company Directors, as the case may be.
(e) Electronic Communications. Members of the Board, or any committee
designated by the Board, or the Company Directors may participate in meetings
of the Board, or any committee, or the Company Directors, by means of
telephone conference or similar communications equipment that allows all
Persons participating in the meeting to hear each other, and such
participation in a meeting shall constitute presence in person at the
meeting. If all the participants are participating by telephone conference or
similar communications equipment, the meeting shall be deemed to be held at
the principal place of business of the Company.
(f) Committees of Directors.
(i) The Board may, by resolution passed by a majority of the
Board, designate one or more committees, each committee to
consist of one or more of the Directors. The Board may
designate one or more Directors as alternate members of any
committee, who may replace any absent or disqualified member
at any meeting of the committee.
(ii) In the absence or disqualification of a member of a
committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not
such members constitute a quorum, may unanimously appoint
another member of the Board to act at the meeting in the
place of any such absent or disqualified member.
(iii) Any such committee, to the extent provided in the resolution
of the Board, and subject to, in all cases, Sections 9(j)
and 10, shall have and may exercise all the powers and
authority of the Board in the management of
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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 Company Directors shall
have the authority to fix the compensation of Directors. The Directors may be
paid their expenses, if any, of attendance at meetings of the Board or the
Company Directors, which may be a fixed sum for attendance at each meeting of
the Board or the Company Directors, or a stated salary as Director. No such
payment shall preclude any Director from serving the Company in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
(h) Removal of Directors. Unless otherwise restricted by law, any
Director or the entire Board of Directors may be removed or expelled, with or
without cause, at any time by the Member, and, subject to Section 10, any
vacancy caused by any such removal or expulsion may be filled by action of
the Member.
(i) Directors as Agents. To the extent of their powers set forth in this
Agreement and subject to Section 9(j), the Company Directors are agents of
the Company for the purpose of the Company's business, and the actions of the
Company Directors taken in accordance with such powers set forth in this
Agreement shall bind the Company. Notwithstanding the last sentence of
Section 18-402 of the Act, except as provided in this Agreement or in a
resolution of the Board or Company 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 Trust Obligation is
outstanding, amend, alter, change or repeal the definition
of "Independent Director" or Sections 5(c), 7, 8, 9, 10, 16,
20, 21, 22, 23, 24, 25, 26, 29 or 31 or Schedule A of this
Agreement without the unanimous written consent of the Board
(including all Independent Directors). Subject to this
Section 9(j), the Member reserves the right to amend, alter,
change or repeal any provisions contained in this Agreement
in accordance with Section 31.
(iii) Notwithstanding any other provision of this Agreement and
any provision of law that otherwise so empowers the Company,
the Member, the Board, any Officer or any other Person,
neither the Member nor the Board nor any Officer nor any
other Person shall be authorized or empowered, nor shall
they permit the Company, so long as any Trust Obligation is
outstanding, without the prior unanimous written consent of
the Member and all members of the Board (including all
Independent Directors), to take any Material Action,
provided, however, that, so long as any Trust
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Obligation is outstanding, the Board may not vote on, or
authorize the taking of, any Material Action, unless there
are at least two Independent Directors then serving in such
capacity.
(iv) The Company Directors and the Member shall cause the Company
to do or cause to be done all things necessary to preserve
and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such
right or franchise if: (1) the Company Directors shall
determine that the preservation thereof is no longer
desirable for the conduct of its business and that the loss
thereof is not disadvantageous in any material respect to
the Company and (2) the Rating Agency Condition is
satisfied. The Company Directors also shall cause the
Company to:
(A) maintain its own separate office, books and records
and bank accounts;
(B) at all times hold itself out to the public and all
other Persons as a legal entity separate from the
Member and any other Person;
(C) have a Board of Directors separate from that of the
Member and any other Person;
(D) file its own tax returns, if any, as may be required
under applicable law, to the extent (1) not part of a
consolidated group filing a consolidated return or
returns or (2) not treated as a division for tax
purposes of another taxpayer, and pay any taxes so
required to be paid under applicable law;
(E) except as contemplated by the Basic Documents, not
commingle its assets with assets of any other Person;
(F) conduct its business in its own name and strictly
comply with all organizational formalities to maintain
its separate existence;
(G) maintain separate financial statements and prepare and
maintain its financial records in accordance with
generally accepted accounting principles;
(H) pay its own liabilities only out of its own funds;
(I) maintain an arm's length relationship with its
Affiliates and the Member;
(J) pay the salaries of its own employees, if any;
(K) not hold out its credit or assets as being available
to satisfy the obligations of others;
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(L) allocate fairly and reasonably any overhead for shared
office space;
(M) use separate stationery, invoices and checks;
(N) except as contemplated by the Basic Documents, not
pledge its assets for the benefit of any other Person;
(O) correct any known misunderstanding regarding its
separate identity;
(P) maintain adequate capital in light of its contemplated
business purpose, transactions and
liabilities;
(Q) cause its Board of Directors to meet at least annually
or act pursuant to written consent and keep minutes of
such meetings and actions and observe all other
Delaware limited liability company formalities;
(R) not acquire any securities of the Member; and
(S) cause the Directors, Officers, agents and other
representatives of the Company to act at all times
with respect to the Company consistently and in
furtherance of the foregoing and in the best interests
of the Company.
Failure of the Company, or the Member or Company Directors
on behalf of the Company, to comply with any of the foregoing
covenants or any other covenants contained in this Agreement shall
not affect the status of the Company as a separate legal entity or
the limited liability of the Member or the Directors.
(v) So long as any Trust Obligation is outstanding, the Company
Directors shall not cause or permit the Company to:
(A) except as contemplated by the Basic Documents,
guarantee any obligation of any Person, including any
Affiliate;
(B) engage, directly or indirectly, in any business other
than the actions required or permitted to be performed
under Section 7, Section 8, the Basic Documents or
this Section 9(j);
(C) incur, create or assume any indebtedness other than as
expressly permitted under the Basic Documents;
(D) make or permit to remain outstanding any loan or
advance to, or own or acquire any stock or securities
of, any Person, except that the Company may invest in
those investments permitted under the Basic Documents
and may make any advance required or
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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 or permitted by the Basic
Documents, form, acquire or hold any subsidiary
(whether corporate, partnership, limited liability
company or other).
Section 10. Independent Directors.
As long as any Trust Obligation is outstanding, the Member shall cause
the Company at all times to have at least two Independent Directors who will
be appointed by the Member. To the fullest extent permitted by law, including
Section 18-1101(c) of the Act, the Independent Directors shall consider only
the interests of the Company, including its respective creditors, in acting or
otherwise voting on the matters referred to in Section 9(j)(iii). No
resignation or removal of an Independent Director, and no appointment of a
successor Independent Director, shall be effective until such successor (i)
shall have accepted his or her appointment as an Independent Director by a
written instrument, which may be a counterpart signature page to the
Management Agreement, and (ii) shall have executed a counterpart to this
Agreement as required by Section 5(c). In the event of a vacancy in the
position of Independent Director, the Member shall, as soon as practicable,
appoint a successor Independent Director. All right, power and authority of
the Independent Directors shall be limited to the extent necessary to exercise
those rights and perform those duties specifically set forth in this
Agreement. Except as provided in the second sentence of this Section 10, in
exercising their rights and performing their duties under this Agreement, any
Independent Director shall have a fiduciary duty of loyalty and care similar
to that of a director of a business corporation organized under the General
Corporation Law of the State of Delaware. No Independent Director shall at any
time serve as trustee in bankruptcy for any Affiliate of the Company.
Section 11. Officers.
(a) Officers. Subject to the immediately following sentence, the
Officers shall be designated by the Company Directors and shall consist of at
least a President, a Secretary and a Treasurer. The initial Officers are set
forth on Schedule E hereto. The Company Directors may also choose, without
limitation, one or more Vice Presidents, Assistant Secretaries and Assistant
Treasurers. Any additional or successor Officers shall be chosen by the
Company Directors. Any number of offices may be held by the same person. The
Company Directors may appoint such other Officers and agents as they shall
deem necessary or advisable who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined
from time to time by the Company Directors. The salaries of all Officers and
agents of the Company shall be fixed by or in the manner prescribed by the
Company Directors. The Officers shall hold office until their successors are
chosen and qualified. Any Officer may be
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removed at any time, with or without cause, by the affirmative vote of a
majority of the Company Directors. Any vacancy occurring in any office of the
Company shall be filled by the Company Directors.
(b) President. The President shall be the chief executive officer of the
Company, shall preside at all meetings of the Board and the Company
Directors, shall be responsible for the general and active management of the
business of the Company and shall see that all orders and resolutions of the
Board and the Company Directors are carried into effect. The President or any
other Officer authorized by the President or the Company Directors shall
execute all contracts or agreements of the Company, except: (i) where
required or permitted by law or this Agreement to be otherwise signed and
executed, including Section 8(b); (ii) where signing and execution thereof
shall be expressly delegated by the Board to some other Officer or agent of
the Company, and (iii) as otherwise permitted in Section 11(c).
(c) Vice President. In the absence of the President or in the event of
the President's inability to act, the Vice President, if any (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated by the Company Directors, or in the absence of any designation,
then in the order of their election), shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the President. The Vice Presidents, if any, shall
perform such other duties and have such other powers as the Company Directors
may from time to time prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall be
responsible for filing legal documents and maintaining records for the
Company. The Secretary shall attend all meetings of the Board and the Company
Directors, and record all the proceedings of the meetings of the Company, of
the Board and of the Company Directors in a book to be kept for that purpose
and shall perform like duties for the standing committees when required. The
Secretary shall give, or shall cause to be given, notice of all meetings of
the Member, if any, and meetings of the Board and the Company Directors, and
shall perform such other duties as may be prescribed by the Board, the
Company Directors or the President, under whose supervision the Secretary
shall serve. The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Company Directors (or if
there be no such determination, then in order of their election), shall, in
the absence of the Secretary or in the event of the Secretary's inability to
act, perform the duties and exercise the powers of the Secretary and shall
perform such other duties and have such other powers as the Company Directors
may from time to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall have the
custody of the Company funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the
Company Directors. The Treasurer shall disburse the funds of the Company as
may be ordered by the Company Directors, taking proper vouchers for such
disbursements, and shall render to the President and to the Company
Directors, at its regular meetings or when the Company Directors so require,
an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Company
Directors (or if there be no
12
such determination, then in the order of their election), shall, in the
absence of the Treasurer or in the event of the Treasurer's inability to act,
perform the duties and exercise the powers of the Treasurer and shall perform
such other duties and have such other powers as the Company Directors may from
time to time prescribe.
(f) Officers as Agents. The Officers, to the extent of their powers set
forth in this Agreement or otherwise vested in them by action of the Company
Directors not inconsistent with this Agreement, are agents of the Company for
the purpose of the Company's business and, subject to Section 9(j), the
actions of the Officers taken in accordance with such powers shall bind the
Company.
(g) Duties of Board and Officers. Except to the extent otherwise
provided herein, each Director and Officer shall have fiduciary duties
identical to those of directors and officers of business corporations
organized under the General Corporation Law of the State of Delaware.
(h) Specific Officer Authorizations. To accomplish the Company's
purposes, but notwithstanding any other provision of this Agreement, the
Officers without the vote, act or approval of any other Person, except as
otherwise specified below, are authorized as follows:
(i) The Treasurer, with the written approval of the Company
Directors, is authorized to form or cause to be formed,
from time to time, one or more Trusts for the purpose of
issuing and selling the Securities, and determine the terms
of the Securities, including, without limitation, the
relative principal amounts, underwriting discounts,
placement fees, the stated rate or rates of interest, the
maturity dates and the offering prices to the public or
private purchasers;
(ii) The President and Chief Executive Officer, the Treasurer,
each Assistant Treasurer, each Vice President, each
Secretary or Assistant Secretary of the Company, be, and
each of them hereby is, designated as an "Authorized
Officer" for all purposes and authorizations set forth in
this Agreement. The Authorized Officers are, and each of
them acting singly is, authorized on behalf of the company
or on behalf of the Company as depositor of the Trusts,
without any further act, vote or approval of any Person:
(A) to prepare, execute and file with the Commission
under the Securities Act of 1933 one or more
Registration Statements, such amendment or amendments
(both pre-effective and post-effective) and schedules
and exhibits thereto and such prospectuses and
prospectus supplements relating to the issuance of
the Securities and such supplements thereto, all as
they may deem necessary or appropriate;
(B) to negotiate, execute and deliver Purchase
Agreements, Trust Agreements, Trust Documents, Basic
Documents, Credit
13
Enhancement Agreements or other agreements or
arrangements with such underwriters or other Persons
as shall be specified in the Registration Statement or
other offering material or circular, providing for the
sale of the Securities and containing such
representations, conditions, covenants and agreements
as the Authorized Officer executing the same shall
approve, the execution thereof by such Authorized
Officer to be conclusive evidence of such approval;
and that the Authorized Officers are, and each of them
is, acting singly, authorized and empowered to execute
and deliver or cause to be executed and delivered any
and all certificates, documents and instruments as any
Authorized Officer may approve as necessary or
desirable in order to enable the Company or the
Company on behalf of the Trusts fully and properly to
perform its obligations under any such agreements or
arrangements, the execution of any such certificate,
document or instrument to be conclusive evidence of
such approval;
(C) to enter into, on behalf of the Company, one or more
Credit Enhancement Agreements with such bank,
insurance company or other financial institution as
shall be selected by the Authorized Officers, with
such terms and conditions as may be approved by the
Authorized Officer executing the same, the execution
and delivery of which shall evidence conclusively the
Company's approval of the terms and conditions
thereof;
(D) to cause to be prepared, executed and filed all
listing applications, indemnity agreements and other
documents for the listing of the Securities on any
securities exchange and the registration of the
Securities under the Securities Exchange Act of 1934,
as amended ("Exchange Act"), to cause to be prepared,
executed and filed all applications, reports, surety
bonds, irrevocable consents and appointments of
attorneys for service of process, documents and
instruments as may be deemed necessary or appropriate
in order to register or qualify the Securities for
issuance and sale or to exempt the issuance and sale
under the securities laws of the various
jurisdictions in which the Securities are to be sold
and to cause to be prepared, executed, acknowledged,
verified, filed, delivered or acknowledged such
applications, reports, undertakings, resolutions, and
other papers and instruments, and requests for
rulings from appropriate federal and state banking,
tax, securities and other agencies having
jurisdiction as may be necessary or appropriate to
provide for the issuance of the Securities and to
accomplish the purpose and intent of this Agreement;
(E) to execute and deliver on behalf of the Company and
in its name and on behalf of each director of the
Company a power of attorney, appointing ▇▇▇ ▇▇▇▇,
President and Chief Executive Officer, ▇▇▇▇
14
▇▇▇▇▇, Vice President and Treasurer and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Vice President and Secretary, or any one of
them, to act as attorneys-in-fact for the purpose of
executing and filing with the Commission the
Registration Statement and any and all amendments
(both pre-effective and post-effective) or supplements
thereto with any schedules and exhibits and other
documents, and to act as agents for service of process
by the Commission to be named as such in the
Registration Statement with all the powers incident to
such appointments;
(F) to prepare or cause the preparation of, and execute
and deliver an offering circular relating to the
offer and sale of the Securities; to prepare or cause
the preparation of and execute, deliver, file and
perform with any securities exchange or market a
listing application and all other applications,
statements, certificates, agreements, and other
instruments as shall be necessary or desirable to
cause any of the Securities to be listed on such
exchange or market; to prepare, execute and file such
applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of
process and other papers and documents deemed
necessary or desirable to register any of the
Securities under, or obtain for any of the Securities
an exemption from, the securities or "blue sky" laws
of any jurisdiction; and to execute, deliver and
perform letters or documents to, or instruments for
filing with, a depository relating to any of the
Securities;
(G) from time to time to do, or cause to be done, all such
other acts and things and to execute and deliver or
cause to be executed and delivered all such
instruments, agreements, certificates and documents,
as any such officer shall deem necessary, desirable,
or appropriate to carry out the purpose and intent of
this Agreement; and
(iii) All actions taken and expenses incurred by any Officers
prior to the effective date of this Agreement in furtherance
of any of the purposes stated or actions authorized in this
Agreement are ratified, confirmed, adopted and approved.
Section 12. Limited Liability.
Except as otherwise expressly provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort
or otherwise, shall be the debts, obligations and liabilities solely of the
Company, and neither the Member nor the Special Members nor any Director shall
be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a Member, Special Member or Director of the
Company.
Section 13. Capital Contributions.
15
The Member has contributed to the Company property of an agreed value as
listed on Schedule B attached hereto. In accordance with Section 5(c), the
Special Members shall not be required to make any capital contributions to the
Company.
Section 14. Additional Contributions.
The Member is not required to make any additional capital contribution
to the Company. However, the Member may make additional capital contributions
to the Company at any time upon the written consent of such Member. To the
extent that the Member makes an additional capital contribution to the
Company, the Member shall revise Schedule B of this Agreement. The provisions
of this Agreement, including this Section 14, are intended to benefit the
Member and the Special Members and, to the fullest extent permitted by law,
shall not be construed as conferring any benefit upon any creditor of the
Company (other than a Covered Person)(and no such creditor of the Company
shall be a third-party beneficiary of this Agreement) and the Member and the
Special Members shall not have any duty or obligation to any creditor of the
Company to make any contribution to the Company or to issue any call for
capital pursuant to this Agreement.
Section 15. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the Member.
Section 16. Distributions.
Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Company Directors. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not
be required to make a distribution to the Member on account of its interest in
the Company if such distribution would violate Section 18-607 of the Act or
any other applicable law or any Basic Document.
Section 17. Books and Records.
The Company Directors shall keep or cause to be kept complete and
accurate books of account and records with respect to the Company's business.
The books of the Company shall at all times be maintained by the Company
Directors. The Member and its duly authorized representatives shall have the
right to examine the Company books, records and documents during normal
business hours. The Company, and the Company Directors on behalf of the
Company, shall not have the right to keep confidential from the Member any
information that the Company Directors would otherwise be permitted to keep
confidential from the Member pursuant to Section 18-305(c) of the Act. The
Company's books of account shall be kept using the method of accounting
determined by the Company Directors. The Company's independent auditor, if
any, shall be an independent public accounting firm selected by the Company
Directors.
Section 18. Reports.
(a) Within 60 days after the end of each fiscal quarter, the Company
Directors shall cause to be prepared an unaudited report setting forth as of
the end of such fiscal quarter:
16
(i) unless such quarter is the last fiscal quarter, a balance
sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter, an income
statement of the Company for such fiscal quarter.
(b) The Company Directors shall use diligent efforts to cause to be
prepared and mailed to the Member, within 90 days after the end of each
fiscal year, an audited or unaudited report setting forth as of the end of
such fiscal year:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such fiscal year; and
(iii) a statement of the Member's capital account.
(c) The Company Directors shall, after the end of each fiscal year, use
reasonable efforts to cause the Company's independent accountants, if any, to
prepare and transmit to the Member as promptly as possible any such tax
information as may be reasonably necessary to enable the Member to prepare
its federal, state and local income tax returns relating to such fiscal year.
Section 19. Other Business.
Notwithstanding any other duty existing at law or in equity, the Member,
the Special Members and any Officer, Director, employee or agent of the
Company and any Affiliate of the Member or the Special Members may engage in
or possess an interest in other business ventures (unconnected with the
Company) of every kind and description, independently or with others, and 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 applicable law, neither the
Member nor the Special Members nor any Officer, Director, employee or agent
of the Company nor any employee, representative, agent or Affiliate of the
Member or the Special Members (collectively, the "Covered Persons") shall be
liable to the Company or any other Person who is bound by this Agreement for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Covered Person in good faith on behalf of 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
17
scope of the authority conferred on such Covered Person by this Agreement,
except that no Covered Person shall be entitled to be indemnified in respect
of any loss, damage or claim incurred by such Covered Person by reason of such
Covered Person's gross negligence or willful misconduct with respect to such
acts or omissions; provided, however, that any indemnity under this Section 20
by the Company shall be provided out of and to the extent of Company assets
only, and the Member and the Special Members shall not have personal liability
on account thereof; and provided further, that so long as any Trust Obligation
is outstanding, no indemnity payment from funds of the Company (as distinct
from funds from other sources, such as insurance) of any indemnity under this
Section 20 shall be payable from amounts allocable to any other Person
pursuant to the Basic Documents.
(c) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by
the Company prior to the final disposition of such claim, demand, action,
suit or proceeding upon receipt by the Company of an undertaking by or on
behalf of the Covered Person to repay such amount if it shall be determined
that the Covered Person is not entitled to be indemnified as authorized in
this Section 20.
(d) A Covered Person shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions, reports
or statements presented to the Company by any Person as to matters the
Covered Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Company, including information, opinions, reports
or statements as to the value and amount of the assets and liabilities of the
Company, or any other facts pertinent to the existence and amount of assets
from which distributions to the Member might properly be paid.
(e) To the extent that, at law or in equity, a Covered Person has duties
(including fiduciary duties) and liabilities relating thereto to the Company
or to any other Covered Person that is a party to or is otherwise bound by
this Agreement, a Covered Person acting under this Agreement shall not be
liable to the Company or to any such other Covered Person for its good faith
reliance on the provisions of this Agreement or any such approval or
authorization granted by the Company or any other Covered Person. The
provisions of this Agreement, to the extent that they restrict the duties and
liabilities of a Covered Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of
such Covered Person.
(f) So long as any Trust Obligation is outstanding, no expense of the
Company shall be payable from amounts allocable to any other Person pursuant
to the Basic Documents.
(g) The foregoing provisions of this Section 20 shall survive any
termination of this Agreement.
Section 21. Assignments.
Subject to Section 23, the Member may assign in whole or in part its
limited liability company interest in the Company with notification to each
Rating Agency. If the Member
18
transfers 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. If the Member transfers all
of its limited liability company interest in the Company pursuant to this
Section 21, 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 Trust Obligation is outstanding, the Member may not
resign, except if the Rating Agency Condition is satisfied. If the Member is
permitted to resign pursuant to this Section 22, an additional member of the
Company shall be admitted to the Company, subject to Section 23, upon its
execution of an instrument signifying its agreement to be bound by the terms
and conditions of this Agreement, which instrument may be a counterpart
signature page to this Agreement. Such admission shall be deemed effective
immediately prior to the resignation and, immediately following such
admission, the resigning Member shall cease to be a member of the Company.
Section 23. Admission of Additional Members.
One or more additional members of the Company may be admitted to the
Company with the written consent of the Member; provided, however, that,
notwithstanding the foregoing, so long as any Trust Obligation remains
outstanding, no additional Member may be admitted to the Company unless the
Rating Agency Condition is satisfied.
Section 24. Dissolution.
(a) The Company shall be dissolved, and its affairs shall be wound up
upon the first to occur of the following: (i) the termination of the legal
existence of the last remaining member of the Company or the occurrence of
any other event which terminates the continued membership of the last
remaining member of the Company in the Company unless the Company is
continued without dissolution 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 or that causes the Member to cease to be a
member of the Company (other than upon continuation of the Company without
dissolution upon (i) 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), 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
19
personal representative or its nominee or designee, as the case may be, as a
substitute member of the Company, effective as of the occurrence of the event
that terminated the continued membership of such member 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 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 shall have been distributed to the Member in the
manner provided for in this Agreement and (ii) the Certificate of Formation
shall have been canceled in the manner required by the Act.
Section 25. Waiver of Partition; Nature of Interest.
Except as otherwise expressly provided in this Agreement, to the fullest
extent permitted by law, each of the Member and the Special Members hereby
irrevocably waives any right or power that such Person might have to cause the
Company or any of its assets to be partitioned, to cause the appointment of a
receiver for all or any portion of the assets of the Company, to compel any
sale of all or any portion of the assets of the Company pursuant to any
applicable law or to file a complaint or to institute any proceeding at law or
in equity to cause the dissolution, liquidation, winding up or termination of
the Company. The Member shall not have any interest in any specific assets of
the Company, and the Member shall not have the status of a creditor with
respect to any distribution pursuant to Section 16 hereof. The interest of the
Member in the Company is personal property.
Section 26. Benefits of Agreement; No Third-Party Rights.
None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditor of the Company or by any creditor of the Member or
a Special Member. Nothing in this Agreement shall be deemed to create any
right in any Person (other than Covered Persons) not a party hereto, and this
Agreement shall not be construed in any respect to be a contract in whole or
in part for the benefit of any third Person (other than Covered Persons and
except as provided in Section 29).
Section 27. Severability of Provisions.
20
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 exPecuted and delivered
by the Member. Notwithstanding anything to the contrary in this Agreement, so
long as any Trust Obligation is outstanding, this Agreement may not be
modified, altered, supplemented or amended unless the Rating Agency Condition
is satisfied, except: (i) to cure any ambiguity or (ii) to convert or
supplement any provision in a manner consistent with the intent of this
Agreement and the other Trust 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.
21
[SIGNATURE PAGES FOLLOW]
22
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have duly executed this Amended and Restated Limited Liability Company
Agreement as of the 15th day of November, 2002.
MEMBER:
REGIONS BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
INDEPENDENT DIRECTORS:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
23
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.
"Administration Agreement" means the Administration Agreement, dated as
of November 15, 2002, by and among the Administrator, Wachovia Bank of
Delaware, National Association, acting not in its individual capacity but
solely as Owner Trustee of the Trust, as issuer and the Indenture Trustee.
"Administrator" means the Bank, in its capacity as administrator under
the Administration Agreement, or any successor Administrator thereunder.
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly Controlling or Controlled by or under direct or indirect common
Control with such Person.
"Agreement" means this Amended and Restated Limited Liability Company
Agreement of the Company, together with the schedules attached hereto, as
amended, restated or supplemented or otherwise modified from time to time.
"Authorized Officer" has the meaning assigned in Section 11(h).
"Bank" means Regions Bank, an Alabama state banking corporation,
together with any successor in interest by merger or otherwise.
"Bankruptcy" means, with respect to any Person, if such Person (i) makes
an assignment for the benefit of creditors, (ii) files a voluntary petition in
bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against
it an order for relief, in any bankruptcy or insolvency proceedings, (iv)
files a petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute,
law or regulation, (v) files an answer or other pleading admitting or failing
to contest the material allegations of a petition filed against it in any
proceeding of this nature, (vi) seeks, consents to or acquiesces in the
appointment of a trustee, conservator, 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.
A-1
"Basic Documents" means (i) this Agreement, (ii) the Management
Agreement, (iii) the Trust Agreements (iv) the Sale and Servicing Agreement
(v) the Receivables Purchase Agreement; (vi) the Indenture (including any
authentication orders) (vii) the Administration Agreement (viii) the Note
Depository Agreement (ix) the Securities Account Control Agreement, (ix) the
Underwriting Agreement and (x) all documents and certificates contemplated
thereby or delivered in connection therewith, and all amendments thereto.
"Board" or "Board of Directors" means the Board of Directors of the
Company.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on October
3, 2002, as amended or amended and restated from time to time.
"Commission" has the meaning assigned in Section 8(a).
"Company" means Regions Acceptance LLC, a Delaware limited liability
company.
"Company Director" means a Person other than an Independent Director
elected to the Board of Directors from time to time by the Member.
"Contracts" means motor vehicle installment loan contracts or other
consumer loan receivables and all proceeds and payments thereunder, including
but not limited to in the case of motor vehicle installment loan contracts,
(i) the security interests in the Financed Vehicles granted by Obligors
pursuant to the motor vehicle installment loan contracts and any other
interest of the Member therein; (ii) rights to receive proceeds with respect
to the motor vehicle installment loan contracts from claims on any theft,
physical damage, credit life, credit disability, or other insurance policies
covering the Financed Vehicles or Obligors; (iii) all property (including the
right to receive Liquidation Proceeds) securing a motor vehicle installment
loan contract; (iv) rebates of premiums and other amounts relating to
insurance policies and other items financed under the motor vehicle
installment loan contracts; and (v) all present and future claims, demands,
causes of action and choses in action in respect of any or all of the
foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion thereof, voluntary or involuntary, into cash or
other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and
other forms of obligations and receivables, instruments and other property
which at any time constitute all or part of or are included in the proceeds of
any of the foregoing.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities or general partnership or
managing member interests, by contract or otherwise. "Controlling" and
"Controlled" shall have correlative meanings. Without limiting the generality
of the foregoing, a Person shall be deemed to Control any 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).
A-2
"Credit Agreement" means the Revolving Credit Agreement entered into by
the Bank and the Company, as from time to time amended, supplemented or
otherwise modified.
"Credit Enhancement Agreements" has the meaning assigned in Section
8(a).
"Depositor" means the Company in its capacity as Depositor under the
Trust Agreements.
"Directors" means the Persons elected or appointed to the Board of
Directors from time to time by the Member, including the Independent
Directors, in their capacity as managers of the Company. A Director is hereby
designated as a "manager" of the Company within the meaning of Section
18-101(10) of the Act.
"Exchange" has the meaning assigned in Section 8(a).
"Exchange Act" has the meaning assigned in Section 11(h).
"Financed Vehicle" means a new or used automobile or light-duty truck,
together with all accessions thereto, securing an Obligor's indebtedness under
the respective motor vehicle installment loan contract.
"Indenture" means the Indenture, dated as of November 15 2002, by and
between the Wachovia Bank of Delaware, National Association, acting not in its
individual capacity but solely as Owner Trustee of the Trust and the Indenture
Trustee.
"Indenture Trustee" means The Bank of New York, a New York banking
corporation, not in its individual capacity but solely as Indenture Trustee
under the Indenture, or any successor Indenture Trustee under the Indenture.
"Independent Director" means a natural person who, for the five-year
period prior to his or her appointment as Independent Director has not been,
and during the continuation of his or her service as Independent Director is
not: (i) an employee, director, stockholder, partner or officer of the Company
or any of its Affiliates (other than his or her service as an independent
director of the Company or any of its Affiliates); (ii) a customer or supplier
of the Company or any of its Affiliates; or (iii) any member of the immediate
family of a person described in (i) or (ii).
"Liquidation Proceeds" means with respect to any motor vehicle
installment loan contract (a) insurance proceeds and (b) monies collected
pursuant to any sale and servicing agreement from whatever source, including
but not limited to proceeds of Financed Vehicles after repossession, net of
any payments required by law to be remitted to the Obligor.
"Management Agreement" means the agreement of the Directors in the form
attached hereto as Schedule C. The Management Agreement shall be deemed
incorporated into, and a part of, this Agreement.
"Material Action" means to change the business purposes of the company,
to consolidate or merge the Company with or into any Person, or sell all or
substantially all of the assets of the
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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.
"Member" means Regions Bank, as the initial member of the Company, and
includes any Person admitted as an additional member of the Company or a
substitute member of the Company pursuant to the provisions of this Agreement,
each in its capacity as a member of the Company; provided, however, the term
"Member" shall not include the Special Members.
"Note Depository Agreement" means the Note Depository Agreement, dated
as of December 3, 2002, by and among the Issuer and The Depository Trust
Company.
"Original Limited Liability Company Agreement" has the meaning set forth
in the recitals to this Agreement.
"Obligor" on a motor vehicle installment loan contract shall mean the
purchaser or co-purchasers of the Financed Vehicle or any other Person who
owes payments under the motor vehicle installment loan contract.
"Officer" means an officer of the Company described in Section 11(h).
"Owner Trustee" means Wachovia Bank of Delaware, National Association,
acting not in its individual capacity but solely as owner trustee under the
Trust Agreements.
"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.
"Purchase Agreements" has the meaning set forth in Section 8(a).
"Rating Agency" has the meaning assigned to that term in the Trust
Agreements.
"Rating Agency Condition" has the meaning assigned to that term in the
Trust Agreements.
"Receivables Purchase Agreement" means the Receivables Purchase
Agreement, dated as of November 15, 2002, by and between the Bank, as seller
and the Depositor.
"Registration Statement" has the meaning assigned in Section 8(a).
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of November 15, 2002, by and between the Wachovia Bank of Delaware,
National Association,
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acting not in its individual capacity but solely as Owner Trustee of the
Trust, as issuer, the Depositor, as seller, the Bank, as seller-servicer,
administrator and custodian, and the Indenture Trustee.
"Securities" has the meaning assigned in Section 8(a).
"Securities Account Control Agreement" means the Securities Account
Control Agreement dated as of November 15, 2002 among the Trust, the Indenture
Trustee and the Securities Intermediary.
"Securities Act" has the meaning assigned in Section 8(a).
"Securities Intermediary" has the meaning assigned in the Securities
Account Control Agreement.
"Seller" has the meaning assigned thereto in the Sale and Servicing
Agreements.
"Special Member" means, upon such person's admission to the Company as a
member of the Company pursuant to Section 5(c), a person acting as Independent
Director, in such person's capacity as a member of the Company. A Special
Member shall only have the rights and duties expressly set forth in this
Agreement.
"Trusts" has the meaning assigned in Section 8(a).
"Trust Agreements" has the meaning assigned in Section 8(a).
"Trust Documents" has the meaning assigned in Section 8(a).
"Trust Obligation" shall mean the indebtedness, liabilities and
obligations of the Company under or in connection with the Trust Documents or
any related document in effect as of any date of determination.
"Underwriting Agreement" means the Underwriting Agreement dated November
21, 2002 among the Seller, the Depositor and the Underwriters set forth on the
signature pages thereto.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and
plural forms of the defined terms. The words "include" and "including" shall
be deemed to be followed by the phrase "without limitation." The terms
"herein," "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Section, paragraph or
subdivision. The Section titles appear as a matter of convenience only and
shall not affect the interpretation of this Agreement. All Section, paragraph,
clause, Exhibit or Schedule references not attributed to a particular document
shall be references to such parts of this Agreement.
A-5
SCHEDULE B
Member
------
--------------------------------------------------------------------------------
Agreed Membership
Name Mailing Address Value of Interest
Capital
Contribution
--------------------------------------------------------------------------------
Regions Bank ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 100%
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ $100.00
--------------------------------------------------------------------------------
B-1
SCHEDULE C
Management Agreement
--------------------
November 15, 2002
REGIONS ACCEPTANCE LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Management Agreement - REGIONS ACCEPTANCE LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned Persons,
who have been designated as directors of REGIONS ACCEPTANCE LLC, a Delaware
limited liability company (the "Company"), in accordance with the Amended and
Restated Limited Liability Company Agreement of the Company, dated as of
November 15, 2002, as it may be amended or restated from time to time (the
"LLC Agreement"), hereby agree as follows:
Each of the undersigned accepts such Person's rights and authority as a
Director under the LLC Agreement and agrees to perform and discharge such
Person's duties and obligations as a Director under the LLC Agreement, and
further agrees that such rights, authorities, duties and obligations under the
LLC Agreement shall continue until such Person's successor as a Director is
designated or until such Person's resignation or removal as a Director in
accordance with the LLC Agreement. Each of the undersigned agrees and
acknowledges that he or she has been designated as a "manager" of the Company
within the meaning of the Delaware Limited Liability Company Act.
So long as any Trust Obligation is outstanding, each of the undersigned
agrees, solely in its capacity as a creditor of the Company on account of any
indemnification or other payment owing to the undersigned by the Company, not
to acquiesce, petition or otherwise invoke or cause the Company to invoke the
process of any court or governmental authority for the purpose of commencing
or sustaining an involuntary case against the Company under any federal or
state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Company or any substantial part of the property of the
Company, or ordering the winding up or liquidation of the affairs of the
Company.
THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
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.
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IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
/s/ ▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇
Title: Director
/s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
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SCHEDULE D
DIRECTORS
---------
1. ▇▇▇ ▇▇▇▇ (Chairman) (Company Director)
2. ▇▇▇▇ ▇▇▇▇▇ (Company Director)
3. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Company Director)
4. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Independent Director)
5. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Independent Director)
D-1
SCHEDULE E
OFFICERS TITLE
-------- -----
▇▇▇ ▇▇▇▇ President and Chief Executive Officer
▇▇▇▇ ▇▇▇▇▇ Vice President and Treasurer
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Vice President and Secretary
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