Exhibit 10.60
OPERATING AGREEMENT FOR
PREMIERE CREDIT OF NORTH AMERICA, LLC
AN INDIANA LIMITED LIABILITY COMPANY
Table of Contents
EXPLANATORY STATEMENT
DEFINITIONS
A. "Agreement"
B. "Bankruptcy"
C. "Company"
D. "Dissolution"
E. "Expulsion"
F. "Member"
G. "Membership Interest"
H. "Membership Rights"
I. "Persons"
J. "Resignation"
K. "Retirement"
Section 1. Articles of Organization
Section 2. Term of This Agreement
Section 3. Contributions
3.1 Original Contributions
3.2 Capital Accounts
3.3 Liability for Contributions
3.4 Compromise of a Member's Liability
3.5 Additional Contributions
Section 4. Profit and Loss
4.1 Allocation of Profits and Losses
4.2 Allocation of Taxable Items
4.3 Special Allocations of Income
4.4 Other Allocation Rules
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Exhibit 10.60
Section 5. Distributions of Cash
Section 6. Distributions upon Resignation
Section 7. Distributions in Kind
Section 8. Management of the Company
8.1 Management by David A. Hoeft, Todd J. Wolfe and the Managers
8.2 Replacement of Manager
8.3 Rights Upon Additional Ownership
8.4 Duties of Managers
8.5 Certain Powers of Managers
8.6 Number of Managers
8.7 Regular Meetings
8.8 Special Meetings
8.9 Notice
8.10 Quorum
8.11 Manner of Acting
8.12 Informal Action by Managers
8.13 Participation by Electronic Means
8.14 Resignation
8.15 Removal
8.16 Committees
8.17 Compensation
8.18 Presumption of Assent
8.19 Transactions with Company and Otherwise
Section 9. Voting Trust
Section 10. Members
10.1 l Members
10.2 Admission of New Members
10.3 Annual Meeting
10.4 Special Meetings
10.5 Place of Meetings
10.6 Notice of Meetings
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Exhibit 10.60
10.7 Meeting of all Members
10.8 Quorum
10.9 Manner of Acting
10.10 Proxies
10.11 Voting by Certain Members
10.12 Action by Members Without a Meeting
10.13 Voting by Ballot
10.14 Waiver of Notice
Section 11. Banking
Section 12. Books; Fiscal Year; Audits
Section 13. Membership Interest and Membership Rights
of a Deceased, Incompetent, or Dissolved Member
Section 14. Transfer of Membership Interest and Membership Rights
14.1 Call Option
14.2 Put Option
14.3 Process for Exercise of Call and Put
14.4 Offer to Purchase ("Cherry Pie")
14.5 Rights of Refusal
Section 15. Expulsion of a Member
15.1 Right of Members to Expel
15.2 Voting Requirements for Expulsion of Members
15.3 Consequences of Cessation of Membership
15.4 Right of Company to Require Certain Former Members to Sell
their Company Interests to Company
Section 16. Death, Bankruptcy, Retirement, or Resignation of a Member
16.1 Purchase of Membership Interest
16.2 Consequences of Bankruptcy, Retirement or Resignation
Section 17. Certain Tax Aspects Incident to Transactions
Contemplated by This Agreement
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Exhibit 10.60
Section 18. The Member's Value
Section 19. Delivery of Evidence of Interest
Section 20. Notices
Section 21. Additional Members
Section 22. Dissolution and Termination
22.1 Dissolution
22.2 Filing of Statement of Intent to Dissolve
22.3 Effect of Filing of Dissolving Statement
22.4 Distribution of Assets upon Dissolution
22.5 Articles of Dissolution
22.6 Filing of Articles of Dissolution
22.7 Managers' Responsibility
Section 23. Power of Attorney
Section 24. Governing Law
Section 25 Miscellaneous Provisions
25.1 Inurnment
25.2 No Limit on Personal Activities
25.3 Further Assurances
25.4 Gender and Headings
25.5 Entire Agreement
25.6 Severability
25.7 Waiver of Action for Partition
25.8 Amendments
25.9 Execution of Additional Instruments
25.10 Title to Company Properties
25.11 Company Interests
25.12 Waivers
25.13 Rights and Remedies Cumulative
25.14 Legend on Certificates
25.15 Company Seal
25.16 Arbitration
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Exhibit 10.60
25.17 Not for Benefit of Creditors
CERTIFICATE
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Exhibit 10.60
OPERATING AGREEMENT FOR
PREMIERE CREDIT OF NORTH AMERICA, LLC
AN INDIANA LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT is effective as of this 28 day of January
2004, (the "Effective Date") by and among the members of PREMIERE CREDIT OF
NORTH AMERICA, LLC, an Indiana Limited Liability Company (the "Company"), who
have signed this Operating Agreement and a Subscription Agreement agreeing to be
obligated by the terms of this Operating Agreement.
Explanatory Statement
This Operating Agreement governs the relationship among members of the
Company and between the Company and the members, pursuant to the Indiana
Business Flexibility Act, as amended from time to time (the "Act").
In consideration of their mutual promises, covenants, and agreements,
the parties hereto do hereby promise, covenant, and agree as follows:
Definitions
Throughout this Operating Agreement, and unless the context otherwise
requires, the word or words set forth below within the quotation marks shall be
deemed to mean the words which follow them:
A. "Agreement" This Operating Agreement.
B. "Bankruptcy" The filing by a Member of a petition commencing a
voluntary case under the Bankruptcy Code; a general assignment by a Member for
the benefit of creditors; an admission in writing by a Member of his inability
to pay his debts as they become due; the filing by a Member of any petition or
answer in any proceeding seeking for himself, or consenting to, or acquiescing
in, any insolvency, receivership, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future statute, law, or
regulation, or the filing by a Member of an answer or other pleading admitting
or failing to deny, or to contest, the material allegations of the petition
filed against him in any such proceeding; the seeking or consenting to, or
acquiescence by a Member in, the appointment of any trustee, receiver, or
liquidator of him, or any part of his property; and the commencement against a
Member of an involuntary case under the Bankruptcy Code, or a proceeding under
any receivership, composition, readjustment, liquidation, insolvency,
dissolution, or like law or statute, which case or proceeding is not dismissed
or vacated within 60 days.
Exhibit 10.60
C. "Company" PREMIERE CREDIT OF NORTH AMERICA, LLC, an Indiana Limited
Liability Company.
D. "Dissolution" (1) in the case of a Member who is acting as a Member
by virtue of being a trustee of a trust, the termination of the trust (but not
merely the substitution of a new trustee); (2) in the case of a Member that is a
partnership, the dissolution and commencement of winding up of the partnership;
(3) in the case of a Member that is a corporation, the filing of a certificate
of dissolution, or its equivalent, for the corporation or the revocation of its
charter; (4) in the case of a limited liability company, the filing of articles
of dissolution, or its equivalent, for the limited liability company, or the
involuntary dissolution by a nonappealable order of the district court; or (5)
in the case of an estate, the distribution by the fiduciary of the estate's
entire Membership Interest.
E. "Expulsion" The final decision of expulsion of a Member as provided
in this Operating Agreement.
F. "Member" Each of the persons signatory hereto by signing either this
Agreement or a Subscription Agreement agreeing to be obligated by the terms of
this Agreement, and any other person or persons who may subsequently be
designated as a Member of this Company pursuant to the further terms of this
Agreement.
G. "Membership Interest" The share of profits and losses, gains,
deductions, credits, cash, assets, and other distributions of a Member.
H. "Membership Rights" The rights of a Member which are comprised of a
Member's" (1) Membership Interest, and (2) right to participate in the
management of the Company.
I. "Persons" Individuals, partnerships, corporations, limited liability
companies, unincorporated associations, trusts, estates, and any other type of
entity.
J. "Resignation" The decision or determination of a Member to no longer
continue as a Member, upon written notice to the Company.
K. "Retirement" The withdrawal from the Company upon such terms and
events as are provided in this Operating Agreement, which will permit withdrawal
of a Member without violating or breaching the terms of this Operating
Agreement.
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Exhibit 10.60
Section 1. Articles of Organization.
The Articles of Organization of this Company, as they may be amended
from time to time by the members, are hereby adopted and incorporated by
reference in this Operating Agreement. In the event of any inconsistency between
the Articles of organization and this Operating Agreement, the terms of the
Articles of Organization shall govern.
The purposes for which the Company is formed are: to own and collect
certain debts and, specifically student loans, and any and all other business
that LLC's may conduct under the Act.
Section 2. Term of This Agreement.
The term of this Operating Agreement shall be co-terminus with the term
of the Company. This Operating Agreement shall terminate upon the voluntary or
involuntary dissolution of the Company or the expiration of its term as provided
in the Articles of Organization.
Section 3. Contributions.
3.1 Original Contributions. The original capital contributions to the
Company of each of the Members shall be made in accordance with their respective
Subscription Agreements, which shall be effective with their respective
execution and delivery of the Subscription Agreements, the terms of which are
hereby incorporated by reference as if fully set forth herein.
3.2 Capital Accounts.
A separate capital account ("Capital Account") will be maintained for
each Member in accordance with section 704(b) of the Internal Revenue Code
("Code") and Treasury Regulations section 1.703-1(b)(2)(iv). Each Member's
Capital Account will be increased by (1) the amount of money contributed by him
to the Company; (2) the fair market value of property contributed by him to the
Company (net of liabilities secured by such contributed property that the
Company is considered to assume or take subject to under section 752 of the
Code); and (3) allocations to him of income and gain as set forth in such
Regulations, taking into account adjustments to reflect book value. Each
Member's Capital Account will be decreased by (1) the amount of money
distributed to him by the Company; (2) the fair market value of property
distributed to him by the Company (net of liabilities secured by such
distributed property that he is considered to assume or take subject to under
section 752 of the Code); (3) allocations to him of expenditures described in
section 705(a)(2)(B) of the Code; and (4) allocations to the account of Company
loss and deduction as set forth in such Regulations, taking into account
adjustments to reflect a book value.
In the event of a permitted sale or exchange of a Membership Interest
in the Company, the Capital Account of the transferor shall become the Capital
Account of the transferee to the extent it relates to the transferred Interest.
The parties acknowledge however that such action will not impact the tax basis
of the transferor.
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Exhibit 10.60
The manner in which Capital Accounts are to be maintained pursuant to
this Section 3.2 is intended to comply with the requirements of Code section
704(b) and the Treasury Regulations promulgated thereunder. If in the opinion of
the Managers the manner in which Capital Accounts are to be maintained pursuant
to the preceding provisions of this Section 3.2 should be modified in order to
comply with Code Section 704(b) and the Treasury Regulations thereunder, then
notwithstanding anything to the contrary contained in the preceding provisions
of this Section 3.2, the Managers may alter the method in which Capital Accounts
are maintained, and the Managers shall have the right to amend this Agreement
without action by the Members to reflect any such change in the manner in which
Capital Accounts are maintained; provided, however, that any change in the
manner of maintaining Capital Accounts shall not materially alter the economic
agreement between or among the members.
Upon liquidation of the Company (or any Member's Membership Interest),
liquidating distributions will be calculated in accordance with the positive
Capital Account balances of the Members, as determined after taking into account
all Capital Account adjustments for the Company's taxable year during which the
liquidation occurs. Liquidation proceeds will be paid to all Members (upon
liquidation of the Company) or to the liquidating Member (if the Company elects
to continue its business) within 60 days of the end of the taxable year (or, if
later, within 90 days after the date of the liquidation).
If any Member has a deficit balance in his Capital Account following
the liquidation of his interest in the Company, as determined after taking into
account all Capital Account adjustments for the Company's taxable year during
which the liquidation occurs, upon being so notified and requested by the
Company, he is unconditionally obligated to restore the amount of such deficit
balance to the Company within 60 days of the end of the taxable year (or, if
later, within 90 days after the date of such liquidation).
3.3 Liability for Contributions. Each Member is obligated to the
Company to perform his Subscription Agreement and any other promise contained in
this Operating Agreement to contribute cash or property or perform services,
even if he is unable to perform because of death, disability, or any other
reason. If a Member does not make the contribution required by the Subscription
Agreement or this Operating Agreement, the Member is obligated at the option of
the Company to contribute cash equal to that portion of the value, as stated in
the Subscription Agreement, or such contribution that has not been made.
3.4 Compromise of a Member's Liability. The obligation of a Member to
make a contribution to the Company may be compromised only by a consent in
writing of all of the Members of the Company.
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Exhibit 10.60
3.5 Additional Contributions. No addition capital contributions must be
made by the Members.
Section 4. Profit and Loss.
4.1 Allocation of Profits and Losses. The percentages of Membership
Rights and Membership Interests of each of the Members in the Company as of the
effective date of this Agreement shall be as follows and as stated on Exhibit A.
Member Membership Interest
Nelnet, Inc. 50%
Todd J. Wolfe 25.15
David A. Hoeft 18.85
Tina D. Mercer 6.0
Additional contributions by the Members provided for in
Section 3.5 of this Agreement shall not alter the allocations of profits and
losses provided immediately above and shall not constitute loans to the Company,
but may constitute additional contributions by each such Member for tax
computation purposes if such treatment is required by applicable tax laws and
regulations.
4.2 Allocation of Taxable Items
Unless otherwise determined in accordance with Section 4.3 hereof, the Company's
profits or losses for any fiscal year shall be allocated among the Members in
accordance with their respective Membership Interests.
4.3 Special Allocations of Income - Income of the Company shall be
allocated among the Members on such basis and in such proportion as the Members
may from time to time agree and may be on a basis and in amounts at variance
with their respective Membership interests.
4.4 Other Allocation Rules -
(a) To determine the profits, losses, or any other items allocable to
any period, profits, losses, and any such other items shall be determined on a
daily, monthly, or other basis, as determined by the Managers, using any
permissible method under Internal Revenue Code Section 706 and the Regulations
thereunder.
(b) The Members are aware of the income tax consequences of the
allocations made by this section 4.2 and hereby agree to be bound by the
provisions of this section 4.2 in reporting their shares of Company income and
loss for income tax purposes.
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Exhibit 10.60
Section 5. Distributions.of Cash.
Distributions shall be distributed at such times and in such amounts as may be
determined by Todd J. Wolfe and David A. Hoeft, as they may determine in their
sole discretion, among all of the Members in accordance with their respective
Membership Interests on the date of the distribution.
Section 6. Distributions upon Resignation.
Upon resignation of a Member, the resigning Member shall be entitled to
receive only the distributions to which he is entitled under this Operating
Agreement, as provided in Section 16.
Section 7. Distributions in Kind.
A Member, regardless of the nature of his contribution, has no right to
demand and receive any distribution from the Company in any form other than
cash. A Member shall not be required to accept in-kind distributions to the
extent that the percentage of each asset distributed to him exceeds the
percentage which is equal to the percentage in which he shares in distributions
pursuant which is equal to the percentage in which he shares in distributions
pursuant to Section 5.1.
Section 8. Management of the Company.
8.1 Management by David A. Hoeft, Todd J. Wolfe and the Managers. So
long as they collectively own (a) at least thirty-five percent (35%) of the
Interests of the Company if the reduction in their Interests of the Company is
due to their exercise of the Put (as defined in Section 14 below) or (b) at
least twenty percent (20%) of the Interests of the Company if the reduction in
their Interests is due to Nelnet's exercise of the Call (as defined in Section
14 below), Hoeft and Wolfe shall be responsible for the day to day operations of
the Company Business, including employment decisions (other than with respect to
their own employment), operations decisions, and policy decisions. The Managing
Board shall consist of four members, shall meet on at least a quarterly basis
and shall oversee the Company Business with the authority of a Board of Managers
under the Indiana Business Flexibility Act as amended. The initial members of
the Managing Board are: Cheryl Watson and Chuck Hosea on behalf of Nelnet; Hoeft
and Wolfe. Approval of the Managing Board will be required for any expenditure
in excess of two hundred fifty thousand dollars ($250,000), and such approval
shall require the affirmative vote of three of the Managing Board members.
Should any member of the Managing Board be removed, resign or otherwise cease to
participate thereon, said member shall be replaced as set forth in Section 8.2
below, except as provided in Section 8.3 below.
8.2 Replacement of Managers.
8.2.1 Except as provided in Section 8.3 below, if a member of the
Managing Board representing Nelnet is removed, resigns or
otherwise ceases to
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Exhibit 10.60
participate, Nelnet shall propose a replacement member,
whose appointment shall be approved by the majority of the
Managing Board, such approval not to be unreasonably
withheld. For any period in which Nelnet has only one member
of the Managing Board said member shall represent both of
Nelnet's votes on the Managing Board.
8.2.2 Except as provided in Section 8.3 below, if Hoeft or Wolfe
is removed, resigns or otherwise ceases to participate, the
other of Hoeft or Wolfe shall propose a replacement member,
whose appointment shall be approved by the majority of the
Managing Board, such approval not to be unreasonably
withheld. For any period in which only Hoeft or Wolfe
remains on the Managing Board with Nelnet's representatives,
said member shall represent two votes on the Managing Board.
8.3 Rights Upon Additional Ownership. If at any time under this
Agreement, either (a) Nelnet or (b) all non-Nelnet members in the
aggregate, (either (a) or (b) hereafter referred to for purposes
of this Section as "the Majority"):
8.3.1 Owns eighty percent (80%) of the Interests of the Company,
the Majority shall be entitled to have three of the four
representatives on the Managing Board representing it and in
such case shall be entitled if it so chooses to remove an
existing Manager to exercise this right, and the replacement
provisions of Section 8.2 shall not apply; or
8.3.2 Owns ninety percent (90%) of the Interests of the Company,
the Majority shall be entitled to have all four
representatives on the Managing Board representing it and in
such case shall be entitled if it so chooses to remove one
or more existing Managers to exercise this right, and the
replacement provisions of Section 8.2 shall not apply.
8.4 Duties of Managers. A Manager of the Company shall perform his or
her duties as a manager, including his or her duties as a member of any
committee upon which he or she may serve, in good faith, in a manner he or she
reasonably believes to be in the best interests of the Company, and with such
care as an ordinarily prudent person in a like position would use under similar
circumstances. In performing his or her duties, a Manager shall be entitled to
rely on information, opinions, reports, or statements, including financial
statements and other financial data, in each case prepared or presented by
persons and groups listed in paragraphs (a), (b), and (c) of this Section 8.4;
but he or she shall not be considered to be acting in good faith if he or she
has knowledge concerning the matter in question that would cause such reliance
to be unwarranted. A person who so performs his or her duties shall not have any
liability by reason of being or having been a Manager of the Company.
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Exhibit 10.60
Those persons and groups upon whose information, opinions, reports, and
statements a Manager is entitled to rely are:
(a) One or more employees or other agents of the Company whom
the Manager reasonably believes to be reliable and competent in the matters
presented;
(b) Counsel, public accountants, or other persons as to
matters which the Manager reasonably believes to be within such persons'
professional or expert competence; and
(c) A committee appointed by the Managers upon which they may
or may not serve, duly designated in accordance with the provision of this
Operating Agreement as to matters within its designated authority, which
committee the Managers reasonably believe to merit confidence.
8.5 Certain Powers of Managers. Without limiting the specific
reservation of control to Todd J. Wolfe and David A. Hoeft of Section 8.1 of
this Agreement, but subject to the monetary limitations therein, the Managers
shall have but not necessarily be limited to, the following authority when
acting on behalf of the Company:
(a) to acquire real property from any persons, firms, or corporations
as the Managers may determine; provided, however, that the acquisition
is upon reasonable terms and conditions. The fact that a Member is
directly or indirectly affiliated or connected with any such person,
firm, or corporation shall not prohibit the Managers from dealing with
that person, firm, or corporation;
(b) to borrow money for the Company from banks, other lending
institutions, the Members, or Affiliates of the Members on such terms
as they deem appropriate, and, in connection therewith, to hypothecate,
encumber, and grant security interests in the assets of the Company to
secure repayment of the borrowed sums. Except as otherwise provided in
the Act, no debt shall be contracted or liability incurred by or on
behalf of the Company except by the Company's Managers.
(c) To purchase liability and other insurance to protect the Company's
property and business;
(d) To hold and own any Company real and/or personal properties in the
name of the Company;
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Exhibit 10.60
(e) To invest any Company funds temporarily (by way of example but not
limitation) in time deposits, short-term governmental obligations,
commercial paper, or other investments having a prudently obtainable
yield;
(f) Upon the affirmative vote of the Members holding a majority of all
Membership Interests, to sell or otherwise dispose of all or
substantially all of the assets of the Company as part of a single
transaction or plan so long as such disposition is not in violation of
or causes a default under any other agreement to which the Company may
be bound;
(g) To execute on behalf of the Company all instruments and documents,
including, without limitation, checks; drafts; notes and other
negotiable instruments; deeds of trust; security agreements; financing
statements; documents providing for the acquisition, mortgage, or
disposition of the Company's property; assignments; bills of sale;
leases; partnership agreements; and any other instruments or documents
necessary, in the opinion of the Managers, to the business of the
Company
(h) To maintain reserves for the purpose of paying property taxes,
mortgage installments, and any and all other types of costs or expenses
as required or desired by the Managers
(i) To employ accountants, legal counsel, managing agents, or other
experts to perform services for the Company and to compensate them from
Company funds;
(j) To contract with themselves or other persons or entities whether or
not affiliated with any Manager for management, consulting, or other
services;
(k) To enter into any and all other agreements on behalf of the
Company, with any other person or entity for any purpose, in such forms
as the Managers may approve; provided, however, that a Manager may not
enter into any agreement which may reasonably obligate the Company to
expend sums in excess of $250,000 unless the approval of a majority of
Managing Board is first obtained; and
(l) To do and perform all other acts as may be necessary or appropriate
to the conduct of the Company's business, including paying the fees and
expenses described in this Operating Agreement and delegating duties
and authority to others when deemed necessary or appropriate.
8.6 Number of Managers. The number of Managers of the Company initially
shall be four (4). The number of the Managers shall be fixed from time to time
by unanimous vote of the Members, but in no instance shall there be less than
one Manager. Managers need not be residents
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Exhibit 10.60
of the State of Indiana, but must be natural persons, and be or be acting on
behalf of Members of the Company.
8.7 Regular Meetings. A regular meeting of Managers shall be held
without the requirement of any other notice immediately after, and at the same
place as, the annual meeting of Members. The Managers may provide, by
resolution, the time and place, either within or without the State of Indiana,
for the holding of additional regular meetings without other notice than such
resolution.
8.8 Special Meetings. Special meetings of the Managers may be called by
or at the request of any one Manager. The person calling a special meeting of
the Managers may fix any place within the State of Indiana as the place for
holding any special meeting of the Managers, so long as the place is one to
which all Managers can conveniently travel.
8.9 Notice. Written notice of any special meeting of Managers shall be
given as follows:
By mail to each Manager at his business address at least three days
prior to the meeting; or
By personal delivery at least twenty-four hours prior to the meeting to
the business address of each Manager, or in the event such notice is given on a
Saturday, Sunday, or holiday, to the residence address of each Manager. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail, so addressed, with postage thereon prepaid. If notice be given by
telegram, such notice shall be deemed to be delivered when the telegram is
delivered to the telegraph company. Any Manager may waive notice of any meeting.
The attendance of a Manager at any meeting shall constitute a waiver of notice
of such meeting, except where a Manager attends a meeting for the express
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Managers need be specified
in the notice or waiver of notice of such meeting.
When any notice is required to be given to a Manger, a waiver thereof
in writing signed by such Manager, whether before, at, or after the time stated
therein, shall constitute the giving of such notice.
8.10 Quorum. A majority of the number of Managers fixed by or pursuant
to Section 8.2 of this Agreement shall constitute a quorum for the transaction
of business at any meeting of the Managers, but if less than such majority is
present at a meeting, a majority of the Managers present may adjourn the meeting
from time to time without further notice.
8.11 Manner of Acting. The act of the majority of the Managers present
at a meeting at which a quorum is present shall be the act of the Managers.
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Exhibit 10.60
8.12 Informal Action by Managers. Any action required or permitted to
be taken at a meeting of the Managers or any committee designated by the
Managers may be taken without a meeting if the action is evidenced by one or
more written consents describing the action taken, signed by each Manager or
committee member, and delivered to the person having custody of the Company
records for inclusion in the minutes or for filing with the records. Action
taken under this section is effective when all Managers or committee members
have signed the consent, unless the consent specifies a different effective
date. Such consent has the same force and effect as an unanimous vote of the
Managers or committee members and may be stated as such in any document.
8.13 Participation by Electronic Means. Any Manager or any committee
designed by the Managers may participate in a meeting of the Managers or
committee by means of telephone conference or similar communications equipment
by which all persons participating in the meeting can hear each other at the
same time. Such participation shall constitute presence in person at the
meeting.
8.14 Resignation. Any Manager of the Company may resign at any time by
giving written notice to the Company. The resignation of any Manager shall take
effect upon receipt of notice thereof or at such later time as shall be
specified in such notice; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective. When
one or more Managers shall resign, effective at a future date, a majority of the
Managers then in office, shall have power to fill the vacancy or vacancies to be
created by the resignations, the vote thereon to take effect when such
resignation or resignations shall become effective.
8.15 Removal. Any Manager or Managers of the Company may be removed at
any time, with or without cause, by a vote of holders of a majority of the
Membership Interests then entitled to vote.
8.16 Committees. By resolution adopted by a majority of the Managers,
the Managers may designate two or more Managers to constitute a committee, which
shall have such authority in the management of the Company, as the Managers
shall designate.
8.17 Compensation. By resolution of a majority vote of the Membership
Interests of the Members, and irrespective of any personal interest of any of
the Managers, each Manager may be paid his expenses, if any, of attendance at
each meeting of the Managers, and may be paid a stated salary as Manager or a
fixed sum for attendance at each meeting of the Managers or both. No such
payment shall preclude any Manager from serving the Company in any other
capacity and receiving compensation therefore.
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Exhibit 10.60
8.18 Presumption of Assent. A Manager of the Company who is present at
a meeting of the Managers or committee thereof, at which action on any matter is
taken, shall be presumed to have assented to the action taken unless such
Manager objects at the beginning of such meeting to the holding of the meeting
or to the transacting of business at the meeting, unless his dissent is entered
in the minutes of the meeting, or unless he shall file his written dissent to
such action with the presiding officer of the meeting before the adjournment
thereof or shall forward such dissent by registered mail to the Company
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a Manager who voted in favor of such action.
8.19 Transactions with Company. A Manager or Member may lend money to,
act as surety for, and transact other business with the Company and shall have
the same rights and obligations with respect thereto as a person who is not a
Manager of the Company, except that nothing contained in this Section shall be
construed to relieve a Manager from any of his duties to the Company.
Section 9. Voting Trust. David Hoeft, Todd J. Wolfe and Tina D. Mercer may form
a voting trust for the purposes of pooling their membership, but not Manager,
votes.
Section 10. Members.
10.1 Members. The Members of this Company shall be those persons who
either have signed this Operating Agreement or have signed this Operating
Agreement and are duly admitted by the Members.
10.2 Admission of New Members. A person may be admitted as an
additional member upon the written consent of all Members.
10.3 Annual Meeting. The annual meeting of the Members shall be held on
the second Monday of February each year, commencing with the year 2004 , at the
hour of 10:00 a.m. local time, or at such other time on such other day as shall
be fixed by the Managers, for the transaction of such business as may come
before the meeting. If the day fixed for the annual meeting shall be a legal
holiday in the State of Indiana, such meeting shall be held on the next
succeeding business day. .
10.4 Special Meetings. Special meetings of the Members, for any purpose
or purposes, unless otherwise prescribed by statute, may be called by the
Managers, or any Member or Members who individually or collectively own at least
ten percent (10%) of the Membership Interests in the Company.
10.5 Place of Meetings. The Managers may designate any place, either
within or outside of the State of Indiana, as the place of meeting for any
annual meeting or for any special meeting
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Exhibit 10.60
called by the Managers. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall be the principal office of the
Company in the State of Indiana.
10.6 Notice of Meeting. Written notice stating the place, day, and hour
of the meeting of Members and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
nor more than fifty days before the date of the meeting, either personally or by
mail, by or at the direction of the Managers or other persons calling the
meeting, to each Member of record entitled to vote at such meeting. If mailed,
such notice shall be deemed to be delivered when deposited in the United States
mail, addressed to the Member at his address as it appears on the books of the
Company, with postage thereon prepaid. If three successive letters mailed to the
last-known address of any Member of record are returned as undeliverable, no
further notices to such Member shall be necessary until another address for such
Member is delivered in writing to the Company.
10.7 Meeting of All Members. If all of the Members shall meet at any
time and place, either within or outside of the State of Indiana, and consent to
the holding of a meeting at such time and place, such meeting shall be valid
without call or notice, and at such meeting any action of the Members may be
taken.
10.8 Quorum. A majority of the Membership Interests of the Members
entitled to vote, represented in person or by proxy, shall constitute a quorum
at any meeting of Members. In the absence of a quorum at any such meeting, a
majority of the Membership Interests of the Members so represented may adjourn
the meeting from time to time for a period not to exceed thirty days without
further notice. However, if the adjournment is for more than thirty days, a
notice of the adjourned meeting shall be given to each Member of record entitled
to vote at the meeting. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. The Members present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal during such meeting of that percentage of
Membership Interests of the Members whose absence would cause less than a
quorum.
10.9 Manner of Acting. If a quorum is present, the affirmative vote of
the majority of the Membership Interests of the Members represented at the
meeting and entitled to vote on the subject matter shall be the act of the
Members.
10.10 Proxies. At all meetings of Members, a Member may vote in person
or by proxy executed in writing by the Member or by a duly authorized
attorney-in-fact. Such proxy shall be filed with the Company before or at the
time of the meeting. No proxy shall be valid after eleven months from the date
of its execution, unless otherwise provided in the proxy.
10.11 Voting by Certain Members.
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Exhibit 10.60
10.11.1 Membership Interests owned in the name of a
corporation may be voted by such officer, agent, or proxy as the Bylaws of such
corporation may prescribe, or, in the absence of such provision, as the Board of
Directors of such corporation may determine.
10.11.2 Membership Interests owned in the name of a deceased
person, a minor ward, or an incompetent person may be voted by an administrator,
an executor, a court appointed guardian, or a conservator, either in person or
by proxy without a transfer of such Membership Interests into the name of such
administrator, executor, court appointed guardian, or conservator. Membership
Interests owned in the name of a trustee may be voted by him either in person or
by proxy, but no trustee shall be entitled to vote Membership Interests held by
him without a transfer of such Membership Interests into his name.
10.11.3 Membership Interests owned in the name of a receiver
may be voted by such receiver and Membership Interests held by or under the
control of a receiver may be voted by such receiver without a transfer thereof
into the receiver's name, if authority so to do is contained in an appropriate
order of the court by which the receiver was appointed.
10.11.4 No Member shall be entitled to pledge any Membership
Interest.
10.11.5 If Membership Interests are owned in the names of two
or more persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety, or otherwise, or if two or more
persons have the same fiduciary relationship respecting the same Membership
Interests, voting with respect to the Membership Interests shall have the
following effect:
(a) If only one person votes, his act binds all;
(b) If two or more persons vote, the act of the
majority so voting binds all;
(c) If two or more persons vote, but the vote is
evenly split on any particular matter, each faction may vote the Membership
Interest in question proportionately, or any person voting the Membership
Interest of a beneficiary, if any, may apply to any court of competent
jurisdiction in the State of Indiana to appoint an additional person to act with
the persons so voting the Membership Interest. The Membership Interest shall
then be voted as determined by a majority of such persons and the person
appointed by the court. If a tenancy is held in unequal interests, a majority or
even split for the purpose of this subparagraph (c) shall be a majority or even
split in interest.
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Exhibit 10.60
10.12 Action by Members Without a Meeting. Action required or permitted
to be taken at a meeting of Members may be taken without a meeting if the action
is evidenced by one or more written consents describing the action taken, signed
by each Member entitled to vote, and delivered to the Manager for filing with
the Company records. Action taken under this section is effective when all
Members entitled to vote have signed the consent, unless the consent specifies a
different effective date.
10.13 Voting by Ballot. Voting on any question or in any election may
be by voice vote unless a Manager or any Members shall demand that voting be by
ballot.
10.14 Waiver of Notice. When any notice is required to be given to any
Member, a waiver thereof in writing signed by the person entitled to such
notice, whether before, at, or after the time stated therein, shall be
equivalent to the giving of such notice. The attendance of a Member at any
meeting shall constitute a waiver of notice, waiver of objection to defective
notice of such meeting, and a waiver of objection to the consideration of a
particular mater at the meeting unless the Member, at the beginning of the
meeting, objects to the holding of the meeting, the transaction of business at
the meeting, or the consideration of a particular matter at the time it is
presented at the meeting.
Section 11. Banking.
All revenues of the Company shall be deposited regularly in the Company
savings and checking accounts at such bank or banks as shall be selected by the
Managers in accordance with Section 8 of this Agreement, and the signatures of
such Managers as shall be determined in accordance with Section 8 of this
Agreement shall be honored for banking purposes, including the extension of
credit to, or the borrowing of money by or on behalf of, the Company.
Section 12. Books; Fiscal Year; Audits.
Accurate and complete books of account shall be kept by the Managers
and entries promptly made therein of all of the transactions of the Company, and
such books of account shall be open at all times to the inspection and
examination of the Manager and Members. At the discretion of the Managers,
compilation, review, or audit of the Company, as shall be determined by the
Managers in accordance with Section 8 of this Agreement, may be made as of the
closing of each fiscal year of the Company by the accountants who shall then be
engaged by the Company.
Section 13. Membership Interest and Membership Rights of a Deceased,
Incompetent, or Dissolved Member.
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Exhibit 10.60
If a Member who is an individual dies or a court of competent
jurisdiction adjudges him to be incompetent to manage his person or his
property, the Member's executor, administrator, guardian, conservator, or other
legal representative may exercise all of the Member's rights and receive the
benefits of the Member's Membership Interest for the purpose of settling the
Member's estate or administering the Member's property. If a Member is a
corporation, trust, partnership, limited liability company, or other entity and
is dissolved or terminated, the powers of that Member may be exercised by its
legal representative or successor.
Section 14. Transfer of Membership Interest and Membership Rights.
14.1 Call Option. From and after seventy-two (72) months following the
Effective Date, Nelnet shall have a "call" option (the "Call") to
acquire up to one hundred percent (100%) ownership of the Company at a
price equal to ten times the higher of (i) the most recent three-year
(3-year) average after tax net income (the parties recognize that the
Company does not have tax impact, but for purposes of the calculations
in this Section 14 "after tax net income" will be calculated using the
corporate tax rate of forty percent (40%)) of the Company or (ii) after
tax net income of the most recent year prior to the purchase, either
amount being multiplied by the percentage of ownership being acquired,
and excluding any extraordinary and nonrecurring items plus any future
real estate purchased by Company, valued at the original purchase
price, less depreciation, less debt in proportion to the Membership
Interests at the time of selling but excluding herefrom the real
property situated at 2002 Wellesley Blvd. Indianapolis, Indiana.
14.2 Put Option. From and after sixty (60) months following the
Closing, the Company will have a "put" option (the "Put") for Nelnet to
acquire up to one hundred percent (100%) ownership of Company at a
price equal to ten (10) times after tax net income over the Company's
most recent three-year (3-year) average, such amount being multiplied
by the percentage of ownership being acquired, and excluding any
extraordinary and nonrecurring items plus any future real estate
purchased by Company, valued at the original purchase price, less
depreciation, less debt in proportion to the Membership Interests at
the time of selling but excluding herefrom the real property situated
at 2002 Wellesley Blvd. Indianapolis, Indiana.
14.3 Process for Exercise of Call and Put. The Member exercising the
Call or Put Option ("Exercising Member") shall give written notice of
same to the other Members and the Company at the addresses set forth in
section 20 below. Such notice shall specify the price of the Option,
and within thirty (30) days after the notice is given, the parties, as
appropriate, shall execute such documents and instruments reasonably
required to effectuate the Option at the purchase price as calculated
using the formula in (a) or (b) above and on the other terms as
specified in the notice, and the closing of such transaction shall take
place as soon as practicable but in any event not more than
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Exhibit 10.60
sixty (60) days following receipt of the notice. At such closing, the
selling parties shall sell and transfer their entire equity interest to
the appropriate purchasing party free and clear of all liens, claims or
encumbrances, other than the Operating Agreement, as amended by this
provision.
14.4 Offer to Purchase ("Cherry Pie"). From and after thirty-six (36)
months following the Effective Date, a member, (hereinafter referred to
as the "Offeror Member") shall have the right exercisable by written
notice (the "Offer") to any or all of the other Members (the "Offeree
Members"), to offer to buy the Offeree Members' entire equity interest
in the Company at a purchase price and upon the other terms determined
by the Offeror Members and specified in the Offer. The Offeree Members
must elect by written notice (the "Notice of Election") to the Offeror
Member not less than twenty (20) days after receipt of the Offer,
either (i) to sell the Offeree Members' entire equity interest in the
Company to the Offeror Member at the purchase price and on the other
terms specified in the Offer, or (ii) to offer to purchase the Offeror
Member's entire equity interest in the Company at a purchase price
equal to the price set forth in the Offer. Not later than ten (10) days
after the Notice of Election, the parties, as appropriate, shall
execute such documents and instruments reasonably required to sell and
transfer either the Offeror Member's or the Offeree Members' (as
applicable) entire equity interest in the Company at the purchase price
and on the other terms as specified in the Offer, and the closing of
such sale shall take place as soon as practicable but in any event not
more than one hundred eighty (180) days following receipt of the Notice
of Election. At such closing, the selling party shall sell and transfer
its entire equity interest to the appropriate purchasing party free and
clear of all liens, claims or encumbrances, other than this Operating
Agreement.
For the purposes of this section 14.4, if the Offeror is Nelnet, Inc.
then the Offer must be made to all other then existing Members and
Membership Interests. If the Offeree is Nelnet, Inc. the Offeror must
consist of all of the other then existing Members and Membership
Interests.
14.5 Rights of Refusal.
14.5.1 First Right of Refusal. Hoeft and Wolfe shall each have a
first right of refusal to acquire the ownership interests of any
other Member should the Member wish to sell such interests. In
order to exercise this first right of refusal, the Member desiring
to sell, transfer or assign all of any part of the Member's
interest to a third party shall communicate such intention in
writing to the other Members and the Company stating the purchase
price proposed for the transfer. Such notice shall be via
registered or certified mail, return receipt requested to the
address for each of the other Members and to the office of the
Company and shall state the action the
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Exhibit 10.60
Member intends to take and the terms of the transaction. Within
thirty (30) days after receiving this notice, Hoeft or Wolfe, as
applicable, may purchase at his option all or any part of the
interest described in the notice for the purchase price stated in
the notice.
14.5.2 Second Right of Refusal. If the offer contained in the
notice described above is not accepted by Hoeft or Wolfe, as
applicable, within thirty (30) days from the date of receipt of
the notice, then Nelnet may exercise a second right of refusal to
purchase the Interest, at a price determined by the formula set
forth in Section 14 hereof. Such right shall be exercised within
thirty (30) days of the expiration of Hoeft or Wolfe's first right
of refusal period.
Section 15. Expulsion of a Member.
15.1 Right of members to expel a member. A member may be expelled from
membership in the Company by vote of the Managers in accordance with Section
15.2:
a. If the member materially breaches this Agreement and
fails to cure the breach within a reasonable time
after receiving notice of breach (if cure is
possible);
b. The member is convicted of a felony;
c. The member engages in fraudulent or illegal actions
in relation to the business or internal affairs of
the Company; or
d. The member's action or omission make it unlawful for
that member to be an owner of a licensed debt
collection company in any jurisdiction that the
Company is required to be licensed, or a member's
actions or omissions, in the discretion of the
Majority of the disinterested Board of Managers,
jeopardizes any license or contract held by the
Company.
15.2 Voting requirements for expulsions of members. A member may be
expelled from membership in the Company if a circumstance described in 15.1
above exists and the disinterested Managers vote as follows:
a. Company has four or more Managers. If, at the
relevant time, the Company has at least four
managers, a member may be expelled by the affirmative
vote of 2 of 3 Managers if one Member is interested;
or 3 of 4 Managers if no Manager is interested. or
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Exhibit 10.60
b. If Nelnet is the Member in question, then the
Managers of the Company representing Hoeft and Wolfe,
must vote unanimously.
15.3 Consequences of cessation of membership. Immediately upon a
member's ceasing to be a member, the member shall cease to have any right, duty
or liability as a member; provided that, except as otherwise provided in this
agreement:
a. The member shall continue to own the member's Company
interest and to have all the rights of an owner of a
Company interest.
b. The member shall continue to be subject to all
liabilities accrued by the member before ceasing to
be a member.
15.4 Right of Company to require certain former members to sell their
Company interests to the Company. The Company may require a member to promptly
sell the member's membership to the Company based on the formula set forth in
section 14.2(b) and upon other reasonable purchase terms:
a. If the member becomes bankrupt;
b. If the member becomes a party to a divorce proceeding
and the other members determine reasonably and in
good faith that it is likely that as a result of that
proceeding, all or any of the member's membership
rights will be awarded to the member's spouse;
c. If the member resigns from the LLC;
d. If the member incurs a Total Disability within the
meaning of Article 6.2; or
e. if the member is expelled hereunder.
Section 16. Death, Bankruptcy, Retirement, or Resignation of a Member.
16.1 Purchase of Membership Interest. Upon the Death, Bankruptcy,
Retirement or Resignation of any member (the "Withdrawing Member"), the Company
shall be dissolved and terminated unless there are at least two remaining
Members and the business of the Company is continued by the consent of all the
remaining Members within ninety days after death, bankruptcy, retirement, or
resignation. If the business of the Company is continued, the Withdrawing Member
(or in the case of death, the Member's representative) must offer to sell to the
Company or to the
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Exhibit 10.60
Members at the value as determined by Section 14(b) above, and in accordance
with the procedures outlined in Section 14(c) of this Agreement, all of the
Membership Interest and Membership Rights (the "Withdrawing Member's Interest")
owned by the Withdrawing Member in the Company on the date of such Death,
Bankruptcy, Retirement, or Resignation (the "Withdrawal Date").
16.2 Consequences of Bankruptcy, Retirement, or Resignation. Retirement
of a member shall not be considered to be a breach or default of this Agreement
so long as a Member retires with the written consent of a majority of the
Membership Interests of the Members ("Permitted Retirement"). Bankruptcy,
Resignation, and Retirement, other than Permitted Retirement, of a Member shall
be regarded as a breach and default of this Agreement.
Section 17. Certain Tax Aspects Incident to Transactions Contemplated by This
Agreement.
It is the intention of the parties that the Purchase Price or Member's
Value shall constitute and be considered as made in exchange for the interest of
a partner in partnership property, including good will, within the meaning of
Section 736(b) of the Internal Revenue Code of 1986, as amended.
Section 18. The Member's Value.
The term " Member's Value," as used in this Agreement, shall be the dollar
amount equal to the sum obtained by multiplying (a) the percentage of Membership
Interest and Membership Rights owned by a Member by (b) the Total Value of the
Company, as determined in accordance with Section 14(b).
Section 19. Delivery of Evidence of Interest.
On the closing date, upon payment of the Purchase Price or Member's
Value for the Purchase of the Interest hereunder, the Offering Member, the
personal representatives of the Decedent or the Heir, the Withdrawing Member, or
the personal representative of the Withdrawing Member (in the event of the
bankruptcy of the Withdrawing Member), as the case may be, shall execute,
acknowledge, seal, and deliver to the Purchasing Person such instrument or
instruments of transfer to evidence the purchase of the Interest (the
"Instrument of Transfer") that shall be reasonably requested by counsel to the
Purchasing Person in form and substance reasonably satisfactory to such counsel.
If a tender of the Purchase Price or Member's Value, shall be refused, or if the
Instrument of Transfer shall not be delivered contemporaneously with the tender
of the Aggregate Purchase Price, then the purchasing person shall be appointed,
and the same is hereby irrevocably constituted and appointed, the
attorney-in-fact with full power and authority to execute, acknowledge, seal,
and deliver the Instrument of Transfer.
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Exhibit 10.60
Section 20. Notices.
Any and all notices, offers, acceptances, requests, certifications, and
consents provided for in this Agreement shall be in writing and shall be given
and be deemed to have been given when personally delivered against a signed
receipt or mailed by registered or certified mail, return receipt requested, to
the last address which the addressee has given to the Company. The address of
each Member is set forth on his Subscription Agreement adopting and agreeing to
be bound by the terms of this Agreement or under his signature at the end of
this Agreement, and each Member agrees to notify the Company of any change of
address. The address of the Company shall be its principal office.
Section 21. Additional Members.
From the date of the formation of the Company, any individual or entity
acceptable to the Members by their unanimous vote may become a Member in this
Company by the sale of new Company Membership Interests for such consideration
as the members by their unanimous vote shall determine, or as a transferee of a
Member's Membership Interest or any portion thereof, subject to the terms and
conditions of this Agreement. No new Members shall be entitled to any
retroactive allocation of profits or losses to the new Member for that portion
of the Company's tax year in which a new Member was admitted.
Section 22. Dissolution and Termination.
22.1 Dissolution.
(a) The Company shall be dissolved upon the occurrence of any
of the following events:
(i) when the period fixed for the duration of the
Company shall expire;
(ii) by the unanimous written agreement of all
Members; or
(iii) upon the death, retirement, resignation,
bankruptcy, transfer to a non-Member of a Membership Interest, or dissolution of
a Member, or the occurrence of any other event which terminates the continued
membership of a Member in the Company, unless there are at least two remaining
Members and the business of the Company is continued by the consent of all the
remaining Members within ninety days after the termination.
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Exhibit 10.60
(b) As soon as possible following the occurrence of any of the
events specified in this Section effecting the dissolution of the Company, the
Company shall execute a statement of intent to dissolve in such form as shall be
prescribed in the Indiana Secretary of State.
22.2 Filing of Statement of Intent to Dissolve.
Duplicate originals of the statement of intent to dissolve shall be
delivered to the Indiana Secretary of State.
22.3 Effect of Filing of Dissolving Statement.
Upon the filing with the Indiana Secretary of State of a statement of
intent to dissolve, the Company shall cease to carry on its business, except
insofar as may be necessary for the winding up of its business, but its separate
existence shall continue until articles of dissolution have been filed with the
Secretary of State or until a decree dissolving the Company has been entered by
a court of competent jurisdiction.
22.4 Distribution of Assets upon Dissolution.
(a) In settling accounts after dissolution, the liabilities of
the Company shall be entitled to payment in the following order:
(i) To creditors, including Members who are
creditors, to the extent otherwise permitted by law, in satisfaction of
liabilities of the Company other than liabilities for distributions to members
under the Act;
(ii) To members and former members of the Company in
satisfaction of liabilities for distributions under the Act;
(iii) To members of the Company for the return of
their contributions and as distributions in the proportions in which the Members
share in distributions.
(b) Members will share in Company assets in respect to their
claims for capital and in respect to their claims for profits or for
compensation by way of income on their contributions, respectively, in
proportion to the respective amounts of the claims.
22.5 Articles of Dissolution. When all debts, liabilities, and
obligations have been paid and discharged or adequate provision has been made
therefor and all of the remaining property and assets have been distributed to
the Members, articles of dissolution shall be executed in duplicate and verified
by the person signing the articles, which articles shall set forth the
information required by the Act.
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Exhibit 10.60
22.6 Filing of Articles of Dissolution.
(a) Duplicate originals of such articles of dissolution shall
be delivered to the Indiana Secretary of State.
(b) Upon the filing of the articles of dissolution, the
existence of the Company shall cease, except to the purpose of suits, other
proceedings, and appropriate action as provided in the Act. The Managers shall
thereafter be trustees for the Members and creditors of the Company and as such
shall have authority to distribute any Company property discovered after
dissolution, convey real estate, and take such other action as may be necessary
on behalf of and in the name of the Company.
22.7 Managers' Responsibility. Upon dissolution, each Member shall look
solely to the assets of the Company for the return of his Capital Contribution.
If the Company property remaining after the payment or discharge of the debts
and liabilities of the Company is insufficient to return the cash contribution
of each member, such Member shall have no recourse against a manager or any
other Member. The winding up of the affairs of the Company and the distribution
of its assets shall be conducted exclusively by the Managers, who are hereby
authorized to take all actions necessary to accomplish such distribution,
including, without limitation, selling any Company assets the managers deem
necessary or appropriate to sell. In the event of removal or resignation of all
Managers and the failure to appoint a new Manager, the winding up of the affairs
of the Company and the distribution of its assets shall be conducted by such
persons or entities as may be selected by a vote of Members holding a majority
of the Member's Interests in the Company's capital, which persons are authorized
to do any and all acts and things authorized by law for these purposes.
Section 23. Power of Attorney.
23.1 Unless otherwise prohibited by the Act, each Member hereby
irrevocably designates and appoints each Manager of the Company or any successor
Manager with full power of substitution, to be his agent and true and lawful
attorney-in-fact for him and in his name, place, and stead, to implement,
execute, acknowledge, file, and record:
(a) This Operating Agreement and any separate Certificates and
Agreements, as well as amendments thereto, which under the laws of the State of
Indiana or the laws of any other state are required to be filed, or which a
Manager deems it advisable to file;
(b) Any other instrument or document which may be required to
effect the qualification and continuation of the Company under the laws of any
state or any governmental agency, or which a Manager deems it advisable to file;
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Exhibit 10.60
(c) Any instrument or document which may be required to effect
the admission of an additional or substituted Member, or dissolution and
termination of the Company (provided such continuation, admission, or
dissolution and termination are in accordance with the terms of the Agreement),
or to reflect any change in the amount of contributions of Members;
(d) Any and all documents required to acquire, finance,
refinance, convey, or sell the assets of the Company;
(e) Any nonmaterial amendment to this Agreement;
(f) Any amendment to the Company's articles of organization
when:
(i) There is a change in the name of the Company or
in the amount or the character of Capital Contributions;
(ii) There is a change in the character of the
business of the Company;
(iii) There is a false or erroneous statement in the
articles of organization; or
(iv) There is a change in the time as stated in the
articles of organization for the dissolution of the Company.
(g) Any other instrument necessary to conduct the operations
of the Company.
23.2 The foregoing power of attorney:
(a) is a special power of attorney coupled with an interest,
is irrevocable, and shall survive the death or incapacity of a Member;
(b) may be exercised by a Manager, acting alone, for each
Member by listing all of the Members executing any instrument with a single
signature of the Manager, acting as attorney-in-fact for all of them;
(c) shall survive the assignment by a Member of all or any
portion of his Membership Interest in the Company except that, where the
assignee of such Membership Interest in the Company owned by such Member has
been approved by the Members for admission to the Company as a substituted
Member, the special power of attorney shall survive the assignment for the sole
purpose of enabling the Manager to execute, acknowledge, and file any instrument
or document necessary to effect such substitution; and
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Exhibit 10.60
(d) shall in no way cause a Member to be liable in any manner
for the acts or omissions of a Manager.
Each Member hereby agrees to be bound by any actions taken by a Manager
acting in good faith pursuant to this power of attorney; and each Member hereby
waives any and all defenses which may be available to contest, negate, or
disaffirm the action of a Manager taken in good faith under such power of
attorney.
Any substituted or additional Member, upon admission to the Company,
shall be deemed to ratify and reaffirm the appointment of a Manager as his or
her true and lawful attorney for the purposes and on the same terms as set forth
hereinabove.
Section 24. Governing Law.
It is the intent of the parties hereto that all questions with respect
to the construction of this Agreement and the rights, duties, obligations, and
liabilities of the parties shall be determined in accordance with the applicable
provisions of the laws of the State of Indiana.
Section 25. Miscellaneous Provisions.
25.1 Inurement. This agreement shall be binding upon, and inure to the
benefit of, all parties hereto, their personal and legal representatives,
guardians, successors, and assigns to the extent, but only to the extent, that
assignment is provided for in accordance with, and permitted by, the provisions
of this Agreement.
25.2 No Limit on Personal Activities. Nothing herein contained shall be
construed to limit in any manner the Members or their respective agents,
servants, and employees, in carrying out their own respective businesses or
activities; provided, however, that such businesses or activities shall not
directly or indirectly be in competition with the business or purpose of the
Company.
25.3 Further Assurances. The Members and the Company agree that they
and each of them will take whatever action or actions are deemed by counsel to
the Company to be reasonably necessary or desirable from time to time to
effectuate the provisions or intent of this Agreement, and to that end the
Members and the Company agree that they will execute, acknowledge, seal, and
deliver any further instruments or documents which may be necessary to give
force and effect to this Agreement or any of the provisions hereof, or to carry
out the intent of this Agreement, or any of the provisions hereof.
25.4 Gender and Headings. Throughout this Agreement, where such
meanings would be appropriate: (a) the masculine gender shall be deemed to
include the feminine and the neuter
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Exhibit 10.60
and vice versa, and (b) the singular shall be deemed to include the plural and
vice versa. The headings herein are inserted only as a matter of convenience and
reference, and in no way define or describe the scope of the Agreement or the
intent of any provisions thereof.
25.5 Entire Agreement. This Agreement and the Subscription Agreements
of each of the Members and exhibits attached hereto and thereto set forth all
(and are intended by all parties hereto to be an integration of all) of the
promises, agreements, conditions, understandings, warranties, and
representations among the parties hereto with respect to the Company, and there
are no promises, agreements, conditions, understandings, warranties, or
representations, oral or written, express or implied, among them other than as
set forth herein.
25.6 Severability. Nothing contained in this Agreement shall be
construed as requiring the commission of any act contrary to law. In the event
that there is any conflict between any provision of this Agreement and any
statute, law, ordinance, or regulation contrary to which the Members or the
Company have no legal right to contract, the latter shall prevail, but in such
event the provisions of this Agreement thus affected shall be curtailed and
limited only to the extent necessary to conform with said requirement of law. In
the event that any part, article, section, paragraph, or clause of this
Agreement shall be held to be indefinite, invalid, or otherwise unenforceable,
the entire Agreement shall not fail on account thereof, and the balance of the
Agreement shall continue in full force and effect.
25.7 Waiver of Action for Partition. Each Member irrevocably waives
during the term of the Company any right that he may have to maintain any action
for partition with respect to the property of the Company.
25.8 Amendments. Amendments to this Agreement which (a) are of an
inconsequential nature and do not affect the rights of the Members in any
material respect; or (b) are required or contemplated by this Agreement; or (c)
are in the opinion of counsel to the Company necessary to maintain the status of
the Company as a partnership for federal income tax purposes, may be made by a
Manager through the use of the powers of attorney granted herein. Any amendments
made pursuant to part (c) of this Section 25.8 shall be deemed effective as of
the date of this Operating Agreement. In its discretion, any amendment to this
Operating Agreement may be proposed to the Members by a Manager. . The Manager
shall submit to the Members any such proposed amendment together with an opinion
of counsel as to the legality of such amendment and the recommendation of the
Manager as to its adoption. A vote of an amendment to this Operating Agreement
shall be taken within thirty (30) days thereof unless otherwise extended by
applicable laws and/or regulations. A proposed amendment shall become effective
at such time as it has been approved by Members holding a majority of all
Membership Interests in Company Capital. Notwithstanding any provision in this
Operating Agreement to the contrary, any amendment to this Operating Agreement
which would adversely affect the federal income tax treatment to be afforded
Members, or adversely affect the liabilities of Members, or change the method of
allocation of
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Exhibit 10.60
profit and loss or distribution of distributable cash as provided herein, shall
require the approval of all Members. Copies of any amendments not requiring
approval shall be sent to the Members.
25.9 Execution of Additional Instruments. Each Member hereby agrees to
execute and deliver to a Manager within five days after receipt of the Manager's
written request therefor, such other and further statements of interest and
holdings, designations, powers of attorney, and other instruments as the Manager
deems necessary to comply with any laws, rules, or regulations.
25.10 Title to Company Properties. Title to all Company properties
shall be held in the name of the Company.
25.11 Company Interests. Each of the Members and any substituted or
additional members admitted hereby covenant, acknowledge, and agree that all
Membership Interests in the Company shall for all purposes be deemed personalty
and shall not be deemed realty or any interest in the real property owned by the
Company.
25.12 Waivers. The failure of any party to seek redress for violation
of or to insist upon the strict performance of any covenant or condition of this
Operating Agreement shall not prevent a subsequent act, which would have
originally constituted a violation, from having the effect of an original
violation.
25.13 Rights and Remedies Cumulative. The rights and remedies provided
by this Operating Agreement are cumulative and the use of any one right or
remedy by any party shall not preclude or waive the right to use any or all
other remedies. Said rights and remedies are given in addition to any other
rights the parties may have by law, statute, ordinance, or otherwise.
25.14 Legend on Certificates. The Membership Interests of Members may
not be sold, transferred, or assigned for value to any person except in
accordance with the provisions of this Operating Agreement applicable thereto.
An appropriate legend noting restrictions on transfer shall be placed
conspicuously on the face of all certificates representing Membership Interests
and a notation restricting transfer will be placed in the books and records of
the Company. All transferees of Membership Interests will be treated similarly
and corresponding notations will be placed on new certificates for Membership
Interests issued upon transfer as well as in the Company records.
25.15 Company Seal. The Members shall provide a Company seal which
shall be circular in form and shall have inscribed thereon the name of the
Company and the state of organization and the words "COMPANY SEAL."
25.16 Dispute Resolution; Arbitration.
(a) Dispute Resolution. The Members agree that any dispute arising in
connection with the interpretation of this Agreement or the performance
of any Member under this
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Exhibit 10.60
Agreement or otherwise relating to this Agreement will be treated in
accordance with the procedures set forth in this Section, prior to the
resort by any Member to arbitration or litigation in connection with
such dispute. The dispute will be referred for resolution first to a
designated representative of each Member. Such procedure will be
invoked by a Member presenting to the other(s) a Notice of Request for
Resolution of Dispute (a "Notice") identifying the issues in dispute
sought to be addressed hereunder. A telephone or personal conference of
those designees will be held within ten (10) business days after
delivery of the Notice. In the event that the telephone or personal
conference between these individuals does not take place or does not
resolve the dispute, either Member may refer the dispute to binding
arbitration pursuant to the arbitration provisions set forth below.
(b) Arbitration. All claims or disputes between the Members arising out
of or relating to this Agreement will be decided by arbitration
pursuant to the Commercial Arbitration Rules of the American
Arbitration Association currently in effect and in accordance with
Title 9 of the United States Code, unless the Members mutually agree
otherwise in writing. Notice of the demand for arbitration must be
filed in writing with the other Member or Members and must be made
within three business days after the meeting of designees set forth
above has concluded. All statutes of limitation, which would otherwise
be applicable in a judicial action brought by a Member, will apply to
any arbitration or reference proceeding hereunder. The arbitration will
be decided by a single arbitrators selected by the Members. If the
Members cannot agree on a single arbitrator each Member will select an
arbitrator and those two arbitrators will select a third arbitrator.
Arbitration will be initiated in the locale chosen by the party
initiating the proceeding. Said arbitration will occur within thirty
(30) consecutive days after the Member demanding arbitration delivers
the written demand on the other Member(s) unless the Members mutually
agree otherwise in writing. The award rendered by the arbitrator(s)
will be final, and judgment may be entered upon it in accordance with
applicable law in any court having jurisdiction thereof. Except by
written consent of the Members, no arbitration arising out of or
relating to this Agreement may include, by consolidation, joinder or in
any other manner, any person or entity not a party to the Agreement
under which such arbitration arises. The arbitration agreement herein
among the Members will be specifically enforceable under applicable law
in any court having jurisdiction thereof. No Member will appeal such
award nor seek review, modification, or vacation of such award in any
court or regulatory agency. The arbitrators will award to the
prevailing Member, if any, as determined by the arbitrators, all of its
Costs and Fees. "Costs and Fees" mean all reasonable pre-award expenses
of the arbitration, including the arbitrators' fees, administrative
fees, travel expenses, out-of-pocket expenses, such as copying and
telephone, court costs, witness fees and attorneys' fees.
25.17 Not for Benefit of Creditors. The provisions of this Agreement
are intended only for the regulation of relations among Members and the Company.
This Agreement is not intended
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Exhibit 10.60
for the benefit of non-Member creditors and does not grant any rights to or
confer any benefits on non-Member creditors or any other person who is not a
Member, a Manager, or an officer.
CERTIFICATE
We hereby certify that the foregoing Operating Agreement, consisting of
29 pages, excluding the Table of Contents, constitutes the Operating Agreement
of Premiere Credit of North America, Limited Liability Company, an Indiana
Limited Liability Company, adopted by the Members of the Company as of January
28, 2004.
Nelnet, Inc.
121 S. 13th Street, Suite 201
Lincoln, NE 68508
By: /s/ Charles Hosea
-------------------------------------
Charles Hosea, Executive Director
/s/ Todd J. Wolfe
----------------------------------------------
Todd J. Wolfe
P.O. Box 19309
Indianapolis, IN 46219
/s/ David A. Hoeft
----------------------------------------------
David A. Hoeft
P.O. Box 19309
Indianapolis, IN 46219
/s/ Tina D. Mercer
----------------------------------------------
Tina D. Mercer
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Exhibit 10.60
Exhibit A
Premiere Credit of North America, LLC
MEMBER MEMBERSHIP INTEREST
David A. Hoeft 18.85%
Todd J. Wolfe 25.15%
Tina D. Mercer 6.0%
Nelnet, Inc. 50%
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