EXHIBIT 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
WFN CREDIT COMPANY, LLC
This Limited Liability Company Agreement (together with the schedules
attached hereto, this "AGREEMENT") of WFN Credit Company, LLC (the "COMPANY"),
is entered into by World Financial Network National Bank, as the sole member
(the "MEMBER"). Capitalized terms used and not otherwise defined herein have the
meanings set forth on SCHEDULE A hereto.
The Member, by execution of this Agreement and filing of the
Certificate of Formation, hereby forms the Company as a limited liability
company pursuant to and in accordance with the Delaware Limited Liability
Company Act (6 DEL. C.ss.18-101 ET seq.), as amended from time to
time (the "ACT"), and this Agreement.
Section 1. NAME.
The name of the limited liability company formed hereby is WFN Credit
Company, LLC.
Section 2. PRINCIPAL BUSINESS OFFICE.
The principal business office of the Company shall be located at 800
Techcenter Drive, Gahanna, Ohio 43230 or such other location as may hereafter be
determined by the Member.
Section 3. REGISTERED OFFICE.
The address of the registered office of the Company in the State of
Delaware is c/o The Corporation Trust Company, 1209 Orange Street, in the City
of Wilmington, County of New Castle, Delaware 19801.
Section 4. REGISTERED AGENT.
The name and address of the registered agent of the Company for service
of process on the Company in the State of Delaware is The Corporation Trust
Company, 1209 Orange Street, in the City of Wilmington, County of New Castle,
Delaware 19801.
Section 5. MEMBERS. The mailing address of the Member is set forth on SCHEDULE B
attached hereto.
Section 6. CERTIFICATES.
Michael Perlowski is hereby designated as an "authorized person" within
the meaning of the Act, and has executed, delivered and filed the Certificate of
Formation of the Company with the Secretary of State of the State of Delaware.
Upon the filing of the Certificate of Formation with the Secretary of State of
the State of Delaware, his powers as an "authorized person" ceased, and the
Member thereupon became the designated "authorized person" and shall continue as
the designated "authorized person" within the meaning of the Act. The Member or
an Officer shall execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in any other jurisdiction in which the Company may wish to conduct
business.
The existence of the Company as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in the Act.
Section 7. PURPOSES. The purpose to be conducted or promoted by the Company is
to engage in the following activities:
(a) to purchase or otherwise acquire from World Financial Network
National Bank and its affiliates or trusts formed by World Financial Network
National Bank or its affiliates, and to hold, sell, transfer or pledge or
otherwise exercise ownership rights with respect to credit card receivables,
recoveries and collections related to such credit card receivables, any rights
of World Financial Network National Bank and its affiliates related to such
credit card receivables and any and all proceeds of the foregoing (the "CREDIT
CARD ASSETS");
(b) to act as settlor or depositor of trusts or other entities (a
"TRUST") formed to issue bonds, notes, certificates or other securities secured
by or evidencing beneficial ownership interests in the Credit Card Assets;
(c) to acquire, own, hold, transfer, assign, pledge and otherwise deal
with bonds, notes, certificates and other securities issued by a Trust or
pursuant to an indenture or similar agreement to which such a Trust is a party;
(d) to own equity interests in other limited liability companies or
partnerships whose purposes are restricted to those set forth in clauses (a)
through (c) above;
(e) for federal, state or local tax purposes, to serve as general
partner of any Trust;
(f) to establish any reserve account, spread account or other credit
enhancement for the benefit of any bond, note, certificate or other security
issued by any Trust or under any related indenture and to otherwise invest any
proceeds from Credit Card Assets and any other income as determined by the
Company's board of directors;
(g) to issue membership interests as provided for herein; and
2
(h) to engage in any lawful act or activity and to exercise any powers
permitted to limited liability companies organized under the laws of the State
of Delaware that are related to or incidental to and necessary, suitable or
convenient for the accomplishment of the purposes specified in CLAUSES (a)
through (g) above (including, without limitation the (i) the registration or
qualification of any securities issued by any Trust under the federal securities
laws or the Blue Sky laws of any State or jurisdiction and (ii) the entering
into of interest rate or basis swap, cap, floor or collar agreements, currency
exchange agreements or similar hedging transactions and referral, management,
servicing and administration agreements).
(i) The Company, by or through the Member, or any Director or Officer
on behalf of the Company, may enter into and perform the Transaction Documents
and all documents, agreements, certificates, or financing statements
contemplated thereby or related thereto, all without any further act, vote or
approval of any other Person notwithstanding any other provision of this
Agreement, the Act or applicable law, rule or regulation. The foregoing
authorization shall not be deemed a restriction on the powers of the Member or
any Director or Officer to enter into other agreements on behalf of the Company.
Section 8. POWERS.
Subject to SECTION 9(j), the Company, and the Board of Directors and
the Officers of the Company on behalf of the Company, (i) shall have and
exercise all powers necessary, convenient or incidental to accomplish its
purposes as set forth in SECTION 7 and (ii) shall have and exercise all of the
powers and rights conferred upon limited liability companies formed pursuant to
the Act.
Section 9. MANAGEMENT.
(a) BOARD OF DIRECTORS. Subject to SECTION 9(j), the business and
affairs of the Company shall be managed by or under the direction of a Board of
one or more Directors designated by the Member. Subject to SECTION 10, the
Member may determine at any time in its sole and absolute discretion the number
of Directors to constitute the Board. The authorized number of Directors may be
increased or decreased by the Member at any time in its sole and absolute
discretion, upon notice to all Directors, and subject in all cases to SECTION
10. The initial number of Directors shall be three. Each Director elected,
designated or appointed by the Member shall hold office until a successor is
elected and qualified or until such Director's earlier death, resignation,
expulsion or removal. Each Director shall execute and deliver the Directors
Agreement. The initial Directors designated by the Member are listed on Schedule
D hereto.
(b) POWERS. Subject to SECTION 9(j), the Board of Directors shall have
the power to do any and all acts necessary, convenient or incidental to or for
the furtherance of the purposes described herein, including all powers,
statutory or otherwise. Subject to SECTION 7, the Board of Directors has the
authority to bind the Company.
(c) MEETING OF THE BOARD OF DIRECTORS. The Board of Directors of the
Company may hold meetings, both regular and special, within or outside the State
of Delaware. Regular
3
meetings of the Board may be held without notice at such time and at such place
as shall from time to time be determined by the Board. Special meetings of the
Board may be called by the President on not less than one day's notice to each
Director by telephone, facsimile, mail, telegram or any other means of
communication, and special meetings shall be called by the President or
Secretary in like manner and with like notice upon the written request of any
one or more of the Directors.
(d) QUORUM: ACTS OF THE BOARD. At all meetings of the Board, a majority
of the Directors shall constitute a quorum for the transaction of business and,
except as otherwise provided in any other provision of this Agreement, the act
of a majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board. If a quorum shall not be present at any meeting
of the Board, the Directors present at such meeting may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee, as the case may be.
(e) ELECTRONIC COMMUNICATIONS. Members of the Board, or any committee
designated by the Board, may participate in meetings of the Board, or any
committee, by means of telephone conference or similar communications equipment
that allows all Persons participating in the meeting to hear each other, and
such participation in a meeting shall constitute presence in Person at the
meeting. If all the participants are participating by telephone conference or
similar communications equipment, the meeting shall be deemed to be held at the
principal place of business of the Company.
(f) COMMITTEES OF DIRECTORS.
(i) The Board may, by resolution passed by a majority of
the whole Board, designate one or more committees,
each committee to consist of one or more of the
Directors of the Company. The Board may designate one
or more Directors as alternate members of any
committee, who may replace any absent or disqualified
member at any meeting of the committee.
(ii) In the absence or disqualification of a member of a
committee, the member or members thereof present at
any meeting and not disqualified from voting, whether
or not such members constitute a quorum, may
unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or
disqualified member.
(iii) Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise
all the powers and authority of the Board in the
management of the business and affairs of the
Company. Such committee or committees shall have such
name or names as may be determined from time to time
by resolution adopted by the Board. Each
4
committee shall keep regular minutes of its meetings
and report the same to the Board when required.
(g) COMPENSATION OF DIRECTORS; EXPENSES. The Board shall have the
authority to fix the compensation of Directors. The Directors may be paid their
expenses, if any, of attendance at meetings of the Board, which may be a fixed
sum for attendance at each meeting of the Board or a stated salary as Director.
No such payment shall preclude any Director from serving the Company in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
(h) REMOVAL OF DIRECTORS. Unless otherwise restricted by law, any
Director or the entire Board of Directors may be removed or expelled, with or
without cause, at any time by the Member, and any vacancy caused by any such
removal or expulsion may be filled by action of the Member.
(i) DIRECTORS AS AGENTS. To the extent of their powers set forth in
this Agreement and subject to SECTION 9(j), the Directors are agents of the
Company for the purpose of the Company's business, and the actions of the
Directors taken in accordance with such powers set forth in this Agreement shall
bind the Company. Notwithstanding the last sentence of Section 18-402 of the
Act, except as provided in this Agreement or in a resolution of the Directors, a
Director may not bind the Company.
(j) LIMITATIONS ON THE COMPANY'S ACTIVITIES.
(i) This SECTION 9(j) is being adopted in order to comply
with certain provisions required in order to qualify
the Company as a "special purpose" entity.
(ii) The Board and the Member shall cause the Company to
do or cause to be done all things necessary to
preserve and keep in full force and effect its
existence, rights (charter and statutory) and
franchises; PROVIDED, HOWEVER, that the Company shall
not be required to preserve any such right or
franchise if: (1) the Board shall determine that the
preservation thereof is no longer desirable for the
conduct of its business and that the loss thereof is
not disadvantageous in any material respect to the
Company and (2) so long as the Obligations are
outstanding, the Rating Agency Condition is
satisfied. The Board also shall cause the Company to:
(A) maintain its own separate books and records
and bank accounts;
(B) at all times hold itself out to the public
and all other Persons as a legal entity
separate from the Member and any other
Person;
(C) have a Board of Directors separate from that
of the Member and any other Person;
5
(D) file its own tax returns, if any, as may be
required under applicable law, to the extent
(1) not part of a consolidated group filing
a consolidated return or returns or (2) not
treated as a division for tax purposes of
another taxpayer, and pay any taxes so
required to be paid under applicable law;
(E) except as contemplated by the Transaction
Documents, not commingle its assets with
assets of any other Person;
(F) conduct its business in its own name and
strictly comply with all organizational
formalities to maintain its separate
existence;
(G) maintain separate financial statements;
(H) pay its own liabilities only out of its own
funds;
(I) maintain an arm's length relationship with
its Affiliates and the Member;
(J) pay the salaries of its own employees, if
any;
(K) not hold out its credit or assets as being
available to satisfy the obligations of
others;
(L) allocate fairly and reasonably any overhead
for shared office space;
(M) use separate stationery, invoices and
checks;
(N) except as contemplated by the Transaction
Documents, not pledge its assets for the
benefit of any other Person;
(O) correct any known misunderstanding regarding
its separate identity;
(P) maintain adequate capital in light of its
contemplated business purpose, transactions
and liabilities;
(Q) cause its Board of Directors to meet at
least annually or act pursuant to written
consent and keep minutes of such meetings
and actions and observe all other Delaware
limited liability company formalities;
(R) not acquire any securities of the Member;
and
6
(S) cause the Directors, Officers, agents and
other representatives of the Company to act
at all times with respect to the Company
consistently and in furtherance of the
foregoing and in the best interests of the
Company.
Failure of the Company, or the Member or
Board on behalf of the Company, to comply
with any of the foregoing covenants or any
other covenants contained in this Agreement
shall not affect the status of the Company
as a separate legal entity or the limited
liability of the Member or the Directors.
(iii) So long as any Obligation is outstanding, the Board
shall not cause or permit the Company to:
(A) except as contemplated by the Transaction
Documents, guarantee any obligation of any
Person, including any Affiliate;
(B) engage, directly or indirectly, in any
business other than the actions required or
permitted to be performed under SECTION 7,
the Transaction Documents or this SECTION
9(j);
(C) incur, create or assume any indebtedness
other than as expressly permitted under the
Transaction Documents;
(D) make or permit to remain outstanding any
loan or advance to, or, except as permitted
by SECTION 7, to own or acquire any stock or
securities of, any Person, except that the
Company may invest in those investments
permitted under the Transaction Documents
and may make any advance required or
expressly permitted to be made pursuant to
any provisions of the Transaction Documents
and permit the same to remain outstanding in
accordance with such provisions;
(E) to the fullest extent permitted by law,
engage in any dissolution or liquidation
other than such activities as are expressly
permitted pursuant to any provision of the
Transaction Documents; or
(F) except as permitted by SECTION 7, to form,
acquire or hold any subsidiary (whether
corporate, partnership, limited liability
company or other).
Section 10. [Reserved]
Section 11. OFFICERS.
7
(a) OFFICERS. The initial Officers of the Company shall be designated
by the Member. The additional or successor Officers of the Company shall be
chosen by the Board and shall consist of at least a President, a Secretary and a
Treasurer. The Board of Directors may also choose one or more Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Any number of offices may be
held by the same person. The Board shall choose a President, a Secretary and a
Treasurer. The Board may appoint such other Officers and agents as it shall deem
necessary or advisable who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board. The salaries of all Officers and agents of the Company shall
be fixed by or in the manner prescribed by the Board. The Officers of the
Company shall hold office until their successors are chosen and qualified. Any
Officer may be removed at any time, with or without cause, by the affirmative
vote of a majority of the Board. Any vacancy occurring in any office of the
Company shall be filled by the Board. The initial Officers of the Company
designated by the Member are listed on Schedule E hereto.
(b) PRESIDENT. The President shall be the chief executive officer of
the Company, shall preside at all meetings of the Board, shall be responsible
for the general and active management of the business of the Company and shall
see that all orders and resolutions of the Board are carried into effect. The
President or any other Officer authorized by the President or the Board shall
execute all bonds, mortgages and other contracts, except: (i) where required or
permitted by law or this Agreement to be otherwise signed and executed,
including SECTION 7(b); (ii) where signing and execution thereof shall be
expressly delegated by the Board to some other Officer or agent of the Company,
and (iii) as otherwise permitted in SECTION 11(c).
(c) VICE PRESIDENT. In the absence of the President or in the event of
the President's inability to act, the Vice President, if any (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated by the Directors, or in the absence of any designation, then 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 the restrictions upon
the President. The Vice Presidents, if any, shall perform such other duties and
have such other powers as the Board may from time to time prescribe.
(d) SECRETARY AND ASSISTANT SECRETARY. The Secretary shall be
responsible for filing legal documents and maintaining records for the Company.
The Secretary shall attend all meetings of the Board and record all the
proceedings of the meetings of the Company and of the Board in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. The Secretary shall give, or shall cause to be given, notice of all
meetings of the Member, if any, and special meetings of the Board, and shall
perform such other duties as may be prescribed by the Board or the President,
under whose supervision the Secretary shall serve. The Assistant Secretary, or
if there be more than one, the Assistant Secretaries in the order determined by
the Board (or if there be no such determination, then in order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board may from time to time prescribe
8
(e) TREASURER AND ASSISTANT TREASURER. The Treasurer shall have the
custody of the Company funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the Board.
The Treasurer shall disburse the funds of the Company as may be ordered by the
Board, taking proper vouchers for such disbursements, and shall render to the
President and to the Board, at its regular meetings or when the Board so
requires, an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability to
act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe.
(f) OFFICERS AS AGENTS. The Officers, to the extent of their powers set
forth in this Agreement or otherwise vested in them by action of the Board not
inconsistent with this Agreement, are agents of the Company for the purpose of
the Company's business and the actions of the Officers taken in accordance with
such powers shall bind the Company.
(g) DUTIES OF BOARD AND OFFICERS. Except to the extent otherwise
provided herein, each Director and Officer shall have a fiduciary duty of
loyalty and care similar to that of directors and officers of business
corporations organized under the General Corporation Law of the State of
Delaware.
Section 12. LIMITED LIABILITY.
Except as otherwise expressly provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be the debts, obligations and liabilities solely of the
Company, and neither the Member nor any Director shall be obligated personally
for any such debt, obligation or liability of the Company solely by reason of
being a Member or Director of the Company.
Section 13. CAPITAL CONTRIBUTIONS.
The Member has contributed to the Company property of an agreed value
as listed on SCHEDULE B attached hereto.
Section 14. ADDITIONAL CONTRIBUTIONS.
The Member is not required to make any additional capital contribution
to the Company. However, the Member may make additional capital contributions to
the Company at any time upon the written consent of such Member. To the extent
that the Member makes an additional capital contribution to the Company, the
Member shall revise SCHEDULE B of this Agreement. The provisions of this
Agreement, including this SECTION 14, are intended to benefit the Member and, to
the fullest extent permitted by law, shall not be construed as conferring any
benefit
9
upon any creditor of the Company (and no such creditor of the Company shall be a
third-party beneficiary of this Agreement) and the Member and shall not have any
duty or obligation to any creditor of the Company to make any contribution to
the Company or to issue any call for capital pursuant to this Agreement.
Section 15. ALLOCATION OF PROFITS AND LOSSES.
The Company's profits and losses shall be allocated to the Member.
Section 16. DISTRIBUTIONS.
Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Board. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not be required to make
a distribution to the Member on account of its interest in the Company if such
distribution would violate Section 18-607 of the Act or any other applicable law
or any Transaction Document.
Section 17. BOOKS AND RECORDS.
The Board shall keep or cause to be kept complete and accurate books of
account and records with respect to the Company's business. The books of the
Company shall at all times be maintained by the Board. The Member and its duly
authorized representatives shall have the right to examine the Company books,
records and documents during normal business hours. The Company, and the Board
on behalf of the Company, shall not have the right to keep confidential from the
Member any information that the Board would otherwise be permitted to keep
confidential from the Member pursuant to Section 18-305(c) of the Act. The
Company's books of account shall be kept using the method of accounting
determined by the Member. The Company's independent auditor, if any, shall be an
independent public accounting firm selected by the Member.
Section 18. REPORTS.
(a) Within 60 days after the end of each fiscal quarter, the Board
shall cause to be prepared an unaudited report setting forth as of the end of
such fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a
balance sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter, an
income statement of the Company for such fiscal
quarter.
(b) The Board shall use diligent efforts to cause to be prepared and
mailed to the Member, within 90 days after the end of each fiscal year, an
audited or unaudited report setting forth as of the end of such fiscal year:
10
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such fiscal
year; and
(iii) a statement of the Member's capital account.
(c) The Board shall, after the end of each fiscal year, use reasonable
efforts to cause the Company's independent accountants, if any, to prepare and
transmit to the Member as promptly as possible any such tax information as may
be reasonably necessary to enable the Member to prepare its federal, state and
local income tax returns relating to such fiscal year.
Section 19. OTHER BUSINESS.
The Member and any Affiliate of the Member may engage in or possess an
interest in other business ventures (unconnected with the Company) of every kind
and description, independently or with others. The Company shall not have any
rights in or to such independent ventures or the income or profits therefrom by
virtue of this Agreement.
Section 20. EXCULPATION AND INDEMNIFICATION.
(a) Neither the Member nor any Officer, Director, employee or agent of
the Company nor any employee, representative, agent or Affiliate of the Member
(collectively, the "COVERED PERSONS") shall be liable to the Company or any
other Person who has an interest in or claim against the Company for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Covered Person in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on such
Covered Person by this Agreement, except that a Covered Person shall be liable
for any such loss, damage or claim incurred by reason of such Covered Person's
gross negligence or willful misconduct.
(b) To the fullest extent permitted by applicable law, a Covered Person
shall be entitled to indemnification from the Company for any loss, damage or
claim incurred by such Covered Person by reason of any act or omission performed
or omitted by such Covered Person in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the authority conferred
on such Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Covered Person by reason of such Covered Person's gross negligence or
willful misconduct with respect to such acts or omissions; PROVIDED, HOWEVER,
that any indemnity under this SECTION 20 by the Company shall be provided out of
and to the extent of Company assets only, and the Member shall not have personal
liability on account thereof; and PROVIDED FURTHER, that so long as any
Obligation is outstanding, no indemnity payment from funds of the Company (as
distinct from funds from other sources, such as insurance) of any indemnity
under this SECTION 20 shall be payable from amounts allocable to any other
Person pursuant to the Transaction Documents.
(c) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person defending any claim, demand,
action, suit or proceeding shall,
11
from time to time, be advanced by the Company prior to the final disposition of
such claim, demand, action, suit or proceeding upon receipt by the Company of an
undertaking by or on behalf of the Covered Person to repay such amount if it
shall be determined that the Covered Person is not entitled to be indemnified as
authorized in this SECTION 20.
(d) A Covered Person shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the Covered
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Company, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
(e) To the extent that, at law or in equity, a Covered Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Company or to any other Covered Person, a Covered Person acting under this
Agreement shall not be liable to the Company or to any other Covered Person for
its good faith reliance on the provisions of this Agreement or any approval or
authorization granted by the Company or any other Covered Person. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities
of a Covered Person otherwise existing at law or in equity, are agreed by the
Member to replace such other duties and liabilities of such Covered Person.
(f) The foregoing provisions of this SECTION 20 shall survive any
termination of this Agreement.
Section 21. ASSIGNMENTS.
Subject to SECTION 23, the Member may assign in whole or in part its
limited liability company interest in the Company. If the Member transfers all
of its limited liability company interest in the Company pursuant to this
SECTION 21, the transferee shall be admitted to the Company as a member of the
Company upon its execution of an instrument signifying its agreement to be bound
by the terms and conditions of this Agreement, which instrument may be a
counterpart signature page to this Agreement. Such admission shall be deemed
effective immediately prior to the transfer and, immediately following such
admission, the transferor Member shall cease to be a member of the Company.
Notwithstanding anything in this Agreement to the contrary, any successor to the
Member by merger or consolidation in compliance with the Transaction Documents
shall, without further act, be the Member hereunder, and such merger or
consolidation shall not constitute an assignment for purposes of this Agreement
and the Company shall continue without dissolution.
Section 22. RESIGNATION.
So long as any Obligation is outstanding, the Member may not resign,
except as permitted under the Transaction Documents and if the Rating Agency
Condition is satisfied. If the Member is permitted to resign pursuant to this
SECTION 22, an additional member of the Company shall be
12
admitted to the Company, subject to SECTION 23, upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement, which instrument may be a counterpart signature page to this
Agreement. Such admission shall be deemed effective immediately prior to the
resignation and, immediately following such admission, the resigning Member
shall cease to be a member of the Company.
Section 23. ADMISSION OF ADDITIONAL MEMBERS.
One or more additional members of the Company may be admitted to the
Company with the written consent of the Member; PROVIDED, HOWEVER, that,
notwithstanding the foregoing, so long as any Obligation remains outstanding, no
additional Member may be admitted to the Company unless the Rating Agency
Condition is satisfied.
Section 24. DISSOLUTION.
(a) Subject to SECTION 9(j), the Company shall be dissolved, and its
affairs shall be wound up upon the first to occur of the following: (i) the
termination of the legal existence of the last remaining member of the Company
or the occurrence of any other event which terminates the continued membership
of the last remaining member of the Company in the Company unless the business
of the Company is continued in a manner permitted by this Agreement or the Act
or (ii) the entry of a decree of judicial dissolution under Section 18-802 of
the Act. Upon the occurrence of any event that causes the last remaining member
of the Company to cease to be a member of the Company, to the fullest extent
permitted by law, the personal representative of such member is hereby
authorized to, and shall, within 90 days after the occurrence of the event that
terminated the continued membership of such member in the Company, agree in
writing (i) to continue the Company and (ii) to the admission of the personal
representative or its nominee or designee, as the case may be, as a substitute
member of the Company, effective as of the occurrence of the event that
terminated the continued membership of the last remaining member of the Company
in the Company.
(b) Notwithstanding any other provision of this Agreement, the
Bankruptcy of the Member shall not cause the Member to cease to be a member of
the Company and upon the occurrence of such an event, the business of the
Company shall continue without dissolution.
(c) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the Company in an orderly manner), and the assets of the Company shall
be applied in the manner, and in the order of priority, set forth in Section
18-804 of the Act.
(d) The Company shall terminate when (i) all of the assets of the
Company, after payment of or due provision for all debts, liabilities and
obligations of the Company shall have been distributed to the Member in the
manner provided for in this Agreement and (ii) the Certificate of Formation
shall have been canceled in the manner required by the Act.
Section 25. WAIVER OF PARTITION; NATURE OF INTEREST.
13
Except as otherwise expressly provided in this Agreement, to the
fullest extent permitted by law, the Member hereby irrevocably waives any right
or power that such Person might have to cause the Company or any of its assets
to be partitioned, to cause the appointment of a receiver for all or any portion
of the assets of the Company, to compel any sale of all or any portion of the
assets of the Company pursuant to any applicable law or to file a complaint or
to institute any proceeding at law or in equity to cause the dissolution,
liquidation, winding up or termination of the Company. The Member shall not have
any interest in any specific assets of the Company, and the Member shall not
have the status of a creditor with respect to any distribution pursuant to
SECTION 16 hereof. The interest of the Member in the Company is personal
property.
Section 26. BENEFITS OF AGREEMENT; NO THIRD-PARTY RIGHTS.
None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditor of the Company or by any creditor of the Member.
Nothing in this Agreement shall be deemed to create any right in any Person
(other than Covered Persons) not a party hereto, and this Agreement shall not be
construed in any respect to be a contract in whole or in part for the benefit of
any third Person (except as provided in SECTION 29).
Section 27. SEVERABILITY OF PROVISIONS.
Each provision of this Agreement shall be considered severable and if
for any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those
portions of this Agreement which are valid, enforceable and legal.
Section 28. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
Section 29. [Reserved].
Section 30. GOVERNING LAW.
This Agreement shall be governed by and construed under the laws of the
State of Delaware (without regard to conflict of laws principles), all rights
and remedies being governed by said laws.
Section 31. AMENDMENTS.
Subject to Section 9(j), this Agreement may be modified, altered,
supplemented or amended pursuant to a written agreement executed and delivered
by the Member. Notwithstanding anything to the contrary in this Agreement, so
long as any Obligation is outstanding, this Agreement may not be modified,
altered, supplemented or amended unless the
14
Rating Agency Condition is satisfied except: (i) to cure any ambiguity or (ii)
to convert or supplement any provision in a manner consistent with the intent of
this Agreement and the other Transaction Documents.
Section 32. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Agreement and all of which together
shall constitute one and the same instrument.
Section 33. NOTICES.
Any notices required to be delivered hereunder shall be in writing and
personally delivered, mailed or sent by telecopy, electronic mail or other
similar form of rapid transmission, and shall be deemed to have been duly given
upon receipt (a) in the case of the Company, to the Company at its address in
SECTION 2, (b) in the case of the Member, to the Member at its address as listed
on SCHEDULE B attached hereto and (c) in the case of either of the foregoing, at
such other address as may be designated by written notice to the other party.
Section 34. EFFECTIVENESS.
Pursuant to Section 18-201 (d) of the Act, this Agreement shall be
effective as of the time of the filing of the Certificate of Formation with the
Office of the Delaware Secretary of State on May 1, 2001.
15
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Limited Liability Company Agreement as of the 1st
day of May, 2001.
Member:
WORLD FINANCIAL NETWORK
NATIONAL BANK
By: /s/ Daniel T. Groomes
--------------------------------------------
Name: Daniel T. Groomes
Title: President
S-1
SCHEDULE A
DEFINITIONS
A. DEFINITIONS
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"ACT" has the meaning set forth in the preamble to this Agreement.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly Controlling or Controlled by or under direct or indirect
common Control with such Person.
"AGREEMENT" means this Limited Liability Company Agreement of the
Company, together with the schedules attached hereto, as amended, restated or
supplemented or otherwise modified from time to time.
"BANKRUPTCY" means, with respect to any Person, if such Person (i)
makes an assignment for the benefit of creditors, (ii) files a voluntary
petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has
entered against it an order for relief, in any bankruptcy or insolvency
proceedings, (iv) files a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, (v) files an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against it in any proceeding of this nature, (vi) seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator of the Person
or of all or any substantial part of its properties, or (vii) if 90 days after
the commencement of any proceeding against the Person seeking reorganization,
arrangement, composition, readjustment, liquidation or similar relief under any
statute, law or regulation, if the proceeding has not been dismissed, or if
within 60 days after the appointment without such Person's consent or
acquiescence of a trustee, receiver or liquidator of such Person or of all or
any substantial part of its properties, the appointment is not vacated or
stayed, or within 90 days after the expiration of any such stay, the appointment
is not vacated. The foregoing definition of "Bankruptcy" is intended to replace
and shall supersede and replace the definition of"Bankruptcy" set forth in
Sections 18-101(1) and 18-304 of the Act.
"BOARD" or "BOARD OF DIRECTORS" means the Board of Directors of the
Company.
"CERTIFICATE OF FORMATION" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on May 1,
2001, as amended or amended and restated from time to time.
"COMPANY" means WFN Credit Company, LLC, a Delaware limited liability
company.
A-1
"CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or general partnership or managing
member interests, by contract or otherwise. "Controlling" and "Controlled" shall
have correlative meanings. Without limiting the generality of the foregoing, a
Person shall be deemed to Control any other Person in which it owns, directly or
indirectly, a majority of the ownership interests.
"COVERED PERSONS" has the meaning set forth in SECTION 20(a).
"CREDIT CARD ASSETS" is defined in SECTION 7.
"DIRECTORS" means the Persons elected to the Board of Directors from
time to time by the Member. A Director is hereby designated as a "manager" of
the Company within the meaning of Section 18-101(10) of the Act.
"DIRECTORS AGREEMENT" means the agreement of the Directors in the form
attached hereto as Schedule C. The Directors Agreement shall be deemed
incorporated into, and a part of, this Agreement.
"MEMBER" means World Financial Network National Bank, as the initial
member of the Company, and includes any Person admitted as an additional member
of the Company or a substitute member of the Company pursuant to the provisions
of this Agreement, each in its capacity as a member of the Company.
"OBLIGATIONS" shall mean the indebtedness, liabilities and obligations
of the Company or any Trust under or in connection with this Agreement, the
other Transaction Documents or any related document in effect as of any date of
determination.
"OFFICER" means an officer of the Company described in SECTION 11.
"OFFICER'S CERTIFICATE" means a certificate signed by any Officer of
the Company who is authorized to act for the Company in matters relating to the
Company.
"PERSON" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association, joint
stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.
"RATING AGENCY CONDITION" has the meaning assigned to that term in the
Transaction Documents.
"TRANSACTION DOCUMENTS" means this Agreement, the Directors Agreement,
each pooling and servicing agreement, transfer and servicing agreement,
receivables purchase agreement, indenture or other agreement entered into by the
Company or by a trust at the direction of the Company from time to time in
connection with the acquisition, creation, funding or financing of
A-2
Credit Card Assets, and all other documents, instruments and certificates
delivered in connection therewith.
B. RULES OF CONSTRUCTION
Definitions in this Agreement apply equally to both the singular and plural
forms of the defined terms. The words "include" and "including" shall be deemed
to be followed by the phrase "without limitation." The terms "herein," "hereof"
and "hereunder" and other words of similar import refer to this Agreement as a
whole and not to any particular Section, paragraph or subdivision. The Section
titles appear as a matter of convenience only and shall not affect the
interpretation of this Agreement. All Section, paragraph, clause, Exhibit or
Schedule references not attributed to a particular document shall be references
to such parts of this Agreement.
A-3
SCHEDULE B
MEMBER
- --------------------------------------------------------------------------------------------------------------------
Agreed Value of Membership
Name Mailing Address Capital Contribution Interest
- --------------------------------------------------------------------------------------------------------------------
World Financial Network 800 Techcenter Drive, $1,000 100%
National Bank Gahanna, Ohio 43230
Attn: Daniel T. Groomes
- --------------------------------------------------------------------------------------------------------------------
B-1
SCHEDULE C
Directors Agreement
WFN Credit Company, LLC
May 1, 2001
For good and valuable consideration, each of the undersigned Persons,
who have been designated as directors of WFN Credit Company, LLC, a Delaware
limited liability company (the "Company"), in accordance with the Limited
Liability Company Agreement of the Company, dated as of May 1, 2001, as it may
be amended or restated from time to time (the "LLC AGREEMENT"), hereby agree as
follows:
1. Each of the undersigned accepts such Person's rights and authority
as a Director under the LLC Agreement and agrees to perform and discharge such
Person's duties and obligations as a Director under the LLC Agreement, and
further agrees that such rights, authorities, duties and obligations under the
LLC Agreement shall continue until such Person's successor as a Director is
designated or until such Person's resignation or removal as a Director in
accordance with the LLC Agreement. Each of the undersigned agrees and
acknowledges that it has been designated as a "manager" of the Company within
the meaning of the Delaware Limited Liability Company Act.
2. So long as any Obligation is outstanding, each of the undersigned
agrees, solely in its capacity as a creditor of the Company on account of any
indemnification or other payment owing to the undersigned by the Company, not to
acquiesce, petition or otherwise invoke or cause the Company to invoke the
process of any court or governmental authority for the purpose of commencing or
sustaining a case against the Company under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Company or any
substantial part of the property of the Company, or ordering the winding up or
liquidation of the affairs of the Company.
3. THIS DIRECTORS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Initially capitalized terms used and not otherwise defined herein have
the meanings set forth in the LLC Agreement.
This Directors Agreement may be executed in any number of counterparts,
each of which shall be deemed an original of this Directors Agreement and all of
which together shall constitute one and the same instrument.
C-1
IN WITNESS WHEREOF, the undersigned have executed this Directors
Agreement as of the day and year first above written.
-------------------------------------------
Daniel T. Groomes
-------------------------------------------
Robert P. Armiak
-------------------------------------------
Carolyn S. Melvin
C-2
SCHEDULE D
DIRECTORS
---------
1. Daniel T. Groomes
2. Robert P. Armiak
3. Carolyn S. Melvin
D-1
SCHEDULE E
OFFICERS TITLE
- -------- -----
Daniel T. Groomes
Robert P. Armiak Vice President and Treasurer
Carolyn S. Melvin Senior Vice President and Secretary
Karen Morauski Assistant Secretary
E-1