LIMITED LIABILITY COMPANY AGREEMENT
OF
PARTNERS FIRST RECEIVABLES FUNDING, LLC
A DELAWARE LIMITED LIABILITY COMPANY
The undersigned has formed a limited liability company pursuant
to, and in accordance with, the Delaware Limited Liability Company Act, 6
Del. C. Section 18-101, et seq. (the "Act"), and, in connection therewith,
hereby agrees as follows:
1. Name. The name of the limited liability company is Partners
First Receivables Funding, LLC (the "LLC").
2. Registered Office. The registered office of the LLC in the
State of Delaware is located at 0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx
Xxxxxxxxxx, Xxxxxx of New Castle.
3. Registered Agent. The name and address of the registered
agent of the LLC for service of process on the LLC in the State of Delaware
is The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx
Xxxxxxxxxx, Xxxxxx of New Castle.
4. Purpose. The nature of the business or purposes to be
conducted or promoted by the LLC is to engage in the following activities:
(a) to acquire for cash, promissory notes, or other
consideration from time to time all right, title and interest in
and to open-end or revolving credit receivables, including the
right to receive payment of interest or finance charges and other
obligations of the persons obligated to make payments with
respect thereto and any other proceeds related thereto, and any
other related rights (collectively, "Receivables") pursuant to
one or more receivables purchase agreements (the "Receivables
Purchase Agreements");
(b) to acquire, own, hold, service, sell, assign, pledge
and otherwise deal with the Receivables, collateral securing the
Receivables, any related insurance policies, agreements with
originators or servicers of Receivables and any proceeds or
further rights associated with any of the foregoing;
(c) to transfer Receivables to one or more trusts (the
"Trusts") pursuant to one or more pooling and servicing
agreements or other agreements (the "Pooling and Servicing
Agreements") to be entered into by and among, among others, the
LLC, the trustees named therein and any entities acting as
servicers of the Receivables;
(d) to authorize, sell, deliver to or acquire from the
Trusts certificates of one or more classes or series representing
undivided interests in the assets of the Trusts (collectively,
the "Certificates") or any other securities issued by the Trusts
pursuant to the Pooling and Servicing Agreements and to sell and
deliver any such Certificates or other securities;
(e) to enter into one or more indentures or other
agreements (collectively, the "Indentures") with the trustees
named therein, providing, among other things, for the issuance of
the Notes referred to below and the pledging of pools of
Receivables or Certificates of any class issued by one or more
Trusts;
(f) to authorize, issue, sell and deliver one or more
series and classes of bonds, notes or other evidences of
indebtedness secured or collateralized by one or more pools of
Receivables or by Certificates of any class issued by one or more
Trusts (collectively, the "Notes"), provided that the LLC shall
have no liability under any Notes except to the extent of the one
or more pools of Receivables or Certificates securing or
collateralizing such Notes;
(g) to hold, and to enjoy all of the rights and privileges
of a holder of, any Certificates issued by the Trusts to the LLC
under the related Pooling and Servicing Agreements and to hold
and enjoy all of the rights and privileges of any class of any
series of Notes issued under the related Indentures, including
any class or series of Notes or Certificates that may be
subordinate to any other class or series of Notes or
Certificates, respectively;
(h) to enter into and perform its obligations under the
Receivables Purchase Agreements, the Pooling and Servicing
Agreements, the Indentures, any agreement providing for the sale
of any Certificates or Notes (including any sale of Certificates
or Notes through one or more underwriters or dealers), and any
agreement providing for the funding of any amount due under any
Certificates through direct borrowings, letters of credit,
insurance, swap or cap agreements or otherwise (collectively, the
"Program Documents"); and
(i) to engage in all such other activities and to exercise
all such other powers permitted to LLCs under the laws of the
State of Delaware that are incidental to or connected with the
foregoing business or purposes or necessary or desirable to
accomplish the foregoing.
5. Conduct of Business. (a) Notwithstanding any other
provision of this Limited Liability Company Agreement (this "Agreement")
and any provision of law that otherwise so empowers the LLC, the LLC shall
not, without the affirmative vote of 100% of the members of the Board of
Managers (as defined herein) including at least two Independent Managers
(as defined herein), do any of the following:
(i) engage in any business or activity other than those set
forth in Section 4;
(ii) incur any indebtedness, or assume or guaranty any
indebtedness of any other entity, other than (i) indebtedness to the
Member or any affiliate thereof incurred in connection with the
acquisition of Receivables, which indebtedness from time to time may
be represented by notes issued by the LLC to the Member or any such
affiliate that will be subordinate to the Certificates and Notes and
will only be payable to the extent the LLC has available cash to pay
such indebtedness, (ii) indebtedness incurred in connection with Notes
issued in compliance with an Indenture, (iii) salaries, fees and
expenses to its professional advisors and counsel, mangers, officers
and employees and (iv) other indebtedness not exceeding $4,750 at any
one time outstanding, on account of incidentals or services supplied
or furnished to the LLC;
(iii) dissolve or liquidate, in whole or in part,
consolidate or merge with or into any other entity or convey or
transfer its properties and assets substantially as an entirety to any
entity.
(iv) institute proceedings to be adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against it, or file a petition seeking or consent to
reorganization or relief 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 LLC or a substantial part of its property, or make
any assignment for the benefit of creditors, or admit in writing its
inability to pay its debts generally as they become due, or take
action in furtherance of any such action.
(b) The LLC shall at all times:
(i) maintain its existence as an LLC and remain in good
standing under the laws of the State of Delaware;
(ii) observe all corporate procedures required by this
Agreement and the limited liability company law of the State of
Delaware;
(iii) ensure that (x) the business and affairs of the LLC
are at all times managed by or under the direction of its Board of
Managers, (y) its Board of Managers shall have duly authorized all
actions requiring such authorization and, (z) when necessary, the LLC
shall have obtained proper authorization for action from its Member;
(iv) include at least two Independent Managers (as defined
herein);
(v) to the extent the LLC's office is located in the offices
of the Member or any affiliate of the Member, pay fair market rent for
its office space located in the offices of such affiliate and a fair
share of any overhead costs;
(vi) maintain the LLC's books, financial statements,
accounting records and other corporate documents and records separate
from those of the Member, any affiliate of the Member or any other
entity and keep correct and complete books and records of account and
minutes of meetings and other proceedings of its Board of Managers and
the Member;
(vii) not commingle the LLC's assets with those of the
Member or any affiliate of the Member, and not hold itself out as
being liable for the debts of another;
(viii) maintain separate bank accounts and books of account
from those of its affiliates and ensure that its funds and other
assets shall at all times be readily distinguishable from the funds
and other assets of its affiliates and not be commingled with the
funds or other assets of its affiliates;
(ix) disclose in its annual financial statements the
effects of the transactions contemplated herein and in each
Receivables Purchase Agreement in accordance with generally accepted
accounting principles. Such financial statements shall (x) clearly
indicate the separate existence of the LLC and its affiliates, (y)
reflect the LLC's separate assets and liabilities and (z) record the
purchase of the Receivables pursuant to the applicable Receivables
Purchase Agreement as a purchase under generally accepted accounting
principles;
(x) act solely in its own name and through its own
authorized officers and agents so as not to mislead others as to its
identity or the identity of any affiliate. All oral and written
communications of the LLC, including without limitation letters,
invoices, purchase orders, contracts, statements, and applications
shall be made solely in the name of the LLC;
(xi) pay from its own separate funds all material
liabilities incurred by it, including material operating and
administrative expenses; provided that the organizational expenses of
the LLC and expenses relating to the preparation, negotiation,
execution and delivery of the documentation with respect to the
issuance of the Certificates or Notes that it may issue from time to
time may be paid by an affiliate. No general overhead or
administrative expenses of any affiliate shall be charged or otherwise
allocated to the LLC unless such general overhead or administrative
expenses are directly attributable to services provided to or for the
account of the LLC;
(xii) pay from the LLC's assets all obligations and
indebtedness of any kind incurred by the LLC;
(xiii) except as provided in Section 5(a)(ii), ensure that
there will be no intercompany debt between the LLC and any affiliate;
provided, that the Member of the LLC may contribute capital to the LLC
in such amounts as are necessary to assure that such LLC has adequate
capital for its business and the LLC may issue subordinated notes in
the amount and manner specified in the related Receivables Purchase
Agreement;
(xiv) at all times maintain an arm's length relationship
with its affiliates; and
(xv) operate in such a manner that it would not be
substantively consolidated with any other entity.
(c) The LLC shall abide by all corporate formalities, including
the maintenance of current minute books, and the LLC shall cause its
financial statements to be prepared in accordance with generally accepted
accounting principles in a manner that indicates the separate existence of
the LLC and its assets and liabilities. The LLC shall not assume the
liabilities of the Member or any affiliate of the Member. The LLC shall not
guarantee the liabilities of the Member nor any affiliate of the Member,
and neither the Member or an affiliate of the Member shall make any
guaranty with respect to the obligations of the LLC. The LLC shall not:
(v) hold itself out as having agreed to pay or become liable for the debts
of any affiliate; (w) fail to correct any known misrepresentation with
respect to this Agreement to pay or become liable for the debts of any
affiliate; (x) operate or purport to operate as an integrated, single
economic unit with any affiliate in its dealings with any other Person; (y)
seek or obtain credit or incur any obligation to any Person based upon the
assets of an affiliate or unaffiliated entity; or (z) induce any Person
reasonably to rely on the creditworthiness of any affiliate in its dealings
with the LLC. The Managers of the LLC shall make decisions with respect to
the business and daily operations of the LLC independent of, and not
dictated by, the Member or any affiliate of the Member.
6. The Board of Managers. Pursuant to Section 18-402 of the
Act, and to the extent specifically set forth in this Agreement, certain
activities of the LLC shall be managed through a Board of Managers (the
"Board of Managers"). At all times that any Certificates or Notes are
outstanding, the Board of Managers of the LLC shall include at least two
Independent Managers. So long as any Certificates or Notes are
outstanding, this Section 6 shall not be amended without the prior written
consent of the Independent Managers. When voting on matters subject to the
vote of the Board of Managers, including those matters specified in Section
4, notwithstanding that the LLC is not then insolvent, the Independent
Managers shall take into account the interests of the creditors of the LLC
as well as the interests of the LLC. The Board of Managers shall have the
following characteristics:
(a) the Board of Managers shall meet annually and at such
other times as may be necessary for the business of the LLC upon
at least five (5) business days' prior written notice of the
time, place and purpose of the meeting given by any two (2)
Managers. Meetings of the Board of Managers may be in person or
by conference telephone or other similar communications system,
and actions of the Board of Managers may be by written consent.
The presence of three (3) Managers shall constitute a quorum.
Each Manager has the right to one vote. Each Manager not only
has the right to his own vote, but may vote by proxy for one
other Manager (except for votes which require unanimous consent
of the Managers hereunder, in which case no Independent Manager
shall be permitted to vote by proxy);
(b) the term of each Manager shall be one year, and the
Member shall designate the Managers, and shall replace or
reappoint such managers annually, by executing a certificate
signed by an authorized officer of the Member setting forth the
name of each Manager for the following year; and the Member may
remove any Manager for any reason or no reason by executing a
certificate setting forth the Manager being removed and the
replacement Manager;
(c) in the event there exists a vacancy on the Board of
Managers, the Member shall, as soon as practicable, execute a
certificate setting forth a replacement Manager; and
(d) the debts, obligations and liabilities of the LLC,
whether arising in contract, tort or otherwise, shall be solely
the debts, obligations and liabilities of the LLC, and no Manager
shall be obligated for any such debt, obligation or liability of
the LLC solely by reason of its acting as a Manager of the LLC.
(e) An "Independent Manager" shall be an individual who:
(A) is not and has not been employed by the Member or any of its
subsidiaries or affiliates as a director, manager officer or
employee (other than as an Independent manager of the LLC or any
other special purpose subsidiary of the Member or any of its
affiliates, the certificate of incorporation, limited liability
company agreement, or other governing document of which is
substantially similar hereto) within the five years immediately
prior to such individual's appointment as an Independent Manager;
(B) is not, and has not been within the five years immediately
prior to such individual's appointment as an Independent Manager,
affiliated with a supplier to which the Member and any of its
subsidiaries or affiliates collectively in the preceding fiscal
year of the Member made payments in consideration for the
supplier's products and services in excess of 3% of the
consolidated gross revenues of the Member and its subsidiaries
during such fiscal year; (C) does not have, and has not had
within the five years immediately prior to such individual's
appointment as an Independent Manager, a personal services
contract with the Member or any of its subsidiaries or
affiliates, from which fees and other compensation received by
the person pursuant to such personal services contract would
exceed 5% of his or her gross revenues during the preceding
calendar year; (D) is not affiliated with a tax-exempt entity
that receives, or has received within the five years prior to
such appointment as an Independent Manager, contributions from
the Member or any of its subsidiaries or affiliates, in excess of
the lesser of (1) 3% of the consolidated gross revenues of the
Member, and its subsidiaries during such fiscal year and (2) 5%
of the contributions received by the tax-exempt entity during
such fiscal year; (E) is not the beneficial owner at the time of
such individual's appointment as an Independent Manager, or at
any time thereafter while serving as an Independent Manager, of
such number of shares of any class of equity of the Member the
value of which constitutes more than 5% of such individual's net
worth; (F) is not a spouse, parent, sibling or child of any
person described by (A) through (E); and (G) is not, and was not
within the five years prior to such appointment as an Independent
Manager, a financial institution to which the Member or any of
its subsidiaries or affiliates owes outstanding indebtedness for
borrowed money in a sum exceeding more than 5% of the Member's
total consolidated assets.
(f) An "affiliate" of a person, or a person "affiliated
with," a specified person, shall mean a person that directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the specified
person.
(g) The term "control" (including the terms "controlling,"
"controlled by" and "under common control with") shall mean the
possession, direct or indirect, 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; provided, however, a person shall not be deemed to
control another person solely because he or she is a director of
such other person.
(h) The term "person" shall mean an individual,
partnership, firm, corporation, association, trust,
unincorporated organization or other entity, as well as any
syndicate or group deemed to be a person pursuant to Section
13(d)(3) of the Securities Exchange Act of 1934, as amended.
(i) A "subsidiary" of the Member shall mean any entity a
majority of voting equity of which is owned, directly or
indirectly through one or more other subsidiaries, by the Member.
(j) except as otherwise provided in Sections 5(a), 13, 14,
16, 17 and 18 of this Agreement, all actions of the Board of
Managers shall require a majority vote of the quorum of the
Managers; provided, however, that the Board of Managers may
delegate the day-to-day management of the LLC to an individual or
entity which may or may not be a Manager;
7. Tax Characterization. It is intended that the LLC be
classified for Federal income tax purposes as a non-entity, for so long as
it has a single member, and otherwise as a partnership.
8. Admission of the Member, Capital Contribution, Percentage
Interest and Allocation of Profits and Losses. (a) Simultaneously with
the execution and delivery of this Agreement, Partners First Receivables,
LLC shall be admitted as the Member of the LLC (the "Member") with an
interest of 100% (as such percentage may change from time to time, a
"Percentage Interest"). The name and address of the Member is as follows:
Partners First Receivables, LLC
000 Xxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
(b) A capital contribution shall be made by the Member.
(c) The Member hereby appoints the following persons to serve
initially as Managers of the Board of Managers of the LLC:
Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxx
9. Distributions. At the time determined by a majority of the
Managers, but at least once during each fiscal year, the Managers shall
cause the LLC to distribute to the Member any cash held by it which is
neither reasonably necessary for the operation of the LLC or the
performance of its obligations under the Program Documents nor in violation
of Sections 18-607 or 18-804 of the Act.
10. Powers; Liability of the Member. (a) Subject to Section 5,
the Member shall have the right and authority to take all actions
specifically enumerated in the Certificate of Formation or this Agreement
or which the Member otherwise deems necessary, useful or appropriate for
the day-to-day management and conduct of the LLC's business. All
instruments, contracts, agreements and documents providing for the
acquisition, mortgage or disposition of property of the LLC shall be valid
and binding on the LLC only if executed by any officer of the Member, which
officer shall also be an "authorized person" within the meaning of the Act
for purposes of executing the LLC's Certificate of Formation.
(b) Except as expressly provided in the Program Documents, the
debts, obligations and liabilities of the LLC, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities
of the LLC, and the Member shall not be obligated for any such debt,
obligation or liability of the LLC solely by reason of its status as the
Member of the LLC.
11. Indemnification. (a) Subject to Section 11(g), any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is
or was a Manager, employee or agent of the LLC, shall be indemnified and
held harmless by the LLC to the fullest extent legally permissible against
all expenses, liabilities and losses (including attorneys' fees and
disbursements), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with such action, suit
or proceeding.
(b) To the extent that a Member, employee or agent of the LLC
has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in paragraph (a) of this Section 11, or in
defense of any claim, issue or matter therein, he shall be indemnified by
the LLC against expenses (including attorneys' fees and disbursements)
actually and reasonably incurred by him in connection therewith without the
necessity of any action being taken by the LLC other than the
determination, in good faith, that such defense has been successful. In
all other cases wherein indemnification is provided by this Section 11,
unless ordered by a court, indemnification shall be made by the LLC only as
authorized in the specific case upon a determination that indemnification
of the manager, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct specified in this
Section 11. Such determination shall be made (1) by the Board of Managers
by a majority vote of a quorum consisting of Managers who were not parties
to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or even if obtainable a quorum of disinterested Managers so
directs, by independent legal counsel in a written opinion.
(c) The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the
person seeking indemnification did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests
of the LLC, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful. Entry of a
judgment by consent as part of a settlement shall not be deemed a final
adjudication of liability for negligence or misconduct in the performance
of duty, nor of any other issue or matter.
(d) Subject to Section 11(g), expenses (including attorneys'
fees and disbursements) incurred by a Manager, employee or agent of the LLC
in defending any civil, criminal, administrative or investigative action,
suit or proceeding may be paid by the LLC in advance of the final
disposition of such action, suit or proceeding as authorized by the Board
of Managers in the specific case upon receipt of an undertaking by or on
behalf of such Manager, employee or agent to repay such amount unless it
shall ultimately be determined that he is entitled to be indemnified by the
LLC. Expenses (including attorneys' fees and disbursements) incurred by
other employees or agents of the LLC in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by
the LLC upon such terms and conditions, if any, as the Board of Managers
deems appropriate.
(e) No Manager of the LLC shall be personally liable to the LLC
for monetary damages for any breach of fiduciary duty by such person as a
Manager. Notwithstanding the foregoing sentence, a Manager shall be liable
to the extent provided by applicable law (i) for breach of the Manager's
duty of loyalty to the LLC or the Member, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation
of law or (iii) for any transaction from which the Manager derived an
improper personal benefit. No amendment to or repeal of this Section
11.1(e) shall apply to or have any effect on the liability or alleged
liability of any Manager of the LLC for or with respect to any acts or
omissions of such Manager occurring prior to such amendment.
(f) The indemnification and advancement of expenses provided by
this Section 11 shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement may be entitled under any
agreement, vote of the Board of Managers or otherwise, both as to action in
an official capacity and as to action in another capacity while holding
such office, and shall continue as to a person who has ceased to be a
Manager, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
(g) Any amounts payable by the LLC in accordance with this
Section 11 shall be payable solely to the extent of funds actually received
by the LLC under the Program Documents.
12. Compensation. The Member shall not receive compensation for
services rendered to the LLC. The Managers shall receive such compensation
for their services as may be agreed between the Manager and the Member from
time to time.
13. Term. Pursuant to Section 18-801 of the Act, the LLC shall
dissolve, and its affairs shall be wound up, only upon the earliest to
occur of (a) one year and one day following the payment in full of all
outstanding securities issued by, or outstanding liabilities of, the Trust
and (b) December 31, 2059.
14. Assignments. Pursuant to Section 18-702 of Act, the Member
may sell, assign or participate in any or all of its limited liability
company interest at any time without the consent of the Managers, and the
assignee of any such limited liability company interest shall possess all
of the rights and obligations of a Member hereunder, and the right to
become a Member pursuant to Section 18-704 of the Act; provided that (i)
the Rating Agency Condition shall have been satisfied with respect to such
assignment and (ii) the Member provides an opinion of counsel to the
Trustee (which opinion of counsel shall in form and substance be reasonably
satisfactory to the Trustee) to the effect that the failure to retain such
interests will not cause the Trust to be classified for Federal income tax
purposes as an association taxable as a corporation (or a publicly traded
partnership).
15. Limited Liability. The Member shall have no liability for
the obligations of the LLC except to the extent provided herein and in the
Program Documents.
16. Bankruptcy of the Member. If any event of bankruptcy
specified in Section 18-304(a) shall occur with respect the Member, then
the Member shall, notwithstanding the occurrence of such event of
bankruptcy, remain a Member of the LLC and, notwithstanding such event of
bankruptcy, the LLC shall continue, subject to the provisions of Section
13.
17. Amendments. This Agreement may be amended only in a writing
signed by the Member; provided that, if any securities issued by the Trust
are outstanding, no such amendment shall be effective without a Rating
Confirmation; provided further that the provisions of Sections 5, 6, 13,
14, 15 and 16 hereof may be amended only with the unanimous written consent
of the Board of Managers.
18. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
19. Authorized Person. Xxxxxxx X. Xxxxxx and/or Xxxx Xxxxx have
been authorized to sign and file the Certificate of Formation for the LLC
by the Member.
IN WITNESS WHEREOF, the undersigned has duly executed this
Limited Liability Company Agreement as of the 26th day of January, 1998.
PARTNERS FIRST RECEIVABLES FUNDING, LLC
By: /s/ Xxxx Xxxxxxx
_________________________
Name: Xxxx Xxxxxxx
Title: Treasurer
