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Exhibit 4.3
LIMITED LIABILITY COMPANY OPERATING
AGREEMENT
OF
ADVANTA EQUIPMENT RECEIVABLES
SERIES 2000-1 LLC
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LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
ADVANTA EQUIPMENT RECEIVABLES
SERIES 2000-1 LLC
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS 1
1. Act 1
2. Additional Member 1
3. Admission Agreement 1
4. Affiliate 1
5. Articles of Organization 1
6. Asset-Backed Securities 1
7. Assets 2
8. Associate 2
9. Assignee 2
10. Benefit Plan Investor 2
11. Business Day 2
12. Capital Account 2
13. Capital Contribution 2
14. Code 2
15. Company 3
16. Company Liability 3
17. Company Property 3
18. Contract 3
19. Contributing Members 3
20. Disposition (Dispose) 3
21. Dissolution Event 3
22. Distribution 3
23. Effective Date 3
24. Equipment 4
25. GAAP Capital Account 4
26. Indenture 4
27. Independent Manager 4
28. Initial Capital Contribution 5
29. Initial Member 5
30. Insolvency Event 5
31. Interim Agreement 5
32. Majority-in-Interest 5
33. Management Right 5
34. Managers 5
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35. Member 6
36. Membership Interest 6
37. Money 6
38. Net Losses 6
39. Net Profits 6
40. Non-Consolidatable Entity 6
41. Notice 6
42. Operating Agreement 7
43. Organization 7
44. Organization Expenses 7
45. Originating Unit 7
46. Person 7
47. Principal Office 7
48. Proceeding 7
49. Property 7
50. Receivables 8
51. Receivables Transfer Agreement 8
52. Related Agreements 8
53. Related Company 8
54. Resignation 8
55. Securitization Agreements 8
56. Sharing Ratio 8
57. Sole Member 8
58. Special Member 8
59. State 8
60. Substitute Member 8
61. Taxing Jurisdiction 9
62. Trust 9
63. Trustee 9
ARTICLE II FORMATION 9
1. Organization 9
2. Agreement 9
3. Name 9
4. Effective Date 10
5. Term 10
6. Resident Agent and Office 10
7. Principal Office 10
ARTICLE III NATURE OF BUSINESS 10
1. Purposes. 10
2. Limitations. 12
ARTICLE IV ACCOUNTING AND RECORDS 15
1. Records to be Maintained 15
2. Accounts 16
ARTICLE V NAME AND ADDRESS OF INITIAL MEMBER 16
ARTICLE VI RIGHTS AND DUTIES OF MEMBERS 16
1. Management Rights 16
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2. Liability of Members 16
3. Indemnification 17
4. Representations and Warranties 17
5. Conflicts of Interest. 17
ARTICLE VII MANAGERS 18
1. Initial Managers 18
2. Independent Manager 18
3. Term of Office as Managers 19
4. Authority of Members to Bind the Company (General Powers) 19
5. Actions of the Managers 19
6. Compensation of Managers 19
7. Managers' Standard of Care and Indemnification 19
8. Removal of Managers 20
ARTICLE VIII CONTRIBUTIONS AND CAPITAL ACCOUNTS 20
1. Capital Contributions 20
2. Additional Contributions 20
ARTICLE IX TAXES 21
1. Elections 21
2. Taxes of Taxing Jurisdictions 21
3. Method of Accounting 21
ARTICLE X DISPOSITION OF MEMBERSHIP INTERESTS 21
1. Disposition 21
2. Dispositions Not in Compliance with this Article Void 22
ARTICLE XI ADMISSION OF ASSIGNEES AND ADDITIONAL MEMBERS 22
1. Rights of Assignees 22
2. Admission of Substitute Members 22
3. Admission of Additional Members 22
4. Forbidden Transfers and Assignments 23
ARTICLE XII DISSOLUTION AND WINDING UP 23
1. Dissolution 23
2. Effect of Dissolution 23
3. Distribution of Assets on Dissolution 23
4. Winding Up and Certificate of Dissolution 24
5. Resignation of Member 24
6. Continuation of Company 24
7. Special Members. 25
ARTICLE XIII AMENDMENT 25
1. Operating Agreement may be Modified 25
2. Amendment or Modification of Operating Agreement 25
ARTICLE XIV MISCELLANEOUS PROVISIONS 26
1. Entire Agreement 26
2. No Partnership Intended for Non-tax Purposes 26
3. Rights of Creditors and Third Parties Under
Operating Agreement 26
EXHIBIT A INITIAL MEMBERS
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LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
ADVANTA EQUIPMENT RECEIVABLES
SERIES 2000-1 LLC
This Limited Liability Company Operating Agreement of Advanta Equipment
Receivable Series 2000-1 LLC, a Nevada limited liability company, is entered
into and shall be effective as of the Effective Date, by and among the Company
and the entity executing this Operating Agreement as the Initial Member.
ARTICLE I
DEFINITIONS
For purposes of this Operating Agreement (as defined below), unless the context
clearly indicates otherwise, the following terms shall have the following
meanings:
1. Act - The Nevada Limited Liability Company Act and all amendments
thereto.
2. Additional Member - A Member other than the Initial Member or a
Substitute Member who has acquired a Membership Interest from the Company.
3. Affiliate - An "affiliate" of a person is a person that directly, or
indirectly through one of more intermediaries, controls or is controlled by, or
is under common control with, or owns, directly or indirectly, 50% or more of,
the person specified.
4. Articles of Organization - The Articles of Organization of the
Company as properly adopted and amended from time to time by the Members and
filed with the Secretary of State.
5. Asset-Backed Securities - Shall have the meaning assigned to it in
Article III hereof.
6. Assets - Shall have the meaning assigned to it in Article III
hereof.
7. Associate - The term "associate," when used to indicate a
relationship with any person, means (1) a corporation or organization of which
such person is an officer, director or partner or is, directly or indirectly,
the beneficial owner of 10% or more of any class of equity securities, (2) any
trust or other estate in which such person serves as trustee or in a similar
capacity, and (3) any relative or spouse of such person, or any relative of such
spouse, who has the same home as such person
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8. Assignee - A transferee of a Membership Interest who has not been
admitted as a Substitute Member.
9. Benefit Plan Investor - A Benefit Plan Investor shall mean (a) an
"employee benefit plan" within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") that is subject to
the provisions of Title I of ERISA, (b) a "plan" within the meaning of Section
4975(e)(1) of the Code that is subject to Section 4975 of the Code and (c) any
Person or Organization that is acting on behalf of or investing the assets of a
plan described in (a) or (b).
10. Business Day - Any day other than Saturday, Sunday or any legal
holiday observed in the State.
11. Capital Account - The account maintained for a Member or Assignee
determined in accordance with Article VIII.
12. Capital Contribution - Any contribution of Property, services or
the obligation to contribute Property or services made by or on behalf of a
Member or Assignee.
13. Code - The Internal Revenue Code of 1986, as amended from time to
time.
14. Company - Advanta Equipment Receivables Series 2000-1 LLC, a
limited liability company formed under the laws of the State of Nevada, and any
successor limited liability company.
15. Company Liability - Any enforceable debt or obligation for which
the Company is liable or which is secured by any Company Property.
16. Company Property - Any Property owned by the Company.
17. Contract - Each of the agreements whether in the form of a lease,
loan agreement, financing agreement or any other form of written contract or
agreement evidencing the obligations of the related obligor, including, as
applicable, schedules, supplements and amendments thereto, to make payments
related to the leasing, purchase or other financing of specified Equipment.
18. Disposition (Dispose) - Any sale, assignment, transfer, exchange,
mortgage, pledge, grant, hypothecation, or other transfer, absolute or as
security or encumbrance (including dispositions by operation of law).
19. Dissolution Event - An event, the occurrence of which will result
in the dissolution of the Company under Article XII.
20. Distribution - A transfer of Property to a Member on account of a
Membership Interest as described in Article XII.
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21. Effective Date - March___, 2000.
22. Equipment - The equipment leased, sold, or financed, as applicable,
to an obligor pursuant to any Contract.
23. GAAP Capital Account - The capital account maintained by the
Company for each of the Members in accordance with generally accepted accounting
principles.
24. Independent Manager- An Independent Manager shall be an individual
who is not, and never was and does not have any family member who is or ever
was,
(A) a stockholder, director, member, manager, officer,
employee, affiliate, associate, customer or supplier of, or any person that has
received any benefit (excluding, however, any compensation received by the
manager, in such person's capacity as a manager as required by Article III of
the Articles of Organization) in any form whatever from, or any person that has
provided any service (excluding, however, any service provided by the manager,
in such person's capacity as manager as required by Article III of the Articles
of Organization) in any form whatever to, Advanta Corp., Advanta Bank Corp.,
Advanta Business Services Corp. or any of their affiliates, subsidiaries,
parents or associates, or
(B) (i) any person owning beneficially, directly or
indirectly, any outstanding shares of common stock of Advanta Corp., Advanta
Bank Corp., Advanta Business Services Corp., or any of their affiliates,
subsidiaries, parent entities or (ii) a stockholder, director, member, manager,
officer, employee, affiliate, associate, customer or supplier of, or any person
that has received any benefit (excluding, however, any compensation received by
the manager, in such person's capacity as manager as required by Article III of
the Articles of Organization) in any form whatever from, or any person that has
provided any service (excluding, however, any service provided by the manager,
in such person's capacity as manager as required by Article III of the Articles
of Organization) in any form whatever to, such beneficial owner or any of such
beneficial owner's affiliates or associates; provided, that, such Independent
Manager may act as a manager, director or officer of other special purpose
corporations or special purpose entities (an "SPE"). An Independent Manager may
not be a trustee in bankruptcy for any SPE or any Affiliate of a SPE.
25. Initial Capital Contribution - The Capital Contribution agreed to
be made by the Initial Member as described in Article VIII.
26. Initial Member - The person identified on Exhibit A attached hereto
and made a part hereof by this reference who has executed this Operating
Agreement.
27. Insolvency Event - With respect to any Person or Organization: (i)
the entry of a decree or order by a court, agency or supervisory authority
having jurisdiction in the premises for the appointment of a conservator,
receiver or liquidator for such Person or Organization, in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of such Person or
Organization's affairs,
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and the continuance of any such decree or order unstayed and in effect for a
period of 90 consecutive days; (ii) the consent by such member to the
appointment of a conservator, receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to such member or of or relating to substantially all
of such Person or Organization's property; or (iii) if such Person or
Organization shall admit in writing its inability to pay its debts generally as
they become due, file a petition to take advantage of any applicable insolvency
or reorganization statute, make an assignment for the benefit of its creditors
or voluntarily suspend payment of its obligations.
28. Majority-in-Interest - Shall mean, except when otherwise required
by the Act, Members holding more than fifty percent (50%) of the Membership
Interest in the Company.
29. Management Right - Subject to Sections 4 and 5 of Article VII and
subject to Section 5 of Article X, the right of a Member to participate in the
management of the Company, including the rights to information and to consent or
approve actions of the Company.
30. Managers - Any Manager described in Article VII hereof.
31. Member - Initial Member, Substitute Member or Additional Member,
from the date of admission of the Independent Managers as Special Members, the
Special Members, and, unless the context expressly indicates to the contrary,
includes Assignees.
32. Membership Interest - The rights of a Member or, in the case of an
Assignee, the rights of the assigning Member in Distributions (liquidating or
otherwise) and allocations of the profits, losses, gains, deductions, and
credits of the Company.
33. Money - Cash or other legal tender of the United States, or any
obligation that is immediately reducible to legal tender without delay or
discount. Money shall be considered to have a fair market value equal to its
face amount.
34. Net Losses - The loss and deductions of the Company determined in
accordance with accounting principles consistently applied from year to year
employed under the method of accounting adopted by the Company.
35. Net Profits - The income and gains of the Company determined in
accordance with accounting principles consistently applied from year to year
employed under the method of accounting adopted by the Company.
36. Notice - Any notice required to be furnished pursuant to this
Operating Agreement. Such Notice shall be in writing. Notice to the Company
shall be considered given when mailed by first-class mail, postage prepaid, or
by registered mail, certified mail, Federal Express or other courier services or
telecopy, addressed to the Managers in care of the Company at the address of
Principal Office. Notice as to a Member shall be considered given when mailed by
first-class mail, postage prepaid, or by registered mail, certified mail,
Federal Express or other
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courier services or telecopy, addressed to the Member at the address reflected
in this Operating Agreement unless the Member has given the Company a Notice of
a different address.
37. Operating Agreement - This Limited Liability Company Operating
Agreement including all Admission Agreements and amendments adopted in
accordance with this Operating Agreement and the Act.
38. Organization - A Person other than a natural person. Organization
includes, without limitation, corporations (both non-profit and other
corporations), partnerships (both limited and general), joint ventures, limited
liability companies, and unincorporated associations, but the item does not
include joint tenancies and tenancies by the entirety.
39. Organization Expenses - Those expenses incurred in the organization
of the Company including the costs of preparation of this Operating Agreement
and the Articles of Organization.
40. Originating Unit - Advanta Bank Corp. or any other subsidiary of
Advanta Corp., or Advanta Business Services Corp., which originated or acquired
the Contracts to be conveyed to the Company.
41. Person - An individual, trust, estate, or any incorporated or
unincorporated organization permitted to be a member of a limited liability
company under the laws of the State of Nevada.
42. Principal Office - The office set forth in Article II, Section 7 of
this Operating Agreement.
43. Proceeding - Any administrative, judicial, or other adversary
proceeding, including, without limitation, litigation, arbitration,
administrative adjudication, mediation, and appeal or review of any of the
foregoing.
44. Property - Any property, real or personal, tangible or intangible,
including money and any legal or equitable interest in such property, but
excluding services and promises to perform services in the future.
45. Rating Agency Condition - means, with respect to any proposed
action, that each of the credit rating agencies then maintaining a rating on any
outstanding Asset-Backed Securities has delivered to the Company, written
confirmation that such action will not result in a reduction or withdrawal of
the then current rating assigned to the Asset-Backed Securities.
46. Receivables - Amounts to be paid by the obligors under the
contracts.
47. Resignation - The act by which a Manager ceases to be a Manager.
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48. Securitization Agreements - Shall have the meaning assigned to it
in Article III hereof.
49. Sharing Ratio - With respect to any Member, a fraction (expressed
as a percentage), the numerator of which is the total of the Member's initial
Capital Account and the denominator is the total of all initial Capital Accounts
of all Members and Assignees.
50. Sole Member - At any time when there is only one Member of the
Company, such sole Member.
51. Special Member - Shall have the meaning assigned to it in Article
XII hereof.
52. State - The State of Nevada.
53. Substitute Member - An Assignee who has been admitted to all of the
rights of membership pursuant to this Operating Agreement.
54. Taxing Jurisdiction - Any state, local, or foreign government that
collects tax, interest or penalties, however designated, on any Member's share
of the income or gain attributable to the Company.
55. Trustee - Shall have the meaning assigned to it in Article III
hereof.
ARTICLE II
FORMATION
1. Organization - The Initial Member hereby organizes the Company as a
Nevada limited liability company pursuant to the provisions of the Act.
2. Agreement - For and in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Members executing this
Operating Agreement hereby agree to the terms and conditions of this Operating
Agreement, as it may from time to time be amended according to its terms. It is
the express intention of the Members that this Operating Agreement shall be the
sole source of agreement of the parties, and, except to the extent a provision
of this Operating Agreement expressly incorporates federal income tax rules by
reference to sections of the Code or Regulations or is expressly prohibited or
ineffective under the Act, this Operating Agreement shall govern, even when
inconsistent with, or different than, the provisions of the Act or any other law
or rule. To the extent any provision of this Operating Agreement is prohibited
or ineffective under the Act, this Operating Agreement shall be considered
amended to the smallest degree possible in order to make this Operating
Agreement effective under the Act. In the event the Act is subsequently amended
or interpreted in such a way to make any provision of this
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Operating Agreement that was formerly invalid valid, such provision shall be
considered to be valid from the effective date of such interpretation or
amendment.
3. Name - The name of the Company is Advanta Equipment Receivables
Series 2000-1 LLC, and all business of the Company shall be conducted under that
name or under any other name, but in any case, only to the extent permitted by
applicable law.
4. Effective Date - This Operating Agreement shall become effective
upon the later to occur of (i) the effective date or (ii) the filing of the
Articles of Organization of Advanta Equipment Receivables Series 2000-1 LLC with
the Secretary of State of the State.
5. Term - The Company shall have perpetual duration as provided in the
Act.
6. Resident Agent and Office - The resident agent for the service of
process and the registered office shall be that Person or Organization and
location reflected in the Articles of Organization as filed in the office of the
Secretary of State of the State. The Managers may, from time to time, change the
resident agent or office through appropriate filings with the Secretary of State
of the State. In the event the resident agent ceases to act as such for any
reason or the registered office shall change, the Managers shall promptly
designate a replacement resident agent or file a notice of change of address as
the case may be. If the Managers shall fail to designate a replacement resident
agent or change of address of the registered office, any Member may designate a
replacement resident agent or file a notice of change of address.
7. Principal Office - The Principal Office of the Company shall be
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇.
ARTICLE III
NATURE OF BUSINESS
1. Purposes. The business in which the Company may engage and
the powers which the Company may exercise are restricted exclusively to the
following:
(a) to acquire from Advanta Bank Corp. (i) financial contracts,
interests in and rights in or related to financial contracts, including but not
be limited to, the right to the receivables and other amounts due or to become
due under such contracts, and which contracts shall include, but not be limited
to, lease contracts, loans, accounts receivables, or installment sale or lease
contracts or promissory notes, arising out of or relating to, the purchase,
lease or financing of equipment, software, or goods, whether or not secured by
such equipment, software, or goods, security provided for the contracts
including but not limited to security interests in the equipment, software or
goods and proceeds from claims on insurance policies related thereto, and any
related rights, interests and property appurtenant thereto or (ii) any
participation interest (including, without limitation, interest only strips) in
or security based on or backed by any of the foregoing and related rights and
other property appurtenant thereto (items in (a)(i) and (a)(ii)), collectively,
the "Assets");
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(b) to acquire, own, hold, service, sell, assign, pledge and otherwise
deal with the Assets, collateral securing or otherwise relating to the Assets,
related insurance policies, agreements with vendors or lessors or other
originators or servicers of Assets and any proceeds or further rights associated
with any of the foregoing;
(c) to enter into agreements including, but not limited to, transfer
and servicing agreements relating to the acquisition and servicing of the Assets
(each a "Transfer and Servicing Agreement") and to enter into other agreements
relating to the servicing of the Assets including agreements relating to the
subservicing of the Assets;
(d) to transfer or pledge Assets to one or more trusts, banks,
financial institutions, commercial paper issuers, insurance companies or similar
entities pursuant to a servicing agreement, indenture, master facility agreement
or other agreement (each a "Securitization Agreement"), to be entered into by,
among others, the Company and the trustee named therein (the "Trustee"); and
(e) to authorize, and cause the issuance of one series of notes or
other securities issued pursuant to the Securitization Agreement;
(f) to authorize, borrow, issue, sell and deliver one series of bonds,
notes or other evidences of indebtedness including any subordinated interests,
any of which may be in certificated or uncertificated form and which may include
multiple classes, secured or collateralized by one or more pools of Assets and
issued under a Securitization Agreement (collectively, the "Asset-Backed
Securities"), and to enter into agreements related to the sale and purchase of
the Asset-Backed Securities, provided that the Company shall have absolutely no
liability under any Asset-Backed Securities except to the extent of the Assets
and other interests and property securing or collateralizing such Asset-Backed
Securities and to enter into interest rate swaps, interest rate caps or other
hedging transactions;
(g) to acquire from the Trustee or to retain notes, certificates or
interests or other subordinate Asset-Backed Securities issued or created under
the Securitization Agreement pursuant to which the Company transferred or
pledged Assets;
(h) to hold and enjoy all of the rights and privileges of any notes,
certificates or other subordinate Asset-Backed Securities issued to the Company
under the related agreements;
(i) to perform its obligations under each Transfer and Servicing
Agreement and Securitization Agreement, or other agreement entered into by the
Company;
(j) to invest proceeds from any Assets, and any other income as
determined by the Managers, including investing in other Assets;
(k) to engage in any acts and activities and exercise any powers
permitted to limited liability companies under the laws of the State of Nevada
which are incidental to, or connected with, the foregoing, and necessary,
suitable or convenient to accomplish any of the foregoing.
2. Limitations.
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(a) So long as any Asset-Backed Security is outstanding, the
Company shall not, except to the extent permitted by the Securitization
Agreement or the Transfer and Servicing Agreement or in accordance with the
terms of the Securization Agreement or the Transfer and Servicing Agreement, do
any of the following:
(i) lend or advance any moneys to, or make an investment in,
any Person;
(ii) engage in any other action that bears on whether the
separate legal identity of the Company and any other entity will be respected;
(iii) hold itself out as being liable for the debts of any
other party or act other than in its name and through its duly authorized
Managers or agents;
(iv) except for the Asset-Backed Securities authorized
pursuant to Article III, incur any indebtedness, or assume or guaranty any
indebtedness of any other entity;
(v) consolidate or merge with or into any other entity or
convey or transfer its properties and assets substantially as an entirety to any
entity; or
(vi) without the affirmative vote of 100% of the Managers of
the Company (including an affirmative vote of each Independent Manager required
by Article III of the Articles of Organization and Article VII of this Operating
Agreement), make an assignment for the benefit of creditors, file a petition in
bankruptcy on behalf of itself, petition or apply to any tribunal for the
appointment of a custodian, receiver, liquidator, assignee, sequestrator,
trustee or any similar official for the Company or for a substantial part of the
Company's property, commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereinafter in effect, with
respect to the Company, or otherwise seek any relief under any laws relating to
the relief from debts or the protection of debtors generally, or consent or
acquiesce to the entry of an order for relief, or in the filing of any such
petition, application, proceeding or appointment of or taking possession by the
custodian, receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or any substantial part of the Company's
property, or admit the Company's inability to pay its respective debts generally
as they become due or authorize, or take any action in furtherance of, any of
the foregoing to be done or taken on behalf of the Company or take any action in
furtherance of any of the foregoing.
(b) The Company shall conduct its affairs in accordance with the
following provisions:
(i) it shall not engage in any business or activity other than
as permitted by Article III hereof;
(ii) it shall maintain separate records, financial statements
and books of account from those of any other person; provided, however, that if
in addition to such separate financial statements, the Company's financial
statements are included as a part of the consolidated financial statements of
its parent entity, any of its affiliates and any other person, such consolidated
financial statements shall contain a footnote to the effect that the Company has
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assets and liabilities separate and apart from those of such person and those
separate assets and liabilities are shown on the separate financial statements
of the Company;
(iii) it shall not commingle the Company's assets with those
of any other person, and shall hold all of the Company's Assets in the Company's
name;
(iv) its Members shall hold meetings, as appropriate to
authorize all action on behalf of the Company and observe all other
organizational formalities of the Company;
(v) it shall not become involved in the day to day management
of any other person;
(vi) it shall operate so as not to be substantively
consolidated with any other person;
(vii) it shall maintain its assets separately from those of
any other person (including through the maintenance of a separate bank account);
(viii) it shall hold itself out as a separate entity from any
other person; it shall conduct business in its own name on its own stationary,
invoices and checks; and it shall correct any known misunderstanding regarding
its separate identity;
(ix) it shall conduct its business from an office separate
from any Member of the Company;
(x) it shall not act as the agent of any other person;
(xi) it shall pay its own liabilities and expenses (including
salaries of its employees) from its own funds, including fairly allocating
overhead expenses shared with an affiliate and paying for services performed by
any employee of an affiliate;
(xii) it shall not guarantee or become obligated for the debts
of any other entity or hold out its credit as being available to satisfy the
obligations of others;
(xiii) it shall allocate fairly and reasonably any overhead
for shared office space;
(xiv) other than the pledge of the property of the Company
pursuant to a Securitization Agreement or as otherwise permitted by the
Securitization Agreement, it shall not pledge or otherwise encumber its assets
for the benefit of any other entity or make any loans or advances to any entity;
(xv) it shall maintain adequate capital and a sufficient
number of employees in light of its contemplated business activities;
(xvi) except as permitted by the Transfer and Servicing
Agreement or the Securitization Agreement, it shall enter into transactions with
its affiliates only on commercially reasonable terms and on terms similar to
those of an arms-length transaction;
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(xvii) except as permitted by the Transfer and Servicing
Agreement or the Securitization Agreement, it shall not acquire the obligations
or securities of its affiliates or owners, including partners, members or
shareholders, as appropriate;
(xviii) except as permitted by the Transfer and Servicing
Agreement or the Securitization Agreement, it shall not make loans to any other
person or entity or buy or hold evidence of indebtedness issued by any other
person or entity (other than cash and investment-grade securities);
(xix) it shall not identify itself as a division of any other
person or entity; and
(xx) it shall not form, acquire or hold an interest in any
subsidiary.
ARTICLE IV
ACCOUNTING AND RECORDS
1. Records to be Maintained - The Company shall maintain the following
records at its registered office:
(a) A current list of the full name and last known business
address of each Member and each Manager, separately identifying the
Members and Managers (including the Independent Managers) in
alphabetical order;
(b) A copy of the Articles of Organization and all amendments
thereto, together with executed copies of any powers of attorney
pursuant to which the Articles of Organization have been executed;
(c) Copies of this Operating Agreement, including all
amendments thereto;
2. Accounts - The Managers shall maintain a record of the Capital
Account for each Member in accordance with Article VIII.
ARTICLE V
NAME AND ADDRESS OF INITIAL MEMBER
The name and address of the Initial Member is as reflected on Exhibit A
attached hereto and by this reference made a part hereof as if set forth fully
herein.
ARTICLE VI
RIGHTS AND DUTIES OF MEMBERS
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1. Management Rights - Subject to Articles III and VII hereof, all
Members (other than Assignees) who have not resigned shall be entitled to vote
on any matter submitted to a vote of the Members. Notwithstanding the foregoing,
the following actions require the unanimous consent of all Members:
a. any amendment to this Operating Agreement;
b. the admission of Assignees to Management Rights; and
c. the continuation of the Company after a Dissolution Event.
2. Liability of Members - Subject to Article XIV hereof, no Member
shall be liable as such for the liabilities of the Company or any obligations of
another Member. The failure of a limited liability company to observe any
formalities or requirements relating to the exercise of its powers or management
of its business or affairs under this Operating Agreement or the Act shall not
be grounds for imposing personal liability on the Members or Managers for
liabilities of the limited liability company.
3. Indemnification - The Company shall, subject to the second sentence
of this section, indemnify the Members, the Managers, and any agent of the
Members or the Managers for all costs, losses, liabilities, and damages paid or
accrued by such Member, such Manager or agent of such Member or such Manager in
connection with the business of the Company, as provided in the Articles of
Organization and to the fullest extent provided or allowed by the laws of the
State. Any amounts to be paid by the Company under this Article VI Section 3
shall be subordinated to the payment of any Asset-Backed Securities issued by
the Company and such indemnification shall not constitute a claim against the
Company in the event that cash flow in excess of amounts needed to pay the
Asset-Backed Securities is insufficient to make such indemnity payment.
4. Representations and Warranties - Each Member, and in the case of an
Organization, the Person(s) executing this Operating Agreement on behalf of the
Organization, hereby represents and warrants to the Company and each other
Member that: (a) it is duly organized, validly existing, and in good standing
under the laws of its state of organization and that it has full organizational
power to execute and agree to this Operating Agreement and to perform its
obligations hereunder; (b) it is acquiring its interest in the Company for its
own account as an investment and without an intent to distribute such interest;
and (c) it acknowledges that the interests have not been registered under the
Securities Act of 1933, as amended, or any state securities laws, and may not be
resold or transferred without appropriate registration or the availability of an
exemption from such requirements.
5. Conflicts of Interest.
(a) A Member shall be entitled to enter into transactions that may be
considered to be competitive with, or a business opportunity that may be
beneficial to, the Company, it being expressly understood that some of the
Members may enter into transactions that are similar to the transactions into
which the Company may enter. Notwithstanding the foregoing, Members shall
account to the Company and hold as trustee for it any property, profit, or
benefit derived by the Member, without the consent of the other Members, in the
conduct and winding up of the
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Company business or from a use or appropriation by the Member of Company
property including information developed exclusively for the Company and
opportunities expressly offered to the Company.
(b) A Member does not violate a duty or obligation to the Company
merely because the Member's conduct furthers the Member's own interest. A Member
may lend money to and transact other business with the Company. The rights and
obligations of a Member who lends money to or transacts business with the
Company are the same as those of a person who is not a Member, subject to other
applicable law. No transaction with the Company shall be voidable solely because
a Member has a direct or indirect interest in the transaction if either the
transaction is fair to the Company or the disinterested Managers or
disinterested Members, in either case knowing the material facts of the
transaction and the Member's interest, authorize, approve, or ratify the
transaction.
ARTICLE VII
MANAGERS
1. Initial Managers - The ordinary and usual decisions concerning the
business affairs of the Company shall be made by the Board of Managers. There
shall initially be seven (7) Managers of the Company. The initial Managers shall
be the following individuals:
Name Address
---- -------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ c/o Delaware Trust Capital Management
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ Paris ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇
▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2. Independent Manager - At least two members of the Board of Managers
shall be an Independent Managers. Any vote needing the unanimous consent of the
Managers shall not be taken unless at least two Independent Managers exist. No
resignation or removal of an Independent Manger, and no appointment of a
successor Independent Manager, shall be effective until such successor (i) shall
have accepted his or her appointment as an Independent Manager by a written
instrument and (ii) shall have executed a counterpart to this Agreement. In the
event of a vacancy in the position of Independent Manager, the Member shall, as
soon as practical, appoint a successor Independent Manager. All right, power and
authority of the Independent Managers 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 Section 7 of this Article VII, in exercising
their rights and performing their duties under this Agreement, any Independent
Manager shall have a fiduciary duty of loyalty and care similar to that of a
director of a business corporation under the Nevada Private Corporation Law. No
Independent Manager shall at any time serve as trustee in bankruptcy for any
Affiliate of the Company.
3. Term of Office as Managers - No Manager shall have any contractual
right to such position. Each Manager shall be elected annually.
4. Authority of Members to Bind the Company (General Powers) - The
Members hereby agree that only the Managers (acting, except as otherwise
provided herein, by majority vote) and authorized agents of the Company shall
have the authority to bind the Company. The Managers have the power, on behalf
of the Company, to do all things necessary or convenient to carry out the
business of the Company.
5. Actions of the Managers - Subject to the delegation of rights and
powers provided for herein, the Managers shall have the sole right to manage the
business of the Company and shall have all powers and rights necessary,
appropriate or advisable to effectuate and carry out the purposes and business
of the Company. No Member, by reason of its status as such, shall have any
authority to act for or bind the Company but shall have only the right to vote
on and approve the actions herein specified to be voted on or approved by the
Members.
6. Compensation of Managers - The Members hereby agree that they shall
pay all fees and expenses incurred by the Independent Managers in the discharge
of its duties under this Operating Agreement. The Managers shall be reimbursed
all reasonable expenses incurred in managing the Company. Except as otherwise
set forth herein under Section 3 of Article VI hereof, the Managers shall
receive no compensation.
7. Managers' Standard of Care and Indemnification - The Managers' duty
of care in the charge of the Managers' duties to the Company and the Members
shall be the same as a general partner's duty of care in the discharging of its
duties under applicable law. In addition, to the extent consistent with
applicable law, Managers shall take into account the interest of the Company's
creditors, as well as those of its Members
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8. Removal of Managers - The Managers may be removed by the affirmative
vote of a Majority-In-Interest of the Members. A Majority-In-Interest of the
Members may elect new Managers, subject to Section 2 of this Article VII;
provided, however, that there shall be no change of Managers without the prior
confirmation from the rating agencies then rating the Asset-Backed Securities,
if any, that such change will not result in either a downgrade or a withdrawal
of any of the then current ratings of the outstanding Asset-Backed Securities,
if any; and provided, further, however, that after any change of Managers
pursuant to this section, at least two members of the Board of Managers shall be
an Independent Manager.
ARTICLE VIII
CONTRIBUTIONS AND CAPITAL ACCOUNTS
1. Capital Contributions - Each Initial Member shall make the Capital
Contribution described for that Member on Exhibit A at the time and on the terms
specified on Exhibit A. If no time for contribution is specified, the Capital
Contributions shall be made upon the filing of the Articles of Organization. The
value of the Capital Contributions shall be as set forth on Exhibit A. No
interest shall accrue on any Capital Contribution and no Member shall have the
right to withdraw or be repaid any Capital Contribution except as provided in
this Operating Agreement. Each Additional Member shall make the Initial Capital
Contribution described in the Admission Agreement. The value of the Additional
Member's Initial Capital Contribution and the time for making such contribution
shall be set forth in the Admission Agreement.
2. Additional Contributions - In addition to the Initial Capital
Contributions, the Managers may determine from time to time that additional
contributions are needed to enable the Company to conduct its business. Upon
making such a determination, the Managers shall give Notice to all Members in
writing at least two Business Days prior to the date on which such contribution
is due. Such Notice shall set forth the amount of additional contribution
needed, the purpose for which the contribution is needed, and the date by which
the Members should contribute. Each Member shall be entitled to contribute a
proportionate share of such additional contribution. No Member shall be
obligated to make any such additional contributions. In the event any one or
more Members do not make their additional contribution, the other members shall
be given the opportunity to make the contributions. Each Additional Member shall
make the Capital Contribution to which such Member has agreed, at the time or
times, and upon the terms to which the Managers and the Additional Member agree.
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ARTICLE IX
TAXES
1. Elections - The Managers may make any tax elections for the Company
allowed under the Code or the tax laws of any state or other jurisdiction having
taxing jurisdiction over the Company.
2. Taxes of Taxing Jurisdictions - To the extent that the laws of any
Taxing Jurisdiction requires, each Member requested to do so by the Managers
will submit an agreement indicating that the Member will make timely income tax
payments to the Taxing Jurisdiction and that the Member accepts personal
jurisdiction of the Taxing Jurisdiction with regard to the collection of income
taxes attributable to the Member's income, and interest, and penalties assessed
on such income. If the Member fails to provide such agreement, the Company may
withhold and pay over to such Taxing Jurisdiction the amount of the penalty and
interest determined under the laws of the Taxing Jurisdiction with respect to
such income. Any such payments with respect to the income of a Member shall be
treated as a distribution to the Member. The Managers may, where permitted by
the rules of any Taxing Jurisdiction, file a composite, combined or aggregate
tax return reflecting the income of the Company and pay the tax, interest and
penalties of some or all of the Members on such income to the Taxing
Jurisdiction, in which case the Company shall inform the Members of the amount
of such tax, interest and penalties so paid.
3. Method of Accounting - The records of the Company shall be
maintained in accordance with the method of accounting selected by the Managers.
ARTICLE X
DISPOSITION OF MEMBERSHIP INTERESTS
1. Disposition - Any Member or Assignee may dispose of all or a portion
of the Member's or Assignee's Membership Interest upon compliance with this
Section 1. No Membership Interest shall be Disposed of:
(a) if such disposition, alone or when combined with other
transactions, would result in a termination of the Company within the
meaning of Section 708 of the Code;
(b) without an opinion of counsel satisfactory to the Managers
that such assignment is subject to an effective registration under, or
exempt from the registration requirements of, the applicable state and
federal securities laws;
(c) unless and until the Company receives from the Assignee
the information and agreements that the Managers may reasonably
require, including but not limited to any taxpayer identification
number and any agreement that may be required by any Taxing
Jurisdiction; and
(d) unless the Rating Agency Condition is satisfied.
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2. Dispositions Not in Compliance with this Article Void - Any
attempted Disposition of a Membership Interest, or any part thereof, not in
compliance with this Article is null and void ab initio.
ARTICLE XI
ADMISSION OF ASSIGNEES AND ADDITIONAL MEMBERS
1. Rights of Assignees - The Assignee of a Membership Interest has no
Management Rights or right to participate in the management of the business and
affairs of the Company or to become a Member. The Assignee is only entitled to
receive the Distributions and return of capital, and to be allocated the Net
Profits and Net Losses attributable to the Membership Interest.
2. Admission of Substitute Members - An Assignee of a Membership
Interest shall be admitted as a Substitute Member and succeed to all the rights
of the Member who initially assigned the Membership Interest only with the
approval of all Members and upon execution of an Admission Agreement. The
Members may grant or withhold the approval of such admission for any Assignee or
Substitute Member in their sole and absolute discretion. If so admitted, the
Substitute Member has all the rights and powers and is subject to all the
restrictions and liabilities of the Member originally assigning the Membership
Interest (including Management Rights). The admission of a Substitute Member,
without more, shall not release the Member originally assigning the Membership
Interest from any liability to Company that may existed prior to the approval.
Before any Substitute Member is admitted, the Rating Agency Condition must be
satisfied.
3. Admission of Additional Members - The Managers may permit the
admission of Additional Members and determine the Capital Contributions of such
Members; provided, however, that (i) there may never be more than ninety-nine
(99) Members at any one time and (ii) prior to the admission of the Additional
Member the Rating Agency Condition is satisfied. Notwithstanding the foregoing,
no Benefit Plan Investor may be admitted as an Additional Member.
4. Forbidden Transfers and Assignments - A Membership Interest may not
be transferred or assigned to a or a Benefit Plan Investor.
ARTICLE XII
DISSOLUTION AND WINDING UP
1. Dissolution - The Company shall be dissolved and its affairs wound
up, upon (i) the unanimous written agreement of the Members; or (ii) the written
consent of the Sole Member, which agreement or consent, the Member(s) agree by
execution of this Operating Agreement shall require (among other matters
mutually agreed upon by the Members) and only become effective upon the
satisfaction of the following conditions: (a) the Managers, by unanimous written
consent of the Board of Managers (including the Independent Managers) shall
consent to and approve the dissolution of the Company pursuant to the terms set
forth in the
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unanimous written consent of the Members; and (b) so long as any of the Related
Agreements are outstanding at the time of dissolution, the related controlling
party (as set forth in each such Related Agreement) shall consent in writing to
and approve the dissolution of the Company pursuant to the terms set forth in
the unanimous written consent of the Members.
2. Effect of Dissolution - Upon dissolution, the Company shall cease
carrying on business as distinguished from the winding up of the Company
business, but the Company shall not be terminated, and shall continue until the
winding up of the affairs of the Company is completed and the certificate of
dissolution has been issued by the Secretary of State.
3. Distribution of Assets on Dissolution - Upon the winding up of the
Company, the Company Property shall be distributed:
(a) to creditors, including Members who are creditors, to the
extent permitted by law, in satisfaction of Company Liabilities;
(b) to Members in accordance with positive Capital Account
balances taking into account all Capital Account adjustments for the
year in which the liquidation occurs. Liquidation proceeds shall be
paid within 60 days of the end of the Company's taxable year or, if
later, within 90 days after the date of liquidation. Such distributions
shall be in cash or Property (which need not be distributed
proportionately) or partly in both, as determined by the Managers; and
(c) notwithstanding the foregoing, the Company Property may
not be liquidated without the consent of 100% of the holders of the
Asset-Backed Securities then outstanding.
4. Winding Up and Certificate of Dissolution - The winding up of the
Company shall be completed when all debts, liabilities, and obligations of the
Company have been paid and discharged or reasonably adequate provision therefor
has been made, and all of the remaining property and assets of the Company have
been distributed to the Members. Upon the completion of winding up of the
Company, a certificate of dissolution shall be delivered to the Secretary of
State of the State for filing. The certificate of dissolution shall set forth
the information required by the Act.
5. Resignation of Member. Each Member shall be prohibited from
resigning, withdrawing or dissociating as a Member of the Company.
Notwithstanding the foregoing, the resignation, withdrawal, dissociation or
bankruptcy of a Member or Members shall not cause such Member or Members to
cease to be a Member or Members of the Company and upon the occurrence of such
an event, the business of the Company shall continue without dissolution. Upon
the dissolution, resignation, withdrawal or dissociation of the last remaining
Member, the Managers may admit as an Additional Member any other person or
entity, as provided in Article XII, and take such other action as may be
necessary or desirable to continue the business of the Company.
6. Continuation of Company. Notwithstanding any other provision of this
Operating Agreement, the occurrence of an Insolvency Event with respect to the
Sole Member shall not cause the Sole Member to cease to be a member of the
Company and upon the occurrence of
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such an event, the business of the Company shall continue without dissolution.
Notwithstanding any other provision of the Operating Agreement, the Sole Member
waives any right that it might have under Section 86-491(3) of the Act to agree
in writing to dissolve the Company. In the event of the dissolution of the Sole
Member or the occurrence of any other event that causes the Sole Member to cease
to be a member of the Company, to the fullest extent permitted by law, the
[personal representative] of the Sole Member shall, immediately upon the
occurrence of such event, agree in writing to continue the Company and to the
admission of such [personal representative] or its nominee or designee as a
member of the Company effective as of the dissolution of the Sole Member or such
other event and the Company shall continue without dissolution.
7. Special Members. Upon the occurrence of any event that causes the
Sole 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 Article XII or (ii) the
resignation of the Member and the admission of an Additional Member of the
Company pursuant to Article XII), each person acting as an Independent Manager
pursuant to Article VII shall by virtue of such person's signature on this
agreement, 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 (a "Special Member") and the Company shall continue 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 Manager
pursuant to Article VII; provided, however, that 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. Notwithstanding
the provisions 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, but shall have the right to vote on and approve
the actions herein specified to be voted on or approved by the Members. A
Special Member, in its capacity as a Member, shall have no authority to act for
or bind the Company. In order to implement the admission to the Company of each
Special Member, each person acting as an Independent Manager pursuant to Article
VII shall execute a counterpart to this Agreement. Prior to its admission to the
Company as Special Member, each person acting as an Independent Manager pursuant
to Article VII shall not be a member of the Company.
ARTICLE XIII
AMENDMENT
1. Operating Agreement may be Modified - This Operating Agreement may
be modified as permitted in this Article XIII (as the same may from time to time
be amended). No Member or Manager shall have any vested rights in this Operating
Agreement which may not be modified through an amendment to this Operating
Agreement.
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2. Restriction on Modification of Purposes - Nothing in the Articles of
Organization nor in this Agreement shall be deemed to allow Advanta Bank Corp.
to amend the Articles of Organization or this Agreement is such a way as to
change the purposes and powers of the Company as set forth in Article IV of the
Articles of Organization and in Article III Section 1 of this Agreement.
3. Amendment or Modification of Operating Agreement - This Operating
Agreement may be amended or modified from time to time only by a written
instrument adopted by the unanimous written consent of its Board of Managers and
executed by the unanimous consent of the Members; provided, however, that for so
long as any Asset-Backed Securities are outstanding, any amendment or
modification to Article III, Article VII(1) and (2), Article XI, Article XII or
this Article XIII shall require that the Rating Agency Condition be satisfied.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
1. Entire Agreement - This Operating Agreement represents the entire
agreement among all the Members and between the Members and the Company.
2. No Partnership Intended for Non-tax Purposes - The Members have
formed the Company under the Act, and expressly do not intend hereby to form a
partnership under either the Nevada Uniform Partnership Act nor the Nevada
Uniform Limited Partnership Act. The Members do not intend to be partners one to
another, or partners as to any third party. To the extent any Member, by word or
action, represents to another person that any other Member is a partner or that
the Company is a partnership, the Member making such wrongful representation
shall be liable to any other Member who incurs personal liability by reason of
such wrongful representation.
3. Rights of Creditors and Third Parties Under Operating Agreement -
Except and only to the extent provided herein or by applicable statute, no
creditor of the Company or any other third party shall have any rights under
this Operating Agreement or any agreement between the Company and any Member
with respect to any Capital Contribution or otherwise.
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IN WITNESS WHEREOF, the undersigned have hereunto executed this Operating
Agreement as of the Effective Date.
ADVANTA BANK CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
Agreed and Acknowledged:
Independent Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
Independent Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Special Member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
Special Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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EXHIBIT A
INITIAL MEMBERS
MEMBER MEMBERSHIP INTEREST INITIAL CAPITAL CONTRIBUTION
------ ------------------- ----------------------------
Advanta Bank Corp. 100% $100
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