OPERATING AGREEMENT OF RENT-A-CENTER ADDISON, L.L.C., a Delaware Limited Liability Company
Exhibit 3.17
THE MEMBERSHIP INTERESTS REPRESENTED HEREBY (OR BY CERTIFICATES IF ANY ARE ISSUED) HAVE BEEN
ACQUIRED FOR INVESTMENT AND WERE ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (“SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE INTERESTS MAY NOT BE
SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED AT ANY TIME EXCEPT IN ACCORDANCE WITH THE
RESTRICTIONS CONTAINED IN THIS AGREEMENT AND PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAW OR IN THE EVENT THE COMPANY HAS RECEIVED
AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO IT THAT SUCH TRANSFER DOES NOT REQUIRE
REGISTRATION UNDER ANY APPLICABLE LAWS.
This OPERATING AGREEMENT of RENT-A-CENTER ADDISON, L.L.C. (hereinafter, “Agreement”) dated
effective as of December 4, 2003, is adopted by Rent-A-Center Texas, L.P., a Texas limited
partnership (“RAC Texas”), as the sole Member.
ARTICLE I
DEFINITIONS
The following terms, when used in this Agreement, shall have the respective meanings assigned
to them in this Article unless the context otherwise requires:
Act means the Delaware Limited Liability Company Act, as amended (or the corresponding
provisions of any successor act).
Additional Capital Contribution shall have the meaning set forth in Section 5.2.
Affiliate means any Person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with, another Person. The
term “control,” as used in the immediately preceding sentence, means the possession, directly or
indirectly, of the power, directly or indirectly, to direct or cause the direction of the
management or policies of the controlled Person through the ownership of at least ten percent (10%)
of the voting rights attributable to the equity interests in such Person.
Article means any article in this Agreement.
Board means the Managers of the Company from time to time appointed by the Member.
Capital Contribution means any contribution by the Member to the capital of the
Company and includes Initial Capital Contributions and Additional Capital Contributions.
Certificate means the Certificate of Formation of the Company filed with the Secretary
of State of Delaware.
Code means the Internal Revenue Code of 1986, as amended (or any corresponding
provisions of any successor statute).
Company means Rent-A-Center Addison, L.L.C., the limited liability company created
pursuant to Certificate and governed by this Agreement.
DGCL means the Delaware General Corporation Law and any successor statute, as amended
from time to time.
Initial Capital Contribution shall have the meaning set forth in Section 5.1.
IRS Regulations means the U.S. Treasury Regulations promulgated under the Code, as may
be amended from time to time (including corresponding provisions of successor IRS Regulations).
Manager means any Person named in the Certificate as the initial manager(s) of the
Company and any Person hereafter elected as a manager serving on the Board as provided in this
Agreement, but does not include any Person who has ceased to be a Manager of the Company.
Member means RAC Texas so long as it shall continue as a member hereunder.
Membership Interest means a Member’s interest, expressed as a percentage in
Section 4.1, in the voting rights and distributions of the Company as may be affected by
the provisions of this Agreement and as may hereafter be adjusted.
Person shall have the meaning given that term in Section 18-101(12) of the Act.
Proceeding shall have the meaning set forth in Section 10.1.
Related Party of a party means (i) any Person (and any of such Person’s related
parties) that is an Affiliate of such party or that otherwise directly or indirectly owns, is owned
by, or is under common ownership with such party, (ii) an officer, director or employee of such
party or (iii) a family member of such party.
Section means any section or subsection in this Agreement.
Securities Act shall have the meaning set forth in the legend on the first page of
this Agreement.
Transfer means the sale, transfer, gift, conveyance, assignment, pledge,
hypothecation, mortgage or other encumbrance or disposition of all or any part of a Membership
Interest.
UCC means the Uniform Commercial Code as in effect in the State of Delaware.
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ARTICLE II
ORGANIZATION
2.1 Formation.
(a) The Company has been organized as a Delaware limited liability company by the
filing of the Certificate under and pursuant to the Act and the issuance of a certificate
of limited liability company for the Company by the Secretary of State of Delaware.
(b) The rights and liabilities of the Member shall be as provided in the Act, except
as may be expressly provided otherwise herein. Prior to transacting business in any
jurisdiction other than the State of Delaware, the Company shall qualify to do business in
such other jurisdiction if such a procedure is provided by statute or regulation in such
other jurisdiction.
(c) The Member’s Membership Interest in the Company shall be personal property for all
purposes. Other than for federal income tax purposes and applicable provisions of state tax
laws, all real and other property owned by the Company shall be deemed owned by the Company
as an entity and the Member, individually, shall not have any ownership of such property.
2.2 Name. The name of the Company is “Rent-A-Center Addison, L.L.C.” and all Company
business must be conducted in that name or such other names that comply with applicable law as the
Board may select from time to time.
2.3 Offices. The registered office of the Company in the State of Delaware shall be
the office of the initial registered agent named in the Certificate or such other office (which
need not be a place of business of the Company) as the Board may designate from time to time in the
manner provided by law. The registered agent of the Company in the State of Delaware shall be the
initial registered agent named in the Certificate or such other Person or Persons as the Board may
designate from time to time in the manner provided by law. The principal office of the Company
shall be at 0000 Xxxxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxx, Xxxxx 00000 or such other place as the Board
shall designate from time to time, and the Company shall maintain records there as required by the
Act. The Company may have such other offices as the Board may designate from time to time.
2.4 Term. The Company shall commence on the date the Secretary of State of the State
of Delaware issued a certificate of limited liability company and shall continue in existence for
the period fixed in the Certificate.
2.5 Mergers and Exchanges. The Company may be a party to (a) a merger, (b) an exchange
or acquisition of the type described in Section 18-209 of the Act, or (c) a conversion of the type
described in Section 18-214 of the Act.
2.6 No Partnership. The Member intends that the Company not be treated as or construed
to be a partnership (including a limited partnership) or joint venture for purposes of the
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laws of any state, and that, in the event that the Company is or becomes owned by more than one
Member, no Member thereafter will be treated as a partner or joint venturer of any other Member,
for any purposes from and after such date, other than for purposes of applicable United States tax
laws and applicable provisions of state tax laws, and this Agreement may not be construed to
suggest otherwise. For federal income tax purposes and applicable provisions of state tax laws, as
of the date hereof and until such time as the Company becomes owned by more than one Member, the
Company and the Member desire and intend that the Company be disregarded as an entity separate from
the Member.
ARTICLE III
PURPOSES AND POWERS
3.1 Purpose of the Company. The purpose for which the Company is organized is to
engage in any lawful business activities permitted to limited liability companies by the Act.
3.2 Powers of the Company. The Company purposes set forth in Section 3.1
hereof may be accomplished by taking any action which is permitted under the Act and which is
customary or directly related to the business of the Company and the Company shall possess and may
exercise all the powers and privileges necessary or convenient to the conduct, promotion or
attainment of the business, purposes or activities of the Company.
ARTICLE IV
MEMBERSHIP
4.1 Member. The initial and sole Member of the Company is RAC Texas, whose Membership
Interest is 100%.
4.2 Liability to Third Parties. Except as may be expressly provided in a separate,
written guaranty or other agreement executed by the Member or the Board, neither the Member nor any
Manager of the Board shall be liable for the debts, obligations or liabilities of the Company,
including under a judgment, decree or order of a court.
4.3 Lack of Authority. Except as otherwise provided herein, the Member shall not have
the authority or power to act for or on behalf of or bind the Company or to incur any expenditures
on behalf of the Company.
4.4 Action by Written Consent.
(a) Any action required or permitted to be taken at any annual or special meeting of
the Member may be taken without a meeting, without prior notice, and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by the Member and
delivered to the Board. A telegram, telex, cablegram or similar transmission by the Member,
or a photographic, photostatic, facsimile or similar reproduction of a writing signed by the
Member, shall be regarded as signed by the Member for purposes of this Section 4.4.
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(b) If any action by the Member is taken by written consent, any certificate or
documents filed with the Secretary of State of Delaware as a result of the taking of the
action shall state, in lieu of any statement required by the Act or the DGCL concerning any
vote of the sole Member, that written consent has been given in accordance with the
provisions of the Act and the DGCL and that any written notice required by the Act and the
DGCL has been given.
ARTICLE V
CONTRIBUTIONS
5.1 Initial Contributions. The Member shall make an initial capital contribution to
the Company of cash in an amount equal to one thousand dollars ($1,000).
5.2 Additional Capital Contributions. From time to time the Member may agree to
contribute additional cash and/or property to the Company to fund the continued operations or
activities of the Company. All additional contributions of cash and/or property contemplated by
this Section 5.2 are hereinafter collectively referred to as “Additional Capital
Contributions.”
5.3 Loans by a Member.
(a) If any additional funds are required for additional working capital to operate
the Company, then, in lieu of borrowing funds from unaffiliated lenders or the Member
otherwise making Additional Capital Contributions, the Board may cause the Company to
borrow from the Member such amounts as may reasonably be required and as are necessary to
operate the Company as shall be determined by the Board. Nothing herein shall obligate the
Member to make any such loans to the Company.
(b) Any loans made to the Company by the Member shall be upon such terms and for such
maturities as the Board and the Member deem reasonable in view of all the facts and
circumstances. Any loans made to the Company by the Member shall be a debt of the Company.
The Company shall be required to execute such documents as may be deemed reasonably
necessary, desirable or required by the Member as a condition to such financing. All loans,
including both principal and interest, so made by the Member to the Company, shall be
repaid out of the Company’s funds as the same become available.
5.4 Interest. No interest shall be paid by the Company on any Capital Contributions or
Additional Capital Contributions by the Member.
5.5 Return of Capital. The Member shall not be entitled to have any Capital
Contribution or Additional Capital Contribution returned to it or to receive any distributions from
the Company except in accordance with the express provisions of this Agreement. No unrepaid Capital
Contribution or Additional Capital Contribution shall be deemed or considered to be a liability of
the Company, any Manager or the Member.
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ARTICLE VI
TAX MATTERS
6.1 Tax Matters. For United States federal income tax and all applicable state and
local income tax purposes, as of the date hereof and until the Company is owned by more than one
Member, RAC Texas shall take into account all income, gains, losses, deductions and credits of the
Company directly on its federal, state and local income tax returns as if the Company were RAC
Texas. The Member shall compile or cause to be compiled the Company’s financial results and
information and reflect such results and information directly on its federal, state and local
income tax returns. In addition, the Company shall separately prepare such other federal, state and
local tax returns and reports as it may desire or as may otherwise be required to cause the Company
to comply with applicable laws and regulations.
ARTICLE VII
DISTRIBUTIONS
7.1 Distributions. From time to time the Board shall determine in their reasonable
judgment to what extent (if any) the Company’s cash on hand exceeds its current and anticipated
needs, including, without limitation, for capital expenditures, operating expenses, debt service,
and a reasonable contingency reserve. If such an excess exists, the Board may cause the Company to
distribute to the Member an amount equal to or less than such excess.
7.2 Accounting Matters.
(a) The fiscal year of the Company shall be the calendar year, with the first fiscal
year of the Company ending on December 31, 2003. The books and records of account of the
Company shall be, at the expense of the Company, (i) kept, or caused to be kept, by the
Company at the principal place of business of the Company, (ii) reflect all Company
transactions, and (iii) appropriate and adequate for conducting the Company business.
(b) Company books and records (including all files and documents), as well as any
tangible assets of the Company, will be available for inspection by the Member or the
Member’s duly authorized representative (at the expense of the Member) during business hours
at (in the case of books and records) the principal office of the Company or (in the case of
tangible assets) the place where such assets are physically located. The Member may request
an audit of the Company’s books and records.
(c) Each Person who inspects the books and records of the Company shall maintain the
confidentiality of the information received pursuant to or in connection with such
inspection; provided that this provision shall not apply to such information that is or
becomes generally available to the public or is required to be disclosed pursuant to a valid
subpoena or court order or applicable governmental regulations, rules or statutes.
7.3 Maintenance of Books. The Company shall keep minutes of the proceedings of
the Board and each committee (if any) of the Board.
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ARTICLE VIII
BOARD AND OFFICERS
8.1
Management by the Board. Except for situations in which the approval of the Member
is required by non-waivable provisions of applicable law, and subject to the provisions of
Section 8.2, (i) the powers of the Company shall be exercised by or under the authority of,
and the business and affairs of the Company shall be managed under the direction of, the Board, and
(ii) the Board may make all decisions and take all actions for the Company not otherwise provided
for in this Agreement, including, without limitation, the following:
(i) acquire, hold, manage, sell, exchange, lease or otherwise dispose
of all property of the Company, real, personal and mixed, in the Company’s name,
or in the name of a nominee or trustee for the Company;
(ii) contract on behalf of the Company and execute and deliver on
behalf of and in the name of the Company or in the name of a nominee or trustee
for the Company, contracts, agreements, leases, mortgages, bills of sale,
guaranties, indemnities, assignments, security agreements, certificates and
assumed name certificates, and any and all other documents or instruments
necessary, advisable or incidental to the conduct of the Company’s business or the
performance of the Board’s duties or the exercise of the powers of the Board
hereunder;
(iii) perform, manage and contract for all accounting, clerical and
ministerial functions of the Company, employ or engage such accountants,
attorneys, brokers, agents and other management or service personnel and
employees of or for the Company and generally incur such costs and expenses as
may from time to time be required to carry on the business of the Company;
(iv) collect and disburse all monies of the Company and establish,
maintain and supervise the deposit and withdrawal of funds of the Company and
bank accounts of the Company;
(v) to the extent that funds of the Company are available therefor, pay
debts and obligations of the Company;
(vi) procure and maintain such insurance as may be available in such
amounts and covering such risks as are deemed appropriate by the Board;
(vii) borrow money and refinance, extend or rearrange any Company
loans, and pledge, mortgage, hypothecate, encumber and grant security interests
in Company property and assets to secure the payment of Company borrowings;
(viii) reinvest Company revenues for any valid purpose of the Company;
(ix) compromise claims and institute or defend law suits;
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(x) exercise all powers of the Company and make all decisions with
respect to its business and the conduct of its business, subject to the Act and
this Agreement; and
(xi) take any and all other action that may be necessary, appropriate or
advisable in furtherance of the purposes of the Company;
provided, however, that nothing contained in this Agreement shall obligate the Board to take any
action on behalf of the Company that the Board deems (i) not in the best interests of the Company,
or (ii) not reasonably necessary to accomplish the intended business of the Company.
8.2
Actions by the Board; Committees; Delegation of Authority and Duties.
(a) In managing the business and affairs of the Company and exercising its powers, the Board
shall act (i) collectively through meetings and written consents pursuant to Sections 8.5
and 8.7; (ii) through committees pursuant to
Subsection 8.2(b); and (iii) through
any Manager to whom authority and duties have been delegated pursuant to Subsection 8.2(c).
(b) The Board may, from time to time, designate one or more committees, each of which shall be
comprised of one or more Managers. Any such committee, to the extent provided in such resolution or
in the Certificate or this Agreement, shall have and may exercise all of the authority of the
Board, subject to the limitations set forth in the Act and the DGCL. At every meeting of any such
committee, the presence of a majority of all the committee members shall constitute a quorum, and
the affirmative vote of a majority of the committee members present shall be necessary for the
adoption of any resolution. The Board may dissolve any committee at any time unless otherwise
provided in the Certificate or this Agreement.
(c) Any Person dealing with the Company, other than the Member, may rely on the authority of
any Manager or officer of the Company in taking any action in the name of the Company without
inquiry into the provisions of this Agreement or compliance herewith, regardless of whether that
action actually is taken in accordance with the provisions of this Agreement.
8.3 Number and Term of Office of Managers.
(a) The number of Managers of the Board shall be determined from time to time by the Member;
provided, however, that in no event shall there be more than five (5) or less than two (2)
Managers. If the Member makes no such determination, the number of Managers shall correspond to the
number of Managers named in Subsection 8.3(b). Each Manager shall initially hold office
until his or her successor has been elected and qualifies, or until his or her earlier death,
resignation or removal in accordance with the Act and this Agreement. Unless otherwise provided in
the Certificate, a Manager need not be a Member or resident of the State of Delaware.
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(b) The initial Managers of the Company shall be Xxxx X. Xxxxxx and Xxxxxxxx X. Xxxxx.
8.4 Removal; Vacancies; Resignation of Managers. Any Manager may be removed, with or
without cause, by the Member. Any vacancy occurring in the Board may
be filled by the Member. Any
Manager may resign at any time. Such resignation shall be made in writing and shall take effect at
the time specified therein, or if no time be specified, at the time of its receipt by the Board and
the Member. The acceptance of a resignation shall not be necessary to make it effective, unless
expressly so provided in the resignation.
8.5 Meetings of the Board.
(a) Unless otherwise required by law or provided in the Certificate or this Agreement,
a majority of the Managers of the Board fixed by, or in the manner provided in, the
Certificate or this Agreement shall constitute a quorum for the transaction of business of
the Board, and the act of a majority or more of the Managers of the Board fixed by, or in
the manner provided in, this Agreement shall be the act of the Managers (unless this
Agreement, the Certificate, the Act or other applicable law requires the approval of a
greater number of the Managers of the Board for such action).
(b) Meetings of the Board shall be held at the Company’s principal place of business or
at such other place or places as shall be determined from time to time by the Board. At all
meetings of the Board, business shall be transacted in such order as shall from time to time
be determined by the Board. Attendance of a Manager at a meeting shall constitute a waiver
of notice of such meeting, except where a Manager attends a meeting for the express purpose
of objecting to the transaction of any business on the ground that the meeting is not
lawfully called or convened.
(c) Regular meetings of the Board shall be held at such times and places as shall be
designated from time to time by the Board. Notice of such regular meetings shall not be
required.
(d) Special meetings of the Board may be called by any Manager on at least two business
days’ notice to each other Manager, together with a reasonably detailed statement of the
purpose or purposes of, and the business to be transacted at, such meeting.
8.6 Approval or Ratification of Acts or Contracts by the Member. The Board in its
discretion may submit any act or contract for approval or ratification by the Member, and any act
or contract that shall be approved or be ratified by the Member shall be as valid and as binding
upon the Company and upon the Member as if it shall have been approved in the first instance.
8.7 Action by Written Consent or Telephone Conference. Any action permitted or
required by the Act, the DGCL, the Certificate or this Agreement to be taken at a meeting of the
Board or any committee designated by the Board may be taken without a meeting if a consent in
writing, setting forth the action to be taken, is signed by the Managers or committee members, as
the case may be, having not fewer than the minimum votes that would be necessary to take the action
at a meeting at which all Managers or committee members, as the case may be, entitled to
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vote on the action were present and voted. Such consent shall have the same force and effect as a
unanimous vote at a meeting and may be stated as such in any document or instrument filed with the
Secretary of State of Delaware, and the execution of such consent shall constitute attendance or
presence in person at a meeting of the Board or any such committee, as the case may be. Subject to
the requirements of the Act, the DGCL, the Certificate or this Agreement for notice of meetings,
unless otherwise restricted by the Certificate, the Board, or members of any committee designated
by the Board, may participate in and hold a meeting of the Board or any committee of the Board, as
the case may be, by means of a conference telephone or similar communications equipment by means of
which all Persons participating in the meeting can hear each other, and participation in such
meeting shall constitute attendance and presence in person at such meeting, except where a Person
participates in the meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
8.8 Compensation. Managers of the Board as such shall not receive any stated salary
for their service in the capacity of Managers, but by resolution of the Board, a fixed sum and
reimbursement for reasonable expenses of attendance, if any, may be allowed for attendance at each
regular or special meeting of the Board or at any meeting of the executive committee of Board, if
any, to which such Manager may be elected; but nothing herein shall preclude any Manager from
serving the Company in any other capacity or receiving compensation therefor.
8.9 Officers.
(a) The Board may, from time to time, designate and remove one or more persons as
officers of the Company and assign titles to particular officers. An officer may be, but no
officer need be, a resident of the State of Delaware, a Member or a Manager. Any officers so
designated shall have such authority and perform such duties as provided in this Agreement
or as the Board may, from time to time, delegate to them. Unless otherwise provided in this
Agreement or unless the Board decides otherwise, if an officer’s title is one commonly used
for officers of a business corporation formed under the DGCL, the assignment of such title
to an officer of the Company shall constitute the delegation to such person of the authority
and duties provided in this Agreement and the authority and duties that would be held by a
person with such title in a business corporation formed under the DGCL.
(b) The initial officers of the Company may consist of a President, one or more Vice
Presidents, a Secretary and Treasurer and, in addition, such other officers and assistant
officers and agents as may be deemed necessary or desirable. Officers shall be elected or
appointed by the Board in accordance with this Agreement, including, but not limited to the
provisions set forth below.
(c) Any two or more offices may be held by the same person. In their discretion, the
Board may leave any office unfilled. A vacancy in any office for any reason may be filled by
the Board. Each officer shall hold office until his or her successor has been chosen and
qualifies, or until his or her death, resignation, or removal.
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(d) Any officer may resign as such at any time. Such resignation shall be made in
writing and shall take effect at the time specified therein, or if no time be specified, at
the time of its receipt by the Board. The acceptance of a resignation shall not be necessary
to make it effective, unless expressly so provided in the resignation. Any officer may be
removed as such, either with or without cause, by the Board whenever in their judgment the
best interests of the Company will be served thereby; provided, however, that such removal
shall be without prejudice to the contract rights, if any, of the person so removed.
Designation of an officer shall not of itself create contract rights.
(e) The following officers of the Company shall have such powers and duties, except as
modified by the Board, as generally pertain to their offices, respectively, as well as such
powers and duties as from time to time shall be conferred by the Board and by this
Agreement:
(i) The President. The President of the Company shall be the
Company’s chief executive officer and, subject to the control of the Board, shall
have the responsibility for the general direction of the affairs of the Company, and
general supervision over its several other officers. The President may sign and
execute in the name of the Company (i) all contracts or other instruments
authorized by the Board, and (ii) all contracts or instruments in the usual and
regular course of business, except in cases when the signing and execution thereof
shall be expressly delegated or permitted by the Board or by this Agreement to
some other officer or agent of the Company, and, in general, shall perform all
duties incident to the office of chief executive officer and such other duties as
from time to time may be assigned to him by the Board or as are prescribed by
this Agreement.
(ii) The Vice Presidents. At the request of the President, or in his or
her absence or disability, the Vice Presidents, 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 restrictions upon, the President. Any action taken by a
Vice President in the performance of the duties of the President shall be
conclusive evidence of the request by the President to so act. The Vice Presidents
shall perform such other duties as may, from time to time, be assigned to them by
the Board or the President. A Vice President may sign, with the Secretary or an
Assistant Secretary, any or all certificates representing Membership Interests, as
such certificates are described in Article IX. A Vice President may be designated
as the “Chief Financial Officer” of the Company. In such capacity, such Vice
President will be responsible for all financial matters of the Company.
(iii) Secretary. The Secretary shall keep the minutes of all meetings of
the Member, the Board and of the executive committee, if any, of the Board, in
one or more books provided for such purpose and shall see that all notices are
duly given in accordance with the provisions of this Agreement or as required by
law. The Secretary shall be custodian of the corporate records and of the seal (if
any) of the Company and see, if the Company has a seal, that the seal of the
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Company is affixed to all documents the execution of which on behalf of the Company under
its seal is duly authorized; shall have general charge of the minute books, transfer books
and certificate of Membership Interest ledgers, and such other books and papers of the
Company as the Board may direct; and in general shall perform all duties and exercise all
powers incident to the office of the Secretary and such other duties and powers as the Board
or the President from time to time may assign to or confer on the Secretary.
(iv) Treasurer. The Treasurer shall keep complete and accurate records of
account, showing at all times the financial condition of the Company. The
Treasurer shall be the legal custodian of all money, notes, securities and other
valuables which may from time to time come into the possession of the Company.
The Treasurer may be designated as the “Chief Financial Officer” of the
Company. In such capacity, the Treasurer will be responsible for all financial
matters of the Company. The Treasurer shall furnish at meetings of the Board, or
whenever requested, a statement of the financial condition of the Company, and
shall perform such other duties as this Agreement may require or the Board or the
president may prescribe.
(v) Assistant Officers. Any Assistant Secretary or Assistant Treasurer
appointed by the Board shall have the power to perform, and shall perform, all duties
incumbent upon the Secretary or Treasurer of the Company, respectively,
subject to the general direction of such respective officers, and shall perform such
other duties as this Agreement may require or the Board or the President may
prescribe.
(f) The salaries or other compensation of the officers, if any, shall be fixed from
time to time by the Board. No officer shall be prevented from receiving such salary or other
compensation by reason of the fact that such officer is also a Manager of the Company.
(g)
The Board may secure the fidelity of any officer of the Company by bond or
otherwise, on such terms and with such surety or sureties, conditions, penalties or
securities as shall be deemed proper by the Board.
(h) The Board may delegate temporarily the powers and duties of any officer of the
Company, in case of his or her absence or for any other reason, to any other officer, and
may authorize the delegation by any officer of the Company of any of his or her powers and
duties to any agent or employee, subject to the general supervision of such officer.
8.10 Reimbursements. The Board and the officers shall be entitled to be reimbursed for
any and all reasonable, duly substantiated; direct out-of-pocket costs and expenses of the Company
paid or incurred by a Manager or officer on behalf of the Company and within the scope of its
business and this Agreement.
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8.11 Limitations of Liability. The Member and any persons serving as Managers or
officers of the Company and their respective shareholders, interest holders, officers, directors,
agents, employees and representatives shall not be liable, responsible or accountable in damages or
otherwise to the Company, the Member or any Manager or officer of the Company for any mistake of
fact or judgment in operating the business of the Company or for any act performed (or omitted to
be performed) in good faith (including, without limitation, pursuant to advice of legal counsel)
and within the scope of this Agreement, unless such actions or inactions shall have resulted from
gross negligence, willful misconduct, fraud or breach of this Agreement.
8.12 Board Decisions. For all purposes of this Agreement, the phrases “approval” of or
by the Board, “consent” of or by the Board, “action” of or by the Board and phrases of like import,
or references to actions to be or which may be taken by “the Board,” shall mean written approval by
a majority of the Managers of the Board fixed by, or in the manner provided for in, this Agreement.
ARTICLE IX
MEMBERSHIP INTERESTS
9.1 Certificates Representing Membership Interests. Membership Interests may be
represented by certificates in such form or forms as the Board may approve, provided that such form
or forms shall comply with all applicable requirements of law or of the Certificate. Such
certificates shall be signed by the President or a Vice President, and by the Secretary or an
Assistant Secretary, of the Company (or by at least two Managers, if the Company has not appointed
such officers) and may be sealed with the seal of the Company or imprinted or otherwise marked with
a facsimile of such seal. The signature of any or all of the foregoing officers of the Company may
be represented by a printed facsimile thereof. If any officer whose signature, or a facsimile
thereof, shall have been set upon any certificate shall cease, prior to the issuance of such
certificate, to occupy the position in right of which his or her signature, or facsimile thereof,
was so set upon such certificate, the Company may nevertheless adopt and issue such certificate
with the same effect as if such officer occupied such position as of such date of issuance; and
issuance and delivery of such certificate by the Company shall constitute adoption thereof by the
Company. The certificates shall be consecutively numbered, and as they are issued, a record of such
issuance shall be entered in the books of the Company.
9.2 Lost, Stolen or Destroyed Certificates. The Company may issue a new certificate
for Membership Interests in the place of any certificate theretofore issued and alleged to have
been lost, stolen or destroyed, but the Board may require the owner of such lost, stolen or
destroyed certificate, or his, her or its legal representative, to furnish an affidavit as to such
loss, theft, or destruction and to give a bond in such form and substance, and with such surety or
sureties, with fixed or open penalty, as the board may direct, in order to indemnify the Company
and its transfer agents and registrars, if any, against any claim that may be made on account of
the alleged loss, theft or destruction of such certificate.
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ARTICLE X
INDEMNIFICATION
10.1 Right to Indemnification. Subject to the limitations and conditions provided
in this Article X, each Person who was or is made a party or is threatened to be made a
party to or is involved in any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, arbitrative or investigative (hereinafter a “Proceeding”), or any
appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding,
by reason of the fact that such Person is or was a Member, Manager, officer, employee or agent of
the Company or while a Member, Manager, officer, employee or agent of the Company is or was serving
at the request of the Company as a Manager, director, officer, partner, venturer, proprietor,
trustee, employee, agent, or similar functionary of another foreign or domestic limited liability
company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan
or other enterprise, shall be indemnified, defended and held harmless by the Company to the fullest
extent permitted by the Act and the DGCL, as the same exist or may hereinafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits the Company to
provide broader indemnification rights than said law permitted the Company to provide prior to such
amendment) against claims, damages, liabilities, judgments, penalties (including excise and similar
taxes and punitive damages); fines, settlements and reasonable costs or expenses (including,
without limitation, attorneys’ fees) actually incurred by such Person in connection with such
Proceeding, whether or not such Person is acting in such capacity at the time such liability or
expense is paid or incurred, if, in the matter giving rise to such Proceeding, the Person acted, or
omitted to act, in good faith and in a manner the Person reasonably believed to be not opposed to
the best interest of the Company. The termination of any Proceeding by judgment, order or
settlement shall not, of itself, create a presumption that the Person did not act, or omit to act,
in good faith and in a manner that the Person reasonably believed to be not opposed to the best
interest of the Company. The right of indemnification provided herein shall be cumulative of, and
in addition to, any and all rights to which any Person may otherwise be entitled by contract or as
a matter of law or equity and shall extend to his, her or its heirs, successors, assigns and
personal representatives. It is expressly acknowledged that the indemnification provided in this
Article X could involve indemnification for negligence of the Person indemnified or under
theories of strict liability.
10.2 Advance Payment. To the fullest extent permitted by applicable law, the right to
indemnification conferred in this Article X shall include the right to be paid or
reimbursed by the Company the reasonable expenses incurred by a Person of the type entitled to be
indemnified under Section 10.1 in advance of the final disposition of the Proceeding and
without any determination as to the Person’s ultimate entitlement to indemnification; provided,
however, that the payment of such expenses incurred by any such Person in advance of the final
disposition of a Proceeding, shall be made only upon delivery to the Company of a written
affirmation by such Person of such Person’s good faith belief that such Person has met the standard
of conduct necessary for indemnification under this Article X and a written undertaking, by
or on behalf of such Person, to repay all amounts so advanced if it shall ultimately be determined
that such indemnified Person is not entitled to be indemnified under this Article X or
otherwise.
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10.3 Insurance. The Company may purchase and maintain insurance, at its expense, to
protect itself and any Person of the type entitled to be indemnified under Section 10.1,
whether or not the Company would have the power to indemnify such Person against such expense,
liability or loss under Section 10.1.
10.4 Member Notification. To the extent required by law, any indemnification of or
advance of expenses to a Person in accordance with this Article X shall be
reported in writing to the Member within ten (10) days immediately following the date of the
indemnification or advance.
10.5 Savings Clause. If this Article X or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify and hold harmless each Person indemnified pursuant to this Article
X as to costs, charges and expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative to the fullest extent permitted by any applicable portion of this
Article X that shall not have been invalidated and to the fullest extent
permitted by applicable law.
ARTICLE XI
TRANSFERS
11.1 Transfer of Membership Interest. Subject to applicable law, including, without
limitation, the Securities Act, and any agreement restricting the transfer of the Membership
Interests hereunder to which the Member may be a party, the Member may at any time Transfer in
whole or in part its Membership Interest. If the Member Transfers any portion of its Membership
Interest pursuant to this Section 11.1, the transferee shall be admitted to the Company
upon its execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement. Such admission shall be deemed effective as of the date of the
Transfer.
ARTICLE XII
DISSOLUTION AND LIQUIDATION
12.1 Dissolution of the Company. The Company shall be dissolved upon the
occurrence of any of the following events:
(a) The determination by the Member that the Company be dissolved;
(b) The expiration of the period fixed for the duration of the Company set forth in the
Certificate; or
(c) Entry of a decree of judicial dissolution of the Company under Section 18-802 of
the Act.
12.2 Liquidation and Termination. On dissolution of the Company, the Board shall act
as liquidator or may appoint the Member as liquidator. The liquidator shall proceed diligently to
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wind up the affairs of the Company and make final distributions as provided herein and in the Act.
The costs of liquidation shall be borne as a Company expense. Until final distribution, the
liquidator shall continue to operate the Company with all of the power and authority of the Board.
Maintenance of property, borrowings and expenditures of Company funds for legitimate Company
purposes to effectuate or facilitate the winding up or the liquidation of the Company affairs shall
be authorized if the liquidator, in the exercise of his, her or its business judgment, believes
that the interest of the Company would be best served thereby and shall not be construed to involve
a continuation of the Company. Upon dissolution of the Company, a true and final accounting of all
transactions relating to the business of the Company shall be made. Liabilities of the Company
shall be paid and assets of the Company shall be distributed in accordance with the provisions of
Section 12.3 hereof as soon as is reasonably possible after the dissolution of the Company.
12.3 Payment of Liabilities and Distribution of Assets. Upon dissolution of the
Company, the liquidator shall determine and report to the Member the assets of the Company and the
value of Company assets. The assets of the Company remaining after the payment of all Company debts
shall be distributed to the Member.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Notices. All notices, demands, requests or other communications that may be or
are required to be given, served or sent pursuant to this Agreement shall be in writing and shall
be mailed by first-class, registered or certified mail, return receipt requested, postage prepaid,
or transmitted by hand delivery, telegram, facsimile transmission or electronic transmission
addressed as set forth on the signature pages hereof. The Member may designate by notice in writing
a new address to which any notice, demand, request or communication may thereafter be so given,
served or sent. Each notice, demand, request or communication that is mailed, delivered or
transmitted in the manner described above shall be deemed sufficiently given, served, sent and
received for all purposes at such time as it is delivered to the addressee with the return receipt,
the delivery receipt, the affidavit of messenger or (with respect to a facsimile or electronic
transmission) the answer back being deemed conclusive evidence of such delivery or at such time as
delivery is refused by the addressee upon presentation.
13.2 Amendment or Modification. This Agreement may be amended or modified from time to
time only by a written instrument adopted by the Board and executed and agreed to by the Member.
13.3 Successors and Assigns. This Agreement, and all the terms and provisions hereof,
shall be binding upon and shall inure to the benefit of the Member and its respective personal
representatives, successors and permitted assigns.
13.4 Construction. The captions used in this Agreement are for convenience only and
shall not be construed in interpreting this Agreement. Wherever the context so requires, the
masculine shall include the feminine and the neuter, and the singular shall include the plural and
vice versa, unless the context clearly requires a different interpretation.
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13.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
13.6 Severability. This Agreement is intended to be performed in accordance with, and
only to the extent permitted by, all applicable laws, ordinances, rules and regulations of the
jurisdictions in which the Company does business. In the event of a direct conflict between the
provisions of this Agreement and (a) any provision of the Certificate, or (b) any mandatory
provision of the Act or (to the extent such statutes are incorporated into the Act) of the DGCL,
the applicable provision of the Certificate, the Act, or the DGCL shall control. If any provision
of this Agreement or the application thereof to any Person or circumstances is for any reason and
to any extent invalid or unenforceable, the remainder of this Agreement and the application of such
provision to the other Persons or circumstances will not be affected thereby, but rather are to be
enforced to the greatest extent permitted by law.
13.7 No Third Party Beneficiaries. This Agreement is intended for the exclusive
benefit of the Member and its personal representatives, successors and permitted assigns, and
nothing contained in this Agreement shall be construed as creating any rights or benefits in or to
any third party.
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IN WITNESS WHEREOF, the sole Member has executed this Agreement as of the date first set forth
hereinabove.
| SOLE MEMBER: Rent-A-Center Texas, L.P., a Texas limited partnership |
||||
| By: | Rent-A-Center East, Inc., a Delaware corporation, its General Partner |
|||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx | ||||
| President | ||||
| Address: | 0000 Xxxxxxxx Xxxxxxx, Xxxxx Xxxxx Xxxxx, Xxxxx 00000 |
|||
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