--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 10.2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CREDITRUST SPV99-2, LLC
_________________________
Dated as of March 1, 2000
_________________________
THE UNITS OF LLC INTEREST DESCRIBED IN THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT") OR UNDER THE
SECURITIES LAWS OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION (THE "STATE
ACTS"). CONSEQUENTLY, UNITS IN THE COMPANY MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT IN ACCORDANCE
WITH THE PROVISIONS OF THE 1933 ACT, THE STATE ACTS AND THIS AGREEMENT.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CREDITRUST SPV99-2, LLC
================================================================================
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement"), dated as of March 1, 2000, is made and executed by CREDITRUST
CORPORATION, a Maryland corporation ("Creditrust"), and GSS HOLDINGS II, INC., a
Delaware corporation ("Global"), as members (the "Members").
PRELIMINARY STATEMENTS:
Creditrust has previously caused Creditrust SPV99-2, LLC (the "Company") to
be formed as a limited liability company under the laws of the State of Delaware
for the purposes set forth herein. Creditrust now desires to amend the Limited
Liability Operating Agreement of the Company to permit the admission of Global
as an additional Member, and the Members further desire to amend and restate
this Agreement in order to establish the manner in which the business and
affairs of the Company shall be managed and to determine the respective rights,
duties and obligations of the members of the Company.
NOW THEREFORE, the parties hereto hereby agree that the Limited Liability
Company Agreement of the Company shall be amended and restated to provide in its
entirety as follows:
ARTICLE I
FORMATION; NAME; REGISTERED OFFICE;
PURPOSE; TERM
Section 1.1 Formation.
Creditrust has caused Creditrust SPV99-2, LLC to be formed as a limited
liability company under the Delaware Limited Liability Company Act, 6 Del. C.
(S) 18-101, et seq. (the "LLC Act").
Section 1.2 Registered Office and Registered Agent; Principal Office and
Principal Executive Office.
A. The initial address of the registered office of the Company in the
State of Delaware and the name and address of the initial resident agent of the
Company in the State of Delaware are as set forth in the Certificate of
Formation (as defined below).
B. The principal office and principal executive office of the Company
shall, at all times during the term of the Bridge Loan Agreement (as such term
is defined in Section 4.2) be maintained in the State of Maryland. The present
address of the principal office and principal executive office of the Company in
the State of Maryland is 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
Section 1.3 Purpose.
The purposes for which the Company is formed and the business and
objects to be carried on and promoted by it are limited solely to the following:
(1) To acquire, own, hold, sell, transfer, pledge or otherwise
dispose of, interests in consumer loan receivables generated on credit card
accounts and installment accounts ("Receivables");
(2) To authorize, issue, acquire, hold, retain an interest
(including a subordinated or ownership interest) in, sell, deliver or
otherwise deal with the notes issued pursuant to the documents listed in
Section 4.2 hereof ("Term Loans") and, in connection therewith, to pledge
or otherwise grant security interests in the Receivables to secure the Term
Loans, and any other assets as determined by the Company's Board of
Managers, it being understood that the Company may not borrow funds except
pursuant to the Term Loans and the Bridge Loans refinanced thereby;
(3) To maintain, enforce, protect and service (or arrange for an
agent to so maintain, enforce, protect and service, which agent may be
Creditrust or another affiliate of the Company) the Receivables;
(4) To loan or otherwise invest, or to distribute to its
Members, the proceeds derived from the sale, pledge or ownership of the
Receivables as determined by the Company's Board of Managers; and
(5) To engage in any lawful act or activity and to exercise any
powers permitted to limited liability companies organized under the LLC Act
that, in either case, are incidental to and necessary or convenient for the
accomplishment of the above mentioned purposes.
2
Section 1.4 Certificate of Formation.
Creditrust has caused a certificate of formation of the Company (the
"Certificate of Formation") to be executed by an authorized person and filed for
record with the Delaware Secretary of State as of the date of this Agreement, a
copy of which is attached hereto as Exhibit A. The Officers and Managers shall
---------
take all necessary action to maintain the Company in good standing as a limited
liability company under the LLC Act, including (without limitation) the filing
of any certificates of correction, articles of amendment and such other
applications and certificates as may be necessary to protect the limited
liability of the Members and to cause the Company to comply with the applicable
laws of any jurisdiction in which the Company owns property or does business.
Section 1.5 Term.
The term of the Company commenced on the date that the Certificate of
Formation was filed and received by the Secretary of State of the State of
Delaware. The Company shall have perpetual existence; provided, however, that
the Company may be dissolved in accordance with Section 6.1 of this Agreement.
Section 1.6 Tax Characterization.
At all times during which all of the outstanding Units (as defined below)
or other equity interests in the Company are held by a single person, the
Company shall, for federal and state income tax purposes, be disregarded as a
separate entity such that all the assets and liabilities of the Company shall be
treated as the assets and liabilities of the holder of all its Units. At all
times during which two or more persons hold Units in the Company, the Company
shall, for federal and state income tax purposes, be classified as a partnership
rather than an association taxable as a corporation. Each Member, by its
execution or acceptance of this Agreement, covenants and agrees that it will
file its own federal and state income and other tax returns in a manner that its
consistent with the Company being classified as a partnership and will not take
any action which is inconsistent with the classification of the Company as a
partnership.
ARTICLE II
MEMBERS; INTERESTS IN THE COMPANY; CAPITAL CONTRIBUTIONS
Section 2.1 Members and Initial Capital Contributions.
A. The Members shall be divided into Class A Members and Class B Members.
Unless otherwise expressly provided in this Agreement to the contrary, (i)
Creditrust and each subsequent holder of one or more Units who has been admitted
to the Company as a Member shall be referred to herein as a "Class A Member" and
Global, and any successor thereto, shall be referred to as the "Class B Member"
and (ii) any reference to "Members" or a "Member"
3
shall include the Class A Members and the Class B Member. The Members, their
respective Class designations, capital contributions, addresses and number of
Units (if any) are set forth on Schedule A hereto. Schedule A shall be amended
---------- ----------
from time to time to reflect any changes to the information set forth thereon.
B. Creditrust has made an initial capital contribution to the Company of
$1,000. In exchange for such transfer and contribution, the Company shall issue
to Creditrust 100 Units of ownership interest in the Company, which, as of the
date such Units are issued, shall represent all the issued and outstanding Units
in the Company.
C. The Company shall have at all times one Class B Member. The Class B
Member shall be a special class of Member the sole rights of which are limited
to voting on certain actions and decisions by the Company as provided herein.
The Class B Member (i) shall have no obligation to make any capital
contributions to the Company, (ii) will not be issued any Units in the Company,
(iii) will not be entitled to receive any distributions from the Company and
(iv) will not be entitled to participate in the business and affairs of the
Company or vote on any matters requiring the consent or approval of the Members,
except as expressly provided herein. The Class B Member shall at all times be a
corporation, which shall have at least one Independent Director and shall at all
times be an Independent Member.
For purposes of this Agreement, the term "Affiliate" shall mean, (i)
Creditrust; (ii) any stockholder, partner, director, manager, officer, agent or
employee of Creditrust or of a person or entity described in item (iii); or
(iii) other person or entity that directly or indirectly controls, is controlled
by, or is under common control with Creditrust or the Company, the term
"Independent Director" shall mean an individual
(a) who is not (i) a stockholder (whether direct, indirect or
beneficial, other than indirect stock ownership in Creditrust or any
Affiliate by any person through a mutual fund or similar diversified
investment pool), customer, advisor or supplier of Creditrust or any
Affiliate; (ii) a director, officer or employee of Creditrust or any
Affiliate (other than as an Independent Director of any other single
purpose vehicle Affiliates) (Creditrust and Affiliates, other than the
Company, being hereinafter referred to as the "Parent Group"); (iii) a
person related to any person referred to in clauses (i) and (ii); and (iv)
a trustee, conservator or receiver for any member of the Parent Group; and
(b) who has (i) prior experience as an independent director for a
corporation or similar entity whose organic documents require the unanimous
written consent of all independent directors or managers thereof before
such entity could consent to the institution of bankruptcy or insolvency
proceedings against it or could file a petition seeking relief under any
applicable federal or state law relating to bankruptcy, and (ii) at least
three years of employment experience with one or more entities that
provide, in the ordinary course of their respective businesses, advisory,
management or placement services to issuers of securitization or structured
finance instruments, agreements or securities; and
4
(c) of whose appointment the Lenders have been notified at least
ten (10) Business Days in advance and to which appointment the Majority
Lenders have not reasonably objected to in writing.
and the term "Independent Member" shall mean shall mean any person or
entity which (a) is in fact independent, (b) does not have any direct
financial interest or any material indirect financial interest in the
Company or in the Parent Group and (c) is not connected with the Company or
the Parent Group as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Notwithstanding anything in this Agreement to the contrary, in addition to
any requirements under the charter and by-laws of the Class B Member, the
affirmative vote of the Independent Director shall be required for the Class B
Member to authorize (i) any of the matters specified in Section 4.1.E hereof,
(ii) any amendment of this Agreement for which the consent of the Class B Member
is required or (iii) any other actions or decisions under this Agreement for
which the consent of the Class B Member is required. In the event that the
Independent Director resigns as a director of the Class B Member, or such
position is otherwise vacated, or the individual acting as the Independent
Director shall cease to qualify as such, no action requiring the affirmative
vote of the Class B Member shall be taken until a successor Independent Director
is elected to the board of directors of the Class B Member and such Independent
Director approves such action and any such action taken in violation of this
provision shall be void. No Independent Director shall be a trustee in
bankruptcy for the Company or any Affiliate of the Company or any significant
customer of or supplier to the Company.
Section 2.2 Additional Capital Contributions.
A. Other than the initial contribution of Receivables by Creditrust to
the Company pursuant to Section 2.1, no Member shall be required to make any
capital contributions to the Company or to lend any funds to the Company.
B. [Reserved].
C. Subject to the other provisions of this Agreement, the Board of
Managers, on behalf of the Company, may from time to time seek and accept from
one or more Class A Members selected by the Board of Managers additional capital
contributions of cash or in-kind contributions of property on such terms and
subject to such conditions as may be determined by the Board of Managers in its
sole discretion.
Section 2.3 Additional Members.
A. Except as provided in Sections 2.1.C, 5.1.B and 5.3.B, no
individual, corporation, partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof (or any other person)
may be admitted to the Company as an additional or substitute Member without the
prior approval of the Board of Managers.
5
B. In addition to any other requirements set forth in this Agreement,
no person shall be admitted to the Company as an additional or substitute Member
unless and until such person has accepted and agreed to all the provisions of
this Agreement by executing a counterpart signature page hereto or an amendment
to this Agreement.
Section 2.4 Issuance and Classification of Units.
Each Class A Member's ownership interest in the Company shall be
represented by units of membership interest ("Units"). An unlimited number of
Units are authorized. Units shall not be certificated. The Units shall be of a
single class.
Section 2.5 Capital Accounts.
An individual capital account (the "Capital Account") shall be maintained
for each Class A Member. The Capital Account of a Class A Member shall be
increased by (a) the amount of cash or the agreed fair market value of any
property contributed by such Class A Member (net of any liabilities assumed by
the Company and any liabilities to which such property is subject) and (b) the
amount of all Profits (and any item thereof) allocated to such Class A Member,
and decreased by (c) the amount of all distributions to such Class A Member and
(d) the amount of all Losses (and any item thereof) allocated to such Class A
Member. The Capital Accounts shall be determined, maintained and adjusted in
accordance with the Internal Revenue Code of 1986, as amended (the "Code") and
the Treasury Regulations issued thereunder, including the capital account
maintenance rules in Treasury Regulations (S)1.704-(1)(b)(2)(iv).
Section 2.6 General Rules Relating to Capital of the Company.
A. No Member shall be personally liable for the return of the capital
contributions of the Members, or any portion thereof, it being expressly
understood that any such return of contributions shall be made solely from the
Company assets.
B. Except as expressly provided herein, no Member shall have the right
to withdraw or receive a return of all or any part of such Member's capital
contributions. No Member shall have any right to demand or receive property
(other than cash) in return of capital contributions.
ARTICLE III
ALLOCATIONS AND DISTRIBUTIONS
Section 3.1 Distributions to Members.
A. Any other sources of cash not required to be retained by the
Company under the applicable credit and security agreements to which the Company
is a party may be distributed to the Class A Members at such times and in such
amounts as may be determined by the Board of
6
Managers in its discretion. Other than such distributions, the Company shall not
make any distributions to its Members.
B. No distributions shall be made to the Class B Member.
Section 3.2 Allocations of Profits and Losses.
Profits and Losses for each fiscal year (or other portion thereof) of
the Company shall be allocated among the Class A Members in proportion to the
number of Units held by each. No Profits or Losses shall be allocated to the
Class B Member.
Section 3.3 Allocation of Taxable Income and Taxable Loss.
A. Except as otherwise provided herein, each item of taxable income,
gain, loss, deduction, preference or recapture entering into the computation of
Profits or Losses hereunder shall be allocated to each Class A Member in the
same proportion as Profits or Losses are allocated and in accordance with the
provisions of Section 704(b) of the Code and the Treasury Regulations thereto.
B. In accordance with Code Section 704(c) and the Treasury Regulations
thereunder, income, gain, loss, and deduction with respect to any property
contributed to the capital of the Company or with respect to which the value has
been adjusted on the books of the Company shall, for tax purposes (but not for
purposes of maintaining the Members' respective Capital Accounts), be allocated
among the Members so as to take account of any variation between the adjusted
basis of such property to the Company for federal income tax purposes and its
fair market value using such method as may be selected by the Board of Managers.
C. Allocations pursuant to this Section 3.3 are for purposes of
federal, state, and local taxes and shall not affect, or in any way be taken
into account in computing, any Member's Capital Account or share of Profits,
Losses, other items, or distributions pursuant to any provision of this
Agreement.
Section 3.4 Distributions Upon Dissolution and Termination
Upon the dissolution and termination of the Company, the assets remaining
after satisfaction (whether by payment or by establishment of reserves therefor)
of creditors shall be distributed to the Class A Members in accordance with the
number of Units held by each.
7
ARTICLE IV
MANAGEMENT OF BUSINESS AND AFFAIRS OF THE COMPANY
Section 4.1 Management of Business and Affairs of the Company.
A. Except as otherwise provided herein, the exclusive authority to
manage, control and operate the Company shall be vested in the Board of Managers
of the Company, consisting of individuals, who need not be members, elected by
the members as Managers in accordance with the Certificate of Formation and this
Agreement. The number of Managers of the Company shall be three (3), which
number may be increased or decreased in accordance with the By-Laws of the
Company and the terms of this Agreement. The names of the Managers who will
serve until the first annual meeting and until successor(s) are elected and
qualify are as follows:
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
B. For purposes of carrying out the business of the Company, the
Members hereby adopt the By-Laws of the Company attached hereto as Exhibit B and
---------
incorporated by this reference as if set forth fully herein (the "By-Laws").
C. The Board of Managers shall appoint Officers of the Company for the
purpose of managing the day-to-day operations of the Company, who shall be
elected and shall have the powers as set forth in the By-Laws. The names of the
Officers initially serving the Company and the capacities in which they serve
are as follows:
Name Office(s)
---- ---------
Xxxxxx X. Xxxxxx President
Xxxxxxx X. Xxxxxx Vice President and Treasurer
Xxxxxx X. Xxxxxxx Secretary
D. Notwithstanding the general grant of authority to the Board of
Managers under the foregoing provisions of this Section 4.1, the Managers shall
cause the Company:
(1) To maintain books and records separate from its Affiliates
and from any other person or entity;
(2) To maintain its bank accounts separate from those of its
Affiliates and those of any other person or entity;
(3) Not to commingle its assets with those of any other person
or entity and to hold all of its assets in its own name;
8
(4) To conduct its own business in its own name;
(5) To maintain separate financial statements, showing its assets and
liabilities separate and apart from those of its Affiliates and from those
of any other person or entity and to cause such financial statements to be
prepared in accordance with generally accepted accounting principles;
(6) To pay its own liabilities and expenses only out of its own
funds;
(7) To observe all corporate and other organizational formalities;
(8) To maintain an arm's length relationship with its Affiliates and
to enter into transactions with Affiliates only on a commercially
reasonable basis;
(9) Not to assume, guarantee or become obligated for the debts of any
other entity or person;
(10) To allocate fairly and reasonably any overhead expenses that are
shared with any Affiliate, including paying for office space and services
performed by any employee of an Affiliate;
(11) To use separate stationery, invoices, and checks bearing its own
name;
(12) To hold itself out as a separate entity;
(13) To correct any known misunderstanding regarding its separate
identity;
(14) Not to guaranty or become obligated for the debts of any other
entity or hold out its credit as being available to satisfy the obligations
of others;
(15) Except in connection with the Term Loans, not to pledge the
Receivables or any of its other assets for its benefit or the benefit of
any other entity;
(16) Not to incur or assume any indebtedness except for such
indebtedness that may be incurred by the Company in connection with the
issuance of Term Loans; and
(17) To cause any of the Company's financial statements which are
consolidated with those of Creditrust to contain footnotes or other
disclosures which describe the Company's business and otherwise inform
Creditrust's creditors that the Company is a separate entity whose
creditors have a claim on its assets prior to those assets becoming
available to its equity holders and therefore to any creditors of
Creditrust or any of its Affiliates.
E. Notwithstanding anything to the contrary set forth in the Certificate
of Formation or this Agreement, the unanimous consent of all of the Members
(including the Class B Member) shall be required for the Company to:
9
(1) (a) File or consent to a voluntary petition or otherwise
initiate proceedings for the Company to be adjudicated bankrupt or
insolvent or seeking an order for relief as a debtor under the Bankruptcy
Code; (b) file or consent to the filing of, or cause the filing of, any
petition seeking any composition, bankruptcy, reorganization, readjustment,
liquidation, dissolution or similar relief for the Company under any
applicable state or federal bankruptcy laws or any other present or future
applicable federal, state or other statue or law relative to bankruptcy,
insolvency or other relief for debtors; (c) seek or consent to the
appointment of a trustee, receiver, conservator, assignee, sequestrator,
custodian, liquidator (or other similar official) of the Company or of all
or any substantial part of the properties and assets of the Company; (d)
make or consent to any general assignment for the benefit of creditors; (e)
admit in writing its inability to pay its debts generally as they become
due, or declare or effect a moratorium on its debt; or (f) take any action
in furtherance of any of the actions set forth in the preceding clauses (a)
through (e) of this paragraph; or
(2) Dissolve or liquidate, in whole or in part, consolidate or merge
with or into any other entity or convey, sell or transfer all or
substantially all of its properties or assets substantially as an entirety
to any entity; or acquire all or substantially all of the properties,
assets or capital stock or other ownership interests of any other entity;
provided, that the foregoing shall not be construed as limiting the ability
of the Company to make distributions to its members in accordance with this
Agreement; or
(3) Incur or assume any indebtedness for borrowed money except for
the indebtedness that is represented by the Bridge Loan and Term Loans (as
defined in the Bridge Loan Agreement).
By its signature below, the Class B Member acknowledges that, when voting on
whether the Company will take any action described in this Section 4.1.E, the
Class B Member shall owe its primary obligation and fiduciary duty to the
Company (including, without limitation, the Company's creditors) and not to the
Members (except to the extent as may specifically be required by applicable
law). Every Member of the Company shall be deemed to have consented to the
foregoing provisions of this Section 4.1.E, specifically and without limitation,
the waiver of his, her or its right to cause a dissolution of the Company under
applicable law by virtue of such Member's acquisition of Units of the Company
and admission to the Company as a Member.
Notwithstanding the foregoing and so long as any Term Loans remain outstanding,
the Managers shall have no authority to take any action enumerated in this
Section 4.1.E without the written consent of the Majority Lenders (as such term
is defined in the Bridge Loan Agreement).
Section 4.2 Approval of Certain Agreements and Transactions
A. Each Member, by its execution or acceptance of this Agreement,
hereby ratifies and approves the execution and delivery by the Company of, and
the performance of the obligations of the Company under, the following documents
and agreements that were executed
10
and delivered concurrently with the closing of the transactions contemplated by
the Bridge Loan Agreement and Amendment No. 1 thereto:
(1) Bridge Loan Agreement dated August 2, 1999 (the "Bridge Loan
Agreement"), by and among the Company, Creditrust, CRDT SPV99-2
Capital, Inc. ("Capital"), Norwest Bank Minnesota, National
Association (the "Administrative Agent"), and the lenders
identified therein (the "Lenders"), and Amendment No. 1 thereto;
(2) Guaranty and Collateral Agreement dated August 2, 1999, made by
the Company and Capital in favor of the Administrative Agent;
(3) Parent Guaranty and Collateral Agreement dated August 2, 1999,
made by Creditrust in favor of the Administrative Agent;
(4) Amended and Restated Servicing Agreement dated as of March 1,
2000, by and among the Company, Creditrust and the Administrative
Agent.
B. Each Member, by its execution or acceptance of this Agreement, hereby
authorizes and directs the Company to borrow money on the terms set forth in the
Bridge Loan Agreement, to issue the Term Loans to evidence such indebtedness
and, in connection therewith, grant a security interest in the Receivables to
the Administrative Agent in accordance with the terms of the Bridge Loan
Agreement.
Section 4.3 No Participation of Members in Business and Affairs of the Company.
A. No Member, in its capacity as such, shall have any authority or right
to act for or bind the Company or to participate in or have any control over
Company business, except for such rights to consent to or approve of the actions
and decisions of the Board of Managers as are expressly provided for in this
Agreement or the Certificate of Formation.
B. Except for such right and any other rights to consent to or approve of
actions and decisions of the Company expressly provided for in this Agreement,
the Class B Member shall not be entitled to vote on the election of Managers of
the Company or on any other matter submitted to a vote by the Members.
Section 4.4 Other Businesses of Members; Covenants Regarding Noncompetition and
Nondisclosure.
A. Any Member and any Affiliate of any Member may engage in or possess an
interest in other business ventures of any nature or description independently
or with others, and neither the Company nor any Member shall have any rights in
or to such independent ventures or the income or profits derived therefrom, and
such activities shall not be construed as a breach of any duty of loyalty or
other duty to the other Members or the Company.
11
B. The Class B Member, by its execution or acceptance of this Agreement,
(i) acknowledges that it may obtain information relating to the Company and
Creditrust that is of a confidential and proprietary nature ("Proprietary
Information"), including, but is not limited to, non-public trade secrets,
invention techniques, processes, programs, schematics, software source
documents, data, and financial information and (ii) agrees at all times, both
during the period in which it is a Member and for a period of three (3) years
after the complete termination of its interest in the Company as a Class B
Member for any reason (including the dissolution and termination of the
Company), keep in trust and confidence all such Proprietary Information, and
shall not use such Proprietary Information other than in connection with the
exercise of its rights under this Agreement, nor shall any Class B Member
disclose any such Proprietary Information of the Company or Creditrust without
the written consent of Creditrust unless legally required to disclose such
information. Each Class B Member further agrees to immediately return all
Proprietary Information of the Company and Creditrust (including copies thereof)
in its possession, custody, or control upon the complete termination of its
interest in the Company as a Class B Member for any reason.
C. The Class B Member acknowledges and agrees that since a remedy at law
for any breach or attempted breach of the restrictive covenants of this Section
4.4 shall be inadequate, the non-breaching party shall have the right to enforce
the provisions of this Section 4.4 by an action for specific performance and
injunctive or other equitable relief, filed in any court of competent
jurisdiction in the State of Delaware, without the necessity of proving actual
damages, in case of any such breach or attempted breach, in addition to whatever
other remedies may exist at law. The parties also waive any requirement for
securing or posting any bond in connection with obtaining any such injunctive or
other equitable relief. The parties hereto recognize that the laws and public
policies of the various states of the United States may differ as to the
validity and enforceability of agreements similar to those contained in Section
4.4. It is the intention of the parties that the provisions of this Section 4.4
shall be enforced to the fullest extent permissible under the laws and public
policies of the State of Delaware or any other jurisdiction in which enforcement
may be sought. In the event that this Section 4.4 shall be determined to be
invalid or unenforceable, either in whole or in part, Section 4.4 shall be
deemed amended to delete or modify, as necessary, the offending provisions and
to alter the balance of this Section 4.4 in order to render the same valid and
enforceable to the fullest extent permissible as aforesaid.
Section 4.5 Indemnification.
A. The Company shall indemnify (i) its Managers and Officers to the
fullest extent permitted or authorized by the laws of the State of Delaware now
or hereafter in force applied as if the Company were a Delaware corporation,
including (without limitation) the advance of expenses under the procedures,
(ii) the Class B Member and its directors, officers, employees, representatives
and agents to the fullest extent permitted or authorized by the laws of the
State of Delaware now or hereafter in force, including (without limitation) the
advance of expenses, and (iii) other employees and agents of the Company to such
extent as shall be authorized by the Board of Managers and is permitted by law.
The foregoing rights of indemnification shall not be exclusive of any other
rights to which those seeking indemnification may be entitled. The Board
12
of Managers may take such action as is necessary to carry out these
indemnification provisions and is expressly empowered to adopt, approve and
amend from time to time such resolutions or contracts implementing such
provisions or such further indemnification arrangements as may be permitted by
law. No amendment of the Certificate of Formation or this Agreement or repeal of
any of the provisions thereof shall limit or eliminate the right to
indemnification provided hereunder with respect to acts or omissions occurring
prior to such amendment or repeal. The indemnification shall (x) be payable
solely from the assets of the Company and no Member shall have any personal or
corporate liability therefor and (y) be expressly subordinate to any obligations
of the Company on or with respect to the Term Loans.
B. To the fullest extent permitted by Delaware statutory or decisional
law, as amended or interpreted, no Manager, Officer or Class B Member of the
Company shall be personally liable to the Company or any Members for money
damages. No amendment of the Certificate of Formation or this Agreement, or
repeal of any of their respective provisions shall limit or eliminate the
limitation on liability provided to Managers, Officers and Class B Members
hereunder with respect to any act or omission occurring prior to such amendment
or repeal.
ARTICLE V
RESTRICTIONS ON TRANSFERS OF UNITS AND
WITHDRAWALS BY MEMBERS
Section 5.1 Transfer of Units.
A. Except as provided in this Section 5.1, (i) no Class A Member shall
endorse, sell, give, assign, transfer or otherwise dispose of, voluntarily or
involuntarily or by operation of law (hereinafter referred to as "Transfer") all
or any part of such Class A Member's Units without the prior written consent of
the Board of Managers and (ii) prior to the date on which all Term Loans have
been satisfied in full, without the prior written consent of the Majority
Lenders (as such term is defined in the Bridge Loan Agreement).
B. Any Class A Member may sell or assign (for any consideration or no
consideration) all of its Units to an Affiliate of the Class A Member that (i)
holds 100% of the ownership and effective control over the transferring Class A
Member, (ii) 100% of the ownership and effective control over which is held by
the transferring Class A Member or (iii) is under common 100% control with the
transferring Class A Member. A permitted transferee of a Class A Member under
this Section 5.1.B shall be admitted to the Company as a substitute Class A
Member with respect to the Units transferred to it upon the satisfaction of all
of the following conditions:
(i) an executed or authenticated copy of the written instrument of
assignment or Transfer is delivered to the Company;
13
(ii) the transferor Class A Member grants to the transferee the
right to be admitted to the Company as a substitute Class A Member;
(iii) the transferee agrees to be bound by all of the terms of this
Agreement by executing a counterpart signature page to this Agreement; and
(iv) the Units acquired by the transferee consist of all the Units
of the transferor Class A Member in the Company.
C. No Class B Member shall have any right to assign or Transfer any of
its rights under this Agreement and any purported assignment or Transfer shall
be void ab initio, unless consented to by the Majority Lenders and the Class A
Member.
Section 5.2 Additional Restrictions on Transfers
A. The Units described in this Agreement have not been registered under
the Securities Act of 1933, as amended (the "1933 Act") or under the securities
laws of the State of Delaware or any other jurisdiction (the "State Acts").
Consequently, in addition to any and all other restrictions on transferability
set forth herein, the Units may not be sold, assigned, pledged, hypothecated or
otherwise disposed of or Transferred, except in accordance with the provisions
of the 1933 Act and the State Acts.
B. In addition to any and all other restrictions on Transfers set forth
herein, no Units may be sold, assigned, pledged, hypothecated or otherwise
disposed of if such Transfer would cause or result in an Event of Default under
the Bridge Loan Agreement.
Section 5.3 Withdrawal or Removal of Members.
A. No Class A Member shall have any right to withdraw from the Company as
a Member without the prior consent of the Board of Managers.
B. At any time after the date that is 100 days following the date on
which all Term Loans have been paid in full, the Class B Member may withdraw as
a Member by delivery of written notice to the Company, effective immediately
upon delivery of such written notice. At any time prior to such date, the Class
B Member may only withdraw upon the first to occur of (i) 90 days after the date
on which written notice of its withdrawal is delivered to the Company and the
Lenders (as defined in the Bridge Loan Agreement) or (ii) the admission of a
substitute Class B Member selected by the Board of Managers with the consent of
the Majority Lenders (such consent not to be unreasonably withheld, conditioned
or delayed). Upon the withdrawal of the Class B Member hereunder, the Class B
Member shall, except for the indemnification provisions of Section 4.5 hereof,
have no further rights under this Agreement.
C. At any time after the date that is 100 days following the date on
which all Term Loans have been paid in full, the Board of Managers may remove
the Class B Member as a member of the Company by delivery of written notice
thereof to the Class B Member. Upon the
14
sending of such notice, the Class B Member shall automatically and without the
requirement of any further action by the Company or any other Member, be deemed
to have withdrawn from the Company as a Member and, except for the
indemnification provisions of Section 4.5 hereof, shall have no further rights
under this Agreement.
Section 5.4 Effect of Bankruptcy, Dissolution, Liquidation or Termination of a
Member.
The bankruptcy, dissolution, liquidation or termination of a Member shall
not cause a termination or dissolution of the Company, and the business of the
Company shall continue. Upon any such occurrence with respect to a Class A
Member, the trustee, receiver, executor, administrator, committee or conservator
of such Class A Member shall have only the rights of an assignee of the Units of
the former Class A Member for the purpose of settling or managing the former
Class A Member's estate or property. The Transfer by such trustee, receiver,
executor, administrator, committee or conservator of any Unit shall be subject
to all of the restrictions hereunder to which such Transfer would have been
subject if such Transfer had been made by the bankrupt, dissolved, liquidated or
terminated Class A Member.
ARTICLE VI
DISSOLUTION OF THE COMPANY
Section 6.1 Dissolution
A. The Company shall not dissolve and terminate prior to the date that is
one year and one day after the date on which all Term Loans have been paid in
full. At any time thereafter, the Company may be dissolved by action of the
Board of Managers.
B. The Company shall not be dissolved upon a person ceasing to be a
Member, including the occurrence, with respect to any Member, of any of the
events specified under Section 18-801(b) of the LLC Act.
Section 6.2 Liquidation and Termination.
A. Upon the dissolution of the Company, the Officers and Managers of the
Company shall cause the Company to liquidate by converting the assets of the
Company to cash or its equivalent and arranging for the affairs of the Company
to be wound up with reasonable speed but with a view towards obtaining fair
value for Company assets, and, after satisfaction (whether by payment or by
establishment of reserves therefor) of creditors shall distribute the remaining
assets to and among the Class A Members in accordance with the provisions of
Section 3.5 hereof.
B. Each Member shall look solely to the assets of the Company for all
distributions with respect to the Company and such Member's capital contribution
thereto and share of profits,
15
gains and Losses thereof and shall have no recourse therefor (upon dissolution
or otherwise) against any other Member.
ARTICLE VII
BOOKS AND RECORDS; ACCOUNTING,
TAX ELECTIONS, ETC.
Section 7.1 Books, Records and Reports.
A. The Company shall keep correct and complete books and records of its
accounts and transactions and minutes of the proceedings of its Members and
Board of Managers and of any executive or other committee when exercising any of
the powers of the Board of Managers. The books and records of the Company may
be in written form or in any other form which can be converted within a
reasonable time into written form for visual inspection. Minutes shall be
recorded in written form, but may be maintained in the form of a reproduction.
The original or a certified copy of this Agreement shall be kept at the
principal office of the Company. The books and records of the Company shall be
maintained by the Secretary of the Company and shall be available for
examination by any Member, or its duly authorized representatives, during
regular business hours.
B. The President or chief financial officer shall prepare or cause to be
prepared and shall furnish to the Members within ninety (90) days of the end of
each fiscal year (i) a balance sheet and report of the receipts, disbursements,
Profits or Loss of the Company, and each Member's share of such items for the
fiscal year, and (ii) information sufficient for the Members to report their
respective shares of the profits and losses of the Company for income tax
purposes. The cost of such financial and tax reports shall be an expense of the
Company.
Section 7.2 Bank Accounts Checks, Drafts, Etc.
The bank accounts of the Company shall be maintained in accounts in the
name of and under the tax identification number for the Company in such banking
institutions as the Managers shall determine. All checks, drafts and orders for
the payment of money, notes and other evidences of indebtedness, issued in the
name of the Company, shall be signed by such Officers as may be authorized by
the Board of Managers from time to time.
Section 7.3 Fiscal Year; Methods of Accounting.
The fiscal year of the Company shall be the year ending December 31, unless
otherwise determined by the Board of Managers. The method of accounting to be
used in keeping the books of the Company shall be determined by the Board of
Managers in accordance with applicable law.
16
Section 7.4. Tax Matters Partner.
If, at any time, the Company has more than one Member and is required to
identify one of the Members as the "Tax Matters Partner" of the Company for
federal income tax purposes, Creditrust shall be designated as the Tax Matters
Partner. If the Company receives from the Internal Revenue Service a Final
Company Administration Adjustment pursuant to Section 6223 of Code, the Tax
Matters Partner agrees to notify the Members of such receipt within ten (10)
days thereof. If it is determined to seek judicial review of such IRS action
pursuant to Section 6226 of Code, then the Tax Matters Partner shall select the
judicial forum for such review in accordance with the recommendation of counsel.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1 Binding Provisions.
The covenants and agreements contained herein shall be binding upon and
inure to the benefit of the successors and assigns of the respective parties
hereto. The Lenders under the Bridge Loan Agreement shall be third party
beneficiaries hereof.
Section 8.2 Separability of Provisions.
Each provision of this Agreement shall be considered separable and if for
any reason any provision or provisions herein are determined to be invalid and
contrary to any existing or future law, such invalidity shall not impair the
operation of or affect any other provisions of this Agreement.
Section 8.3 Rules of Construction.
Unless the context clearly indicates to the contrary, the following rules
apply to the construction of this Agreement:
(i) References to the singular include the plural, and references
to the plural include the singular.
(ii) Words of the masculine gender include correlative words of the
feminine and neuter genders.
(iii) The headings or captions used in this Agreement are for
convenience of reference and do not constitute a part of this Agreement,
nor affect its meaning, construction, or effect.
17
(iv) References to a person include any individual, corporation,
partnership, limited liability company, joint venture, association, joint
stock company, trust, unincorporated organization or government or agency
or political subdivision thereof.
(v) Any reference in this Agreement to a particular "Article,"
"Section" or other subdivision shall be to such Article, Section or
subdivision of this Agreement unless the context shall otherwise require.
(vi) Any use of the word "including" in this Agreement shall not be
construed as limiting the phrase so modified to the particular items or
actions enumerated.
(vii) When any reference is made in this document or any of the
schedules or exhibits attached to the Agreement, it shall mean this
Agreement, together with all other schedules and exhibits attached hereto,
as though one document.
Section 8.4 Applicable Law.
This Agreement shall be construed and enforced in accordance with the laws
of the State of Delaware, without regard to conflict of law principles.
Section 8.5 Entire Agreement; Amendments.
A. This Agreement constitutes the entire agreement of the parties hereto
with respect to the subject matter hereof.
B. This Agreement and the Certificate of Formation may be modified,
altered, changed, repealed or amended only pursuant to a written amendment
adopted by the Board of Managers and approved by Class A Members holding a
majority of the Units. Once an amendment to this Agreement and/or the
Certificate of Formation has been adopted as provided in this Section 8.5, the
proper Officers of the Company shall authorize the preparation and filing, if
necessary, of a written amendment to this Agreement and/or the Certificate of
Formation, as applicable.
C. Notwithstanding the foregoing, so long as any Term Loans are
outstanding, neither this Agreement nor the Certificate of Formation may be
modified, altered, changed, repealed or amended without the prior consent of (i)
the Class B Member and (ii) the Majority Lenders (as such term is defined in the
Bridge Loan Agreement). Each Member and Manager agrees that it shall not cause
or permit any action to be taken to amend this Agreement or the Certificate of
Formation in contravention of this Section 8.5.C.
Section 8.6 Covenant of Members Regarding Bankruptcy Petition.
Each Member hereby covenants and agrees, for itself and its Affiliates,
that prior to the date that is one year and one day after the date on which all
Term Loans have been satisfied in full, the Member shall not, directly or
indirectly, file or consent to a voluntary petition or
18
otherwise initiate proceedings for the Company to be adjudicated bankrupt or
insolvent or seeking an order for relief as a debtor under the Bankruptcy Code
or file or consent to the filing of, or cause the filing of, any petition
seeking any composition, bankruptcy, reorganization, readjustment, liquidation,
dissolution or similar relief for the Company under any applicable state or
federal bankruptcy laws or any other present or future applicable federal, state
or other statue or law relative to bankruptcy, insolvency or other relief for
debtors.
Section 8.7 Counterparts.
This Agreement may be executed in several counterparts and all so executed
shall constitute one agreement binding on all parties hereto, notwithstanding
that all the parties have not signed the original or the same counterpart. Any
counterpart hereof signed by a party against whom enforcement of this Agreement
is sought shall be admissible into evidence as an original hereof to prove the
contents hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE FOLLOWS]
19
IN WITNESS WHEREOF, the undersigned have executed or caused this Amended
and Restated Limited Liability Company Agreement of Creditrust SPV99-2, LLC,
effective as of the day and year first above written.
WITNESS: MEMBER:
-------- -------
CLASS A MEMBER:
---------------
CREDITRUST CORPORATION
_____________________________ By: ______________________________________
Xxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
CLASS B MEMBER:
---------------
GSS HOLDINGS II, INC.
_____________________________ By: ______________________________________
Name:
Title:
_______________________________________________________________________________
IDENTIFICATION OF SCHEDULES AND EXHIBITS
----------------------------------------
Schedules
---------
A Names, Addresses, Units and Capital Contributions of Members
Exhibits
--------
A Certificate of Formation
B By-Laws
20
================================================================================
LIMITED LIABILITY COMPANY AGREEMENT
OF
CREDITRUST SPV99-2, LLC
Names, Addresses, Units and Capital Contributions of Members
Schedule A
----------
================================================================================
=====================================================================
Name and Address of Capital Contributions Units
Member
---------------------------------------------------------------------
CLASS A MEMBER
--------------
Creditrust Corporation $1,000 100 Units
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
---------------------------------------------------------------------
CLASS B MEMBER NA None
--------------
GSS Holdings II, Inc.
00 Xxxx 00/xx/ Xxxxxx, Xxxxx
000
Xxx Xxxx, Xxx Xxxx 00000
=====================================================================
21
