EXHIBIT 4.3
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AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF
KEY CONSUMER RECEIVABLES LLC
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
KEY CONSUMER RECEIVABLES LLC
This Limited Liability Company Agreement (together with the schedules
attached hereto, this "Agreement") of Key Consumer Receivables LLC (the
"Company"), is entered into by Key Bank USA, National Association as the sole
equity member (the "Member"), and Evelyn Echevarria, as the Special Member (as
defined on Schedule A hereto). Capitalized terms used and not otherwise defined
herein have the meanings set forth on Schedule A hereto.
The Member, by execution of this Agreement, hereby forms the Company as
a limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act (6 Del. C. 18-101 et seq.), as amended from time
to time (the "Act"), and this Agreement and the Member and the Special Member
hereby agree as follows:
Section 1. Name.
The name of the limited liability company formed hereby is Key Consumer
Receivables LLC.
Section 2. Principal Business Office.
The principal business office of the Company shall be located at 127
Public Square, Cleveland, Ohio 44114 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 Corporation Service Company, 2711 Centerville Road, Wilmington,
Delaware 19808.
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 Corporation Service
Company, 2711 Centerville Road, Wilmington, Delaware 19808.
Section 5. Member.
(a) The mailing address of the Member is set forth on Schedule B
attached hereto. The Member was admitted to the Company as a member of the
Company upon its execution of a counterpart signature page to this agreement.
(b) Subject to Section 9(j), the Member may act by written
consent.
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(c) Upon the occurrence of any event that causes the Member to
cease to be a member of the Company (other than (i) upon an assignment by the
Member of all of its limited liability company interest in the Company and the
admission of the transferee pursuant to Sections 21 and 23, or (ii) the
resignation of the Member and the admission of an additional member of the
Company pursuant to Sections 22 and 23), each person acting as an Independent
Director pursuant to Section 10 shall, without any action of any Person and
simultaneously with the Member ceasing to be a member of the Company,
automatically be admitted to the Company as a Special Member and shall continue
the Company without dissolution. No Special Member may resign from the Company
or transfer its rights as Special Member unless (i) a successor Special Member
has been admitted to the Company as Special Member by executing a counterpart to
this Agreement, and (ii) such successor has also accepted its appointment as
Independent Director pursuant to Section 10; provided, however, the Special
Members shall automatically cease to be members of the Company upon the
admission to the Company of a substitute Member. Each Special Member shall be a
member of the Company that has no interest in the profits, losses and capital of
the Company and has no right to receive any distributions of Company assets.
Pursuant to Section 18-301 of the Act, a Special Member shall not be required to
make any capital contributions to the Company and shall not receive a limited
liability company interest in the Company. A Special Member, in its capacity as
Special Member, may not bind the Company. Except as required by any mandatory
provision of the Act, each Special Member, in its capacity as Special Member,
shall have no right to vote on, approve or otherwise consent to any action by,
or matter relating to, the Company, including, without limitation, the merger,
consolidation or conversion of the Company. In order to implement the admission
to the Company of each Special Member, each person acting as an Independent
Director pursuant to Section 10 shall execute a counterpart to this Agreement.
Prior to its admission to the Company as Special Member, each person acting as
an Independent Director pursuant to Section 10 shall not be a member of the
Company.
Section 6. Certificates.
Kari K. Walter, 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, her 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.
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Section 7. Purposes. The purpose to be conducted or promoted by the
Company is to engage in the following activities:
(a)
(i) (A) to finance and acquire consumer loans, including
student and other education related loans (the
"Consumer Loans") and other related rights and assets
and (B) issuing promissory notes or other securities
secured by the assets of the Company;
(ii) to acquire, own, hold, sell, transfer, service,
convey, safekeep, dispose of, pledge, assign, borrow
money against, finance, refinance or otherwise deal
with, publicly or privately and whether with
unrelated third parties or with affiliated entities,
Consumer Loans and related rights and assets;
(iii) to loan, transfer, or otherwise invest funds received
as a result of the Company's interest in any Consumer
Loans and related rights and assets and any other
income as determined by the Company's Board of
Directors from time to time;
(iv) pledge, sell, liquidate, transfer and otherwise deal
with credit and liquidity support in connection with
activities set forth in clause (iii) above
(including, insurance policies, surety bonds, cash
collateral, letters of credit, lines of credit,
purchase and repurchase agreements, minimum payments
agreements, guaranteed investment contracts,
guarantees and other credit or liquidity support)
(collectively, "Credit and Liquidity Support");
(v) to invest cash collateral, reserves and proceeds from
Consumer Loans and Credit and Liquidity Support;
(vi) to authorize, issue, sell, deliver and incur
indebtedness, obligations and liabilities in the
ordinary course of the Company's business; and
(vii) 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 or incidental to and
necessary, convenient or advisable for the
accomplishment of the above-mentioned purposes
(including 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).
(b) The Company, by or through any Member, Director or Officer on
behalf of the Company, may enter into and perform the Transaction Documents and
all documents,
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agreements, certificates, or financing statements contemplated thereby or
related thereto, all without any further act, vote or approval of any Member,
Director, Officer or 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 any Member,
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 anytime 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 four, one of which shall be an
Independent Director pursuant to Section 10. 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. Directors need not be a Member. The initial Directors designated by the
Member are listed on Schedule C 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 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 maybe 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
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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, and subject to, in all
cases, Sections 9(j) and 10, 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 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 maybe allowed like compensation for attending committee
meetings.
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(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, subject to Section 10, 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 Member shall not, so long as any Obligation is
outstanding, amend, alter, change or repeal the
definition of "Independent Director" or Sections
5(c), 7, 8, 9, 20, 21, 22, 23, 24, 25, or 30 or
Schedule A of this Agreement without the unanimous
written consent of the Board (including the
Independent Director) and the consent of the holders
of a majority of the outstanding principal amount of
the outstanding debt of the Company. Subject to this
Section 9(j), the Member reserves the right to amend,
alter, change or repeal any provisions contained in
this Agreement in accordance with Section 30.
(iii) Notwithstanding any other provision of this Agreement
and any provision of law that otherwise so empowers
the Company, the Member, the Board, any Officer or
any other Person, neither the Member nor the Board
nor any Officer nor any other Person shall be
authorized or empowered, nor shall they permit the
Company, without the prior unanimous written consent
of the Member and the Board (including the
Independent Director), to take any Material Action,
provided, however, that the Board may not vote on, or
authorize the taking of, any Material Action, unless
there is at least one Independent Director then
serving in such capacity.
(iv) 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) the
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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;
(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; use separate stationery,
invoices and checks;
(M) not pledge its assets for the benefit of any
other Person;
(N) correct any known misunderstanding regarding
its separate identity;
(O) maintain adequate capital in light of its
contemplated business purpose, transactions and
liabilities;
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(P) 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;
(Q) not acquire any securities of the Member; and
(R) 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.
(v) 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 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, liquidation, consolidation,
merger, asset sale or transfer of ownership
interests other than such activities as are
expressly permitted under this Agreement
pursuant to any provision of the Transaction
Documents; or
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(F) form, acquire or hold any subsidiary (whether
corporate, partnership, limited liability
company or other).
Section 10. Independent Director.
As long as any Obligation is outstanding, the Member shall cause the
Company at all times to have at least one Independent Director who will be
appointed by the Member. To the fullest extent permitted by Section 18-1101(c)
of the Act, the Independent Director shall consider only the interests of the
Company, including its respective creditors, in acting or otherwise voting on
the matters referred to in Section 9(j)(iii). No resignation or removal of an
Independent Director, and no appointment of a successor Independent Director,
shall be effective until the successor Independent Director shall have accepted
his or her appointment by a written instrument, which may be a counterpart
signature page to the Management Agreement and shall have executed a counterpart
to this Agreement as required by Section 5(c). All right, power and authority of
the Independent Directors shall be limited to the extent necessary to exercise
those rights and perform those duties specifically set forth in this Agreement.
Except as provided in the second sentence of this Section 10, in exercising
their rights and performing their duties under this Agreement, any Independent
Director shall have a fiduciary duty of loyalty and care similar to that of a
director of a business corporation organized under the General Corporation Law
of the State of Delaware. No Independent Director shall at any time serve as
trustee in bankruptcy for any Affiliate of the Company.
Section 11. Officers.
(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 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 elected or appointed by the Board 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 D 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
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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 10(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.
(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, subject to Section 9(j), the actions of
the Officers taken in accordance with such powers shall bind the Company.
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(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 the Special 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, Special Member or Director of the Company.
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Section 13. Capital Contributions.
The Member has contributed to the Company property of an agreed value
as listed on Schedule B attached hereto. In accordance with Section 5(c), the
Special Member shall not be required to make any capital contribution to the
Company.
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.
Section 15. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the Member.
Section 16. Distributions.
Subject to the solvency and adequate capitalization of the Company, at
the close of each quarter a distribution shall be made to the Member in an
amount equal to the amount by which the equity of the Company (as determined
under Generally Accepted Accounting Principles) exceeds $5,000, but only to the
extent that (1) sufficient cash is on hand to make such distribution, and (2)
subsequent to such distribution there continues to be cash on hand of at least
$5,000. 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. Other Business.
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The Member, the Special Member and any Affiliate of the Member or the
Special 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 19. Exculpation and Indemnification.
(a) Neither the Member nor the Special Member nor any Officer,
Director, Independent Director, employee or agent of the Company nor any
employee, representative, agent or Affiliate of the Member or the Special 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 19 by the
Company shall be provided out of and to the extent of Company assets only, and
the Member and the Special 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 19 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, 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 19.
(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
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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 Peon. 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 and the Special Member to replace such other duties and liabilities of
such Covered Person.
(f) The foregoing provisions of this Section 19 shall survive any
termination of this Agreement.
Section 20. Assignments.
Subject to Section 22, 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 20, 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 21. 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 21, an additional member of the Company shall be admitted to the
Company, subject to Section 22, 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 22. 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
14
long as any Obligation remains outstanding, no additional Member may be admitted
to the Company unless the Rating Agency Condition is satisfied.
15
Section 23. 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 either the Member or the Special Member shall not cause the Member
or the Special Member, as the case may be, 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) Notwithstanding any other provision of this Agreement, each of
the Member and the Special Member waives any right it might have to agree in
writing to dissolve the Company upon the Bankruptcy of the Member or the Special
Member, or the occurrence of an event that causes the Member or the Special
Member to cease to be a member of the Company.
(d) 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.
(e) 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 24. Waiver of Partition: Nature of Interest.
Except as otherwise expressly provided in this Agreement, to the
fullest extent permitted by law, each of the Member and the Special 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,
16
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. The interest of the Member in the Company is personal property.
Section 25. 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 or
the Special 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 26. 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 27. Entire Agreement.
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
Section 28. Binding Agreement.
Notwithstanding any other provision of this Agreement, the Member
agrees that this Agreement, including, without limitation, Sections 7, 8, 9, 10,
19, 20, 21, 22, 23, 25, 28, and 30, constitutes a legal, valid and binding
agreement of the Member, and is enforceable against the Member by the
Independent Director, in accordance with its terms. In addition, the Independent
Director shall be an intended beneficiary of this Agreement.
Section 29. 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 30. Amendments.
Subject to Section 9(j), this Agreement may not be modified, altered,
supplemented or amended except 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
17
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 31. 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 32. 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 33. 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 November 22, 2000.
18
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Limited Liability Company Agreement as of the 22
day of November, 2000.
MEMBER:
KEY BANK USA, NATIONAL ASSOCIATION
By: /s/ Craig T. Platt
-----------------------------------------
Name: Craig T. Platt
--------------------------------------
Title: Senior Vice President
--------------------------------------
SPECIAL MEMBER:
/s/ Evelyn Echevarria
--------------------------------------------
Name: Evelyn Echevarria
19
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, dissolution
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 120 days
after the commencement of any proceeding against the Person seeking
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any statute, law or regulation, if the proceeding has
not been dismissed, or if within 90 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 including the Independent Director.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on November
22, 2000, as amended or amended and restated from time to time.
A-1
"Company" means Key Consumer Receivables, LLC, a Delaware limited
liability company.
"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 and Liquidity Support" has the meaning set forth in Section
7(1)(iv).
"Directors" means the Persons elected to the Board of Directors from
time to time by the Member, including the Independent Director. A Director is
hereby designated as a "manager" of the Company within the meaning of Section
18-101(10) of the Act.
"Independent Director" means a natural person who, for the five-year
period prior to his or her appointment as Independent Director has not been, and
during the continuation of his or her service as Independent Director is not:
(i) an employee, director, stockholder, partner or officer of the Company or any
of its Affiliates (other than his or her service as an Independent Director of
the Company); (ii) a customer or supplier of the Company or any of its
Affiliates; or (iii) any member of the immediate family of a person described in
(i) or (ii).
"Material Action" means to consolidate or merge the Company with or
into any Person, or sell all or substantially all of the assets of the Company,
or to institute proceedings to have the Company be adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency proceedings
against the Company or file a petition seeking, or consent to, reorganization or
relief with respect to the Company under any applicable federal or state law
relating to bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company or a
substantial part of its property, or make any assignment for the benefit of
creditors of the Company, or admit in writing the Company's inability to pay its
debts generally as they become due, or, to the fullest extent permitted by law,
take action in furtherance of any such action, or dissolve or liquidate the
Company.
"Member" means Key Bank USA, National Association, 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.
"Obligations" shall mean the indebtedness, liabilities and obligations
of the Company under or in connection with this Agreement, the other Transaction
Documents or any related document in effect as of any date of determination.
A-2
"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" has the meaning assigned to that term in the
Transaction Documents.
"Rating Agency Condition" means, with respect to any action, that the
Rating Agency shall have been given ten days prior notice thereof and that the
Rating Agency shall have notified the Company in writing that such action will
not result in a reduction or withdrawal of the then current rating by such
Rating Agency of any of the Notes (as defined in the Transaction Documents).
"Special Member" means, upon such person's admission to the Company as
a member of the Company pursuant to Section 5(c), a person acting as Independent
Director, in such person's capacity as a member of the Company. A Special Member
shall only have the rights and duties expressly set forth in this Agreement.
"Transaction Documents" means, for each transaction, any applicable
Sale/Purchase Agreement, Indenture of Trust and any documents 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 INITIAL CAPITAL INTEREST
CONTRIBUTION
Key Bank 127 Public Square $5,000.00 100%
USA, Cleveland, OH 44114
National
Association
B-1
SCHEDULE C
DIRECTORS
1. Craig T. Platt
2. Joseph M. Vayda
3. Michael W. Dvorak
4. Evelyn Echevarria - Independent Director
C-1
SCHEDULE D
OFFICERS TITLE
Craig T. Platt President
Michael W. Dvorak Chief Financial Officer
Anthony J. Bulic Treasurer
Steven N. Bulloch Secretary
Richard S. Hawrylak Assistant Secretary
D-1
KEY CONSUMER RECEIVABLES LLC
UNANIMOUS ACTION OF THE
BOARD OF DIRECTORS
ACTING WITHOUT A MEETING
The Board of Directors of Key Consumer Receivables LLC (the "Company")
by the unanimous written consent of its members in lieu of the annual meeting,
does hereby consent to and adopts the following resolution:
RESOLVED, that the following persons are hereby elected to the
office set forth opposite such person's respective name, to hold such
office until such person's successor has been duly elected and
qualified or until such person's death, resignation, or removal from
office:
Beth D. Rosenberg - President
Michael W. Dvorak - Chief Financial Officer
Darlene H. Dimitrijevs - Treasurer
Richard S. Hawrylak - Secretary
Steven N. Bulloch - Assistant Secretary
IN WITNESS WHEREOF, the undersigned have hereunto signed their names
effective as of the 31st day of March, 2004.
/s/ Beth D. Rosenberg /s/ Joseph M. Vayda
- --------------------------- ---------------------------------
BETH D. ROSENBERG JOSEPH M. VAYDA
/s/ Michael W. Dvorak /s/ Evelyn Echevarria
- --------------------------- ---------------------------------
MICHAEL W. DVORAK EVELYN ECHEVARRIA
KEY CONSUMER RECEIVABLES LLC
ACTION OF SOLE MEMBER
ACTING WITHOUT A MEETING
Key Bank USA, National Association, the Sole Member of Key Consumer
Receivables LLC (the "Corporation"), acting by written consent in lieu of the
annual meeting, does hereby consent to and adopt the following resolution as of
March 31, 2004:
RESOLVED, that the following persons be and each of
them is hereby elected to the Board of Directors of the
Corporation, each to serve as a Director until such person's
successor has been duly elected and qualified, or until such
person's death, resignation, or removal from office:
Beth D. Rosenberg
Joseph M. Vayda
Michael W. Dvorak
Evelyn Echevarria - Independent Director
KEYBANK USA, NATIONAL ASSOCIATION
(Sole Member of Key Consumer Receivables LLC)
/s/ Steven N. Bulloch
------------------------------------------
Steven N. Bulloch
Assistant Secretary