Exhibit 3.2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
FOR
FRANKLIN RECEIVABLES, LLC,
a Delaware limited liability company
NYFS08...:\60\46360\0040\1856\AGR6018B.53H
TABLE OF CONTENTS
Page
Article I - Definitions.................................................... 1
Section 1.1 "Act".................................................. 1
Section 1.2 "Affiliate"............................................ 1
Section 1.3 "Special Member"....................................... 2
Section 1.4 "Special Membership Interest".......................... 2
Section 1.5 "Capital Contribution"................................. 2
Section 1.6 "Certificate".......................................... 2
Section 1.7 "Code"................................................. 2
Section 1.8 "Company".............................................. 2
Section 1.9 "Distributable Cash"................................... 2
Section 1.10 "FCC".................................................. 2
Section 1.11 "Fiscal Year".......................................... 2
Section 1.12 "Independent Directors"................................ 3
Section 1.13 "LLC Agreement"........................................ 3
Section 1.14 "Managing Member"...................................... 3
Section 1.15 "Managing Membership Interest"......................... 3
Section 1.16 "Members".............................................. 3
Section 1.17 "Membership Interest".................................. 3
Section 1.18 "Net Profits" and "Net Losses"......................... 3
Section 1.19 "Percentage Interest".................................. 3
Section 1.20 "Permitted Indebtedness"............................... 3
Section 1.21 "Person"............................................... 3
Section 1.22 "Purchase Agreement"................................... 4
Section 1.23 "Receivables".......................................... 4
Section 1.24 "Receivables Corp.".................................... 4
Section 1.25 "Regulations".......................................... 4
Article II - Organizational Matters........................................ 4
Section 2.1 Formation.............................................. 4
Section 2.2 Name................................................... 4
Section 2.3 Term................................................... 5
Section 2.4 Registered Office; Registered Agent; Principal Office.. 5
Section 2.5 Address of Members..................................... 5
Section 2.6 Purpose of Company..................................... 5
Section 2.7 Limited Liability Company Interest...................... 5
i
Page
Article III - Capital Contributions........................................ 11
Section 3.1 Initial Capital Contribution........................... 11
Section 3.2 Additional Capital Contributions....................... 11
Section 3.3 No Interest............................................ 11
Section 3.4 Capital Account........................................ 11
Section 3.5 No Withdrawal of Capital Contribution.................. 11
Section 3.6 No Personal Liability for Return of Capital
Contribution......................................... 11
Section 3.7 Negative Balance in Capital Account.................... 11
Section 3.8 Loans.................................................. 12
Article IV - Member........................................................ 12
Section 4.1 Limited Liability...................................... 12
Section 4.2 Admission of Additional Members........................ 12
Section 4.3 Resignations........................................... 12
Section 4.4 Transaction With the Company........................... 12
Section 4.5 Remuneration to Member................................. 12
Section 4.6 Voting Rights.......................................... 13
Section 4.7 Meetings of the Member................................. 13
Article V - Management and Control of the Company; Limited Liability....... 13
Section 5.1 Management of the Company by Member.................... 13
Section 5.2 Powers With Respect to Management of the Company....... 13
Section 5.3 Special Member Powers.................................. 13
Section 5.4 Performance of Duties; Liability of Members............ 14
Section 5.5 Limited Liability...................................... 14
Article VI - Allocations of Net Profits and Net Losses and Distributions... 14
Section 6.1 Allocations of Net Profits and Net Losses.............. 14
Section 6.2 Distributions of the Company........................... 14
Section 6.3 Form of Distribution................................... 14
Section 6.4 Return of Distributions................................ 15
Article VII - Transfer of Interests........................................ 15
Article VIII - Accounting, Records, Reporting by Members................... 15
Section 8.1 Books and Records...................................... 15
Section 8.2 Delivery to Member and Inspection...................... 16
Section 8.3 Annual Statements...................................... 16
Section 8.4 Filings................................................ 16
Section 8.5 Bank Accounts.......................................... 16
ii
Page
Section 8.6 Accounting Decisions and Reliance on Others............ 16
Section 8.7 Tax Matters for the Company Handled by Member.......... 16
Article IX - Dissolution and Winding-Up.................................... 17
Section 9.1 Dissolution............................................ 17
Section 9.2 Winding-Up............................................. 17
Section 9.3 Order of Payment of Liabilities Upon Dissolution....... 17
Section 9.4 No Deficit Restoration................................. 18
Section 9.5 Certificate of Cancellation............................ 18
Article X - Indemnification ............................................... 18
Section 10.1 Indemnification........................................ 18
Article XI - Miscellaneous................................................. 19
Section 11.1 Complete Agreement..................................... 19
Section 11.2 Binding Effect......................................... 19
Section 11.3 Parties in Interest.................................... 19
Section 11.4 Pronouns; Statutory References......................... 19
Section 11.5 Headings............................................... 19
Section 11.6 References to this LLC Agreement....................... 19
Section 11.7 Severability........................................... 19
Section 11.8 Additional Documents and Acts.......................... 19
Section 11.9 Notices................................................ 20
Section 11.10 Amendments............................................. 20
Section 11.11 Multiple Counterparts.................................. 20
Section 11.12 Remedies Cumulative.................................... 20
Section 11.13 Choice of Law.......................................... 20
Section 11.14 Federal Income Tax Allocation...........................20
iii
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
FOR
FRANKLIN RECEIVABLES, LLC,
a Delaware limited liability company
This Amended and Restated Limited Liability Company Agreement is made as
of and is effective the 1st day of September, 1998 ("LLC Agreement"), by
Franklin Capital Corporation, a Utah corporation ("FCC"), as the primary member
and FCC Receivables Corp., a Delaware Corporation ("Receivables Corp."), as the
second member with reference to the following:
RECITALS
A. The Certificate of Formation for Franklin Receivables, LLC (the
"Company") was filed on June 2, 1998, with the Delaware Secretary of State.
B. On June 8, 1998, FCC adopted and approved a Limited Liability Company
Agreement (the "Initial LLC Agreement") for the Company.
C. FCC now desires to amend and restate the Initial LLC Agreement.
AGREEMENT
NOW, THEREFORE, FCC and Receivables Corp., by this LLC Agreement amend and
restate the Initial LLC Agreement for the Company under the laws of the State of
Delaware upon the terms and subject to the conditions of this Agreement.
Article I - Definitions
When used in this Agreement, the following terms shall have the meanings
set forth below (terms used in this Agreement that are not defined in this
Article 1 shall have the meanings set forth elsewhere in this Agreement or in
Section 18-101 of the Act, as defined below):
Section 1.1 "Act" shall mean the Delaware Limited Liability Company Act (6
Del. C. Section 18-101 et. seq.), as the same may be amended from time to time.
Section 1.2 "Affiliate" shall mean a Person or Persons directly or
indirectly, through one or more intermediaries, controlling, controlled by or
under common control with
1
the Person or Persons in question. The term "control", as used in the
immediately preceding sentence, shall mean, with respect to a Person that is a
corporation, the right to exercise, directly or indirectly, more than 50% of the
voting rights attributable to the shares of the controlled corporation and, with
respect to a Person that is not a corporation, the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of the controlled Person.
Section 1.3 "Special Member" shall mean Receivables Corp. in its capacity
as a member of the Company or any other Person that succeeds Receivables Corp.
in that capacity.
Section 1.4 "Special Membership Interest" shall mean the Special Member's
limited right to manage the Company with respect to voting on the certain
matters specified in Section 2.6(d) hereof and the limited right to manage the
Company in the event the Managing Member is the subject of a bankruptcy
proceeding and is incapable of carrying out its management responsibilities
hereunder. The Special Member has no right to any distributions hereunder and
has no economic interest in the Company.
Section 1.5 "Capital Contribution" shall mean the total of cash and other
assets contributed to the Company by the Managing Member.
Section 1.6 "Certificate" shall mean the Certificate of Formation of the
Company, filed with the Delaware Secretary of State on June 2, 1998 (which is
hereby ratified and approved in all respects), as amended from time to time.
Section 1.7 "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, the provisions of succeeding law, and to the extent
applicable, the Regulations.
Section 1.8 "Company" shall mean Franklin Receivables, LLC, a Delaware
limited liability company.
Section 1.9 "Distributable Cash" shall mean the amount of cash which the
Managing Member deems available for distribution, taking into account all the
Company's debts, liabilities, and obligations then due (including, without
limitation, any agreement to purchase or sell Receivables) and amounts necessary
to place into reserves for customary and usual claims with respect to the
Company's business.
Section 1.10 "FCC" means Franklin Capital Corporation, a Utah corporation.
Section 1.11 "Fiscal Year" shall mean the Company's fiscal year, which
shall end on September 30th of each year.
2
Section 1.12 "Independent Directors" shall have the meaning set forth in
Section 2.6(c) hereof.
Section 1.13 "LLC Agreement" shall mean this Amended and Restated Limited
Liability Company Agreement dated as of September 1, 1998, for Franklin
Receivables, LLC, as originally executed and as amended from time to time.
Section 1.14 "Managing Member" shall mean FCC in its capacity as a member
of the Company or any other Person that succeeds FCC in that capacity, who is
appointed as sole manager within the meaning of the Act.
Section 1.15 "Managing Membership Interest" shall mean all of the Managing
Member's right, title and interest in, to and against the Company, including
rights to Distributable Cash of the Company and all other rights of the Managing
Member to participate in the business, affairs and management of the Company,
including without limitation, the right to vote on or grant consent or approval
with respect to matters coming before the Company.
Section 1.16 "Members" shall mean the Managing Member and the Special
Member.
Section 1.17 "Membership Interest" shall mean the Special Membership
Interest and the Managing Membership Interest.
Section 1.18 "Net Profits" and "Net Losses" shall mean the net profits and
net losses of the Company for a period (or from a transaction) as determined in
accordance with generally accepted accounting principles, consistently applied.
Section 1.19 "Percentage Interest" shall mean the limited liability
interest in the Company expressed as a percentage of the total limited liability
interests outstanding. The Percentage Interest of the Managing Member is 100.0%.
The Percentage Interest of the Special Member is 0.0%.
Section 1.20 "Permitted Indebtedness" shall mean the indebtedness
permitted under Section 2.6(b)(iv) hereof.
Section 1.21 "Person" shall mean any individual, sole proprietorship,
corporation, general partnership, limited partnership, limited liability company
or partnership, joint venture, association, joint stock company, bank, trust,
estate, unincorporated organization, any federal, state, county or municipal
government (or any agency or political subdivision thereof), endowment fund or
any other form of entity.
3
Section 1.22 "Purchase Agreement" shall mean any purchase agreement
entered into by the Company with respect to the purchase of Receivables.
Section 1.23 "Receivables" shall have the meaning set forth in Section
2.6(a)(i) hereof.
Section 1.24 "Receivables Corp." shall mean FCC Receivables Corp., a
Delaware corporation.
Section 1.25 "Regulations" shall, unless the context clearly indicates
otherwise, mean the regulations currently in force as formal or temporary that
have been issued by the U.S. Department of Treasury pursuant to its authority
under the Code.
Article II - Organizational Matters
Section 2.1 Formation. Pursuant to the Act, FCC formed a limited liability
company under the laws of the State of Delaware by filing the Certificate with
the Delaware Secretary of State and otherwise complying with the requirements of
the Act for the formation of limited liability companies. The filing of the
Certificate of the Company with the Delaware Secretary of State is hereby
ratified and approved in all respects. FCC and Receivables Corp. (and any
successors thereto as Members) are hereby designated as the authorized persons,
within the meaning of the Act, to execute, deliver and file with the Delaware
Secretary of State any amendments and/or restatements of the Certificate of the
Company. Without the need for the consent of any Person, FCC is hereby admitted
to the Company as the Managing Member of the Company and Receivables Corp. is
hereby admitted to the Company as the Special Member of the Company. The rights
and liabilities of each Member shall be determined pursuant to the Act and this
Agreement. To the extent that the rights or obligations of each Member are
different by reason of any provision of this Agreement than they would be in the
absence of such provision, this Agreement shall control, to the extent permitted
by the Act.
Section 2.2 Name. The name of the Company shall be "Franklin Receivables,
LLC". The business of the Company may be conducted under that name or, upon
compliance with applicable laws, any other name that the Managing Member deems
appropriate or advisable. The Managing Member shall qualify the Company to do
business in California and Utah and shall file any qualification instruments and
fictitious name certificates and similar filings, and any amendments thereto, as
necessary to qualify the Company to conduct business in the State of California
and Utah or which the Managing Member otherwise considers appropriate or
advisable in accordance with Article 5 of this Agreement.
4
Section 2.3 Term. The term of this Agreement shall commence from the date
as set forth in the introductory paragraph and shall continue until dissolution
of the Company, as hereinafter provided.
Section 2.4 Registered Office; Registered Agent; Principal Office. The
Company shall continuously maintain a registered office and registered agent in
the State of Delaware as required by the Act. At the time of its formation, the
registered office and registered agent of the Company in Delaware is The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, County of New Castle, Delaware 19801. In addition, the Company shall
maintain its principal office at 47 West 200 South, Suite 500, Salt Lake City,
Utah 84101, or at such other place as the Managing Member may determine. The
registered office, registered agent and principal office of the Company may be
changed at any time and from time to time by the Managing Member.
Section 2.5 Address of Members. The address of FCC as the initial Managing
Member as of the date of this Agreement is 47 West 200 South, Suite 500, Salt
Lake City, Utah 84101, Attention: Harold E. Miller. The address of Receivables
Corp. as the initial Special Member as of the date of this Agreement is 47 West
200 South, Suite 500, Salt Lake City, Utah 84101, Attention: Harold E. Miller. A
copy of all communications sent by the Company or its Managing Member to
Receivables Corp. shall also be sent to 777 Mariners Island Blvd. San Mateo,
California 94404, Attention: General Counsel. Any successor Member who is
admitted shall notify FCC, Receivables Corp. and the Company of its address upon
admission to membership. Each Member shall provide notice of a change in its
address to the Managing Member and the Company.
Section 2.6 Purpose of Company.
(a) The nature of the business or purposes to be conducted or
promoted by the Company is to engage solely in the following activities:
(i) to acquire from time to time all right, title and interest in
and to receivables or leases arising out of or relating to the financing, sale
or lease of new or used motor vehicles or industrial equipment, including
automobiles, light and heavy duty trucks, and recreational vehicles, monies due
thereunder, security interests in the motor vehicles or equipment financed
thereby, proceeds from claims on insurance policies related thereto, and related
rights (collectively, "Receivables");
(ii) to acquire, own, hold, service, sell, assign, pledge and
otherwise deal with the Receivables, collateral securing the Receivables,
related insurance policies, agreements with motor vehicle or equipment dealers
or lessors or other obligors, originators or servicers of Receivables and any
proceeds or further rights associated with any of the foregoing;
5
(iii) to transfer Receivables to corporations, trusts (the
"Trusts") or other entities (each a "Transferee") pursuant to one more
receivables purchase agreements, pooling and servicing agreements, sale and
servicing agreements or other agreements (the "Agreements") to be entered into
by and among, among others, the Company, the Transferee named therein and any
entity acting as collection agent or servicer of the Receivables;
(iv) to sell Receivables to, or to finance ownership of
Receivables through, one or more Transferees established to fund the transfer of
Receivables through the issuance of commercial paper notes (such Transferee's
commercial paper notes issued to fund such Receivables, the "Commercial Paper")
pursuant to one or more Agreements to be entered into by and among, among
others, the Company, such Transferee and any entity acting as collection agent
or servicer of the Receivables;
(v) to authorize, sell and deliver any class of certificates or
other securities (collectively, the "Certificates") issued by a Trust or other
Transferee under the related Agreements;
(vi) to acquire from FCC or Receivables Corp. certificates issued
by one or more grantor trusts to which FCC or Receivables Corp. transferred
Receivables;
(vii) to issue, sell, authorize and deliver one or more series and
classes of bonds, notes or other evidence of indebtedness secured or
collateralized by one or more pools of Receivables or by certificates of any
class issued by one or more trusts or by certificates of any class issued by a
grantor trust established by FCC (collectively, the "Notes");
(viii) to hold and enjoy all of the rights and privileges of any
Certificates issued by the Trusts to the Company under the related Agreements
and to hold and enjoy all of the rights and privileges of any class of any
series of Notes or Certificates, including any class of Notes or Certificates
which may be subordinate to any other class of Notes or Certificates,
respectively;
(ix) to perform its obligations under the Agreements and any
indenture or other agreement (each, an "Indenture") pursuant to which any
Certificates or Notes are issued; and
(x) to engage in any activity, to exercise any powers permitted to
limited liability companies under the laws of the State of Delaware and to
transact any and all lawful business that is reasonably necessary, appropriate,
proper, advisable, related, incidental or convenient to the conduct, promotion
or attainment or for the furtherance of the purposes, activities and businesses
described in this Section 2.6(a) and for the protection of the
6
Company. In furtherance of such purposes, the Company shall have the power, and
is hereby authorized to buy and sell Receivables.
(b) Notwithstanding any other provision of this Agreement to the
contrary, and any provision of law that otherwise so empowers the Company, the
Company shall not do any of the following:
(i) own any asset or property other than (A) the
Receivables, and (B) incidental personal and intangible property relating to the
ownership of the Receivables;
(ii) engage in any business other than those set forth in
subsection (a) above;
(iii) enter into any contract or agreement with any
Affiliate of the Company, any constituent party of the Company, or any Affiliate
of any constituent party, except in the ordinary course of business and upon
terms and conditions that are substantially similar to those that would be
available on an arms-length basis with third parties;
(iv) incur any indebtedness, or assume or guarantee any
indebtedness of any other entity, secured or unsecured, direct or indirect,
absolute or contingent other than (A) any indebtedness incurred in connection
with any Commercial Paper, Certificates or Notes, and (B) any indebtedness to
FCC or any Affiliate thereof incurred in connection with the acquisition of
Receivables, which indebtedness shall be subordinated to all other obligations
of the Company and shall be nonrecourse debt of the Company, except with respect
to proceeds of the Receivables in excess of such proceeds necessary to pay all
obligations in relation to the Commercial Paper, Certificates or Notes ("Excess
Proceeds"), and shall not constitute a claim against the Company to the extent
that Excess Proceeds are insufficient to pay such indebtedness (provided that
such indebtedness is also expressly authorized by the Special Member, including
all of its Independent Directors), or endeavor to obtain credit or incur any
other obligations (other than with respect to Receivables) to any Person based
on the assets of any Person other than itself or pledge its assets for the
benefit of any other Person; or fail to correct promptly any known
misunderstanding with respect to the foregoing;
(v) become insolvent or not pay its debts and liabilities
(including operating expenses, employment and overhead expenses) from its assets
as the same shall become due;
(vi) fail to do or cause to be done all things necessary
to observe organizational formalities and preserve its existence, or amend,
modify, or otherwise change the organizational documents of the Company without
the prior written authorization of all its Members, including that of all the
Independent Directors of the Special Member;
7
(vii) fail to maintain all of its books, records, and bank
accounts separate from those of its Affiliates and any constituent party or fail
to prepare separate financial statements (even if consolidated financial
statements are also prepared) audited by independent certified public
accountants, and file its own tax returns (except to the extent consolidation is
required as a matter of law);
(viii) fail to hold itself out to the public as a legal
entity separate and distinct from any other Person (including any of its
Affiliates, any of its constituent parties, or any Affiliate of any constituent
party), fail to conduct business in its own name or fail to maintain and utilize
separate telephone numbers, stationery, invoices and checks;
(ix) fail to maintain adequate capital, taking into
account anticipated excess interest income on assets over interest expense in
liabilities, in light of its contemplated business purpose;
(x) commingle or pool Company funds and assets with those
of any other Person;
(xi) fail to maintain its assets in such a manner that it
will not be costly or difficult to segregate, ascertain or identify its
individual assets from those of any Affiliate or constituent party or any
Affiliate of any constituent party or any other Person;
(xii) hold itself out to be responsible for or guaranty
the debts or obligations of any other Person;
(xiii) seek to merge into or consolidate with any Person
or dissolve (in whole or in part), wind up (in whole or in part), terminate,
convert to a different form of business association (or otherwise change its
legal structure) including, but not limited to, transfer of the membership
interests of any Member, in whole or in part, or liquidate (in whole or in
part), transfer or otherwise dispose of all or substantially all of its assets,
unless:
(A) the entity (if other than the Company) formed or
surviving the consolidation or merger or which acquires the properties and
assets of the Company is organized and existing under the laws of the
State of Delaware, expressly assumes the due and punctual payment of, and
all obligations of the Company, including those obligations of the Company
under any Agreement and any Indenture, and has a certificate of
incorporation, limited liability company agreement or other controlling
document containing provisions identical to the provision of this Section
2.6; and
(B) immediately after giving effect to the transaction, no
default or event of default has occurred and is continuing under any
8
indebtedness of the Company or any agreements relating to such
indebtedness; and
(C) the entity (if other than the Company) formed or
surviving the consolidation or merger or which acquires the properties and
assets of the Company agrees that (i) it shall maintain its funds or
assets as identifiable and not commingle its funds or assets with those of
any direct or ultimate parent of such entity and pay from its assets all
obligations and indebtedness of any kind incurred by it, (ii) it shall
maintain separate bank accounts, company records and books of account from
those of any direct or ultimate parent of such entity and (iii) the
business affairs of such entity will be managed by or under the direction
of its Board of Directors, Managing Board, Managing Member, or other
governing board and it will conduct its business from an office separate
from any direct or ultimate parent of such entity; and
(D) the organizational and constituent documents and the
surviving entity's organizational documents continue to have provisions
identical to the provisions of this Section 2.6;
(xiv) file or consent to the filing of any petition,
either voluntary or involuntary, for insolvency, bankruptcy, liquidation,
receivership, or reorganization under any laws or regulations, or make an
assignment for the benefit of creditors or, except as required by law, admit in
writing its inability to pay its debts as they come due, except as contemplated
by Section 2.6(d) of this LLC Agreement;
(xv) share any common logo with or hold itself out as or
be considered as a department or division of any Member, or any other Person;
(xvi) take any action that could reasonably be expected to
cause the Company to be treated as an association taxable as a corporation for
federal, state or local tax purposes, or
(xvii) fail to fairly allocate and apportion any overhead
(including costs of office space, utilities and routine services) or other
expenses (including employee salaries and benefits) shared between the Company
and any other Person.
(c) The Special Member of the Company shall at all times, except
as noted hereafter, cause there to be at least one duly appointed director of
its Board of Directors who is an independent director (an "Independent
Director") who is not (i) a director, officer or employee of any affiliate of
the Company; (ii) a person related to any officer or director of any affiliate
of the Company; (iii) a holder (directly or indirectly) of
9
more than 10% of any voting securities of any affiliate of the Company; or (iv)
a person related to a holder (directly or indirectly) of more than 10% of any
voting securities of any affiliate of the Company; and in the event of the
death, incapacity, resignation or removal of all Independent Directors, the
Board of Directors shall promptly appoint an Independent Director for each
Independent Director whose death, incapacity, resignation or removal caused the
related vacancy on the Board of Directors, provided, however, that the Board of
Directors shall not vote on any matter unless and until at least one Independent
Director has been duly appointed to serve on the Board of Directors.
(d) Notwithstanding any other provision of this LLC Agreement or
the Certificate or of law that otherwise so empowers the Company, the Company
shall not, without the unanimous affirmative vote of all of the Members, which
vote must include the vote of all of the Independent Directors of the Special
Member, take any of the following actions: (i) the dissolution, winding up,
liquidation, consolidation, conversion to another form of business association,
or change in the legal structure of the Company including, but not limited to,
transfer of the membership interests of any Member in whole or in part, the
merger of the Company; (ii) the engagement by Company in any business other than
as specified in Section 2.6(a); or (iii) the amendment or modification of this
Section 2.6. Notwithstanding another provision of this Agreement or the
Certificate or of law that otherwise so empowers the Company, the Company shall
not, without the unanimous affirmative vote of all of the Members, which vote
must include the vote of all of the Independent Directors of the Special Member,
take any of the following actions: (A) institute proceedings to be adjudicated
bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against it, or file a petition seeking or consenting to
reorganization or relief under any applicable federal or state law relating to
bankruptcy, or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or a
substantial part of its property, or make any assignment for the benefit of
creditors, or except as required by law, admit in writing its inability to pay
its debts generally as they become due, or take Company action in furtherance of
any such action; or (B) the amendment or modification of any provision of this
Agreement (other than this Section 2.6, amendment of which by the Company is
prohibited by the prior sentence of this Section 2.6(d)) or the Certificate; and
any purported action of the Company which violates this sentence shall be void
ab initio and of no force or effect.
(e) The Company shall have no liabilities, contingent or
otherwise, other than the Permitted Indebtedness.
Section 2.7 Limited Liability Company Interest. FCC shall, on the
execution hereof, sell, transfer or contribute to the Company from time to time
all its right, title and interest in and to a pool of Receivables and related
assets in a related Purchase Agreement (a "Transaction"). FCC will represent,
warrant and covenant in each Purchase Agreement to the Company that the
Receivable sold thereby will be free and clear of all liens and
10
encumbrances, except for those which constitute Permitted Indebtedness and that
the sale, transfer or contribution of the Receivables and related assets and the
consummation of the transactions contemplated by this LLC Agreement and the
related Purchase Agreement were duly authorized.
Article III - Capital Contributions.
Section 3.1 Initial Capital Contribution. The Managing Member shall, on
the execution hereof, contribute $200.00 to the Company. The Managing Member
shall execute any additional assignments and documents necessary to evidence the
foregoing assignment to Company.
Section 3.2 Additional Capital Contributions. The Managing Member may
contribute additional capital to the Company in such amounts and at such times
as Managing Member shall determine in its sole and absolute discretion.
Section 3.3 No Interest. The Managing Member shall not be entitled to
receive interest on any Capital Contributions.
Section 3.4 Capital Account. The Company shall establish and maintain a
capital account for the Managing Member to which it shall credit the amount of
its Capital Contributions and Net Profits of the Company from time to time and
to which it shall charge the Managing Member's share of distributions and Net
Losses. The initial capital account of the Managing Member shall be equal to
$200.00.
Section 3.5 No Withdrawal of Capital Contribution. Except as otherwise
provided in this LLC Agreement, the Managing Member shall not withdraw any
Capital Contributions without the consent of all the Members. The Managing
Member shall not receive any drawing with respect to its Capital Contributions
except as otherwise provided in this LLC Agreement.
Section 3.6 No Personal Liability for Return of Capital Contribution.
Notwithstanding anything to the contrary contained herein, no Member shall be
personally liable for the return of Capital Contributions or the return of any
additions to the capital accounts of the other Members or the return of any
portion of such Capital Contributions or capital account, it being expressly
agreed that any return of Capital Contributions as may be made at any time, or
from time to time, shall be made solely from the assets of the Company and only
in accordance with the term hereof.
Section 3.7 Negative Balance in Capital Account. Except as may be required
by law, at no time during the term of the Company, or upon the dissolution or
liquidation
11
thereof, shall the Managing Member have any obligation to the Company or any
other Member to restore any negative balance in its capital account.
Section 3.8 Loans. The Managing Member may, but shall not be required to,
make loans to the Company and in respect of such loans shall be treated as a
creditor of the Company. Such loans shall be repaid as and when the Company has
funds available therefor, and such loans and interest thereon (at rates to be
agreed upon by the Managing Member and the Company) shall constitute obligations
of the Company. Any such loan shall not increase the Managing Member's capital
account, entitle the Managing Member to any increase in its share of the Net
Profits or to any greater proportion of Net Losses which the Company may
sustain.
Article IV - Member.
Section 4.1 Limited Liability. Except as otherwise provided by the Act,
the debts, obligations and liabilities of the Company, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and each Member shall not be obligated personally
for any such debt, obligation or liability of the Company solely by reason of
being a member of the Company.
Section 4.2 Admission of Additional Members. No additional members shall
be admitted to the Company without the unanimous agreement of all the members,
it being the intent of the Members that the Company shall at all times be a two
member limited liability company. Without the need for the consent of any
Person, upon a transfer of the limited liability company interest in accordance
with this LLC Agreement the transferee shall be deemed admitted as Members of
the Company upon the effective date of such transfer.
Section 4.3 Resignations. The Members shall not resign as the members of
the Company.
Section 4.4 Transaction With the Company. Subject to any limitations set
forth in this LLC Agreement, including without limitation, Section 2.6 hereof,
the Managing Member may lend money to, act as a surety, guarantor or endorser
for, guarantee or assume one or more obligations of, provide collateral for, and
transact other business with the Company. Subject to this LLC Agreement and
applicable law, the Managing Member has the same rights and obligations with
respect to any transaction with Company as a person or entity who is not a
member or manager.
Section 4.5 Remuneration to Member. Except as otherwise authorized in or
pursuant to this LLC Agreement, the Members are not entitled to remuneration for
acting on Company business.
12
Section 4.6 Voting Rights. Except as expressly modified in this LLC
Agreement, each Member shall have the voting, approval and consent rights
provided in the Act.
Section 4.7 Meetings of the Member. No annual or regular meeting of the
Members is required.
Article V - Management and Control of the Company; Limited Liability
Section 5.1 Management of the Company by Member. The business, property
and affairs of the Company shall be managed solely by or under the direction of
the Managing Member and all powers of the Company shall be exercised by or under
the direction of Managing Member, except only for the powers which require the
vote of the Special Member under this Article 5. The Managing Member shall
conduct the affairs of the Company in the best interest of the Company and the
Members, including the safekeeping and use of all Company funds for the benefit
of the Company and the Members.
Section 5.2 Powers With Respect to Management of the Company. Subject to
the limitations set forth in Section 2.6 and in Section 5.3 or expressly
provided elsewhere in this LLC Agreement, the Managing Member shall have all
necessary powers to manage and carry out the management of the Company and the
power to sign contracts and obligations on behalf of the Company, including
without limitation, the power to exercise on behalf and in the name of the
Company all of the powers of a manager described in the Act. The Managing
Member, in its capacity as a manager of the Company, has the authority to bind
the Company. Except as otherwise provided herein, the Special Member, in its
capacity as a member of the Company, does not have the authority to bind the
Company. Notwithstanding any other provision of this LLC Agreement, the Company,
and the Managing Member on behalf of the Company, may enter into and perform
such agreements as are necessary to carry out the purposes of the Company
without any further act, vote or approval.
Section 5.3 Special Member Powers. Subject to the terms of the Act and as
otherwise provided under this Section 5, the Company shall be managed by the
Special Member to the extent, and only to the extent, of the matters described
in Section 2.6(d) hereof, and any action taken by the Special Member to approve
or ratify any action described in Section 2.6(d) shall require the unanimous
approval of all the Members (including all the Independent Directors of the
Special Member). The Special Member is hereby designated as a manager within the
meaning of the Act but shall have only the rights and powers as are set forth in
this Section 5.3 and shall not have the authority, acting alone or together, to
bind the Company.
13
Section 5.4 Performance of Duties; Liability of Members. Neither the
Managing Member nor the Special Member shall be liable to Company for any loss
or damage sustained by Company, unless the loss or damage shall have been the
result of an act performed, or omitted to be performed, in bad faith or with
gross negligence or willful misconduct by the Managing Member or by the Special
Member, as the case may be. To the extent that, at law or in equity, the
Managing Member or the Special Member has duties (including fiduciary duties)
and liabilities relating thereto to the Company or to the other Member, the
Managing Member and the Special Member acting under this LLC Agreement shall not
be liable to the Company or to the other Member for its good faith reliance on
the provisions of this LLC Agreement. The provisions of this LLC Agreement, to
the extent that they restrict the duties and liabilities of the Managing Member
or the Special Member otherwise existing at law or in equity, are agreed by the
parties hereto to replace, to the fullest extent permitted by law, such other
duties and liabilities of the Managing Member and the Special Member.
Section 5.5 Limited Liability. Except as otherwise provided by the Act,
the debts, obligations and liabilities of the Company, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and neither the Managing Member nor the Special
Member shall be obligated personally for any such debt, obligation or liability
of the Company solely by reason of being a manager or member of the Company.
Article VI - Allocations of Net Profits and Net Losses and Distributions
Section 6.1 Allocations of Net Profits and Net Losses. Net Profits and Net
Losses shall be allocated solely to the Managing Members as the holder of 100%
of the Percentage Interest.
Section 6.2 Distributions of the Company. Distributable Cash shall be
distributed solely to the Managing Member. All such distributions shall be made
only to the Person who, according to the books and records of the Company, is
the holder of record of the Managing Membership Interest in respect of which
such distributions are made on the actual date of distribution. Notwithstanding
any provision to the contrary contained in this LLC Agreement, the Company shall
not make a distribution which would violate the Act or other applicable law.
Neither the Company nor the Managing Member shall incur any liability for making
distributions in accordance with Section 2.6 and this Section 6.2.
Section 6.3 Form of Distribution. The Managing Member has no right to
demand and receive any distribution from the Company in any form other than
money. Except upon a dissolution and winding-up of the Company, the Managing
Member may not be compelled to accept from the Company a distribution of any
asset in kind.
14
Section 6.4 Return of Distributions. Except for distributions made in
violation of the Act, other applicable law, or this LLC Agreement, the Managing
Member shall not be obligated to return any distribution to the Company or pay
the amount of any distribution for the account of the Company or to any creditor
of the Company. The amount of any distribution returned to the Company by the
Managing Member or paid by the Managing Member for the account of the Company or
to a creditor of the Company shall be added to the account or accounts from
which it was subtracted when it was distributed to the Managing Member.
Article VII - Transfer of Interests
Subject to Section 2.6, the Members shall not be entitled to directly or
indirectly transfer, assign, convey, sell, encumber or in any way alienate all
or any part of their Membership Interest (a "Transfer"). To the fullest extent
permitted by law, transfers in violation of this Article 7 shall be null and
void ab initio.
Article VIII - Accounting, Records, Reporting by Members
Section 8.1 Books and Records. The books and records of the Company shall
be kept, and the financial position and the results of its operations recorded,
in accordance with generally accepted accounting principles or such other
commonly accepted accounting methods, consistently applied, as may be selected
by the Managing Member from time to time. The books and records of the Company
shall reflect all the Company transactions and shall be appropriate and adequate
for the Company's business. The Company shall maintain at its principal office
all of the following:
(1) Members. A record of the full name and last known business
address of each Member, together with the capital account, Capital
Contributions, and Percentage Interest of such Member;
(2) Certificate. A copy of the Certificate and any and all
amendments thereto together with executed copies of any powers of attorney
pursuant to which the Certificate or any amendments thereto have been executed;
(3) Tax Returns. Copies of the Company's federal, state, and local
income tax or information returns and reports, if any;
(4) LLC Agreement. A copy of this LLC Agreement and any and all
amendments thereto together with executed copies of any powers of attorney
pursuant to which this LLC Agreement or any amendments thereto have been
executed;
15
(5) Financial Statements. Copies of the financial statements of
the Company, if any, for the six (6) most recent Fiscal Years (but if for less
than six (6) years, then for the number of Fiscal Years the Company has been in
existence); and
(6) Books and Records. The Company's books and records as they
relate to the affairs of the Company (including, without limitation, accounting
records, leases, contracts and other agreements) for at least the current and
past six (6) Fiscal Years (but if for less than six (6) years, then for the
number of Fiscal Years the Company has been in existence).
Section 8.2 Delivery to Member and Inspection. Each Member has the right
to inspect and copy during normal business hours any of the Company records
described in Sections 8.1(1) through (6).
Section 8.3 Annual Statements. The Managing Member shall cause to be
prepared at least annually, at the Company's expense, information necessary for
the preparation of each Member's federal and state income tax returns. Within
ninety (90) days after the end of each Fiscal Year, such information as is
necessary to complete federal and state income tax or information returns shall
be made available to each Member, and a copy of the Company's federal, state,
and local income tax or information returns, if any, for that year.
Section 8.4 Filings. The Managing Member, at the Company's expense, shall
cause the income tax and information returns, if any, for the Company to be
prepared and timely filed with the appropriate authorities. The Managing Member,
at the Company's expense, shall also cause to be prepared and timely filed, with
appropriate federal and state regulatory and administrative bodies, amendments
to or restatements of the Certificate and all reports required to be filed by
the Company with those entities under the Act or other then current applicable
laws, rules, and regulations.
Section 8.5 Bank Accounts. Subject to the requirements under Section 2.6
of this LLC Agreement, the Managing Member shall maintain the funds of the
Company in one or more separate bank accounts.
Section 8.6 Accounting Decisions and Reliance on Others. All decisions as
to accounting matters, except as otherwise specifically set forth herein, shall
be made by the Managing Member. The Managing Member may rely upon the advice of
its accountants as to whether such decisions are in accordance with generally
accepted accounting principles or other accounting methods appropriate for the
Company and authorized hereby.
Section 8.7 Tax Matters for the Company Handled by Member. The Managing
Member shall from time to time cause the Company to make such tax elections, if
16
any, as it deems to be in the best interests of the Company and the Members. The
Managing Member shall be the "Tax Matters Partner" as defined in Code Section
6231, shall represent the Company (at the Company's expense) in connection with
all examinations of the Company's affairs by tax authorities, including
resulting judicial and administrative proceedings, and shall expend the Company
funds for professional services and costs associated therewith. The Managing
Member shall oversee the Company tax affairs in the overall best interests of
the Company and the Members.
Article IX - Dissolution and Winding-Up
Section 9.1 Dissolution.
The filing of a petition in bankruptcy, the filing of a petition or answer
seeking reorganization, arrangement, composition, liquidation, readjustment,
dissolution or similar relief under any statute, law or regulation, or the
occurrence of any other event or circumstance involving or relating to any
Member contemplated by or described in Section 18-304 of the Act, shall not,
under any circumstances, cause any Member to cease being a member of the Company
and shall not cause the dissolution of the Company.
Section 9.2 Winding-Up. Upon the dissolution of the Company, the Company
shall continue solely for the purpose of winding-up its affairs in an orderly
manner, liquidating its assets, and satisfying the claims of its creditors. The
Managing Member shall be responsible for overseeing the winding-up and
liquidation of the Company, shall take full account of the liabilities of the
Company and its assets, shall either cause its assets to be sold or distributed,
and if sold (as promptly as is consistent with obtaining the fair market value
thereof) shall cause the proceeds therefrom, to the extent sufficient therefor,
to be applied and distributed as provided in Section 9.3 hereof.
Section 9.3 Order of Payment of Liabilities Upon Dissolution. Upon
dissolution, the assets of the Company shall be liquidated, and the proceeds
from such liquidation shall be allocated and distributed in the following order
of priority:
(a) First, to the satisfaction of creditors of the Company,
including the Managing Member if a creditor, to the extent otherwise permitted
by law, in satisfaction of the liabilities of the Company (whether by payment or
the making of reasonable provision for payment thereof);
(b) Second, to the satisfaction of all debts, liabilities and
other obligations owed to the Managing Member and not paid pursuant to clause
(a) above (whether by payment or the making of reasonable provision for payment
thereof); and
17
(c) The balance to the Managing Member.
Section 9.4 No Deficit Restoration. If, upon liquidation, the Managing
Member has a deficit balance in its capital account, after taking into account
all capital account adjustments for the Company's Fiscal Year during which
liquidation occurs, neither the Managing Member nor the Special Member shall
have any obligation to contribute cash to the capital of the Company to restore
such deficit balance.
Section 9.5 Certificate of Cancellation. The Managing Member shall cause
to be filed in the office of, and on a form prescribed by, the Delaware
Secretary of State, a certificate of cancellation of the Certificate upon
completion of the winding-up of the affairs of the Company.
(a) No Action for Dissolution. To the fullest extent
permitted by law, neither the Managing Member nor the Special Member shall take
any voluntary action that directly or indirectly causes a dissolution of the
Company. The Members acknowledge that irreparable damage would be done to the
goodwill and reputation of the Company if the Members should bring an action in
court to dissolve the Company under circumstances where dissolution is not
required by Section 9.1.
This LLC Agreement has been drawn carefully to provide fair treatment of all
parties and equitable payment in liquidation of the Membership Interests.
Accordingly, to the fullest extent permitted by law, each Member hereby waives
and renounces its right to initiate legal action to seek the appointment of a
receiver or trustee to liquidate the Company or to seek a decree of judicial
dissolution of the Company (including, but not limited to, any right which any
Member may have under Section 18-802 of the Act).
Article X - Indemnification
Section 10.1 Indemnification. The Company shall defend, indemnify and save
harmless each Member (including in its capacity as Managing Member or Special
Member) from and against all claims, losses, damages, cost, expense, demands,
liabilities, obligations, liens, encumbrances, rights of action or attorneys'
fees ("Claims") sustained by reason of any act performed, or omitted to be
performed, in good faith and without gross negligence or willful misconduct,
within the scope of its authority expressly conferred by this LLC Agreement, to
the fullest extent permitted by applicable law in effect on the date hereof and
to such greater extent as applicable law may hereafter from time to time permit.
Such indemnity shall not be construed to limit or diminish the coverage of each
Member under any insurance obtained by the Company. Payment shall not be a
condition precedent to any indemnification provided in this LLC Agreement.
18
Article XI - Miscellaneous
Section 11.1 Complete Agreement. This LLC Agreement and the Certificate
constitute the complete and exclusive statement of agreement of the Members with
respect to the subject matter herein and therein and replace and supersede the
terms of the Initial LLC Agreement and all prior written and oral agreements or
statements by the Members. No representation, statement, condition or warranty
not contained in this LLC Agreement or the Certificate will be binding on any
Member or has any force or effect whatsoever.
Section 11.2 Binding Effect. Subject to the provisions of this LLC
Agreement relating to transferability, this LLC Agreement will be binding upon
and inure to the benefit of each Member, and its respective successors and
assigns.
Section 11.3 Parties in Interest. Except as expressly provided in the Act
or in this LLC Agreement, nothing in this LLC Agreement shall confer any rights
or remedies under or by reason of this LLC Agreement on any Person other than
each Member and its successors and assigns nor shall anything in this LLC
Agreement relieve or discharge the obligation or liability of any third Person
to the Company or any party to this LLC Agreement, nor shall any provision
hereof give any third Person any right of subrogation or action over or against
Company or any party to this LLC Agreement.
Section 11.4 Pronouns; Statutory References. All pronouns and all
variations thereof shall be deemed to refer to the masculine, feminine, or
neuter, singular or plural, as the context in which they are used may require.
Any reference to the Code, the Regulations, the Act, or other statutes or laws
will include all amendments, modifications, or replacements of the specific
sections and provisions concerned.
Section 11.5 Headings. All headings herein are inserted only for
convenience and ease of reference and are not to be considered in the
construction or interpretation of any provision of this LLC Agreement.
Section 11.6 References to this LLC Agreement. Numbered or lettered
articles, sections and subsections herein contained refer to articles, sections
and subsections of this LLC Agreement unless otherwise expressly stated.
Section 11.7 Severability. If any provision of this LLC Agreement or the
application of such provision to any Person or circumstance shall be held
invalid, the remainder of this LLC Agreement or the application of such
provision to Persons or circumstances other than those to which it is held
invalid shall not be affected thereby.
Section 11.8 Additional Documents and Acts. The Members agree to execute
and deliver such additional documents and instruments and to perform such
additional acts as
19
may be necessary or appropriate to effectuate, carry out and perform all of the
terms, provisions, and conditions of this LLC Agreement and the transactions
contemplated hereby.
Section 11.9 Notices. Any notice which the Company or the Managing Member
or Special Member is required or may desire to give the others shall be in
writing and may be personally delivered or given by United States registered or
certified mail, return receipt requested, addressed as provided under Section
2.5 above (subject to the right of such Person to designate a different address
for itself by notice similarly given). Any notice so given by United States mail
shall be deemed to have been given on the third day after the same is deposited
in the United States mail as a registered or certified matter, return receipt
requested, addressed as above provided, with postage thereon fully prepaid. Any
notice not given by registered or certified mail as aforesaid shall be deemed to
be given upon actual receipt of the same by the Person to whom the same is to be
given, provided that the refusal by such Person to receive any such notice shall
be deemed such Person's receipt of the same.
Section 11.10 Amendments. Subject to Section 2.6, all amendments to this
LLC Agreement will be in writing and signed by all of the Members.
Section 11.11 Multiple Counterparts. This LLC Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
Section 11.12 Remedies Cumulative. The remedies under this LLC Agreement
are cumulative and shall not exclude any other remedies to which any person may
be lawfully entitled.
Section 11.13 Choice of Law. This LLC Agreement shall be governed by, and
shall be construed in accordance with, the laws of the State of Delaware
(without regard to conflict of laws principles).
Section 11.14 Federal Income Tax Allocation. It is the intention of the
parties hereto that, for federal income tax purposes, the Company shall be
disregarded as an entity apart from the Special member, as long as the Special
Member is the holder of all the beneficial interest in the Company for federal
income tax purposes, or treated as a partnership if the Special Member is not
the holder of all the beneficial interest in the Company for federal income tax
purposes. The parties agree that, unless otherwise required by appropriate tax
authorities, the Special Member will file or cause to be filed annual or other
necessary returns, reports and other forms consistent with the characterization
of the Company as a division of the Special Member, or as a partnership, as the
case may be, for such tax purposes.
20
For so long as the Special Member's Percentage Interest is 100%, the
Company shall be disregarded as an entity separate from the Special Member and
all net income of the Company for any month as determined solely for federal
income tax purposes (and each item of income, gain, loss, credit and deduction
entering into the computation thereof) shall be allocated to the Special Member
and treated in the same manner as if the Company were a division or branch of
the Special Member.
IN WITNESS WHEREOF, each Member has executed this LLC Agreement, effective
as of the date first written above.
FRANKLIN CAPITAL CORPORATION
By: /s/ Jennifer J. Bolt
----------------------------------
Name: Jennifer J. Bolt
Title: President
Date Signed: September 29, 1998
FCC RECEIVABLES CORP.
By: /s/ Jennifer J. Bolt
----------------------------------
Name: Jennifer J. Bolt
Title: Executive Vice-President
Date Signed: September 29, 1998
21