EXHIBIT 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
VOLKSWAGEN PUBLIC AUTO LOAN SECURITIZATION, LLC
This Limited Liability Company Agreement (together with the schedules
attached hereto, this "Agreement") of Volkswagen Public Auto Loan
Securitization, LLC (the "Company"), is entered into by VW Credit, Inc., a
Delaware corporation, as the sole equity member (the "Member"), and Kevin P.
Burns, 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. Section 18-101 et seq.), as amended
from time to time (the "Act"), and this Agreement, and the Member and Kevin P.
Burns hereby agree as follows:
Section 1. Name.
The name of the limited liability company formed hereby is Volkswagen
Public Auto Loan Securitization, LLC.
Section 2. Principal Business Office.
The principal business office of the Company shall be located at c/o VW
Credit, Inc., 3800 Hamlin Road, Auburn Hills, Michigan 48326, 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, 1209
Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801.
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, 1209 Orange Street, in the City of
Wilmington, County of New Castle, Delaware 19801.
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.
Kevin Warns 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.
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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) entering into and performing obligations under one or more
agreements pursuant to which the Company may purchase, receive
contributions of or otherwise acquire from time to time retail
automobile or light duty truck installment sales contracts and
related rights and assets ("Receivables Assets") and
beneficial interests in a trust consisting of vehicles, user
leases and the related rights associated therewith ("SUBI
Assets");
(ii) owning, holding, selling, assigning, transferring, pledging,
granting security interests in or otherwise exercising
ownership rights with respect to Receivables Assets and SUBI
Assets;
(iii) issuing or selling Securities;
(iv) acting as settlor or depositor of one or more statutory trusts
or common law trusts or acting as member of one or more
limited liability companies (each, an "Issuer") formed to
issue Securities;
(v) acquiring, owning, holding, transferring, assigning, pledging,
selling or otherwise dealing with any interests in an Issuer
or Securities issued by an Issuer;
(vi) establishing any reserve account, spread account or other
credit enhancement or any other account for the benefit of any
Securities;
(vii) transferring or investing any income;
(viii) preparing, executing and filing with the Securities and
Exchange Commission any documents, including without
limitation registration statements, amendments to registration
statements, Form 8-Ks, annual reports, letters or agreements,
relating to Securities;
(ix) preparing any private placement memoranda relating to
Securities to be offered or sold privately;
(x) serving as a "general partner" or "tax matters partner" of an
Issuer for federal, state or local tax purposes;
(xi) entering into and performing obligations under agreements
reasonably related to transactions described in clauses (i)
through (x) above, including without limitation, any interest
rate hedge agreements, transfer agreements, sale agreements,
trust agreements, purchase agreements, placement agreements,
indemnity agreements, servicing agreements, limited liability
company agreements, insurance agreements, pooling agreements
or lockbox or controlled account agreements, and any
amendments to any of the foregoing or any
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documents similar to the foregoing (all such agreements, the
"Transaction Documents"); and
(xii) engaging in any lawful act or activity and to exercise any
powers permitted to limited liability companies organized
under the laws 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 Transaction 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.
(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
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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. Each committee shall keep regular
minutes of its meetings and report the same to the Board when
required.
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(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.
(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
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terms of the Transaction 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 Transaction 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
Transaction Documents permit such commingling;
(K) properly reflect in its financial records all
monetary transactions between it and the Member or
any other subsidiary or Affiliate of the Member;
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(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 Transaction 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 Transaction 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 Transaction Documents
or this Section 9(j);
(C) incur, create or assume any indebtedness other than
as expressly permitted hereunder and under the
Transaction 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 Transaction
Documents and may make any advance required or
expressly permitted to be made pursuant to any
provisions of the Transaction Documents and permit
the same to remain outstanding in accordance with
such provisions;
(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 Transaction
Documents; or
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(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 Kevin P. Burns.
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 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
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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.
(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
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directors and officers of business corporations organized under the General
Corporation Law of the State of Delaware.
Section 12. Limited Liability.
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 Transaction 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 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
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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 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
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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 Transaction 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 Transaction 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.
(f) The foregoing provisions of this Section 20 shall survive any
termination of this Agreement.
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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 Transaction Documents
shall, without further act, be the Member hereunder, and such merger or
consolidation shall not constitute an assignment for purposes of this Agreement
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 Transaction 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) 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
-14-
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).
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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 Transaction
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.
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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 February 27, 2003.
[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
27th day of February, 2003.
MEMBER:
VW CREDIT, INC.
By: /s/ Peter Schupp
-----------------------
Name: Peter Schupp
Title: President & Treasurer
By: /s/ Frank Witter
-----------------------
Name: Frank Witter
Title: Vice President
SPECIAL MEMBER:
/s/ Kevin Burns
----------------------------
Name: Kevin P. Burns
S-1 LLC Agreement
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.
"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 February
27, 2003, as amended or amended and restated from time to time.
A-1
"Company" means Volkswagen Public Auto Loan Securitization, LLC, 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 VW Credit, Inc., as the initial member of the Company,
and includes any Person admitted as an additional member of the Company or a
substitute member of the Company pursuant to the provisions of this Agreement,
each in its capacity as a member of the Company; provided, however, the term
"Member" shall not include the Special Members.
"Obligations" shall mean any Securities and the indebtedness,
liabilities and obligations of the Company under or in connection with this
Agreement, the other Transaction Documents or any related document in effect as
of any date of determination.
"Officer" means an officer of the Company described in Section 11.
A-2
"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 Moody's 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
Moody's 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 Moody's
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.
"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).
"Transaction Documents" has the meaning assigned to such term in
Section 7(a)(xi).
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-3
SCHEDULE B
<Table>
<Caption>
Member
------
Agreed Value of Membership
Name Mailing Address Capital Contribution Interest
---- --------------- -------------------- ----------
VW Credit, Inc. 3800 Hamlin Road $1 100%
Auburn Hills, MI 48326
</Table>
B-1
SCHEDULE C
Directors' Agreement
February 27, 2003
VW Credit, Inc.
3800 Hamlin Road
Auburn Hills, MI 48326
Volkswagen Public Auto Loan Securitization, LLC
3800 Hamlin Road
Auburn Hills, MI 48326
Re: Directors' Agreement -- Volkswagen Public Auto Loan
Securitization, LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned Persons,
who have been designated as directors of Volkswagen Public Auto Loan
Securitization, LLC, a Delaware limited liability company (the "Company"), in
accordance with the Limited Liability Company Agreement of the Company, dated as
of February 27, 2003, 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.
3. THIS DIRECTORS' AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
C-1
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.
-----------------------
Frank Witter
-----------------------
Allen Strang
-----------------------
Peter Schupp
-----------------------
Kevin P. Burns
C-2
SCHEDULE D
DIRECTORS
1. Frank Witter
2. Allen Strang
3. Peter Schupp
4. Kevin P. Burns
D-1
SCHEDULE E
<Table>
<Caption>
OFFICERS TITLE
- -------- -----
Peter Schupp President & Treasurer
Frank Witter Vice President / Chief Financial Officer
Allen Strang Secretary
Rebecca Johnson Assistant Secretary
LeSha Thorpe Assistant Treasurer
Timothy Flaherty Assistant Treasurer
Dennis Tack Assistant Treasurer
</Table>
E-1