MERGER AGREEMENT
MERGER AGREEMENT dated as of February 19, 1998 (this
"Agreement"), by and among PARTNERS FIRST RECEIVABLES FUNDING CORPORATION,
a Delaware corporation (the "Company") and PARTNERS FIRST RECEIVABLES
FUNDING, LLC.
W I T N E S S E T H :
WHEREAS, Partners First Receivables, LLC ("Receivables") owns
100% of the issued and outstanding shares of common stock, no par value per
share, of the Company (all of such shares of common stock being
collectively referred to as the "Shares");
WHEREAS, Receivables has caused the formation of the LLC under
the Delaware Limited Liability Company Act and owns 100% of the interests
therein; and
WHEREAS, Receivables desires to merge the Company into the LLC
pursuant to Delaware Law (as defined below) and pursuant to the terms and
conditions set forth in this Agreement and the Certificate of Merger
regarding same (the "Merger");
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreement contained herein, the
parties hereto agree as follows:
ARTICLE I.
THE MERGER
1.1. Merger. Subject to the terms and conditions hereof and in
accordance with the applicable provisions of the Limited Liability Company
Act and the General Corporation Law of the State of Delaware (collectively,
the "Delaware Law"), the Company will be merged with and into LLC at the
Effective Time (as defined in Section 1.2) and the separate corporate
existence of the Company will thereupon cease (the "Merger").
1.2. Effective Time. At the time the LLC files a Certificate of
Merger (the "Certificate of Merger") with the Secretary of State of the
State of Delaware as provided under Delaware Law, the Merger will become
effective (the "Effective Time").
1.3. Effect of Merger. The LLC will be the surviving entity in
the Merger (sometimes hereinafter referred to as the "Surviving Company"),
and the separate corporate existence of the Company will cease upon the
Merger. The Limited Liability Company Agreement of the LLC dated as of the
date hereof (the "LLC Agreement") will be the limited liability company
agreement of the Surviving Company and the members and the managers of the
Surviving Company shall be as set forth in such LLC Agreement, from and
after the Effective Time, to serve in accordance with Delaware Law and the
terms of the LLC Agreement. The consummation of the Merger will have the
effects provided in Delaware Law with respect to a merger of a domestic
corporation into a domestic limited liability company. At the Effective
Time, the stock transfer books of the Company will be closed, and no
transfer of the Shares will thereafter be made.
1.4. Outstanding Shares. At the Effective Time, all of the
Company's then-outstanding Shares will be cancelled and retired. The
interests of Receivables in the Surviving Company shall be as set forth in
the LLC Agreement.
ARTICLE II.
MISCELLANEOUS PROVISIONS
2.1. Amendment and Modification. This Agreement may be amended
or modified at any time by the parties hereto, but only pursuant to an
instrument in writing signed by the parties.
2.2. Entire Agreement; Assignment. This Agreement constitutes
the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes all other prior agreements and understandings,
both written and oral, between the parties hereto with respect to the
subject matter hereof.
2.3. Validity. The invalidity or unenforceability of any term
or provision of this Agreement in any situation or jurisdiction shall not
affect the validity or enforceability of the other terms or provisions in
any other situation or in any other jurisdiction.
2.4. Governing Law. This Agreement shall be governed by,
enforced under and construed in accordance with the laws of the State of
Delaware, without giving effect to any choice or conflict of law provision
or rule thereof.
2.5. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and shall in no way be construed
to define, limit, describe, explain, modify, amplify or add to the
interpretation, construction or meaning of any provision of, or scope or
intent of, this Agreement nor in any way affect this Agreement.
2.6. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
2.7. Expenses. Whether or not this Agreement and the
transactions contemplated hereby are consummated, and except as otherwise
expressly set forth herein, all costs and expenses (including legal fees
and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses.
2.8. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and nothing in this
Agreement, express or implied, is intended to or shall confer upon any
other person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
2.9. No Waivers. Except as otherwise expressly provided herein,
no failure to exercise, delay in exercising, or single or partial exercise
of any right, power or remedy by any party, and no course of dealing
between the parties, shall constitute a waiver of any such right, power or
remedy. No waiver by either party of any default, misrepresentation, or
breach of warranty or covenant hereunder, whether intentional or not, shall
be deemed to extend to any prior or subsequent default, misrepresentation
or breach of warranty or covenant hereunder or affect in any way rights
arising by virtue of any prior or subsequent occurrence. No waiver shall
be valid unless in writing and signed by the party against whom such waiver
is sought to be enforced.
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be signed by its duly authorized representative as of the date
first above written.
COMPANY:
PARTNERS FIRST RECEIVABLES
FUNDING CORPORATION
By: /s/ Xxxx Xxxxxxx
______________________
Name: Xxxx Xxxxxxx
LLC:
PARTNERS FIRST RECEIVABLES FUNDING, LLC
By: /s/ Xxxx X. Xxxxxxxxx
_______________________
Name: Xxxx X. Xxxxxxxxx
