EXHIBIT 3.14
THE MEMBERSHIP INTERESTS REPRESENTED HEREBY (OR BY CERTIFICATES IF ANY ARE
ISSUED) HAVE BEEN ACQUIRED FOR INVESTMENT AND WERE ISSUED WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE. THESE INTERESTS MAY NOT BE SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED AT ANY TIME EXCEPT IN ACCORDANCE WITH THE
RESTRICTIONS CONTAINED IN THIS AGREEMENT AND PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAW OR IN THE EVENT THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO IT THAT SUCH TRANSFER DOES NOT REQUIRE
REGISTRATION UNDER ANY APPLICABLE LAWS.
OPERATING AGREEMENT
OF
GET IT NOW, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
This OPERATING AGREEMENT of GET IT NOW, LLC, (hereinafter, "Agreement")
dated effective as of September 13, 2002, is adopted by Rent-A-Center, Inc., a
Delaware corporation ("Rent-A-Center"), as the sole Member.
ARTICLE I
DEFINITIONS
The following terms, when used in this Agreement, shall have the
respective meanings assigned to them in this Article unless the context
otherwise requires:
Act means the Delaware Limited Liability Company Act, as amended (or
the corresponding provisions of any successor act).
Additional Capital Contribution shall have the meaning set forth in
Section 5.2.
Affiliate means any Person that, directly or indirectly, through one or
more intermediaries, controls, or is controlled by, or is under common control
with, another Person. The term "control," as used in the immediately preceding
sentence, means the possession, directly or indirectly, of the power, directly
or indirectly, to direct or cause the direction of the management or policies of
the controlled Person through the ownership of at least ten percent (10%) of the
voting rights attributable to the equity interests in such Person.
Article means any article in this Agreement.
Board means the Board of Managers of the Company.
Capital Contribution means any contribution by the Member to the
capital of the Company and includes Initial Capital Contributions and Additional
Capital Contributions.
Certificate means the Certificate of Formation of the Company filed
with the Secretary of State of Delaware.
Code means the Internal Revenue Code of 1986, as amended (or any
corresponding provisions of any successor statute).
Company means Get It Now, LLC, the limited liability company created
pursuant to Certificate and governed by this Agreement.
DGCL means the Delaware General Corporation Law and any successor
statute, as amended from time to time.
Initial Capital Contribution shall have the meaning set forth in
Section 5.1.
IRS Regulations means the U.S. Treasury Regulations promulgated under
the Code, as may be amended from time to time (including corresponding
provisions of successor IRS Regulations).
Manager means any Person named in the Certificate as the initial
manager(s) of the Company and any Person hereafter elected as a manager serving
on the Board as provided in this Agreement, but does not include any Person who
has ceased to be a manager of the Company.
Member means Rent-A-Center so long as it shall continue as a member
hereunder.
Membership Interest means a Member's interest, expressed as a
percentage in Section 4.1, in the voting rights and distributions of the Company
as may be affected by the provisions of this Agreement and as may hereafter be
adjusted.
Person shall have the meaning given that term in Section 18-101(12) of
the Act.
Proceeding shall have the meaning set forth in Section 10.1.
Related Party of a party means (i) any Person (and any of such Person's
related parties) that is an Affiliate of such party or that otherwise directly
or indirectly owns, is owned by, or is under common ownership with such party,
(ii) an officer, director or employee of such party or (iii) a family member of
such party.
Section means any section or subsection in this Agreement.
Securities Act shall have the meaning set forth in the legend on the
first page of this Agreement.
Transfer means the sale, transfer, gift, conveyance, assignment,
pledge, hypothecation, mortgage or other encumbrance or disposition of all or
any part of a Membership Interest.
UCC means the Uniform Commercial Code as in effect in the State of
Delaware.
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ARTICLE II
ORGANIZATION
2.1 Formation.
(a) The Company has been organized as a Delaware limited
liability company by the filing of the Certificate under and pursuant
to the Act and the issuance of a certificate of limited liability
company for the Company by the Secretary of State of Delaware.
(b) The rights and liabilities of the Member shall be as
provided in the Act, except as may be expressly provided otherwise
herein. Prior to transacting business in any jurisdiction other than
the State of Delaware, the Company shall qualify to do business in such
other jurisdiction if such a procedure is provided by statute or
regulation in such other jurisdiction.
(c) The Member's Membership Interest in the Company shall
be personal property for all purposes. Other than for federal income
tax purposes and applicable provisions of state tax laws, all real and
other property owned by the Company shall be deemed owned by the
Company as an entity and the Member, individually, shall not have any
ownership of such property.
2.2 Name. The name of the Company is "Get It Now, LLC" and all
Company business must be conducted in that name or such other names that comply
with applicable law as the Board may select from time to time.
2.3 Offices. The registered office of the Company in the State of
Delaware shall be the office of the initial registered agent named in the
Certificate or such other office (which need not be a place of business of the
Company) as the Board may designate from time to time in the manner provided by
law. The registered agent of the Company in the State of Delaware shall be the
initial registered agent named in the Certificate or such other Person or
Persons as the Board may designate from time to time in the manner provided by
law. The principal office of the Company shall be at 0000 Xxxxxxxx Xxxxxxx,
Xxxxx Xxxxx, Xxxxx, Xxxxx 00000 or such other place as the Board shall designate
from time to time, and the Company shall maintain records there as required by
the Act. The Company may have such other offices as the Board may designate from
time to time.
2.4 Term. The Company shall commence on the date the Secretary of
State of the State of Delaware issued a certificate of limited liability company
and shall continue in existence for the period fixed in the Certificate.
2.5 Mergers and Exchanges. The Company may be a party to (a) a
merger, (b) an exchange or acquisition of the type described in Section 18-209
of the Act, or (c) a conversion of the type described in Section 18-214 of the
Act.
2.6 No Partnership. The Member intends that the Company not be
treated as or construed to be a partnership (including a limited partnership) or
joint venture for purposes of the
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laws of any state, and that, in the event that the Company is or becomes owned
by more than one Member, no Member thereafter will be treated as a partner or
joint venturer of any other Member, for any purposes from and after such date,
other than for purposes of applicable United States tax laws and applicable
provisions of state tax laws, and this Agreement may not be construed to suggest
otherwise. For federal income tax purposes and applicable provisions of state
tax laws, as of the date hereof and until such time as the Company becomes owned
by more than one Member, the Company and the Member desire and intend that the
Company be disregarded as an entity separate from the Member.
ARTICLE III
PURPOSES AND POWERS
3.1 Purpose of the Company. The purpose for which the Company is
organized is to engage in any lawful business activities permitted to limited
liability companies by the Act.
3.2 Powers of the Company. The Company purposes set forth in
Section 3.1 hereof may be accomplished by taking any action which is permitted
under the Act and which is customary or directly related to the business of the
Company and the Company shall possess and may exercise all the powers and
privileges necessary or convenient to the conduct, promotion or attainment of
the business, purposes or activities of the Company.
ARTICLE IV
MEMBERSHIP
4.1 Member. The initial and sole Member of the Company is
Rent-A-Center, whose Membership Interest is 100%.
4.2 Liability to Third Parties. Except as may be expressly
provided in a separate, written guaranty or other agreement executed by the
Member or the Board, neither the Member nor any Manager of the Board shall be
liable for the debts, obligations or liabilities of the Company, including under
a judgment, decree or order of a court.
4.3 Lack of Authority. Except as otherwise provided herein, the
Member shall not have the authority or power to act for or on behalf of or bind
the Company or to incur any expenditures on behalf of the Company.
4.4 Action by Written Consent.
(a) Any action required or permitted to be taken at any
annual or special meeting of the Member may be taken without a meeting,
without prior notice, and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the Member and
delivered to the Board. A telegram, telex, cablegram or similar
transmission by the Member, or a photographic, photostatic, facsimile
or similar reproduction of a writing signed by the Member, shall be
regarded as signed by the Member for purposes of this Section 4.4.
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(b) If any action by the Member is taken by written
consent, any certificate or documents filed with the Secretary of State
of Delaware as a result of the taking of the action shall state, in
lieu of any statement required by the Act or the DGCL concerning any
vote of the sole Member, that written consent has been given in
accordance with the provisions of the Act and the DGCL and that any
written notice required by the Act and the DGCL has been given.
ARTICLE V
CONTRIBUTIONS
5.1 Initial Contributions. The Member shall contribute to the
Company those certain assets used in the conduct of business by the Member's
various stores located within the State of Wisconsin identified in and pursuant
to that certain Bill of Sale, Assignment and Assumption Agreement, in
substantially the same form as attached hereto as Exhibit "A".
5.2 Additional Capital Contributions. From time to time the Member
may agree to contribute additional cash and/or property to the Company to fund
the continued operations or activities of the Company. All additional
contributions of cash and/or property contemplated by this Section 5.2 are
hereinafter collectively referred to as "Additional Capital Contributions".
5.3 Loans by a Member.
(a) If any additional funds are required for additional
working capital to operate the Company, then, in lieu of borrowing
funds from unaffiliated lenders or the Member otherwise making
Additional Capital Contributions, the Board may cause the Company to
borrow from the Member such amounts as may reasonably be required and
as are necessary to operate the Company as shall be determined by the
Board. Nothing herein shall obligate the Member to make any such loans
to the Company.
(b) Any loans made to the Company by the Member shall be
upon such terms and for such maturities as the Board and the Member
deem reasonable in view of all the facts and circumstances. Any loans
made to the Company by the Member shall be a debt of the Company. The
Company shall be required to execute such documents as may be deemed
reasonably necessary, desirable or required by the Member as a
condition to such financing. All loans, including both principal and
interest, so made by the Member to the Company, shall be repaid out of
the Company's funds as the same become available.
5.4 Interest. No interest shall be paid by the Company on any
Capital Contributions or Additional Capital Contributions by the Member.
5.5 Return of Capital. The Member shall not be entitled to have
any Capital Contribution or Additional Capital Contribution returned to it or to
receive any distributions from the Company except in accordance with the express
provisions of this Agreement. No unrepaid Capital Contribution or Additional
Capital Contribution shall be deemed or considered to be a liability of the
Company, any Manager or the Member.
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5.6 Creditors of the Company. No creditor of the Company will have
or shall acquire at any time any direct or indirect interest in the profits,
capital or property of the Company other than as a secured creditor as a result
of making a loan to the Company.
ARTICLE VI
TAX MATTERS
6.1 Tax Matters. For United States federal income tax and all
applicable state and local income tax purposes, as of the date hereof and until
the Company is owned by more than one Member, Rent-A-Center shall take into
account all income, gains, losses, deductions and credits of the Company
directly on its federal, state and local income tax returns as if the Company
were Rent-A-Center. The Member shall compile or cause to be compiled the
Company's financial results and information and reflect such results and
information directly on its federal, state and local income tax returns. In
addition, the Company shall separately prepare such other federal, state and
local tax returns and reports as it may desire or as may otherwise be required
to cause the Company to comply with applicable laws and regulations.
ARTICLE VII
DISTRIBUTIONS
7.1 Distributions. From time to time the Board shall determine in
their reasonable judgment to what extent (if any) the Company's cash on hand
exceeds its current and anticipated needs, including, without limitation, for
capital expenditures, operating expenses, debt service, and a reasonable
contingency reserve. If such an excess exists, the Board may cause the Company
to distribute to the Member an amount equal to or less than such excess.
7.2 Accounting Matters.
(a) The fiscal year of the Company shall be the calendar
year, with the first fiscal year of the Company ending on December 31,
2002. The books and records of account of the Company shall be, at the
expense of the Company, (i) kept, or caused to be kept, by the Company
at the principal place of business of the Company, (ii) reflect all
Company transactions, and (iii) appropriate and adequate for conducting
the Company business.
(b) Company books and records (including all files and
documents), as well as any tangible assets of the Company, will be
available for inspection by the Member or the Member's duly authorized
representative (at the expense of the Member) during business hours at
(in the case of books and records) the principal office of the Company
or (in the case of tangible assets) the place where such assets are
physically located. The Member may request an audit of the Company's
books and records.
(c) The Board has an obligation to protect the
confidentiality of all Company books and records and agrees to treat
all such financial statements, tax returns and other books and records
as confidential and not to disclose such information except (i) to the
extent related to the conduct of the business of the Company, (ii) to
the Member and
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Managers and their respective directors, officers and employees, to
officers, employees, representatives and agents of the Company to whom
such information is furnished in the normal course of business and such
outside parties as are legally entitled to such information, and (iii)
approved banking, lending, collection and data processing institutions
or agencies of the Company in the course of maintaining ordinary
business procedures or pursuant to a valid subpoena or court order or
applicable governmental regulations, rules or statutes; provided that
this provision shall not apply to such information that is or becomes
generally available to the public (other than as a result of a breach
by the Member or a Manager of his, her or its obligations hereunder) or
to the extent related to efforts by the Member or the Board to enforce
their rights under this Agreement or any document or instrument entered
into in connection herewith.
(d) No Person other than the Member (or its duly
authorized representative) and the Company's independent accountants
and bank (or prospective bank) and its duly authorized representatives,
if any, shall have any right to inspect the books and records of the
Company for any purpose whatsoever. Each Person who inspects the books
and records of the Company shall maintain the confidentiality of the
information received pursuant to or in connection with such inspection;
provided that this provision shall not apply to such information that
is or becomes generally available to the public or is required to be
disclosed pursuant to a valid subpoena or court order or applicable
governmental regulations, rules or statutes.
7.3 Maintenance of Books. The Company shall keep minutes of the
proceedings of the Board and each committee (if any) of the Board.
7.4 Accounts. The Board shall establish and maintain one or more
separate bank and investment accounts and arrangements for the Company's funds
in the Company's name with financial institutions and firms that the Board
determines. The Board may not commingle the Company's funds with the funds of
the Member or any Manager.
ARTICLE VIII
BOARD AND OFFICERS
8.1 Management by the Board. Except for situations in which the
approval of the Member is required by non-waivable provisions of applicable law,
and subject to the provisions of Section 8.2, (i) the powers of the Company
shall be exercised by or under the authority of, and the business and affairs of
the Company shall be managed under the direction of, the Board, and (ii) the
Board may make all decisions and take all actions for the Company not otherwise
provided for in this Agreement, including, without limitation, the following:
(i) acquire, hold, sell, exchange, lease or
otherwise dispose of all property of the Company, real,
personal and mixed, in the Company's name, or in the name of a
nominee or trustee for the Company;
(ii) contract on behalf of the Company and
execute and deliver on behalf of and in the name of the
Company or in the name of a nominee or trustee
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for the Company, contracts, agreements, leases, mortgages,
bills of sale, guaranties, indemnities, assignments, security
agreements, certificates and assumed name certificates, and
any and all other documents or instruments necessary,
advisable or incidental to the conduct of the Company's
business or the performance of the Board's duties or the
exercise of the powers of the Board hereunder;
(iii) perform, manage and contract for all
accounting, clerical and ministerial functions of the Company,
employ or engage such accountants, attorneys, brokers, agents
and other management or service personnel and employees of or
for the Company and generally incur such costs and expenses as
may from time to time be required to carry on the business of
the Company;
(iv) collect and disburse all monies of the
Company and establish, maintain and supervise the deposit and
withdrawal of funds of the Company and bank accounts of the
Company;
(v) to the extent that funds of the Company are
available therefor, pay debts and obligations of the Company;
(vi) procure and maintain such insurance as may
be available in such amounts and covering such risks as are
deemed appropriate by the Board;
(vii) borrow money and refinance, extend or
rearrange any Company loans, and pledge, mortgage,
hypothecate, encumber and grant security interests in Company
property and assets to secure the payment of Company
borrowings;
(viii) reinvest Company revenues for any valid
purpose of the Company;
(ix) compromise claims and institute or defend
law suits;
(x) exercise all powers of the Company and make
all decisions with respect to its business and the conduct of
its business, subject to the Act and this Agreement; and
(xi) take any and all other action that may be
necessary, appropriate or advisable in furtherance of the
purposes of the Company;
provided, however, that nothing contained in this Agreement shall
obligate the Board to take any action on behalf of the Company that the
Board deems (i) not in the best interests of the Company, or (ii) not
reasonably necessary to accomplish the intended business of the
Company.
8.2 Actions by the Board; Committees; Delegation of Authority and
Duties.
(a) In managing the business and affairs of the Company
and exercising its powers, the Board shall act (i) collectively through
meetings and written consents pursuant to Sections 8.5 and 8.7; (ii)
through committees pursuant to Subsection 8.2(b);
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and (iii) through any Manager to whom authority and duties have been
delegated pursuant to Subsection 8.2(c).
(b) The Board may, from time to time, designate one or
more committees, each of which shall be comprised of one or more
Managers. Any such committee, to the extent provided in such resolution
or in the Certificate or this Agreement, shall have and may exercise
all of the authority of the Board, subject to the limitations set forth
in the Act and the DGCL. At every meeting of any such committee, the
presence of a majority of all the committee members shall constitute a
quorum, and the affirmative vote of a majority of the committee members
present shall be necessary for the adoption of any resolution. The
Board may dissolve any committee at any time unless otherwise provided
in the Certificate or this Agreement.
(c) Any Person dealing with the Company, other than the
Member, may rely on the authority of any Manager or officer of the
Company in taking any action in the name of the Company without inquiry
into the provisions of this Agreement or compliance herewith,
regardless of whether that action actually is taken in accordance with
the provisions of this Agreement.
8.3 Number and Term of Office of Managers.
(a) The number of Managers of the Board shall be
determined from time to time by the Member; provided, however, that in
no event shall there be more than five (5) or less than two (2)
Managers. If the Member makes no such determination, the number of
Managers shall correspond to the number of Managers named in Subsection
8.3(b). Each Manager shall initially hold office until his or her
successor has been elected and qualifies, or until his or her earlier
death, resignation or removal in accordance with the Act and this
Agreement. Unless otherwise provided in the Certificate, a Manager need
not be a Member or resident of the State of Delaware.
(b) The initial Managers of the Company shall be Xxxx X.
Xxxxxx and Xxxxxxxx X. Xxxxx.
8.4 Removal; Vacancies; Resignation of Managers. Any Manager may
be removed, with or without cause, by the Member. Any vacancy occurring in the
Board may be filled by the Member. Any Manager may resign at any time. Such
resignation shall be made in writing and shall take effect at the time specified
therein, or if no time be specified, at the time of its receipt by the Board and
the Member. The acceptance of a resignation shall not be necessary to make it
effective, unless expressly so provided in the resignation.
8.5 Meetings of the Board.
(a) Unless otherwise required by law or provided in the
Certificate or this Agreement, a majority of the Managers of the Board
fixed by, or in the manner provided in, the Certificate or this
Agreement shall constitute a quorum for the transaction of business of
the Board, and the act of a majority or more of the Managers of the
Board fixed by, or in the manner provided in, this Agreement shall be
the act of the Managers
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(unless this Agreement, the Certificate, the Act or other applicable
law requires the approval of a greater number of the Managers of the
Board for such action).
(b) Meetings of the Board shall be held at the Company's
principal place of business or at such other place or places as shall
be determined from time to time by resolution of the Board. At all
meetings of the Board, business shall be transacted in such order as
shall from time to time be determined by the chairman or, if none, by
resolution of the Board. Attendance of a Manager at a meeting shall
constitute a waiver of notice of such meeting, except where a Manager
attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not
lawfully called or convened.
(c) Regular meetings of the Board shall be held at such
times and places as shall be designated from time to time by resolution
of the Board. Notice of such regular meetings shall not be required.
(d) Special meetings of the Board may be called by any
Manager on at least two business days' notice to each other Manager,
together with a reasonably detailed statement of the purpose or
purposes of, and the business to be transacted at, such meeting.
8.6 Approval or Ratification of Acts or Contracts by the Member.
The Board in its discretion may submit any act or contract for approval or
ratification by the Member, and any act or contract that shall be approved or be
ratified by the Member shall be as valid and as binding upon the Company and
upon the Member as if it shall have been approved in the first instance.
8.7 Action by Written Consent or Telephone Conference. Any action
permitted or required by the Act, the DGCL, the Certificate or this Agreement to
be taken at a meeting of the Board or any committee designated by the Board may
be taken without a meeting if a consent in writing, setting forth the action to
be taken, is signed by the Managers or committee members, as the case may be,
having not fewer than the minimum votes that would be necessary to take the
action at a meeting at which all Managers or committee members, as the case may
be, entitled to vote on the action were present and voted. Such consent shall
have the same force and effect as a unanimous vote at a meeting and may be
stated as such in any document or instrument filed with the Secretary of State
of Delaware, and the execution of such consent shall constitute attendance or
presence in person at a meeting of the Board or any such committee, as the case
may be. Subject to the requirements of the Act, the DGCL, the Certificate or
this Agreement for notice of meetings, unless otherwise restricted by the
Certificate, the Board, or members of any committee designated by the Board, may
participate in and hold a meeting of the Board or any committee of the Board, as
the case may be, by means of a conference telephone or similar communications
equipment by means of which all Persons participating in the meeting can hear
each other, and participation in such meeting shall constitute attendance and
presence in person at such meeting, except where a Person participates in the
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
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8.8 Compensation. Managers of the Board as such shall not receive
any stated salary for their service in the capacity of Managers, but by
resolution of the Board, a fixed sum and reimbursement for reasonable expenses
of attendance, if any, may be allowed for attendance at each regular or special
meeting of the Board or at any meeting of the executive committee of Board, if
any, to which such Manager may be elected; but nothing herein shall preclude any
Manager from serving the Company in any other capacity or receiving compensation
therefor.
8.9 Officers.
(a) The Board may, from time to time, designate and
remove one or more persons as officers of the Company and assign titles
to particular officers. An officer may be, but no officer need be, a
resident of the State of Delaware, a Member or a Manager. Any officers
so designated shall have such authority and perform such duties as
provided in this Agreement or as the Board may, from time to time,
delegate to them. Unless otherwise provided in this Agreement or unless
the Board decides otherwise, if an officer's title is one commonly used
for officers of a business corporation formed under the DGCL, the
assignment of such title to an officer of the Company shall constitute
the delegation to such person of the authority and duties provided in
this Agreement and the authority and duties that would be held by a
person with such title in a business corporation formed under the DGCL.
(b) The initial officers of the Company may consist of a
President, one or more Vice Presidents, a Secretary and Treasurer and,
in addition, such other officers and assistant officers and agents as
may be deemed necessary or desirable. Officers shall be elected or
appointed by the Board in accordance with this Agreement, including,
but not limited to the provisions set forth below.
(c) Any two or more offices may be held by the same
person. In their discretion, the Board may leave any office unfilled. A
vacancy in any office for any reason may be filled by the Board. Each
officer shall hold office until his or her successor has been chosen
and qualifies, or until his or her death, resignation, or removal.
(d) Any officer may resign as such at any time. Such
resignation shall be made in writing and shall take effect at the time
specified therein, or if no time be specified, at the time of its
receipt by the Board. The acceptance of a resignation shall not be
necessary to make it effective, unless expressly so provided in the
resignation. Any officer may be removed as such, either with or without
cause, by the Board whenever in their judgment the best interests of
the Company will be served thereby; provided, however, that such
removal shall be without prejudice to the contract rights, if any, of
the person so removed. Designation of an officer shall not of itself
create contract rights.
(e) The following officers of the Company shall have such
powers and duties, except as modified by the Board, as generally
pertain to their offices, respectively, as well as such powers and
duties as from time to time shall be conferred by the Board and by this
Agreement:
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(i) The President. The President of the Company
shall be the Company's chief executive officer and, subject to
the control of the Board, shall have the responsibility for
the general direction of the affairs of the Company, and
general supervision over its several other officers. The
President may sign and execute in the name of the Company (i)
all contracts or other instruments authorized by the Board,
and (ii) all contracts or instruments in the usual and regular
course of business, except in cases when the signing and
execution thereof shall be expressly delegated or permitted by
the Board or by this Agreement to some other officer or agent
of the Company, and, in general, shall perform all duties
incident to the office of chief executive officer and such
other duties as from time to time may be assigned to him by
the Board or as are prescribed by this Agreement.
(ii) The Vice Presidents. At the request of the
President, or in his or her absence or disability, the Vice
Presidents, 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 restrictions upon, the
President. Any action taken by a Vice President in the
performance of the duties of the President shall be conclusive
evidence of the request by the President to so act. The Vice
Presidents shall perform such other duties as may, from time
to time, be assigned to them by the Board or the President. A
Vice President may sign, with the Secretary or an Assistant
Secretary, any or all certificates representing Membership
Interests, as such certificates are described in Article IX. A
Vice President may be designated as the "Chief Financial
Officer" of the Company. In such capacity, such Vice President
will be responsible for all financial matters of the Company.
(iii) Secretary. The Secretary shall keep the
minutes of all meetings of the Member, the Board and of the
executive committee, if any, of the Board, in one or more
books provided for such purpose and shall see that all notices
are duly given in accordance with the provisions of this
Agreement or as required by law. The Secretary shall be
custodian of the corporate records and of the seal (if any) of
the Company and see, if the Company has a seal, that the seal
of the Company is affixed to all documents the execution of
which on behalf of the Company under its seal is duly
authorized; shall have general charge of the minute books,
transfer books and certificate of Membership Interest ledgers,
and such other books and papers of the Company as the Board
may direct; and in general shall perform all duties and
exercise all powers incident to the office of the Secretary
and such other duties and powers as the Board or the President
from time to time may assign to or confer on the Secretary.
(iv) Treasurer. The Treasurer shall keep complete
and accurate records of account, showing at all times the
financial condition of the Company. The Treasurer shall be the
legal custodian of all money, notes, securities and other
valuables which may from time to time come into the possession
of the Company. The Treasurer may be designated as the "Chief
Financial Officer" of the Company. In such capacity, the
Treasurer will be responsible for all financial matters of the
Company. The Treasurer shall furnish at meetings of the Board,
or
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whenever requested, a statement of the financial condition of
the Company, and shall perform such other duties as this
Agreement may require or the Board or the president may
prescribe.
(v) Assistant Officers. Any Assistant Secretary
or Assistant Treasurer appointed by the Board shall have the
power to perform, and shall perform, all duties incumbent upon
the Secretary or Treasurer of the Company, respectively,
subject to the general direction of such respective officers,
and shall perform such other duties as this Agreement may
require or the Board or the President may prescribe.
(f) The salaries or other compensation of the officers,
if any, shall be fixed from time to time by the Board. No officer shall
be prevented from receiving such salary or other compensation by reason
of the fact that such officer is also a Manager of the Company.
(g) The Board may secure the fidelity of any officer of
the Company by bond or otherwise, on such terms and with such surety or
sureties, conditions, penalties or securities as shall be deemed proper
by the Board.
(h) The Board may delegate temporarily the powers and
duties of any officer of the Company, in case of his or her absence or
for any other reason, to any other officer, and may authorize the
delegation by any officer of the Company of any of his or her powers
and duties to any agent or employee, subject to the general supervision
of such officer.
8.10 Reimbursements. The Board and the officers shall be entitled
to be reimbursed for any and all reasonable, duly substantiated, direct
out-of-pocket costs and expenses of the Company paid or incurred by a Manager or
officer on behalf of the Company and within the scope of its business and this
Agreement.
8.11 Limitations of Liability. The Member and any persons serving
as Managers or officers of the Company and their respective shareholders,
interest holders, officers, directors, agents, employees and representatives
shall not be liable, responsible or accountable in damages or otherwise to the
Company, the Member or any Manager or officer of the Company for any mistake of
fact or judgment in operating the business of the Company or for any act
performed (or omitted to be performed) in good faith (including, without
limitation, pursuant to advice of legal counsel) and within the scope of this
Agreement, unless such actions or inactions shall have resulted from gross
negligence, willful misconduct, fraud or breach of this Agreement.
8.12 Board Decisions. For all purposes of this Agreement, the
phrases "approval" of or by the Board, "consent" of or by the Board, "action" of
or by the Board and phrases of like import, or references to actions to be or
which may be taken by "the Board," shall mean written approval by a majority of
the Managers of the Board fixed by, or in the manner provided for in, this
Agreement.
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ARTICLE IX
MEMBERSHIP INTERESTS
9.1 Certificates Representing Membership Interests. Membership
Interests may be represented by certificates in such form or forms as the Board
may approve, provided that such form or forms shall comply with all applicable
requirements of law or of the Certificate. Such certificates shall be signed by
the President or a Vice President, and by the Secretary or an Assistant
Secretary, of the Company (or by at least two Managers, if the Company has not
appointed such officers) and may be sealed with the seal of the Company or
imprinted or otherwise marked with a facsimile of such seal. The signature of
any or all of the foregoing officers of the Company may be represented by a
printed facsimile thereof. If any officer whose signature, or a facsimile
thereof, shall have been set upon any certificate shall cease, prior to the
issuance of such certificate, to occupy the position in right of which his or
her signature, or facsimile thereof, was so set upon such certificate, the
Company may nevertheless adopt and issue such certificate with the same effect
as if such officer occupied such position as of such date of issuance; and
issuance and delivery of such certificate by the Company shall constitute
adoption thereof by the Company. The certificates shall be consecutively
numbered, and as they are issued, a record of such issuance shall be entered in
the books of the Company.
9.2 Lost, Stolen or Destroyed Certificates. The Company may issue
a new certificate for Membership Interests in the place of any certificate
theretofore issued and alleged to have been lost, stolen or destroyed, but the
Board may require the owner of such lost, stolen or destroyed certificate, or
his, her or its legal representative, to furnish an affidavit as to such loss,
theft, or destruction and to give a bond in such form and substance, and with
such surety or sureties, with fixed or open penalty, as the board may direct, in
order to indemnify the Company and its transfer agents and registrars, if any,
against any claim that may be made on account of the alleged loss, theft or
destruction of such certificate.
ARTICLE X
INDEMNIFICATION
10.1 Right to Indemnification. Subject to the limitations and
conditions provided in this Article X, each Person who was or is made a party or
is threatened to be made a party to or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative (hereinafter a "Proceeding"), or any appeal in such
a Proceeding or any inquiry or investigation that could lead to such a
Proceeding, by reason of the fact that such Person is or was a Member, Manager,
officer, employee or agent of the Company or while a Member, Manager, officer,
employee or agent of the Company is or was serving at the request of the Company
as a Manager, director, officer, partner, venturer, proprietor, trustee,
employee, agent, or similar functionary of another foreign or domestic limited
liability company, corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise, shall be indemnified, defended
and held harmless by the Company to the fullest extent permitted by the Act and
the DGCL, as the same exist or may hereinafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits the Company
to provide broader indemnification rights than said law
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permitted the Company to provide prior to such amendment) against claims,
damages, liabilities, judgments, penalties (including excise and similar taxes
and punitive damages), fines, settlements and reasonable costs or expenses
(including, without limitation, attorneys' fees) actually incurred by such
Person in connection with such Proceeding, whether or not such Person is acting
in such capacity at the time such liability or expense is paid or incurred, if,
in the matter giving rise to such Proceeding, the Person acted, or omitted to
act, in good faith and in a manner the Person reasonably believed to be not
opposed to the best interest of the Company. The termination of any Proceeding
by judgment, order or settlement shall not, of itself, create a presumption that
the Person did not act, or omit to act, in good faith and in a manner that the
Person reasonably believed to be not opposed to the best interest of the
Company. The right of indemnification provided herein shall be cumulative of,
and in addition to, any and all rights to which any Person may otherwise be
entitled by contract or as a matter of law or equity and shall extend to his,
her or its heirs, successors, assigns and personal representatives. It is
expressly acknowledged that the indemnification provided in this Article X could
involve indemnification for negligence of the Person indemnified or under
theories of strict liability.
10.2 Advance Payment. To the fullest extent permitted by applicable
law, the right to indemnification conferred in this Article X shall include the
right to be paid or reimbursed by the Company the reasonable expenses incurred
by a Person of the type entitled to be indemnified under Section 10.1 in advance
of the final disposition of the Proceeding and without any determination as to
the Person's ultimate entitlement to indemnification; provided, however, that
the payment of such expenses incurred by any such Person in advance of the final
disposition of a Proceeding, shall be made only upon delivery to the Company of
a written affirmation by such Person of such Person's good faith belief that
such Person has met the standard of conduct necessary for indemnification under
this Article X and a written undertaking, by or on behalf of such Person, to
repay all amounts so advanced if it shall ultimately be determined that such
indemnified Person is not entitled to be indemnified under this Article X or
otherwise.
10.3 Insurance. The Company may purchase and maintain insurance, at
its expense, to protect itself and any Person of the type entitled to be
indemnified under Section 10.1, whether or not the Company would have the power
to indemnify such Person against such expense, liability or loss under Section
10.1.
10.4 Member Notification. To the extent required by law, any
indemnification of or advance of expenses to a Person in accordance with this
Article X shall be reported in writing to the Member within ten (10) days
immediately following the date of the indemnification or advance.
10.5 Savings Clause. If this Article X or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify and hold harmless each Person indemnified
pursuant to this Article X as to costs, charges and expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative to the fullest extent permitted by any applicable portion of this
Article X that shall not have been invalidated and to the fullest extent
permitted by applicable law.
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ARTICLE XI
TRANSFERS
11.1 Transfer of Membership Interest. Subject to applicable law,
including, without limitation, the Securities Act, and any agreement restricting
the transfer of the Membership Interests hereunder to which the Member may be a
party, the Member may at any time Transfer in whole or in part its Membership
Interest. If the Member Transfers any portion of its Membership Interest
pursuant to this Section 11.1, the transferee shall be admitted to the Company
upon its execution of an instrument signifying its agreement to be bound by the
terms and conditions of this Agreement. Such admission shall be deemed effective
as of the date of the Transfer.
ARTICLE XII
DISSOLUTION AND LIQUIDATION
12.1 Dissolution of the Company. The Company shall be dissolved
upon the occurrence of any of the following events:
(a) The determination by the Member that the Company be
dissolved;
(b) The sale or other disposition of all or substantially
all of the Company's assets and the receipt of all payments therefor in
cash;
(c) The expiration of the period fixed for the duration
of the Company set forth in the Certificate; or
(d) Entry of a decree of judicial dissolution of the
Company under Section 18-802 of the Act.
12.2 Liquidation and Termination. On dissolution of the Company,
the Board shall act as liquidator or may appoint the Member as liquidator. The
liquidator shall proceed diligently to wind up the affairs of the Company and
make final distributions as provided herein and in the Act. The costs of
liquidation shall be borne as a Company expense. Until final distribution, the
liquidator shall continue to operate the Company with all of the power and
authority of the Board. Maintenance of property, borrowings and expenditures of
Company funds for legitimate Company purposes to effectuate or facilitate the
winding up or the liquidation of the Company affairs shall be authorized if the
liquidator, in the exercise of his, her or its business judgment, believes that
the interest of the Company would be best served thereby and shall not be
construed to involve a continuation of the Company. Upon dissolution of the
Company, a true and final accounting of all transactions relating to the
business of the Company shall be made. Liabilities of the Company shall be paid
and assets of the Company shall be distributed in accordance with the provisions
of Section 12.3 hereof as soon as is reasonably possible after the dissolution
of the Company.
12.3 Payment of Liabilities and Distribution of Assets. Upon
dissolution of the Company, the liquidator shall determine and report to the
Member the assets of the Company
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and the value of Company assets. The assets of the Company remaining after the
payment of all Company debts shall be distributed to the Member.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Notices. All notices, demands, requests or other
communications that may be or are required to be given, served or sent pursuant
to this Agreement shall be in writing and shall be mailed by first-class,
registered or certified mail, return receipt requested, postage prepaid, or
transmitted by hand delivery, telegram, facsimile transmission or electronic
transmission addressed as set forth on the signature pages hereof. The Member
may designate by notice in writing a new address to which any notice, demand,
request or communication may thereafter be so given, served or sent. Each
notice, demand, request or communication that is mailed, delivered or
transmitted in the manner described above shall be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee with the return receipt, the delivery receipt, the affidavit of
messenger or (with respect to a facsimile or electronic transmission) the answer
back being deemed conclusive evidence of such delivery or at such time as
delivery is refused by the addressee upon presentation.
13.2 Amendment or Modification. This Agreement may be amended or
modified from time to time only by a written instrument adopted by the Board and
executed and agreed to by the Member.
13.3 Successors and Assigns. This Agreement, and all the terms and
provisions hereof, shall be binding upon and shall inure to the benefit of the
Member and its respective personal representatives, successors and permitted
assigns.
13.4 Construction. The captions used in this Agreement are for
convenience only and shall not be construed in interpreting this Agreement.
Wherever the context so requires, the masculine shall include the feminine and
the neuter, and the singular shall include the plural and vice versa, unless the
context clearly requires a different interpretation.
13.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
13.6 Severability. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations of the jurisdictions in which the Company does
business. In the event of a direct conflict between the provisions of this
Agreement and (a) any provision of the Certificate, or (b) any mandatory
provision of the Act or (to the extent such statutes are incorporated into the
Act) of the DGCL, the applicable provision of the Certificate, the Act, or the
DGCL shall control. If any provision of this Agreement or the application
thereof to any Person or circumstances is for any reason and to any extent
invalid or unenforceable, the remainder of this Agreement and the application of
such provision to the other Persons or circumstances will not be affected
thereby, but rather are to be enforced to the greatest extent permitted by law.
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13.7 No Third Party Beneficiaries. This Agreement is intended for
the exclusive benefit of the Member and its personal representatives, successors
and permitted assigns, and nothing contained in this Agreement shall be
construed as creating any rights or benefits in or to any third party.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the sole Member has executed this Agreement as of
the date first set forth hereinabove.
SOLE MEMBER:
Rent-A-Center, Inc.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Xxxxxx X. Xxxxx
Senior Vice President -- Finance,
Chief Financial Officer and Treasurer
Address: 0000 Xxxxxxxx Xxxxxxx, Xxxxx
Xxxxx Xxxxx, Xxxxx 00000
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